EXHIBIT 10.5
AN AGREEMENT made this 1st day of November One Thousand Nine Hundred and
Ninety-nine.
BETWEEN the parties more particularly described and set out in the First
Schedule hereto.
WHEREBY IT IS AGREED as follows:
1. The Landlord shall let and the Tenant shall take ALL THOSE the
premises more particularly described and set out in the Second
Schedule hereto (hereinafter referred to as "the Premises")
AND together with all appurtenant rights for the term and at
the rent more particularly described and set out in the Third
Schedule hereto.
2. The Tenant to the intent that the obligations hereunder shall
continue throughout the said term of the tenancy hereby agrees
with the Landlord as follows:
(a) To pay the said rent on the days and in manner
hereinbefore provided for payment thereof.
(b) To pay and discharge all rates and outgoing of a
non-capital or recurring nature now or hereafter to be
assessed, imposed or charged by the Government of Hong Kong or
other lawful authority upon the Premises (Government Rent and
Property Tax and expenses of capital nature only excepted).
(c) To pay and discharge all service or maintenance charges,
payable by the owner or occupier of the Premises pursuant to
or by virtue of the Deed of Mutual Covenant and Management
Agreement (if any) relating to the Building of which the
Premises form part more particularly described in the Schedule
hereto (hereinafter referred to as "the Building") (save and
except contributions towards capital expenditure) and all
charges for gas, water and electricity consumed on or in the
Premises.
(d) To keep all the non-structural interior parts of the
Premises in good clean tenantable repair and condition (fair
wear and tear inherent and subsisting defects 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 (fair wear
and tear inherent and subsisting defects excepted).
(e) 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 Premises the repair of which is the Tenant's
responsibility hereunder 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
reasonable costs and expense incidental thereto.
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(f) To permit the Landlord and all persons authorized bt them
at all reasonable times to enter upon prior appointment and
view the state of the Premises, to carry out any work or
repair which requires to be done and, during the last three
months of the said term, to show the Premises to prospective
tenants or purchasers subject to prior appointment.
(g) On receipt of any notice from the Landlord or his
authorized representative specifying any works or repairs
which require to be done and which are the responsibility of
the Tenant hereunder to put in hand and execute the same with
reasonable dispatch and if the Tenant shall fail to execute
such works or repairs within reasonable time, the Tenant shall
permit the Landlord together with xxxxxxx and all necessary
equipment to enter upon the Premises for the purpose of
carrying out or properly completing such works or repairs, the
reasonable costs thereon to be repaid by the Tenant to the
Landlord promptly on demand and recoverable by the Landlord
from the Tenant as a debt.
(h) Not without the previous written consent of the Landlord
which consent shall not be unreasonably withheld or delayed to
erect, install or alter any fixtures, partitioning or other
erection or installation in the Premises or any part thereof.
(i) Not without the prior written consent of the Landlord (not
to be unreasonably withheld or delayed) to affix exhibit put
up or display or to permit to suffer to be affixed, exhibited,
put up or displayed any signboard, sign, decorations,
illuminated sign, placard, poster or other advertisement
whatsoever inside or outside the Premises or on any door,
wall, pier or window thereof or on or in any part of the
Building. In the absence of such consent the Landlord shall
have the right to remove at the reasonable cost and expense of
the Tenant, such costs and expenses to be paid on demand, any
signboard, sign, decoration, illuminated sign, poster, placard
or other advertisement which shall be so affixed, exhibited,
put up or displayed. Notwithstanding the aforesaid, the Tenant
shall have the right to put up and affix signboard of its name
at the entrance of the Premises in accordance with the
instructions of the Manager of the said Building.
(j) To observe and to comply with the reasonable regulations
or requirements stated in notices or announcements from time
to time made or issued by the Manager of the Building for the
maintenance (save and except maintenance of the structural
part of the Premises) and management of the Building including
the times and arrangements for operation of any equipment,
lifts, lighting and the use of entrances and passage ways.
(k) 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.
(l) Not without the prior written consent of the Landlord to
assign underlet or otherwise part with the possession of the
Premises or any part thereof in any way whether by way of
sub-letting lending sharing or other means whereby any person
or persons not a party to this Agreement obtains the use or
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possession of the Premises or any part thereof irrespective of
whether any rental or other consideration is given for such
use or possession and in the event of any such transfer
sub-letting sharing assignment or parting with the possession
of the Premises (whether for monetary consideration or not)
this Agreement shall absolutely determine and the Tenant shall
forthwith vacate the Premises on notice to that effect from
the Landlord.
(m) Not to produce or permit or suffer to be produced any
excessive music and noise so as to be a nuisance to or gives
reasonable cause for complaint from occupiers of other
premises in the Building or in the neighborhood.
(n) Not to do or permit or suffer to be done any act or thing
which is a nuisance to or gives reasonable cause for complaint
from the Landlord or to the tenants or occupiers of other
premises in the Building or in any adjoining or neighboring
building.
(o) 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 negative or restrictive covenants terms and conditions
under which the said land and the Building 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 request
the Tenant to pay the increased premium.
(p) Not to keep or store or permit to suffer to be kept or
stored on or in the Premises any arms ammunition gunpowder
saltpeter kerosene or other explosive or combustible or
hazardous goods.
(q) Not to use or permit or suffer the Premises to be used for
any illegal or immoral purpose.
(r) To obey and comply with and to indemnify the Landlord
against any breach of ordinance, regulations, bye-laws, rule
or requirement of any Governmental or other competent
authority relating to the 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.
(s) To obey observe and comply with and perform all the
negative or restrictive covenants terms and provisions in the
said Deed of Mutual Covenant and Management Agreement (if any)
relating to the Building so far as they relate to the Premises
and to indemnify the Landlord against the breach
non-observance or non-performance thereof.
(t) To pay to the Landlord on demand all reasonable costs
incurred by the Landlord in cleansing or clearing any of the
drain, pipes or sanitary or plumbing apparatus 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.
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(u) To be responsible for the removal of all trade and other
refuse from the Premises to the reasonable satisfaction of the
Landlord or their agents.
(v) To use the Premises only for commercial purposes.
(w) To yield up the Premises with the fixtures and additions
thereto at the expiration or sooner determination of this
Agreement in good clean and tenantable repair and condition
(fair wear and tear inherent and subsisting defects excepted).
It is agreed that the Tenant shall not be required to
reinstate any works (including any fitting-out works) to the
Premises provided that the Tenant shall have the right to
remove the Tenant's trade fixtures subject to making good all
damage to the Premises by reason of such removal.
3. The Landlord hereby agrees with the Tenant as follows:
(a) To pay the Government Rent and Property Tax and expenses
of capital or non-recurring nature attributable to or payable
in respect of the Premises.
(b) That the Tenant paying the rent hereby agreed to be paid
on the days and in manner herein provided for payment of the
same and observing and performing the agreements stipulations
terms and conditions herein contained and on the Tenant's part
to the observed and performed shall peaceably hold and enjoy
the Premises during the said term without any interruption by
the Landlord or any person lawfully claiming under or in trust
for the Landlord.
(c) Subject to Clause 6 hereof, to contribute his share of the
cost when called upon to do so by management of the Building
towards the maintenance and repair of the main structure, main
electricity supply cables, main drains waterpipes and main
walls of the Building.
(d) At the request of the Tenant to use reasonable endeavors
to enforce the terms of the Deed of Mutual Covenant and/or the
Management Agreement against owners and occupiers of the other
premises in the Building and the Manager thereof.
(e) To keep those parts of the Premises which are not the
Tenant's responsibility hereunder in good repair and
condition.
4. IT IS HEREBY FURTHER EXPRESSLY AGREED AND DECLARED as follows:
(a) The rent hereby agreed to be paid represents the best
rent, which can reasonably be obtained without a premium;
(b) If the rent hereby agreed to be paid or on any part
thereof shall 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 which failure or neglect has not been rectified
within reasonable time or if the Tenant shall become bankrupt
or being a corporation shall go into liquidation
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or if the Tenant shall otherwise become insolvent or make any
composition or arrangement with creditors or shall suffer any
execution to be levied on the Premises or otherwise on the
Tenant's goods such execution not to be suspended within 14
days, then and in any such case it shall be lawful for the
Landlord at any time thereafter to re-enter on the Premises or
any part thereof 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 or 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 in accordance with Clause 8 hereof.
(c) 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.
(d) 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 to any breach non-observance or
non-performance of the said agreements stipulations terms and
conditions herein contained and on the Tenant's part to the
observed and performed.
(e) Save and except the same is caused by the default neglect
or omission of the Landlord, the Landlord's employees, agents
or contractors, 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 the overflow of water or the escape of fumes
smoke fire or any other substance or thing from anywhere
within the Building and 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 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
Premises caused by the default, neglect or omission of the
Tenant and against all reasonable costs and expenses incurred
by the Landlord in respect of any such claim or demand.
(f) For the purpose of these presents any act, default neglect
or omission of any guest, visitor, servant, agent licensee or
invitee of the Tenant shall be deemed to be the act, default,
neglect or omission of the Tenant.
(g) For the purpose of Part III of the Landlord and Tenant
(Consolidation) Ordinance (Cap. 7) and these presents, the
rent payable in respect of the Premises shall be and be deemed
to be in arrears if not paid in full and in advance at the
times and in manner herein provided for payment thereof.
(h) 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 office and, if to be
served on the Landlord shall be sufficiently served if
addressed to the
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Landlord and sent by prepaid post to or delivered at the
Landlord's registered office.
(i) If for any reason whatsoever the ratable value as at the
date hereof or the rates payable shall be increased then and
in any such case the Tenant shall during the continuance of
the term of this Agreement bear such increase in rates.
Conversely, should there be any refund of rates made by the
Government or the relevant authorities, the Landlord shall
repay the same to the Tenant. If at any time hereafter during
the continuance of this tenancy the Government shall abolish
the levy of property tax in the owner in respect of any land
and/or building and introduce a new tax levy in substitution
for or replacement of property tax, any reference herein to
property tax shall be deemed reference to such new tax as may
hereafter be introduced by Government. For the avoidance of
doubt, save and except those stipulated herein, any other
taxes levied or to be levied on the Premises or the owner
thereof should be borne by the Landlord.
(j) Each party shall bear their own costs and expenses in
relation to the preparation and completion of this Agreement.
The stamp duty payable on this Agreement and its counterpart
shall be borne by the parties hereto in equal shares.
(k) Unless the contents otherwise require, 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 successors in
title.
5. The Tenant hereby expressly declares that for the grant of the
said term no key money, construction moneys or other
consideration has been paid to the Landlord or to any person.
6. If the Premises or the Building or any part thereof 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 for habitation and use or
inaccessible or so that the Premises or Building shall be
condemned as a dangerous structure or a demolition order or
closing order shall become operative in respect of the
Premises or the Building then the rent hereby reserved or a
fair proportion thereof according to the nature and extent of
the damage sustained or order made shall henceforth be
suspended until the Premises or Building shall again be
rendered accessible and fit for habitation and use and that
the Closure Order or Demolition Order be removed Provided
always that the Landlord shall not be under any obligation to
reinstate the Premises or any part thereof so affected as
aforesaid and Provided further that should the Premises or
Building not have been reinstated in the meantime either the
Landlord or the Tenant may at any time after two months from
the occurrence of such damage destruction or order give to the
other of them notice in writing to determine this present
tenancy
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and thereupon the same and everything herein contained shall
ceased and be void as from the date of the occurrence of such
destruction or damage or order or of the Premises becoming
inaccessible but without prejudice to the rights and remedies
of either party against the other in respect of any antecedent
claim or breach of the agreement 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.
7. In the event of fire, typhoon or other contingencies which in
the reasonable opinion of the Landlord may cause or threaten
to cause damage or injury to the Premises, the Landlord shall
after seeking to notify the Tenant, have power in the absence
of the Tenant from the Premises to break open any outer door
or windows of the Premises and to do such other things as may
be necessary to prevent the Premises from being damaged or
injured or further damaged or injured and in such event the
Landlord shall not be answerable to the Tenant for any loss or
damage which the Tenant may sustain thereby.
8. The Tenant shall on the signing hereof deposit and maintain
with the Landlord the sum of HK$156,882.00 being the total sum
of two (2) months rental, air-conditioning charges, management
fee and government rate to secure the due observance and
performance by the Tenant of agreements, stipulations, terms
and conditions herein contained and on the Tenant's part to be
observed and performed. The said deposit shall be retained by
the Landlord throughout the said term free of any interest to
the Tenant. Subject as aforesaid, the said deposit shall be
refunded to the Tenant by the Landlord within seven (7) days
after the expiration or sooner determination of this Agreement
and the delivery of vacant possession to the Landlord
whichever is the later.
9. Subject to Clause 8 hereinabove, in the event of the Sale of
the Premises to a Purchaser or to the entering into possession
of the Premises by a mortgagee the Landlord shall refund the
deposit to the Tenant within seven (7) days without interest
unless the Landlord is able to procure that the Purchaser or
mortgagee, as the case may be, gives an undertaking to the
Tenant for the refund of the deposit as provided herein.
10.01 At the expiration of the term hereby created and upon the
Tenant's giving notice not later than three (3) months before
the expiration of the original term and subject to the consent
of the Landlord's Mortgagee at the date hereof, the Tenant
shall have the option to renew the tenancy for a further term
of One Year on the same terms and conditions as are herein
contained (save for this provision for renewal) and save as to
the rental payable during the renewal term which shall be the
prevailing market rent (also exclusive of
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rates, air-conditioning charges and management fee).
10.02 The prevailing market rent payable from 1st November 2001
until 31st October 2002 (the "further term") shall be agreed
at any time between the Landlord and the Tenant or (in the
absence of agreement) determined by an independent surveyor
and valuer (acting as an expert and not as an arbitrator) that
valuer to be nominated in the absence of agreement by or on
behalf of the President for the time being of the Hong Kong
Institute of Surveyors on the application of the Landlord or
the Tenant made not earlier than two months before the
commencement of the further term. The revised rent to be
determined by the valuer shall be that which he shall decide
should be the open market monthly rent at the commencement of
the further term for the Premises:
(a) on the following assumption at that date:
(i) that the Premises are fit for immediate
occupation and use and that no work has been
carried out to the Premises during the term
which has diminished the rental value of the
Premises and that in case the Premises have
been destroyed or damaged they have been
fully reinstated and restored;
(ii) that the Premises are available to let by a
willing landlord to a willing tenant as a
whole without a premium but with vacant
possession and subject to the provisions of
this Agreement (other than the amount of the
rent reserved and this option to renew) for
the further term; and
(iii) that all the covenants on the part of the
Tenant in this Agreement have been fully
performed and observed.
AND having regard to open market rental values
current at the Commencement of the further term for
similar office accommodation elsewhere in the
Building and/or in similar office buildings in Hong
Kong with attributes comparable to those of the
Building;
(b) but disregarding;
(i) any effect of the fact that the Tenant has
been in occupation of the Premises;
(ii) any goodwill attached to the Premises by
reason of the Tenant carrying on its
business at the Premises; and
(iii) any increase in rental value of the Premises
attributable to the existence at the
commencement of the further term of any
improvement to the Premises or any part
thereof by the Tenant.
10.03 (a) The fees and expenses of the valuer appointed under
clause 10.02 including the cost of his appointment
shall be borne by the Tenant
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and the Landlord in equal shares;
(b) The valuer shall afford to each of the parties an
opportunity to make representations to him and shall
give a written decision with reasons. Such decision
shall be conclusive and binding on the parties
hereto; and
(c) If the valuer shall die, delay, or become unwilling
or incapable of acting or if for any other reason the
President for the time being of the Hong Kong
Institute of Surveyors or the person acting on his
behalf shall in his absolute discretion think fit he
may in writing discharge the valuer and appoint
another in his place.
10.04 (a) If the revised rent payable on and from the
commencement of the further term has not been agreed
by that date rent shall continue to be payable at the
rate previously payable and within 15 days of the
revised rent being ascertained the Tenant shall pay
to the Landlord any shortfall between the rent paid
and the revised rent payable up to and on the
preceding day for payment of rent or the Landlord
shall refund to the Tenant any overpayment made for
such period.
(b) For the purposes of this proviso the revised rent
shall have been ascertained on the date when the same
has been agreed between the parties or the date of
the determination by the valuer.
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THE FIRST SCHEDULE ABOVE REFERRED TO
NAMES ADDRESSES AND DESCRIPTIONS OF PARTIES HERETO
LANDLORD : Petergrand Limited whose registered office is situate at
Xxxx 000, Xxxx Xxxx Building, 100 Xxxxxx Road, Kowloon,
Hong Kong.
TENANT :
Toymax (H.K.) Limited whose registered office is situate at
Units A and B, 3rd Floor, CDW Building, 388 Castle Peak Road,
Tsuen Wan, New Territories, Hong Kong.
THE SECOND SCHEDULE ABOVE REFERRED TO
ALL THOSE Units 4 and 5 on 9th Floor of Greenfield Tower Concordia Plaza,
Xx. 0 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxx Xxxx with approximate
area of 4,754 sq. ft. gross.
THE THIRD SCHEDULE ABOVE REFERRED TO
Term :2 Years
Commencing: 1st November 1999
Expiring : 31st October 2001
Rent : Dollars Seventy-eight Thousand Four Hundred and Forty-one Only
(HK$78,441.00) Hong Kong Currency (exclusive of Rates, air-
conditioning charges and Management Fee) and payable in advance
clear of all deductions on the 1st day of each and every month
the first of such payments has been paid by the Tenant on the
signing of the Confirmation Letter signed by the Landlord and
Tenant on 27th September 1999 as the Landlord hereby admits and
acknowledges PROVIDED THAT the rent shall not be payable by the
Tenant for the period from 1st November 1999 to 31st December
1999 (both dates inclusive) being the rent free period on the
condition that the Tenant shall still be responsible for the
payment of rates, air-conditioning charges, management fees
and all other utility charges during the said rent free period.
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IN WITNESS whereof the hands of the parties hereto the day and
year first above written.
SIGNED by ) For and on behalf of
for and on behalf of the ) PETERGRAND LIMITED.
Landlord whose signature )
is verified by- - --------------------------
Authorized Signature
Solicitor, Hong Kong SAR
the Director For and on behalf of
SIGNED by CHU KI XXXX, ) TOYMAX (H.K.) LIMITED
for and on behalf of the )
Tenant whose signature is )
verified by- - --------------------------
Authorized Signature
NG XXX XXXX
Solicitor, Hong Kong SAR
LIU, CHAN AND XXX
RECEIVED the day and year first above written HK$156,882.00
)
of and from the Tenant the sum of Dollars ONE )
HUNDRED FIFTY-SIX THOUSAND EIGHT )
HUNDRED AND EIGHTY-TWO Hong Kong )
Currency being the deposit money above )
expressed to be paid by the Tenant to the )
Landlord )
W I T N E S S to the signature by :-
Solicitor, Hong Kong SAR
36
DATED THE 1ST DAY OF NOVEMBER 1999.
TENANCY AGREEMENT
Term: 2 years
Commencing: 1st November 1999
Expiring: 31st October 2001
Rent: HK$78,441.00 (exclusive of Rates,
air-conditioning charges and
management fee)
Deposit: HK$156,882.00
Xxxxx K.S. Chan & Co.
1. the undersigned, do hereby certify that Solicitors
I have examined/the foregoing document Rooms 1203-1205,
with its original and that the same is a Wing On Centre,
true and complete copy thereof. 000 Xxxxxxxxx Xxxx Xxxxxxx,
Xxxx Xxxx.
XXXXX XXXX KIN SANG
Solicitor, Hong Kong SAR. Tel: 0000 0000 Fax: 0000 0000
Dated . 9 NOV 1999 Ref: PC99/P1/0934/ccc
Code - c:/cccJO934ta.doc
37
