EXHIBIT 10.3
EXECUTION COPY
DATED 12 FEBRUARY 2003
CHINA-SINGAPORE SUZHOU INDUSTRIAL
PARK DEVELOPMENT CO. LTD.
AND
MAXTOR TECHNOLOGY (SUZHOU) CO. LTD.
----------------------------------
CONTRACT FOR TRANSFER OF THE RIGHT
TO THE USE OF LAND IN RESPECT OF
222,700.82 SQUARE METERS OF LAND
LOCATED AT SU XXXX XXXX ROAD,
SUZHOU INDUSTRIAL PARK
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CONTRACT NO.: 110200
TABLE OF CONTENTS
CHAPTER 1 AREA, LOCATION, TENURE AND USE OF THE LAND PARCEL 1-2
CHAPTER 2 LAND TRANSFER PRICE AND METHOD OF PAYMENT 2-3
CHAPTER 3 MATTERS RELATING TO TRANSFER AND REGISTRATION 3
CHAPTER 4 WARRANTIES AND INDEMNITIES 4
CHAPTER 5 LAND USE CONDITIONS 4
CHAPTER 6 INFRASTRUCTURE AND UTILITIES 4-5
CHAPTER 7 FORCE MAJEURE 5-6
CHAPTER 8 TERMINATION 6-7
CHAPTER 9 LIQUIDATION 7
CHAPTER 10 NOTICES 7-8
CHAPTER 11 APPLICABLE LAW AND DISPUTE RESOLUTION 8
CHAPTER 12 EFFECTIVENESS OF CONTRACT AND OTHER MATTERS 9
ANNEXURE 1 LAND SURVEY PLAN FOR THE LAND PARCEL 11
ANNEXURE 2 THE WARRANTIES 12-14
THIS CONTRACT is made on 12 February 2003:
BETWEEN:
THE TRANSFEROR : CHINA-SINGAPORE SUZHOU INDUSTRIAL PARK
DEVELOPMENT CO. LTD. ("PARTY A")
Legal Address : 00xx Xxxxx, Xxxxxxxxxxxxx Xxxxxxxx
Xx.0 Xxxxx Xxxx
Suzhou Industrial Park
The Municipality of Suzhou
The Province of Jiangsu
The People's of Republic of China
Legal Representative : Name : Xxxx Xxx Ze
Position : Chairman
Nationality : Chinese Citizen
AND
THE TRANSFEREE : MAXTOR TECHNOLOGY (SUZHOU) CO. LTD. ("PARTY B")
Legal Address : Su Xxxx Xxxx Road, Suzhou Industrial Park,
Suzhou, Jiangsu Province, the People's Republic
of China (the "PRC")
Legal Representative : Name : Teh Kee Hong
Position : Chairman
Nationality : Malaysian
WHEREAS
(A) On 2nd January 2003, Party A and the Land Administration Bureau of
Suzhou Industrial Park (the "LAB") entered into a "Contract for the
Grant of the Right to the Use of State-owned Land in the Suzhou
Industrial Park"(Contract Reference Number: Suzhou Industrial Park
Assignment No. 63 of 2002) (the "LAND GRANT CONTRACT"), pursuant to
which the LAB granted to Party A the right to use the plot of land as
defined in Article 2 of this Contract (the "LAND PARCEL") for
industrial purposes for a term of fifty (50) years. Party A has paid
the land grant premium (the "LAND GRANT PREMIUM") and all applicable
taxes and fees in accordance with Articles 12, 13, 16 and 17 of the
Land Grant Contract in full and Party A has been registered as the
owner of the land use rights over the Land Parcel as evidenced by a
State-owned Land Use Rights Certificate dated 20 January 2003
(Certificate Number: su gong yuan xxx xxxx (2003) No. 014).
(B) Pursuant to the "Interim Regulation of the People's Republic of China
Concerning the Assignment and Transfer of the Right to the Use of
State-Owned Land in Urban Areas" (the "INTERIM REGULATIONS"), the
"Interim Measures of the Administration of Foreign-Invested Development
and Management of Tracts of Land" (the "INTERIM MEASURES"), the "Law of
the People's Republic of China on the Administration of Urban Real
Property" (the "ADMINISTRATION LAW"), and other relevant national and
local stipulations, Party A and Party B have, through friendly
negotiations, reached a mutual understanding with regard to the
transfer of the right of the use of the Land Parcel and hereby agree to
enter into this contract (this "CONTRACT").
CHAPTER 1 AREA, LOCATION, TENURE AND USE OF THE LAND PARCEL
ARTICLE 1 The area of the Land Parcel is 222,700.82 square meters, which
has been duly surveyed by the competent authority and accepted
by Party A and Party B as final and official.
ARTICLE 2 The Land Parcel identified as Xxxx Xx. 00000 is located to the
north of Su Xxxx Xxxx Road,
Suzhou Industrial Park, Suzhou, Jiangsu Province, the PRC.
Details of the Land Parcel are set out in the Land Survey Plan
for the Land Parcel attached as Annexure 1 to this Contract.
ARTICLE 3 The tenure of the Land Parcel shall be the remainder of the
fifty (50)-year term from 20 January 2003 to 19 January 2053.
ARTICLE 4 Party B shall only use the Land Parcel for industrial
purposes. If Party B wishes to change the use of the Land
Parcel during the tenure, Party B shall obtain the prior
approval of the Suzhou Industrial Park Planning and
Construction Bureau, the LAB (both under the Suzhou Industrial
Park Administrative Committee ("SIPAC")) and any other
relevant PRC governmental authorities and shall complete the
formalities for examination and approval in accordance with
the relevant stipulations.
CHAPTER 2 LAND TRANSFER PRICE AND METHOD OF PAYMENT
ARTICLE 5 Party A and Party B hereby agree that the purchase price for
the right to the use of the Land Parcel (the "LAND TRANSFER
PRICE") shall be United States Dollars Six (US$6) per square
meter totalling United States Dollars One Million Three
Hundred Thirty Six Thousand Two Hundred and Four and Cents
Ninety Two (US$1,336,204.92). Party B shall pay to Party A the
Land Transfer Price in accordance with the provisions in
Article 6 and Article 7 of this Contract.
ARTICLE 6 PAYMENT TIME AND MANNER
6.1 The Land Transfer Price shall be paid by Party B to
Party A by installments at the following times:-
(a) within ten (10) days from the date of
signing of this Contract, a sum equal to
thirty per cent (30%) of the Land Transfer
Price (it being agreed that Party A has
received in Singapore a sum equal to ten per
cent (10%) of the Land Transfer Price as
deposit prior to the date of this Contract,
which sum shall be refunded in full to the
payor in Singapore simultaneously with
payment of the Land Transfer Price by Party
B on the due date);
(b) within thirty (30) days from the date of
signing of this Contract, a sum equal to
fifty (50%) of the Land Transfer Price; and
(c) within sixty (60) days from the date of
signing this Contract, , a sum equal to the
remaining twenty per cent (20%) of the Land
Transfer Price.
6.2 Party B shall make payment of the Land Transfer Price
in Renminbi. The exchange rate between Renminbi and
United States Dollars shall be based on the middle
rate of exchange between United States Dollars and
Renminbi quoted by the Bank of China, Suzhou Branch
on the date of actual receipt, and if no such rate is
available then on the first succeeding date on which
such rate is quoted. The difference between the
amount due and the amount deemed received using the
aforesaid exchange rate shall be paid by Party A to
Party B (in the case of a surplus) or vice versa (in
the case of a shortfall), as the case may be, within
seven (7) days from the date of conversion.
6.3 If the due date for any payment falls on a Saturday,
Sunday or public holiday in the PRC, that date shall
be extended to the next succeeding day which is not a
Saturday, Sunday or public holiday in the PRC.
ARTICLE 7 If Party B delays in payment or otherwise fails to pay any
monies due to Party A in accordance with the provisions of
this Contract, interest shall accrue on such unpaid monies
from the payment due date up to but excluding the date of
actual payment, and the interest shall be calculated day to
day at the rate of the one-year term loan interest rate
published by
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the Bank of China from time to time plus two (2) percentage
points.
ARTICLE 8 If Party B fails to pay to Party A the Land Transfer Price and
interest (if any) in accordance with Articles 5, 6 and 7 of
this Contact, and Party B, within two (2) weeks from receiving
a written notice from Party A, still fails to pay the due
monies, Party A shall be entitled to proceed with the
following actions:
(a) unilaterally terminate this Contract by giving notice
in writing to Party B; and
(b) resell or otherwise dispose of or deal with the right
to the use of the Land Parcel as it shall deem fit.
CHAPTER 3 MATTERS RELATING TO TRANSFER AND REGISTRATION
ARTICLE 9 Party A shall transfer the right to the use of the Land Parcel
to Party B in accordance with the provisions of this Contract
and applicable PRC laws and regulations.
ARTICLE 10 Party B shall have the full right of access to the Land
Parcel, including the right to enter into, use, and commence
the construction of structures, facilities and other works on
the Land Parcel, upon Party B's payment in full of the amounts
due to Party A pursuant to Article 6.1(a) of this Contract.
Title to all such structures, facilities and other works shall
vest in Party B at every stage of their construction.
ARTICLE 11 (a) Party A and Party B shall, within thirty (30) days of
the date of this Contract, jointly procure the
submission of this Contract to the relevant
authorities for examination and notarisation (if
required by PRC laws and regulations).
(b) Party A shall, within thirty (30) days of Party B's
payment of the Land Transfer Price in full to Party
A, do all such things and sign all such documents as
may be necessary or appropriate to effectuate the
transfer of the right to the Land Parcel to Party B
(including, without limitation, procuring the
registration of Party B by LAB as the owner of the
land use rights over the Land Parcel and the issuance
of a State-owned Land Use Rights Certificate (the
"TITLE DOCUMENT") by the competent authorities to
Party B within such thirty (30)-day period).
ARTICLE 12 The right to the sole use of the Land Parcel shall be deemed
to be transferred to Party B on the date of issue of the Title
Document to Party B.
ARTICLE 13 With the exception of land appreciation tax applicable to the
Land Parcel (if any) and business tax payable by Party A for
the transfer by Party A of the right to the use of the Land
Parcel to Party B, Party B shall bear all relevant taxes, fees
and charges relating to the transfer of the right to the use
of the Land Parcel, including but not limited to deed tax
(unless otherwise exempted), pegging and survey fees and stamp
duty in accordance with relevant PRC laws and regulations. As
from the date of issue of the Title Document, Party B shall
bear all taxes and outgoings relating to the Land Parcel.
ARTICLE 14 Upon the issue of the Title Document to Party B, the rights,
interest and obligations (other than the obligations of Party
A to pay any Land Grant Premium and any taxes and fees
relating to the execution and performance of the Land Grant
Contract) set out in the Land Grant Contract shall also be
transferred to and borne by Party B.
ARTICLE 15 In the event that Party B desires to continue the use of the
Land Parcel upon the expiration of the tenure of the use of
the Land Parcel, Party B shall, no later than six (6) months
before the expiration of such tenure, submit to the competent
land authorities an application for the extension of such
tenure in compliance with the relevant stipulations, and shall
enter into a new contract relating to the use of the Land
Parcel through negotiation in accordance with the land xxxxx
xxxxx at that time.
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CHAPTER 4 WARRANTIES AND INDEMNITIES
ARTICLE 16 16.1 Party A warrants and undertakes to Party B in the
terms set out in Annexure 2 to this Contract as of
the date of this Contract and the date when the
transfer of the right to use the Land Parcel to Party
B is effected respectively.
16.2 Each of the warranties set out in Annexure 2 to this
Contract (the "WARRANTIES") shall be separate and
independent and, save as expressly provided, shall
not be limited by reference to any other Warranty or
anything else in this Contract.
16.3 Without restricting the rights of Party B or the
ability of Party B to claim damages on any basis, in
the event that any of the Warranties is breached or
proves to be untrue or misleading, Party A shall pay
to Party B upon demand:
(a) the amount necessary to put Party B into the
position which would have existed if the
relevant Warranty or Warranties had not been
breached and had been true and not
misleading; and
(b) all costs and expenses incurred by Party B,
directly or indirectly, including legal
fees, as a result of such breach.
16.4 Party A acknowledges and agrees that Party B has
entered into this Contract in reliance on, inter
alia, the Warranties.
16.5 Party A undertakes to indemnify and keep indemnified
Party B against any direct loss or liability suffered
by Party B as a result of any breach of any of the
Warranties.
CHAPTER 5 LAND USE CONDITIONS
ARTICLE 17 Party B shall use the Land Parcel only in accordance with the
land use conditions set out in Annexure 2 to the Land Grant
Contract.
ARTICLE 18 Party B shall erect information signboards on the Land Parcel
after the signing of this Contract in compliance with the
unified specifications (a copy of which has been provided by
Party A to Party B).
CHAPTER 6 INFRASTRUCTURE AND UTILITIES
ARTICLE 19 Party A shall procure:
(a) before 15 April 2003, the installation by the
relevant SIP power authorities of an electricity
switching station in the vicinity of the Land Parcel
for the supply of electricity to the Land Parcel; and
(b) the installation by the relevant SIP authorities of
the following utilities (the "UTILITIES") to the
boundary of the Land Parcel at no charge to Party B:-
(i) before 30 September 2003, one 20KV ring
circuit power line;
(ii) before 15 April 2003, a water supply with a
capacity of at least 1,000 cubic meters per
day;
(iii) before 15 April 2003, sewage disposal and
drainage facilities with a capacity of at
least 800 cubic meters per day;
(iv) before 30 September 2003, a steam supply
with a capacity of at least 2,800
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cubic meters per month;
(v) before 15 April 2003, fibre optic
telecommunication lines as provided by the
relevant telecommunication operators to
public users of similar nature and size
within the Suzhou Industrial Park; and
(vi) before 15 April 2003, a liquified petroleum
gas supply with a capacity of at least 1,000
cubic metres per day.
ARTICLE 20 (a) Before 30 June 2003, Party A:
(i) shall provide a public main road to the
boundary of the Land Parcel and shall
construct an ingress and egress access (the
"ACCESS") as approved by SIPAC, including a
bridge crossing the Xxx Xxx Canal, to the
western boundary of the Land Parcel, which
shall have a width of not less than 22
meters and can be used by trailers with a
weight of not more than 120 metric tonnes
and motor vehicles with a weight of not more
than 55 metric tonnes, at no charge to Party
B; and
(ii) shall use its best efforts to assist Party B
to construct an additional ingress and
egress access with a width of not less than
7.5 meters from Su Xxxx Xxxx Road to the
southern boundary of the Land Parcel at
Party B's own cost, which may be used only
with the permission of the customs
authorities.
(b) Party A shall construct and maintain the Access using
materials and workmanship of appropriate quality and
standards so as not to cause any damage to the public
basic infrastructure.
ARTICLE 21 Party B shall at its own cost and expense apply to the
relevant authorities and accept the examination in accordance
with the stipulations set by such authorities for the
installation of the Utilities from the boundary of the Land
Parcel to designated points located within the Land Parcel.
ARTICLE 22 Party B shall be responsible for all relevant fees and charges
relating to the installation of the Utilities within the Land
Parcel and the usage of the Utilities by Party B.
CHARTER 7 FORCE MAJEURE
ARTICLE 23 No Party shall be considered to be in breach of this Contract
and therefore be liable for any loss or damage caused by any
delay in the performance or non-observance of any of its
obligations under this Contract when the same is occasioned by
an "Event of Force Majeure" - that is to say any of the
following events which is not reasonably foreseeable,
controllable and surmountable by the affected Party and which
directly or indirectly prevents or impedes the due performance
of this Contract:
(a) war or hostilities; and
(b) Acts of God such as earthquake, flood, typhoon, fire
or other natural disaster.
ARTICLE 24 A certificate or confirmation issued by the relevant
administrative department of the Suzhou Municipal Government
or a non-governmental authoritative organisation in the PRC
shall be accepted by the Parties as proof that the said Event
of Force Majeure has occurred.
ARTICLE 25 Should any such Event of Force Majeure occur the affected
party shall notify the other Party in writing within fifteen
(15) days and shall use its reasonable endeavours to resume
prompt performance as soon as such Event of Force Majeure
shall have ceased, and the time for any
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such Party's performance shall be extended for a period equal
to the time lost by reason of the delay which shall be
remedied with all due despatch in the circumstances.
ARTICLE 26 The respective obligations of the Parties hereto under this
Contract shall be suspended during the continuance of any of
the aforesaid events and neither Party shall claim from the
other Party any damages, compensation or for loss of any kind
whatsoever arising from or attributable whether directly or
indirectly to the occurrence of any of the aforesaid event.
However, either Party hereto shall have the right to terminate
this Contract by notice to the other Party and therefore be
free from all the obligations under this Contract if any of
the aforesaid events shall continue beyond a period of ninety
(90) days; provided that Party A shall forthwith upon such
termination refund to Party B all sums paid by Party B to
Party A under this Contract.
CHAPTER 8 TERMINATION
ARTICLE 27 Without prejudice to the right of Party B to terminate this
Contract under Article 26, Party B may forthwith terminate
this Contract by notice in writing to Party A if:
(a) for any reason whatsoever (other than a breach by
Party B of its obligations under this Contract) the
competent authorities have not issued the Title
Document in respect of the whole of the Land Parcel
to Party B within thirty (30) days after Party B has
paid the Land Transfer Price in full to Party A; or
(b) the General Administration of Customs or its duly
authorized designate do not confirm their acceptance
of phase 2 of the Suzhou Industrial Park Export
Processing Zone of which the Land Parcel forms part
as forming an operational part of the Suzhou
Industrial Park Export Processing Zone on or before
31 October 2003; or
(c) if any of the Warranties shall have been breached or
proved to be untrue or misleading.
ARTICLE 28 Upon the termination of this Contract under Article 27:
(a) this Contract (other than Articles 28, 29, 30, 31,
32, 33, 34, 35, 38, 39 and 40, which shall survive
the termination of this Contract and remain in full
force and effect) shall become null and void and of
no further effect; and
(b) Party A shall forthwith pay to Party B in immediately
available funds a sum equal to the aggregate of:
(i) all amounts paid by Party B to Party A under
this Contract; and
(ii) all taxes, fees and other expenses paid or
incurred by Party B in connection with the
transfer of the Land Parcel contemplated
under this Contract; and
(c) any structures, facilities and other works then
existing on the Land Parcel shall be dealt with under
a separate agreement to be entered into between Party
A and Party B.
ARTICLE 29 If the event set out in Article 27(b) or (c) of this Contract
occurs at any time after the issue of the Title Document to
Party B, Party B shall have the option to sell the right to
use the Land Parcel back to Party A by giving a notice in
writing to Party A stating its decision to exercise its right
under this Article 29. Within seven (7) days of the date of
such notice, Party A shall pay to Party B in immediately
available funds a sum equal to the aggregate of:
(a) all amounts paid by Party B to Party A under this
Contract; and
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(b) all taxes, fees and expenses paid or incurred by
Party B in connection with the transfer of the Land
Parcel contemplated under this Contract.
Subject to the performance by Party A of its obligations under
the preceding paragraph, Party B shall do all such things and
sign all such documents as may be necessary to effectuate a
transfer of the right to use the Land Parcel back to Party A
without liability to Party B. All taxes, fees and expenses
relating to such transfer shall be borne by Party A. Any
structures, facilities and other works then existing on the
Land Parcel shall be dealt with under a separate agreement to
be entered into between Party A and Party B.
CHAPTER 9 LIQUIDATION
ARTICLE 30 In the event that (a) this Contract is terminated pursuant to
Article 27 of this Contract, or the Land Parcel is sold back
to Party A pursuant to Article 29 of this Contract, and (b)
Party B determines that it shall cease its investment
activities and be liquidated, then Party A shall use its best
efforts to assist Party B to complete its liquidation and
repatriate its surplus assets (if any) as soon as reasonably
practicable and, in any event, within nine (9) months of the
commencement of the liquidation.
CHAPTER 10 NOTICES
ARTICLE 31 Notices to Party A and Party B shall be issued to their
respective addresses or fax numbers as follows:
If to Party A:
To : China-Singapore Suzhou Industrial
Park Development Co. Ltd.
Recipient : Chief Executive Officer
Correspondence : 00xx Xxxxx, Xxxxxxxxxxxxx Xxxxxxxx
Xxxxxxx Xx.0 Xxxxx Xxxx
Xxxxxx Xxxxxxxxxx Xxxx
The Municipality of Suzhou
The Province of Jiangsu
The People's of Republic of China
Fax Number : 512-62881297
If to Party B:
To : Maxtor Technology (Suzhou) Co. Ltd.
Recipient : Chairman of the Board
Correspondence : Xxxx Xx. 00000, Xx Xxxx Xxxx Xxxx
Suzhou Industrial Park
The Municipality of Suzhou
The Province of Jiangsu
The People's Republic of China
Fax Number : 00-0-0000-0000
With copy to:
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To : c/o Maxtor Corporation
Recipient : Xxxxx X. Xxxxxxx, General Counsel
Correspondence : 0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax Number : 0-000-000-0000
ARTICLE 32 If Party A or Party B wishes to change the above-mentioned
correspondence address or fax number, it shall inform the
other Party of the new correspondence address or fax number
two (2) days before such change.
ARTICLE 33 If the notice is sent by fax, it shall be deemed to be
received on the date of transmission; if the notice is sent by
hand, it shall be deemed to be received on the date of
delivery to the address stipulated; if the notice is sent by
registered post, it shall be deemed to be received on the
fourteenth (14th) day after the date of posting. In each case,
if the notice is received on a Saturday, Sunday or public
holiday, it shall be deemed to have been received on the next
following working day.
CHAPTER 11 APPLICABLE LAW AND DISPUTE RESOLUTION
ARTICLE 34 The formation, validity, interpretation and performance of
this Contract and the resolution of any dispute arising from
or in relation to this Contract shall be governed by the laws
of the PRC. In the event that there is no published and
publicly available laws in the PRC governing a particular
matter relating to this Contract, reference shall be made to
general international commercial practices.
ARTICLE 35 Any question, dispute or difference between the Parties
arising from the formation, performance or otherwise in
connection with this Agreement shall first be resolved through
amicable negotiation and friendly consultation between the
Parties. If no resolution is reached within ninety (90) days
of the notice by either Party requesting for resolution
through negotiation and consultation, the question, dispute or
difference shall be submitted to the China International
Economic and Trade Arbitration Commission ("CIETAC") Beijing
Branch in Beijing for final resolution by arbitration in
accordance with the rules and procedures of CIETAC
supplemented by the following:
(a) the arbitration shall be conducted in the English and
Chinese languages. There shall be three (3)
arbitrators, all of whom shall be fluent in English
and Chinese and shall have experience in handling
cases involving land acquisition by foreign
investment enterprises in the PRC;
(b) the English-language text and Chinese-language text
of this Contract shall be the reference text for the
arbitrators;
(c) the arbitration award shall be final and binding on
the Parties, and the Parties agree to be bound
thereby and to act accordingly; and
(d) the costs of the arbitration (including the
arbitration fees and lawyers' fees) shall be borne by
the losing Party.
ARTICLE 36 Party A and Party B hereby represent and warrant that each of
them shall carry out their respective obligations under this
Contract from the date on which this Contract comes into
effect until the full performance thereof.
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CHAPTER 12 EFFECTIVENESS OF CONTRACT AND OTHER MATTERS
ARTICLE 37 This Contract shall come into effect upon signing by Party A
and Party B.
ARTICLE 38 The headings in this Contract are for reference only and shall
not be used to construe or interpret this Contract.
ARTICLE 39 This Contract is written in the Chinese and English language
and both language texts shall have equal validity. If there is
any conflict or inconsistency between the Chinese text and the
English text, the Chinese text shall be the governing and
prevailing version. Party A and Party B shall, as required by
SIPAC, submit the Chinese text for registration. There shall
be six (6) original sets of the Chinese text and four (4)
original sets of the English text. Party A and Party B shall
retain two (2) sets each comprising both the English and
Chinese text of this Contract, SIPAC shall retain two (2) sets
of the Chinese text of this Contract.
ARTICLE 40 Save that it is not inconsistent or in conflict with the
provisions of this Contract and the Land Grant Contract, and
any PRC law and regulation, Party A and Party B may enter into
any supplemental contract in respect of any matter for which
no provision or adequate provision has been made in this
Contract. The supplemental contract(s), the schedules and the
annexure to this Contract shall form part of this Contract and
shall have equal force and effect in law as this Contract.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF the representatives of Party A and Party B have executed this
Contract on the date first written above.
CHINA-SINGAPORE SUZHOU INDUSTRIAL PARK
DEVELOPMENT CO. LTD.
By: /s/ Xxxx Xxx Ping
-------------------------------- (official seal)
Name: Xxxx Xxx Ping
Position: Legal Representative
Nationality: Chinese
MAXTOR TECHNOLOGY (SUZHOU) CO. LTD.
By: /s/ Teh Kee Hong
-------------------------------- (official seal)
Name: Teh Kee Hong
Position: Legal Representative
Nationality: Malaysian
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ANNEXURE 1
LAND SURVEY PLAN FOR THE LAND PARCEL
(see attached)
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[MAP OF LAND SURVEY PLAN FOR THE LAND PARCEL]
ANNEXURE 2
THE WARRANTIES
1 PARTY A
1.1 Party A is a duly organised and validly existing independent legal
person in its place of establishment and has the legal capacity to
enter into this Contract in accordance with its business licence,
articles of association and other relevant documents.
1.2 Party A possesses full power and authority to enter into this Contract
and perform its obligations hereunder and has obtained all relevant
authorisations, consents and approvals required for it to enter into
this Contract and to transfer the land use rights over the Land Parcel
on the terms set out herein. This Contract has been duly executed by
the legal representative of Party A or his duly authorised
representative. This Contract constitutes the legally valid and binding
obligations of Party A, enforceable against Party A in accordance with
its terms.
1.3 All obligations and conditions imposed by the LAB on Party A under the
Land Grant Contract have been fully performed and complied with, and
the Land Grant Premium and any applicable taxes, fees and charges
relating to the grant of the Land Parcel to Party A under the Land
Grant Contract have been paid in full.
1.4 All requirements and procedures in relation to the grant of the Land
Parcel to Party A (including, without limitation, any condition
precedent to a transfer of the land use rights over the Land Parcel)
under the Land Grant Contract have been complied with in accordance
with the relevant PRC laws and regulations.
1.5 Party A has a good, valid and transferrable title to the land use
rights over the Land Parcel as evidenced by a State-owned Land Use
Rights Certificate dated 20 January 2003 (Certificate Number: su gong
yuan xxx xxxx (2003) No. 014), and the legal right to transfer the
rights to the Land Parcel to Party B in accordance with relevant PRC
laws and regulations.
1.6 Party A will procure the transfer of any existing authorisations,
approvals and consents required to develop and carry out construction
on the Land Parcel including, but not limited to, any construction land
planning permit and construction land approvals.
2 THE LAND PARCEL
2.1 The Land Parcel was requisitioned by the State in accordance with PRC
laws and regulations. All relevant compensation, resettlement fees and
expenses as well as related taxes have been paid in full in accordance
with PRC laws and regulations.
2.2 The Land Parcel is located within the Suzhou Industrial Park approved
by the State Council in accordance with its document xxx xxx [1994] No.
9 issued on 11 February 1994.
2.3 The Land Parcel is located within boundary of the Suzhou Industrial
Park Export Processing Zone approved by the State Council in accordance
with its document guo ban han [2000] No. 37 issued on 27 April 2000,
and the General Administration of Customs in accordance with its
document shu shui [2000] No. 482 issued on 24 August 2000. The Land
Parcel will be inspected and accepted by the General Administration of
Customs or its duly authorized designate as an operational part of the
Suzhou Industrial Park Export Processing Zone on or before 31 October
2003.
2.4 The Land Parcel has never been zoned as "essential arable land" by any
PRC governmental authority.
2.5 The Land Parcel is zoned, and may be lawfully used, for industrial
purposes.
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2.6 The Land Parcel is in good condition and is not affected by any
subsidence. There are no existing circumstances which may result in the
extinguishment of the Land Parcel.
2.7 The Land Parcel is free from any liens, mortgages, encumbrances,
guarantees, leases or other third party rights in any form.
2.8 There are no existing structures or other attachments on the Land
Parcel. There are no cables or pipes running over, through or under any
part of the Land Parcel.
2.9 There are no underground trenches, watercourses or canals running under
the Land Parcel.
2.10 There are no occupants on the Land Parcel.
2.11 There are no easements, rights of way, public utilities (other than
public utilities serving the Land Parcel exclusively) or other rights
of access over the Land Parcel in favour of any third parties or any
neighbouring land or property.
2.12 Upon registration of Party B as the owner of the land use rights over
the of the Land Parcel, and issuance of the Title Certificate to Party
B, Party B shall be the sole legally recognised owner of the land use
rights over the Land Parcel, and shall have the exclusive right to use
the Land Parcel without restriction at any time during the tenure free
from all costs, fees, taxes and other charges, save those arising as a
result of the use of the Land Parcel by Party B.
2.13 The Land Transfer Price is not less than the market price for land of
similar size and nature in the Suzhou Industrial Park.
2.14 The Land Parcel has been filled to a level of 2.6 meters above the
Yellow Sea level.
2.15 Infrastructure developments (including the so-called "seven connections
and levelling") at the Land Parcel have been completed in compliance
with the planning requirements applicable to the Land Parcel or (as the
case may be) the connection requirements imposed by the relevant public
utilities suppliers.
2.16 The Utilities will be constructed to the boundary of the Land Parcel at
no charge (including, without limitation, any so-called "capacity
increase fee") to Party B in accordance with the requirements and time
frame set out in Article 19 of this Contract.
2.17 Party B shall have no responsibility for the repair, maintenance,
improvement or reconstruction of any portion of the banks of Xxx Xxxxx
lying to the north of the Land Parcel or the banks of Xxx Xxx Canal to
the west of the Land Parcel; nor will Party B be required to contribute
to the costs of such repair, maintenance, improvement or reconstruction
(if any). The responsibility for such repair, maintenance, improvement
or reconstruction vests solely on the Suzhou City Navigation Bureau and
the Suzhou Industrial Park Public Utilities Property Management Company
respectively.
2.18 (a) The Land Parcel has complied with and is complying with all
applicable environmental laws and regulations.
(b) The Land Parcel is not and has not been used for any
industrial or polluting purposes, and the Land Parcel is not
and has not been contaminated by any polluting or dangerous
substances or items.
(c) No discharge, release, leaching, emission or escape into the
environment of any polluting or dangerous substances has
occurred or is occurring from the Land Parcel.
2.19 The Land Parcel was not and is not the subject of any litigation,
arbitration or administrative proceedings, and no such proceedings are
threatened or pending. Party A's title to the Land Parcel is not
disputed by any person for any reasons.
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2.20 There is no unsatisfied judgment, order, decree or decision of any
court or any governmental authority outstanding or existing against (i)
Party A which may have an adverse effect upon the Land Parcel or (ii)
the Land Parcel directly, and no order or application has been made in
respect of the bankruptcy or liquidation of Party A.
3 GENERAL
All information contained in this Contract and in the documents
referred to in this Contract and all other information concerning Party
A and the Land Parcel supplied during the course of negotiations
leading to the signing of this Contract to Party B was, when given,
true, complete and accurate in all respects and there is no fact or
matter which has not been disclosed which renders any such information
or documents untrue, inaccurate or misleading at the date of this
Contract or which if disclosed, might reasonably be expected to
influence adversely Party B's decision or willingness to purchase the
land use rights over the Land Parcel on the terms of this Contract.
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