.
.
.
EXHIBIT 4.42
GF-2000-2601
Contract Reference No.: 0001249
STATE-OWNED LAND USE RIGHT GRANT CONTRACT
PREPARED UNDER THE SUPERVISION OF THE MINISTRY OF LAND AND RESOURCES OF THE PEOPLE'S REPUBLIC OF
CHINA
THE ADMINISTRATION FOR INDUSTRY AND COMMERCE OF THE PEOPLE'S
REPUBLIC OF CHINA
1
STATE-OWNED LAND USE RIGHT GRANT CONTRACT
CHAPTER ONE GENERAL PRINCIPLES
ARTICLE 1
Parties to this State-owned Land Use Right Grant Contract (this "Contract"):
Grantor: LIANYUNGANG MUNICIPAL ADMINISTRATION OF LAND AND RESOURCES of Jiangsu
Province Grantee: YANGGUANG SOLAR TECHNOLOGY CO., LTD.
In accordance with the Land Administration Law of the People's Republic of
China, the Urban Real Estate Administration Law of the People's Republic of
China and the Contract Law of the People's Republic of China (the "PRC" or
"China"), other relevant PRC laws and regulations, and local laws, the Grantor
and the Grantee hereby enter into this Contract by adhering to the principle of
equality, voluntariness, paid-use and good faith.
ARTICLE 2
The Grantor hereby grants the land use right contemplated hereunder pursuant to
the authority conferred to it under law. The ownership of the land covered under
the land use right granted hereunder (the "Granted Land") is vested in the PRC.
The State has the jurisdiction and administrative right conferred by the PRC
Constitution and statutes, any other powers required to be exercised by the
State under the PRC laws, and any other rights necessary for the public
interest. Any underground resources, buried property and public utilities shall
not be covered under the land use right granted hereunder.
CHAPTER TWO DELIVERY OF THE GRANTED LAND AND PAYMENT OF THE LAND USE FEE
ARTICLE 3
The plot on which the Granted Land lies is situated along the west side of
Xingang Road and the north side of Jing'er Road in Dapu Industrial Zone and
numbered as __________. The plot has a total area of One Million, One Hundred
square meters (1,000,100m(2)), of which One Million, One Hundred square meters
(1,000,100m(2)) is covered under the Granted Land. The four boundaries and the
coordinate of the boundary markers are set forth in the Boundary Map of the
Granted Land attached hereto as an exhibit.
ARTICLE 4
The Granted Land hereunder shall be used for industrial purposes.
ARTICLE 5
The Grantor agrees to deliver the Granted Land to the Grantee prior to August
31, 2005 and that the Granted Land shall at the time of the delivery, meet the
conditions specified in Section 5.1 below:
2
5.1 The site shall be leveled and the area shall have an access to six public
utilities, i.e., roads, communications, power supply, water supply, sewer
discharge and rain drainage.
5.2 The area shall have an access to ______public utilities, i.e.,
_________________, but the site is neither vacated nor leveled, and the
conditions of the buildings and other structures on the land are as follows:
_________________.
5.3 The Granted Land shall be delivered as it is.
ARTICLE 6
The term of the land use right to be granted hereunder shall be 50 years (the
"Term"), commencing from the date on which the Granted Land is actually
delivered to the Grantee by the Grantor, or the date on which this Contract is
executed where this Contract is intended for the conversion of the land use
right originally allocated to the Grantee into the granted land use right.
ARTICLE 7
The unit land use right grant fee for the grant of the Granted Land hereunder
shall be One Hundred and Sixty Renminbi Yuan per square meter (RMB160/m(2)) and
the total land use right grant fee (the "Land Use Fee") shall be One Hundred and
Sixty Million, Sixteen Thousand Renminbi Yuan (RMB160,016,000).
ARTICLE 8
Within _______days as of the execution of this Contract, the Grantee shall pay
the Grantor _________Renminbi Yuan (RMB_____) as a deposit for its performance
of this Contract, which may be set off against the Land Use Fee payable
hereunder.
ARTICLE 9
Grantee agrees to pay the Land Use Fee specified in Article 8 above pursuant to
Section 9.1 below:
9.1 Within fifteen (15) days as of the execution of this Contract, pay the Land
Use Fee specified in Article 8 above in a lumpsum.
9.2 pay the Land Use Fee to the Grantor in ______installments in accordance with
the schedule and the amount set forth below.
First Installment: __________Renminbi Yuan (RMB_______) payable prior to
_____________.
Second Installment: __________Renminbi Yuan (RMB_______) payable prior to
_____________.
________Installment: __________Renminbi Yuan (RMB_______) payable prior to
_____________.
3
_________Installment: __________Renminbi Yuan (RMB_______) payable prior to
_____________.
Where the Land Use Fee is to be paid by installments, the Grantee shall pay
interest accrued on each installment beginning from the second installment,
which shall be computed at the bank's loan interest rate then in effect.
CHAPTER THREE DEVELOPMENT, CONSTRUCTION AND UTILIZATION OF THE GRANTED LAND
ARTICLE 10
Within fifteen (15) days as of the execution of this Contract, the parties
hereto shall verify the boundary markers at each boundary point in accordance
with the coordinate set forth on the Boundary Map of the Granted Land attached
hereto as an exhibit. The Grantee shall properly protect, and not change without
authorization the boundary markers for the Granted Land. The Grantee shall upon
being aware of any damage to or any relocation of any boundary marker, promptly
submit a written report to the Grantor and apply for land measurement for
boundary marker resetting and reinstatement.
ARTICLE 11
Any new buildings to be constructed by the Grantee on the Granted Land hereunder
shall satisfy the following conditions:
nature of the main buildings: as set forth in the plan;
nature of the accessory buildings: as set forth in the plan;
plot ratio: as set forth in the plan;
lot coverage: as set forth in the plan;
height limit of the buildings: as set forth in the plan;
green land ratio: as set forth in the plan; and
any other requirements for the use of the Granted Land: as set forth in the
plan.
ARTICLE 12
The Grantee agrees to renovate and construct the following projects and transfer
such projects upon being completed to the government free of charge:
1. ______________________________________;
2. ______________________________________; and
3. ______________________________________.
ARTICLE 13
The Grantee agrees that it shall commence the construction on the Granted Land
prior to December 31, 2005.
Where the Grantee cannot commence the construction as scheduled above, it shall
apply to the Grantor for a postponement of construction; provided, however that,
the postponement period may not exceed a year.
4
ARTICLE 14
In the course of the construction on the Granted Land, the interconnections
between the facilities for water, gas and sewer and other utilities on the
Granted Land and the main pipeline networks, the interfaces at the power
transformation station, and the projects for leading public utilities to the
Granted Land shall be implemented in accordance with relevant regulations.
The Grantee agrees to allow various pipes and lines laid by the government to
satisfy the needs of public utilities to go through and across the Granted Land.
ARTICLE 15
The Grantee shall within thirty (30) days as of its full payment of the Land Use
Fee as agreed herein, apply for land registration to, receive the State-owned
Land Use Certificate from, and obtain the granted land use right from the
Grantor on the strength of this Contract and evidence for the payment of the
Land Use Fee, in each case, in accordance with relevant regulations.
The Grantor shall within thirty (30) days as of its acceptance of the
application for land registration submitted by the Grantee, carry out the
granted land use right registration for the Grantee and issue the State-owned
Land Use Certificate to the Grantee in accordance with applicable laws.
ARTICLE 16
The Grantee must reasonably utilize the Granted Land in accordance with
applicable laws and any of its activities on the Granted Land may not damage or
harm the environment or facilities in the surrounding areas. The Grantee shall
be liable for the compensation for any losses caused to the State or any other
person.
ARTICLE 17
Within the Term, the Grantee must utilize the Granted Land in accordance with
the purpose and the use conditions of the land as set forth herein. Where the
Grantee needs to change the purpose and the use conditions of the Granted Land
as set forth herein, it shall carry out procedures necessary for obtaining
approvals in accordance with applicable laws, apply to the Grantor for its
consent, execute an amendment to land use right grant contract or a new land use
right grant contract, correspondingly adjust the land use right grant fee and
carry out the land change registration.
ARTICLE 18
The government shall reserve its right to make adjustments to the Granted Land
for urban planning purposes. In case of any change to the original land
utilization plan, the existing buildings and fixtures on the Granted Land shall
not be affected. However, any change to or renovation or reconstruction of any
buildings and fixtures on the Granted Land within the use term thereof, or the
extension of the use term of any buildings and fixtures on the Granted
5
Land upon the expiration of the use term thereof, shall be carried out in
accordance with the plan then in effect.
ARTICLE 19
The Grantor may not recover the land use right legally obtained by the Grantee
prior to the expiration of the Term. Notwithstanding the foregoing, where under
extraordinary circumstances, the public interest requires the Grantor to recover
the granted land use right prior to the expiration of the Term, the Grantor
shall obtain necessary approvals, pay a corresponding compensation to the
Grantee on the basis of the value of the buildings and fixtures on the Granted
Land at the time of the recovery and the portion of the Land Use Fee of the
granted land use right for the remainder of the Term.
CHAPTER FOUR TRANSFER, LEASE AND MORTGAGE OF THE LAND USE RIGHT
ARTICLE 20
After having fully paid the Land Use Fee, received the State-owned Land Use
Certificate and obtained the granted land use right in accordance with this
Contract, the Grantee shall have the right to transfer, lease or mortgage all or
any part of the granted land use right; provided however that, the initial
transfer (including sale, exchange and complimentary transfer) of the granted
land use right for the remainder of the Term shall be subject to the
verification by the Grantor that by the time of the initial transfer all the
conditions set forth Section 20.1 below have been satisfied:
20.1 The investment in and the development of the Granted Land have been
conducted in compliance with this Contract and more than 25% of the intended
total investment has been completed; or
20.2 The investment in and the development of the Granted Land have been
conducted in compliance with this Contract and the Granted Land have been
prepared for industrial use or any other construction purposes.
ARTICLE 21
In case of a transfer or mortgage of the land use right granted hereunder, the
parties to such transfer or mortgage shall execute a written transfer or
mortgage contract. In case of a lease of the land use right granted hereunder
that has a term longer than six (6) months, the lessor and the lessee shall
execute a written lease contract.
Any transfer, mortgage or lease of the land use right granted hereunder may not
violate any applicable PRC laws, regulation or this Contract.
ARTICLE 22
In case of a transfer of the land use right granted hereunder, any and all the
rights and obligations set forth herein shall be transferred therewith and the
term of the land use right so transferred shall be equal to the Term less the
number of years during which the land use right has been used. After all or any
portion of the land use right has been leased out, any and all the rights and
obligations set forth herein shall continue to be assumed by the Grantee.
6
ARTICLE 23
In case of a transfer, lease or mortgage of the use right granted hereunder, the
buildings and fixtures on the Granted Land shall be transferred, leased or
mortgaged therewith, and vice versa.
ARTICLE 24
In case of a transfer, lease or mortgage of the land use right granted
hereunder, the parties to such transfer, lease or mortgage shall within thirty
(30) days as of the execution of appropriate contracts, apply for land
registration with the competent land administration on the strength of this
Contract and the appropriate transfer, lease or mortgage contracts and the
State-owned Land Use Certificate.
CHAPTER FIVE EXPIRATION
ARTICLE 25
Where upon the expiration of the Term, the user of the Granted Land needs to
continue to use the Granted Land, he/she/it shall submit an application for
extension at least one year prior to the expiration of the Term. In such case,
the Grantor shall approve such application except it needs to recover the
Granted Land for the public interest.
Where the Grantor consents to the extension under the application, the Grantee
shall carry out the procedures for the paid use of land, execute a new contract
for the paid use of land with the Grantor, and pay the fee for paid use of land
to the Grantor, in each case, in accordance with applicable laws.
ARTICLE 26
Where upon the expiration of the Term, the Grantee does not apply for an
extension, or it does but its application is rejected by the Grantor in
accordance with Article 25 hereof, the Grantee shall surrender the State-owned
Land Use Certificate. In such case, the Grantor shall recover the land use right
granted hereunder on behalf of the State and carry out the procedures for
cancelling the registration of the land use right in accordance with relevant
regulations.
ARTICLE 27
Where upon the expiration of the Term, the Grantee fails to apply for an
extension, the land use right granted hereunder and the buildings and fixtures
on the Granted Land shall be recovered by the Grantor on behalf of the State
without any compensation to the Grantee. The Grantee shall maintain and may not
allow any intentional damage to the normal functionalities of the buildings and
fixtures on the Granted Land. Where any building or fixture on the Granted Land
loses any of its functionalities, the Grantor may request the Grantee to remove
or demolish the buildings and fixtures on the Granted Land and level the Granted
Land.
ARTICLE 28
7
Where upon the expiration of the Term, the Grantee applies for an extension but
the Grantor rejects such application in accordance with Article 25 hereof, the
land use right granted hereunder shall be recovered by the Grantor on behalf of
the State and the Grantor shall pay a corresponding compensation to the Grantee
on the basis of the remaining value of the buildings and fixtures on the Granted
Land at the time of such recovery.
CHAPTER SIX FORCE MAJEURE
ARTICLE 29
Neither party hereto shall be liable for any failure to perform this Contract,
whether in whole or in part, as a result of force majeure event; provided
however that, the affected party shall to the extent possible, take all
necessary measures to mitigate any loss that may be caused by force majeure.
Where either party hereto suffers force majeure after it has had a delay in the
performance of this Contract, such party may not be released from the
liabilities relating to such delay.
ARTICLE 30
The party who suffers force majeure shall within seventy-two (72) hours, notify
the other party of the occurrence of the force majeure event by mail, telex,
telegram or facsimile, and within fifteen (15) days as of the occurrence of the
force majeure event, deliver to the other party a report to state the reason for
its inability to perform the Contract or any part thereof or its need for an
extension in the performance.
CHAPTER SEVEN LIABILITIES FOR BREACH OF CONTRACT
ARTICLE 31
The Grantee must pay the Land Use Fee on time in accordance with this Contract.
In case the Grantee fails to pay any amount of the Land Use Fee on time, it
shall from the date on which such amount becomes overdue, for each day during
the period when such amount remains unpaid, pay an overdue payment penalty equal
to 3% of such amount. Should any amount of the Land Use Fee remain overdue for
more than six (6) months, the Grantor shall have the right to terminate this
Contract and recover the Granted Land. In such case, the Grantee shall not have
the right to request for the return of the deposit. In addition, the Grantor may
request the Grantee to indemnify the Grantor for any other losses arising from
such default of the Grantee.
ARTICLE 32
After the Grantee pays the Land Use Fee in accordance with this Contract, the
Grantor shall deliver the Granted Land on time in accordance with this Contract.
In case of any extension in the occupancy of the Granted Land by the Grantee
caused by any failure of the Grantor to deliver the Granted Land on time, for
each day of such extension, the Grantor shall pay the Grantee liquidated damages
equal to 3% of the actually paid amount of the Land Use Fee. Should the
delivery of the Granted Land remain overdue for more than six (6) months, the
Grantee shall have the right to terminate this Contract. In such case, the
Grantor shall pay the Grantee an amount double the deposit and return any and
all the amounts of the Land Use
8
Fee that have been paid by then. In addition, the Grantee may request the
Grantor to indemnify the Grantee for any other losses arising from such default
of the Grantor.
ARTICLE 33
The Grantee shall implement the intended construction and development of the
Granted Land in accordance with this Contract. Where the intended construction
and development of the Granted Land have not commenced by the time that is one
year after the commencement date of the construction agreed in this Contract,
the Grantor may levy a land idling fee on the Grantee which may not exceed 20%
of the Land Use Fee. In case the intended construction and development of the
Granted Land have not commenced by the time that is two years after the
commencement date of the construction agreed in this Contract, the Grantor may
recover the land use right granted hereunder without any compensation to the
Grantee, except when such failure is caused by force majeure, act of any
relevant governmental department, or preparatory work required for the
commencement of the construction.
ARTICLE 34
Where the Granted Land delivered by the Grantor fails to meet the land
conditions set forth herein, it shall be deemed a breach of the Grantor under
this Contract. Such breach shall entitle the Grantee to request the Grantor to
perform its obligations to satisfy the land conditions set forth herein and
indemnify the Grantee for any direct losses caused by such breach.
CHAPTER EIGHT NOTICES AND EXPLANATIONS
ARTICLE 35
Any notices or communications required or permitted hereunder shall take effect
upon actual receipt, with no regard to the means of delivery.
ARTICLE 36
In case of any change to the contact information for notices and communications,
or bank of deposit, or bank account no. of either party hereto, it shall within
fifteen (15) days as of the date of such change, notify the other party of such
newly changed contact information, or bank of deposit, or bank account no.. Any
losses arising from the failure of either party to notify the other party of any
such change on time shall be assumed by the party at fault.
ARTICLE 37
The Grantor has the obligation to answer any question raised by the Grantee with
respect to this Contract in connection with the execution of this Contract.
CHAPTER NINE GOVERNING LAW AND DISPUTE RESOLUTION
ARTICLE 38
The execution, validity, interpretation and performance of, and resolution of
disputes under this Contract shall be governed by PRC laws.
9
ARTICLE 39
Any dispute arising from the performance of this Contract shall be resolved by
the parties hereto through consultations. Any dispute fails to be resolved
through such consultations shall be resolved with the method set forth Section
39.1 below:
39.1 Such dispute shall be submitted to Lianyungang Arbitration Committee for
resolution through arbitration; or
39.2 Such dispute shall be submitted to a competent court for resolution through
litigation.
CHAPTER TEN MISCELLANEOUS
ARTICLE 40
This Contract shall take effect in accordance with Section 40.2 below:
40.1 The granting of the Granted Land contemplated hereunder has been approved
by ________People's Government and shall take effect upon being executed by both
parties hereto.
40.2 The granting of the Granted Land contemplated hereunder is subject to the
approval by Lianyungang Municipal People's Government and shall take effect upon
being approved by Lianyungang Municipal People's Government.
ARTICLE 41
This Contract shall be executed in four (4) counterparts with equal legal force,
with each of the Grantor and the Grantee to hold two (2).
ARTICLE 42
This Contract, together with its exhibit, has ten (10) pages and the Chinese
language version shall prevail.
ARTICLE 43
The money amount and area and similar items shall be expressed in both words and
numbers which shall be consistent with each other. In case of any inconsistency
between the expression in words and the expression in numbers, the expression in
words shall prevail.
ARTICLE 44
This Contract is executed in Lianyungang Municipality, Jiangsu Province, the
PRC, on January 28, 2005.
ARTICLE 45
10
Any matters not covered hereunder may be set forth in separate agreements
reached between the parties hereto which shall be attached hereto as exhibits
and have the equal force as this Contract.
11
Grantor (seal): (affixed with the seal of LIANYUNGANG Grantee (seal): (affixed with the seal of YANGGUANG
MUNICIPAL ADMINISTRATION OF LAND AND RESOURCES) SOLAR TECHNOLOGY CO., LTD.)
Domicile: Domicile:
-------------------------------- --------------------------------
Signed by: /s/ Cao Bin Signed by: /s/ Xxx Xxxxxxxx
-------------------------------- --------------------------------
Legal Representative (authorized Legal Representative (authorized
representative) representative)
Telephone: Telephone:
-------------------------------- --------------------------------
Facsimile: Facsimile:
-------------------------------- --------------------------------
Telegram: Telegram:
-------------------------------- --------------------------------
Telex: Telex:
------------------------------------ -----------------------------------
Bank of Deposit: Bank of Deposit:
-------------------------- --------------------------
Bank Account No.: Bank Account No.:
------------------------- -------------------------
Postal Code: Postal Code:
----------------------------- -----------------------------
Dated: January 28, 2005
12
