Exhibit 4(uu)
Dated the 7th day of February 2005
PARTNER LINK INVESTMENTS LIMITED
and
RICHLY LEADER LIMITED
and
IPSWICH HOLDINGS LIMITED
-----------------------------------------------------------
DEED
OF
RENTAL GUARANTEE
-----------------------------------------------------------
Koo and Partners
in association with
PAUL, HASTINGS, XXXXXXXX & XXXXXX LLP
21st Floor, Bank of China Tower
0 Xxxxxx Xxxx
Xxxx Xxxx
Tel. No. 0000-0000
Fax No. 0000-0000
(REP: CON/57843-00002/MC/CPS/CCS -- PCCW Tower)
THIS DEED is made this 7th day of February 2005
BETWEEN PARTNER LINK INVESTMENTS LIMITED a company incorporated under the laws
of the British Virgin Islands with its registered office situate at P.O. Box No.
957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands
(hereinafter called "the Vendor") of the first part; IPSWICH HOLDINGS LIMITED a
company incorporated in the British Virgin Islands whose registered office is
situate at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola,
British Virgin Islands (hereinafter called "the Guarantor") of the second part
And RICHLY LEADER LIMITED a company incorporated in Hong Kong whose registered
office is situate at Unit B, 22nd Floor, Bank of Xxxxx Xxxxx, Xx. 0 Xxxxxx Xxxx,
Xxxx Xxxx (hereinafter called "the Purchaser") of the third part.
WHEREAS:-
(A) By an Agreement for Sale and Purchase dated the 21st day of December 2004
and made between the Vendor as vendor and the Purchaser as purchaser ("the
Agreement"), the Vendor agreed to sell and the Purchaser agreed to purchase the
Land and the Premises more particularly described in the Schedule hereto ("the
Property") at a consideration of HK$2,808,000,000 and subject to the terms and
conditions thereof.
(B) It is a term and condition of the Agreement that the parties hereto must
enter into this Deed on completion of the sale and purchase of the Property.
NOW THIS DEED WITNESSETH as follows:-
1. In this Deed the following words and expressions shall have the following
meanings ascribed to them whenever the context so permits:-
"Agent" shall mean Pacific Century Paramount Real Estate Company Limited which
is a subsidiary of the Guarantor, appointed by the Purchaser at the request of
the Vendor as the Purchaser's sole leasing agent and manager in relation to the
leasing and management of the Property on the terms of the Deed of Appointment.
"Deed of Appointment" shall mean the Deed of Appointment of Leasing Agent and
Manager (in the form set out in Appendix I of the Agreement) whereby the
Purchaser appoints the Agent as the Purchaser's sole leasing agent in relation
to the leasing of the Property and appoints the Agent as the manager in relation
to the management of the Property.
"Force Majeure" shall mean the occurrence of fire water storm typhoon defective
construction white ants earthquake subsidence of the ground or any calamity
beyond the control of the Purchaser as Landlord or the Tenants/Licenses so as to
render the Property or any part thereof unfit for commercial use or inaccessible
or the Property or any part thereof shall be condemned as a dangerous structure
or a demolition order or
closing order has become operative in respect of the Property of any part
thereof.
"Guaranteed Period" shall mean the period of 5 years commencing from the date
immediately following the date of completion of the sale and purchase of the
Property.
"Guaranteed Monthly Rental" shall mean HK$13,338,000 per month.
"Hong Kong" shall mean the Hong Kong Special Administrative Region of the
People's Republic of China.
"Letting Agreements" shall mean licences, agreements for lease/tenancy and
leases/tenancy agreements or renewal licences, tenancy agreements and leases in
respect of the Property or any part(s) thereof
"Rents/Fees" shall mean rents licence fees and all sums of money payable under
the Letting Agreements.
"Tenants/Licensees" shall mean tenants or licensees of the Property or any
part(s) thereof
Words importing the singular number only shall, unless the context otherwise
requires, be deemed to include the plural and vice versa and words importing the
masculine gender Only shall, unless the context otherwise requires, be deemed to
include the feminine and neuter genders and vice versa. Words importing persons
shall include firms and corporations.
2. (1) Subject to the provisions of Clause 6, the Vendor hereby undertakes and
covenants with the Purchaser that, on the date of completion and thereafter on
the first business day of every month during the Guaranteed Period, the Vendor
shall pay the Guaranteed Monthly Rental for that month (apportioned if the
period is less than a month) to the Purchaser by way of a cheque drawn in favour
of the Purchaser or by telegraphic transfer to a bank account in Hong Kong
specified in writing by the Purchaser.
(2) In consideration of the Vendor's undertakings and covenants under
paragraph (1) above, the Purchaser hereby undertakes and covenants with the
Vendor that all Rents/Fees payable during the Guaranteed Period will be paid to
the Vendor.
3. For the avoidance of doubt, (a) the Guaranteed Monthly Rental is payable
irrespective of the actual amount of Rents/Fees and other income received by the
Agent and/or the Vendor from the Tenants/Licensees and the cost and expenses
required to be expended by the Agent and/or the Vendor in respect of the
Property; and (b) if the actual amount of net income referred to in paragraph
(a) above shall be greater than the Guaranteed Monthly Rental, the Vendor shall
be entitled to retain the excess and the Purchaser shall have no claim against
the Vendor whatsoever in respect of such excess.
4. (1) Except as provided in Clause 4(2), all the expenses payable incurred or
to be incurred for or in respect of the Property during the Guaranteed Period
will be borne by the Vendor and/or the Agent, including without limitation the
following (irrespective
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of whether the same should be payable by the Tenants/Licensees under the Letting
Agreements):-
(a) all management expenses to be incurred for the management of the
Property, air-conditioning charges and other outgoings in respect of
the Property including management fees and other sums payable to the
Manager under the Lease and including goods and services tax and other
similar turnover tax levied or chargeable on the Rents/Fees payable by
the Tenants/Licensees under the Letting Agreements; and
(b) all expenses, costs, outgoings and disbursements incurred by the Agent
in performance of its obligations and in exercise of its powers wider
the Deed of Appointment, which include but are not limited to all
advertising and promotion fees, professional fees, commissions payable
to estate agents, costs and expenses for repairing and maintaining the
Property in tenantable repair and condition, reinstatement costs for
the disabled toilets (save and except those costs and expenses of a
capital or non-recurring nature, expenditure of works required by any
order or notice issued on or after the date of the Agreement from any
government department or other competent authority, property tax,
profit tax, goods and services tax and other similar tax (levied or
chargeable on the Guaranteed Monthly Rental, if any), premium payable
on the insurance policy (if any) which shall be borne by the
Purchaser), legal costs and stamp duty payable for the negotiation,
preparation, execution and enforcement of all Letting Agreements.
(2) The Purchaser shall be responsible for payment of any expenditure of a
capital or non-recurring nature, any expenditure of works required by any order
or notice issued on or after the date of the Agreement from any government
department or other competent authority property tax, profit tax, goods and
services tax and other similar tax (levied or chargeable on the Guaranteed
Monthly Rental, if any), premium payable on the insurance policy (if any).
5. It is an essential condition of this Deed that the Deed of Appointment shall
be executed by the Purchaser in favour of the Agent upon the execution of this
Deed thereby empowering the Agent inter alia, to do such acts and things in
relation to the leasing of the Property on the terms therein contained including
but not limited to demand, collect, receive and recover from all present and
future Tenants/Licensees of the Property the Rents/Fees from time to time and to
account to the Vendor all such Rents/Fees actually received by the Agent in
accordance with the terms of this Deed.
6.1 The Purchaser shall take out business interruption or loss of income
insurance in respect of the Property ("BI Policy") with a reputable insurance
company acceptable to the Guarantor (the "Insurer") effective from the date of
this Deed for the Insured Amount for a disruption period of at least 12 months
and on such other terms and conditions approved by the Guarantor, including but
not limited to a condition that the policy may not be cancelled, modified or
restricted without the prior written consent of the Guarantor. In this Clause,
"Insured Amount" means the product of the Market Rent and 544,146; and "Market
Rent" means, for each 12 month period commencing on the
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date of this Deed, the aggregate of the average open market rent and management
fee, aft-conditioning charges and other sums payable by tenants per square foot
per month for the Property prevailing on the first day of that period as
determined by an independent firm of qualified surveyors in Hong Kong. The
surveyors shall be jointly instructed by the Vendor and the Purchaser who shall
bear the costs of the surveyors in equal shares. Provided that the Insured
Amount for the first 12 month period commencing on the date of this Deed is
agreed to be HK$13,168,333.
6.2 The Purchaser shall duly pay all premiums and other sums payable and take
all necessary steps to keep the BI Policy in full force and effect and shall
promptly deliver to the Vendor copies of all premium payment receipts and other
notices or information relating to the BI Policy. The Purchaser shall not,
without the prior written consent of the Vendor, waive, release, settle,
compromise or abandon any claim under the BI Policy.
6.3 On the occurrence of any of the following events or circumstances, namely:
(a) the Property or any part thereof at any time during the
Guaranteed Period being damaged or destroyed by Force Majeure so
as to be unfit for occupation and use such that under the terms
of the Letting Agreements the Rent/Fees thereby reserved or a
fair proportion thereof according to the nature and extent of the
damage sustained is suspended; or
(b) the Property or any part thereof at any time during the
Guaranteed Period being damaged or destroyed by Force Majeure so
as to be incapable of being let out
(i) the Purchaser shall forthwith make a claim under the BI Policy and
instruct the Insurer to pay the insurance proceeds to the Vendor in
full or, if the proceeds were paid to the Purchaser, the Purchaser
shall hold the same on trust for the Vendor and promptly pay the same
over to the Vendor in full;
(ii) if for any reason the Vendor does not receive the insurance proceeds
for the loss of income for a particular month within the next 4
months, the Purchaser shall pay to the Vendor an amount equal to such
insurance proceeds within 14 days and, for this purpose, the Purchaser
hereby irrevocably authorize the Vendor to deduct such sum from the
Guaranteed Monthly Rental next due and payable to the Purchaser
provided that the Purchaser shall not be under any obligation to pay
over insurance proceeds or to pay to the Vendor an amount equal to
such insurance proceeds if the BI Policy is vitiated or rendered
invalid or if payment of the policy moneys thereunder is refused as a
result of any act or default of the Agent; and
(iii) the Vendor shall continue to pay the Guaranteed Monthly Rental to the
Purchaser in full notwithstanding the occurrence of the events or
circumstances stated above for so long as the BI Policy remains in
full
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force and effect (unless the BI Policy is vitiated or rendered invalid
or if payment of the policy moneys thereunder is refused as a result
of any act or default of the Agent) and subject only to the deduction
(if applicable) referred to in paragraph (ii) above.
6.4 Any substantial building and/or renovation works to the Property or any part
thereof ("Substantial Works") shall require the joint approval of the Vendor and
the Purchaser. If Substantial Works are required (whether initiated by the
Purchaser or required by applicable law or relevant governmental authorities),
the Vendor and the Purchaser shall jointly appoint an independent firm of
qualified surveyors in Hong Kong to assess the loss of rental as a result of
such Substantial Works (the "Rental Loss") and the Vendor shall be entitled to
deduct the Rental Loss from the Guaranteed Monthly Rental next due and payable
following the assessment. The assessment of the surveyors shall be final and
binding on the parties and the costs of the surveyor shall be borne by the
Vendor and the Purchaser in equal shares.
7. Save with the prior written consent of the Vendor and the Purchaser (such
consents not to be unreasonably withheld or delayed), the Vendor shall procure
that the Agent shall not carry out any substantial building or renovation works
to the Property or any part thereof.
8. This Deed shall be a continuing undertaking for the Guaranteed Period unless
earlier terminated in any of the following events:- (i) on the termination by
the Purchaser (as the Owner under the Deed of Appointment) of the appointment of
the Agent under Clause 15 (a) of the Deed of Appointment or (ii) upon TMW Asia
Property Fund I GmbH & Co., KG. ceasing to be the ultimate beneficial owner of
at least 50% of the entire issued share capital of the Purchaser, or (iii) the
Purchaser ceasing to be the legal and/or beneficial owner of the Property, and
calculation of the amount payable by the Vendor to the Purchaser under Clause 2
shall be pro-rated to the date of expiry of the Guaranteed Period or the date of
termination, whichever is the earlier.
9. The last installment of the Guaranteed Monthly Rental shall be payable on the
last day of the Guaranteed Period or on the date on which this Deed is
terminated, whichever is the earlier, after deducting any sum provided in Clause
6 (if applicable). The Vendor shall provide an apportionment account to the
Purchaser on or before the date of payment of the last installment of the
Guaranteed Monthly Rental.
10. (1) In consideration of the Purchaser entering into the Agreement and
this Deed with the Vendor, the Guarantor hereby:-
(a) guarantees to the Purchaser the due and punctual performance and
observance by the Vendor of its obligations, commitments and
undertakings under and/or pursuant to this Deed;
(b) indemnifies the Purchaser against all and any actions,
proceedings, claims, liabilities, losses, damages, costs and
expenses which the Purchaser may suffer or incur as a result of
or in relation to any breach or default by the Vendor of its
obligations, commitments or undertakings under or pursuant to
this Deed.
(2) If and whenever the Vendor defaults for any reason whatsoever in
the
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performance of any of its obligation or liability undertaken or expressed to be
undertaken by it under or pursuant to this Deed, the Guarantor shall forthwith
upon written demand from the Purchaser perform (or procure performance of) and
satisfy (or procure the satisfaction of) the obligation or liability in regard
to which such default has been made in the manner prescribed by this Deed and so
that the same benefits shall be conferred on the Purchaser as it would have
received if such obligation or liability had been duly performed and satisfied
by the Vendor.
(3) As a separate and independent stipulation, the Guarantor agrees
that any obligation expressed to be undertaken by the Vendor (including, without
limitation, any moneys expressed, to be payable under this Deed) which may not
be enforceable against or recoverable from the Vendor by reason of any legal
limitation, disability or incapacity on or of the Vendor or any other fact or
circumstance shall nevertheless be enforceable against and recoverable from the
Guarantor as though the same had been incurred by the Guarantor and the
Guarantor was the sole or principal obligor in respect thereof and shall be
performed or paid or procured to be performed and paid by the Guarantor on
written demand from Purchaser.
(4) The obligations of the Guarantor under this Deed are and will
remain in full force and effect by way of continuing security until all
obligations, commitments, undertakings, warranties and indemnities under this
Deed shall have been performed or satisfied and no sum remains payable by the
Vendor under or pursuant to this Deed.
(5) The Guarantor shall not be discharged, nor shall `its liabilities
be affected, by anything, which would not discharge it or affect its liability
if it were the `sole principal debtor including, any time, indulgence, waiver or
consent at any time given to the Vendor or any other person; any written
amendment to any provision of this Deed (unless without consent of the
Guarantor), the making or absence of any demand on the Vendor or any other
person for payment, the enforcement or absence of enforcement of this Deed
against the Vendor, the insolvency, winding-up, amalgamation, reconstruction or
reorganisation of the Vendor (or the commencement' of any of the foregoing), the
illegality, invalidity or unenforceability of or any defect in any provision of
this Deed or any of the obligations of the Vendor, or by reason of any other
dealing, matter or thing which, but for the provisions of this Clause 10(5),
could or might operate to affect or discharge all or any part of the obligations
and liabilities of the Guarantor hereunder.
11. No failure or delay on the part of the Vendor or the Purchaser to exercise
any power, right or remedy under this Deed shall operate as a waiver thereof,
nor shall any single or partial exercise by the Vendor or the Purchaser of any
power, right or remedy preclude any other or further exercise thereof or the
exercise of any other power, right or remedy. The remedies provided in this Deed
are cumulative and are not exclusive of any remedies provided by law.
12. No assurance, security or payment which may be avoided under any enactment
relating to bankruptcy or winding up and no release, settlement or discharge
which may have been given or made on the faith of any such assurance, security
or payment shall prejudice or affect the rights of the Vendor or the Purchaser
to recover from the other party or from the Guarantor to the full extent of this
Deed.
13. This document is to be returnable to the Vendor for cancellation when all
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obligations, commitments, undertakings, warranties and indemnities under this
Deed shall have been performed or satisfied and no sum remains payable by the
Vendor under or pursuant to this Deed.
14. This Deed is personal to the Purchaser and neither the benefit nor the
obligations hereof shall be assigned by the Purchaser provided that the
Purchaser may assign its rights and benefits under this Deed in favour of the
mortgagees from time to time of the Property and the mortgagees of the Purchaser
may also assign the rights and benefits of this Deed when it exercises the power
of sale to the subsequent purchaser but not further or otherwise.
15. If the Purchaser terminates the appointment of the Agent pursuant to Clause
15(c) of the Deed of Appointment, the Guarantor shall nominate three companies
(which may be subsidiaries of the Guarantor) to act as the agent of the
Purchaser for the remainder of the Guaranteed Period on the same terms and
conditions as the Deed of Appointment. The Purchaser may in its discretion
appoint one of the companies nominated by the Guarantor or such other company as
the Purchaser may consider appropriate to be the replacement agent provided that
if the Purchaser elects to appoint a company not nominated by the Guarantor then
the Vendor and the Guarantor shall forthwith cease to have any further
obligations under this Deed.
16. This Deed shall be governed by and construed in accordance with the laws of
Hong Kong and the parties hereto agree to submit to the non-exclusive
jurisdiction of the courts of Hong Kong.
17. The Vendor hereby expressly excepts and reserves unto itself the right,
after the Guaranteed Period, at its own costs and expense to claim from the
Tenants/Licensees of the Property any arrears of rent and other monies due and
owing under the Letting Agreements up to and inclusive of the date of expiry of
the Guaranteed Period and all damages in respect of any breach of the Letting
Agreements before expiry of the Guaranteed Period. The Purchaser shall give all
reasonable assistance to the Vendor to recover such arrears of rent and other
monies from the Tenants/Licensees on condition that the Vendor pays all costs
and expenses in connection with such recovery The obligations of the Purchaser
contained in this Clause shall remain effective notwithstanding the expiry of
the Guaranteed Period. In the event the Tenants/Licensees shall settle and pay
to the Purchaser any arrears of rent (which accrued on or before the date of
expiry of the Guaranteed Period) the Purchaser shall account and refund to the
Vendor such arrears of rent collected by the Purchaser within 7 days of receipt.
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SCHEDULE
The Land
ALL THAT Portion of the Remaining Portion of Quarry Bay Marine Lot No.1 as shown
coloured Red on Plan 1 annexed to the Lease (as defined in the Agreement)
The Premises
ALL THOSE the following portions of the building known as Dorset House (which
comprises a 4 level basement car park, a podium and 2 contiguous tower blocks
above the podium) (the "Building") erected on Portions of Section S and the
Remaining Portion of Quarry Bay Marine Lot No. 1:
(1) All Those portions of the Building now known as PCCW Tower (formerly known
at the date of the Lease as Hong Kong Telecom Tower (Tower A)) as shown
coloured Yellow on Plans 2 to 51 annexed to an Agreement for Lease dated
21st May 1992 and registered in the Land Registry by Memorial No. 5342490
as supplemented by a Supplemental Agreement dated 13th December 2000 and
registered in the Land Registry by Memorial No. 8276621 and the Lease
dated 13th December 2000 and registered in the Land Registry by Memorial
No. 8276622 as rectified by a Deed of Rectification and Confirmation dated
12th March 2001 and registered in the Land Registry by Memorial No.
8340656 issued pursuant thereto (the Lease Memorial No. 8276622 as so
rectified "the Lease"); and
(2) All Those loading and unloading bays on the Ground Floor of the Building as
shown coloured Yellow hatched Black on Plan 6 annexed to the Lease; and
(3) All Those car parking spaces on Basement Levels 1 to 4 of the Building as
shown coloured Yellow hatched Black on Plans 2 to 5 annexed to the Lease
HELD for the residue of the term created under the Lease.
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IN WITNESS the parties hereto have caused these presents to be duly executed the
day and year first above written.
SEALED with the Common Seal of )
PARTNER LINK INVESTMENTS )
LIMITED and SIGNED by )
ALEXANDER XXXXXXX XXXXX AND ) /s/ ALEXANDER XXXXXXX XXXXX
XXX XXX XXXX, XXXXXX ) /s/ XXX XXX XXXX, XXXXXX
director(s) ) [SEAL]
whose signature(s) is/are )
verified by )
/s/ XXX XXX FAI
XXX XXX FAI
Solicitor, Hong Kong SAR
Woo, Xxxx, Xxx & Lo
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SEALED with the Common Seal of )
RICHLY LEADER LIMITED )
SIGNED by Xxxx Xxxx Ping ) /s/ Xxxx Xxxx Ping
director(s)/person(s) duly authorized by its ) [SEAL]
board of directors whose signature(s) is/are )
verified by )
/s/ Xxxxxx Xxx Xxxx, Xxxxxx
Xxxxxx Xxx Xxxx, Xxxxxx
Xxx and Partners
in association with
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
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SEALED with the Common Seal of )
IPSWICH HOLDINGS LIMITED and )
SIGNED by XXXXXXXXX XXXXXXX ) /s/ ALEXANDER XXXXXXX XXXXX
ARENA and XXX XXX XXXX, XXXXXX ) /s/ XXX XXX XXXX, XXXXXX
director(s) ) [SEAL]
whose signature(s) is/are )
verified by )
/s/ XXX XXX FAI
XXX XXX FAI
Solicitor, Hong Kong SAR
Woo, Xxxx, Xxx & Lo
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