PROPERTY LEASE CONTRACT
BETWEEN
DONGGUAN CONRAD HI-TECH PARK LTD.
AND
NEOPHOTONICS DONGGUAN CO., LTD
DONGGUAN, CHINA
12 September, 2016
TABLE OF CONTRACT
| |
1. GENERAL PROVISIONS | 3 |
2. LEASE OF THE LEASED PROPERTY | 5 |
3. RENT AND OTHER CHARGES | 6 |
4. UTILITIES | 11 |
5. RESPONSIBILITIES OF LESSOR | 12 |
6. RESPONSIBILITIES OF LESSEE | 15 |
7. REPRESENTATIONS AND WARRANTIES OF THE PARTIES | 16 |
8. CONDITIONS OF THE LEASED PROPERTY, FACTORY BUILDINGS AND SITE | 17 |
9. DELIVERY OF LEASED PROPERTY | 17 |
10. BREACH OF CONTRACT AND TERMINATION | 18 |
11. MISCELLANEOUS | 20 |
THIS PROPERTY LEASE CONTRACT (this “Contract”) is made on 12 September 2016, in Dongguan, the People’s Republic of China (“China”) by and between:
Dongguan Conrad Hi-Tech Park Ltd., a legal person of China, registered with Dongguan Administration of Industry and Commerce (Business License#:441900400104128) and with its legal address at South Section of Chang Nan Road, Shangsha Village, Chang'An Town, Dongguan City, Guangdong Province, China (“Lessor”), and
NeoPhotonics Dongguan Co., Ltd, a legal person of China, registered with Dongguan Administration of Industry and Commerce (Business License#: 441900400162776) and with its legal address at Section B, B9 Conrad Hi-Tech Park, South Section of Chang Nan Road, Shangsha Village, Zhen’an, Chang’An Town, Dongguan City, Guangdong Province, China(“Lessee”).
Lessor and Lessee are referred to collectively as the “Parties” and individually as a “Party”.
1.1Preliminary Statement
WHEREAS, the Parties entered into a property lease contract on 31st May, 2011 (Contract No. Execution Version 2011-05-12) and had entered into two supplement agreements ever since; WHEREAS, the lease term as set out in the supplement agreements has expired. NOW, THEREFORE, the Parties hereby agree on their rights and obligations during the new lease term.
Lessor has acquired from the Dongguan Bureau of Land and Resources by way of assignment, the granted land use right for the Site (as defined below), and owns the Leased Property (as defined below) situated thereon.
Lessor now agrees to lease the Leased Property to Lessee to allow Lessee to use the Leased Property as office and factory according to the terms and conditions hereof.
The Parties agree to carry out the lease hereunder in accordance with the terms and conditions of this Contract.
1.2Definitions
In this Contract, the capitalized terms shall have the meanings set forth below.
| (a) | | “Affiliate” with respect to a Party, means a corporation, partnership, joint venture or other entity directly or indirectly controlling, controlled by or under common control with the Party. In this definition of "Affiliate," "control" means ownership of more than 50% of shares having the right to vote or the right to appoint a majority of the directors. |
| (b) | | “Leased Property” means 1F, 2F, 3F, 4F and 5F areas of the building located at Section B of B9, Conrad Hi-Tech Park, South Section of Chang Nan Road, Shangsha Village, Zhen’an, Chang'An Town, Dongguan City, Guangdong Province, China; with total gross floor area of 7,824 square meters (the actual floor area shall be determined according to the plans filed with the governmental authorities). Floor plans of the Leased Property are attached in Exhibit 1A. |
| (c) | | “Month” means a calendar month. |
| (d) | | “Lease Term” means the leasing period of the Leased Property as provided under Article 2.4 of this Contract. |
| (e) | | “Real Estate Certificates” means the Building Title Certificate and Land Use Right Certificate relating to the Leased Property and the Site, respectively, issued by the competent land and building administrative authorities under Lessor’s name attached hereto as Exhibit 5. （If the Building Title Certificate has not been obtained, then the Lessor shall provide the Building Title Certificate to Lessee once received. ） |
| (f) | | “Rent” has the meaning set forth in Article 3.1. |
| (g) | | “Site” means the land parcel on which the Leased Property is situated, comprising 44,702 square meters gross area, as evidenced by the Land Use Right Certificate attached hereto in Exhibit 5. Plan of the Site is attached in Exhibit 1B. |
| (h) | | “Additional Equipment and Facilities” means all the equipment and facilities described in Exhibit 2A. |
| (i) | | “Utilities” means water, electricity, environmental protection, fire prevention and other related facilities installed in the Leased Property. |
| 2. | | LEASE OF THE LEASED PROPERTY |
2.1Lease
In accordance with the laws and regulations of China and Dongguan Municipality, Lessor agrees to lease to Lessee the Leased Property. Lessee agrees to pay the Rent and other charges payable under this Contract in accordance with the terms hereof.
2.2Use of the Leased Property
| (j) | | Lessee shall use the Leased Property as production factory and office of Lessee. |
| (k) | | Lessor agrees Lessee to display signage on the external walls and the roof of the Leased Property indicating Lessee’s name. However, the size of the signage is subject to the prior approval of Lessor. Lessor shall not unreasonably refuse to give its approval. Lessee’s notice of signage installation shall be deemed to be approved by Lessor if Lessor fails to reply within two working days of the receipt of such notice. Lessor shall procure that Lessee shall obtain the approval of Lessee’s signage described above from the property management company and relevant government authorities. |
2.3Sub-Lease
| (l) | | At any time during the Lease Term or renewal thereof, the Lessee shall have the right to sublease any portion of the Leased Property to any of its Affiliates provided that Lessee shall provide the relevant information of such Affiliate to Lessor by 10-day prior written notice. |
| (m) | | Lessee shall be allowed, in case of the sale of shares or assets, restructuring or re-organization, to transfer or assign all of its rights and obligation to the respective successor or purchaser of its business or assets. If assigned or transferred pursuant to this Article 2.3(b), then the successor or purchaser must continue to comply with all the terms of this Contract. |
2.4Lease Term, Renewal
| (n) | | Lease Term starts from 1st day of June, 2016 and ends on 31st day of May, 2021. Unless the Lessor notifies the Lessee in writing no later than six(6) months prior to the expiry of the Lease Term that this Contract will not renew when the Lease Term expires, this Contract shall renew for an additional 5 years. |
If Lessee would like to continue to rent the Leased Property after the Lease Term expires, the growth range of the rent will be mutually agreed between the Parties and be equal to the prevailing open market effective rent subject to a cap of 15% of the previous Leased Property rent (exclusive of the shared expenses of Additional Equipment and Facilities).
| (o) | | Lessee has a right of preemption to rent and/or purchase the Leased Property when the Lease Term expires or the Lessor intends to sell the Leased Property. |
3.1Rent
The amount payable by Lessee to Lessor hereunder includes rental of the Leased Property and the shared expenses of Additional Equipment and Facilities (collectively, the “Rent”), and is set out as follows:
Monthly rent per ㎡ of the Leased Property: RMB 18.00/㎡/month （inclusive of taxes）.
| (p) | | Monthly rent of Leased Property: RMB 18.00/㎡/month×7,824㎡ = RMB140832/month. |
| (q) | | Monthly Additional Equipment and Facilities shared expenses：See Exhibit 6 (Monthly Rent Payment Plan of Additional Equipment and Facilities). The rent of the Additional Equipment and Facilities does not change within each item’s depreciation years as agreed by the Parties. If the Lease Term(including renewal period) are longer than the depreciation years, then Lessor warrants that the rental of Additional Equipment and Facilities will be free during the remainder of the Lease Term (including the renewal period). Also, the maintenance cost of the Additional Equipment and Facilities will be borne by Lessee, and Lessor shall help Lessee to communicate with the suppliers. (Details of calculation of shared expenses of Additional Equipment and Facilities are provided under Article 3.2) |
| (r) | | The Rent shall be payable once every month. |
The Rent shall be paid within 15 working days of each month. Lessor shall provide the relevant tax invoice to Lessee within 3 working days of the receipt of the payment from Lessee.
Lessor hereby designates that all payments by Lessee as described under Article 3 shall be made by wire transfer to the following bank account of Lessor. During the Lease Term, if Lessor intends to change the receiving bank account, Lessor shall provide Lessee with prior written notice.
Account Name: DONGGUAN CONRAD HI-TECH PARK CONSTRUCTION LTD.
Bank Name: ChangAn Fuli Branch Bank of Dongguan Bank东莞银行长安富丽支行
Account No.:500061574301018
3.2Additional Equipment and Facilities Shared Expenses
Pursuant to the Lessee’s request, Lessor has provided Lessee with the Additional Equipment and Facilities described in Exhibit 2A, which have been installed in accordance with Exhibit 2B.
Lessee will pay monthly shared expenses of Additional Equipment and Facilities to Lessor as part of the Rent payable by Lessee on monthly basis pursuant to Article 3.1; the calculation of the monthly share expenses of Additional Equipment and Facilities are provided in further details in Exhibit 3.
3.3Deposit
| (s) | | The Parties agree to divide the Deposit into two parts which are Building deposit and Additional Equipment and Facilities deposit. The Building deposit will be equal to 3 months’ rent of the Leased Property (RMB375,552), the Additional Equipment and Facilities deposit is 8% of the total investment of the Additional Equipment and Facilities (RMB 282,400). Lessee has paid the Deposit to Lessor and Lessor has already provided the relevant deposit receipt to Lessee. |
In the event that Lessee terminates this Contract pursuant to Article 9.2 hereof, Lessor shall, within 3 working days following receipt of Lessee’s termination notice, refund the full amount of the Building deposit described under Article 3.3(a) above in the amount of RMB375,552 to such bank account designated by Lessee.
| (t) | | In the event that Lessee does not continue to rent the Leased Property when the Lease Term expires, Lessor shall, within 3 working days following the expiry of the Lease Term, refund the full amount of the Building deposit described under Article 3.3(a) above to such bank account designated by Lessee. About the Additional Equipment and Facilities deposit, if the Lease Term is shorter than the depreciation years described under Article 3.1(c), then Lessor will take the Additional Equipment and Facilities Deposit as compensation. If the depreciation years described under Article 3.1(c)finishes before the expiry of the Lease Term, then Lessor shall refund the Additional Equipment and Facilities deposit by phases according to Exhibit 3 to such bank |
account designated by Lessee. |
3.4Property Management Fee and Car Park Fee
| (u) | | During the Lease Term (including renewal period thereof), the property management fee of the Leased Property is included in the Rent of the Leased Property, and no additional fees or charges of the greenery, security, cleaning, electricity and water for the public area in the High-tech Park shall be payable by Lessee. |
| (v) | | During the Lease Term (including renewal period thereof), Lessor will not charge any car park fee from Lessee, and Lessor will provide 15 fixed parking spaces and sufficient public parking spaces to Lessee. |
3.5Dormitory
Lessee has the right to require Lessor to undertake that during the Lease Term, Lessor shall reserve certain dormitories to Lessee. Accordingly, Lessor will require Lessee to pay at least 70% of the required dormitories. The standard of dormitory is as follows: _10-12 persons per room, located at _Conrad Hi-Tech Park_, and the rental of dormitory is RMB 1,160/room/month(tax included).
The standard of dormitory is as follows: _1-4 persons per room, located at _Conrad Hi-Tech Park_, and the rental of dormitory is RMB 1,000/room/month(tax included).
In the event that Lessor can’t provide the sufficient dormitories within 30 days following receipt of Lessee’s notice, then
| (w) | | Lessor undertakes that Lessor will provide the relevant dormitories of same numbers and same standards to Lessee in other places. In the event that the rental of the dormitory is more than RMB 1160/room/month (tax included), then Lessor shall pay for the price difference；or |
| (x) | | Lessor may build new dormitories in time for Lessee’s use. In the event that Lessor fails to build the dormitories in time, then during the construction period, Lessor shall provide temporary dormitory options to Lessee. |
3.6Canteen
Lessor undertakes that during the Lease Term, Lessor shall provide canteen and services to Lessee, which can accommodate 1,500 employees.
3.7Other Charges
| (y) | | Other than the Rent specified in Article 3.1 (including shared expenses of Additional Equipment and Facilities) and the Deposit specified in Article 3.3 hereof, Lessee is not responsible for payment of any other charges to Lessor. Lessor shall be responsible to pay for the land use right grant fee, taxes and any other costs and charges in connection with the Leased Property and the related land use right . In the circumstance that any of the foregoing taxes or fees are imposed by the related government authorities or any third party on Lessee, Lessor shall be responsible to reimburse Lessee for all such expenses and taxes incurred by Lessee in an expeditious manner or Lessee will have the right to deduct such expenses and taxes from the Rent payable to Lessor. |
| (z) | | Lessee shall bear charges caused by using of Leased Property, which includes but not limited to water, electricity, telecommunication, and environmental protection, etc. |
| (aa) | | Each Party hereto shall bear all taxes and governmental surcharges which are imposed on such Party according to Chinese tax laws and regulations, which includes but not limited to real estate tax, business tax, enterprise income tax and stamp duty. |
3.8Currency
Lessor and Lessee shall pay all the amounts due under this Contract in RMB.
4.1Connections and Responsibilities
Lessor shall use its best efforts to support the continuous and uninterrupted supply of Utilities that are directly connected to the Leased Property as specified in Exhibits 2 and 4 to meet the full operating requirements of Lessee. Lessee shall be responsible for all of Lessee’s usage or consumption charges for Utilities (inclusive of normal share of wear and tear). Lessor shall ensure that separate meters are installed for all Utilities (other than telephones) utilized by Lessee, and no other party's usage of Utilities shall be computed by such meters. Lessee shall not be obligated to pay for any Utilities based on any meter reading which includes consumption by any other party.
4.2Payment
Lessor shall use its best efforts to procure that the basic rates charged to Lessee for Utilities are no
less favorable than the public utility rate offered by the suppliers of such Utilities to Lessor (inclusive of normal share of wear and tear). To the extent required by applicable law, Lessee shall pay to the respective suppliers of such Utilities in a timely manner.
| 5. | | RESPONSIBILITIES OF LESSOR |
5.1Ownership
Lessor represents and warrants to Lessee that Lessor is the lawful owner of the Leased Property and has the right to enter into this Contract.
5.2Peaceful Enjoyment and Exclusive Use
Lessor shall protect Lessee's exclusive and unimpaired right to the use of the Leased Property and Site and shall not lease the Leased Property and Site to any third party during the relevant Lease Term. Provided that Lessee comply with all the reasonable and legal regulations set by Lessor, Lessor shall ensure that the activities conducted by it and its representatives, employees, agents and licensees shall neither cause or constitute a nuisance to nor otherwise disturb or interfere with Lessee's use of the Leased Property and Site. Lessee and its representatives, employees, agents, licensees and invitees shall at all times be provided with unimpaired access to the Leased Property and Site throughout the relevant Lease Term and shall be provided with conditions and access appropriate for Lessee's ongoing operations. Should Lessor intend to mortgage, use as security or otherwise dispose of the Leased Property and/or Site during the Lease Term, Lessor shall (1) guarantee that any mortgage or encumbrance shall not affect Lessee’s rights and shall not release Lessor’s obligations hereunder; and (2) indemnify Lessee for the loss and pay for the damages caused to Lessee and Lessee's research and development facilities, laboratory, production and operations arising from such mortgage, encumbrance, guarantee or other disposal.
5.3Government Filings
| (a) | | If Local Government has the filings regulation, then Lessor shall complete all registrations and filings of this Contract with the relevant authorities required by applicable laws and regulations within 30 days following the date hereof and provide the copies of the registration documents in form and substance satisfactory to Lessee. |
| (b) | | Lessor shall indemnify Lessee against any cost, loss, damage or injury incurred by Lessee, caused by Lessor’s failure to fulfill in full its obligations set forth in Article 5.3(a) hereto. |
5.4Real Property and Land Use Right
| (c) | | Throughout the Lease Term, Lessor shall pay all taxes and fees for the Leased Property as required in accordance with the applicable law and regulations. |
| (d) | | In the event that Lessor decides, during the term of this Contract as extended from time to time, transfer its ownership to the Leased Property to a third party, it shall provide a written notice to Lessee no later than 90 days before the effective date of such transfer to Lessee. However, Lessor shall ensure that: 1) the transferee has committed to abide by all the terms and conditions of this Contract and to assume any and all outstanding liabilities and obligations of Lessor; 2) such transferee has the full legal right and capacity to perform its obligations as if it were party to this Contract; and 3) Lessor shall be jointly liable with the transferee in the event that such transferee refuses or delays the performance of obligation hereunder or breaches the provisions of this Contact in any manner. |
5.5 Maintenance
| (bb) | | Lessor shall be responsible for the main structure of the building and the maintenance and annual inspection of the lightning protection facilities of the building. Lessee shall be responsible for the maintenance, repair and annual inspection of the Leased Property and the Additional Equipment and Facilities (including the firefighting equipment and facilities, water and electricity lines and facilities, etc. ), and the Lessor shall provide any necessary assistance. (For example, providing the documents and files required for the purposes of the annual inspection of the elevators and fire and the firefighting equipment and facilities, etc. ) |
| (cc) | | Lessor shall indemnify and hold Lessee harmless against any cost, loss, damage or injury incurred by Lessee, in respect of its property or to any person, caused by the act, default or negligence of Lessor or its representatives, employees, agents, invitees or licensees in repairing or maintaining the Leased Property and the Site. |
5.6Environmental Protection Fire Prevention and Health &Safety
The Leased Property and the Site provided by Lessor shall be in compliance with all applicable laws, regulations and standards relating to environmental protection and fire prevention and the Leased Property and Site shall be approved by the relevant authorities as meeting all such applicable laws and standards. Lessor shall, at its own expense, install permanent environmental protection, fire prevention and safety facilities in the Leased Property and Site in accordance with requirements of applicable laws, regulations, and standards and ensure their normal condition and operation during the Lease Term (the necessary or normal maintenance and repair is provided in further details under Article 5.5(a)).
5.7Insurance
| (a) | | Lessor shall procure and maintain in effect all insurance against all property risks on the Leased Property and Site, public liability insurance and other insurance coverage required by applicable |
law and Lessor shall pay insurance costs for such policies during the Lease Term. Lessor shall provide evidence of such insurance policies being procured and maintained (i) within 1 month following the date hereof, and (ii) within 15 days ahead of the date hereof. If Lessor fails to provide evidence of such insurance policies being procured during any of the time period described above, Lessee shall be entitled to, at its own cost, procure such insurance policies and deduct from the Rent payable by Lessee pursuant to Article 3.1 hereof the insurance costs incurred by Lessee. Lessee shall procure and maintain in effect all insurance against all property risks and other insurance coverage required by applicable law and Lessee shall pay insurance costs for and maintain in effect such policies. |
| (b) | | Lessor and Lessee shall also be responsible for coordinating with its respective insurer and perform its respective obligations as a policy holder under the respective policy. The failure by any Party to perform its obligation under the respective insurance policy shall be deemed as a breach under this Contract and any damages thus suffered by the other Party shall be compensated by the Party in breach; however, in the event of a breach written notice of such breach must be sent to the Party in breach and the Party in breach shall have 90 days from the receipt of the notice to cure the breach. |
| 6. | | RESPONSIBILITIES OF LESSEE |
Throughout the relevant Lease Term, in addition to its other obligations arising hereunder, Lessee shall perform the following:
6.1Fitting Out and Structural Changes
Lessee shall not make any structural changes to the Leased Property without the prior written consent of Lessor. Lessee shall change and fit out the Leased Property only in accordance with plans and specifications submitted to and approved by Lessor(such approval not to be unreasonably withheld or delayed); Lessor shall be deemed to have consented to any such plans and specifications received from Lessee for structural changes or fitting out of the Leased Property in writing if it has not responded to Lessee within 3 working days of Lessee’s provision of such plans and specifications to Lessor. Lessee shall undertake the quality, safety, environmental protection and other liabilities in connection with such changes described above.
6.2Fire Prevention and Safety
Lessee shall strictly comply with the fire prevention measures and safety protection rules in accordance with laws and regulations when Lessee uses the Leased Property. Lessee shall bear the relevant responsibility in law, if Lessee does not comply with the relevant regulations and measures of fire prevention, safety protection.
6.3Rental Payment
Lessee shall pay the Rent on time, if Lessee delays the payment for more than 2 months, Lessor has the right to terminate this Contract, and Lessee shall bear the relevant responsibility in law.
| 7. | | REPRESENTATIONS AND WARRANTIES OF THE PARTIES |
7.1In addition to their other representations and warranties herein, each Party represents and warrants to the other Party that:
| (dd) | | Each Party has the full right, power and authority, and has obtained all necessary governmental and corporate approvals, for the execution of this Contract and the performance of its obligations hereunder. |
| (ee) | | This Contract constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. |
| (ff) | | Each Party acknowledges that it is not aware of any litigation, arbitration or administrative proceeding that is currently taking place or pending or threatened against it or its assets which are the subject of this Contract or which could impact such party’s performance of any of its obligations hereunder. |
| 8. | | CONDITIONS OF THE LEASED PROPERTY AND SITE |
In addition to its other representations and warranties hereunder, Lessor represents and warrants to Lessee as follows:
| (gg) | | No currently existing zoning laws or other applicable laws or regulations would prevent, or limit Lessee from utilizing the Leased Property and Site as contemplated by this Contract. |
| (hh) | | In connection with the Leased Property and Site, there are no adverse environmental conditions nor have there been any releases of any contaminant into the soils, surface waters or ground waters which would adversely impact public health or the environment. |
| (ii) | | Lessor shall ensure that the conditions of the Leased Property and the Additional Equipment and Facilities as set forth in the Exhibit 2 and Exhibit 4, respectively, shall have been met in all material aspects. |
| (jj) | | Lessor is the sole and lawful owner of the Leased Property and the Site. The Leased Property and |
Site is free and clear of all mortgages, trust, liens, loans or other encumbrances. |
| 9. | | BREACH OF CONTRACT AND TERMINATION |
9.1Uncured Breach
| (kk) | | If the actual damages are difficult to calculate in the event of an uncured breach by any Party of its obligations under this Contract, the breaching Party is liable to pay liquidated damages to the non-breaching Party and such liquidated damages shall be calculated as follows: |
| ª | | Daily Liquidated Damages = Daily rental*2; (including the rent of Building and the rent of Additional Equipments and Facilities) |
| ª | | Days of Breach = Calendar days commencing from such breach until the date the breaching Party has fully remedied the breach or on the date of termination of this Contract pursuant to the terms of this Contract; |
| ª | | Amount of Liquidated Damages = Daily Liquidated Damages × Days of Breach |
| (ll) | | In addition, in the event of a material and an uncured breach by any Party of its obligations under this Contract, the other Party shall have the right to terminate this Contract immediately if the breach is not capable of being cured. Each of the Parties shall be relieved of their duties and obligations arising under this Contract after the date of the termination; provided that no such termination shall relieve any Party from liability for any uncured breach of this Agreement as provided under this Article 9.2. |
9.2 Right to Terminate
In addition to the Lessee’s right of termination provided under Article 2.4 hereof, this Contract terminates immediately upon the occurrence of any of the following events:
| (mm) | | If the performance of this Contract by such Party has become in any material respect commercially impracticable by virtue of any order, action or regulation of any government or agency, either Party can terminate this Contract immediately; |
| (nn) | | If the other Party materially breached its obligations under this Contract, and fails to correct such breach within 30 days after being notified by the non-breaching Party, the non-breaching Party can terminate this Contract immediately; or |
| (oo) | | If either Party cannot perform this Contract due to any issues in relation to the Property Title, Lessee can terminate this Contract immediately. |
9.3Preservation of Rights
The provision of this Article 9 are without prejudice to any other rights or remedies either Party may have pursuant to other provisions of this Contract and applicable laws by reason of the default of the other Party.
9.4Expiration of Lease Term
This Contract shall terminate on the expiration of the Lease Term, if not terminated earlier in accordance with Article 9, or renewed in accordance with Article 2.4.
10.1Assignment
Neither Party may assign any of its rights or obligations hereunder to any other person without the express written consent of the other Party unless otherwise provided in this Contract; however, Lessee is permitted to assign this Contract to an Affiliate upon notice to Lessor.
10.2Applicable Law
The formation, validity, interpretation, execution, amendment and termination of this Contract shall be governed by the laws of China.
10.3Settlement of Disputes
All disputes arising from, out of, or in connection with this Contract shall be settled through friendly consultations between the Parties. Such consultations shall begin immediately after one Party has delivered, in accordance with Article 10.8 to the other Party a written request for such consultation. If within 90 days following the date on which such notice is given the dispute cannot be settled through consultations, the dispute shall be submitted for arbitration to the China International Economic and Trade Arbitration Commission in Shenzhen in accordance with its then effective arbitration rules upon the request of either Party with notice to the other Party. The arbitral award is final and binding upon the Parties. The proceeding of arbitration shall be in Chinese. Any award hereunder shall be enforced in any court with competent jurisdiction.
During the period when a dispute is being resolved, the Parties shall in all other respects continue their performance of this Contract.
10.4Amendment and Modification of the Contract
Amendment to this Contract or its exhibits may be made only by a written agreement in Chinese and English signed by duly authorized representatives of each Party.
10.5Severability
The invalidity of any provision of this Contract shall not affect the validity of any other provision of this Contract.
10.6 Language
This Contract is executed both in Chinese and English in 6 original copies. Both language versions shall be equally authentic. Each Party hereto shall keep 3 original copies. In case of inconsistency between the Chinese and English of this Contract, Chinese language shall prevail.
10.7Waiver
Failure or delay on the part of any Party hereto to exercise any right, power or privilege under this Contract, or to require full performance by the other Party, shall not operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude exercise of any other right, power on privilege.
10.8Notices
Notices or other communications required to be given by any Party pursuant to this Contract shall be written in Chinese and may be delivered personally, by registered mail (postage prepaid) or by a recognized courier service to the address of the other Party set forth below. The dates on which notices shall be deemed to have been effectively given shall be determined as following:
| (a) | | Notices given by personal delivery shall be deemed effectively given on the date of personal delivery. |
| (b) | | Notices given by registered mail (postage prepaid) shall be deemed effectively given on receipt. |
| (c) | | Notices given by courier service shall be deemed effectively given on receipt. |
For the purpose of notices, the addresses of the Parties are as follows:
Lessor: DONGGUAN CONRAD HI-TECH PARK CONSTRUCTION LTD.
Contact Person：Mr. Junhui FANG
Address：South Section of Chang Nan Road, Shangsha Village,Chang'An Town, Dongguan City, Guangdong Province, China
Telephone：+86 769 85417288
Fax：+86 769 85417278
Email： jh.fang@anlipark.com
Lessee: NeoPhotonics Dongguan Co., Ltd
Contact Person: Mr. Jingtao Ding
Address: Section B, B9 Conrad Hi-Tech Park, South Section of Chang Nan Road, Shangsha Village, Zhen’an, Chang’An Town, Dongguan City, Guangdong Province, China
Telephone: +86 76989393085
Fax: 0769-89393079
Email: jintao_ding@neophotonics.com.cn
With a copy to: NeoPhotonics (China) Co., Ltd.
Attention: Legal Department
Address: NeoPhotonics Building, No. 8 South Keji 12th Road, Nanshan District, Shenzhen 518057 China
Either Party may at any time change its address by notice in writing delivered to the other Party in accordance with the terms hereof.
10.9Exhibits
The exhibits attached hereto are hereby made an integral part of this Contract and are equally binding upon the Parties.
10.10补充协议 Supplementary Agreement
The supplement agreement entered into by the Parties on 10th day of September, 2013 (EXHIBIT 7) and the supplement agreement entered into by the Parties on 24th day of December , 2013 (EXHIBIT 8) shall continue in force.
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IN WITNESS WHEREOF, each Party has caused this Contract to be executed by its duly authorized representative on the date first set forth above with effect from 1 June 2016.
DONGGUAN CONRAD HI-TECH PARK LTD.
By：/s/ Zhi Feng Li
Name：Zhi Feng Li
Title：General Manager
NeoPhotonics Dongguan Co., Ltd
By： /s/ Chi Yue (Raymond) Chenug
Name：Chi Yue (Raymond) Chenug
Title： Senior Vice President and Chief Operating Officer
Exhibit一A：
EXHIBIT 1A: LEASED PROPERTY FLOOR PLAN （1F-5F AND ROOF）
Exhibit一B:
EXHIBIT 1B: SITE PLAN
Exhibit 2A:
EXHIBIT 2A: ADDITIONAL EQUIPMENT AND FACILITIES
(Subject to Design Floor Plan under Exhibit 2B)
Item | Requirement | Remarks |
Concrete Construction |
B9 Concrete Construction and Retrofit | Change the passenger and cargo lifts’ door of 1F-3F, top floor surface with waterproof slope, elevator machine room with steel door. | |
Additional Factory Facilities Room | Used area of 172.5㎡(5m*34.5m), illumination intensity should be not less than 200lx | Water chiller/air compressor/vacuum pump/process cooling water, the roof placed cooling towers request bearing 750KG/m2 |
配电 Power |
Power Supply | 1*1600KVA transformer, high and low voltage, In-coming and out-coming cabinets and measure cabinets (dual-circuits) | Design work according to materials of low-voltage distribution cabinets provided by customers |
High-voltage Room and Supporting Concrete Construction | High and low voltage room concrete construction, pipeline and cable channel | |
电梯 Lifts |
Otis Passenger Lifts | Otis (Hangzhou) 800 kg | Adopt stainless steel door and door set and cabin |
Otis Cargo Lifts | Otis (Hangzhou) 3000 kg | Adopt stainless steel door and door set and cabin |
Lessor Reserve Place |
Nitrogen Station Foundation | Area of 24㎡ | Nitrogen storage tank, covering an area of about 16 square meters, with liquid nitrogen weighed about 17000KG total |
Consumable Goods Warehouse | Area of 24㎡, comply with the national safety regulations | Shacks/B9 top storey (build by NeoPhotonics, Lessor to reserve the place) |
Consumable Waster Warehouse | Area of 18㎡, comply with the national safety regulations | Shacks/B9 top storey (build by NeoPhotonics, Lessor to reserve the place) |
ME Equipment Room | Area of 40㎡ | Minicomputers processing equipment Shacks/B9 top storey (build by NeoPhotonics, Lessor to reserve the place) |
Production Equipment Spare Parts Warehouse | Area of 40㎡ | Shacks/B9 top storey (build by NeoPhotonics, Lessor to reserve the place) |
Power Spare Parts/Material Warehouses | Area of 32㎡ | Shacks/B9 top storey (build by NeoPhotonics, Lessor to reserve the place) |
Monitoring Center | Area of 20㎡ | Shacks (build by NeoPhotonics, Lessor to reserve the place) |
Exhibit 2B:
EXHIBIT 2B: DESIGN FLOOR PLAN
Location of Additional Factory Facilities Room
Design Floor Plan (1-5F)
Layout of High-voltage Room and Supporting Concrete Construction：
Layout of Additional Factory Facilities Room：
EXHIBIT 3 ：Additional Equipments & Facilities Deposit Calculation and Return Plan
No. | Item | Depreciation years | Investment (RMB) | Deposit (RMB) | Deposit Return Schedule |
1 | High-voltage Room and Supporting Concrete Construction | 5 | 980,000.00 | 78,400.00 | Full returned to Lessee at 64thmonth of the Commencement Date |
2 | B9 Concrete Construction and Retrofit | 5 |
3 | Equipments Room Design Fee | 5 |
4 | Equipment Room (water chillers) | 5 |
5 | dual-circuits 1*1600KVA transformer, high and low voltage, Incoming and outcoming cabinets and measure cabinets | 8 | 2,100,000.00 | 168,000.00 | Full returned to Lessee at 100th month of the Commencement Date |
6 | Passenger Lift:800kg | 8 | 450,000.00 | 36,000.00 |
7 | Cargo Lift： 3000kg |
EXHIBIT 4: LEASED PROPERTY HANDOVER CONDITION
Item | B9 workshop project |
Main structure acceptance | Factory Facilities Acceptance Criteria | remarks | Actual construction delivery | Confirm |
Main structure | Without leakage | | | |
Doors and windows | Without leakage and damage | | | |
power distribution house acceptance | Acceptance Criteria | | |
Doors and windows | should be open outwardly, preventing small animals measures should be integrated | | |
Lighting | illumination intensity should be not less than 250lx , accord with fireproof requirements, and the sign is obvious | | |
卫生环境 Hygiene environment | 无杂物，进出线孔洞应封堵完好 Without sundry, cavern should plugging intact | | |
高压柜 high-voltage cabinet | 安装端正，牢固，柜门及隔板封闭良好Install decently and firm, cabinet door and clapboard are well closed | | |
低压柜 low voltage cabinet | 配备绝缘板 Equipped with insulation board | | |
发动机自动互锁转化柜 Automatic engine interlock transformation ark | 动作准确 Movements accurately | | |
电力供应 Power supply | 采用双回路供电 dual-circuits power supply | | |
电缆、保护、变压器电气设备及柴油发电机 Cable, protection, transformer electrical equipment and diesel generator | 出厂测试，安装合格检验验收报告齐全 The factory test and install inspection report are complete. | | |
power distribution house acceptance | Acceptance Criteria | Actual construction delivery | Confirm |
Lighting | Illumination intensity should be not less than 200lx, should be installed one or more power socket | | |
ventilation | Stale air shall not be discharged into room | | |
Related material | Architectural layout, manufactured products quality certificate and lock device, speed device, safety clamp and buffer type test certificate copy | | |
Fire control system acceptance | Acceptance Criteria | remarks | | |
Related material | Provide fire control system design, the examination and approval, the completion acceptance certificate materials | | | |
Remarks：
| 1. | | The afore-described conditions will be subject to the construction drawings that shall be confirmed by the Parties; |
| 2. | | The afore-described conditions may be subject to certain change or adjustment in accordance with the actual situation, and any such change or adjustment shall be subject to Parties’ mutual agreement. |
EXHIBIT 5: REAL ESTATE CERTIFICATES
State-owned Land Use Certificate
Construction Land Planning Permit
Construction Engineering Planning Permit of B9
Final Acceptance of Construction of B9
EXHIBIT 6：Monthly Rent Payment Plan of Additional Equipment and Facilities
（96 months from 13th day of May, 2011）
| | | | | | | |
#of Month | Total Amount of Payment Monthly | | #of Month | Total Amount of Payment Monthly | | #of Month | Amount of Payment Monthly |
1 | 65,093.67 | | 33 | 57,581.64 | | 65 | 32,789.92 |
2 | 64,849.67 | | 34 | 57,337.04 | | 66 | 32,639.13 |
3 | 64,605.67 | | 35 | 57,091.43 | | 67 | 32,487.34 |
4 | 64,361.66 | | 36 | 56,845.82 | | 68 | 32,336.56 |
5 | 64,117.66 | | 37 | 56,601.22 | | 69 | 32,184.77 |
6 | 63,873.65 | | 38 | 56,355.62 | | 70 | 32,032.99 |
7 | 63,629.65 | | 39 | 56,111.00 | | 71 | 31,882.20 |
8 | 63,385.65 | | 40 | 55,865.40 | | 72 | 31,730.41 |
9 | 63,141.64 | | 41 | 55,620.79 | | 73 | 31,579.63 |
10 | 62,897.64 | | 42 | 55,375.19 | | 74 | 31,427.84 |
11 | 62,653.64 | | 43 | 55,129.58 | | 75 | 31,276.05 |
12 | 62,409.63 | | 44 | 54,884.97 | | 76 | 31,125.27 |
13 | 62,165.63 | | 45 | 54,639.37 | | 77 | 30,973.48 |
14 | 61,921.62 | | 46 | 54,394.77 | | 78 | 30,822.70 |
15 | 61,677.62 | | 47 | 54,149.15 | | 79 | 30,670.91 |
16 | 61,433.62 | | 48 | 53,903.55 | | 80 | 30,520.12 |
17 | 61,189.61 | | 49 | 53,658.95 | | 81 | 30,368.34 |
18 | 60,945.61 | | 50 | 53,413.34 | | 82 | 30,216.55 |
19 | 60,701.61 | | 51 | 53,168.73 | | 83 | 30,065.77 |
20 | 60,457.60 | | 52 | 52,923.12 | | 84 | 29,913.98 |
21 | 60,213.60 | | 53 | 52,677.52 | | 85 | 29,763.19 |
22 | 59,969.60 | | 54 | 52,432.92 | | 86 | 29,611.41 |
23 | 59,725.59 | | 55 | 52,187.30 | | 87 | 29,459.63 |
24 | 59,481.59 | | 56 | 51,942.70 | | 88 | 29,308.83 |
25 | 59,237.58 | | 57 | 51,697.10 | | 89 | 29,157.05 |
26 | 58,993.58 | | 58 | 51,451.49 | | 90 | 29,006.26 |
27 | 58,749.58 | | 59 | 51,206.88 | | 91 | 28,854.48 |
28 | 58,505.57 | | 60 | 50,961.27 | | 92 | 28,702.69 |
29 | 77,592.07 | | 61 | 33,396.06 | | 93 | 28,551.90 |
30 | 58,317.47 | | 62 | 33,244.28 | | 94 | 28,400.12 |
31 | 58,071.85 | | 63 | 33,093.49 | | 95 | 28,249.34 |
32 | 57,827.25 | | 64 | 32,941.70 | | 96 | 28,097.54 |
注明：
1. 以上所指附属设备及设施与附录三所述的附属设备及设施的内容一致
2. 以上表格中列出的各期（月）租金金额已经含附属设备设施的本金、利息和所有税金。
3. 涉及到中国人民银行利率的调整，针对附属设备及设施部分的，经双方书面确认后，参照银行利率调整的惯例实施。
4、涉及到当地政府税率政策的调整，针对附属设备及设施部分的，经双方书面确认后，遵照政府相关规定实施。
EXHIBIT 7
附录八
EXHIBIT 8
