EXHIBIT 10.18
Dated 2000
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Weelek Company Limited
AND
iAsiaWorks (HK) Limited
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LEASE
of
The Entire 7th, 8th, 9th, 10th, 11th and 12th Floor, and part of
the 6th Floor
of
Mega iAdvantage erected on
The Remaining Portion of Chai Wan Inland Lot No. 30
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WOO, XXXX, XXX & LO
Solicitors &c.,
00xx Xxxxx, Xxxxxxx Xxxxx,
Xxxx Xxxx.
TW Doc.#00044676final version
I N D E X
PARTIES
CLAUSE 1
AGREEMENT
Premises
Term
CLAUSE 2
Rent
CLAUSE 3
(a) Deposit
(b) Transfer of Deposit
(c) Deposit not to be treated as rent
CLAUSE 4 - TENANT'S OBLIGATIONS
(a) Rent
(b) Additional Rent
(c) Directory Boards & Consent fee
(d) (i) - (vi) Due Care to Interior
(e) (i) Indemnity against loss/damages from interior defects
(ii) Tenant's Insurance
(f) Storm and Typhoon
(g) Use service lift
(h) Rules and Regulations
(i) Entry by Landlord
(j) Pipes and Conduits
(k) Adjacent excavation
(l) Explosive or unlawful goods
(m) Floor loading
(n) Keep windows and doors closed
(o) (i) Noise and disturbance
(ii) Prohibition of Sale by auction
(p) Prohibition of illegal immoral use or gambling
(q) User
(r) Prohibition of alterations
(s) Movement of safe, etc.
(t) Observance of Laws and Conditions of Sale or Government Lease
(u) Prohibition of Subletting or Transfer
(v) Prohibition of Domestic Use
(w) Obstruction of common passages
(x) Exhibition of signboard
(y) Breach of Insurance Policy
(z) Security guards
(aa) To permit viewing the premises
(bb) Delivery of vacant possession upon expiration
CLAUSE 5 - LANDLORD'S OBLIGATIONS
(a) Quiet possession
(b) Structural repair
(c) Government Rent and Property Tax
CLAUSE 6 - PROVISOS
(a) Default
(b) Damages by fire and other cause
(c) Landlord not bound by representation
(d) No waiver
(e) Landlord's inability to perform no excuse for non-payment of rent
(f) Acts by Tenant's servants etc.
(g) Meaning of Tenant
(h) Acceptance of rent
(i) Tenant to indemnify Landlord against claim by Third Party
(j) Breach of Building Rules and Regulations by other tenants
(k) No warranty for security of the Building
(l) No warranty for user
(m) Access in repairing works and change of Building Name
(n) Distraint
(o) No fine
(p) Service of Notice
(q) Legal Costs & Stamp Duty
CLAUSE 7
Not to use Building name/logo
CLAUSE 8
Special Conditions
CLAUSE 9
Jurisdiction and Arbitration
CLAUSE 10
Meaning of Hong Kong; Currency Denomination
CLAUSE 11
English Language
CLAUSE 12
Confidentiality
FIRST SCHEDULE
Part IA - Landlord
Part IB - Tenant
Part II - Premises
Part III - Term
SECOND SCHEDULE
Part I - Particulars of rent
Part II - Deposit
THIRD SCHEDULE
Part I - Fit out Works
Part II - Building Rules & Regulations
Part III - Landlord's Rights & Reservations
FOURTH SCHEDULE
Special Conditions
THIS LEASE is made the day of
Year Two Thousand
BETWEEN the person, persons or company more particularly described in Part IA of
the First Schedule hereto (hereinafter called "the Landlord") of the one part
and the person, persons or company more particularly described in Part IB of the
First Schedule hereto (hereinafter called "the Tenant") of the other part.
WHEREBY IT IS HEREBY AGREED as follows:
1. The Landlord hereby demises and the Tenant hereby takes the premises more
particularly described in Part II of the First Schedule hereto shown and
coloured pink on the plan hereto annexed for the purpose of identification only
and is hereinafter referred to as "the said premises" and the use of the Licence
Space as more particularly described in Part II of the First Schedule hereto,
together with the use in common with the Landlord and his tenants, workpeople
and persons authorised by them of the entrances, passages and staircases leading
to the said premises (so far as the same are necessary for the use and enjoyment
of the said premises) And of the lavatories on the same floor, and to enjoy the
central air-conditioning services and the lifts and escalator service (whenever
the same shall be operating) and all common areas common service and facilities,
excepting and reserving unto the Landlord the rights as set out in Part III of
the Third Schedule hereto for the term more particularly specified in Part III
of the First Schedule hereto both days inclusive (hereinafter referred to as
"the said term"), subject to termination as hereinafter mentioned.
2. The monthly rental for the said premises and licence fee for the Licence
Space for the said term shall be such sum or sums as specified in Part I of the
Second Schedule hereto, which said sum or sums shall be payable inclusive of
rates and service charges but exclusive of Management Fees payable in Hong Kong
Currency in advance on the first day of each and every calendar month without
deduction whatsoever (whether legal or equitable). The first of such payments
shall be apportioned according to the number of days then unexpired in the month
in respect of which such payment is made and the last of such payments shall be
apportioned according to the number of days of the said term remaining in the
month in respect of which such payment is due.
3. (a) The Tenant shall on the signing of this Lease or prior to the
commencement of the said term, whichever shall be the earlier, pay to the
Landlord by way of total deposit in the form of a bank guarantee for the
sum and in the manner as set out in Part II of the Second Schedule hereto
for the due performance and observance of the agreements on the part of
the Tenant herein contained ("the Deposit"). At the expiration or sooner
termination of this Lease subject to prior forfeiture in accordance with
clause 6(a)(i) hereof, if there shall then be no breach of any of the
agreements on the Tenant's part to be observed and performed, the
Landlord will return to the Tenant the Bank Guarantee without interest
within 30 days after delivery of vacant possession of the said premises
to the Landlord by the Tenant and after full settlement of all
outstanding payments due and payable by the Tenant hereunder whichever is
later but without any interest thereon.
(b) The parties hereto agree that in the event of the Landlord assigning or
transferring the ownership of the said premises or the said Building of
which the said premises forms part to any person ("the New Owner") prior
to the termination of the term of this tenancy subject to and with the
benefit of this Lease, Provided That the Landlord obtains from the New
Owner a covenant in favour of the Tenant in favour of the Tenant
covenanting to return the bank guarantee to the Tenant for cancellation
in accordance with this Lease, the Tenant shall procure a replacement
bank guarantee in the amount of the Deposit to be
[*] - CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
issued in favour of the New Owner, whereupon the Landlord shall return to
the Tenant the bank guarantee held by the Landlord for cancellation.
(c) In no event shall the Tenant be entitled to treat payment of the Deposit
as payment of the rent and licence fee hereby reserved.
(d) If at any time the rent and licence fee payable by the Tenant hereunder
shall increase the Tenant shall within 30 days from the agreement or
determination of such increase produce a replacement bank guarantee or
further bank guarantee to make up the total amount of the Deposit held by
the Landlord to be equivalent to three months' increased rent and licence
fee and failure to produce such replacement or further bank guarantee by
the Tenant shall justify forfeiture of this tenancy pursuant to the
provision of clause 6(a)(i) hereof.
4. THE TENANT AGREES AND COVENANTS WITH THE LANDLORD to observe, perform and
comply with the following terms and conditions throughout the said term:
(a) To pay the rent licence fee and Management Fee herein reserved in manner
aforesaid and to pay other charges of a non-capital or recurring nature
due hereunder in manner hereinafter mentioned.
(b) The Tenant acknowledges that the rent reserved herein is based on the
supply of electricity capacity of 90 Xxxxx per square foot of gross floor
area and the supply voltage of 380(+/- 10%), 50Hz., 3 phase for the
Tenant's connection at the main switch room on the respective floors of
the said premises. The gross floor area shall be as determined in
accordance with the final building plans of the Building by the
Landlord's Authorised Person (as defined in the Building Ordinance) whose
determination, as approved by the Buildings Department, shall be final in
the absence of manifest error or fraud. In the event that the Tenant
shall request increase of the electricity charge capacity to the said
premises, subject always to technical feasibility, the Tenant shall pay
to the Landlord additional rent in an amount incurred by the Landlord to
supply additional electricity in line with the market rates.
(c) (i) To pay to the Landlord or the Management Company immediately upon
demand the reasonable cost of affixing, repairing, altering or
replacing as necessary the Tenant's name to the directory boards at
the said Building.
(ii) To pay to the Landlord or the Management Company on demand all
actual costs charges and expenses and reasonable professional fees
which may be incurred by the Landlord for any licence or consent
from the Landlord or the Management Company requested by the Tenant
pursuant to this Lease upon presentation of reasonable evidence of
such costs charges expenses and fees.
(d) To take due care in using the interior of the said premises, including
the flooring and interior plaster or other finishing materials, walls,
floors, ceilings and the Landlord's fixtures and fittings therein,
including but not limited to all doors, windows, electrical, mechanical
or electronic installations and the Landlord's provisions as set out in
an agreement between inter alia the Landlord and Tenant dated [ ]
pursuant of which results in this Lease ("the Agreement"), and deliver up
the same to the Landlord at the expiration or sooner termination of the
term in its then as-is condition, save and except structural damages
caused by the Tenant, in which event the Tenant shall be responsible to
repair such damages at its own costs. The Tenant particularly agrees:
(i) to reimburse the Landlord the reasonable cost of replacing all
broken and damaged
windows or window glass broken or damaged by the negligence of the
Tenant or any of the Tenant's servants, agents, licensees or
customers;
(ii) to reimburse the Landlord the reasonable cost of repairing or
replacing any ceiling, lighting and the air-conditioning system and
any other service system provided by the Landlord which is damaged
or rendered defective by the misuse or negligence of the Tenant or
any of the Tenant's servants, agents, licensees or customers;
(iii) to such extent as any installation of equipment furnishing or
fitting-out works at the said premises is carried out by the
Tenant, the Tenant shall prior to the commencement of such
installation or fitting-out works, at its own cost, prepare and
submit to the Landlord reasonably detailed drawings and
specifications of the works to be carried out by the Tenant
(hereinafter collectively called "the Tenant's Plans").
(iv) in the event that the Tenant wishes to carry out any installation
or fitting out works within the said premises no installation or
fitting-out works shall be commenced in the said premises without
the prior written approval of the Tenant's Plans by the Landlord.
Landlord's approval shall be deemed given if the Tenant's
application is not rejected or reasonably required to be modified
in writing within ten (10) days after Tenant's request therefor.
Notwithstanding the foregoing, if the Tenant wishes to make non-
structural alterations costing less than four hundred thousand
dollars ($400,000) the Landlord's consent will be deemed given if
the Tenant's application is not rejected or reasonably required to
be modified in writing within 3 business days after receipt of the
Tenant's submission Provided that the Tenant shall submit such
application by personal delivery or post to the Landlord's
specified representative with receipt acknowledged at the
Landlord's registered office.
(v) the approval by the Landlord of the Tenant's Plans shall not
constitute any representation on the part of the Landlord that the
said plans comply with the relevant laws and regulations from time
to time in force under the laws of Hong Kong Special Administrative
Region and imposed by the Government of Hong Kong Special
Administrative Region and shall not release the Tenant from its
obligation to ensure the aforesaid compliance.
(vi) be responsible to apply for and obtain all relevant government
approvals and consents prior to the commencement of installation or
fitting-out works by Tenant at the said premises.
(vii) in the event that the Tenant wishes to carry out any fitting out or
alteration works relating to any of the systems set out in Part I
of the Third Schedule hereto (subject always to the Landlord's
prior consent), the Tenant shall employ the Landlord's nominated
contractors to carry out such works at the Tenant's costs.
(e) (i) to be responsible for any damage or injury caused to any other
person or property within the said premises due to the act default
or negligence of the Tenant, its servants, agents, licensees or
customers and to indemnify the Landlord against all claims,
demands, actions and legal proceedings whatsoever made upon the
Landlord by any person to the extent arising in respect thereof.
(ii) For the better observance of this clause, the Tenant undertakes to
effect adequate insurance coverage in respect of the liabilities
provided herein, including but not limited to third party
liabilities and professional liabilities. The policy of such
insurance shall be endorsed to show the Landlord as the registered
owner of the said premises and loss payee of the proceeds and shall
contain a clause to the effect that the insurance coverage thereby
effected and terms and condition thereof shall not be cancelled,
modified or restricted without prior written notice to the
Landlord.
(f) (i) to take all reasonable precautions to protect the interior of the
said premises from
damage threatened by any approaching storm or typhoon;
(ii) in the event of the building being threatened by an approaching
storm or typhoon, to properly erect the shutter (if any) provided
by the Landlord for the protection of window panes for which the
Landlord has made provision in the design of the external windows
and to keep and preserve such shutters (fair wear and tear inherent
and subsisting defect excepted) at the Tenant's expense and not to
remove the same from the said premises except for the purpose of
necessary repair.
(g) Not to cause the said premises to become infested with insects or vermin.
If the Tenant is in breach of this clause, the Tenant shall pay the cost
of extermination as arranged or approved by the Landlord and the selected
exterminators shall be given full access to the said premises for such
purpose.
(h) To load and unload heavy furniture and chattels only at such times during
business hours at such spaces and through such entrances and by such
service lifts as shall be reasonably designated by the Management Company
for this purpose from time to time.
(i) To observe faithfully and comply strictly with the non-discriminatory
Building Rules and Regulations as the Management Company may from time to
time adopt. Notice of any additional Building Rules and Regulations shall
be given in writing to Tenant. The Building Rules and Regulations set out
in Part II of the Third Schedule hereto and such additional Rules and
Regulations provided that they are not in conflict with the Tenant's
obligations in this Lease shall be binding upon the Tenant and shall have
the same force and effect as if set out in the body of this Lease.
(j) (i) To permit the Landlord or the Management Company with or without
workmen or others and with or without appliances at all reasonable
times, upon prior appointment, to enter upon the said premises (and
in the event of any emergency and the Tenant shall not be personally
present to open and permit entry at the time the Landlord or his
agents may enter without notice and forcibly if need be) to view the
condition thereof and to take inventories of the Landlord's fixtures
and fittings therein; to test the electric wiring; to read the meter
and to do any other act or thing which may reasonably be required to
be done by the Landlord or the Management company in respect of the
said premises, and to make good all defects and want of repair there
found to be the liability of the Tenant hereunder to the reasonable
satisfaction of the Landlord within the space of 30 days or such
shorter or longer period as the case may demand from the time of
receipt of written notice from the Landlord to amend or make good the
same;
(ii) if any defects or want of repair the responsibility of which is the
Tenant's hereunder shall be found and if the Landlord or the
Management Company shall have given notice in writing to the Tenant
requiring it to amend the same and if the Tenant shall not within 14
days after the service of such notice proceed diligently with the
execution of such repairs, then to permit the Landlord or the
Management Company to enter upon the said premises upon prior
appointment and execute such repairs, and the actual costs thereof
together with interest thereon at the rate of 2% above the prime
lending rate per annum quoted from time to time by the Hongkong and
Shanghai Banking Corporation Limited calculated from the time it is
incurred if not paid within 7 days from written demand by the
Landlord shall be a debt due from the Tenant to the Landlord and be
forthwith recoverable by action upon presentation of reasonable
evidence of such costs.
(k) To permit the Landlord to erect, use and maintain pipes, conduits, and
passage for telecommunication infrastructure in and through the said
premises, provided the same does not interfere with Tenant's use of or
access to the said premises. The Landlord or the Management Company shall
have the right to enter the said premises at all reasonable times upon
prior appointment to examine the same and the permission to the Landlord
to use such pipes, conduits, and passage for telecommunication
infrastructure shall extend to the use of such pipes, conduits and passage
for telecommunication infrastructure by the Landlord's other authorized
tenants and licensees, as the case may be; provided that Landlord shall
perform and execute the aforesaid work diligently and with due care and
without interfering with the carrying on of the Tenant's business and the
Landlord shall make good all damage caused. Save and except those arising
from the breach of this clause by the Landlord, negligence, willful
misconduct or default of the Landlord, the Management Company, or their
respective servants, employees, contractors or agents, the Landlord shall
not be liable to the Tenant for any damage, loss costs or expenses,
including loss and damages for inconvenience, disturbance, loss of profit
or goodwill, interruption of service resulting from the execution of any
of the aforesaid work, nor shall the Tenant be entitled to claim any
abatement of rent and licence fee on account of any noise, vibration or
other disturbance to the Tenant's business at the said premises).
(l) If any excavation or other building works shall be made or authorised in
the vicinity of the said Building, the Tenant shall permit the Landlord or
the Management Company to enter the said premises at all reasonable time
upon prior appointment to do such work as may be deemed necessary to
preserve the exterior walls of the said Building from injury or damage
without any claim for damages or indemnity against the Landlord, provided
that Landlord shall perform and execute the aforesaid work diligently and
with due care and without interfering with the carrying on of the Tenant's
business. Save and except those arising from the breach of this clause by
the Landlord, negligence, willful misconduct or default of the Landlord,
the Management Company, or their respective servants, employees,
contractors, or agents, the Landlord shall not be liable to the Tenant for
any damage, loss, costs or expenses, including loss and damages for
inconvenience, disturbance, loss of profit or goodwill, interruption of
service resulting from the execution of any of the aforesaid work, nor
shall the Tenant be entitled to claim any abatement of rent and licence
fee on account of any noise, vibration or other disturbance to the
Tenant's business at the said premises.
(m) Not to keep or store or allow to be kept or stored upon the said premises
or any part thereof during the term any arms, ammunition, saltpetre, gun-
powder, kerosene or any other explosive combustible or unlawful or
dangerous goods or substance on or in any part of the said premises.
(n) Not to place any load upon any floor of the said premises in excess of the
loading capacity for which the floor is designed. The Landlord reserves
the right to reasonably prescribe the weight and position of all machinery
and equipment which must be placed so as to distribute the weight.
Machines and mechanical equipment authorised by the Landlord shall be
placed and maintained by the Tenant at the Tenant's expense in settings
sufficient in the Landlord's reasonable judgment to absorb and prevent
vibration, noise and nuisance to occupiers of other portions of the said
Building.
(o) To keep all the windows and doors closed while air-conditioned ventilation
is in operation. The Landlord shall have the right to send a
representative to close the same for the Tenant should it be found that
the Tenant does not comply with the notice to that effect.
(p) (i) Not to do or produce or suffer or permit to be done or produced any
music, noise (including sound produced by broadcasting from
television, radio or any apparatus or instrument capable of producing
or reproducing music and sound) or other acts or things in or on the
said premises which is a nuisance to or give reasonable cause for
complaints from the Landlord or the tenants or occupiers of the said
Building or adjacent or neighbouring premises;
(ii) Not to permit or suffer any sale by auction to be held upon the said
premises.
(q) Not to use the said premises or any part thereof for any illegal or
immoral purpose or for gambling of any nature.
(r) Not to use the said premises for any purpose other than as a data centre
and ancillary office thereto carrying on the business relating to
telecommunication and internet service.
(s) (i) Not to make or permit to be made any alterations in or additions to
the said premises or to the electrical installation,
telecommunication infrastructure or other Landlord's fixtures and
fittings therein or to install any plant apparatus or machinery
therein or cut, maim or injure, or suffer to be cut, maimed or
injured any doors, windows, walls, structural members or other fabric
thereof without having first obtained the written licence and consent
of the Landlord therefor. Landlord's consent will be deemed given if
the Tenant's application is not rejected or reasonably required to be
modified in writing within ten (10) days after Tenant's request
therefore. Landlord or the Management Company will not entertain any
application for such consent before the issuance of a full Occupation
Permit of the said Building. In particular, any structural
alterations or additions so approved shall be carried out only by
such person or contractor as shall be reasonably approved by the
Landlord or the Management Company. Notwithstanding the foregoing, if
the Tenant shall wish to make non-structural alterations costing less
than four hundred thousand Hong Kong dollars (HK$400,000) the
Landlord's consent shall be deemed given if the Tenant's application
is not rejected or reasonably required to be modified in writing
within 3 business days after receipt of the same provided that the
Tenant shall submit such application by personal delivery or post
addressed to the Landlord's specified representative with receipt
acknowledged at the Landlord's registered office.
(ii) To fit out the interior of the said premises in accordance with the
plans approved by the Landlord, a copy of which is retained by each
of the parties hereto. The Tenant will not cause or permit to be made
any variation to the interior design or layout of the said premises
without the prior written approval of the Landlord first having been
obtained, such consent not to be unreasonably withheld in the event
of such approval being requested it shall be a condition precedent to
the granting thereof that the Tenant shall pay to the Landlord any
professional fees actually incurred by the Landlord in obtaining the
approval of its architect for the relocation of any interior
partitioning. Landlord's consent will be deemed given if the Tenant's
application is not rejected or reasonably required to be modified in
writing within ten (10) days after Tenant's request therefore.
Notwithstanding the foregoing, if the Tenant shall wish to make non-
structural alterations costing less than four hundred thousand Hong
Kong dollars (HK$400,000) the Landlord's consent shall be deemed
given if the Tenant's application is not rejected or reasonably
required to be modified in writing within 3 business days after
receipt of the same provided that the Tenant
shall submit such application by personal delivery or post addressed
to the Landlord's specified representative with receipt acknowledged
at the Landlord's registered office.
(t) Not to move any safe, heavy machinery, equipment, freight, bulky matter or
fixtures in and out of the said Building without first obtaining the
Landlord's written consent. The Tenant shall indemnify Landlord against
all damages sustained by any person or property and for any damages or
monies paid out by the Landlord in settlement of any claim or judgments as
well as reasonable legal costs incurred in connection therewith and all
actual costs incurred in repairing any damage to the said Building or its
appurtenances resulting from movement of any heavy machinery, equipment,
freight, bulky matter or fixtures upon presentation of reasonable evidence
of such costs.
(u) To be answerable and responsible for the consequence of any breach on the
part of the Tenant of any Ordinances, Orders in Council or Regulations,
and not to do anything in contravention of the provisions of the
Conditions of Sale or Government Lease under which the Landlord holds the
said premises or of the Deed of Mutual Covenant and Management Agreement
of the Building (if any) and to indemnify the Landlord against all claims,
demands, actions, proceedings, loss, damages, actual costs and expenses to
the extent arising in respect of any breach by the Tenant of the terms of
this clause upon presentation of reasonable evidence of such costs and
expense.
(v) Subject to Clause 3 of the Special Conditions of the Fourth Schedule
hereto, not to assign, underlet or otherwise part with the possession of
the said premises or any part thereof either by way of subletting,
lending, sharing or other means whereby any person or persons not a party
to this Lease obtains the use or possession of the said premises or any
part thereof, irrespective of whether any rental or other consideration is
given for such use or possession without Landlord's prior written consent,
not to be unreasonably withheld and in the event of such transfer
subletting sharing assignment or parting with possession of the said
premises (whether for monetary consideration or not),it shall constitute a
breach of this Lease entitling the Landlord to exercise its right or re-
entry in accordance with the provisions of this Lease. The happening of
any of the following shall be considered a breach of this clause:
(i) liquidation (either voluntary or otherwise) of the Tenant without the
prior written consent of the Landlord or change in the person or
persons who own a majority of its voting shares, or a sale of all or
substantially all of the assets of the Tenant save and except that in
the case of liquidation for the purpose of reconstruction or
amalgamation or pursuant to a merger or acquisition of a solvent
corporate Tenant where all the benefits and liabilities of this Lease
are assigned to a company of equal or better credibility and
financial state carrying out the business relating to
telecommunication and/or internet services which assignment is made
in the Landlord's form reasonably acceptable to the Tenant and at the
Tenant's or assignee's sole costs; and
(ii) the giving by the Tenant of a Power of Attorney or similar authority
whereby the donee of the Power obtains the right to use, possess,
occupy or enjoy the said premises or any part thereof or does in fact
use, possess, occupy or enjoy the same;
provided that the location of equipment on the said premises or
subscription of services by the Tenant's customers shall not be considered
as a breach of this clause and shall not constitute a sub-letting under
Clause 3 of the Special Conditions in the Fourth Schedule if such
customer's business is relating to telecommunication and internet services
and no
interest in land is conferred to such customer.
(w) Except for the purpose of operation of the Tenant's business, not
without the Landlord's prior permission in writing to permit any person
to remain in the said premises overnight. Such permission shall only be
given to enable the Tenant to post watchmen to look after the contents
of the said premises, which shall not be used as sleeping quarters or as
domestic premises within the meaning of any Ordinance for the time being
in force.
(x) Not to place or leave in the entrance or any of the staircases, common
passages or landings of the said Building not in the exclusive
occupation of the Tenant any boxes, goods, furniture, chattels, dust-
bins, packing-cases, rubbish or other things or otherwise encumber the
same, and not to obstruct or permit or suffer to be obstructed any
emergency lift access panels in the said premises. The Landlord or the
Management Company shall have the right to remove the same, following
reasonable prior notice to Tenant, at the Tenant's expense and the
Tenant shall indemnify the Landlord against all loss, claims, or damages
resulting from such removal.
(y) Subject to Clause 7 of the Special Conditions of the Fourth Schedule
hereto, not to exhibit or display within or on the exterior of the said
premises any writing, sign or other device, whether illuminated or not,
which may be visible from outside the said premises which would
materially and adversely affect or alter the external appearance of the
Building, except the display of name-plate or signboard of the Tenant at
the entrance to the said premises, the size and position of such name-
plate or signboard shall be subject to the approval of the Landlord. The
Landlord or his authorised agents shall have the right to remove at the
cost and expense of the Tenant any signboard, sign, decoration or device
which shall be affixed or put up or displayed without the prior approval
of the Landlord or his agents.
(z) Not to do or permit to be done any act or thing whereby the policy or
policies of insurance on the said premises against damage by fire or
against claims by Third Parties for the time being subsisting may become
void or voidable or whereby the rate of premium or premiums thereon may
be increased, and to repay to the Landlord on demand all reasonable sums
paid by the Landlord by way of increased premium or premiums thereon and
all actual expenses incurred by the Landlord in and about any renewal of
such policy or policies rendered necessary by a breach of this clause.
(aa) Not to employ any security organisation for the rendering of any
services for or in connection with the said premises except with the
prior written consent of the Landlord, but to permit the Landlord's
servants or security guards to enter the said premises at all reasonable
times for security purposes, and to connect and keep the said premises
connected to any communal alarm or security system.
(bb) During the period of three months immediately before the expiration of
the said term of this Lease, to permit all persons having written
authorisation from the Landlord or the Management Company to enter and
view the said premises and every part thereof at all reasonable times
upon prior appointment without interfering with the carrying on of the
Tenant's business.
(cc) At the expiration or sooner termination of this Lease, to deliver up to
the Landlord vacant possession of the said premises together with all
Landlord's fixtures and fittings and Landlord's provision (if any) in
as-is condition upon Landlord's provision, save and except structural
damage caused by the Tenant, in which event the Tenant shall be
responsible to repair such damage at its own costs.
5. THE LANDLORD AGREES AND COVENANTS WITH THE TENANT as follows:
(a) To permit the Tenant (duly paying the rent and licence fee and observing
and performing the terms and conditions herein contained) to have quiet
possession and enjoyment of the said premises during the said term
without any interruption by the Landlord or anyone lawfully claiming
under or through or in trust for the Landlord.
(b) To keep in good and tenantable repair and condition those part of the
said premises the repair of which is not the responsibility of the
Tenant under this Lease and to procure the Manager of the said Building
to repair such structural defects in the roof, main electricity supply,
cables, main drain, main pipes, main walls and exterior window frames of
the said Building and the lifts, escalators and air-conditioning plants
therein as the Landlord shall discover or as the Tenant or other
authorised person or Authority shall by notice in writing bring to the
attention of the Landlord, and to maintain the same in a proper state of
repair and condition at the cost of the Landlord, provided that the
Landlord shall be entitled to be given a reasonable period of time
wherein to view any such defects and to amend and repair the same;
provided further that the Landlord shall neither be liable to pay
compensation to the Tenant in respect of any period during which due to
circumstances beyond the control of the Landlord the proper operation of
the said lifts and escalators shall be interrupted as the result of
mechanical failure or need for repair or overhaul nor shall the Landlord
be liable thereby to grant an abatement of rent and licence fee in
respect of such interruption (save and except that those arising from
the negligence, intentional misconduct or default of the Landlord,
Management Company, or their respective servants, employees,
contractors, or agents).
(c) To pay the Government rent, rates, Property Tax and other charges of a
capital or non-recurring nature payable in respect of the said premises.
6. PROVIDED ALWAYS AND IT IS MUTUALLY AGREED as follows:
(a) (i) If the rent and licence fee reserved or any part thereof be in
arrears (whether formally demanded or not) or in the case of the
breach, non-performance, non-observance or non-compliance of any of
the material stipulations and material agreements herein contained
on the part of the Tenant to be kept done or performed, and the
Tenant shall fail to pay such arrears within 14 days after receipt
of a written notice from the Landlord, or fail to remedy such
breach or non-performance non-observance or non-compliance within
30 days after receipt of a written notice from the Landlord or if
the Tenant shall go into liquidation without the prior consent of
the Landlord (save and except that, in the case of liquidation for
the purpose of reconstruction amalgamation or pursuant to a merger
or acquisition of a solvent corporate Tenant where all the benefits
and liabilities of this Lease are assigned to a company of equal or
better credibility and financial state carrying out the business
relating to telecommunication and/or internet services which
assignment is made in the Landlord's form reasonably acceptable to
the Tenant and at the Tenant's or assignee's sole costs, the
Landlord's prior consent is not required), or shall have any order
made or resolution passed for its winding up or (being a firm or
partnership) shall cease trading or shall have its Business
Registration cancelled or shall enter into any composition or
arrangement with his creditors or shall suffer execution to be
levied upon any of his goods or effects, it shall be lawful for the
Landlord at any time thereafter to re-enter upon the said premises
or any part thereof in the name of
the whole and to forfeit the Deposit as and for liquidated damages
and not as a penalty, by calling upon the bank to pay over the sum
guaranteed, and thereupon this Lease shall absolutely terminate but
without prejudice to any alternative rights which may have accrued
to the Landlord by reason of any antecedent breach of any of the
obligations on the part of the Tenant hereinbefore contained. A
written notice served by the Landlord on the Tenant to the effect
that the Landlord thereby exercises the power of re-entry shall be
a full and sufficient exercise of such power without actual entry
on the part of the Landlord.
(ii) Notwithstanding the foregoing, the Landlord may in any such event
at its option elect not to terminate this Lease but to deduct from
the Deposit the amount of any actual loss incurred by the Landlord
in consequence of the breach, non-observance or non-performance by
the Tenant (including legal cost and expenses mentioned in clause
6(n) hereof), by calling upon the bank to pay over such amount, in
which event the Tenant shall, as a condition precedent to the
continuation of the tenancy, deposit with the Landlord the amount
so deducted by producing a replacement bank guarantee or additional
bank guarantee within 14 days after receipt of notice from the
Landlord and, if the Tenant shall fail so to do, the Landlord shall
forthwith be entitled to re-enter on the said premises and to
terminate this Lease, in which event the Deposit may be forfeited
to the Landlord as hereinbefore provided.
(iii) Notwithstanding anything hereinbefore contained, in the event rent
and licence fee and/or Management Fees is not paid by on the
seventh day of each month, the Tenant shall further pay to the
Landlord on written demand interest on the amount in arrears at the
rate of 2% above the prime lending rate per annum quoted from time
to time by the Hong Kong and Shanghai Banking Corporation Limited
calculated from the date on which the same becomes due for payment
(i.e. from the 1st day of each month as stipulated in First
Schedule and clause 4(f)(i) hereof) until the date of payment,
provided that the demand and/or receipt by the Landlord of interest
pursuant to this provisions shall be without prejudice to and shall
not affect the right of the Landlord to exercise any other right or
remedy hereof (including the right of re-entry) exercisable under
the terms of this Lease.
(iv) In addition and without prejudice to the Landlord's right under
clause 6(a) (i) and (ii) hereinabove, in the event of the Tenant
failing to pay rent and licence fee or committing any breach of
this Lease, upon exercising its right of re-entry and the Tenant
failing to deliver up vacant possession of the said premises to the
Landlord and the Landlord having obtained the appropriate order of
a court or tribunal or such other competent authority to enter the
said premises and there has been no stay of such order, the
Landlord may, and the Tenant hereby specifically authorises the
Landlord to, cut off the supply of electricity and air-conditioning
to the said premises and to dispose of all objects including goods
merchandise equipment furniture and fixtures in or at the said
premises in such manner as the Landlord shall deem fit, and any
actual costs in connection therewith shall be paid by the Tenant
and shall be recoverable from it as a debt upon presentation of
reasonable evidence of such costs.
(b) (i) If the said premises or any part thereof are rendered uninhabitable
by fire, water, storm, wind, typhoon, white ants, earthquake or any
calamity beyond the control of the Landlord and not attributable to
any failure by the Tenant to observe and carry out the terms and
conditions of this Lease or when any closure order is imposed on
the said premises or any part thereof, the rent and licence fee and
the Management Fee or a part thereof proportionate to the extent to
which the said premises shall have been so rendered uninhabitable
shall xxxxx and cease to be payable until the same shall have been
again rendered fit for occupation or such closure order has been
discharged or removed, provided always that the Landlord shall not be
required to reinstate the said premises if by reason of the condition
of the same or any local Regulations or other circumstances beyond the
control of the Landlord it is not practicable or reasonable to do so,
and provided further that should the said premises or the said
Building not have been reinstated and rendered inhabitable in the
meantime either the Landlord or the Tenant may at any time after six
months from the calamity give to the other of them a notice in writing
to terminate this Lease and thereupon the same and everything herein
contained shall terminate as from the date of the calamity but without
prejudice to the rights and remedies of either party against the other
in respect of any antecedent claim or breach of the agreements,
stipulations, terms and conditions herein contained or of the Landlord
in respect of the rent and licence fee payable hereunder prior to the
coming into effect of the suspension or of the Tenant to the return of
its deposit pursuant to clause 3 hereof. Any dispute concerning this
clause shall be determined by arbitration in accordance with the
provisions of the Agreement (as defined in Clause (c)(I) of Part I of
the Second Schedule).
(ii) If at any time during the continuance of this Lease the competent
authorities shall order the said Building to be pulled down or shall
make a demolition order which shall become operative in respect of the
said premises or any part thereof, the Agreement hereby created shall
cease as from the commencement of the pulling down of the said
premises or from the time when such demolition or closure order shall
become operative, whereupon the Tenant shall deliver vacant possession
of the said premises to the Landlord and the Landlord shall return to
the Tenant the Deposit held by the Landlord hereunder without
interest, and neither party shall have any claim against the other
thereafter but without prejudice to any claim in respect of any
antecedent breach.
(c) The Landlord shall not be bound by any representations or promises with
respect to the said Building and its appurtenances or in respect of the
said premises except as herein expressly set forth or contained in the
Agreement with the object and intention that the whole of the covenants
between the Landlord and the Tenant shall be set forth herein and in no way
modified by any discussions or correspondence which may have preceded the
signing of this Lease.
(d) No condoning, excusing or overlooking by either party of any default,
breach or non-observance or non-performance by the other party at any time
or times of any of that other party's obligations herein contained shall
operate as a waiver of the first party'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 of the first party's
herein in respect of any such continuing or subsequent default or breach,
and no waiver by the first party shall be inferred from or implied by
anything done or admitted by the first party unless expressed in writing
and signed by the first party.
(e) This Lease and the obligations of the Tenant to pay rent and licence fee
and other sums due hereunder and perform the Tenant's obligations hereunder
shall in no way be affected, impaired or excused because the Landlord is
unable due to circumstances beyond his control to fulfill any of his
obligations under this Lease, or to supply, or is delayed in
supplying, any service expressly or impliedly to be supplied, or is unable
to make or is delayed in making any repair, additions, alterations or
decoration, or is unable to supply or is delayed in supplying any equipment
or fixtures, if the Landlord is prevented or delayed from so doing by
reason of strike, labour troubles, or shortage of materials or any outside
cause whatsoever or by reason of any order or regulation of any department
of the Hong Kong Government (save and except those arising from the
negligence, misconduct or default of the Landlord, Management Company, or
their respective servants, employees, contractors, or agents).
(f) For the purposes of these presents any act default or omission of the
agents servants visitors staffs and customers of the Tenant shall be deemed
to be the act default or omission of the Tenant.
(g) The expression "the Tenant" shall (where the context permits) mean and
include the party or parties specifically named but shall not include the
executors and administrators of any such party or where such party is a
corporation any liquidator thereof.
(h) The Tenant hereby expressly declares that at the expiration or sooner
termination of this Lease the Tenant will promptly and punctually quit and
deliver up possession of the said premises at the expiration of this Lease
or sooner determination as aforesaid
(i) Acceptance or payment of rent and licence fee by the Landlord or the Tenant
(as the case may be) shall not be deemed to operate as a waiver by the
Landlord or the Tenant of any right to proceed against the Tenant or the
Landlord in respect of any breach non-observance or non-performance by the
Tenant or the Landlord of any of the agreements, stipulations and
conditions herein contained and on the Tenant's or the Landlord's part to
be observed and performed.
(j) (1) The Landlord shall not be under any liability to the Tenant or to any
other person whosoever in respect of any loss or damage to person or
property, loss of profit, or business or any pecuniary or monetary
loss whatever caused by or through or in any way owing to (save and
except those arising from the negligence, misconduct or default of the
Landlord, the Management Company, or their respective servants,
employees, contractors or agents):
(i) the overflow of water, influx of rain water or sea water into the
said Building, or the said premises or the activities of rats or
other vermin in the said Building, or the escape of fumes, smoke,
fire or any other substance or thing from anywhere within the
said Building, or caused as a result of burglary or robbery. The
Tenant shall fully and effectually indemnify the Landlord from
and against all claims and demands made against the Landlord by
any person in respect of any loss, damage or injury caused by or
through or in any way owing to the overflow of water or the
escape of fumes, smoke, fire or any other substance or thing
originating from the said premises (save and except due to the
structural defect not caused by the Tenant or inherent defect of
the said Building or said premises), or owing to the negligence
or default of the Tenant, his servants, agents or licensees
defective or damaged condition of any fixtures or fittings the
repair for which the Tenant is responsible hereunder, and against
all actual costs and expenses incurred by the Landlord in respect
of any such claim or demand upon presentation of reasonable
evidence of such costs and expenses; or
(ii) the defect in or breakdown or suspension of services of the
lifts, escalators, fire and security services, air-conditioning
plant, telecommunication infrastructure,
power supply system, fire protection system or other services of
the said Building; or
(iii) fracture, malfunction explosion, breakdown or suspension of the
electricity or water supply to the said Building or the said
premises; or
(iv) the neglect or default of the tenants or and occupiers of any
other parts of the said Building and their employees agents
licensees and visitors;
(v) failure, malfunction, breakdown, interruption or interference of
any computer system data base or electronic system whatsoever;
nor shall the rent and licence fee or other charges payable hereunder or
any part thereof be reduced, xxxxx or cease to be payable on account of
any of the foregoing, provided that if any suspension or interruption of
building services lasts for three (3) or more consecutive days
preventing the Tenant from carrying on its business at the said
premises, the rent and license fees and Management Fees or a due
proportion thereof shall xxxxx from the 4th day until service is
restored.
(2) Except any breach of this Lease that is due to a reckless act or
omission or willful misconduct by a party's employee, agent, contractor
or sub-contractor no party will be liable to any other party for any
incidental, indirect, consequential or special damages of any nature
whatsoever (including but not limited to loss or damage resulting from
loss of use, loss of profits or revenues, costs of capital, loss or
goodwill, claims of customers, or fines and penalties) for any breach of
this Lease or any claim in tort, related to or concerning this Lease.
(3) The maximum aggregated liability of or extent of indemnity given by each
party to the other under or in respect of this Lease and the Agreement
(hereinafter defined), excluding liquidated damages pursuant to clause
5.5 or clause 28 of the Agreement, will be [*].
(k) The Landlord shall not be responsible or liable for any loss or damage
howsoever arising from the non-observance by the other tenants or occupiers
of the said Building of the Building Rules and Regulations mentioned in
clause 4(i) hereof, provided that Landlord shall use good faith efforts to
uniformly enforce the Rules and Regulations.
(l) The Landlord gives no guarantee or warranty whatsoever for the security or
safe keeping of the said Building or any persons or contents therein. In
particular, but without prejudice to the generality of the foregoing, the
provision by the Landlord of watchmen and caretakers, security guards or any
mechanical or electrical systems of alarm of whatever nature shall not
create any obligation on the part of the Landlord as to the security of the
said premises or any contents therein and the responsibility for the safety
of the said premises and the contents thereof shall at all time rest with
the Tenant (save and except those arising from the negligence, misconduct or
default of the Landlord, the Management Company, or their respective
servants, employees, contractors or agents).
(m) The Landlord gives no guarantee or warranty whatsoever in respect of the
user of the Building. The Tenant shall at its own costs and expenses apply
for all requisite licences, permits, consents and approvals from the
government or other relevant authorities in respect of the Tenant's business
carried on therein.
(n) The Tenant particularly agrees that:
(i) The Landlord shall have access to the said premises at all reasonable
times, and upon prior appointment, for the purpose of carrying out any
necessary repair and
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
maintenance works to the said Building or any part thereof
(hereinafter referred to as "the said Works"); and
(ii) The Landlord shall also have the right at any time without the same
constituting an actual or constructive eviction of the Tenant and
without incurring any liability to the Tenant therefore, but provided
the same does not interfere with Tenant's use of or access to the said
premises, to change the arrangement and/or location of entrances,
passageways, doors, doorways, corridors, landings, staircases,
lobbies, lifts, escalators, toilets or other public parts of the said
Building or any services or apparatus serving the said Building and to
change the name, number or designation by which the said Building is
known Provided that in the event of change of name number or
designation of the said Building, the Landlord shall give to the
Tenant and the Postal and other relevant Government Authorities not
less than three months' notice of its intention so to do; and
(iii) Provided that the Landlord shall perform and execute the said Works
diligently and with due care and without interfering the carrying on
of the Tenant's business, the Landlord shall not be liable to the
Tenant for any damage claim costs or expenses, including loss and
damage for inconvenience, disturbance, loss of profit or goodwill,
interruption of services resulting from the execution of the said
Works by the Landlord or the aforesaid change, nor shall the Tenant be
entitled to claim any abatement or reduction of rent and licence fee
or extension of rent and licence fee free period on account of any
noise, vibration, or other disturbance to the Tenant's business at the
said premises (save and except those arising from the negligence,
intentional misconduct or default of the Landlord, the Management
Company, or their respective servants, employees, contractors or
agents).
(n) For the purposes of Landlord and Tenant (Consolidation) Ordinance, Chapter
7, Part III and of these presents, the rent and licence fee payable in
respect of the said premises shall be and be deemed to be in arrears if not
paid in advance at the times and in manner hereinbefore provided for
payment thereof. All actual legal costs of and incidental to the demand for
rent and licence fee distraint or any legal action for the recovery of rent
and licence fee and any other sums due hereunder shall be recoverable from
the Tenant as a debt upon presentation of reasonable evidence of such
costs.
(o) The Tenant hereby expressly declares that he has paid no premium,
construction fee, key money or other sum of money of a similar nature to
the Landlord or other person or persons authorised by him for the
possession of the said premises or for the granting of this tenancy.
(p) Any notice under this Lease shall be in writing and any bills, statements or
notice to the Tenant shall be sufficiently served if sent to its registered
office by prepaid post or sent to its last known business address in Hong
Kong, and any notice to the Landlord shall be sufficiently served if
delivered to its registered address by prepaid post or delivered to its last
known business address in Hong Kong.
(q) Each party shall bear its own legal costs, but the stamp duty and
registration fee of this Lease and its duplicate shall be borne by the
parties in equal shares.
7. If the Landlord shall at any time resolve to sell, demolish, re-build or
refurbish the Building or any substantial part thereof which include the
said premises and Licence Space (which resolution and the intention so to do
shall be conclusively evidenced by a copy of a resolution of its board of
directors certified by any one of its directors or its secretary to be a true
copy), the Landlord shall be entitled to give not less than 12 calendar months'
notice in writing to expire at any time to terminate this Agreement, and
immediately upon the expiration of such notice this Agreement shall terminate
but without prejudice to the rights and remedies of either party against the
other in respect of any antecedent claim or breach of any of the agreements
restrictions stipulations or conditions herein contained Provided Always that
the Landlord shall not exercise its right prior to the expiration of the [*]
year of the said term. "Demolish" and/or "rebuild" for the purposes of this
Clause shall mean the demolition and/or rebuilding of the whole of the Building
or a substantial part or substantial parts thereof whether or not including any
main walls exterior walls or roof of the said premises and whether or not any
part thereof is to be re-built or reconstructed in the same or any other manner.
"Refurbish" may or may not include demolition of the Building or any substantial
part thereof.
8. The Tenant hereby expressly acknowledges that nothing herein contained
shall confer on the Tenant any right, interest and privilege to use or permit to
be used the name/logo or any part of the name/logo of the Landlord or of the
said Building or any picture, representation or likeness of the whole or any
part of such name/logo of the said Building as a trade name or part of the trade
name for the Tenant's business operating in the said premises or in anyway in
connection with the operation of the Tenant's business at the said premises save
and except the use of the same as the address for the Tenant.
9. This Lease is also subject to the special conditions set out in the Fourth
Schedule hereto (if any). All the schedules to this Lease shall form part of
this Lease. Should there be any conflicts or inconsistencies between the terms
and conditions in the Fourth Schedule hereto and that of in other parts of this
Lease, the terms and conditions in the Fourth Schedule shall prevail.
10. This Lease shall be governed by and construed in accordance with the laws
of Hong Kong.
11. The reference to "Hong Kong" shall mean the Hong Kong Special
Administrative Region and "the Government" shall mean the Government of the Hong
Kong Special Administrative Region. All references to monetary amounts herein
shall be denominated in Hong Kong Dollars.
12. This Lease has been negotiated and drafted in the English language. It is
the intention and agreement of the parties that this Lease, as documented in the
English language, accurately and completely states all agreements and
understandings of the parties with respect to the subject matter of this Lease.
The parties agree that, although translations and summaries of the Lease may
have been prepared and used by one or more of the parties from time to time
during the preparation and negotiation of the Lease, no translation of this
Lease into any other language, no form of this Lease other than the English
language form executed by both parties, and no drafts, correspondence or any
other writing (whether in English or any other language) shall have any effect
or be considered in evaluating any claim or dispute arising under or relating to
this Lease. In addition, the parties agree that all notices, amendments,
waivers, modifications or other writings required or made pursuant to this Lease
shall be in the English language and no such notice, amendments, waivers,
modifications or other writing shall be of any effect or be given any
consideration if in any language other than English.
13. (a) Each party undertakes to refrain from disclosing (a) the terms of this
Lease and/or the terms of the transactions referred to herein or (b)
the confidential documents and information exchanged by the parties in
anticipation of or furtherance of the actions contemplated in this
Lease (hereinafter "Confidential Information") without prior written
consent from the other party, except in the following circumstances:
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
(i) in the event that any Confidential Information is known to the
party receiving the same prior to the disclosure thereof by the
disclosing party or becomes known to the party receiving such
information from a third party not involving any breach of this
Lease;
(ii) in the event that either of the parties is required to disclose
the Confidential Information in order to comply with any law,
rule, order, administrative or court resolution or arbitration
decision;
(iii) in the event that the Confidential Information is generally
known by the public or has been publicly disclosed; or
(iv) the parties agree in writing that it be disclosed to specified
persons, upon such terms and conditions as the parties may agree
and specify;
(v) the registration of this Lease at the relevant Land Registry.
(b) The foregoing obligations regarding Confidential Information shall not
prohibit disclosure to (a) directors, employees or advisors and the
other representatives of either party whose duties require them to
know the Confidential Information (such persons shall be required by
the party with whom they are employed or associated to uphold the
confidentiality of Confidential Information made available to them)
and (b) potential sources of financing, who, in turn, shall be
required by the party providing Confidential Information to it to
uphold the confidentiality of the Confidential Information made
available to it.
(c) Each party undertakes to refrain from making any public announcement
on matters contained in this Lease without prior written notice to and
approval thereof by the other party. The parties shall mutually agree
upon the content of any such disclosure.
14. To the extent that there is an inconsistency between provisions in
this Lease and the Agreement:
(a) a specific provision takes precedence over a general provision;
and
(b) otherwise, to the extent necessary to resolve the inconsistency,
the following order of precedence applies:-
(i) the Agreement;
(ii) this Lease.
15. If any approval or consent is required to be given by a party under or
pursuant to this Lease, such approval or consent must not unreasonably be
conditioned delayed or withheld by that party.
It is hereby declared that (if the context permits or requires) the
singular number shall include the plural and the masculine gender shall include
the feminine and the neuter and vice versa.
IN WITNESS whereof the parties hereto have executed this Lease the day
and year first above written.
THE FIRST SCHEDULE ABOVE REFERRED TO
PART IA
THE LANDLORD
Weelek Company Limited, whose registered office is situated at 45th Floor, Sun
Hung Kai Centre, 30 Harbour Road, Wan Chai, Hong Kong.
PART IB
THE TENANT
iAsiaWorks (HK) Limited, whose registered office is situated at 31st Floor,
Shell Tower, Times Square, 0 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxx, Xxxx Xxxx.
PART II
THE SAID PREMISES
The entire 7th, 8th, 9th, 10th, 11th and 12th Floors of the building
to be erected on all that piece or parcel of ground registered in the Urban Land
Registry as The Remaining Portion of Chai Wan Inland Lot No.30, to be known as
"Mega-iAdvantage" (the "Building"), with an approximate gross floor area of *
square feet (which shall be subject to final computation determined by the
Landlord's Authorised Person, in accordance with the final building plans of
the Building as approved by the Buildings Department, which said floors are
referred to as "the said premises") plus part of 6th Floor of the Building
with an approximate gross floor area of * square feet (which shall be subject
to final computation determined by the Landlord's Authorised Person in
accordance with the final building plans of the Building as approved by the
Building Department and which portion is referred to as "the Licence Space")
for the location of three diesel rotary UPS systems, which said premises and
Licence Space are shown as shaded in the attached floor plan for
identification only.
PART III
TERM OF LEASE
(i) In respect of 7th, 8th, 9th and 10th Floors of the said premises, for the
term of twelve years commencing from the [ ] day of [ ] and expiring on
the [ ] day of [ ], with two options to renew for two further terms of
four years each under the provisions of Special Condition 1 of this Lease
and Subject to the Tenant's right for early termination set out in Special
Condition 2 of this Lease;.
(ii) In respect of the 11th Floor of the said premises, for the term of eleven
years and nine months commencing from the expiration of the third month of
the term in respect of 7th, 8th, 9th and 10th Floors of the said premises
and expiring on the same day as for 7th, 8th, 9th and 10th Floor of the
said premises with two options to renew for two further terms of four
years each under provisions of Special Condition 1 of this Lease and
subject to the Tenant's right for early termination set out in Special
Condition 2 of this Lease;
(iii) In respect of the 12th Floor of the said premises for the term of eleven
years and six months commencing from the expiration of the sixth month of
the term in respect of 7th, 8th, 9th and 10th Floors of the said premises
and expiring on the same day as for 7th, 8th, 9th and 10th Floor
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
of the said premises with two options to renew for two further terms of
four years each under the provisions of Special Condition 1 of this Lease
and subject to the Tenant's right for early termination set out in Special
Condition 2 of this Lease;
(iv) In respect of the Licence Space, the term of the licence is twelve years
commencing from the [ ] day of [ ] and expiring on the [ ] day of [ ], with
two options to renew for two further terms of four years each under the
provisions of Special Condition 1 of this Lease and Subject to the Tenant's
right for early termination set out in Special Condition 2 of this Lease
subject also to sooner termination of this Lease.
THE SECOND SCHEDULE ABOVE REFERRED TO
PART I
PARTICULARS OF RENT
(a) The rent for the said premises shall be as follows:-
Term Rental rate
* Year to * (i) monthly rent for the 7th, 8th, 9th and
Year 10th Floors of the said premises payable
for the first * months of the said term shall
be * per month; * per square foot of gross
floor area of * square feet)
(ii) monthly rent for the 7th, 8th, 9th,
10th and 11th Floors of the said premises
payable from the * to the * months of
the said term shall be * per month; * per
square foot of gross floor area of *
square feet)
(iii) monthly rent for the said premises payable
from the * month of the said term to the
expiration of the * Year shall be * per
month; ( at * per square foot of gross
floor area of * square feet)
* Year to * * per month, which shall be *
Year of the rate in the * Year of the said term.
* Year to * At Open Market Rent as at the commencement of the
Year * year, to be determined in accordance with the
provisions hereunder, provided that the rent shall
not be reduced by more than * or increased by
more than * of the rent reserved for the *
Year of the said term
(b) Licence Fee for the Licence Space shall be as follows:-
* Year to * at the rate of * per square foot of gross
Year floor area per month of gross floor area of *
square feet (i.e.*).
* Year to * At the same rate as determined for the Open Market
Year Rent as at the commencement of the * Year, to
be determined in accordance with the provisions
hereunder, provided that the licence fee shall not
be reduced by more than * or increased by more
than * of the licence fee reserved for the *
Year of the said term
* Year to * At the same rate as determined for the Open Market
Year Rent as at the commencement of the * Year, to
be determined in accordance with the provisions
hereunder, provided that the licence fee shall not
be reduced by more
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
than * or increased by more than * of the
licence fee reserved for the * Year of the said
term
(c) (I) The Open Market Rent shall be agreed between Landlord and the Tenant
at least three months before referred to the decision of a single
valuer to be appointed jointly by the parties. Failing agreement on
the appointment of the valuer, the valuer shall be appointed by the
President for the time being of the Hong Kong Institute of Surveyors.
The valuer shall act as an expert, but not an arbitrator whose
decision shall be final and binding, provided always that in making
its decisions the valuer shall take into account the Cost Formula (the
"Cost Formula") agreed between the parties annexed to the Agreement
and the provision of facilities by the Landlord in the Schedules in
the Agreement and the new rent or licence fee, as the case may be,
shall not be increased or reduced by more than 10% of the rent or the
licence fee, as the case may be, reserved for the year of the said
term immediately preceding the relevant year in which the new rent or
licence fee, as the case may be, becomes payable. Prior to the
decision of such valuer, the Tenant shall continue to pay monthly, on
account of the rent or the licence fee, as the case may be, to be
decided, the same rent or licence fee, as the case may be, as payable
on the expiration of the year immediately preceding the commencement
of the relevant year and adjustment on the rent or licence fee, as the
case may be, (if applicable), shall be made upon the market rent or
licence fee having been determined as aforesaid, as the case may be.
The costs of the valuer shall be borne by the Landlord and the Tenant
in equal shares.
(II) In determining the new rent and licence fee the valuer shall act as an
expert and not as an arbitrator and shall determine the open market
rent for the said premises and Licence Space at the commencement of
the relevant period and in making that determination the valuer shall
take into account the rent payable in current, new, comparable
transactions in the Building or any comparable buildings for
comparable space, for a comparable term, from non-expansion, non-
renewal and tenants not connected or associated with the Landlord or a
landlord, negotiated at arm's length, in either case giving
appropriate consideration (without limitation) to the annual rental
rates per square foot of gross floor area and abatement provisions
reflecting free rent and/or no rent or other concessions made during
the period of fit out or any other period during the lease term, so
that the rent determined reflects the same rent and other economic
benefits that would otherwise be given to any comparable prospective
tenant in a comparable, new transaction and
(1) on the following assumptions at that date:
(i) that the said premises and Licence Space are fit for
immediate occupation and use and that no work has been
carried out to the said premises and Licence Space during
the term which has diminished the rental value of the
said premises and that in case the said premises and
Licence Space have been destroyed or damaged they have
been fully restored;
(ii) that the said premises and Licence Space are available to
let by a willing landlord to a willing tenant as a whole
without a premium but with vacant possession and subject
to the provisions of this Lease (other than the amount of
the rent reserved) for a term equal to the relevant
period;
(iii) that the covenants in this Lease have been fully
performed and observed;
(2) but disregarding:
(i) any effect on rent of the fact that the Tenant has been
in occupation of the said premises and Licence Space;
(ii) any goodwill attached to the said premises and Licence
Space by reason of the
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Tenant carrying on its business at the said premises and Licence
Space;
(iii) any effect on rental value of the said premises and Licence
Space attributable to the existence at the commencement of the
relevant period of any improvement to the said premises and
Licence Space or any part by the Tenant.
(d) All rent and licence fees are payable monthly in advance on the first day
of each calendar month without deduction whatsoever.
(e) The rent is exclusive of Management Fees.
PART II
THE DEPOSIT
The Rental Deposit shall be equivalent to three months' rent, and licence fee
which shall be by way of a bank guarantee in a form and by such bank as the
Landlord may reasonably approve and which bank guarantee shall not expire
earlier than 30 days after the expiration of the said term.
PART III
MANAGEMENT FEES
(i) The monthly Management Fee in respect of the said Premises and Licence
Space for * Year to * Year shall be at the rate of * per square foot of
gross floor area per month and payable by the Tenant monthly in advance.
(ii) The monthly Management Fee in respect of the said Premises and Licence
Space for the * Year to * Year shall be at * per square foot
of gross floor area and payable by the Tenant monthly in advance and
thereafter subject to review annually which reviewed monthly Management Fee
shall not be increased or decreased by more than * of the monthly
Management Fee payable immediately prior to such review.
The monthly Management Fee shall include garbage collection from and cleaning of
the said premises and the Licence Space (if any).
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
THE THIRD SCHEDULE ABOVE REFERRED TO
PART I
FITTING OUT WORKS TO BE CARRIED OUT BY
CONTRACTORS NOMINATED BY THE LANDLORD
1. Electrical System:
Any alteration of the main supply and main switch in the switch room.
2. Air-conditioning System:
Alteration of the air-conditioning supply header, chilled water tee-offs
and fan coil units.
3. Fire Services System:
Alteration and addition to the existing main system including sprinkler,
hose reel, smoke detector or breakglass.
4. Building Management System (BMS):
Alteration and addition to the existing BMS System.
PART II
BUILDING RULES AND REGULATIONS
1. Plumbing fixtures and toilet facilities shall be used only for the purpose
for which they were constructed. No throwing or sweepings rubbish rags or other
alien foreign substances shall be deposited therein. All actual costs for
repairing damage resulting from any misuse of the plumbing fixtures shall be
borne by the Tenant upon presentation of reasonable evidence of such costs.
2. Unless with written consent of the Landlord or the Management company, no
Tenant shall drill into or in any way deface any part of the said premises or
the said Building, including the curtain walls, beams structural members of any
part of the fabric of the same and of the decorative features of the common
areas, stairs, lifts and escalators of the said Building and of the trees,
plants and shrubs therein.
3. Unless with prior written consent of the Landlord or the Management
Company, which consent will not normally be granted, no flagpoles or aerials
shall be erected, and no flags shall be flown from windows or elsewhere in or
upon the said Building. The Landlord or the Management Company may at its
discretion provide a communal aerial for the use of Tenants of the said
Building.
4. Each Tenant must upon the termination of this tenancy restore to the
Landlord or the Management Company all keys of offices and toilet rooms used by
the Tenant.
5. All removals or the carrying in or out of furniture or bulky matter of any
description must take place after office hours and during the hours which the
Landlord or the Management Company may designate from time to time. The
Landlord reserves the right to exclude goods from the said Building which
violate any of these Rules and Regulations of this tenancy, of which these Rules
and Regulations are a part.
6. No Tenant nor any of the Tenant's servants, employees, agents, visitors or
licensees shall bring into any passenger lift in the said Building any goods,
effects, chattels, luggage, bulky
parcels, food trays, tiffin carriers or other space-occupying items, and the
Tenant shall ensure that such items are restricted to the designated cargo lift.
7. No Tenant shall do or permit to be done in the said premises or any part
thereof any act which shall or might subject the Landlord to any liability or
responsibility for injury to any person or to property.
8. Windows shall remain closed and locked save in emergencies such as fire or
breakdown of the air-conditioning system, and to the reasonable extent necessary
to enable the Tenant to clean the same.
9. Canvassing and peddling in the said Building is prohibited and each Tenant
must co-operate to prevent the same.
10. Save with the prior written consent of the Landlord or the Management
Company, which consent will not normally be granted, no cooking or preparation
of food shall be permitted by any Tenant in the said premises.
11. No Tenant shall permit any unusual or objectionable odours to be produced
upon or permeated from the said premises or cause or permit any noise which is
or may be a nuisance or annoyance to the occupants of other portions of the said
Building.
12. The Tenant shall not install in the said premises any partitioning or
sub-partitioning system other than that supplied or approved by the Landlord.
13. No animals or pets shall be kept in the said premises.
14. No other cleaning contractors for the internal cleaning of the said
premises shall be employed by the Tenant without the Landlord's or Management
Company's prior consent.
15. The Tenant shall not install its own security systems within at the
entrance of the said premises without the prior written approval of the Landlord
or the Management Company such installation should be compatible with the
security system to the Building.
16. The Tenant shall install independent meters for utilities other than
normal facilities provided by the Landlord and shall not install any equipment,
apparatus or machinery which consumes electricity not metered through the
Tenant's separate meter.
17. The Tenant shall inform the Management Company prior to the commencement,
of any approved works in the said premises and in carrying out such works the
Tenant shall cause its servants, contractors and agents to co-operate fully with
the Landlord or his agents or with other Tenants in the said Building. The
Tenant, its agents, servants and contractors shall obey and comply with all
reasonable instructions and directions which may be given by the Landlord or his
agents or representative in connection with the carrying out of such work.
18. The Tenant shall not lay or use any floor covering or do any thing which
may damage or penetrate the existing flooring or screed or slabs.
19. The Tenant shall not block up, darken, destroy or obscure any window or
lights belonging to the said premises without having obtained prior written
consent of the Landlord, which consent may be given subject to other reasonable
conditions as the Landlord may in its absolute discretion consider fit to
impose.
20. The Tenant shall not load or permit or suffer to be loaded into any
service lift or passenger lift in the Building a weight greater than lift is
designed or permitted to carry.
21. The Tenant shall not burn or permit to be burnt incense in the said
premises or in any part of the said Building.
22. The Tenant shall be responsible for the removal of debris left by the
Tenant's contractors as a result of the fitting out and decoration works to the
said premises.
23. The Tenant shall not install additional locks bolts or other fittings to
the entrance doors of the said premises or in any way to cut or alter the same
without first having obtained the written licence or consent from the Landlord.
24. The Tenant shall use all toilets on the same floor of the said Building
in a sanitary and tenantable manner in common with other tenants.
25. Save and except the Tenant's staff and contractors properly registered
with the Management Company for necessary night shift work, access to the
Building after normal business hour may be restricted.
26. The Tenant shall give notice to the Landlord or the Management Company of
any damage that may be suffered to the said premises and of any accident to or
defects found by the Tenant in the water pipes, gas pipes, fire services,
electrical wiring, air-conditioning equipment or fittings fixtures or other
facilities provided by the Landlord.
27. The Tenant shall not install any air-conditioning machinery in the said
premises (either in the windows or elsewhere) without the prior written consent
of the Landlord.
28. The Tenant shall lock up the said premises properly at all times after
office hours.
29. Wet Pantry is not allowed in the said premises save and except prior
written approval has been obtained from the Landlord or the management body of
the said Building.
PART III
LANDLORD'S RIGHTS AND RESERVATIONS
The Landlord hereby expressly reserve and except unto itself exclusively
the following rights:
1. The right of free and uninterrupted passage of services plus the right to
enter the said premises for repair and replacement upon prior appointment.
2. The right upon prior appointment to enter the said premises for access to
and egress from any machine room under the control of the Landlord on any of the
floor of the Building on which any part of the said premises is situated.
3. The right upon giving reasonable notice to the Tenant (except in case of
emergency) to suspend the air-conditioning, lifts, escalators, power supply or
other building services for repair or replacement, provided that Landlord shall
use best efforts to ensure that any such suspension of building services shall
be done in a manner to minimize any impact on Tenant's business activities.
4. The right to hold or permit or allow any company or organization to hold
functions or exhibitions of any nature or display any merchandise in any part of
the common areas of the said Building, provided that the Tenant's free access to
the said premises shall not be unduly affected.
5. The right of free and uninterrupted passage, egress from and ingress to
the common services of the said Building in or under above or through the said
premises. In particular, but without affecting the generality of the aforesaid,
the Landlord shall have the exclusive right upon prior appointment to install,
affix, erect or permit to be installed, affixed or erected any aerial
transmitter or other telecommunication cable wiring or equipment on or above the
false ceiling or otherwise over or under the said premises and the Tenant shall
permit the Landlord or its authorised agent or contractor to enter the said
premises to install, affix, erect, maintain or repair such aerial transmitter
cable wiring or equipment at all reasonable times upon prior appointment, and
shall not remove, alter or otherwise cause damage to such aerial transmitter
cable wiring or equipment at the said premises, and shall indemnify the Landlord
against all claims, demands, actions, proceedings, loss, damages, costs and
expenses arising from the breach of this provision by the Tenant provided that
the Landlord shall use its best endeavours to cause as little interference to
the Tenant's business at the said premises as is practicable and conclude all
necessary works expeditiously and with all due diligence and make good all
defects, damage and want of repair caused by the acts of the Landlord at the
Landlord's own expense.
6. The rights, exceptions, reservations, privileges, liberties and
entitlements are excepted and reserved to the Landlord in the Deed of Mutual
Covenant (including any Sub-Deed of Mutual Covenant) relating to or affecting
the said Building.
THE FOURTH SCHEDULE ABOVE REFERRED TO
SPECIAL CONDITIONS
1. Option
------
(a) If there shall not at the expiration of the said term be any
material and subsisting breach by the Tenant of any of the terms or
conditions of the Lease (beyond expiration of applicable cure and notice
periods) the Tenant shall have an option to renew the Lease for a further
term of four years such option to be exercised by the Tenant by giving to
the Landlord at least six calendar months' previous notice in writing prior
to the end of the said term and the Landlord shall grant to the Tenant a
lease for a further term of four years ("the First Renewal Term") at Open
Market Rent as determined under Clause (c) of Part I of the Second Schedule
but without limit on the extent of increase or decrease, subject in all
other respects to the same stipulations as are contained in the Lease, save
and except provision of any rent free period (if any), provision for early
termination, and this Clause (a) and Clause (c) for renewal. The Tenant
shall on the renewal of this Lease pay to the Landlord an additional sum to
make up the deposit so as to be equivalent to 3 months' rent and licence
fees payable during the First Renewal Term by procuring issuance of a
replacement bank guarantee in favour of the Landlord issued by a licenced
bank in Hong Kong and in a form reasonably approved by the Landlord. If the
Tenant shall fail to serve the notice to renew as aforesaid this Lease
shall terminate and the Tenant shall deliver up vacant possession of the
said premises and Licence Space to the Landlord in accordance with the
provisions of this Lease at the expiration of the said term.
(b) If there shall not at the expiration of the First Renewal Term
hereby granted be any material and subsisting breach by the Tenant of any
of the terms or conditions of this Lease (beyond expiration of applicable
cure and notice periods) the Tenant shall have an option to renew this
Lease for a further term of four years such option to be exercised by the
Tenant by giving to the Landlord at least six calendar months' previous
notice in writing prior to the end of the First Renewal Term and the
Landlord shall grant to the Tenant a lease for a further term of four years
("the Second Renewal Term") at Open Market Rent as determined under Clause
(c) of Part I of the Second Schedule but without limit on the extent of
increase or decrease subject in all other respects to the same stipulations
as are contained in this Lease, save and except any provision for rent free
period (if any), provision for early termination and this Clause (b) and
Clause (c) for renewal. The Tenant shall on renewal pay to the Landlord an
additional sum to make up the deposit so as to be equivalent to 3 months'
rent and licence fees payable during the Second Renewal Term by procuring
the issuance of a replacement bank guarantee in favour of the Landlord by a
licenced bank in Hong Kong in a form reasonably approved by the Landlord.
If the Tenant shall fail to serve the notice to renew as aforesaid the
lease shall terminate and the Tenant shall deliver up vacant possession of
the said premises and Licence Space to the Landlord in accordance with the
provisions of the lease at the expiration of the First Renewal Term.
2. Early Termination
-----------------
The Tenant shall have the right to terminate this Lease by serving not less
than six months' prior written notice on the Landlord (Provided that
nothing herein contained shall permit the Tenant to terminate this Lease by
notice expiring earlier than the last day of the first * years of the
said term), subject to the Tenant compensating the Landlord with a sum
equivalent to the construction costs of the said premises (as set out in
the Costs Formula)
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
amortized over the said term for the residue of the unexpired term as
follows:
Compensation equals:
* multiplied by the total gross floor area of the said premises
multiplied by (* months less the length of term expired upon
termination) then divided by * months
Such compensation shall be subject to reduction to such extent that the
Landlord may recover from any subsequent tenant of the said premises and
such reduction shall be agreed between the parties failing which to be
determined by a single valuer to be appointed jointly by the parties.
Failing agreement on the appointment of the valuer, the valuer shall be
appointed by the President for the time being of the Hong Kong Institute of
Surveyors. The valuer shall act as an expert, but not an arbitrator whose
decision shall be final and binding on the parties. The costs of such
valuer shall be borne by the Tenant.
3. Sub-letting rights
------------------
Notwithstanding anything to the contrary in clause 4(v) of this Lease, the
Tenant is allowed to (a) sublet or share occupation of the said premises
with its subsidiary companies or its affiliate and associated companies,
each of which affiliate or associated companies the Tenant holds not less
than 30% of its shareholdings, subject to the Landlord's prior written
approval on the terms and conditions of such subletting which approval
shall not be unreasonably withheld provided always that such sub-tenants
shall be restricted to carry out business relating to telecommunication and
internet services and in compliance with the permitted uses of the
Building. The gross profit rent, if any, derived from any permitted
subletting shall be shared between the Landlord and the Tenant in equal
shares. All shortfalls on rent, if any, arising from such subletting shall
be the responsibility of the Tenant; and (b) assign this Lease that may be
required in the course of a merger, acquisition or sale of the Tenant's
assets, without the need for the Landlord's prior written approval,
Provided Always That such assignment shall be effected to assign all the
Tenant's rights and liabilities to a company of equal or better credibility
and financial state carrying out the business relating to telecommunication
and/or internet services and that such assignment shall be made in the
Landlord's form reasonably acceptable to the Tenant and at the Tenant's or
assignee's sole costs,
4. Electricity
-----------
The Tenant will reimburse the Landlord on a monthly basis all electricity
charges incurred according to a separate meter reading at such rate as
shall be in line with the market rates.
5. Parking
-------
Subject to availability, the Tenant shall be entitled to subscribe for 4
car-parking spaces on licence basis at the prevailing car parking charges.
For reserved allocated and floating car-parking space, the current charge
is * per month per space the Landlord will endeavour to provide the Tenant
with those car parking spaces that are closest to the loading/unloading
area and industrial lift. Such licences shall be automatically revoked upon
expiration or earlier termination of this Lease.
For the avoidance of doubt, in the event that the Tenant exercises its
option to renew in accordance with the provisions of this Lease, the
charges for the car parking spaces shall be subject to revision at non-
discriminatory prevailing rates at the commencement of the relevant renewal
terms.
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
6. Signage
-------
One external signage and one sign on the lobby on the Ground Floor of the
Building and one sign in the passenger lift car which size and detailed
design shall be subject to the prior approval of the Landlord, will be
provided at the cost of the Tenant subject to a licence fee of HK$3,000.00
per month for each sign during the said term, such licence shall be
automatically revoked upon the expiration or earlier termination of the
Lease.
For the avoidance of doubt, in the event that the Tenant exercise its
option to renew in accordance with the provisions of this Lease, the
charges for the aforesaid signages shall be subject to revision at then
non-discriminatory prevailing rates at the commencement of the relevant
renewal terms.
The Tenant shall remove the said signages at the expiration or sooner
termination of this Lease, and repair all damage caused by such removal at
the Tenant's own cost, failing which the Landlord shall be entitled to
remove the same at the cost of the Tenant, which cost shall be recoverable
as a debt.
7. This Lease is incidental to the Agreement, valid termination of the
Agreement shall automatically terminate this Lease.
SEALED with the Common Seal )
)
of the Landlord and SIGNED by )
)
)
)
)
for and on behalf of the Landlord whose )
)
signature(s) is/are verified by:- )
SEALED with the Common Seal of )
)
the Tenant and SIGNED by )
)
)
)
for and on behalf of the Tenant in the )
)
presence of:- )
Dated 10th June 2000
iADVANTAGE LIMITED
and
iASIAWORKS (HK) LIMITED
and
WEELEK COMPANY LIMITED
_____________________________________
AGREEMENT
_____________________________________
Squire, Xxxxxxx & Xxxxxxx
Rooms 0000-0 Xx. Xxxxxx'x Xxxxxxxx XXX, XXXX, XXX & LO,
0 Xxx Xxxxx Xxxxxx Xxxxxxxxxx & x.,
Xxxxxxx, Xxxx Xxxx 00xx Xxxxx Xxxxxxx Xxxxx,
Xxxxxxx, Xxxx Xxxx
TABLE OF CONTENTS
-----------------
1. Definitions and Interpretation 3
2. Scope of Agreement 8
3. Conditions Precedent 8
4. Commencement Date 9
5. Obligations and Representations of iAdvantage 10
6 Obligations of iAsiaWorks 12
7 Obligations and Representations of the Landlord 14
8 Mutual Representations and Warranties 15
9 Testing 16
10 Substantial Completion and Final Acceptance 16
11. Assignment and Subcontracts 17
12. Continuing Obligations 18
13. Confidentiality 18
14. Dispute Resolution 20
15. Entire Agreement 22
16. Force Majeure 22
17. Further Assurances 24
18. Governing Law 24
19. Inconsistency 24
20 Nominated Contractor 25
21. Limitation of Liability 25
22. Non-Solicitation 26
23 Notices 26
24. Severability 27
25. Termination 27
26. Time of the Essence 27
27. Variations 27
28. Deposit 28
29. Phased Handover 30
30. Waiver 31
31. English Language 31
SCHEDULE 1 Cost Formula
SCHEDULE 2 Documents
SCHEDULE 3 Lease
SCHEDULE 4 Maintenance
SCHEDULE 5 Specifications
SCHEDULE 6 System
SCHEDULE 7 Training Services
SCHEDULE 8 Sample Main Contract
SCHEDULE 9 Testing Procedures
SCHEDULE 10 Maintenance Fee
THIS AGREEMENT IS MADE THE 10TH DAY OF JUNE 2000 ("Execution Date").
BETWEEN
iAdvantage Limited whose registered office is situated at 36/F Standard
Chartered Tower, Millennium City, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxx Xxxx
Special Administrative Region ("iAdvantage");
AND
iAsiaWorks (HK) Limited whose registered office is situated at 00xx Xxxxx,
Xxxxxxxx Telecom Tower, 000 Xxxx'x Xxxx, Xxxxxx Xxx,, Xxxx Xxxx Special
Administrative Region ("iAsiaWorks");
AND
Weelek Company Limited whose registered office is situated at 45th Floor, Sun
Hung Xxx Xxxxxx, 00 Xxxxxxx Xxxx, Xxx Xxxx, Xxxx Xxxx Special Administrative
Region ("Landlord").
RECITALS
(1) iAdvantage is an affiliated company of the Landlord, and is responsible for
the fitting out of the Building and the provision of all essential
facilities thereto.
(2) iAdvantage has, with the full consent and approval of the Landlord, agreed
to perform the Services in order that iAsiaWorks may conduct the
Activities.
(3) Upon all of the Conditions Precedent having been totally fulfilled or
waived, iAsiaWorks will be obliged to enter into the Lease with the
Landlord.
AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Unless the context otherwise requires, in this Agreement and the Recitals:
"Activities" means the unrestricted commercial utilization of the System in
the Premises, as more particularly defined in clause 4(r) of the Lease;
"Agreement" means this document, any Variation and any Schedule;
[*] - CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
"Anton Pillar Agreement" means the agreement to be entered into between
Anton Pillar (HK) Limited and iAsiaWorks for the purchase by iAsiaWorks and
delivery to the Premises by Anton Pillar (HK) Limited of three diesel
rotary UPS systems, more particularly described in the Specifications;
"Authorised Person" has the same meaning as defined in the Buildings
Ordinance (Cap.123 of the Laws of Hong Kong);
"Building" means the building to be erected by the Landlord on the Land;
"Business Day" means a day that is not a Sunday or any other day that is a
public or bank holiday in the Hong Kong Special Administrative Region;
"Commencement Date" has the meaning attributable to it in clause 4;
"Conditions Precedent" means the conditions precedent set out in clause
3.1;
"Confidential Information" means any information (whether in the form of
audio, data, text, images or a combination thereof) that one party (a) has
disclosed to another party pursuant to the Letter of Intent; (b) may
disclose to another party (whether in writing or orally) pursuant to this
Agreement; (c) the Letter of Intent; (d) this Agreement; and (e) the Lease;
"Cost Formula" means the formula described in Schedule 1, that has been and
will be used by the parties as the basis for calculating the Maintenance
Fee and the Rent;
"Construction Services" means the services more particularly described in
Schedule 5, to be performed by iAdvantage for iAsiaWorks in respect of and
concerning the fitting out of the Premises, including Installation and
Testing;
"Deed of Mutual Covenant" has the same meaning as in the Lease;
"Documents" means the documents related to the Systems and such other
documents (whether in soft copy or hard copy form), as listed in Schedule
2;
"First Maintenance Fee Deposit" means the sum of *, in the form of
cheque or telegraphic transfer or a bank guarantee approved by iAdvantage
and issued by a licenced bank in Hong Kong as security for the due
observance by iAsiaWorks of its obligations under this Agreement;
"First Rental Deposit" means the sum of *, in the form of cheque or
telegraphic transfer or a bank guarantee approved by the Landlord and
issued by a licenced bank in Hong Kong as security for the due observance
by iAsiaWorks of its obligations under this Agreement;
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
"Final Acceptance" has the meaning attributed to it in clause 10.4;
"Force Majeure Event" has the meaning attributed to it in clause 16.3;
"Government Grant" means the government lease of the Land and any
subsequent variations or modifications thereof (if any);
"Hardware" means the equipment described in Part 1 of Schedule 6;
"Implementation Schedule" means a schedule setting out the dates by which
Construction Services must be performed in accordance with the
Specifications, or as may be modified pursuant to clause 5.6;
"Installation" means installation of the Systems (including connection to
all power supplies) in accordance with manufacturers' and/or suppliers'
recommendations and the Specifications;
"Insurance" means (a) such insurance as may be required to be obtained and
maintained pursuant to law; and (b) such insurance coverage for Third Party
Liabilities as defined under the Contractor All Risk Policy in respect of
the Building to cover iAsiaWorks, its Representative (as defined in clause
8.1) and Nominated Contractors (as defined in clause 20.1) as sub-
contractors thereunder;
"Land" means The Remaining Portion of Chai Wan Inland Lot No. 30;
"Lease" means the lease in respect of the Premises attached as Schedule 3;
"Letter of Intent" means the letter of intent entered into between
iAsiaWorks and iAdvantage dated 20 March, 2000;
"Maintenance Fee" means the maintenance fee payable by iAsiaWorks to
iAdvantage for the provision of the Maintenance Services more particularly
set out in Schedule 10;
"Maintenance Services" means the services to be performed by iAdvantage for
iAsiaWorks, the particulars, specific terms and conditions of which are
described in Schedule 4;
"Management Agreement" has the same meaning as in the Lease;
"Management Fee" has the same meaning as in the Lease;
"Memorandum" means a memorandum in respect of and concerning the agreement
to enter the Lease as referred to in this Agreement;
"Occupation Permit" means the occupation permit, whether temporary or
permanent, in respect of the Premises or the Building;
"Premises" means the said premises described in the Lease with gross floor
area of approximately * square feet subject to final computation in
accordance with the final building plans of the Building as determined by
the Landlord's Authorised Person and approved by the Buildings Department,
which shall be final save and except for manifest error or fraud;
"Rent" means the rent and licence fee specified in the Lease;
"Schedule" means any document attached to this Agreement, identified as a
schedule and initialed by the parties;
"Second Maintenance Fee Deposit" means the sum representing three months
Maintenance Fees, in the form of a cheque or telegraphic transfer or a bank
guarantee approved by iAdvantage and issued by a licenced bank in Hong Kong
as security for the due observance by iAsiaWorks of its obligations under
this Agreement;
"Second Rental Deposit" means the sum representing three months Rent, in
the form of a cheque or telegraphic transfer or a bank guarantee approved
by the Landlord and issued by a licenced bank in Hong Kong as security for
the due observance by iAsiaWorks of its obligations under the Lease;
"Services" means the Construction Services, the Maintenance Services and
the Training Services inclusive of such activities and obligations that may
be ancillary or incidental to the performance of such services;
"Software" means software including: (a) programs in machine-executable
code or firmware that are to be licenced to iAsiaWorks, (b) software
residing in equipment memories, tapes, disks or other media, (c) software
that provides basic logic operating instructions and user-related
application instructions and (d) Documents provided by suppliers of
equipment associated with the operation of, or warranties provided for,
relevant Systems more particularly described in Part 2 of Schedule 6;
"Specifications" means: (a) the specifications of the Systems listed, and
the design drawings contained, in Schedule 5 and (b) compliance with all
applicable laws and regulations;
"Sub-Deed of Mutual Covenant" has the same meaning as in the Lease;
"Substantial Completion" has the meaning attributed to it in clause 10.1;
"Systems" means the Hardware and the Software as configured in Schedule 6;
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
"Testing" means the testing of the Systems in accordance with Schedule 9;
"Training Services" means the services, the particulars, specific terms and
conditions of which are described in Schedule 7 to be performed by
iAdvantage for iAsiaWorks in respect of and concerning the Systems;
"Trouble Free Operation" means 99.999% availability of the Systems over
each calendar year during the term of this Agreement with 2N redundancy of
all Systems, save and except decrease of availability or unavailability due
to (i) inherent defect in the design of any part of the Systems or (ii) the
occurrence of a Force Majeure Event, or (iii) misuse of the Systems by
iAsiaWorks, its employees servants agents contractors or customers, or (iv)
regular preventive maintenance works on the Systems as agreed in writing by
iAsiaWorks and iAdvantage from time to time;
"Variation" means a variation of this Agreement, made in accordance with
clause 27.
1.2 Interpretation
In this Agreement, reference to:
(a) one gender includes the other genders;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes individuals, bodies corporate (wherever
incorporated), unincorporated associations and partnerships; and
(d) a statute, regulation or provision of a statute or regulation
("Statutory Provision") includes:
(i) that Statutory Provision as amended or re-enacted from time to
time; and
(ii) a statute, regulation or provision enacted in replacement of that
Statutory Provision.
1.3 All monetary amounts are in the currency of the Hong Kong Special
Administrative Region (i.e. Hong Kong Dollars) unless otherwise stated.
1.4 "Including" and similar expressions are not words of limitation.
1.5 Where a word or expression is given a particular meaning, other parts of
speech and grammatical forms of that word or expression have a
corresponding meaning.
1.6 Headings are for convenience only and do not affect the interpretation, or
form part, of this Agreement.
1.7 If an act must be done on a specified day which is not a Business Day, the
act must be done instead on the next Business Day.
1.8 If any approval or consent is required to be given or obtained under or
pursuant to this Agreement, such approval or consent must not be
unreasonably conditioned, delayed or withheld.
1.9 All references to days and months mean calendar days and calendar months
unless otherwise specified.
2. SCOPE OF AGREEMENT
2.1 iAdvantage will commence performance of the Construction Services upon
iAsiaWorks executing this Agreement and paying to iAdvantage the First
Maintenance Fee Deposit.
2.2 iAsiaWorks shall execute the Lease within seven days of the Conditions
Precedent having been totally fulfilled or waived.
2.3 The Landlord will be obliged to grant the Lease upon execution of the Lease
by iAsiaWorks and payment of the Second Rental Deposit by iAsiaWorks.
2.4 iAdvantage will be obliged to commence performance of the Maintenance
Services and the Training Services upon the Commencement Date or upon
Substantial Completion, which ever event is earlier.
3. CONDITIONS PRECEDENT
3.1 The obligations of iAsiaWorks under this Agreement are subject to the
satisfaction of the following conditions precedent being fulfilled or
waived by no later than 14 February 2001 or such later date due to delay
caused by a Variation or Force Majeure Event or dispute resolution
proceedings validly initiated pursuant to clause 14:
(a) iAdvantage achieving Substantial Completion;
(b) the Landlord being in a position to deliver vacant possession of 7th
8th, 9th and 10th Floors and grant a licence to use part of the
6th Floor of the Premises as provided for in the Lease, to
iAsiaWorks;
(c) there being no breach of the representations or warranties by
iAdvantage under clauses 5.15(a), 5.15(d), 8.4 and/or 8.5 and by the
Landlord under
clauses 7.3, 8.4 and/or 8.5 respectively as at Substantial Completion,
subject always to the proviso of clause 5.15(a); and
(d) iAdvantage and/or the Landlord not having received notice from the
Government of the Hong Kong, SAR that the Government will not permit
the use of the Premises in accordance with the Lease.
3.2 Each party shall at its own cost do everything reasonably necessary on its
part to procure satisfaction of the conditions precedent as quickly as
possible, but in any event no later than the required time.
3.3 iAsiaWorks may waive any of the Conditions Precedents, in whole or in part,
by giving notice to the other parties.
3.4 If any condition precedent is not satisfied or waived within the time
specified in clause 3.1, iAsiaWorks may give iAdvantage or the Landlord, as
the case may be, written notice requiring such party to satisfy the
condition precedent within 45 days of such party's receipt of such notice
and if such party shall fail to satisfy such condition precedent by the
expiration of the said 45 days, iAsiaWorks may terminate this Agreement at
any time thereafter by giving notice in writing to the other parties. If
iAsiaWorks terminates this Agreement under this clause then, subject to
clauses 3.5 and 3.6, this Agreement has no further force or effect.
3.5 Termination by iAsiaWorks pursuant to clause 3.4 does not:
(a) affect rights or obligations arising from past failure to perform
obligations under this Agreement; or
(b) create any liability.
3.6 On termination of this Agreement due to (a) a Force Majeure Event or (b)
the default of iAdvantage or the Landlord, the recipient of any deposit,
guarantee or other payment made by iAsiaWorks pursuant to this Agreement,
shall unconditionally and immediately refund or return it (as the case may
require).
4. COMMENCEMENT DATE
The Commencement Date referred to in this Agreement shall be the date that
all of the following requirements have been satisfied:
(a) the Conditions Precedent having been totally fulfilled or waived; and
(b) the execution of the Lease by iAsiaWorks; and
(c) the granting of the Lease by the Landlord by delivering vacant
possession of the 7th, 8th, 9th and 10th Floors and a licence
to use part of the 6th Floor
of the Premises, to iAsiaWorks.
5. OBLIGATIONS AND REPRESENTATIONS OF iADVANTAGE
iAdvantage:
5.1 shall commence performance of the Construction Services upon the Execution
Date and the payment by iAsiaWorks of the First Maintenance Fee Deposit;
5.2 shall immediately return to iAsiaWorks the deposit paid under the Letter of
Intent upon iAsiaWorks' payment of the First Maintenance Deposit and the
First Rental Deposit;
5.3 shall, upon iAsiaWorks paying the Second Maintenance Fee Deposit to
iAdvantage and the Second Rental Deposit to the Landlord, immediately
release and waive, irrevocably and unconditionally, any claims it may
otherwise have to the First Deposit;
5.4 shall commence performance of the Maintenance Services and the Training
Services upon the Commencement Date or upon Substantial Completion,
whichever event is earlier, for the term of the Lease;
5.5 shall use its best efforts, but not be obliged, to achieve Substantial
Completion on or before 31 December, 2000. Should (a) iAdvantage fail to
achieve Substantial Completion on or before 14 February, 2001 for any
reason other than delays caused by a Variation or a Force Majeure Event or
dispute resolution proceedings validly initiated pursuant to clause 14,
iAdvantage shall pay to iAsiaWorks as liquidated damages, the sum of [*]
each day thereafter until iAdvantage achieves Substantial Completion. The
liquidated damages payable by iAdvantage to iAsiaWorks pursuant to this
clause will not in any event exceed [*], and will be full and final
settlement for all claims that iAsiaWorks may have or make in respect of
or concerning iAdvantage's delay in achieving Substantial Completion
("Specified Delay"). iAdvantage hereby acknowledges and agrees that the
liquidated damages it may be required to pay to iAsiaWorks pursuant to
this clause is a fair and reasonable pre-estimate of damages that
iAsiaWorks would suffer in the event of the Specified Delay and
irrevocably waives any rights it may have to argue, claim and/or plead
that the liquidated damages that may be payable under this clause
constitute a penalty or are otherwise unenforceable for any reason
whatsoever;
5.6 shall comply with the Implementation Schedule. iAdvantage shall not refuse
any reasonable request made by iAsiaWorks to modify the Implementation
Schedule.
5.7 shall either purchase the Insurance, or procure the Insurance to be
purchased by an appropriate person, prior to commencement of the Services
and maintain, or
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
procure, such Insurance to be maintained until Substantial Completion.
5.8 shall bear its own costs and charges of complying with its obligations
under this Agreement;
5.9 shall obtain and maintain all necessary approvals, licences and permissions
that it may require from time to time to perform the Services;
5.10 shall diligently perform the Services in accordance with this Agreement.
Should it be determined pursuant to the dispute resolution procedures
contained in clause 14 that iAdvantage fails to diligently perform the
Maintenance Services or the Training Services, iAsiaWorks will be entitled
to deduct from the Maintenance Fee for the period when, as determined
through the dispute resolution procedures, the Maintenance Services or the
Training Services are not diligently performed, such amount to be
equivalent to the product of (i) [*] and multiplied by (ii) the total
amount of square footage occupied by iAsiaWorks, pursuant to this Agreement
per month (or part thereof), during the period when the Maintenance
Services or the Training Services are not diligently performed. In the
event that the entitled deduction cannot for any reason be made from the
Maintenance Fee, the amount shall be payable by iAdvantage as liquidated
damages. iAdvantage and Landlord hereby acknowledge and agree that such an
arrangement is a fair and reasonable pre-estimate of damages that
iAsiaWorks would suffer in the event of such failure to diligently perform
the Maintenance Services or the Training Services and irrevocably waive any
rights they may have to argue, claim and/or plead that such discount
constitutes a penalty or is otherwise unenforceable for any reason
whatsoever;
5.11 shall co-operate, and procure the co-operation of its agents, contractors,
sub-contractors, and the Landlord and its agents, with the reasonable
requests of the agents, contractors and sub-contractors of iAsiaWorks;
5.12 shall provide such information that iAsiaWorks may reasonably request from
time to time for the purposes of ensuring the timely performance of
iAdvantage's obligations under this Agreement;
5.13 shall promptly notify iAsiaWorks of any defects in Systems or Software
that may come to its attention or the attention of its agents, contractors
and/or sub-contractors, in the course of performing the Services;
5.14 shall accept the assignment of the Anton Pillar Agreement from iAsiaWorks
within fourteen days of the Execution Date;
5.15 represents and warrants:
(a) that it possesses all the rights, approvals, licenses and permissions
necessary to perform the Services upon the Premises and will maintain
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
such rights, approvals, licenses and permissions for the duration of
the term of this Agreement and the Lease provided that such
representation and warranties do not include any representation or
warranty in relation to the rights, approval, licence or permission
in respect of iAsiaWorks' use of the Premises under the Lease for its
Activities;
(b) that each of the persons performing the Services, whether employees of
iAdvantage, its agents, contractors or sub-contractors will be
suitably qualified and experienced to perform such Services, will do
so diligently and will use all the care, skill and responsibility
reasonably expected from a qualified and experienced provider of
comparable services in Hong Kong;
(c) the System will, be constructed, function and perform in accordance
with corresponding Specifications; and
(d) the performance of its obligations under this Agreement will not
infringe the intellectual property rights of any third party.
6 OBLIGATIONS OF iASIAWORKS
iAsiaWorks:
6.1 shall pay to iAdvantage:
(a) the First Maintenance Fee Deposit within 7 days after the Execution
Date; and
(b) the Second Maintenance Fee Deposit and one month's Maintenance Fee in
advance within 7 days of the Conditions Precedent having been totally
fulfilled or waived;
6.2 shall pay to the Landlord :
(a) the First Rental Deposit and one half share of stamp duty concerning
this Agreement, within 7 days after the Execution Date; and
(b) the Second Rental Deposit, one month's Rent in advance and a one half
share of stamp duty and registration fee concerning the Lease within
seven days of the Conditions Precedent having been totally fulfilled or
waived.
6.3 shall execute the Lease within seven days of the Conditions Precedent
having been totally fulfilled or waived.
6.4 shall appoint an agent, the particulars of which must be notified to
iAdvantage (on its own behalf and as agent for the Landlord), to act on
behalf of iAsiaWorks for
the sole purposes of liaising with iAdvantage in respect of and concerning
the performance of the Services, Testing, Substantial Completion and Final
Acceptance (as that term is defined in clause 10.4).
6.5 shall not undertake any structural, electrical or mechanical works of a
material nature, without first obtaining the written approval of
iAdvantage. In the event iAsiaWorks desires to undertake such works it
shall provide to iAdvantage reasonably detailed drawings and specifications
concerning the works that it desires to undertake, together with schematic
sketches indicating intent as to design and layout. Any approval that
iAdvantage may notify under this clause will not constitute a
representation that the iAsiaWorks plans comply with applicable laws and
regulations from time to time in force under the laws of Hong Kong and will
not release iAsiaWorks from any obligation to ensure and maintain such
compliance. iAsiaWorks will be responsible for obtaining and maintaining
all necessary government approvals and consents prior to the commencement
of such works.
6.6 (a) shall not, prior to the Commencement Date, do or, in respect of such
persons as it may control, permit anything that would constitute a breach
of the Government Grant, the Deed of Mutual Covenant, Management Agreement
and Sub-Deed of Mutual Covenant, if any, in respect of the Building ("Title
Documents") and (b) will indemnify the Landlord against any breach of this
sub- clause 6.6(a).
6.7 shall bear its own costs and charges of complying with its obligations
under this Agreement.
6.8 shall co-operate, and procure the co-operation of its agents, contractors
and sub-contractors, with the reasonable requests of the agents,
contractors and sub-contractors of iAdvantage.
6.9 shall promptly provide such information that iAdvantage may reasonably
request from time to time for the purposes of ensuring the timely
performance of the Services.
6.10 shall promptly notify iAdvantage of any defects in the Systems that may
come to its attention or the attention of its agents, employees or
customers.
6.11 shall, except as otherwise provided for in this Agreement, pay to
iAdvantage the Maintenance Fee set out in Schedule 10 on the first day of
each and every calendar month without any deduction whatsoever (whether
legal or equitable) from the 7th day of the Conditions Precedent having
been totally fulfilled or waived until the expiration of the term or
renewed term of the Lease.
6.12 shall enter into the Anton Pillar Agreement containing the terms of the
main contract by iAdvantage has entered into with its main contractor, the
sample of which is set out in Schedule 8, and assign its rights and
benefits under the Anton
Pillar Agreement within two weeks from the Execution Date.
7. OBLIGATIONS AND REPRESENTATIONS OF THE LANDLORD
The Landlord:
7.1 must, subject to iAsiaWorks complying with its obligations hereunder, grant
the Lease to iAsiaWorks on the 7th day of the Conditions Precedent having
been totally fulfilled or waived.
7.2 shall bear its own costs and charges of complying with its obligations
under this Agreement and a half share of the stamp duty chargeable to this
Agreement and the Lease.
7.3 shall not unreasonably condition delay or refuse to execute the Memorandum.
7.4 represents and warrants:
(a) that iAdvantage is acting as its authorised agent ("Agent") in respect
of and concerning the matters dealt with under clauses 3.3, 6.2 (in
respect of payments by cheque or telegraphic transfer), 6.4, 6.5, 7.5,
14.11 and 27.2;
(b) that it will not revoke the Agent's authority without nominating a
replacement and notifying iAsiaWorks;
(c) that it is, or will be as of the Commencement Date, the registered
owner of the Premises.
7.5 No warranty or representation is given whether the Premises or the Building
may be occupied for the purpose for which iAsiaWorks proposes to use the
same under the Lease. In the event that there shall be any legally valid
objection from the Government of Hong Kong SAR in respect of iAsiaWorks'
use of the Premises for the Activities, the Landlord shall be responsible
at the Landlord's own costs for (a) obtaining such approval, consent waiver
or modification as may be required to allow the Premises to be used for the
Activities including the payment of all costs and expenses incurred
including any premium, administrative fee, consent fee, approval fee,
waiver fee, premium or penalty and (b) keeping iAsiaWorks informed of such
events. In the event all reasonable efforts having been made by the
Landlord the Government shall maintain its objection to iAsiaWorks' use of
the Premises for the Activities, iAsiaWorks may terminate this Agreement
and the Lease at any time thereafter by giving notice in writing to the
other parties whereupon this Agreement and the Lease shall terminate and be
of no further force or effect and neither party shall have any claim
against the other thereafter, save and except for any claim for antecedent
breaches.
8. MUTUAL OBLIGATIONS, REPRESENTATIONS AND WARRANTIES
8.1 Within seven days after the Execution Date, iAdvantage and iAsiaWorks will
each appoint a representative ("Representative") (and notify such
appointment to the other) to deal with all technical matters concerning the
performance of the Services by iAdvantage, and the co-ordination of each
party's respective activities in relation to this Agreement. iAdvantage
and iAsiaWorks shall appoint a Representative on site at all times who
shall use its best efforts to respond to any request (whether written or
oral) for instructions from the other party within 24 hours of such
request.
8.2 The Representatives shall (and each party shall procure that its
Representative) co-operate in good faith and use all reasonable efforts to
complete all joint work in respect of and concerning the matters
contemplated under this Agreement. If there is any problem or dispute
between the Representatives, the parties shall analyse the problem,
endeavour to clarify respective responsibilities and use their best efforts
to resolve the dispute through friendly consultation. During Installation
and Testing the Representatives shall report weekly on the progress of
work, the main accomplishments of that week, any material problems that
have arisen and suggested solutions to resolve problems (where they have
arisen or are likely to arise).
8.3 Neither iAdvantage nor the Landlord shall: (a) unreasonably deny access to
the Building or the Premises by; or (b) unfairly discriminate against, any
licensee under the Telecommunication Ordinance (Cap.106 of the Laws of Hong
Kong) ("TO Licensee") that may be requested by iAsiaWorks or the TO
Licensee to provide services to iAsiaWorks from time to time, during the
term of the Lease.
Each of the parties represents and warrants to the other:
8.4 it has the requisite authority to perform its respective obligations under
this Agreement and, in the case of iAsiaWorks and the Landlord, the Lease;
and
8.5 the execution of this Agreement and, in the case of iAsiaWorks and the
Landlord, the Lease, does not violate any provision of its bylaws, articles
of association, or other governing authority; and
8.6 it shall, whenever it anticipates it will not be able to comply with an
obligation under this Agreement, promptly notify in writing the parties
that may be prejudiced by such non-compliance, submit proposed revisions
which reflect best estimates of what can realistically be achieved and,
where feasible, continue to work under the original schedule until agreed
otherwise; and
8.7 it shall take substantive steps, on a best effort basis and in accordance
with professional internet securities practices (now in use or as such
practices may change from time to time), for the purpose of protecting the
other parties' network that is connected to the Systems pursuant to this
Agreement, from denial of
service attacks, the presence of harmful viruses, worms, spiders, web
crawlers, data miners, wanderers, agents or any other harmful device or
process originating from its managed network; and
8.8 it shall use best efforts to assist the registration of the Memorandum (as
approved by the Landlord) with the Land Registry.
9. TESTING
9.1 Testing of Hardware, Software and Systems will be as specified in Schedule
9 and conducted before an independent third party to be agreed in writing
between iAdvantage and iAsiaWorks.
9.2 iAdvantage is responsible, at its sole cost and expense, for Installation
and Testing, in accordance with this Agreement.
9.3 Seven days prior to the scheduled commencement of any Testing, iAdvantage
shall notify iAsiaWorks of the recommended Test procedures to be executed
by iAdvantage ("Recommended Procedures"). The Recommended Procedures shall
conform with Schedule 9 and be designed to ensure the conformity of the
relevant Systems to applicable Specifications. The Recommended Procedures
will be deemed accepted unless iAsiaWorks notifies iAdvantage of its non-
acceptance within seven days after receiving the Recommended Procedures.
If the Recommended Procedures are not mutually agreed upon by iAdvantage
and iAsiaWorks, acting reasonably, prior to the date scheduled for the
commencement of such Tests, the Recommended Procedures shall be modified
as may be reasonably and legitimately requested by iAsiaWorks'
Representative.
10. SUBSTANTIAL COMPLETION AND FINAL ACCEPTANCE
10.1 Upon iAdvantage being satisfied it has substantially completed
Installation and Testing, it shall notify iAsiaWorks by presenting to
iAsiaWorks a certificate from iAdvantage's qualified architect.
Substantial completion will be deemed to have occurred unless iAsiaWorks
notifies iAdvantage of its non-acceptance within fourteen days after
receiving a substantial completion notice ("Substantial Completion"). If
any dispute between iAdvantage and iAsiaWorks, acting reasonably, is not
resolved within fourteen days after iAsiaWorks has notified non-
acceptance, either party may refer the matter to an arbitrator pursuant to
clause 14.10.
10.2 Upon Testing, the Representatives will prepare a check-list of all defects
and other items to be completed or corrected by iAdvantage ("Punch List")
prior to Final Acceptance (as that term is defined in clause 10.4) . The
Representatives will use their best efforts to complete the Punch List
prior to Substantial Completion.
10.3 iAdvantage shall use its best efforts to complete or correct the items
listed in the Punch List, as soon as reasonably practicable and
commensurate with the gravity of inconvenience such outstanding items may
cause to iAsiaWorks and the undertaking of its Activities, but in any
event will use best efforts to conclude all completions and corrections
within sixty (60) days of the Punch List being completed. If iAdvantage
shall fail to complete or correct the Punch List items, iAsiaWorks may (a)
direct iAdvantage to cease any work to complete or correct any Punch List
item; (b) appoint a third party to do so; (c) deduct the costs of the
third party ("Third Party Costs") from the Retention Monies accumulated up
to that point of time and (d) deduct from the next payment of Maintenance
Fee an amount equal to the Third Party Costs over and above Retention
Monies accumulated up to that point of time in full and final settlement
of iAdvantage's obligations hereunder, to complete or correct a
corresponding Punch List item.
10.4 Following 12 months continuous Trouble Free Operation subsequent to
Substantial Completion and in the absence of any reasonable objection in
writing by iAsiaWorks, iAsiaWorks is deemed to have accepted the
performance of iAdvantage's obligations in respect of the Installation
("Final Acceptance").
10.5 For a period of 12 months from the Commencement Date ("Defect Period"),
iAsiaWorks will be entitled to withhold from the Landlord an amount equal
to five percent (5%) of the monthly Maintenance Fee and Rent payable under
this Agreement and the Lease ("Retention Monies"), until Final Acceptance.
In the event iAdvantage does not correct any Punch List item or other
defective item that may be notified by iAsiaWorks to iAdvantage within the
Defect Period, iAsiaWorks may (a) direct iAdvantage to cease any work to
complete or correct any Punch List item or other defective item; (b)
appoint a third party to do so; (c) deduct the costs of the third party
from the Retention Monies; and (d) to continue to withhold such portion of
the Retention Monies to pay estimated costs of any of the Punch List items
or other defective items not rectified within the Defect Period and only
release the balance thereof after such rectification. In the event the
costs of the third party exceed the Retention Monies, iAdvantage shall
promptly pay to iAsiaWorks an amount equal to the difference between the
costs of the third party and the Retention Monies in full and final
settlement of iAdvantage's obligations hereunder.
10.6 Upon Final Acceptance, iAsiaWorks' right to deduct the Retention Monies
will cease and iAsiaWorks shall pay to the Landlord and iAdvantage all
Retention Monies, less such sums that iAsiaWorks has validly paid to third
parties pursuant to clause 10.5.
11. ASSIGNMENT AND SUBCONTRACTS
11.1 Except for assignments to a party's subsidiary (subject to the prior
written consent of the other parties) or assignment that may be required
in the course of a merger, acquisition or sale of the party's assets
(Provided Always that such assignment
shall be effected to assign all such party's rights and liabilities to a
company of equal or better credibility and financial state carrying out
the business relating to telecommunication and/or internet service), a
party may not assign or otherwise deal with the whole or any part of this
Agreement. Any attempted assignment without the prior written consent of
every other party shall be null and void.
11.2 iAdvantage shall remain primarily liable to perform its obligations under
this Agreement notwithstanding any sub-contracting to any third party.
12. CONTINUING OBLIGATIONS
Each obligation and warranty set forth in this Agreement which is capable
of having future operation shall continue in force although this Agreement
has otherwise been fully performed.
13. CONFIDENTIALITY
13.1 In this clause unless the context otherwise requires:
(a) "Approved Purposes" means the purposes of this Agreement, and include
applying to a bank or other financial institution for financial
assistance relating to the subject matter of this Agreement or
registration of this Agreement at the relevant Land Registry; and
(b) "Notes" means notes which relate to, summaries and copies of and
extracts from any Confidential Information whether in documentary,
visual, machine readable or other form.
13.2 Each party shall:
(a) maintain and take all steps necessary to maintain all Confidential
Information and all Notes of a Releasing Party in strictest
confidence;
(b) not disclose, any of the Confidential Information or Notes of
another party ("the Releasing Party") without the prior consent of
the Releasing Party to any person other than (i) potential sources
of financing and (ii) those of its directors, officers, employees,
advisors, consultants, contractors, auditors and agents
(collectively, the "Appointees") who are required to receive and
consider the Confidential Information in the course of (and solely
for) the Approved Purposes, and require such potential sources of
financing and Representatives to comply with this clause 13;
(c) use Confidential Information and Notes solely for the Approved
Purposes;
(d) not make Notes or allow Notes to be made except as necessary in
connection with the Approved Purposes;
(e) keep confidential the fact that Confidential Information has been
provided by a party; and
(f) not expressly or impliedly disclose the existence of Confidential
Information or Notes.
13.3 Clause 13.2 does not impose obligations on a party concerning Confidential
Information disclosed to it which the receiving party proves (on the
balance of probabilities):-
(a) at the date of this Agreement, is publicly available;
(b) subsequent to the date of this Agreement, becomes publicly available
without breach of this Agreement;
(c) that it was obtained from a third party without breach by that third
party of any obligation of confidence concerning that Confidential
Information; or
(d) was already in its possession (as evidenced by written records) when
provided by or on behalf of the Releasing Party
13.4 It is not a breach of clause 13.2 for a party to disclose Confidential
Information which it is obliged by law to disclose to the person to whom
it is disclosed.
13.5 A party in receipt of Confidential Information of another party must
return all documents and other media which contain Confidential
Information and deliver all Notes to the Releasing Party immediately when
requested by the Releasing Party or upon expiry or earlier termination of
this Agreement unless the relevant party is contractually entitled to
retain such document containing Confidential Information.
13.6 Each party shall at the same time as it returns the Confidential
Information and Notes referred to in clause 13.5, also use its best
efforts to procure its officers, employees and agents return any of the
documents and Notes held by them.
13.7 If a party is required, or anticipates or has cause to anticipate that it
may be required, by law or court order to disclose Confidential
Information or Notes, it shall promptly notify the Releasing Party of the
actual or anticipated requirement and use reasonable efforts (without
breach of applicable law) to delay and withhold disclosure until the
notified party has had a reasonable opportunity to oppose disclosure by
lawful means.
13.8 Each party acknowledges that:-
(a) the Confidential Information is at all times the property of the
Releasing Party;
(b) a breach of this clause would be harmful to the business interests of
the Releasing Party;
(c) monetary damages alone would not be a sufficient remedy for a breach
of this clause; and
(d) in addition to any other remedy which may be available in law or
equity a Releasing Party is entitled to interim, interlocutory and
permanent injunctions or any of them to prevent breach of this clause
and to compel specific performance of it.
13.9 Each party shall refrain from making any public announcement regarding
matters contained in this Agreement without the prior written approval of
the other party. The parties shall agree on the content of any such
disclosure.
14. DISPUTE RESOLUTION
14.1 A dispute arises for the purpose of this clause 14 on the date which a
party notifies the other party of the existence of the dispute and its
intention to resolve the dispute in accordance with this clause 14.
14.2 Save in the case of a dispute concerning Substantial Completion which
shall be resolved in accordance with clause 14.10 hereunder, before
resorting to arbitration the parties shall:
(a) use reasonable efforts to attempt to resolve the dispute through an
inter-party working group formed in accordance with clause 14.4; and
(b) in the event that the dispute is not resolved by the inter-party
working group under subclause 14.2(a) within seven (7) Business Days
of the dispute being notified, escalate the dispute to senior
management, which shall include managers holding the actual or
equivalent positions of Vice President or higher ("Senior Management
Date").
14.3 If senior management is unable to resolve the dispute within fifteen (15)
Business Days of the Senior Management Date the parties may refer the
dispute to arbitration.
14.4 For the purpose of sub-clause 14.2(a), an inter-party working group will
comprise two nominated representatives from each party (a total of 4
persons), who have a detailed working knowledge of the dispute and a
sufficient level of authority to resolve the dispute on behalf of the
party whom they represent. The administrative functions of the working
group are to be shared equally between
the parties. Each party shall bear its own administrative costs. The
parties shall form the inter-party working group within two (2) Business
Days of a dispute being notified.
14.5 Subject to the other provisions of this Agreement, the parties shall
continue to comply with their respective obligations under this Agreement
while a dispute is pending resolution, with any dispute resolution
activities undertaken in accordance with this section 14.
14.6 If the parties are unable to reach a consensual settlement (either through
an inter-party working group or through senior management) within twenty
one (21) Business Days after the first written communication sent
hereunder, either party may commence arbitration hereunder.
14.7 Any claim or dispute arising out of, in connection with or relating to
this Agreement, including any question concerning its existence, validity,
termination or interpretation which is not resolved by an inter-party
working group or through senior management, shall be fully and finally
settled under and resolved by binding and mandatory arbitration to be
conducted in accordance with this clause 14. Such arbitration shall,
subject to the Arbitration Ordinance (Cap.341 of the Laws of Hong Kong),
be the exclusive means and procedure to finally settle any such claims.
14.8 Notwithstanding any other law, rule or regulation to the contrary, the
parties agree that this clause 14 will be interpreted and construed as a
presently effective and enforceable written agreement to arbitrate, and
must be given effect as such, and the parties' signature to this Agreement
will constitute prima facie evidence of the existence of a valid written
agreement to arbitrate.
14.9 Except as provided for in the Arbitration Ordinance, the parties hereby
expressly waive any right that they may have to require the exhaustion of
local administrative, judicial or alternative dispute resolution remedies
as a condition of any interim remedy proceeding being brought or commenced
under this Agreement by either of the parties hereto.
14.10 Any dispute between or among the parties shall be settled by arbitration
at the initiation of either party in the Hong Kong Special Administrative
Region in accordance with the provisions of the Arbitration Ordinance).
Any arbitration shall be conducted in the English language.
14.11 Any arbitration will be conducted before one single arbitrator to be
jointly appointed by iAsiaWorks and iAdvantage failing agreement to be
nominated by the Chairman of the Hong Kong Institute of Surveyors or such
organisation that may replace it from time to time. The arbitrator will be
paid for his or her services at a rate to be determined by the parties and
failing agreement to be determined by the Chairman of the Hong Kong
Institute of Surveyors or such organisation that may replace it from time
to time, based upon reasonable hourly
or daily consulting rates for the arbitrator in the event the parties are
not able to agree upon his or her rate of compensation.
14.12 Upon the conclusion of any arbitration proceedings hereunder, the
arbitrator will render findings of fact and conclusions of law and a
written opinion setting forth the basis and reasons for any decision
reached and will deliver such documents to the parties to the dispute,
along with a signed copy of the award. The arbitrator chosen in
accordance with these provisions will not have the power to alter, amend
or otherwise affect the terms of the arbitration provisions set forth
herein or any other provision of this Agreement. The final decision of
the arbitrator will be furnished to the parties in writing and will
constitute a conclusive determination of the issue in question, binding
upon such parties. Any monetary award rendered by the arbitrator shall be
in the currency of the Hong Kong Special Administrative Region and the
arbitrator may award such pre-award or post-award interest, simple or
compound, as such arbitrator consider appropriate.
15. ENTIRE AGREEMENT
15.1 This Agreement:
(a) contains the entire agreement and understanding between the parties
on everything connected with the subject matter of this Agreement;
and
(b) supersedes any prior agreement or understanding on anything
connected with that subject matter, including the Letter of Intent,
which Letter of Intent is hereby terminated.
15.2 Except as provided for in this Agreement, each party has entered into
this Agreement without relying on any representation by any other party
or any person purporting to represent that party.
16. FORCE MAJEURE
16.1 If a party ("Affected Party"):
(a) is affected in performing an obligation (other than to pay money) by
a Force Majeure Event;
(b) as soon as possible after the Force Majeure Event occurs notifies
the other party of full particulars of:
(i) the Force Majeure Event;
(ii) the effect of the Force Majeure Event on performance of the
Affected Party's obligations;
(iii) the anticipated period of delay; and
(iv) the action (if any) the Affected Party intends to take to
mitigate or remove the effect and delay; and
(c) promptly and diligently acts to mitigate or remove the Force Majeure
Event and its effect;
then:
(d) if the Affected Party is permanently prevented from performing the
obligation by the Force Majeure Event, the Affected Party is released
from the obligation; and
(e) if the Affected Party is delayed in performing the obligation by the
Force Majeure Event, the obligation is suspended during, but for no
longer than, the period the Force Majeure Event continues; provided,
however, that in the event a Force Majeure Event should last more than
six (6) consecutive months or one hundred eighty (180) days, either
party shall be entitled to terminate the Agreement.
16.2 Nothing in clause 16.1(c) or clause 16.3 obliges the Affected Party to
settle any strike, lockout, ban, limitation of work or other industrial
dispute.
16.3 In this clause 16, "Force Majeure Event" means any of the following
events:
(I)
(a) act of God; or
(b) war, riot, insurrection; or
(c) strike, lockout, ban, limitation of work or other industrial dispute;
or
(d) law, rule or regulation of any government or governmental agency, and
executive or administrative order or act of general or particular
application; or
(e) delay in delivery of any of the Systems by the manufacturer or
supplier thereof; or
(f) such other causes;
which:
(i) is unforeseen by the Affected Party; or
(ii) beyond the control of the Affected Party; and
(iii) occurs without the fault or negligence of the Affected Party.
(II)
iAsiaWorks refuses to assign its rights and obligations under the Anton
Pillar Agreement, within fourteen days of the Execution Date or the
supplier under the Anton Pillar Agreement fails to deliver two diesel
rotary UPS systems to be placed in position on site in the Premises by
1st December 2000 and one diesel rotary UPS systems to be placed in
position on site in the Premises by 5th December 2000, without the fault
or negligence of iAdvantage.
17. FURTHER ASSURANCES
Each party agrees that it will at its own cost do all things (including
executing all documents reasonably acceptable to such party) reasonably
necessary or desirable to give full effect to this Agreement although not
specifically provided for.
18. GOVERNING LAW
18.1 The law of the Hong Kong Special Administrative Region governs this
Agreement.
18.2 The parties submit to the jurisdiction of the courts of the Hong Kong
Special Administrative Region.
19. INCONSISTENCY
To the extent that there is an inconsistency between a provision in any of
the documents referred to in sub-clause 19(b) and another provision in any
of them or between a provision in any of those documents and a provision in
any other document referred to in any of them:
(a) a specific provision takes precedence over a general provision; and
(b) otherwise, to the extent necessary to resolve the inconsistency, the
following order of precedence applies:-
(i) this Agreement;
(ii) the Lease;
(iii) the Specifications; and
(iv) all other Schedules.
20. NOMINATED CONTRACTORS
iAdvantage shall allow (and where reasonably necessary, procure other persons
to allow) iAsiaWorks's nominated contractors (not more than ten in any
event)( "Nominated Contractors") to enter the Premises or any part thereof
prior to the Commencement Date for the purpose of carrying out non structural
installation or fitting out works, on the following conditions:
(a) the Nominated Contractors shall enter the Premises as a sub-contractor
of iAdvantage's main contractor and shall obey and comply with all reasonable
instructions and directions from iAdvantage's main contractor;
(b) subject to clause 21, iAsiaWorks shall indemnify iAdvantage against all
claims demands actions proceedings loss damages costs and expenses arising
from the acts, omissions, default and negligence of the Nominated
Contractors;
(c) the Nominated Contractors shall not do or cause anything to be done
that may adversely affect iAdvantage's obligations to perform the Services or
any of iAdvantage's or the Landlord's work in any part of the Building or the
issuance of the Occupation Permit; and
(d) iAdvantage shall be entitled to revoke this licence and offending
Nominated Contractors shall immediately vacate the Premises and the Building
upon notification (whether in writing or orally) by iAdvantage or its main
contractor that the offending Nominated Contractor has failed to remedy any
remediable act or omission within 24 hours or such shorter period as the
circumstance may demand.
21. LIMITATION OF LIABILITY
21.1 Except for:
(a) liquidated damages pursuant to clause 5.5 or clause 28;
(b) a breach of clause 13; or
(c) any breach of this Agreement, the Lease or the Letter of Intent that
is due to a reckless act or omission or willful misconduct by a
party's employee, agent, contractor or subcontractor,
no party will be liable to any other party for any incidental, indirect,
consequential or special damages of any nature whatsoever (including to
loss or damage resulting from loss of use, loss of profits or revenues,
costs of capital, loss of goodwill, claims of customers, or fines and
penalties) or any claim in tort.
21.2 The maximum aggregated liability of each party to the other under or in
respect of this Agreement and the Lease, excluding liquidated damages
pursuant to clause 5.5 or clause 28, will be *.
22. NON-SOLICITATION
22.1 Each party agrees that during a period from the Execution Date to twelve
months after the expiration or earlier termination of this Agreement or
twelve months after the termination of an employee's employment, whichever
shall be the earlier, it shall not directly or indirectly solicit or offer
employment or engagement to any of the other party's employees, who have
been involved in the performance, supervision or co-ordination of the
Services, without the other party's prior agreement in writing.
22.2 Each party agrees that if it employs or engages any person contrary to the
provisions of clause 22.1 above, the party in default shall be liable to
pay to the other party liquidated damages in an amount equal to the charge
for one year's work by that person at his then current fee or salary rate.
Each party acknowledges and agrees that the liquidated damages it may be
required to pay to another party under this clause is a fair and
reasonable pre-estimate of damages a party may suffer and irrevocably
waives any rights it may have to argue, claim and/or plead that the
liquidated damages payable, constitutes a penalty or is otherwise
unenforceable for any reason whatsoever.
23. NOTICES
23.1 A notice or other communication connected with this Agreement has no legal
effect unless it is in writing and;
(a) delivered; or
(b) sent by post
to the address of the addressee set out in this Agreement or subsequently
notified from time to time in accordance with this clause 23; or
(c) sent by electronic mail ("Email") to the Email address of the
specified representative of that party as may be from time to time
notified by that representative. The Email address of the respective
specified representative of the parties as at the Execution Date are:
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Name of specified representative Email address
-------------------------------- -------------
For iAdvantage and the Landlord:-
* *
For iAsiaWorks:
* *
23.2 A notice or other communication is deemed given and received:
(a) if delivered, upon delivery;
(b) if electronically mailed, upon the issue of an electronic
delivery receipt;
(c) if posted, on the expiration of 2 Business Days (at the place of
posting) after mailing.
24. SEVERABILITY
If anything in this Agreement is unenforceable, illegal or void then
it is severed from this Agreement and the rest of this Agreement
remains in force.
25. TERMINATION
25.1 This Agreement shall terminate upon the expiration of the Lease or
renewal thereof or earlier termination of the Lease.
25.2 After termination of this Agreement and the Lease, the ownership of
the Systems shall remain with iAdvantage and iAdvantage shall be
entitled to deal with them in such manner as it thinks fit at its sole
discretion.
26. TIME OF THE ESSENCE
26.1 Unless otherwise specifically provided, time is of the essence of this
Agreement.
26.2 If the parties agree to vary a time requirement, the time requirement
so varied is of the essence of this Agreement.
26.3 An agreement to vary a time requirement must be in writing signed by
all relevant parties.
27. VARIATIONS
27.1 An amendment or variation to this Agreement is not effective unless it
is in writing and signed by the parties.
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
27.2 Subject to clause 27.3, all Variations must be agreed between
iAdvantage (on its own behalf and as agent for the Landlord) and
iAsiaWorks.
27.3 In the event a Variation is reasonably requested by iAsiaWorks on or
before 1st September 2000, and the parties are unable to agree (on
the requested Variation or corresponding adjustments), iAsiaWorks may
direct iAdvantage to comply with the Variation reasonably requested
and iAdvantage shall promptly do so if, and only if, it is reasonably
technically feasible and does not adversely and materially affect the
issuance of the Occupation Permit. iAdvantage shall use its best
efforts to minimize any adverse effects an agreed or directed
Variation may have upon the Cost Formula and the Implementation
Schedule. Any additional expenditure shall be borne by iAsiaWorks. For
the avoidance of doubt, iAdvantage shall not be obliged to entertain
any request for Variation after 1st September 2000.
27.4 Should iAsiaWorks and iAdvantage agree, or should iAsiaWorks exercise
its rights under clause 27.3, in respect of a Variation the
Maintenance Fee, the Rent and Management Fee payable under this
Agreement and under the Lease shall be varied to reflect any increase
or decrease in the Cost Formula, arising from a Variation.
28. DEPOSITS
The parties agree that:-
28.1 the First Maintenance Fee Deposit and the Second Maintenance Fee
Deposit shall be held by iAdvantage subject to the following
conditions:
(a) the First Maintenance Fee Deposit shall be held by iAdvantage
free of any interest to iAsiaWorks and shall remain valid until
the issuance of a replacement bank guarantee for the same amount
as the Second Maintenance Fee Deposit in accordance with the
terms of this Agreement;
(b) the Second Maintenance Fee Deposit shall be held by iAdvantage
free of any interest to iAsiaWorks and shall remain valid until
the issuance of a replacement bank guarantee for a revised amount
in accordance with sub-clause (c) hereunder or 30 days after the
expiration or sooner determination of this Agreement whichever
shall be the later;
(c) if at any time the Maintenance Fee payable by iAsiaWorks
hereunder shall increase iAsiaWorks shall within 30 days from the
agreement or determination of such increase produce a replacement
bank guarantee or further bank guarantee to make up the total
amount of the Maintenance Fee Deposit held by iAdvantage to be
equivalent to three months' increased Maintenance Fee;
(d) iAsiaWorks shall forfeit to iAdvantage as liquidated damages the
First Maintenance Fee Deposit or the Second Maintenance Deposit,
as the case may be, in the event that iAsiaWorks refuses to enter
into the Lease or commits a breach of any of its material
obligations under this Agreement or the Lease, as the case may
be, and fails to remedy such breach, non-observance non-
performance or non-compliance within fourteen (14) days of
receipt of a written notice from iAdvantage or the Landlord, as
applicable. Upon forfeiture hereunder, iAdvantage shall be
entitled to terminate this Agreement and the Landlord shall be
entitled to terminate the Lease forthwith. The liquidated damages
payable by iAsiaWorks to iAdvantage pursuant to this clause shall
not prejudice any right of iAdvantage or the Landlord to claim
any further loss or damages provided such claims shall not exceed
*,or any other remedies to which it may be entitled, including
a decree for specific performance. iAsiaWorks hereby waives any
rights it may have to argue, claim and/or plead that the
liquidated damages that may be payable under this clause
constitute a penalty or are otherwise unenforceable for any
reason whatsoever;
(e) at any time the Maintenance Fee payable by iAsiaWorks hereunder
shall increase in accordance with this Agreement iAsiaWorks shall
within 30 days from the agreement or determination of such
increase produce a replacement bank guarantee or further bank
guarantee to make up the total amount of the Maintenance Fee
Deposit held by iAdvantage to be equivalent to three months'
increased Maintenance Fee and failure to produce such replacement
or further bank guarantee by iAsiaWorks shall justify termination
of this Agreement by iAdvantage and the forfeiture of the Lease
by the Landlord;
(f) on termination of this Agreement due to (a) a Force Majeure Event
or (b) the default of iAdvantage the First Maintenance Deposit or
the Second Maintenance Deposit, as the case may be, or other
payment made by iAsiaWorks pursuant to this Agreement, iAdvantage
shall unconditionally and immediately refund or return it (as the
case may require);
(g) on termination of this Agreement pursuant to clause 25.1, the
Second Maintenance Fee Deposit shall be returned to iAsiaWorks
within 30 days after such termination.
28.2 The First Rental Deposit and the Second Rental Deposit shall be held
by the Landlord in accordance with the provisions of the Lease and
subject to the following conditions:
(a) iAsiaWorks shall forfeit to the Landlord as liquidated damages
the First Rental Deposit in the event that iAsiaWorks refuses to
enter into the Lease or commits a breach of any of its material
obligations under this Agreement, as the case may be, and fails
to remedy such breach, non-observance non-performance or non-
compliance within fourteen (14) days of receipt of a
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
written notice from the Landlord. Upon forfeiture hereunder,
iAdvantage shall be entitled to terminate this Agreement and the
Landlord shall be entitled to terminate the Lease forthwith. The
liquidated damages payable by iAsiaWorks to the Landlord pursuant
to this clause shall not prejudice any right of iAdvantage or the
Landlord to claim any further loss or damages provided such
claims shall not exceed *, or any other remedies to which it
may be entitled, including a decree for specific performance.
iAsiaWorks hereby waives any rights it may have to argue, claim
and/or plead that the liquidated damages that may be payable
under this clause constitute a penalty or are otherwise
unenforceable for any reason whatsoever;
(b) on termination of this Agreement prior to the commencement of the
Lease due to (a) a Force Majeure Event or (b) the default of the
Landlord, the First Rental Deposit, or other payment made by
iAsiaWorks to the Landlord pursuant to this Agreement, shall
unconditionally and immediately refund or return it (as the case
may require).
28.3 For the avoidance of any doubt, the liability of iAsiaWorks under this
clause 28, shall not in any event exceed an aggregated total of *,
in respect of any claims by iAdvantage and the Landlord.
29. PHASED HANDOVER
29.1 The parties agree that the Premises will be handed over to iAsiaWorks
on the following dates:
(a) in respect of the 7th, 8th, 9th and 10th Floors (including the
granting of the licence to use part of the 6th Floor as
provided in the Lease) within 7 days after the Conditions
Precedents having been totally fulfilled or waived;
(b) in respect of the 11th Floor, on the expiration of three months
from the Commencement Date; and
(c) in respect of 12th Floor, on the expiration of six months from
the Commencement Date.
29.2 Any request for modification of non- structural layouts for 11th
Floor or 12th Floor by iAsiaWorks shall be reasonably made by not
less than two months' prior written notice prior to the aforesaid
relevant handover dates. In the event that the modified works are not
completed by the aforesaid handover dates, the relevant handover date
shall be postponed to the day immediately after the completion of the
modified works and the Rent and Maintenance Fee in respect of the
relevant floor shall commence on such postponed handover date and
iAsiaWorks and the Landlord shall enter into one or more supplemental
agreements to the Lease to record such variation, as may be required.
For the avoidance of doubt,
[*] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
iAdvantage shall not be obliged to entertain any request for
structural alteration or modification or request for modification on
the 7th, 8th, 9th and 10th Floors.
29.3 Any additional costs and expenditure arising from the aforesaid
modifications shall be borne by iAsiaWorks.
30. WAIVER
30.1 A party's failure or delay to exercise a power or right does not
operate as a waiver of that power or right.
30.2 The exercise of a power or right does not preclude either its exercise
in the future or the exercise of any other power or right.
30.3 A waiver is not effective unless it is in writing.
30.4 Waiver of a power or right is effective only in respect of the
specific instance to which is relates and for the specific purpose for
which it is given.
31. ENGLISH LANGUAGE
This Agreement and all schedules attached hereto have been negotiated
and drafted in the English language. It is the intention and agreement
of the parties that this Agreement, as documented in the English
language, accurately and completely states all agreements and
understandings of the parties with respect to the subject matter of
this Agreement. The parties agree that, although translations and
summaries of the Agreement may have been prepared and used by one or
more of the parties from time to time during the preparation and
negotiation of the Agreement, no translation of this Agreement into
any other language, no form of this Agreement other than the English
language form executed by both parties, and no drafts, correspondence
or any other writing (whether in English or any other language) shall
have any effect or be considered in evaluating any claim or dispute
arising under or relating to this Agreement. In addition, the parties
agree that all notices, amendments, waivers, modifications or other
writings required or made pursuant to this Agreement shall be in the
English language and no such notice, amendments, waivers,
modifications or other writing shall be of any effect or be given any
consideration if in any language other than English.
EXECUTED as an agreement on the date set out at the commencement of this
Agreement.
Signed for and on behalf of )
iAdvantage Limited )
in accordance with its )
articles of association in the )
presence of: )
/s/ Xxxxxx Xxxx /s/ Xxxx X.X. Xxxx
------------------------------------- -----------------------------------
Director/Secretary Director
XXXXXX XXXX XXXX X.X. XXXX
------------------------------------- ------------------------------------
Name of Director/Secretary Name of Director (BLOCK LETTERS)
(BLOCK LETTERS)
Signed for and on behalf of )
iAsiaWorks (HK) Limited )
in accordance with its )
articles of association in the )
presence of: )
/s/ Xxxxxxxx Xxxx /s/ Xxxxx Xxxxx
------------------------------------- ------------------------------------
Director/Secretary Director
XXXXXXXX XXXX XXXXX XXXXX, AUTHORIZED REPRESENTAIVE
------------------------------------- --------------------------------------
Name of Director/Secretary Name of Director (BLOCK LETTERS)
(BLOCK LETTERS)
Signed for and on behalf of )
Weelek Company Limited )
in accordance with its )
articles of association in the )
presence of: )
/s/ Xxxxxx Xxxx /s/ Xxxx X.X. Xxxx
------------------------------------- ------------------------------------
Director/Secretary Director
XXXXXX XXXX XXXX X.X. XXXX
------------------------------------- ------------------------------------
Name of Director/Secretary Name of Director (BLOCK LETTERS)
(BLOCK LETTERS)
SCHEDULE 1
Cost Formula
S1.1 The Maintenance Fee shall be [*] per square foot of gross floor
area per month if there shall be no modification to System and the
Specifications which is calculated on the following cost formula:-
Rate in Hong Kong Dollars per square
foot of gross floor area per month
Elements taken into consideration (HK$/sq.ft.gross/month)
----------------------
(1) Initial cost for facilities (based on [*] Million [*]/sq.ft gross/month
amortized with 10%)
(2) iAdvantage 24/7 staff cost [*]/sq.ft gross/month
(3) iAdvantage insurance [*]/sq.ft gross/month
(4) Maintenance of facilities [*]/sq.ft gross/month
__________________________
Total Maintenance Fee [*]/sq.ft gross/month
==========================
Basic Rent under the Lease [*]/sq.ft.gross/month
[*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
SCHEDULE 2
Documents
S2.1 Throughout the term of this Agreement at appropriate intervals
iAdvantage shall provide iAsiaWorks with all necessary documentation
and updates thereof related to this Agreement for its record purpose
only (unless otherwise expressly required herein), including the
following documents:
- project administration documents which consist construction drawings,
material and equipment catalogues and subsequent maintenance programs
and schedules and maintenance log sheets;
- progress, slippage and problem reports which are produced by
iAdvantage at each phase of the Construction Service;
- Quality Assurance procedures;
- testing and commissioning procedures and plan;
- operating, maintenance and training manuals;
- "as built" drawings;
- construction and testing and commissioning programs and schedules.
S2.2 All documents to be transferred, sent and/or forwarded to iAsiaWorks
must, where possible, clearly show with certainty the following:
- identity of sender(s) and recipient(s);
- date and time of transmittal;
- signature of sender(s)
SCHEDULE 3
Lease
The following 32 pages comprise the Lease.
SCHEDULE 4
Maintenance
S4.1 iAdvantage shall ensure that the Systems shall be 99.999% available for
full commercial operation with 2N redundancy, 7 days a week, 24 hours a
day, and 365 days a year save and except decrease of availability or
unavailability due to (i) inherent defect in the design of any part of
the System or (ii) the occurrence of a Force Majeure Event or (iii)
misuse of the Systems by iAsiaWorks of its employees servants agents
contractors or customers or (iv) regular preventive maintenance works on
the Systems as agreed in writing by the parties from time to time.
S4.2 iAdvantage shall adopt the best industry standard to produce a
"maintenance plan" which will define all relevant maintenance
requirements and frequencies that are at least as stringent as those
proposed by the manufacturers and installers of relevant Hardware and
Software in accordance with the plan annexed hereto and marked with the
letter "A".
S4.3 iAdvantage must provide maintenance personnel to meet iAdvantage's
maintenance obligations under this Agreement.
S4.4 iAdvantage shall arrange for the maintenance personnel to attend and
participate in suitable refresher courses (if any) organized by the
suppliers of relevant Hardware and Software or their nominated
representative at appropriate and regular intervals.
S4.5 iAdvantage shall ensure that specialized Systems, such as the diesel
rotary UPS systems, are maintained either by the relevant manufacturer or
supplier or personnel trained by the relevant manufacturer or supplier.
S4.6 iAsiaWorks shall for the purpose of carrying out any maintenance audit
have access to all relevant maintenance records for inspection upon
giving reasonable and prior notice.
S4.7 iAdvantage shall keep written records of all maintenance operations and
failures. These records shall: (a) identify the name of the maintenance
operative and duration of the task; (b) identify the relevant part of the
Systems by number and location; (c) describe in detail the work carried
out and list any replacement parts and consumables being used.
S4.8 iAsiaWorks shall be given, upon prior and reasonable notice, copies of or
access to all relevant current maintenance records in the possession,
power and custody of iAdvantage.
S4.9 Spares for maintenance or replacement parts shall if possible be sourced
from
original Hardware and Software suppliers. If unavailable, spares or
replacement parts shall be of equivalent or superior quality, to be
reasonably decided by iAdvantage.
SCHEDULE 5
Specifications
[combine Turn-key]
SCHEDULE 6
Systems
[combine Hardware and Software]
SCHEDULE 7
----------
Training Services
-----------------
S7.1 Initial Training
----------------
Upon one week's notice by iAsiaWorks, during the initial twelve months
after the Commencement Date, iAdvantage shall provide an adequate number
of appropriately qualified personnel for training and consultation to
iAsiaWork's staff at the Premises in relation to the Systems (not more
than three times per System within this period by prior appointment at
times reasonably convenient to iAsiaWorks and iAdvantage).
S7.2 Operation Manuals
-----------------
iAdvantage shall provide iAsiaWorks with the current and corresponding
operation manuals for the operation of the Hardware and Software (if
any).
S7.3 Regular Training
----------------
After the initial twelve months after the Commencement Date, iAdvantage
shall provide a sufficient number of appropriately qualified employees to
provide organized and structured training to iAsiaWorks' staff at the
Premises in respect of all matters relating to the System (not more than
twice yearly by prior appointment at times reasonably convenient to
iAdvantage and iAsiaWorks).
S7.4 Consultation Fees
-----------------
Except otherwise agreed by the parties in writing, iAsiaWorks shall not
be required to pay any travelling, boarding, training or consulting fees
for iAdvantage's technical personnel providing the aforesaid training to
iAsiaWork's staff.
SCHEDULE 8
Sample main contract
SCHEDULE 9
Testing Procedures
SCHEDULE 10
MAINTENANCE FEE
The Maintenance Fee shall be as follows:-
(a)
Term Maintenance Fee
[*] Year to [*] Year (i) monthly Maintenance Fee for the 7th, 8th, 9th
and 10th Floors of the Premises at the rate
of [*] per square foot of gross floor
area shall be payable from the commencement
of the term of the Lease;
(ii) monthly Maintenance Fee for the 7th, 8th,
9th, 10th and 11th Floors of the Premises at
the rate of [*] per square foot of
gross floor area shall be payable three
months from the commencement of the term of
the Lease;
(iii) monthly Maintenance Fee for the 7th, 8th,
9th, 10th, 11th and 12th Floors of the
Premises at the rate of [*] per square
foot of gross floor area shall be payable six
months from the Lease
commencement of the term of the Lease;
[*] Year to [*] Year monthly Maintenance Fee shall be [*] of the rate
for the [*] Year of the term of the Lease.
[*] Year to [*] Year At Open Market Rate as at the commencement of the
[*] Year of the term of the Lease, to be
determined in accordance with the provisions
hereunder, provided that the Maintenance Fee shall
not be reduced by more than [*] or increased by
more than [*] of the Maintenance Fee reserved for
the [*] Year of the term of the Lease
(b) (i) The Open Market Rate shall be agreed between iAdvantage and iAsiaWorks
at least three months before the new Maintenance Fee shall become
payable and failing agreement as aforesaid, the question shall be
referred to the decision of a single valuer to be appointed jointly by
the parties. Failing agreement on the appointment of the valuer, the
valuer shall be appointed by the President for the time being of the
Hong Kong Institute of Surveyors. The valuer shall act as an expert,
but not an arbitrator whose decision shall be final and binding,
provided always that in making its decisions the valuer shall take
into account the Cost Formula and the provision of the Services by
iAdvantage in the Schedules in this Agreement. The new Maintenance Fee
shall not be increased or reduced by more than 10% of the Maintenance
Fee reserved for the year of the term of the Lease immediately
preceding the relevant year in which the new Maintenance Fee becomes
payable. Prior to the decision of such valuer, iAsiaWorks shall
continue to pay monthly, on account of the Maintenance Fee to be
decided, the
[*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
same rate as payable on the expiration of the year immediately
preceding the commencement of the relevant year and adjustment on the
Maintenance Fee, (if applicable), shall be made upon the market rate
having been determined as aforesaid, as the case may be. The costs of
the valuer shall be borne by iAdvantage and iAsiaWorks in equal
shares.
(ii) In determining the new Maintenance Fee the valuer shall take into
account the rate payable in current, new, comparable transactions in
the Building or any comparable buildings for comparable space with
comparable Services, for a comparable term , from non-expansion, non-
renewal and tenants not connected or associated with iAdvantage or the
Landlord or a landlord, negotiated at arm's length, in either case
giving appropriate consideration (without limitation) to the annual
rental rates per square foot of gross floor area and abatement
provisions reflecting free charges or other concessions made during
the period of fit out or any other period during the subsistence of
this Agreement, so that the Maintenance Fee determined reflects the
same rate and other economic benefits that would otherwise be given to
any comparable prospective tenant in a comparable, new transaction an
and
(1) on the following assumptions at that date :
(i) that the Premises are fit for immediate occupation and use
and that no work has been carried out to the Premises
during the term which has diminished the rental value of
the said premises and that in case the Premises have been
destroyed or damaged they have been fully restored;
(ii) that the Premises are available to let by a willing
landlord to a willing tenant as a whole without a premium
but with vacant possession and subject to the provisions of
this Agreement and the Lease (other than the amount of the
rent reserved) for a term equal to the relevant period;
(iii) that the covenants in this Agreement and the Lease have
been fully performed and observed;
(2) but disregarding:
(i) any effect on rent of the fact that iAsiaWorks has been in
occupation of the Premises;
(ii) any goodwill attached to the Premises by reason of
iAsiaWorks carrying on its business at the Premises;
(iii) any effect on rental value of the Premises attributable to
the existence at the commencement of the relevant period of
any improvement to the Premises or any part by iAsiaWorks.
(c) In the event that iAsiaWorks exercises its option to renew the Lease the
Maintenance Fee shall be at Open Market Rate as at the commencement of the
relevant option term determined in accordance with clause (b) above save and
except that:-
(i) there shall be no limit on the increase or decrease; and
(ii) the construction costs of the Systems in the Costs Formula shall not
be taken into account but instead any new costs that may be incurred
by iAdvantage in providing any renewal or replacement of any part of
or addition to the Systems requested by iAsiaWorks that may be agreed
by iAdvantage shall be taken into account instead.
(d) The Maintenance Fees are payable monthly in advance on the first day of each
calendar month without deduction whatsoever.
INDEMNITY AGREEMENT
-------------------
BETWEEN
iAdvantage Limited whose registered office is situated at 36/F Standard
Chartered Tower, Millennium City, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxx Xxxx
Special Administrative Region ("iAdvantage");
AND
iAsiaWorks (HK) Limited whose registered office is situated at 00xx Xxxxx,
Xxxxxxxx Telecom Tower, 000 Xxxx'x Xxxx, Xxxxxx Xxx, Xxxx Xxxx Special
Administrative Region ("iAsiaWorks");
AND
Weelek Company Limited whose registered office is situated at 45th Floor, Sun
Hung Xxx Xxxxxx, 00 Xxxxxxx Xxxx, Xxx Xxxx, Xxxx Xxxx Special Administrative
Region ("Landlord").
RECITALS:
A. In consideration of the parties contemporaneously entering an agreement
("Agreement") in respect of and concerning premises comprising the 7th to
12th Floors inclusive ("Premises"), of a building located at Chai Wan, Hong
Kong to be erected on the Remaining Portion of Chai Wan Inland Lot No. 30, to
be built for the Landlord, the parties enter into this Indemnity Agreement on
the terms contained hereunder.
B. The Agreement concerns, inter alia, the fitting out of the Premises, the
installation and testing of certain systems, the performance of certain
services by iAdvantage and the lease of the Premises by iAsiaWorks from the
Landlord.
C. The parties have found it convenient to carve-out from the Agreement the
obligations and covenants contained in this Indemnity Agreement.
IT IS HEREBY AGREED:
1. The Landlord shall indemnify and hold iAsiaWorks harmless from and against
any claim by the Collector of Stamp Duties for payment of any stamp duty
under or in respect of the Agreement or the Lease (as defined in the
Agreement), where iAsiaWorks has paid such share as it may be liable to pay
to the Landlord, in accordance with the Agreement.
2 iAsiaWorks, iAdvantage, or the Landlord (the "Indemnifying Party") will, as
applicable, defend, indemnify and hold harmless the other party or parties
(the "Indemnitee"), from and against the following claims ("Indemnifiable
Loss"):
(a) any claim that may be made by any third party in respect of or
concerning Hardware, Software or Systems (as those terms are defined
in the Agreement) that an Indemnifying Party has designed installed
and/or operates, claiming a breach of their intellectual property
rights; and
(b) subject to the provisions and limitations set forth in clause 21 of
the Agreement, any claim that any subcontractor or agent of the
Indemnifying Party may make against Indemnitee in respect of or
concerning the obligations of the Indemnifying Party under the
Agreement; and
(c) subject to the provisions and limitations set forth in clause 21 of
the Agreement, any claim by the authorised users of the System in
respect to any direct loss or expense such authorised users may suffer
or incur as a consequence of the Indemnifying Party's refusal or
failure to perform any obligation or covenant required to be
performed by it under this Agreement due to the sole default of the
Indemnifying Party; and
(d) subject to the provisions and limitations set forth in clause 21 of
the Agreement, in respect of any loss or expense suffered by the
Indemnitee due to the mis-use act or default of a user of the System
authorised by the Indemnifying Party.
3. If any action, suit or proceeding is commenced against, or any claim or
demand be asserted against, any Indemnitee in respect to which such
Indemnitee is entitled to demand indemnification under this indemnity, then
as a condition precedent thereto, such Indemnitee will promptly notify the
Indemnifying Party in writing to that effect, providing reasonable detail
as to the circumstances and subject matter thereof; provided the failure
to so promptly notify the Indemnifying Party will not release the
Indemnifying Party from any liability which it may have to any Indemnitee
unless the failure to promptly notify prejudices the Indemnifying Party in
any material respect. The Indemnifying Party will have the right to assume
the entire control of the defense, compromise or settlement of such action,
suit, proceeding or claim, including the selection of counsel (provided
such counsel shall be reasonably acceptable to the Indemnitee(s)), subject
to the right of each Indemnitee to participate (at its expense and with
counsel of such Indemnitee's choice) in the defense, compromise or
settlement of such action, suit, proceeding, claim or demand. In
connection therewith, the Indemnitees will cooperate as reasonably
necessary with the Indemnifying Party in any such defense, compromise or
settlement. The Indemnifying Party will not compromise or settle any such
action, suit, proceeding, claim or demand without the prior written consent
of the Indemnitees affected by such action, suit, proceeding, claim or
demand, such consent not to be unreasonably conditioned, delayed or
withheld. So long as the Indemnifying Party is defending in good faith any
such action, suit, proceeding, claim or demand asserted by a third party
against the Indemnitees, the Indemnitees will not settle or compromise such
action, suit, proceeding, claim or demand without the prior written consent
of the Indemnifying Party, which consent will not be unreasonably
conditioned, delayed or withheld. The Indemnitees will make available to
the Indemnifying Party or its agents all records and other materials in the
Indemnitees' possession reasonably required by the Indemnifying Party
solely for contesting such indemnified claim or demand. If the
Indemnifying Party fails to promptly and adequately defend any such action,
suit, proceeding, claim or demand, then the Indemnitees may defend, through
counsel of their own choosing, such action, suit, proceeding, claim or
demand and settle such action, suit, proceeding, claim or demand and
recover from the Indemnifying Party the amount incurred by the Indemnitees
in respect thereto. If the Indemnifying Party disputes the Indemnitees'
right to be indemnified for any loss alleged by the Indemnitees, then
within ten (10) days after receiving the Indemnitees' notice of such
alleged Indemnifiable Loss, the Indemnifying Party may submit such dispute
to the arbitration proceedings provided for under the Agreement, and such
dispute will be resolved through mandatory binding arbitration, in
accordance with the terms of clause 14 of the Agreement as if incorporated
herein.
4. Each party undertakes to comply with clause 13 of the Agreement as if
incorporated herein ("Confidentiality Clause"). Any material breach of the
Confidentiality Clause by an Indemnitee shall release the Indemnifying Parties
from this Indemnity Agreement which shall then be null and void absolutely in
respect of that Indemnitee.
Dated the day of 2000
SIGNED by )
)
for and on behalf of )
iAdvantage Limited )
in the presence of: )
SIGNED by )
)
for and on behalf of )
Weelek Company Limited )
in the presence of: )
SIGNED by )
)
for and on behalf of )
iAsiaWorks (HK) Limited )
in the presence of: )
