EXHIBIT 4.33
No TD0155
Lease Agreement
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO. LTD.
LESSEE: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO. LTD.
The lessor is the owner of the Tenda Building, which the lessor agrees to
let and the lessee agrees to lease. Pursuant to the Contract Law of the
People's Republic of China and other relevant laws and regulations, two
parties enter into a lease agreement as follows to stipulate the rights and
obligations of the lessor and lessee.
Article 1 Rental, Property Management Fee and Deposit
1.1 The lessor agrees to let the rooms of 01/02/03/11 on the 22nd Floor of
Tenda Building to the lessee as office. The lease area of the rooms
(hereinafter referred to as the "Leased Rooms"), mutually confirmed by the
two parties, is 601 square meters in total. (Appendix 1 of this Agreement
is the surface area drawing of the Leased Rooms, which is used exclusively
to confirm the location.)
1.2 The lease term is 1 year 3 months 7 days, commencing from the 21st
February 2005 to 27th May 2006.
1.3 The rent is USD 14.40/Month/Sq.M. (RMB 3.98 Yuan/Day/Sq.M) while the
Property Management Fee is USD 3.6/Month/Sq.M (RMB1 Yuan/Day/Sq.M).
Therefore the total fee for each month (including the property management
fee) is USD 10,818.00 (RMB 89789.40 Yuan).Every month is calculated as 30
days in this agreement. The rent and property management fee shall be paid
monthly and prepaid every month; that means the lessee shall pay the rent
and property management fee of the next month before the 21st of each
previous month in RMB. The aforesaid fee will not be regarded as having
been made unless lessor has received the payment. The lessor shall issue
corresponding legal receipts to the lessee once the lessee made the
payment.
1.4 The lessor is entitled to adjust the rental and property management fee
in the case that the lease term is more than 2 years.
1.5 The lessee shall give three months' rent and property management fee to
the lessor as the guaranty of performing this Agreement (hereinafter
referred to as the "deposit"), which amount to USD 32,454.00 (RMB
269,368.20 Yuan, in words: TWO HUNDRED SIXTY NINE THOUSAND THREE HUNDRED
AND SIXTY EIGHT YUAN TWENTY JIAO).
1.6 The lessee may terminate this Agreement by written notice to the
lessor, in the case that the lessor fails to deliver the Leased Rooms to
the lessee without any fault or negligence. Under such circumstances, the
lessor shall return the deposit, rent and property management fee, which
have been collected, to the lessee (without charging any interest of the
aforesaid fees).
1.7 The rent and property management fee shall be paid monthly and prepaid
every month within 10 days commencing from each lease term begins; that
means the lessee shall pay the rent and property management fee of next
month before the 21st of each previous month (including 21st of each
month). The aforesaid fee will not be regarded as having been made unless
the lessor has received the payment. The lessee shall pay the lessor a late
fee, which is two per ten thousand of the delayed payment per day, provided
that the lessee failed to make the payment pursuant to the period
stipulated in the Agreement.
1.8 The lessor is entitled to deduct from the deposit in compensation for
lessor's losses and the delayed payment in case that the lessee violates
the Agreement (including delaying the payment of rent, property management
fee, compensating lessor's damages due to lessee's failure in performance
of the agreement). When the amount of the deposit kept by the lessor after
the deduction of rental therefrom is less than the amount prescribed herein
in clause 5, the lessee shall replenish it within three days after receipt
of a written notice from the lessor. Otherwise, the lessor has the right to
take such measures as cutting telephone line or power until the agreement
is terminated by lessor. The lessee shall compensate lessor's economic
losses result from deposit deficiency.
1.9 In case the lessee fully performs this Agreement, the lessor shall
return the whole deposit (without interest) to the lessee within 30 days
from the day when
this agreement is expired, the lessee returns the Leased Rooms and pays up
relevant fees to lessor.
1.10 Without the permission of the lessor, the lessee cannot assign the
right of claim for the return of the deposit to any third party or use it
as a guaranty for lessor's debt.
Article 2. Termination by the lessee during the valid period of this Agreement
With written notice to the lessor and paying the whole deposit, this
Agreement can be terminated by the lessee during the valid period.
Article 3. The Equipments and Reconstruction of the Leased Rooms
3.1 The lessor shall furnish the house with the following equipments:
1. central air-conditioner, ceiling(including intake, automatic
smoke sensor, gushing machine, daylight lamp and head lamp, etc)
2. 220v electrical plug, communication circuitry, antenna plug for
satellite TV.
3.2 In need of making any fitments or reconstruction of the Leased Rooms,
the lessee shall provide the lessor with blueprint and scheme of the
fitments and reconstruction as well as the introduction of the construction
enterprise and its personnel in advance. The construction enterprise is
obligated to pay management fee RMB 3,918.52 Yuan (in words: RMB THREE
THOUSAND NINE HUNDRED EIGHTEEN YUAN FIFTY TWO JIAO) to the lessor. The
construction can be commenced, provided that the payment of construction
guaranty fee and management fee is paid by the construction enterprise. The
lessor shall refund the construction fee to the lessee, in case that,
through lessor's checking and accepting, the lessor confirms the
construction is completed based on the blueprint and scheme approved by the
lessor and no damages has been made to equipments or facilities of the
Leased Rooms. The lessee shall bear the taxes of the additional fitments
and equipments, regardless the account name on the bill or what kind of fee
item the tax shown on the bill.
3.3 In case that the lessee rents a direct telephone number (the account is
opened under the name of the lessor in the telecom company) from the
lessor, who will bear the telephone fee instead of the lessee, the lessee
shall pay RMB 5000Yuan/each line (in words: RMB FIVE THOUSAND Yuan each
line) as deposit of the telephone fee and RMB 300 Yuan /Year/Line (in
words:RMB THREE HUNDRED YUAN every year for each line) as circuitry
maintenance fee. After paying the deposit of telephone fee and circuitry
maintenance fee, the lessee may choose telephone number and the lessor is
responsible for installing the telephone. The lessee shall pay each month's
telephone bill within 7 days after receiving the notice from the lessor.
The lessor shall refund the deposit of telephone fee without interest to
lessee when the Agreement is expired; In case that the lessee brings the
direct telephone number itself or open an account under the name of itself
in the telecom company, it shall pay the following fees in lump sum:
circuitry occupation fee of RMB 200Yuan/each line (in words: RMB TWO
HUNDRED YUAN each line), transfer fee of RMB 5 Yuan/each line (in words:
RMB FIVE HUNDRED each line) and circuitry maintenance fee of RMB
100Yuan/each line (in words: RMB ONE HUNDRED Yuan each line). The lessor
shall assist lessee in installing the telephone.
Article 4. Re-leasing
After the expiry of the lease, the lessee has the right of priority to
extend the term of the agreement under the same circumstances, provided
that the lessee notifies the lessor in writing three months before the
expiry of the agreement. The terms and conditions of re-leasing shall be
negotiated by both parties (the range for the adjustments of the price
shall be made according to the rise or drop of the real estate index and
the general leasing price of the whole building). If the lessee does not
notify the lessor in the aforesaid period, it will be regarded that lessee
will not re-lease the Leased Rooms and shall move out of the Leased Rooms
before the termination date of the Agreement.
Article 5. The Return of the Leased Rooms
5.1 After the expiry of the agreement, the lessee shall return the Lease
Rooms according to the time notified by the lessor. If the Leased Rooms
cannot be returned on time for the reason on the part of the lessee and
there is a new
lessee, the lessor in entitled to request the lessee to leave the Leased
Rooms in 3 days and deduct part of or entire deposit in compensating
lessor's losses suffered from lessee's delaying in returning the Lease
Rooms. In case the deposit is not sufficient for compensating lessor's
losses, the lessor is entitled to claiming for the insufficient part. If
the Leased Rooms have not been rented to other lessees, it will be deemed
by the lessor that the lessee will re-lease the Leased Rooms. In such
circumstances, the lessee shall re-lease the Leased Rooms. If lessee
refuses to re-lease, the lessor will have the right to request the lessee
to move out of the Lease Rooms and deduct part of or entire deposit in
compensating lessor's losses suffered from lessee's delaying in moving
out..
5.2 When the lessee return the Lease Rooms after expiration, the Leased
Rooms shall be in good status(excluding reasonable wear and tear); the
lessor has right to deduct the deposit to compensate corresponding
reasonable losses when it finds that the rooms and equipments is damaged
from the reason on part of the lessee. In case the deposit is not
sufficient enough to compensate lessor's losses, the lessee shall replenish
the margin in case that the deposit is insufficient for the losses within 3
days after receiving lessor's written notice.
5.3 As to accession made by the lessee to the Leased Rooms (shall be
approved by the lessor), the lessor is not certainly to request the lessee
to restore it to the original conditions. The lessor shall not pay the
expenses back for the accession even if the lessee does not make the
restoration.
Article 6. The Obligations of the Lessee
The lessee agrees to abide by the following provisions:
6.1 The lessee shall abide by all the rules and regulations stipulated by
the lessor and its authorized agent. The detail content is in Appendix two
"Client Handbook". The lessee shall strictly abide by the rules and
regulations and can not reject without reasonable causes if lessor notifies
lessee of all reasonable alteration it made on the rules and regulations
(adding or reducing clauses or revising). If inconsistency occurs between
the Client Handbook and this Agreement as well as other appendixes, the
concluded Agreement and appendixes shall prevail.
6.2 The lessee shall not or allow others to take any actions, which will
make the insurance of the Lease Rooms and the building invalid or possibly
invalid, or result in an increase of the insurance premium. Otherwise, the
lessee shall bear the corresponding increase of the insurance premium and
other related expenses for repurchase of the insurance by the lessor due to
lessee's violation of this clause. The lessee shall pay the aforesaid fees
according to the period asked by lessor after the occurrence of lessee's
violation.
6.3 The lessee shall not take the following activities
1. To use the Leased Rooms to conduct illegal activities.
2. To assign the rights of lessee under the agreement to others or
use it as security.
3. To lease part of or entire Leased Rooms to others or let others
use the Leased Rooms.
4. To use the Leased Rooms with a third party (not including
affiliated enterprises of the lessee which means the parent
company, subsidiary, branch company of the lessee or the company
which shares the common investment party and legal representative
with the lessee) or show other's name as the lessee of the Leased
Rooms.
5. To transfer the ownerships of the ornaments, equipments and
articles in the Leased Rooms to any third party or use them as
security.
6.4 The lessor shall take charge of the safety during the lease term and be
responsible for theft or damages of the articles in the Leased Rooms. In
case of fire, the lessee shall make compensation to lessor if the fire is
occurred due to lessee's reason.
Article 7. The Obligations of the Lessor
The lessor agrees to abide by the following provisions:
7.1 The lessor shall guaranty the public facilities (including
illumination, air-conditioner, automatic smoke sensor, shower, WC and
elevator, etc.) are in
good status. The repairs shall be made in time after receiving trouble
report from the lessee.
7.2 Implementing twenty-four hours' security measures to ensure the
security of the mansion.
7.3 The lessor shall bear the corresponding losses suffered by the lessee
due to quality problems of the Leased Rooms. (excluding the matters
stipulated in Article 9 of this Agreement and the losses incurred due to
the quality resulting from lessee's reconstruction)
Article 8. Damages and Breaching Liabilities
8.1 The lessee shall compensate the lessor for losses due to intentional
actions or negligence of lessee or its agent, employee. On the contrary,
the lessor shall compensate lessee for losses due to intentional actions or
negligence of lessor or its agent, employee.
8.2 If the lessee breaches the agreement as well as appendixes and
supplementary agreement and fails to make the rectification measures within
7 days since receiving lessor's written notice, the agreement is
automatically terminated within 14 days since the written notice is issued.
The lessee shall leave the house within 5 days since the issues of the
written notice after the agreement is automatically terminated; at the same
time, the lessor is entitled to claim for damages with the amount of three
months' renting fees and management fees; the lessee also agrees to bear
losses and expenses incurred. The lessor shall deduct the guaranty money
for the compensation if the amount of the guaranty money the lessee has
paid is the same as the damages. Otherwise, the lessee is obligated to make
up the margin. The measures prescribed here are not the solitary measures.
The lessor is entitled to take other measures in case of the breach.
Article 9. Exemption From Liabilities
The lessor is exempted from liabilities in the following cases:
1. The temporary cease for the utilization of the public
establishments for the necessary maintenance of the building or
not for the reason of the lessor.
2. The losses the lessee suffers is incurred in the event of
earthquake, typhoon and other events which belongs to Force
Majeure.
3. The lessee suffers the losses for the reason of other lessees or
the third parties (but the lessor is responsible to assist the
lessee for reimbursement from the infringers).
Article 10. Abandonment of the Rights
The abandonment for any right stipulated by the agreement shall be based on
the written signature of the lessor. The facts that the renting fee or
other items the lessee paid is insufficient to the amounts stipulated by
the agreement, or with the consent of the lessor, do not have any influence
on the right of the lessor to claim for the arrearage and the rights to
take other measures according to the agreement or laws and regulations.
Article 11. The Service of the Notice
All the notices required by the agreement shall be issued in written form.
The invoices, bill of documents and other notices issued by the lessor to
the lessee shall be marked with the lessee as addressee. The written notice
is regarded as having served if it is delivered to the leased house, sent
by the registered mail or delivered to the address of the lessee in
Beijing. The notice issued by the lessee to the lessor will be regarded as
having served if it is delivered to the following address and accepted with
signature: Beijing Gao Ling Real Estate Development Co. Ltd, No.168, Xi
Zhi Men Wai Avenue, Haidian District, Beijing, China
Article 12. Disputes
The agreement shall be governed and explained by the law of PRC. Any party
may file the action to the people's court in the jurisdiction if the lessor
and lessee cannot settle the disputes which arise from the agreement with
negotiation.
Article 13. Business License and Language
The lessee shall produce business license and the authorization letter for
the authorized representative to sign the agreement on behalf of the
lessee. The copy of the duplicate of the business license and the original
authorization letter will be enclosed of the agreement. As an important
part of the agreement, the
appendix will be effected at the same time and have the same legal effect
with the agreement.
The agreement and its appendix shall be written in Chinese or English with
the same legal effect. The agreement has two original copies while the
lessor and lessee will hold one of them.
Article 14. Supplementary Agreement
The parties of the agreement can conclude supplementary agreement through
negotiation on other related matters. The supplementary agreement with the
same legal effect as the agreement will be annexed to the agreement as an
important part of the agreement.
The agreement is effective on the date of the subscription as well as the
guaranty The agreement is effective on the date of the subscription as well
as the guaranty is fully paid.
Appendix One: Surface Area Drawing of the Leased Rooms
Appendix Two: <Clients Handbook>
Appendix Three: Supplementary Agreement
(Signature Page)
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO. LTD.
ADDRESS: NO.168, XI ZHI MEN WAI AVENUE, HAIDIAN DISTRICT, BEIJING, CHINA
POST CODE: 100044
LEGAL REPRESENTATIVE (SIGNATURE): _______________
TEL: 8838 3388
ACCOUNTING BANK: ________________________
DATE: 2005-2-25
LEASEE: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD.
ADDRESS: ____________________________________
POST CODE: __________________________________
LEGAL REPRESENTATIVE (SIGNATURE): ___________
TEL: ________________________________________
ACCOUNTING BANK: ____________________________
DATE: 2005-2-25
SUPPLEMENTARY AGREEMENT FOR <THE LEASE AGREEMENT >. NUM. TD 0155
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO. LTD.
LESSEE: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD.
The lessor and lessee reach the following supplementary agreement as
to < the Lease Agreement >. Num. TD 0155 (hereafter simplified as <the
Agreement>):
1. Free Leasing Period: 75 days totally, in the following period.
1. (1) February 21, 2005 to April 6, 2005
2. (2) April 28, 2006 to May 27, 2006
During the free leasing period, the lessee shall only pay RMB 1.00
Yuan/day/Sq.M. as the management fee and other related fees. If <the
Agreement > is terminated before the expiration, the free period after the
termination date will not come into effect any more and the lessor shall
not make compensation to the lessee. The lessee shall make up for all the
renting fee according to the stipulated rental of <the Agreement> if <the
Agreement> is terminated by the lessee before the expiration of the renting
term.
2 One clause is added to the article one. The renting fee and management
fee should be calculated in USD and received by RMB. The exchange rate
between the USD and RMB is fixed at 1:8.3.
3. The lessor agrees to add roof-inhaled air-condition while the specific
construction method should be approved by the lessor. The expenses of
the reconstruction for the air-conditioning shall be borne by the
lessee. When the lessee removes the ceiling and air-condition at the
time of the termination of <the Agreement> and returns the Leased
Rooms, the lessee shall restore the ceiling and air-condition system
back to the original status while the expenses shall be borne by the
lessee.
4. The lessee shall produce blueprints in advance to the lessor and get
the consent from the lessor and the fire control department for
carrying out the construction if the lessee plans to make secondary
fitments and reconstructions to the Leased Rooms. The lessee should
not tie up the fire control channels and alter the fire control
sub-area of the Leased Rooms. The modification for the liquid,
ventilation and fire control system shall be carried out by the
construction company appointed by the lessor, while related expenses
shall be borne by the lessee.. The fitments and modification to the
common area of the building should be restored to the original status
at the time of its departure. All the expenses should be borne by the
lessee.
5. The lessor shall increase the electric power. The modification for
electric power in the rented area shall be organized by the lessor.
The lessee shall bear the related expenses which will be paid by the
lessor before the modification is carried out.
6. The lessee shall pay RMB 359,157.60 Yuan, as the "Deposit three and
Pay one" Clause in <the Agreement>, which shall be paid to lessor, by
the end of February 21st 2005. (in words: RMB THREE HUNDRED FIFTY NINE
THOUSAND ONE HUNDRED AND FIFTY SEVEN YUAN SIXTY JIAO)
7. The supplementary agreement is the supplements and alteration for <the
Agreement> and has the same legal effect with <the Agreement>. This
agreement will prevail as to any conflict between the supplementary
agreement and <the Agreement>. Others will be executed by <the
Agreement>.
8. The agreement has two original copies while the lessor and lessee will
hold one of them. The agreement is effective on the date of the
subscription.
LESSOR: BEIJING GAOLING ESTATE DEVELOPMENT CO. LTD.
LEGAL REPRESENTATIVE OR CONSIGNER (SIGNATURE): ____________
DATE: FEBRUARY 25, 2005
LEASEE: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD.
LEGAL REPRESENTATIVE OR CONSIGNER (SIGNATURE): ____________
DATE: FEBRUARY 25, 2005