Exhibit 4(rr)
THIS AGREEMENT is made the 21st day of December Two Thousand
and Four
BETWEEN the Vendor whose name(s), address(es)/registered office(s) and
identification number/business registration number are more particularly set out
in Part A of Schedule 1 hereto ("the Vendor") of the one part and the Purchaser
whose names(s), address(es)/registered office(s) and identification
number/business registration number are more particularly set out in Part B of
Schedule 1 hereto ("the Purchaser") of the other part.
WHEREAS :-
(A) Under and by virtue of 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"), Taikoo Place
Holdings Limited ("the Owner") as owner let and Xxxxxxx Limited ("the
Lessee") as lessee took the Land and the Premises more particularly
described in Part C of Schedule 1 hereto for the term of 999 years from and
including 2nd February 1882, less the last 3 days thereof ("the Term")
subject to the payment of rent and other amounts thereby reserved and to
the terms and conditions therein contained including the restriction on
alienation contained in Clause 5.9 of the Lease.
(B) Under and by virtue of an Assignment dated 6th September 2002 and
registered in the Land Registry by Memorial No.8777848, the Lessee assigned
to the Vendor by way of sale the Land and the Premises held by the Lessee
under the Lease for the residue of the Term created under the Lease subject
to the rent and other amounts payable under the Lease and to the covenants,
conditions and provisos contained in the Government Lease of Quarry Bay
Marine Lot No.1 ("the Government Lease") and the Lease.
(C) The Vendor has agreed to sell and the Purchaser has agreed to purchase the
Land and the Premises held by the Vendor under the Lease for the residue of
the Term created under the Lease subject to the rent and other amounts
payable under the Lease and to
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the covenants, conditions and provisos contained in the Government Lease
and the Lease in the manner hereinafter appearing.
NOW IT IS HEREBY AGREED as follows :-
1. 1.1 The Vendor shall sell and the Purchaser shall purchase All
That the Land and the Premises held by the Vendor under the
Lease (the Land and the Premises held by the Vendor under the
Lease are hereinafter referred to as "the Property") together
with all the estate rights title benefit interest privileges
and appurtenances thereunto belonging or appertaining
including the furniture, chattels, fittings, facilities,
equipment and all other effects now installed therein at the
date hereof (collectively "Furniture and Fittings") for the
residue of the Term created under the Lease subject to the
payment of the rent and other amounts payable under the Lease
and subject also to the covenants, conditions and provisos
contained in the Government Lease and the Lease at the
purchase price referred to in Clause 2 hereof ("the Purchase
Price").
1.2 The Vendor shall assign the Property by one assignment to the
Purchaser which shall be prepared by and at the expense of the
Purchaser.
1.3 The Purchaser shall not sub-sell the Property or transfer the
benefit of this Agreement, whether by way of a direct or
indirect reservation, right of first refusal, option, trustee
or power of attorney, nomination or any other method,
arrangement or document of any description, conditional or
unconditional or enter into any agreement so to do before the
completion of the sale and purchase and execution of the
Assignment to the Purchaser and the Purchaser hereby covenants
to that effect with the Vendor. The Purchaser shall not be
entitled to required the Vendor to assign the Property to
anyone other than the Purchaser. TMW Asia Property Fund I GmbH
& Co., KG. shall remain the ultimate beneficial owner of not
less than 50% of the entire issued share capital of the
Purchaser on completion.
1.4 The Property is sold and will be assigned subject to and with
the benefit of all rights of way, lights, drainage and other
easements and quasi-easements and rights of adjoining owners
(if any) and/or the Government adversely or beneficially
affecting the Property.
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1.5 For the purpose of completing the purchase herein, the
Purchaser shall as from completion comply with all the terms
and conditions of the Lease including but not limited to enter
into direct covenants with the Owner to perform and observe
all the Lessee's covenants and provisions of the Lease
including without limitation the restriction on alienation
contained in Clause 5.9 of the Lease. The Purchaser shall
before completion enter into direct covenants with the Owner
in accordance with Clause 5.9 of the Lease.
2. The Purchase Price of the Property shall be in the sum set out in Part
H of Schedule 1 hereto which shall be paid and satisfied by the
Purchaser to the Vendor in the manner set out in Schedule 2 hereto.
3. 3.1 Completion shall take place at the offices of Messrs Woo,
Xxxx, Xxx & Lo at Room 2801, Sun Hung Xxx Xxxxxx, Xx.00
Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx on the date specified in Part
G of Schedule 1 hereto between the hours of 9:30a.m. and
5:00p.m. on weekdays and 9:30a.m. and 1:00p.m. on Saturdays
Provided that the Vendor shall have the right to call for
early completion by giving not less than 14 days notice in
writing to the Purchaser whereupon completion shall take place
on the date of expiry of such notice Provided Further that
such notice may not be served earlier than 25 January 2005.
The parties hereto expressly agree that completion of the sale
and purchase shall be implemented by way of the usual
solicitors' undertaking subject to the usual Law Society
Qualifications.
3.2 Notwithstanding Clause 3.1 above, either party may by written
notice served to the other party not less than seven business
days before completion request for formal completion in which
case formal completion shall take place and the balance of
purchase price shall be paid by cashier orders.
4. Time shall in every respect be of the essence of this Agreement.
5. 5.1 Completion of the sale and purchase under this Agreement is
subject to and conditional upon the compliance by Pacific
Century Premium Developments Limited (the holding company of
the Vendor), with the requirements of The
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Stock Exchange of Hong Kong Limited ("the Stock Exchange") and
in particular the requirements under The Rules Governing the
Listing of Securities on the Stock Exchange ("the Listing
Rules") in relation to this Agreement and the transactions
contemplated under this Agreement, including without
limitation (if required) the passing of a resolution by the
shareholders of Pacific Century Premium Developments Limited
at a general meeting approving this Agreement and the
transactions contemplated under this Agreement in accordance
with the Listing Rules.
5.2 In the event that the condition precedent referred to in
Clause 5.1 hereof is not fulfilled on or before 31 January
2005, or such later date as the parties hereto may agree, this
Agreement shall immediately determine in which event :-
(a) all the deposits and/or part payment (if any) of the
Purchase Price paid by the Purchaser to the Vendor
hereunder shall be returned to the Purchaser within 7
days with interest;
(b) if possession of the Land and/or the Premises or any
part(s) thereof has already been delivered by the
Vendor to the Purchaser, the Purchaser shall
re-deliver the same to the Vendor within 7 days
thereof; and
(c) such determination shall not prejudice any rights
and/or remedies that either party may have against
the other in respect of any antecedent breach of
obligations.
6. 6.1 (a) The Property is to be assigned to the Purchaser upon
completion with good title and free from
encumbrances.
(b) The Purchaser has reviewed the Vendor's title to the
Property before signing this Agreement and the
Purchaser shall be deemed to have accepted the
Vendor's title to the Property as at the date hereof
upon signing this Agreement and no objections and
requisitions (if any) may be made by the Purchaser in
respect of such title to the Property.
6.2 For proof of title purposes, the Vendor shall undertake to get
all the assurance and act (if any) which shall be required for
getting in, surrendering or
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releasing any outstanding estate, right, title or interest or
for completing or perfecting the Vendor's title or for
stamping any unstamped or insufficiently stamped document or
for any other purpose shall be prepared, made and done by and
at the expenses of the Vendor.
6.3 The Vendor shall not be required to prove that the Property
sold corresponds with the description contained in the
muniments of title, and if there shall be any immaterial
error, mis-statement, mis-description or omission, the same
shall not annul the sale nor entitle the Purchaser to be
discharged from his purchase, nor shall any compensation be
allowed or paid by the Vendor in respect thereof.
7. 7.1 The Property shall be sold to the Purchaser on an "as is"
basis. The Purchaser acknowledges that it has been invited to
inspect the Property or has caused it to be inspected on its
behalf. The Purchaser is deemed to have full knowledge of the
physical state and condition of the Property.
7.2 The Vendor gives no warranty expressly or by implication as
to:
(a) the fittings and finishes or the installations and
appliances (if any) incorporated in the Property or
in the building or buildings of which the Property
form(s) part;
(b) the state and condition of the Property or of the
said building or buildings or of the fittings,
finishes, installations, chattels or appliances
therein or thereof;
(c) the composition of the said building or buildings or
the nature or manner of its or their construction;
(d) the floor area of the Property;
(e) the permitted user of the Property; and
(f) the fitness or otherwise of the Property for
development or re-development.
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7.3 The Vendor gives no warranty whatsoever whether the Property
is included in any lay-out plans (draft or approved) under the
Town Planning Ordinance (Cap.131). The Purchaser shall in
respect of the matters aforesaid be responsible for making its
own inquiry and investigation regarding any provisions or
redevelopment restrictions affecting the Property under the
said Ordinance and/or any other relevant ordinance for the
time being in force and the Purchaser is deemed to have agreed
to purchase the Property subject to such provisions and/or
restrictions, if any, and the Purchaser shall be bound to
complete the purchase notwithstanding any notice which may be
given or issued or published in pursuance of the said
Ordinance and/or any other relevant ordinance for the time
being in force after the signing of this Agreement.
7.4 The Vendor does not warrant or represent that each and every
fixture, fitting, erection, structure and building works (if
any) on the Property or any part or parts thereof is erected
in all respects in compliance with the Buildings Ordinance,
the Fire Safety (Commercial Premises) Ordinance and/or their
respective subsidiary legislations and/or any other
legislation or regulation. The Vendor shall be under no
liability whatsoever if it is discovered at any time (whether
before or after completion of the purchase) that the present
use of the Property or any part or parts thereof is not a
permitted use or that at the date hereof or before completion,
there is or are any erection, structure, fittings, fixture
and/or building works (if any) in any part or parts of the
Property which is in contravention of the Buildings Ordinance,
the Fire Safety (Commercial Premises) Ordinance and their
respective subsidiary legislations and/or other legislation or
regulation, and the Vendor shall not be held responsible for
the demolition, alteration, removal, reinstatement,
reinforcement and/or any other works relating to such illegal
erection, structure, fixture, fittings and/or building works
(if any) or for any costs and expenses of and incidental
thereto whether or not such works are required by the Building
Authority or the incorporated owners or the manager of the
building or buildings of which the Property form(s) part or
any other public authorities or body or otherwise. The
Purchaser shall not be entitled to rescind this Agreement or
to annul the sale or to claim any compensation or damages from
the Vendor by reason of or in connection with any such
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contravention.
7.5 The Vendor gives no warranty whatsoever as to whether the
Property is affected by any notice under the Government Lands
Resumption Ordinance, Cap.124 or the Mass Transit Railway
(Land Resumption and Related Provisions) Ordinance Cap.276 or
any other form of notice of similar nature. The Purchaser
shall be personally responsible for making its own inquiry and
investigation in respect of the matters aforesaid and of any
provisions or redevelopment restrictions affecting the
Property under any Ordinance. If it shall be ascertained at
any time before completion of the purchase that the Property
is affected by any of the said Ordinances, the Purchaser is
deemed to have agreed to purchase the Property subject to such
provisions and/or restrictions, if any, and the Purchaser
shall be bound to complete the purchase notwithstanding any
notice which may be given or issued or published in pursuance
of any Ordinance after signing of this Agreement.
7.6 The Purchaser hereby expressly declares and agrees to purchase
the Property subject to any notice(s) and/or order(s) from
time to time and at any time issued or to be issued by the
Government or other competent authority or the manager of the
Property either requiring, without limitation, the Vendor to
demolish, alter, reinstate, repair, renovate or improve any
part of the Property and/or requiring the Vendor as one of the
co-owners of the Property to effect any demolition,
alteration, reinstatement, repair, renovation or improvement
to any common part or facility of the building or buildings of
which the Property form(s) part and/or to any adjacent
slope(s) the repairing obligation of which lies with the
co-owners of the Property and/or to contribute towards the
expenses incurred or to be incurred in connection with all or
any of the foregoing. All costs and expenses for such
demolition, alteration, reinstatement, repair, renovation or
improvement or contribution shall be borne by the Purchaser
absolutely and the Purchaser shall indemnify the Vendor
against non-payment.
8. 8.1 All stamp duties (whether ad valorem or otherwise) and
land registration fees payable in connection with this sale
and purchase (including but not limited to the stamp duty and
land registration fees payable on the preliminary agreement
for sale and purchase as specified in Part F of Schedule 1
hereto
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("the Preliminary Agreement"), this Agreement and the
subsequent Assignment made pursuant to this Agreement) shall
be borne by the Purchaser absolutely. In the event of the
consideration stated in the Preliminary Agreement, this
Agreement and the subsequent Assignment not being accepted by
the Collector of Stamp Revenue as representing the true value
of the Property the additional stamp duties charged by him in
accordance with his valuation of the Property shall be borne
by the Purchaser absolutely who shall indemnify and keep the
Vendor fully indemnified against any loss or damage suffered
by the Vendor resulting from any delay or default in payment
of the said stamp duty.
8.2 The Purchaser undertakes to deposit the appropriate amount in
respect of stamp duty with the Purchaser's solicitors at
completion and further undertakes to procure that the
Purchaser's solicitors shall confirm with the Vendor's
solicitors that such appropriate amount has been so deposited
with them together with documentary evidence in support.
9. Each party shall bear his own solicitors' costs of and incidental to
this Agreement and the subsequent Assignment.
10. 10.1 The Vendor declares that Messrs. Woo, Xxxx, Xxx & Lo are the
Vendor's agent for the purposes of receiving all monies
payable to the Vendor pursuant to this Agreement including the
balance of the Purchase Price payable upon completion.
10.2 The Vendor further declares that the payment to such agent of
any deposit, instalments of the purchase price and the balance
thereof (if any) shall be a full and sufficient discharge of
the Purchaser's obligations hereunder.
10.3 The Vendor may revoke the authority of the agent and appoint
another solicitor as an agent in his place. No such revocation
shall be valid unless:
(a) it is in writing addressed to the Purchaser;
(b) it is delivered to the Purchaser care of his
solicitors at least seven clear days prior to
completion; and
(c) it specifically identifies this Agreement.
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11 If, between the date of this Agreement and completion, the Property or
any part thereof is damaged or destroyed due to fire, earthquake, or
other calamities, force majeure or Act of God, the following provisions
shall apply:
(a) if the total costs and expenses for reinstating the damaged or
destroyed portion of the Property together with all
professional fees in relation thereto (the "Reinstatement
Costs") are less than HK$200,000,000, the Purchaser shall be
obliged to pay the balance of the purchase price and complete
the purchase of the Property in accordance with Clause 3
above;
(b) if the Reinstatement Costs are HK$200,000,000 or more, the
Purchaser shall have the option to either (i) proceed to
completion in accordance with Clause 3 above; or (ii) postpone
completion until after the relevant damaged or destroyed
portion has been reinstated to its original condition prior to
such damage or destruction by, and at the cost of, the Vendor.
Such postponed completion shall take place on a date specified
by the Vendor in a written notice to the Purchaser provided
that (1) the completion of the reinstatement work shall be
completed on or before 31 December 2005 and the Vendor shall
produce evidence by way of a copy of a certificate of fitness
for occupation from an Authorized Person (as defined in the
Buildings Ordinance) appointed by the Vendor for such
reinstatement work; (2) the specified date must not be less
than 30 days from the date of such notice; and (3) if the
reinstatement is not completed by 31 December 2005 (in respect
of which the time shall be of the essence) the Purchaser shall
have the right to terminate this Agreement by written notice
to the Vendor and not complete the purchase of the Property
hereunder and all moneys paid towards the purchase price by
the Purchaser to the Vendor pursuant to the provisions of this
Agreement shall be forthwith refunded by the Vendor to the
Purchaser.
The Purchaser shall take out sufficient insurance over the Property
effective from the date of this Agreement covering damage and
destruction due to reasons stated above as a minimum. If the Purchaser
is obliged to or elects to complete the purchase of the Property (other
than a postponed completion under paragraph (b)(ii) above), the
Purchaser shall reinstate the Property at its own costs.
The Reinstatement Costs shall be determined by taking the arithmetic
mean of the
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written quotations given by three independent firms of qualified
surveyors in Hong Kong as being the costs for reinstating the relevant
damaged or destroyed portion. The three firms are Xxxxx Xxxxxxx & Seah
(HK) Limited, Xxxxxx and Xxxxxx Chartered Quantity Surveyor Limited and
WTP (Hong Kong) Limited and the fees and expenses of such firms shall
be borne by the Vendor and the Purchaser in equal shares.
12. Should the Purchaser fail to complete the purchase of the Property in
accordance with the terms and conditions herein contained the Vendor
may (without being obliged to tender an Assignment to the Purchaser)
forthwith determine this Agreement and the Vendor shall thereupon be
entitled to re-enter upon the Property and repossess the same if
possession shall have been given to the Purchaser free from any right
or interest of the Purchaser therein and the Vendor shall be entitled
to forfeit all the said deposit or further deposits or instalments of
the Purchase Price paid to the Vendor absolutely.
13. Upon determination or rescission of this Agreement pursuant to any
provision herein, the Vendor may resell the Property either as a whole
or in lots and either by public auction or by tender or by private
contract or partly by one and partly by the other(s) of such methods
subject to such stipulations as to title or otherwise as the Vendor may
think fit and any increase in price on resale shall belong to the
Vendor. Without prejudice to the Vendor's right to recover the actual
loss which may flow from the Purchaser's breach of this Agreement after
taking into account the amount of the said deposit forfeited by the
Vendor, on such resale any deficiency in price shall be made good and
all reasonable expenses attending such resale or any attempted resale
shall be borne by the Purchaser and such deficiency and expenses shall
be recoverable by the Vendor. This Clause shall not preclude or be
deemed to preclude the Vendor from taking other steps or remedies to
enforce the Vendor's rights hereunder or otherwise or prevent the
Vendor from recovering, in addition to the above, damages representing
interest paid or lost by him by reason of the Purchaser's failure. On
the exercise of the Vendor's right to determine or rescind this
Agreement pursuant to any provision herein, the Vendor shall have the
right, if this Agreement shall have been registered at the Land
Registry, to register at the Land Registry an instrument signed by the
Vendor alone evidencing such determination or rescission as aforesaid
of the sale of the Property and to vacate the registration of this
Agreement and on the signing of the said instrument by the Vendor, the
Purchaser shall be deemed to have
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been divested of any interest in the Property under this Agreement.
14. In the event of the Vendor failing to complete the sale of the Property
in accordance with the terms hereof, all moneys paid by the Purchaser
to the Vendor pursuant to the provisions of this Agreement shall be
forthwith returned to the Purchaser who shall also be entitled to
recover from the Vendor damages (if any) which the Purchaser may
sustain by reason of such failure on the part of the Vendor and it
shall not be necessary for the Purchaser to tender an Assignment to the
Vendor for execution.
15. Nothing in this Agreement shall be so construed as to prevent either
the Vendor or the Purchaser from bringing an action and obtaining a
decree for specific performance of this Agreement either in lieu of the
aforesaid damages or in addition to such damages as the party bringing
such action may have sustained by reason of the breach by the other
party to this Agreement and it shall not be necessary for the Purchaser
to tender an Assignment to the Vendor for execution before bringing
such action for specific performance.
16. Notwithstanding anything herein provided, if the date fixed for
completion of the sale and purchase of the Property and/or any of the
date(s) stipulated for payment herein shall fall on a day which is not
a business day (defined as a day on which The Hongkong and Shanghai
Banking Corporation Limited is open for business in Hong Kong) or shall
fall on a day on which typhoon signal No.8 or above or black rainstorm
signal is hoisted in Hong Kong at any time between 9:30a.m. to 5:00p.m.
on a weekday or at any time between 9:30a.m. to 1:00 p.m. on a
Saturday, such date for completion or date(s) of payment (as the case
may be) shall automatically be postponed to the next business day or
such next succeeding day on which no typhoon signal No.8 or above or
black rainstorm signal is hoisted (as the case may be).
17. Pursuant to Section 29B of the Stamp Duty Ordinance Cap.117, the Vendor
and the Purchaser hereby state the specified information in Schedule 1
hereto to the best knowledge and belief of both parties.
18. The parties hereto hereby declare that they fully understand and
acknowledge that no other date than the date of the Preliminary
Agreement, this Agreement and the date of the Assignment pursuant
thereto (which respective dates will be filled in the Questionnaire
Form I.R.S.D. 26 for stamping purpose) may be claimed as the relevant
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dates for valuation of the Property for stamping.
19. If the Purchaser makes default in the payment of any money ("the
money") or any part thereof to be payable, transferred or refunded to
the Vendor hereunder (including but not limited to the deposit(s), the
balance of the Purchase Price, utility and/or management deposit(s), if
any, and money payable under the apportionment account) on the relevant
due date(s), without prejudice to any other rights or remedies of the
Vendor against the Purchaser, the Vendor may at its absolute discretion
charge interest on the money or such part thereof as shall for the time
being remain unpaid at the rate of 2% per annum over the best lending
rate from time to time stipulated by The Hongkong and Shanghai Banking
Corporation Limited from the date or respective dates when the money or
any part thereof falls due or becomes payable until the date(s) of
payment. Such payment of interest shall be in addition to and shall be
without prejudice to any other rights and remedies which the Vendor may
have against the Purchaser on account of the Purchaser's default in
payment on the due date(s) under this Agreement.
20. 20.1 In respect of each payment of Purchase Price or deposit(s) or
any part thereof required to be made hereunder, the party
making such payment ("the Payer") shall deliver to the party
to whom such payment is to be made ("the Payee") a cashier
order issued by a licensed bank in Hong Kong or a solicitor's
cheque for the relevant amount.
20.2 Where the purchase price or any part thereof is required to be
applied by the Payee to discharge an existing mortgage, charge
or encumbrance, or to pay any person(s) who will be a party to
the assignment on completion of the sale and purchase herein,
the Payee or the Payee's solicitors shall be entitled to
require the Payer to split such payment and deliver to the
Payee's solicitors one or more cashier order(s) or solicitor's
cheque(s) issued in favour of the person(s) or party(ies)
entitled to such payment(s) and a separate cashier order or a
solicitor's cheque in favour of the Payee or the Vendor's
solicitors for the balance. The provisions of Clause 20.1
hereof shall apply to such cashier orders and solicitor's
cheques.
20.3 The Payer shall not be deemed to have discharged the
obligation to make payment hereunder unless in making such
payment, the Payer also complies
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with the provisions of this Clause 20.
21. 21.1 Any notice, request or other communication given by or on
behalf of any party hereto pursuant to or in connection with
this Agreement shall be deemed to have been validly given if
addressed to the party to whom the notice is given or such
party's solicitors. Any such notice, request, or other
communication, if addressed to the party to whom it is given
at such party's address in Hong Kong herein mentioned or such
other address in Hong Kong as may from time to time be
notified in writing by such party to the other party or his
solicitors, or if addressed to the solicitors of such party at
its office address, shall be deemed to have been validly
given:-
(a) if delivered by hand, at the time of such delivery;
and
(b) if sent by ordinary prepaid post, forty-eight(48) hours
after the date of posting.
21.2 The Vendor hereby irrevocably appoints PCPD Corporate Services
Limited whose registered office is situate at Units 701-705,
Xxxxx 0, Xxxxxxxxx 0, 000 Xxxxxxxxx Xxxx, Xxxx Xxxx to be its
agent for the purpose of accepting service of any process or
writ of action in respect of any proceedings in the Hong Kong
Courts in connection with this Agreement.
22. Words importing the singular number shall include the plural number and
vice versa and words importing the masculine gender shall include the
feminine gender and the neuter gender.
23. The parties hereto agree and declare that this Agreement sets out the
full agreement between the parties and that their rights and
liabilities relating to the sale and purchase of the Property are
governed solely by this Agreement and that neither of them is bound by
any statements or representations not contained herein.
24. The Property comprises non-residential property within the meanings of
Section 29A(1) of the Stamp Duty Ordinance (Cap.117).
25. 25.1 The Property is sold subject to and with the benefit of
the existing tenancies, lettings and licences (collectively,
"the Tenancies"), brief particulars of which are set out in
Schedule 3 hereto. For the avoidance of doubt, such
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particulars are for the Purchaser's information only. The
Purchaser hereby acknowledges that it has been supplied with
copies of the leases/tenancy agreements/licences/licence
agreement in respect of the Tenancies and has inspected or
deemed to have inspected the same. The Purchaser is deemed to
purchase the Property with full knowledge of the Tenancies and
shall take the Property subject to the rights of the tenants
thereunder or by reason thereof.
25.2 The Vendor gives no warranty as to the accuracy of the
particulars of the Tenancies set out in Schedule 3 hereto,
whether there is any sub-tenancy from each of the tenants and
the particulars thereof, if any, and gives no warranty as to
the amount of rent lawfully recoverable from the tenants and
the effect of any legislation in relation to the Tenancies or
as to compliance with any legislation affecting the same. No
error or mis-statement in Schedule 3 regarding the Tenancies
shall give rise to any right of or action by the Purchaser for
rescission compensation or damages. The Vendor warrants that
apart from those tenancies set out in Schedule 3, the Vendor
has not granted or agreed to grant any other tenancy or lease
or licence in respect of the whole or any part of the
Property.
25.3 If any part of the Tenancies shall expire or shall for any
reason terminate and the relevant tenant(s) shall have
delivered vacant possession of such part of the Property prior
to the completion date, the Vendor shall deliver vacant
possession of such part of the Property to the Purchaser on
completion subject to the terms of the Deed of Appointment of
Leasing Agent and Manager referred to in Clause 26 hereof.
25.4 The Vendor hereby expressly excepts and reserves unto itself
the right, after as well as before completion, to claim from
the tenants of the Property any arrears of rent and other
monies due and owing under the Tenancies up to and inclusive
of the actual date of completion and all damages in respect of
any breach of the Tenancies before completion. The Purchaser
shall give all reasonable assistance to the Vendor to recover
such arrears of rent and other monies from the tenants on
condition that the Vendor bears all costs and expenses
including legal costs in connection with such recovery. The
obligations of the Purchaser contained in this Clause 25.4
shall remain effective notwithstanding completion of the sale
and purchase herein and shall not be merged or otherwise
extinguished by the subsequent Assignment. In the event the
tenants shall settle
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and pay to the Purchaser any arrears of rent (which accrued
before the date of Completion) after completion the
Purchaser shall account and refund to the Vendor such
arrears of rent collected by the Purchaser within 7 days of
receipt.
25.5 On completion, the Vendor shall account to the Purchaser for
the deposit held by the Vendor pursuant to the terms of the
relevant lease or tenancy agreement of the Tenancies, subject
to any deduction which (pursuant to the terms of such lease or
tenancy agreement) may be made by the Vendor therefrom in
respect of any loss, damage, costs or expenses which may be
sustained by the Vendor as a result of any non-observance or
non-performance of such lease or tenancy agreement by the
relevant tenant. The Purchaser shall give and execute an
undertaking to the relevant tenant that the Purchaser shall
deal with such deposit in accordance with the relevant lease
or tenancy agreement of the Tenancies. The Purchaser
undertakes to produce a duplicate copy of such undertaking to
the Vendor.
25.6 The Vendor also reserves the right prior to completion to
renew/extend any of the Tenancies and/or grant any new
tenancies of any part of the Property on such terms and
subject to such conditions as the Vendor acting in good faith
shall in its absolute discretion deems fit without the
necessity of seeking any prior approval from the Purchaser
Provided that each such renewal, extension or grant of any new
tenancy shall not extend beyond the expiry date of the
Guaranteed Period (i.e. 5 years from the date of completion)
and shall not contain any option to renew which if exercised
will extend beyond the said date or any option to purchase by
the tenants. The Vendor shall notify the Purchaser of the
details of such renewal or new tenancy, as soon as the offer
letters have been issued and accepted.
25.7 The Vendor further reserves the right prior to completion to
serve any notices to quit / termination or further notices to
quit / termination on the tenants concerned or enter into any
agreement with the tenants and/or any occupants of any part of
the Property to surrender such part of the Property and accept
any such surrender on such term as it thinks fit prior to
completion and further reserves the rights to perform the
obligations on its part of such agreement to surrender after
completion.
15
26. 26.1 It is an essential condition of this Agreement that (a) the
Purchaser shall upon completion enter into a Deed of
Appointment of Leasing Agent and Manager with Pacific Century
Paramount Real Estate Company Limited in the form set out in
Appendix I hereto and agreed between the parties; and (b) the
Vendor and Ipswich Holdings Limited shall upon completion
execute a Rental Guarantee in the form set out in Appendix II
hereto and agreed between the parties.
26.2 The Purchaser hereby irrevocably authorizes and directs the
Vendor to pay to the Agent the rental deposits payable by the
Vendor to the Purchaser pursuant to Clause 25.5 hereof. The
Purchaser further declares that the payment to the Agent as
aforesaid shall be a full and sufficient discharge of the
Vendor's obligation to pay the rental deposit to the Purchaser
under Clause 25.5 hereof.
27. The Vendor shall from time to time before completion upon
reasonable prior notice of the Purchaser provide access of the
untenanted portion of the Property to the Purchaser (with or without
any surveyor or bank staff of the Purchaser's mortgagee bank) for the
purpose of viewing the untenanted portion of the Property and/or
carrying out valuation and/or carrying on ongoing due diligence on the
Tenancies. The Vendor shall also provide access of the untenanted
portion of the Property to the Purchaser immediately before completion
to verify vacant possession of the untenanted portion of the Property.
The Vendor shall use reasonable endeavours to arrange inspection of
those tenanted portion of the Property.
28. The rents and profits shall be received and all outgoings shall be
discharged by the Vendor up to and inclusive of the actual day of
completion, and as from but exclusive of that day all outgoings shall
be discharged by the Purchaser. Subject to the production of the
apportionment account to be prepared by the Vendor 10 business days
before completion together with the relevant receipts or evidence of
payment, the apportioned amount shall be settled on completion.
29. The Vendor covenants with the Purchaser that after the signing of this
Agreement, the Vendor shall not assign, mortgage, charge or otherwise
dispose of or cause or permit any encumbrance to be created against the
Property or any part thereof save and except lettings and tenancies to
be created by the Vendor in accordance with Clause 25.6 of this
Agreement before completion.
16
30. The Vendor declares and warrants that (save and except the disclosed
tenancies in Schedule 3) there is no third party having any interest
over the Property. In the event of there being any valid third party
claim to the Property which the Vendor is unable to remove on or before
completion, the Purchaser shall have the option to rescind this
Agreement whereupon all deposit and purchase monies paid by the
Purchaser to the Vendor hereunder shall be returned to the Purchaser
but without prejudice to the Purchaser's rights against the Vendor for
all losses and damages suffered by the purchaser and it shall not be
necessary for the Purchaser to tender an assignment to the Vendor for
execution.
31. The Vendor shall use its reasonable endeavour to assist the Purchaser
in the Purchaser's discussion with the Owner for the entering into a
"Deed of Variation of Lease" with the Owner to vary the terms of the
Lease in the following manner:-
(a) to substitute the term "Telecom Subsidiary" and the meaning
thereof specified in the Lease by the term "Lessee Subsidiary"
which shall mean "a company which is a subsidiary whether
directly or indirectly of the Lessee";
(b) to replace the terms "Telecom Subsidiary" mentioned in the
Lease by "Lessee Subsidiary" throughout;
PROVIDED THAT nothing contained in this Clause shall amount to any
warranty by the Vendor as to whether the Owner would agree to enter
into the said Deed of Variation nor impose any obligation on the part
of the Vendor to procure the successful execution of the said Deed of
Variation or to incur any additional legal costs and expenses for the
purpose of the preparation and execution of the said Deed of Variation
and PROVIDED FURTHER THAT all costs and expenses in relation to the
preparation and execution of the said Deed of Variation shall be borne
by the Purchaser absolutely.
32. 32.1 Upon completion the Vendor may serve notice(s) ("Notice") to
the service providers and contractors ("Contractor(s)") under
existing maintenance and/or services contracts ("Contract(s)")
for the provision of electrical mechanical lift fire cleaning
security and other services for the Property requesting the
17
Contractors to consent to the assignment and novating of the
Vendor's rights and obligations under the Contracts to the
Purchaser.
32.2 If the Contractor(s) does not consent to the
assignment/novation referred to in Clause 32.2 above or if no
response is received from the Contractor(s) within 3 months
from the date of service of the Notice, the Vendor may give
notice to the Contractor(s) and terminate the relevant
Contract(s) if the Vendor has the right to do so thereunder.
32.3 In the event one or more Contracts are terminated under Clause
32.2 above, the Purchaser shall enter into such replacement
Contract(s) with such service provider(s) and on such terms
and conditions as the Vendor may request provided that such
replacement Contract(s) are for a term of not more than 5
years from the date of completion of the sale and purchase
herein or they contain a right on the part of the Purchaser to
terminate by giving notice without penalty or damages.
18
S C H E D U L E 1
------------------
PART A
------
The Vendor
----------
Name : PARTNER LINK INVESTMENTS LIMITED
Registered Office : X.X. Xxx Xx.000, Xxxxxxxx Incorporations Centre, Road Town,
Tortola, British Virgin Islands
Business Registration Number : 3296317
PART B
------
The Purchaser
-------------
Name : RICHLY LEADER LIMITED
Registered Office : Xxxx X, 00xx Xxxxx, Xxxx of Xxxxx Xxxxx, Xx. 0 Xxxxxx Xxx,
Xxxx Xxxx
Business Registration Number : 35095705
PART C
------
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
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 Hongkong Telecom Tower (Tower A)) as shown
coloured Yellow on Plans 2 to 51 annexed to 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
19
PART D
------
The Property is non-residential property within the meanings of Section
29A(1) of the Stamp Duty Ordinance Cap.117.
PART E
------
This Agreement was made on the date as specified on page one.
PART F
------
The Preliminary Agreement
-------------------------
This Agreement was preceded by a preliminary agreement made between the
same parties hereto and on the same terms on 19 November 2004.
PART G
------
The agreed date for a conveyance on sale pursuant to this Agreement shall
be on or before 3 March 2005.
PART H
------
The agreed consideration for the conveyance on sale that is to, or may,
take place pursuant to this Agreement is DOLLARS TWO THOUSAND EIGHT HUNDRED AND
EIGHT MILLION ONLY HONG KONG CURRENCY (HK$2,808,000,000).
PART I
------
Amount or value of any other consideration which each person executing the
document knows has been paid or given or has been agreed to be paid or given to
any person for or in connection with the agreement for sale or any conveyance on
sale (excluding legal expenses and estate agent's commission): Nil
20
S C H E D U L E 2
------------------
Payment of Purchase Price
-------------------------
The Purchase Price shall be paid by the Purchaser to the Vendor in the
manner as follows:
(a) The Purchaser shall pay to the Vendor the sum of HK$280,800,000 being
deposit and in part payment of the Purchase Price upon signing hereof.
(b) The balance of the Purchase Price in the sum of HK$2,527,200,000 shall be
paid by the Purchaser to the Vendor upon completion.
21
SIGNED by XXXX TIN FAN, XXXXXXX ) For and on behalf of
) PARTNER LINK INVESTMENTS LIMITED
for and on behalf of the Vendor )
in the presence of ) --------------------------------
Authorised Signature(s)
Xxxxx Y. L. Xxxx
Solicitor
Hong Kong SAR
RECEIVED on or before the day and year first above)
written of and from the Purchaser the above )
mentioned deposit of DOLLARS TWO HUNDRED )
EIGHTY MILLION EIGHT HUNDRED )
THOUSAND ONLY Hong Kong Currency )HK$280,800,000
For and on behalf of
PARTNER LINK INVESTMENTS LIMITED
--------------------------------
Authorised Signature(s)
________________________________
the Vendor
I hereby verify the sigature of
Xxxx Tin Fan, Xxxxxxx
Xxx Xxx Fai
Solicitor, Hong Kong SAR
Luoo, Xxxx, Xxx & Lo
22
SIGNED by ) For and on behalf of
XXXXX XXX XXXX ) PARTNER LINK INVESTMENTS LIMITED
)
for and on behalf of the Purchaser ) --------------------------------
whose signature(s)is/are verified by :- ) Authorised Signature(s)
Xxxxxx Xxx Xxxx, Xxxxxx
Xxx and Partners
In association with
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Solicitor, Hong Kong, SAR
23
A P P E N D I X I
------------------
Deed of Appointment of Leasing Agent and Manager
------------------------------------------------
24
Appendix I
----------
THIS DEED is made this day of
BETWEEN RICHLY LEADER LIMITED a company incorporated in Hong Kong whose
registered office is situate at [ ]
(hereinafter called "the Owner") of the one part; And PACIFIC CENTURY PARAMOUNT
REAL ESTATE COMPANY LIMITED a company incorporated in Hong Kong with its
registered office situate at Units 701-5, Xxxxx 0, Xxxxxxxxx 0, 000 Xxxxxxxxx
Xxxx, Xxxx Xxxx (hereinafter called "the Agent") of the other part.
WHEREAS:-
(A) By an Agreement for Sale and Purchase dated [ ] and made between PARTNER
LINK INVESTMENTS LIMITED ("the Vendor") as vendor and the Owner as purchaser
("the Agreement"), the Vendor agreed to sell and the Owner agreed to purchase
the Land and the Premises more particularly described in the Schedule 1 hereto
("the Property") subject to the terms and conditions thereof.
(B) Under and by virtue of an Assignment bearing even date as this Deed, the
Vendor assigned to the Owner by way of sale the Property.
(C) Pursuant to the Agreement and a Deed of Rental Guarantee ("the Deed of
Rental Guarantee") between the Vendor, Ipswich Holdings Limited and the Owner
bearing even date as this Deed, the Owner and the Agent shall enter into this
Deed whereby the Agent is appointed:
(1) as the Owner's sole leasing agent to deal with all leasing and tenancy
matters of the Property; and
(2) as the Owner's sole manager of the Property for the management of the
Property.
NOW THIS DEED WITNESSETH as follows:-
SECTION I
---------
APPOINTMENT OF LEASING AGENT
----------------------------
1. The Owner hereby appoints the Agent as its sole and exclusive leasing agent
who shall have the authority to do such acts and things in relation to the
leasing of the Property or any part(s) thereof subject to and upon the terms and
conditions as set out in this Deed for a period of five (5) years commencing on
the date of this Deed unless the Agent's appointment is terminated earlier
pursuant to the terms of this Deed.
2. As such sole and exclusive leasing agent, the Agent's authority shall be as
follows (all to be performed at the Agent's own costs and expenses):-
(a) (i) To negotiate with tenants or licensees (collectively called
-1-
"Tenants/Licensees" and individually "Tenant/Licensee"), whether
existing or prospective, in relation to the leasing or licensing
(including renewal thereof) of the Property or any part(s)
thereof on such terms and conditions as the Agent shall in its
discretion think fit but subject always to the terms of Clause
2A,
(ii) To promote and/or advertise the leasing of the Property or any
part(s) thereof through any media and marketing tools using such
wording and/or graphics as the Agent shall in its discretion
think fit;
(iii) To organize and/or co-ordinate such leasing promotion activities
as the Agent shall in its discretion think fit.
PROVIDED ALWAYS THAT in exercising its discretion under this
Deed, the Agent shall act for the benefit and advantage of the
Owner and the Agent shall not act or allow or suffer anything to
be done whereby the Owner's interest in the Property will be
prejudicially or adversely affected.
(b) Subject to the provisions of Clause 2A hereof, to enter into offer
letter(s), letter(s) of intent or confirmation(s) for lease/tenancy,
licence(s), agreement(s) for lease/tenancy and lease(s)/tenancy
agreements(s) and to grant or renew licences, tenancy agreements and
leases in respect of the Property or any part(s) thereof (collectively
called "the Letting Agreements" and individually called "the Letting
Agreement") at such rent or licence fee and on such terms and
conditions as the Agent shall in its discretion think fit and to
receive any xxxxxxx money or deposit and advance licence/rental
payment from the Tenants/Licensees and to give receipts therefor; and
for this purpose, sign, seal, deliver, execute and perform as the
Owner's act and deed any Letting Agreements, surrenders, memorials,
undertakings or any other ancillary or related agreements or
instruments.
(c) To demand, collect, receive and recover from all present and future
Tenants/Licensees of the Property or any part(s) thereof rents,
licence fees, management and service charges, air-conditioning charges
and sums of money payable under the Letting Agreements (collectively
called "Rents/Fees") from time to time and to give receipts therefor.
(d) On non-payment of any Rents/Fees to enter into and upon the relevant
part of the Property and to distrain for arrears of the Rents/Fees and
on receipt of the same or any part thereof (including all moneys
realized under distress) to sign and deliver proper and effectual
receipts or other discharges or acknowledgements.
(e) To sign and give lawful notices to my Tenants/Licensees to quit, to
repair, to xxxxx nuisance or to remedy a breach of covenant under the
Letting Agreements and to accept surrenders of any Letting Agreements,
cancellation of letters of intent, cancellation of confirmation
letters or cancellation of licence agreement on such terms as the
Agent may think fit.
-2-
(f) To recover possession of the Property or any part(s) thereof by means
of all lawful proceedings or legal actions from any Tenants/Licensees
or occupiers as the Agent may think fit.
(g) To take such steps at law to commence and defend any action or other
legal proceedings in any court or tribunal to enforce any covenants
and conditions contained in any Letting Agreement and upon any breach
or non-performance or non-observance of any such covenants or
conditions to preserve the Owner's rights and interests in the
Property as the Agent may think fit.
(h) To accept delivery of possession from Tenants/Licensees whether on
expiry or termination of the Letting Agreement or otherwise.
(i) To ask demand receive and recover from all intending Tenants/Licensees
or any part thereof all deposits, advance payments and sums of money
now or at any time hereafter to become due owing and payable in
respect of the Property or any part thereof in any manner whatsoever
and also on non-payment thereof or of any part thereof to take such
steps including legal proceedings to recover such payments or any part
thereof as the Agent shall from time to time think fit.
(j) To hold all rental and other deposits in respect of the Property or
any part thereof whether present or future and to deduct therefrom any
arrears of Rents/Fees which the Owner as landlord is entitled to make
under the Letting Agreements and to pay over such deducted sum to the
Vendor direct during the subsistence of the Deed of Rental Guarantee.
(k) To enter upon when and as often as the Agent shall think proper the
Property or any part thereof to view the state of repair thereof and
where appropriate to order and direct all necessary or proper repairs
refurbishment and improvements of or concerning the same and in that
behalf to sign and give notices to any lessees, tenants and licensees
and occupiers of the Property or any part thereof concerning any
defects in the repair or condition of the same and requiring them to
make good such defects.
(l) To enforce all covenants conditions and stipulations contained in the
Letting Agreements or any letter of intent or confirmation letter or
agreement for lease or agreement for tenancy agreement or agreement
for licence agreement or lease or tenancy agreement or licence
agreement or surrender of lease or surrender of tenancy agreement or
cancellation of letter of intent or cancellation of confirmation
letter, or cancellation of licence agreement affecting the Property or
any part thereof or in any provisions contained in any Ordinance of
Hong Kong relating to the same or any part thereof and upon breach of
non-performance or non-observance of any such covenants conditions or
stipulations to enter into and upon the Property or any part thereof
in relation to which such breach non-performance or non-observance
shall have happened and to take possession of the same to the intent
that the Letting Agreement or the letter of intent or confirmation
letter or agreement for lease or agreement for
-3-
tenancy agreement or agreement for licence agreement or lease or
tenancy agreement or licence agreement under which the Property or any
part thereof is held shall become void according to the laws of Hong
Kong or the provisions in that behalf contained in such Letting
Agreement or letter of intent or confirmation letter or agreement for
lease or agreement for tenancy agreement or agreement for licence
agreement or lease or tenancy agreement or licence agreement.
(m) To settle compromise or submit to arbitration all accounts, claims and
disputes arising under the Letting Agreement between the Owner and any
Tenants/Licensees thereof.
(n) To do all other acts and things which the Agent may think expedient or
necessary for the proper and efficient agreement for leasing, leasing,
agreement for letting, letting, agreement for licensing, licensing,
management, services and control of the Property or any part thereof.
(o) For all or any of the purposes aforesaid to sign the Owner's name to
all contracts and other deeds documents and writings and to sign seal
and as the Owner's act and deed deliver and execute on the Owner's
behalf all Letting - Agreements, letters of intent, confirmation
letters, agreements for leases, agreements for tenancy agreements,
agreements for licence agreements, leases, tenancy agreements, licence
agreements, supplements to letters of intent, supplements to
confirmation letters, supplements to agreements for leases,
supplements to agreements for tenancy agreements, supplements to
agreements for licence agreements, supplements to leases, supplements
to tenancy agreements, supplements to licence agreements, assignments
of leases, assignments of tenancy agreements; assignments of licence
agreements, novations of leases, novations of tenancy agreements,
novations of licence agreements, surrenders, cancellation agreements,
termination agreements, side letters, agreements, contracts and other
deeds, documents and instruments requisite in the premises whatsoever.
2A. (a) The provisions of this paragraph (a) shall apply to Letting
Agreements (1) which expire on or before [insert a date which is 5
years from completion] (whether under the original term or any renewed
term); or (2) with an option to renew and the renewed term expires on
or after [insert a date which is 5 years from completion] but the
renewed rent is current market rent and the renewed term is not more
than 3 years:-
(i) The Agent shall only make offers for lease/tenancy ("Offer
Letters") to prospective Tenant/Licensees/ Licensees in the form
of the pro forma offer letter set out in Schedule 2 hereto ("Pro
Forma Offer Letter").
(ii) The Agent shall send a draft of each Offer Letter to the Owner
for approval on all the terms of an offer letter other than
Clauses I to 5 of the Pro Forma Offer Letter ("Major Terms")
whose approval shall not be unreasonably withheld or delayed and
provided that the Owner's
-4-
approval shall be deemed to have been given if the Owner does not
raise any objection within 2 calendar days after the date of the
receipt of the draft Offer Letter.
(iii) The Agent shall only enter into Letting Agreements in the form
of the pro forma tenancy agreement set out in Schedule 3 hereto
("Pro Forma Tenancy Agreement") with such amendments and
variations as the Agent may in its absolute discretion deemed fit
provided that in respect of all the terms of the Letting
Agreement other than those terms which embody Clauses 1 to 5 of
the Pro Forma Offer Letter ("Important Terms"), any material
variation of any of the Important Terms must be approved by the
Owner whose approval shall not be unreasonably withheld or
delayed and provided that the Owner's approval shall be deemed to
have been given if the Owner does not raise any objection within
3 calendar days after the date of the receipt of the draft
Letting Agreement.
(b) The provisions of this paragraph (b) shall apply to Letting Agreements
which (1) expire on or after [insert a date which is 5 years from
completion]; or (2) expire on or before [insert a date which is 5
years from completion] but with an option to renew at a rent other
than current market rent or for a renewed term of more than 3 years:-
(i) The Agent shall only issue Offer Letters to prospective
Tenant/Licensees/Licensees in the form of the Pro Forma Offer
Letter.
(ii) The Agent shall send a draft of each Offer Letter to the Owner
for approval on all the terms thereof whose approval shall not be
unreasonably withheld or delayed and provided that the Owner's
approval shall be deemed to have been given if the Owner does not
raise any objection within 2 calendar days after the date of the
receipt of the draft Offer Letter.
(iii) The Agent shall only enter into Letting Agreements in the form
of the Pro Forma Tenancy Agreement and incorporating the terms of
the draft Offer Letter which have been approved by the Owner with
such amendments and variations as the Agent may in its absolute
discretion deemed fit provided that any material variation to any
of the Important Terms must be approved by the Owner whose
approval shall not be unreasonably withheld or delayed and
provided that the Owner's approval shall be deemed to have been
given if the Owner does not raise any objection within 3 calendar
days after the date of the receipt of the draft Letting
Agreement.
(c) If the Owner disapproves in writing of one or more of the terms of an
Offer Letter under paragraph (b)(ii) above (or one or more of the
Major Terms with respect to paragraph (a)(ii) above) or, as the case
may be, one or more Important Terms of a Letting Agreement, the Agent
may refer the matter to an
-5-
independent firm of qualified surveyors decided by the Agent
among Xxxxx Xxxx LaSalle, Chesterton Xxxxx and CB Xxxxxxx Xxxxx.
If none of the three firms stated above is independent, the
matter will be referred to another firm agreed to by the Owner
and the Agent and failing agreement within 3 Business Days,
appointed by the President for the time being of the Hong Kong
Institute of Surveyors or the professional body succeeding to
such Institute on the application of either the Owner or the
Agent. The firm of qualified surveyors shall be instructed to
determine if the offer set out in the relevant Offer Letter or,
as the case may be, the terms of the relevant Letting Agreement
are not unreasonable and are in line with the then current
market practice within 2 Business Days of the instructions. The
decision of the agreed or appointed firm of surveyors shall be
conclusive and binding on the Agent and the Owner and such firm
of surveyors shall act as an expert and not as an arbitrator.
The Agent shall be entitled to enter into the relevant Offer
Letter or, as the case may be, the relevant Letting Agreement if
the agreed or appointed firm of surveyors determines that the
terms thereof are not unreasonable and are in line with the then
current market practice. All costs and disbursements relating to
the appointment, services and determination of the firm of
surveyors shall be borne by the Owner and the Agent in equal
shares.
2B. (a) The Agent shall:-
(i) prepare an agency report ("Agency Report") setting out the particulars
of the Letting Agreements entered during the preceding calendar month
which particulars shall include the following and such additional
information as the Owner may from time to time reasonably request:
(1) the name of the Tenant/Licensee;
(2) the registered company address of the Tenant/Licensee;
(3) the portion of the Property rented to the Tenant/Licensee;
(4) the lettable floor area;
(5) major terms and conditions including the term, monthly rental,
management fee, rent-free period;
(6) the amount of the rental deposit and the form of deposit (cash,
bank guarantee or others).
(ii) send a copy of the Agency Report to the Owner on or before the 16th
business day of the following month; and
(iii) send to the Owner such additional information as the Owner may
reasonably require within 7 days of receipt of a written request from
the Owner.
(b) The Owner has the right to assess the performance of the Agent by
comparing the overall annual rental yield achieved for properties
comparable to the Property and if the Agent consistently and
substantially fails to achieve a comparable yield for the Property
which causes damages to the Owner, the Owner has the right to require
the Agent to provide a written explanation of such failure. If such
failure continues for a period of 6 months or more, the Owner may, at
its own cost and expenses, appoint an independent qualified quantity
surveyor to confirm the Owner's view. If the Owner's
-6-
view is confirmed in writing by the quantity surveryor, the Owner has
the right to terminate the appointment of the Agent under this Deed by
giving the Agent 1 month's notice.
3. In exercising any duty, responsibility and authority conferred on the Agent
hereunder, the Agent shall act lawfully, honestly and reasonably and shall
exercise due care and diligence. The Agent shall fully indemnify the Owner
against all loss, damage, claim, demand and legal actions or proceedings
directly arising out of, in connection with or in relation to any breach by the
Agent of any covenants, undertakings, terms and conditions of this Deed.
4. The Owner hereby appoints the Agent to be its attorney and in its name and on
its behalf to execute, sign and do all such deeds, instruments, acts and things
whatsoever which is necessary for the purpose of carrying out or exercising all
or any of the powers conferred on the Agent under this Deed and further agrees
to ratify whatsoever the Agent shall lawfully do in accordance with the power
given under this Clause 4. The Owner, during the term of the appointment of the
Agent under this Deed hereby further authorizes and directs the Agent to pay to
the Vendor all Rents/Fees received by the Agent from the Tenants/Licensees
during the subsistence of the Deed of Rental Guarantee.
5. For the avoidance of doubt, it is agreed that during the term of the
appointment of the Agent as set out herein and subject to the Deed of Rental
Guarantee not having been terminated and subject to the Agent paying and
assuming full responsibility for all costs and expenses including legal fees in
connection with enforcement proceedings the Owner shall delegate to the Agent
all its rights to enforce the terms and conditions of the Letting Agreements and
agrees, unless with the prior written consent of the Agent (save that such
consent is not required in respect of the matters set out in Clause 18), not to
enforce the terms and conditions of the Letting Agreements or exercise, whether
in its name or otherwise any of its rights thereunder which include but are not
limited to the institution of any legal proceeding against any Tenants/Licensees
under such Letting Agreement. The Agent shall not, without the prior written
consent of the Owner which consent shall not be unreasonably withheld, grant,
permit, allow or suffered any waiver, time or indulgence to any
Tenants/Licensees, occupier or any person whatsoever as to the payment of
Rents/Fees.
6. For the avoidance of doubt, the Agent shall account to the Owner for all
rental and other deposits paid to or collected by the Agent under the Letting
Agreements in respect of the Property on the expiration or earlier termination
of this Deed.
SECTION II
----------
APPOINTMENT OF MANAGER
----------------------
7. The Owner hereby further appoints the Agent as the manager for the Owner to
undertake the management, operation, servicing, renovation, improvement and
security of the Property in accordance with the provisions of this Deed for a
term of five (5) years commencing from the date of this Deed Provided always
that any contract entered into by the Agent in connection with the management,
operation, servicing, renovation,
-7-
improvement and security of the Property must not extend beyond [insert a date
which is 5 years from completion] ("Guaranteed Period") and must not have any
renewal right to extend beyond the expiry date of the Guaranteed Period without
the prior written consent of the Owner.
8. During the term of its appointment as the manager, the Agent is authorized to
manage the Property at the Agent's own costs and expenses in accordance with the
provisions of this Deed but subject always to the Lease dated 13 December 2000
registered in the Land Registry by Memorial No.5276622 ("Lease") and the Owner
hereby appoints the Agent as agent for the Owner in respect of any matters
concerning the Property in accordance with the provisions of this Deed with full
power to enforce the provisions of this Deed. The Agent shall have full power
and authority to do all such acts and things as may be necessary or expedient
for the proper management of the Property, all to be performed at the Agent's
own costs and expenses (save and except costs and expenses of a capital or
non-recurring nature) and without in any way limiting the generality of the
foregoing and subject to the Lease, the Agent shall have the following duties
and powers:-
(a) To do all things which the Agent shall in its discretion deem
necessary or desirable for the purposes of maintaining and improving
all plant machinery equipment facilities and services in or on the
Property;
(b) To commence, conduct, carry on and defend legal and other proceedings
touching or concerning the management of the Property in the name of
the Agent;
(c) To prevent any person from occupying or using otherwise than in
accordance with the written permission of the Agent or the provisions
of the Lease any of part of the Property;
(d) To prevent any person detrimentally altering damaging or injuring any
part of the Property;
(e) To demand collect and receive all amounts payable under the provisions
of this Deed;
(f) To recruit dismiss engage and employ and appoint in the name of the
Agent such staff accountants auditors legal advisers architects
surveyors engineers or persons for provision of computer services and
other consultants whatsoever as may from time to time be necessary to
enable the Agent to exercise its powers on such terms as the Agent
shall in its absolute discretion decide;
(g) To manage and control within the Property parking and loading and
unloading and to maintain all forms of traffic management and to do
all such acts and things as may be necessary to provide unimpeded
access by the persons entitled for the time being to the use of the
car parking spaces and loading and unloading bays in the Property;
-8-
(h) To delegate or subcontract the management maintenance operation and
control of any part of the Property and any of its facilities to other
agents or contractors or managers on such terms and conditions as the
Agent shall in its discretion think fit;
(i) To do all such other things as are reasonably incidental to the
management of the Property.
9. (a) The Owner shall establish and maintain a fund ("Capital Reserve Fund")
to meet expenditure of works (1) of a capital or non-recurring nature;
or (2) as required by government authorities; or (3) that are
necessary for the Owner to comply with the covenants and conditions in
the Lease; or (4) of ad hoc improvement nature; or (5) for expected
and/or scheduled maintenance purposes("Capita1 Works"). The Agent may
prepare and submit to the Owner for the Owner's approval an annual
capital expenditure budget provided that the Owner's approval shall be
deemed to have been given if the Owner does not raise any objection
within 7 calendar days of the receipt of the proposed annual capital
expenditure budget. Such proposed budget must include details of the
nature of the Capital Work, the timing for carrying out such Capital
Work and the anticipated drawdown schedule for payment from the
Capital Reserve Fund. Provided that such Capital Work has been
approved by the Owner, the Owner will pay into the Capital Reserve
Bank Account (as defined below) the amount of capital expenditure
approved by the Owner for that financial year.
(b) The Owner shall open and maintain an interest-bearing account with a
licensed bank of the Hong Kong Special Administrative Region in the
name of the Owner ("Capital Reserve Bank Account"), the title of which
shall refer to the Capital Reserve Fund for the Property, and shall
use that Capital Reserve Bank Account exclusively for the purpose of
meeting expenditure of Capital Works that have been approved by the
Owner.
(c) The Agent shall have full power to carry out all Capital Works in
accordance with the capital expenditure budget approved by the Owner
and draw on the Capital Reserve Bank Account for such purpose. During
the term of the appointment of Agent under the Deed, the Owner shall
authorize and permit the Agent to be the sole signatory to operate the
Capital Reserve Bank Account, such authorization to the Agent shall
not be revoked by the Owner unless and until there is a material
breach of the Agent's obligations hereunder.
(d) The Agent in its capacity as the manager of the Property shall apply
as agent of the Owner all moneys and deposits withdrawn by it from the
Capital Reserve Bank Account. Such moneys and deposits shall belong to
the Owner but shall be held and applied as aforesaid by the Agent.
(e) If the amount in the Capital Reserve Bank Account is or is expected to
be insufficient to meet the cost and expenses of any Capital Works
approved by the Owner, the Agent shall discuss with the Owner as to
the further contributions that need to be made to such Capital Reserve
Fund.
-9-
(f) Any surplus in the Capital Reserve Fund shall be carried forward to
the next financial year and shall be used for paying Capital Works for
the next financial year.
10. The Agent shall:-
(a) within two (2) months after the end of each financial year, prepare a
statement of account for that year showing details of Capital Reserve
Fund drawn and the remaining balance; and
(b) send a copy to the Owner such statement of account for reference
purpose only.
11. Each financial year shall be a period of twelve months with the first
financial year commencing on the date of this Deed.
SECTION III
-----------
TERMINATION AND MISCELLANEOUS
-----------------------------
12. All lawful acts of the Agent carried out in accordance with the provisions
of this Deed shall be binding in all respects on the Owner.
13. The Owner shall fully indemnify the Agent and its officers, employees,
servants and agents against all actions, proceedings, claims and demands arising
directly or indirectly out of or in connection with the Agent acting as the
Owner's agent under this Deed other than (i) those resulting from the wilful
default, negligence or unlawful act or the breach of the terms of this Deed by
the Agent or of its officers, employees, servants and agents and (ii) the costs
and expenses, outgoings agreed to be borne by the Agent under Clauses 4(l)(a) &
(b) of the Deed of Rental Guarantee.
14. (a) The Owner shall open and maintain in the name of the Owner with a
licensed bank in Hong Kong ("Collection Account"). The Agent shall
arrange for all Rents/Fees, security deposits and other sums payable
under the Letting Agreements to be paid by the Tenants/Licensees into
the Collection Account. During the term of the appointment of Agent
under this Deed, the Owner shall authorize and permit the Agent to be
the sole signatory to operate the Collection Account, such
authorization to the Agent shall not be revoked by the Owner unless
and until there is a material breach of the Agent's obligations
hereunder.
(b) The Agent shall on or before the 16th business day of the following
month, deliver to the Owner the following:
(i) monthly property management reports;
(ii) monthly accounts;
(iii) details of all legal proceedings commenced in the name of the
Owner or commenced against the Owner in respect of the Property;
-10-
(iv) details of all service or management contracts entered into by
the Agent in the name of the Owner pursuant to Clause 7;
(v) copies of all Letting Agreements and other contracts entered into
by the Agent in the name of the Owner,
pertaining to the preceding calendar month and which have been
instituted or signed within the preceding calendar month.
(c) At least two (2) weeks prior to the expiry of the Guaranteed Period,
the Agent will grant all reasonable access and assistance to the
Owner's representatives to arrange for a smooth hand over of all
information and documents pertaining to the Property on expiry of the
Guaranteed Period.
15 (a) The Agent's appointment hereunder shall commence on the date of this
Deed and shall expire at the end of the fifth year unless terminated
earlier pursuant to the terms of this Deed PROVIDED ALWAYS THAT the
Owner is entitled to terminate the appointment of the Agent herein at
any time without cause by giving 3 months' prior written notice to the
Agent.
(b) In the event that the Deed of Rental Guarantee is terminated then the
Agent's appointment under this Deed is also terminated.
(c) The Owner may by written notice to the Agent forthwith terminate this
Deed:-
(i) if the Agent shall go into liquidation either compulsorily or
voluntarily (except in the course of a voluntary liquidation for
the purpose of reconstruction or amalgamation) or shall enter
into composition or arrangement with its creditors or a receiver
or manager shall be appointed in respect of any substantial part
of the properties or assets of the Agent; or
(ii) if the Agent shall default in the performance or observance of
any material terms and conditions contained in this Deed and the
Agent shall neglect or otherwise fail to remedy such breach (if
capable of remedy) within 14 days of being required in writing to
do so by the Owner.
16. Upon expiration or early termination of the Agent's appointment as set out
herein:-
(a) this Deed shall terminate and be of no further force or effect but
without prejudice to the rights and liabilities of each party against
the other in respect of any antecedent breach which may arise or have
arisen before the date of expiration or termination;
(b) the Agent shall within 14 days deliver to the Owner (i) all documents
signed or executed by it on behalf of the Owner in respect of the
Property and (ii) all books (other than the books of account which
will be delivered within 30 days), records, funds, assets and property
of the Owner, which are held by or under the control of
-11-
the Agent;
(c) the Agent shall within 30 days render to the Owner an apportionment
account for payment of Rents/Xxxx, rates, management fees,
air-conditioning charges and other outgoings in respect of the
Property and account to the Owner for of any surplus in the Capital
Reserve Bank Account for the Owner's verification; and the
apportionment account shall be settled within 14 days thereafter.
17. Subject to the Agent bearing all costs and expenses, the Owner agrees to
grant the Agent a power of attorney as its attorney in its name and on its
behalf to demand, collect, receive and recover from all Tenants/Licensees of the
Property or any part(s) thereof any arrears of Rents/Xxxx which are pavable to
the Vendor under the terms of the Deed of Rental Guarantee, to take such
steps at law to commence any action or other legal proceedings in any court or
tribunal and to give receipts therefore. All sums of money recovered from such
Tenants/Licensees pursuant to this clause after payment of all legal costs and
expenses shall be paid to the Vendor. This Clause will continue to be applicable
notwithstanding the expiry of the Guaranteed Period.
18. In respect of those disabled toilets of the Property which had been
converted into pantries, the Agent will use its best endeavour and at the costs
and expense of the Vendor and/or the Agent to effect the reinstatement of such
disabled toilets during the Guaranteed Period, and such reinstatement works
shall be carried out as soon as practicable in respect of those floors used by
PCCW Services Limited, and for those located on the other floors it is intended
that subject to the agreement of the tenants the reinstatement shall be carried
out at the next renewal of the existing tenancies for such premises provided
that nothing herein shall require the Agent to commence any legal proceedings in
order to effect such reinstatement work and provided further that nothing herein
shall preclude the Owner from taking all actions including legal proceedings
against the Tenants/Licensees to effect such reinstatement works.
19. The Agent hereby undertakes that it shall remain a subsidiary company of
Pacific Century Premium Developments Limited before the expiry or termination of
its appointment.
20. In this Deed, "Business Day" means a day (other than Sunday) on which
commercial banks are generally opened for business in Hong Kong.
21. This Deed shall be governed by and construed in accordance with the laws of
Hong Kong Special Administrative Region of the People's Republic of China ("Hong
Kong") and the parties hereto agree to submit to the non-exclusive jurisdiction
of the courts of Hong Kong.
22. All written notices, requests, demands, and other communications under this
Deed or in connection herewith shall be given by letter (delivered by hand, by
courier, or by prepaid registered air mail) or by facsimile transmission with
confirmed answerback, and shall be addressed to the respective parties as
follows:
-12-
Owner: Richly Leader Limited
-------------------------------
c/o Pramerica Real Estate Investors (Asia) Pte Ltd
000 Xxxxxxx Xxxx #00-00
Xxxxxxxx Xxxxx
-------------------------
Xxxxxxxxx 000000
Attention: Xx Xxxxx Xxx Xxxx/Xx Xxxx Ping
Facsimile No: (00) 0000 0000
Agent: [ ]
------------------------------
[ ]
[ ]
[ ]
Attention: [ ]
Facsimile No: [ ]
Any party may change its address at any time by written notice to the other
parties.
-13-
SCHEDULE 1
----------
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 Hongkong Telecom Tower (Tower A)) as
shown coloured Yellow on Plans 2 to 51 annexed to 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.
-14-
SCHEDULE 2
Proforma Offer Letter
Date:______________________________
To: [Name]
[Address]
Re: [Description of premises to be let]
---------------------------------------
We have pleasure to confirm our offer for the lease of the above premises upon
the following basic terms and conditions:
1. Tenant : [Name of Tenant]
B/R#
2. Tenancy Term :
3. Rental : HK$[ ] per month exclusive/inclusive of
[Management Fee, Government Rent, Rates
Air-conditioning Charges but exclusive of all
Utility Charges.]
4. Rent Free Period :
5. Deposit : HK$[ ]
6. Formal/Tenancy : To be signed on or before [ ]
Agreement
7. The Tenant shall sign the Formal Tenancy Agreement in substantially the form
prepared by the Landlord.
8. Stamp duty : To be equally shared by the Landlord and the
Tenant.
9. Other Terms
Yours faithfully, Signed and accepted by
-15-
S C H E D U L E 3
Pro Foma Tenancy Agreement
Dated the day of 200
------------------------------------
[ ]
(as Landlord)
AND
(as Tenant)
--------------------------------------------------------------------------------
LEASE
of
th Floor of PCCW Tower,
Taikoo Place, 000 Xxxx'x Xxxx, Xxxxxx Xxx, Xxxx Xxxx
--------------------------------------------------------------------------------
I N D E X
---------
SECTION I: LEASE
Parties 1
Recitals 1
1.01 Premises 2
Term 2
Rent 2
1.02 Rent Review 2
SECTION II: PAYMENT OF RENT AND OTHER CHARGES
2.01 Rent 7
Additional Rent 7
Air-conditioning Charges 7
Management Charges 8
2.02 Rates etc. 9
2.03 Utility Charges and deposits 9
2.04 Cleaning Charges 9
SECTION III: TENANT'S OBLIGATIONS
3.01 Compliance with Ordinances 10
3.02 To permit access 10
3.03 Fitting out 10
3.04 To Keep the Interior in Good Repair 14
3.05 Installation of Wires Cables and Services 14
3.06 Repair of Electrical Installations 16
3.07 Good Repair of Toilets and Water Apparatus 16
3.08 Cleaning of Drains 16
3.09 Repair of Windows and Glass 16
3.10 Indemnification of Landlord and Insurance 17
3.11 Protection from typhoon 17
3.12 To permit Landlord to enter and view 17
3.13 To execute repair on receipt of notice 18
3.14 Outside windows 18
3.15 Inform Landlord of Damage 18
3.16 Cleaning and Cleaning Contractors 18
3.17 Refuse and Garbage Removal 18
3.18 Installation of Telephone Cables 19
3.19 Directory Boards 19
3.20 Contractors Employees Invitees and Licensees 19
3.21 Damage to Building 19
3.22 Building Rules and Regulations 19
3.23 User 19
3.24 Yield Up Premises & Handover 20
3.25 Inform Landlord of change of business name 21
3.26 Insurance 21
SECTION IV: LANDLORD'S OBLIGATIONS AND RIGHTS
4.1 Quiet Enjoyment 22
4.2 Government Rent 22
4.3 Roof and Main Structure 23
4.4 Maintenance of Common Areas 23
4.5 Maintenance of Services 23
4.6 Air-conditioning 23
4.7 Observance of the Head Lease 24
4.8 Rights Reserved to the Landlord 24
and the Manager
SECTION V: RESTRICTIONS AND PROHIBITIONS
5.01 Installation and Alterations 26
5.02 Injury to Walls or Floors 27
5.03 NO Alterations To Exterior 27
5.04 Obstructions to Outside Windows 27
5.05 Not Erect Gates or Grilles 28
5.06 Noise 28
5.07 Signs 28
5.08 Auction Sales 28
5.09 Illegal or Immoral Use 29
5.10 Sleeping or Domestic Use 29
5.11 Storage of Merchandise and Hazardous Goods 29
5.12 User 29
5.13 Obstructions in Passages 30
5.14 Parking & Loading 30
5.15 Deliveries and use of Passenger Lifts 30
5.16 Preparation of food and prevention of Odours 31
5.17 Not to Misuse Lavatories 31
5.18 Animals, pets and infestation 31
5.19 No Touting 31
5.20 Breach of Government Lease or Conditions or 32
Deed of Mutual Covenants
5.21 Breach of Insurance Policy 32
5.22 Alienation 32
5.23 Advertising of Premises 34
5.24 Not to commit breach of Head Lease 34
SECTION VI: EXCLUSIONS
6.01 (a) Lifts, Air-conditioning, Utilities 34
(b) Fire and overflow of water 35
(c) Security 35
SECTION VII: SUSPENSION OF RENT
7.01 Suspension of Rent in case of fire etc. 35
SECTION VIII: DEFAULT
8.01 Default 36
8.02 Interest 38
8.03 Acceptance of Rent 38
8.04 Acts of Employees Invitees and Licenses 39
8.05 Distraint 39
8.06 Exercise of Right of Re-Entry 39
SECTION IX: DEPOSIT
9.01 Deposit 39
9.02 Increase of Deposit 40
9.03 Repayment of Deposit 40
9.04 Transfer of Deposit 41
SECTION X: REGULATIONS
10.01 Introduction of Regulations 46
10.02 Conflict 47
10.03 Exclusion of Liability 47
SECTION XI: INTERPRETATION AND MISCELLANEOUS
11.01 Marginal Notes, Headings and Index 47
11.02 Definitions 47
11.03 Gender 48
11.04 Lettable Floor Area 48
11.05 Name of Building 49
11.06 Alterations to the Building 49
11.07 Condonation not a Waiver 49
11.08 Letting Notices and Entry 50
11.09 Service of Notices 50
11.10 Stamp Duty and Costs 50
11.11 Deed of Mutual Covenant 50
11.12 No Key Money 51
11.13 Entire Agreement 51
SECTION XI1: SPECIAL CONDITIONS
12 Special Conditions 51
FIRST SCHEDULE
PART I Parties 52
PART II The Building and the Premises 52
PART III Term 52
PART IV Rent Free Period 53
SECOND SCHEDULE
part I RENT 53
Part II Particulars of Air-conditioning Charges 53
Part III Management Charges 53
Part IV Deposit 54
THIRD SCHEDULE
Part I USER 55
FOURTH SCHEDULE
SPECIAL CONDITIONS
1. HANDING OVER OF POSSESSION 55
2. OPTION TO RENEW 56
Signatures
Plan(s) annexed 62
SECTION I
LEASE
1. This Lease made this day of
Two Thousand and Four BETWEEN
Parties (i) [ ] having a principal place of business at [ ] ("the Landlord"
which expression shall include its successors in title and assigns) of
the one part and
(ii) The party particulars of whom are set out in Part I of the First
Schedule hereto ("The Tenant") of the other part.
WHEREAS:-
Recitals (1) Under and by virtue of a Lease dated 13th December 2000 and
registered in the Land Registry by Memorial No. 8276622 ("the Head
Lease"), Taikoo Place Holdings Limited (formerly known as Xxxxxx
Valley Estates Limited) ("the Head Landlord") as Owner let and the
Landlord as lessee took the Building more particularly described in
Part I1 of the First Schedule ("the Building") for the term of 999
years from and including the 2nd February 1882, less the last 3 days
thereof.
(2) The Landlord has agreed to grant to the Tenant a tenancy of the
Premises ("the Premises") more particularly described in Part I1 of
the First Schedule and forming part of the Building for the term and
subject to the conditions hereinafter appearing, for which the Head
Landlord's approval has been given.
(3) This Lease is a Permitted Short Term Underlease within the meaning
of the Head Lease.
NOW IT IS HEREBY AGREED as follows:-
-1-
Premises 1.01 The Landlord hereby agrees to let to the Tenant and the Tenant
hereby agrees to take a tenancy of ALL THOSE the premises forming part
of all that the Building TOGETHER WITH the use in common with the
Landlord the Head Landlord and all others having the like right of (i)
the landlord's driveways, entrances, staircases, landings and passages
in the Building in so far as the same are necessary for the proper use
and enjoyment of the Premises; (ii) the lift service and
air-conditioning service in the Building and (iii) the free and
uninterrupted passage and running of water soil gas electricity and
other services through the sewers drains pipes cables wires and other
service media in or upon the Building or the raised floors therein and
serving the Premises and subject to the terms of the Head Lease FOR
Term THE TERM specified in Part III of the First Schedule hereto ("the
Rent Term") YIELDING AND PAYING therefore throughout the Term the rent
set out in Part I of the Second Schedule (subject to a rent-free
period as provided for and subject to the terms as set out in Part IV
of the First Schedule) and by way of additional rent the air-
conditioning charges and management charges as set out in Parts I, I1
and III of the Second Schedule which rent and additional rent shall be
paid exclusive of rates in advance free and clear of all deductions on
the first day of each calendar month throughout the Term the first and
last of such payments to be apportioned according to the number of
days in the calendar month in which the Term commences or ends.
Rent
Review 1.02 If the Term shall be longer than 36 months each succeeding
period of 36 months after the first such period of the Term shall be
referred to as "a Review Period". The rent payable during a Review
Period is referred to as "the New Rent". Where the New Rent payable as
set cut in Part I of the Second Schedule is to be calculated by
reference to current market rental for the Premises the following
provisions shall apply:-
-2-
(a) If agreement is reached between the Landlord and the Tenant as to
the rent to be payable throughout a Review Period such agreement
shall be in writing signed by both parties and in each such case
the rent payable during such Review Period shall be the New Rent
as so agreed.
(b) If such an agreement has not been made two ( 2 ) months before
the commencement of any Review Period either the Landlord or the
Tenant may serve a notice upon the other calling for an
independent surveyor and valuer ("Xxx Xxxxxxxx") to be appointed
to determine the New Rent. The Surveyor may be appointed by
agreement between the Landlord and the Tenant or in default of
such agreement within one month before the commencement of any
Review Period the Surveyor may be appointed at the request of
either of the parties in the first instance by the chairman for
the time being of the Royal Institution of Chartered Surveyors
(Hong Kong Branch) or in default of such appointment the Surveyor
may be appointed at the request of either of the parties by the
President for the time being of the Hong Kong Institute of
Surveyors or equivalent professional body. The Surveyor so
appointed shall give a written decision with reasons and such
decision as to what shall be the New Rent shall be conclusive and
binding on the parties hereto.
(c) In determining the New Rent the Surveyor shall act as an expert
and not as an arbitrator and shall take into account the open
market rent for other whole floor office accommodation elsewhere
in the Development and/or in similar office buildings in Hong
Kong having attributes comparable to those of the Building
obtainable at the time of commencement of the relevant Review
Period on the following assumptions that at that date :-
-3-
(i) the Premises are fitted out and equipped and fit for
immediate occupation and use complete with floor and wall
coverings, false ceilings, raised floors and
air-conditioning throughout and that no work which has been
carried out thereon by the Tenant or its permitted
sub-tenants (if any) or predecessors in title 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) the Premises are available for letting by a willing landlord
to a willing tenant without a premium but with vacant
possession.
(iii) that the covenants herein contained on the part of the
Tenant have been fully performed and observed.
but disregarding:-
(iv) any effect on rent of the fact that the Tenant has been in
occupation of the Premises.
(v) any goodwill attached to the Premises by reason of the
carrying on thereat of the business of the Tenant.
-4-
(vi) any effect on rental value of the Premises attributable to
any special improvement to the Premises or any part thereof
carried out by the Tenant with the Landlord's consent where
required (otherwise than in pursuance of an obligation of
the Tenant) including any special improvements made by the
Landlord at the expense of the Tenant prior to the
commencement or during the continuance of the Term.
(vii) any suspension of rent under Clause 7.01
(d) The Surveyor shall afford to each of the parties an opportunity
to make representations to him.
(e) If the Surveyor shall die delay or become unwilling or incapable
of acting or if for any other reason the Chairman for the time
being of the Royal Institution of Chartered Surveyors (Hong Kong
Branch) or the President for the time being of the Hong Kong
Institute of Surveyors as the case may be or the person acting on
his behalf shall in his absolute discretion think fit he may by
writing discharge the Surveyor and appoint another in his place.
-5-
(f) If the New Rent shall not have been determined before the
commencement of a Review Period pending determination of the New
Rent that shall be payable in respect of any Review Period, the
Tenant shall continue to pay an account of the New Rent the rent
that was payable immediately before the beginning of the Review
Period in question and within fourteen (14) days of the
determination of the New Rent, the Tenant shall pay to the
Landlord the difference between the rent actually paid by the
Tenant during the period pending determination as aforesaid and
the New Rent payable for the period pending determination plus
interest on the difference between the old rent and the New Rent
at the prime lending rate from time to time of the Hongkong and
Shanghai Banking Corporation Limited from the commencement date
of the Review Period until the date of payment and in the event
of the New Rent being less than the rent actually paid the
Landlord shall within fourteen (14) days of the determination of
the New Rent refund to the Tenant the difference between the New
Rent and the rent actually paid by the Tenant during the period
pending determination plus interest at the rate as aforesaid from
the commencement of the Review Period until the date of refund.
(g) The costs and expenses of the Surveyor including the cost of his
appointment shall be borne by the Landlord and the Tenant in
equal shares. All other costs and expenses incurred by the
Landlord or the Tenant in respect of or in connection with any
rent review shall be borne by themselves separately.
SECTION II
PAYMENT OF RENT AND OTHER CHARGES
2. The Tenant hereby agrees with the Landlord as follows:-
-6-
Rent 2.01 To pay on the days and in the manner hereinbefore provided
without deduction or set off in Hong Kong Currency
Additional the rent and by way of further or additional rent in
Rent respect of the Premises:-
Air- (a) the Air-Conditioning Charges from time to time payable by
conditioning the Tenant as Set out in Part II of the Second Schedule.
Charges
(b) in addition to the Air-Conditioning Charges referred to in
Part I1 of the Schedule, if at any time during the Term the
cost of providing the air-conditioning service including
(without limitation) the amount payable in respect thereof
by the Landlord to the Manager under the Head Lease, the
cost of maintenance, staff, replacement parts, depreciation,
electricity and all other costs related to such service
shall have increased, the Landlord shall be entitled to
increase the Air-Conditioning Charges payable by the Tenant
by an appropriate amount to cover the increase in the cost
of providing the service in the first instance since the
date hereof and on each occasion thereafter since the last
increase. When any notice of increase shall be sent by the
Landlord or the Manager to the Tenant the notice (as the
Landlord in its absolute discretion may decide) may be
accompanied by an explanatory memorandum but the assessment
by the Landlord or the Manager of the appropriate increase
shall be conclusive and final.
(c) any Air-Conditioning Charges payable by the Tenant for
additional air-conditioning services provided by the
Landlord from time to time as provided in Clause 4.06(b)of
Section IV; and
-7-
Management (d) Management Charges for management services provided
Charges by the Manager and/or the Landlord and the monthly recurring
amounts (except those of a capital nature) expended by the
Landlord in relation to the management and maintenance of
all non-structural portions of the Development which are not
let or intended to be let to or occupied by individual
tenants ("the Common Areas") from time to time payable by
the Tenant as set out in Part III of the Second Schedule.
(e) in addition to the Management Charges referred to in
Part I11 of the Second Schedule, if at any time or times
during the Term the cost to the Landlord of providing the
management service to the Common Areas, including (without
limitation) the amount payable in respect thereof by the
Landlord to the Manager under the Head Lease, the cost of
maintenance of plant and machinery, staff, replacement of
parts, depreciation, cost of electricity or other services
and all other costs related to such service shall have
increased, the Landlord shall have the right to increase the
amount of the Management Charges payable by the Tenant to
cover the increase in the cost to the Landlord of providing
the management service since in the first instance the date
hereof and thereafter since the date of the last increase.
When any notice of increase shall be sent by the Landlord or
the Manager to the Tenant the notice (as the Landlord in its
absolute discretion may decide) may be accompanied by an
explanatory memorandum but the assessment by the Landlord or
the Manager of the appropriate increase shall be conclusive
and final and not less than one month's prior notice in
writing notifying the Tenant of an increase in the
Management Charge and setting out the reasons for the
increase shall be served.
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Rates etc. 2.02 To pay and discharge all rates, taxes assessments,
duties, impositions, charges and outgoings of an annual or
recurring nature now or hereafter to be imposed or levied on
the occupier of the Premises by the Government of Hong Kong
Special Administrative Region(G0vernment Rent and Property
Tax and payments of a capital or non-recurring nature alone
excepted). Without prejudice to the generality of this
sub-clause the Tenant shall pay all rates imposed on the
Premises in the first place to the Landlord who shall settle
the same with the Government of Hong Kong Special
Administrative Region and in the event of the Premises not
yet having been assessed or not having been separately
assessed to rates the Tenant shall until such time as the
Premises are so assessed to rates pay to the Landlord
monthly and in advance a sum equal to the rates which would
be charged by the Government of Hong Kong Special
Administrative Region for each month on the basis of a
rateable value equal to twelve months' rent payable by the
Tenant, on account of the Tenant's liability under this
Clause.
Utility Charges 2.03 To pay and discharge all deposits and charges in
and Deposits respect of water, electricity and telephone as may be shown
by or operated from the Tenant's own metered supplies or by
accounts rendered to the Tenant by the appropriate utility
companies in respect of all such utilities consumed on or in
the Premises.
Cleaning Charges 2.04 To pay the cost of the daily cleaning of the Premises.
SECTION III
TENANT'S OBLIGATIONS
3. The Tenant hereby agrees with the Landlord:-
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Compliance with 3.01 To obey comply with and to indemnify the Landlord
Ordinances against the breach of all ordinances, regulations, bye-
laws, rules and requirements of any Governmental or other
competent authority relating to the use and occupation of
the Premises by the Tenant or any other act, deed, matter or
thing done, permitted, suffered or omitted therein or
thereon by the Tenant or any employee agent licensee or
permitted sub-tenant of the Tenant and without prejudice to
the foregoing to obtain and maintain in force and to observe
and comply with the terms of any approval licence or permit
required by any Governmental or other competent authority in
connection with the Tenant's use and occupation of the
Premises prior to the commencement of the Tenant's business
and to indemnify the Landlord against the consequences of
any breach of this provision.
To permit 3.02 To permit the Landlord and all persons authorized by it
access upon prior reasonable notice (except in the case of
emergency) to enter upon the Premises for any purpose which
in the reasonable opinion of the Landlord is necessary to
enable it to comply with the covenants on the part of the
lessee and the conditions contained in the Head Lease.
Fitting out 3.03 To fit out the interior of the Premises in accordance
with such plans and specifications as shall have been first
submitted to and approved by the Landlord in writing (such
approval not to be unreasonably withheld) in a good and
proper workmanlike manner, such fitting out to include but
not be limited to the following :-
(a) Connection and reticulation of all electrical wiring
including wiring to light fittings together with
control switching etc. within the Premises (whether
underneath the raised flooring above the false ceilings
or otherwise).
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(b) All floor finishes and partitioning within the
Premises provided that any partitioning installed by
the Tenant within the Premises shall be dry
partitioning only.
(c) Any alteration to the sprinkler system necessitated
by the Tenant's layout of the Premises the same to be
in all respects in accordance with all permits and
consents and in compliance with the requirements of the
Fire Services Department.
(d) Any alteration to the air-conditioning ducting that
may be required by the Tenant's internal layout of the
Premises.
(e) Internal decoration, furnishings and specialized
Tenant's equipment.
(f) Any alteration to the raised flooring including the
alignment, re-alignment or removal of the raised
flooring system, the creation of openings in the raised
floor panels and the cutting or sub-division of the
raised floor panels.
Provided:
(A) The Tenant shall at its own cost prepare and submit to
the Landlord suitable drawings, plans and
specifications of the works to be carried out by the
Tenant together with schematic sketches showing intent
as to the Tenant's design and layout proposals
(hereinafter collectively called "the Tenant's Plans")
to enable the Premises to be fitted out and completed
for the purposes specified in this Lease. The Tenant's
Plans shall, without limitation:-
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(a) Include detailed drawings, plans and specifications
for all interior layout, decorations, fittings,
installations, partitionings and floor coverings.
(b) Include detailed drawings, plans and specifications of
all electrical installations which shall be connected
to the electrical system installed by the Landlord.
(c) Include details of any proposed amendments, additions
or alterations to any electrical mechanical or other
building services.
(d) Comply with all relevant Ordinances, regulations and
bye-laws from time to time issued by the Government of
Hong Kong.
(B) The Landlord shall inform the Tenant within 14 days from the
submission of the Tenant's Plans to the Landlord as to
whether the Tenant's Plans are approved or disapproved or
whether any modifications thereto are required.
(C) The Tenant acknowledges and agrees that no delay howsoever
occasioned in submitting or re-submitting the Tenant's Plans
including any delay on the part of the Landlord in the
approval of the same shall entitle him to any extension of
the rent free period as specified in Part IV of the First
Schedule, and subject to Clause 1.2 of the Fourth Schedule
hereto all interior fitting out and decoration works
(including any alterations required to the Building's
services) shall be at the Tenant's own cost and expense.
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(D) Under no circumstances shall the Tenant be entitled to
commence any fitting out work to the Premises before the
Tenant's Plans shall have been approved by the Landlord.
(E) Any and all work involving any alteration to or modification
of or in any way associated with the electrical system, the
sprinkler system, the security system, the plumbing and
drainage system and piping and the fixed air-conditioning
ducting, chilled water pipes and air-conditioning controls
shall be carried out only by contractors in respect of whom
the prior approval in writing of the Landlord shall have
been obtained (such approval not to be unreasonably withheld
or delayed) IT BEING AGREED that in no circumstances shall
any such work be commenced or be permitted to be commenced
by any contractor who shall not first have been approved in
writing by the Landlord. All works to be carried out by the
Tenant its contractors or sub-contractors shall be carried
out in accordance with any FITOUT RULES as may be issued by
the Landlord or the Manager from time to time provided that
the same shall be reasonable and the Tenant shall pay and
reimburse to the Landlord on demand any fees and/or costs
incurred by the Landlord in consulting outside architect
and/or outside specialist consultants in respect of the
Tenant's fitting out plans.
(F) That the Tenant will not cause or permit to be made any
subsequent variation to the approved fitting out plans and
specifications or to the approved interior design or layout
of the Premises without the previous approval in writing of
the Landlord (such approval not to be unreasonably withheld
or delayed) and in the event of such approval being
requested it shall be a condition precedent to the granting
thereof that the Tenant shall pay to the Landlord
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any fees and/or costs incurred by the Landlord in consulting
outside architect and/or outside specialist consultants in
respect of such variations irrespective of whether approval
is ultimately granted.
To Keep the 3.04 To keep and maintain at the expense of the Tenant all the
Interior in interior parts of the Premises including the flooring raised
Good Repair flooring and cables and wires installed thereunder the interior
plaster or other finishing material or rendering to walls floors
and ceilings and the Landlord's fixtures and fittings therein
including (without limitation) all doors, windows, electrical
installations and wiring, light fittings, suspended ceilings,
fire fighting apparatus and air-conditioning ducting and all
waste, drain, water and other pipes and sanitary apparatus and
fittings therein and all painting, papering and decoration
thereof in good clean tenantable substantial and proper repair
and condition and as may be appropriate from time to time
properly painted and decorated (fair wear and tear excepted).
Installation 3.05 (a) To install all wires pipes and cables and Wires Cables
of Wires other services serving the Premises in and and Services
Cables and through the ducts trunkings and conduits in the
Services Building provided by the Landlord for such purposes and
at all times in accordance with the Landlord's
directions and not to install any such wires pipes
cables or other services without first providing the
Landlord with full particulars and a fully detailed
plan and diagram of such intended installation and
obtaining the Landlord's consent in regard thereto
(which consent shall not be unreasonably withheld or
delayed).
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(b) To provide to the Landlord a full coloured diagram of
all electrical wiring to be installed by the Tenant
within or serving or connected to the Premises and/or
within the ducts, trunkings or conduits provided by the
Landlord within the Building for the installation of
electrical and/or fibre-optical or other wires or
cables or means of passing receiving or transmitting
information and all telephone and other service wires
conduits and cables installed by or at the order of the
Tenant and to clearly label and in accordance with any
directions given by the Landlord colour-code all such
wires conduits and cables to identify the same as being
the Tenant's and if required by the Landlord at the
expiration or sooner determination of the Term at the
Tenant's expense to remove the same from all ducts
conduits or trunkings within the Building taking care
not to disturb damage or interfere with any wires
cables or other means of communication belonging to the
Landlord or to other occupiers of any part or parts of
the Building or of any other part of the Development
that may have been installed within any such ducts
conduits or trunkings and making good any damage caused
by the Tenant in so doing and the Tenant will indemnify
and hold the Landlord harmless against any claim action
or demand that may be brought by any person suffering
any loss or damage or interference with business or
inconvenience caused by or arising from the Tenant's
action in complying with its obligations hereunder.
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Repair of 3.06 To repair or replace if so required by the appropriate
Electrical utility company, authority or statutory undertaker as the
Installations case may be under the terms of the Electricity Supply
Ordinance or any statutory modification or re-enactment
thereof or any Orders in Council or Regulations made
thereunder all the electrical wiring installations and
fittings within the Premises installed by the Tenant and the
wiring from the Tenant's Meter or Meters to the Premises.
Good Repair 3.07 To maintain all toilets and sanitary and water
of Toilets apparatus located within the Premises (or elsewhere if used
and Water exclusively by the Tenant its employees invitees and
Apparatus licensees) in good clean and tenantable state and in proper
repair and condition (excepted as in Clause 3.04 hereof
is excepted) at all times during the Term in accordance with
the Regulations of the Public Health or other Government
Authority concerned.
Cleaning of 3.08 To pay on demand to the Landlord the cost incurred by
Drains the Landlord in cleansing and clearing any of the drains in
the Building that become choked or stopped up owing to the
improper or careless use of any toilet or water or sanitary
or drainage equipment by the Tenant or its employees
invitees contractors or licensees.
Repair of 3.09 TO reimburse to the Landlord the cost of repairing
Windows and or replacing all broken or damaged windows or glass or glass
Glass curtain wall of or corresponding to the Premises whether or
not the same was broken or damaged by the negligence of the
Tenant, and to pay or reimburse to the Landlord the cost of
repairing and replacing all broken or damaged part or parts
of the glass curtain wall of any other part or parts of the
Building or of the Development whether or not used
exclusively by the Tenant if the damage is caused by the
act, default, neglect or omission of the Tenant or any of
its servants, agents, employees, contractors or licensees.
-16-
Indemnification 3.10 To be wholly responsible for any loss damage or injury
of Landlord caused to any person whomsoever or to any property
and Insurance whatsoever directly or indirectly through the defective or
damaged condition or operation of any part of the interior
of the Premises or any machinery or plant or any fixtures or
fittings or wiring or piping therein for the repair of which
the Tenant is responsible hereunder or in any way or by or
owing to the spread of fire smoke or fumes or the leakage or
overflow of water of whatsoever origin from the Premises or
any part thereof or through the act default or neglect of
the Tenant its servants agents contractors licensees
partners or customers and to make good the same by payment
or otherwise and to indemnify the Landlord against all costs
claims demands actions and legal proceedings whatsoever made
upon the Landlord by any person in respect of any loss
damage or injury as aforesaid and all costs and expenses
incidental thereto and to effect adequate insurance cover in
respect of such risks in accordance with the provisions of
Clause 3.26 thereof.
Protection 3.11 To take all reasonable precautions to protect the
from interior of the Premises from storm or typhoon damage or
typhoon heavy rainfall or the like.
To permit 3.12 To permit the Landlord its agents and all persons
Landlord to authorized by it with or without workmen or others and with
enter and view or without appliances at all reasonable times and upon prior
reasonable notice (save in the case of an emergency) to
enter upon the Premises to view the condition thereof and to
take inventories of the Landlord's fixtures and fittings
therein and to carry out any work or repair required to be
done provided that in the event of an emergency the Landlord
its servants or agents may enter without notice and forcibly
if need be.
-17-
To execute 3.13 To proceed to make good all defects and wants of
repair on repairs to the Premises for which the Tenant may be liable
receipt of within the space of one month from the receipt of written
notice notice from the Landlord to repair and make good the same,
and if the Tenant shall fail to proceed to execute such
works or repairs as aforementioned to permit the Landlord to
enter upon the Premises and execute the same and the cost
thereof shall be a debt due from the Tenant to the Landlord
and be recoverable forthwith by action.
Outside windows 3.14 To keep all windows of the Premises closed at all
times.
Inform 3.15 To give notice to the Landlord or its agent of any
Landlord damage that the Premises may suffer and of any defect in the
of Damage water and gas pipes electrical wiring or fittings, fittings
fixtures or other utility supply equipment provided by the
Landlord as soon as the Tenant becomes aware of any such
damage and defect.
Cleaning and 3.16 To keep the Premises at all times in a clean and
Cleaning sanitary state and condition, and for the better observance
Contractors hereof to employ as cleaners of the Premises (at the expense
of the Tenant) a firm of specialist cleaners to be nominated
by the Landlord.
Refuse and 3.17 To be responsible for the removal of refuse and garbage
Garbage from the Premises to such location within or adjacent to the
Removal Building as shall be specified by the Landlord or the
Manager from time to time and to use only such type of
refuse container as is specified by the Landlord from time
to time. In the event of the Landlord or the Manager
providing a collection service for refuse and garbage the
same shall be used by the Tenant to the exclusion of any
other similar service and the Tenant shall bear an
appropriate proportion of the reasonable cost of such
service.
-18-
Installation 3.18 Subject to sub-clause 3.03(E) of this Clause the Tenant
of Telephone shall make its own arrangements with regard to the
Cables installation of telephones or other communication systems in
the Premises, but the installation of telephone and
communication lines outside the Premises must be in the
common ducting provided in the Building for that purpose and
in all respects in accordance with the Landlord's
directions.
Directory 3.19 To pay the Landlord immediately upon demand the
Boards reasonable cost of affixing repairing or replacing as
necessary the Tenant's name in lettering to the directory
board at the entrances to the Building and to the directory
board on the floor on which the Premises are situated.
Contractors 3.20 To be liable for any act default negligence or omission
Employees of the Tenant's contractors employees invitees licensees as
Invitees and if it were the act default negligence or omission of the
Licensees Tenant and to indemnify the Landlord against all costs
claims demands expenses or liability to any third party in
connection therewith.
Damage to 3.21 To pay to the Landlord immediately on demand the costs
Building of repairing any part of the Building or the Development or
any of the lifts or other services and facilities installed
therein that may be damaged by reason of any act default or
neglect on the part of the Tenant its agents servants
invitees or licensees.
Building Rules 3.22 To obey and comply with the Building Rules and Carpark
and Regulations Rules made by the Manager from time to time pursuant to the
provisions of the Head Lease and also such Regulations as
may from time to time be made or adopted by the Landlord in
accordance with Section X hereof.
User 3.23 To use the Premises for the purposes described in the
Third Schedule and for no other purposes whatsoever.
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Yield Up Premises 3.24 To yield up the Premises with all fixtures fittings and
& Handover additions therein and thereto (other than the Tenant's
fixtures and fittings) at the expiration or sooner
determination of this Lease in good clean and tenantable
repair and condition in accordance with the stipulations
hereinbefore contained (excepted as in Clause 3.04 hereof is
excepted) together with all keys giving access to all parts
of the Premises Provided That the Tenant shall at the
Tenant's sole cost and expense remove or do away with all or
any alterations fixtures fittings or additions made or
installed by the Tenant or any part or portion thereof and
to make good and repair in a proper and workmanlike manner
any damage to the Premises and the Landlord's fixtures and
fittings therein as a result thereof and reinstate the
Premises or any part thereof to the original condition
thereof as at the date when possession was first handed over
to the Tenant before delivering up the Premises to the
Landlord PROVIDED FURTHER THAT without limitation to the
generality of the foregoing it is hereby expressly agreed
that:-
(a) the Tenant shall remove all or any fixtures or fittings
purchased by the Tenant from the Landlord;
(b) if the Tenant removes any of the raised floor panels
with or without the approval of the Landlord the Tenant
shall at its own risk cost and expense store all panels
so removed and shall upon the expiration or sooner
determination of this Lease at its cost and expense
reinstate the raised floor panels at the relevant part
of the Premises; and
-20-
(c) if the Tenant carries out any other work to the raised
flooring system with or without the approval of the
Landlord the Tenant shall upon the expiration or sooner
determination of this Lease, at its own cost and
expense reinstate the raised flooring system to the
same condition as at the commencement of this Lease
(excepted as in Clause 3.04 hereof is excepted) and to
the extent to which such reinstatement cannot be
effected the Tenant shall at its own cost and expense
replace the relevant part of the raised flooring
system.
Inform Landlord 3.25 To inform the Landlord forthwith in writing of any
change of change of the Tenant's business name.
business name
Insurance 3.26 To effect and during the currency of this tenancy and
any period during which the Tenant is in occupation of the
Premises or any part thereof insurance cover
(a) in respect of third party and/or public liability for
loss or damage to any person or property whatsoever
caused through or by any act default or neglect of the
Tenant which might give rise to a claim of indemnity
pursuant to Clause 3.10 hereof;
(b) in respect of the full replacement value of all glass
now or hereafter on or in the Premises; and
(c) against damage to fixtures and fittings for the full
insurable value occurring in respect of the use or
misuse of the fire sprinkler system installed within
the Premises or the incursion of water herein.
-21-
The policy of insurance shall be endorsed to show the
Landlord as the beneficiary and shall be effected with a
reputable insurance company and in such amount as shall be
approved by the Landlord and shall contain a clause to the
effect that the insurance cover thereby effected and the
terms and conditions thereof shall not be cancelled modified
or restricted without notice in advance to the Landlord. The
Tenant hereby further undertakes to produce to the Landlord
as and when required by the Landlord such policy of
insurance together with a receipt for the last payment of
premium and a certificate from the insurance company that
the policy is in all respects valid and subsisting.
SECTION IV
LANDLORD'S OBLIGATIONS AND RIGHTS
4. The Landlord agrees with the Tenant as follows:-
Quiet Enjoyment 4.01 To permit the Tenant (duly paying the rent, the
Air-conditioning Charges the Management Charges and rates
and other payments 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
conditions and obligations herein contained) to have quiet
possession and enjoyment of the Premises during the Term
without any interruption by the Landlord or any person
lawfully claiming under or through or in trust for the
Landlord.
Government Rent 4.02 To pay the Government Rent, Property Tax and all
payments of a capital nature necessary for the proper
discharge of the Landlord's obligations and duties hereunder
attributable to or payable in respect of the Premises and to
pay all taxes, assessments, duties, impositions and charges
now or hereafter imposed or levied on the Landlord or owner
of the Premises by the Government of Hong Kong.
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Roof and Main 4.03 To use its reasonable endeavours to maintain or cause
Structure the Manager to maintain and keep the main structure roofs
main electricity supply cables main drains water pipes main
walls and exterior window frames of the Building (except in
so far as the same are within the responsibility of the
Tenant hereunder) in a proper and substantial state of
repair and condition Provided that the Landlord shall not be
liable for breach of this Clause unless and until written
notice of any defect or want of repair shall have been given
to the Landlord by the Tenant and the Landlord shall have
failed to take reasonable steps to repair or remedy the same
within a reasonable period after the service on it of such
notice.
Maintenance of 4.04 To carry out maintenance to the Common Areas of the
Common Areas Building as the Landlord shall in its absolute discretion
decide necessary.
Maintenance of 4.05 To use its reasonable endeavours to maintain or cause
Services the Manager to maintain the escalators, lifts, fire services
equipment, security installations and air-conditioning
plant and water chilling apparatus and other services
provided within the Building not within the Premises in
proper working order and condition.
Air-
conditioning
4.06 (a) The Landlord shall subject to Sub-clause 4.08(c) of
this Section and to Sub-clause 6.01(a) of Section
VI of this Lease provide and maintain or cause the
Manager to provide and maintain for the Premises
during Normal Business Hours as hereinafter defined
an air-conditioning service at a charge to the
Tenant as set out in Part II of the Second
Schedule;
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(b) Subject to Sub-clause 4.08(c) of this Section and
to Sub-clause 6.01(a) of Section VI of this Lease
the Landlord shall supply or cause the Manager to
supply the Tenant with an air-conditioning service
outside Normal Business Hours as specified
hereunder upon request being made by the Tenant to
the Landlord. The cost of such additional hours of
air-conditioning service, including the cost of
running the necessary air-conditioning plant and
equipment, is currently HKS180.00 per hour for each
floor comprised in the Premises (subject to
reasonable change as determined by the Landlord and
notified to the Tenant from time to time) and shall
be paid on demand by the Tenant to the Landlord as
additional rent.
Observance of 4.07 To observe and perform all the covenants and conditions
the Head Lease of the Head Lease and on the lessee's part to be observed
and performed, so far as they relate to the remaining parts
of the Building other than the Premises, or so far as the
Tenant is not liable for such performance under this Lease.
Rights Reserved 4.08 It is hereby agreed and expressly confirmed that the
to the Landlord following rights are excepted and reserved to the Head
and the Manager Landlord, the Landlord, the Manager and their respective
successors and assigns and all persons having the like right
throughout the Term:-
(a) the right of free and uninterrupted passage and running
of water, soil, gas, drainage, electricity and all
other services or supplies through such sewers,
watercourses, conduits, pipes, wires, cables and ducts
as are now or may hereafter be in, on or
-24-
under the Premises and serving or capable of serving
the Building or any adjoining or neighbouring property
TOGETHER WITH the right to enter upon the Premises to
inspect repair replace or maintain any such sewers,
watercourses, conduits, pipes, wires, cables and ducts
Provided That the exercise of this right shall be in a
manner that is reasonable in all the circumstances;
(b) the full and free right and liberty to enter upon the
Premises in the circumstances in which the agreements
by the Tenant contained in these presents permit such
entry and in particular but without prejudice to the
generality of the foregoing the right to enter into and
upon the Premises at all times by prior reasonable
notice to the Tenant for the purpose of obtaining
access to and egress from any machinery or switch rooms
or the like remaining under the control of the Head
Landlord, the Landlord or the Manager and located on
any of the floors of the Building on which any portion
of the Premises is situated;
(c) the right from time to time on giving prior reasonable
notice to the Tenant (such notice not to be required in
case of emergency or breakdown) and causing as little
inconvenience to the Tenant as reasonably possible to
suspend the air-conditioning system, lifts, escalators
(if any), electric power, water supply and any other
building services provided in or serving the Building
for the purpose of servicing, maintaining, repairing,
renewing, improving or replacing the same and any of
them Provided however that (except in case of
unavoidable breakdown or emergency which puts or
requires all the lifts servicing the Premises to be put
out of action simultaneously) at least one of the lifts
serving the Premises shall be maintained in operation
in all times.
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SECTION V
RESTRICTIONS AND PROHIBITIONS
5. The Tenant agrees with the Landlord and undertakes:-
Installation 5.01 (a) Not to make or permit or suffer to be made any
and alterations in or additions to the Premises or to
Alterations the sprinkler system, electrical wiring
installations, air-conditioning ducting lighting
fixtures or other Landlord's fixtures or to install
any plant apparatus or machinery (other than normal
office machinery) therein without first having
obtained the written consent of the Landlord (such
consent shall not be unreasonably withheld or
delayed);
(b) Not to place on any part of the Premises any object of
any kind including any safe of a weight in excess of
the maximum floor loading capacity of the Premises;
(c) Not to install any air-conditioning plant or equipment
of any kind on or within or at any part of the Premises
without the prior consent of the Landlord in writing
(such consent shall not be unreasonably withheld or
delayed) AND the Tenant shall comply with the
reasonable directions and instructions of the Landlord
regarding installation and shall at its own expense be
responsible for their periodic inspection maintenance
and repair and for the replacement of defective wiring
and the Tenant shall be strictly liable for any damage
caused by the installation operation defect or removal
of such units;
-26-
(d) Not to make or permit or suffer to be made any
alterations in or additions to the mechanical or
electrical installations in the Building nor to install
or permit or suffer to be installed any equipment,
apparatus or machinery which exceeds the loading of the
electrical installations in the Building nor to install
or permit or suffer to be installed any equipment,
apparatus or machinery which exceeds the loading of the
electrical main or wiring or which consumes electricity
not metered through the Tenant's separate meter;
(e) Not to make or permit or suffer to be made any
alterations to any installation or fixture so as to
affect or be likely to affect the supply of water,
electricity or other utility or service to or in the
Building.
Injury to Walls 5.02 Not to cut maim or injure or permit or suffer to be cut
or Floors maimed or injured any doors windows window frames walls
beams slabs structural members raised floors or other part
of the fabric of the Premises or any of the plumbing or
sanitary or air conditioning apparatus or installations
included therein or lay or use any floor covering or do
anything which may damage or penetrate the raised flooring
or slab without the prior written consent of the Landlord
(such consent shall not be unreasonably withheld or delayed
where the structure of the Premises is not affected).
No Alterations 5.03 Not to affix anything or paint or make any
To Exterior alteration whatsoever to the exterior of the Premises.
Obstructions to 5.04 Not to block up, darken or obstruct or obscure any of
Outside Windows the windows or lights belonging to the Premises.
-27-
Not Erect Gates 5.05 Not without the prior written consent of the Landlord
or Grilles to erect or install doors, gates, grilles, shutters or other
similar installation whatsoever whether temporary or
permanent at the doorway or entrance to the Premises or at
any of the fire exits therefrom or erect any such door or
grille or shutter or gate that might in any way contravene
the regulations from time to time in force of the Fire
Services Department or other competent authority concerned,
nor in any other respect to contravene the said regulations.
Noise 5.06 Not to cause or produce or suffer or permit to be
produced on or in the Premises any sound or noise (including
sound produced by broadcasting from Television, Radio and
any apparatus or instrument capable of producing or
reproducing music and sound) or any vibration or resonance
or other form of disturbance or other acts or things in or
on the Premises which is or are or may be or become a
nuisance or annoyance to the tenants or occupiers of
adjacent or neighbouring premises within the Building or in
any other part of Taikoo Place or elsewhere.
Signs 5.07 Not without the prior written approval of the Landlord
to exhibit and display within or on the exterior of the
Premises any writing sign signboard or other device whether
illuminated or not which may be visible from outside the
Premises nor without the Landlord's prior written consent to
affix any writing sign signboard or other device in at or
above any Common Area, lobby, landings or corridors of the
Building provided that notwithstanding any provision to the
contrary herein, the Tenant shall have the right to display
(a) two signs within the interior of each floor of the
Premises and (b) signs (one strip per floor of the Premises)
showing the name(s) of the occupant(s) of the Premises at
the Directory Board at the main lobby of the Building.
Auction Sales 5.08 Not to conduct or permit any auction fire bankruptcy
close out or similar sale of things or properties of any
kind to take place on the Premises.
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Illegal or 5.09 Not to use or cause permit or suffer to be used any
Immoral Use part of the Premises for gambling or for any illegal immoral
or improper purposes or in any way so as to cause nuisance
annoyance inconvenience or damage or danger to the Landlord
or the tenants or occupiers of adjacent or neighbouring
premises.
Sleeping or 5.10 Not to use or permit the Premises or any part thereof
Domestic Use to be used as sleeping quarters or as domestic premises
within the meaning of any ordinance for the time being in
force or allow any person to remain on the Premises
overnight without first obtaining the Landlord's permission
in writing for so doing.
Storage of 5.11 Not to use the Premises for the manufacture of goods or
Merchandise and merchandise or for the storage of goods or merchandise other
Hazardous Goods than in small quantities consistent with the nature of the
Tenant's trade or business by way of samples and exhibits
nor to keep or store or cause or permit or suffer to be kept
or stored thereat any arms or ammunition, gun-powder,
salt-xxxxx, petroleum, liquified petroleum gas, butane gas,
kerosene or other explosive or dangerous hazardous or
prohibited goods within the meaning of the Dangerous Goods
Ordinance (Cap. 295) and the regulations made thereunder or
any Statutory modification or re-enactment thereof from time
to time in force.
User 5.12 Not to use the Premises for any purpose other than the
purpose specified in the Third Schedule and in particular
but without prejudice to the generality of the foregoing not
to use the Premises for the purpose of a Buddhist hall or
temple or for the performance of the ceremony known as Xx
Xxxx or for any similar ceremony or for any other religious
purpose or the performance of any religious ceremony.
-29-
Obstructions in 5.13 Not to place or leave or suffer or permit to be placed
Passages or left by any contractor employee invitee or licensee of
the Tenant any boxes furniture articles or rubbish in the
entrance or any of the staircases passages or landings of
the Building used in common with other tenants or the
Landlord or otherwise encumber the same and the Landlord
shall be entitled without notice and at the Tenant's expense
to remove and dispose of as it sees fit any such material
aforesaid and the Landlord shall not thereby incur any
liability to the Tenant or to any person whomsoever and the
Tenant shall indemnify the Landlord against all losses
claims damages or expenses of and against the Landlord in
respect thereof.
Parking & 5.14 Not to park any vehicle in or obstruct or otherwise use
Loading or permit any vehicle to be parked in or be obstructed or
otherwise used by any employee agent or licensee of the
Tenant any of those areas of the Building allocated to
parking or for the movement of or access for vehicles or
designated as loading/unloading areas other than in
accordance with the Building Rules and the Carpark Rules
made from time to time by the Manager under the Head Lease
and the Regulations made from time to time by the Landlord.
Deliveries 5.15 Not without the prior written consent of the Landlord
and use of to take delivery to the Premises of furniture or other large
Passenger Lifts objects during Normal Business Hours as hereinafter defined
(except by the service lifts in the Building) and not to
cause or suffer or permit passenger lifts to be used for
delivery purposes at any time or load or permit or suffer to
he loaded into any service lift or passenger lift in the
Building a weight greater than such lift is designed or
permitted to carry.
-30-
Preparation of 5.16 Not to xxxx or prepare or permit or suffer to be cooked
food and or prepared any food (except for small quantities that may
prevention of be for consumption or testing by the Tenant's employees or
Odours customers Provided that the Tenant shall first apply for
appropriate licenses for such purposes from the relevant
government authorities as may be required by law) or permit
any offensive or unusual odours to be produced upon or
emanate from the Premises.
Not to Misuse 5.17 Not to use or permit or suffer to be used any lavatory
Lavatories facilities whether shared with other tenants or occupiers of
the Building or reserved exclusively for the use of the
Tenant for any purpose other than that for which they are
intended and not to throw or permit or suffer to be thrown
into any W.C. pan, urinal, basin sink or other lavatory
fitting any foreign or deleterious substance of any kind and
to pay to the Landlord on demand the cost of any breakage,
blockage or damage resulting from a breach of this
provision.
Animals, pets 5.18 Not to keep or permit or suffer to be kept any animals
and or pets inside the Premises and to take all such steps and
infestation precautions to the reasonable satisfaction of the Landlord
as shall be necessary to prevent the Premises or any part
thereof from becoming infested by termites rats mice roaches
or any other pests or vermin and for the better observance
hereof the Landlord may require the Tenant to employ at the
Tenant's cost such pest extermination contractors as the
Landlord may approve (which approval shall not be
unreasonably withheld or delayed).
No Touting 5.19 Not to tout or solicit or procure or permit any touting
or soliciting for business or the distribution of any
pamphlets notices or advertising matter outside the Premises
or anywhere within the Building by any of the Tenant's
servants agents licensees or permitted sub-tenants.
-31-
Breach of 5.20 Not to commit any breach of the provisions of the
Government Government Lease or Conditions under which the Development
Lease or is held from the Government or of the Head Lease or of the
Conditions or Deed of Mutual Covenant (if any) or any Sub-Deed of Mutual
Deed of Mutual Covenants affecting the Building and/or the Development and
Covenants to indemnify the Landlord against the consequences of any
such breach.
Breach of 5.21 Not to cause suffer or permit to be done any act or
Insurance thing whereby the policy or policies of insurance on the
Policy 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 premia thereon
may be increased and to repay to the Landlord on demand all
sums paid by the Landlord by way of increased premium or
premia thereon and all expenses incurred by the Landlord in
and about any renewal of such policy or policies arising
from or rendered necessary by such breach.
Alienation 5.22 The Tenant shall not 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 Lease obtains the use or 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 Lease shall absolutely
determine and the Tenant shall forthwith vacate the Premises
on notice to that effect from the Landlord. The Tenancy
shall be personal to the Tenant named in the First Schedule
to this Lease and without in any way limiting the generality
of the foregoing the following acts and events shall unless
approved in writing by the Landlord be deemed to be breaches
of this Clause:-
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(a) In the case of a tenant which is a partnership
the taking in of one or more new partners whether
on the death or retirement of an existing partner
or otherwise;
(b) In the case of a tenant who is an individual
(including a sole surviving partner of a
partnership tenant) the death insanity or
disability of that individual to the intent that no
right to use possess occupy or enjoy the 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 takeover, amalgamation or voluntary liquidation
thereof:
(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 possess occupy or enjoy
the Premises or any part thereof or does in fact
use possess occupy or enjoy the same;
(e) The change of the Tenant's business name
PROVIDED that the sharing of the Premises or any
part (s) thereof as Licensee(s) only with any one
or more company or companies which is/are and
remain(s) at all times a Related Company of the
Tenant (as hereinafter defined) shall not be a
breach of this clause provided that the Tenant
provides full particulars beforehand to the
Landlord of such sharing and of the Related Company
of the Tenant concerned and provided that such
sharing of occupation is terminated forthwith in
the event that such company ceases to be a Related
Company of the Tenant as so defined.
-33-
Advertising of 5.23 Not to erect upon the Premises, the Building or any
Premises part thereof any sign or display advertising the Premises or
any part thereof as being available for letting or
sub-letting or issue any pamphlet publicity or advertisement
in any form whatsoever with regard to any proposed letting
or sub-letting of the Premises.
Not to commit 5.24 Not to do omit suffer or permit in relation to the
breach of Head Premises anything in contravention of any of the lessee's
Lease covenants and other provisions in the Head Lease contained
or any act or thing which would or might cause the Landlord
to be in breach of the Head Lease.
SECTION VI
EXCLUSIONS
6.01 IT IS HEREBY FURTHER EXPRESSLY AGREED AND DECLARED that
the Landlord shall not in any circumstances (other than
those arising from its own gross negligence or wilful
default or that of its servants contractors agents or
licensees) be liable to the Tenant or any other person
whomsoever:-
Lifts, Air- (a) In respect of any loss of profit or of business or loss
conditioning, of life or loss, injury or damage to person or property
Utilities or for any disruption or inconvenience caused to or
suffered or sustained by the Tenant or any other person
caused by or through or in any way owing to or arising
out of or connected with any defect in or breakdown or
suspension of service of the lifts air-conditioning
system, electric power or water supplies, or any other
building service provided in or serving the Building,
or
-34-
Fire and (b) In respect of any loss of profit or of business or
overflow of loss of life or loss injury or damage to person or
water property or for any disruption or inconvenience caused
to or suffered or sustained by the Tenant or any other
person caused by or through or in any way owing to or
arising out of or connected with any escape of fumes
smoke fire or any other substance or thing or the
overflow of water from anywhere within the Building or
any part of the Development or in any way attributable
to fire storm tempest flood Act of God or other
inevitable accident, or
Security (c) For the security or safekeeping of the Premises or any
contents therein and in particular but without
prejudice to the generality of the foregoing the
provision by the Landlord or the Manager or watchmen
and caretakers shall not create any obligation on the
part of the Landlord or the Manager as to the security
of the Premises or any contents therein and the
responsibility for the safety of the Premises and the
contents thereof shall at all times rest with the
Tenant.
SECTION VII
SUSPENSION OF RENT
Suspension of 7.01 If the Premises or the Building or any part thereof
Rent in case of shall at any time during the Term be destroyed or damaged or
fire etc. become inaccessible owing to fire water storm typhoon
defective construction white ants earthquake subsidence of
the ground or any calamity beyond the control of the
Landlord or the Tenant so as to render the Premises or any
part thereof unfit for commercial use or inaccessible and
the policy or policies of insurance for such risk effected
by the Landlord shall not have been vitiated or payment of
the policy moneys refused in whole or in part in consequence
of any act or default of the Tenant or if at any time during
the continuance of this tenancy the Premises shall be
condemned as a dangerous
-35-
structure or a demolition order or closing order shall
become operative in respect of the Premises or any part
thereof then the rent and other charges hereby reserved or a
fair proportion thereof according to the nature and extent
of the damage sustained or order made shall be suspended,
rent and other charges paid in advance in respect of the
current month being refunded, until the Premises shall again
be rendered accessible and fit for commercial use PROVIDED
THAT in circumstances when the whole or substantially the
whole of the Premises have been rendered inaccessible or
unfit for commercial use and should the Premises 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 or destruction or order give to the other of
them notice in writing to determine this Lease 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 or any part thereof
becoming inaccessible or unfit for commercial use 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.
SECTION VIII
DEFAULT
8. It is hereby expressly agreed and declared as follows:-
Default 8.01 If the rent and/or the Air-conditioning Charges or
Management Charges or any other moneys payable hereunder or
any part thereof shall be in arrears for fifteen (15) days
after the same shall have become payable (whether formally
demanded or not) or if there shall be
-36-
any breach or non-performance of any of the stipulations
conditions or agreements herein contained and on the part of
the Tenant to be observed or performed or if the Tenant
shall stop or suspend payment of its debts or be unable to
or admit inability to pay its debts as they fall due or
enter into any scheme of arrangement with its creditors or
have an encumbrancer take possession of any of its assets or
have a receiving order made against it or in such
circumstances as aforesaid fail to satisfy any judgement
that may be given in any action against it after final
appeal or go into liquidation (save for the purposes of
amalgamation or reconstruction) or if the Tenant shall
suffer execution to be levied upon the Premises (except upon
such part thereof which has been sublet with the Landlord's
consent) or otherwise on the Tenant's goods or if in such
circumstances as aforesaid the Tenant shall suspend or cease
or threaten to suspend or cease to carry out its business or
should any event occur or proceeding be taken with respect
to the Tenant in any jurisdiction to which the tenant is
subject which has an effect equivalent or similar to any of
the events or circumstances described above then and in any
such case it shall be lawful for the Landlord at any time
thereafter to re-enter on and upon the Premises or any part
thereof in the name of the whole and thereupon this Lease
shall absolutely determine but without prejudice to any
right of action or non-observance or non-performance by the
Tenant of any of the terms of this Lease. A written notice
served by the Landlord on the Tenant in manner hereinafter
provided to the effect that the Landlord thereby exercises
the power of determination and/or re-entry hereinbefore
contained shall be a full and sufficient exercise of such
power without physical entry on the part of the Landlord
notwithstanding any statutory or common law provision to the
contrary. All costs and expenses including legal costs
incurred by the Landlord in demanding and enforcing payment
of the rent and other charges payable hereunder (if the
Landlord elects to demand) and in exercising its rights
and/or remedies or in attempting to do so shall be paid by
the Tenant and shall be recoverable from the Tenant as a
debt.
-37-
Interest 8.02 Notwithstanding anything herein contained in the event
of default in payment of rent or other monies payable by the
Tenant hereunder (whether formally demanded or not) the
Tenant shall pay to the Landlord on demand daily interest on
all such sums outstanding at the rate of 3% above the prime
lending rate of the Hongkong and Shanghai Banking
Corporation Limited from time to time calculated from the
date on which the same shall be due for payment. (in
accordance with the provisions contained in that behalf
herein) until the date of payment provided that the demand
and/or receipt by the Landlord of interest pursuant to this
Clause shall be without prejudice to and shall not affect
the right of the Landlord to exercise any other right or
remedy hereof (including but without prejudice to the
generality of the foregoing the right of re-entry)
exercisable under the terms of this Lease.
Acceptance of 8.03 The acceptance of any rent by the Landlord shall not be
Rent deemed to operate as a waiver by the Landlord of any right
to proceed against the Tenant in respect of any breach
non-observance or non-performance by the Tenant of any of
the agreements stipulations terms and conditions herein
contained and on the part of the Tenant to be observed and
performed.
Without prejudice to the other rights of the Landlord, if
the Tenant shall during the Term default in payment of any
of the Rent or other sums payable by the Tenant hereunder
for more than three (3) times, the Tenant shall be deemed to
have persistently failed to pay the Rent on its due date
causing administrative inconvenience or nuisance to the
Landlord and the Landlord shall be entitled to terminate
the Agreement forthwith. On the exercise of the Landlord's
right of termination under this Agreement, the Landlord
shall have the right, if this Agreement shall have been
registered in the Land Registry, to register at the Land
Registry an instrument signed by the Landlord alone to
terminate this Agreement and this sub-clause shall not
prevent the Landlord from recovering
-38-
in addition to interest, other amounts or loss suffered by
the Landlord by reason of the Tenant's breach. Time for
payment by the Tenant of any money payable hereunder shall
be of the essence of this Agreement in every respect.
Acts of Employees 8.04 For the purpose of these presents any act default
Invitees and neglect or omission of any guest visitor servant contractor
Licenses employee agent invitee or licensee of the Tenant shall be
deemed to be the act default neglect or omission of the
Tenant.
Distraint 8.05 For the purposes of Part III of the Landlord and Tenant
(Consolidation) Ordinance (Chapter 7) and of these presents,
the rent payable in respect of the Premises shall be and be
deemed to be in arrears if not paid in advance at the times
and in the manner hereinbefore provided for payment thereof.
Exercise of 8.06 A written notice served by the Landlord on the Tenant
Right of Re- in manner hereinafter mentioned to the effect that the
Entry Landlord thereby exercises the power of re-entry herein
contained shall be a full and sufficient exercise of such
power without actual entry on the part of the Landlord.
[For Cash deposit only]
SECTION IX
DEPOSIT
Deposit 9.01 The Tenant shall on the signing hereof deposit with the
Landlord in cash the sum or sums specified in paragraph (1)
of Part IV of the Second Schedule ("the Deposit") 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 Deposit shall be held by the Landlord
throughout the currency of this Lease free of any interest
to the Tenant with the right for the
-39-
Landlord (without prejudice to any other right or remedy
hereunder) to deduct therefrom the amount of any rent rates
and other charges payable hereunder 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 agreements, stipulations, obligations or conditions.
In the event of any deduction being made by the Landlord
from the Deposit in accordance herewith during the currency
of this Lease the Tenant shall forthwith 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 forthwith to re-enter upon the Premises and to
determine this Lease as hereinbefore provided.
Increase of 9.02 The amount of the cash deposit stipulated in Clause
Deposit 9.01 shall be increased, following each and any review in
rent to market rent or increase in Air-Conditioning Charges
and/or Management Charges, so that the total amount of the
Deposit shall be for a sum equal to (i) [ ] months' rent at
the rent payable after the review in question. (iii) [ ]
months' Air-conditioning Charges at the rate at that time
payable by the Tenant hereunder and (iii) [ ] months'
Management Charges at the rate at that time payable by the
Tenant hereunder.
Repayment of 9.03 Subject as aforesaid the Deposit and any further
Deposit deposits paid shall be refunded to the Tenant by the
Landlord without interest within thirty days after the
expiration or sooner determination of this Lease and
delivery of vacant possession to the Landlord and after
settlement of the last outstanding claim by the Landlord
against the Tenant for any arrears of rent rates and other
charges and for any breach non-observance or non-
performance of any of the agreements stipulations terms and
conditions herein contained and on the part of the Tenant to
be observed or performed whichever shall be the later
-40-
Transfer of 9.04 The parties hereto agree that in the event of the
Deposit Landlord assigning or transferring the ownership of the
Premises or the Building of which the Premises forms part to
any person ("the New Owner") prior to the termination of the
Term of this Lease subject to and with the benefit of this
Lease, the Landlord shall be at liberty to transfer the
Deposit paid by the Tenant under the Lease (less any
deduction which the Landlord may make according to the terms
of this Lease and the said rental deposit or the balance
thereof after the said deduction shall hereinafter be
referred to as "the Rental Deposit") to the New Owner and in
that event the Tenant shall waive all claims against the
Landlord for the refund of the Rental Deposit but nothing
herein provided shall prejudice or affect the right of the
Tenant to claim against the New Owner for refund of the same
AND a written notice sent by the Landlord or the Landlord's
solicitors by ordinary post to the Tenant to the address
stated herein notifying the change of ownership of the
Premises shall be conclusive evidence that the Rental
Deposit has been transferred to the New Owner unless the
contrary intention is expressed in the said notice.
[Bank Guarantee]
SECTION IX
DEPOSIT
Deposit 9.01 The Tenant shall on the signing hereof provide the
Landlord with a bank guarantee for the sum specified in
paragraph (1) of Part IV of the Second Schedule ("the Bank
Guarantee") 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 Bank Guarantee shall be held
by the Landlord throughout the currency of this Lease free
of any interest to the Tenant
-41-
with the right for the Landlord (without prejudice to any
other right or remedy hereunder) to enforce the Bank
Guarantee for payment of the amount of any rent rates and
other charges payable hereunder 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 agreements, stipulations, obligations or conditions. In
the event the Bank Guarantee being enforced by the Landlord
in accordance herewith during the currency of this Lease the
Tenant shall forthwith on demand by the Landlord provide a
further bank guarantee equal to the amount so enforced and
failure by the Tenant so to do shall entitle the Landlord
forthwith to re-enter upon the Premises and to determine
this Lease as hereinbefore provided.
Increase of 9.02 The extent of the amount of the Bank Guarantee
Deposit stipulated in Clause 9.01 shall be increased, following each
and any review in rent to market rent or increase in
Air-conditioning Charges and/or Management Charges, so that
the total extent of the Bank Guarantee shall be for a sum
equal to (i) [ ] months' rent at the rent payable after the
review in question. (ii) [ ] months' Air-conditioning
Charges at the rate at that time payable by the Tenant
hereunder and (iii) [ ] months' Management Charges at the
rate at that time payable by the Tenant hereunder.
Cancellation of 9.03 Subject as aforesaid the Bank Guarantee and any further
guarantee bank guarantees or supplements provided shall be returned to
the Tenant for cancellation by the Landlord without interest
within sixty days after the expiration or sooner
determination of this Lease and delivery of vacant
possession to the Landlord and after settlement of the last
outstanding claim by the Landlord against the Tenant for any
arrears of rent rates and other charges and for any breach
non-observance or non-performance of any of the agreements
stipulations terms and conditions herein contained and on
the part of the Tenant to be observed or performed whichever
shall be the later.
-42-
Issue of 9.04 The parties hereto agree that in the event of the
replacement Landlord assigning or transferring the ownership of the
guarantee Premises or the Building of which the Premises forms part to
any person ("the New Owner") prior to the termination of the
Term of this Lease subject to and with the benefit of this
Lease, the Landlord shall be at liberty to transfer/assign
the benefits of the Bank Guarantee provided by the Tenant to
the New Owner but in the event the Bank Guarantee is not
transferrable nor assignable, the Tenant shall provide a new
bank guarantee to the New Owner in replacement of the Bank
Guarantee if so requested by the Landlord. The aforesaid
transfer shall be subject to the right of the Landlord to
enforce the Bank Guarantee under the terms of this Lease and
in the event of transfer or assignment as aforesaid, the
Tenant shall waive all claims against the Landlord for the
return of the Bank Guarantee if it has been transferred or
assigned as aforesaid but nothing herein provided shall
prejudice or affect the right of the Tenant to claim against
the New Owner for return of the same AND a written notice
sent by the Landlord or the Landlord's solicitors by
ordinary post to the Tenant to the address stated herein
notifying the change of ownership of the Premises shall be
conclusive evidence that the Bank Guarantee has been
transferred (if it has not been replaced) to the New Owner
unless the contrary intention is expressed in the said
notice.
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[Cash Deposit and Bank Guarantee]
SECTION IX
DEPOSIT
Cash Deposit 9.01 The Tenant shall on the signing hereof deposit with the
Landlord in cash the sum or sums specified in paragraph (1)
of Part IV of the Second Schedule ("the Cash Deposit") and
provide to the Landlord a bank Guarantee for such amount
specified in paragraph ( 2 ) of Part IV of the Second
Schedule ("the Bank Guarantee") (the Cash deposit and the
Bank Guarantee are collectively referred to as "the
Deposit") 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 Deposit shall be held by the
Landlord throughout the currency of this Lease free of any
interest to the Tenant with the right for the Landlord
(without prejudice to any other right or remedy hereunder)
to deduct from the Cash Deposit the amount of and/or to
enforce the Bank Guarantee for payment of any rent rates and
other charges payable hereunder 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 agreements, stipulations, obligations or conditions. In
the event of any deduction being made by the Landlord from
the Cash Deposit and/or the Bank Guarantee being enforced by
the Landlord in accordance herewith during the currency of
this Lease the Tenant shall forthwith on demand by the
Landlord make a further deposit equal to the amount so
deducted and/or to provide a further bank guarantee equal to
the amount so enforced and failure by the Tenant so to do
shall entitle the Landlord forthwith to re-enter upon the
Premises and to determine this Lease as hereinbefore
provided.
-44-
Increase of 9.02 The amount of the Cash Deposit and the extent of the
Deposit Bank Guarantee stipulated in Clause 9.01 shall be increased,
following each and any review in rent to market rent or
increase in Air-conditioning Charges and/or Management
Charges, so that the total amount of the Cash Deposit and
the extent of the Bank Guarantee shall be for a sum equal to
(i) [three months'] rent at the rent payable after the
review in question. (ii) [three months'] Air-conditioning
Charges at the rate at that time payable by the Tenant
hereunder and (iii) [three months'] Management Charges at
the rate at that time payable by the Tenant hereunder.
Repayment of 9.03 Subject as aforesaid, (i) the Cash Deposit and any
Deposit further cash deposits paid shall be refunded and the Bank
Guarantee and any further bank guarantees and supplements
provided shall be returned to the Tenant by the Landlord
without interest within thirty days for Cash Deposits and
within sixty days for Bank Guarantee after the expiration or
sooner determination of this Lease and delivery of vacant
possession to the Landlord and after settlement of the last
outstanding claim by the Landlord against the Tenant for any
arrears of rent rates and other charges and for any breach
non-observance or non-performance of any of the agreements
stipulations terms and conditions herein contained and on
the part of the Tenant to be observed or performed whichever
shall be the later.
Transfer of 9.04 The parties hereto agree that in the event of the
Deposit Landlord assigning or transferring the ownership of the
Premises or the Building of which the Premises forms part to
any person ("the New Owner") prior to the termination of the
Term of this Lease subject to and with the benefit of this
Lease, the Landlord shall be at liberty to transfer the Cash
Deposit paid and transfer/assign the
-45-
benefits of the Bank Guarantee provided by the Tenant to the
New Owner but in the event the Bank Guarantee is not
transferrable nor assignable, the Tenant shall provide a new
bank guarantee to the New Owner in replacement of the Bank
Guarantee if so requested by the Landlord. The aforesaid
transfer or assignment shall be subject to (i) any deduction
which the Landlord may make according to the terms of this
Lease and the said rental deposit or the balance thereof
after the said deduction shall hereinafter be referred to as
"the Rental Deposit" and/or (ii) the Landlord's right to
enforce the Bank Guarantee in accordance with the terms of
this Lease and in the event of transfer or assignment as
aforesaid, the Tenant shall waive all claims against the
Landlord for the refund of the Rental Deposit and the return
of the Bank Guarantee if the Bank Guarantee has been
transferred or assigned as aforesaid but nothing herein
provided shall prejudice or affect the right of the Tenant
to claim against the New Owner for refund or return of the
same AND a written notice sent by the Landlord or the
Landlord's solicitors by ordinary post to the Tenant to the
address stated herein notifying the change of ownership of
the Premises shall be conclusive evidence that the Rental
Deposit has been transferred and the Bank Guarantee has been
assigned (if it has not been replaced) to the New Owner
unless the contrary intention is expressed in the said
notice.
SECTION X
REGULATIONS
Introduction of 10.01 The Landlord shall be entitled from time to time
Regulations and by notice in writing to the Tenant to make introduce
and subsequently amend adopt or abolish if necessary such
Regulations as it may reasonably consider necessary for
the proper operation and maintenance of the Building.
-46-
Conflict 10.02 Such Regulations shall be supplementary to the terms
and conditions contained in this Lease and shall not in any
way derogate from such terms and conditions. In the event of
conflict between such Regulations and the terms and
conditions of this Lease the terms and conditions of this
Lease shall prevail.
Exclusion of 10.03 The Landlord shall not be liable for any loss or
Liability damage howsoever caused or arising from any non-enforcement
of the Regulations or non-observance thereof by any person.
SECTION XI
INTERPRETATION AND MISCELLANEOUS
Marginal Notes, 11.01 The Marginal Notes, Headings and Index are intended
Headings and for guidance only and do not form a part of this Lease nor
Index shall any of the provisions of this Lease be construed or
interpreted by reference thereto or in any way affected or
limited thereby.
Definitions 11.02 In this Lease the following expressions whenever used
shall (save where the context otherwise requires) have the
following meanings:-
"the Building" means that part of the two commercial/office
towers constructed as part of the Development known as PCCW
Tower of which particulars are contained in Part II of the
First Schedule hereto.
-00-
"xxx Xxxxxxxxxxx" means the development comprising two
office/commercial towers with car-parking and other
facilities erected on some part or parts of the piece or
parcel of land at Xxxxxx Xxxxx, Xxxxxx Xxx, Xxxx Xxxx know
and registered at the Land Registry as SECTION S AND THE
REMAINING PORTION OF QUARRY BAY MARINE LOT NO. 1 comprising
both the tower block now know as "Dorset House" and the
Building and the podium on which the same are constructed.
"the Manager" means the Manager from time to time of the
Development appointed pursuant to the provisions of the Head
Lease.
"Normal Business Hours" means the hours other than on
Sundays and Public Holidays, between 8.00 a.m. and 7.00 p.m.
on each Monday to Friday and between 8.00 a.m. and 2.00 p.m.
on each Saturday which is not a Public Holiday.
"Related Company" means and any other entity:
(a) not less than 10% of whose voting shares or securities;
or
(b) not less than 10% of the composition of whose broad of
directors; or
(c) not less than 10% of whose issued share capital or
ownership interest;
are now or hereafter owned or controlled directly or
indirectly by.
Gender 11.03 In this Lease unless the context otherwise requires
words importing the singular number shall include the plural
number and vice versa and words importing a gender shall
include every gender and references to persons include
bodies corporate or unincorporate.
Lettable Floor 11.04 For the purposes of Special Conditions set out in the
Area Fourth Schedule hereto, the lettable floor area of the
Premises shall be deemed to be square feet.
-48-
Name of 11.05 The Landlord reserves the right to name the Building
Building with any such name or style as it in its sole discretion may
determine and at any time and from time to time to change,
alter, substitute or abandon any such name without thereby
becoming liable to compensate the Tenant for any loss
expense or inconvenience caused to the Tenant as a
consequence thereof provided that the Landlord shall give
the Tenant and the Postal and other relevant Government
Authorities not less than three months' notice of its
intention so to do.
Alterations to 11.06 The Landlord reserves the right from time to time to
the Building improve extend or add to or reduce the Building or in any
manner whatsoever to alter or deal with the Building (other
than the Premises) without being liable to the Tenant in
respect thereof Provided always that such improvements and
alterations shall not affect the area of the Premises and in
exercising such right the Landlord will endeavour to cause
as little inconvenience to the Tenant as is practicable in
the circumstances and the Tenant shall not make any claim
against the Landlord for any inconvenience caused.
Condonation not 11.07 No condoning, excusing or overlooking by the Landlord
a Waiver of any default, breach or non-observance or non-performance
by the Tenant at any time or times of any of the agreements
stipulations terms and conditions 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 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
-49-
and shall in no way 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.
Letting Notices 11.08 During the three months immediately before the
and Entry expiration or sooner determination of the Term the Landlord
shall be at liberty to affix and maintain without
interference upon any 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
reasonably require.
Service of 11.09 Any notice required to be served on the Tenant shall
Notices be sufficiently served if delivered or despatched by
registered post to or left at the Premises. Any notice
required to be served on the Landlord shall be sufficiently
served if delivered or despatched by registered post to its
principal place of business from time to time. A notice sent
by registered post shall be deemed to be given at the time
and date of posting.
Stamp Duty and 11.10 Each of the parties hereto shall bear its own legal
Costs costs in relation to the preparation approval and execution
of this Lease. The stamp duty hereon and Land Registry fees
(if any) shall be borne by the Landlord and the Tenant in
equal shares.
Deed of Mutual 11.11 The Tenant shall observe and comply with and perform
Covenant all covenants terms and provisions in any Deed of Mutual
Covenant and Management Agreement now or at any future time
in force relating to the Building so far as they relate to
the premises and shall indemnify the Landlord against the
breach non-observance or non-performance thereof provided
however that such documents shall not contain any covenants
or conditions expressed to be binding upon the owner or
occupier or any tenant of any
-50-
portion of the Building which shall be incompatible with or
place any unreasonable restriction upon the proper use of
the Premises by the Tenant for the purposes of its
legitimate business as described in the Third Schedule and
shall not derogate from any of the rights and privileges
granted to the Tenant by virtue of the provisions of this
Lease.
No Key Money 11.12 The Tenant hereby expressly declares that for the
grant of the Term no key money or premium or construction
money or other consideration otherwise than the rent and
other payments herein expressly reserved and expressed to be
payable has been paid or will be payable to the Landlord or
to any person whomsoever.
Entire 11.13 This Lease sets out the full agreement between the
Agreement parties. No warranties or representatives express or implied
of any kind other than those set out herein (if any) are or
have been made or given by the Landlord or by anybody on his
behalf and if any such warranties or representations express
or implied have been made, the same are withdrawn or deemed
to have been withdrawn immediately before the execution of
this Lease.
SECTION XII
SPECIAL CONDITIONS
Special 12. The parties hereto further agree that they shall
Conditions respectively be bound by and entitled to the benefit of the
Special Conditions set forth in the Fourth Schedule. All the
schedules to this Lease shall form part of this Lease.
Should there be any conflicts or inconsistencies between the
terms and conditions in the Fourth Schedule hereto and that
of and in other parts of this Lease, the terms and
conditions in the Fourth Schedule shall prevail.
IN WITNESS whereof the parties have caused this document to
be executed the day and year first above written.
-51-
THE FIRST SCHEDULE ABOVE REFERRED TO
------------------------------------
PART I
------
LANDLORD : PARTNER LINK INVESTMENTS LIMITED
PRINCIPAL PLACE : 00xx Xxxxx, XXXX Xxxxx, Xxxxxx Xxxxx,
XX XXXXXXXX 000 Xxxx'x Xxxx, Xxxxxx Xxx, Xxxx Xxxx
TENANT :
PLACE OF INCORPORATION:
REGISTERED OFFICE :
PART II
-------
THE BUILDING : The multi-storeyed commercial/office building
erected as part of the Development erected on
Section S and The Remaining Portion of Quarry
Bay Marine Lot No. 1 and known as:
PCCW TOWER
Taikoo Place,
979 King's Road,
Quarry Bay,
Hong Kong.
THE PREMISES : All Those th Floor of the Building which for
the purposes of identification only are shown
and coloured Pink on the th Floor Plan
hereto annexed.
PART III
--------
TERM : A term of Years commencing on the day of
200 and expiring on the day of
200 .
-52-
PART IV
-------
RENT FREE PERIOD : Notwithstanding anything to the contrary herein, a
rent free period of ( ) months from the commencement
of the Term shall be given during which rent free
period the Tenant
(a) shall not be required to pay rent;
(b) but shall be obliged to pay rates, Air-
Conditioning Charges and Management Charges and
other outgoings payable by the Tenant in manner
hereinafter mentioned.
THE SECOND SCHEDULE ABOVE REFERRED TO
-------------------------------------
PART I
------
RENT
For the period of the Term the rent shall be Hong Kong Dollars
Only (HKS ) per calendar month.
PART II
-------
PARTICULARS OF AIR-CONDITIONING CHARGES
The Air-conditioning Charge that will be payable with effect from the
commencement of the Term for air-conditioning supplied to the Premises during
Normal Business Hours will be HK$ per month (subject to review).
PART III
--------
MANAGEMENT CHARGES
The Management Charge that will be payable with effect from the commencement of
the Term as a due proportion of the cost to the Landlord of providing the
management services to the Common Areas and services of the Development will be
HK$ per month (subject to review).
-53-
PART IV
-------
DEPOSIT
[For Cash Deposit only]
(1) The amount of the deposit that shall be paid to the Landlord in cash on the
signing hereof in accordance with Clause 9.01 of Section IX shall be in the
sum of HK$ , equivalent to months' rent, air-conditioning
charge and management charge.
[For Bank Guarantee only]
(1) A bank guarantee for the sum of HONG KONG DOLLARS ONLY
(HKS ) equivalent to [ ( ) months']
rent and air-conditioning charge and management charge shall be by way of
a bank guarantee issued by a licensed bank in Hong Kong to secure the due
performance observance and compliance of the terms and conditions of this
Lease. The bank issuing the bank guarantee shall be approved by the
Landlord (which approval shall not be unreasonably withheld or delayed).
The Bank Guarantee shall be issued and produced to the Landlord upon the
signing of this Lease or the delivery of vacant possession of the Premises
to the Tenant by the Landlord, whichever date shall be the earlier.
[For Cash Deposit and Bank Guarantee]
Total Deposit payable under this Lease shall be an amount equivalent to [ ]
months' rent, air-conditioning charge and management charge payable in the
following manner:-
(a) A cash rental deposit for the sum of HONG KONG DOLLARS ONLY (HK$ )
equivalent to [ ( )] months' rent, air- conditioning charge and management
charge; and
(b) A bank guarantee for the sum of HONG KONG DOLLARS ONLY (HKS ) equivalent to
[ ( )] months' rent, air- conditioning charge and management charge shall
be by way of a bank guarantee issued by a licensed bank in Hong Kong to
secure the due performance observance and compliance of the terms and
conditions of this Lease. The bank issuing the bank guarantee shall be
approved by the Landlord (which approval shall not be unreasonably withheld
or delayed). The Bank Guarantee shall be issued and produced to the
Landlord upon the signing of this Lease or the delivery of vacant
possession of the
-54-
Premises to the Tenant by the Landlord, whichever date shall be the
earlier.
THE THIRD SCHEDULE ABOVE REFERRED TO
------------------------------------
USER
The Tenant will use the Premises for commercial purposes only and for no
other purpose whatsoever.
THE FOURTH SCHEDULE ABOVE REFERRED TO
-------------------------------------
SPECIAL CONDITIONS
1. HANDING OVER OF POSSESSION
Vacant possession of the Premises shall be given by the Landlord to the
Tenant on the date of commencement of the Term.
Possession of the Premises shall be handed over by the Landlord to the Tenant in
the "as is" condition with the following fixtures and fittings:
(a) Fully fitted suspended ceilings light boxes, air conditioning grills,
diffusers, ducting, sprinkler system, grid and tiles.
(b) A raised floor system incorporating floor tiles and the underfloor power
grid.
(c) The voice/data cable, subject to the Tenant and Landlord agreeing a fair
purchase price. If no agreement can be reached, the voice/data cable shall
be left in situ at no cost to the Tenant. However, the Tenant is allowed to
install their own structuring cabling system, but will be required to
remove all its installation at the end or sooner determination of the
tenancy, if so required by Landlord.
(d) All pantries in an "as is" condition with the exception of the moveable
fittings. The Tenant is not required to reinstate the pantries fixture
except the plumbing installations, water boiler and drinking water system
at the end or sooner determination of the tenancy.
-55-
(e) Blinds around the windows.
(f) The power cable up to the MCB box in the room of the tenancy area shall be
set up at tenant's cost.
2. OPTION TO RENEW
2.1 If the Tenant shall be desirous of renewing this Lease for a renewed term
of three 3 years ["the Renewed Term") from the date of expiration of the
original Term created by this Lease ("the Expiry Date") and shall not later
than 6 months before the Expiry Date give to the Landlord notice in writing
of its desire and provided that there shall at that time and at the time of
the Expiry Date be no outstanding or existing breach or non-observance or
non-performance of any of the agreements, stipulations, terms or conditions
herein contained and on the part of the Tenant to be observed and
performed, the Landlord shall at the expense of the Tenant grant to the
Tenant a renewal of this Lease for the Renewed Term from the Expiry Date at
the current market rental for the Premises as at the Expiry Date to be
determined in accordance with the provisions of Clause 2.2 of this Fourth
Schedule, but otherwise subject to the same terms, covenants, conditions
and provisions as are herein contained with the exception of the amount of
the Air-conditioning Charges and Management Charges payable, the amount of
the [Deposit/Cash Deposit and Bank Guarantee/Bank Guarantee], the rent free
period and this Fourth Schedule, but incorporating in place of this Fourth
Schedule a new Fourth Schedule containing an option for renewal for one
further term of three (3) years in the terms same as the provisions of
Clause 2.2 of this Fourth Schedule.
2.2 The following provisions shall apply in relation to the determination
of the current market rental for the Premises at the Expiry Date:-
-56-
(a) Current market rental shall subject to the provisions of sub-clause
(d) of this Clause 2.2 mean the current market rental for the Premises
without making any allowance to reflect or compensate the Tenant for
the absence of any rent free period or contribution to fitting out
works or other allowance which might then be the practice in open
market lettings for a Landlord to make. Such a current market rental
shall be that which would be payable after the expiry of any such rent
free or concessionary rent period and after receipt of any such
contribution or other allowances all of which shall be entirely
disregarded in any calculation of current market rental.
(b) If agreement is reached between the Landlord and the Tenant as to the
rent to be payable throughout the Renewed Term ("the New Rent") such
agreement shall be in writing signed by both parties and in such case
the rent payable during the Renewed Term shall be the New Rent as so
agreed.
(c) If such an agreement has not been made two ( 2 ) months before the
commencement of the Renewed Term either the Landlord or the Tenant may
serve a notice upon the other calling for an independent surveyor and
valuer ("xxx Xxxxxxxx") to be appointed to determine the New Rent. The
Surveyor may be appointed by agreement between the Landlord and the
Tenant or In default of such agreement within one month before the
commencement of the Renewed Term the Surveyor may be appointed at the
request of either of the parties by the President for the time being
of the Hong Kong Institute of Surveyors. The Surveyor so appointed
shall give a written decision with reasons and such decision as to
what shall be the New Rent
-57-
shall (subject to sub-clause (a) of this Clause 2.2) be conclusive and
binding on the parties hereto.
(d) In determining the New Rent the Surveyor shall act as an expert and
not as an arbitrator and shall take into account the open market rent
for other whole floor office accommodation elsewhere in the
Development and/or in similar office buildings in Hong Kong having
attributes comparable to those of the Building obtainable at the time
of commencement of the Renewed Term on the following assumptions that
at that date :-
(i) the Premises are fitted out and equipped and fit for immediate
occupation and use complete with floor and wall coverings, false
ceilings, raised floors, air-conditioning throughout and
electrical reticulation and other landlord's finishes fixtures
and equipment all of a standard commensurate with a high class
modern office building in Hong Kong and that no work which has
been carried out thereon by the Tenant or its predecessors in
title 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) the Premises are available for letting by a willing landlord to a
willing tenant without a premium but with vacant possession;
(iii) that the covenants herein contained on the part of the Tenant
have been fully performed and observed;
but disregarding :-
-58-
(iv) any effect on rent of the fact that the Tenant has been in
occupation of the Premises;
(v) any goodwill attached to the Premises by reason of the carrying
on thereat of the business of the Tenant;
(vi) any effect on rental value of the Premises attributable to any
special improvement to the Premises or any part thereof carried
out by the Tenant with the Landlord's consent where required
(otherwise than in pursuance of an obligation of the Tenant)
including any special improvements made by the Landlord at the
expense of the Tenant prior to the commencement or during the
continuance of the Term;
(vii) any suspension of rent under Clause 7.01 of this Lease;
(e) The Surveyor shall afford to each of the parties an opportunity to
make representations to him.
(f) If the Surveyor shall die delay or become unwilling or incapable of
acting the President for the time being of the Hong Kong Institute of
Surveyors or the person acting on his behalf may by writing discharge
the Surveyor and appoint another in his place.
(g) If the New Rent shall not have been determined before the commencement
of the Renewed Term, then pending determination of the New Rent that
shall be payable in respect of the Renewed Term, the Tenant shall
continue to pay on account of the New Rent the rent was payable
immediately before the beginning of
-59-
the Renewed Term and within fourteen (14) days of the determination of
the New Rent, the Tenant shall pay to the Landlord the difference
between the rent actually paid by the Tenant during the period pending
determination as aforesaid and the New Rent payable for the period
pending determination plus interest on the difference between the old
rent and the New Rent at the prime lending rate from time to time of
the Hongkong and Shanghai Banking Corporation Limited from the
commencement of the Renewed Term until the date of payment and in the
event of the New Rent being less than the rent actually paid the
Landlord shall refund to Tenant the difference between the New Rent
and the rental actually paid by the Tenant during the period pending
determination plus an interest as aforesaid.
(h) The costs and expenses of the Surveyor including the cost of his
appointment shall be borne by the Landlord and the Tenant in equal
shares. All other costs and expenses incurred by the Landlord or the
Tenant in respect of or in connection with any rent review shall be
borne by themselves separately.
2.3 The Air-conditioning Charges and Management Charges payable by the Tenant
in respect of the Renewed Term shall initially be those payable under this
Lease immediately at the Expiry Date, but shall be subject to the same
provisions for revisions as contained in Clause 2.1 of this Lease.
2.4 The amount of the deposit to be maintained during the Renewed Term,
pursuant to Clause 9.01 of this Lease shall be a sum equal to (i) one
month's revised rent payable in respect of the Premises during the Renewed
Term; (ii) one month's Air-conditioning Charges at the rate from time to
time payable by the Tenant during the Renewed Term and
-60-
(iii) one month's Management Charges at the rate from time to time payable
by the Tenant during the Renewed Term.
2.5 The Landlord and the Tenant shall enter into a new Lease in respect of a
Renewed Term, the revised rent, the revised [deposit/cash deposit and bank
guarantee/bank guarantee] and the other terms and conditions determined
pursuant to this Clause 2. The Stamp Duty and the Land Registry
registration fee payable on such new Lease shall be borne by the Landlord
and the Tenant in equal share. Each of the Landlord and the Tenant shall
pay its own legal costs of and incidental to the Lease and its counterpart.
-61-
The Landlord )
)
SEALED with the Common Seal of )
)
PARTNER LINK INVESTMENTS LIMITED )
)
and SIGNED by )
)
)
)
in the presence of:- )
SEALED with the Common Seal of )
)
and SIGNED by )
)
in the presence of:- )
)
RECEIVED the day and year first above written )
)
)
the sum of HONG KONG DOLLARS ) HK$
) ===
ONLY )
)
being the [Deposit/Cash Deposit1 payable by the )
)
Tenant hereunder on signing hereof in accordance with )
)
Section IX Clause 9.01 hereof and Part IV of the )
)
Second Schedule hereto. )
-62-
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 )
Richly Leader Limited and )
SIGNED by )
)
director(s)/person(s) duly authorized by its )
board of directors whose signature(s) is/are )
verified by/in the presence of: 1
SEALED with the Common Seal of )
Pacific Century Paramount Real Estate )
Limited and SIGNED by )
)
director(s)/person(s) duly authorized by its )
board of directors whose signature(s)is/are )
verified by/in the presence of: )
-63-
Dated the day of 200
------------------------------
RICHLY LEADER LIMITED
and
PACIFIC CENTURY PARAMOUNT
REAL ESTATE COMPANY LIMITED
DEED OF APPOINTMENT
OF LEASING AGENT
AND MANAGER
WOO, XXXX, XXX & LO
Solicitors & Notaries
Room 2801, Sun Hung Xxx Xxxxxx,
00 Xxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx.
(19-11-2004)(final)
Our Ref: SHK/HFM/LYF/CH/R4R305021
Dated the 21st day of December 2004
PARTNER LINK INVESTMENTS LIMITED
And
RICHLY LEADER LIMITED
***************************************
Agreement for Sale and Purchase
***************************************
WOO, XXXX, XXX & LO,
Solicitors & Notaries
Room 2801, Sun Hung Xxx Xxxxxx,
00 Xxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx.
Ref.: SHK/HFM/LYF/CH/R4R305021
19.11.04 (final)
Appendix II
-----------
THIS DEED is made this day of
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 [ ](hereinafter called "the Guarantor")
of the second part And RICHLY LEADER LIMITED a company incorporated in Hong Kong
whose registered office is situate at [ ] (hereinafter called "the Purchaser")
of the third part.
WHEREAS :-
(A) By an Agreement for Sale and Purchase dated [ ]
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 1 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 Tenant/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) Ln 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 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
2
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 under
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 date of this Deed, the
aggregate of the average open market rent and management fee, air-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
3
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 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.
4
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 instalment 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
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
5
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
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
6
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 days of receipt.
7
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. I:
(1) All Those portions of the Building now known as PCCW Tower (formerly known
at the date of the Lease as Hongkong 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 No8340656
issued pursuant thereto (the Lease Memorial No8340656 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.
8
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 )
)
director(s)/person(s) duly authorized by its )
board of directors whose signature(s) is/are )
verified by/in the presence of: )
SEALED with the Common Seal of )
RICHLY LEADER LIMITED and )
SIGNED by )
)
director(s)/person(s) duly authorized by its )
board of directors whose signature(s) is/are )
verified by/in the presence of: )
SEALED with the Common Seal of )
IPSWICH HOLDINGS LIMITED Pad )
SIGNED by )
)
director(s)/person(s) duly authorized by its )
board of directors whose signature(s) is/are )
verified by/in the presence of: )
Dated the day of 200
------------------------------------------------
PARTNER LINK INVESTMENTS LIMITED
and
RICHLY LEADER LIMITED
and
IPSWICH HOLDINGS LIMITED
--------------------
DEED
OF
RENTAL GUARANTEE
-------------------
WOO, XXXX, XXX & LO
Solicitors & Notaries
Room 2801, Sun Hung Xxx Xxxxxx,
00 Xxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx.
(19-1 1-2004)(final)
Our Ref: SHK/KFM/LYF/CH/R4R305021
Dated the 21st day of December 2004
PARTNER LINK INVESTMENTS LIMITED
And
RICHLY LEADER LIMITED
***************************************
Agreement for Sale and Purchase
***************************************
WOO, XXXX, XXX & LO,
Solicitors & Notaries
Room 2801, Sun Hung Xxx Xxxxxx,
00 Xxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx.
Ref.: SHK/HFM/LYF/CH/R4R305021
19.11.04 (final)
