EXHIBIT 10.31
Dated the 3rd day of April, 1997
FORTUNE WIND INVESTMENTS LIMITED
AND
CREATIVE MASTER LIMITED
_________________________
TENANCY AGREEMENT
of
Unit(s) B on the 8th
Floor of Xxxxx Industrial
Xxxxxxxx, Xx.00/00
Xxxxxxx Xxxx, Xxxxxxx
_________________________
WOO, XXXX, XXX & LO,
Solicitors & c.,
26th Floor, Jardine House,
0 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxx Xxxx.
Ref: 517200390/SML/mm
Doc#xxxxx
AN AGREEMENT made the 3rd day of April, One thousand nine hundred and
ninety-seven BETWEEN FORTUNE WIND INVESTMENTS LIMITED a company incorporated in
British Virgin Islands whose registered office is situate at X.0 Xxx 0000, Xxxx
Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx with a principal place of business at 45th
Floor, Sun Hung Xxx Xxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (hereinafter
called "the Landlord") of the one part and CREATIVE MASTER LIMITED whose
registered office is situate at Unit(s) B on 8th Floor, Xxxxx Industrial
Building, 00/00 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, Xxxx Xxxx --------
(hereinafter called "the Tenant") of the other part. WHEREBY IT IS HEREBY
AGREED as follows:
1. The Landlord lets and the Tenant takes ALL.THAT UNIT(S) B on the 8TH
FLOOR of XXXXX INDUSTRIAL BUILDING at Xx.00/00 Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
(hereinafter referred to as "the said Building") erected on All That piece or
parcel of ground registered in the Land Registry as Kowloon Inland Lot No.8234
(which said Unit(s) is/are shown for identification purpose only and coloured
pink on the plan annexed hereto and is/are hereinafter referred to as "the said
premises") Together with the use in common with the co-owners of the said
building their tenants work-people and persons authorized by them of the
entrance lifts (whenever the same shall be operating) passages and staircases
leading to the said premises for the term of TWO YEARS from the 16th day of May
1997 to the 15th day of May 1999
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both days inclusive determinable as hereinafter mentioned YIELDING AND PAYING
therefor during the said term monthly and every calendar month the rent as set
out in Part I (a) of the Schedule hereto exclusive of rates and management fee
payable in Hong Kong Currency in advance on the 1st day of each and every
calendar month without deduction whatsoever.
2. THE TENANT TO THE INTENT THAT THE OBLIGATION MAY CONTINUE THROUGHOUT
THE TERM OF TENANCY HEREBY CREATED AGREES WITH THE LANDLORD as follows:
(a) (i) To pay the said rent at the times and in manner aforesaid.
(ii) To pay as from the 16th day of May 1997 all existing and future
rates taxes assessments and outgoings payable by law in respect
of the said premises either by the owner or occupier thereof
except only the crown rent property tax and payment of a capital
nature.
(b) (i) To pay as from the 16th day of May 1997 and discharge punctually
during the said term all charges for electricity, water, gas,
telephone rental and other outgoings now or at any time
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hereafter consumed by the Tenant and to pay all necessary
deposits for the same.
(ii) To pay as from the 16th day of May 1997 and discharge punctually
during the said term the monthly contribution as set out in Part
I (b) of the Schedule towards the costs, charges and expenses for
the maintenance and management of the said Building chargeable in
respect of the said premises as provided under the Deed of Mutual
Covenants relating to the Building of which the said-premises
form part (if any) or as the management agent of the said
Building shall reasonably require.
(c) (i) To fit out the said premises in accordance with such plans and
specifications as shall have been submitted by the Tenant to and
approved in writing by the Landlord and thereafter to constantly
maintain and keep the whole of the interior of the said premises
and every part thereof in proper and tenantable repair and
condition including, but not limited to, all doors, windows,
skylights, locks, hinges, bolts, ceilings, floors, water pipes,
water closets, electrical installations and
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wirings and all the Landlord's fixtures and fittings therein
(fair wear and tear excepted).
(ii) To be wholly responsible for any loss damage or injury caused to
any person whomsoever directly or indirectly through the
defective or damaged condition of any part of the interior of the
said premises and to make good the same by payment or otherwise
and to indemnify the Landlord against all actions proceedings
claims and demands made upon the Landlord in respect of any such
loss damage or injury and all costs and expenses incidental
thereto.
(d) In the event of any of the drains becoming choked or stopped up owing
to careless use by the Tenant or his work-people to pay the cost
incurred by the Landlord in cleansing and clearing the said drains
from obstruction.
(e) To permit the Landlord to use and maintain existing pipes and conduits
in and through the said premises. The Landlord or its agents shall
have the right to enter the said premises at all reasonable times to
examine the same.
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(f) To comply with such rules and regulations as the Landlord or the
management agent may from time to time impose in connection with the
industrial refuse chutes in the said Building (if any).
(g) Not to do or permit or suffer to be done anything whereby the policy
or policies of insurance on the said premises or other parts of the
said Building against damage by fire explosion storm or tempest may
become void or voidable or whereby the rate of premium thereon may be
increased and the Tenant shall indemnify the Landlord against such
increased premium as shall have been brought about or caused by his
act or default.
(h) Not to make or permit to make any structural alterations in or
additions to the said premises or to the external walls of the said
premises or to the electrical wirings installations or other
Landlord's fixtures without having first obtained the written license
and consent of the Landlord therefor or cut maim or injure or suffer
to be cut maimed or injured any doors windows walls structural members
or other fabric thereof. If any such consent shall be granted by the
Landlord it shall in any.event be subject to the condition that the
Tenant shall not cause any damage to the said premises or any part
thereof in addition to
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such other conditions as the Landlord shall think fit to impose and
subject to the approval of the Public Works Department or other
Government authority (if necessary).
(i) Not to transfer assign underlet or otherwise part with the possession
of the said premises or any part thereof either by way of subletting
lending sharing or other means whereby any person or persons not party
to this Agreement obtains the use or possession of the said premises
or any part thereof irrespective of.whether any rental or other
consideration is given for such use or possession and in the event of
any such transfer subletting sharing assignment or parting with the
possession of the said premises (whether for monetary consideration or
not) this Agreement shall at the discretion of the Landlord determine
and the Tenant shall forthwith surrender the said premises to the
Landlord.
(j) Not to do or permit to be done in or.upon the said premises or any
part thereof anything which may be or become a nuisance annoyance
damage or disturbance to the Landlord or the tenants or occupiers of
the other part or parts of the said Building or of other property
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in the neighborhood or in anywise against the law or regulations of
Hong Kong.
(k) Not to put or place any dust-bins, garbage-cans, furniture, chattels,
packing cases, boxes, goods, chattels or any other things in the
staircases, landings or other common passages in the said Building.
(l) To permit the Landlord and all persons authorized by him at all
reasonable times by prior appointment (except in case of emergency) to
enter into the said premises to view the condition thereof and to give
or leave notice in writing upon the said premises for the Tenant of
all defects and wants of repair there found for which the Tenant is
responsible hereunder and within one month after every such notice
well and sufficiently to repair and make good such defects and wants
of repair whereof notice shall have been so given or left.
(m) If any defects or want of repair shall be found and if the Landlord
shall give or leave a notice in writing at the said premises or at the
business address of the Tenant requiring him to amend the same and if
the Tenant shall not within 14 days after the service of such notice
proceed diligently with the execution of
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such repairs then to permit the Landlord or his authorized person to
enter upon the said premises and execute such repairs and the cost
thereof (the amount thereof in case of difference to be determined by
the Landlord's agent) shall be a debt due from the Tenant to the
Landlord and be forthwith recoverable by action.
(n) To permit the Landlord and his agent with all necessary workmen and
appliances at all reasonable times upon prior notice to the Tenant to
enter upon the said premises to execute repairs or alterations on any
adjoining premises now or hereafter belonging to the Landlord who
shall make good all damages occasioned to the Tenant by such entry.
(o) Not to do or cause or permit or suffer to be done any act deed matter
or thing whatsoever in contravention of the negative or restrictive
covenants terms or conditions of the Conditions of Sale or Crown Lease
under which the said premises are held from the Crown or of the
relevant Deed of Mutual Covenant of the said Building.
(p) Not to permit or suffer any sale by auction to take place on the said
premises.
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(q) Not to keep or store or cause or permit or suffer to be kept or stored
any arms, ammunition, unlawful goods, gun powder, saltpetre, kerosene
or other explosive or combustible substance on or in any part of the
said premises.
(r) Not to use the said premises or any part thereof for any illegal or
immoral purpose.
(s) Not to use the said premises for any purpose other than that of a
factory carrying on light industrial undertaking only and not to carry
on any industrial undertaking thereon which is now or may hereafter be
declared to be offensive under the Public Health and Urban Services
Ordinances or any enactment amending the same or substituted thereof
and to conduct therein only such factory business which is duly
authorized licensed or approved by the competent government
authorities and to comply in all respects with the conditions terms
and regulations relating to such factory business or imposed on the
grant of license in respect thereof.
(t) Not to exhibit or display within or on the exterior of the said
premises any writing sign or other device whether illuminated or not
which may be visible from outside the said premises except the display
of name-
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plates or signboards of the Tenant the size and position of which
shall be subject to the Landlord's approval. The Landlord or his
authorized agents shall have the right to remove at the cost and
expense of the Tenant any signboard, sign, decoration, or device which
shall be affixed or put up or displayed without the prior approval of
the Landlord or his agents.
(u) Not to permit any person to remain in the said premises overnight,
except for the purpose of posting watchmen to look after the contents
of the said premises which shall not be used as sleeping quarters or
as domestic premises within the meaning of any Landlord and Tenant
Ordinance for the time being in force.
(v) Not to put or install or permit to be put or installed any machinery
or thing whatsoever the load of which exceeds the loading capacity of
the said premises.
(w) At the reasonable request of the Landlord, the Tenant shall mount and
equip his machinery particularly machinery with horizontal
reciprocating action and every part thereof with anti-vibration
absorbers and anti-dumping absorbers for eliminating and reducing
vibrations and dumping produced by the operation and
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running of any of the machinery installed at the said premises.
(x) At the expiration or sooner determination of this Agreement to deliver
up to the Landlord the said premises including the Landlord's fixtures
and fittings therein in good repair and condition as aforesaid (fair
wear and tear excepted) together with any additional erections
alterations or improvements which the Tenant may with the consent of
the Landlord as aforesaid have made upon or in the said premises and
which the Landlord in his absolute discretion may be willing to retain
without payment of any compensation for such additional erections
alterations or improvements. The Tenant shall be entitled to remove
its own trade fixtures and fittings subject to making good all damages
including damage to the Landlord's decoration within the said premises
and within the said building caused by such removal to the
satisfaction of the Landlord. The Landlord shall have the right to
require the Tenant to reinstate to its original state any part of the
said premises in respect of which the Tenant may have carried out
alterations with the consent of the Landlord.
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(y) Not to cause, allow, permit or suffer the load of electricity supply
to, in or on the said premises exceeding 60 AMP TPN.
3. THE LANDLORD AGREES WITH THE TENANT as follows:
(a) That the Tenant paying the rent hereby reserved and all charges
payable hereunder and performing and observing the agreements by the
Tenant hereinbefore contained may peaceably hold and enjoy the said
premises during the said term without any interruption by the Landlord
or any person lawfully claiming through or under or in trust for him.
(b) To pay the Crown Rent and Property Tax which are now or may hereafter
during the said term be imposed by Government upon the said premises.
(c) To maintain and keep or cause to be maintained or kept the main
structure of the said premises and every part of such main structure
the main drains and pipes in proper and tenantable repair and
condition Provided that the Landlord's liability hereunder shall not
be deemed to have arisen unless and until written notice of any want
of repair of the same shall have been previously given by the Tenant
to the Landlord and the
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Landlord shall have failed to take step to repair the same after the
lapse of a reasonable time.
4. PROVIDED ALWAYS AND IT IS MUTUALLY AGREED as follows:
(a) That if and whenever any part of the rent hereby reserved or any other
payments payable by the Tenant hereunder shall be in arrear for
fifteen days (whether the same shall have been formally demanded or
not) or if and whenever there shall be a breach of any of the
agreements by the Tenant hereinbefore contained or if the Tenant
(being an individual or sole proprietor or partnership) shall commit
an act of bankruptcy or shall have its Business Registration cancelled
or (being a corporation) shall go into liquidation (either voluntary
or otherwise) or shall have any order made or resolution passed for
winding up other than a resolution for the purpose of amalgamation or
reconstruction or if the Tenant shall enter into any composition or
arrangements with his creditors or shall suffer execution to be levied
upon any of his goods or effects the Landlord shall upon the happening
of any such event be entitled to re-enter upon the said premises or
any part thereof in the name of the whole and thereupon this Agreement
shall absolutely determine but without prejudice to any rights which
may have
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accrued to the Landlord by reason of any antecedent breach of any of
the obligations on the part of the Tenant hereinbefore contained AND
the deposit paid hereunder shall be forfeited to the Landlord as and
for liquidated damages and not as penalty but without prejudice to the
Landlord's right to claim any further damages which the Landlord shall
have sustained or may sustain AND a written notice served by the
Landlord on the Tenant or left at the said premises to the effect that
the Landlord thereby exercises the power of re-entry shall be a full
and sufficient exercise of such power without actual entry on the part
of the Landlord. Notwithstanding the foregoing, the Landlord may in
any such event at its option elect not to terminate this Agreement but
to deduct from the deposit the amount of any monetary loss incurred by
the Landlord in consequence of the breach, non-observance or non-
performance by the Tenant in which event the Tenant shall, as a
condition precedent to the continuation of the tenancy, deposit with
the Landlord the amount so deducted and, if the Tenant shall fail so
to do, the Landlord shall forthwith be entitled to re-enter on the
said premises and to determine this Agreement in which event the
deposit may be forfeited to the Landlord as hereinbefore provided.
Notwithstanding anything herein contained, the Landlord shall have the
right to charge
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by way of additional rent interest at the rate of 1.5% per month in
respect of any payments to be made by the Tenant to the Landlord under
this Agreement which shall be more than Fifteen days in arrears
(whether legally or formally demanded or not) and such interest shall
be payable by the Tenant to the Landlord on demand calculated from the
date upon which such payments in arrears fell due (and not fifteen
days thereafter) until the date of payment. The Landlord shall
further be entitled to recover from the Tenant as a debt all expenses
including fees paid to debt collectors appointed by the Landlord and
all solicitors' and/or counsel's fees and court fees incurred by the
Landlord for the purpose of recovering the rental in arrears and/or
other moneys unpaid or any part thereof from the Tenant on a full
indemnity basis together with such sum or sums as shall be determined
by the Landlord as being collection charges for the additional work
incurred by the Landlord and its staff and/or the manager of the said
building (as the case may be) in recovering the said areas and/or
unpaid sums or any part thereof.
(b) In the event of the said premises or any part thereof at any time
during the said term being damaged or destroyed by fire or by any
other cause (not attributable to the act or default of the Tenant) so
as
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to be unfit for occupation and use or become subject to a closure
order or become totally inaccessible to the Tenant then the rent
hereby reserved or a fair proportion thereof according to the nature
and extent of the damage sustained shall be suspended until the said
premises shall again be rendered fit for occupation and use or until
the said premises cease to be subject to a closure order or cease to
be totally inaccessible and any dispute concerning this clause shall
be determined by arbitration in accordance with the Arbitration
Ordinance Cap.341 of the Laws of Hong Kong or any statutory enactment
in that behalf for the time being in force Provided Always that the
Landlord shall not be required to reinstate the said premises if by
reason of their condition or any local regulations or other
circumstances beyond the control of the Landlord it is in the opinion
of the Landlord not economical or practicable or reasonable so to do.
(c) Acceptance of rent by the Landlord shall not be deemed to operate as a
waiver by the Landlord of any right to proceed against the Tenant in
respect of any breach non-observance or non-performance by the Tenant
of any of the agreements stipulations and conditions herein contained
and on the Tenant's part to be observed and performed.
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(d) For the purpose of these presents any act default or omission of the
agents servants visitors customers and workmen of the Tenant shall be
deemed to be the act default or omission of the Tenant.
(e) To the extent that the Tenant can lawfully do so the Tenant hereby
expressly declares that at the expiration or sooner determination of
this Agreement the Tenant will not invoke or seek to avail himself of
any protection which may or shall hereafter be afforded by any
ordinance or regulation of Hong Kong protecting tenants or lessees
from eviction but will promptly and punctually quit and deliver up
possession of the said premises at the expiration of this Agreement or
sooner determination as aforesaid.
(f) The Tenant shall n the signing of this Agreement pay to the Landlord
the sums set out in Part II of the Schedule hereto by way of deposit
for the due performance and observance of the agreements on the part
of the Tenant herein contained. At the expiration or sooner
determination of this Agreement subject to prior forfeiture in
accordance with Clause 4(a) hereof if the Tenant shall have paid all
rent due hereunder and if there shall be no breach of any of the
agreements on the Tenant's part to be observed and
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performed the Landlord will repay to the Tenant the said deposit paid
by the Tenant to the Landlord as a deposit on the signing of this
Agreement but without any interest thereon within 30 days after
delivery of vacant possession of the said premises to the Landlord and
after full settlement of all outstanding payments in respect of the
said premises payable by the Tenant.
(g) The Tenant hereby expressly declares that he has paid no premium
construction fee, key money or other sum of money of a similar nature
to the Landlord or other person or persons authorized by him for the
possession of the said premises or for the granting of this Agreement.
(h) The Landlord shall not be under any liability to the Tenant or to any
other person whomsoever in respect of any loss or damage to person or
property sustained by the Tenant or any such other person caused by or
through or in any way owing to any typhoon overflow of water or escape
of fumes smoke fire or any other substance or thing originating from
anywhere within the said Building. The Tenant shall fully and
effectually indemnify the Landlord from and against all claims and
demands made against the Landlord by any person in respect of any loss
damage or injury caused by or
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through or in any way owing to the overflow of water or the escape of
fumes smoke fire or any other substance or thing originating from the
said premises or to the negligence or default of the Tenant his
servants agents or licensees or to the defective or damaged condition
of the interior of the said premises or any fixtures or fittings for
the repair of which the Tenant is responsible hereunder and against
all costs and expenses incurred by the Landlord in respect of any such
claim or demand.
(i) The Landlord or his agents accepts no responsibility for any accident
or damage which may be caused to the Tenant or any occupier of the
said premises or their or his or her servants or customers arising
from any defect in or operation of any lift in the said Building.
(j) For the purpose of Part III of the Landlord and Tenant (Consolidation)
Ordinance Chapter 7 and of these presents the rent payable in respect
of the said premises shall be and be deemed to be in arrear if not
paid in advance at the times and in manner hereinbefore provided for
payment thereof. All costs of and incidental to the demand for rent
distraint or any legal action for the recovery of rent and any other
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sums due hereunder shall be recoverable from the Tenant as a debt.
(k) During the two months immediately preceding the expiration of the term
hereby created the Landlord shall be at liberty to affix and maintain
without interference upon any external part of the said premises a
notice for re-letting the said premises and the Tenant shall permit
persons authorized by the Landlord or its agents at reasonable time of
the day to view the said premises or any part thereof.
(l) The expression "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 corporation any liquidator thereof.
(m) The Landlord shall be entitled to treat non-payment of rates (if any)
and management fee and of any amount payable by the Tenant hereunder
or any part thereof in all respects as non-payment of rent under this
Agreement.
(n) Any notice under this Agreement shall be in writing and any notice to
the Tenant shall be sufficiently served
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if left addressed to him at the said premises or any part thereof or
sent to him by registered post or left at his last known business
address in Hong Kong or sent to its registered office as recorded in
the Company Registry by registered post and any notice to the Landlord
shall be sufficiently served if delivered to him personally or sent to
him by registered post or left at his last known address in Hong Kong
or sent to its registered office as recorded in the Company Registry
by registered post.
(o) All costs of and incidental to the preparation completion and stamping
of this Agreement shall be borne and paid by the Landlord and the
Tenant in equal shares.
(p) The design load of electricity supply to in or on the said premises
shall not exceed 60 AMP TPN. The Tenant shall fully indemnify the
Landlord against all loss and damages whatsoever suffered by the
Landlord caused by or arising from or in any way owing to the
overloading of electricity supply including but not limited to all
claims, demands, actions and legal proceedings whatsoever upon the
Landlord in respect of any loss, damage or injury to any person
whomsoever caused by or
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arising from or in any way owing to the overloading of electricity
supply.
5. The Landlord and the Tenant do hereby jointly and severally declare
and confirm that the rent herein reserved is the best rent which can be
reasonably obtained for the grant of this tenancy without a premium.
6. This Agreement is subject to the compliance by the Tenant of all
terms and conditions contained in the existing Tenancy Agreement in respect of
the said Premises. In the event the Tenant shall have committed any breach of
the terms and conditions of the existing Tenancy Agreement before the
commencement of this term and fails to rectify such breach after receiving from
the Landlord 7 days' written notice or upon the happening of any events which
would have entitled the Landlord to forfeit the existing tenancy, then the
Landlord shall have the right to forfeit this tenancy and all the deposit paid
hereunder without prejudice to the Landlord's right to claim any further damage
which the Landlord shall have sustained or may sustain.
It is hereby declared that (if the context permits or requires) the
singular number shall include the plural and the masculine gender shall include
the feminie and te neuter.
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AS WITNESS the hands of the parties hereto the day and year first above
written.
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THE SCHEDULE ABOVE REFERRED TO
------------------------------
Part I
------
(a) The monthly rental shall be HONG KONG DOLLARS TWENTY TWO THOUSAND
FOUR HUNDRED AND FIFTY EIGHT ONLY (HK$22,458.00).
(b) The monthly management fee shall be HONG KONG DOLLARS FIVE THOUSAND
SEVEN HUNDRED AND FOURTEEN ONLY (HK$5,714.00) subject to revision.
Part II
-------
(a) The rental deposit shall be HONG KONG DOLLARS SIXTY SEVEN THOUSAND
THREE HUNDRED AND SEVENTY FOUR ONLY (HK$67,374.00).
(b) The management fee deposit shall be HONG KONG DOLLARS SEVENTEEN
THOUSAND ONE HUNDRED AND FORTY TWO ONLY (HK$17,142.00).
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SIGNED by Xxxxx Xxxx, its )
director for and on behalf )
of Hong Yip Service Company ) For and on behalf of
Limited as the lawful ) HONG YIP SERVICE CO., LTD.
attorney of the Landlord ) /s/ (illegible)
whose signature is verified )
by: )
)
/s/ Xxxxx X.X. Xxxxx
Xxxxx X.X. Xxxxx
Solicitor
Hong Kong
SIGNED by Xxxx Xx Xxxx Xxxx, )
director for and on behalf )
of the Tenant in the ) For and on behalf of
presence of: ) CREATIVE MASTER LIMITED
) /s/ (illegible)
)
/s/ (illegible)
MO XXX XXXXX
25
ACKNOWLEDGE RECEIPT of and )
from the Tenant the sum of )
HONG KONG DOLLARS SIXTY )
SEVEN THOUSAND THREE HUNDRED ) HK$67,374.00
AND SEVENTY FOUR ONLY being )
the rental deposit above )
mentioned. )
)
V E R I F I C A T I O N of the signatures
/s/ (illegble) For and on behalf of
Xxxxx Xxx Mun, Xxxxx XXXX XXX SERVICE CO., LTD.
Solicitor /s/ (illegible)
Hong Kong
ACKNOWLEDGE RECEIPT of and )
from the Tenant the sum of )
HONG KONG DOLLARS SEVENTEEN ) HK$17,142.00
THOUSAND ONE HUNDRED AND )
FORTY TWO ONLY being the )
management fee deposit above )
mentioned )
)
V E R I F I C A T I O N of the signatures by:
/s/ (illegible) For and on behalf of
Xxxxx Xxx Mun, Xxxxx XXXX XXX SERVICE CO., LTD.
Solicitor /s/ (illegible)
Hong Kong
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