1
EXHIBIT 10.11
DATED 5th March 1994
SHINE HILL DEVELOPMENT LIMITED
(Landlord)
and
SHINE BELT LIMITED
FAIR PAGE LIMITED
PANHY LIMITED
MAPLE COURT LIMITED
(Confirmors)
and
GOLDMAN SACHS (ASIA) FINANCE
(Tenant)
- --------------------------------------------------------------------------------
LEASE
of
The whole of 37th Floor
of Asia Pacific Finance Tower
3 Garden Road, Hong Kong
Inland Lot No. 8888
- --------------------------------------------------------------------------------
Registered in the Land Registry by
Memorial No.
on
p. Land Registrar
Bateson Starr
in association with
Mallesons Stephen Jaques
Suite 801, Asia Pacific Finance Tower
Citibank Plaza
3 Garden Road
Central, Hong Kong
Ref: SHIN2040-134 (HK1747)
2
THIS LEASE is made this 5th day of March One Thousand Nine Hundred and
Ninety-Four
BETWEEN
(1) The party named and described as the Landlord in Part 1 of the First
Schedule hereto (hereinafter called the "Landlord" which expression shall
where the context admits include its successors and assigns);
(2) the party named and described as the "Confirmors" in Part 2 of the First
Schedule hereto (hereinafter called the "Confirmors"); and
(3) the party named and described as the "Tenant" in Part 3 of the First
Schedule hereto (hereinafter called "the Tenant").
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS
1.1 In this Lease, unless the context otherwise requires, the following
expressions shall have the following meanings ascribed to them.
"Buildings" the buildings erected on the Lot and more
particularly described in Part 1 of the Second
Schedule hereto.
"Deed of Mutual the Deed of Mutual Grant and Mutual Covenant
Covenant" and Management Agreement for the Lot and
the Buildings.
"Government" the Government of Hong Kong.
"House Rules" the rules governing or regulating the use,
operation and maintenance of the Buildings and the
services, facilities and amenities thereof and the
conduct of persons occupying, using or visiting the
same as may be prescribed by the Manager from time
to time in accordance with the Deed of Mutual
Covenant.
"Lot" All that piece or parcel of land registered in the
Land Registry as Inland Lot No.8888.
"Manager" the service company or agent for the time being
appointed as the Manager of the Lot and the
Buildings under the Deed of Mutual Covenant or the
Building Management Ordinance.
"Premises" All those premises more particularly described
[STAMP]
- -----------------------------
DUPLICATE or COUNTERPART
Original Stamped with
[name]
- -----------------------------
[STAMP] [STAMP]
3
in Part 2 of the Second Schedule hereto.
"Rent" the rent more particularly described in Part 1 of
the Fourth Schedule hereto.
"Term" the term more particularly described in the Third
Schedule hereto.
1.2 References to Clauses and Schedules are references to clauses of or
schedules to this Lease.
1.3 The Index and the headings are for ease of reference only and do not form
part of this Lease or affect the construction thereof.
1.4 References to any Ordinance, regulation or other statutory provision include
references to such Ordinance, regulation or provision as modified, codified or
re-enacted from time to time.
1.5 In this Lease, if the context so permits or requires, words importing the
singular number only shall include the plural number and vice versa; words
importing the masculine gender only shall include the feminine gender and the
neuter gender and vice versa and words importing persons shall include
corporations.
2. PREMISES
2.1 The Landlord shall let and the Tenant shall take the Premises (the external
surfaces of the walls glass curtain walls windows frames and glass being
excluded) TOGETHER with the use in common with the Landlord and all others
having the like right of the entrances staircases landings passageways,
lavatories, lifts, escalators and central air-conditioning services serving the
Premises (whenever the same shall be operating) in the Buildings insofar as the
same are necessary for the proper use and enjoyment of the Premises and except
insofar as the Landlord or the Manager may from time to time restrict such use
for the purpose of replacing, renewing, repairing, decorating or maintaining the
same EXCEPT AND RESERVED unto the Landlord and all persons authorised by the
Landlord or otherwise entitled thereto:-
(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
under the Premises or the raised flooring therein and serving or
capable of serving the Buildings or any adjoining or neighbouring
property together with the right to enter upon the Premises at all
times to inspect repair or maintain any such sewers, watercourses,
conduits, pipes, wires, cables and ducts;
(b) the exclusive right to install in or affix to any part of the
Buildings (other than the Premises) such flues, pipes,
- 2 -
4
conduits, chimneys, aerials, plant, machinery and other apparatus,
signs, placards, posters and other advertising structures
whatsoever (whether illuminated or not) as the Landlord shall
think fit together with the right to repair maintain service
remove or replace the same;
(c) the right and liberty to enter upon the Premises in the
circumstances permitted hereunder;
(d) the right to subjacent and lateral support from the Premises for
the remainder of the Buildings;
(e) right of access to all common areas
for the Term yielding and paying therefor throughout the Term the Rent and the
management charges set out in Part 2 of the Fourth Schedule hereto which sums
shall be payable exclusive of rates and other outgoings and in advance clear of
all deductions, counterclaim or set-off whatsoever on the first day of each
calendar month; the first and the last of such payments to be apportioned
according to the number of days in the relevant month included in the Term.
3. RENT
3.1 The Tenant hereby agrees with the Landlord that the Tenant will throughout
the Term pay the Rent to the Landlord on the days and in the manner herein
provided in Hong Kong currency in the amount more particularly described in Part
1 of the Fourth Schedule hereto.
4. MANAGEMENT CHARGES & OTHERS
4.1 The Tenant hereby agrees with the Landlord that the Tenant will pay to the
Landlord in Hong Kong currency on the days and in the manner herein provided.
(a) MANAGEMENT CHARGES
(i) the monthly management charges (which include normal
air-conditioning charges) as set out in Part 2 of the
Fourth Schedule hereto subject to increase in accordance
with Clause 4.2 hereof; and
(ii) additional management charges (if any) payable by the
Tenant pursuant to the Deed of Mutual Covenant for the use
by the Tenant of those Common Facilities (as defined in the
Deed of Mutual Covenant) of the Buildings which are not
covered by the monthly management charges aforesaid and
additional air-conditioning charges (if any) payable by the
Tenant pursuant to the Deed of Mutual Covenant; and
- 3 -
5
(b) INTEREST - by way of interest without any deduction counterclaim
or set-off whatsoever and on demand interest calculated on a daily
basis at a monthly rate equivalent to one and one-half percent (1
l/2%) on:-
(i) the Rent or any sum of money payable by the Tenant
hereunder and not received by the Landlord within fourteen
(14) days from the due date for payment (whether demanded
or not) from the due date aforesaid until the whole of such
sum is received by the Landlord;
(ii) any sum paid by the Landlord in the event of default by the
Tenant of its obligation to pay for the same under this
Lease from the date of payment by the Landlord until the
same is repaid to the Landlord; and
(iii) any sum which shall be properly declined by the Landlord so
as not to waive a breach of covenant from the due date
until acceptance following the remedying of the breach by
the Tenant.
4.2 INCREASE OF CHARGES
The monthly management charges referred to in Clause 4.1(a)(i) shall be
subject to increase at any time during the continuance of this Lease as
determined by the Manager in accordance with the Deed of Mutual Covenant and
upon the Landlord giving to the Tenant notice in writing of such increase.
4.3 RATES
(a) The Tenant further agrees with the Landlord that the Tenant will
pay and discharge all rates, taxes, water rates, assessments,
duties, impositions, charges and outgoings whatsoever (including
all charges and outgoings of a recurrent nature (if any) imposed
by the Deed of Mutual Covenant and/or the regulations prescribed
pursuant thereto to which the Premises are subject) now or
hereafter to be assessed, imposed, raised, charged or levied on
the Premises or any part thereof or upon the owner or occupier
thereof by Government, the Manager and/or other lawful authority
(Crown Rent, Property Tax and charges of a capital and
non-recurrent nature alone excepted) and pay or (if the same has
already been paid by the Landlord) refund to the Landlord on
demand in case any of the same are payable, assessed, imposed,
raised, charged or levied in respect of the Buildings as a whole
or any part thereof (which includes the Premises) a proper
proportion thereof to be reasonably determined by the Manager
and/or the Landlord as the amount attributable to the Premises.
- 4 -
6
(b) In the event that an assessment to rates in respect of the
Premises shall be raised upon the Landlord direct, the Landlord
shall during the month immediately preceding any quarter in
respect of which such rates may fall due be at liberty to debit
the Tenant with the amount thereof and the same shall forthwith be
paid by the Tenant to the Landlord whereupon the Landlord shall
account for the same to the Government.
(c) In the event that no valuation of the Premises shall have been
made in accordance with the Rating Ordinance (Cap. 116) or any
statutory amendment or modification thereof for the time being in
force, the Landlord shall be at liberty to make an interim
valuation thereof and the Tenant shall, until such time as the
Premises are assessed to rates, pay to the Landlord quarterly and
in advance a sum equal to the rates which would be charged by the
Hong Kong Government for each quarter on the basis of such interim
valuation on account of the Tenant's liability under this Clause
4.3. Any over-payment or under-payment by the Tenant shall be
adjusted when a valuation under the Rating Ordinance shall have
been made known.
4.4 UTILITY CHARGES
The Tenant shall apply to the Hong Kong Electric Company Limited for the
provision of a separate electricity meter for the Premises and to apply to other
utility supply companies for similar provisions and pay and discharge all
deposits, installation charges and charges in respect of water gas electricity
telex and telephone as may be shown by or operated from the Tenant's own metered
supply or by accounts rendered to the Tenant in respect of all such utilities
consumed on or in the Premises PROVIDED that if the Landlord has already paid
the deposit and/or the installation charges in respect of the supply of water
gas electricity or telephone to the Premises, the Tenant shall reimburse the
Landlord on demand for such deposit and (as the case may be) pay to the Landlord
such amount as the Landlord may determine in respect of the installation charges
and the deposit, if any, shall be returned to the Tenant at the expiration of
the Term after deducting all outstanding liability for water gas electricity and
telephone charges (if any).
4.5 OTHER FACILITIES
(a) The Tenant hereby acknowledges that the Landlord has paid for the
installation of certain number of lines for "High Speed Data Link"
and that the Tenant may subscribe for the use of such lines
subject to availability thereof as determined by the Landlord in
its sole and absolute discretion. In the event that the Tenant
subscribes for the use of such lines, the Tenant shall pay to the
Landlord such amount as the Landlord may reasonably determine in
respect of the installation charges for such number of lines as
may be required by the Tenant.
- 5 -
7
(b) The Tenant further acknowledges that facilities for the following
have been installed within the Buildings:-
(i) transmission and broadcasting of financial news and data;
(ii) video link; and
(iii) inter-floor communication.
The said facilities can, subject to availability thereof as
determined by the Landlord in its sole and absolute discretion, be
used by the Tenant upon payment by the Tenant of such reasonable
charges and upon such other terms and conditions as may from time
to time be determined or prescribed by the Landlord or other
person or persons entitled thereto Provided that the Tenant shall
be responsible for making all necessary arrangement with the
relevant service companies for the provision of the necessary
services.
5. TENANT'S POSITIVE COVENANTS
The Tenant hereby agrees with the Landlord as follows:-
5.1 COMPLIANCE WITH ORDINANCES, ETC
The Tenant hereby agrees with the Landlord that the Tenant shall obey and
comply with and shall indemnify the Landlord fully against any breach by the
Tenant of any ordinances, regulations, by-laws, rules, licences and requirements
of any Government or other competent authority insofar as they relate to or
affect the Premises or any works, additions or improvements therein or thereto
made by the Tenant or the use or occupation thereof or the conduct or carrying
on of the Tenant's business or the employment therein or any other act, deed,
matter or thing done, permitted suffered or omitted therein or thereon by the
Tenant or any servant, agent, employee, contractor or licensee (which term shall
include any person present in using or visiting the Premises with the Tenant's
consent, express or implied) of the Tenant and shall notify the Landlord
forthwith in writing of any notice received from any statutory or public
authority concerning or affecting the Premises or any services supplied thereto.
5.2 COMPLIANCE WITH CONDITIONS & DEED OF MUTUAL COVENANT
The Tenant shall observe, perform and comply with all the covenants,
terms and provisions of the Conditions of Sale or the Crown Lease under which
the Landlord holds the Premises and the Deed of Mutual Covenant and the House
Rules insofar as they relate to the Premises and indemnify the Landlord against
any breach or non-observance or non-compliance thereof by the Tenant.
- 6 -
8
5.3 FITTING OUT
The Tenant shall fit out the interior of the Premises in accordance with
such plans and specifications as shall have been first submitted by the Tenant
to and approved in writing by the Landlord under Clause 5.3(b) hereof in a good
proper and workmanlike fashion using good quality materials and in all respects
in a style appropriate to a first class commercial office and shall maintain the
Premises including the furnishings, fixtures and fittings therein or thereto (if
any) in good and substantial repair and condition to the reasonable satisfaction
of the Landlord throughout the Term Provided That nothing herein shall make the
Landlord responsible for any damages or claims arising from any defects in the
design or quality of the fitting out carried out by the Tenant. The Tenant shall
not cause or permit to be made any variation to the approved fitting-out plans
and specifications or to the interior design or layout of the Premises without
the prior written approval of the Landlord, such approval not to be unreasonably
withheld.
For the purpose of fitting-out or redecorating or renovating the
Premises, the Tenant shall observe and comply with the following provisions:-
(a) APPROVAL OF PLANS - The Tenant shall at its own cost prepare and
submit to the Landlord for approval three (3) sets of suitable
drawings and specifications of the works proposed to be carried
out by the Tenant (hereinafter called the "TENANT'S WORKS") and
the schematic drawings illustrating the design and layout proposal
of the Tenant's Works (hereinafter collectively called the
"TENANT'S PLANS"). The Tenant shall include in the Tenant's Plans
the following:-
(i) detailed drawings, plans and specifications of or of any
changes in the electrical wiring and installations,
air-conditioning piping, ducting or vents or fire services
installation and/or other services;
(ii) details of the electricity consumption capacity, electrical
wiring and installation, telephone wiring, piping, ducting,
computer cabling, wiring and other arrangements (whether
underneath the raised flooring, above the false ceilings or
otherwise);
(iii) details of all lighting features;
(iv) details of partitioning, internal decoration, furnishings
and equipment;
(v) the position and details of any heavy equipment; and
(vi) such other relevant information as the Landlord may
- 7 -
9
consider necessary.
(b) ACCEPTANCE OF PLANS - The Landlord will consider the Tenant's
Plans and may accept or reject the Tenant's Plans or require
modifications thereof or any part of them as it thinks fit in its
reasonable discretion and within reasonable time from the
submission of the Tenant's plans to the Landlord.
(c) FEES FOR APPROVAL & INSPECTION - The Tenant shall reimburse the
Landlord on demand the fees of all architectural, mechanical,
electrical and structural engineering consultants and other
professional's fees incurred according to fee notes or bills
rendered by any such consultants or professionals in connection
with the consideration and approval or rejection of the Tenant's
Plans and the supervision and inspection of the Tenant's Works.
The Tenant shall also pay to the Landlord on demand such amount as
the Landlord may in its absolute discretion prescribe as the
approval or vetting fees for the approval of the Tenant's Plans.
(d) COMPLIANCE WITH ORDINANCES - The Tenant shall comply with all
applicable statutes, codes, ordinances, licences and other
regulations for and shall be solely responsible for obtaining all
necessary approval from all relevant Government departments and
utility companies required for all work, performed by or on behalf
of the Tenant on the Premises. The approval by the Landlord's
agents or consultants of the Tenant's Works or the Tenant's Plans
or the inspection of the Tenant's Works shall not constitute or be
deemed to constitute any representation or certification by the
Landlord that the Tenant's Works are in compliance with the said
statutes, codes, ordinances, licences and other regulations. When
several sets of requirements must be met, the standard set by the
Landlord's consultants shall apply.
(e) PERMISSION FOR COMMENCEMENT - The Tenant will not commence the
Tenant's Works until the same shall have been approved in writing
by the Landlord and a notice shall have been given by the Landlord
that the Tenant's Works can be commenced and as soon as possible
after such approval and notice shall have been given, the Tenant
shall commence the Tenant's Works and complete them expeditiously.
(f) DESIGNATED CONTRACTORS - The following types of the Tenant's Works
shall not be carried out by any contractor other than contractors
designated by the Landlord:-
(i) the following types of the Tenant's Works relating to the
raised flooring:-
- 8 -
10
(aa) the alignment, re-alignment or removal of the
raised flooring installation;
(bb) the creation of openings on the raised flooring
panels;
(cc) the change of the headroom or height of the raised
flooring;
(dd) the cutting or subdivision of the raised flooring
panels; and
(ee) the laying of marbles or other finishes (other than
carpet) on top of the raised flooring;
(ii) works touching or affecting the heating, ventilation and
air-conditioning system for the Buildings (including that
part of the said system installed within the Premises);
(iii) electrical works to be undertaken by the Tenant in the
common areas of the Buildings in connection with the use
and enjoyment of the Premises by the Tenant;
(iv) works touching or affecting the fire services installations
of the Building (including those within the Premises);
(v) plumbing and drainage works;
(vi) works touching or affecting the building management system
for the Buildings;
(vii) works touching or affecting the communication networks
which forms part of the Common Facilities (as defined in
the Deed of Mutual Covenant) of the Buildings; and
(viii) works touching or affecting the suspended ceiling of the
Buildings (including that within the Premises).
The contract for the above types of the Tenant's Works to be
carried out at the Premises shall be made between the Tenant and
the designated contractor. All other types of the Tenant's Works
shall be carried by contractors as approved in writing by the
Landlord, such approval not to be unreasonably withheld Provided
always that the Landlord shall not in any way be responsible or
liable for the works carried out by or the performance of such
designated or approved contractors.
(g) INFORMATION ON CONTRACTORS - The Tenant shall submit to the
Landlord by hand or via registered post at least three
- 9 -
11
(3) days prior to the commencement of the Tenant's Works the
following information:-
(i) the name(s) and address(es) of the general contractor(s)
and other contractors designated or approved by the
Landlord whom the Tenant intends to engage for the Tenant's
Works;
(ii) the proposed commencement date of and the estimated date of
completion of the Tenant's Works; and
(iii) certificates of insurance for public liability and
workmen's compensation.
(h) COMPLIANCE WITH LANDLORD'S INSTRUCTIONS - In carrying out any
approved work under this Clause or other provisions of this Lease,
the Tenant shall cause its servants, agents, employees,
contractors, licensees and workmen to cooperate with the Landlord
and/or the Manager and all servants, agents and workmen of the
Landlord and/or the Manager and with other tenants or contractors
carrying out any work in the Buildings. The Tenant shall comply
with and cause its servants, agents, employees, contractors,
licensees and workmen to obey and comply with all reasonable
fitting out rules which may be prescribed by the Landlord or the
Manager and all reasonable instructions and directions which may
from time to time be given in connection with the carrying out of
such work by the Landlord, the Manager and all servants or agents
of the Landlord or the Manager.
(i) COMPLETION - As soon as practicable after completion of the
Tenant's Works, the Tenant shall provide the Landlord with a copy
of the "as-built" plans for the Tenant's Works.
(j) VARIATIONS - The Tenant shall not cause or permit to be made any
variation to the approved Tenant's Plans or the Tenant's Works
after the completion thereof except with the approval of the
Landlord, such approval not to be unreasonably withheld. The
Landlord may enter upon the Premises for the purpose of inspecting
the construction of the Tenant's Works. The Tenant shall forthwith
on demand by the Landlord and at its own cost and expense demolish
and remove any alteration or addition subsequently made to the
Tenant's Works in breach of the provisions of this Lease and
reinstate the Premises to the satisfaction of the Landlord.
(k) ELECTRICITY CHARGES FOR FITTING OUT - The Tenant shall be solely
responsible for all electricity and other utility charges incurred
in connection with or arising out of fitting out the Premises and
shall pay to the Landlord a service charge of such amount as the
Landlord may determine for the temporary supply of electricity and
- 10 -
12
water and other attendance rendered during the fitting out period.
(1) REMOVAL OF GARBAGE - The Tenant shall remove from the Premises all
garbage, refuse and construction and decoration waste to such
location as may from time to time be designated by the Manager and
if the Tenant shall fail to do so, the Landlord may cause such
removal to be made at the cost and expense of the Tenant.
(m) DEPOSIT - As security for the due observance by the Tenant of the
terms and conditions of Clause 5.3, the Tenant shall pay to the
Landlord such an amount as may be required by the Landlord as a
fitting-out deposit which shall be refunded to the Tenant without
interest within thirty (30) days after the completion of the
Tenant's Works if there shall be no breach of any of the terms or
conditions contained in Clause 5.3.
5.4 TELEPHONE INSTALLATIONS
The Tenant shall make arrangement with the Hong Kong Telephone Company
Limited with respect to the installation of telephones in the Premises Provided
that subject to availability of telephone lines already installed by the
Landlord within the Buildings, such arrangement shall be made by the tenant
jointly with the Landlord and such installations shall be in accordance with the
requirements of the Hong Kong Telephone Company Limited and shall not unduly
interfere with the use and enjoyment of the Buildings (other than the Premises)
by the owners and/or tenants thereof.
5.5 GOOD REPAIR OF INTERIOR
With the exception of maintenance required as a result of inherent
defects of a structural nature, the Tenant shall keep all the interior of the
Premises including the raised flooring and cables and wirings installed
thereunder, interior plaster or other finishing material or rendering to walls,
floors and ceilings of the Premises and the Landlord's fixtures and fittings
therein and all additions thereto including all doors, windows, window frames,
electrical installations and wiring, light fittings, fire alarm and
fire-fighting installations and all cables, conduits, sanitary and water
apparatus comprised in and used solely for the benefit of the Premises
(hereinafter collectively called the Landlord's Fixtures and Installations) and
all other fixtures fittings and additions in or at the Premises in good, clean,
substantial and proper repair and condition and properly preserved and painted
as may be appropriate and when from time to time required by the Landlord or any
relevant Government authority and so maintain the same at the expense of the
Tenant and deliver up the same to the Landlord at the expiration or sooner
determination of the Term in like condition, fair wear and tear excepted.
- 11 -
13
5.6 REPAIR OF GLASS CURTAIN WALL
The Tenant shall pay to or reimburse the Landlord such reasonable amount
as may be payable to the Manager or other owners of the Buildings (other than
the Premises) under the Deed of Mutual Covenant in respect of all broken or
damaged part or parts of the glass curtain wall corresponding to the Premises or
other part or parts of the Buildings (if any) whether used exclusively by the
Tenant or not 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.
5.7 ELECTRICAL INSTALLATIONS
The Tenant shall repair and replace any electrical wiring, installation
or piping within the Premises or used exclusively by the Tenant if the same
becomes dangerous or unsafe unless the damages are caused by inherent defects in
the wiring, installation or piping made by the Landlord or if so required by the
Landlord or the relevant utility company and in so doing or in carrying out any
other works thereto at the Tenant's own instigation the Tenant shall use only
the contractor previously nominated or approved by the Landlord in writing for
the purpose. The Tenant shall permit the Landlord or its agents or servants to
test the Tenant's wiring and/or piping in the Premises at any time. The Tenant
shall indemnify the Landlord and hold it harmless against any cost damage claim
demand action or proceeding resulting from or attributable to any mal-function
or disrepair of the electrical installation, wiring or piping in the Premises.
The Tenant shall not, without the prior written consent of the Landlord (such
consent not to be unreasonably withheld), install or alter or permit or suffer
to be made any alterations in or additions to the electrical wiring,
installation or piping.
5.8 GOOD REPAIR OF TOILETS & WATER APPARATUS
The Tenant shall maintain all toilets sanitary and water apparatus as are
located within the Premises (or elsewhere in the Buildings if used exclusively
by the Tenant) in good, clean, substantial and proper repair and condition at
all times during the Term and in accordance with the Regulations of the Public
Health Department or other relevant Government authority, fair wear and tear
excepted.
5.9 CLEANING CONTRACTORS
The Tenant shall keep the Premises and every part thereof at all times in
a clean and sanitary state and condition and dispose of all refuse and rubbish
in accordance with the House Rules and shall not bring or keep or suffer to be
brought or kept in or on the Premises anything which in the opinion of the
Landlord is or may become unclean unsightly or detrimental to the Premises. The
Tenant shall, at its own expense, employ cleaning contractors nominated or
approved by the Manager pursuant to the Deed of Mutual Covenant for the cleaning
of the Premises. The Tenant shall enter into a separate agreement with such
cleaning contractors and make all payments direct to such cleaning contractors.
- 12 -
14
The Landlord shall not assume any responsibility for the acts, omissions or
neglect of such cleaning contractors and the Tenant shall fully indemnify the
Landlord against all claims costs and damage rising out of the acts, omissions
or neglect of such cleaning contractors.
5.10 CLEANING OF DRAINS
The Tenant shall pay to or reimburse the Landlord forthwith on demand the
reasonable cost incurred by the Landlord in cleaning, clearing, repairing or
replacing any of the drains pipes or sanitary or plumbing apparatus choked,
blocked or stopped up owing to the improper or careless use or neglect thereof
by the Tenant or its servants, agents, employees, contractors or licensees and
keep the Landlord fully indemnified against any cost claim or damage caused
thereby or arising therefrom.
5.11 MAKING GOOD DEFECTS
The Tenant shall notify the Landlord of and make good at the expense of
the Tenant all defects or damage caused by the act, default, neglect or omission
of the Tenant or any of its servants, agents, employees, contractors or
licensees in and to the Premises and other parts of the Buildings.
5.12 NOTICE OF ENTRY FOR REPAIR OF ADJOINING PREMISES
The Tenant shall permit the Landlord, the Manager and their duly
authorized surveyor(s) or agent(s) and all other persons duly authorized by the
Landlord and/or the Manager with or without workmen or others and with or
without appliances at all reasonable times and upon written notice (except in
case of emergency) to enter upon the Premises for the purpose of executing
repairs and/or alterations on any adjoining premises.
5.13 TO PERMIT LANDLORD TO ENTER & VIEW
The Tenant shall permit the Landlord, the Manager and their respective
agents and all other persons duly authorized by the Landlord and/or the Manager
with or without workmen or others and with or without appliances at all
reasonable times and upon written notice (except in case of emergency) to enter
upon the Premises to view the condition or user thereof or to inspect any works
in progress and to take inventories of the fixtures and fittings therein. The
Landlord may serve a notice on the Tenant requiring the Tenant to execute such
repair for which the Tenant is liable hereunder and/or remedy breach of such
covenant herein contained on the part of the Tenant to be observed within
fourteen (14) of the date of the notice (or sooner if required) and the Tenant
shall pay to the Landlord forthwith on demand all the expenses (including
solicitors' costs and surveyor's fees) incurred by the Landlord in connection
with the preparation and service of such notice Provided that in the event of an
emergency the Landlord and/or the Manager or their respective servants or agents
may enter the Premises without notice, forcibly if necessary. For the better
observance of this provision, if the Tenant is requested by the Manager under
the Deed of Mutual Covenant
- 13 -
15
to furnish to the Manager duplicate of the keys to the entrance doors of the
Premises and the Tenant is prepared to accept such request, the Tenant shall
furnish to the Manager duplicate of the keys to the entrance doors of the
Premises. The Tenant shall further inform the Landlord as to the presence and
nature of any security system installed by the Tenant in the Premises.
5.14 TO EXECUTE REPAIRS ON RECEIPTS OF NOTICE
The Tenant shall, on receipt of any notice issued by the Landlord
pursuant to Clause 5.13 specifying any works or repairs which are required to be
done and for which the Tenant is liable hereunder, forthwith comply with the
notice, put in hand and execute the same with all possible despatch. If the
Tenant shall not within fourteen (14) days of the date of the notice (or sooner
if required) proceed diligently with the execution of such works or repairs, the
Tenant shall permit the Landlord or its authorized representatives with all
necessary workmen, tools, materials, equipment and appliances to enter upon the
Premises and execute such works or repairs and the costs thereof shall be a debt
due from the Tenant to the Landlord, be repayable by the Tenant forthwith on
demand by the Landlord and be forthwith recoverable from the Tenant by action.
5.15 PROSPECTIVE TENANTS
During the last six (5) months of the Term, the Tenant shall allow the
Landlord to show the Premises to prospective tenants or purchasers and allow the
Landlord to exhibit without interference upon such part of the Premises as the
Landlord shall think fit a notice indicating that the Premises are to become
vacant and containing such other information in connection therewith as the
Landlord shall require and the Tenant shall not conceal such notice.
5.16 PROTECTION FROM TYPHOON
The Tenant shall take all reasonable precautions to protect the interior
of the Premises against damage by storm, typhoon, heavy rainfall or the like and
in particular to ensure that all exterior doors (if any) and windows are
securely fastened upon the threat of such adverse weather conditions.
5.17 SERVICE ENTRANCES
The Tenant shall load and unload goods, equipment, furniture or large or
heavy objects only at such times and through such goods lifts, entrances and
staircases as may from time to time be designated by the Landlord or the Manager
for such purposes Provided always that under no circumstances shall passenger
lifts be used at any time for delivery purpose.
5.18 COMMON AREAS
The Tenant shall indemnify the Landlord against the cost of any
- 14 -
16
damage caused to any part of the common areas of the Buildings occasioned by
act, default, neglect or omission of the Tenant or any of its servants, agents,
employees, contractors or licensees.
5.19 TENANT'S SERVANTS AGENTS ETC
The Tenant shall be liable for the acts, defaults, neglects and omissions
of the Tenant's servants, agents, employees, contractors or licensees (including
any person present in, using or visiting the Premises with the consent of the
Tenant, express or implied) as if they were the acts, defaults, neglects and
omissions of the Tenant and indemnify fully the Landlord against all costs,
claims, demands, expenses or liability to any third party or loss in connection
therewith.
5.20 DIRECTORY BOARDS
The Tenant shall pay to the Landlord forthwith upon demand the cost of
affixing, repairing, altering or replacing as necessary the Tenant's name on the
directory boards provided by the Landlord or the Manager.
5.21 SECURITY
The Tenant shall ensure that the Tenant's own security system (if any)
within and at the entrance of the Premises is at all times compatible with and
if so required by the Landlord linked up to the security system (if any) for the
Buildings provided and operated by the Landlord and/or the Manager.
5.22 CHANGE OF NAME
Without prejudice to Clause 6.16, the Tenant shall, in the event of the
Tenant changing its name, notify the Landlord at least seven (7) days prior to
such change of name.
5.23 YIELD UP PREMISES & HANDOVER
The Tenant shall quietly yield up the Premises and hand over the same
together with the Landlord's Fixtures and Installations and other fixtures
fittings and additions (if any) therein and thereto at the expiration or sooner
determination of the Term in good, clean and substantial repair and condition
substantially the same as at the commencement of this Lease (fair wear and tear
excepted) notwithstanding any rule of law or equity to the contrary Provided
that where any alterations or installations of any fixtures or additions to the
Premises have been made during the Term with or without the Landlord's written
consent, the Landlord may at its absolute discretion require the Tenant at its
own expense to reinstate, remove or do away with such alterations fixtures or
additions or such part or portion thereof as the Landlord may require and make
good and repair in a proper and workmanlike manner any damage to the Premises
and/or the Landlord's Fixtures and Installations as a result thereof before
delivering up the Premises to the Landlord. The Landlord may at its absolute
discretion further require the Tenant at
- 15 -
17
its own expense to remove its own trade fixtures and trade equipment and make
good all damages to the Premises to the reasonable satisfaction of the Landlord
including damage to the fixtures fittings and decoration within the Premises and
the Buildings caused by such removal.
5.24 INFORM LANDLORD OF DAMAGE
The Tenant shall give notice in writing to the Landlord and the Manager
or their respective agents immediately of any damage that may be caused to the
Premises or suffered by any person therein or thereon and of any accident to or
defects in the electrical installation, wiring or piping, fittings, fixtures or
other facilities provided by the Landlord.
5.25 INDEMNIFICATION OF LANDLORD
Except in the case of damage or injury caused by inherent defects of a
structural nature, the Tenant shall be wholly responsible for any damage or
injury caused to any person whomsoever or any property whatsoever whether
directly or indirectly through the defective or damaged condition of any part of
the interior of the Premises or any fixtures, fittings, installations and
additions therein including the Landlord's Fixtures and Installations for the
repair of which the Tenant is responsible hereunder or through or in any way
owing to the spread of fire or smoke or the leakage or overflow of water from
the Premises or any part thereof or through the act, neglect, default or
omission of the Tenant or any of its servants, agents, employees, contractors or
licensees and shall make good the same by payment or otherwise and indemnify the
Landlord against all costs, claims, demands, actions and legal proceedings
whatsoever made upon the Landlord by any person in respect of any such loss
damage or injury and all costs and expenses incidental thereto. For the better
observance of this Clause, the Landlord may, but shall not be obliged to, effect
at the Tenant's expense insurance cover in respect of such risks in accordance
with the provisions of this Clause 5.25 with a reputable insurance company
acceptable to the Landlord.
5.26 TENANT'S INSURANCE
The Tenant shall effect and maintain during the Term insurance cover in
respect of the following:-
(a) Third party liability
In respect of liability for loss injury or damage to any person or
property whatsoever caused through or by any act, neglect, default
or omission of the Tenant which might give rise to a claim for
indemnity pursuant to Clause 5.25 hereof.
(b) Glass
All glass, if any, now or hereafter on or in the Premises
excluding the glass curtain wall for its full replacement
- 16 -
18
value.
(c) Water Damage
Against damage to the Landlord's Fixtures and Installations to the
full insurable value occurring in respect of the use or misuse of
the fire-fighting installation installed within the Premises or
the incursion of water therein.
(d) Tenants Fittings
The Tenant's fittings, goods, personal effects, stock and
equipment within the Premises against fire and extraneous perils
for their full replacement value.
The policy of insurance shall be effected with an insurance company approved by
the Landlord, such approval not to be unreasonably withheld and shall be
endorsed to show the Landlord as registered owner of the Premises and shall be
in an amount of not less than that set out in the Fifth Schedule hereto payable
on each claim 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 the prior written consent of 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 fully paid up and in all respects valid and subsisting.
6. TENANT'S NEGATIVE COVENANTS
6.1 INJURY TO WALLS
The Tenant shall not, without the prior written consent of the Landlord
(which may, in the absolute discretion of the Landlord, be withheld or granted
upon such terms and conditions as the Landlord may impose), cut, maim, injure,
drill into, mark or deface or permit or suffer to be cut, maimed, injured,
drilled into, marked or defaced any doors (other than those installed by the
Tenant), windows, window-frames, partition or structural walls (other than those
internal partition walls erected by the Tenant), glass curtain walls, ceilings,
raised floor, beams, structural members 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 existing raised flooring or slab.
6.2 ALTERATION TO EXTERIOR
The Tenant shall not, without the prior written consent of the Landlord
(which may, in the absolute discretion of the Landlord, be withheld or granted
upon such terms and conditions as the Landlord may
- 17 -
19
impose), affix or attach anything or paint or make any alteration whatsoever to
the exterior of the Premises or the common areas or allow anything to be
affixed, attached, painted, suspended or hung outside the Premises or drop
anything from the Premises.
6.3 INSIDE FACES OF WINDOWS
The Tenant shall not paint, spray, put on or adhere any thing or
substance on the inside or outside faces of the windows or the window frames or
the glass curtain walls of the Premises.
6.4 NUISANCE
The Tenant shall not cause or produce or suffer or permit to be produced
on or in the Premises any sound or noise or vibration (including sound produced
by broadcasting from television, radio or any apparatus or instrument capable of
producing or reproducing music or sound or vibration) 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 or to users or
customers of the same or to the Landlord or which in the opinion of the Landlord
may prejudicially affect or depreciate the Premises or the Buildings or any
adjacent or neighbouring premises. It is hereby agreed that a persistent breach
by the Tenant of this Clause shall amount a breach of this Lease which will
entitle the Landlord to exercise its right of re-entry hereunder.
6.5 AUCTIONS & SALES
The Tenant shall not conduct or permit any sale to the public by auction,
bankruptcy, close-out or other sale of things or properties of a similar nature
to take place on the Premises.
6.6 USER
(a) The Tenant shall not use the Premises or any part thereof for any
purpose other than as office Provided that no warranty is given or
deemed to be given by the Landlord as to the fitness of the
Premises for such use. In particular, the Tenant shall not alter
the lavatory comprised in the Premises for any other use.
(b) The Tenant shall not use or cause or permit or suffer to be used
any part of the Premises for gambling or for any illegal, immoral
or improper purpose or in any way so as to cause a nuisance,
annoyance, inconvenience, damage or danger to the Landlord or the
tenants or occupiers of adjacent or neighbouring premises.
(c) The Tenant shall not tout or cause or permit or suffer any touting
or soliciting for business or the distribution of any pamphlet,
notice or advertising matter outside the Premises or anywhere
within the Buildings (except inside
- 18 -
20
the Premises) by any of the Tenant's servants, agents, employees,
contractors or licensees.
(d) The Tenant shall not use the Premises or any part thereof as
sleeping quarters or as domestic premises within the meaning of
the Landlord and Tenant (Consolidation) Ordinance or similar
legislation for the time being in force and the Tenant shall not
allow any person to remain on the Premises overnight other than
for working purposes and with prior notice to the Landlord or the
Manager Provided that the Tenant may post watchmen to look after
the contents of the Premises and the names of the watchmen shall
be registered with the Landlord.
(e) Except for the reheating of pre-prepared food for consumption by
the Tenant's employees by an approved microwave oven, the Tenant
shall not cook, prepare, deliver or permit or suffer to be cooked
or prepared or delivered any food in the Premises save with the
prior written consent of the Landlord or permit any offensive or
unusual odours (as determined by the Landlord absolutely) to be
produced upon or emanate from the Premises.
(f) The Tenant shall not keep or permit or suffer to be kept any
animals or pets inside the Premises and shall take all such steps
and precautions to the satisfaction of the Landlord to prevent the
Premises or any part thereof from becoming infested by termites,
rats, mice, cockroaches or any other pests or vermin and for the
better observance of this provision, the Landlord may require the
Tenant to effect pest control for the Premises at the Tenant's
cost and expense at such intervals as the Landlord or any relevant
Government authority may direct by employing such pest
extermination contractors as the Landlord may approve, such
approval not to be unreasonably withheld.
6.7 HEAVY MACHINERY
The Tenant shall not, without the prior written consent of the Landlord
(such consent not to be unreasonably withheld but may be granted subject to such
reasonable conditions as the Landlord may impose), install or cause or permit or
suffer to be installed any equipment apparatus or machinery or any part thereof
which imposes a weight on any part of the flooring in excess of five (5) KPa or
which requires any additional electrical wiring or piping or which consumes
electricity or gas not metered through the Tenant's separate meter. The Landlord
shall be entitled to prescribe the maximum weight and permitted location of
safes and other heavy equipment and to require that the same stand on supports
of such dimensions and material to distribute the weight thereof as the Landlord
may deem necessary and the Tenant shall reimburse the Landlord all costs,
charges and expenses incurred by the Landlord in making such prescription.
- 19 -
21
6.8 MANUFACTURE & STORAGE OF MERCHANDISE
The Tenant shall not use the Premises for the manufacture of goods or
merchandise or for the storage of goods or merchandise other than as samples or
exhibits reasonably required in connection with the Tenant's business carried on
therein or keep or store or cause or permit or suffer to be kept or stored any
extra-hazardous, inflammable or dangerous goods within the meaning of the
Dangerous Goods Ordinance and the regulations thereunder.
6.9 OBSTRUCTION IN PASSAGES
The Tenant shall not place or leave or suffer or to permit to be placed
or left by any of its servants, agents, employees, contractors or licensees any
boxes, furniture, articles or rubbish in the entrance or any of the staircases,
passages or landings or other parts of the Buildings used in common with other
tenants or the Landlord or otherwise encumber the same. The Tenant hereby agrees
to keep the Landlord indemnified against all losses, claims, damages or expenses
suffered or incurred by the Landlord as a result of a breach of this Clause.
Without prejudice to any other remedy it may have under this Lease, the Landlord
or any of its servants or agents may without any prior notice to the Tenant
remove any such obstruction and dispose of the same as it may in absolute
discretion think fit without incurring any liability therefor to the Tenant or
any other person whomsoever and the Tenant shall pay to the Landlord forthwith
on demand all costs and expenses incurred in connection with such removal.
6.10 GOODS & MERCHANDISE OUTSIDE THE PREMISES
The Tenant shall not place expose or leave or permit or suffer to be
placed exposed or left for display sale or otherwise any goods or merchandise or
thing whatsoever upon or over the ground or passages outside the Premises.
6.11 AIR-CONDITIONING
(a) The Tenant shall not install air-conditioning plant, machinery or
equipment in addition to or in place of those provided by the
Landlord.
(b) Where any air-conditioning plant, machinery or equipment for
cooling or recirculating air is installed in or about the Premises
(whether by the Landlord or the Tenant with the Landlord's
approval), the Tenant shall to the extent of the Tenant's control
over the same at all times use and regulate the same to ensure
that the air-conditioning plant, machinery or equipment is
employed to the best advantage in the conditions from time to time
prevailing.
(c) Where air-conditioning service is required by the Tenant outside
the normal business hours (i.e. from 8:00 a.m. to 6:30 p.m. every
day (Sundays and public holidays excluded)
- 20 -
22
for Mondays to Fridays and from 8:00 a.m. to 2:00 p.m. on
Saturdays which are not public holidays) and is provided by the
Manager on the Tenant giving the Manager reasonable advance notice
of the Tenant's requirements, the Tenant shall pay to the Landlord
and/or the Manager forthwith on demand or reimburse the Landlord
such amount as the Manager may, in accordance with the Deed of
Mutual Covenant, charge for such additional air-conditioning
service Provided that nothing herein shall oblige the Landlord to
arrange for such additional air-conditioning service the provision
whereof is governed by the Deed of Mutual Covenant.
6.12 SIGNS
The Tenant shall not exhibit or display on or affix to the interior or
exterior of the Premises so as to be visible from outside the Buildings any
writing, sign, signboard or other device whether illuminated or not or affix any
writing, sign, signboard or other device in, at or above any common area, lobby,
landing, passage or corridor of the Buildings Provided always that the Tenant
shall be entitled to have its name and business displayed in lettering and/or
characters to a design and standard of workmanship approved by the Landlord on a
signboard or name-plate at the entrance of the Premises. The Landlord and/or the
Manager or their respective authorized agents shall have the right to remove at
the expense of the Tenant any signboard, sign, name-plate and decorative device
associated therewith affixed or put up or displayed without the prior written
consent of the Landlord.
6.13 AERIALS
The Tenant shall not erect any aerial on the roof or walls of the
Buildings or on the ceiling or walls of the Premises or interfere with, remove,
dismantle or alter the common aerials (if any) provided by the Landlord.
6.14 PARKING
The Tenant shall not park in, obstruct or otherwise use or permit any of
its servants, agents, employees, contractors or licensees to park in, obstruct
or otherwise use those areas of the Buildings allocated to the parking or
movement of or access for vehicles or designated as loading/unloading areas
otherwise than in accordance with the permissions and directions of the Landlord
and/or the Manager or as permitted under the House Rules.
6.15 BREACH OF INSURANCE POLICY
The Tenant shall not do or cause or permit or suffer to be done any act
or thing whereby the policy or policies of insurance on the Premises and/or the
Buildings against loss or damage by fire and/or other insurable risks and/or
claims by third parties for the time being subsisting may become void or
voidable or whereby the rate of premium or
- 21 -
23
premia thereon may be increased and the Tenant shall pay to the Landlord
forthwith 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 a
breach by the Tenant of this Clause.
6.16 NO SUBLETTING
The Tenant shall not assign, underlet, part with the possession of or
transfer the Premises or any part thereof or any interest therein or permit or
suffer any arrangement or transaction whereby any person who is not a party to
this Lease obtains the use, possession, occupation or enjoyment of the Premises
or any part thereof irrespective of whether any rental or other consideration is
given therefor. The lease created hereby shall be personal to the Tenant named
in this Lease. Without 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:-
(a) In the case of the Tenant being a partnership, the taking in of
one or more new partner whether on the death or retirement of an
existing partner or otherwise.
(b) In the case of the Tenant being an individual (including a sole
surviving partner of a partnership tenant), the death, insanity or
other disability of that individual to the intent that no right to
use, possess, occupy or enjoy the Premises or any part thereof
shall vest in the executors, administrators, personal
representatives, next of kind, trustee or committee of such an
individual.
(c) In the case of the Tenant being a corporation, the take-over,
reconstruction, amalgamation, merger, voluntary liquidation or
change in the person or persons in whom the majority of its voting
shares are vested or who otherwise has/have effective control
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 and enjoy the Premises or any part thereof or does
in fact use, possess, occupy or enjoy the same.
(e) The change of the business name of the Tenant.
6.17 COMMON FACILITIES, ETC.
The Tenant shall not make any alteration to or interfere or tamper or
permit its servants, agents, employees, contractors or licensees to make any
alteration to or interfere or tamper with any of the following other than in the
manner expressly permitted hereunder:-
(a) the raised flooring within the Premises;
- 22 -
24
(b) the heating, ventilation and air-conditioning system for the
Buildings (including that part of system installed within the
Premises);
(c) the electrical installations for the Buildings;
(d) the fire services installations of the Buildings (including those
within the Premises);
(e) the installations for plumbing and drainage for the Buildings
(including those within the Premises);
(f) the building management system of the Buildings;
(g) the communication network which forms part of the Common
Facilities (as defined in the Deed of Mutual Covenant) of the
Buildings;
(h) the suspended ceiling of the Buildings (including that within the
Premises); and
(i) the conduits, pipes, wires, cables and ducts in, on or under the
Premises or the raised flooring therein serving or intended to
serve the Buildings or any adjoining or neighbouring property.
7. LANDLORD'S OBLIGATIONS
The Landlord hereby agrees with the Tenant as follows:-
7.1 QUIET ENJOYMENT
Subject to the Tenant duly paying the Rent and the other charges
hereinbefore mentioned on the days and in manner herein provided for and
observing and performing the agreements, stipulations, terms, conditions and
obligations herein contained, the Tenant shall 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.
7.2 CROWN RENT
The Landlord shall pay the Crown Rent, Property Tax and all other
expenses of a capital and non-recurrent nature attributable to or payable in
respect of the Premises.
7.3 MAIN STRUCTURE
The Landlord shall use best endeavours to procure that the Manager shall
keep the roof of the Buildings and the main structure and walls (including the
glass curtain walls) thereof and the mains, drains, pipes and cables therein in
a proper state of repair and condition
- 23 -
25
Provided that the Landlord shall not be liable for breach of this Clause unless
and until prior written notice of any defect or want of repair shall have been
given by the Tenant to the Landlord and the Landlord shall have failed to notify
the Manager to carry out any such necessary repair after the lapse of a
reasonable time from the service of such notice.
7.4 AIR-CONDITIONING
The Landlord shall use its best endeavours to procure that subject to the
right of the Manager under the Deed of Mutual Covenant to change the hours for
air-conditioning services, the Manager shall provide air-conditioning services
to the Premises daily from 8:00 a.m. until 6:30 p.m. everyday (Sundays and
public holidays excluded) for Mondays to Fridays and from 8:00 a.m. to 2:00 p.m.
on Saturdays (which are not public holidays). If the Tenant shall require
additional air-conditioning services outside the times specified by the
Landlord, the Landlord shall use its best endeavours to procure that the Manager
shall provide the same to the Tenant on receiving reasonable notice of the
Tenants requirements. The charges for air-conditioning outside the times
specified by the Landlord shall be determined by the Landlord and/or the Manager
and notified to the Tenant from time to time.
7.5 FACILITIES
The Landlord shall use best endeavours to procure that the Manager shall
maintain the lifts, escalators, travelators, fire and security services
equipment, central air-conditioning system and other common facilities of the
Buildings in proper working order and keep the same in good repair.
7.6 COMPLIANCE WITH CONDITIONS
The Landlord shall comply with the provisions of the Conditions of Sale
or the Crown Lease under which the Landlord holds the Premises and shall not do
or permit any act or thing to be done (or omitted to be done) which results in
the whole or any part of the Premises being or becoming subject to re-entry
under the Conditions of Sale or the Crown Lease.
7.7 LANDLORD'S REPAIRS
The Landlord shall, upon receipt of the Tenants request therefor and
within a reasonable period, effect such repairs to the interior of the Premises
as shall be necessitated by damage caused by any defects or want of repair in
the structure of the Buildings or any part thereof or any other services or
facilities if the Landlord is liable for such repairs hereunder.
8. EXCLUSIONS
8.1 It is hereby expressly agreed and declared that the Landlord
- 24 -
26
shall not in any circumstances be liable to the Tenant or any other person
whomsoever:-
(a) Lifts, Air-Conditioning & Other Common Facilities - in respect of
any injury, loss, damage or loss of business whatsoever which may
be suffered or sustained by the Tenant or any other person or to
any property whatsoever caused by or through or in any way owing
to any malfunction, defect in or breakdown of the lifts,
escalators, travelators, fire and security services, central
air-conditioning system, satellite and the ancillary distribution
system, backbone distribution system, the "High Speed Data Link"
system or any other services or facilities provided in the
Building or any failure, malfunction, explosion, variation,
interruption or suspension of electricity or water supply or any
other services or services provided in the Building; or
(b) Fire & Overflow Water - in respect of any injury, loss, damage or
loss of business whatsoever which may be suffered or sustained by
the Tenant or any other person or to any property whatsoever
caused by or through or in any way owing to typhoon, landslide,
subsidence of the ground, the escape of fumes, smoke, fire or any
other substance or thing or the overflow of water or vibrations
from anywhere within the Buildings or in the neighborhood or the
influx of rain water or sea water into the Buildings or the
Premises or the activity of rats or other vermin in the Buildings
or the act, neglect, default or omission of the tenants and
occupiers of the other parts of the Buildings or the defective or
damaged condition of the Premises or the Landlord's Fixtures and
Installations or any part thereof or dropping or falling of any
article whatsoever from the Buildings; or
(c) Security - 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 and/or
the Manager of watchmen and caretakers or any mechanical or
electrical alarm systems (if any) of whatever nature shall not
create any obligation on the part of the Landlord 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 Tenants; or
(d) Vehicles - for the supervision of or for any damage or loss to
vehicles or accessories or injury to persons or any other damage
resulting therefrom,
and the Tenant shall indemnify and keep the Landlord fully indemnified against
all claims and demands whatsoever made upon the Landlord by any
- 25 -
27
of the servants, agents, employees, contractors or licensees of the Tenant or
any other person claiming through or under the Tenant as a result of any such
loss or damage or injury aforesaid nor shall the Rent and other charges
hereinbefore mentioned or any part thereof abate or cease to be payable on
account of the happening of any of the foregoing.
9. SUSPENSION OF RENT IN CASE OF FIRE ETC.
If:-
(a) the Premises or the Buildings or any part thereof shall at any
time during the Term be destroyed or damaged or become
inaccessible or uninhabitable owing to fire, water, storm,
typhoon, defective construction, white ants, earthquake,
subsidence of the ground or any calamity beyond the control of the
Landlord and not attributable to the act, default, neglect or
omission of the Tenant or any of its servants, agents, employees,
contractors or licensees so as to render the Premises unfit for
commercial use in accordance with Clause 2.1; or
(b) at any time during the Term the Premises or the Buildings shall be
condemned as a dangerous structure or a demolition order or
closing order shall become operative in respect of the Premises or
the Buildings so as to prevent the occupation of the Premises the
happening of which is not attributable to the act, default,
neglect or omission of the Tenant or any of its servants, agents,
employees, contractors or licensees,
then the Rent hereby reserved or a fair proportion thereof according to the
nature and extent of the damage sustained or the order made shall after the
expiration of the then current calendar month be suspended until the Premises
shall be reinstated or fit for the use as aforesaid or the said order lifted, as
the case may be, Provided that:-
(i) the Landlord shall not be obliged to reinstate the Premises or the
Buildings or carry out any repairs thereto if, by reason of the
condition of the Premises or any local regulations or other
circumstances beyond the control of the Landlord, it is not
practicable or reasonable so to do; and
(ii) should the Premises or the Buildings not have been reinstated in
the meantime, either the Landlord or the Tenant may at any time
after four (4) months from the date of occurrence of such damage
or the said order give to the other of them a notice in writing to
determine this Lease and thereupon the same and everything herein
contained shall cease and be of no effect as from the date of such
notice but without prejudice to the rights and remedies of either
party against the other in respect of any
- 26 -
28
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 date off such notice.
In the event of any disagreement between the parties hereto on the application
of this Section, the matter shall be referred to a single Chartered Surveyor
appointed by mutual agreement or failing agreement to a single Chartered
Surveyor nominated by the Chairman for the time being of the Royal Institution
of Chartered Surveyors (Hong Kong and China branch) and the decision of the
Chartered Surveyor who shall be acting as an arbitrator shall be final and
binding. The costs of such appointment of the Chartered Surveyors shall be borne
by the Landlord and the Tenant in equal shares.
10. DEFAULT
It is hereby expressly agreed and declared as follows:-
10.1 If:-
(a) the Rent and/or any of the other charges payable hereunder or any
part thereof shall be in arrear for fourteen (14) days after the
same shall have become payable (whether formally demanded or not);
or
(b) the Tenant shall suspend business without the Landlord's prior
written consent; or
(c) there shall be any other 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
(d) the Tenant shall become bankrupt or enter into composition with
his creditors generally or being a corporation go into liquidation
whether compulsory or voluntary (save for the purposes of
amalgamation or reconstruction approved by the Landlord) or shall
suffer a receiver to be appointed; or
(e) the Tenant shall suffer execution to be levied upon the Premises
or otherwise on the Tenant's goods in Hong Kong,
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 by the Landlord in respect of any outstanding
breach 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 to the effect
that the Landlord thereby exercises the power of re-entry herein contained shall
be a full and sufficient
- 27 -
29
exercise of such power without physical entry on the part of the Landlord
notwithstanding any rule of law or equity to the contrary.
10.2 Notwithstanding anything herein contained if the Rent, management,
air-conditioning or other charges or moneys herein reserved or any part or parts
thereof shall be in arrears (hereinafter referred to as "the Arrears") and if
the Tenant persists in its failure to pay the same after three (3) days' notice
in writing is given by the Landlord, the Landlord shall be entitled to:-
(a) recover from the Tenant as a debt the expenses incurred by the
Landlord in the course of recovering the Arrears including without
limitation:-
(i) such sum as the Landlord shall reasonably determine being
collection charges for the additional work incurred by the
Landlord's staff and/or the Manager (as the case may be) in
collecting the Arrears;
(ii) all legal charges and expenses on an indemnity basis
incurred by the Landlord for the purpose of recovering the
Arrears;
(iii) all other fees paid to debt-collectors appointed by the
Landlord for the purpose of collecting the Arrears; and
(b) disconnect or discontinue the supply of services to the Premises
and/or to the Tenant such as air-conditioning services, water,
gas, electric power, management and other services forthwith
without incurring any liability to the Tenant for any loss or
damage suffered by the Tenant as a result thereof;
Provided Always that the rights and remedies given to the Landlord by this
Clause shall be deemed cumulative remedies and shall not prejudice any right of
action or any remedy of the Landlord for the recovery of any Rent or money due
to the Landlord from the Tenant.
10.3 Any demand for or acceptance of any Rent by the Landlord or its agents
hereunder shall not be deemed to operate as a waiver by the Landlord of any
right to proceed against the Tenant in respect of any breach, non-observance or
non-performance by the Tenant of any of the agreements, stipulations, terms and
conditions herein contained and on the part of the Tenant to be observed and
performed and any such breach, non-observance or non-performance shall be deemed
to be a continuing breach of covenant and the Tenant shall not be entitled to
set up any such demand for or acceptance of rent as a defence in any action for
forfeiture or otherwise.
10.4 For the purpose of this Lease, any act, default, neglect or omission of any
servant agent employee contractor or licensee (which term shall include any
person present in using or visiting the Premises with
- 28 -
30
the consent of the Tenant express or implied) of the Tenant shall be deemed to
be the act, default, neglect or omission of the Tenant and any act, default,
neglect or omission of any servant agent employee contractor or licensee of the
Landlord shall be deemed to be the act, default, neglect or omission of the
Landlord.
10.5 For the purposes of Part III of the Landlord and Tenant (Consolidation)
Ordinance or any statutory modification or re-enactment thereof for the time
being in force and of this Lease, the Rent and the management charges payable in
respect of the Premises shall be and be deemed to be in arrear if not paid in
advance at the times and in the manner hereinbefore provided for payment
thereof.
11. DEPOSIT
11.1 To secure the due payment of the Rent and the due performance and
observance of the terms and conditions herein contained and on the part of the
Tenant to be performed and observed, the Tenant shall on the signing hereof and
throughout the Term maintain a deposit ("the Deposit") in such sum as shall from
time to time be equivalent to the aggregate of:-
(a) two (2) months' Rent payable hereunder;
(b) three (3) months' management fees payable hereunder from time to
time (initially of the amount set out in Part 2 of the Fourth
Schedule hereto); and
(c) one (1) quarter's rates payable in respect of the Premises by
reference to rateable value of the Premises and pending valuation
of the Premises in accordance with the Rating Ordinance (Cap.
116), by reference to the interim valuation made by the Landlord
pursuant to Clause 4.3(c).
The Deposit shall remain deposited with the Landlord and shall not be withdrawn
throughout the Term and shall only be released as hereinafter provided. The
Landlord shall be entitled to deduct from the Deposit the amount of all losses
and damages sustained or incurred by the Landlord as a result of any breach,
non-observance or non-performance by the Tenant of any of the covenants, terms
or conditions herein contained. The Tenant shall forthwith on demand deposit
with the Landlord the amount so deducted or (as the case may be) an additional
amount to the intent that the Tenant shall at all times during the Term maintain
with the Landlord as Deposit a sum as shall be equivalent to the aggregate of:-
(i) two (2) months' Rent payable hereunder;
(ii) three (3) months' management fees payable hereunder from time to
time.
(iii) one (1) quarter's rates payable in respect of the Premises by
reference to rateable value of the Premises and pending valuation
of the Premises in accordance with the Rating
- 29 -
31
Ordinance (Cap. 116), by reference to the interim valuation made
by the Landlord pursuant to Clause 4.3(c).
11.2 The Deposit shall be retained by the Landlord until the expiration of the
Term and after all the Tenant's covenants terms and conditions shall have been
duly performed and observed, it shall be repaid to the Tenant without interest
or compensation within thirty (30) days from the date of the Tenant delivering
up vacant possession of the Premises together with all fixtures and fittings
therein and thereto to the Landlord or within thirty (30) days from the date of
the full and final settlement by the Tenant of all claims made by the Landlord
in respect of the Tenant's obligations hereunder whichever shall be the later
Provided that the Landlord may prior to refund of the Deposit require the Tenant
to produce receipts for rates and other utilities covering the Term or other
evidence showing that payment thereof has been made by the Tenant during the
Term.
12. BUILDING MANAGEMENT & REGULATIONS
12.1 CHANGE OF COMMON AREAS, ETC
The Landlord or the Landlord's agent shall have the right from time to
time and at any time without the same constituting an actual or constructive
eviction of the Tenant and without incurring any liability to the Tenant in
respect thereof but causing as little inconvenience as possible to the Tenant to
erect install, restrict and/or alter the arrangement and/or the location and/or
alter the arrangement and/or the accessibility of entrances, staircases,
landings, passages, doors, doorways, corridors, lobbies, lifts, escalators,
travelators, lavatories, counters, showcases or other common areas of the
Buildings or any services or apparatus or installations serving the Buildings.
12.2 CONFLICT WITH HOUSE RULES
The House Rules 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 House Rules and the terms and
conditions of this Lease the terms and conditions of this Lease shall prevail.
12.3 NON-ENFORCEMENT
The Landlord or the Landlord's agent shall not be liable for any loss or
damage howsoever caused arising from any non-enforcement of the Deed of Mutual
Covenant or the House Rules or non-observance thereof by any person.
12.4 DESIGNATION OF COMMON AREAS
The Landlord and/or the Manager shall be entitled to restrict, designate,
cordon off and/or partition any part or parts of the common areas and/or the
common facilities for the sole use of any tenant and/or
- 30 -
32
the Manager and the Tenant shall not raise any objection thereto and shall not
have any recourse against the Landlord and/or the Manager in any manner
whatsoever.
12.5 ALTERATION AND DISPLAYS
The Landlord reserves the right from time to time to improve extend add
to or reduce the Buildings or any part thereof or in any manner whatsoever alter
or deal with the Buildings or any part thereof (other than the Premises)
Provided always that in exercising such right the Landlord will endeavour to
cause as little inconvenience to the Tenant as is practicable under the
circumstances.
12.6 NAME OF THE BUILDINGS
Subject to the terms of the Deed of Mutual Covenant, the Landlord hereby
reserves the right from time to time by giving not less than three (3) months'
notice to the Tenant to change the names of the two (2) blocks of office
premises and the podium comprised in the Buildings or any one or more of them
without thereby becoming liable to the Tenant, its servants, agents or licensees
for any damages, claims, costs or expenses suffered or incurred as a result of
or in connection with any such change.
12.7 PUBLIC ADDRESS SYSTEM
Notwithstanding anything herein contained or implied to the contrary, the
Landlord may provide and install a public address system throughout the common
areas and may play, relay or broadcast or permit any other person to play, relay
or broadcast recorded music or public announcement therein.
13. INTERPRETATION AND MISCELLANEOUS
13.1 CONDONATION NOT A WAIVER
No condoning, excusing or overlooking by the Landlord of any default,
breach, 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, 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 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 in respect of similar or other matters unless expressly
so provided.
- 31 -
33
13.2 SERVICE OF NOTICES
Any notice required to be served on the Tenant shall be sufficiently
served if delivered to or despatched by pre-paid post to or left at the Premises
or at the last known address of the Tenant. Any notice to be served on the
Landlord shall be sufficiently served if delivered to or despatched by pre-paid
post to the registered office of the Landlord. A notice sent by hand shall be
deemed to be given upon delivery to the addressee and a notice sent by pre-paid
post shall be deemed to be given two (2) days after the date of the notice.
13.3 LANDLORD AND TENANT LEGISLATION
To the extent that the Tenant may lawfully so do the Tenant hereby
expressly agrees to deprive himself of all rights (if any) to protection against
eviction or ejectment provided by any existing legislation or by any future
enactment in substitution or amendment thereof or addition thereto to the intent
that the Tenant shall deliver up vacant possession of the Premises to the
Landlord at the expiration or sooner determination of the Term hereby created
notwithstanding any rule of law or equity to the contrary.
13.4 GENDER, ETC.
In this Lease, if the context permits or requires, words importing the
singular number shall include the plural number and vice versa and words
importing the masculine feminine or neuter gender shall include the other of
them and references to any Ordinance, regulation or other statutory provision
include references to such Ordinance, regulation or provision as from time to
time modified, codified or re-enacted.
13.5 MARGINAL NOTES
The marginal notes, headings and index are intended for guidance only and
do not form a part of this lease nor shall any of the provisions of this Lease
be construed or interpreted by reference thereto or in any way affected or
limited thereby.
13.6 STAMP DUTY
The stamp duty and Land Registry registration fees payable on this Lease
and its counterpart shall be borne by the Landlord and the Tenant hereto in
equal shares. Each of the Landlord and the Tenant shall pay its own legal costs
of and incidental to the Lease and its counterpart.
13.7 EXCLUSION OF WARRANTIES
(a) This Lease and a Side Letter of even date herewith sets out the
full agreement reached between the parties hereto and no other
representations have been made or warranties given relating to the
Landlord, the Tenant, the Buildings or the Premises and if any
such representations have been
- 32 -
34
made or warranties given the same are hereby waived.
(b) Nothing herein contained shall confer on the Tenant any right,
interest, privilege, easement or appurtenance whatsoever mentioned
or referred to in Section 16(1) of the Conveyancing and Property
Ordinance (Chapter 219 of the Laws of Hong Kong) save those
expressly set out herein.
13.8 NO FINE OR PREMIUM PAID
The Tenant acknowledges that no fine premium key money or other
consideration has been paid by the Tenant to the Landlord or its agents for the
grant of this Lease.
13.9 INSPECTION OF PREMISES
The Tenant hereby declares and confirms that it has duly inspected the
Premises and is satisfied with the current state and condition of the Premises
and the fixtures and finishes therein. The parties hereto agree that the
Premises will be let to the Tenant by the Landlord in the state and condition as
at the date of the signing of this Lease and no warranty or representation
whatsoever has been given or is made by the Landlord or its agents regarding the
user of the Premises and the Tenant shall satisfy itself or shall be deemed to
have satisfied itself that they are suitable for the purpose for which they are
to be used and the Tenant hereby agrees that it will at its own expense apply
for any requisite licence or licences permit or permits from all Government or
Public Authorities in respect of the carrying on of the Tenant's business
therein and shall execute and comply with all ordinances, regulation, Orders,
Notices or Rules made by all competent Government or Public Authorities in
connection with the conduct of such business by the Tenant in the Premises And
the Tenant hereby further agrees to indemnify the Landlord in respect of any
breach by the Tenant of the aforesaid And in particular but without limitation
no warranty or representation is given or made by the Landlord or its agents
regarding:-
(a) the fittings and finishes or the installations and appliances (if
any) in the Premises and/or the Buildings;
(b) the state and condition of the Premises or the Buildings and the
user thereof; or
(c) the composition of the Buildings
13.10 JOINT & SEVERAL LIABILITY
Where more than one person are named in Part 3 of the First Schedule
hereto as the Tenant, the representations, warranties, agreements, undertakings
and covenants herein contained on the part of the Tenant shall be the joint and
several representations, warranties, agreements, undertakings and covenants of
such persons.
- 33 -
35
13.11 CONFIRMATION
The Confirmors hereby confirm that the Landlord may enter into this Lease
notwithstanding the acquisition of equitable interests over the Premises by the
Confirmors.
13.12 EARLY TERMINATION
If the Landlord shall at any time during the Term enter into an agreement
for the sale of the Buildings or any part thereof including the Premises, the
Landlord shall be entitled to give to the Tenant six (6) months' notice in
writing to terminate this Lease and immediately upon the expiration of such
notice, this Lease shall absolutely determine but without prejudice to any right
of action by the Landlord in respect of any outstanding breach or non-observance
or non-performance by the Tenant of any of the terms of this Lease.
13.13 SALE SUBJECT TO LEASE
For the avoidance of doubt, it is hereby expressly declared and agreed
that if the Landlord shall at any time during the Term sell the Premises, then
as from the date of completion of the sale of the Premises by the Landlord and
subject to novation to the purchaser of the Premises of the Landlord's
obligation in respect of the Deposit, all the rights, powers, remedies, duties,
obligations and liabilities of the Landlord hereunder shall pass to and be
vested in the purchaser of the Premises and the Landlord shall be absolutely
released and discharged from all duties, obligations and liabilities hereunder
Provided that this Clause shall not in any way prejudice or affect the rights of
the Landlord or the Tenant hereunder which shall have accrued prior to the date
of completion of the sale of the Premises by the Landlord.
13.14 SPECIAL CONDITIONS
For the avoidance of doubt, it is hereby agreed that this Lease shall be
read and construed on the basis that the special conditions, if any, set out in
the Sixth Schedule hereto form an integral part of this Lease. In the event of
conflict between such special conditions and the terms and conditions
hereinbefore provided, the special conditions shall prevail.
13.15 LAW
This Lease shall be governed by and construed in accordance with the Laws
of Hong Kong. The Tenant hereby irrevocably submits to the non-exclusive
jurisdiction of the courts of Hong Kong and the States of New York and Delaware.
The Tenant hereby agrees that a judgement in any proceedings brought in any such
court may be enforced in any other jurisdiction by suit on the judgement or in
any other manner permitted by law. The submission aforesaid is non-exclusive and
the Landlord reserves the right to proceed in any other jurisdiction having or
claiming or accepting jurisdiction in respect of this Lease.
- 34 -
36
THE FIRST SCHEDULE
THE LANDLORD: SHINE HILL DEVELOPMENT LIMITED whose registered office is
situate at 33rd Floor, Great Eagle Centre, 23 Harbour Road,
Hong Kong.
PART 2
THE CONFIRMORS: SHINE BELT LIMITED, FAIR PAGE LIMITED, PANHY
LIMITED and MAPLE COURT LIMITED all having their registered
offices situate at Suite 801, Asia Pacific Finance Tower,
Citibank Plaza, 3 Garden Road, Central, Hong Kong.
PART 3
THE TENANT: GOLDMAN SACHS (ASIA) FINANCE whose registered office is
situate at P.O. Box 309, Grand Cayman, Cayman Islands,
British West Indies.
- 35 -
37
THE SECOND SCHEDULE
PART 1
THE BUILDINGS: Two (2) towers of office/commercial buildings, one
of which consisting of forty-seven (47) storeys and
called "CITIBANK TOWER" and the other of which
consisting of thirty-seven (37) storeys and called
"ASIA PACIFIC FINANCE TOWER" together with the
podium called "CITIBANK PLAZA" on which "CITIBANK
TOWER" and "Asia Pacific Finance Tower
PART 2
THE PREMISES: All That the whole of the Thirty-seventh Floor of
"ASIA PACIFIC FINANCE TOWER" which is for the
purpose of identification shown coloured Pink on the
Plan attached hereto.
- 36 -
38
THE THIRD SCHEDULE
THE TERM: The period of five (5) years and seven (7) months
commencing on 15 October 1993 and expiring on 14 May
1999 (both days inclusive).
- 37 -
39
THE FOURTH SCHEDULE
PART 1
The Rent (excluding management charges):
Rent Payable (in Hong Kong Dollars) per
Period calendar month and exclusive of rates
------ -------------------------------------
From 15 October 1993
To 14 December 1993 rent free period
From 15 December 1993
To 14 May 1996 HK$931,336.00
From 15 May 1996
To 14 May 1999 New Rent determined in accordance with
Special Condition 2 of the Sixth Schedule
PART 2
MANAGEMENT CHARGES: HK$62,366.25 per calendar month (subject to increase
in accordance with Clause 4.2 hereof)
- 38 -
40
THE FIFTH SCHEDULE
INSURED AMOUNT
(a) THIRD PARTY LIABILITY
(i) HK$5,000,000.00 for any one (1) accident; and
(ii) unlimited cover for the insured period.
(b) GLASS The insured amount to be approved by the Landlord.
(c) WATER DAMAGE AND TENANT'S FITTINGS Minimum of HK$500.00 per square foot
of lettable area or a lump sum of HK$500,000.00, whichever is the
greater.
- 39 -
41
THE SIXTH SCHEDULE
SPECIAL CONDITIONS
1. RENT FREE PERIOD
The Tenant shall be entitled to occupy the Premises for the first two (2)
months of the Term (i.e. from 15 October 1993 to 14 December 1993) rent-free
Provided that the Tenant shall pay management charges, rates and utility charges
in accordance with the provisions of this Lease during the said period and
Provided that any delay in the completion of the fitting out work during the
said period caused by any reason whatsoever shall not in any way release the
Tenant from its obligations hereunder to pay the Rent, management charges, rates
and utility charges in accordance with the provisions of this Lease.
2. NEW RENT
2.1 The New Rent referred to in the Fourth Schedule shall be determined in
accordance with the provisions of this Paragraph 2.
2.2 The New Rent shall be determined by agreement between the Landlord and the
Tenant and such agreement shall be recorded in writing signed by the Landlord
and the Tenant.
2.3 If such agreement cannot be reached between the Landlord and the Tenant one
(1) month before the commencement of the period in respect of which the New Rent
is payable (hereinafter called "THE NEW RENT PERIOD"), the matter shall be
referred to an independent surveyor and valuer (hereinafter called "THE VALUER")
to be appointed by the Landlord and the Tenant within one (1) month before the
commencement of the New Rent Period and failing agreement as to the appointment,
shall be appointed by the Chairman for the time being of The Royal Institute of
Chartered Surveyors (Hong Kong Branch). The Valuer shall make a decision as to
the New Rent before the commencement of the New Rent Period and subject to
approval by the mortgagee of the Premises (the approval of the mortgagee not to
be unreasonably withheld), the decision of the Valuer shall be conclusive and
binding on the parties hereto.
2.4 In determining the New Rent, the Valuer shall act as an expert and not as an
arbitrator and shall take into account the open market rent for prime office
accommodation elsewhere in Central, Hong Kong and/or in similar office buildings
in Hong Kong having attributes comparable to those of the Buildings at the
commencement of the New Rent Period Provided that the Valuer shall take into
such open market rent per se and disregard all incentives (including without
limitation rent free period and decoration or removal allowances) that may have
the effect of reducing the effective return on such open market rent. The Valuer
shall act on the assumptions that as at that date:
(a) the Premises are fit for immediate occupation and use complete and
that the works, if any, carried out by the
- 40 -
42
Tenant or its sub-tenants (if any and whether permitted hereunder
or otherwise) or the predecessor in title of the Tenant do not in
any way diminish or increase the rental value of the Premises and
that in case the Premises have been damaged or destroyed, they
have been fully reinstated and restored;
(b) the Premises are available for letting by a willing landlord to a
willing tenant with vacant possession and without a premium and
subject to the provisions of this Lease for a term equal to the
New Rent Period;
(c) the covenants herein contained on the part of the Tenant have been
duly performed, observed and complied with by the Tenant; and
(d) the Premises are being offered in the open market as a single
letting comprising not only the Premises but also the whole of the
33rd Floor, 36th Floor and Suites 3407, 3408, 3409, 3410 and 3411.
on the 34th Floor of Asia Pacific Finance Tower, but disregarding
the following factors:
(i) any effect on the rent of the fact that the Tenant has been
in occupation of the Premises;
(ii) any goodwill attached to the Premises by reason of the
carrying on thereat of the business of the Tenant; or
(iii) any increase in the rental value of the Premises
attributable to any improvements to the Premises or any
part thereof made during the Term including any fitting out
works carried out by and at the expense of the Tenant.
If the Valuer 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 Institute of
Chartered Surveyors (Hong Kong Branch) or the person acting on his behalf shall
in its absolute discretion think fit, he may by writing discharge the Valuer and
appoint another in his place.
2.5 Pending determination of the New Rent, the Tenant shall continue to pay on
account of the New Rent the Rent that was payable immediately before the
commencement of the New Rent Period and within fourteen (14) days after the
determination of the New Rent, the Tenant shall pay to the Landlord the
difference between the rent actually paid during the period pending
determination of the New Rent and the New Rent for the same period determined as
aforesaid plus such amount of interest as may be directed by the Valuer as being
reasonable.
2.6 The costs and expenses of the Valuer including the costs of his appointment
shall be borne by the Landlord and the Tenant in equal shares. The Landlord and
the Tenant shall each bear its own costs and expenses incurred in respect of or
in connection with the determination of the New Rent.
- 41 -
43
3. OTHER CONDITIONS
The Tenant hereby acknowledges and agrees that the lease hereby granted
is subject to the condition that on or before 18 March 1994, the Tenant shall
deliver to the Landlord the following documents and the Tenant hereby undertakes
to deliver to the Landlord the following documents within the time limit
aforesaid:
(a) a certified copy of the Board resolutions of the Tenant relating to the
execution of this Lease;
(b) a Guarantee of even date herewith ("the Guarantee") executed by The
Goldman Sachs Group, L.P. ("the Guarantor") in favour of the Landlord in
the same form as that already given by the Guarantor in favour of the
Landlord in relation to the 36th and Part of the 34th Floors of Asia
Pacific Finance Tower, let by the Landlord to the Tenant; and
(c) a legal opinion (in form and substance reasonably acceptable to the
Landlord) issued by an in-house Counsel of the Guarantor regarding the
legality, validity and enforceability of the Guarantee.
If the Tenant fails to comply with the aforesaid condition, the Landlord may, by
notice in writing to the Tenant, terminate this Lease.
4. CROSS DEFAULT
(a) By a Lease ("THE FIRST LEASE") dated 24 June 1992, registered in the Land
Registry by Memorial No.5337973 and made between (1) the Landlord; (2)
the Confirmors; and (3) Goldman Sachs (Asia) Limited ("THE OUTGOING
TENANT"), the Landlord let to the Outgoing Tenant all those premises more
particulary described in the Second Schedule thereto ("THE FIRST
PREMISES") subject to the terms and conditions thereof.
(b) By an Assignment ("THE ASSIGNMENT") dated 22 June 1993 and made between
(1) the Outgoing Tenant; (2) the Tenant; (3) the Landlord; and (4) the
Confirmors, the Outgoing Tenant assigned to the Tenant all the estate
right benefit and interest of the Outgoing Tenant in the First Premises
comprised in the First Lease and all the rights of the Outgoing Tenant
under the First Lease To Hold the same unto the Tenant for the residue of
the term created by the First Lease subject to payment of the rent
reserved by and to the observance and performance of the covenants
agreements and conditions contained in the First Lease and on the part of
the Outgoing Tenant to be observed and performed.
(c) By a Lease ("THE SECOND LEASE") dated 22 June 1993 and made between (1)
the Landlord; (2) the Confirmors; and (3) the Tenant, the Landlord let to
the Tenant all those premises more
- 42 -
44
particularly described in the Second Schedule thereto ("THE SECOND
PREMISES") subject to the terms and conditions thereof.
(d) By a Lease ("THE THIRD LEASE") dated 17 November 1993 and made between
(1) the Landlord; (2) the Confirmors; and (3) the Tenant, the Landlord
let to the Tenant all those premises more particularly described in the
Second Schedule thereto ("THE THIRD PREMISES") subject to the terms and
conditions thereof.
(e) The Tenant hereby expressly agrees that notwithstanding the provisions of
this Lease, the First Lease, the Second Lease and the Third Lease,
(i) the deposits made by the Tenant pursuant to Clause 11 of the First
Lease, the Second Lease and the Third Lease ("THE FIRST, SECOND
AND THIRD DEPOSITS") shall constitute security for the due payment
of the Rent payable under this Lease and the due performance and
observance by the Tenant of the terms and conditions of this Lease
as if the First, Second and Third Deposits form part of the
deposit paid by the Tenant pursuant to Clause 11 of this Lease;
and
(ii) the deposit made by the Tenant pursuant to Clause 11 of this Lease
("THE FOURTH DEPOSIT") shall constitute security for the due
payment of the Rent payable under the First Lease, the Second
Lease and the Third Lease and the due performance and observance
by the Tenant of the terms and conditions of the First Lease, the
Second Lease and the Third Lease as if the Fourth Deposit forms
part of the deposits paid by the Tenant pursuant to Clause 11 of
the First Lease, the Second Lease and the Third Lease.
(f) The Tenant further expressly agrees that any default under Clause 10.1 of
the First Lease, the Second Lease and the Third Lease will constitute a
default under Clause 10.1 of this Lease and vice versa thereby entitling
the Landlord to exercise all or any of its rights and remedies in respect
of the First Premises, the Second Premises, the Third Premises and the
Premises or any part thereof as if the First Premises, the Second
Premises, the Third Premises and the Premises had been let to the Tenant
under one single lease incorporating all the terms and conditions of this
Lease, the First Lease, the Second Lease and the Third Lease.
- 43 -
45
IN WITNESS whereof the parties hereto have executed this Lease the day
and year first before written.
SEALED with the Common Seal of ) [SEAL]
)
SHINE HILL DEVELOPMENT LIMITED and )
Lo Ka Shui ) /s/ [signature]
SIGNED by Lo Ka Shui )
Directors ) /s/ [signature]
whose signature(s) is/are verified by:-)
/s/ K. C. Yeung
K. C. Yeung
Solicitor, Hong Kong
SEALED with the Common Seal of ) [SEAL]
)
SHINE BELT LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
Tong Chun Wan whose )
Directors ) /s/ [signature]
signature(s) is/are verified by:- )
/s/ K. C. Yeung
Solicitor, Hong Kong
- 44 -
46
SEALED with the Common Seal of ) [SEAL]
)
FAIR PAGE LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
Tong Chun Wan whose ) /s/ [signature]
Directors )
signature(s) is/are verified by:- )
/s/ K. C. Yeung
Solicitor, Hong Kong
SEALED with the Common Seal of ) [SEAL]
)
PANHY LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
Tong Chun Wan whose ) /s/ [signature]
Directors )
signature(s) is/are verified by:- )
/s/ K. C. Yeung
Solicitor, Hong Kong
SEALED with the Common Seal of ) [SEAL]
)
MAPLE COURT LIMITED and SIGNED by ) /s/ [signature]
Lo Ka Shui )
Tong Chun Wan whose ) /s/ [signature]
Directors )
signature(s) is/are verified by:- )
/s/ K. C. Yeung
Solicitor, Hong Kong
- 45 -
47
SEALED with the Common Seal of )
)
GOLDMAN SACHS (ASIA) FINANCE AND ) /s/ MOSES TSANG
)
SIGNED by MOSES TSANG DIRECTOR )
)
)
)
)
whose signature(s) is/are verified by:-)
PETER MALLINSON /s/ PETER MALLINSON
whose signature are verified by
/s/ Charles Picken
C.M. PICKEN
Solicitor, Hong Kong
- 46 -
48
[GRAPHIC OMITTED]
FLOOR PLAN 37TH FLOOR CITIBANK TOWER