Exhibit 10.22
SUBLEASE
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THIS AGREEMENT TO SUBLEASE ("Sublease") is entered into as of the 1st day of
May, 2000 ("Effective Date"), between Psygnosis, Ltd., a United Kingdom company,
having an office at Xxxxxx Court, Wavertree Technology Park, Liverpool, UK L13
IHD ("Sublandlord"), and iAsia Works, Inc., a California corporation, having an
office at 0000 Xxxxxxx xx xxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Subtenant").
WITNESSETH:
WHEREAS:
A. California Casualty Management Company, a California corporation
("Landlord") is the tenant under a certain agreement to lease dated March 18,
1998 ("Prime Lease") wherein Landlord leased from OTR, an Ohio general
partnership ("Prime Landlord") the Lease Premises as defined herein.
B. A certain agreement to sublease was entered into on May 1, 1999, (the
"Lease"), by and between California Casualty Management Company, a California
corporation, as sublandlord ("Sublandlord"), and Psygnosis, Ltd., Sublandlord,
as subtenant, whereby Landlord leased to Sublandlord, as tenant, certain
premises (the "Lease Premises") consisting of approximately 4,820 rentable
square feet in the building known as 2000 Alameda de las Pulgas (the
"Building"), as more particularly described in the Lease.
C. Subtenant desires to sublease from Sublandlord in accordance with the
terms and conditions herein the entire Lease Premises as described above
("Premises"), as more particularly shown on the floor plans annexed as Exhibit
A, upon the terms and conditions hereinafter set forth.
D. The parties are agreeable to entering into a sublease of the Premises
on all of the terms and conditions contained herein.
E. All capitalized terms used in this Sublease which are not defined in
this Sublease shall be deemed to have the respective meanings given to such
terms in the Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Sublandlord and Subtenant hereby agree as follows:
ARTICLE 1
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Premises
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Section 1.01 Sublandlord hereby subleases the Premises to Subtenant, and
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Subtenant hereby hires and accepts the Premises from Sublandlord. The Premises
shall include the appurtenant right to the use, in common with Sublandlord and
others, of the lobbies, entrances,
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stairs, corridors, elevators, drives, sidewalks, parking areas and other public
portions of the Building, to the extent that Sublandlord has the right to use
the same as tenant under the Lease.
ARTICLE 2
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Term; Use; Condition of Premises
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Section 2.01 Subject to Landlord's and to the extent applicable Prime
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Landlord's consent, Sublandlord hereby subleases to Subtenant, and Subtenant
hereby hires from Sublandlord, the Premises, for a term (the "Term") commencing
on the date (the "Commencement Date") which shall be May 1, 2000 and expiring at
11:59 p.m. on April 29, 2002 (the "Expiration Date"), unless sooner terminated
pursuant to any of the terms of this Sublease, the Lease or Prime Lease or
pursuant to law, upon and subject to the terms, covenants and conditions set
forth in this Sublease. Sublandlord and Subtenant shall, upon the request of
either of them, execute a statement prepared by Sublandlord confirming the
Commencement date as May 1, 2000. Any failure of Sublandlord or Subtenant to
request and/or to execute such statement shall not affect Sublandlord's
determination of the Commencement Date.
Section 2.02 The Premises shall be occupied and used by Subtenant for the
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purposes permitted pursuant to the Lease and for no other purposes. Subtenant
shall not use, store, generate or dispose of any chemicals or hazardous
materials in or on the Premises, Lease Premises or Building, except for ordinary
and general office supplies typically used in the ordinary course of business
within office buildings, such as copier toner, correction fluid, glue ink, and
common household cleaning materials.
Section 2.03 Subtenant has inspected the Premises, knows the condition
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thereof and agrees to accept the same "AS IS" on the Commencement Date in the
condition in which it exists as of the Commencement Date. For purposes of this
Sublease, the Sublandlord shall have no obligation to perform any work,
renovations or improvements and the Premises shall be delivered by Sublandlord
to Tenant AS IS. Subtenant agrees that neither Prime Landlord, nor Landlord,
nor Sublandlord has any obligation to alter or repair the Premises or to create
demising walls or to prepare the Premises in any way for Subtenant's occupancy
or use. Subtenant acknowledges that neither Prime Landlord, nor Landlord nor
Sublandlord has made any representations or warranties whatsoever, expressed or
implied, with respect to the Premises, except as may be expressly set forth in
this Sublease. Subtenant has relied solely on such investigations, examinations
and inspections as Subtenant has chosen to make, and Sublandlord has not made
and will not make, any representation or warranty, expressed or implied, with
respect to the Premises or the condition thereof, including, without limitation,
with respect to the environmental condition of the Premises, the suitability of
the Premises for any use or compliance of the Premises with local or state or
federal building, earthquake or other requirement presently in effect or any
other matter. Subtenant acknowledges that Sublandlord has afforded Subtenant the
opportunity for full and complete investigations, examinations and inspections
of the Premises.
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ARTICLE 3
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Fixed Rent; Additional Rent
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Section 3.01 A. Subtenant shall pay to Sublandlord, fixed rent ("Fixed
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Rent") during the Term as follows:
Period Rental Rate per month / SF Monthly Base Rent
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5/1/2000 - 4/29/2002 $7.00 $33,740.00
B. Fixed Rent shall commence as of May 1, 2000.
C. Subtenant shall pay all Fixed Rent for the entire Term to Sublandlord
in advance on the Effective Date to Sublandlord's bank account via wire
transfer. In addition to Base Rent, Subtenant shall pay to Sublandlord any and
all other amounts payable by Sublandlord to Master Landlord with respect to the
Sublet Premises under the Master Lease, including any and all Additional Charges
(as defined below) no fewer than five (5) days prior to the date upon which
Sublandlord's payment of such additional rent is due to the Landlord, provided
that Subtenant shall have been billed therefor at least ten (10) days prior to
such due date on or before such date any Additional Rent is to be paid under the
Master Lease.
Section 3.02 A. In addition to the Fixed Rent, Subtenant shall pay to
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Sublandlord, from and after the Commencement Date, additional rent ("Additional
Rent"), as follows, which Additional Rent shall be payable to Sublandlord,
unless otherwise specified herein, within fifteen (15) days after written demand
therefore:
(i) Subtenant shall pay for all costs of Subtenant's electrical, water,
gas, heat, light, power, telephone and other utilities and services specially or
exclusively supplied and/or metered to the Premises. Subtenant shall defend,
indemnify and hold Sublandlord harmless from all costs and expenses Sublandlord
may incur from Subtenant's failure to pay utility bills for the Premises during
the term.
(ii) Subtenant shall pay all other sums as shall become due and payable
by Sublandlord for the benefit of Subtenant pursuant to the provisions of this
Sublease.
Section 3.03 A. "Rent" shall mean Fixed Rent and Additional Rent payable
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hereunder collectively. Sublandlord shall have the same remedies for a default
in payment of Additional Rent as for a default in payment of Fixed Rent.
B. Rent shall be paid promptly when due, without notice or demand therefor
and without deduction, abatement, counterclaim or set-off.
C. Rent shall be paid by Subtenant to Sublandlord, in lawful money of the
United States of America, by wire transfer from such bank as shall be reasonably
acceptable to Sublandlord, per Sublandlord's wire transfer instructions set
forth herein.
Wiring Instructions:
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Bank: Citibank, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Account: Psygnosis, a/c # 3041 0772
ABA #: 21000089
D. If the Commencement Date or the date on which Subtenant is required to
pay any amount of Rent shall be other than the first day of a month, Fixed Rent
and Additional Rent payable hereunder for any such month shall be prorated on a
per diem basis based on the actual number of days in such month.
E. In the event that any sums payable by Sublandlord under the Lease all
or any portion of which are payable by Subtenant pursuant to the terms of this
Sublease, are subject to adjustment by Landlord at the end of a year or other
period, then either (i) Subtenant shall pay to Sublandlord, within fifteen (15)
days after demand, Subtenant's allocable portion of any deficiencies payable to
Landlord by reason of such written adjustment, which obligation of Subtenant
shall survive the termination of this Sublease or (ii) Sublandlord shall credit
against the next payments of Additional Rent coming due hereunder Subtenant's
allocable portion of any refund or credit received by Sublandlord from Landlord
by reason of such adjustment, except that if no further payments of Additional
Rent shall be due hereunder, then Sublandlord shall refund such amount to
Subtenant within thirty (30) days after receipt of the same from Landlord.
F. If any Rent shall become uncollectible, reduced or required to be
refunded because of any law, ordinance, rule or regulation of any governmental
authority, Subtenant shall enter into such agreements and take such other steps
as Sublandlord may reasonably request and as may be legally permissible to
permit Sublandlord to collect the maximum Rent which from time to time during
the continuance of such legal rent restriction may be legally permissible (but
not in excess of the amounts reserved therefor under this Sublease). Upon the
termination of such legal rent restriction, (a) Rent shall be payable in
accordance with the amounts reserved herein for the periods following such
termination and (b) Subtenant shall pay to Sublandlord, to the maximum extent
legally permissible, an amount equal to (i) the Rent that would have been paid
pursuant to the Sublease but for such legal rent restriction, less (ii) the Rent
actually paid by Subtenant during the period such legal rent restriction was in
effect.
G. All sums due and payable as Fixed Rent and Additional Rent shall, from
and after five (5) days' after the due date, bear interest at two percent (2%)
per annum above the Prime Rate or if there is no Prime Rate announced then at
the rate of fourteen percent (14%) per annum, but in no event more than the
highest legal rate of interest permitted to be charged to Subtenant at the time
and such interest shall be deemed to be Additional Rent; provided, however, that
no further interest shall be payable upon such interest.
H. No payment by Subtenant or receipt by Sublandlord of any lesser amount
than the amount stipulated to be paid hereunder shall be deemed other than on
account of the earliest stipulated Fixed Rent or Additional Rent due under this
Sublease; nor shall any endorsement or statement on any check or letter be
deemed an accord and satisfaction, and Sublandlord may accept any check or
payment without prejudice to Sublandlord's right to recover the balance due or
to pursue any other remedy available to Sublandlord.
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ARTICLE 4
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Subordination to Lease; Sublandlord Performance
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Section 4.01 A. This Sublease and all rights of Subtenant hereunder are and
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shall remain subject and subordinate to (i) all of the terms, conditions and
provisions of the Lease, (ii) all mortgages, ground leases, leasehold mortgages,
encumbrances, covenants, restrictions and other rights, if any, to which the
Lease and Prime Lease and Landlord's and Sublandlord's respective interests
therein are subject and subordinate and (iii) any and all amendments to the
Lease and supplemental agreements relating thereto hereafter made between
Landlord and Prime Landlord and between Landlord and Sublandlord; provided that
any such amendments and/or supplemental agreements do not individually or in the
aggregate materially and adversely affect Subtenant or its use of the Premises.
B. The terms, covenants and conditions of the Lease and Prime Lease are
incorporated herein by reference. If any of the express provisions of this
Sublease shall conflict with any of the Lease and Prime Lease, such conflict
shall be resolved in favor of the express provisions of this Sublease. Except to
the extent that the Lease and Prime Lease provisions ("Incorporated Provisions")
are inapplicable, are modified by or are inconsistent with the provisions of
this Sublease, the Incorporated Provisions binding or inuring to the benefit of
Landlord and Prime Landlord shall, in respect of this Sublease, bind or inure to
the benefit of Sublandlord, and the Incorporated Provisions binding or inuring
to the benefit of the tenant thereunder shall, in respect of this Sublease, bind
or inure to the benefit of Subtenant, with the same force and effect as if the
Incorporated Provisions were completely set forth in this Sublease, and as if
the words "Landlord" and "Tenant" or words of similar import, wherever the same
appear in the Incorporated Provisions, were construed to mean, respectively,
"Sublandlord" and "Subtenant" in this Sublease, and as if the words "Premises,"
or words of similar import, wherever the same appear in the Incorporated
Provisions, were construed to mean the Premises.
C. Except as otherwise expressly provided in this Sublease, Subtenant
assumes and shall keep, observe and perform every term, covenant and condition
on Sublandlord's part pertaining to the Premises which is required to be kept,
observed or performed pursuant to the Lease. Subtenant shall not do or permit
to be done any act or thing which may constitute a breach or violation of any
term, covenant or condition of the Sublease, Lease or Prime Lease.
Section 4.02 A. Notwithstanding anything to the contrary contained in this
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Sublease, Sublandlord shall have, with respect to Subtenant, this Sublease and
the Premises, all of the rights, powers, privileges, immunities and remedies,
but none of the obligations of Landlord and Prime Landlord under the Lease
including, without limitation, (i) the rights and remedies arising out of any
default by Subtenant in the payment of Rent or any other obligation, monetary or
otherwise under this Sublease, (ii) the right to give or receive any consent,
notice or approval and (iii) the right to exercise any election or option
(including, without limitation, election of remedies).
B. Sublandlord shall not, so long as Subtenant is not in default
hereunder, cause or suffer a termination of the Lease as a result of an act or
omission of Sublandlord that constitutes a default under the Lease or Prime
Lease. Sublandlord shall indemnify Subtenant against and
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hold Subtenant harmless from all claims, penalties, damages and expenses
Subtenant shall suffer (including reasonable attorney's fees) resulting from any
breach of the covenant set forth in the immediately preceding sentence.
C. Sublandlord represents and warrants to Subtenant that (i) a true,
correct and complete copy of the Lease and Prime Lease, and all other agreements
between Landlord and Sublandlord relating to the leasing, use and occupancy of
the Premises is attached hereto as Exhibit A; (ii) the Lease has not been
amended or modified, that the Lease is in full force and effect; (iii) that, to
the best of Sublandlord's knowledge, Landlord is not currently in default
thereunder, and (iv) the Sublandlord, as tenant, is not in default thereunder
and there exist no conditions or events which, with the passing of time or the
giving of notice or both, would constitute an event of default under the Lease.
Section 4.03 A. Subtenant shall be entitled, during the Term, to receive all
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services, utilities, repairs, facilities and other benefits to be furnished by
Landlord under the Lease subject to the provisions of the Prime Lease, the Lease
and this Sublease. Sublandlord shall have no liability for any failure or
interruption of these services except to the extent attributable to
Sublandlord's default under the Lease. Sublandlord shall have no obligation
prior to or at any time after the Commencement Date, to make the Premises comply
with any applicable law, statute, regulation or code.
B. Sublandlord shall have no responsibility or liability of any kind
whatsoever for any default of or by Prime Landlord under the Prime Lease or
Landlord under the Lease for the furnishing to Subtenant or the Premises of any
services of any kind whatsoever which Prime Landlord and/or Landlord are
required to furnish to the Premises under the Prime Lease or the Lease. In
furtherance (and without limitation) of the foregoing, Subtenant agrees that
Sublandlord shall not have any obligation to furnish heat, air conditioning,
electricity, cleaning service, and/or any other building services of any kind
whatsoever, and that Sublandlord shall not be obligated to make any repairs or
restorations of any kind whatsoever in the Premises. Notwithstanding the
foregoing, if Sublandlord shall be required to restore the Premises at the end
of the term of the Lease, Subtenant shall be responsible for such restoration as
shall be so required with respect to installations in the Sublease Premises
installed after the date of this Sublease.
C. Except as otherwise provided herein, Subtenant agrees to look solely to
Landlord and Prime Landlord for any services, repairs, restorations and/or work
of any kind whatsoever to be furnished to the Premises; however, Sublandlord
agrees to use commercially reasonable efforts to cause Landlord and Prime
Landlord to perform such obligations of Landlord and Prime Landlord under the
Lease and Prime Lease with respect to the Premises. If Landlord and Prime
Landlord shall default in any of its obligations with respect to the Premises
(including without limitation canceling the Lease and Prime Lease, except
pursuant to the terms thereof) Subtenant shall be entitled to participate with
Sublandlord in the enforcement of Sublandlord's rights against Landlord and
Prime Landlord (and in any recovery or relief obtained), but Sublandlord shall
not have any obligation to bring any action or proceeding or to take any steps
to enforce Landlord's rights against Prime Landlord. Any action or proceeding
so instituted by Sublandlord at the request of Subtenant shall be at the sole
expense of Subtenant, but Subtenant shall be entitled to all damages whatsoever
that may be awarded in any such action or proceeding. Any such action or
proceeding shall be conducted by counsel selected by Subtenant and reasonably
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satisfactory to Sublandlord. Subtenant shall have the right, at Subtenant's
expense, to take such action in its own name and, for that purpose and only to
such extent, all of the rights of Sublandlord to cause Landlord and Prime
Landlord to perform under the Lease are hereby conferred upon and are assigned
to Subtenant and Subtenant hereby is subrogated to such rights (including,
without limitation, the benefit of any recovery or relief); provided, however,
that Subtenant shall only have such rights if Subtenant is not currently in
default under this Sublease. To the extent reasonably required for Subtenant to
bring and maintain an action or proceeding against Landlord or Prime Landlord in
Sublandlord's name, Sublandlord shall sign any reasonable, true and correct
demand, pleading and/or other paper prepared by Subtenant or its counsel and
shall reasonably cooperate with Subtenant, Sublandlord's out-of-pocket cost
thereof to be borne by Subtenant; it being agreed that Sublandlord may sign any
such demand, pleading or other paper on information and belief where
appropriate. Provided that Sublandlord has complied with its covenants
contained in this Section, Subtenant shall indemnify and hold Sublandlord
harmless from and against any and all losses, liabilities, obligations, claims,
damages, penalties, fines and costs and expenses of every kind and nature
(including, without limitation, reasonable attorneys' fees and disbursements and
court costs) which Sublandlord may incur arising out of or in connection with
the taking of any such action by Subtenant.
Section 4.04 A. The parties agree that except as otherwise provided either
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in this Article 4 or elsewhere in this Sublease, this Sublease shall
specifically incorporate all of the terms, covenants, conditions and provisions
of the Lease as if fully set forth herein at length.
B. Whenever in the Lease a time is specified for the giving of any notice
or the making of any demand by the tenant thereunder, such time is hereby
changed (for the purpose of this Sublease only) by adding five (5) days thereto;
and whenever in the Lease a time is specified for the giving of any notice or
the making of any demand by the Landlord thereunder, such time is hereby changed
(for the purpose of this Sublease only) by subtracting three (3) days therefrom,
if such notice, request or demand given or made by Landlord thereunder relates
to the payment (or default in the payment) of Fixed Rent or Additional Rent
under the Lease, and by five (5) days if such notice, request or demand of
Landlord thereunder relates to any subject other than the payment of Fixed Rent
or Additional Rent under the Lease. Whenever in the Lease a time is specified
within which the tenant thereunder must respond to any notice, request or demand
previously given or made by the Landlord thereunder, or to comply with any
obligation on the Subtenant's part thereunder, such time is hereby changed (for
the purpose of this Sublease only) by subtracting two (2) days therefrom, if the
same shall relate to the payment of Fixed Rent or Additional Rent under the
Lease or under this Sublease, and four (4) days if the same shall relate to any
other obligation under the Lease. Wherever in the Lease a time is specified
within which the Sublandlord thereunder must respond to any notice, request or
demand previously given or made by the tenant thereunder, such time is hereby
changed (for the purpose of this Sublease only) by adding five (5) days thereto.
It is the purpose and intent of the foregoing provisions, among other things, to
provide Sublandlord with time within which to transmit to Landlord any notices
or demands received from Subtenant and to transmit to Subtenant any notices or
demands received from Landlord.
ARTICLE 5
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Indemnification
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Section 5.01 Each of Sublandlord and Subtenant agrees not to do or permit to
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be done any act or thing or neglect to take any action which act or thing or
neglect will constitute or cause a breach or violation of any of the terms,
covenants or conditions of the Lease or Sublease. Subtenant hereby indemnifies
Sublandlord and holds Sublandlord harmless from and against any and all losses,
liabilities, obligations, claims, damages, penalties, fines and costs and
expenses of every kind and nature (including, without limitation, reasonable
attorneys' fees and disbursements and court costs) which Sublandlord may incur
by reason of (A) any failure of or by Subtenant to perform or comply with any
and all of the terms, covenants and conditions of this Sublease, (B) any breach
or violation by (or caused by) Subtenant of the terms, covenants and conditions
of the Lease, (C) any work or thing of whatsoever kind done in, on or about the
Premises, Lease Premises or the Building by Subtenant's employees, contractors,
agents, licensees or invitees (including, but not limited to, construction
alterations, repairs or similar acts of any kind whatsoever, and whether or not
authorized by this Sublease), (D) any negligence, gross negligence or willful
act or omission of Subtenant or Subtenant's officers, employees, contractors,
agents, licensees or invitees or (E) any injuries to persons or property
occurring in, on or about the Premises; caused by Subtenant or Subtenant's
employers, contractors, agents, like-sees or invitees; provided, however, that
this subsection (F) shall not apply to injuries to persons or property to the
extent caused by the acts, omissions or gross negligence of Sublandlord or
Landlord or its employees, contractors, agents, licensees or invitees.
Section 5.02 Subtenant hereby does and shall indemnify Sublandlord from any
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liability, claims, cost, losses, fines, penalties, administrative proceedings or
damage directly or indirectly relating the presence of any hazardous substance
on, under or about the Premises, Lease Premises or Building or any other
condition on under or about the Premises, to the extent caused by Subtenant or
by Subtenant' employees, contractors, agents, licensees or invitees.
Sublandlord shall not be liable for any claims, liability, cost, losses, fines,
penalties, administrative proceedings or damage due to the effects of hazardous
substances or hazardous materials on under or about the Premises, Lease Premises
or Building that is or was directly caused by Subtenant or by Subtenant'
employees, contractors, agents, licensees or invitees.
Section 5.03 If any action or proceeding shall be brought against Sublandlord
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by reason of any such claim, Subtenant, upon notice from Sublandlord, shall
resist or defend such action or proceeding and employ counsel therefore
reasonably satisfactory to Sublandlord; it being understood that counsel for
Subtenant's insurance company shall be deemed to be satisfactory to Sublandlord.
Subtenant shall pay to Sublandlord on demand all sums which may be owing to
Sublandlord by reason of the provisions of this Article. Subtenant's
obligations under this Article shall survive the termination of this Sublease.
ARTICLE 6
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Alterations
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Section 6.01 Subtenant shall make no alterations, decorations,
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installations, additions or improvements (collectively, "Alterations") in the
Sublease Premises without the prior written consent, including that of
contractor selection, of Prime Landlord, Landlord and Sublandlord, which consent
of Sublandlord shall not be unreasonably withheld or delayed; provided Subtenant
complies with all applicable provisions of the Prime Lease, Lease and this
Sublease and all
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applicable laws, statutes, regulations and codes of any governmental authority
or quasi-governmental authority having jurisdiction over the Premises.
Subtenant shall, at Sublandlord's election, remove the Alterations and restore
the Premises to its original condition. All alterations made by Subtenant shall
be subject to Article 21.
Section 6.02 Sublandlord shall have the right to inspect the Premises upon
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reasonable notice to Subtenant (which notice may be oral) for the purpose of
determining Subtenant's compliance with the terms of this Article 6.
Section 6.03 Subtenant shall indemnify, defend and hold Sublandlord harmless
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against liability, loss, cost, damage, liens and expense imposed on Sublandlord
arising out of the performance of Alterations by Subtenant.
ARTICLE 7
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Insurance
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Section 7.01 Subtenant shall obtain and maintain in full force and effect
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during the Term, at its own cost and expense, to protect Prime Landlord,
Landlord, Sublandlord, any other superior lessor, any superior mortgagee and
Subtenant, as insureds, a policy of commercial general liability and property
damage insurance with a limit of not less than a combined single limit of
$1,000,000 with respect to the Premises and such other insurance as shall be
required by Landlord pursuant to the Lease in each instance in accordance with
the terms of and in the amounts specified in the Lease. All insurance procured
by Subtenant under this Article 7, except for Worker's Compensation and
Employer's Liability Insurance shall name Sublandlord, Landlord, Prime Landlord
and any holders of superior mortgages or leases as Sublandlord shall designate
as additional insureds thereunder, and shall contain an endorsement that each
such party, although named as an insured, nevertheless shall be entitled to
recover under said policies for any loss or damages by reason of the negligence
or tortious acts of Subtenant, or its subtenants, agents, contractors,
employees, licensees and invitees. Certificates of such insurance policies shall
be furnished to Sublandlord prior to the Commencement Date and certificates of
new or renewed policies shall be furnished to Sublandlord thirty (30) days prior
to the expiration of each such policy.
ARTICLE 8
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Damage and Destruction; Condemnation
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Section 8.01 A. If the Premises or any portion of the Lease Premises or the
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Building are partially or totally damaged or destroyed by fire or other
casualty, Subtenant shall have no right to terminate this Sublease and this
Sublease shall not be terminated by reason of such casualty unless the Lease is
terminated by Landlord pursuant to the provisions of the Lease. Sublandlord
shall give Subtenant prompt notice of any such termination.
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B. If the Premises are partially or totally damaged by fire or other
casualty, Subtenant shall receive an abatement of Rent for such casualty only to
the extent that Sublandlord receives a corresponding abatement pursuant to the
terms of the Lease.
C. If the Lease is terminated as the result of a taking of all or any
portion of the Building by condemnation (or deed in lieu thereof), this Sublease
shall likewise terminate. In such event, Subtenant shall have no claim to any
share of the award, except to file a claim directly to the condemning authority
for the value of any property of Subtenant that Subtenant may remove from the
Premises at the end of the Term in accordance with the Lease (the "Subtenant's
Property") or for moving expenses.
Section 8.02 Nothing contained in this Sublease shall relieve Subtenant from
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liability that may exist as a result of damage from fire or other casualty, but
each party shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting from
fire or other casualty. To the extent that such insurance is in force and
collectible and to the extent permitted by law, Sublandlord and Subtenant each
hereby releases and discharges the other and waives all right of recovery
against the other or anyone claiming through or under the other for any damage
or recovery for loss resulting from fire or other casualty. The foregoing waiver
shall include any claim by anyone claiming through or under a party by way of
subrogation or otherwise. Each party agrees to use its best efforts to include
in its applicable insurance policies a waiver of subrogation. If the inclusion
of such provision would involve an additional expense, either party may require
such provision to be inserted in the other's policy, the expense thereof to be
borne equally by the parties. Subtenant acknowledges that Sublandlord shall have
no obligation to insure the Premises (as hereinafter defined) or any property or
improvements of Subtenant.
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ARTICLE 9
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Security Deposit
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Section 9.01 Subtenant shall, upon the execution of this Sublease, deposit
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with Sublandlord via wire transfer to Sublandlord's bank account, as the
security required pursuant to this Article 9 the amount of one full month's
Fixed Rent.
Wiring Instructions:
Bank: Citibank, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Account: Psygnosis, a/c # 3041 0772
ABA #: 21000089
Section 9.02 Sublandlord may, but shall not be obligated, to deposit the
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Security Deposit in an interest bearing account. Any interest accrued with
respect to any Security Deposit shall be added to and constitute a part of the
security deposit, to be held and disposed of by Sublandlord in accordance with
the terms of this Article 9. Sublandlord shall not be liable to Subtenant for
any interest except for such interest as is actually earned.
Section 9.03 Subtenant shall not assign or encumber or attempt to assign or
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encumber the Security Deposit and neither Sublandlord nor its successors or
assigns shall be bound by any such assignment, encumbrance or attempted
assignment or encumbrance.
Section 9.04 In the event of an assignment of the Sublease by Sublandlord,
------------
Sublandlord shall have the right to transfer the Security Deposit to the
assignee and if the assignee shall agree to hold, or return to Subtenant, the
Security Deposit in accordance with the terms of this Sublease, then Sublandlord
shall be fully and unconditionally released by Subtenant from all liability for
the return of such Security Deposit, and Subtenant shall look solely to the new
sublandlord for the return of such Security Deposit. The provisions hereof
shall apply to every transfer or assignment made of such Security Deposit to a
new sublandlord.
Section 9.05 In the event Subtenant defaults in the performance of any of
------------
the terms of this Sublease, Sublandlord may use or retain the whole or any part
of the Security Deposit to the extent required for the payment of any Rent or
for any sum that Sublandlord may expend or may be required to expend by reason
of Subtenant's default, including any damages or deficiency in the reletting of
the Premises, whether accruing before or after summary proceedings or other re-
entry by Sublandlord. In the case of every such use or retention, Subtenant
shall, on demand, pay to Sublandlord the sum so used or retained and such amount
shall be added to any Security Deposit so that the amount of security held
hereunder shall be replenished to its former amount. In the event any
bankruptcy, insolvency, reorganization or other creditor-debtor proceedings
shall be instituted by or against Subtenant, or its successors or assigns, the
cash Security Deposit shall be deemed to be applied first to the payment of any
Rent due Sublandlord for all periods prior to the institution of such
proceedings and the balance, if any, of the Security Deposit may be retained by
Sublandlord in partial liquidation of Sublandlord's damages. If Subtenant shall
fully and punctually comply with all of the terms of this Sublease, the Security
Deposit shall be returned to Subtenant after the termination of this Sublease
and delivery of exclusive possession of the Premises to Sublandlord in
compliance with the provisions of this Sublease.
11
ARTICLE 10
----------
Default; Remedies
-----------------
Section 10.01 In the event that Subtenant shall default in the performance of
-------------
any of the terms, covenants or conditions on its part to be performed under this
Sublease, or in the event that Subtenant shall default in the performance of any
of the terms, covenants or conditions on Sublandlord's part to be performed
under the Lease, or Subtenant shall be deemed to be in default under the terms
of the Lease and the same are not cured prior to the expiration of the time for
the curing thereof under the Lease then Sublandlord shall have the same rights
and remedies with respect to such default as are given to Landlord under the
Lease with respect to defaults by Sublandlord thereunder all with the same force
and effect as though the provisions of the Lease with respect to defaults and
the respective rights and remedies of Landlord thereunder in the event thereof
were set forth at length in this Sublease. Sublandlord agrees promptly to give
notice to Subtenant of any notices of default (or otherwise) relating to the
Premises or the performance by Subtenant of its obligations under this Sublease
which may be received by Sublandlord. Any time period set forth in this
Sublease within which Subtenant must take an action in response to any notice
(of default or otherwise) from Landlord shall be tolled until such time as
Sublandlord shall give such notice to Subtenant. Otherwise, failure of
Sublandlord to give such notice to Subtenant shall not diminish Subtenant's
obligations under this Sublease.
Section 10.02 If Subtenant shall default in the performance of any of
-------------
Subtenant's obligations under this Sublease or under the provisions of the
Lease, Sublandlord, without thereby waiving such default, may, at Sublandlord's
option, perform the same for the account and at the expense of Subtenant. If
Subtenant shall fail to make any payment or shall default in the performance of
any term, covenant or condition of this Sublease which involves an expenditure
of money by Subtenant, Sublandlord, at Sublandlord's sole option, may make such
payment or expend such sums as may be necessary to perform and fulfill such
term, covenant or condition. In such event, Additional Rent shall include, also,
on written demand, the entire amount of Sublandlord's expenditure or payment and
any and all costs and expenses as may be necessary to perform and fulfill any
such term, covenant or condition, together with interest on the amount thereof
from the time such moneys are expended until paid at an annual rate equal to the
lesser of (i) twelve percent (12%) per annum and (ii) the maximum legal rate.
Section 10.03 Sublandlord shall have, in addition to all its rights and
-------------
remedies contained in the Lease and this Sublease, the following rights and
remedies; all of Sublandlord's rights and remedies under this Sublease are
distinct, separate and cumulative, and none will exclude any other right or
remedy allowed by law:
A. Sublandlord may, with or without notice of such election and with or
without entry or other action by Sublandlord, immediately terminate this
Sublease, in which event the Term shall end and all right, title, and interest
of Subtenant hereunder shall expire; or
B Sublandlord may enforce the provisions of this Sublease and may enforce
and protect the rights of Sublandlord hereunder by a suit or suits in equity or
at law for the specific performance of any covenant or agreement herein or for
the enforcement of any other
12
appropriate legal or equitable remedy, including the recovery of all moneys due
or to become due under any of the provisions of this Sublease.
Section 10.04 If Sublandlord shall default in the performance of any of
-------------
Sublandlord's obligations under this Sublease or under any provisions of the
Lease applicable to Sublandlord, as tenant, notwithstanding the Subtenant's
obligations under the Sublease, which default shall, by its nature, cause
Landlord to seek to terminate the Lease, Subtenant, without thereby waiving such
default, may, at Subtenant's option, perform the same for the account and at the
expense of Sublandlord, subject to Subtenant providing Sublandlord with not less
than five (5) business days' prior written notice. If Sublandlord shall
thereafter fail to cure the default, Subtenant may make such payment or expend
such sums as may be necessary to perform and fulfill such term, covenant or
condition. In such event, the amount of Subtenant's expenditure or payment
reasonably necessary to perform and fulfill any such term, covenant or
condition, together with interest on the amount thereof from the time such
moneys are expended until paid at an annual rate equal to the lesser of (i)
twelve percent (12%) per annum and (ii) the maximum legal rate.
Section 10.05 Subtenant will pay upon demand all of Sublandlord's reasonable
-------------
costs, charges and expenses, including reasonable attorneys' fees, and fees and
expenses of agents and others retained by Sublandlord in any litigation in which
Sublandlord seeks to enforce the terms or provisions of this Sublease, and
Sublandlord prevails.
ARTICLE 11
----------
Notices
-------
Section 11.01 If Subtenant receives any notice or demand from Landlord under
-------------
the Lease, Subtenant shall deliver a copy thereof to Sublandlord by overnight
courier the next business day or as soon thereafter as is reasonably possible
but in no event later than two (2) business days after Subtenant's receipt of
such notice.
Section 11.02 All notices, requests, demands, elections, consents, approvals
-------------
and other communications hereunder ("Notices"), whether or not so stated in the
other provisions of this Sublease, must be in writing and addressed as follows
or sent to the facsimile number set forth below for such party (or to any other
address or facsimile number which such party may designate by Notice):
13
If to Sublandlord: Sony Corporation of America
Real Estate Department
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President, Real Estate
Facsimile Number: (000) 000-0000
with a copy to: Sony Electronics Inc.
Law Department (T 1-4)
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: V.P. and Group Counsel, Real Estate
Facsimile Number: (000) 000-0000
California Casualty Management Company
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attention: Real Estate Manager
Facsimile Number: (000) 000-0000
If to Subtenant: iAsia Works, Inc.
0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile Number: (000) 000-0000
with copy to: California Casualty Management Company
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attention: Real Estate Manager
Facsimile Number: (000) 000-0000
Section 11.03 Any Notice required by this Sublease shall be deemed to be
-------------
duly given or made only if sent by hand, with delivery evidenced by a written
receipt, by overnight delivery or by facsimile transmission, when transmitted to
the facsimile number specified in this Article 11 and confirmation of receipt is
received by the sender or by certified or registered mail, return receipt
requested, and postage and registry fees prepaid. A Notice sent by certified or
registered mail (as above) shall be deemed to be given on the earlier to occur
of the date of receipt of such Notice and the fifth (5th) Business Day after the
date of mailing. All other Notices shall be deemed to be given when received.
ARTICLE 12
----------
Waiver of Redemption and of Jury Trial
--------------------------------------
14
Section 12.01 If Sublandlord acquires possession of the Premises by summary
-------------
proceeding or in any other lawful manner, with or without judicial proceeding,
Sublandlord shall be deemed to have re-entered within the meaning of this
Article 12. To the full extent now or hereafter permitted by law, Subtenant and
Sublandlord waive trial by jury in any action or proceeding brought by either
against the other with respect to the Premises or to any matter pertaining to
this Sublease.
ARTICLE 13
----------
Surrender of Premises; Holdover
-------------------------------
Section 13.01 On the termination of this Sublease, Subtenant shall promptly
-------------
quit and surrender the Premises to Sublandlord broom-clean and in good order,
condition and repair, and in accordance with the applicable provisions of the
Lease except for ordinary wear and tear in the same condition as existed as of
the Commencement Date. Any condition existing because of Subtenant's failure to
perform maintenance, repairs or replacements as required of Subtenant under this
Sublease shall not be deemed "reasonable wear and tear".
Section 13.02 Subtenant shall have no right to occupy the Premises or any
-------------
portion thereof after the expiration of this Sublease or after termination of
this Sublease or of Subtenant's right to possession in consequence of any Event
of Default hereunder. Subtenant shall be liable to Sublandlord for any and all
damages resulting directly or indirectly for Subtenant's failure to vacate. In
the event Subtenant or any party claiming by, through or under Subtenant holds
over, Sublandlord may exercise any and all remedies available to it at law or in
equity to recover possession of the Premises, and to recover damages, including
without limitation, damages payable by Sublandlord to Landlord or Landlord to
Prime Landlord by reason of such holdover. For each and every month or partial
month that Subtenant or any party claiming by, through or under Subtenant
remains in occupancy of all or any portion of the Premises after the expiration
of this Sublease or after termination of this Sublease or Subtenant's right to
possession, Subtenant shall pay, as minimum damages and not as a penalty,
monthly rental at a rate equal to double the rate of Base Rent and Additional
Rent payable by Subtenant hereunder immediately prior to the expiration or other
termination of this Sublease or of Subtenant's right to possession. The
acceptance by Sublandlord of any lesser sum shall be construed as payment on
account and not in satisfaction of damages for such holding over.
Section 13.03 If the Premises are not surrendered upon the termination of
-------------
this Sublease in accordance with the terms and conditions herein, Subtenant
hereby indemnifies Sublandlord from and against any and all losses, liabilities,
obligations, claims, damages, penalties, fines and costs and expenses of every
kind and nature (including, without limitation, reasonable attorneys' fees and
disbursements and court costs) arising out of or in connection with the delay or
failure by Subtenant in so surrendering the Premises.
Section 13.04 Subtenant's obligations under this Article 13 shall survive the
-------------
termination of this Sublease.
15
ARTICLE 14
----------
Quiet Enjoyment
---------------
Section 14.01 As long as Subtenant shall pay the Rent and shall duly
-------------
perform all the terms, covenants and conditions of this Sublease on its part to
be performed, Sublandlord covenants to Subtenant that it shall, subject to the
terms of this Sublease, quietly hold and enjoy the Premises during the Term
without hindrance, ejection, molestation or interruption by Sublandlord.
ARTICLE 15
----------
Assignment and Subletting
-------------------------
Section 15.01 Neither this Sublease nor the term and estate hereby granted
-------------
shall be assigned, mortgaged, pledged, encumbered or otherwise transferred by
Subtenant, by operation of law or otherwise, and neither the Premises, nor any
part thereof, nor any of the Subtenant's property in the Premises shall be
encumbered or sublet or used or occupied or permitted to be used or occupied, or
utilized by anyone other than Subtenant, without the prior written consent of
Landlord and Sublandlord, which consent Sublandlord shall give or withhold in
Sublandlord's sole discretion. Such sublet or assignment shall be subject to
the terms and conditions set forth in the Lease and the Prime Lease.
Section 15.02 For the purposes of this Article 15, (a) the issuance of
-------------
interests in any entity, or the transfer of interests in any entity (whether
stock, partnership interest or otherwise) to any person or group of related
persons, whether in a single transaction or a series of related or unrelated
transactions, in such quantities that after such issuance or transfer, as the
case may be, such transferee shall have control (as hereinafter defined) of such
entity, shall be deemed to be an assignment, except that the transfer of the
outstanding capital stock of any corporate subtenant by persons or parties
through the "over-the-counter" market or any recognized national securities
exchange, shall not be included in the calculation of such transfer of control,
or a merger or consolidation or sale of all or substantially all of the assets
of Subtenant shall be deemed to be an assignment, only if as a result of any of
the events described in this Section 15.02(a), the net worth of Subtenant on the
day after such transfer shall be less than the average net worth of Subtenant on
the first day of each of the preceding twelve (12) months, (b) a "take-over
agreement" pursuant to which one or more persons shall agree to assume the
obligations of Subtenant hereunder in consideration of Subtenant leasing space
in another building shall be deemed to be an assignment of this Sublease and (c)
a modification or amendment of a sublease which decreases the rent, extends the
term or increases or decreases the subleased space shall be deemed to be a
sublease. For the purposes of the preceding sentence, stock ownership shall be
determined in accordance with the principles set forth in Section 544 of the
Internal Revenue Code of 1986, as the same may have been amended. For the
purposes of this Sublease, "control" shall mean, with respect to any
corporation, partnership or other business entity, the possession of the power
directly or indirectly to direct or cause the direction of management and policy
of such corporation, partnership or other business entity, whether through the
ownership of voting securities, by contract, common directors or officers, the
contractual right to manage the business affairs of any such corporation,
partnership or business entity, or otherwise. Any entity to whom
16
Subtenant's interest under this Sublease passes by operation of law or otherwise
shall be bound by the provisions of this Article 15.
ARTICLE 16
----------
Termination of Lease
--------------------
and this Sublease
-----------------
Section 16.01 In the event of and upon the termination or cancellation of
-------------
the Lease pursuant to the terms and provisions thereof, this Sublease shall
automatically cease and terminate on the date of such termination or
cancellation, subject however to all of the rights of Landlord pursuant to the
Lease and to the rights of Subtenant to bring and maintain an action or
proceeding against Landlord in Sublandlord's name for wrongful termination or
cancellation of the Lease, which rights of Subtenant shall survive the
termination of this Sublease. Notwithstanding anything herein to the contrary,
Sublandlord shall not be liable to Subtenant by reason thereof unless both (a)
Subtenant shall not then be in default hereunder, and (b) such termination shall
have been effected because of the breach or default of Sublandlord as tenant
under the Lease or this Sublease.
Section 16.02 Reference in this Sublease to "termination" of this Sublease
-------------
includes expiration or earlier termination of the Term or cancellation of this
Sublease pursuant to any of the provisions of this Sublease or pursuant to law.
Upon the termination of this Sublease, the term and estate granted by this
Sublease shall end at 11:59 p.m. on the date of termination as if such time and
date were the time and date of expiration of the Term, and neither party shall
have any further obligation or liability to the other after such termination,
except (i) as shall be expressly provided for in this Sublease, and (ii) for
such obligations as by their nature or under the circumstances can only be, or
by the provisions of this Sublease, may be, performed after such termination
and, in any event, unless otherwise expressly provided in this Sublease, any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of such termination shall survive the termination of
this Sublease.
ARTICLE 17
----------
Broker
------
Section 17.01 Subtenant represents and warrants to Sublandlord that
-------------
Subtenant has not dealt with any broker, finder or similar person entitled to a
commission, fee or other compensation in connection with the consummation of
this Sublease and no conversations or prior negotiations were had by Subtenant
with any broker, finder or similar person concerning the renting of the Premises
except Xxxxx Xxxxxx Associates ("Subtenant's Broker"). Subtenant hereby
indemnifies and holds Landlord and Sublandlord harmless from and against any and
all losses, liabilities, obligations, claims, damages, penalties, fines and
costs and expenses of every kind and nature (including, without limitation,
reasonable attorneys' fees and disbursements and court costs) and including
claims for brokerage commissions, finder's fees and other compensation,
resulting from any breach by Subtenant of the representation contained in this
Section. The provisions of this Section shall survive the termination of this
Sublease. Except for Subtenant's
17
Broker, Subtenant shall have no liability for any commission, fee or other
compensation by any broker, finder or similar person compensated in connection
with the execution of the Sublease.
Section 17.02 Sublandlord represents and warrants to Subtenant that
-------------
Sublandlord has not dealt with any broker, finder or similar person entitled to
a commission, fee or other compensation in connection with the consummation of
this Sublease except CB Xxxxxxx Xxxxx ("Sublandlord's Broker"). Sublandlord
hereby indemnifies and holds Subtenant harmless from and against any and all
losses, liabilities, obligations, claims, damages, penalties, fines and costs
and expenses of every kind and nature (including, without limitation, reasonable
attorneys' fees and disbursements and court costs) and including claims for
brokerage commissions, finder's fees and other compensation, resulting from any
breach by Sublandlord of the representation contained in this Section. The
provisions of this Section shall survive the termination of this Sublease.
Except for Sublandlord's Broker Sublandlord shall have no liability for any
commission, fee or other compensation by any broker, finder or similar person
compensated in connection with the execution of the Sublease.
ARTICLE 18
----------
Consents and Approvals of Sublandlord
-------------------------------------
Section 18.01 Subtenant agrees that in any case where the provisions of
-------------
this Sublease require the consent or approval of Sublandlord prior to the taking
of any action, it shall be a condition precedent to the taking of such action
that the prior consent or approval of Landlord shall have been obtained, if the
consent or approval of Landlord and must be obtained under the Lease in such
case. Except as otherwise provided herein, Sublandlord, provided Subtenant is
not in default hereunder with respect to a default of which notice has been
given by Sublandlord to Subtenant, agrees that its consent or approval will not
be unreasonably withheld or delayed in any such case as to which Landlord shall
have consented or approved. By way of illustration, but not of limitation,
Sublandlord shall not be deemed to have unreasonably withheld its consent or
approval if the action or other matter as to which such consent or approval is
sought may, in the goodfaith judgment of Sublandlord, materially increase
Sublandlord's liabilities under this Sublease or the Lease or materially
decrease Sublandlord's rights under this Sublease or the Lease or where the
Landlord has not given consent. Sublandlord covenants to use commercially
reasonable efforts, at the sole reasonable cost and expense of Subtenant
(including, without limitation, reasonable attorneys' fees and expenses), to
obtain the consent or approval of Landlord.
Section 18.02 Subtenant hereby waives any claim against Sublandlord for
-------------
monetary damages which it may have based upon any assertion that Sublandlord has
unreasonably withheld or unreasonably delayed any such consent or approval, and
Subtenant agrees that its sole and exclusive remedy for any claimed unreasonable
withholding or delay of any consent or approval shall be an action or proceeding
to enforce any such provision or for specific performance, injunction or
declaratory judgment, without Sublandlord being subject to any money damages
whatsoever, directly or indirectly. If the determination in the action or
proceeding referred to herein shall be favorable to Subtenant, the requested
consent or approval shall be deemed to have been granted; however, Sublandlord
shall have no personal, monetary or other liability to Subtenant for its refusal
or failure to give such consent or approval.
18
ARTICLE 19
----------
Entry
-----
Section 19.01 Sublandlord or Sublandlord's agents or designees shall have
-------------
the right to enter the Sublease Premises at all reasonable times, whether or not
during normal business hours but upon twenty-four (24) hours advance notice to
Subtenant, except in an emergency in which case no notice shall be required, for
any of the purposes specified in this Sublease and (a) to examine the Premises
or for the purpose of performing any obligation of Sublandlord or exercising any
right reserved to Sublandlord in this Sublease; (b) during the last six (6)
months of this Sublease, to exhibit the Sublease Premises to others; (c) to make
or cause to be made such repairs or alterations, or to perform such maintenance
(i) as Sublandlord may deem necessary or desirable for a subtenant of any
portion of the Premises not included within the Sublease Premises but which
would require alterations within the Sublease Premises or (ii) as may be
required pursuant to any legal requirements or insurance requirements or (iii)
as may be necessary or desirable in the case of a default by Subtenant under
this Sublease in any obligation that such party may have to repair, maintain,
replace or restore all or any portion of the Building or the systems servicing
the Premises or Building if such work would require alterations within the
Sublease Premises; and (d) to take into and store upon the Sublease Premises all
materials that may be required in connection with any such repairs, alterations
or maintenance. Sublandlord agrees, however, to use reasonable efforts to effect
such repairs, alterations and maintenance with a minimum of inconvenience to
Subtenant and Subtenant's business in the Sublease Premises. If Subtenant, its
agents or employees shall not be present to permit an entry into the Sublease
Premises in an emergency and such entry shall otherwise be permissible,
Sublandlord may use a master key or forcibly enter the Sublease Premises.
Except in emergencies, and whenever practicable, Sublandlord shall give a notice
to Subtenant with respect to work intended to be done in the Sublease Premises
by Sublandlord.
19
ARTICLE 20
----------
Landlord's Consent to Sublease
------------------------------
Section 20.01 Subtenant hereby acknowledges and agrees that this Sublease
-------------
shall not become effective until, and is expressly conditioned upon, (i) the
delivery by Landlord of a writing signed by Landlord and Prime Landlord (the
"Landlord Consent") pursuant to which Prime Landlord and Landlord shall consent
to this Sublease and the matters set forth herein. Promptly after the full
execution by both parties and delivery of this Sublease, Sublandlord shall
submit this Sublease to Landlord and Prime Landlord together with Sublandlord's
request that Landlord deliver the Landlord Consent. Subtenant shall cooperate
in good faith with Sublandlord and Subtenant shall comply with any reasonable
non-monetary request made of Subtenant by Landlord or Prime Landlord in the
procurement of the Landlord Consent. Sublandlord shall not be obligated to make
any payment to Landlord or Prime Landlord or incur any other expenses or enter
into litigation with Landlord or Prime Landlord in order to obtain the Landlord
Consent. Sublandlord shall not be subject to any liability for failure to
obtain the Landlord Consent, including any asserted costs, expenses or
liabilities of any nature of Subtenant, its agents, contractors, architects or
other professional representatives so long as Sublandlord acts in good faith to
obtain the Landlord Consent. In the event that the Landlord Consent is not
delivered by Landlord within sixty (60) days after the date of this Sublease,
Sublandlord and Subtenant shall destroy any executed counterparts of this
Sublease in their possession and neither party shall have any further liability
to the other with respect to the transaction described herein.
ARTICLE 21
----------
Encumbering Title
-----------------
Section 21.01 Subtenant shall not do any act which shall in any way encumber
-------------
the title of Landlord in and to the Building, Lease Premises or the Premises,
nor shall the interest or estate of Landlord or Sublandlord be in any way
subject to any claim by way of lien or encumbrance, whether by operation of law
by virtue of any express or implied contract by Subtenant, or by reason of any
other act or omission of Subtenant. Any claim to, or lien upon, the Premises,
the Building, Lease Premises or the Premises arising from any act or omission of
Subtenant shall accrue only against the subleasehold estate of Subtenant and
shall be subject and subordinate to the paramount title and rights of Landlord
in and to the Building, Lease Premises or the Premises and the interest of
Sublandlord in the premises leased pursuant to the Lease. Without limiting the
generality of the foregoing, Subtenant shall not permit the Premises, the
Building or the Lease Premises to become subject to any mechanics', laborers' or
materialmen's lien on account of labor or material furnished to Subtenant or
claimed to have been furnished to Subtenant in connection with work of any
character performed or claimed to have been performed on the Premises by, or at
the direction or sufferance of, Subtenant, provided, however, that if so
permitted under the Lease, Subtenant shall have the right to contest in good
faith and with reasonable diligence, the validity of any such lien or claimed
lien if Subtenant shall give to Landlord and Sublandlord such security as may be
deemed satisfactory to them to assure payment thereof and to prevent any sale,
foreclosure, or forfeiture of the Premises, the Building or the Lease Premises
by reason of non-payment thereof, provided further, however, that on final
20
determination of the lien or claim of lien, Subtenant shall immediately pay any
judgment rendered, with all proper costs and charges, and shall have the lien
released any judgment satisfied.
ARTICLE 22
----------
Miscellaneous
-------------
Section 22.01 Neither Landlord nor Sublandlord nor any agent, representative
-------------
or employee of any of them has made any representations, agreements or promises
with respect to the Building, the Lease Premises or the Premises or the use
thereof other than those expressly set forth in this Sublease and no rights are
to be deemed to be acquired by Subtenant, by implication or otherwise, except
those expressly granted herein.
Section 22.02 Notwithstanding the place of execution or performance, this
-------------
Sublease shall be construed and enforced in accordance with and governed by the
laws of the State in which the Premises is located. If any provision of this
Sublease or the application thereof to any person or circumstance shall, for any
reason and to any extent, be invalid or unenforceable, the remainder of this
Sublease and the application of that provision to other persons or circumstances
shall not be affected but rather shall be enforced to the extent permitted by
law. This Sublease shall be construed without regard to any presumption or other
rule requiring construction against the party causing this Sublease to be
drafted.
Section 22.03 This Sublease contains the entire agreement and understanding
-------------
between Sublandlord and Subtenant with respect to the Sublease Premises and all
prior negotiations and agreements are merged in this Sublease. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties relating to the subject matter of this Sublease which are
not fully expressed in this Sublease.
Section 22.04 This Sublease may not be modified or amended or any term or
-------------
provision hereof waived or discharged except in a writing signed by the party
against whom such amendment, modification, waiver or discharge is sought to be
enforced. Any executory agreement hereafter made between Sublandlord and
Subtenant shall be ineffective to change, modify, waive, release, discharge,
terminate or effect an abandonment or surrender of this Sublease, in whole or in
part, unless such agreement is in writing and signed by the parties.
Section 22.05 Each right and remedy of Sublandlord provided for in this
-------------
Sublease shall be cumulative and shall be in addition to every other right and
remedy provided for in this Sublease or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 22.06 The terms, covenants and conditions contained in this
-------------
Sublease whether so expressed or not shall be binding upon and inure to the
benefit of and be enforceable by Sublandlord and Subtenant and their respective
successors and assigns, except that no violation of the provisions of this
Sublease regarding assignments and sublets shall operate to vest any rights in
any successor or assignee of Subtenant. It is understood and agreed that the
obligations of Sublandlord under this Sublease shall not be binding upon
Sublandlord with respect to any period subsequent to the transfer of its
interest in the Sublease, and that in the event of such
21
transfer such obligations shall be binding upon the transferee of Sublandlord's
interest but only with respect to the period commencing on the date of such
transfer and ending on the date of a subsequent transfer thereof.
Section 22.07 The headings of this Sublease are for purposes of reference
-------------
only and shall not limit or otherwise affect the meaning thereof. All articles,
sections, subsections and exhibits referred to in this Sublease refer to
articles, sections, subsections and exhibits contained in this Sublease, unless
expressly indicated otherwise. All exhibits annexed hereto are hereby made a
part of this Sublease. All references in this Sublease to "herein," "hereof" or
"hereunder" shall be references to this Sublease in its entirety and not to any
particular provision of this Sublease.
Section 22.08 Subtenant shall look solely to Sublandlord for the
-------------
satisfaction of any right of Subtenant for the collection of a judgment or other
judicial process or arbitration award requiring the payment of money by
Sublandlord and no property or assets of the parent, affiliates or subsidiaries
of Sublandlord, or the agents, incorporators, subscribers to the capital stock,
shareholders, officers, directors, partners, joint venturers or principals
(disclosed or undisclosed) of any of the foregoing shall be subject to levy,
lien, execution, attachment, or other enforcement procedure for the satisfaction
of Subtenant's rights and remedies under or with respect to this Sublease, the
relationship of Sublandlord and Subtenant hereunder or under law or Subtenant's
use and occupancy of the Premises or any other liability of Sublandlord to
Subtenant under or with respect to this Sublease.
Section 22.09 The failure of Sublandlord to insist in any one or more cases
-------------
upon the strict performance or observance of any obligation of the other
hereunder or to exercise any right or option contained herein shall not be
construed as a waiver or relinquishment for the future of any such obligation of
or any right or option. Sublandlord's receipt and acceptance of Rent, or
Sublandlord's acceptance of performance of any other obligation by Subtenant,
with knowledge of Subtenant's breach of any provision of this Sublease, shall
not be deemed a waiver of such breach. No waiver by Sublandlord of any term,
covenant or condition of this Sublease shall be deemed to have been made unless
expressed in writing and signed by Sublandlord.
Section 22.10 This Sublease may be executed in several counterparts each
-------------
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
Section 22.11 This Sublease shall not be binding until each party has
-------------
delivered to the other an original fully executed Sublease or original executed
counterparts.
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Section 22.12 Subtenant agrees to comply with all rules and regulations
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that Landlord has made or may hereafter from time to time make for the Building.
Sublandlord shall not be liable in any way for damage caused by the non-
observance by any of the other tenants of such similar covenants in their leases
or of such rules and regulations.
IN WITNESS WHEREOF, Sublandlord and Subtenant have duly executed this
Sublease as of the day and year first above written.
SUBLANDLORD:
Witness:
PSYGNOSIS, LTD.
/s/ X. Xxxxx
----------------------------- By: /s/ Xxxx Xxxxxxx
-----------------------------------
Print Name: Xxxx Xxxxxxx
------------------------
Print Title: V.P. Publishing
-----------------------
SUBTENANT:
Attest:
iASIA WORKS, INC.
_____________________________
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Print Name: Xxx X. Xxxxxx
------------------------
Print Title: CFO/US President
-----------------------
ACKNOWLEDGED AND CONSENTED TO:
LANDLORD:
CALIFORNIA CASUALTY MANAGEMENT COMPANY
A California Corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxxx
----------------------
Print Title: Asst. V.P. & Real Estate Mgr.
--------------------------------
Date: 05-01-00
----------------------------
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