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Full Doc
 | 2001 |
Asset Sale Agreement
Asset Sale Agreement (25K)
Doc #342276: Click preview link for longer preview.
ASSET SALE AGREEMENT
This Asset Sale Agreement ("Agreement") is made this 19th day of September 2001,
by and between:
PARTIES
iAsiaWorks Korea Ltd., a company incorporated under the laws of Republic of
Korea and having its registered office at 1423-1/2 Seocho-dong, Seocho-gu,
Seoul, Korea ("IAWK")
DACOM Corporation, a company incorporated under the laws of the Republic of
Korea and having its registered office at 706-1Yeoksam-dong, Kangnam-gu,
Seoul Korea ("DACOM")
RECITALS
WHEREAS, IAWK owns the Assets (as defined below).
WHEREAS, IAWK desires to sell and DACOM desires to acquire the Assets.
NOW, THEREFORE, IAWK has agreed to sell and DACOM has agreed to purchase the
Assets on the terms and conditions of this Agreement.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 Definitions
The following definitions apply in this Agreement.
"Assets" means the following assets:
(a) the benefit of the Customer Contracts;
(b) the Related Contracts; and
(c) the Equipment.
"Completion" means the completion of the sale and purchase of the Assets in
accordance with the terms of this Agreement.
"Completion Date" means October 6, 2001 or earlier, if the parties agree.
"Confidential Information" means all trade secrets and all financial,
marketing and technical information, ideas, concepts, technology, processes
and knowledge which is confidential or of a sensitive nature owned or used
at any time by IAWK in connection with the Business other than that which
is in the public domain.
{PAGE}
"Contracts" means the Customer Contracts and Related Contracts.
"Customer Contracts" means the agreements, arrangements, understandings and
orders entered into, made or accepted by IAWK in respect of the customers
listed in Exhibit A of the Schedule.
"Deposit" means the deposit of KRW 600,000,000 ("Six Hundred Million") made
to IAWK on September 05, 2001 pursuant to the Letter Agreement.
"Deductions" mean the sum of the outstanding penalty for DACOM 45Mbps
leased line payable to DACOM, (which shall not exceed KRW 265,000,000), all
the outstanding payables to DACOM to be calculated in accordance with the
relevant contracts made between IAWK and DACOM.
"Equipment" means equipment owned or leased (to the extent agreed by
lessor) by IAWK in the Business and listed in Item 1 of the Schedule and
includes billing, network management and other systems required to support
the customer base, network backbone routers and switches, and customer
premise routers; but specifically excludes power and environmental
equipment and facilities.
"Letter Agreement" means the Letter Agreement made between IAWK and DACOM
on September 05, 2001, pursuant to which the deposit of KRW 600,000,000
("Six Hundred Million") has been made to IAWK.
"Loss or Claim" means, in relation to any person, a damage, loss, cost,
expense or liability incurred by the person or a claim, demand, action,
proceeding or judgment made against the person, however arising and whether
present or future, fixed or unascertained, actual or contingent.
"Purchase Price" means KRW 3,000,000,000, as adjusted in accordance with
Clause 3.1 herein.
"Related Contracts" means contracts related to the Assets and listed in
Item 2 of the Schedule
1.2 Rules for interpreting this Agreement
Headings are for convenience only, and should not be used in interpreting
the meaning or input of each section of this Agreement. The word
"agreement" includes an undertaking or other binding arrangement or
understanding,
2. PURCHASE OF THE ASSETS
2.1 Sale and purchase
IAWK shall sell to DACOM and DACOM shall purchase from IAWK the Assets for
the Purchase Price pursuant to the terms and conditions of this Agreement.
{PAGE}
2.2 Title, property and risk
The title to, property in and risk of the Asset:
(a) until Completion, remains solely with IAWK; and
(b) passes to DACOM on and from Completion.
IAWK is entitled to the revenue, profits and receivables until the
Completion Date, and must bear and pay in the proper time all outgoings and
payables relating to the Assets, incurred in the ordinary course, until the
Completion Date. For the avoidance of the doubt, any billing under the
Customer Contract and Related Contracts shall be made by IAWK for the
period immediately prior to the Completion Date and by DACOM for the period
commencing from the Completion Date.
3. PURCHASE PRICE
3.1 DACOM shall pay to IAWK the remainder of the Purchase Price on the
Completion Date. The remainder of the Purchase Price shall be the net
amount of the Purchase Price, less the Deposit and the Deductions payable
to DACOM. The payment of the Purchase Price shall be in the form of a bank
342276
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iAsiaWorks
As referenced in this Asset Sale Agreement:
iAsiaWorks, Inc – result of disclosure in
breach of clause 12.1(b)).
12.2 Disclosure to public
DACOM and IAWK (and/or its parent company, iAsiaWorks, Inc ., a company
existing under the laws of the state of Delaware, USA) agree that each
party has a right to review each
_____________
dt 692721
| |
Preview
Full Doc
| 2001 |
Asset Transfer Agreement
Asset Transfer Agreement (49K)
Doc #342275: Click preview link for longer preview.
ASSET TRANSFER AGREEMENT
This ASSET TRANSFER AGREEMENT (the "Agreement") is made this 1st day of
September, 2001 by and between iAsiaWorks Korea, Ltd., a company organized and
existing under the laws of the Republic of Korea, with its registered office
located at 1423-1/2, Seocho-Dong, Seocho-Ku, Seoul, Korea ("Seller") and Korea
Internet Data Center Inc., a company organized and existing under the laws of
the Republic of Korea, with its registered office located at KIDC Bldg., 261-1,
Nonhyun-Dong, Kangnam-Ku, Seoul, Korea ("Purchaser").
WITNESSETH
WHEREAS, Seller wishes to sell, transfer, convey, and deliver to Purchaser,
and Purchaser desires to purchase, acquire, accept and receive from the Seller,
all of the rights, title and interest of Seller in certain landlots, building,
equipments and components as specifically described hereunder.
NOW, THEREFORE, in light of the mutual covenants, rights, obligations and
consideration herein contained, and intending to be legally bound, the parties
mutually agree as follows;
ARTICLE 1. TRANSFER OF ASSETS
------------------
1.1 Transfer of Assets. Upon the terms and subject to the conditions set forth
------------------
in this Agreement, Seller agrees to sell, transfer, convey, deliver and
assign to Purchaser, and Purchaser desires to purchase, acquire, accept and
assume from the Seller, as the case may be, all rights, title, and interest
of Seller in and to certain landlots (the "Landlots"), building structure
(the "Building") and equipments and components (collectively the "Tangible
Assets") as specifically set forth respectively in Exhibit 1 (hereinafter
the Landlots, Building and Tangible Assets collectively referred to as the
"Assets"), which Exhibit is hereby incorporated into and made part of this
Agreement.
1.2 Joint Verification. Seller and Purchaser shall jointly inspect and verify
------------------
the existence and operability of Assets to be delivered on the Closing
Date, which inspection and
{PAGE}
verification shall be carried out, at the latest, one (1) day prior to the
Closing.
ARTICLE 2. CLOSING
-------
2.1 Time and Place of Closing. The closing hereunder (hereinafter the
-------------------------
"Closing") shall take place within five (5) business days after the
fulfillment and satisfaction or waiver, as the case may be, of all the
conditions to close set forth in Article 7 herein, at Purchaser's place of
business or at such other time and place as may be mutually agreed upon by
Purchaser and Seller (hereinafter the "Closing Date"); provided, however,
that the Closing shall take place no later than September 15, 2001, and
provided further, that the Closing Date may be extended for the maximum
term of two (2) weeks, in the event either party requests such extension.
2.2 Seller's Deliverables. Seller shall deliver to Purchaser on or before the
---------------------
Closing Date all of the following:
a) delivery of all documents required for the registration of the change
of ownership from Seller to Purchaser related to the Landlots and
Building;
b) delivery of all Assets physically deliverable by means to be agreed
between the parties;
c) delivery of certified copy of the minutes for an extraordinary
shareholders meeting of Seller approving the consummation of
transactions prescribed in this Agreement;
d) certain documents evidencing the Seller's title/ownership of the
Tangible Assets , including without limitation;
i) a confirmation letter of Samsung Corporation ("SamSung") with
respect to the Assignment of the Main Contract for the Design
executed on October 20, 2000 and Build and the Contract for
Building Modification executed on November 10, 2000 respectively
between Seller and SamSung (including any amendments thereof)
that Seller has complete and unrestricted ownership of certain
facilities, equipments and furniture supplied by SamSung under
said Contracts and that SamSung assures Purchaser's entitlements
to certain Warranties, insurance and Warranty bonds conceived in
the said Contracts;
ii) a confirmation letter of Beauty Sparks confirming the Seller's
ownership of certain cables and racks supplied by Beauty Sparks;
iii) a confirmation letter of the previous owner who had a title and
ownership,
{PAGE}
confirming the complete and unrestricted ownership of Seller
related to two (2) Piller Generators currently installed within
the Building; and a confirmation letter of Piller Gmbh that
certain warranty obligations prescribed in the Turnkey System
Agreement (dated July 6, 2000) is extended to Purchaser, with
respect to such Generators;
iv) a novation agreement of the Framework Agreement (dated August 30,
2000) and the Term Agreement by Purchaser, Piller Gmbh and
iAsiaWorks, Inc with respect to one (1) Piller Generator
currently kept within the Building and not yet installed; and
v) a novation agreement of the Turnkey System Agreement (dated July
6, 2000) by Purchaser, Piller Gmbh and the previous owner with
respect to one (1) Piller Generator currently kept in Germany by
Piller Gmbh. without limitation by specific enumeration of the
foregoing, all other documents reasonably required to consummate
the transaction herein contemplated, which documents shall be
mutually agreed.
2.3 Purchaser's Deliverables. Purchaser shall execute and/or deliver to Seller
------------------------
at the Closing all of the following;
a) the Purchase Price;
b) an instruction to the escrow agent prescribed in Article 3.2.1 below
to release escrow amount to Seller; and,
c) without limitation by specific enumeration of the foregoing, all other
documents reasonably required to consummate the transaction herein
contemplated, which documents shall be mutually agreed.
2.4 Actions Pending Closing. Upon the execution of this Agreement and the
-----------------------
escrow of the Initial Payment as prescribed in Article 3.2 below, Seller
shall not solicit, accept, discuss, pursue or otherwise involve itself in
the sale of, or in the creation of any mortgage, lien, pledge encumbrance
or lease on, any of the Assets, without prior written consent of Purchaser.
ARTICLE 3. PURCHASE PRICE AND PAYMENT
--------------------------
3.1 Purchase Price. The purchase price under this Agreement, for the sale of
--------------
the Assets by Seller to Purchaser shall be initially as follows:
{PAGE}
Landlots - (won)22,325,316,624
Building - (won) 5,284,523,376
Tangible Assets - W9,590,160,000 (excluding VAT)
Total: Thirty Seven Billion Two Hundred Million Won ((won)37,200,000,000)
(the "Aggregate Purchase Price"), not including applicable VAT, which shall be
paid by Buyer to Seller at the time of Closing.
For the avoidance of doubt, each item of Tangible Assets shall be as
prescribed in Part 2 of Exhibit 1; and any intellectual property and
softwares that were required for the operation and maintenance of the
342275
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iAsiaWorks
As referenced in this Asset Transfer Agreement:
iAsiaWorks, Inc – such Generators;
iv) a novation agreement of the Framework Agreement (dated August 30,
2000) and the Term Agreement by Purchaser, Piller Gmbh and
iAsiaWorks, Inc with respect to one (1) Piller Generator
currently kept within the Building and not yet installed; and
v) a novation agreement of
_____________
iAsiaWorks, Inc – disclosure in
breach of clause 11.1(b)).
11.2 Disclosure to public. Both the Purchaser and Seller (and/or its parent
--------------------
company, iAsiaWorks, Inc ., a company existing under the laws of the state
of Delaware, USA) agree that each party has a right to review each
_____________
dt 692720
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| Full Doc
| 2000 |
Bylaws
Bylaws (45K)
Doc #342312: This document is immediately available for purchase, but does not have a preview available for viewing.
342312
|
iAsiaWorks
As referenced in this Bylaws:
IASIAWORKS, INC – {DOCUMENT}
{TYPE}EX-3.3
{SEQUENCE}3
{FILENAME}0003.txt
{DESCRIPTION}BYLAWS
{TEXT}
{PAGE}
Exhibit 3.3
BYLAWS
OF
IASIAWORKS, INC .,
a Delaware corporation
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be at the office
-----------------
of Corporation Service Company
_____________
IASIAWORKS, INC – it shall not divest or limit
the power of the stockholders to adopt, amend or repeal Bylaws.
13
{PAGE}
CERTIFICATE OF SECRETARY OF
IASIAWORKS, INC .
The undersigned certifies:
(1) That the undersigned is the duly elected and acting Secretary of
iAsiaWorks, Inc., a Delaware corporation (the "Corporation");
_____________
iAsiaWorks, Inc – 13
{PAGE}
CERTIFICATE OF SECRETARY OF
IASIAWORKS, INC.
The undersigned certifies:
(1) That the undersigned is the duly elected and acting Secretary of
iAsiaWorks, Inc ., a Delaware corporation (the "Corporation"); and
(2) That the foregoing Bylaws constitute the Bylaws of the Corporation as
duly adopted at a
_____________
iAsiaWorks, Inc – Bylaws constitute the Bylaws of the Corporation as
duly adopted at a Joint Meeting of the Board of Directors and sole stockholder
of iAsiaWorks, Inc ., a Delaware corporation, on the 13th day of April, 2000.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
_____________
dt 692740
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Preview
Full Doc
| 2000 |
Employee Stock Purchase Plan
Employee Stock Purchase Plan (33K)
Doc #342293: Click preview link for longer preview.
IASIAWORKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the interests
of iAsiaWorks, Inc., a Delaware corporation, by providing eligible employees
with the opportunity to acquire a proprietary interest in the Corporation
through participation in a payroll deduction-based employee stock purchase plan
designed to qualify under Section 423 of the Code.
Capitalized terms . . .
342293
|
iAsiaWorks
As referenced in this Employee Stock Purchase Plan:
IASIAWORKS, INC – DOCUMENT}
{TYPE}EX-99.2
{SEQUENCE}5
{FILENAME}0005.txt
{DESCRIPTION}IASIA WORKS, INC. EMPLOYEE STOCK PURCHASE PLAN
{TEXT}
{PAGE}
EXHIBIT 99.2
IASIAWORKS, INC .
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the interests
of iAsiaWorks,
_____________
iAsiaWorks, Inc – IASIAWORKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the interests
of iAsiaWorks, Inc ., a Delaware corporation, by providing eligible employees
with the opportunity to acquire a proprietary interest in the Corporation
through participation in a
_____________
iAsiaWorks, Inc – that State's conflict-of-laws rules.
9.
{PAGE}
Schedule A
Corporations Participating in
Employee Stock Purchase Plan
As of the Effective Time
------------------------
iAsiaWorks, Inc .
{PAGE}
APPENDIX
--------
The following definitions shall be in effect under the Plan:
A. Board shall mean the Corporation's Board of Directors.
-----
_____________
iAsiaWorks, Inc – subsidiary corporation
-------------------
of the Corporation (as determined in accordance with Code Section 424), whether
now existing or subsequently established.
G. Corporation shall mean iAsiaWorks, Inc ., a Delaware corporation,
-----------
and any corporate successor to all or substantially all of the assets or voting
stock of iAsiaWorks, Inc. that
_____________
iAsiaWorks, Inc – shall mean iAsiaWorks, Inc., a Delaware corporation,
-----------
and any corporate successor to all or substantially all of the assets or voting
stock of iAsiaWorks, Inc . that shall by appropriate action adopt the Plan.
H. Effective Time shall mean the time at which the Underwriting
--------------
Agreement is executed
_____________
dt 692732
| |
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Full Doc
| 2000 |
Employee Stock Purchase Plan
Employee Stock Purchase Plan (33K)
Doc #342308: Click preview link for longer preview.
IASIAWORKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the interests
of iAsiaWorks, Inc., a Delaware corporation, by providing eligible employees
with the opportunity to acquire a proprietary interest in the Corporation
through participation in a payroll deduction-based employee stock purchase plan
designed to qualify under Section 423 of the Code.
Capitalized terms . . .
342308
|
iAsiaWorks
As referenced in this Employee Stock Purchase Plan:
IASIAWORKS, INC – {DOCUMENT}
{TYPE}EX-10.3
{SEQUENCE}5
{FILENAME}0005.txt
{DESCRIPTION}FORM OF REGISTRANTS
{TEXT}
{PAGE}
EXHIBIT 10.3
IASIAWORKS, INC .
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the interests
of iAsiaWorks,
_____________
iAsiaWorks, Inc – IASIAWORKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the interests
of iAsiaWorks, Inc ., a Delaware corporation, by providing eligible employees
with the opportunity to acquire a proprietary interest in the Corporation
through participation in a
_____________
iAsiaWorks, Inc – that State's conflict-of-laws rules.
9.
{PAGE}
Schedule A
Corporations Participating in
Employee Stock Purchase Plan
As of the Effective Time
------------------------
iAsiaWorks, Inc .
{PAGE}
APPENDIX
--------
The following definitions shall be in effect under the Plan:
A. Board shall mean the Corporation's Board of Directors.
-----
_____________
iAsiaWorks, Inc – subsidiary corporation
-------------------
of the Corporation (as determined in accordance with Code Section 424), whether
now existing or subsequently established.
G. Corporation shall mean iAsiaWorks, Inc ., a Delaware corporation,
-----------
and any corporate successor to all or substantially all of the assets or voting
stock of iAsiaWorks, Inc. that
_____________
iAsiaWorks, Inc – shall mean iAsiaWorks, Inc., a Delaware corporation,
-----------
and any corporate successor to all or substantially all of the assets or voting
stock of iAsiaWorks, Inc . that shall by appropriate action adopt the Plan.
H. Effective Time shall mean the time at which the Underwriting
--------------
Agreement is executed
_____________
dt 692738
| |
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Full Doc
| 2001 |
Employment Agreement
Employment Agreement (21K)
Doc #342270: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of October 12, 2001, by and between
Nicholas Pianim ("Executive") and iAsiaWorks, Inc., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under this
-------------------
Agreement, the Company agrees to employ Executive in the position of Chief
Executive Officer. Executive shall report to the Company's Board of Directors, . . .
342270
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – PAGE}
EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of October 12, 2001, by and between
Nicholas Pianim ("Executive") and iAsiaWorks, Inc ., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under
_____________
iAsiaWorks, Inc – of the Company by its duly authorized officer, as of the day and year first
above written.
EXECUTIVE
/s/ Nicholas Pianim
------------------------------------------
Nicholas Pianim
iAsiaWorks, Inc .
By: /s/ Derrick Hansen
--------------------------------------
Title: General Counsel and Secretary
-----------------------------------
7
{/TEXT}
{/DOCUMENT}
_____________
dt 692716
| |
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Full Doc
| 2001 |
Employment Agreement
Employment Agreement (19K)
Doc #342271: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of October 12, 2001, by and between
Andrew Gidney ("Executive") and iAsiaWorks, Inc., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under this
-------------------
Agreement, the Company agrees to employ Executive in the position of Chief
Financial Officer. Executive shall report to the Company's Chief . . .
342271
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – PAGE}
EXHIBIT 10.36
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of October 12, 2001, by and between
Andrew Gidney ("Executive") and iAsiaWorks, Inc ., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under
_____________
iAsiaWorks, Inc – of the Company by its duly authorized officer, as of the day and year first
above written.
EXECUTIVE
/s/ Andrew Gidney
----------------------------------------------
Andrew Gidney
iAsiaWorks, Inc .
By: /s/ Derrick Hansen
------------------------------------------
Title: General Counsel and Secretary
---------------------------------------
6
{/TEXT}
{/DOCUMENT}
_____________
dt 692717
| |
Preview
Full Doc
| 2001 |
Employment Agreement
Employment Agreement (22K)
Doc #342277: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of April 30, 2001, by and between
Nicholas Pianim ("Executive") and iAsiaWorks, Inc., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment
-------------------
under this Agreement, the Company agrees to employ Executive in the position of
Vice President of Global Corporate Development. . . .
342277
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – 10.31
EXECUTION COPY
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of April 30, 2001, by and between
Nicholas Pianim ("Executive") and iAsiaWorks, Inc ., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment
-------------------
under
_____________
iAsiaWorks, Inc – of the Company by its duly authorized officer, as of the day and year first
above written.
EXECUTIVE
/s/ Nicholas Pianim
-----------------------------------
Nicholas Pianim
iAsiaWorks, Inc .
By: /s/ Jonathan Beizer
-------------------------------
Title: Chief Executive Officer
----------------------------
7
{/TEXT}
{/DOCUMENT}
_____________
dt 692722
| |
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| 2001 |
Employment Agreement
Employment Agreement (53K)
Doc #342282: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of October 26, 2000, by and between
William McCauley ("Executive") and iAsiaWorks, Inc., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under this
-------------------
Agreement, Executive will be the Chief Operating Officer ("COO") of the Company.
Executive's position with the Company will be based in . . .
342282
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – PAGE}
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of October 26, 2000, by and between
William McCauley ("Executive") and iAsiaWorks, Inc ., a Delaware corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under
_____________
iAsiaworks, Inc – the case of the Company by its duly authorized officer, as of the day and
year first above written.
EXECUTIVE
___________________________________
William McCauley
iAsiaworks, Inc .
By:________________________________
Title:_____________________________
9
{PAGE}
EXHIBIT A
Promissory Note
---------------
$_________ _________,2000
FOR VALUE RECEIVED, William R. McCauley ("Marker") promises to
_____________
iAsiaWorks, Inc – Maker: William R. McCauley
11
{PAGE}
EXHIBIT B
Proprietary Information and Inventions Agreement
------------------------------------------------
The following Agreement confirms certain terms of my employment with
iAsiaWorks, Inc . (hereafter referred to as "the Company"), which is a material
part of the consideration for my employment by the Company and the
_____________
iAsiaWorks, Inc – change or limit this Agreement in any matter whatsoever.
A. Definitions
-----------
1. The "Company"
-------------
As used in this Agreement, the "Company" refers to iAsiaWorks, Inc .
and each of its subsidiaries or affiliated companies. I recognize and agree
that my obligations under this Agreement and all terms of
_____________
iAsiaWorks, Inc – obligations under this Agreement and all terms of this Agreement apply
to me regardless of whether I am employed by or work for iAsiaWorks, Inc . or any
other subsidiary or affiliated company of iAsiaWorks, Inc.. Furthermore, I
understand and agree that the terms of this Agreement will
_____________
dt 692725
;
|
United Air Lines
As referenced in this Employment Agreement:
United Air Lines, Inc – air travel longer than four hours in
duration, Executive is authorized to travel at a class higher than coach class
and to select United Air Lines, Inc . as a preferred provider of air travel.
6
{PAGE}
7. Taxes. All forms of tax liabilities of Executive shall be borne solely
-----
_____________
dt 699133
|
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Full Doc
| 2000 |
Employment Agreement
Employment Agreement (21K)
Doc #342301: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of July 10, 2000, by and between
JoAnn Patrick-Ezzell ("Executive") and iAsiaWorks, Inc., a California
corporation (the "Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of her employment under
-------------------
this Agreement, you will be the Chief Executive Officer ("CEO") and Chairman of
the Board of Directors of the . . .
342301
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of July 10, 2000, by and between
JoAnn Patrick-Ezzell ("Executive") and iAsiaWorks, Inc ., a California
corporation (the "Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of her employment under
-------------------
_____________
iAsiaWorks, Inc – Title: Director
------------------------
6
{PAGE}
EXHIBIT A
---------
PROMISSORY NOTE
$100,000
July 10, 2000
FOR VALUE RECEIVED, JoAnn Patrick-Ezzell promises to pay to
iAsiaWorks, Inc ., a California corporation (the "Company"), the principal sum of
One Hundred Thousand Dollars ($100,000.00). This Note will not bear interest.
_____________
dt 692734
| |
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| 2000 |
Employment Agreement
Employment Agreement (19K)
Doc #342318: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of May 5, 2000, by and between David
Holub ("Executive") and iAsiaWorks, Inc., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under this
-------------------
Agreement, the Company agrees to employ Executive in the position of Vice
President of Internet and Data Center Technology. Executive shall report to . . .
342318
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – PAGE}
Exhibit 10.13
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of May 5, 2000, by and between David
Holub ("Executive") and iAsiaWorks, Inc ., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under
_____________
iAsiaworks, Inc – the Company by its duly authorized officer, as of the day and
year first above written.
EXECUTIVE
/s/ David Holub
____________________________________
David Holub
iAsiaworks, Inc .
/s/ Jonathan Beizer
By:_________________________________
CFO, U.S. President
Title:______________________________
6
{/TEXT}
{/DOCUMENT}
_____________
dt 692743
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| 2000 |
Employment Agreement
Employment Agreement (21K)
Doc #342319: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of June 7, 2000, by and between
Jon Beizer ("Executive") and iAsiaWorks, Inc., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment
-------------------
under this Agreement, the Company agrees to employ Executive in the position of
President - U.S. and Chief Financial Officer (" . . .
342319
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – PAGE}
Exhibit 10.15
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of June 7, 2000, by and between
Jon Beizer ("Executive") and iAsiaWorks, Inc ., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment
-------------------
under
_____________
dt 692744
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Employment Agreement
Employment Agreement (16K)
Doc #342320: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of May 14, 2000, by and between
Suzanne Chu ("Executive") and iAsiaWorks, Inc., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of her employment
-------------------
under this Agreement, the Company agrees to employ Executive in the position of
Vice President of Marketing. Executive shall report . . .
342320
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – PAGE}
EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of May 14, 2000, by and between
Suzanne Chu ("Executive") and iAsiaWorks, Inc ., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of her employment
-------------------
under
_____________
iAsiaWorks, Inc – of the Company by its duly authorized officer, as of the day and
year first above written.
EXECUTIVE
/s/ Suzanne Chu
-------------------------------------
Suzanne Chu
iAsiaWorks, Inc .
By:/s/ Jonathan Beizer
-----------------------------
Title: CFO
---------
5
{/TEXT}
{/DOCUMENT}
_____________
dt 692745
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Employment Agreement
Employment Agreement (18K)
Doc #342321: Click preview link for longer preview.
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of April 27, 2000, by and between
Daryl Horn ("Executive") and iAsiaWorks, Inc., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under
-------------------
this Agreement, the Company agrees to employ Executive in the position of Vice
President of Sales. Executive shall report to the . . .
342321
|
iAsiaWorks
As referenced in this Employment Agreement:
iAsiaWorks, Inc – PAGE}
EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of April 27, 2000, by and between
Daryl Horn ("Executive") and iAsiaWorks, Inc ., a California corporation (the
"Company").
1. Duties and Scope of Employment.
------------------------------
(a) Position and Duties. For the term of his employment under
-------------------
_____________
iAsiaworks, Inc – Company by its duly authorized officer, as of the day and
year first above written.
5
{PAGE}
EXECUTIVE
/s/ Daryl Horn
----------------------
Daryl Horn
iAsiaworks, Inc .
By: /s/ Jonathan Beizer
-------------------
Title: Chief Financial Officer
-----------------------
6
{/TEXT}
{/DOCUMENT}
_____________
dt 692746
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Letter Agreement
Letter Agreement (8K)
Doc #342286: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10.29
{SEQUENCE}6
{FILENAME}0006.txt
{DESCRIPTION}LETTER AGREEMENT, DATED APRIL 1, 2001
{TEXT}
{PAGE}
EXHIBIT 10.29
April 1, 2001
JoAnn Patrick-Ezzell
Dear JoAnn:
In connection with the resignation of your employment as Chief
Executive Officer and as an employee of iAsiaWorks, Inc. (the "Company"), you
-------
and the Company agree to the following arrangements.
You shall resign from your position as Chief Executive Officer of the
Company, effective as of April 2, 2001, and you shall resign your employment
with the Company, effective April 14, 2001 (the "Effective Date"). However, as
--------------
of the Effective Date, you shall continue as the Chairman and a member of the
Company's Board of Directors (the "Board") until your resignation, death or a
-----
successor is appointed. While continuing to serve as a member of the Board, you
shall be subject to all obligations and, except for the automatic grant of
directors' options provided in the Company's 2000 Stock Incentive Plan, be
entitled to the benefits of a non-employee director of the Company, including
without limitation reimbursement of reasonable business expenses in the same
manner as other non-employee directors. Of course, as of April 2, 2001, you
shall not be permitted to act for or bind the Company without the express
authorization of the Board. Except as provided herein, as of the Effective
Date, you shall be deemed to have resigned all other titles and positions that
you currently hold in respect of the Company and all of its subsidiaries and
affiliates, and shall no longer be entitled to participate in any employee
benefit plans or perquisites to which you were entitled as an employee of the
342286
|
iAsiaWorks
As referenced in this Letter Agreement:
iAsiaWorks, Inc – 2001
JoAnn Patrick-Ezzell
Dear JoAnn:
In connection with the resignation of your employment as Chief
Executive Officer and as an employee of iAsiaWorks, Inc . (the "Company"), you
-------
and the Company agree to the following arrangements.
You shall resign from your position as Chief Executive Officer of
_____________
dt 692728
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Letter Agreement
Letter Agreement (26K)
Doc #342278: Click preview link for longer preview.
[LOGO OF iASIA WORKS] [LETTERHEAD OF iASIA WORKS]
May 15, 2001
Mr. Jon Engman
3515 Monterey Ct. NE
Newcastle, WA 98056
Dear Jon,
On behalf of iAsiaWorks, ("The Company"), it gives me great pleasure to offer
you the position of Chief Financial Officer. You will be reporting directly to
Jonathan Beizer, the Chief Executive Officer of the Company. During your
employment, you agree to devote your full business time, energy and skill to
your duties at the Company. You will be responsible for administering and
overseeing, on a worldwide basis, all financial operations and implementing
policies and procedures as appropriate. You will also have those
responsibilities and duties consistent with duties customarily performed by a
Chief Financial Officer, as designated to you by either the Chief Executive
Officer or the Board of Directors, or as assigned to you by the Chief Executive
Officer or the Board of Directors from time to time.
Since we are eager for you to join us, we would like you to begin on or before
May 28, 2001.
Your main terms and conditions are set out in this document. These, and the
Company's Policies & Procedures, which you will receive, by way of our Team
Member Manual, upon your start of employment, form the further and particulars
to your employment with the Company. Accordingly, the main terms are as follows:
1. Base Salary
Your starting annual gross salary will be $210,000.00, less applicable
withholdings and deductions (hereinafter "Salary") in accordance with the
Company's payment policy. Upon your start of employment, you should refer to
the Team Member Manual to learn more about the Company's policies and
practices associated with performance and compensation reviews. The Company
pays salaries on a semi-monthly basis, and as such there are 24 pay periods
for each full year of business.
1
{PAGE}
Direct deposit of your Salary can be arranged by the Company into your
nominated bank account(s).
[LOGO] Place of Employment
It is intended that during your employment with the Company you will be
based in the Company's Burlingame, California office, however, it is
understood that you shall travel as the Company may from time to time
reasonably require. Additionally, the Company reserves the right to alter
your place of employment by providing you with as much advance notice as
is practicable and not necessarily with any form of compensation for such
a change.
3. Bonus
Annual Bonus. Starting for the one (1) year period beginning May 29, 2001
------------
and ending May 28, 2002, and each one (1) year period thereafter, you
will be eligible to earn a Bonus of up to twenty-five percent (25%) of
your Salary based upon your achievement of personal and Company
milestones mutually agreed upon by you, the Chief Executive Officer and
the Compensation Committee of the Board of Directors within the first
sixty (60) days of your employment and annually thereafter. In the event
that mutual agreement upon the milestones cannot be reached within the
sixty (60) day period in question, the decision of the Chief Executive
Officer and Compensation Committee thereafter in establishing such
milestones will be final and conclusive.
4. Stock Options
You will be granted an option to purchase 300,000 shares of iAsiaWorks'
common stock at the price in effect at time of approval of such grant by
the Board of Directors of the Company (the "Option"). The Option shall be
subject to the terms of the notice of grant and the Company's standard
stock option agreement, which you must execute as a condition of grant.
The vesting schedule shall be as follows: twenty-five percent (25%) of
the shares subject to the Option shall vest one (1) year from the Vesting
Commencement Date (as set forth herein), and one-thirty-sixth (1/36/th/)
of the then remaining unvested shares, subject to the option, shall vest
each month thereafter, so that all shares shall be vested forty-eight
(48) months after the Vesting Commencement Date. For purposes of this
Agreement, "Vesting Commencement Date" shall be the first day of full-
time employment with the Company. Define cause as conviction of felony,
342278
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Indemnification Agreement
Indemnification Agreement (18K)
Doc #342315: Click preview link for longer preview.
IASIAWORKS, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into this day of , 2000 between iAsiaWorks, Inc., a
Delaware corporation (the "Company"), and ("Name") ("Indemnitee").
WHEREAS, Indemnitee, a member of the Board of Directors or an officer,
employee or agent of the Company, performs a valuable service in such capacity
for the Company;
WHEREAS, the stockholders of the Company have adopted Bylaws (the
"Bylaws") providing for the indemnification of the officers, directors,
employees and agents of the Company to the maximum extent authorized by Section
145 of the Delaware General Corporation Law, as amended (the "Code");
WHEREAS, the Bylaws and the Code, by their non-exclusive nature,
permit contracts between the Company and the members of its Board of Directors,
officers, employees or agents with respect to indemnification of such directors,
officers, employees or agents;
WHEREAS, in accordance with the authorization as provided by the Code,
the Company either has purchased and presently maintains or intends to purchase
and maintain a policy or policies of Directors and Officers Liability Insurance
("D & O Insurance") covering certain liabilities which may be incurred by its
directors and officers in the performance of their duties as directors and
officers of the Company;
WHEREAS, as a result of developments affecting the terms, scope and
availability of D & O Insurance there exists general uncertainty as to the
extent of protection afforded members of the Board of Directors or officers,
employees or agents by such D & O Insurance and by statutory and bylaw
indemnification provisions; and
WHEREAS, in order to induce Indemnitee to continue to serve as a
member of the Board of Directors, officer, employee or agent of the Company, the
Company has determined and agreed to enter into this contract with Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's continued service as
a director, officer, employee or agent after the date hereof, and for other good
and valid consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Indemnification of Indemnitee. The Company hereby agrees to hold
-----------------------------
harmless and indemnify Indemnitee to the fullest extent authorized or permitted
by the provisions of the Code, as may be amended from time to time.
{PAGE}
2. Additional Indemnity. Subject only to the exclusions set forth
--------------------
in Sections 3 and 6(c) hereof, the Company hereby further agrees to hold
harmless and indemnify Indemnitee:
(a) against any and all expenses (including attorneys' fees),
witness fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the Company) to which
Indemnitee is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Indemnitee is, was or at any time becomes a
director, officer, employee or agent of the Company or any subsidiary of the
Company, or is or was serving or at any time serves at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise;
and
(b) otherwise to the fullest extent as may be provided to
Indemnitee by the Company under the non-exclusivity provisions of Article VII,
Section 6 of the Bylaws of the Company and the Code.
3. Limitations on Additional Indemnity.
-----------------------------------
(a) No indemnity pursuant to Section 2 hereof shall be paid by
the Company:
(i) in respect to remuneration paid to Indemnitee if it
shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(ii) on account of any suit in which judgment is rendered
against Indemnitee for an accounting of profits made from the purchase or sale
by Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(iii) on account of Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest or to
constitute willful misconduct;
(iv) on account of Indemnitee's conduct which is the subject
of an action, suit or proceeding described in Section 6(c)(ii) hereof;
342315
|
iAsiaWorks
As referenced in this Indemnification Agreement:
IASIAWORKS, INC – {DOCUMENT}
{TYPE}EX-10.4
{SEQUENCE}6
{FILENAME}0006.txt
{DESCRIPTION}DIRECTOR AND OFFICER'S INDEMNIFICATION AGREEMENT
{TEXT}
{PAGE}
Exhibit 10.4
IASIAWORKS, INC .
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into this day of , 2000 between iAsiaWorks, Inc., a
Delaware corporation (
_____________
iAsiaWorks, Inc – PAGE}
Exhibit 10.4
IASIAWORKS, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into this day of , 2000 between iAsiaWorks, Inc ., a
Delaware corporation (the "Company"), and ("Name") ("Indemnitee").
WHEREAS, Indemnitee, a member of the Board of Directors or an officer,
employee or
_____________
IASIAWORKS, INC – parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
IASIAWORKS, INC .
a Delaware corporation
By: __________________________________
INDEMNITEE
______________________________________
[DIRECTOR]
Address: ______________________________________
______________________________________
6
{/TEXT}
{/DOCUMENT}
_____________
dt 692742
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International Services Agreement
International Services Agreement (32K)
Doc #342309: Click preview link for longer preview.
International Services Agreement
THIS INTERNATIONAL SERVICES AGREEMENT (the "Agreement") is entered into as of
April 7th, 2000 (the "Effective Date") between iAsiaWorks Corporation
("iAsiaWorks"), a California corporation with its principal offices at 2000
Alameda de las Pulgas, Ste. 125, San Mateo, California 94403, and Digital Island
("Client"), a Delaware corporation with its principal offices at 45 Fremont St.
Suite 1200, San Francisco, California 94105.
WHEREAS, Digital Island desires to transmit Internet traffic over iAsiaWorks'
telecommunications network in Asia, the Philippines and New Zealand (the
"Territory") and obtain the benefit of iAsiaWorks' related maintenance and other
services and iAsiaWorks desires to service Digital Island's traffic;
IT IS AGREED, in consideration of the covenants set forth below, as follows:
1. iAsiaWorks' Services.
iAsiaWorks will provide to Client Internet Protocol ("IP")-capable services as
described in Attachment I, including its Exhibit A, attached hereto and
------------ ---------
incorporated herein by this reference (collectively, the "Services") to transmit
Client's Internet traffic over iAsiaWorks' backbone network (the "Network")
and/or other networks in the Territory with which iAsiaWorks maintains direct
connections from time to time. If necessary, the Network will support Client's
use of Border Gate Protocol routing to reach the Network.
2. Clients' Obligations. iAsiaWorks' performance hereunder is conditioned
upon Client's performance of or compliance with the following:
2.1 Client shall provide Domain Name Server ("DNS") registrations and all DNS
name service functions for itself and its customers. Client shall give
iAsiaWorks reasonable prior written notice of (i) Client's need for additional
IP network numbers or (ii) changes in existing routing information.
2.2 At Client's sole expense, Client will connect its own computer hardware and
other telecommunications equipment (collectively, the "Equipment") directly to
the Network and, as between the parties hereto, shall be fully and solely
responsible for the Equipment and any damage thereto and the installation and
maintenance of full connectivity between the Equipment and the Network,
including the addition from time to time of any and all Equipment required to
support the then-current volume of Client's Internet traffic over the Network.
At Client's request, iAsiaWorks will assist Client in the maintenance and repair
of its Equipment for fees to be mutually agreed or as otherwise set forth in
Exhibit A to Attachment I; provided that iAsiaWorks will not be liable to Client
--------- ------------
for any damage to the Equipment other than to the extent arising out of
iAsiaWorks gross negligence or misconduct.
2.3 The Client may only use the Services and/or access the Network for the
purposes expressly identified herein. Any other use or access is expressly
prohibited, including but not limited to any unlawful or illegal use by Client
in any jurisdiction where a transmission commences, transits or is terminated or
any other jurisdiction asserting control over any such transmission, a breach by
Client of any copyright, privacy, libel or obscenity laws, email spamming and/or
bulk transmission of messages to Internet users, service providers and/or
newsgroups, and unsolicited e-mail.
2.4 Client is wholly responsible for insuring the safety and security of the
Equipment and its connection to the Network and must restrict access thereto and
otherwise safeguard the operation thereof with the same degree of care which
employs to protect its own network. At a minimum, Client must promptly notify
iAsiaWorks in writing of any breach of security involving the Equipment,
Client's own network and/or the connection to the Network.
2.4.1 The Client will be liable for, and will indemnify and defend
iAsiaWorks against, any claims arising out or related to any demonstrable breach
of security on the Network resulting from the acts or omissions of Client or its
employees, agents and/or users and other customers.
2.5 Client is wholly responsible for obtaining a complete copy of adhering to
and fully complying with the People's Republic of China's ("PRC") "Appropriate
Use" policies with respect to Internet transmissions and content filtering,
including policies concerning the filtering and exclusion of pornography, anti-
government content and
342309
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International Services Agreement
International Services Agreement (26K)
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International Services Agreement
THIS INTERNATIONAL SERVICES AGREEMENT (the "Agreement") is entered into as of
April 7th, 2000 (the "Effective Date") between iAsiaWorks Corporation
("iAsiaWorks"), a California corporation with its principal offices at 2000
Alameda de las Pulgas, Ste. 125, San Mateo, California 94403, and Digital Island
("Client"), a Delaware corporation with its principal offices at 45 Fremont St.
Suite 1200, San Francisco, California 94105.
WHEREAS, Digital Island desires to transmit Internet traffic . . .
342324
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Letter of Intent
Letter of Intent (40K)
Doc #342302: Click preview link for longer preview.
[LOGO]
LETTER OF INTENT
----------------
This Letter of Intent (this "LOI") is made this 20th day of March 2000
("Effective Date") by and between iAsiaWorks (H.K.) Limited ("IAW") whose
principal place of business is at 31st Floor, Shell Tower, Times Square, 1
Matheson Street, Causeway Bay, Hong Kong and iAdvantage Limited a Hong Kong
company whose registered address is at 36/F, Standard Chartered Tower,
Millennium City, 388 Kwun Tong Road, Kwun Tong, Hong Kong (" . . .
342302
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Loan Agreement
Loan Agreement (16K)
Doc #342283: Click preview link for longer preview.
[English Translation]
Loan Agreement
This Agreement is entered into by and between the borrower (including the
borrower and guarantor, hereinafter referred to as the "Borrower ") and China
Insurance Co., Ltd. (hereinafter, the "Lender") on the debt identified on the
front page of the Promissory Note under the following terms and conditions.
I. General Provisions
Article 1 Signatures and Seals
Either the signatures or seals on the Promissory Note shall be adequate . . .
342283
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Loan Agreement
Loan Agreement (166K)
Doc #342288: Click preview link for longer preview.
LOAN AGREEMENT
KRW14,000,000,000
dated as of October 7, 2000
between
iAsiaWorks Korea Ltd.
as Borrower
and
Korea First Bank, Yangjae-dong Branch
as Lender
_____________________________________________
LEE & KO
Seoul, Korea
{PAGE}
TABLE OF CONTENTS
-----------------
{TABLE}
{CAPTION}
Section Page
------- ----
{S} {C}
1. Interpretation............................................. 1
2. The Facility............................................... 5
3. The Drawdowns.............................................. 6
4. Interest................................................... 7
5. Repayment, Prepayment and Cancellation..................... 8
6. Fees and Expenses.......................................... 9
7. Payments and Evidence of Debt.............................. 10
8. Market Disruption.......................................... 11
9. Change of Law or Circumstances............................. 11
10. Security................................................... 12
11. Taxes and other Deductions................................. 14
12. Representations and Warranties............................. 14
13. Covenants.................................................. 16
14. Events of Default.......................................... 19
15. Default Interest........................................... 22
16. Indemnities and Pro Rata Sharing........................... 22
17. Assignment................................................. 23
18. Governing Law and Jurisdiction............................. 23
19. Notices.................................................... 24
20. Miscellaneous.............................................. 24
{/TABLE}
SCHEDULES
Schedule I CONDITIONS PRECEDENT DOCUMENTS
EXHIBITS
Exhibit A FORM OF NOTICE OF DRAWDOWN
Exhibit B FORM OF GUARANTY
Exhibit C FORM OF PROCESS AGENT APPOINTMENT LETTER
Exhibit D-1 FORM OF LEGAL OPINION (BORROWER'S KOREAN COUNSEL)
Exhibit D-2 FORM OF LEGAL OPINION (GUARANTOR'S U.S. COUNSEL)
Exhibit D-3 FORM OF LEGAL OPINION (Post Closing)
Exhibit E FORM OF ASSIGNMENT OF INSURANCE AGREEMENT
{PAGE}
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made on this 10th day of October, 2000
BY AND BETWEEN:
(1) iAsiaWorks Korea Ltd., a corporation duly organized and existing under the
laws of the Republic of Korea with its registered head office at BoRaMae
DaeKyo Building, 6th Floor, 729-21, Bongchon-dong, Kwanak-Gu, Seoul, Korea
151-706 as borrower ("Borrower"); and
(2) KOREA FIRST BANK, Yangjae-dong Branch as lender ("Lender").
IT IS HEREBY AGREED as follows:
Section 1. Interpretation
1.1 Definitions. In this Agreement, unless the context requires otherwise:
-----------
"Affiliates" means any person directly or indirectly controlling, directly
or indirectly controlled by, or under direct or indirect common control
with, Borrower. For purposes of this definition, "control" (including
"controlled by" and "under common control with") means the power, directly
or indirectly, to direct or cause the direction of the management and
policies of any person whether through the ownership of voting securities
or by contract or otherwise, provided that, in any event, any person which
owns directly or indirectly fifty percent (50%) or more of the securities
having ordinary voting power for the election of directors or other
governing body of a corporation or fifty percent (50%) or more of the
partnership or other ownership interests of any other person will be deemed
to control such corporation or other person;
"Assignment of Insurance" means the insurance assignment agreement to be
entered into by and between the Borrower and the Lender to assign
Borrower's interest on the right of claims to Insurance Proceeds to secure
the full performance of the Borrower's obligations hereunder substantially
in the form of Exhibit E hereto;
"Availability Period" means the period commencing on the date of this
Agreement and ending on the earlier of (i) the date one (1) month from the
date of this Agreement, and (ii) the date on which the Commitment (defined
hereinafter) is fully drawn, cancelled or terminated under the provisions
of this Agreement;
"Banking Day" means a day (excluding Sunday) on which banks are open for
business in Seoul, Korea;
"Base Rate" means the final quotation yield rate for A+ three (3) year
Korean Won-
{PAGE}
denominated corporate bond as published by the Korea Securities Dealers
Association or a comparable substitute publication medium on the date
immediately preceding the Funding Date or the Interest Refixing Date, as
the case may be;
"Commitment" means the obligation of the Lender to make Drawdowns available
to the Borrower hereunder up to the aggregate principal amount of Fourteen
Billion Korean Won(KRW14,000,000,000) upon terms and subject to the
conditions of this Agreement or, where the context so requires, such
principal amount.
"Drawdown" means the borrowing by the Borrower of the Commitment pursuant
to Section 3 or, where the context so requires, the amount of such
drawdown;
"EBITDA" means earnings before interest, tax, depreciation and amortization
in accordance with generally accepted accounting principles in Korea;
"Encumbrance" means:
(a) any mortgage, charge, pledge, lien, encumbrance, hypothecation or
other security interest or security arrangement of any kind ;
(b) any arrangement whereby any rights are subordinated to any rights of
any third party; and
(c) any contractual right of set - off whereby the terms and conditions of
the set-off right granted to other party is more favorable to such
party than the terms and conditions of the set-off right granted under
the Civil Code of Korea;
"Event of Default" means any event or circumstance specified as such in
Section 13; and "prospective Event of Default" means any event or
circumstance which with the giving of notice and/or the passage of time
and/or the making of any relevant determination and/or the forming of any
necessary opinion would be an Event of Default;
"Facility" means the loan facility to be made available under this
Agreement not to exceed Fourteen Billion Korean Won (14,000,000,000) Korean
Won;
"Funding Date" means the date on which the Drawdown actually occurs;
"Guarantor" means iAsiaWorks, Inc., a corporation organized and existing
under the laws of Delaware with its registered head office at 2000 Alameda
de las Pulgas Suite 125, San Mateo, CA 94403, U.S.A;
"Guaranty" means the unconditional and irrevocable guaranty to be executed
by Guarantor in the form set forth in Exhibit B;
"Indebtedness for Borrowed Money" means, as to any Person, without
duplication, (a) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase
price of property or services (other than any deferral in connection with
the provision of credit in the ordinary course of business, including by
any trade creditor, supplier or utility); (b) all obligations for
2
{PAGE}
the reimbursement of letters of credit issued for the account of such
Person (other than letters of credit issued in connection with trade
transactions in the ordinary course of business); and (c) the aggregate
amount required to be capitalized under leases under which such Person is
the lessee;
"Insurance Policies" means the insurance policies issued by the insurers of
recognized standing acceptable to the Lender in connection with fire
insurance and such other insurances as reasonably requested by the Lender
pursuant to the terms of this Agreement and the Kun-Mortgage Agreements to
be taken out by the Borrower in respect of the Senan Building, in the
amount and upon the terms and conditions as reasonable and customary for
businesses of a like nature in the jurisdiction in which such properties
and assets are located or in which such businesses are conducted;
"Insurance Proceeds" means all moneys payable to the Borrower (or the
security agent on its behalf) as the result of a claim under any of the
Insurance Policies.
"Interest Rate" has the meaning set forth in Section 4.3 (a);
"Interest Refixing Date" means the third anniversary of the Funding Date;
provided, however, if such date is not a Banking Day, then it shall be the
immediately preceding Banking Day;
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means, in relation to the Loan, an interest period
ascertained in accordance with Section 4;
"Korea" means the Republic of Korea;
"KRW" or "Korean Won" means the lawful currency of Korea;
"Kun-Mortgage Agreement I" means the kun-mortgage amendment agreement to be
entered into by and among the Borrower, the Senan Building Owners and the
Lender pursuant to Section 10.2 in order to modify and expand the scope of
the secured obligation secured under the existing kun-mortgage of the first
priority (in the maximum mortgage amount of Thirteen Billion Korean Won
(KRW 13,000,000,000) on the Senan Building created by the Senan Building
Owners for the benefit of the Lender) so as to cover the Facility under
this Agreement and replace the Senan Building Owners (as existing obligor)
with the Borrower (as new obligor), in form and substance satisfactory to
the Lender;
"Kun-Mortgage Agreement II" means the kun-mortgage agreement to be dated on
or before the Funding Date entered into by and between the Borrower and the
Lender for the creation of a new kun-mortgage of the second priority in the
maximum mortgage amount of Five Billion two hundred million Korean Won
(KRW5,200,000,000) on Senan Building to secure the Borrower's obligation to
repay the Facility under this Agreement, in form and substance satisfactory
to the Lender.
"Kun-Mortgage Agreements" means both the Kun-Mortgage Agreement I and the
Kun-Mortgage Agreement II collectively;
342288
|
iAsiaWorks
As referenced in this Loan Agreement:
IASIAWORKS, INC – 0002.txt
{DESCRIPTION}CERTIFIED RESOLUTION AND LOAN AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 10.1
CERTIFIED RESOLUTION
Borrower: IASIAWORKS KOREA LTD.,
a Korean corporation
Guarantor: IASIAWORKS, INC .,
a Delaware corporation
Address: 2000 Alameda de las Pulgas, Suite 125
San Mateo, CA 94403
Date: October 7, 2000
I, the undersigned,
_____________
iAsiaWorks, Inc – Fourteen Billion Korean Won (14,000,000,000) Korean
Won;
"Funding Date" means the date on which the Drawdown actually occurs;
"Guarantor" means iAsiaWorks, Inc ., a corporation organized and existing
under the laws of Delaware with its registered head office at 2000 Alameda
de las Pulgas Suite
_____________
iAsiaWorks, Inc – President of Global Business Development
{PAGE}
EXHIBIT B
---------
FORM OF GUARANTY
THIS GUARANTY is made on this 10th day of October, 2000
BY:
iAsiaWorks, Inc ., a corporation organized and existing under the laws of the
State of [Delaware] with its registered head office at 2000 Alameda de
_____________
iAsiaWorks, Inc – Guarantor has caused this Guaranty to be executed by its
duly authorized representative as of the day and year first written above.
GUARANTOR
---------
iAsiaWorks, Inc .
By /s/ Nick Pianim
--------------------------
Name: Nick Pianim
Title: Vice President of Global Business Development
B-10
{PAGE}
EXHIBIT C
FORM OF PROCESS
_____________
iAsiaWorks, Inc – appointment, we hereby agree to
pay you on acceptance a fee of [_].
DETAILS OF TRANSACTION CONCERNED IN APPOINTMENT:
-----------------------------------------------
The Guaranty issued by iAsiaWorks, Inc . in connection with the Loan
Agreement dated October [_], 2000 made by and between iAsiaWorks Korea Ltd.
("Borrower") and Korea First Bank ("
_____________
dt 692729
| |
Preview
Full Doc
| 2001 |
Office Lease Agreement
Office Lease Agreement (169K)
Doc #342284: Click preview link for longer preview.
BAY PARK PLAZA II
BURLINGAME, CALIFORNIA
OFFICE LEASE AGREEMENT
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., a Delaware limited liability company
("LANDLORD")
AND
iAsiaWorks, Inc., a Delaware corporation
("TENANT")
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
I. Basic Lease Information....................................... 1
II. Lease Grant................................................... 2
III. Adjustment of Commencement Date; Possession................... 3
IV. Rent.......................................................... 3
V. Compliance with Laws; Use..................................... 7
VI. Security Deposit.............................................. 7
VII. Services to be Furnished by Landlord.......................... 7
VIII. Leasehold Improvements........................................ 8
IX. Repairs and Alterations....................................... 8
X. Use of Electrical Services by Tenant.......................... 10
XI. Entry by Landlord............................................. 10
XII. Assignment and Subletting..................................... 10
XIII. Liens......................................................... 12
XIV. Indemnity and Waiver of Claims................................ 12
XV. Insurance..................................................... 13
XVI. Subrogation................................................... 13
XVII. Casualty Damage............................................... 13
XVIII. Condemnation.................................................. 14
XIX. Events of Default............................................. 14
XX. Remedies...................................................... 15
XXI. Limitation of Liability....................................... 16
XXII. No Waiver..................................................... 17
XXIII. Quiet Enjoyment............................................... 17
XXIV. Relocation.................................................... 17
XXV. Holding Over.................................................. 17
XXVI. Subordination to Mortgages; Estoppel Certificate.............. 17
XXVII. Attorneys' Fees............................................... 18
XXVIII. Notice........................................................ 18
XXIX. Excepted Rights............................................... 18
XXX. Surrender of Premises......................................... 18
XXXI. Miscellaneous................................................. 18
XXXII. Entire Agreement.............................................. 20
{/TABLE}
{PAGE}
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the 4 day of December, 2000, by and between EOP-BAY PARK PLAZA, L.L.C., a
Delaware limited liability company ("Landlord") and iAsiaWorks, Inc., a
Delaware corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building located at 555 Airport Boulevard,
Burlingame, California, commonly known as Bay Park Plaza II.
B. "Rentable Square Footage of the Building" is deemed to be 117,158
square feet.
C. "Premises" shall mean the area shown on Exhibit A-1 to this Lease. The
Premises are located on floor 3 and known as suite number 300. The
"Rentable Square Footage of the Premises" is deemed to be 24,725
square feet. If the Premises include one or more floors in their
entirety, all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. Landlord and Tenant
stipulate and agree that the Rentable Square Footage of the Building
and the Rentable Square Footage of the Premises are correct and shall
not be remeasured.
D. "Base Rent":
--------------------------------------------------------------------
Annual Rate Annual Monthly
Period Per Square Foot Base Rent Base Rent
--------------------------------------------------------------------
12/15/00 - 12/31/00 $ 85.80 $2,121,405.00 $ 96,945.90
--------------------------------------------------------------------
--------------------------------------------------------------------
1/1/00 - 11/30/01 $ 85.80 $2,121,405.00 $176,783.75
--------------------------------------------------------------------
--------------------------------------------------------------------
12/1/01 - 11/30/02 $ 89.23 $2,206,211.76 $183,850.98
--------------------------------------------------------------------
--------------------------------------------------------------------
12/1/02 - 11/30/03 $ 92.80 $2,294,480.04 $191,206.67
--------------------------------------------------------------------
--------------------------------------------------------------------
12/1/03 - 11/30/04 $ 96.51 $2,386,209.72 $198,850.81
--------------------------------------------------------------------
--------------------------------------------------------------------
12/1/04 - 11/30/05 $100.37 $2,481,648.24 $206,804.02
--------------------------------------------------------------------
--------------------------------------------------------------------
12/1/05 - 11/30/06 $104.38 $2,580,795.48 $215,066.29
--------------------------------------------------------------------
--------------------------------------------------------------------
12/1/06 - 12/31/07 $108.56 $2,684,145.96 $223,678.83
--------------------------------------------------------------------
E. "Tenant's Pro Rata Share": 21.1040%.
F. "Term": A period of 84 months and 17 days. The Term shall commence on
December 15, 2000 (the "Commencement Date") and, unless terminated
early in accordance with this Lease, end on December 31, 2007 (the
"Termination Date"). Landlord and Tenant acknowledge and agree that
the Commencement Date may occur, and Tenant's obligation to pay Rent
(as defined in Article IV below) and perform the other obligations of
Tenant under this Lease may commence before the date Landlord has
tendered possession of the Premises to Tenant with the Landlord Work
(as hereinafter defined) Substantially Complete. The Landlord Work
shall be deemed to be "Substantially Complete" on the date that all
Landlord Work has been performed other than any details of
construction, mechanical adjustment or any other similar matter, the
noncompletion of which does not materially interfere with Tenant's use
of the Premises.
G. Tenant allowance(s): $2.00 per rentable square foot of the Premises
as more fully described on Exhibit C of this Lease.
H. "Security Deposit": $2,000,000.00. The Security Deposit shall be in
the form of an irrevocable letter of credit (the "Letter of Credit"),
as more fully described in Article VI of this Lease.
1
{PAGE}
I. "Guarantor(s)": As of the date of this Lease, there are no Guarantors.
J. "Broker(s)": Wayne Mascia Associates.
K. "Permitted Use": General office use.
L. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises. Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
at the Premises
------------------------------
______________________________
______________________________
Phone #: _____________________
Fax #: ______________________
Landlord: With a copy to:
EOP-BAY PARK PLAZA, L.L.C. Equity Office Properties Trust
c/o Equity Office Properties Trust Two North Riverside Plaza
577 Airport Boulevard Suite 2100
Suite 200 Chicago, Illinois 60606
Burlingame, California 94010 Attention: Regional Counsel -
Attention: Building Manager Pacific Region
Rent (defined in Section IV.A) is payable to the order of Equity
Office Properties at the following address: EOP Operating Limited
Partnership, as Agent for EOP-Bay Park Plaza, L.L.C., File 72845, P.O.
Box 61000, San Francisco, California 94161-2845.
M. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
N. "Landlord Work" means the work, if any, that Landlord is obligated to
perform in the Premises pursuant to a separate work letter agreement
(the "Work Letter"), if any, attached as Exhibit C.
O. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
P. "Normal Business Hours" for the Building are 8:00 a.m. to 6:00 p.m. on
Business Days.
Q. "Property" means the Building and the parcel(s) of land on which it is
located and, at Landlord's discretion, the Building garage and other
improvements serving the Building, if any, and the parcel(s) of land
on which they are located.
R. "Exterior Common Areas" mean those areas of the Project and/or the
Property which are not located within the Building and which are
provided and maintained for the use and benefit of Landlord and
tenants of the Building and/or the Project generally and the
employees, invitees and licensees of Landlord and such tenants,
including, without limitation, any parking area, artificial lakes,
walkways, plaza, roads, driveways, sidewalks, surface parking and
landscapes.
S. "Project" shall mean the development located on approximately ___
acres commonly described as the Bay Park Plaza, which includes the
Building and the Property, and is outlined on Exhibit A-2 attached
hereto and incorporated herein.
2
{PAGE}
II. Lease Grant.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, common corridors, elevator
foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. Possession.
A. Subject to Landlord's obligations under Section IX.B., the Premises
are accepted by Tenant in "as is" condition and configuration,
provided that the Premises shall be in broom clean condition, free of
all debris. By taking possession of the Premises, Tenant agrees that
the Premises are in good order and satisfactory condition, and that
there are no representations or warranties by Landlord regarding the
condition of the Premises or the Building. If Landlord is delayed
delivering possession of the Premises or any other space due to the
holdover or unlawful possession of such space by any party, Landlord
shall use reasonable efforts to obtain possession of the space, in
which case the Commencement Date shall be postponed until the date
Landlord delivers possession of the Premises to Tenant free from
occupancy by any party, and the Termination Date, at the option of
Landlord, may be postponed by an equal number of days.
B. If Tenant takes possession of the Premises before the Commencement
Date for the conduct of Tenant's business therein, such possession
shall be subject to the terms and conditions of this Lease and Tenant
shall pay Rent (defined in Section IV.A.) to Landlord for each day of
possession before the Commencement Date. However, except for the cost
of services requested by Tenant (e.g. freight elevator usage), Tenant
shall not be required to pay Rent for any days of possession before
the Commencement Date during which Tenant, with the approval of
Landlord, is in possession of the Premises for the sole purpose of
performing improvements or installing furniture, equipment or other
personal property.
IV. Rent.
A. Payments. As consideration for this Lease, Tenant shall pay Landlord,
--------
without any setoff or deduction, the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
(exclusive of Base Rent) that Tenant is required to pay Landlord.
Additional Rent and Base Rent are sometimes collectively referred to
as "Rent". Tenant shall pay and be liable for all rental, sales and
use taxes (but excluding income taxes), if any, imposed upon or
measured by Rent under applicable Law. Base Rent and recurring
monthly charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or demand,
provided that the installment of Base Rent for the first full calendar
month of the Term shall be payable upon the execution of this Lease by
Tenant. All other items of Rent shall be due and payable by Tenant on
or before 30 days after billing by Landlord. All payments of Rent
shall be by good and sufficient check or by other means (such as
automatic debit or electronic transfer) acceptable to Landlord. If
Tenant fails to pay any item or installment of Rent when due, Tenant
shall pay Landlord an administration fee equal to 5% of the past due
Rent, provided that Tenant shall be entitled to a grace period of 5
days after receipt of written notice thereof for the first 2 late
payments of Rent in a given calendar year. If the Term commences on a
day other than the first day of a calendar month or terminates on a
day other than the last day of a calendar month, the monthly Base Rent
and Tenant's Pro Rata Share of Expenses (defined in Section IV.C.) and
Taxes (defined in Section IV.D.) for the month shall be prorated based
on the number of days in such calendar month. Landlord's acceptance
of less than the correct amount of Rent shall be considered a payment
on account of the earliest Rent due. No endorsement or statement on a
check or letter accompanying a check or payment shall be considered an
accord and satisfaction, and either party may accept the check or
payment without prejudice to that party's right to recover the balance
or pursue other available remedies. Tenant's covenant to pay Rent is
independent of every other covenant in this Lease.
3
{PAGE}
B. Payment of Tenant's Pro Rata Share of Expenses and Taxes. Tenant shall
---------------------------------------------------------
pay Tenant's Pro Rata Share of the total amount of Expenses (defined
in Section IV.C.) and Taxes (defined in Section IV.D) for each
calendar year during the Term. Landlord shall provide Tenant with a
good faith estimate of the total amount of Expenses and Taxes for
each calendar year during the Term. On or before the first day of
each month, Tenant shall pay to Landlord a monthly installment equal
to one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the total amount of Expenses and Taxes. If Landlord determines that
its good faith estimate was incorrect by a material amount, Landlord
may provide Tenant with a revised estimate. After its receipt of the
revised estimate, Tenant's monthly payments shall be based upon the
revised estimate. If Landlord does not provide Tenant with an
estimate of the total amount of Expenses and Taxes by January 1 of a
calendar year, Tenant shall continue to pay monthly installments based
on the previous year's estimate until Landlord provides Tenant with
the new estimate. Upon delivery of the new estimate, an adjustment
shall be made for any month for which Tenant paid monthly installments
based on the previous year's estimate. Tenant shall pay Landlord the
amount of any underpayment within 30 days after receipt of the new
estimate. Any overpayment shall be refunded to Tenant within 30 days
or credited against the next due future installment(s) of Additional
Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual amount of
Expenses and Taxes for the prior calendar year and Tenant's Pro Rata
Share of the actual amount of Expenses and Taxes for the prior
calendar year. If the estimated amount of Expenses and Taxes for the
prior calendar year is more than the actual amount of Expenses and
Taxes for the prior calendar year, Landlord shall apply any
overpayment by Tenant against Additional Rent due or next becoming
due, provided if the Term expires before the determination of the
overpayment, Landlord shall refund any overpayment to Tenant after
first deducting the amount of Rent due. If the estimated amount of
Expenses and Taxes for the prior calendar year is less than the actual
amount of Expenses and Taxes for such prior year, Tenant shall pay
Landlord, within 30 days after its receipt of the statement of
Expenses and Taxes, any underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means the sum of (y) all direct and
----------------
indirect costs and expenses incurred in each calendar year in
connection with operating, maintaining, repairing, managing and owning
the Premises, the Building and the Property, and (z) the Building's
allocable share of the direct and indirect costs of operating and
maintaining the Exterior Common Areas of the Project, including,
without limitation, the following:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed the
cost that would have been incurred had Landlord entered into an
arms-length contract for such services with an unaffiliated
entity of comparable skill and experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler and
other insurance customarily carried from time to time by owners
of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is reimbursed by
4
{PAGE}
tenants. "Electrical Costs" means: (a) charges paid by Landlord
for electricity; (b) costs incurred in connection with an energy
management program for the Building, Property or the Project; and
(c) if and to the extent permitted by Law, a fee for the services
provided by Landlord in connection with the selection of utility
companies and the negotiation and administration of contracts for
electricity, provided that such fee shall not exceed 50% of any
savings obtained by Landlord, and further provided that in no
event shall the payment of such fee to Landlord result in the
Tenant paying more for Electrical Costs than Tenant would have
paid had Landlord not negotiated any such contract and charged
such fee. Electrical Costs shall be adjusted as follows: (i)
amounts received by Landlord as reimbursement for above standard
electrical consumption shall be deducted from Electrical Costs;
(ii) the cost of electricity incurred to provide overtime HVAC to
specific tenants (as reasonably estimated by Landlord) shall be
deducted from Electrical Costs; and (iii) if Tenant is billed
directly for the cost of building standard electricity to the
Premises as a separate charge in addition to Base Rent, the cost
of electricity to individual tenant spaces in the Building shall
be deducted from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Building, Property or Project which are:
(a) performed primarily to reduce operating expense costs or
otherwise improve the operating efficiency of the Building,
Property or Project; or (b) required to comply with any Laws that
are enacted, or first interpreted to apply to the Property or
Project, after the date of this Lease. The cost of capital
improvements shall be amortized by Landlord over the lesser of
the Payback Period (defined below) or 5 years. The amortized
cost of capital improvements may, at Landlord's option, include
actual or imputed interest at the rate that Landlord would
reasonably be required to pay to finance the cost of the capital
improvement. "Payback Period" means the reasonably estimated
period of time that it takes for the cost savings resulting from
a capital improvement to equal the total cost of the capital
improvement.
7. Any fees, costs and expenses relating to operating, managing,
owning and maintaining the parking facilities servicing the
Building, the Property and the Project.
If Landlord incurs Expenses for the Property together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Property and the other buildings or properties. Expenses shall
not include: the cost of capital improvements (except as set forth
above); depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of mortgage
and other non-operating debts of Landlord; the cost of repairs or
other work to the extent Landlord is reimbursed by insurance or
condemnation proceeds; costs in connection with leasing space in the
Building, including brokerage commissions and legal fees; lease
concessions, including rental abatements and construction allowances,
granted to specific tenants; costs incurred in connection with the
sale, financing or refinancing of the Building; fines, interest and
penalties incurred due to the late payment of Taxes (defined in
Section IV.D) or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes Landlord; any
costs, fines or penalties incurred due to violations by Landlord of
any law, order, rule or regulations of any governmental authority
which was in effect (and as enforced) as of the Commencement Date
except where such costs, fines or penalties are incurred by Landlord
for violations of any such law, order, rule or regulation that is
ultimately determined to be invalid, or inapplicable; costs incurred
by Landlord in connection with the correction of defects in design and
original construction of the Building; any cost or expense related to
removal, cleaning, abatement or remediation of "hazardous materials"
in or about the Building, Common Area or Property, including, without
limitation, hazardous substances in the ground water or soil, except
to the extent such removal, cleaning, abatement or remediation is
related to the general repair and maintenance of the Building, Common
Area or Property; reserves not spent
5
{PAGE}
by Landlord by the end of the calendar year for which Expenses are
paid; any fines, penalties or interest resulting from the adjudicated
negligence or adjudicated willful misconduct of the Landlord or its
agents, contractors or employees; or any penalties or damages that
Landlord pays to Tenant under this Lease or to other tenants in the
Building under their respective leases. If the Building is not at
least 100% occupied during any calendar year or if Landlord is not
supplying services to at least 100% of the total Rentable Square
Footage of the Building at any time during a calendar year, Expenses
shall, at Landlord's option, be determined as if the Building had been
100% occupied and Landlord had been supplying services to 100% of the
Rentable Square Footage of the Building during that calendar year. The
extrapolation of Expenses under this Section shall be performed by
appropriately adjusting the cost of those components of Expenses that
are impacted by changes in the occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
--------------
other assessments on the Premises, Building, Property and/or Project,
including, but not limited to, assessments for special improvement
districts and building improvement districts, taxes and assessments
levied in substitution or supplementation in whole or in part of any
such taxes and assessments and the Property's or the Project's share
of any real estate taxes and assessments under any reciprocal easement
agreement, common area agreement or similar agreement as to the
Property or Project; (2) all personal property taxes for property that
is owned by Landlord and used in connection with the operation,
maintenance and repair of the Property or Project; and (3) all costs
and fees incurred in connection with seeking reductions in any tax
liabilities described in (1) and (2), including, without limitation,
any costs incurred by Landlord for compliance, review and appeal of
tax liabilities. Without limitation, Taxes shall not include any
income, capital levy, franchise, capital stock, gift, estate or
inheritance tax. If an assessment is payable in installments, Taxes
for the year shall include the amount of the installment and any
interest due and payable during that year. For all other real estate
taxes, Taxes for that year shall, at Landlord's election, include
either the amount accrued, assessed or otherwise imposed for the year
or the amount due and payable for that year, provided that Landlord's
election shall be applied consistently throughout the Term. If a
change in Taxes is obtained for any year of the Term, then Taxes for
that year will be retroactively adjusted and Landlord shall provide
Tenant with a credit, if any, based on the adjustment. Tenant shall
pay Landlord the amount of the actual Tenant's Pro Rata Share within
30 days after Tenant's receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
------------
statement of Expenses, give Landlord written notice ("Review Notice")
that Tenant intends to review Landlord's records of the Expenses for
that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the
office of the Building, Tenant may either inspect the records at such
other location or pay for the reasonable and actual cost of copying
and shipping the records. If Tenant retains an agent to review
Landlord's records, the agent must be with a licensed CPA firm.
Tenant shall be solely responsible for all costs, expenses and fees
incurred for the audit. Within 60 days after the records are made
available to Tenant, Tenant shall have the right to give Landlord
written notice (an "Objection Notice") stating in reasonable detail
any objection to Landlord's statement of Expenses for that year. If
Tenant fails to give Landlord an Objection Notice within the 60 day
period or fails to provide Landlord with a Review Notice within the 90
day period described above, Tenant shall be deemed to have approved
Landlord's statement of Expenses and shall be barred from raising any
claims regarding the Expenses for that year. If Tenant provides
Landlord with a timely Objection Notice, Landlord and Tenant shall
work together in good faith to resolve any issues raised in Tenant's
Objection Notice. If Landlord and Tenant determine that Expenses for
the calendar year are less than reported, Landlord shall provide
Tenant with a credit against the next installment of Rent in the
amount of the overpayment by Tenant. Likewise, if Landlord and Tenant
determine that Expenses for the calendar year are greater than
reported, Tenant shall pay Landlord the amount of any underpayment
within 30 days. In addition, if Landlord and Tenant determine that
Expenses for the
6
{PAGE}
Building for the year in question were less than stated by more than
five percent (5%), Landlord, within thirty (30) days after its receipt
of paid invoices therefor from Tenant, shall reimburse Tenant for any
reasonable and actual amounts paid by Tenant to third parties in
connection with such review by Tenant. The records obtained by Tenant
shall be treated as confidential. In no event shall Tenant be
permitted to examine Landlord's records or to dispute any statement of
Expenses unless Tenant has paid and continues to pay all Rent when
due.
V. Compliance with Laws; Use.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. However, nothing herein shall require Tenant to
comply with Laws or requirements of public authorities which require the
installation of new or additional mechanical, electrical, plumbing or fire/life
safety systems on a Building-wide basis without reference to the particular use
of Tenant or any Alterations performed by Tenant ("Building-Wide Laws").
Landlord will, at Landlord's expense (except to the extent properly included in
Expenses), perform all acts required to comply with such Building-Wide Laws as
the same affect the Premises and the Building. Tenant, within 10 days after
receipt, shall provide Landlord with copies of any notices it receives regarding
a violation or alleged violation of any Laws. Tenant shall comply with the
rules and regulations of the Building attached as Exhibit B and such other
reasonable rules and regulations adopted by Landlord from time to time. Tenant
shall also cause its agents, contractors, subcontractors, employees, customers,
and subtenants to comply with all rules and regulations. Landlord shall not
knowingly discriminate against Tenant in Landlord's enforcement of the rules and
regulations. In the event of a conflict between any rules and regulations
enacted after the date hereof and the Lease, this Lease shall control.
VI. Security Deposit.
The Security Deposit shall be in the form of an irrevocable letter of
credit (the "Letter of Credit") which shall: (a) be in the amount of
$2,000,000.00; (b) be issued on the form attached hereto as Exhibit F; (c) name
Landlord as its beneficiary; (d) be drawn on an FDIC insured financial
institution satisfactory to Landlord; and (e) expire no earlier than 60 days
after the Termination Date of this Lease. The Security Deposit shall be
delivered to Landlord upon the execution of this Lease by Tenant and shall be
held by Landlord without liability for interest (unless required by Law) as
security for the performance of Tenant's obligations. The Security Deposit is
not an advance payment of Rent or a measure of Tenant's liability for damages.
Landlord may, from time to time, without prejudice to any other remedy, use all
or a portion of the Security Deposit to satisfy past due Rent or to cure any
uncured default by Tenant. If Landlord uses the Security Deposit, Tenant shall
on demand restore the Security Deposit to its original amount. Landlord shall
return any unapplied portion of the Security Deposit to Tenant within 45 days
after the later to occur of: (1) the determination of Tenant's Pro Rata Share of
Expenses and Taxes for the final year of the Term; (2) the date Tenant
surrenders possession of the Premises to Landlord in accordance with this Lease;
or (3) the Termination Date. If Landlord transfers its interest in the Premises,
Landlord may assign the Security Deposit to the transferee and, following the
assignment, Landlord shall have no further liability for the return of the
Security Deposit. Landlord shall not be required to keep the Security Deposit
separate from its other accounts. Tenant hereby waives the provisions of Section
1950.7 of the California Civil Code, or any similar or successor Laws now or
hereinafter in effect.
VII. Services to be Furnished by Landlord.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours, at such temperatures and in such amounts as are
standard for comparable buildings or as required by governmental
authority. Tenant, upon such advance notice as is reasonably required
by Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours. Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined by
Landlord from time to time; (3) Maintenance and repair of the Property
as described in Section IX.B.; (4) Janitor service on Business Days.
If Tenant's use, floor covering or other improvements require special
services in excess of the
7
{PAGE}
standard services for the Building, Tenant shall pay the additional
cost attributable to the special services; (5) Elevator service; (6)
Electricity to the Premises for general office use, in accordance with
and subject to the terms and conditions in Article X; (7) Access to
the Building for Tenant and its employees twenty four (24) hours a
day, seven (7) days a week, subject to the terms of this Lease, events
of emergency or Force Majeure, and such security or monitoring systems
as Landlord may reasonably impose, including, without limitation, sign
in procedures and/or presentation of identification cards; and (8)
such other services as Landlord reasonably determines are necessary or
appropriate for the Building, Property or Project.
B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess
of 3 consecutive Business Days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the
4th consecutive Business Day of the Service Failure and ending on the
day the service has been restored. If the entire Premises has not been
rendered untenantable by the Service Failure, the amount of abatement
that Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant. In no event, however, shall Landlord be liable to Tenant for
any loss or damage, including the theft of Tenant's Property (defined
in Article XV), arising out of or in connection with the failure of
any security services, personnel or equipment.
VIII. Leasehold Improvements.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Building;
and (2) any Leasehold Improvements that are performed by or for the benefit of
Tenant and, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications of any type. The Required Removables designated by Landlord shall
be removed by Tenant before the Termination Date, provided that upon prior
written notice to Landlord, Tenant may remain in the Premises for up to 5 days
after the Termination Date for the sole purpose of removing the Required
Removables. Tenant's possession of the Premises shall be subject to all of the
terms and conditions of this Lease, including the obligation to pay Rent on a
per diem basis at the rate in effect for the last month of the Term. Tenant
shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform
related repairs in a timely manner, Landlord, at Tenant's expense, may remove
and dispose of the Required Removables and perform the required repairs.
Tenant, within 30 days after receipt of an invoice, shall reimburse Landlord for
the reasonable costs incurred by Landlord. Notwithstanding the foregoing,
Tenant, at the time it requests approval for a proposed Alteration (defined in
Section IX.C), may request in writing that Landlord advise Tenant whether the
Alteration or any portion of the Alteration will be designated as a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord shall
advise Tenant in writing as to which portions of the Alteration, if any, will be
considered to be Required Removables.
IX. Repairs and Alterations.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
---------------------------
expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without
limitation, repairs to: (1) floor covering; (2) interior
8
{PAGE}
partitions; (3) doors; (4) the interior side of demising walls; (5)
electronic, phone and data cabling and related equipment
(collectively, "Cable") that is installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the
Building; (6) supplemental air conditioning units, private showers and
kitchens, including hot water heaters, plumbing, and similar
facilities serving Tenant exclusively; and (7) Alterations performed
by contractors retained by Tenant, including related HVAC balancing.
All work shall be performed in accordance with the rules and
procedures described in Section IX.C. below. If Tenant fails to make
any repairs to the Premises for more than 15 days after notice from
Landlord (although notice shall not be required if there is an
emergency), Landlord may make the repairs, and Tenant shall pay the
reasonable cost of the repairs to Landlord within 30 days after
receipt of an invoice, together with an administrative charge in an
amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
------------------------------
good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (3) Common Areas; (4) the
roof of the Building; (5) exterior windows of the Building; and (6)
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord
is responsible. Tenant hereby waives any and all rights under and
benefits of subsection 1 of Section 1932, and Sections 1941 and 1942
of the California Civil Code, or any similar or successor Laws now or
hereinafter in effect.
C. Alterations. Tenant shall not make alterations, additions or
------------
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a "Cosmetic
Alteration"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2) is not
visible from the exterior of the Premises or Building; (3) will not
affect the systems or structure of the Building; and (4) does not
require work to be performed inside the walls or above the ceiling of
the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable
to Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with
respect to Building systems); copies of contracts; necessary permits
and approvals; evidence of contractor's and subcontractor's insurance
in amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Changes to the
plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike
manner using materials of a quality that is at least equal to the
quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord within
30 days after receipt of an invoice for sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any non-Cosmetic Alterations equal to 5%
of the cost of the non-Cosmetic Alterations (not to exceed $20,000 on
any one project). Notwithstanding the foregoing to the contrary, in
the event Landlord's reasonable and actual costs (as documented by
paid receipts, time sheets or other similar documentation) to review
and oversee any non-Cosmetic Alterations exceed $20,000, Landlord
shall be entitled to receive from Tenant such reasonable and actual
costs incurred by Landlord in connection with such review without
limitation by such $20,000 cap. For purposes of the preceding
sentence, Landlord shall be entitled to include as part of such costs,
a reasonable allocation for the time expended by Landlord's in-house
employees and staff to oversee and review such work. Upon completion,
Tenant shall furnish "as-built" plans (except for Cosmetic
9
{PAGE}
Alterations), completion affidavits, full and final waivers of lien in
recordable form, and receipted bills covering all labor and materials.
Tenant shall assure that the Alterations comply with all insurance
requirements and Laws. Landlord's approval of an Alteration shall not
be a representation by Landlord that the Alteration complies with
applicable Laws or will be adequate for Tenant's use.
X. Use of Electrical Services by Tenant.
A. Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage); (2) by
a separate charge payable by Tenant to Landlord within 30 days after
billing by Landlord; or (3) by separate charge billed by the
applicable utility company and payable directly by Tenant. Electrical
service to the Premises may be furnished by one or more companies
providing electrical generation, transmission and distribution
services, and the cost of electricity may consist of several different
components or separate charges for such services, such as generation,
distribution and stranded cost charges. Landlord shall have the
exclusive right to select any company providing electrical service to
the Premises, to aggregate the electrical service for the Property and
Premises with other buildings, to purchase electricity through a
broker and/or buyers group and to change the providers and manner of
purchasing electricity. Landlord shall be entitled to receive a fee
(if permitted by Law) for the selection of utility companies and the
negotiation and administration of contracts for electricity, provided
that the amount of such fee shall not exceed 50% of any savings
obtained by Landlord, and further provided that in no event shall the
payment of such fee to Landlord result in the Tenant paying more for
Electrical Costs than Tenant would have paid had Landlord not
negotiated any such contract and charged such fee.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord reasonably deems to be standard for the
Building. If Tenant requests permission to consume excess electrical
service, Landlord may refuse to consent or may condition consent upon
conditions that Landlord reasonably elects (including, without
limitation, the installation of utility service upgrades, meters,
submeters, air handlers or cooling units), and the additional usage
(to the extent permitted by Law), installation and maintenance costs
shall be paid by Tenant. Landlord shall have the right to separately
342284
|
iAsiaWorks
As referenced in this Office Lease Agreement:
iAsiaWorks, Inc – PARK PLAZA II
BURLINGAME, CALIFORNIA
OFFICE LEASE AGREEMENT
BETWEEN
EOP-BAY PARK PLAZA, L.L.C., a Delaware limited liability company
("LANDLORD")
AND
iAsiaWorks, Inc ., a Delaware corporation
("TENANT")
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
I. Basic Lease Information....................................... 1
II. Lease Grant................................................... 2
III. Adjustment
_____________
iAsiaWorks, Inc – the 4 day of December, 2000, by and between EOP-BAY PARK PLAZA, L.L.C., a
Delaware limited liability company ("Landlord") and iAsiaWorks, Inc ., a
Delaware corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building located at 555 Airport Boulevard,
Burlingame, California, commonly
_____________
iAsiaWorks, Inc – a Maryland
real estate investment trust, its general
partner
By: /s/ Robert E. Dezzutti
-------------------------------
Name: Robert E. Dezzutti
-----------------------------
Title: Senior Vice President
----------------------------
TENANT:
iAsiaWorks, Inc ., a Delaware corporation
By: /s/ Nicholas K. Pianim
-------------------------------
Name: NICHOLAS K. PIANIM
-----------------------------
Title: VP GLOBAL CORP. DEV
----------------------------
By: /s/ Jon Beizer
-------------------------------
Name:
_____________
iAsiaWorks, Inc – the 4
day of December, 2000, by and between EOP-BAY PARK PLAZA, L.L.C., a Delaware
limited liability company ("Landlord") and iAsiaWorks, Inc ., a Delaware
corporation ("Tenant") for space in the Building located at 555 Airport
Boulevard, Burlingame, California.
[FLOOR PLAN]
A-1
{PAGE}
EXHIBIT
_____________
iAsiaWorks, Inc – the 4
day of December, 2000, by and between EOP-BAY PARK PLAZA, L.L.C., a Delaware
limited liability company ("Landlord") and iAsiaWorks, Inc ., a Delaware
corporation ("Tenant") for space in the Building located at 555 Airport
Boulevard, Burlingame, California.
[SITE PLAN]
{PAGE}
EXHIBIT B
BUILDING
_____________
dt 692726
;
EOP Operating
As referenced in this Office Lease Agreement:
EOP Operating Limited
Partnership – Building Manager Pacific Region
Rent (defined in Section IV.A) is payable to the order of Equity
Office Properties at the following address: EOP Operating Limited
Partnership , as Agent for EOP-Bay Park Plaza, L.L.C., File 72845, P.O.
Box 61000, San Francisco, California 94161-2845.
M. "
_____________
EOP Operating Limited Partnership – policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership , a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and other
designees of Landlord as
_____________
EOP Operating Limited Partnership – as of the day and year first
above written.
LANDLORD:
EOP-BAY PARK PLAZA, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership , a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its general
partner
By: /
_____________
EOP Operating Limited Partnership – as of the day and year first
above written.
LANDLORD:
EOP-BAY PARK PLAZA, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership , a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its general partner
By: /
_____________
EOP Operating Limited Partnership – day and year first
above written.
C-7
{PAGE}
LANDLORD:
EOP-BAY PARK PLAZA, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership , a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its general partner
By: /
_____________
dt 705105
;
|
EOP
As referenced in this Office Lease Agreement:
Equity Office Properties Trust
– following address:
at the Premises
------------------------------
______________________________
______________________________
Phone #: _____________________
Fax #: ______________________
Landlord: With a copy to:
EOP-BAY PARK PLAZA, L.L.C. Equity Office Properties Trust
c/o Equity Office Properties Trust Two North Riverside Plaza
577 Airport Boulevard Suite 2100
Suite 200 Chicago, Illinois 60606
Burlingame, California
_____________
Equity Office Properties Trust – ______________________________
Phone #: _____________________
Fax #: ______________________
Landlord: With a copy to:
EOP-BAY PARK PLAZA, L.L.C. Equity Office Properties Trust
c/o Equity Office Properties Trust Two North Riverside Plaza
577 Airport Boulevard Suite 2100
Suite 200 Chicago, Illinois 60606
Burlingame, California 94010 Attention: Regional Counsel -
Attention: Building
_____________
Equity Office Properties Trust, – not less than A-VIII. All
Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers,
_____________
Equity Office Properties Trust, – PARK PLAZA, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its general
partner
By: /s/ Robert E. Dezzutti
-------------------------------
Name: Robert E. Dezzutti
-----------------------------
Title: Senior Vice President
----------------------------
_____________
Equity Office Properties Trust, – PARK PLAZA, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its general partner
By: /s/ Robert E. Dezzutti
----------------------------
Name: Robert E. Dezzutti
--------------------------
Title: Senior Vice President
-------------------------
_____________
dt 700965
|
Preview
Full Doc
| 2000 |
Sale and Purchase Agreement
Sale and Purchase Agreement (56K)
Doc #342298: Click preview link for longer preview.
SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT ("Agreement") is made this 22nd day of July
2000,
Among:
iAsiaWorks Korea Co., Ltd., a company duly organised and existing under the laws
of the Republic of Korea, having its registered office located at BoRaMae DaeKyo
Building, 6th Floor, 729-21, Bongchon-dong, Kwanak-Gu, Seoul, Korea 151-706
("Purchaser");
Senan Corp., a corporation duly organized and validly existing under the laws of
the Republic of Korea ("Korea"), with its head office at 1423-1 Seocho-Dong,
Seocho-Gu, Seoul, Korea ("Senan"); and
Mr. Eui-Seok Lee (KID#640325-1068317), a citizen of the Republic of Korea with
his address at Shindonga Apt. 8-906, 241-21 Seobingo-dong, Yongsan-ku, Seoul,
Korea ("Lee").
Senan and Lee are collectively referred to hereinafter as "Seller". Purchaser
and Seller are collectively referred to hereinafter as "Parties" or individually
as a "Party".
Whereas:
(A) Seller desires to sell and transfer to Purchaser, and Purchaser desires to
purchase and accept from Seller the Land (as defined below) and Building
(as defined below) for the consideration set forth in Article 2 (the
"Transaction"); and
(B) Seller has made Representations and Warranties to Purchaser set forth in
Article 10, and the Parties intend that Purchaser rely upon such
Representations and Warranties in entering into this Agreement.
Now, Therefore, for good and valuable consideration and in consideration of the
covenants and conditions contained herein, the Parties agree as follows:
Definitions
1.1 In this Agreement unless the context otherwise requires:
Affiliate means, with respect to a Party to this Agreement, another legal entity
that is controlling, controlled by, or under common ultimate control with such
Party, directly or indirectly, by means of shareholding interest, voting power,
agreement, or otherwise;
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.
{PAGE}
Building means the structure located on the Land with the following mailing
address: 1423-1 and 1423-2, Seocho-Dong, Seocho-Gu, Seoul, Korea and as further
described in Attachment 1.
Business Day means a day other than a Saturday or Sunday on which banks in Korea
and the United States are open for the transaction of normal banking business;
Closing means closing of the Transaction in accordance with Article 5;
Closing Date means the date of Closing;
Conditions Precedent means the conditions specified in clause 3.1;
Environment means all or any of the following media: the air (including without
limitation the air within buildings and the air within other natural or man-made
structures above or below ground), water and land and any living organisms or
systems supported by those media;
Environmental Laws means all applicable Korean statutes and subordinate
legislation and local laws, judicial decisions or regulatory orders or
regulatory agreements to the extent that they relate to Environmental matters;
Korea means the Republic of Korea;
Land means the real estate located at 1423-1 and 1423-2, Seocho-Dong, Seocho-Gu,
Seoul, Korea, having areas of 3,941.2 and 860, respectively, for a total area of
4,801.2 as described in detail in Attachment 2;
Liabilities means amounts owed by and liabilities (both ascertained and
contingent) of Seller in connection with the Property;
Property means the Land and Building owned by the Seller;
Property Warranties means the representations and warranties set out in Schedule
1;
Representations and Warranties means the representations and warranties set out
in Articles 10 and 11.
Security Interest means any security interest of any nature whatsoever
including, without limitation, any mortgage, charge, pledge, lien, assignment by
way of security or other encumbrance on the Property at or prior to Closing;
Tax and Taxation means any form of taxation, levy duty, charge, contribution of
whatever nature (including any fine, penalty, surcharge or interest in relation
thereto) imposed by a local, municipal, government or other body or authority in
Korea or elsewhere; and
{PAGE}
Tenants means the tenants of the Building as listed in Attachment 3 for which
valid lease contracts exist.
1.2 In this Agreement:
(a) references to persons shall include individuals, bodies corporate (wherever
incorporated), unincorporated associations and partnerships;
(b) the headings are inserted for convenience only and shall not affect the
construction of this Agreement;
(c) any reference to an enactment is a reference to it as from time to time
amended, consolidated or re-enacted (with or without modification) and
includes all instruments or orders made under such enactment;
(d) any statement qualified by the expression to the best knowledge of Seller
or so far as Seller is aware or any similar expression shall be deemed to
include an additional statement that such statement has been made after due
and careful enquiry;
(e) unless the context otherwise requires, references to the singular shall
include the plural and vice versa; and
(f) any reference to a document in the agreed form is to the form of the
relevant document agreed between the Parties and for the purpose of
identification initialled by each of them or on their behalf (in each case
with such amendments as may be agreed by or on behalf of Seller and
Purchaser).
1.3 Except where the context requires otherwise, references to articles,
clauses, attachments and schedules are to articles, clauses of or attachments or
schedules to this Agreement and references to sub-clauses are to sub-clauses of
the clause in which the reference appears.
1.4 Where any obligation pursuant to this Agreement is expressed to be
undertaken or assumed by any party, such obligation shall be construed as
requiring the party concerned to exercise all rights and powers of control over
the affairs of any other person which that party is able to exercise (whether
directly or indirectly) in order to secure performance of that obligation.
Agreement to Sell and Price
2.1 Subject to the terms and conditions contained herein, Seller shall sell to
Purchaser and Purchaser shall purchase from Seller effective from the Closing
Date, the Property including the following:
(a) Land;
{PAGE}
(b) Building; and
(c) any other core infrastructure facilities of the Building, including without
limitation, such as power facilities or water pipe facilities located on
the Property as of the Closing Date.
2.2 On the terms and subject to the conditions set forth herein, in
consideration for the sale and transfer by Seller to Purchaser of the Property
free and clear of any and all Security Interests and Liabilities, Purchaser
shall pay the purchase price as set forth below:
(a) Subject to sub-clauses (b), (c), (d), (e) and (f) below, Purchaser shall
pay to Seller or its designee [*] (the "Purchase Price"), consisting of [*]
for the Building and [*] for the Land. Purchaser shall also pay to Seller
the Value Added Tax ("VAT") for the purchase of Building on the Closing
Date.
(b) The Purchase Price shall be paid in the following instalments:
i. Initial Payment: Ten percent (10%) in the amount of [*]. Purchaser
shall pay [*] on the date of execution of this Agreement. The
remaining balance of the Initial Payment in the amount of [*] shall
342298
| | |
Preview
Full Doc
| 2000 |
Sublease Agreement
Sublease Agreement (23K)
Doc #342317: Click preview link for longer preview.
SUBLEASE AGREEMENT
------------------
THIS SUBLEASE AGREEMENT is made effective as of August 31, 1999
between California Casualty Management Company, a California corporation
(hereinafter called "Sublessor") and AUNET Corporation, a California corporation
(hereinafter called "Sublessee").
WITNESSETH
WHEREAS, Sublessor is the Tenant under a written Office Lease dated as
of March 18, 1998 wherein OTR (hereinafter called "Prime Landlord") . . .
342317
| | |
Preview
Full Doc
| 2000 |
Sublease
Sublease (77K)
Doc #342325: Click preview link for longer preview.
SUBLEASE
--------
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 Napier Court, Wavertree Technology Park, Liverpool, UK L13
IHD ("Sublandlord"), and iAsia Works, Inc., a California corporation, having an
office at 2000 Alameda de las Pulgas, San Mateo, California 94403 ("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
---------
Premises
--------
Section 1.01 Sublandlord hereby subleases the Premises to Subtenant, and
------------
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,
1
{PAGE}
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
---------
Term; Use; Condition of Premises
--------------------------------
Section 2.01 Subject to Landlord's and to the extent applicable Prime
------------
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
------------
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
------------
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.
2
{PAGE}
ARTICLE 3
---------
Fixed Rent; Additional Rent
---------------------------
Section 3.01 A. Subtenant shall pay to Sublandlord, fixed rent ("Fixed
------------
Rent") during the Term as follows:
Period Rental Rate per month / SF Monthly Base Rent
------ -------------------------- -----------------
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
------------
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
------------
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
342325
| | |
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| 2000 |
Tenancy Agreement
Tenancy Agreement (136K)
Doc #342316: Click preview link for longer preview.
Dated the 3rd day of May 2000
---------------------------------
MONANCE LIMITED
(as Landlord)
AND
IASIAWORKS (HK) LIMITED
(as Tenant)
-------------------------------------------------------
TENANCY AGREEMENT
of
27th Floor of Hongkong Telecom . . .
342316
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| 2000 |
Turnkey System Agreement
Turnkey System Agreement (120K)
Doc #342297: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10.23
{SEQUENCE}4
{FILENAME}0004.txt
{DESCRIPTION}TURNKEY SYSTEM AGREEMENT
{TEXT}
{PAGE}
Exhibit 10.23
DATED JULY 6, 2000
IASIAWORKS (HK) LIMITED
AND
PILLER GmbH GERMANY
_____________________________________________
TURNKEY SYSTEM AGREEMENT
_____________________________________________
Squire, Sanders & Dempsey
Rooms 1101-4, St. George's Building
2 Ice House Street
Central, Hong Kong
{PAGE}
TABLE OF CONTENTS
-----------------
{TABLE}
{S} {C}
1 DEFINITIONS AND INTERPRETATION 4
2 SCOPE OF AGREEMENT 7
3 OBLIGATIONS AND REPRESENTATIONS OF THE CUSTOMER 8
4 OBLIGATIONS AND REPRESENTATIONS OF THE SUPPLIER 9
5 TITLE TO AND RISK IN THE SYSTEMS 12
6 SYSTEMS WARRANTYS 12
7 PRICES AND TERMS OF PAYMENT 13
8 ASSIGNMENT 14
9 INDEMNIFICATION & LIMITATION OF LIABILITY 14
10 FORCE MAJEURE 14
11 CONFIDENTIALITY 15
12 TERM OF AGREEMENT 16
13 DISPUTE RESOLUTION 16
14 ENTIRE UNDERSTANDING 17
15 FURTHER ASSURANCE 18
16 GOVERNING LAW AND JURISDICTION 18
17 INCONSISTENCY 18
18 TIME OF THE ESSENCE, INCENTIVES AND LIQUIDATED DAMAGES 18
19 NOTICES 19
20 PUBLIC ANNOUNCEMENTS 19
21 SEVERABILITY 19
22 TERMINATION 20
23 VARIATION 22
24 WAIVER 22
25 OTHER PROVISIONS 22
{/TABLE}
2
{PAGE}
ANNEXES
-------
I. SPECIFICATIONS
II. SYSTEMS AND PRICES
III. DELIVERY SCHEDULE
IV. DOCUMENTATION
V. HONG KONG PREMISES
VI. MAINTENANCE AGREEMENT
VII. SCOPE OF WORK
VIII. SYSTEM STANDARDS & STANDARD TESTING PROCEDURES CHECKLIST
3
{PAGE}
THIS AGREEMENT is made July 6, 2000 (the "Execution Date").
BETWEEN
IASIAWORKS (HK) LIMITED a company organized under the laws of Hong Kong with
offices at 27th Floor, Hongkong Telecom Tower, 979 King's Road, Quarry Bay,
Hong Kong ("Customer", which term shall, unless excluded by or repugnant to the
subject or context, include its executors, administrators, successors and
permitted assigns);
AND
PILLER GmbH GERMANY, a company organized under the laws of Germany with offices
at Abgunst 24, 37520 Osterode, Germany. ("Supplier", which term shall, unless
excluded by or repugnant to the subject or context, include its executors,
administrators, successors and permitted assigns).
RECITALS
(A) The Supplier represents that it is fully experienced, properly qualified,
duly registered, licensed, organized and equipped to design, sell, deliver,
install, test, and service the Systems.
(B) The Supplier desires to sell, and the Customer to purchase, nine (9)
Systems which shall be designed, manufactured, delivered, installed, tested
and thereafter serviced upon the Customer's request by the Supplier at the
Designated Premises under the terms and conditions of this Agreement.
(C) Each of the Systems to be installed in each of the Designated Premises will
be delivered, installed and tested in accordance with conditions set forth
in subcontracts with the Principal Contractors tasked with the construction
of the buildings at the relevant Designated Premises, in respect of which
the Customer may assign its rights and obligations under this Agreement on
a System-by-System basis.
(D) The Customer has agreed to assign the three (3) Systems destined for Hong
Kong and more particularly described in Annex I ("Hong Kong Systems") and
all rights, obligations and benefits under this Agreement relating to the
Hong Kong Systems to Weelek Company Limited (the "Hong Kong Assignee"),
such Systems to be installed at the Designated Premises in Hong Kong more
particularly set out in Annex V ("the Hong Kong Premises"), and the
Supplier has consented to such an assignment.
(E) It is the intention of the Customer, the Supplier and the relevant assignee
that such parties enter into a novation agreement (containing terms and
conditions approved by the parties thereto) to effect any assignment
contemplated under this Agreement ("Novation Agreement").
AGREEMENT
1. DEFINITIONS AND INTERPRETATION
4
{PAGE}
1.1 Definitions
Unless the context otherwise requires, in this Agreement and the recitals:
"Agreement"
means this document, any Variation and any Annex to it;
"Annex"
means the initial Annexes attached to this Agreement and also any
amendments thereto, any Annex substituted for an existing Annex or any
new Annex expressly adopted by the parties in accordance with the
provisions of this Agreement;
"Business Day"
means a day that is not a Saturday, Sunday or any other day which is a
public holiday or a bank holiday in the place where an act is to be
performed or a payment is to be made;
"CIF Terms"
means the terms for Cost, Insurance and Freight as contained in
INCOTERMS 2000 (as published by the International Chamber of Commerce
(the "ICC") in September, 1999) which, except as varied by this
Agreement, are expressly deemed to be incorporated into this
Agreement;
"Confidential Information"
means any information (whether in the form of audio, data, text,
images or a combination thereof) that one party may disclose to
another party during the term of this Agreement, whether orally (to be
confirmed in writing within 24 hours) or in writing, regarding the
structure, business, assets, liabilities, operations, budgets and/or
strategies of the disclosing party;
"Delivery Schedule"
means the schedule for completion of production of the Systems ex
works, shipping, placement and achieving operational status of the
Systems as described Annex III;
"Designated Premises"
means such places in Hong Kong, South Korea (likely to be in Seoul),
Taiwan (the Neihu District of Taipei), and Melbourne, Australia as
the Customer shall notify the Supplier at least ninety (90) days
before the applicable scheduled Placement Dates as set forth in Annex
III;
"Dispute"
means a dispute or disagreement arising out of this Agreement;
"Documentation"
means the documentation described in Annex IV as developed or to be
supplied by the Supplier or third parties in respect of or incidental
to the Systems;
"Final Acceptance"
5
{PAGE}
means the date upon which the Customer or its duly authorized
representative issues a written notice certifying that there are no
reasonably identifiable deficiencies in the functionality of the
Systems as such functionality is set forth in the Specifications, or
that all deficiencies in functionality (which are not of a service or
revenue affecting nature) identified in the course of Provisional
Acceptance have been resolved to its reasonable satisfaction;
"Hong Kong"
means the Hong Kong Special Administrative Region of the People's
Republic of China;
"Maintenance Agreement"
means the agreement contained in Annex VI setting forth the terms and
conditions for the maintenance of the Systems by the Supplier;
"Operational Dates"
means the dates set forth in the Delivery Schedule on which the
Customer shall issue Provisional Acceptance of the Systems;
"Placement Dates"
means the dates set forth in the Delivery Schedule by which the
Supplier shall place the Systems within the relevant Designated
Premises;
"Principal Contractors"
means the persons with primary control over the construction of the
buildings at the relevant Designated Premises, or that are otherwise
so designated, and to whom the Customer may assign its rights and
obligations under this Agreement on a System-by-System basis;
"Provisional Acceptance"
means the completion of acceptance tests performed in a manner
reasonably satisfactory to the Customer, during which the Systems
shall be tested to ensure conformance with the applicable
Specifications;
"Scope of Work"
means the general list of obligations to be performed by the Supplier
as set forth in Annex VII.
"Specifications"
means the technical specifications and performance parameters of
Systems as described in Annex I;
"Standard Testing Procedures"
means the Supplier's standard testing procedures for the Systems as
described in detail in Annex VIII;
"Systems"
means the diesel rotary UPS systems described in the Specifications,
including any corresponding software and programs as may be required
for the diesel rotary UPS systems to function as required and/or
represented; and
6
{PAGE}
"Variation"
means a variation agreed in accordance with clause 23.
"Warranty Period"
means the period of eighteen (18) months from the Shipping Dates (as
defined in the Delivery Schedule) or twelve (12) months from
Provisional Acceptance of the relevant Systems, whichever is later,
during which the Supplier shall provide a warranty to repair or
replace free of charge any defective components of the Systems at the
sole cost of the Supplier, including any incidental costs related
thereto.
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;
(ii) a statute, regulation or provision enacted in replacement of that
Statutory Provision.
1.3 All monetary amounts are in US Dollars unless otherwise stated and all
payments are to be paid in US Dollars.
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 that is not a Business Day, the
act must be done instead on the next Business Day.
1.8 All references to days and months mean calendar days and calendar months
unless otherwise specified.
7
{PAGE}
1.9 If any agreement, approval or consent is required or to be given or
obtained under or pursuant to this Agreement, such agreement, approval or
consent must not be unreasonably conditioned, delayed or withheld.
2. SCOPE OF AGREEMENT
The Supplier agrees to sell and the Customer to purchase nine (9) Systems
which the Supplier shall design, manufacture, deliver, install and test at
the Designated Premises, pursuant to the terms and conditions of this
Agreement.
3. OBLIGATIONS AND REPRESENTATIONS OF THE CUSTOMER
The Customer shall:
3.1 make payment to the Supplier in accordance with clause 7, upon the Supplier
performing its corresponding obligations as set forth therein or otherwise
provided in this Agreement.
3.2 bear its own costs and charges of complying with its obligations under this
Agreement.
3.3 give to the Supplier such information that the Supplier may reasonably
require or request so as to enable the Supplier to perform its obligations
under this Agreement, including the provision of information regarding the
locations of the Designated Premises.
The Customer represents and warrants to the Supplier that:
3.4 the Customer shall give Provisional Acceptance upon the completion of
acceptance tests confirming performance of the relevant Systems in
accordance with the Specifications, and shall give Final Acceptance upon
the satisfaction of conditions contained in the definition of Final
Acceptance.
3.5 (a) (i) the area within the Designated Premises will have suitable access
through December 5, 2000, and after the completion of the occupation
permit inspection process, so as to enable the entry of and placing of
the relevant Systems therein, including any temporary structures
starting from the exterior wall and including the interior of the
Designated Premises necessary therefor, and for the avoidance of
doubt, if the Supplier fails to place the Systems on site by the
relevant Placement Date, the Customer shall have the right to deny
access until after the completion of the occupation permit inspection
process, (ii) the building will sustain the weight of the relevant
Systems and strengthening beams and the like are in the proper
position to support the relevant Systems, (iii) the Designated
Premises are large enough in height and area to accommodate the
relevant Systems, (iv) sufficient electrical power is provided to
operate the relevant Systems and the electrical supply is of the
correct voltage and frequency for the relevant Systems at the input
and can easily be connected to the Systems, and (v) the correct
environmental conditions exist to enable the relevant Systems to
operate properly in accordance with the Specifications. For the Hong
Kong Systems, the Supplier acknowledges that the height of 2.7 meters
from the supporting structure to the underside of the
8
{PAGE}
overhead beam is sufficient to accommodate the Hong Kong Systems; and
Weelek Company Limited shall bear the cost of any temporary structure
that may be required to support the weight of the Hong Kong Systems
during off-loading at or in the vicinity of the Designated Premises;
(b) there will be sufficient temporary lighting and power to enable the
relevant Systems to be properly installed. A sufficient and proper
site load will be available for testing or a suitable dummy load will
be provided;
(c) the outputs required for the relevant Systems will be indicated in a
timely manner so as to be incorporated into the design of the Systems;
and
(d) upon placement on site and completion of the inventory checklist, the
Customer, its assignees or Principal Contractors shall provide
reasonable security and safety measures, including a locked secure
area for the relevant Systems at the site of the Designated Premises.
For the avoidance of doubt, the ultimate responsibility for the safety
and security of the relevant Systems shall rests on the Supplier until
Provisional Acceptance and the ultimate responsibility to resolve any
deficiencies in the functionality of the Systems identified upon
Provisional Acceptance shall remain with the Supplier until Final
Acceptance.
3.5 it will ensure that the area allocated for the Systems within the relevant
Designated Premises is complete and ready for the placing and installation
of the relevant Systems equipment in accordance with item 3.4 by the
relevant delivery dates of the Systems on site.
3.6 it has obtained all necessary approvals, consents and authorizations to
enter into this Agreement and to perform and carry out its obligations
hereunder.
3.7 the persons executing this Agreement on its behalf have express authority
to do so.
3.8 the execution, delivery and performance of this Agreement does not violate
any provision of any bylaw, charter, regulation, or any other governing
authority of the Customer; nor does it violate any obligation pursuant to
any contractual agreement between the Customer and a third party to which
the Customer is bound at the time of the Execution Date.
4. OBLIGATIONS AND REPRESENTATIONS OF THE SUPPLIER
The Supplier shall:
4.1 deliver the relevant Systems to the address notified by the Customer for
cranage into and placement in position within the respective Designated
Premises (including, without limitation, the provision of any necessary
temporary structures outside the exterior wall of the Designated Premises)
by the relevant Placement Dates and the achievement of full functionality
by the relevant Operational Dates, assume full responsibility and all
related costs for the storage and protection of the Systems while the
Systems are in the vicinity of the Designated Premises and awaiting
installation in the Premises, and install, commission and ensure the full
functionality and servicing of the Systems in accordance with the
Specifications and the Maintenance Agreement.
9
{PAGE}
4.2 use best practices as currently exist in the Supplier's area of
specialization and all reasonable care, professional skill and diligence to
perform its obligations under this Agreement, including compliance with the
CIF Terms, the Specifications and the Delivery Schedule.
4.3 conduct at its own cost, such reviews, inspections and tests in accordance
with the Supplier's Standard Testing Procedures, described in detail in
Annex VIII, so as to allow the Customer to issue Provisional Acceptance and
Final Acceptance in respect of each System.
4.4 give the Customer reasonable prior notice of the expected delivery dates of
the Systems to the Designated Premises. In the event the Supplier, at any
time, anticipates that it shall not be able to comply with the Delivery
Schedule, it shall immediately so notify the Customer, submit proposed
revisions to the Delivery Schedule which reflect its best estimates of what
can be realistically achieved and continue to work under the original
Delivery Schedule until otherwise agreed in writing with the Customer. For
the avoidance of doubt, such notification does not relieve the Supplier of
its obligations under this Agreement.
4.5 promptly supply to Customer, throughout the term of this Agreement, design
support to the Customer's nominated engineering representatives and/or
contractors.
4.6 promptly supply to the Customer sufficient electrical control and
synchronization panels and other spare parts pursuant to the Maintenance
Agreement so as to enable the Customer to exploit the full potential of the
Systems.
4.7 supply to the Customer upon request, from time to time and throughout the
term of this Agreement, the number of copies of the Documentation
designated in Annex IV. All Documentation must be in the English language,
unless otherwise agreed between the Supplier and the Customer. The
Documentation supplied to the Customer shall be the property of the
Customer upon Provisional Acceptance.
4.8 grant to the Customer a royalty-free license, in perpetuity and on a non-
transferable basis (except as qualified in clauses 8.1 and 8.2
hereinafter), to use the Documentation (which grant shall be deemed to have
occurred and become effective upon Provisional Acceptance) and shall:
(a) provide at a nominal and reasonable price such further copies of the
Documentation as the Customer may reasonably request from time to
time; and
(b) during its warranty obligations promptly provide, free of charge to
the Customer, such revised and/or updated versions of the
Documentation that are made from time to time, and at a reasonable
price upon the expiration of its warranty obligations.
4.9 diligently and promptly furnish such information which the Customer may
reasonably request from time to time in respect of and concerning the
timely performance of the Supplier's obligations and responsibilities under
this Agreement, including (i) compliance with the Delivery Schedule, (ii) a
detailed methods statement setting forth
10
{PAGE}
the manner in which the Systems will be delivered to site, offloaded,
craned and positioned within the relevant Designated Premises, and (iii) by
August 15, 2000 for the Hong Kong Systems and six (6) weeks after
confirmation of the location of the Designated Premises for the Taiwan,
South Korea and Australia Systems, furnish detailed engineering and layout
drawings for the installation.
4.10 diligently and promptly provide the Customer with responses to technical
queries within two (2) Business Days.
4.11 diligently and promptly inform the Customer of any relevant defects,
modifications, or future product development or enhancements which may be
or may have been discovered in or made to or in respect of the Systems from
time to time, after the Execution Date.
4.12 ensure that all the Systems shall be manufactured, stored and tested in
accordance with the Specifications and properly packed and secured for
delivery to the Customer at the specified locations in the Designated
Premises in an undamaged condition.
4.13 upon receiving notice to such effect from the Customer, repair or replace
free of charge any part of the Systems damaged or lost in transit. Due
delivery of the Systems shall not be deemed to have taken place until
replacement or repaired Systems have been delivered by the Supplier to the
Customer. The Customer reserves the right to hold such damaged Systems at
the Supplier's risk or to return them at the risk and expense of the
Supplier.
4.14 procure a contract of carriage and insure the Systems from dispatch until
delivery on terms currently in the trade to the benefit of the Customer,
and promptly tender to the Customer a clean bill of lading, the insurance
policy and invoice in respect of each part of the Systems to each of the
Designated Premises; and maintain general liability insurance that is
satisfactory to the Customer.
4.15 abide by all safety regulations and reasonable instructions or directions
given by the Customer or its assignees, their site supervisors or
authorized representatives, at the relevant Designated Premises, and shall
not do anything that may affect the issuance of the occupation permit or
such other permits, approvals or consents relating to, or other
construction works in, the relevant Designated Premises.
4.16 pay all withholding taxes, other taxes, levies, duties and assessments of
every nature due in connection with this Agreement required by applicable
law, in accordance with Annex II.
4.17 execute and deliver to the Customer the Novation Agreement, as and when the
Customer reasonably requires.
The Supplier represents and warrants to the Customer that:
4.18 unless agreed to the contrary, all Systems shall be new, of merchantable
quality, fit for the purposes notified by the Customer or set out in the
Specifications, comply with best and current international standards, and
will be delivered, installed, made operational
11
{PAGE}
and serviced in accordance with this Agreement, including the
Specifications, the Delivery Schedule, and the Maintenance Agreement.
4.19 it has title to the Systems consistent with the rights granted to the
Customer under the terms and conditions of this Agreement.
4.20 the title to the Systems shall be free and unencumbered and, where the
Customer has complied with its material obligations hereunder, the Customer
shall enjoy the unencumbered title to and quiet possession of all Systems.
4.21 the Documentation shall, by itself, be sufficiently comprehensive to
enable relevant persons, suitably trained and certified by the Supplier or
such other parties which the Supplier may approve, to operate and maintain
the same (including first-level diagnosis and rectification of problems).
4.22 it is (and its employees, agents and permitted subcontractors are) fully
experienced, properly qualified, registered, licensed, equipped, organized,
and financed to perform the Supplier's obligations under this Agreement.
The Supplier shall act as an independent contractor and not as the agent of
the Customer in performing its obligations under this Agreement,
maintaining complete control over its employees and all of its suppliers.
4.23 it will fulfill all applicable requirements from all relevant governing
authorities, and will obtain and maintain all necessary approvals, permits,
licenses, consents or authorizations:
(a) which may be required to export the Systems from the point of origin
or manufacture;
(b) which may be required to import the Systems to the jurisdictions in
which the Designated Premises are located and to deliver and install
the same; and
(c) to enter into this Agreement and to perform and carry out its
obligations hereunder.
4.24 the persons executing this Agreement on its behalf have express authority
to do so.
4.25 the execution, delivery and performance of this Agreement does not violate
any provision of any of its bylaws, charters, regulations or any other
governing authority; nor does it violate any obligation pursuant to any
contractual agreement between the Supplier and a third party to which the
Supplier is bound at the time of the Execution Date.
4.26 the Systems and all related goods and services provided hereunder do not
violate or in any way infringe upon the intellectual property rights of
third parties.
4.27 it will immediately notify the Customer of any developments and reasons
that might affect the Supplier's ability to fully perform and carry out its
obligations under this Agreement.
12
{PAGE}
4.28 it will notify the Customer in writing, before November 31, 2000, of the
name and address of its local agents who will provide services in Hong
Kong.
5. TITLE TO AND RISK IN THE SYSTEMS
Title to all Systems to be supplied under this Agreement shall pass to the
Customer at the same time that risk passes under the CIF Terms. For the
purposes of this Agreement the CIF Terms are hereby varied to the extent
that risk shall pass to the Customer upon delivery to each of the
Designated Premises.
6. SYSTEMS WARRANTYS
6.1 The Supplier warrants that the Systems shall perform in accordance with the
relevant Specifications during the Warranty Period.
6.2 In the event of any breach of clause 6.1, the Supplier shall, at its own
cost, promptly do such things as may be necessary (including redesign,
modification and/or replacement) to ensure compliance with the relevant
Specifications. In addition, the Customer has the right to request and
obtain specific performance. Any further rights and remedies beyond to the
scope of clause 6.1 shall be excluded.
6.3 In the event that any System (or any component thereof) is repaired,
replaced or modified during the Warranty Period, the System or component
thereof which is repaired, replaced or modified shall be warranted for a
further period of six (6) months from the date of repair, replacement or
modification; provided, however, that under no circumstance shall the
additional warranty period exceed the initial Warranty Period by more than
six (6) months. The termination of this Agreement shall not adversely
affect any Systems warranty which has been activated, and such warranty
shall continue for such period as may be specified in this clause 6.
6.4 The Supplier acknowledges that the Customer shall not be deemed to have
accepted any part of the Systems until after the Customer (or its nominated
contractor) has actually inspected and tested the Systems and ascertained
that they are in accordance with the Specifications; provided, however,
that if the Customer puts the Systems into operation without the prior
permission of the Supplier, such permission not to be unreasonably
withheld, any such Systems shall be deemed to have been given Final
Acceptance. Further, the Customer may reject, by notice to the Supplier,
any part of the Systems which is not in accordance with the Specifications
within a reasonable time after inspection and testing in accordance with
the Standard Testing Procedures. Unless within a reasonable time of
receipt of notice of rejection the Supplier collects such System, or any
relevant part thereof, the Customer may dispose of such rejected System, or
any part thereof, as the Customer shall think fit without prejudice to the
Customer's right to claim for breach of this Agreement. If any of the
Systems supplied to the Customer are not in accordance with the
Specifications, the Supplier shall at the option of the Customer forthwith
upon notice being given either repair or replace such Systems. If it is
necessary to open up or dismantle any of the works or assemblies to permit
such repair or replacement then the Supplier shall bear the costs of such
opening
13
{PAGE}
up or dismantling, reassembly and making good after repairs, replacements
and testing of such Systems to the Customer's reasonable satisfaction.
7. PRICES AND TERMS OF PAYMENT
7.1 The Customer shall pay promptly the amounts set out in Annex II, upon each
of the corresponding events therein and upon the Supplier complying with
its material obligations under this Agreement.
7.2 Any invoices to be delivered shall be delivered by the Supplier to the
Customer and be supported by such standard delivery and order documents
(including bills of lading, airway bills or dispatch notes) as may be
reasonably requested by the Customer and/or customary in Hong Kong, South
Korea, Taiwan, or Australia as applicable to the given shipment.
7.3 If the Customer objects to an invoice and/or any of the supporting
documents provided therewith, the Customer shall raise an objection within
twenty (20) days of receipt of the relevant documents; otherwise the
invoice shall be deemed as accepted by the Customer and the Customer shall
pay the amount of such invoice within thirty (30) days from receipt of such
invoice.
8. ASSIGNMENT
8.1 Except as expressly provided in this Agreement, a party may not assign its
rights or delegate its obligations under any part of this Agreement except
with the prior consent of the other party.
8.2 Notwithstanding clause 8.1, the Customer may assign its rights and
obligations under this Agreement (a) on a System-by-System basis to the
Principal Contractors and (b) in the case of merger, acquisition, or sale
of all, or substantially all of the Customer's equity securities or assets,
the Customer may assign this Agreement, provided, however, that such
acquiring party or resultant entity shall agree to unconditionally accept
all rights and obligations hereunder. The Customer may also at any time
assign this Agreement to any entity controlled by, controlling or under
common control with the Customer. The Supplier may transfer this Agreement
to any third party who acquires all or substantially all of the Supplier's
assets or equity securities provided that such acquiring party agrees to
unconditionally accept all rights and obligations hereunder.
8.3 Upon the Customer assigning any of its rights and obligations under this
Agreement, the Supplier will promptly and in good faith negotiate any
Variation of this Agreement that is reasonably required by the assignee
that has been entered into in respect of the Designated Premises, including
insurance requirements, safety procedures, and security measures.
9. INDEMNIFICATION & LIMITATION OF LIABILITY
9.1 Each party shall fully indemnify, defend and hold harmless the other party
and its subsidiaries and affiliates, and the officers, agents, employees,
successors and assigns
14
{PAGE}
and authorized representatives of all the foregoing, from and against any
and all suits, actions, legal or administrative proceedings, claims,
demands, damages, liabilities, interest, attorney's fees, costs, expenses,
and losses of whatsoever kind or nature in connection with or incidental to
any material breach of this Agreement by such party, whether arising before
or after Final Acceptance of all the Systems hereunder.
9.2 Notwithstanding clause 9.1, neither party shall be liable for any indirect
and/or consequential damages including, but not limited to, loss of profit,
loss of production or loss of interest.
10. FORCE MAJEURE
Outbreak of war, whether declared or not, revolutions, general strikes,
lockouts, labor disputes, governmental acts, outbreak of epidemics,
earthquakes, inundations and unusual floods, unprecedented droughts and
raging fires not due to the Supplier and in general any event the removal
or prevention of which is (i) beyond the Supplier's control and (ii) beyond
the ability of a prudent and experienced seller to control, shall be
regarded as Force Majeure, and the Supplier shall not be responsible for
delays arising out of the foregoing events.
11. CONFIDENTIALITY
11.1 From time to time during the performance of this Agreement, the parties
may deem it necessary to provide each other with Confidential Information.
The parties each agree:
(a) to maintain the confidentiality of such Confidential Information and
not to disclose the same to any third party, except as authorized by
the original disclosing party in writing;
(b) to restrict disclosure of Confidential Information to employees who
have a "need to know". Such Confidential Information shall be
maintained in strict confidence;
(c) to take precautions necessary and appropriate to guard the
confidentiality of Confidential Information, including requiring its
employees who handle such Confidential Information to enter into
confidentiality agreements having terms substantially similar to those
contained herein;
(d) that Confidential Information is and shall at all times remain the
property of the disclosing party. No use of any Confidential
Information is permitted except as otherwise expressly provided herein
and no grant of any proprietary rights is hereby given or intended,
including any licence implied or otherwise; and
(e) to use such Confidential Information solely as required in performance
of its obligations under this Agreement.
15
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11.2 Except for necessary disclosures to professional advisers and bankers,
neither party shall disclose to any third party the contents of this
Agreement without the prior written consent of the other party.
11.3 Confidential Information will not include information that:
(a) is now, or hereafter becomes, through no act or failure to act on the
part of the receiving party, generally known or available to the
public;
(b) was acquired by the receiving party before receiving such information
from the disclosing party and without restriction as to use or
disclosure;
(c) is hereafter rightfully furnished to the receiving party by a third
party, without restriction as to use or disclosure;
(d) is information which the receiving party can prove was independently
developed by the receiving party;
(e) is required to be disclosed pursuant to law, provided the receiving
party provides the other party, to the extent legally permissible,
with prompt written notice of such requirement so that the other party
may seek an appropriate protective order with respect thereto; or
(f) is disclosed with the prior written consent of the disclosing party.
11.4 Upon the expiration or earlier termination of this Agreement, the affected
party shall immediately return all Confidential Information furnished
hereunder and further agree to either destroy and certify the destruction
of, or return to the other party within thirty (30) days following the
expiration or termination date, all complete or partial copies of
Confidential Information in the receiving party's possession or control,
including any copies such party may have photocopied or otherwise
duplicated on its own.
11.5 Notwithstanding any other provision in this Agreement, persons authorized
to access Confidential Information may develop their general knowledge,
skills and experience in respect of and concerning the other party's
business and this, in itself, shall not constitute a breach of this clause
11.
11.6 This clause shall survive the expiration or termination of this Agreement
for a period of three (3) years.
12. TERM OF AGREEMENT
This Agreement shall be effective from the Execution Date until the
expiration of System warranties given under this Agreement, or sooner if
validly terminated pursuant to other provisions in this Agreement.
13. DISPUTE RESOLUTION
13.1 A party shall not move to commence arbitration or court proceedings
(except proceedings seeking interlocutory or injunctive relief) in respect
of a Dispute unless it has first complied with this clause 13.
16
{PAGE}
13.2 The party claiming that a Dispute has arisen shall notify the other party
with a brief description of the size and nature of the Dispute.
13.3 Within seven (7) days after a notice is given under clause 13.2 the
parties shall each nominate representative authorized to settle the Dispute
on their behalf, and promptly notify the other party accordingly.
13.4 The parties shall ensure that, during the twenty (20) day period after
notice is given under clause 13.2, their respective representatives use
their best efforts with the other nominated representative:
(a) to resolve the Dispute; or
(b) to agree on:
(i) a process to resolve all or at least part of the Dispute
without arbitration or court proceedings (including
mediation, conciliation, executive appraisal or independent
expert determinations);
(ii) the selection and payment of any third party to be engaged
by the parties and the involvement of any dispute resolution
organization;
(iii) any procedural rules;
(iv) the timetable, including any exchange of relevant
information and documents; and
(v) the place where the meetings shall be held.
13.5 The role of any third party shall be to assist in negotiating a resolution
of the Dispute. A third party may not make a decision that is binding on
the parties unless the parties' respective representatives have so agreed
in writing.
13.6 Any information or documents disclosed by a representative under this
clause shall be kept confidential and may not be used by the parties or any
third party except to attempt to settle the Dispute.
13.7 Each party shall bear its own administration costs of resolving the same
under this clause and unless the parties otherwise agree in accordance with
clause 13.4, they must bear equally the costs of any agreed third party
that has been engaged.
13.8 After the twenty (20) day period referred to in clause 13.4, a party that
has complied with clauses 13.2-13.4 may terminate the dispute resolution
process and proceed to arbitration proceedings by giving notice to the
other party.
13.9 Unless the parties otherwise agree in writing, all disputes arising out of
or in connection with this Agreement will be referred to and resolved by
final and binding arbitration in London in the English language in
accordance with the Rules of the ICC, Paris. The party initiating
arbitration proceedings will pay for the related expenses of the other
party, excluding incidental business losses due to the arbitration
proceedings, to the extent that such other party obtains a favorable final
ruling. Any arbitration will be
17
{PAGE}
conducted by three arbitrators, two of which shall be appointed by
the parties, respectively, and the third of which shall be jointly
appointed by the other two arbitrators, and failing agreement to be
nominated by the ICC. The arbitrators shall be experienced in
conducting arbitration in the engineering sector. The parties agree
that, except as required by applicable law or regulation, they will
keep confidential the existence and outcome of any arbitration
proceeding, as well as the contents thereof, and will require the
arbitrators to adhere to the same obligation of confidentiality. Such
obligations of confidentiality shall survive the termination or
expiration of this Agreement.
13.10 Prior to the settlement of any Dispute in accordance with this
clause, the parties shall abide by their obligations under this
Agreement without prejudice to a final adjustment in accordance with
an award rendered in an arbitration or conciliation settling the
Dispute.
14. ENTIRE UNDERSTANDING
This Agreement:
(a) contains the entire agreement and understanding between the
parties on everything connected with the subject matter of this
Agreement; and
(b) except where provided to the contrary in this Agreement,
supersedes any prior agreement or understanding, whether written
or oral, express or implied, on anything connected with the
subject matter of this Agreement.
15. FURTHER ASSURANCE
Each party agrees that it shall at its own cost do all things
(including executing all documents) necessary to give full effect to
this Agreement, although not specifically provided for.
16. GOVERNING LAW AND JURISDICTION
Unless otherwise agreed between the relevant parties in writing, this
Agreement shall be governed by the laws of Hong Kong.
17. INCONSISTENCY
18
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To the extent there is any inconsistency between a provision of this
document, another provision in any Annex of this document and any other
document referred to in this Agreement:
(a) a specific provision takes precedence over a general provision; and
(b) the following order of precedence shall apply:
(i) this document;
(ii) Annexes.
18. TIME OF THE ESSENCE, INCENTIVES AND LIQUIDATED DAMAGES
18.1 Time is of the essence of this Agreement.
18.2 If the parties agree to vary a time requirement, the time requirement so
varied is of the essence of this Agreement.
18.3 An agreement to vary a time requirement contained in this Agreement shall
be in writing.
18.4 In the event that a System achieves Provisional Acceptance prior to the
scheduled Operational Date (as defined and specified in Annex III),
Customer shall make an incentive payment of up to one half of one percent
(0.5%) of the contract price of the System per week that qualifies for such
payment (as provided for in Annex II) to the Supplier or, in the event of
early achievement of Provisional Acceptance the number of days of which is
not divisible by seven (7), the product of (i) one half of one percent
(0.5%) and (ii) the number of days of the delay divided by seven (7).
18.5 In the event of any delay in the Operational Dates, the Supplier shall pay
liquidated damages to the Customer, which shall be one half of one percent
(0.5%) of the total contracted prices (as specified in Annex II) of the
relevant Systems delayed per week or, in the event of a delay the number of
days of which is not divisible by seven (7), the product of (i) one half of
one percent (0.5%) and (ii) the number of days of the delay divided by
seven (7). The liquidated damages provided for herein shall be in lieu of
any other rights or remedies that the Customer may have for damages against
the Supplier in connection with any delay. Liquidated damages shall not
exceed five percent (5%) of the total contracted prices of the relevant
Systems. The Supplier hereby acknowledges and agrees that the liquidated
damages the Supplier may be required to pay pursuant to this clause are a
fair and reasonable pre-estimate of damages that the Customer would suffer
in the event of delay of the Operational Dates, and permanently waives any
rights it may have to argue, claim and/or plead that the liquidated damages
that are payable under this clause constitute a penalty or are otherwise
unenforceable for any reason whatsoever.
19. NOTICES
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{PAGE}
Notices required to be given by one party to another (including invoices)
shall be in the English language unless expressly agreed otherwise, must be
reduced to writing and personally delivered or transmitted by registered or
certified post or electronic mail to the corresponding addresses specified
below, and shall be effective upon receipt.
(a) The Supplier shall send notices to the Customer at the address first
above written, or as may be advised by Customer in writing from time
to time.
(b) The Supplier shall send notices to the Hong Kong Assignee as follows:
Weelek Company Limited
45th Floor, Sun Hung Kai Centre
30 Harbour Road, Wan Chai
Hong Kong
Attn: Mr. Simon Kwok
(c) Customer shall send notices to the Supplier as follows:
Piller GmbH
Abgunst 24
37520 Osterode
Germany
A party may change the addresses for giving notice from time to time by
written instructions to the other of such change of address.
20. PUBLIC ANNOUNCEMENTS
Unless required by law, an announcement, circular or other public
disclosure of the contents of this Agreement must not be made or permitted
by a party without the prior written approval of the other party.
21. SEVERABILITY
If any term of this Agreement, or the application of such term to any
person or circumstance, shall be held invalid, the remainder of this
Agreement, or the application of such term to person or circumstances other
than those to which it is held invalid, shall not be affected thereby.
22. TERMINATION
22.1 The Customer may terminate this Agreement at any time by written notice to
the Supplier if any of the following occurs:
(a) the Supplier fails to carry out any obligation under this Agreement,
the failure or breach is capable of remedy and the Supplier does not
remedy that failure or breach within fourteen (14) days after written
notice to the Supplier requiring it to be remedied, including without
limitation the Supplier's failure to achieve the full functionality of
the Hong Kong Systems within ten (10) weeks of the relevant
Operational Date;
20
{PAGE}
(b) the Supplier convenes a meeting of its creditors or proposes or enters
into a scheme of arrangement (except for the purpose of reconstruction
or amalgamation) or a composition with any of its creditors;
(c) an application or order is made to or by a court or a resolution is
passed for the winding up of the Supplier or notice of intention to
propose such a resolution is given and such application or notice is
not dismissed or rescinded within sixty (60) days thereafter;
(d) a receiver, or receiver and manager, or other similar controller or
administrator is appointed in respect of the Supplier or the whole or
any part of its undertaking, property or assets or any steps are taken
for the appointment of such person;
(e) an entity holding a security interest in the assets of the Supplier
enters into possession of or takes control of any of those assets or
takes any steps to enter into possession of or take control of any of
those assets;
(f) one or more of the representations made by the Supplier in subclauses
4.19, 4.20, 4.23, 4.24, 4.25 and 4.26 of this Agreement is materially
incorrect and any such representation is not made correct within
fourteen (14) days after written notice to the Supplier requiring it
to be made correct;
(g) a breach of any collateral agreements has occurred which gives rise to
a right of termination of this Agreement thereunder; or
(h) if it becomes unlawful for the Supplier to perform its obligations
under this Agreement.
22.2 The Supplier may terminate this Agreement at any time by written notice to
the Customer if any of the following occurs:
(a) The Customer does not pay the Supplier the amounts due at stage
payments according to the Payment Schedule within twenty-one (21) days
after receipt of written notice.
(b) the Customer fails to carry out any obligation under this Agreement,
the failure or breach is capable of remedy and the Customer does not
remedy that failure or breach within fourteen (14) days after written
notice to the Customer requiring it to be remedied;
(c) the Customer convenes a meeting of its creditors or proposes or enters
into a scheme of arrangement (except for the purpose of reconstruction
or amalgamation) or a composition with any of its creditors;
(d) an application or order is made to or by a court or a resolution is
passed for the winding up of Customer or notice of intention to
propose such a resolution is given and such application or notice is
not dismissed or rescinded within sixty (60) days thereafter;
21
{PAGE}
(e) a receiver, or receiver and manager, or other similar controller or
administrator is appointed in respect of the Customer or the whole or
any part of its undertaking, property or assets or any steps are taken
for the appointment of such person;
(f) an entity holding a security interest in the assets of the Customer
enters into possession of or takes control of any of those assets or
takes any steps to enter into possession of or take control of any of
those assets;
(g) one or more of the representations made by the Customer in subclauses
3.6, 3.7 or 3.8 of this Agreement is materially incorrect and such
representation is not made correct within fourteen (14) days after
written notice to the Customer requiring it to be made correct;
(h) a breach of any collateral agreements has occurred which gives rise to
a right of termination of this Agreement thereunder; or
(i) if it becomes unlawful for the Customer to perform its obligations
under this Agreement.
22.3 Upon termination of this Agreement under clause 22.1, the Supplier shall
return forthwith to the Customer such part of the price or other
considerations paid by the Customer to the Supplier pursuant to clause 7
without prejudice against any rights the Customer may have against the
Supplier.
22.4 Termination of this Agreement under clauses 22.1 or 22.2 does not affect
any claim either party may have against the other under this Agreement at
the date of the termination.
22.5 The parties may by mutual written agreement terminate this Agreement.
22.6 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.
22.7 In the event that any part of this Agreement is assigned to an assignee,
the right of termination of a party under this clause shall only apply to
the extent defined in this Agreement and to such party that is affected by
the events specified in this clause. This Agreement shall remain in full
force and effect between the other relevant parties hereto to the extent
that a right of termination under this clause does not arise in relation to
such other relevant parties.
23. VARIATION
23.1 No amendment or Variation shall be effective unless it is in writing and
signed by the parties.
23.2 In the event a Variation is reasonably requested by the Customer and the
parties are unable to agree to all relevant modifications to this Agreement
within thirty (30) days
22
{PAGE}
of the date that the Customer submits a request for Variation, the parties
shall negotiate in good faith the necessary modifications to this
Agreement. The Supplier shall use its best efforts to minimize any adverse
effects a Variation may have upon the Supplier's obligations under this
Agreement. Any additional expenditure the Supplier may incur pursuant to a
Variation shall be reasonable and equitable, taking into account all
relevant facts, matters and circumstances, and shall be paid for by the
Customer within the times specified in Annex II, or within thirty (30) days
after Final Acceptance of the Variation, whichever is later. Where a
Variation shall result in a cost saving, that saving shall be fully passed
on to the Customer, by way of a corresponding reduction of the Customer's
payment obligations under this Agreement. If such Variation causes a delay
in time, such delay shall be taken into consideration by the Customer, but
only to the extent that such Variation is performed in a timely manner.
24. WAIVER
24.1 A party's failure or delay to exercise a power or right does not operate
as a waiver of that power or right.
24.2 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.
24.3 A waiver is not effective unless it is in writing.
24.4 Waiver of a power or right is effective only in respect of the specific
instance to which it relates and for the specific purpose for which it is
given.
25. OTHER PROVISIONS
25.1 This Agreement has been created jointly by the parties, and no rule of
construction requiring interpretation against the drafter of this Agreement
shall apply in its interpretation.
25.2 If anything in this Agreement is unenforceable, illegal or void then it
shall be severed from this Agreement and the rest of this Agreement shall
remain in full force and effect.
25.3 This Agreement shall be signed in two original copies. One shall be
provided to each party.
23
{PAGE}
EXECUTED as an agreement on the date set out at the commencement of the
Agreement.
SIGNED by )
)
on behalf of )
)
IASIAWORKS (HK) LIMITED )
SIGNED by )
)
on behalf of )
)
PILLER GmbH Germany )
24
{PAGE}
Annex I
-------
SPECIFICATIONS
1. A PILLER UNIBLOCK T Diesel System, either Type A or Type B below. Three (3)
sets of Type A are destined for Hong Kong, two (2) sets of Type B are
destined for Taiwan, two (2) sets of Type B are destined for South Korea,
and two (2) sets of Type B are destined for Melbourne, Australia.
(a) HONG KONG SYSTEMS
-----------------
Type A Diesel System - PILLER UNIBLOCK T Diesel System - 3 Units
Model No.: PILLER Dynamic UPS Standard model 1600 LV, 380V, 50 Hz
(isolated redundancy configuration)
UPS Type: UNIBLOCK 1600TD including POWERBRIDGE
Capacity: 16.5 MWs
Autonomy: 12 seconds
Clutch SSS46 for Diesel UPS 1600 kVA
Diesel Engine Type: Caterpillar 3512 B HD DI-TA, 1500 rpm (50Hz)
(suitable for the supply of 1600 kVA UBTD)
Other remarks: - Mounted on a rigid base frame on vibration dampers
together with the Uniblock-Machine SSS overhaul clutch
and SAE flange
- Electrical or mechanical driver radiators in front of
the diesel engine
- Electrical starting device including battery charger
- Diesel control cubicle
(b) SYSTEMS DESTINED FOR TAIWAN
---------------------------
Type B Diesel System - PILLER UNIBLOCK T Diesel System - 2 Units
Model No.: PILLER Dynamic UPS Standard model 1300 LV, 480V, 60 Hz<
342297
| |
 Squire Sanders
As referenced in this Turnkey System Agreement:
Squire, Sanders – SYSTEM AGREEMENT
{TEXT}
{PAGE}
Exhibit 10.23
DATED JULY 6, 2000
IASIAWORKS (HK) LIMITED
AND
PILLER GmbH GERMANY
_____________________________________________
TURNKEY SYSTEM AGREEMENT
_____________________________________________
Squire, Sanders & Dempsey
Rooms 1101-4, St. George's Building
2 Ice House Street
Central, Hong Kong
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Preview
Full Doc
| 2001 |
Underwriting Agreement
Underwriting Agreement (85K)
Doc #342285: Click preview link for longer preview.
iAsiaWorks, Inc.
Common Stock (par value $0.001 per share)
------------
Underwriting Agreement
----------------------
August 2, 2000
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc.
As the several Underwriters,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
iAsiaWorks, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
9,000,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 1,350,000 additional shares (the "Optional Shares") of its Common Stock,
par value $0.001 per share ("Stock"). The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares".
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-35278) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is hereinafter called
a "Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a)
{PAGE}
hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at
the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration
Statement"; such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto, and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the Prospectus
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(e) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
342285
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iAsiaWorks
As referenced in this Underwriting Agreement:
iAsiaWorks, Inc – {DOCUMENT}
{TYPE}EX-10.28
{SEQUENCE}5
{FILENAME}0005.txt
{DESCRIPTION}UNDERWRITING AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 10.28
iAsiaWorks, Inc .
Common Stock (par value $0.001 per share)
------------
Underwriting Agreement
----------------------
August 2, 2000
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Salomon Smith
_____________
iAsiaWorks, Inc – Smith Barney Inc.
As the several Underwriters,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
iAsiaWorks, Inc ., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named
_____________
iAsiaWorks, Inc – disability by reason of the failure to be so qualified in any such jurisdiction;
(h) Immediately prior to the merger (the "Merger") of iAsiaWorks, Inc .
(formerly named AUNET Corporation), a California corporation (the "California
Company"), with and into the Company on August 1, 2000, the California Company
_____________
iAsiaWorks, Inc – the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
iAsiaWorks, Inc .
By: /s/ Jonathan F. Beizer
------------------------
Name: Jonathan F. Beizer
Title: Chief Financial Officer, President-US
Accepted as of the date hereof:
Goldman,
_____________
dt 692727
;
 Goldman, Sachs
As referenced in this Underwriting Agreement:
Goldman, Sachs & Co. – DESCRIPTION}UNDERWRITING AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 10.28
iAsiaWorks, Inc.
Common Stock (par value $0.001 per share)
------------
Underwriting Agreement
----------------------
August 2, 2000
Goldman, Sachs & Co. ,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc.
As the several Underwriters,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York,
_____________
Goldman, Sachs & Co. – share)
------------
Underwriting Agreement
----------------------
August 2, 2000
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc.
As the several Underwriters,
c/o Goldman, Sachs & Co. ,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
iAsiaWorks, Inc., a Delaware corporation (the "Company"), proposes,
subject to the
_____________
Goldman, Sachs & Co. – any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement
_____________
Goldman, Sachs & Co. – any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited
_____________
Goldman, Sachs & Co. – The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the
_____________
dt 697796
;
Morgan Stanley
As referenced in this Underwriting Agreement:
Morgan Stanley & Co. – TEXT}
{PAGE}
EXHIBIT 10.28
iAsiaWorks, Inc.
Common Stock (par value $0.001 per share)
------------
Underwriting Agreement
----------------------
August 2, 2000
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc.
As the several Underwriters,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
_____________
Morgan Stanley & Co. – s/ Jonathan F. Beizer
------------------------
Name: Jonathan F. Beizer
Title: Chief Financial Officer, President-US
Accepted as of the date hereof:
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
By: Goldman, Sachs & Co.
----------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
{PAGE}
{TABLE}
{CAPTION}
_____________
Morgan Stanley & Co. – of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ------------------------
{S} {C} {C}
Goldman, Sachs & Co....................................... 4,050,000 607,500
Morgan Stanley & Co. Incorporated......................... 2,700,000 405,000
Salomon Smith Barney Inc.................................. 2,250,000 337,500
------------ -------------
Total.......................................... 9,000,000 1,350,000
============ =============
{/
_____________
dt 706740
;
|
Salomon
As referenced in this Underwriting Agreement:
Salomon Smith Barney Inc – 28
iAsiaWorks, Inc.
Common Stock (par value $0.001 per share)
------------
Underwriting Agreement
----------------------
August 2, 2000
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc .
As the several Underwriters,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
iAsiaWorks, Inc.,
_____________
Salomon Smith Barney Inc – Name: Jonathan F. Beizer
Title: Chief Financial Officer, President-US
Accepted as of the date hereof:
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc .
By: Goldman, Sachs & Co.
----------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
{PAGE}
{TABLE}
{CAPTION}
SCHEDULE I
Number of Optional
_____________
Salomon Smith Barney Inc – be Purchased Exercised
----------- --------------- ------------------------
{S} {C} {C}
Goldman, Sachs & Co....................................... 4,050,000 607,500
Morgan Stanley & Co. Incorporated......................... 2,700,000 405,000
Salomon Smith Barney Inc .................................. 2,250,000 337,500
------------ -------------
Total.......................................... 9,000,000 1,350,000
============ =============
{/TABLE}
{PAGE}
SCHEDULE II
SUBSIDIARY JURISDICTION
iAsiaWorks (H.K.) Limited
_____________
dt 702462
;
Smith Barney
As referenced in this Underwriting Agreement:
Smith Barney Inc – iAsiaWorks, Inc.
Common Stock (par value $0.001 per share)
------------
Underwriting Agreement
----------------------
August 2, 2000
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc .
As the several Underwriters,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
iAsiaWorks, Inc.,
_____________
Smith Barney Inc – Jonathan F. Beizer
Title: Chief Financial Officer, President-US
Accepted as of the date hereof:
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc .
By: Goldman, Sachs & Co.
----------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
{PAGE}
{TABLE}
{CAPTION}
SCHEDULE I
Number of Optional
_____________
Smith Barney Inc – Purchased Exercised
----------- --------------- ------------------------
{S} {C} {C}
Goldman, Sachs & Co....................................... 4,050,000 607,500
Morgan Stanley & Co. Incorporated......................... 2,700,000 405,000
Salomon Smith Barney Inc .................................. 2,250,000 337,500
------------ -------------
Total.......................................... 9,000,000 1,350,000
============ =============
{/TABLE}
{PAGE}
SCHEDULE II
SUBSIDIARY JURISDICTION
iAsiaWorks (H.K.) Limited
_____________
dt 705308
;
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