1
EXHIBIT 10.12
DATED 17th November 1993
- --------------------------------------------------------------------------
SHINE HILL DEVELOPMENT LIMITED
(Landlord)
and
THE GOLDMAN SACHS GROUP, L.P.
(Guarantors)
--------------------------------------------------------------
G U A R A N T E E
--------------------------------------------------------------
Bateson Harris
in association with
Mallesons Stephen Jaques
Suite 801, Asia Pacific Finance Tower
Citibank Plaza
3 Garden Road, Central
Hong Kong
Ref: SHINZ040-116 (HK1748)
2
THIS GUARANTEE AND INDEMNITY is made the 17th day of November One Thousand Nine
Hundred and Ninety-three
Between:
(1) The GOLDMAN SACHS GROUP, L.P. a limited partnership registered in the State
of Delaware and having its principal place of business at 85 Broad Street,
New York, NY10004, the United States of America ("the Guarantor"); and
(2) SHINE HILL DEVELOPMENT LIMITED a company incorporated in Hong Kong and
having its registered office is situate at 33rd Floor, Great Eagle Centre,
23 Harbour Road, Hong Kong ("the Landlord")
WHEREAS:-
(1) Goldman Sachs (Asia) Finance ("the Tenant") is a company incorporated in
the Cayman Islands.
(2) The Guarantor is the parent company of the Tenant.
(3) At the request of the Guarantor and on the condition that the Guarantor
execute this Guarantee and Indemnity ("this Guarantee") in favour of the
Landlord, the Landlord has agreed to:
(a) enter into a Lease ("the Lease") with the Tenant whereby the Landlord
would let to the Tenant all those premises more particularly described
in the Schedule here to in the form annexed hereto as Annexure I; and
(d) enter into a side letter ("the Side Letter") with the Tenant setting
out certain provisions relating to the construction of the Lease in
the form annexed hereto as Annexure II.
NOW THIS DEED WITNESSETH as follows:-
1. INTERPRETATION
1.1 In this Guarantee, unless otherwise provided herein or where the context
otherwise requires, terms defined in the Lease shall have the same meaning when
used herein.
1.2 The headings in this Guarantee are inserted for convenience only. Unless the
context otherwise requires, words denoting the singular number only shall
include the plural and vice versa and references to the masculine gender shall
include the feminine gender and neuter gender and vice versa.
- 1 -
3
2. GUARANTEE AND INDEMNITY
2.1 In consideration of the Landlord agreeing to entering into the Lease and the
Side Letter, the Guarantor hereby IRREVOCABLY and UNCONDITIONALLY:
(a) guarantees to the Landlord:
(i) the due, full and punctual payment of rent, management fees, rates,
interest, costs charges, expenses and other sums payable by the Tenant
in respect of the Premises at the time and in the manner provided in
the Lease and the Side Letter ("the Secured Obligation");
(ii) the due, full, punctual and complete performance and observance by the
Tenant of all the covenants, agreements, conditions, obligations and
undertakings contained in t he Lease and the Side Letter to be
performed and observed by the Tenant by virtue of the Lease and the
Side Letter ("the Secured Obligations");
(b) undertakes and agrees with the Landlord that if and whenever the Tenant
shall fail to pay the Secured Indebtedness or any part thereof in
accordance with the provisions of the Lease and the Side Letter; or be in
breach of any of the Secured Obligations, the Guarantor shall, forthwith on
demand by the Landlord, pay to the Landlord all amount of the Secured
Indebtedness as may be due and outstanding as at the date of such demand or
(as the case may be) make good all such default; and
(c) undertakes to indemnify the Landlord and keep the Landlord indemnified
against all losses, damages, demands, suits, actions, proceedings, costs
and expenses that may be suffered or incurred by the Landlord by reason of
the default of the Tenant in performing or observing any of the Secured
Obligations.
2.2 In consideration of the Landlord agreeing to entering into the Lease and the
Side Letter and independently of any other terms, conditions and stipulations
herein contained, the Guarantor hereby agrees that in the event that, for any
reasons whatsoever, the obligations, undertakings and liabilities of the
Guarantor under any of the provisions of this Guarantee are or become or prove
to be unenforceable or shall be declared or adjudged to be illegal, invalid or
unenforceable or shall be declared or adjudged to be illegal, invalid or
unenforceable under any applicable law, the Guarantor shall nevertheless
indemnify the Landlord and keep the Landlord indemnified against all losses,
damages, costs and expenses suffered or incurred by the Landlord as a result of
such illegality, invalidity or unenforceability and shall forthwith on demand by
the Landlord pay to the Landlord all sums necessary to make good and to
compensate the Landlord for such losses, damages, costs and expenses.
2.3 In consideration of the Landlord agreeing to entering into the Lease and the
Side Letter and independently of any other terms, conditions and stipulations
herein contained, the Guarantor hereby agrees
- 2 -
4
that if any sum payable by the Guarantor under this Deed or any part thereof is
not paid on demand or (as the case may be) when due, the Guarantor shall pay to
the Landlord interest on the outstanding amount of such sum at the best or prime
lending rate from time to time quoted by The Hongkong and Shanghai Banking
Corporation Limited for advances in Hong Kong Dollars from the date on which the
same is payable to the date of actual payment to the Landlord. Interest payable
under this Clause 2.3 shall be compounded on a monthly basis Provided always
that no interest shall be payable hereunder on any sum which shall at the same
time be accumulating interest under the terms of the Lease and the Side Letter.
3. REPRESENTATIONS & WARRANTIES
The Guarantor hereby represents and warrants to the Landlord as follows:
(a) the Guarantor takes full cognizance of the terms of the Lease and has
approved of the form and substance of the Lease and the Side Letter; and
(b) the Guarantor has full power and capacity and is duly qualified to enter
into and perform its obligations and undertakings under this Guarantee and
has obtained all consents, permissions and approvals required for the
Guarantor to enter into and perform its obligations and undertakings under
this Guarantee and shall such consent, permission and approvals are valid
and subsisting.
4. GENERAL PROVISIONS RELATING TO THE GUARANTOR'S COVENANTS
4.1 This Guarantee shall be a continuing guarantee and shall remain irrevocably
in full force and effect until:-
(a) fourteen (14) days after the expiration of the Term (as defined in the
Lease) and the performance and observance by the Tenant of the Secured
Obligations; or
(b) fourteen (14) days after the settlement of all claims made by the Landlord
against the Tenant in respect of non-payment of any part of the Secured
Indebtedness and/or non-observance or non-performance by the Tenant of any
of Secured Obligations whichever is the later.
4.2 The Guarantor hereby waives any right which the Guarantor may have of
requiring any proceeding first against the Tenant or any other person before
proceedings hereunder.
4.3 The obligations of the Guarantor under this Guarantee shall not be affected
by any act, omission, fact, circumstance, matter or thing which, but for this
provision, might operate to release or otherwise exonerate
- 3 -
5
the Guarantor from its obligations hereunder including, without limitation:
(a) any time or indulgence granted to the Tenant; or
(b) any legal limitation, disability or incapacity of the Tenant or want of
authority of any person purporting to act on behalf of the Tenant; or
(c) any amendment to or variation of the terms of the Lease and the Side
Letter;
(d) the take-over, reconstruction, amalgamation, merger, liquidation,
bankruptcy or insolvency of the Tenant or change in the person or persons
in whom the majority of the voting shares of the Tenant are vested or who
otherwise has/have effective control thereof.
4.4 All payments to be made by the Guarantor hereunder shall be paid free and
clear of any deduction or withholding on account of any tax. If the Guarantor is
required by any law or regulation to make and deduction or withholding from any
sum payable by the Guarantor hereunder on account of any tax, the then sum
payable by the Guarantor in respect of which such deduction, withholding or
payment is required to be made shall be increased to the extent necessary to
ensure that after the making of such deduction, withholding or payment, the
Landlord receives and is beneficially entitled to, free from any such charge, a
net sum equal to the sum which the Landlord would have received and been
entitled to had no such deduction, withholding or payment been made.
4.5 A certificate of the Landlord as to the amount of the rent, management fees,
rates and interest payable by the Tenant in respect of the Premises and
outstanding and due at any time shall, in the absence of manifest error, be
conclusive and binding on the Guarantor and a certificate of the Landlord as to
the amount of other items of the Secured Indebtedness shall be presumptive.
4.6 Time shall be of the essence of this Guarantee. No failure or delay on the
part of the Landlord to exercise any power, right or remedy under this Guarantee
shall operate as a waiver thereof nor shall any waiver by the Landlord of any
particular default by the Guarantor affect or prejudice the power, right or
remedy of the Landlord in respect of any other default or any subsequent default
of the same or a different kind.
4.7 If at any time any provision of this Guarantee is or becomes illegal,
invalid or unenforceable in any respect under the laws of any jurisdiction,
neither the legality, validity or enforceability of the remaining provisions of
this Guarantee no the legality, validity or enforceability of such provision
under the laws of any other jurisdiction shall in any way be affected or
impaired thereby.
4.8 This Guarantee shall ensure to the benefit of the Landlord and its
successors and assigns. The Guarantor may not assign or otherwise dispose of any
of its undertakings, obligations or liabilities hereunder except that the
Guarantor may assign all (but not part) of its
- 4 -
6
undertakings, obligations and liabilities hereunder to a partnership,
corporation, trust or other organization ("the Assignee") which shall have
succeeded to a substantial part of the Guarantor's business and to which a
substantial part of the Guarantor's assets shall have been transferred Provided
that:
(a) the Assignee has full power and capacity to assume the said undertakings,
obligations and liabilities; and
(b) upon the request of the Landlord, the Guarantor shall provide the Landlord
with a legal opinion as to the legality, validity and enforceability of the
assumption by the Assignee of the said undertakings, obligations and
liabilities and procure the Assignee of the said undertakings, obligations
and liabilities and procure the Assignee to give a direct covenant to the
Landlord that the Assignee has assumed the said undertakings, obligations
and liabilities.
Subject to valid assumption by the Assignee of the said undertakings,
obligations and liabilities, the Guarantor shall be discharged from and relieved
of its obligations hereunder.
4.9 The Landlord shall only be entitled to have recourse against the Guarantor
in respect of its undertakings, obligations and liabilities hereunder to the
extent of the assets of the Guarantor.
4.10 All demands and notices to be given to the Guarantor shall be in writing,
sent to the address of the Guarantor set out in this Guarantee (or such other
address as may from time or time be notified in writing by the Guarantee to the
Landlord), may be sent by courier or by personal delivery and shall be deemed to
have been duly given and received by the Guarantor (a) three (3) days after
delivery by the sender to the courier; or (b) when delivered if delivered by
personal delivery.
5. COSTS AND EXPENSES
All costs and expenses reasonably incurred by the Landlord in connection
with the preparation, execution and enforcement of this Guarantee shall be borne
by the Guarantor and shall be reimbursed by the Guarantor to the Landlord
forthwith on demand by the Landlord.
6. LAW AND JURISDICTION
6.1 This Guarantee shall be governed by and construed in accordance with the
laws of Hong Kong.
6.2 The Guarantor hereby irrevocably submits to the non-exclusive jurisdiction
of the courts of Hong Kong and the States of New York and Delaware. The
Guarantor 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 Guarantee.
- 5 -
7
The Schedule
The Premises
------------
All That the whole of 33rd Floor of Asia Pacific Finance Tower as shown
coloured Pink on the Plan attached to the Lease.
- 6 -
8
IN WITNESS whereof the Guarantor executed this Guarantee the day and year
first above written.
SIGNED SEALED and DELIVERED by )
)
/s/ [signature] )
------------------------------ )
)
for and on behalf of )
)
THE GOLDMAN SACHS GROUP, L.P. )
)
in the presence of:- )
/s/ [signature]
------------------------------
/s/ PATRICIA A. McGRAW
------------------------------
Notary Public
PATRICIA A. McGRAW
Notary Public, State of New York
No. 31-4842966
Qualified in New York County
Commission Expires September 30, 1996
- 7 -