HONG KONG FINANCE PROPERTY
COMPANY LIMITED
and
MOMENTUM ASSOCIATES LIMITED
--------------------------------
T E N A N C Y A G R E E M E N T
In respect of Unit A on 12th Floor,
First Xxxxxxx Xxxx Xxxxxx,
00 Xxxxxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxx.
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DATED the 1st day of December 1998
THIS TENANCY AGREEMENT made this 1st day of December, 1998
BETWEEN the parties more particularly described and set out in the First
Schedule hereto.
WHEREBY IT IS AGREED as follows:
SECTION I
AGREEMENT TO LET
(a) The Landlord shall let and the Tenant shall take ALL THAT the premises more
particularly described and set out in the Second Schedule hereto
(hereinafter referred to as "the Premises") Together with the Landlord's
furniture, fixtures, fittings and household appliances, if any, set forth
in the Fourth Schedule hereto (hereinafter collectively referred to "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 and passages in the building of which the Premises form part
(hereinafter referred to as "the Building") in so far as the same is
necessary for the proper use and enjoyment of the Premises And Together
Also with the right in common with others having the like right but subject
as aforesaid to use the lift service (if any) whenever the same shall be
operating and the recreational facilities (if any, and whenever the use
thereof shall be permitted) for the term and at the rent more particularly
described and set out in the Third Schedule hereto.
(b) The Tenant shall be entitled to a rent-free period from the
____________________________________(both days inclusive) Provided Always
that the Tenant shall during such rent-free period pay and discharge all
rates, management fees, and all outgoings payable by the Tenant under this
Agreement and perform all its other obligations hereunder save and except
the obligation to pay rent.
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SECTION 11
COVENANTS BY TENANT
The Tenant to the intent that the obligations hereunder shall continue
throughout the term of the tenancy hereby created ("the Term") agrees with the
Landlord as follows:
(1) TO PAY RENT
To pay the rent in manner as set out in Part IV of the Third Schedule
hereto.
(2) TO PAY RATES
To pay and discharge all rates, taxes, assessments duties, charges
impositions and outgoings of a recurring nature now or hereafter to be
assessed, imposed or charged by the Government of the Hong Kong Special
Administrative Region or other lawful authority upon the Premises or upon
the owner or occupier thereof (Government rent and Property Tax only
excepted).
(3) TO PAY MANAGEMENT FEES
To pay and discharge all service and management charges and
air-conditioning charges, the current amount of which is set out in the
Third Schedule payable by the owner or occupier of the Premises pursuant to
or by virtue of the Deed of Mutual Covenant and Management Agreement
relating to the Building (if any) and subject to review in accordance with
the service charge budget for the Building.
(4) TO PAY UTILITY CHARGES AND DEPOSITS
To pay and discharge all charges for gas water electricity and telephone
consumed on or in the Premises as may be shown by or from the Tenant's own
metered supplies or by accounts rendered to the Tenant.
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(5) TO PAY COSTS OF CLEARING DRAINS ETC
To pay to the Landlord on demand all costs incurred by the Landlord in
cleansing or clearing any of the drains, pipes or sanitary or plumbing
apparatus of the Premises choked or stopped up owing to the careless or
improper use or neglect by the Tenant or any employee, agent or licensee of
the Tenant.
(6) TO FIT OUT
To fit out the Premises at the Tenant's expense in compliance with all
government regulations and relevant enactments and in accordance with such
plans and specifications as shall have been first submitted to and approved
in writing by the Landlord and/or its authorized agents in a good and
proper xxxxxxx like fashion and with good materials and so to maintain the
same throughout the Term in good repair and condition to the satisfaction
of the Landlord.
(7) TO REPAIR INTERIOR
To keep all the non-structural interior of the Premises including, without
limitation, the flooring and interior plaster or other finishes or
rendering to walls, floors, windows and ceilings and the Landlord's
fixtures and fittings therein including all doors, electrical installations
and wiring and internal decoration in good, clean tenantable and proper
repair and condition and properly preserved and painted as shown in the
pictures annexed hereto (fair wear and tear, structural and inherent
defects or defects arising from concealed wires, ducts or pipes excepted)
and so to 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 in like condition. The Tenant particularly agrees :
(i) to reimburse to the Landlord the cost of replacing all broken and
damaged window glass whether the same be broken or damaged by the
negligence of the Tenant or any employee, agent or licensee of the
Tenant;
(ii) to repair or replace, if so required by the appropriate Supply
Company, Statutory Undertaker or Authority as the
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case may be under the terms of any Electricity Supply Ordinance for
the time being in force or any Orders in Council or regulations made
thereunder, all the electrical wiring installations and fittings
within the Premises and the wiring from the Tenant's meter or meters
to and within the same;
(iii)to be wholly responsible for any damage or injury caused to any person
whomsoever or property whatsoever directly or indirectly through the
defective or damaged condition of any part of the interior of the
Premises and to make good the same by payment or otherwise and to
indemnify the Landlord against all costs claims demands actions
liabilities and legal proceedings whatsoever made upon the Landlord by
any person in respect thereof;
(iv) insofar as the same may not be part of the interior of the Premises to
keep in substantial and proper repair and condition all drains, soil
and other pipes, cables, wires, ducts mains and apparatus associated
therewith and any equipment and fittings ancillary thereto which
belong to or form part of or solely serve the Premises and to
indemnify the Landlord against all costs, claims, demands, actions,
liabilities, and legal proceedings whatsoever made upon the Landlord
by any person in respect of any breach of this covenant.
(8) TO COMPLY WITH ORDINANCES
To obey and comply with and to indemnify the Landlord against the breach of
all ordinances, regulations, bylaws, rules and requirements of any
Governmental or other competent authority relating to the Tenant's use and
occupation of the Premises or any other act, deed, matter or thing done,
permitted, suffered or omitted therein or thereon by the Tenant or any
employee, agent or licensee of the Tenant and to notify the landlord
forthwith in writing of any notice received from any statutory or public
authority concerning or in respect of the Premises or any services supplied
thereto.
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(9) TO COMPLY WITH DEED OF MUTUAL COVENANT
To obey and comply with and perform all the covenants terms and provisions
in the Deed of Mutual Covenant (if any) relating to the Building so far as
they relate to the Premises and to obey observe and comply with all House
Rules and any other rules and regulations (if any) which may from time to
time be made or adopted in relation to the management or servicing of the
Building and to indemnify the Landlord against any breach, non-observance
or non-performance thereof.
(10) TO PROTECT FROM TYPHOONS
To take all reasonable precautions to protect the interior of the Premises
against damage by storm or typhoon.
(11) TO INFORM LANDLORD OF DAMAGE
To give notice to the Landlord or its agent of any damage that may be
suffered to the Premises or to persons thereupon and of any accident to or
defects in the water pipes, gas pipes, electrical wirings, fittings,
fixtures or other facilities of and/or in or serving the Premises.
(12) TO PERMIT ENTRY BY LANDLORD.
To permit the Landlord and its agents authorized by it with written
authorization At all reasonable times by prior appointment with the Tenant
(except in the case of emergency) to enter and view the state of the
Premises, to take an inventory of the fixtures and fittings therein, to
carry out any work or repairs which are required to be done.
(13) TO REPAIR ELECTRICAL INSTALLATIONS
To appoint a duly registered contractor or person to repair or replace any
electrical installation or wiring in the Premises if the same becomes
dangerous or if so reasonably required by the Landlord. The Tenant shall
permit the Landlord or its authorized agent(s) or contractor(s) to test the
Tenant's wiring in the Premises at any time upon request being made upon
prior notice in writing (except in case of emergency) Provided that the
Landlord shall cause as little inconvenience and interference to the Tenant
as reasonably possible.
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(14) TO REPAIR ON NOTICE
On receipt of any notice from the Landlord or its authorized
representative(s) specifying any works or repairs which are required to be
done and which are the responsibility of the Tenant hereunder to put in
hand and execute the same with all possible despatch and without any delay
and if the Tenant shall fail to execute and complete such works or repair's
within 15 days after the receipt of such notice, then the Tenant shall
permit the Landlord together with workmen and all necessary equipment to
enter into the Premises for the purpose of carrying out or properly
completing such works or repairs; the costs thereon to be repaid by the
Tenant to the Landlord promptly on demand and be recoverable by the
Landlord from the Tenant as a debt.
(15) TO USE PREMISES FOR COMMERCIAL PURPOSES ONLY
To use the Premises for commercial purposes only and for no other purpose
whatsoever, but no warranty as to fitness of the Premises for the specific
use as aforesaid is given or deemed to be given by the Landlord.
(16) TO YIELD UP PREMISES AT EXPIRATION OF TENANCY
Quietly to yield up the Premises together with the Landlord's fixtures and
fittings and additions therein and thereto at the expiration or sooner
determination of this Agreement in good clean substantial and proper repair
and condition as shown in the pictures annexed hereto (fair wear and tear ,
structural and inherent defects or defects arising from concealed wires,
ducts or pipes excepted as aforesaid) and to deliver all the keys of the
Premises to the Landlord or its agent and remove at the Tenant's cost all
of the Tenant's signs, notices, fixtures, fittings and effects upon or in
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the Premises and to make good to the Landlord's satisfaction and at the
sole expense of the Tenant all damages caused by the removal of the same
and if the Tenant fails to do so, the Tenant shall on demand pay to the
Landlord the cost incurred in carrying out such removal or reinstatement or
making good. The Tenant hereby irrevocably appoints the Landlord to be its
agent to store or dispose of any effects left by the Tenant on the Premises
for more than seven (7) days after the expiration or sooner determination
of the term on any terms that the Landlord thinks fit and without the
Landlord being liable to the Tenant.
(17) NOT TO CUT INJURE MAIM WALLS ETC.
Not to cut, maim or injure, or permit or suffer to be cut, maimed or
injured, any doors, windows, walls, beams structural members or any part of
the fabric of the Premises nor any of the plumbing or sanitary apparatus or
installations included therein without the prior consent of the Landlord.
The Landlord hereby permit the Tenant to put up company sign(s) at the
positions as shown in the pictures annexed hereto.
(18) NOT TO KEEP ARMS OR COMBUSTIBLE OR HAZARDOUS GOODS ON PREMISES Not to keep
or store or permit or suffer to be kept or stored on or in the Premises any
arms, ammunition, gunpowder, saltpetre, kerosene or other explosive or
combustible or hazardous goods.
(19) NOT TO PERMIT ODOURS TO BE PERMEATED
Not to cause or permit any offensive odours or excessive smoke to be
produced upon, permeate through or emanate from the Premises.
(20) NOT TO PERMIT THE PREMISES TO BE INFESTED
Not to permit or suffer the Premises or any part thereof to be infested by
termites, rats, mice, cockroaches, or any other pests vermins and to take
at the sole costs and expense of the Tenant all such steps including the
employment of pest extermination contractors to keep the Premises free from
termites, rats, mice, cockroaches or any other pests or vermins.
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(21) NOT TO MAKE ALTERATIONS OR ADDITIONS
Except with the prior written consent of the Landlord, and subject to
payment on demand of all costs, charges and expenses (including legal costs
and fees payable to architects engineers and surveyors) incurred by the
Landlord in connection with the application for consent of any works
herein, not: to erect install or alter any fixtures partitioning or other
erection or installation in the Premises or any part thereof Provided
Always if consent shall be given the said alteration installation or
additions shall remain the property of the Landlord and the Tenant shall on
the expiration or sooner determination of the Term hereby granted deliver
the same to the Landlord in substantial repair and condition without any
claims or compensation whatsoever PROVIDED further that such alteration
installation or additions of the Tenant shall if so required by the
Landlord be removed or reinstated to its original state of layout as at the
date of first occupation of the Premises by the Tenant at the expense of
the Tenant at the expiration or sooner determination of this Agreement and
in such event the Tenant shall make good all damages caused by such
removal.
(22) NOT TO ASSIGN OR UNDERLET
Not to assign, underlet, license, part with the Possession of or transfer
the Premises or any interest therein, nor permit or suffer any arrangement
or transaction whereby any person other than the Tenant and it associated
company, Amber Securities Corporation, their employees and servants (if
any) obtains the use, possession, occupation or enjoyment of the Premises
without the previous written consent of the Landlord (which consent may be
withheld in the Landlord's absolute discretion) and irrespective of whether
any rental or other consideration is given for such use or possession and
in the event of any purported transfer, assignment, underletting,
licensing, sharing or parting with the possession of the Premises (whether
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for monetary consideration or not) the Landlord shall be entitled to
terminate this Agreement and the Tenant shall forthwith thereupon surrender
vacant possession of the Premises to the Landlord without prejudice however
to the rights of either party in respect of any antecedent breach of any of
the covenants, terms and conditions contained herein. The tenancy shall be
personal to the Tenant named in this Agreement and for the user specified
herein and, without in any way limiting the generality of the foregoing,
the following acts and events shall be deemed to be breaches of this Clause
(22):
(a) In the case of a Tenant which is a partnership, the death or
retirement of any person who is a partner at the date of signing of
this Agreement or the taking in of one or more partners whether on the
death or retirement of an existing partner or otherwise.
(b) In the case of a Tenant who is an individual (including a sole
surviving partner of a partnership tenant) , the death, insanity or
other disability of that individual, to the intent that no right to
use, possess, occupy or enjoy the Premises or any part thereof shall.
vest in the executors, administrators, personal representative, next
of kin, trustee or committee of any such individual.
(c) In the case of a Tenant which is a corporation, any take-over,
reconstruction, amalgamation, merger-, voluntary liquidation or change
in the person or persons who owns or own a majority of its voting
shares.
(d) The giving by the Tenant of a Power of Attorney or similar authority
whereby the donee of the Power obtains the right to use or possess
occupy or enjoy the Premises or does in fact use possess occupy or
enjoy the same.
(e) The change of the Tenant's business name.
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(23) NOT TO CAUSE EXCESSIVE NOISE
Not to produce or suffer or permit to be produced at any time in the
Premises any music or noise (including sound produced by broadcasting from
television radio and any apparatus or instrument capable of producing or
reproducing music and sound) or to permit or do any act or thing otherwise
to give cause for reasonable complaint on the part of the occupants or
tenants of other portions of the Building or of neighbouring premises or
buildings.
(24) NOT TO BREACH GOVERNMENT LEASE OR CAUSE INSURANCE TO BE AVOIDED OR
PREMIUM INCREASED
Not to do or permit or suffer to be done any act, deed, matter or thing
whatsoever which amounts to a breach of any of the covenants terms and
conditions under which the land on which the Building is erected is held
from the Government or whereby any insurance of the Building against loss
or damage by fire and/or claim by third parties for the time being in force
may be rendered void or voidable or whereby the premium thereon may be
increased Provided That if as the result of any act, deed, matter or thing
done permitted or suffered by the Tenant, the premium on any such insurance
shall be increased, the Landlord shall be entitled to at its option either
to terminate this Agreement or to continue the same upon payment by the
Tenant of the increased premium.
(25) NOT TO BREACH INSURANCE POLICY
Not to cause or suffer or permit to be done any act or thing whereby the
policy or policies of insurance on the Premises against damage by fire or
liability to third parties for the time being subsisting may become void or
voidable or whereby the rate of premium or premiums thereon may be
increased, and to repay to the Landlord on demand all sums paid by the
Landlord by way of increased premium or premiums thereon and all expenses
incurred by the Landlord in and about any renewal of such policy or
policies arising from or rendered necessary by a breach of this clause and
in the event of the Premises or the Building
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or any part or parts thereof being damaged or destroyed by fire or other
insurable cause at any time and the insurance money under any insurance
against fire or other such cause effected thereon being wholly or partially
irrecoverable by reason solely or in part of the Tenant's act or default
then and in every such case to pay to or indemnify the Landlord of all loss
and damage thereby incurred by the Landlord including the cost of
completely rebuilding or reinstating the same.
(26) NOT TO MISUSE PREMISES
Not to permit or suffer any part of the Premises to be used for the purpose
of gambling or for any illegal, immoral, or improper purposes or so as to
cause nuisance, annoyance, inconvenience damage or danger to the occupiers
of adjacent premises or other premises in the neighbourhood and not to
permit any touting or soliciting for business or the distributing of any
pamphlets notice or advertising matter outside the Premises or anywhere
within the Building by any of the Tenant's servants agents or licensees.
(27) NOT TO MAKE STRUCTURAL ALTERATIONS
Not to make any structural alterations in the Premises which may damage or
affect or interfere with the use or enjoyment of the other parts of the
Premises and the Building or cause any inconvenience to the other occupiers
nor to make or cause any alteration injury damage or interference to the
common facilities or common areas or the maintenance thereof nor to cut or
injure the cement concrete flooring columns beams or girders of the
Building nor to do anything whereby the structural strength thereof may be
affected and to indemnify the Landlord against any breach of this Section.
(28) NOT TO ERECT EXTERNAL STRUCTURES
Not to affix install any external shades, awnings, iron cages, flower
racks, flower shelves, flags, banners, poles, brackets, drying racks or any
other projections structures; or things whatsoever on the external walls of
the Building nor to block any windows.
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(29) NOT TO DISPLAY SIGNS
Not to affix or display or permit or suffer to be affixed or displayed
within or outside the Premises any signboard, sign decoration or other
device, whether illuminated or not, which may be visible from outside the
Premises without the written consent of the Landlord first had and
obtained.
(30) NOT TO REMOVE THE LANDLORD'S FIXTURES AND FITTINGS
Not without the prior written consent of the Landlord to remove the
Landlord's fixtures and fittings out of the Premises except for the normal
repair and maintenance of the same.
(31) NOT TO OBSTRUCT COMMON AREAS AND PASSAGES
Not to encumber or obstruct, or permit to be encumbered or obstructed, with
any boxes, packaging or obstruction of any kind or nature any of the
entrances, staircase, landings, passages, lifts (if any) , lobbies or other
parts of the Building in common use and not to leave rubbish or any
articles or thing in any part of the Building not in the exclusive
occupation of the Tenant.
(32) OVERNIGHT OPERATIONS, GUARDS, ETC.
Not to use or permit or suffer to be used the Premises or any part thereof
as sleeping quarters or as domestic premises within the meaning of the
Landlord and Tenant (Consolidation) Ordinance or any other enactment or
modification thereof for the time being in force and not to allow any
person to remain on the Premises overnight except the Tenant's night.
watchmen.
(33) TO COMPLY WITH CONDITIONS FOR GRANTING CONSENT To pay all the Landlord's
expenses and charges of and incidental to the Tenant's request for consent
or approval for whatever purpose required herein and the Tenant hereby
acknowledges that save as expressed to the contrary herein the Landlord is
entitled in its absolute discretion to
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grant or withhold any consent or approval which, if granted, shall be
subject to such conditions as the Landlord may in its absolute discretion
impose.
(34) NOT TO CARRY ON OFFENSIVE TRADE
Not to carry on any trade or business in the Premises which is now or may
hereafter be declared to be an offensive trade under the Public Health and
Urban Services Ordinance or any enactment amending or substituting the
same.
SECTION III
LANDLORD'S COVENANT
The Landlord hereby agrees with the Tenant as follows:-
(1) TO PAY GOVERNMENT RENT AND PROPERTY TAX
To pay the Government Rent and Property Tax in respect of the Premises and
to make payments of a capital and non-recurring nature attributable to or
payable in respect of the Premises save where such expenses are caused by
or attributable to the act neglect or default of the Tenant.
(2) QUIET ENJOYMENT
The Tenant (duly paying the rent and management charges and observing and
performing the terms of this Agreement) shall have quiet possession and
enjoyment of the Premises during the Term without any interruption by the
Landlord or anyone lawfully claiming under or through or in trust for the
Landlord.
SECTION IV
FURTHER COVENANTS
IT IS HEREBY FURTHER EXPRESSLY AGREED AND DECLARED as follows:-
(1) DEFAULT
If the rent hereby agreed to be paid or any part thereof shall
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be unpaid for fifteen 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 any of the agreements stipulations terms and
conditions herein contained and on the Tenant's part to be observed and
performed or if -the Tenant shall become bankrupt or being a corporation
shall go into liquidation or if the Tenant shall otherwise become insolvent
or make any arrangement with creditors or shall suffer any execution to be
levied on the 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 to
forfeit the tenancy hereby created and to re-enter the Premises in the name
of the whole whereupon this Agreement shall absolutely cease and determine
but without prejudice to any right of action of the Landlord in respect of
any outstanding breach, non-observance or non-performance of any of the
said agreements, stipulations, terms and conditions herein contained and on
the Tenant's part to be observed and performed and to the Landlord's right
to deduct all loss damage and expense thereby incurred from the deposit
paid by the Tenant pursuant to Section VII hereof.
(2) EXERCISE OF RIGHT
A written notice served by the Landlord on the Tenant: in manner
hereinafter mentioned to the effect that the Landlord thereby exercise the
power of re-entry herein contained shall be a full and sufficient exercise
of such power without actual physical entry on the part of the Landlord.
(3) ACCEPTANCE OF RENT NOT WAIVER
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 of the said
agreements, stipulations terms and conditions herein contained and on the
Tenant's part to be observed and performed.
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(4) DISTRAINT
For the purposes of Part III of the Landlord and Tenant (Consolidation)
Ordinance, (Chapter 7) and of this Agreement, the rent payable in respect
of the Premises shall. be and be deemed to be in arrear if not -paid in
full and in advance at the times and in manner herein provided for payment
thereof and the Landlord is entitled to treat any non-payment of rent,
management fees and any other sums payable by the Tenant hereunder as
non-payment of rent.
(5) NOTICE OF LETTING
During the three months immediately preceding the expiration of the Term,
the Landlord shall be at liberty to affix and maintain without interference
upon any windows or external part of the Premises a notice stating that the
Premises are to be let and such other information in connection therewith
as the Landlord shall require.
(6) LANDLORD'S RIGHT TO SHOW PREMISES TO PROSPECTIVE PURCHASERS/TENANTS
During the three months immediately preceding the expiration or earlier
determination of the term, the Tenant shall permit all persons having the
authority from the Landlord by prior reasonable notice to enter and view
the Premises and/or the Furniture and every part thereof at all reasonable
times and show the same to prospective purchasers and/or tenants.
(7) DELIVERY UP OF PREMISES BY TENANT
The Tenant hereby agrees and undertakes that it will quietly deliver up
vacant possession of the Premises at the termination of the Term either by
affluxion of time or otherwise and in the -event of the Tenant failing so
to do -the Landlord may repossess the Premises and for such purpose the
Landlord and their servants and agents may without previous notice enter
upon the Premises with power if necessary to break open any doors gates or
windows of the Premises without being liable to the Tenant or any person
claiming through under or in trust for it for trespass damage or otherwise
15
and all costs and expenses loss and damage of whatsoever nature and
howsoever caused of and incidental to such re-possession thereof as
aforesaid which may be incurred by the Landlord shall be reimbursed by the
Tenant to the Landlord together with mesne profits at the rate of double
the rent calculated from the date of termination of the Term as aforesaid
up to the date of repossession and reinstatement of the Premises.
(8) INTEREST AND COST
The Landlord shall be entitled without prejudice to any other right or
remedy hereunder (including the right of re-entry) or otherwise available
to it:
(a) To charge the Tenant interest at the rate of 2% per calendar month if
any sum payable under this Agreement shall have become due but remain
unpaid for more than 14 days and such interest shall be payable on
demand to the Landlord from the date when such sum become due and not
14 days thereafter until actual payment thereof (as well after as
before any judgment); and
(b) To recover from the Tenant all costs including but not limiting to
legal and court fees, incurred by the Landlord (on a full indemnity
basis) in connection with the recovery of the rent hereby reserved
and/or any other monies payable hereunder and in arrears or other
proceedings taken by the Landlord as a result of the breach of or
default in observing or performing any of the agreements stipulations
and terms herein contained or referred to and on the part of the
Tenant to be observed or performed.
(9) NO FINE ETC.
The Tenant hereby expressly declares that no fine premium key money or
other consideration has been paid by the Tenant to the Landlord for or in
connection with the grant of this tenancy.
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SECTION V
EXCLUSIONS
(1) EXCLUSION OF LANDLORD'S LIABILITY FOR ESCAPE OF WATER, FIRE, ETC.
(a) Notwithstanding anything herein contained the Landlord shall not in
any circumstances be liable to the Tenant his servants licensees or
invitees or any other person whomsoever:
(i) in respect of any loss damage or injury to person or property
sustained by the Tenant its servants; licensees invitees or any
such other persons caused by or through or in any way owing to
any defect in and/or breakdown and/or the defective or negligent
working and/or operation and/or condition of the Premises, the
Landlord's fixtures and fittings, the lifts and/or the
recreational facilities or to the neglect or default of the
Landlord and/or its servants or otherwise; and/or
(ii) in respect of any loss or damage to person or property sustained
by the Tenant its servants licensees invitees or in any way owing
to fire or the overflow or leakage of water from or through any
part or portion of the Premises and/or the Building; and/or
(iii)for the security or safekeeping of the Premises or any contents
therein nor shall the rent and/or management fees, or any part
thereof xxxxx or cease to be payable on account thereof.
(b) The Landlord shall not be liable or responsible for any damage
suffered by the Tenant (whether personally or in respect of the
Premises or any property of the Tenant therein or any property stored
therein) or any servant invitee or licensee of the Tenant caused by or
through the acts or neglect or default of the tenants and occupiers of
the other parts of the Building and their servants licensees and
invitees.
(c) The Landlord shall neither be liable to pay compensation to the Tenant
in respect of any period during which the services and operation of
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the lifts or the recreational facilities (if any) shall be interrupted
nor shall the Landlord be liable to grant any abatement of the rent or
management fees or any part or parts thereof.
(d) The Landlord shall not be in any way liable to the Tenant or to any
person or persons claiming any right title or interest under the
Tenant for any damage or injury which may be sustained by the Tenant
or by any such person or persons as aforesaid on account of the
defective or damaged condition of the Building or the Premises the
Landlord's fixtures and fittings therein or any part thereof and in
particular the Landlord shall not be responsible to the Tenant or any
person or persons as aforesaid for any damage whatsoever caused by or
through or in any way owing to any typhoon escape of fire leakage of
water or electric current from the water pipes or electric wiring or
cable situated upon or in any way connected with the Building or any
part thereof, or the dropping of cigarette ends, broken pieces of
glass or other articles and the escape of water, fire or electricity
and vibrations from the floor unit or other premises in the Building
or in the neighbourhood and -the Tenant hereby agrees to indemnify the
Landlord against all claims demands actions costs expenses whatsoever
made upon the Landlord by any person or persons as aforesaid in
respect of the matters aforesaid.
SECTION VI
SUSPENSION OF RENT
If the Premises shall at any time during the tenancy be destroyed or damaged or
become inaccessible or become subject to a Closure Order or Demolition Order due
or owing to fire water storm wind typhoon defective construction white ants
earthquake subsidence of the ground or any calamity beyond the control of the
Landlord and not attributable to any failure of the Tenant to observe and carry
out the terms of this Agreement so as to render the Premises unfit
18
for habitation and use or inaccessible or so that the Premises or the Building
shall be condemned as a dangerous structure and the policy or policies of
insurance effected by the Landlord shall not have been vitiated or payment of
the policy moneys refused in whole or part in consequence of any act or default
of the Tenant, then the rent hereby reserved or a fair proportion of the rent
according to the nature and extent of the damage sustained or order made shall,
after the day when the Premises being rendered inaccessible, be suspended until
the Premises shall again be rendered accessible and fit for habitation and use
Provided always that the Landlord shall not be under any obligation to reinstate
the Premises so affected as aforesaid and Provided further that should the
Premises not have been reinstated in the meantime either the Landlord or the
Tenant may at any time after three months from the occurrence of such damage or
destruction or order give to the other a notice in writing to determine this
Agreement and thereupon the same and everything herein contained shall cease and
be void as from the date of the occurrence of such destruction or damage or
order or of the Premises becoming dangerous but without prejudice to the rights
and remedies of either party against the other in respect of any antecedent
claim or breach of the agreements stipulations terms and conditions herein
contained or of the Landlord in respect of the rent payable hereunder prior to
the coming into effect of the suspension PROVIDED FURTHER that the Landlord
shall not in any event be liable to pay compensation or damages to the Tenant in
respect of any period during which the occupation or use of the Premises shall
be interrupted or unavailable as aforesaid or in respect of the determination of
the tenancy as aforesaid and that the Tenant shall not in any event have any
claim, interest, right or property, all of which are hereby expressly waived and
forfeited, of and in any compensation or award payable by any relevant authority
in respect of the interruption or cessation of use or occupation of the Premises
or the determination of the tenancy in respect thereof.
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SECTION VII
DEPOSIT
1. DEPOSIT
The Tenant shall on the signing hereof deposit and maintain with the
Landlord the sum or sums specified in Part V of the Third Schedule hereto
to secure the due observance and performance by the Tenant of the
agreements, stipulations, terms and conditions herein contained and on the
part of the Tenant to be observed and performed which said deposit shall be
held by the Landlord throughout the currency of this Agreement free of any
interest to the Tenant and in the event of any breach or non-observance or
non-performance by the Tenant of any of the agreements stipulations or
conditions aforesaid the Landlord shall be entitled to deduct therefrom the
amount of any rent, rates and other charges payable hereunder which is in
arrears and any costs, expenses, loss or damage sustained by the Landlord
as the result of any non-observance or non-performance by the Tenant of any
of the said agreements, stipulations, obligations or conditions. In the
event of any deduction being made by the Landlord from the said deposit in
accordance herewith during the currency of this Agreement the Tenant shall
as a condition precedent to the continuation of the tenancy hereby created
within 15 days on demand by the Landlord make a further deposit equal to
the amount so deducted and failure by the Tenant so to do shall entitle the
Landlord to re-enter upon the Premises and to determine this Agreement as
hereinbefore provided without prejudice to any other right or remedy of the
Landlord hereunder provided that in no event shall the Tenant be entitled
to treat payment of the deposit as payment of the rent hereby reserved.
2. DEDUCTION FROM DEPOSIT
If there shall be any rent or other sums under this Agreement due to the
Landlord and unpaid including, without limitation, any cost incurred by the
Landlord as a result of the non-payment of the rent or other sums, the
Landlord may (without prejudice to any other rights or remedies available
to it) apply the Deposit towards payment of the rent or other sums and if
there shall be any breach, default, non-observance or non-
20
performance by the Tenant of any of the said agreements, stipulations or
conditions, the Landlord may pay or apply the Deposit or such part thereof
as shall be required towards remedying the same insofar as it may be
possible (without prejudice to any other rights or remedies available to
it) and, as a condition precedent to the continuation of the Term, the
Tenant shall within 15 days after such deduction deposit with the Landlord
the amount so deducted and if the Tenant shall fail to do so the Landlord
shall be entitled to re-enter the Premises in accordance with the
provisions hereinabove but without prejudice to any other rights or
remedies available to the Landlord.
3. INCREASE IN DEPOSIT
Should Part VI of the Third Schedule hereto provide for an increase in
Management Charges and Air-Conditioning Charges during the said term, the
Tenant shall upon such increase becoming applicable pay to the Landlord by
way of an increase in the said deposit a sum proportional thereto in order
to restore the ratio of deposit to Management Charges and Air-Conditioning
Charges to that previously subsisting and the payment of such increase
shall be a condition precedent to the continuation of this tenancy.
4. REFUND OF DEPOSIT
Subject as aforesaid the Deposit shall be refunded to the Tenant by the
Landlord without interest within 14 days after the expiration or sooner
determination of the Term and the delivery of vacant possession to the
Landlord or within 14 days after settlement of the last outstanding claim
by the Landlord against the Tenant in respect of any breach, default,
non-observance or non-performance of any of the agreements, stipulations or
conditions herein contained or referred to and on the part of the Tenant to
be observed and performed, whichever is the later.
5. TRANSFER OF DEPOSIT
If the Premises shall be assigned by the Landlord during the Term hereby
created, the Landlord shall be at liberty to transfer the Deposit to the
assignee (hereinafter called "the New Landlord") and deliver to the Tenant
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within 7 days of such transfer a notice (hereinafter called "the Notice of
Transfer of Deposit") in the form as set out in the Sixth Schedule hereto
executed by the New Landlord. Upon completion of such transfer and delivery
of such Notice of Transfer of Deposit, the Landlord shall be released of
any further liability to return the Deposit to the Tenant.
SECTION VIII
TENANCY SUBJECT TO MORTGAGE
1. Tenancy Agreement Subject to Mortgage
Notwithstanding all the terms and conditions contained herein, the parties
hereto hereby agree that this Agreement is made subject to a Legal Charge
dated 23rd August 1994 and registered in the Land Registry by Memorial No.
6115525 ("the Mortgage") executed by the Landlord in favour of the Kincheng
Banking Corporation ("the Lender") and all the rights of the Lender in
relation to the Premises shall take precedence and are hereby reserved
accordingly.
2. Condition Precedent
The parties hereto hereby agree that this Agreement is conditional upon
having obtained the written consent from the Lender for the Landlord to
enter into this Agreement. In the event this condition is not fulfilled,
either party may by notice in writing cancel this Agreement in such event
this Agreement shall be treated as null and void and with no further
effect. The Landlord shall forthwith return all the Deposit paid hereunder
to the Tenant but. without any compensation interest costs or otherwise
whatsoever and the Tenant shall deliver up vacant possession of the
Premises to the Landlord in accordance with this Agreement neither party
shall have any claim against the other hereon.
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SECTION IX
INTRPRETATION AND MISCELLANEOUS
(1) DEEMED ACTS OF TENANT
Term hereby created, the Landlord shall be at liberty to transfer the
Deposit to the assignee (hereinafter called "the New Landlord") and deliver
to the Tenant
For the purpose of this Agreement any act, default neglect or omission of
any family members, guest, visitor, servant, agent, licensee or invitee of
the Tenant and/or its associated company Amber Securities Corporation and
the occupier of the Premises, where the Tenant is a corporation, shall be
deemed to be the act, default, neglect or omission of the Tenant.
(2) SERVICE OF NOTICES
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 delivered at the Premises or the Tenant's registered off
ice in Hong Kong and if to be served on the Landlord shall be sufficiently
served if addressed to the Landlord and sent by prepaid post to or
delivered at the Landlord's registered office or residence in Hong Kong.
(3) ACCEPTANCE OF PREMISES IN "AS IS" CONDITION
The Tenant declares that it has duly inspected the Premises and agreed to
take the Premises on an "as is" basis and the Landlord gives no warranty
whatsoever of the state and condition of the Premises or the Building or
any fixtures and fittings, installation and facilities relating thereto.
(4) NO WARRANTY AS TO USER
The Landlord shall have no objection to the purposes as stipulated in
Clause 15, Section II hereof for which the Premises shall be used by the
Tenant but the Landlord does not warrant that the Premises are fit for any
particular purposes. The Tenant shall be responsible for obtaining any
necessary permits from the appropriate Government authorities for the user
of the Premises and shall at all times comply with all rules and
regulations laid down by such authorities for giving such permits and the
Tenant shall indemnify the Landlord from and against all proceedings
actions fines damages claims and demands whatsoever which may arise as a
result of the noncompliance by the Tenant of such rules and regulations or
any of them.
23
(5) STAMP DUTY AND COSTS
Each party shall bear its own legal costs and disbursements in the
preparation, completion and registration of this Agreement. The stamp duty
payable on this Agreement and its counterpart and the registration fee (if
any) theron shall be borne by the parties hereto in equal shares.
(6) EXCLUSION OF WARRANTIES
This Agreement sets out the full agreement between the parties. No other
warranties or representations have been made or given relating to this
tenancy or to the Building or the Premises, or if any warranty or
representation has been made the same is hereby waived and/or is or will
not be relied upon by either party.
(7) INTERPRETATION
(a) The headings and index herein are intended for guidance only and do
not form 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.
(b) In this Agreement unless the content otherwise requires, words herein
importing the masculine feminine or neuter gender shall include the
other or others of them and words herein in the singular shall include
the plural and vice versa and the terms "Landlord" and "Tenant" shall
include their respective successors in title and assigns.
(8) CONDONATION NOT A WAIVER
No condoning excusing or overlooking by the Landlord of any default breach
or non-observance or non-performance by the Tenant at any time or times of
any of the Tenant's obligations herein contained shall operate as a waiver
of the Landlord's rights hereunder in respect of any continuing or
subsequent default breach or non-observance or non-performance or so as to
defeat or affect in any way the rights and remedies of the Landlord
hereunder in respect of any such continuing or subsequent default or breach
and no waiver by the Landlord shall be inferred from or implied by anything
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done or omitted by the Landlord unless expressed in writing and signed by
the Landlord. Any consent given by the Landlord shall operate as a consent
only for the particular matter to which it relates; and 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.
(9) JOINT AND SEVERAL LIABILITY
Where more than one person is named as the Tenant in the First Schedule
hereto all such persons shall sign this Agreement and shall be jointly and
severally liable for the performance and observance of the terms,
conditions and agreements contained herein and on the part of the Tenant to
be performed and observed.
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THE FIRST SCHEDULE ABOVE REFERRED TO
------------------------------------
Name address and description of parties hereto
Landlord: Hongkong Finance Property Company Limited whose registered office is
situate at 12th Floor, First Pacific Bank Centre, Xx.00-00 Xxxxxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx.
Tenant: MOMENTUM ASSOCIATES LIMITED whose registered office is situate at 17th
floor, Xx. 00-00 Xxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx.
THE SECOND SCHEDULE ABOVE REFERRED TO
-------------------------------------
PREMISES: ALL THAT Unit No. A on the 12th Floor of First Xxxxxxx Xxxx Xxxxxx, 00
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx erected on The Remaining Portion of
Inland Lot No. 2818, The Remaining Portion of Section D of Inland Lot No.
2818, The Remaining Portion of Section F of Inland Lot No. 2817 and Section
M of Inland Lot No. 2817.
THE THIRD SCHEDULE ABOVE REFERRED TO
------------------------------------
Part I Term: Two years.
Part II Commencement Date: 1st December 1998
Part III Expiry Date: 30th November 2000
The Parties here by agreed that:
After the first 12 months of the TENANCY, the Tenant shall have an option
for early termination for the Tenancy and be released from the obligation
of the terms of agreement upon that giving (3) months prior notice or by
paying the sum equivalent to the (3) months rent in lieu of notice.
- 26 -
Part IV Rent:
HONG KONG DOLLARS FIFTY FIVE THOUSAND ONLY (HKD.55,000-00 per month
(exclusive of government rates, services and management charges and
air-conditioning charges) payable in advance on the lst day of each and
every calendar month without any deduction whatsoever the first of such
payment shall be made by the Tenant to the Landlord upon signing of this
Agreement, and in the event that the rent shall commence to be payable from
a day other than the first day of a calendar month the first and last
payments of rent shall be due proportions of the calendar monthly rent
reserved only.
Part V Deposit:
HONG KONG DOLLARS ONE HUNDRED THIRTY-THREE THOUSAND TWO HUNDRED
NINETY-SEVEN AND CENT FORTY-TWO ONLY (HKD.133,297.42) being two months'
rental and management charges and air-conditioning charges.
Part VI Management Charges and Air Conditioning Charges:
CURRENTLY HONG KONG DOLLARS ELEVEN THOUSAND SIX HUNDRED FORTY EIGHT AND
CENTS SEVENTY ONE ONLY (HK$11,648.71)
- 27 -
THE FOURTH SCHEDULE ABOVE REFERRED TO
THE LANDLORD'S FIXTURES AND FITTINGS
(a) reception table - 1 unit;
(b) (1.4 metre x 0.7 metre) office wooden table with wooden side return -
11 units;
(c) (0.875 metre x 1.78 metre) approx. wooden office table - 1 unit; (d)
(0. 74 metre x 1. 65 metre) approx. of f ice wooden table - 1 unit;
(e) (0. 74 metre x 1. 65 metre) approx wooden off ice table - 1 unit;
(f) small round conference table - 1 unit with guest chair - 4 units;
(g) (0.7 metre x 1.5 metre) approx wooden office table with side
return - 2 units; (h) (0. 7 metre x 1. 5 metre) approx -wooden office
table with side return - 2 units; and (3 metre) approx in length
oval-shaped conference table with straight-edges (wooden) - 1 unit
- 28 -
AS WITNESS the hands of the parties hereto the day and year first above
written.
SIGNED by Xx. Xxxxx Guo Qiang.
It's Director For and on Behalf
Hong Kong Property Company Limited
for and on behalf of the Landlord in the authorized signature
presence of /S/ Zhang Guo Qiang
SIGNED by Xxxxxxx X Xxxxx For and on Behalf of
It's Director MOMENTUM ASSOCiates Limited
for and on behalf of the Tenant in the /S/ Xxxxxxx Xxxxx
presence of
RECEIVED on the day and year first above written of and from the Tenant the sum
of HONG KONG DOLLAR one hundred thirty three thousand two hundred ninety-seven
and cents forty-two only being the deposit money referred to in Part V of the
Third Schedule hereto. HKD133,297-42
For and on Behalf
Hong Kong Property Company Limited
authorized signature
-29-
