EXHIBIT 4.1
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TO ANNUAL REPORT
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ON FORM 20-F
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RAILWAY BUSINESS RELATED ASSETS
PURCHASE AGREEMENT
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between
GUANGSHEN RAILWAY COMPANY LIMITED
and
GUANGZHOU RAILWAY GROUP YANGCHENG RAILWAY COMPANY
NOVEMBER 15, 2004
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TABLE OF CONTENTS
ARTICLE 1 BASIC INTRODUCTION OF THE PARTIES
ARTICLE 2 SCOPE OF PURCHASE
ARTICLE 3 PURCHASE PRINCIPLES AND EMPLOYEE SETTLEMENT
ARTICLE 4 CREDITORS' RIGHTS AND LIABILITIES AND SETTLEMENT OF CONTRACTS UNDER
PERFORMANCE
ARTICLE 5 METHOD AND PRICE OF PURCHASE
ARTICLE 6 IMPLEMENTATION OF PURCHASE
ARTICLE 7 ALLOCATION OF EXPENSES INCURRED WITH THE PURCHASE
ARTICLE 8 REPRESENTATIONS AND WARRANTIES
ARTICLE 9 MATTERS FOLLOWING THE CUT-OFF DATE
ARTICLE 10 MATERIAL OPERATION MATTERS
ARTICLE 11 LIABILITY FOR BREACH
ARTICLE 12 AMENDMENT, CANCELLATION AND TRANSFER OF THE AGREEMENT
ARTICLE 13 FORCE MAJEURE
ARTICLE 14 APPLICABLE LAWS AND DISPUTE RESOLUTION
ARTICLE 15 CONDITIONS PRECENDENT TO THE EFFECTIVENESS OF THIS AGREEMENT
ARTICLE 16 MISCELLANEOUS
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This RAILWAY BUSINESS RELATED ASSETS PURCHASE AGREEMENT (this "Agreement") is
made by and between the following parties:
TRANSFEROR: Guangzhou Railway Group Yangcheng Railway Company ("Party A")
TRANSFEREE: Guangshen Railway Company Limited ("Party B")
WHEREAS:
1. Party A is an enterprise owned by the whole people, which is engaged in
the railway transportation business from Guangzhou to Pingshi and owns the
relevant railway business related assets ("Railway Business Related Assets");
2. Party A's industrial competent authority and title unit, Guangzhou
Railway (Group) Company, has agreed to the transfer of the Railway Business
Related Assets by Party A to Party B pursuant to the terms and conditions set
forth herein;
3. Party B intends to launch the initial public offering of its A shares,
and acquire the Railway Business Related Assets from Party A by the funds raised
and other legal sources of funds pursuant to the terms and conditions set forth
herein.
NOW, THEREFORE, after negotiation, the parties hereby agree as follows:
ARTICLE 1 BASIC INTRODUCTION OF THE PARTIES
1. Party A
Name: Guangzhou Railway Group Yangcheng Railway Company
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Legal representative: ▇▇ ▇▇▇▇▇▇▇
Registered capital: RMB7,260,000,000
Date of establishment: February 24, 1993
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2. Party B
Name: Guangshen Railway Company Limited
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Legal representative: ▇▇ ▇▇▇▇▇▇▇▇
Registered capital: RMB4,335,550,000
Date of establishment: March 6, 1996
ARTICLE 2 SCOPE OF PURCHASE
Party B intends to purchase (the "Purchase") from Party A the Railway
Business Related Assets in connection with the railway transportation from
Guangzhou to Pingshi (Exhibit I: Rail Line Map), including the railway
transportation related assets ("Assets") and the business conducted based on the
Assets ("Business"). The Assets shall include, but not limited to, houses,
buildings, projects under construction, railway roads, locomotives, vehicles,
equipment, investment rights and interests, contract rights and interests and
liabilities and creditors' rights occurred in the course of transportation
business operation. The Business shall mean the railway transportation business
currently conducted by Party A, including railway passenger transportation,
railway freight transportation and the business in connection therewith.
The specific scope of the Purchase shall be subject to the scope specified
in the Asset Appraisal Report set forth in Article 5.
ARTICLE 3 PURCHASE PRINCIPLE AND EMPLOYEE SETTLEMENT
The parties agree to implement the Purchase contemplated hereby in
accordance with the principle of "the assets and employees shall be transferred
to the extent that they are related to the business", i.e.: (i) all of Party A's
assets related to the railway transportation shall be transferred to Party B;
(ii) the employees listed in Party A's employee list and related to the railway
transportation business transferred shall be transferred to Party B; and (iii)
the employees listed in Party A's employee list and unrelated to the railway
transportation business transferred shall be settled by Party A in its sole
discretion.
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ARTICLE 4 CREDITORS' RIGHTS AND LIABILITIES AND
SETTLEMENT OF CONTRACTS UNDER PERFORMANCE
In accordance with this Agreement, Party A's creditors' rights and
liabilities and rights and obligations under contracts being performed relating
to the railway transportation business shall be included in the assets to be
purchased and assumed by Party B. As of the appraisal cut-off date set forth in
Article 5 (the "Cut-off Date"), the liabilities included in the scope of the
Purchase shall be RMB1,401,482,255.46, and the creditors' rights shall be
RMB358,510,786.24, in each case subject to the confirmation by the Asset
Appraisal Report set forth in Article 5.
Party A shall notify the obligors of its creditors' rights included in the
scope of the Purchase. Party A shall notify the creditors of its liabilities
included in the scope of the Purchase and obtain a letter of undertaking from
the creditors, stating their consent to Party B's assumption. With respect to
the contracts to be performed by Party B following the Purchase, Party A shall
notify other parties to such contracts and obtain a letter of undertaking from
such parties, stating their consent to the performance of such contracts by
Party B. Party A shall notify the relevant creditors, obligors and the other
parties to the relevant contracts within ten (10) days from the adoption of
Party B's board resolutions and the approval by the relevant State-owned assets
administration authority, and obtain the relevant undertaking or confirmation
letters within thirty (30) days.
While making the notification as described above, Party A shall expressly
notify the creditors, obligors and other parties to the contracts that the
transfer of the relevant creditors' rights, liabilities and contracts shall be
subject to the effectiveness of this Agreement.
ARTICLE 5 METHOD AND PRICE OF PURCHASE
1. Method of Purchase: The parties agree that Party B shall purchase all of
Party A's assets and businesses related to the railway transportation at one
time;
2. Price of Purchase: The parties agree that Beijing Pan-China Assets
Appraisal Co., Ltd. shall be engaged to appraise the purchased assets in
accordance with the principles and scope specified in the "Asset Restructuring
Proposal of Yangcheng Railway Company" confirmed by the parties, and that the
basic price of the Purchase shall be determined based on the valuation specified
in the Asset Appraisal Report filed with the relevant State-owned assets
administration authority. The Cut-off Date shall be June 30, 2004 or such other
date as reselected later according to the
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revaluation of such assets pursuant to other working requirements, such as the
progress of Party B's issuance of A shares. With respect to the business
attached to the assets, the parties agree not to make evaluation or appraise the
value thereof.
According to the results of the Asset Appraisal Report issued by Beijing
Pan-China Assets Appraisal Co., Ltd. with June 30, 2004 as the Cut-off Date that
has not been filed with the relevant State-owned assets administration
authority, the appraised value of the purchased assets shall be
RB10,264,120,700.
The base price set forth above shall be adjusted pursuant to Article 9
hereof while implementing the Purchase, and the purchase price shall be
determined based on the amount adjusted ("Acquisition Price", and the payment
determined based on such price being the "Purchase Price").
ARTICLE 6 IMPLEMENTATION OF PURCHASE
1. The commencement date of implementation of the Purchase contemplated
hereby shall be the date on which Party B launches its initial public offering
of A shares and all funds raised have been remitted to Party B's bank account
and a domestic accounting firm has issued a capital verification report
following its verification ("Purchase Commencement Date").
2. Within five (5) days of the Purchase Commencement Date, Party A shall
deliver to Party B the complete asset list and the relevant title certificates,
the Purchase certificates, certificates of creditors' rights and liabilities,
contracts and all licenses, approval documents, permits in connection with the
business and go through the procedures for the handover of assets and
businesses. In the event that it is required to go through the amendment and
transfer procedures for the relevant assets and businesses by law, Party A shall
provide relevant documents and materials to assist Party B in going through such
procedures in accordance with such requirements. Party A shall complete the
asset and business hand-over procedures for the delivery to Party B within
fifteen (15) days of the Purchase Commencement Date, verify the content of the
actually delivered assets and businesses as set forth in this Agreement and the
Asset Appraisal Report, and execute the written hand-over certificate with Party
B.
3. Party B shall pay 51% of the amount as determined in the Asset Appraisal
Report as part of the Purchase Price to Party A within five (5) days of the
Purchase Commencement Date.
4. Within fifteen (15) days of the execution of the written hand-over
certificate by the parties and the completion of the audit set forth in Article
9, Party B shall pay
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the remaining part of the Purchase Price to Party A at one time. However, if the
funds raised by Party B's issuance of A shares (after deduction of all issuance
expenses, including, but not limited to, evaluation, audit, underwriting, legal
and public relationship expenses) are not sufficient for full payment of the
Purchase Price, Party B shall only pay the amount of the funds raised to Party A
as part of the Purchase Price within fifteen (15) days as set forth above, and
the shortfall shall be raised by Party B from other legal sources of funds and
paid by Party B to Party A within six (6) months from the execution of the
written hand-over certificate by the parties and the completion of the audit set
forth in Article 9.
5. Following the date hereof and prior to the execution of the written
hand-over certificate by the parties, Party A shall ensure the proper operation
of the businesses. In the event of any losses or damages in respect of houses,
buildings, projects under construction, railway roads, locomotives, vehicles,
equipment incurred in the ordinary course of use thereof, Party A shall be
liable to repair, replace and maintain such houses, buildings, projects under
construction, railway roads, locomotives, vehicles and equipment, in order to
ensure that there be no substantial change to the assets and businesses during
such period.
6. The title or right and risks under the purchased assets shall be
transferred upon the parties' hand-over and execution of the written hand-over
certificate; provided, however, that, with respect to the purchased assets for
which the amendment and transfer procedures shall be gone through, the title or
right and risks thereunder shall be transferred upon such amendment and
transfer.
ARTICLE 7 ALLOCATION OF EXPENSES INCURRED WITH THE PURCHASE
1. The parties agree that the taxes and expenses incurred in the course of
the Purchase shall be born pursuant to the tax laws and other relevant laws and
regulations or the relevant approval documents of the government. The taxes and
expenses for which there are no express provisions under law shall be equally
born by the parties.
2. Unless otherwise provided herein, the costs and expenses incurred in
connection with drafting, execution and implementation of this Agreement shall
be born by the party incurring such costs and expenses.
3. The appraisal costs set forth in Article 5 hereof shall be born by Party
B.
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ARTICLE 8 REPRESENTATIONS AND WARRANTIES
With respect to the matters as of the Cut-off Date (as defined in Article
9) in connection with the Purchase contemplated hereby, Party A hereby
represents and warrants to Party B as follows:
1. ACCOUNTING MATTERS
Party A's accounting report:
(i) presents truly and fairly Party A's assets, liabilities (including
potential and contingent liabilities) and the profits for the
accounting period;
(ii) is in compliance with the requirements under the laws and
regulations;
(iii) has no reservations and will not be affected by other matters, unless
expressly disclosed in such report;
(iv) reflects Party A's financial conditions fully, completely and
accurately;
(v) All of Party A's financial accounts, statements or other accounting
records are under Party A's control and reflect Party A's financial
conditions truly and fairly.
2. FINANCIAL MATTERS
(i) From the Cut-off Date to the audit base date, Party A has not paid or
distributed any profit, or made any similar decision or arrangement;
(ii) Party A has no other outstanding liabilities (including contingent
liabilities), unless disclosed in the accounting report and incurred
in the ordinary course of business;
(iii) The reimbursement of creditors' rights set forth in the accounting
report shall be paid no less than the amount listed therein;
(iv) Unless disclosed in the accounting report, Party A has not entered
into any agreement with respect to any guarantee for any third party
or any agreement with a nature of subrogation, and the assets
transferred are free and clear of any mortgage, lien or any other
third party right.
3. TAX MATTERS
(i) Sufficient reserve has been allocated in the accounting report for
the taxes payable by Party A;
(ii) All accounting statements prepared by Party A for tax purposes or any
calculation and payment made in connection therewith, have been
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prepared or made correctly during the period as provided under the
relevant tax regulations and are in compliance with the requirements
of the taxation authority;
(iii) Party A has withheld the taxes payable by its employees in accordance
with law.
4. ASSETS
(i) The lawful certificates or evidence certifying the title of houses,
buildings, projects under construction, railway roads, locomotives,
vehicles, equipment included in the scope of the Purchase have been
obtained, and possessed or controlled by Party A;
(ii) The houses, buildings, projects under construction, railway roads,
locomotives, vehicles, equipment included in the scope of the
Purchase are free and clear of any mortgage or any other third party
right or interest.
5. LABOR MATTERS
(i) Party A has made all payments for its employees with respect to any
pension, medical insurance, work-related injury insurance in
accordance with the relevant laws and regulations;
(ii) Party A has complied with the relevant national and local labor
regulations in accordance with law. Party A has not violated any
national or local labor regulations, nor shall Party A be jointly
liable for any violation of any labor regulation by any other person.
Party A shall indemnity and hold harmless Party B against any losses or
obligations incurred by Party B with respect to any damages to Party B's
interests or any claim by any third party seeking damages or recovery from Party
B, resulting from Party A's breach of the representations or warranties
described above.
ARTICLE 9 MATTERS FOLLOWING THE CUT-OFF DATE
In the event that there is any change in the assets included in the scope
of the Purchase and specified in the Asset Appraisal Report as a result of Party
A's business operation or any other reason, the Acquisition Price as determined
pursuant to the Asset Appraisal Report shall be adjusted based on the effects
that such change might have on the acquirer's interest. The parties agree,
within five (5) days of the Purchase Commencement Date, to engage Pan-China
Schinda Certified Public
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Accountants ("PSCPA") to conduct a special audit of the change in the purchased
assets from the Cut-off Date to the audit base date pursuant to the enterprise
accounting rules and Enterprise Accounting System, and determine the effects of
such change on the Acquisition price in accordance with the report issued and
based on which adjust the Acquisition Price. The principles of adjustment shall
be as follows:
1. In the event that the depreciation shall be provided for with respect
to the calculation of the fixed assets included in the scope of the
Purchase for the period from the Cut-off Date to the audit base date
pursuant to the relevant laws and accounting rules, the total amount
of such depreciation shall be deducted form the Purchase Price;
2. From the Cut-off Date to the audit base date, in the event that there
is any loss, destruction or deduction in the assets included in the
scope of the Purchase, the determined value of such loss, destruction
or deduction with respect to the assets shall be deducted from the
Purchase Price;
3. From the Cut-off Date to the audit base date, in the event that there
is any increase in the assets within the normal budge of Party A
(including the additional assets increased as a result of the
subsequent construction of any project under construction included in
the scope of the Purchase and the valuation of which has been
determined in the Asset Appraisal Report), upon audit by PSCPA and
confirmation by Party B, the Purchase Price shall be increased
accordingly;
4. From the Cut-off Date to the audit base date, in the event that Party
A has to build more railway network facilities, such as group stations
and connection links, as required by the State or the Ministry of
Railways for the unified planning of railway network construction,
such facilities shall be purchased by Party B and the method and price
of the Purchase shall be determined in a separate supplemental
agreement between the parties;
5. In the event that, pursuant to the domestic enterprise accounting
rules and Enterprise Accounting System, there are other matters that
are subject to adjustment but not addressed in the principles
described above, such other matters shall be handled pursuant to such
accounting rules and Enterprise Accounting System.
The special audit described herein shall be completed within sixty (60)
days. The audit base date shall be determined in accordance with the following
principles:
1. If the Purchase Commencement Date is prior to the Fifteenth (15)
calendar day of the current month (inclusive), the audit base date
shall be the end of last month;
2. If the Purchase Commencement Date is after the Fifteenth (15) calendar
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day of the current month (not inclusive), the audit base date shall be
the end of current month.
In the event that, according to the audit results, the difference between
the Acquisition Price and RMB10,264,120,700 is less than "+" or "-" 10%, the
parties shall continue to perform this Agreement based on the amount of actual
purchase as adjusted. In the event that the difference between the Acquisition
Price and RMB10,264,120,700 is more than "+" or "-" 10%, the parties shall
negotiate separately on whether to continue the performance of this Agreement.
If the parties cannot reach an agreement, either party shall be entitled to
terminate this Agreement. For the avoidance of doubt, the Acquisition Price
determined based on June 30, 2004 or such other base date as reselected shall
be subject to the adjustment of "+" or "-" 10% between the Acquisition Price and
RMB10,264,120,700 set forth above.
Party A shall be entitled to or be liable for any profit and loss
incurred in the on-going course of operation of the purchased assets and
businesses from the Cut-off Date to the audit base date; and Party B shall be
entitled to or be liable for any profit and loss incurred thereafter.
ARTICLE 10 MATERIAL OPERATION MATTERS
1. From the date hereof, Party A shall promptly notify Party B of any
proposed material asset disposition or acquisition with a value of
more than five million Renminbi (RMB5,000,000) or any material
operation matters such as proposed material transaction contract or
proposed financing with a value of more than five million Renminbi
(RMB5,000,000), and shall not implement such proposed arrangement
without the consent of Party B. If Party B believes that any such
material operation matter might have an impact on Party A's
performance of its obligations hereunder or result in the frustration
of the purpose of Party B's purchase in whole or in part, Party B may
request Party A not to pursue such material operation matters in
writing.
2. If Party A fails to disclose any material operation matter or comply
with Party B's written request, and continues to conduct the material
operation that has an adverse impact on Party B's interests, Party B
shall be entitled to request Party A to indemnify it against the
losses or terminate this Agreement.
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ARTICLE 11 LIABILITY FOR BREACH
1. The parties shall perform their respective obligations hereunder in
good faith. In the event that this Agreement cannot be performed, in
whole or in part, as a result of either party's breach, the breaching
party shall be liable for such breach; and in the event that both
parties breach this Agreement, the parties shall be liable for their
respective breaches according to their respective actual faults;
provided, however, that such liability shall not preclude the right of
the non-breaching party from requesting the breaching party to
continue to perform.
2. In the event that Party B delays the payment of the Purchase Price as
provided herein, it shall pay liquidated damages in an amount equal to
0.03% of the shortfall each day.
3. In the event that the purchased assets are subject to any claim by any
third party or cannot be delivered for use, or no title transfer
procedures can be gone therefor, as a result of lack of lawful title
certificates or existence of any third party rights such as mortgage
and pledge, Party B may request Party A to continue to perform or
refuse to accept such assets and deduct the payment of such assets
from the Purchase Price payable. Party B may also request Party A to
indemnify it against all losses resulting therefrom, including, but
not limited to, losses of expected profits.
4. In the event that Party B cannot conduct the business or its conduct
of business is limited following the Purchase as Party A has not
obtained the relevant licenses, approval documents, permits with
respect to the purchased businesses, Party B may request Party A to
indemnify it against all losses as a result thereof, including, but
not limited to, losses of expected profits.
ARTICLE 12 AMENDMENT, CANCELLATION AND TRANSFER OF
THE AGREEMENT
1. This Agreement may not be amended or cancelled without the written
consent of the parties.
2. Neither party may transfer any rights or obligations hereunder to any
third party in any way without the express written consent of the
other party.
3. Notwithstanding the foregoing, if the conditions precedent to the
effectiveness as set forth in Article 15 hereof are not fully
satisfied
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within two (2) years from the date hereof, this Agreement shall be
terminated automatically.
ARTICLE 13 FORCE MAJEURE
1. Should a party be prevented from performing its obligations under this
Agreement pursuant to the terms as provided herein directly by the
occurrence of an event of force majeure, such party shall notify the
other party by telephone without delay and, within fifteen (15) days,
provide the other party with information explaining the reasons for
its inability to perform, or for its delay in performance of, all or
part of its obligations under this Agreement and effective supporting
documents. Based on the effect of such event on this Agreement, the
parties shall decide on the performance hereof through negotiation,
and decide whether to release the affected part's legal liability to
perform this Agreement.
2. "FORCE MAJEURE" described above shall mean any event which is
unforeseeable by the parties and not due to the parties' faults or
negligence and the occurrence and consequences of which cannot be
prevented or are unavoidable, including (without limitation) war,
earthquake, fire, flood or any other event caused by similar natural
force.
ARTICLE 14 APPLICABLE LAWS AND DISPUTE RESOLUTION
1. The formation of this Agreement, its validity, interpretation,
implementation, and settlement of any disputes arising hereunder shall
be governed by the laws of the People's Republic of China.
2. If a dispute arises in connection with the interpretation or
implementation of this Agreement, the parties shall attempt to resolve
such dispute through friendly consultations or mediation.
3. If the dispute is not resolved through friendly consultations within
ninety (90) days from the occurrence of the dispute, then any party
may bring an action to the competent People's Court.
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ARTICLE 15 CONDITIONS PRECENDENT TO THE
EFFECTIVENESS OF THIS AGREEMENT
The conditions precedent to the effectiveness of this Agreement are as
follows:
1. This Agreement has been signed by the legal representatives or authorized
representatives of the parties and sealed with the parties' corporate
seals;
2. Party B has complied with the voting procedures of affiliated transactions
pursuant to its articles of association and the Rules Governing the Listing
of Securities on the Stock Exchange of Hong Kong Limited, and obtained the
approval of the Purchase hereunder by independent shareholders;
3. Party B has complied with the voting procedures of affiliated transactions
pursuant to its articles of association and the Listing Rules of the Hong
Kong Stock Exchange, and obtained the approval of the possible affiliated
transactions with its controlling shareholders or any subsidiaries thereof
following the completion of the Purchase hereunder by independent
shareholders;
4. Party A's State-owned assets disposition proposal has been approved by the
relevant State-owned assets administration authority;
5. Other legal procedures as required by the relevant provisions under the
laws and regulations have been gone through;
6. Party B's domestic initial public offering of A shares has been approved
and all funds raised have been remitted to Party B's bank account, the
amount of which is no less than 65% of the Acquisition Price;
7. Party B has obtained the National Development and Reform Commission's
approval of the pricing for the freight transportation from Guangzhou to
Pingshi.
Party A and Party B agree that Party B shall be entitled to the waiver of
the condition precedent set forth in Item 6 above.
ARTICLE 16 MISCELLANEOUS
1. All notices, consents or acknowledgements hereunder shall be in writing.
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2. Following the effectiveness of this Agreement, if either party's economic
interest has been materially adversely affected by the promulgation or
implementation of any new law, regulation or decree or the modification or
new interpretation of any law, regulation or decree, the parties shall
promptly negotiate and make necessary adjustment to protect the benefit to
the parties hereunder; provided, however, that the parties may terminate
this Agreement through negotiation if such promulgation, implementation,
modification or interpretation will cause substantial damages to either
party's interest after such adjustment.
3. The "day" or "calendar day" referred to herein shall mean any working day,
excluding weekend and lawful holiday.
4. This Agreement is executed in eight (8) copies with equal legal validity,
with each party holding two (2) copies and the remaining copies to be filed
with or approved by the competent authority or the relevant State-owned
assets administration authority
PARTY A: Guangzhou Railway Group Yangcheng Railway Company
LEGAL REPRESENTATIVE OR ITS AUTHORIZED REPRESENTATIVE:
PARTY B: Guangshen Railway Company Limited
LEGAL REPRESENTATIVE OR ITS AUTHORIZED REPRESENTATIVE:
