EXHIBIT 4.46
SHANGHAI COMMERCIAL HOUSE LEASE CONTRACT
(Contract No.__________)
Between
Party A(Lessor): Shanghai Allianz Investment and Development Company
Party B (Lessee): Shanghai Linktone Consulting Co., Ltd.
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According to the provisions of the Contract Law of the People's Republic
of China and Shanghai Municipal Regulations on Rental of Houses("Regulations"),
both parties have entered into this Contract with respect to Party A leasing to
Party B a commercial office that can be legally leased by Party A, and Party B
renting such office under the principles of equality, voluntariness, justice
and good faith.
ARTICLE 1 LOCATION OF THE PREMISES
1.1 Party A agrees to lease to Party B the 5th Floor of Eastern Tower located at
Xx. 000, Xxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx (the "Premises"), the
total coverage of the Premises is 3,101.77 square meters (measured through
survey). The purpose of the Premises is for office work, of a comprehensive
nature and the structure thereof is steel and concrete. Layout of the Premise is
attached hereto as Exhibit 1. At the time of signing of this Contract, Party A
has already presented to Party B:
Pre-sale license No. Huangfangdiyuzi 014-2001.
1.2 As the property owner of the Premises, Party A hereby establishes a leasing
relationship with Party B. Before signing this Contract, Party A has informed
Party B that no encumbrance exists with respect to the Premise.
1.3 In the case of matters as to scope, conditions and requirements for public
areas and co-areas; conditions of existing decorations and ancillary facilities
and equipment; and decorations and ancillary facilities to be added by Party B
upon Party A's approval, they will be set out in Exhibit 2 and Exhibit 3 hereto,
and the two parties agree that these two exhibits will be used as a basis for
inspection and acceptance when Party A delivers the Premises to Party B and when
Party B returns it to Party A at the time of termination hereof.
ARTICLE 2 USAGE
2.1 Party B hereby promises to Party A that the Premises shall be limited for
use to Party B's office work and in compliance with state and local regulations
as to house usage and property management.
2.2 Party B promises that, without Party A's written consent and the relevant
government authorities' approval, it will not arbitrarily change the usage
described above during the term of lease.
ARTICLE 3 DATE OF DELIVERY AND TERM OF LEASE
3.1 Date of Delivery. Party A agrees to deliver to Party B the Premises prior to
March 24, 2004. The term of lease will commence from March 24, 2004 and end on
March 23, 2007.
3.2 Upon expiration of the term of lease, Party A shall have the right to take
back the Premises, and Party B shall hand over the same on time. If Party B
wishes to extend the lease, Party B shall submit to Party B in written form its
intent at least 3 months prior to the expiration of the lease, and both parties
shall thereafter negotiate to extend this Contract.
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ARTICLE 4 RENT AND METHODS AND TIME OF PAYMENT
4.1 The two parties hereby agree that, the daily rent for the Premise is RMB
2.6496 yuan per square meter. Based on the floor coverage of the Premises, the
monthly rent during the term of lease shall be RMB 249,977.84 yuan.
The ratio of the rent will not change for three years. Matters as to adjustment
of rent will be agreed by both parties pursuant to the Supplementary Provisions.
4.2 Party B shall pay the rent for the current month within 10 days upon receipt
of payment notice issued by Party A. For any payment overdue, Party B shall be
obliged to pay liquidated damages at the rate of 0.3% of the daily rent.
4.3 Party B shall pay the rent by means of bank transfer.
ARTICLE 5 DEPOSIT AND OTHER EXPENSES
5.1 The two parties agree that, Party B shall pay a deposit equivalent to 3
months' rent (i.e. RMB 749,933.52 yuan) to Party A when Party A delivers the
Premises to Party B.
After receiving the deposit, Party A shall issue a receipt to Party B.
Upon termination hereof, the deposit received by Party A shall be returned to
Party B interest-free, excluding the part used to offset the expenses that shall
be borne by Party B according to this Contract.
5.2 During the term of lease, expenses arising out of use of water, electricity,
gas, communication devices, equipment and property management, as well as repair
and maintenance expenses for equipment added by Party B, shall be borne by Party
B. Other relevant expenses will be borne by Party A.
5.3 Above expenses assumed by both parties shall be paid by each party
respectively.
ARTICLE 6 HOUSE USE REQUIREMENTS AND REPAIR RESPONSIBILITIES
6.1 During the term of lease, in case Party B discovers any damage or breakdown
of the Premises and ancillary facilities, it shall inform the situation to Party
A promptly; Party A shall carry out repairs within one business day upon receipt
of notice from Party B. If Party A fails to do so in time, Party B may carry out
the repair, at the expense of Party A.
6.2 During the term of lease, Party B shall be responsible for the protection of
internal facilities of the Premises and keep the Premises at all times in good
condition. Party B shall be responsible for repair in case of any damages or
breakdown to the Premises or ancillary facilities due to unreasonable operation
or use by Party B. If Party B refuses to repair, Party A will carry out the
repair, provided however, Party B shall be liable for all the expenses arising
therefrom.
6.3 During the term of lease, Party A shall ensure that the Premises and the
ancillary facilities remain in usable and safe condition. Party A shall provide
one business day's prior notice to Party
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B of any inspection, repair and maintenance of the Premises and ancillary
facilities, and shall adopt all the measures to reduce the impact on Party B's
use of the Premises. Party B shall actively assist Party A under such
circumstances.
6.4 If Party B requires additional decorations or ancillary facilities and
equipment in addition to those set forth in Exhibit 3 hereto, it shall first ask
Party A for approval; or where government approval is required, Party A shall
authorize Party B to apply for the approval at the relevant government
authorities. Ownership of such additional facilities/equipment and repair and
maintenance responsibilities with respect thereto shall be otherwise agreed by
the two parties.
ARTICLE 7 HANDOVER OF THE PREMISES
7.1 Unless Party A agrees that Party B may extend the lease, Party B shall
handover the Premise to Party A immediately upon expiration of the term of
lease. If Party B fails to handover the Premises within such time limit, Party B
shall pay liquidated damages to Party of RMB 5.2992 yuan per square meter
leased for each day overdue.
7.2 At the time of such handover, the Premises shall be in a condition
consistent with that agreed by both Parties in the Amendment. And at the time of
the handover, the Premises shall be inspected and accepted by Party A, and the
two parties shall settle the expenses that they are respectively responsible
for.
ARTICLE 8 SUBLEASE, ASSIGNMENT AND EXCHANGE
8.1 Except for subleases approved by Party A pursuant to the Supplementary
Provisions, Party B shall not sublease the Premise, whether in part or in whole,
to others unless Party B has obtained the written consent from Party A 15 days
in advance. However, a room in the Premises cannot be divided and subleased.
8.2 If Party B intends to sublease the Premises, it shall sign a sublease
contract with the sub-lessee, and shall file the contract with the real estate
transaction center or the farm system real estate handling department in the
district/county where the Premises is located, pursuant to relevant regulations.
8.3 If Party B intends to assign its right as a lessee hereunder or exchange the
Premises with another leased premise during the term of lease, then Party A's
prior written consent is required. After the assignment or exchange, the
assignee or the person with which the Premises has been exchanged shall sign a
contract for change of lease and shall continue to perform this
Contract.
8.4 If Party A intends to sell the Premises during the term of lease, it shall
inform Party B three months in advance. Party B shall enjoy the pre-emptive
right to purchase against others under the same transaction conditions.
ARTICLE 9 TERMINATION OF THE CONTRACT
9.1 The two parties agree to terminate the contract in the event of any
circumstances set forth below during the term of lease, and in such case, the
two parties shall not be liable to one other:
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1) the land occupancy right with respect to the Premises has been legally
revoked prior to expiration;
2) the Premises has been expropriated for public interest;
3) the Premises will be dismantled due to the need of urban construction;
4) the Premises is already destroyed, lost or has been determined as dangerous;
5) Party A has informed Party B that an encumbrance exists with respect to the
Premises subject to the lease, and now Party A is undergoing penalization by the
relevant authorities.
9.2 The two parties agree that, in the event of one of following circumstances
either party may terminate the contract by providing the other a written notice.
The breaching party shall pay the liquidated damages to the other equivalent to
two times the monthly rent; and shall compensate the non-breaching party for the
difference between the loss to the non-breaching party caused by the breaching
Party and the liquidated damages:
1) Party A fails to deliver the Premises in time, and also fails to do so within
ten days upon notice by Party B;
2) the Premises delivered by Party A fails the standards herein, which leads to
unrealizability of the purpose of the lease; or such Premises has defects which
jeopardizes Party B.
3) Party B changes the usage of the Premises without written consent from Party
A, and leads to damage to the Premises;
4) Damage to main structure of the Premises due to Party B's fault;
5) Party B, without due permission, sublets the Premises, assign its rights
hereunder or exchange the Premises with others;
6) Party B default on the rent for over one month.
ARTICLE 10 BREACH-OF-CONTRACT LIABILITIES
10.1 If the Premises has defects when delivered, Party A shall repair within ten
days upon delivery; if Party A fails to do so, Party A agrees to reduce the rent
and change the provisions as to rent herein.
10.2 If Party A fails to inform Party B of any encumbrance with respect to the
Premises and therefore has caused loss to Party B, Party B shall compensate the
loss.
10.3 If Party A fails to perform its duties herein as to repair and maintenance
and leads to damage to the Premises and loss of Party B's property and injury to
Party B's body, Party A shall be liable for such loss/injury.
10.4 Except otherwise permitted herein, If Party A takes back the Premises
earlier, it shall pay an mount equal to four months' rent to Party B as
liquidated damages, If such damages is insufficient to offset Party B's loss,
Party A shall make up the shortfall.
10.5 Party A may ask Party B to restore the Premises to its original condition
if Party A decorates the Premises or adds ancillary facilities without or beyond
the scope of consent of Party A.
10.6 Except otherwise permitted herein, If Party B returns the Premises in the
middle of the term of lease, it shall pay an amount equal to four months' rent
to Party A as liquidated
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damages. If such damages is insufficient to offset Party A's loss, Party B shall
compensate for the remaining loss, and Party A may deduct from the security
deposit to offset its loss. If such funds are insufficient, Party B shall
otherwise make up the shortfall.
ARTICLE 11 OTHER MATTERS
11.1 During the term of lease, If Party A needs to mortgage the Premises, it
shall inform Party B in writing, and promise to Party B that it will request
Party B in writing of Party B's intention of purchasing the Premises after the
Premises is mortgaged and thirty days prior to being sold by the parties of the
mortgage.
11.2 This Contract shall take effect upon execution by the two parties. Within
15 days upon execution, Party A shall file the contract with the real estate
transaction center or the farm system real estate handling department in the
district/county where the Premises is located. Once the contract has been filed
for record, Party A shall be responsible for handling procedures for alteration
and termination of the Contract at the original registration body, within 15
days upon such alteration/termination. If Party A fails to do so, it shall be
liable for all legal consequences.
11.3 In the case of any other matters not specified herein, the two parties may
negotiate Supplementary Provisions hereto. Supplementary Provisions and Exhibits
hereto together are an integral part hereof. Words filled in the blanks in the
Supplementary Provisions and exhibits in handwriting have the same force as
printed words.
11.4 When signing this Contract, the two parties fully understand their
respective rights, obligations and liabilities hereunder, and are willing to
strictly perform this Contract. If either party breaches the Contract, the other
has the right to claim against the breaching party of the loss.
11.5 If any disputes arise with respect to the Contract, the two parties shall
first resolve it through consultation; if consultation fails, the two parties
will submit the matter for arbitration.
11.6 This Contract, together with exhibits, is signed in three copies, one for
Party A, one for Party B and one for the Shanghai Huangpu District Real Estate
Transaction Center or Farm Bureau Handling Section. All copies will have the
same legal force.
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SUPPLEMENTARY PROVISIONS
OTHER MATTERS
I. Property management fee is RMB 30 yuan per square meter floorage/month.
Central air conditioning supply time: 8:30 am-8:00 pm Monday to Friday, 10:00 am
-4:00 pm Saturday and Sunday (excluding public holidays). Overtime air
conditioning fee shall be XXX 000 yuan/h for each 1500 square meter floorage.
II. Party B shall pay a deposit equivalent to 3 months' rent within 7 days upon
execution of this Contract (deposit for property management fee shall be paid to
the property management company directly by Party B). Upon receipt of above
deposit, Party A will allow Party B to enter the Premises to conduct decoration.
Party A agrees to offer a rent-free period as from the day when Party B enters
the Premises till October 19, 2004. If Party B finishes decoration and passes
the fire-fighting facility and quality inspection during the rent-free period,
it can move into the Premises earlier. Party B will be exempt from rent during
the rent-free period, but will have to pay expenses arising from usage of the
Premises, such as property management fee.
III. The term of this Contract is three years, and rent will remain unchanged in
this term. Upon expiration of the term, Party B shall enjoy the right of
priority for extension under the same conditions, and the rent at that time will
not exceed 120% of the current rent.
IV. During the term of lease, upon a four months' prior written request by Party
B, Party A is obliged to offer suitable available space in the building to Party
B for Party B's expansion of its lease.
V. Delivery Requirements: suspended ceiling designed by Party A; smooth ground;
and low-lying part on the southern side shall remain unchanged. Party B's
decoration and construction schemes shall first be submitted to Party A for
review, or to relevant government authority for approval if so required. Party B
shall be responsible for submission to the authority at its own expense, and
Party A shall assist Party B in doing so. Party B is not required to restitute
the Premises upon expiration of the term of lease.
The two parties generally agree that, Party B will conduct second-time
decoration directly based on the current condition of the Premises, and Party A
shall compensate Party B for the decoration cost arising in the period during
which the Premises transitions from the current condition to a condition
satisfying the delivery requirements as described above, and other expenses
shall be borne by Party B. The two parties will otherwise sign an agreement as
to this matter.
VI. During the term of lease, Party A will offer parking spaces for two cars to
Party B without charge, with the specific location of such spaces to be
determined by Party A. Additional parking spaces may be rented from Party A at
the price of RMB1,200 yuan/month/space.
VII. During the term of lease, Party B shall cause its employees to enter and
exit the building by taking the sightseeing lift on the side of Beijing East
Road. Party A will allow Party B to post name boards in the lift or on the
external wall thereof.
VIII. The load capacity of the Premises is designed to be 250kg/square meter.
Party A will provide Party B with 100 telephone lines and several DDN lines, and
will satisfy Party B's demand on power resources and capacity.
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Party B shall itself apply to the relevant government authorities for voice and
data telecom lines, and the expenses with respect to such application and
installation and daily-use shall be borne by Party B.
IX. Party A agrees that, Party B may use the meeting room on the sixth floor one
day for free every three months during the term of lease; on other days during
the term of lease, Party B will enjoy a 40% discount when using the room
(excluding service fee).
X. Party B voluntarily and unconditionally waives the pre-emptive right when
Party A or its successor sells a part of or the entire Premises or parking
spaces (if applicable) during the term of lease (including extended term). Party
A's disposal of the Premises shall not impair Party B's right hereunder.
XI. While Party A exercises its right to unilaterally terminate the Contract
when Party B breaches this Contract (as described in Article 9.2), Party A may
dispose of Party B's articles in the Premises after a week's prior written
notice. If Party B does not respond during such notice period, Party A may
dispose of the articles and provide a list of such articles thereafter to Party
B. Earnings from the disposal shall be used to compensate Party A's loss, and
the remaining earnings shall be returned to Party B. If the earnings is not
sufficient to recoup the loss, Party B shall make up the shortfall.
XII. Upon a week's prior written notice to Party B, Party A has right to dispose
of articles of Party B left in the Premises as waste upon termination of the
Contract.
XIII. Party A and Party B shall pay its respective taxes on its own.
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Exhibit 1
Layout of the Premise (Omitted)
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Exhibit 2
Scope, Conditions and Requirements of the Premise
Commitment Letter
To: Shanghai Allianz Investment and Development Company and Manager of the
Eastern Tower:
To maintain the owners/users of all suites in the Eastern Tower("the Tower") and
promote the management of the Tower, I (we)/our company, as the lessee of
Suite______, ____ Floor (No.____ parking space) of the Eastern Tower("the
Tower"), hereby states:
Carefully read the Management Covenant for Eastern Tower at Xx. 000, Xxxxxxx
Xxxx Xxxx, Xxxxxxxx, XXX (which may from time to time be amended and
supplemented by relevant documents) signed between Shanghai Allianz Investment
and Development Company and Shanghai Mingtian Property Management Co., Ltd,
I/we/our company hereby commit that:
1. use the leased space in the Tower and public areas and facilities in
accordance with the Management Covenant;
2. not change the structure of the Tower, such as bearing walls, beams and
pillars, and will not add, expand or remove any part of the Tower; not change
the original color of the certain wall; not install any sculptures, blinds,
awnings, flower shelves, antennas, flagpoles, lamp box, etc.;
3. keep the Premises clean and in good condition, keep drainage system
functioning, and avoiding overflowed water causing loss to others;
4.not block, cut, damage, alter or interfere with any supply of water, power and
air-conditioning and drainage pipes, cable fixed devices, etc. in public areas;
5. not use the Premises in a illegal or immoral way; and not conduct activities
in the Premises that would disturb others;
6. not raise livestock or pets in the Tower;
7. not hold funerals, religious ceremonies or other similar activities in the
Tower;
8. not engage in any activities that would cause any insurance purchased by the
Tower become invalid in part or in whole, or lead to the increase of the
premium;
9. not store flammable and explosive goods in the Tower;
10. not impede others in reasonably using public areas/facilities; not hang
clothes or dump wastes in public areas;
11. not alter, move or expand power and water capacity without permission from
the management department;
12. be liable for any expenses and losses resulting from my/our breaching of the
Management Covenant or harm to the Tower in any way;
This commitment letter will take effect on the day when this Contract is
executed.
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Exhibit 3
Acknowledgement on Existing Decorations, Ancillary Facilities and
Equipments
Central air conditioner installed; standard suspended ceilings (quality and
location of spray heads and fire alarm devices remain unchanged); ground has
been chipped even.
Agreement on Party B's Self-Decoration and Additions to
Ancillary Facilities and Equipments
Conditioned on compliance with fire-fighting and quality inspection
requirements, Party B may conduct decorations based on the current status
acknowledged above.
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The two parties has signed this Contract on March 22, 2004 at 00xx Xxxxx, Xx.
000, Xxxxxxx Xxxx Xxxx, Xxxxxxxx000000, XXX.
Party A(Lessor): Shanghai Allianz Investment and Development Company (sealed)
Address: 00xx Xxxxx, Xx. 000, Xxxxxxx Xxxx Xxxx, Xxxxxxxx000000, XXX.
Party B (Lessee): Shanghai Linktone Consulting Co., Ltd. (sealed)
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AMENDEMENT TO SHANGHAI COMMERCIAL HOUSE LEASE CONTRACT
Between
Party A(Lessor): Shanghai Allianz Investment and Development Company
Party B (Lessee): Shanghai Linktone Consulting Co., Ltd.
Whereas,
The two parties signed a Shanghai Commercial House Lease Contract(the
"Contract")the as to lease of 5th Floor of Eastern Tower located at Xx.000,
Xxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx (the "Premise") on March 19, 2004.
The two parties hereby sign an amendment to the Contract through consultation:
1. Considering the difference between current status of the Premises and
delivery conditions thereof and according to the Contract, Party A agrees that,
the decoration company engaged by Party B will conduct first-time and
second-time decoration based on the current status of the Premise, and Party A
shall compensate Party B for the decoration cost arising in the period during
which the Premises transforms from the current status into a status satisfying
the delivery requirements as described in the Contract, and other expenses shall
be borne by Party B.
2. Blower fan pipes of central air-conditioner and spray and fire alarm devices
in the Premises shall be deployed in accordance with the first-time decoration
standards provided by Party A and approved by Party B, and Party B shall be
responsible for construction and relevant expenses for these devices. Specific
construction schemes of Party B might be adjusted with reference to second-time
decoration schemes of Party B, but costs arising out of additional functions
incurred in first and second decorations shall be borne by Party B.
3. Suspended ceilings in the Premises shall be installed by the decoration
company engaged by Party B, in accordance with the first-time decoration scheme
provided by Party A. Party B will pay the decoration fee for the ceilings
directly to the decoration company.
4. Lightings in the Premises will be supplied by Party A, ancillary materials
will be provided by Party B, and lightings will be installed by the decoration
company engaged by Party B, relevant labor cost and material cost will be paid
by Party B. Lightings provided by Party A include: 180 sets of grid lamps for
public office areas and 46 sets of passage lamps. Party B can only adjust the
type and quality of lamps upon Party A's approval, and at its own expense.
Remaining lamps after adjustment shall be returned to Party A.
5. Ground of the Premises shall be smoothed by laying concrete on it, and will
be carried out by the decoration company engaged by Party B, at the expense of
Party B. Party A will provide assistance as necessary.
6. Party A shall be responsible for constructing broadcasting system in the
light current part and bear relevant expenses. As for other light current
systems, Party A will furnish interface
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in the floor, and technicians or decoration companies engaged by Party B shall
be responsible for connecting them with the user's end, at the expense of Party
B.
7. The two parties hereby agree that the Premises handed back by Party B upon
termination of the Contract may be in a condition same as that upon the
second-time decoration as described in the Amendment and need not to be restored
to the original status.
8. Considering the current status of the Premises and for the sake of
compensating Party B's decoration cost as described in Article 1 in the
Amendment, Party A agrees to extend the rent-free period to 7 months, i.e. from
Party B's entrance to the Premises till October 19, 2004.
9. This Amendment is attached to the Contract and has the same legal force as
the Contract.
10. Definitions referred to in the Amendment shall mean the same as in the
Contract. Matters not involved in the Amendment shall be governed by the
Contract.
11. Disputes arising in the Amendment shall be subject to same resolution means
as described in the Contract.
12. This Amendment is signed in four copies, two for Party A and another two for
Party B, and shall take effect upon execution by both parties.
The two parties has signed this Contract on March 22, 2004 at 00xx Xxxxx, Xx.
000, Xxxxxxx Xxxx Xxxx, Xxxxxxxx000000, XXX.
Party A(Lessor): Shanghai Allianz Investment and Development Company (sealed)
Representative:
Party B (Lessee): Shanghai Linktone Consulting Co., Ltd. (sealed)
Representative:
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