China-Beijing-Hai Dian District-168 Xi Zhi Men Wai Avenue-Tengda Building 35th Floor Lease - Beijing Gaoling Estate Development Co. Ltd. and KongZhong Information Technologies (Beijing) Co. Ltd.
No.: TD0131
Lease Agreement
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO., LTD.
LESSEE: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
The Tengda Building to be rented by the lessee is owned by the lessor.
Through friendly negotiation and according to < The Contract Law of The
People's Republic of China> and related regulations, the two parties reach
the agreement as below to define the rights and obligations of the lessor
and lessee.
Article 1 Renting Fee, Real Estate Management Fee and Guaranty Money
1.1 The lessor agrees to lease to the lessee the rooms on 35th Floor of
Tengda Building admitted by the parties (for short "the house" as follows)
with the total acreage of 1,504 sq.m to be utilized as office room.( The
ichnography of this room pls. refers to Appendix 1 of this Agreement for
details , the ichnography is simply supplied to confirm the location.)
1.2 The term of the lease is 2 years, leasing from the date of May 28,
2004 to May 27, 2006.
1.3 The renting fee is USD 14.9 dollars/Month/Sq.M. (RMB 4.12
YUAN/Day/Sq.M) while the Management Fee is USD 3.6 dollars /Month/Sq.M.
(RMB 1 Yuan/Day/Sq. M). So the total amount (including the management fee)
of each month is USD 27,824.00 dollars (RMB 230,939.20 Yuan). Every month
is calculated as 30 days in this agreement. The renting fee and management
fee shall be prepaid every month, which means the lessee shall pay the
renting fee and management fee of next month on the 18th day of every
previous month. The payment shall be made in RMB and effected by the time
of the receipt by the lessor.
1.4 When the term of the agreement is more than 2 years, the lessor
reserves the right to adjust the renting fee and management fee after two
years.
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1.5 The lessee shall give three months' renting fee and management fee to
the lessor , which amount to USD 83,472.00 dollars (RMB 692,817.60 Yuan,
totally in words SIX HUNDRED AND NINETY TWO THOUSAND AND EIGHT HUNDRED AND
SEVENTEEN YUAN AND SIXTY CENTS, to serve as guaranty for duly performance
of the agreement .(hereafter as "guaranty money").
1.6 The lessee can rescind the agreement by written notice if the lessor,
without any fault or negligence, cannot deliver the house to lessee after
two months since the leasing date. Under such circumstances, the lessor
shall return the renting fee and management fee having received back to
the lessee.(the interests not included )
1.7 During the period of the lease, if the lessee violates the provisions
and conditions of the agreement(including defaulting renting fee,
management fee ,damages and defective performance of the agreement ) and
cause damages to the lessor , the lessor shall have right to deduct part
of or entire guaranty money to compensate the loss the lessor has suffered
and the expense the lessee shall have paid. If the guaranty money is less
than the amount required in Clause 5 above, the lessee shall make it up
within three days since receiving the written notice of the lessor,
Otherwise, the lessor has right to take such measures as shutting off
power and telephone, even releasing the agreement and claiming for the
losses it has suffered for the insufficient guaranty money.
1.8 On condition that lessee fully performs provisions of agreement , the
lessor shall return the entire guaranty money to the lessee in 30 days
since the house is returned and the related fees are all paid up.
1.9 Without the consent of the lessor, the lessee cannot assign the right
of claim for the return of the guaranty money to a third party or serve it
as guaranty
Article 2 The Release of the Agreement by the Lessee in the Term of validity of
the Agreement
The lessee could release the agreement during the term of validity of the
agreement with written notice to the lessor, on the condition that the
lessee has paid up all the guaranty money to the lessor.
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Article 3 The Equipments and Reconstruction of the Rented House
3.1 The lessor shall furnish the house with the following equipments:
1. Central air-conditioner and ceiling (including intake,
automatic smoke sensor, gushing machine, daylight lamp)
2. 220v electrical source, communication circuitry, faucet for
antenna of secondary planet TV.
3.2 Before making any fitments and reconstruction of the house, the lessee
shall produce the blueprint and scheme for the lessor, as well as the
introduction of the construction enterprises and its personnel. The
construction enterprise is obligated to pay management fee RMB 30000.00
Yuan (as words: RMB thirty thousand Yuan) to the lessor. Only after the
payment of guaranty money for construction and management fee could the
construction enterprise get the written consent from the lessor to make
the construction. The construction will be inspected and accepted by the
lessor to confirm that it is carried out according to the blueprint and
budget approved by the lessor without any ruin on the establishment and
equipments of the building. The guaranty money will not return to the
construction enterprise until the check and acceptance of the lessor. The
cost of the construction and taxes on the additional fitments and
equipments by the lessee shall be borne by the lessee, without reference
to the name on the bill or its nominal name.
3.3 In case that the lessee rents the beeline telephone number (open an
account in the name of the lessor in the telecom company) from the lessor
who will pay the telephone fee instead of the lessee, the lessee should
pay RMB 5,000Yuan/each line (as words: RMB five thousand Yuan each line)as
guaranty money of the telephone fee and RMB 300 Yuan /Year/Line(as words
:RMB three hundred Yuan every year for each line) as circuitry maintenance
fee . The lessee has right to choose the number of the telephone after the
payment of the above fees. The lessor shall take charge of the affairs of
the installations. The telephone fee should be paid by the lessee within
in 7 days after receipt of the written notice from the lessor. The
guaranty money will be returned back to the lessee without any interests
after expiration. In case that the lessee brings the beeline telephone
number itself or open an account in the name of the itself in the
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telecom company, it shall pay the lessor RMB 200Yuan/each line (as words:
RMB two hundred Yuan each line) at one time as circuitry occupation fee ,
RMB 5 Yuan/each line (as words: RMB five Yuan each line) as transfer fee
and RMB 100Yuan/each line (as words: RMB one hundred Yuan each line) as
circuitry maintenance fee. The lessor shall produce assistance for the
installation.
Article 4 the Renewal of the Lease
After the expiry of the lease, the lessee has the right of priority to
extend the term of the agreement in the same circumstances. The lessee
shall notify the lessor in written notice three months before the expiry
of the agreement, although the terms and conditions for the renewal shall
be negotiated by the partied (the range for the adjustments of the price
shall be made according to the rise or drop of Beijing real estate index
and the general leasing price of the whole building). If the lessee does
not make the above notification in that period, it will be regarded that
it will not lease the house any more and shall move out of the house
before the termination date of the agreement.
Article 5 the Return of the House
5.1 After the expiry of the agreement, the lessee shall return the house
according to the time notified by the lessor. If the house cannot be
returned on time for the reason of the lessee and there exists a new
lessee, the lessor has right to request the lessee to leave the house in 3
days and deduct part of or entire guaranty money of the lessee. In case
the guaranty money is not sufficient for the compensation of the losses,
which the lessor has suffered, the lessor is entitled to claiming for the
insufficient part. If the house has not been rented to other lessees, the
lessor will deem that the lessee will renew the house. In this case, the
renewal procedure shall be made by the lessee; otherwise the lessor will
have right to request the lessee to leave the house and deduct part of or
entire guaranty money.
5.2 When the lessee returns the house after expiration, the rented house
shall be in good state. (natural abrasion excepted);The lessor has right
to deduct the guaranty money to compensate the corresponding losses when
it finds that the house and equipments is tainted for the reason of the
lessee. The lessee is
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obligated to make up the margin in case that the guaranty money is
insufficient for the losses.
5.3 As to accession made by the lessee to the house(shall be approved by
the lessor), the lessor is not certainly to request the lessee to restore
it to the original conditions. The lessor shall not pay the expenses back
for the accession even if the lessee does not make the restoration.
Article 6 the Obligations of the Lessee
The lessee agrees to abide by the following provisions:
6.1 The lessee shall abide by all the rules and regulations stipulated by
the lessor and its authorized agent.
6.2 The lessee cannot take and allow others intentionally take any
activities that will make the insurance of the house and the building
invalid or possibly invalid, or will increase the insurance premium.
Within the term prescribed by the lessor, the lessee shall make payment of
the corresponding increase for the premium and other related expenses for
the violation of the stipulations of this clause which induce the
repurchase of the insurance by the lessor.
6.3 The lessee shall not take the following activities
1. To utilize the house for illegal activities.
2. To assign the rights of lessee under the agreement to others
or use the rights as guaranty.
3. To lease part of or the entire house to others or let others
use the house.
4. To use the house with a third party (not including affiliated
enterprises of the lessee which means the parent company,
subsidiary, branch company of the lessee or the company which
shares the common investment party and legal representative
with the lessee) or make the disclosure in others' names.
5. To transfer the ownerships of the ornaments, equipments and
articles in the house to the third party or use them as
security.
6.4 The lessor shall take charge of the safety during the term of the
lease while the loss and damages of the articles in the house shall be
borne by the lessee. In
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case of fire, the lessee shall make compensation according to its
corresponding liabilities under the specific circumstances.
Article 7 the Obligations of the Lessor
The lessor agrees to abide by the following provisions:
7.1 The lessor shall guaranteed the public establishments (including
illumination, air-conditioner, automatic smoke sensor, shower, WC and
elevator, etc.) are in good conditions. The repairs shall be made
immediately after receiving the written notice of the lessee in case of
any trouble.
7.2 Twenty-four hours' security measures shall be strictly implemented.
7.3 The lessor shall bear the corresponding losses, which the lessee has
suffered, if the house cannot be ordinarily used for the reason of
quality. (the cases stipulated in Article 9 of this agreement and the
losses incurred by the quality for the reason of reconstruction by the
lessee is not included)
Article 8 Damages and Breaching Liabilities
8.1 If the lessor suffers losses for the reason of the lessee or because
of the intentional or negligent act of the lessee's agent or employee
during performance of the obligations, the lessee must compensate the
corresponding losses. On the other side, if the lessee suffers losses for
the reason of the lessee or because of the intentional or negligent act of
the lessor's agent or employee during performance of the obligations, the
lessee must compensate the corresponding losses.
8.2 If the lessee breaches the agreement and stipulations in the
appendixes and supplementary agreement and cannot make the rectification
within 7 days since the lessor issues the written notice, the agreement is
automatically terminated within 14 days since the written notice is
issued. The lessee shall leave the house within 5 days since the issues of
the written notice after the agreement is automatically terminated; at the
same time, the lessor is entitled to claim for damages with the amount of
three months' renting fees and management fees; the lessee also agrees to
bear losses and expenses incurred. The lessor shall deduct the guaranty
money for the compensation if the amount of the guaranty money the lessee
has paid is the same as the damages. Otherwise, the lessee is obligated to
make up the margin. The measures prescribed here are not the
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solitary measures. The lessor is entitled to take other measures in case
of the breach.
Article 9 Exemption from Liabilities
The lessor is exempted from liabilities in the following cases:
1. The temporary ceasing for the utilization of the public
establishments for the necessary maintenance of the building
or not for the reason of the lessor.
2. The loss the lessee suffers is incurred in the event of the
earthquake, typhoon and other events which belong to Force
Majeure.
3. The lessee suffers the losses for the reason of other lessees
or the third parties (but the lessor is responsible to assist
the lessee for the reimbursement from the infringers).
Article 10 Abandonment of the Rights
The abandonment for any right stipulated by the agreement shall be based
on the written signature of the lessor. The facts that the renting fee or
other items the lessee paid is insufficient to the amounts stipulated by
the agreement, or with the consent of the lessor, do not have any
influence on the right of the lessor to claim for the arrearage and the
rights to take other measures according to the agreement or laws and
regulations.
Article 11 the Service of the Notice
All the notices required by the agreement shall be issued in written form.
The invoices, bill of documents and other notices issued by the lessor to
the lessee shall be marked with the lessee as addressee. The written
notice is regarded as having served if it is delivered to the leased
house, sent by the registered mail or delivered to the address of the
lessee in Beijing. The notice issued by the lessee to the lessor will be
regarded as having served if it is delivered to the following address and
accepted with signature: Beijing Gaoling Real Estate Development Co. Ltd.,
No.168, Xi Zhi Men Wai Avenue, Hai Dian District, Beijing, China
<PAGE>
Article 12 Disputes
The agreement shall be governed and explained by the law of PRC. Any party
may file the action to the people's court in the jurisdiction if the
lessor and lessee cannot settle the disputes which arise from the
agreement with negotiation.
Article 13 Business License and Language
The lessee shall produce business license and the authorization letter for
the authorized representative to sign the agreement on behalf of the
lessee. The copy of the duplicate of the business license and the original
authorization letter will be enclosed of the agreement. As an important
part of the agreement, the appendix will be effective at the same time and
have the same legal effect with the agreement.
The agreement and its appendix shall be written in Chinese or English with
the same legal effect. The agreement has two original copies while the
lessor and lessee will hold one of them.
Article 14 Supplementary Agreement
The parties of the agreement can conclude supplementary agreement
through negotiation on other related matters. The supplementary agreement
with the same legal effect of the agreement will be annexed to the
agreement as an important part of the agreement.
The agreement is effective on the date of the subscription as well as the
guaranty The agreement is effective on the date of the subscription as
well as the guaranty is fully paid.
Appendix One: Ichnography of the Leased House
Appendix Two: <Clients Handbook>
Appendix Three: Supplementary Agreement
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO., LTD
ADDRESS: NO. 168, XI ZHI MEN WAI AVENUE, HAI DIAN DISTRICT, BEIJING, CHINA
POST CODE: 100044
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LEGAL REPRESENTATIVE OR AUTHORIZED REPRESENTATIVE (SIGNATURE): /s/ Chuanhui Xu
TEL: 8838-3388
ACCOUNTING BANK:
DATE: May 27, 2004
LESSEE: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD
ADDRESS:
POST CODE:
LEGAL REPRESENTATIVE OR AUTHORIZED REPRESENTATIVE (SIGNATURE): /s/ Guijun Wang
TEL:
ACCOUNTING BANK:
DATE: May 27, 2004
<PAGE>
THE SUPPLEMENTARY AGREEMENT TO LEASE AGREEMENT. NUM. TD 0131
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO., LTD
LESSEE: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD
The lessor and lessee reach the following supplementary agreement as to <Lease
Agreement>. Num. TD 0131(hereafter simplified as <the Agreement>):
1. Free Leasing Period: 3 months and a half altogether, in the
following period.
(1) May 28, 2004 to July 27.2004
(2) May 28.2005 to June 27. 2005
(3) May 13.2006 to May 27.2006
During the free leasing period, the lessee shall only pay 1.00
Yuan/day/Sq.M. as the management fee and other related fees. If <the
Agreement >is terminated before the expiration, the free period after
the termination date will not come into effect any more and the lessor
shall not make compensation to the lessee. The lessee shall make up for
all the renting fee according to the stipulations of <the Agreement> if
the renting term is less than one year.
2. A piece of addition is made to the Article 1.1: The renting fee and
management fee should be calculated in USD and received in RMB, the
exchange rate between the USD and RMB is fixed at 1:8.3.
3. The lessor agrees to add roof-inhaled air-condition while the
specific construction method shall be approved in advance by the
lessor. The expenses of the reconstruction for the air-condition
shall be borne by the lessee. When the lessee remove the ceiling and
air-condition at the time of the termination of <the Agreement> and
returns the rented house, the lessee shall restore the ceiling and
air-condition system back to the original state while the expenses
shall be borne by the lessee.
4. The lessee shall produce blueprint in advance to the lessor and get
the consent from the lessor and the fire control department for
carrying out the construction if the lessee plans to make secondary
fitments and reconstructions to the rented house. The lessee should
not tie up the fire control channels and alter the fire control
subarea of the rented house. The modification for the liquid,
ventilation and fire control system shall be carried out by the
construction company appointed by the lessor. The fitments and
modification to the common area of the building shall be restored to
the original state at the time of leave. And the lessee shall bear
the expenses.
5. The lessor shall increase the electric power. The modification for
electric power in the rented area shall be organized and performed
by the lessor. The lessee shall bear the related expenses which will
be paid by the lessor before the modification is carried out.
6. The lessee shall fully paid up the item "for three months' fee as
guaranty money and one month's fee as payment" within in 3 working
days since the conclusion of the agreement , totally as RMB
923,756.80 Yuan (as words:
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RMB NINE HUNDRED AND TWENTY THREE THOUSAND SEVEN HUNDRED AND FIFTY
SIX YUAN AND EIGHTY CENTS)
7. The supplementary agreement is the supplements and alteration for
< the Agreement > and has the same legal effect with < the
Agreement >. This agreement will prevail as to any conflict between
the supplementary agreement and < the Agreement >. Others will be
executed by < the Agreement >.
8. The agreement has two original copies while the lessor and lessee
will hold one of them. The agreement is effective on the date of the
subscription.
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO., LTD
LEGAL REPRESENTATIVE OR AUTHORIZED REPRESENTATIVE (SIGNATURE): /s/ Chuanhui Xu
DATE: May 27, 2004
LESSEE: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD
LEGAL REPRESENTATIVE OR AUTHORIZED REPRESENTATIVE (SIGNATURE): /s/ Guijun Wang
DATE: May 27, 2004