Exhibit 10.7
BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.
and
CHINA FINANCE ONLINE (BEIJING) CO., LTD.
EQUIPMENT LEASE AGREEMENT
EQUIPMENT LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT ("this Agreement") is entered into on this 27th
day of May, 2004 by and between Beijing Fuhua Innovation Technology Development
Co., Ltd. ("Party A"), a company organized and existing under the laws of the
People's Republic of China (the "PRC"), and China Finance Online (Beijing) Co.,
Ltd. ("Party B"), a wholly foreign-owned enterprise organized and existing under
the laws of the PRC. Each of Party A and Party B shall hereinafter individually
be referred to as a "Party" and collectively as the "Parties".
I. ARTICLE 1 - DEFINITIONS
Unless this Agreement defines or the context requires otherwise, the following
terms shall have the meanings given below when used in this Agreement:
1.1 "Term" shall mean the term of this Agreement as stated in Article 2.3
hereof;
1.2 "Equipments" shall mean the equipments leased by Party B to Party A as
requested by Party A from time to time (particulars of Equipments are shown in
relevant confirmation letter which specifies transferred equipments from time to
time).
II. ARTICLE 2 - GENERAL TERMS
2.1 Party B hereby agrees to lease to Party A, and Party A hereby agrees to rent
from Party B, the Equipments pursuant to the terms and conditions of this
Agreement.
2.2 Unless otherwise agreed by Party B in writing, Party A shall not rent any
equipment from any third party.
2.3 This Agreement shall be effective upon execution hereof by authorized
representatives of the Parties (the "Effective Date") and shall remain effective
for a period of ten (10) years. Party A shall not terminate this Agreement
within the term of this Agreement.
2.4 Monthly rental payable by Party A to Party B under this Agreement shall be
based on the value of the leased Equipments as determined by both Parties under
actual circumstances. Party A shall make Rental payments to Party B on a
quarterly basis.
III. ARTICLE 3 - RENTAL
3.1 Unless this Agreement is terminated in accordance to the permissible terms
hereof, Party A shall pay Party B the Rental as set forth in Section 2.4 hereof
in consideration of the use of Equipments by Party A on a quarterly basis in
accordance with Sections 3.2, 3.3 and 3.4 below.
3.2 The Rental for each quarter shall be payable within thirty (30) days of the
last day of such quarter.
3.3 The Rental shall be paid in the currency of RMB to a bank account opened
with a PRC bank by Party B (Party B shall provide Party A in writing the details
of the said account).
3.4 In the event that Party A fails to make payment of the Rental to Party B on
the due date under this Agreement, Party B shall be entitled to demand the
payment of the Rental by issuing a written notice to Party A. Upon the receiving
of such notice, Party A shall thereafter pay Party B an overdue interest on the
amount outstanding. The annual rate of the said overdue interest shall be the
aggregate of (i) the interest rate for short term commercial loans published on
such due date by the People's Bank of China, and plus (ii) two percent (2%).
3.5 The Rental paid by Party A to Party B under this Agreement shall be the only
fees payable by Party A with respect of the Equipments and the leasing of the
Equipments hereunder. Unless otherwise expressly provided herein,
Party A shall not be requested nor obliged to pay any other fee to Party B with
respect of Party B's leasing of the Equipments to Party A or the performing of
obligations hereunder by Party B.
IV. ARTICLE 4 DELIVERY OF THE EQUIPMENTS
Upon request of Party A, Party B shall deliver the Equipments, including all
documents necessary for the use of the Equipments, to Party A in a timely
manner.
V. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PARTY B
Party B hereby represents and warrants to Party A as follows:
5.1 Corporate Status and Good Standing. Party B is an enterprise duly organized,
validly existing and in good standing under the laws of the PRC, with full
corporate rights and authority under its current Business License to operate and
to conduct its business.
5.2 Authorization. Party B has full corporate rights and authority under its
Business License to execute and perform this Agreement. On or prior to the
Effective Date, Party B shall have taken all actions necessary to consummate the
transactions contemplated hereby or required to be taken by Party B pursuant to
the provisions hereof. This Agreement constitutes the valid and binding
obligation of Party B enforceable in accordance with its terms.
VI. ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PARTY A
Party A makes the following representations and warranties to Party B with the
intention of inducing Party B to enter into this Agreement and to consummate the
transactions contemplated hereby, and Party A is aware that Party B will enter
into this Agreement in reliance on such representations and warranties:
6.1 Corporate Status and Good Standing. Party A is a corporation duly organized,
validly existing and in good standing under the laws of the PRC, with full
corporate power and authority under its Articles of Association and Business
License to conduct its business.
6.2 Authorization. Party A, with full corporate power and authority under its
Articles of Association and Business License, has taken or will have taken on
the Effective Date all necessary corporate actions to authorize the execution
and performance of this Agreement, and the consummation of the transactions
contemplated hereby. This Agreement constitutes the valid and binding obligation
of Party A enforceable in accordance with its terms.
6.3 Non-Contravention. To the knowledge of Party A, neither the execution and
performance of this Agreement nor the consummation of the transactions
contemplated hereby does or will violate, conflict with, result in a breach of
any material provision of, constitute a default under, result in the termination
of or permit any third party to terminate or accelerate the performance required
on the part of Party A by the terms of, or accelerate the maturity of or require
the repayment of any indebtedness of Party A under, any judgment, order, decree
or material agreement or instrument to or by which Party A or any of its assets
is subject to or bound by.
6.4 Governmental Approvals. No filing with, consent of or approval by any
governmental, administrative or regulatory body, agency or commission is
required on the part of Party A in connection with Party A's leasing of the
Equipments from Party B under this Agreement.
VII. ARTICLE 7 - ASSIGNMENT OF INTERESTS
Neither Party shall be entitled to assign or otherwise transfer any of its
interests under this Agreement, whether in part or in whole, without the prior
written consent of the other Party.
VIII. ARTICLE 8 - EXTENSION OF AGREEMENT
This Agreement shall become effective upon signing by the authorized
representatives of both Parties and shall be effective for ten (10) years
thereafter. This Agreement shall remain effective during the term hereof and
will be automatically renewed upon expiry of each term unless Party B notifies
Party A of its intention not to renew thirty (30) days before the current term
expires.
IX. ARTICLE 9 - FORCE MAJEURE
9.1 Should either Party be prevented wholly or in part from fulfilling any of
its obligations under this Agreement for reasons of force majeure, such
obligation shall be suspended to the extent and for as long as such obligation
is affected by the force majeure. The Party claiming force majeure under this
Article 9 shall be entitled to such extension of time to fulfill such obligation
as may be reasonably necessary in the circumstances, subject to the provisions
of Article 9.3 below.
9.2 Force majeure hereunder shall be defined as any unforeseeable events, the
happening and consequences of which are unpreventable or unavoidable, including
but not limited to earthquake, typhoon, flood, fire, embargoes, riots or war,
but shall exclude the financial difficulties of the Party claiming force
majeure.
9.3 Within seven (7) days from the date of commencement of any event of force
majeure or as soon as practicable thereafter, the Party affected shall advise
the other Party by effective means of communication of the occurrence of such
event and of the date when such event commenced; likewise, within seven (7) days
after the end of such event, the Party affected shall advise the other Party by
facsimile or e-mail of the date when such event ends, and shall also specify the
re-determined time by which the performance of its obligations hereunder is to
be completed.
In case one Party fails to acknowledge such notification hereunder
within fourteen (14) days after receipt hereof, the date of dispatch of
communication shall be considered to be the date of notification, provided,
however, that e-mail shall be confirmed in writing subsequent to the said date
of dispatch.
X. ARTICLE 10 - EXECUTION
This Agreement shall become effective upon the execution hereof by the duly
authorised representative of each Party.
XI. ARTICLE 11 - DISPUTE RESOLUTION
All disputes arising from the execution of, or in connection with this Agreement
shall be settled through amicable negotiations between the Parties.
If no settlement can be reached through amicable negotiations, the dispute shall
be submitted to the China International Economic and Trade Arbitration
Commission (CIETAC) Beijing Commission for arbitration, in accordance with its
then effective arbitration rules. There shall be three arbitrators. The language
used for the arbitration shall be Chinese.
The arbitral award shall be final and binding on both Parties. The costs of the
arbitration shall be borne by the losing Party, unless the arbitration award
stipulates otherwise.
XII. ARTICLE 12 - NOTICE
12.1 Any notices or other communication required to be given under this
Agreement by a Party shall be given to the other Party to the respective address
below by air-mail, telefax or e-mail.
Important notices which involved the rights and/or obligations of
either Party shall be in writing and sent by facsimile transmission, and shall
be subsequently confirmed by registered air-mail with postage prepaid, to the
respective addressee at the addresses given below.
12.2 The addresses for exchange of correspondence of the Parties hereto are as
follows:
For Party A:
Beijing Fuhua Innovation Technology Development Co., Ltd.
Address: Xxxx 000, Ping'an Mansion, Xx. 00 Xxxxxxxxx Xxxxxx,
Xxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Postal Code: 10032
Fax: 0000-0000-0000
For Party B:
China Finance Online (Beijing) Co., Ltd.
Address: Xxxx 000X, Ping'an Mansion, Xx. 00 Xxxxxxxxx Xxxxxx,
Xxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Fax: 0000-0000-0000
12.3 Any change of either Party's address shall be notified to the other Party
in the manner provided above immediately after such change becomes effective.
XIII. ARTICLE 13 - MISCELLANEOUS
13.1 This Agreement is executed in Chinese.
13.2 Failure or delay on the part of any Party hereto to exercise any right,
power or privilege under this Agreement shall not operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or privilege
preclude any future exercise thereof.
13.3 The invalidity of any provision of this Agreement shall not invalidate any
other provision or provisions thereto, unless and to the extent where the
Parties are aware of the invalidity of the provision prior to signing this
Agreement, they could not reasonably have been expected to have agreed to such
other provision or provisions.
13.4 This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof and supersedes all prior discussions,
negotiations and agreements between them.
13.5 No variation of or supplement to this Agreement shall be effective unless
the Parties have agreed in writing and have respectively obtained the required
authorizations and approvals (including an approval that Party B must obtain
from the audit committee or other independent institution, which has been
established under the Xxxxxxxx-Xxxxx Act and the NASDAQ Rules, of the board of
directors of Party B's overseas holding company, China Finance Online Co.,
Limited).
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized signatories as of the day and year first
written above.
[execution page only]
Party A: Beijing Fuhua Innovation Technology Development Co., Ltd.
(Seal)
Authorized representative: [/s/ COMPANY SEAL]
(Signature) ____________________
Party B: China Finance Online (Beijing) Co., Ltd.
(Seal)
Authorized representative: [/s/ COMPANY SEAL]
(Signature) ____________________
