EQUIPMENT LEASE AGREEMENT Between Yunji Communications Technology (China) Co. Ltd. And CECT Chinacomm Communications Co. Ltd.
EXHIBIT
10.10
Between
Yunji
Communications Technology (China) Co. Ltd.
And
CECT
Chinacomm Communications Co. Ltd.
TABLE
OF CONTENTS
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CLAUSE
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PAGE
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1.
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SCOPE
OF EQUIPMENTS
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2
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2.
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SELECTION
OF EQUIPMENTS
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2
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3.
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PAYMENT
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3
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4.
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RIGHTS
AND OBLIGATIONS REGARDING THE EQUIPMENTS
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3
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5.
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SERVICES
IN RELATION TO THE EQUIPMENTS
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5
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6.
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EXCLUSIVITY
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5
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7.
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LIMITATION
OF LIABILITY
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5
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8.
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REPRESENTATIONS
AND WARRANTIES
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6
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9.
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THE
LESSEE’S COVENANTS
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7
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10.
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TRANSFER
OF PROPERTY
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8
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11.
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SHARE
PLEDGE
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8
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12.
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TERM
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8
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13.
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TERMINATION
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8
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14.
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CONFIDENTIALITY
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9
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15.
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GOVERNING
LAW AND DISPUTE SETTLEMENT
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10
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16.
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MISCELLANEOUS
PROVISIONS
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10
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ANNEX
1 LIST OF EQUIPMENTS
ANNEX
2 AMOUNT AND PAYMENT OF RENTAL
ANNEX
3 SHARE PLEDGE AGREEMENT
2
This
Equipments Lease Agreement (this “Agreement”) is made on May 23,
2008 by and between:
Yunji
Communications Technology (China) Co. Ltd. Ltd.(____________), whose registered
office is at Xx. 00 Xxxxxx Xxx Xxxx, Xxxxxxxx and Technology Development Zone,
Beijing, PRC (the “the
Lessor”);
ON
THE ONE HAND
AND
CECT
Chinacomm Communications Co. Ltd. (__________), whose registered office is at
Xx.00# Xxxxxxxx, Xxxxx Xxxx Xx Xx, Xxxxxxx Xxxxxxxx, Xxxxxxx,XXX (the “the Lessee”);
ON
THE OTHER HAND
(hereinafter
collectively referred to as the “Parties” and individually as a
“Party”).
WHEREAS:
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(i)
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The
Lessor is in the business of telecom technology development, technical
services, consulting and training, and telecom equipments
leasing;
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(ii)
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The
Lessee is a telecom operator which holds licenses for the use of 3.5G Hz
spectrum to deploy, maintain and operate wireless broadband in 29 cities
throughout China;
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(iii)
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The
Lessor wishes to lease to the Lessee and the Lessee wishes to rent from
the Lessor certain Equipments (as defined in Clause 1 below) for the
deployment and operation of wireless broadband in 29 cities in China (the
“Project”);
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(iv)
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Adhering
to the principles of mutual benefit in accordance with Chinese laws and
regulations, the Parties have decided to enter into this
Agreement.
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IT IS AGREED AS
FOLLOWS:
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1.
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SCOPE
OF EQUIPMENTS
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For
the purpose of this Agreement, the term “Equipments” shall
include any and all materials, equipments and facilities to be leased by
the Lessor to the Lessee for the development and operation of the
Project.
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2.
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SELECTION
OF EQUIPMENTS
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Before
purchasing any equipment to be leased to the Lessee, the Lessor shall
obtain the Lessor’s confirmation on the type, vendor, specifications,
quantity, and price of the
Equipments.
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3
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3.
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PAYMENT
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3.1
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Rental
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In
consideration of the use of the Equipments, the Lessee shall pay rental to
the Lessor (“Rental”). Such
Rental shall be determined and paid in accordance with Annex
1.
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3.2
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Late
Payment Penalty
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In
case of late payment of the Rental and/or any other payment obligations
specified under this Agreement, the Lessee shall pay penalty to the Lessor
at the interest rate of 0.1% per day of the overdue
amount.
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3.3
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Method
of Payment
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Except
for otherwise agreed by the Parties in writing, the Lessee shall pay the
Rental and/or any other payment obligations to the Lessor by wire transfer
to the bank account designated by the Lessor.
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3.4
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Taxes
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Taxes,
duties, charges and fees of any nature whatsoever in connection with this
Agreement or any payment thereunder shall be paid and borne by the Parties
in accordance with PRC laws and regulations.
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4.
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RIGHTS
AND OBLIGATIONS REGARDING THE EQUIPMENTS
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4.1
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Delivery
of the Equipments
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The
Lessee shall take delivery of the Equipments from the Lessor’s premise or
other place designated by the Lessor, provided that the Lessee has carried
out an inspection of the Equipments and signed a written statement
certifying the acceptance of the Equipments.
|
|
| The Lessee shall carry out such inspection within thirty (30) business days upon receipt of a notice from the Lessor. In the event that the Lessee failed to perform such inspection within the given period, the Equipments shall be deemed to have been accepted by the Lessee. | |
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4.2
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Installation
of the Equipments
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The
Lessee shall be responsible for the assembly and installation of the
Equipments and connecting the Equipments with adequate power at its own
cost.
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4.3
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Use
of the Equipments
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The
Lessee has the right to use and operate the Equipments in accordance with
the terms and conditions of this Agreement. The Lessee shall take whatever
measures which are necessary with due diligence for the correct
functioning of the Equipments, and follows all the instructions and
procedures specified in the specifications and/or manuals of the
Equipments. Without written consent of the Lessor, the Lessee shall not
remove or dismantle any item of the Equipments from the place it was
installed.
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4.4
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Alteration
of the Equipments
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If
the Lessee or Chinacomm intends to make alterations, additions,
improvements, and/or renovations onto the Equipments, it should notify the
Lessor and obtain the Lessor’s approval (which should not be unreasonably
withheld).
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All
such alterations, additions, improvement, and/or renovations should be
conducted by the Lessor or contractor(s) appointed by the Lessor against
payment of the related costs and
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4
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service
fee by the Lessee to the Lessor, which should be made in accordance with
the exclusive services agreement between the Lessor and the Lessee (as
specified in Clause 4.2 below).
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4.5
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Maintenance
and Repair
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In
relation to the maintenance and repair of the Equipments, the Lessee
shall:
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||
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(i)
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maintain
the Equipments in a state adapted to the implementation of the Project and
the conservation of the Equipments in a good condition (excluding normal
wear and tear);
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(ii)
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be
responsible for the repair and maintenance of the Equipments at its own
cost; and
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(iii)
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report
to the Lessor any fault occurred to the Equipments within three (3) days
after the occurrence of such fault.
In
the event of failure of the Lessee to perform such maintenance and repair
obligations, the Lessor may perform such work itself, at the expenses of
the Lessee.
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4.6
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Risks
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The
Lessee shall take all necessary action to protect the Equipments from any
risk of damage, impair, loss, or destroy.
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| The Lessee shall bear the risks in relation to the damage, impair, loss, or destroy of the Equipments, which can not be attributed to the fault of either of the Parties. | ||
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4.7
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Insurance
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In
relation to the insurance of the Equipments, the Lessee
shall:
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(i)
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procure
and maintain sufficient and effective insurance against all risks
threatening the upkeep and conservation of the Equipments, including those
of force majeure and civil liability arising from the use thereof or the
use thereof vis-a-vis third parties;
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(ii)
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provide
a copy of the insurance policies (or any policies amending or replacing
such policies in the future) and on an annual basis the receipts
evidencing the payment of premiums under such insurance policies to the
Lessor.
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| The Lessor shall promptly provide all necessary assistance to the Lessee to procure insurance for the Equipments. | ||
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4.8
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Replacement
of the Equipments
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In
case any item of the Equipments has become obsolete or scrapped due to
fair wear and tear, upon its receipt of the Lessee’s notification, the
Lessor shall provide replacement of such item of Equipments at its own
expenses.
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||
| If any item of the Equipments has become obsolete or scrapped due to improper use or renovation or unfair wear and tear, the Lessor shall provide replacement of such item of Equipments at the cost of the Lessee. | ||
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4.9
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Disposal
of the Equipments
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Except
for otherwise provided in this Agreement or authorized by the Lessor in
writing, the Lessee shall not transfer, sale, gift or make any other
disposal of any item of the Equipments, or create any encumbrances over
the Equipments.
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5
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4.10
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Sublease
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The
Lessee shall not, during the Term of this Agreement, sublease all or part
of the Equipments without the written authorization of the
Lessor.
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4.11
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Vendor’s
Warranty
|
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The
Lessor shall obtain on behalf of the Lessee and in the Lessee's name, from
all vendors from whom it procures Equipments for the Project, warranties
with respect to such Equipments as are reasonably and customarily provided
by the vendor and/or manufacturer.
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|||
| The Lessor does not warrant that any Equipments procured for the use of the Lessee meets or complies with the requirements of any Laws. | |||
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5.
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SERVICES
IN RELATION TO THE EQUIPMENTS
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5.1
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Services
|
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To
ensure the performance of the Equipments, the Lessee shall contract all
the activities in relation to the use of the Equipments and the
development and operation of the Project to the Lessor. The Lessor agrees
to assist the Lessee to carry out the Project and provide services in
relation to the use of the Equipments to the Lessee (“Services”).
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|||
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5.2
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Service
Agreement
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For
the purpose described in Clause 4.1, the Lessee shall enter into an
service agreement with the Lessor, according to which the Lessee shall
exclusively entrust all the Services to the Lessor, against payment of
service fee to the Lessor, which is to be determined in the exclusive
service agreement.
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|||
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5.3
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Subcontract
|
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The
Lessor may delegate or subcontract the provision of any of the Services to
a third party when such delegation or sub-contracting is, in its
respective judgment, appropriate and necessary for the successful
completion of the Services.
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6.
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EXCLUSIVITY
|
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The
Lessee hereby undertakes that it will not, during the Term of this
Agreement, either directly or indirectly or through any other person or
entity, enter into any agreement or contractual arrangement with third
parties, which would compete with or contravene any matter which is
covered by this Agreement, without the express written consent of the
Lessor.
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7.
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LIMITATION
OF LIABILITY
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7.1
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Limitation
of Liability
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The
Lessor shall not be liable to the Lessee for any direct or indirect loss,
liability or other damages (other than those caused by gross negligence,
fraud or willful misconduct), including consequential damages, arising out
of the use of Equipments by the Lessee.
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|||
| The lessor shall not, in its capacity of lessor, be liable to third parties for death, personal injury or damage to property caused by the Equipments. | |||
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7.2
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Indemnity
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In
the absence of gross negligence or fraud or wilful misconduct on the part
of the Lessor, the Lessee shall hold harmless and indemnify the Lessor
and/or its employees from and
against,
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6
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any
and all claims (and reasonable costs and expenses incurred while defending
them) connected with the use of the Equipments by the Lessee.
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|||
| The Lessee shall assume the liabilities in relation to any property damage or personal injury caused by the Equipments. In case the Lessor is hold liable by a court or arbitration body for such damage or injury, the Lessee shall reimburse the Lessor for any loss it suffered. | |||
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8.
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REPRESENTATIONS
AND WARRANTIES
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8.1
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The
Lessor's Representations and Warranties
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The
Lessor represents and warrants to the Lessee that:
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|||
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(i)
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it
is a corporation duly established under the laws of the PRC and has full
power and capacity to enter into this Agreement;
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(ii)
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it
has taken all necessary action for the corporate authorisation of its
entry into this Agreement and the performance of its obligations under
this Agreement;
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(iii)
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the
Equipments are its absolute property or in its exclusive possession
authorized by the legal owner of the Equipments;
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(iv)
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the
Equipments are not subject to any bankruptcy, insolvency or similar
proceeding which may affect the title on them or their
use;
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(v)
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there
are no unsatisfied, pending or threatened judgments, actions, suits,
claims, demands or proceedings against or affecting the Lessor, the
execution or performance of this Agreement by the Lessor, in any court, or
before any arbitrator or any public authority;
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(vi)
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the
Equipments are in good condition to be used for the Project;
and
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(vii)
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all
the information disclosed by the Lessor are true, correct, complete and
set forth in a manner that is not misleading.
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8.2
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The
Lessee's Representations and Warranties
|
||
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The
Lessee represents and warrants to the Lessor that:
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|||
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(i)
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it
is a corporation duly established under the laws of the PRC and has full
power and capacity to enter into this Agreement;
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(ii)
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it
has taken all necessary action for the corporate authorisation of its
entry into this Agreement and the performance of its obligations under
this Agreement;
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(iii)
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there
are no unsatisfied, pending or threatened judgments, actions, suits,
claims, demands or proceedings against or affecting the Lessee, the
execution or performance of this Agreement by the Lessee, in any court, or
before any arbitrator or any public authority;
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||
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(iv)
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its
obligations under this Agreement are legally binding and enforceable
pursuant to this Agreement;
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(v)
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it
holds valid permits or licenses required by applicable PRC laws and
regulations in order to use the Equipments and carry out the Project;
and
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(vi)
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all
the information disclosed by the Lessor are true, correct, complete and
set forth in a manner that is not
misleading.
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7
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8.3
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Liability
|
||
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If
any representation made by either of the Parties under this Clause 7
proves to have been materially incorrect when made, the suffering Party
shall be entitled to compensation for any related
damages.
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|||
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9.
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THE
LESSEE’S COVENANTS
|
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9.1
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Positive
Covenants
|
||
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During
the term of this Agreement, the Lessee undertakes to the Lessor that it
shall:
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|||
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(i)
|
keep
its operation of business in accordance with good commercial
practice;
|
||
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(ii)
|
promptly
after its awareness of the same, notify the Lessor in writing of the
details of any involvement of it or any of its material assets into any
litigation, arbitration or administrative proceedings, court enforcement
or attachment, detention or other similar restrictions, or any events or
situation which may give rise to the involvement into such proceedings or
restrictions; within three (3) Business Days after its awareness of the
same, specifying the effect or possible effect of such involvement and the
measures it has taken or will take as remedy;comply with the applicable
laws and regulations to maintain its existence and its business license
and to avoid any material adverse effect on (a) its business, operations,
property, condition (financial or otherwise) or prospects; (b) its ability
to perform its obligations hereunder; or (c) the validity or
enforceability of this Agreement;
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||
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(iii)
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use
the Equipments in compliance with environmental law and other applicable
laws;
|
||
|
(iv)
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comply
with all legal obligations relating to the health and safety of employees
who carrying out work on the Equipments; and
|
||
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(v)
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protect
the Lessor or the legal owner’s property rights in the Equipments against
the Lessee's trustee in bankruptcy and creditors.
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||
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9.2
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Negative
Covenants
|
||
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Without
written consent from the Lessor, the Lessee shall not:
|
|||
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(i)
|
directly
or indirectly engage in any business beyond the scope of business
permitted in its business license;
|
||
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(ii)
|
proceed
in liquidation, bankruptcy, dissolution, winding-up or other similar legal
proceedings;
|
||
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(iii)
|
take
any action that may result in any authority taking action which could be
detrimental to the Lessor, or could have any adverse effect on the
Equipments; and
|
||
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(iv)
|
change
its scope or general nature of business or modify its articles of
association;
|
||
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(v)
|
enter
into any amalgamation, demerger, merger or corporate
reconstruction;
|
||
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(vi)
|
lease,
transfer, assign or sale any of its material assets;
and
|
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(vii)
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create
or permit to subsist any encumbrance over any of its material
assets.
|
||
8
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10.
|
TRANSFER
OF PROPERTY
|
|
|
Subject
to PRC law, the ownership of the Equipments shall be transferred to the
Lessee at the time of delivery. As a security against the full payment of
Rental, the Lessee shall provide all the Equipments as collaterals to the
Lessor.
|
||
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11.
|
SHARE
PLEDGE
|
|
|
As
security for the performance in full of the obligations of the Lessee
under this Agreement, the Lessee hereby agrees to procure its shareholders
to pledge to the Lessor, and creates in favor of the Lessor or any party
designated by the Lessor, a first priority security interest in all of the
rights, title and interest in and to the shares the shareholders own over
the Lessee, and all of their incidental rights with respect to the shares.
The
Lessee shall procure its shareholders to execute a share pledge agreement
with the Lessor, and attach hereto as Annex 2 of this
Agreement.
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||
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12.
|
TERM
|
|
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12.1
|
Term
of this
|
|
|
Agreement
|
||
|
This
Agreement shall come into force upon signing, and shall continue and
remain valid for thirty (30) years (“Term”) unless otherwise extended or
terminated in accordance with this Agreement.
The
Parties may amend this Agreement after the execution of this Agreement to
satisfy the requirements of relevant PRC law.
|
||
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12.2
|
Extension
of the Term
|
|
|
The
Term shall be automatically extended for additional ten (10) year
period(s), at the Lessor’s sole discretion, subject to sixty (60) days
prior notice served by the Lessor to the Lessee before the expiry of the
Term.
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||
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12.3
|
Expiry
of the Term
|
|
|
Upon
expiry of the Term, the Lessee shall return the Equipments to the Lessor
at the location indicated by the Lessor, in good condition and without
damage other than normal wear and tear. The Lessee shall be responsible
for all expenses incurred by the said return.
|
||
|
13.
|
TERMINATION
|
|
|
13.1
|
Termination
by the Lessor
|
|
|
Each
of the following events shall constitute an “Event of Default” of the
Lessee under this Agreement:
|
||
|
(i)
|
the
Lessee fails to pay the Rental (or any part thereof) or any payment
obligation in accordance with the terms hereof, and such failure is not
remedied within 90 days following the delivery of written notice thereof
to the Lessee of such failure; or
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|
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(ii)
|
the
Lessee becomes bankrupt or insolvent, goes into liquidation, has a
receiving or administration order made against it, or if any act is done
or event occurs which under the PRC laws has a similar effect to any of
these acts or events.
|
|
|
|
Lessor may elect to terminate this Agreement by giving a thirty (30)-day prior notice, upon the occurrence of an Event of Default. | |
9
|
Such
termination being without prejudice to the Lessor's right under this
Agreement or applicable laws to indemnification or compensation for
damages suffered as a result of such material breach.
|
|||
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13.2
|
Termination
by the Lessee
|
||
|
The
Lessee hereby acknowledges that the Equipments are specifically purchased
for the use by the Lessee, and termination of this Agreement will cause
inestimable losses to the Lessor. The Lessee further agrees that it will
not terminate this Agreement during the Term for whatever
reasons.
|
|||
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13.3
|
Consequences
of Early Termination
|
||
|
Where
this Agreement is terminated by the Lessor in accordance with Clause 11.1
above, the Lessee shall:
|
|||
|
(i)
|
pay
all the Rental due until the date of termination of this Agreement and
penalty for late payment (if any);
|
||
|
(ii)
|
pay
penalty to the Lessor for the early termination, the amount of which shall
be equal to the amount of Rental calculated from the Termination Date
until twenty (20) years following such date, or the expiry date of this
Agreement, which ever is the earlier; and
|
||
|
(iii)
|
return
all of the Equipments to the Lessor within ten (10) days after the
Termination Date, in good state of repair and upkeep, and bear any and all
expenses in relation to the removal and delivery of the Equipments.
Failure of the Lessee to return the Equipments in the given time period
shall entitle the Lessor to withdraw the Equipments by itself and the
Lessee shall indemnify the Lessor any costs incurred
thereof.
|
||
|
14.
|
CONFIDENTIALITY
|
||
|
14.1
|
Scope
of Confidentiality
|
||
|
Each
Party shall not disclose, during the term of this Agreement and for a
period of three (3) years after termination thereof, and shall take all
necessary measures to avoid the disclosure to any third party of any and
all information concerning the other Party, and notably its business,
products, technology or clients, as well as information regarding this
Agreement, including but not limited to, the existence of this Agreement
and the business contemplated under the Agreement (“Confidential
Information”).
|
|||
|
14.2
|
Permitted
Disclosure
|
||
|
Either
Party may disclose Confidential Information to its own employees and/or
consultants, but only to the extent such disclosure is strictly necessary
for the negotiation or performance of this Agreement.
|
|||
| Furthermore, either Party may disclose Confidential Information either (i) with the written consent of the other Party, (ii) to its agent, legal or financial advisor bound by a duty of confidentiality, (iii) obtained though other means than breach of this obligation of confidentiality; or (iv) pursuant to the order or requirement of a court, administrative agency, or regulatory body. | |||
10
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15.
|
GOVERNING
LAW AND DISPUTE SETTLEMENT
|
||
|
15.1
|
Governing
Law
|
||
|
This
Agreement shall be governed and construed by the published and publicly
available laws and regulations of the PRC.
|
|||
|
15.2
|
Dispute
settlement
|
||
|
Any
dispute arising from or related to this Agreement shall firstly be
resolved through consultation by both parties based on the spirit of
mutual understandings and friendly cooperation.
|
|||
| On the occurrence of a specific dispute, either party may notify the other party in writing of the existence of the dispute and its contents. If the dispute cannot be resolved through consultation within ninety (90) days of the issuance of the notice, either party may terminate the consultation and refer the dispute to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration. | |||
|
The
arbitration shall be conducted in accordance with CIETAC's arbitration
rules in effect at the time of applying for arbitration. The
arbitration tribunal shall consist of three (3) members. The
arbitral award shall be final and binding upon the Parties. The
arbitration proceedings shall be held in Beijing.
|
|||
|
16.
|
MISCELLANEOUS
PROVISIONS
|
||
|
16.1
|
Amendments
|
||
|
No
modication, amendment, or other change to the Agreement or any of its
Annexes will be binding on any Party unless it is made in writing and
signed by both Parties.
|
|||
|
16.2
|
Severability
|
||
|
If
any provision of this Agreement or any part of an Annex shall be held or
adjudged illegal, invalid or unenforceable, such provision shall not
affect this Agreement or the Annex as a whole or the legality or binding
effect of other provisions.
|
|||
|
16.3
|
Non-waiver
|
||
|
No
failure to exercise and no delay in exercising, on the part of either
Party, of any right, power or the privilege under this Agreement nor any
single or partial exercise thereof, or the exercise of any other right,
power or privilege shall operate as a waiver thereof. No waiver by any
Party of any of its respective rights or obligations under this Agreement
shall be effective unless it is in writing.
|
|||
|
16.4
|
Entire
Agreement
|
||
|
This
Agreement and the Annexes hereto constitute the entire agreement between
the Parties and supersede all prior discussions, negotiations and
agreements. The Annexes form an integral part hereof and have the same
legal effect as this Agreement. If there is any inconsistency between the
provisions of this Agreement and any of the Annexes, the provisions of
this Agreement shall prevail to the extent of such
inconsistency.
|
|||
|
16.5
|
Notices
and Communications
|
||
|
(i)
|
Any
notice required to be given under this Agreement shall be in writing and
may be given by personal delivery, or delivery through courier or
facsimile transmission as follows:
|
||
11
|
The
Lessor:
|
to
the attention of o
|
||
|
Address: o
|
|||
|
Telephone
number: o
|
|||
|
Fax number: o
|
|||
|
The
Lessee:
|
to
the attention of o
|
||
|
Address:
o
|
|||
|
Telephone
number: o
|
|||
|
Fax number: o
|
|
(ii)
|
All
notices and communications under this Agreement shall be deemed to be duly
given or made (a) in the case of communication by letter when delivered by
hand, international courier or by registered mail or (b) in the case of
communication by fax when transmitted properly to such fax
number.
|
|
|
(iii)
|
A
notice or other communication received on a non-working day or after
business hours of the receiving Party shall be deemed to be served on the
next following working day.
|
|
|
16.6
|
Language
|
|
|
This
Agreement shall be written in English and Chinese. Both Chinese and
English versions shall have the same legal effect.
|
||
|
16.7
|
Execution
|
|
|
Each
language version of this Agreement has eight duplicates, and is executed
on the date first written above by the authorized representatives of the
parties.
|
||
12
IN WITNESS WHEREOF, the
Parties have caused their respective duly authorized representatives to execute
this Agreement.
Yunji
Communications Technology (China) Co. Ltd. :
|
Signature:
|
|
|
Name:
|
Xxxxx
Xxx
|
|
Title:
|
Co-President
|
|
CECT
Chinacomm Communications Co. Ltd.:
|
|
|
Signature:
|
|
|
Name:
|
Qiu
Ping
|
|
Title:
|
President
|
13
ANNEX
1
AMOUNT
AND PAYMENT OF RENTAL
|
a)
|
The
Rental for the Equipments shall be calculated in the method to be decided
by the Parties, the pricing of which shall not be lower than the market
price for financial leasing.
|
|
b)
|
The
Rental shall be paid monthly to the bank account of the Lessee within ten
(10) business days following the end of each
month.
|
14
ANNEX
2
SHARE
PLEDGE AGREEMENT
15
