EXHIBIT 4.4
TO ANNUAL REPORT
ON FORM 20-F
COMPREHENSIVE SERVICES AGREEMENT
BY AND BETWEEN
GUANGZHOU RAILWAY GROUP YANGCHENG RAILWAY COMPANY
AND
GUANGSHEN RAILWAY COMPANY LIMITED
DATED AS OF NOVEMBER 15, 2004
TABLE OF CONTENTS
Article 1 Scope of the Comprehensive Services............................3
Article 2 Undertakings and Warranties....................................4
Article 3 Security Services..............................................7
Article 4 Hygienic and Anti-Epidemic Services............................8
Article 5 Nursery and Kindergarten Services..............................9
Article 6 Contracted Train Conductor Services............................9
Article 7 Other Services................................................13
Article 8 Liabilities for Breach of Contract............................14
Article 9 Miscellaneous Provisions......................................15
2
This Comprehensive Services Agreement (this "Agreement") is entered into
by and between:
(1) GUANGZHOU RAILWAY GROUP YANGCHENG RAILWAY COMPANY ("Party A")
Legal address: No. 28 Baiyun Road, Guangzhou; and
(2) GUANGSHEN RAILWAY COMPANY LIMITED ("Party B")
Legal address: No. 1052 Heping Road, Shenzhen
Whereas:
(1) Party A is a comprehensive rail services provider duly existing with
the independent legal person capacity after its rail transportation
assets and business are purchased by Party B, and has the requisite
power for contract performance;
(2) Party B is a rail transportation operator and intends to retain
Party A to provide it with various kinds of services related to
Party B's business after its acquisition of Party A's rail
transportation assets and business;
Now, therefore, in accordance with the Contract Law of the People's Republic of
China (the "PRC") and other relevant PRC laws and regulations, Party A and Party
B, after consultations and by adhering to the principle of equality and free
will, hereby reach the following agreement regarding Party A's provision of the
Comprehensive Services to Party B:
ARTICLE 1 SCOPE OF THE COMPREHENSIVE SERVICES
1.1 The services to be provided to Party B by Party A hereunder shall
include security services, hygienic and anti-epidemic services, nursery and
kindergarten services, property management, buildings maintenance and repair,
and any other services that are consistent
3
with the purposes of this Agreement (hereinafter referred to as the
"Comprehensive Services"). The property management services shall include the
management of the employee dormitories and apartments.
1.2 For purposes of this Agreement, unless otherwise expressly provided
herein, references to "Party A" shall include Party A itself, and any company,
entity and department that are owned, controlled, managed or used by Party A
during the term of this Agreement, including any institutions, equipment,
facilities, premises, buildings and employees that are owned, controlled,
managed or used by such company, entity or department.
ARTICLE 2 UNDERTAKINGS AND WARRANTIES
2.1 Party A agrees to provide the Comprehensive Services to Party B
pursuant to this Agreement and hereby undertakes and warrants to Party B as
follows:
2.1.1 Party A shall, and shall cause the companies, entities and
departments that are owned, controlled, managed or used by it
to, provide the Comprehensive Services to Party B pursuant to
the provisions contained herein.
2.1.2 Unless otherwise provided herein, Party A shall have complete
and unrestricted ownership, control, management rights and use
rights to any entity subordinate to it; and that its rights,
control, management and use, or the size, scope, quality or
quantity of any of such entity shall not be reduced during the
term hereof.
2.1.3 The quality, quantity and contents of any Comprehensive
Services to be provided hereunder shall not be inferior to the
standard of the same type of services provided by Party A
within its own organization prior
4
to the date hereof, or provided to any third party by Party A
after the effectiveness hereof.
2.1.4 In the provision of the Comprehensive Services hereunder,
Party A may not discriminate against Party B or deliberately
make things difficult for Party B to do or otherwise unfairly
treat Party B, and shall provide the Comprehensive Services to
Party B as a top priority and at the most competitive quality
and price if practicable.
2.1.5 All fees received from Party B as specified herein for the
Comprehensive Services provided hereunder shall not be used
for any purpose other than the benefit of the entities that
have actually provided the Comprehensive Services hereunder.
2.2 Party B agrees to receive the Comprehensive Services from Party A
pursuant to this Agreement and hereby undertakes and warrants to Party A as
follows:
2.2.1 Party B shall pay Party A the agreed fees for the
Comprehensive Services provided by Party A hereunder.
2.2.2 Subject to any contrary provisions herein, any and all of the
service fees payable by Party B for each year shall be prepaid
by Party B in 12 installments with one installment of an
agreed amount for each month. After the effectiveness of this
Agreement, the installment of the service fees for each month
shall be paid to an account designated by Party A within the
first five days (which shall be extended accordingly if any
holiday falls within such five days) of such month. Where any
portion of any installment becomes overdue, delay payment
interest shall accrue thereon at a rate of 0.03% for each day
of delay.
5
2.2.3 In case Party B provides any services to Party A and shall
receive any fees from Party A therefor, the above undertakings
and warranties of one party to the other in respect of payment
shall be equally applicable to both parties.
2.3 Standard for Settlement of Service Fees
2.3.1 The rate of fees for hygienic and anti-epidemic services and
security services shall remain unchanged during the term
hereof and the settlement base amount of such fees shall be
determined according to the following formula:
fees for hygienic and anti-epidemic services and security
services for any given year = {[Party B's converted turnover
volume in such given year / (arithmetic average of Party B's
converted turnover volumes during the period from 2002 to
2004)] x 50% + [Party B's operating revenue during such given
year / (arithmetic average of Party B's operating revenues
during the period from 2002 to 2004)] x 50%} x Party A's
expenses for the provision of the hygienic and anti-epidemic
services and security services in 2004,
whereof, the "converted turnover volume" refers to the volume
of passengers and freight accomplished by Party B calculated
on the basis of the weight and the mileage of the freight
carried by Party B and the number and mileage of passengers
carried by Party B.
Party B's converted turnover volume and operating revenues as
set forth above shall be calculated on the basis of Party B's
business model after its acquisition of Party A's rail
transportation assets and business.
6
2.3.2 Fees for nursery and kindergarten services provided to Party B
by Party A shall be calculated according to the following
formula:
fees payable by Party B for nursery and kindergarten services
= total expenses (costs) incurred by Party A's nurseries and
kindergartens / number of all of the children therein x number
of children of Party B's employees therein.
2.3.3 Fees payable to Party A for its provision of the property
management and buildings maintenance and repair services shall
be equal to the complete costs of such item of services x
(1+8% rate of profit).
2.4 In case of any change to the above scope of the Comprehensive
Services, both parties agree to determine the rate of fees for any item of
services on the basis of the above principles.
2.5 References to "expenses", "complete costs" or "costs" shall mean costs
inclusive of taxes and be composed of the "expenses" or "costs" set forth in the
audited financial statements and the taxes and charges payable by the service
provider for the service fees received by it. Such taxes and charges shall
include business tax at a rate of 5%, urban construction tax at a rate of 7%,
education surcharge at a rate of 3% and anti-flood dam building charge at a rate
of 1.3-0/00.
The party receiving services may, subject to a 30-day's prior notice
to the party providing services, in conjunction with the party providing
services, retain an accounting firm to audit the said costs and expenses, and
the result of such audit shall be the conclusive evidence for the determination
of the said costs and expenses.
ARTICLE 3 SECURITY SERVICES
3.1 Party A agrees to provide Party B with security services through
those
7
railway public security departments, railway procuratorates and railway courts
subordinate to Party A, including but not limited to the duty of guarding,
railway stations and trains during Party B's daily operation and spring-festival
operation, maintaining the public order and security when passengers buy
tickets, board or get off trains, enter or leave railway stations and when
owners of goods receive, consign or transport the goods, following up and
investigating and handling such offenses as striking trains with stones, placing
obstacles on tracks and stealing railway materials, assisting Party B in
handling such disasters and accidents as rail line bodily injury or death and
traffic accidents caused by motor vehicles, supervising railway fire-fighting
work and preventing fire and explosion.
3.2 Party A shall ensure that those railway public security
departments, railway procuratorates and railway courts subordinate to it shall
diligently perform the services set forth in 3.1 above for Party B to protect
Party B's legal interests.
ARTICLE 4 HYGIENIC AND ANTI-EPIDEMIC SERVICES
4.1 Party A hereby agrees to provide Party B, its employees and their
family members with planned immunization, occupational disease prevention and
treatment, environmental monitoring, disease control, recuperation and
convalescence as well as other related services through its hygienic and
anti-epidemic institutions and entities. Party A must ensure that it shall:
(a) put diseases under strict control and provide technical hygienic
services in a timely manner;
(b) monitor various hygienic practices, environmental protection, and
prevention and treatment of occupational diseases and tuberculosis
in accordance with law to make sure that all of such work is
performed strictly in compliance with relevant laws and regulations;
and
8
(c) give health education to Party B's employees.
4.2 Should Party B suffer from an unexpected accident or natural disaster
and need relevant departments under Party A to provide additional hygienic and
anti-epidemic services, Party A shall actively provide such services and Party B
shall pay Party A the fees for such services at the amount actually incurred by
Party A.
ARTICLE 5 NURSERY AND KINDERGARTEN SERVICES
5.1 Party A agrees to provide Party B's employees with nursery and
kindergarten services through its own nurseries and kindergartens and ensure
that:
(a) children of Party B's employees can go to the nurseries and
kindergartens as close to them as possible;
(b) quality of education and facilities in Party A's nurseries and
kindergartens shall be no inferior than that in the other local
nurseries and kindergartens of the same level; and
(c) children of Party B's employees can enjoy the equal treatment in
Party A's nurseries and kindergartens as other children therein.
5.2 Any and all other miscellaneous expenses charged by nurseries and
kindergartens against certain children therein for personal purposes in
accordance with relevant local regulations shall be paid by Party B's individual
employees whose children enter nurseries or kindergartens. Party A shall not
charge Party B's employees any kind of so-called "education development fees" or
any other fees of the same nature or for the same purpose.
ARTICLE 6 CONTRACTED TRAIN CONDUCTOR SERVICES
6.1 Party B agrees that Party A's subsidiary companies, Guangdong Railway
Youth Travel Service Co., Ltd. ("GRYTS") and Shaoguan Labor Service Company
9
("SGLS"), shall contract to provide train conductor services to portion of the
passenger trains operated by Party B. The specific train runs contracted to
GRYTS and SGLS and the related contracting fees shall be determined by and
between such Party B and GRYTS and SGLS on a case-by-case basis.
6.2 The scope of the conductor services contracted to GRYTS and SGLS shall
include but not limited to the sale of tickets for, and operation of buffet
business and sale of train commodities related to the relevant contracted
passenger train runs.
6.3 Revenues received by GRYTS and SGLS from their sale and make-up sale
of tickets for the relevant contracted passenger train runs shall be vested in
Party B; revenues received by GRYTS and SGLS from their sale of commodities and
operation of buffet business on trains shall be vested in GRYTS and SGLS. The
expenses for the use and maintenance and repair of the contracted trains and the
train expenses stipulated by the Ministry of Railway for such trains shall be
paid by Party B. The train conductor services for the contracted trains shall be
performed by GRYTS and SGLS and the salary of the conductors and any and all of
the expenses incurred in the provision of the contracted conductor services for
the contracted trains shall be paid by GRYTS and SGLS; provided that,
liabilities for bodily injury or death of any passenger on any of the contracted
trains not attributable to GRYTS or SGLS, shall be assumed by Party B.
6.4 Party A hereby warrants that it will cause GRYTS and SGLS to achieve
their respective contracted ticket sales revenue targets on the basis of safe
transportation and observance of railway code of ethics. The contracted ticket
sales revenue targets shall be determined by Party B and GRYTS and SGLS subject
to mutual agreement on the basis of the specific train runs contracted to GRYTS
and SGLS. In case the actual ticket sales revenues made by GRYTS or SGLS exceed
its respective contracted ticket sales revenue target, the payment to GRYTS or
SGLS for its provision of the contracted conductor
10
services hereunder shall be increased in proportion to the amount of the actual
ticket sales revenue made by it in excess of its respective ticket sales revenue
target. On the contrary, in case the actual ticket sales revenues made by GRYTS
or SGLS fail to reach its respective contracted ticket sales revenue target, the
payment to GRYTS or SGLS for its provision of the contracted conductor services
hereunder shall be reduced in proportion to the difference between the actual
ticket sales revenue made by it and its respective ticket sales revenue target.
In case a force majeure event occurs during the term of the operation by GRYTS
and SGLS of the contracted conductor services and the ticket sales revenues for
the contracted trains are materially and adversely affected thereby, the ticket
sales revenue targets may be reviewed and re-determined by and between Party B
and GRYTS and SGLS subject to mutual agreement between them after consultations.
6.5 For the contracted conductor services and related train services
provided by GRYTS and SGLS, each of GRYTS and SGLS shall receive from Party B
service fees and a share of the revenue from the make-up sale of tickets. The
fees for the provision of the conductor services and related services contracted
to GRYTS and SGLS hereunder shall be calculated on the basis of the conductor
services/1000 train-kilometer (excluding the power generation cars), and shall
be RMB 800/1000 train-kilometer for each passenger train conductor for the
air-conditioned cars and RMB 400/1000 train-kilometer for each passenger train
conductor for the non-air-conditioned cars. GRYTS and SGLS shall each be
entitled to receive 30% of the revenue from its make-up sale of tickets as its
share. The above fees shall be settled by the quarter and Party B and GRYTS and
SGLS shall confirm the settlement amount within 15 days as of the end of each
quarter. Upon confirmation of the settlement amount, Party B shall pay the same
to GRYTS or SGLS (as the case may be) within 10 days as of its receipt of the
formal invoice from GRYTS or SGLS (as the case may be).
11
6.6 Fees involved herein shall not be included in the settlement fees set
forth in Clause 2.3.
6.7 GRYTS and SGLS shall have use rights only and not ownership to the
trains contracted to them. Neither of them may sublease or transfer any of the
trains contracted to them, or add or remove any part from any of such trains
without prior consent from Party B.
6.8 Neither of GRYTS and SGLS may use any of the trains contracted to them
for illegal operation and the scope of business activities conducted by each of
GRYTS and SGLS may not exceed their respective scope of business set forth on
their business license or the scope of the business contracted to it hereunder.
6.9 Both GRYTS and SGLS shall protect the facilities of the trains
contracted to them and shall be responsible for maintaining the facilities of
the trains contracted to them safe and intact; provided that GRYTS and SGLS
shall not be held liable if any train is substantially damaged or destroyed due
to the occurrence of a force maejure event. In case any contracted train is
substantially damaged or destroyed due to the occurrence of a force majeure
event, either GRYTS or SGLS (as the case may be) shall promptly notify Party B
thereof. In case of the failure of GRYTS or SGLS (as the case may be) to give
such notice and any economic loss is caused thereby, such economic loss shall be
assumed by GRYTS and SGLS (as the case may be).
6.10 GRYTS and SGLS shall be liable for any accident relating to
transportation safety and any incident relating to railway code of ethics
occurring to or in any contracted train and any loss resulted therefrom during
the term of the operation by GRYTS and SGLS of the contracted business
hereunder, unless the Ministry of Railway determines that such accident and
incident shall not be attributable to GRYTS or SGLS and the persons liable for
such accident and incident have been identified. In case of any such accident or
12
incident, GRYTS and SGLS shall assist Party B in bringing a claim against the
persons held liable for therefor.
ARTICLE 7 OTHER SERVICES
7.1 Party B hereby retains Party A to provide property management and
related services to Party B's bachelor dormitories and other housing including
but not limited to housing repair, maintenance and management, and related daily
water and electrical power supply, greening, cleaning, fire-prevention,
theft-prevention, road maintenance and public lighting.
7.2 The housing property management and related services provided by Party
A to Party B's employees shall be at least of the same level (same management
fees, same service standards and opportunities) as the same services provided by
Party B to employees of Guangzhou Railway (Group) Company and other group
companies.
7.3 Party B may, based on its actual needs, retain Party A to provide it
with building repair and maintenance services. Such repair and maintenance
services must comply with the regulatory standards set by the State or the
relevant industry and Party B's own technical and quality requirements.
7.4 Subject to mutual agreement between Party A and Party B after
consultations, Party A and Party B may execute separate lease contracts
regarding Party A's lease of property such as office buildings and residential
buildings to Party B; provided that the rate of rental for such lease shall be
no higher than the prevailing market price or the rate of rental offered to any
third party by Party A.
7.5 Any and all of the house purchase contracts executed by Party A with
any employees transferred from Party A to Party B as a result of the assets and
business acquisition by Party B, shall be continued to be performed by Party A,
including both rights and obligations under such contracts.
13
7.6 Any of Party A's existing land planned for residential building
construction for which Party A has executed a contract shall be vested in Party
A. After the completion of the building on such land, the building shall first
be divided between Party A and Party B in proportion to the number of employees
of each party residing in the area where the building is located. Each of Party
A and Party B shall then allocate among its own employees the portion of houses
in such building distributed to it. The difference between the expenses required
by the construction of such building and the proceeds from the sale of houses in
such building to the employees of Party A and Party B pursuant to relevant
regulations of the local government, shall be apportioned between Party A and
Party B according to the number of houses distributed to it.
7.7 To the extent that both the price and quality are appropriate, Party B
will purchase steel crossties from Party A's subsidiary company, Lechang Anjie
Rail Crossties and Tracks Co., Ltd., based on Party B's business needs and such
transactions shall be conducted on the basis of the market price or industrial
guiding price.
7.8 Any and all of the fees paid to Party A or any of Party A's subsidiary
companies pursuant to clauses 7.4, 7.6 or 7.7 shall not be included in the
settlement fees set forth in Clause 2.3 hereinabove.
ARTICLE 8 LIABILITIES FOR BREACH OF CONTRACT
8.1 Both parties shall perform their respective obligations hereunder
voluntarily and in good faith. Should this Agreement be rendered unable to be
performed either in whole or in part due to any breach of either party, the
breaching party shall assume the liabilities for such breach. Should both
parties breach this Agreement, each of the parties shall assume its respective
liabilities in proportion to its own fault; provided that, the assumption of the
liabilities for breach of contract shall not prejudice the right of the
non-breaching party to request the breaching party to continue to perform its
obligations.
14
8.2 In the event that any of Party A's wholly-owned or controlled
subsidiaries or controlled entities who performs any of Party A's obligations
hereunder pursuant to this Agreement or any supplementary agreement hereto
commits a breach, such subsidiary or entity shall assume its respective
liabilities for such breach and Party A shall assume joint liabilities therefor.
8.3 For any fees payable by Party B to Party A or any of its wholly-owned
or controlled subsidiaries or other controlled entities hereunder, invoices or
receipts shall be issued to Party B in accordance with PRC tax laws or other
relevant laws or regulations. Party A or any of its wholly-owned or controlled
subsidiaries or other controlled entities shall fully indemnify Party B against
any loss arising from any penalty imposed upon or any claim brought against
Party B due to the violation by any of Party A or its wholly-owned or controlled
subsidiaries or controlled entities of any relevant stipulations.
ARTICLE 9 MISCELLANEOUS PROVISIONS
9.1 This Agreement shall come into effect upon:
9.1.1 execution and affixture with the company seals by the legal or
authorized representatives of both parties;
9.1.2 Party B's carrying out of the resolution procedures for
affiliated transactions, receipt of the approval to this
Agreement from its independent shareholders or the exemption
from Hong Kong Stock Exchange to the affiliated transactions
involved herein in accordance with Party B's Articles of
Association and the Listing Rules of the Hong Kong Stock
Exchange;
9.1.3 Party B's receipt of the approval to its proposed initial
public offering of A shares inside the PRC and the entrance of
all of the funds raised
15
through such offering into Party B's account; and
9.1.4 The effectiveness of the Railway Operating Assets Purchase
Agreement By and Between Guangzhou Railway (Group) Company and
Guangzhou Railway Group Yangcheng Railway Company and the
consummation of the acquisition of assets and business
contemplated thereunder.
This Agreement, upon becoming effective, shall supercede any
and all of the agreements or arrangements by and between Party
A and Party B in respect of the Comprehensive Services
hereunder prior to the effective date hereof.
9.2 Headings used herein are inserted only for purpose of convenience and
shall not impair the meaning of this Agreement or any provision herein.
9.3 Neither Party A nor Party B may assign any of its interests hereunder
to any third party at its own discretion without prior written consent from the
other party. This Agreement shall be binding upon the permitted assignees of
both Party A and Party B and the successors of the rights and obligations of
each of Party A and Party B resulted from the division, consolidation or any
other kind of legal person change of each of Party A and Party B. For purposes
of this Article, the companies and entities controlled, managed or otherwise
under the regulation by either Party A or Party B shall not be considered a
"third party".
9.4 In case either party breaches any of its obligations hereunder and
causes any economic loss to the other party, the other party shall have the
right to request the breaching party to provide a remedy within a specified time
limit, continue to perform this Agreement or make compensation for various
losses, and may rescind any relevant portion of this Agreement or this Agreement
in whole when necessary.
16
9.5 The execution, effect, interpretation, performance of, and resolution
of any dispute arising from, this Agreement shall be governed and protected by
the laws of the People's Republic of China.
9.6 Where after the effectiveness of this Agreement, the economic
interests of either Party A or Party B are materially adversely affected by the
enactment of any new law, regulation or order, or any amendment made to any
existing law, regulation or order, or any new interpretation of any existing
law, regulation or order, Party A and Party B shall immediately conduct
negotiations on any necessary amendment to this Agreement to ensure that each
party will receive the originally intended benefits hereunder. Where either
party's interests are still subject to substantial damage even after such
amendment to this Agreement, this Agreement may be terminated by agreement
between Party A and Party B after consultations.
9.7 Party A and Party B may execute supplementary agreements for any
specific items of services on the basis of the principles set forth herein. Such
supplementary agreements shall constitute an integral part of this Agreement and
shall have the equal legal effect as this Agreement. In case of any discrepancy
between any of such supplementary agreements and this Agreement, this Agreement
shall prevail, unless otherwise provided in such supplementary agreement.
9.8 This Agreement shall be valid for three years commencing from the
effective date hereof.
9.9 For purposes of this Agreement, "day" shall refer to a business day
other than weekends and public holidays in the PRC.
9.10 This Agreement shall be executed in five copies with each of Party A
and Party B to hold two and one copy to be submitted to Guangzhou Railway
(Group) Company. Each of the copies shall have equal legal effect.
17
PARTY A: (company seal)
Legal or authorized representative: ____________________
PARTY B: (company seal)
Legal or authorized representative: ____________________
18