EXHIBIT 10.4
OFFICE LEASE DATED JUNE 22, 2005
THIS AGREEMENT is made the 22nd day of June 2005
BETWEEN the Landlord whose name address or registered office and description are
set out in Part I of the First Schedule hereto (hereinafter called "the
Landlord" which expression shall include its successors and assigns) of the one
part and the Tenant whose name address or registered office and description are
set out in Part II of the First Schedule hereto (hereinafter called "the
Tenant") of the other part WHEREBY IT IS HEREBY MUTUALLY AGREED by and between
the said parties hereto as follows:
SECTION (I)
THE PREMISES AND THE TERM
The Landlord shall let and the Tenant shall take ALL THAT the premises as more
particularly described and set out in the Second Schedule hereto (hereinafter
called "the said premises"). Together with all the Landlord's fixtures and
fittings And together with] the use in common with the Landlord and all others
having the like right of the entrances, staircases, landings, passages and
lavatories in the building of which the said premises form part (hereinafter
called "the Building") in so far as the same are necessary for the proper use
and enjoyment of the said premises And except in so far as the Landlord may from
time to time restrict such use And together also with (if and whenever the same
shall be available and operating) the use in common as aforesaid of the lifts,
escalators, central air-conditioning services and the loading and unloading bays
in the Building for a term set out in Part III of the First Schedule hereto
YIELDING and PAYING therefor the rent and other charges and in such manner as
described and set out in Part IV of the First Schedule hereto.
SECTION (II)
RENT AND OTHER CHARGES
The Tenant hereby agrees with the Landlord as follows:
(1) To pay and discharge punctually the said rent (the "Rent"), rates and
all other charges as mentioned in Part IV of the First Schedule (the "Services
Charges") on the days and in the manner hereinbefore provided for payment
thereof.
(2) To pay and discharge punctually all rates (the "Rates"), government
rent (the "Government Rent") taxes, assessments, maintenance, duties, charges,
impositions and outgoings whatsoever now or hereafter to be assessed, imposed or
charged by the Government (as defined hereinafter) or other lawful authority
upon the said premises or upon the owner or the occupier thereof (Property Tax
only excepted).
-1-
(3) To pay and discharge punctually all charges (including deposits) for
service maintenance, telephone, gas, water and electricity in respect of the
said premises (including but without limitation charges for any air-conditioning
fan-coil units installed therein, if any) whether as shown by the separate meter
installed upon the said premises or by accounts rendered to the Tenant. Nothing
contained herein shall confer on the Tenant, by implication or inference, right
to install separate meter for the utilities aforesaid unless the Landlord shall
have so previously approved in writing and the plans for such installation shall
have been previously approved by the Landlord or its management agent, the
Manager of the Building, the relevant public utility company and statutory or
public or competent authorities in writing.
SECTION (III)
TENANTS OTHER OBLIGATIONS
The Tenant hereby further agrees with the Landlord as follows:
(1) To obey and comply with and to fully indemnify the Landlord against
the breach of all Ordinances, regulations, by-laws, orders, rules and
requirements of the Government, public utility companies, statutory or public or
competent authorities, the provisions of the Deed of Mutual Covenant, the
Sub-Deed of Mutual Covenant (if any) and the Management Agreement in respect of
the said premises relating to the use and occupation of the said premises, and
the conduct and carrying out of the Tenant's business on the said premises or to
any other act, deed, mater or thing done, permitted, suffered or omitted therein
or thereon by the Tenant or any licensee (as defined hereinafter) of the Tenant
and to notify the Landlord forthwith in writing of any notice received from the
Government or any public utility company or any statutory or public or competent
authority concerning or in respect of the said premises or any services supplied
thereto.
(2) (a) To maintain the expense of the Tenant the said premises
throughout the term of this Agreement in good, clean and tenantable condition
and repair to the satisfaction of the Landlord (fair tear and wear excepted).
(b) To keep all the interior of the said premises (including but
not limited to (the flooring and interior plastering or other finishes or
rendering to or on walls, floors and ceilings) and the Landlord's furniture
fixtures and fittings therein and all additions thereto (including but not
limited to the carpet, door frames, air-conditioners, fan coil unit, air
compressor, window frames, ventilators, doors, windows, fire services equipment
and apparatus, electrical installations and wiring, burglar alarm systems,
sanitary system apparatus and the main switch box) in good, clean and tenantable
repair and condition and properly preserved and painted to the satisfaction of
the Landlord and so maintain the same at the expense of the Tenant and to
deliver up the same to the Landlord at the expiration or sooner determination of
the term of this Agreement in like condition.
-2-
(c) (i) To fit out the said premises in accordance with such
Ordinances and other orders, rules and regulations of the Government, public
utility companies and competent authorities as shall from time to time be in
force during the term of this Agreement and to maintain, add to, modify or alter
the same in accordance with such Ordinance, orders, rules and regulations as are
in force from time to time. The Tenant shall in carrying out the works hereunder
use only such contractor(s) as shall be approved by the Landlord in writing
(which approval not to be unreasonably withheld).
(ii) To fit out the said premises in accordance with such
directions and conditions as may be given by the Landlord and its management
agent and the Manager of the Building, and such drawings, layout details and
plans, designs and specifications of the works (together the "Fitting-out
Plans") (including but not limited to the electrical wiring diagram and
installations, air-conditioning and mechanical ventilation plans) as may be
desired by the Tenant or required by the Government, public utility companies or
any public or statutory or competent authorities and shall first be submitted by
the Tenant to and approved in writing by, the Landlord and so to maintain the
same throughout the term of this Agreement in good, clean and tenantable
condition and repair to the satisfaction of the Landlord. The Landlord shall be
entitled to accept or reject such Fitting-Out Plans, in whole or in part as it
shall think fit. The Landlord shall further have the right to vary or specify,
the choice of finishes and materials to be used for the fitting out works, and
the Tenant in carrying out such works shall obey and comply with and ensure its
licensees shall comply with, the requirements and provisions in this Agreement
and the instructions and directions of and the Landlord and its authorized
representatives, contractors and management agents, and the Manage of the
Building from time to time. In order to enable the building services of the
Building to be effectively co-ordinated and controlled, the Landlord shall have
the right to require the Tenant that all alterations and additions to the
building services in or for the said premises shall be carried out only by the
Landlord's contractor at the Tenant's expense. For the purpose of this Clause,
subject to alterations and additions from time to time and to such extent as the
Landlord shall in its discretion deem appropriate or necessary, the expression
"building services" shall mean all mechanical and electrical engineering works
and arrangement related to the said premises (including but not confined to
electrical air-conditioning, plumbing and fire fighting installation). Prior to
the commencement of any works, the Tenant shall furnish the Landlord with the
following information and items:
(aa) the name(s) and address(es) of the appointed
designer(s)/agent(s) for the said premises;
(bb) the name(s) and address(es) of the general
contractor(s) that the Tenant intends to
engage in the Tenant's works;
(cc) the name(s) and address(es) of the Tenant's
authorized agent(s)/representative(s), if
any; and
(dd) the actual commencement date of interior
decoration and the estimated date of
completion of decoration works, fitting-out
works, and the date of projected opening.
-3-
(d) To pay to the Landlord on demand all fees incurred by the
Landlord in connection with its consideration and approval of the Fitting-out
Plans as well as all modifications and amendments thereof, and to be responsible
for obtaining all necessary permits licences and approvals pertaining to the
proposed decoration partitioning alternations additions installations and
fitting out works. Any approval or direction given by the Landlord under or
pursuant to or in connection with this Agreement shall not relieve the
responsibility of the Tenant to comply with and observe the Deed of Mutual
Covenant, the Sub-Deed of Mutual Covenant (if any) and the Management Agreement.
The Tenant shall submit all applications required and the Fitting-out Plans and
shall comply with all Ordinances, rules and regulations and by-laws of the
Government, public utility companies and public or statutory or competent
authorities having jurisdiction over the said works. Without such necessary
permits licences and approvals, the Tenant shall not commence any such
decoration partitioning alterations additions installation and fitting out
works. The Tenant shall be solely responsible for the consequences of the breach
aforesaid (including but not limited to the costs of demolition, addition and
alteration required to comply with the requirements of the Government or any
public or statutory of competent authority) and shall indemnify and keep the
Landlord indemnified in full against all losses claims costs actions and
proceedings arising from the Tenant's breach of this Clause.
(e) To make good at its own costs any default in complying with
this Clause notwithstanding that its fitting out alteration addition
installation partitioning and decoration proposals may have been submitted by
the Landlord or the Landlord's agent to the Government or public utility
companies or public or statutory or competent authorities on behalf of the
Tenant and the Tenant shall solely bear the consequences of any rejections or
any amendments required by the Government, or public utility companies or
statutory or competent authorities of the Tenant's proposals and of any delay or
losses resulting from such rejections or amendments. As security for the due
observance and compliance by the Tenant and its licensees of the rules and
regulations stipulated by the Landlord and its management agent and the Manager
of the Building from time to time in carrying out any Tenant's works hereunder,
the Tenant shall pace a fitting-out deposit with the Landlord, its managing
agents and the Manager of the Building (as the case may be) in the amount
stipulated by the Landlord or its managing agents and the Manager of the
Building (as the case may be) before commencing such works. The fitting-out
deposit shall be returned without interest to the Tenant after the said premises
shall have been fitted -out in accordance with the approved plans but subject to
any deduction therefrom necessary to make good any damages or losses caused to
the Building or the said premises or any part thereof or suffered by the
Landlord, its managing agents and the Manager of the Building (as the case may
be) and damages or losses or injuries to any person as a result of any breach by
the Tenant of this Clause.
(3) To pay and reimburse to the Landlord forthwith upon demand the cost of
replacing and repairing all broken and damaged window frames and glass panels
within and/or encompassing the said premises whether or not the same be broken
or damaged by the negligence of the Tenant or its licensee or owing to the
circumstances beyond the control of the Tenant (including but not limited to
typhoons and rainstorm).
-4-
(4) To pay and reimburse to the Landlord forthwith upon demand the cost of
repairing and replacing work done pursuant to this Agreement (including but not
limited to the [shop front plate glass or open shutter or any] air-conditioning
fancoil unit and all other parts of the air- conditioning system or installation
which is damaged or rendered defective) whether or not the same be due to the
negligence or circumstances beyond the control of the Tenant or its licensee,
and of making good all damages and defects caused to the said premises or any
part(s) of the Building.
(5) To repair or replace any electrical mechanical gas or piping fittings
installation wiring apparatus and meter located in the said premises (or
elsewhere, if use exclusively by the Tenant or its licensees) forthwith if the
same becomes dangerous unsafe or hazardous or if so required by the Landlord or
by the Government or any public utility company or statutory or public or
competent authority, and in so doing the Tenant shall use only such contractor
designated by the Landlord or by the Government or any public utility company or
statutory or public or competent authority in writing for this purpose. The
Tenant shall permit the Landlord's agents and/or contractors to test the
Tenant's electrical mechanical gas or piping fittings installation apparatus
wiring and meter in the said premises at any time upon request being made. The
Tenant shall indemnify the Landlord and all persons and hold them harmless
against any cost claims losses damages injuries actions or proceedings resulting
from or attributable to any malfunction or disrepair of the electrical
mechanical gas or piping fittings installation wiring apparatus or meter in the
said premises.
(6) To keep the lavatories sanitary plumbing and water apparatus (including
but not limited to drainage taps wash basins and sinks as are located in the
said premises (or elsewhere if used exclusively by the Tenant or its licensees)
in good, clean and tenantable repair and condition to the satisfaction of the
Landlord and in accordance with the Ordinances and the orders, regulations and
by-laws of the Government and public utility companies and the statutory or
public or competent authorities concerned. In the event of any damage being
incurred, the Tenant shall forthwith repair the damage and restore the said
premises and those lavatories, sanitary, plumbing and water apparatus in the
said premises (or elsewhere) if used exclusively by the Tenant or its licensees)
to their proper state and condition in accordance with the covenant for repair
contained in the foregoing provisions.
(7) To pay and reimburse to the Landlord forthwith on demand all costs in
full incurred by the Landlord in cleansing, clearing, repairing or replacing any
of the drains, pipes or sanitary or plumbing or water apparatus choked or
stopped up owing to the careless or improper use or neglect by the Tenant or its
licensees.
(8) To be wholly responsible for and to indemnify the Landlord in full
against any proceedings actions claims or demands whatsoever by any person for
losses and damages occasioned to the said premises or any part of the Building
or any adjacent or neighbouring premises thereto or for any injury as a result
of, directly or indirectly, the want of repair or maintenance to the said
premises or the spread of fire or smoke or the overflow or leakage of
-5-
water or the escape of any substance or anything from the said premises due to
the breach of duty or default or negligence of the Tenant or its licensees and
to make good the same and, if required by the Landlord, to effect and maintain a
policy or policies of insurance against any loss or damage to property or
against any injury to person or economic loss or any perils or risks of fire,
water, gas, fittings, stocks, equipment or any risks or liabilities disclaimed
or excluded by the Landlord under this Agreement with such reputable insurance
company on such term and in such values as the Landlord may approve from time to
time and shall be endorsed therein to show the Landlord as owner of the said
premises and shall contain a clause to the effect that the insurance cover
thereby and the terms and conditions thereby shall not be cancelled, modified or
restricted without the prior written consent of the Landlord. The Tenant hereby
undertakes to produce to the Landlord on request the policy or policies and the
receipt for the last payment of premium and a certificate form the insurance
company that the policy or policies are in all respects valid and subsisting
provided always that if the Tenant shall at any time fail to effect such
insurance policy or policies within reasonable time acceptable to the Landlord
or keep such insurance policy or policies in full force and effect or cause such
policy or policies to be void or voidable, the Landlord may do all things as may
be appropriate or necessary to effect and maintain such an adequate insurance
cover and any monies expended by the Landlord for that purpose shall be
recoverable without deduction from the Tenant on demand.
(9) To take all precautions to protect the interior of the said premises
against damage by any rainstorm or typhoon or the like.
(10) To carry out any works of the Tenant to the said premises pursuant to
this Agreement subject to the prior written approval of the Landlord and the
inspection of the Landlord, the Landlord's architect and general contractor from
time to time.
(11) No approval by the Landlord is valid unless in writing, signed by the
Landlord or the Landlord's authorised representatives.
(12) To permit the Landlord and its contractors and all persons authorised
by the Landlord with or without appliances at all reasonable times and upon
prior notice to enter upon view and inspect the state of repair, defects and
damages of the said premises, to take inventories of the fittings and fixtures
therein and to carry out any work, repairs or maintenance which are required to
be done hereunder provided that in the event of an emergency the Landlord, its
servants or workmen or contractors or agents or the Manager of the Building may
enter the said premises without notice and forcible if needed be.
(13) On receipt of any notice from the Landlord or its authorised
representatives or agents or the Manager of the Building or the Government or
any public utility company or public or statutory or competent authority,
specifying any works or repairs which are required to be done and the time in
which they are to be done and which are the responsibility of the Tenant
hereunder, forthwith to, put in hand and execute the same with all possible
despatch and if the Tenant shall fail to comply with such notice in any respect
it shall be lawful for the Landlord (but without
-6-
prejudice to its any other rights contained herein or at law) and its agents,
servants contractors and workmen and the Manager of the Building to enter upon
the said premises and to carry out all or any of the works referred to in such
notice and the costs of so doing and all expenses incurred thereby shall be
recoverable as rent in arrears and be paid by the Tenant to the Landlord
forthwith on demand.
(14) To give immediate notice to the Landlord of any damage that may be
caused or suffered to the said premises and of any accident to or defects in the
sewers, water pipes, gas pipes, electrical wiring or utility lines, fittings,
fixtures installation or other services or facilities placed or installed in the
said premises or provided by the Landlord upon the Tenant becoming aware of such
occurrence of damage, accident or defect and to indemnify the Landlord against
any claim or action made against the Landlord by any third party and any loss
suffered by the Landlord either directly or indirectly as a result of any breach
by the Tenant of this provision.
(15) To allow at all reasonable times within three calendar months
immediately preceding the expiration of the terms of this Agreement, the
Landlord and/or its estate agents and/or employees and/or the prospective
tenants and/or buyers to enter, view and inspect the said premises and the
Landlord shall be entitled during the said three calendar months to exhibit
(without interruption) a notice in or outside the said premises as the Landlord
shall think fit indicating that the said premises are to be let or sold with or
without vacant possession and such other information in connection therewith as
the Landlord shall desire.
(16) To obey and comply with such regulations as may from time to time be
adopted by the Landlord and its management agent in accordance with Section (IX)
hereof.
(17) To be wholly responsible for the acts, neglects, omissions and defaults
of or breaches by all licensees of the Tenant as if they were the acts,
neglects, omissions and defaults of the Tenant himself and to indemnify the
Landlord in full against all costs claims demands actions costs proceedings
expenses or liabilities to any person in connection therewith. For the purpose
of this Agreement, any acts defaults neglects defaults or omissions of or
breaches by the licensees of the Tenant shall be deemed to be the acts defaults
neglects defaults or omissions of or breaches by the Tenant.
(18) To keep in operation batter operated emergency lighting and exit signs
in locations within the said premises as required by the Fire Services
Ordinances and all orders, directions, codes and regulations made by the
Government, competent authorities, the Landlord or it management agent and the
Manager of the Building.
(19) To provide at its own costs earthing within the said premises to meet
the requirements of the Government, the competent authorities, the Landlord or
its management agent, and the Manager of the Building.
(20) To permit pipes, conduits, cables, wiring and utility lines to be
erected in and passed through the said premises in order to service other
premises and areas in the Building. For
-7-
this purpose, the Landlord and its agents workmen and contractors and the
Manager of the Buidling shall have the right to enter the said premises to
examine the same.
(21) To permit the Landlord's servants or security guards to enter the said
premises at all reasonable times for security purposes, to connect and keep at
its own costs the said premises connected to any communal alarm or security
system and, if required by the Landlord, to be linked up to the security system
for the Building provided and operated by the Landlord.
(22) To comply with orders, codes and regulations stipulated by the
Government and all statutory or public or competent authorities for any
additional fire services and fire fighting system and apparatus apart from those
provided by the Landlord, whether induced by the business of the Tenant or
otherwise, and the costs so incurred shall be solely borne by the Tenant.
(23) To quietly yield up the said premises together with all the Landlord's
fixtures, fittings and additions therein and thereto (including but not limited
to air-conditioning ducts, if any) at the expiration or sooner determination of
this Agreement in good, clean and tenantable repair and condition to the
satisfaction of the Landlord notwithstanding any rule of law or equity to the
contrary and, provided that where the Tenant has made any alterations or
additions or installed any fixtures or fittings whether of a structural or
non-structural nature, to the said premises with or without the Landlord's
written consent, the Landlord may at its discretion require the Tenant at the
expense of the Tenant to remove and/or do away with such alterations fixtures or
fittings or additions or any part(s) or portion(s) thereof, to reinstate the
said premises and to make good and repair in a proper and workmanlike manner any
damage to the said premises and to the Landlord's fixtures and fittings therein
as a result thereof, and remove at the expense of the Tenant all lettering and
characters from all the doors, walls and windows of the said premises and
surrender to the Landlord all keys giving access to all parts of the said
premises before delivering up the said premises to the Landlord at the
expiration or sooner determination of the term of this Agreement.
(24) To install at the Tenant's own expenses empty conduits for telephone
service to the said premises. Telephone service to the said premises shall only
be installed by such public utility company as previously approved by the
Landlord in writing and the Tenant shall make its own arrangement with regard to
the installation of telephones in the said premises and leave pull wire in all
conduits. Installation of all telephone lines outside the said premises must be
made in accordance with the Landlord's directions in writing and the Tenant
shall forthwith pay and reimburse to the Landlord expenses incurred in the
installation of any telephone jacks or conduits to the said premises.
(25) To keep all windows and doors of the said premises closed at all times
unless otherwise previously approved by the Landlord in writing and to permit
the Landlord and its servants, management agents and contractors and the Manager
of the Building from time to time during the term of this Agreement to enter
upon the said premises for the purpose of closing any doors or windows.
-8-
(26) To permit the Landlord and its agents, contractors, workmen and
servants to perform on behalf of and for the account of the Tenant any of the
Tenant's work which the Landlord determines shall be so performed. Such work
shall include work which the Landlord deems necessary to be done on an emergency
basis, work caused by the Tenant's fault, and work which pertains to structural
components and the general utility systems for the Building and the erection of
temporary safety barricades hoarding and, if necessary, temporary signs during
construction. All expenses incurred thereby shall be paid by the Tenant to the
Landlord forthwith upon demand and shall be recoverable as rent in arrears.
(27) To permit the Landlord and its agents workmen servants and contractors
and the Manager of the Building at all reasonable times (except in case of
emergency) during the term of this Agreement to enter into and upon the said
premises and to execute any works of renewal cleansing alteration or repair the
said premises or to any adjacent or neighbouring premises or to the Building.
(28) To remove at its own costs refuse and garbage from the said premises to
such location and to use only such type of refuse container as shall be
specified by the Landlord from time to tome. In the event of the Landlord
providing a collection service for refuse and garbage the same shall be used by
the Tenant and all damages incurred therefor shall be solely borne by the Tenant
who shall punctually pay and reimburse such charges to the Landlord in
accordance with the direction of the Landlord from time to time.
(29) To load and unload goods, equipment and apparatus only at such times
and through such entrances and by such service lifts (if any) as shall be
designated by the Landlord for this purpose from time to time.
(30) To pay and reimburse to the Landlord forthwith upon demand the cost in
making good any damage caused to any part of the common areas of the Building
occasioned by the Tenant or its licensees or any other person claiming through
or under the Tenant.
(31) To pay and reimburse to the Landlord forthwith upon demand the cost of
affixing repairing or replacing as necessary the Tenant's name in lettering to
the directory boards at the Building.
(32) If any excavation or other building work or renovation works or repairs
shall be made or authorised in the vicinity of the Building, the Tenant shall
upon prior notice by the Landlord permit the Landlord and its servants,
contractors, workmen, management agents and the Manager of the Building to enter
the said premises to do such works and repairs as may be deemed necessary to
preserve the exterior walls of the Building from injury to person or damage to
property and to maintain the Building without any claim for losses or damages or
indemnity against the Landlord.
-9-
(33) To give copies to the Landlord of any notices orders directions or
other things by the Manager of the Building or any statutory or public or
competent authority affecting or likely to affect the said premises served onto
the Tenant.
(34) To apply for and obtain all necessary approvals permits and licenses
required by the Government or any statutory or public or competent authority in
connection with the Tenant's use and occupation of the said premises and the
operation of the Tenant's business in the said premises prior to the
commencement of the Tenant's business and to maintain the same in full force
during the currency of this Agreement and to indemnify the Landlord in full
against any claims losses damages expenses demands and liabilities which the
Landlord may incur as owner of the said premises as a result of the failure to
obtain and maintain the necessary approvals, permits and licenses.
(35) To deliver up vacant possession of the said premises to the Landlord at
the expiration or sooner determination of this Agreement notwithstanding any
rules of law or equity to the contrary.
(36) In addition and without prejudice to the Landlord's right hereunder, to
permit, and the Tenant hereby specifically authorizes, the Landlord to cut off
the supply of electricity and air- conditioning chilled water to the said
premises and to dispose of all objects including goods merchandise equipment
furniture chattels and fixtures in or at the said premises in such manner as the
Landlord shall deem fit, and any expenses in connection therewith shall be paid
by the Tenant and shall be recoverable from it as a debt. The Landlord shall in
no way be responsible to the Tenant or the Tenant's licensees for any loss or
damage or injury or accident caused to property or to any person as a result of
the cut off of utilities and disposal of objects.
(37) To keep the said premises well and sufficiently lighted throughout the
business hours of the Tenant.
(38) To ensure that the Tenant itself and the Tenant's licensees shall not
obstruct or park or use those areas of the Building allocated to temporary
vehicle parking or designated as loading/unloading areas otherwise then in
accordance with the regulations from time to time made by the Landlord and its
management agents, servants and contractors and Manager of the Building and
shall at all times comply with the directions of the Landlord and its management
agents servants and contractors and the Manager of the Building.
(39) To conduct the business of the Tenant so as not to prejudice the
goodwill and reputation of the Building as a first class office building.
(40) To pay and reimburse to the Landlord or (as the case may be) its
management agents, or the Manager of the Building forthwith on demand charges
for air-conditioning outside the normal business of the Building hours, which
charges shall be at such rate as the Landlord or its management agent or the
Manager of the Building may from time to time determine according to the cost of
providing the same.
-10-
(41) To comply with any Ordinance, orders, rules and regulations and orders
by the Government and all statutory or public or competent authorities for the
time being in force and all future enactments in substitution therefor or
amendment thereto should such enactments or amendments apply to the said
premises, and be answerable and responsible for the consequences of any breach
of Ordinances, orders and rules and regulations by the Tenant and its licensees.
SECTION (IV)
LANDLORD'S OBLIGATIONS
The Landlord hereby agrees with the Tenant as follows:
(1) To permit the Tenant (who duly paying the Rent, the Rates, the
Government Rent and the Service Charges on the days and in the manner herein
provided and observing and performing the agreements, covenants, stipulations
and conditions herein contained and on the Tenant's part) to have quiet
possession and enjoyment of the said premises during the term of this Agreement
without any interruption by the Landlord or any person lawfully claiming under
or in trust for the Landlord.
(2) To pay the Property Tax payable in respect of the said premises.
SECTION (V)
RESTRICTIONS AND PROHIBITIONS
The Tenant hereby agrees with the Landlord as follows:
(1) (a) Not without the previous written consent of the Landlord to
install or permit or suffer to be installed any equipment, apparatus or
machinery or article which imposes a weight on ay part of the flooring in excess
of that for which it is designed or which requires any additional electrical
main wiring or which consumes electricity not metered through the Tenant's
separate meter.
(b) The Landlord shall be entitled to prescribe the maximum weight
and permitted location of safes and other heavy equipment or article and to
require that the same shall stand on supports of such dimensions and materials
to distribute the weight as the Landlord may deem necessary.
(2) Not without the previous written consent of the Landlord to erect,
install, remove or alter any fixtures fittings partitioning or structure or
other erection or installation in or outside the said premises or the Building
or any part thereof nor without the like consent make or permit or suffer to be
made any structural or non-structural alterations in or additions to the said
premises or the Landlord's fixtures and fittings or any electrical wiring and
installations or any pipes drains or sewers.
-11
(3) Not without the previous written consent of the Landlord to cut, maim,
injure, drill into, xxxx or deface or permit or suffer to be cut, maimed,
injured, drilled into, marked or defaced any doors, windows, walls, beams,
air-conditioner ducts (if any), structural members or any part of the fabric of
the said premises nor any of the electrical mechanical gas plumbing or sanitary
apparatus or installation included therein.
(4) Not without the previous written consent of the Landlord to alter the
existing locks, bolts and fittings on the entrance doors to the said premises,
nor to install any additional locks, bolts or fittings thereon.
(5) Not to do or permit or suffer to be done in or upon the said premises
or in the common passages stairways lifts escalators lobby toilets or roof of
the Building any act or thing which may be or become a nuisance or annoyance or
cause damage or injury to the Landlord or its employees licensees agents or
contractors or to the tenants or occupiers of other premises in the Building or
in any adjoining or neighbouring building.
(6) Not to produce or do or permit or suffer to be done at any time in the
said premises any act or thing or any music or noise (including but not limited
to sound produced by broadcasting from television, radio or any other service or
by any equipment apparatus or instrument capable of producing or reproducing
receiving or recording music or sound) so as to constitute, in the opinion of
the Landlord (which opinion shall be final and conclusive) a nuisance or
disturbance or annoyance to or to give cause for reasonable complaint from, the
occupants of any other premises in the Building or persons using or visiting the
same.
(7) Not without the previous written consent of the Landlord affix or
exhibit or display or paint or make any alteration or addition whatsoever or
permit or suffer to be affixed or exhibited or displayed or painted outside the
said premises or in at or above any common area (including but not limited to
stairways, lifts, escalators, lobby, landing or corridor of the Building) any
signboard, decoration flag, sign, decoration, advertising matter or other device
whether illuminated or not other than in a location designated and in form
previously approved by the Landlord in writing.
(8) Not to use or permit or suffer to be used the said premises or any part
thereof for any purpose other than for the Tenant's business the nature of which
business is set out in Part V of the First Schedule hereto and the Tenant shall
not be entitled to change the nature of its business carried out at the said
premises without the Landlord's prior written consent.
(9) Not to use or permit or suffer to be used the said premises or any part
thereof for any illegal or immoral or improper purpose.
(10) Not to use or permit or suffer to be used in or upon the said premise
or any part thereof as sleeping quarters or as domestic premises withing the
meaning of any Landlord and Tenant (Consolidation) Ordinance or similar
legislation for the time being in force, nor to allow any person to remain in
the said premises overnight.
-12-
(11) Not to use or permit or suffer to be used in or upon the said premises
for the purpose of the manufacture of goods and merchandise or as a workshop or
for the storage of goods and merchandise other than stock reasonably required in
connection with the Tenant's business carried on therein.
(12) Not to keep or store or permit or suffer to be kept or stored in the
said premises or any part thereof any illegal drugs, pirated goods or
merchandise, arms, ammunition, gun-powder, saltpetre, kerosene or other
explosive or combustible or dangerous or hazardous substance or goods or
articles or such other substance or goods prohibited under the Dangerous Drugs
Ordinance or the Dangerous Goods Ordinance.
(13) Not to encumber or obstruct or permit or suffer to be encumbered or
obstructed with any boxes, merchandize, goods, chattels, rubbish, packaging or
other objects or articles or obstruction of any kind or nature at any of the
entrances, staircases, landings, passages, escalators, lifts, lobbies or other
parts of the Building in common use and not to leave place or expose or
permitted to be placed left or exposed goods or merchandise or rubbish or any
other object or article or thing in any part of the Building not in the
exclusive occupation of the Tenant. In addition to any other rights and remedies
which the Landlord may have hereunder, the Landlord and its servants workmen
contractors and management agents may without any prior notice to the Tenant
remove any such obstruction and dispose of the same as the Landlord shall think
fit from time to time without incurring any liability whatsoever therefor and
the Tenant shall on demand pay and reimburse to the Landlord forthwith all costs
and expenses incurred in such removal.
(14) Not to lay, install, affix or attach any wiring, cables or other
articles or things in or upon any of the entrances, staircases, landing,
passages, lobbies, transformer rooms, switch rooms or other parts of the
Building in common use to the said premises.
(15) Not to prepare or xxxx or permit or suffer to be prepared or cooked any
food in the said premises or in any party of the Building (except by means of
the service lifts or the preparation or consumption of food on the said premises
other than the preparation and consumption of light meals or refreshments for
consumption by the Tenant's employees or guests provided that such light meals
or refreshments shall not be consumed within any retail areas of the said
premises or within sight of customers and/or the public. No hot food shall be
cooked or re-heated other than by an approved microwave oven. The Tenant shall
ensure that all wet garbage and refuse will be disposed of by arrangement with
and in containers specified by the management of the Building) or to cause or
permit any offensive or unusual odours to be produced upon, permeate through or
emanate from the said premises.
(16) Not to keep or permit or suffer to be kept any animals or pets inside
the said premises, and to take all such steps and precautions to the
satisfaction of the Landlord in order to prevent the said 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
-13-
Landlord may nominate or approve in writing from time to time and at such
intervals as the Landlord may direct. In the event of the said premises becoming
so infested, the Tenant shall pay and reimburse to the Landlord forthwith the
cost of extermination as arranged or approved by the Landlord and the selected
extermination contractors shall be given full access to the said premises for
such purpose.
(17) Not without the previous written consent of the Landlord to transfer
assign underlet or otherwise part with the possession of the said premises or
any part thereof or interest therein in any way whether by way of subletting
lending sharing or other means whereby any organization company firm or person
not a party to this Agreement obtains the use or possession of the said premises
or any part thereof or interest therein 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 said premises (whether for monetary consideration or not) this Agreement
shall at the option of the Landlord absolutely determine and the Tenant shall
forthwith vacate the said premises upon notice to that effect from the Landlord.
This Agreement shall be personal to the Tenant and, without in any way limiting
the generality of the foregoing, the occurrence of any of the following acts and
events shall, unless previously approved in writing by the Landlord, be deemed
to be a breach 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 liquidation 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
said 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 presentation of
petition for the winding up of the corporation or entry into any composition or
arrangement between the corporation and its creditors or change in the person or
persons who own a majority of the voting rights or who otherwise has or have
effective control of such corporation.
(d) The giving by the Tenant of a power of attorney or similar
authority whereby the donee of the power of attorney obtains the right to use
possess occupy or enjoy the said premises or any part thereof or interest
therein or does in fact use possess occupy or enjoy the same.
(e) The change of the Tenant's business name as stated in Part V
of the First Schedule without the previous written consent of the Landlord.
(18) Not to do or omit to do or permit or cause or suffer to be done any
act, deed, matter or thing whatsoever which amounts to a breach of or default in
any of the terms and conditions under which the Building is held from the
Government and the Deed of Mutual Covenant, the Management
-14-
Agreement and, if any, the Sub-Deed of Mutual Covenant, and to indemnify the
Landlord in full against any such breach or default.
(19) Not to do or omit to do or permit or cause or suffer to be done any
act, deed, matter or thing whatsoever whereby the policy or policies of
insurance on the Building or the said premises against loss or damage by fire or
other insurable perils or claims by third parties or exclusion or disclaimer of
the Landlord's liabilities hereunder for the time being in force may be vitiated
or rendered void or voidable or whereby the rate of premium thereon may be
increased, and in the event of such occurrence, the Tenant shall indemnify and
keep indemnified the Landlord and all third parties in full (without prejudice
to any other rights or remedies available to the Landlord) against their loss
and damage at all times including but not limited to the costs of renewal by the
Landlord of insurance policy or policies and increase in insurance premium.
(20) Not to erect any aerial on the roof or walls of the Building or on the
ceiling or walls of the said premises without the prior written consent of the
Landlord.
(21) Not to install air-conditioning facilities and/or heating facilities
without the prior written consent of the Landlord.
(22) Not to suspend or permit or suffer to be suspended any excessive weight
from the main structure of the said premises.
(23) Not to permit or suffer to be held upon the said premises any sale by
auction, fire, bankruptcy, closing-down or sales of similar nature or any
discount-type of retail business or any form of unethical business operation
provided that this Clause shall not preclude genuine promotional, clearance or
quarterly or semi-annual or annual seasonal sales.
(24) Not to hang any laundry, clothing or other articles or things outside
the said premises or the Building.
(25) Not without the previous written consent of the Landlord to change or
in any way alter the standard entrance doors provided by the Landlord for access
to and egress from the said premises.
(26) Not to do or permit any act or thing to be done which is likely to
cause any fire risk or other hazard in the said premises or the Building.
(27) Not to take delivery of furniture equipment fittings or bulky items in
and out of the Building except during the normal business hours and only in the
lift designated by the Landlord or its management agent or the Manager of the
Building.
(28) Not to permit or allow any food or food containers to be brought onto
or removed from the said premises.
(29) Not to permit gambling of any description whatsoever upon the said
premises.
-15-
(30) Not to form or organize or attempt or make any effort to form or
organize any tenant's association or union jointly with any tenants of the
Building for whatever objects or purposes during the continuance of this
Agreement.
(31) Not to sell or supply any beer wine spirits liquor or alcohol in the
said premises (except in small quantity for private consumption) or any part of
the Building.
(32) Not without the previous written consent of the Landlord to block up
darken or obstruct or obscure the windows or lights belonging to the said
premises.
(33) Not to permit any touting or soliciting for business or the
distributing of any pamphlets notice or advertising matter by the Tenant or its
licensees outside the said premises or anywhere within the Building.
(34) Not to park in obstruct or otherwise use or permit to be parked in
obstructed or otherwise used those areas (if any) of the Building allocated to
parking the movement of or access for vehicles or designated as
loading/unloading areas except in accordance with the regulations made from time
to time by the Landlord or its management agent and the Manager of the Building.
(35) Not to carry on business under a name other than as specified in Part V
of the First Schedule. If the Tenant is desirous of changing the business name,
it must first seek written approval from the Landlord of the proposed new name.
The Landlord may give or withhold its approval at its discretion. Without
prejudice to the foregoing, the Landlord may, in connection with any application
for approval under this provision, require the Tenant to produce such evidence
as it may think fit to show that no breach of the agreements and stipulations
herein contained prohibiting the assignment, underletting, parting with
possession of or transfer of the said premises or any part thereof or any
interest therein has taken place or is about to take place in Clause 17 of this
Section (V).
SECTION (VI)
EXCLUSIONS
The Landlord shall not in any circumstances be liable to the Tenant or any other
person whomsoever:
(1) In respect of any loss or damages or other liability (whether direct or
consequential) to person or property sustained by the Tenant or any such other
person caused by or through or in any way owing to any defect in or breakdown of
the lifts or escalators or the air-conditioning system (if any) of the Building
or any cracking of the glass panels of the Building or any interruption of the
facilities or services in the Building by reason of necessary repair or
maintenance of any installations or apparatus thereto or any destruction thereof
by fire smoke water Act of God or other cause beyond the Landlord's control or
by reason of mechanical electrical or other defect or other inclement conditions
or any unavoidable shortage of fuel
-16-
materials water or labour or any cause whatsoever beyond the Landlord's control
or any act omission neglect or default of the tenants or occupiers of any other
parts of the Building or any of their employees workmen customers agents
licensees contractors or invitees or any defect in or any surge reduction
variation fluctuation interruption or termination in the supply of electrical
power or any typhoon landslide subsidence of the ground escape of fire or smoke
or any leakage of water or electric current from electric wiring cables or ducts
situate in upon or in any way connected with the Building or any part thereof or
any dropping or falling of any article object or material whatsoever (including
but not limited to cigarette ends, glass or tiles) or any vibrations from any
floor office or premises forming part of the Building or in the neighbourhood or
any defective or damaged condition of the said premises or the Landlord's
fixtures therein or any part thereof; or
(2) In respect of any loss or damage or other liability (whether direct or
consequential) to person or property sustained by the Tenant or any such other
person caused by or through or it any way owing to any failure malfunction
explosion or suspension of the electricity, water, gas or other utility supply
to the Building or the said premises; or
(3) For the security of safekeeping the said premises or any contents
therein, and in particular but without prejudice to the generality of the
foregoing, the provision (if any) by the Landlord of watchmen and caretakers or
any mechanical or electrical security system or alarm system or equipment shall
not create any obligation on the part of the Landlord as to the security of the
said premises or any contents thereof which shall at all times rest with the
Tenant nor shall the Rent, the Rates and other Service Charges or any part
thereof xxxxx or cease to be payable on account thereof except pursuant to the
provisions under Section (VII).
(4) This Agreement and the obligations on the Tenant to pay Rent and other
sums due hereunder and to perform and observe it other obligations hereunder
shall in no way be affected impaired or excused because the Landlord is unable
due to any circumstances to fulfill any of its obligations under this Agreement
or to supply or is delayed in supplying any services expressly or impliedly to
be supplied hereunder or to make or is delayed in making any repair additions
alterations or decoration or is unable to supply or is delayed in supplying any
equipment or fixtures by reason of strike labour troubles shortage of materials
or any other cause whatsoever beyond its control or by reason of any Ordinances
or any order or rule or regulation of the Government or any public utility
company or any statutory or public or competent authority.
(5) The Landlord does not represent or warrant that the said premises are
suitable for the use or purposes specified in Part V of the First Schedule or
for any purposes whatsoever, and the Landlord hereby declares to which the
Tenant hereby acknowledges that (a) any approval or direction or instruction
given by the Landlord or on its behalf may not represent in any way consistency
or compliance with the terms and conditions of the Deed of Mutual Covenant or
the Management Agreement, or (if any) the Sub-Deed of Covenant; and (b) the
Tenant shall satisfy itself or shall be deemed to have satisfied itself that the
said premises are suitable for the purpose for which they are to be used and
that all requirements and restrictions to which the said premises
-17-
and the Building are subject are fully observed and complied with under the said
terms and conditions and Deed of Mutual Covenant, if any, the Sub-Deed of
Covenant and the Management Agreement.
SECTION (VII)
ABATEMENT OF RENT
(1) In the event that the said premises or any part thereof shall be
destroyed or damaged or shall be rendered inaccessible or unfit for use and
occupation by fire, typhoon, Act of God, or other calamity beyond the control of
the Landlord or the said premises or the Building shall be condemned as a
dangerous structure or a demolition order or closing order shall become
operative in respect of the said premises or the Building; and
(2) not in any way attributable, directly or indirectly, to any act or
default or neglect or omission of the Tenant or its licensee; and
(3) the insurance policy effected by the Landlord shall not have been
vitiated or not have been rendered void or payment of premium not have been
refused in whole or in part in consequence of any act or default or omission or
neglect of the Tenant or its licensee;
(4) then the Rent or a part thereof proportionate according to the nature
and extent of the damage sustained to the Tenant shall xxxxx and cease to be
payable until the said premises shall have been restored or reinstated or
rendered accessible or fit for use and occupation or the demolition order or the
closing order shall have been uplifted provided always that:
(a) the date of expiration of the term hereby created shall not be
postponed; and
(b) the Landlord may but not obliged to repair or reinstate the
said premises if in its sole opinion, it is not economical or practicable or
reasonable to do so; and
(c) if the whole or substantially the whole of the said premises
or the Building shall have been destroyed or if rendered unfit for use and
occupation and not repaired and reinstated or the demolition order or the
closing order on the said premises or the Building shall remain continue and not
uplifted, within 3 months of occurrence of such damage or destruction or
demolition or closing order (as the case may be);
either party hereto shall be entitled to terminate this Agreement by notice in
writing to the other whereupon the same and everything herein contained shall
cease and be void as from the date of the occurrence of the damage or
destruction or the demolition or closing order (without prejudice to the rights
and remedies of either party hereto against the other) except in respect of any
antecedent claim or breach of the stipulations terms and conditions herein
contained or in respect
-18-
of the Rent, Rates, Government Rent and Services Charges payable hereunder prior
to the coming into effect of the cessation to pay Rent.
SECTION (VIII)
DEFAULT
It is hereby further expressly agreed and declared as follows:
(1) If any Rent, Rates, Government Rent or Service Charges or any part
thereof shall be unpaid for 15 days after the same shall become payable (whether
legally or formally demanded or not) or if the Tenant shall fail or neglect to
observe or perform or default in or omit to do any of the agreements,
stipulations or conditions herein contained and on the Tenant's part or if the
Tenant shall become bankrupt or being a corporation shall go into liquidation or
if any petition shall be filed for the winding up of the Tenant or if the Tenant
shall otherwise become insolvent or shall make or attempt to make any
composition or arrangement with creditors or shall suffer any judicial execution
to be levied on the said premises or otherwise on the Tenant's goods, then and
in any such case it shall be lawful for the Landlord at any time thereafter (a)
to determine this Agreement and to re-enter on the said premises or any part
thereof in the name of the whole but without prejudice to any rights of action
by or remedies available to the Landlord in respect of any outstanding breach or
non-observance or non-performance of any of the agreements, stipulations and
conditions herein contained and on the Tenant's part (including but not limited
to the Landlord's right to recover the arrears as debt from the Tenant and/or to
deduct all losses and damages thereby incurred from the deposit paid by the
Tenant in accordance with Section (X) hereof); and (b) to claim interest upon
the Rent, Rates, Government Rent and Service Charges in arrears (as the case may
be) at the prescribed rate from the due date until the date of payment as
liquidated damages and not as penalty. The term "prescribed rate" means 3% over
the best lending rate quoted by The Hongkong and Shanghai Banking Corporation
Limited on Hong Kong dollars deposits at the date upon which the Rent, the
Rates, Government Rent and the Service Charges (as the case may be) became due.
Interest payable to the Tenant upon arrears of Rent, the Rates, Government Rent
and the Service Charges (as the case may be) shall not itself be deemed to be
rent.
(2) The Tenant hereby irrevocably authorizes the Landlord to, if the
Landlord so desires, open any locks and doors to the said premises in the event
of any such default as aforesaid in order to effectuate the Landlord's right of
re-entry. A written notice served by the Landlord on the Tenant in manner
hereinafter mentioned to the effect that the Landlord thereby exercises the
power of re-entry herein contained shall be full and sufficient exercise of such
power without physical entry on the part of the Landlord.
(3) Acceptance of Rent by the Landlord shall not be deemed to operate as a
waiver by the Landlord of any right to proceed against the Tenant in respect of
any breach, non-observance or non-performance by the Tenant of any of the
agreements, stipulations and conditions herein contained and on the Tenant's
part. Any acceptance after the Landlord's right to proceed against
-19-
the Tenant as aforesaid shall be deemed to be on account of mesne profits unless
the Landlord shall expressly waive the said right.
(4) For the purpose of these presents any act, default, neglect or omission
of any licensee of the Tenant shall be deemed to be the act, default, neglect or
omission of the Tenant.
(5) For the purpose of distress for rent in terms of Part III of the
Landlord and Tenant (Consolidation) Ordinance (Chapter 7) and of these presents,
the Rent, the Rates, the Government Rent and the Service Charges payable shall
be and be deemed to be in arrears if not paid in advance at the times and in
manner hereinbefore provided for payment thereof.
SECTION (IX)
REGULATIONS
(1) The Landlord reserves the right from time to time and by notice in
writing to the Tenant to make and introduce, and subsequently amend, adopt or
abolish if necessary, such regulations as it may consider necessary for the
proper operation and maintenance of the Building or any part thereof.
(2) Such regulations shall be supplementary to the terms and conditions of
this Agreement and shall not in any way derogate from such terms and conditions
and shall bind the Tenant and any breach of or default in such regulations shall
be deemed to be a breach of this Agreement for which the Landlord may exercise
all or any of its rights or remedies hereunder.
(3) In the event of conflict between such regulations and such terms and
conditions of this Agreement, other terms and conditions of this Agreement shall
prevail.
(4) The Landlord shall not be liable to the Tenant or its licensee for any
loss or damage however caused to any person arising from any failure or delay in
the enforcement of the regulations or non-observance thereof.
SECTION (X)
DEPOSIT
(1) The Tenant shall on or before the signing of this Agreement pay to the
Landlord a deposit as set out in Part VI of the First Schedule hereto to secure
the due observance and performance by the Tenant of the agreements, stipulations
and conditions herein contained and on the Tenant's part (including the due
payment of the Rent, the Rates, the Government Rent and Service Charges). In the
event of any breach or non-observance or non- performance by the tenant of any
of the said agreements, stipulations or conditions which are irremediable or, if
-20-
remediable by the Tenant but the Tenant shall fail to remedy and rectify before
the expiration of the period as shall be specified in the written notice given
by the Landlord to the Tenant, then the Landlord shall have the right to, from
time to time and at its absolute discretion and without notice to the Tenant,
(i) forfeit the said deposit (including any further deposit(s) paid by the
Tenant pursuant to Clause 3 of this Section ("further deposits")) absolutely as
and for liquidated damages; and/or (ii) deduct from the said deposit and further
deposits such amount of Rent in arrears as debt and/or all monetary losses and
damages incurred by the Landlord in consequence of the said breach,
non-observance or non- performance by the Tenant. In any event the exercise of
the aforesaid right of forfeiture and deduction by the Landlord shall be without
prejudice to its right to claim damages over and above the said deposit or
further deposits or further damages sustained by the Landlord and to all other
rights and remedies available to the Landlord hereunder or at law. The
Landlord's right to forfeit the said deposit and further deposits or to make
deductions from the said deposit and further deposits once exercised shall be
final and binding on the Tenant conclusively. In the event that the Landlord
exercising its right of forfeiture or deduction during the currency of this
Agreement in accordance with this provision, the Tenant shall forthwith upon
demand by the Landlord pay to the Landlord a further deposit or deposits equal
to the amount(s) so forfeited or deducted and, if the Tenant shall fail so to
do, the Landlord shall be entitled to re-enter on the said premises and to
determine this Agreement in which event all deposits and further deposits paid
by the Tenant pursuant hereto may be forfeited to the Landlord as hereinbefore
provided. For the avoidance of doubt, there shall be no limit on the number of
times which the Landlord may exercise its right of forfeiture or deduction in
respect of the said deposit and further deposits under this provision.
(2) Subject as aforesaid and the foregoing provisions and without prejudice
to the Landlord's rights and remedies available to the Landlord at law or
hereunder, a sum equivalent to the said deposit and further deposits shall be
returned to the Tenant by the Landlord without interest within one month after
the expiration or the sooner determination of this Agreement and the delivery of
vacant possession of the said premises to the Landlord, or (without being
construed as a waiver of the Landlord's rights under this Agreement) within one
month after the settlement of the last outstanding claim which the Landlord may
have against the Tenant in respect of any breach, non-observance or
non-performance of or default in any of the agreements, stipulations or
conditions herein contained and on the part of the Tenant, whichever shall be
the later.
(3) If at any time during the term of the tenancy hereby created, the
Landlord shall sell or otherwise assign or transfer the said premises, the
Landlord may at any time transfer to its purchaser or assignee ("the New Owner")
the said deposit in (1) above and (if any) further deposits (subject to the
Landlord's prior right of forfeiture and deduction) or the balance thereof (if
any) in the event of the Landlord being entitled to exercise its right of
deduction as aforesaid. Upon such transfer, the Landlord (which in this context
shall exclude its assigns) shall be released from any liability or obligation
under this Agreement to return the said sum equivalent to the said deposit in
(1) above and (if any) further deposits or any balance thereof to the Tenant.
The Tenant shall thereafter be entitled only to claim for the return of the said
sum equivalent to the said deposit in (1) above and (if any) further deposits or
the balance thereof from the New Owner.
-21-
SECTION (XI)
INTERPRETATION AND MISCELLANEOUS
(1) No condoning, excusing or overlooking or acceptance of the Rent, the
Rates or the Service Charges by the Landlord of any default, breach or
non-observance or non-performance by the Tenant at any time of any of the
Tenant's obligations herein contained shall operate or be deemed to operate as a
waiver of the Landlord's rights hereunder or shall defeat or affect in any way
the rights and remedies of the Landlord hereunder in respect of any continuing
or subsequent default, breach or non-observance or non-performance of the
Tenant's obligations and covenants hereunder and no waiver by the Landlord shall
be inferred from or implied by anything done or permitted or suffered to be done
by the Landlord unless otherwise specifically agreed 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 in no way shall 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.
(2) Any notice required to be served hereunder shall, if to be served on
the Tenant, be sufficiently served if addressed to the Tenant and sent by
prepaid post to or left at the Tenant's registered office in Hong Kong or the
said premises and if to be served on the Landlord, be sufficiently served if
addressed to the Landlord and sent by registered post to or left at its
registered office in Hong Kong or the address given above or any other address
which the Landlord may notify in writing to the Tenant from time to time. A
notice sent by post shall be deemed to have been received at the time when in
due course of post it would be delivered at the address to which it is sent.
(3) The Tenant acknowledges that no fine, premium, key money or other
consideration of similar nature has been paid by the Tenant to the Landlord for
the grant of this tenancy hereby created.
(4) This Agreement sets out the full agreement reached between the parties
and no other representations or warranties have been made or given relating to
the Landlord or the Tenant or the Building or the said premises and if any such
representation or warranty whether oral or written has been made given or
implied the same is hereby waived and superceded by this Agreement entirely.
(5) The Tenant shall, in addition to paying the legal costs of his own
solicitors (if any), also pay to the Landlord upon the signing hereof a sum
equal to half of the Landlord's solicitors' costs plus half share of stamp duty
and (if any) registration fee and any disbursements on this Agreement. In this
matter Messrs. Xxxxx, Xxxx & Xxxx, Solicitors are acting only for the Landlord
although Messrs. Xxxxx, Xxxx & Xxxx, Solicitors may witness the execution of
this Agreement by the Tenant and collect from the Tenant the aforesaid sum on
behalf of the Landlord.
-22-
(6) The parties hereto further agree that they shall respectively be bound
by and entitled to the benefit of the Special Conditions (if any) set out in the
Third Schedule.
(7) The Landlord reserves the right (subject to any relevant provisions of
the Deed of Mutual Covenant and/or the Sub-Deed of Mutual Covenant or Management
Agreement in respect of the Building) to name the Building with any such name or
style as it in its sole discretion may determine and at any time and from time
to time to change, alter, substitute or abandon any such name without the same
constituting an actual or constructive eviction of the Tenant and without
incurring any liability to the Tenant therefor provided always the Tenant shall
be entitled to not less than one month's prior notice of the intention of the
Landlord to change name of the Building.
(8) Notwithstanding anything herein contained, the Landlord shall
have the right to remove, cancel, relocate or otherwise change the common areas
(including but not limited to entrances, passages, corridors and staircases) and
common facilities (including but not limited to lifts, escalators and toilets)
of the Building or to agree with others the same to occur from time to time and
in such manner as the Landlord may in its absolute discretion deem fit without
the same constituting an actual or constructive eviction of the Tenant and
without incurring any liability to the Tenant therefor.
(9) Notwithstanding anything herein contained or implied to the
contrary the Landlord may subject to any relevant provisions of the Deed of
Mutual Covenant, the Sub-Deed of Mutual Covenant (if any) and the Management
Agreement in respect of the Building 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.
(10) (a) Notwithstanding anything to the contrary hereinbefore
contained, if at any time during the tenancy hereby created, it is decided or
resolved that the Building or any part thereof (which intention to redevelop
shall be notified by the Landlord in writing to the Tenant) is to be redeveloped
whether wholly by demolition and rebuilding or otherwise, or partially by
renovation, re-furbishment or otherwise, then in such event the Landlord shall
be entitled to give three clear calendar months; notice in writing expiring at
the end of any calendar month during the tenancy hereby created 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 covenants or stipulations herein set
out.
(b) The Tenant hereby expressly covenants to deprive himself of
all rights (if any) to protection against eviction or ejectment provided by any
existing or future legislation from time to time in force and applicable to the
said premises or to this Agreement and the Tenant covenants to deliver up vacant
possession of the said premises to the Landlord on the expiration or sooner
termination of the tenancy hereby created notwithstanding any rule of law or
equity to the contrary.
(11) In this Agreement:
-23-
(a) (unless the context permits or requires) words importing the
singular number shall include the plural and vice versa and words importing the
masculine feminine or neuter gender shall include the others of them;
(b) the Headings and Index (if any) are intended for guidance only and
do not form a part of this Agreement nor shall any of the provisions of this
Agreement be construed or interpreted by reference thereto or in any way
affected or limited thereby;
(c) the "Government" shall (unless the context requires otherwise)
mean the Government of Hong Kong Special Administrative Region;
the "licensee" shall (unless the context requires otherwise)
include employee, servant, xxxxxxx, customer, agent and contractor of the Tenant
and any person present in, using or visiting the said premises with the consent
of the Tenant, express or implied;
the "Tenant" shall (where the context permits) mean and
include the party or parties specifically named and shall not include the
executors and administrators of any such party or where such party is a
corporate, any liquidator thereof. Where the Tenant comprises more than one
individual all covenants undertakings and agreements made by the Tenant herein
shall be deemed to be made jointly and severally by all the persons comprising
the Tenant;
(d) reference to person includes any public body and anybody of
persons, corporate or unincorporate;
(e) reference to Ordinance, orders, statutes, legislation or
enactments shall be construed as a reference to such Ordinance, orders,
statutes, legislation or enactments as may be amended or re-enacted from time to
time and for the time being in force;
(12) The Tenant hereby declares that it has inspected and is fully satisfied
with and accepts in all respects the existing state, condition, fixtures,
decoration and finishes of the said premises and agrees to take up the said
premises in "as is" basis provided that the Tenant shall be obliged to deliver
up vacant possession of the said premises and reinstate the same in its original
physical state to the Landlord according to the provisions hereinbefore
mentioned upon expiry or sooner determination of this tenancy hereby created
(fair wear and tear excepted).
-24-
THE FIRST SCHEDULE ABOVE REFERRED TO
PART I
LANDLORD : BOC GROUP LIFE ASSURANCE COMPANY LIMITED
Address : 13th-21st Floors of BOCG Insurance Tower,
Nos. 000-000 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx
Xxxx
PART II
TENANT : TITANIUM TECHNOLOGY LIMITED
Registered office : 10th Floor, Tianjin Building, No. 000
Xxxxxxxxx Xxxx Xxxx, Xxxx Xxxx
PART III
TERM: : THREE YEARS from the 1st day of July 2005
to the 30th day of June 2008 (both dates
inclusive) with an option to renew for a
further term of two years
PART IV
RENT : PERIOD RENT PER CALENDAR MONTH
------ -----------------------
the whole term HONG KONG DOLLARS TWENTY
THREE THOUSAND SIX
HUNDRED AND NINETY FIVE
ONLY (HK$23,695.00) per
month
-25-
Rent (exclusive of Rates, Government Rent, Service Charges and other outgoings
and expenses payable in respect of the said premises or the Building) shall be
payable in advance without any deduction whatsoever on the 1st day of each and
every calendar month.
SERVICE CHARGES :
MANAGEMENT FEES Management Fees and
AND AIR-CONDITIONING air-conditioning charges
CHARGES PERIOD PER CALENDAR MONTH:
------ -------------------
the whole term HONG KONG DOLLARS TWELVE
THOUSAND EIGHT HUNDRED AND
SIXTY THREE ONLY
(HK$12,863.00) per month
subject to increase from
time to time as may be
notified by the Landlord or
its management agent(s) or
the Manager of the Building
in writing.
Rates and Government Rent : for such period and in such amount to be assessed
by the Government from time to time
All Service Charges (including management fees and air-conditioning charges,
Rates and Government Rent) shall be payable in advance without deduction on the
1st day of each and every calendar month to the Landlord direct.
The first of the Rent, Rates, Government Rent and all Service Charges shall be
apportioned according to the number of days in the month included in the term
and paid on the signing of this Agreement.
The Landlord is entitled to demand payment of amounts payable hereunder by the
Tenant at the own costs of the Tenant in cash or any other methods of payment or
in any banknotes, and whether payment is made by cheque or cash or autopay or
otherwise, such payment must reach the offices of or the account designated by
the Landlord before 3:00 o'clock in the afternoon on the due date if such
payment is made on any weekday except Saturday, and before 11:00 a.m. on the due
date if such payment is made on a Saturday. If the day on which the Rent, Rates,
Government Rent or any of the Service Charges falls due under this Agreement is
a Sunday or a public holiday, the relevant payment shall be due and payable on
the preceding business day. Otherwise, the payment shall be deemed to have been
paid by the Tenant on the following
-26-
business day and the Tenant shall be deemed to have defaulted in making due
payment and shall solely bear the consequences of such default on terms
hereinbefore appearing.
PART V
USER : The nature of the Tenant's business shall be:
office for commercial use
trading under the existing style and business name
of the Tenant and for no other purpose
PART VI
DEPOSIT : HONG KONG DOLLARS ONE HUNDRED AND NINE THOUSAND
SIX HUNDRED AND SEVENTY FOUR ONLY (HK$109,674.00)
(equivalent to 3 months' rental and 3 months'
management fee and air-conditioning charge
deposits)
THE SECOND SCHEDULE ABOVE REFERRED TO
THE SAID PREMISES
ALL THAT the FOURTH FLOOR of BOCG INSURANCE TOWER, Nos. 000-000 Xxx Xxxxx Xxxx
Xxxxxxx and Nos. 00-00 Xxxxxx'x Xxxxxx, Xxxxxxx, Xxxx Xxxx erected on ALL THOSE
pieces or parcels of ground registered in the Land Registry as Inland Xxx Xx.
0000, Xxxxxx Xxx Xx. 0000, Xxxxxx Lot No. 4795, Inland Xxx Xx. 0000, Xxxxxx Xxx
Xx. 0000, Xxxxxx Lot No. 4798 and Inland Lot No. 4799.
-27-
THE THIRD SCHEDULE ABOVE REFERRED TO
SPECIAL CONDITIONS
(1) Rent free period
Notwithstanding anything to the contrary contained in this Agreement,
the Tenant shall be entitled to occupy the said premises for a period
of 45 days from the 1st day of July 2005 to the 15th day of August 2005
(both dates inclusive) hereunder free of rent provided that during the
said rent free period the Tenant shall pay all Service Charges
(including but not limited to Rates, Government Rent, management fees
and air-conditioning charges and other outgoings payable in respect of
the said premises).
(2) Option to Renew
(a) The Landlord shall, on the written request of the Tenant made
not later than 6 months before the date of expiration of the
term of this tenancy and provided that there shall at that
time be no outstanding or existing breach of any of the
agreements, stipulations or conditions herein contained and on
the part of the Tenant to be observed and performed, grant to
the Tenant a renewal of this Agreement for a further term of
two years from the expiry date at the new rent (the "New
Rent") to be determined as provided hereinbelow but otherwise
subject to the same terms and conditions as are herein
contained with the exception of the Special Conditions (1) and
(2) in this Schedule hereto. The written request of renewal of
tenancy, once given by the Tenant, shall be irrevocable. The
Tenant shall upon the expiry of the term hereof pay to the
Landlord such sum (if any) as shall make up the deposit paid
by the Tenant under Clause (1) of Section (X) hereto to the
aggregate if 3 months' revised rent and management fees and
air-conditioning charges then payable in respect of the said
premises.
(b) The New Rent payable to this tenancy shall be reviewed by
reference to the then fair market rent. The New Rent shall be
assessed and notified by the Landlord to the Tenant and shall
be agreed by the Landlord and the Tenant at least 3 months
before the New Rent shall become payable. Failure on the part
of the Tenant for whatever reason to respond to the Landlord's
notice of assessment of the Ne Rent within 14 days of the
Landlord's notice shall be deemed absolute acceptance on the
part of the Tenant of the Landlord's assessment.
(c) In default of agreement of the New Rent before expiration of
said 3 months' period, either party shall refer the
disagreement to an independent professional valuer or firm of
professional valuers to be appointed jointly by the parties
hereto in writing
-28-
or in default of such agreement, the President for the time
being of the Hong Kong Institute of Surveyors to appoint such
professional valuer who shall act as an expert and not as an
arbitrator and whose decision shall be final and binding on
the parties hereto and shall take into account the fair market
rent for prime office accommodation in the Central District of
Hong Kong obtainable at the time of such determination on the
following assumptions at that date:
(i) that the said premises are fit for immediate
occupation and use and that no work has been carried
out thereon during the term by the Tenant or its
successors in title which has diminished the rental
value of the said premises and in the case where the
said premises have been destroyed or damaged that
they have been fully restored;
(ii) that the said premises or for similar premises in the
Building in a similar development having similar
characteristics and attributes are available to let
by a willing landlord to a willing tenant without a
premium but with vacant possession and subject to the
provisions of this Agreement for a term equal to the
original term of this Agreement; and
(iii) that the covenants herein contained on the part of
the Tenant have been fully performed and observed but
disregarding:
(aa) any goodwill attributable to the Tenant's
business;
(bb) the value of any fixture and fitting or any
other improvement to the said premises made
by the Tenant;
(cc) the fact that the Tenant or its predecessors
in title have been in occupation of the said
premises; and
(dd) the fact that the said premises are large in
size or may be considered to be larger in
size than is usual for such a office
tenancy.
(d) Until such New Rent for the said premises shall have been
determined in accordance with the foregoing paragraphs (b) and
(c) above, the Tenant shall pay the New Rent assessed and
notified by the Landlord under (b) above and within 14 days of
such determination the Tenant shall pay to the Landlord such
additional sum as may be necessary to equate the deposit paid
to the Landlord under Section (X) hereof to an amount equal to
3 months' rent and 3 months' management fee and
air-conditioning charge as agreed or determined hereunder,
such deposit to be held on the same terms and conditions
(mutatis mutandis) as are contained in the said Section (X).
-29
(e) The right of the Landlord to review the rent and the
entitlement of the Landlord to the New Rent as stipulated
hereunder shall be absolute and shall not be deemed to have
lapsed under any circumstances including but not limited to
where the Landlord fails for whatever reason to notify the
Tenant of the rent review within the time frame stipulated in
paragraph (b) above. For the avoidance of doubt, if for
whatever reason the New Rent once assessed or agreed with
effect from the commencement of the two-year period of the
term to which the rent review applies, and the Tenant shall
forthwith pay the Landlord the total difference between the
New Rent payable and the actual rent paid.
(f) All costs involved in the determination of the fair market
rent shall be borne by the parties hereto in equal shares.
-30-
AS WITNESS the hands of the parties hereto the day and year first above
written.
SIGNED by Chan Fu Kan, its ) FOR AND ON BEHALF OF
) BOC GROUP LIFE ASSURANCE
Director ----------------- ) COMPANY LIMITED
)
for an on behalf of the Landlord whose ) /s/ (unknown signature)
) -------------------------------
) Authorized Signature(s)
signature(s) is/are verified by: )
/s/ Xxx Xxx May
Solicitor, Hong Kong SAR
Messrs. Xxxxx, Xxxx & Xxxx
SIGNED by Xxxx Xxx Hung ) FOR AND ON BEHALF OF
) TITANIUM TECHNOLOGY LIMITED
Director ----------------------- )
) /s/ (unknown signature)
for an on behalf of the Tenant in the ) -------------------------------
) Authorized Signature(s)
presence of: )
/s/ Xxxxx X.X. Xxxxxx
XXXXX X. X. XXXXXX
Clerk to Messrs. Xxxxx, Xxxx & Xxxx,
Solicitors & Notaries, Hong Kong SAR
-31-
RECEIVED the day and year first above )
)
written of an from the Tenant the sum of )
)
HONG KONG DOLLARS ONE )
)
HUNDRED AND NINE THOUSAND SIX )
) HK$109,674.00
HUNDRED AND SEVENTY FOUR )
)
ONLY being the deposit above expressed )
)
to be paid by the Tenant to the Landlord )
Signature(s) is/are verified by:
-32-
