EXHIBIT 10.15
TELECOMMUNICATIONS FACILITIES LEASING AGREEMENT
BY AND BETWEEN
CHINA NETCOM (GROUP) COMPANY LIMITED
AND
CHINA NETWORK COMMUNICATIONS GROUP CORPORATION
TELECOMMUNICATION FACILITIES LEASING AGREEMENT
THIS AGREEMENT is made and entered into on [-], 2004 in Beijing, People's
Republic of China ( "PRC") by and between the following parties:
Party A: China Netcom (Group) Company Limited
Address: Xxxxxxxx X, Xx.000, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx, PRC
Legal representative: Zhang Xxxx Xxxxx
Party B: China Network Communications Group Corporation
Address: Xx.000, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx, PRC
Legal representative: Zhang Xxxx Xxxxx
Whereas:
(1) Party A is a state-owned enterprise established under the laws of
PRC;
(2) Party B is a company duly incorporated and validly existing under
the laws of PRC with limited liability as a wholly foreign-owned
enterprise which shall be ultimately held by Party A.
Party A and Party B hereby agree to the terms and conditions regarding the
leasing of the telecommunications facilities as follows:
1. LEASING OF TELECOMMUNICATIONS FACILITIES
1.1 It is mutually agreed between both parties that Party B (including all of
Party B's affiliates, subsidiaries, and other entities under its control,
infra.) agrees to lease from Party A (including all of Party A's
affiliates, subsidiaries, and other entities under its control, infra.)
international telecommunication channel gateways (includes: International
Backhaul landing stations, International Ground-Cable entry stations,
landing or domestic extension terminals, and Earth-Station in the
International satellites network), international telecommunications
service gateways (includes: International Network Bureau for
Telecommunications, International Telecommunications Network Relay
Stations, International Network Bureau for ATM/FR, DDN, and IP),
international Submarine Cable capacities, international land cable
resources, and international satellite resources
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("International Telecommunication Resources") in addition to the
inter-provincial optic fibers ("Provincial Optic-Fibers") resources and
facilities (collectively referred to as "Telecommunication Resources and
Facilities") owned by Party A and located in Beijing, Tianjin, Shangdong,
Liaoning, Hebei, Henan, Guangdong, and Shanghai.
2. FUNDAMENTAL PRINCIPLES
2.1 Party A leases to Party B the Telecommunication Resources and Facilities
according to this Agreement as a paid transaction between two enterprises
engaging in economic activities. Party A is entitled to demand reasonable
charges for the lease of such resources and facilities according to fair
and reasonable principles; Party B shall perform its duty in making
payments respectively.
2.2 Party A shall offer the leasing of communication resources and facilities
to Party B at terms not less favorable to the terms offered to any third
parties for the leasing of the same or similar resources and/or
facilities.
2.3 Should Party B demand Party A to provide additional resources and/or
facilities as detailed in this Agreement, Party A shall use its best
endeavor to fulfill the needs of Party B in providing the demanded
facilities. The terms offered to Party B in providing such additional
resources and/or facilities shall not be less favorable to terms offered
to any third parties for the leasing of the same or similar resources
and/or facilities.
2.4 Not owing to the fault of Party A, should Party A fails to provide part or
all of the resources and/or facilities as detailed in the Agreement, Party
A shall inform Party B promptly in writing. Party A shall use its best
endeavor to assist Party B in obtaining the same or similar resources
and/or facilities by other means.
2.5 The resources and/or facilities to be provided as detailed in this
Agreement shall be made in accordance with the agreement of both parties
with respect to the usage of resources and/or facilities and also to the
compliance of the relevant regulations of the State.
2.6 With regards to related transactions Party A promises to provide the
accounting records of Party A and other related parties to the auditors of
Party B.
2.7 Should either party breach this Agreement and cause the other party to
incur loss, the party in breach shall undertake to compensate to the other
party promptly and entirely for the breach of contract (including but not
limited to the direct or indirect loss incurred by the other party due to
the breach of contract). If the loss to the other party is caused by Force
Majeure then the defaulting party shall not incur responsibility.
2.8 When either party to this Agreement performs its duty according to this
Agreement, the other party
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shall give necessary and reasonable assistance to the performing party.
2.9 The Parties hereby confirm that both parties have duties to take necessary
actions and measures to ensure that the current aims and specified matters
in this Agreement are fulfilled. Both parties also confirm to ensure that
with regards to the subsidiaries of the listed or pending-listing China
Netcom Group Corporation (Hong Kong) Limited ("Listed Company") the
listing regulations regarding the rules regulating the connected
transactions are complied with.
3. ELEMENTARY CONTENT OF THE LEASING OF TELECOMMUNICATION RESOURCES AND
FACILITIES
3.1 Please refer to Appendix 1 for the scope, type, and quantity of Party B's
lease of international telecommunication resources owned by Party A.
3.2 Please refer to Appendix 2 for the scope, type, and quantity of Party B's
lease of inter-provincial optic fibers owned by Party A.
3.3 Depending on the actual situation, both Parties can adjust on an annual
basis the scope, type, and quantity for the leased international
telecommunication resources and inter-provincial optic fiber as detailed
in the Appendices.
4. PARTY B'S DUTIES
4.1 Party B is responsible for its own repairing and incurring the cost of
repair according to the regulations and standards for the leased
international telecommunication and inter-provincial optics fibers.
4.2 Party B shall use the leased international telecommunication and
inter-provincial optics fibers in a reasonable way. Within the duration of
this Agreement during the normal leasing of network elements Party B has
the right to lease out inter-provincial optics fibers and
telecommunication facilities to third parties. The leasing fees concerned
shall be set according to the relevant state regulations in accordance
with the principles of fairness and reasonableness.
4.3 Should Party B need to terminate the international telecommunication
resources and inter-provincial optics fibers due to reasons connected to
repair, Party B shall inform Party A in advance within a reasonable time.
5. QUALITY ASSURANCE
5.1 Party A shall ensure that the quality of the leased Telecommunication
Resources and Facilities comply with the standards and regulations of the
State.
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5.2 Party B shall ensure that the equipments for connections to the
Telecommunication Resources and Facilities comply with the quality
standard and technological requirements stipulated by the State Regulatory
Department.
6. COSTS AND PAYMENTS
6.1 The lease charges for Party B's leasing of Telecommunication Resources and
Facilities shall be equivalent to the annual depreciation cost of such
Telecommunication Resources and Facilities. Such cost shall not be higher
than the market price.
6.2 Within 3 months after the end of the year both parties shall examine (if
necessary) the costs incurred for that year for Telecommunication
Resources and Facilities provided according to this Agreement. The
discrepancies (if any) shall be adjusted in next year's examination.
6.3 Party B shall pay Party A lease charges on a seasonal basis. Party B shall
pay lease charges to Party A before 10th of the last month of each season.
Party B shall provide Party A with a detailed list of the lease charges.
Party A shall deliver the xxxx to Party B. Should there be objections from
either party, adjustments shall be made in the following season after
confirmation from both parties.
6.4 Party B shall pay lease charges according to the above Clause 6.1 & 6.2.
Should Party B delays in payment it shall pay a late payment charge to
Party A at a rate of 0.05% of the amount due for each day of delay.
7. TERM
This Agreement shall come into effect once signed by the legal
representatives or authorized representatives of both Parties and affixed
with their official seals. This Agreement shall be effective till June 30,
2007. If Party A wishes to renew this Agreement and notifies Party B with
3 month's notice, this Agreement shall be renewed automatically for
another 3 years on the same terms. There are no limits on the number of
renewal.
8 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
Each party represents, warrants and undertakes to the other party that:
(1) It is an independent legal person existing in accordance with the
laws of PRC, and have the power and authority (including but not
limited to any approval, consents or permission granted by the
government departments to enter into and perform this Agreement);
(2) No provision in this Agreement violates the constitutive documents
or the laws and
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regulations of China;
(3) It will use its best endeavors to take all necessary and procure
appropriate or advantageous measures to perform this Agreement and
to make this Agreement effective in accordance with the law and
regulations of China and this Agreement.
9. FORCE MAJEURE
9.1 In the event of Force Majeure that causes both Parties or either Party to
fail completely or partially in performing the obligations under this
Agreement, that said Party is not liable for breach of agreement. However,
in the event of such an incident, the affected party shall inform the
other party by written notice within 15 days after the said incident and
provide relevant proof and evidence to the other Party. At the same time,
the affected party shall use its best endeavors to minimize the damage
caused by the Force Majeure event. The affected Party or both Parties
shall resume its obligations under this Agreement once the Force Majeure
event has ended within a reasonable time
9.2 The events constituting a Force Majeure relates to events which cannot be
reasonably foreseen, avoided, and overcame on an objective basis.
10. CONFIDENTIALITY
Unless with written approval by the other party, neither party can
announce nor supply or reveal to any third party any information regarding
this Agreement or the business information of the other party, with the
exception of requests by the legal or governmental departments or any
other relevant securities regulatory authorities or for the purpose of the
Listing Company seeking listing (and remain as one).
11. TRANSFER OF RIGHTS AND DUTIES
Without the written approval of the other party, neither party may
transfer any single right and obligation as agreed upon under this
Agreement.
12. NON-WAIVER
Unless otherwise specified by law, the failure or delay of exercising the
right, power or privilege as endowed by this Agreement on the part of any
Party cannot be deemed as the waiver of such rights, power or privileges.
Besides, the partial exercise of such rights, power or privileges shall
not hinder the exercise of such rights, power or privileges of this Party
in the future.
13. NOTICES
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13.1 All notices required to be delivered pursuant to this Agreement shall be
in writing and in Chinese, and delivered to the address as stated at the
beginning part of this Agreement, or to addresses or facsimile numbers
designated by one Party to the other Parties in writing from time to
time..
13.2 Any notice above shall be delivered either by hand, registered mail, or
facsimile. Any notice shall be deemed to have been delivered at the time
of actual receipt if delivered by hand; three days after the date of
return receipt if delivered by registered mail; and at the time of
transmission if delivered by facsimile.
14. DISPUTE RESOLUTION
In case of disputes as to the power, interpretation or implementation of this
Agreement, both parties shall seek to settle the matters of dispute by friendly
negotiation. If the matters of dispute cannot be settled by negotiation within
thirty (30) days from the day the matters of dispute arise, either party has the
right to resort to litigation at the people's court which has jurisdiction over
where Party A situates.
15 MISCELLANEOUS
15.1 Without written confirmation from both parties, no party can change or
amend this Agreement. Upon the agreement of both parties, both parties can
amend this Agreement or enter into supplementary agreement to this
Agreement. The amendments or supplementary agreements of this Agreement
shall come into effect once signed by the legal representatives or
authorized representatives of both Parties and affixed with their official
seals.
15.2 This Agreement is severable, that is, if any provision of this Agreement
is held to be void, illegal, void or unenforceable at any time, the
effectiveness and performance of other provisions of this Agreement shall
not be affected.
15.3 The appendix to this Agreement forms a part to this Agreement; both the
Agreement and the appendix to this Agreement have equal legal status.
15.4 This Agreement shall be governed and interpreted in accordance with the
laws of PRC.
15.5 This Agreement is made into four (4) duplicate originals. Each party holds
two (2) copies, and each copy shall have the same legal binding effect.
IN WITNESS WHEREOF, the legal representatives or authorized
representatives of the both Parties hereto have executed this Agreement as of
the date and venue first written above.
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Signature page:
CHINA NETWORK COMMUNICATIONS GROUP CORPORATION
By: __________________________________
Legal Representative or Authorized Representative
CHINA NETCOM (GROUP) COMPANY LIMITED
By: __________________________________
Legal Representative or Authorized Representative
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APPENDIX I:
List of telecommunication resources to be leased
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APPENDIX II:
List of inter-provincial optic fiber to be leased
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