Exhibit 10.2
[Translation from Original Document in Chinese]
No.: Jingjifangdichurang [He] Zi (2003) No. 044
File No.:
Beijing Economic and Technological Development Zone
State Land Use Right Grant Contract
Grantor: Buildings and Land Administration Bureau of Beijing Economic and
Technological Development Zone
Grantee: Beijing Microelectronics Corporation
Beijing Economic and Technological Development Zone
State Land Use Right Grant Contract (the "Contract")
Article 1 Parties to this Contract
Grantor: Buildings and Land Administration Bureau of Beijing
Economic and Technological Development Zone
(hereinafter referred to as "Party A")
Legal Address: Xx. 0, Xxx Xxxx Xxxxxx, Xxxxxxx Economic and
Technological Development Zone
Postcode: 100176
Legal Representative: Xxxxx Xxxxxxx, Bureau Director
Grantee: Beijing Microelectronics Corporation (hereinafter
referred to as "Party B")
Legal Address: Xx. 00, Xxxxxxxxx Xxxxxx, Xxxxxxx Economic and
Technological Development Zone
Postcode: 100176
Legal Representative: Wang Yangyuan, Chairman
In accordance with the Law of the People's Republic of China on the
Administration of Urban Real Estate (hereinafter referred to as the "Law on
Administration of Urban Real Estate"), the Regulations of the Beijing Economic
and Technological Development Zone, the Measures of Beijing Municipality on the
Implementation of the Provisional Regulations of the People's Republic of China
Concerning the Grant and Transfer of the Right to Use State Land in Urban Areas
(hereinafter referred to as the "Measures") and other relevant laws and
regulations of the State and this Municipality, this Contract is entered into
between the parties on the basis of the principles of equality, voluntariness
and compensation.
Article 2 Party A shall grant the use of the right of the land in
accordance with this Contract. The ownership of the land shall belong to the
People's Republic of China and underground resources, underground substances and
urban public utilities shall not fall within the scope of the grant of the use
right of the land.
Article 3 After the grant to Party B of the land use right in
accordance with this Contract, the activities relating to the development,
utilization and business of the land within the granted land shall comply with
the laws and regulations of the People's Republic of China and
1
the relevant stipulations of the Management Committee of the Beijing Economic
and Technological Development Zone, and shall not prejudice the social public
interests and such lawful interests shall be protected by the laws.
Article 4 The lot granted by Party A to Party B shall be situated at
Beijing Economic and Technological Development Zone, Lot 41M1 at Xx. 00 Xxxxxx
Xxxx and Xx. 00 Xxxxxx Xxxx, with an area of 240,139.60 square meters (this is
the final location of the area in the certificate issued after confirmation of
the right.) Its location and four directions are shown on the map attached
hereto. The attached map has been confirmed by Party A and Party B by affixing
their signatures thereto.
Article 5 The lot granted under this Contract shall be for the
construction of microelectronic plant project in accordance with the detailed
planning requirements as approved by the administration authorities governing
the overall planning of Beijing Economic and Technological Development Zone and
the planning of the development zone.
During the term of the grant, if a need to change the usage of the land
arises, approval from Party A and the administration authorities governing the
planning of Beijing Economic and Technological Development Zone shall be
obtained. A new land use right grant contract shall be entered into in
accordance with the relevant stipulations, the land premium for the land use
right shall be adjusted and procedures for registration of the land use right
shall be completed.
Article 6 The term of the grant of the land use right under this
Contract shall be 50 years, calculated from the date on which the "State Land
Use Certificate" of the People's Republic of China for the lot is issued.
Article 7 The Terms for Use of Land (Appendix 1) appended to this
Contract shall be an integral part of this Contract and shall have the same
legal effect as that of this Contract. Party B shall agree to use the land in
accordance with the Terms for Use of Land.
Article 8 Party B shall agree to pay to Party A the land premium for
the land use right and, in addition to payment of the fee for the use of the
land to Party A in accordance with the relevant regulations of the Government,
Party B shall also pay taxes in accordance with the provisions of the Law on
Administration of Urban Real Estate, the Measures and the tax regulations of the
People's Republic of China.
Article 9 The land premium [land ready for development] under this
Contract shall include: the land use right grant fee, infrastructure and utility
construction fee with respect to the disconnected points outside the red-line of
the street zones as planned (exclusive of the fee for electricity connection
from the switch station to the users and the fee for application and
installation with respect to the natural gas for industrial use), land
development fee and resettlement fee for land requisition. In accordance with
the provisions for the land xxxxx xxxxx in the Letter of Undertaking with
respect to the Request for Policy Support to SMIC Beijing Project from the
Management Committee of Beijing Economic and Technological Development Zone, the
land premium for the land use right shall be RMB34.47 per square meter, totaling
Renminbi
2
Eight Million Two Hundred Seventy Seven Thousand Six Hundred and Twelve
(RMB8,277,612).
Article 10 Within 10 days after this Contract is signed by the
Parties, Party B shall pay to Party A 20% of the total sum of the land premium
for the land use right, totaling Renminbi One Million Six Hundred Fifty Five
Thousand Five Hundred Twenty Two and Forty Cents (RMB1,655,522.40), by cash,
check or transfer check, as a deposit for the performance of this Contract and
the balance (i.e. 80% of the total amount of the land premium), totaling
Renminbi Six Million Six Hundred Twenty Two Thousand Eighty Nine and Sixty Cents
(RMB6,622,089.60), shall be paid in full within 60 days. In case of default in
making payment, Party A shall have the right to rescind this Contract, recover
the land use right and the deposit collected shall not be returned.
Article 11 Upon payment of all land premium for the land use right,
Party B shall complete the procedures for registration of the land use right at
the Buildings and Land Administration Bureau of Beijing Economic and
Technological Development Zone in accordance with the stipulations, and Party A
shall issue the State Land Use Certificate of the People's Republic of China to
Party B within 30 days after full payment of all land premium and the submission
of application for registration by Party B.
Article 12 After obtaining the land use right, Party B shall, in
addition to the land premium, contribute 25% of the total construction and
investment amount during the term of use stipulated in this Contract and
thereupon it can transfer, lease or mortgage the land use right or use the land
use right for other business activities (See Article 13 for special agreement).
The land use right shall not be transferred, leased or mortgaged in case of
failure, without any special reason, to invest in, develop and use the land in
accordance with the Terms of the Use of Land.
Article 13 After obtaining the land use right, Party B shall only use
it for the construction of microelectronics plant project. With respect to the
products, which do not fall within the category of the microelectronic industry,
additional land premium shall be paid at the standard land premium published at
the Development Zone.
In case of transfer or lease by Party B to other land users for use or
use of it for other business activities, procedures for registration of the
transfer or lease shall only be completed upon payment of additional land
premium at the standard land premium then published at the Development Zone and
in accordance with the relevant industry policy.
With respect to transfer of the land use right by Party B, in case of
disposal of the mortgaged real property, an amount equivalent to the land
premium at the standard land premium then published at the Development Zone
shall be first deducted from the proceeds of such disposal for payment to the
Government land administration authorities and the balance can then be paid to
the mortgagee in priority.
Article 14 When Party B transfers the land use right, the rights and
obligations stipulated in the Contract shall be transferred consequentially and
the ownership of the structures on and other attachments to the land shall be
also transferred consequentially. In case of lease or
3
mortgage by Party B of the real property and the land use right, it shall
continue to perform this Contract, and the contents of the lease or mortgage
contract shall not violate the relevant provisions of this Contract. Within 30
days after a lease or mortgage contract is signed, Party B shall complete the
procedures for registration at the Buildings and Land Administration Bureau of
the Development Zone.
Article 15 Commencing from the land use right being obtained, Party B
shall pay land use fee to Party A each year. The standard land use fee shall be
RMB2.0 per square meter, totaling Renminbi Four Hundred Eighty Thousand Two
Hundred Seventy Nine and Twenty Cents (RMB480,279.20). Time for payment shall be
before December 15 of the current year. In case transfer of land use right is
affected, payment shall be made by the new land user to Party A. Adjustment of
the land use fee shall be implemented in accordance with the unified regulations
of Beijing Municipal People's Government.
In accordance with the provisions in the Letter of Undertaking in respect
of the Request for Policy Support to SMIC Beijing Project from the Management
Committee of Beijing Economic and Technological Development Zone, Party B can
postpone payment of the land use fee for three years and conduct consultation
three years later.
Article 16 Unless otherwise provided in this Contract, Party B shall
remit the fee required to be paid under this Contract to Party A's bank account
on or before the payment date stipulated in this Contract. Name of the bank:
Agricultural Bank of China, Beijing Municipal Development Zone Branch; Bank
account: [_____________].
In case of change in Party A's bank account, written notice shall be made
to Party B within 10 days after the change. Party B shall not bear liability for
breach of contract in respect of any late charges arising out of the delayed
payment due to the failure of Party A to give notice of such change in a timely
manner.
Article 17 In case of default of payment by Party B of the sum
payable in accordance within the time stipulated in this Contract, application
shall be made to Party A and, subject to consent, a possession fee at 0.021% of
the fee payable per day shall be paid for the extended payment term.
Article 18 After obtaining the land use right, Party B shall invest
in, develop and utilize the land during the stipulated period in accordance with
the provisions set forth in the Design, Construction and Completion in the Terms
of the Use of Land appended to this Contract. In case of completion beyond the
period as stipulated, Party A shall have the right to recover the land use right
without compensation, and the details of implementation shall be in accordance
with the relevant provisions of the Terms of the Use of Land appended to this
Contract.
Article 19 Upon the expiry of the term of the grant stipulated in
this Contract, Party A shall have the right to recover the land use right of the
lot, structures on and other attachments to the land without compensation in
accordance with the provisions of Article 29 of the Measures. Party B shall
surrender the Land Use Certificate and complete the procedures for
deregistration of the land use right at the Buildings and Land Administration
Bureau of the
4
Development Zone. In case Party B needs to continue to use the lot, it shall
submit an application for renewal 180 days prior to the expiry of the term,
enter into a new land use right grant contract with Party A, pay the land
premium for the land use right to Party A and complete the procedures for
registration of the land use right.
Article 20 In case of the failure of Party A to implement in
accordance with the provisions of Article 11 of this Contract, it shall pay
liquidated damages at 0.2% of the land premium to Party B for each month
delayed, and in case of delay over 60 days, Party B shall have the right to
rescind this Contract. If Party B is unwilling to rescind this Contract if even
the delay is over 60 days, the term of grant of the land use right under this
Contract shall be extended accordingly.
Article 21 Neither Party shall be responsible for the delay or
failure to perform the obligations under this Contract because force majeure
occurs and such Party is not at fault, provided that it shall take all necessary
remedial measures to mitigate the loss to be caused.
The Party encountering force majeure shall notify the other Party in
writing of the condition of the event within 72 hours by letter or cable (telex
or fax) and, within 7 days after occurrence of the xxxxx, xxxxxx a report that
this Contract is unable to be performed or unable to be partially performed and
state the reason that necessitates an extension for performance.
Article 22 Notices and communications required or permitted under
this Contract, transmitted in whatsoever manner, shall become effective on the
actual date of receipt. The correspondence addresses of the Parties shall be:
Party A
Legal Name: Buildings and Land Administration Bureau of Beijing
Economic and Technological Development Zone
Legal Address: Xx. 0, Xxx Xxxx Xxxxxx, Xxxxxxx Economic and Technological
Development Zone
Correspondence Address: Xx. 0, Xxx Xxxx Xxxxxx, Xxxxxxx Economic and
Technological Development Zone
Postcode: 100176 Telephone No.: 0000-0000 Fax No.: 0000-0000
Party B
Legal Name: Beijing Microelectronics Corporation
Legal Address: Xx. 00, Xxxxxxx Xxxxxx, Xxxxxxx Economic and Technological
Development Xxxx
0
Xxxxxxxxxxxxxx Xxxxxxx: Xx. 00, Xxxxxxx Xxxxxx, Xxxxxxx Economic and
Technological Development Zone
Postcode: 100176 Telephone No.: 0000-0000 Fax No.: 0000-0000
Article 23 The formation, validity, interpretation and performance of
this Contract and settlement of disputes shall be protected and governed by the
laws of the People's Republic of China.
Article 24 In the event a dispute arises from the performance of this
Contract, the Parties shall resolve such dispute through consultation. If the
dispute cannot be resolved through consultation, legal proceedings may be
brought in the local People's Court with jurisdiction.
Article 25 This Contract is written in Chinese language. This
Contract is executed in five originals. Party A shall hold two originals, Party
B shall hold two originals and one original shall be delivered to Beijing
Municipal State Land Resources and Buildings Administration Bureau for filing.
Article 26 Any matters not provided for in this Contract may be
agreed upon by the Parties in an annex to be attached hereto.
Article 27 This Contract shall become effective upon execution by the
legal representatives of the Parties.
6
Party A: Buildings and Land Administration Bureau of Beijing Economic and
Technological Development Zone [Seal affixed]
Legal Representative:
(or Authorized Signatory)[Signature affixed]
Party B: Beijing Microelectronics Corporation [Seal affixed]
Legal Representative:
(or Authorized Signatory)[Signature affixed]
December 31, 2002, Beijing
7
Appendix 1
Terms of the Use of Land
1. Position of Boundary Markers
1.1 Within 10 days after the State Land Use Right Grant Contract of
Beijing Economic and Technological Development Zone (hereinafter
referred to as the "Contract"; the Contract No. is Jingjifangdichurang
[He] Zi (2002) No. 044) is duly executed, the City Planning
Administration Bureau of Beijing Economic and Technological
Development Zone shall prepare a notice of erecting markers in respect
of the land for construction, and Party B shall hold such notice and
the 1/2000 map to complete the procedures for erecting the markers at
Beijing Municipal Survey and Drawing Design Research Institute and
receive the table of results for the position of boundary markers and
the marker erection for the land for construction.
1.2 After verifying the area without errors in conjunction with the City
Planning Administration Bureau of the Development Zone, Party A shall
make confirmation by affixing its signature to the red-line map.
1.3 The boundary markers shall be properly protected by Party B and shall
not be changed without permission. In case of damage to or removal of
the boundary markers, report shall be submitted to Party A in a timely
manner with a request for erection again. The fees for handling the
marker erection, additional marker erection and purchase of maps shall
be paid by Party B.
2. Requirements for Utilization of the Land
2.1 Party B shall meet the following requirements for the construction of
structures within the red-line map:
(1) Nature of the main structures is specified as production plant.
(2) Attached structures are utilities.
(3) Building capacity ratio is 0.6 - 1.5 (based on the approval for
the proposal issued by the planning authorities).
(4) Building density is not higher than 45%.
(5) Gross area is not less than 160,000 square meters.
(6) Building height of the 50 meters within one side along Liangshui
River is not higher than 24 meters and the rest is not higher
than 40 meters.
8
(7) Greenery ratio than is not lower than 30%.
(8) Height on the outdoor ground shall be based on measurement by the
planning authorities.
(9) Designs for all structures comply with the current construction
design standards and rules of the State.
(10) Within the land being used, in case the Government needs to
construct a specific project, Party B agrees to construct or pass
through within the red-line area, and in case of damage caused to
the structures on the land, the construction unit shall give
compensation in accordance with the stipulations.
(11) In case of construction of a project for public interests, Party
B agrees to the implementation in accordance with the planning.
3. Design, Construction and Completion
3.1 The construction design and construction usage within the red-line
area shall comply with land utilization requirements and in case of
such matters involving transportation, piping, fire prevention,
environmental protection, civil air defence and greenery, they shall
be submitted to the relevant competent authorities for approval before
construction.
3.2 Within 180 days after the execution of this Contract, Party B shall
commence construction in accordance with the approved planning and
design drawings and construction design drawings.
3.3 Party B shall complete the construction prior to December 31, 2004
(save for the influence by force majeure); in case of delay in
completion for over 180 days, Party A shall have the right to recover
the land use right and deregister the State Land Use Certificate, and
the structures on the land shall be vested in the State without
compensation.
3.4 In case of difficulties in completing the construction at the
completion time in accordance with the forgoing requirements, Party B
shall make an application for extension of the period for construction
with sufficient reasons, provided that the extension shall not exceed
360 days.
3.5 After completion of the construction project, Party B shall coordinate
with the relevant authorities to carry out a joint inspection for
acceptance and submit the completion diagram to the relevant
authorities in accordance with the relevant stipulations, and the
construction project shall be used only after passing the inspection.
9
4. Construction and Repair Activities
4.1 When Party B carries out construction and repair activities within the
red-line area, the responsibilities borne by it towards the
environment and facilities shall include:
(1) The construction articles or wastes (such as mud, crushed stones
and construction refuse, etc) shall not occupy or destroy the
land and facilities outside the red-line area. Procedures for
discharge of wastes shall be completed at the urban council of
the Development Zone.
In case temporary occupation of the urban roads is required,
application shall be submitted to the public security and
transportation authorities for approval.
In case temporary use of the land outside the red-line area,
consultation shall be conducted with the user of such land; in
case the land has not been approved for grant or has not been
requisitioned, application shall be submitted to Party A and the
planning authorities of the Development Zone and land charges
shall be paid in accordance with the stipulations.
(2) Dumping, storage of any materials or any working activities shall
not be allowed without the permission of the relevant authorities
of the Management Committee of the Development Zone.
(3) Party B shall ensure that all kinds of contaminants within the
land being used shall be treated effectively and the discharge
standards stipulated by the State and Beijing Municipality shall
be met so that no harm shall be caused to the environment.
(4) During the land use term, Party B shall properly protect all
urban facilities within the lot without causing damage, failing
which, it shall bear all costs for carrying out the repair work.
4.2 Party B shall not open up, remove or dig the land at the adjacent lot.
4.3 Prior to commencement of construction or repair work, Party B shall be
fully aware of the location of the public uncovered sewage ditch,
drainage (inclusive of tap-water pipes), cables, electrical wires and
other facilities, and submit the plan for treatment of the forgoing
facilities to the Management Committee of the Development Zone; no
work shall be commenced before approval is obtained by Party B.
10
5. Various Urban and Public Utilities
Various urban and public utilities, such as the water, electricity, gas,
heat and telecommunications used by Party B and wastes discharge,
environment, public health and greenery shall be dealt with at the relevant
professional competent authorities of the Development Zone.
6. Supervision and Inspection
6.1 During the land use term, Party B shall have the right to inspect and
supervise the condition of use of the land within the red-line area
and Party B shall not reject or resist.
6.2 Party B shall not occupy the land outside the red-line area (including
placing articles and equipment) for any reason, failing which, it
shall be handled as unlawful occupation.
6.3 Party B shall carry out construction within the land being used in
accordance with the stipulated land usage and the requirements in the
engineering design drawings.
6.4 Without the approval of the planning authorities, Party B shall not
dismantle or rebuild or reconstruct the structures within the land
being used, failing which, the relevant authorities shall have the
right to demand restoration or dismantling, and in case of
non-implementation, specific performance can be exercised and the
required fee shall be paid by Party B.
11
(No text in this page)
Party A: Buildings and Land Administration Bureau of Beijing Economic and
Technological Development Zone [Seal affixed]
Legal Representative:
(or Authorized Signatory)[Signature affixed]
Party B: Beijing Microelectronics Corporation [Seal affixed]
Legal Representative:
(or Authorized Signatory)[Signature affixed]
December 31, 2002, Beijing
12
[Red-line Map]
13
