Exhibit 10.1
[Translation from Original Document in Chinese]
Land Use Rights Transfer Contract
Party A: Zhangjiang Technology Park Development Co.
Party B: Semiconductor Manufacturing International (Shanghai) Corporation
____ 2002, Shanghai
Land Use Rights Transfer Contract
Chapter 1 General Provisions
Article 1 In accordance with the Law of the People's Republic of China on
the Administration of Urban Real Estate, the Provisional Regulations of the
People's Republic of China Concerning the Grant and Transfer of the Right to Use
State Land in Urban Areas, the Measures of Shanghai Municipality on the Transfer
of Real Estate and other regulations and by reference to the prevailing
practices of various development zones in the State and Shanghai Municipality,
Zhangjiang Technology Park Development Co. (hereinafter referred to as "Party
A") and Semiconductor Manufacturing International (Shanghai) Corporation
(hereinafter referred to as "Party B"), following friendly consultations, agree
to enter into the Land Use Rights Transfer Contract (hereinafter referred to as
the "Contract").
Article 2 Party A, the lawful owner of the land use rights of the lots
referred to in this Contract, agrees to transfer the land use rights of such
lots to Party B in accordance with the provisions of the relevant laws and
regulations of the People's Republic of China and the covenants in this
Contract. Party B agrees to accept transfer of the land use rights of such lots
in accordance with the provisions of the relevant laws and regulations of the
People's Republic of China and the covenants in this Contract and agrees to pay
the transfer price to Party A in accordance with the covenants in this Contract.
Chapter 2 Contract Documents
Article 3 The following documents are inseparable parts of this Contract.
1. The boundary location diagram for the lots
subject to transfer provided by Party A; (Appendix 1)
2. Copies of Shanghai Municipality Certificates
of Real Property Rights provided by Party A; (Appendix 2)
3. Location Map for the lots subject to transfer
provided by Party A. Chapter 3 Legal Position of
the Parties (Appendix 3)
Article 4 Party A is an economic entity, whose establishment was approved
by the State with Chinese legal person status, to be responsible for the land
development and operation of Zhangjiang High-Tech Park.
Article 5 Party B is an economic entity, whose establishment was approved
by the State, with Chinese legal person status, mainly engaging in production of
integrated circuit chips and other business.
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Chapter 4 Location and Area of the Lots and Nature of the Land
Article 6 Party A shall transfer to Party B the land use rights of the
industrial and residential lots within Zhangjiang High-Tech Park (hereinafter
referred to as the "Lots") as the land for the construction project. The area of
the forgoing industrial lot is 350,000 square meters approximately and the area
of the residential lot is 280,000 square meters approximately, totaling 630,000
square meters. Details of the shape, location and the four boundaries are set
forth in Appendices 1 and 3. The exact areas shall be based on the areas as
surveyed and measured on site by the land administration authorities.
Article 7 The nature of planning for the Lots is for industrial and
residential purposes.
Chapter 5 Term of the Land Use Rights
Article 8 The term of the land use right for the industrial lot referred to
in Article 6 of this Contract shall be 50 years, while the land use right of the
residential lot shall be 70 years, both calculated from the date of delivery of
possession of the land. At the expiry of the terms of the land use rights, Party
B can apply for renewal of the terms in accordance with the provisions of the
laws and regulations
Article 9 During the valid term when Party A has obtained the land use
rights, the lawful interests of Party B shall be protected by the laws of the
State. Under special circumstances, when the State requisitions the land use
rights as required for social or public interests in accordance with the
statutory procedures, Party B shall have the right to receive reasonable
compensation for its loss with respect to the use of the Lots in accordance with
the stipulations of the Government.
Chapter 6 Land Use Rights Transfer Fees and Payment Method
Article 10 The land use right transfer fee for the industrial lot referred
to in Article 6 of this Contract shall be RMB80/square meter, totaling
RMB28,000,000, while the land use right transfer fee for the residential lot
shall be XXX 000/xxxxxx meters, totaling 78,400,000, and the total amount of the
land use right transfer fees for the forgoing lots shall be RMB106,400,000 (or
US$12,865,800). Party B undertakes to pay the forgoing land use right transfer
fees into the account designated by Party A before February 22, 2002.
Article 11 The calculation of the total amount of the land use right
transfer fees referred to in Article 10 of this Contract shall be based on the
actual usable areas as surveyed and measured by the land administration
authorities and the product of the price per square meter referred to in Article
10 of this Contract, and any over-payment shall be returned and any shortfall
shall be made up.
Chapter 7 Delivery of Possession of the Land
Article 12 Party A warrants that no third party owns the mortgage right,
use right and the right to be paid in priority for the Lots. Party A warrants
that it has the right to execute this Contract and that the transfer of the
subject matter under this Contract satisfies the statutory
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transfer conditions. Party A shall provide Party B with the relevant
certificates with respect to the land use rights of the Lots as appendixes to
this Contract. Party A warrants that the payment method stipulated in Article 10
of this Contract will not have adverse effects on the Shanghai Municipality
Certificate of Real Property Rights in respect of the lots referred to in
Article 6 of this Contract jointly applied for by the Parties, as well as the
rights of Party A under this Contract.
Article 13 Party A shall, simultaneously with the completion of the
procedures for change of the land use rights for the lots to be transferred in
accordance with Article 12 of this Contract, complete the delivery of possession
of the lots referred to in Article 6 of this Contract. At the delivery of
possession of the land, the representatives of the Parties shall sign and seal
the Sheet of Delivery of Possession of the Land to evidence the completion of
the delivery of possession of the land.
Chapter 8 Other Rights and Obligations
Article 14 During the valid term in which Party B has procured the transfer
of the land use rights for the Lots, Party B shall have the right to the dispose
of the land use right together with the structures on the land in accordance
with the law, including the development and operation, pre-sale, transfer, lease
and mortgage of the structures, in each case in accordance with the provisions
of relevant laws, rules and regulations. In such event, Party B shall deliver
the relevant legal documents to Party A for filing. Any successor or assignee of
the land use rights resulting from the occurrence of such event shall assume the
rights and obligations of Party B hereunder. Any project in which the successor
or assignee invests must comply with the industry guidelines and the overall
planning for Zhangjiang High-Tech Park. Party A shall have the right to pursue a
claim against Party B for any breach of this Article by a successor or assignee
holding Party A liable.
Article 15 All structures and facilities constructed by Party B on the Lots
involving construction, fire prevention, environmental protection and greenery
shall be planned and designed by Party B in accordance with the Terms of the Use
of Land for SMIC Project in Zhangjiang High-Tech Park and shall be implemented
subject to the approval of relevant Government authorities.
Article 16 Party A shall be responsible for construction and maintenance in
relation to public health, public greenery and the roads outside the lots
referred to in Article 6 of this Contract. The obligations to be assumed by
Party B shall be separately agreed upon by the Parties.
Article 17 Construction by Party B on the Lots shall not cause damage to
the roads surrounding the Lots and the public utilities on or underneath the
Lots. In case construction by Party B causes damage to such facilities, Party B
shall be responsible for restoration, bear all cost and compensate for the loss
arising therefrom.
Party B shall not, without authorization, excavate or occupy any land
outside the site specified in Article 6 of this Contract. Temporary use of any
land outside the site specified in
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Article 6 of this Contract shall be subject to the consent of the competent
Government authorities or the relevant land user.
Article 18 Party B shall allow various kinds of pipes and lines
required to be laid for public utilities as approved by the Government to pass
through the Lots and shall facilitate construction by Party A, provided that
Party A shall consult with Party B upon the details of the proposal for
construction.
Chapter 9 Renewal and Termination of Contract
Article 19 If Party B continues to own the land use rights for the lots
specified in Article 6 of this Contract at the expiration of the term during
which such lots have been transferred to Party B, Party B may apply for the
renewal of such term. Application for renewal shall be made in accordance with
relevant regulations of the State.
Article 20 If, at the expiration of the term during which the land use
rights have been transferred, such term is not renewed, Party B shall return the
Lots in good state to the State and the structures on and attachments to the
Lots shall be disposed of in accordance with relevant regulations of the State,
and this Contract shall be terminated automatically.
Chapter 10 Liability for Breach of Contract
Article 21 Any of the following circumstances shall constitute a breach
of contract on the part of Party A:
(1) Failure to deliver the possession of the land at the time specified
herein.
(2) Any representation, warranty or undertaking given by it herein is
untrue or not complied with.
(3) Breach of any other provision hereof.
Article 22 Occurrence of any of the following events shall constitute a
breach of contract on the part of Party B:
(1) Failure to pay the use right transfer fees in accordance with
Articles 10 and 11.
(2) Use and disposal of the Lots are in contravention of relevant laws
and regulations governing the transfer of land use rights and the
relevant provisions hereof.
(3) Breach of any other provision hereof, or any representation,
warranty or undertaking given by it herein is untrue or not
complied with.
Article 23 The defaulting Party shall pay the other Party liquidated
damages, calculated on a daily basis as follows:
(1) The daily liquidated damages shall be 0.05% of the amount under
this Contract.
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(2) The number of days of breach shall equal the number of calendar
days in the period from the day on which the breach occurs to the
day on which the breach is rectified.
(3) The amount of liquidated damages shall equal the daily liquidated
damages x the number of days of breach.
Article 24 If, after a breach occurs, the non-defaulting Party requests
continuation of performance of this Contract, the defaulting Party shall
continue to perform this Contract, regardless of whether the liquidated damages
have actually been paid.
Article 25 If, after the completion of construction of the
infrastructure on the Lots specified in Article 6 of this Contract, the number
of days of breach during the commencement of construction by Party B exceeds two
years, the right of Party B to use the Lots shall be forfeited by the State.
Chapter 11 Other Provisions
Article 26 A Party who, as a result of an event of force majeure, is
unable to perform this Contract in accordance with the terms agreed upon herein
shall forthwith give notice thereof to the other Party and shall, within 15
days, provide details of such event, reasons for its inability to so perform
this Contract or its need to defer such performance and relevant documentary
evidence. The Parties may, on the basis of the extent to which the performance
hereof is affected by the event of force majeure, negotiate to decide whether
this Contract should be terminated or its performance should be waived in part
or deferred.
Article 27 The Parties may reach an agreement in writing through
consultation on matters not covered herein, which agreement in writing shall
form part of this Contract and have the same legal effect as this Contract.
Subject to the agreement reached by the Parties through consultation,
this Contract may be amended, provided that the Parties shall perform this
Contract in accordance with its existing terms before the amended document comes
into effect.
Article 28 This Contract shall become effective upon execution by the
legal representatives or authorized representatives of the Parties.
Article 29 Any dispute arising in the course of the performance of this
Contract shall be settled by the Parties through consultation. If such dispute
cannot be resolved through consultation, it may be referred to the Shanghai
Arbitration Commission whose rules shall be deemed to have been incorporated
herein.
Article 30 No Party may, without the prior written consent of the other
Party, disclose all or part of the terms hereof to any third party. Upon
discovery after investigation, the disclosing Party shall be liable for damages
accordingly.
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Article 31 The main body of this Contract is written in the Chinese
language and executed in six copies. Each Party shall hold two copies and the
remaining two copies shall be delivered to the relevant Government authorizes.
The appendices to this Contract set forth in Chapter 2 shall be in six
copies.
Article 32 The published and publicly obtainable PRC laws shall be
applicable to the formation, validity, interpretation and performance of this
Contract and the settlement of disputes hereunder. In case the forgoing laws do
not provides for a special issue relating to this Contract, customary
international commercial practices shall be used.
Article 33 Any notices issued by a Party to the another Party under this
Contract shall be in writing and delivered in the following manner:
(1) Notices are to be sent to the person to be notified by prepaid
registered post, with receipt of registered post
(2) Faxes are to be sent to the person to be notified
(3) Cable, telex or other forms in which written record of the contents of
the notice can be provided
With respect to a notice sent by registered post, the date of receipt
indicated on the receipt of registered post shall be the valid date. With
respect to the notice sent by facsimile, the receiving date indicated on the
record of the fax machine of the recipient shall be valid, except for notices
received after five o'clock in the afternoon at the local time on a working day
of the recipient as recorded on the fax machine. Under such circumstances, the
notice shall be deemed to have been received at nine o'clock in the morning at
the local time on the following working day of the recipient. With respect to
other notices issued in other forms, such notices shall become valid when they
are received by the recipient.
For this purpose, please use the following correspondence address:
Party A: Address: Xx. 000, Xxxx Xxxx Xxxxxx, Xxxxxx Xxx Xxxx, Xxxxxxxx
Postcode: 201203
Telephone: 00000000
Facsimile: 50800492
Contact: Dai Haibo
Party B: Address: Xx. 00, Xxxxxxxxxx Xxxx, Xxxxxx Xxx Xxxx, Xxxxxxxx
Postcode: 201203
Telephone: 00000000
Facsimile: 50803070
Contact: Zhang Rujing
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[No Text below]
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[This is signature page]
Party A: Party B:
Zhangjiang Technology Park Development Co. Semiconductor Manufacturing International
[Seal affixed] (Shanghai) Corporation [Seal affixed]
Representative: [Signature affixed] Representative: [Signature affixed]
Date of Execution: February 4, 2002
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Appendix 1
Boundary Location Diagram for Residential Lot, Lot No. 4
Semiconductor Manufacturing International (Shanghai) Corporation
[MAP DIAGRAM]
Appendix 1 - i
Appendix 1
Boundary Location Diagram for Residential Lot
Semiconductor Manufacturing International (Shanghai) Corporation
[MAP DIAGRAM]
Appendix 1 - ii
Appendix 1
[MAP DIAGRAM]
Appendix 1 - iii
Appendix 2
Shanghai Municipality
Certificate of Real Property Rights
Limited to Buildings for Domestic Sale
Hufengdipuzi (2001) No. 046827
2001034516
Date of Issue: May 8, 2001
Appendix 2 - i
In accordance with the Law of the People's Republic of China on Land
Management, the Law of the People's Republic of China on the Administration of
Urban Real Estate, the Regulations of Shanghai Municipality on Real Estate
Registration and other relevant laws and regulations and for the purpose of
protecting the lawful interests of the land use right owners and building
owners, registration is permitted and this Certificate is issued after
investigation and verification with respect to the land, buildings and other
attachments of the rights owner under its application for registration.
This Certificate is evidence of the real property rights of the land whose
use right is granted or transferred.
Buildings and Land Resources
Administration Bureau of Shanghai
Municipality [Seal affixed]
Appendix 2 - ii
------------------------------------------------------------------------------------------------------------------
Rights Owner Zhangjiang Technology Park Development Co.
------------------------------------------------------------------------------------------------------------------
Identity No. 3100001004128
------------------------------------------------------------------------------------------------------------------
Location of Real Property Xxxxxxxxxxx Xxxx, Xxxxx XX, Xxxxxxxxxx Xx-Xxxx Xxxx
------------------------------------------------------------------------------------------------------------------
Condition of
Co-ownership
------------------------------------------------------------------------------------------------------------------
Nature of Ownership State-owned Purpose Residential
------------------------------------------------------------------------------------------------------------------
Land No. Residential Area, Phase II, Zhangjiang Hi-Tech Park,
Pudong New Area
------------------------------------------------------------------------------------------------------------------
Diagram No.
------------------------------------------------------------------------------------------------------------------
Class of Land
------------------------------------------------------------------------------------------------------------------
Condition of Land
Term of Use From February 3, 2002 to February 2, 2076
------------------------------------------------------------------------------------------------------------------
Total Area 400,000
------------------------------------------------------------------------------------------------------------------
Area for 400,000
Use Area Sole Use
------------------------------------------------------------------------------------------------------------------
Area for Allocated Area
Common Use
------------------------------------------------------------------------------------------------------------------
Appendix 2 - iii
--------------------------------------------------------------------------------
Nature of Ownership Blanks in the following rows
--------------------------------------------------------------------------------
Construction Area
--------------------------------------------------------------------------------
Number of Blocks
--------------------------------------------------------------------------------
Block No.
--------------------------------------------------------------------------------
Condition
of Building Room No. or Location
--------------------------------------------------------------------------------
Type
--------------------------------------------------------------------------------
Structure
--------------------------------------------------------------------------------
Number of Stories
--------------------------------------------------------------------------------
Date of Completion
--------------------------------------------------------------------------------
Area unit: square meter
Appendix 2 - iv
--------------------------------------------------------------------------------
Summary of Other Rights of the Real Property
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Completed by: Pudong New Area Real Property Registration Office, Shanghai
Municipality [Seal affixed]
Registration No.: 2001034516
--------------------------------------------------------------------------------
Appendix 2 - v
Diagram Showing the Area of the Granted Land for the Xxxxxxxxxxx Xxxx, Xxxxx XX,
Xxxxxxxxxx Xx-Xxxx Xxxx
[Map Diagram]
Appendix 2 - vi
Appendix 2
Shanghai Municipality
Certificate of Real Property Rights
Hufengdipuzi (1996) No. 000961
Date of Issue: September 24, 1996
Appendix 2 - vii
In accordance with the Law of the People's Republic of China on Land
Management, the Law of the People's Republic of China on the Administration of
Urban Real Estate, the Regulations of Shanghai Municipality on Real Estate
Registration and other relevant laws and regulations and for the purpose of
protecting the lawful interests of the land use right owners and building
owners, registration is permitted and this Certificate is issued after
investigation and verification with respect to the land, buildings and other
attachments of the rights owner under its application for registration.
This Certificate is evidence of the real property rights of the land
whose use right is granted or transferred.
Buildings and Land Administration Bureau
of Shanghai Municipality [Seal affixed]
Appendix 2 - viii
--------------------------------------------------------------------------------------------------------------------
Rights Owner Zhangjiang Technology Park Development Co.
--------------------------------------------------------------------------------------------------------------------
Identity No.
--------------------------------------------------------------------------------------------------------------------
Location of Real Property Zhangjiang Hi-Tech Park
--------------------------------------------------------------------------------------------------------------------
Condition of
Co-ownership
--------------------------------------------------------------------------------------------------------------------
Nature of Ownership State-owned Purpose Hi-Tech and
Residential
--------------------------------------------------------------------------------------------------------------------
Land No. Zhangjiang Hi-Tech Park (Lanes 1, 2, 3 and 5)
--------------------------------------------------------------------------------------------------------------------
Diagram No.
--------------------------------------------------------------------------------------------------------------------
Class of Land
--------------------------------------------------------------------------------------------------------------------
Condition of Land
Term of Use
--------------------------------------------------------------------------------------------------------------------
Total Area 750,000
--------------------------------------------------------------------------------------------------------------------
Area for
Use Area Sole Use
--------------------------------------------------------------------------------------------------------------------
Area for 420,000 Allocated Area 750,000
Common Use
--------------------------------------------------------------------------------------------------------------------
Appendix 2 - ix
--------------------------------------------------------------------------------
Nature of Ownership Blanks in the following rows
--------------------------------------------------------------------------------
Construction Area
--------------------------------------------------------------------------------
Number of Blocks
--------------------------------------------------------------------------------
Block No.
--------------------------------------------------------------------------------
Condition Room No. or Location
of Building
--------------------------------------------------------------------------------
Type
--------------------------------------------------------------------------------
Structure
--------------------------------------------------------------------------------
Number of Stories
--------------------------------------------------------------------------------
Date of Completion
--------------------------------------------------------------------------------
Area unit: square meter
Appendix 2 - x
--------------------------------------------------------------------------------
Summary of Other Rights of the Real Property
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Completed by: Pudong New Area Real Property Registration Office, Shanghai
Municipality [Seal affixed]
Registration No.: 000961
--------------------------------------------------------------------------------
Appendix 2 - xi
Appendix 3
[Map Diagram]
Appendix 3 - i
[Map Diagram]
Appendix 3 - ii
[Map Diagram]
Appendix 3 - iii
