Equipment Lease Agreement
by
and between
Sunway
World Through Technology (Daqing) Co., Ltd.
and
Daqing
Sunway Technology Company Limited
March
30, 2007
This
Agreement is entered into March 30, 2007 in Daqing between the following
Parties:
|
(1)
|
Sunway
World Through Technology(Daqing) Co., Ltd. (hereafter called “Party
A”)
is
a limited liability company duly registered in Daqing, China, whose
legal
address is Jianshe
Road, North Software Park, High and Advanced Technology Industry
Development Zone, Daqing City, and
|
|
(2)
|
Daqing
Sunway Technology Company Limited
(hereafter “Party B”), a wholly
foreign owned enterprise (“WFOE”) duly registered in Daqing,
China, whose legal address is Jianshe
Road, North Software Park, High and Advanced Technology Industry
Development Zone, Daqing City.
|
(Party
A
and Party B are referred to collectively in this Agreement as “Parties” or “both
Parties”, and individually as “a Party”)
WHEREAS:
(1) Party
A’s
major business are as follows: the computer software development, data
processing, data base service, computer equipment maintenance; the production
and sale of computer and its outer equipment, apparatus, meters, the electronic
products, and communicational equipment (not including the transmission
equipment); household appliance; Petroleum chemical technical service, computer
and the related products, computer software, computer outer equipment,
apparatus, electronic equipment export and import business, manufacture of
the
medical appliance;
(2) Party
B’s
major business are; the development of computer software, the development and
manufacture of medical appliance and medical supplemental equipment.
(3)
Party
A shall lease all its equipments to Party B, and Party B shall pay for the
rental as the corresponding consideration in accordance with the terms of this
Agreement.
NOW,
THEREFORE,
the
Parties hereby agree as follows:
I
DEFINITION
1.
Except
as otherwise provided under the terms of this Agreement, the following terms
shall have the meanings set forth below:
“This
Agreement” shall mean this Agreement and its appendix;
“Signing
date” shall mean the date of signing this Agreement;
“Equipment”
shall mean the equipments (as listed in Appendix) to be leased by Party
A
to Party B as set out in Article 2;
“Period”
shall mean the period during which Party B shall provide Technical Service
to Party A as set out in Article 3 of this Agreement;
“RMB”
shall mean Renminbi, the lawful currency of the PRC;
“Cost”
shall
mean the
costs set out in this Agreement which is to be paid by Party A to Party
B;
“Business
day” shall mean a day other than Saturday, Sunday or other day on which
the
commercial banks in the PRC are generally closed for business;
“China”
refers People’s Republic of China, in context of this Agreement, excluding
Hong
Kong
Special Administrative Region, Macau Special Administrative Region, and
Taiwan;
“China
law” refers to the effective laws, regulations, policies or other enforceable
legal documentations of People’s Republic of China, and future effecting laws,
regulations, policies or other enforceable legal documents. Moreover, except
as
otherwise provided, laws refer to the amended and updated versions (Excluding
that of Hong
Kong
Special Administrative Region, Macau Special Administrative Region, and
Taiwan).
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II.
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CONTENTS
OF THE AGREEMENT
|
|
2.1
|
Party
A agrees to provide the instruction and other related documents of
the
leased equipments. The checklist, operation, instruction and other
related
documents shall refer to Appendix
1.
|
|
2.2
|
Party
A will be responsible to train the technical employees of Party B,
and
take effective measures to have the employees master the usage
methods.
|
|
2.3
|
Party
A shall dispatch the competent technical experts to provide direction
in
the agreed factory of Party B.
|
|
2.4
|
Party
A Shall be responsible to provide the related consultancy on provided
key
equipments.
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| III |
DELIVERY
OF THE EQUIPMENT
|
|
3.1
|
Both
Parties agree that the leased equipment shall be collected by Party
B
itself.
|
|
3.2
|
Party
A shall guarantee that the equipments will be in good condition without
any damage before the delivery to Party
B.
|
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3.3
|
During
the leasing period, Party B has the rights to use the equipments
without
the power to consign and set mortgage on it. Unless Party A agrees,
Party
B shall not add or dismantle any parts on the equipment or change
the
venue of mantling. Party A has the rights to check the conditions
of the
usage of the equipments, Party B shall provide all conveniences.
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| IV |
PRICE
|
Party
B shall pay the rental fee equal to 28% of its annual revenue before December
31st
. Provided Party B fails to pay the rental on time, additional fines of 0.03%
of
the unpaid rental will be charged per day.
| V |
TAXATION
AND FEES
|
All
taxes
and other costs or expenses incurred in connection with this Agreement, shall
be
paid by Party B at its own expenses.
| VI |
CONFIDENTIALITY
|
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6.1
|
Any
information, document, data and material (collectively the “confidential
information”) obtained in the negotiation, execution, and performance of
this Agreement, shall be kept in strict confidence by both Parties.
Unless
otherwise provided by laws, regulations and other compelled administrative
rulesôthe
confidential information shall not be disclosed to any third party
without
obligation of confidentiality, nor
shall the confidential information be used for purposes other than
that of
this Agreement.
|
|
6.2
|
The
obligation of confidentiality shall survive of the termination and
expiration of this Agreement.
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| VII |
FORCE
MAJEURE
|
|
7.1
|
“Force
Majeure” refers to any event, condition, situation or the combination of
events, conditions and situations, which is outside the direct or
indirect
reasonable control of affected party, and cannot be reasonably anticipated
or avoided by the affected party, and which prevents or inevitable
postpones either party’s performance under this Agreement. Neither party
shall be liable to the other for any delay or failure to perform
its
obligation under this Agreement, if such failure or delay is due
to force
majeure. However, the affected party shall promptly notify the other
party
in writing of any delay or failure to perform due to force majeure.
After
the force majeure disappears, each party shall continue to perform
under
this Agreement.
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| VIII |
LIABILITY
OF BREACH
|
8.1
After
this Agreement becomes effective, it shall constitute a breach of this
Agreement, if either party is in non-performance, or incomplete performance
of
this Agreement, or is otherwise in default of any of this Agreement. The
non-breaching party shall give the breaching party reasonable time to cure
any
default. If the breaching party does not cure the default within the reasonable
time, the non-breaching party shall hold the breaching party liable for all
the
damages resulting from breaching party’s default. The breaching party is liable
for all damages, including economic loss. The breaching party shall also be
responsible for the other party’s attorney fees, litigation and arbitration
costs incurred as a result of the default. However, the damages shall not exceed
an amount that can be reasonably foreseen by the breaching party at the
execution of this Agreement.
| IX |
EFFECTIVE
DATE, TERM AND
TERMINATION
|
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9.1
|
This
Agreement is effective on the date of its execution (If it is signed
by an
authorized representative, a power of attorney shall be
provided).
|
|
9.2
|
This
Agreement shall take effect on the Effective Date and continue until
it is
terminated pursuant to Section 9.3
hereof.
|
|
9.3
|
This
Agreement shall remain effective until the earliest to occur of (i)
the
acquisition of the 100% of the equity interest of Party A by Party
B or
any designee of the Party B, (ii) the acquisition of all or substantially
all assets of Party A by Party B or any designees of Party B, (iii)
30
days following the receipt of Party A from Party B a written notice
to
terminate this Agreement, or (iv) the date this Agreement ceases
to be
valid under the PRC law. If this Agreement ceases to be effective
because
of item (iv) in the foregoing but not (i), (ii) or (iii), then this
Agreement is deemed to have automatically
renewed.
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| 9.4 | The modification of this Agreement may be conducted through consultation by both Parties and become effective through the written agreement; otherwise, the Agreement shall be still effective if the Parties cannot reach the agreement on the modification. |
| X |
GOVERNING
LAW AND DISPUTE
RESOLUTION
|
|
10.1
|
The
validity, interpretation, performance and dispute resolution with
respect
to this Agreement, shall be governed by laws of the People Republic
of
China.
|
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10.2
|
Any
dispute arising from this Agreement shall be resolved by both Parties
through consultation, if the Parties can not reach an agreement within
30
days after the dispute arises, either
Party may submit the dispute to Beijing Arbitration Commission for
arbitration under its applicable rules. The
arbitration award should be final and binding upon both parties,
if the
losing party refuses to enforce the arbitration award, the winning
party
may seek enforcement of arbitration award in a PRC court with jurisdiction
over the dispute; and the winning party shall have the right to ask
the
losing party to pay for all professional service (including but not
limited to legal counsel service, arbitration fees, enforcement fees)
costs in the course of arbitration and other related costs.
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10.3
|
During
the course of dispute resolution, the Parties shall continue to perform
other terms hereunder. .
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| XI |
MISCELLANEOUS
|
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11.1
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Any
representation, warranty and undertaking made by one party to the
other shall
be complete and genuine, the other Party shall rely on such
representation, warranty and undertaking on the execution hereof
and
treated them as the condition precedent. After the effective date,
if
either Party discovers the representation is not complied with facts,
the
Party shall disclose immediately the facts to the other Party. Each
Party
warrants to the other Party that all the losses, costs, expenses,
or
obligations resulted by its default of any representation and warranty
shall be compensated at its own
expense.
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11.2
|
Any
statement, warranty and undertaking shall be separate and independent
under this Agreement, which shall not be limited by any provisions,
except
provided otherwise.
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11.3
|
If
any provisions of this Agreement be construed as illegal, invalid,
or
unenforceable according the laws of China, they shall not affect
the
legality, validity and enforcement of other provisions of this Agreement.
If any provision is deemed to be illegal, invalid, or unenforceable,
both
Parties shall modify this Agreement through friendly negotiation
in the
acceptable manner and to the largest extent to realize the original
intents of both Parties.
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11.4
|
This
Agreement constitutes the entire Agreement between the Parties relating
to
this Agreement, which together with the Appendix, represents both
Parties’
genuine consent. This Agreement supersedes all written or oral intentions,
representations and understandings etc. with respect to subject matters
hereunder before the execution of this Agreement.
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11.5
|
Except
as otherwise provided by the laws, either party’s failure or delay of
exercise of any right under this Agreement does not constitute a
waiver of
any right. Exercising any right solely or partly shall not encumber
the
exercise of any other right, power or
privilege.
|
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11.6
|
All
headings in this Agreement are for convenience of reference only,
shall
not affect the construction or interpretation of the
Agreement.
|
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11.7
|
Except
otherwise provided under this Agreement, the mentioned article, clause
and
appendix refer to the article, clause and appendix of this
Agreement.
|
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11.8
|
Any
notice required to be given or delivered to either party under the
terms
of this Agreement shall be in writing and addressed to such Parties
at the
address indicated on the first page of this Agreement or such other
address as such party may designate, in writing, from time to time.
All
notices shall be deemed to have been given or delivered upon by personal
delivery, fax and registered mail. It shall be deemed to be delivered
(1),
if by registered mail, on the 5th
business day after its deposit in the mail; (2) if by personal delivery,
the day of livery; (2) if by fax, the next business day after
transmission.
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11.9
|
Both
Parties may sign additional agreement on matters related to this
Agreement. Such supplemental agreement and this Agreement have the
same
effect.
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11.10
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All
appendix of this Agreement is an integral part hereto and shall have
the
same effect.
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11.11
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This
Agreement is written in both English and Chinese. If the two versions
conflict in any way, the Chinese version shall prevail. The Agreement
is
prepared in two duplicates, each held by one party. Both Parties
shall
sign the duplicates and this Agreement.
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IN
WITNESS THEREFORE,
the
parties hereof have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
[Signature
Page Only]
For
and
on behalf of:
PARTY
A SUNWAY
WORLD THTOUGH TECHNOLOGY (DAQING) CO., LTD.
Legal
Representative (or
his authorized representative):
PARTY
B DAQING SUNWAY TECHNOLOGY COMPANY LIMITED
Legal
Representative (or
his authorized representative):
Appendix:
Equipment list
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Name
of the Equipment
|
Price
(Yuan)
|
|||
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A
type working station production line
|
219,020
|
|||
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B
type working station production line
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708,860
|
|||
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C
type working station production line new build
|
1,968,354
|
|||
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commutator
producing line
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253,164
|
|||
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airproof
detecting room
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607,594
|
|||
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performance
testing line
|
607,521
|
|||
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Ageing
line
|
||||
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machinery
component equipment
|
532,565
|
|||
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basic
establishment
|
350,000
|
|||
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subtotal
|
5,247,078
|
|||
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dispensation
and packing assembly line
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1,296,202
|
|||
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medicine
packing bag production line
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405,063
|
|||
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main
component production equipment
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101,265
|
|||
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performance
testing line
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736,456
|
|||
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Ageing
line
|
||||
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basic
establishment
|
436,159
|
|||
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subtotal
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2,975,145
|
|||
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Total
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8,222,223
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9
