Renminbi Capital Loan Contract China Construction Bank Corporation Beijing Branch
EXHIBIT
4.46
China
Construction Bank Corporation
Beijing
Branch
Borrower
(hereinafter referred to as “Party A”): Beijing
Origin State Harvest Biotech Limited.
Lender
(hereinafter referred to as “Party B”): China
Construction Bank Corporation Beijing Shangdi Sub-Branch
Party
A
has made an application to Party B for a loan and Party B agrees to advance
the
loan. According to relevant laws, regulations and rules, Party A and Party
B,
upon negotiation, enter into this Contract for their mutual compliance and
performance.
Article
1 Amount
of Money Borrowed
Party
A
borrows from Party B an amount of RMB (Say) Eighty
Million Yuan.
Article
2 Purpose
of Money Borrowed
Party
A
will use the money borrowed for the purpose of working
capital.
Party
A
is not supposed to change the purpose of the money borrowed, unless Party B
agrees in writing in advance.
Article
3 Term
of Money Borrowed
As
provided in this Contract, the term of the money borrowed is 11
months plus 2 days
commencing from November
13, 2007
and
ending on October
15, 2008.
If
the
commencement date of the term of the money borrowed hereunder is different
from
that specified in the bank remittance voucher (loan debt and xxxx, sic passim),
the date specified in the bank remittance voucher for the first advance shall
prevail, and the ending date as described in this article will be
adjusted.
The
bank
remittance voucher shall be an integral part of this Contract and have the
same
force and effect as this Contract.
Article
4 Interest
Rate, Penalty Interest Rate, Interest Calculation and
Settlement
| 1. |
Interest
Rate
|
The
interest rate of the loan hereunder shall be annually
interest
rate at (1)
below:
|
(1)
|
fixed
rate of 7.29%, which rate shall remain unchanged during the term
of the
money borrowed;
|
| (2) |
fixed
rate, that is, [intentionally
left blank] %
[intentionally
left blank]
(above/below) the base interest rate from the Interest Starting Date,
which rate shall remain unchanged during the term of the money
borrowed;
|
|
(3)
|
floating
rate, that is, [intentionally
left blank] %
[intentionally
left blank]
(above/below) the base interest rate and adjusted every [intentionally
left blank]
months from the Interest Starting Date. The interest adjustment date
shall
be the date corresponding to the Interest Starting Date in the month
the
interest is adjusted. If there is no date corresponding to the Interest
Starting Date in that month, then the last day in that month shall
be the
interest adjustment date.
|
1
|
2.
|
Penalty
Interest Rate
|
|
(1)
|
If
Party A fails to use the loan for the purpose specified herein, the
penalty interest rate shall be floated above 100% of the loan interest
rate, if the loan rate is adjusted as article 1 (3) described, then
the
penalty interest rate will be adjusted corresponding to the new loan
interest rate and the foresaid floating
scope.
|
| (2) |
The
penalty interest for overdue loan hereunder shall be shall be floated
above 50% of the loan interest rate, if the loan rate is adjusted
as
article 1 (3) described, then the penalty interest rate will be adjusted
corresponding to the new loan interest rate and the foresaid floating
scope.
|
| (3) |
It
depends on the severity for the calculation of the penalty interest
and
compound interest, if the loan is overdue and embezzled
simultaneously.
|
|
3.
|
The
Interest Starting Date referred to in this Article means the date
when the
first advance made hereunder is transferred and deposited into Party
A’s
account.
|
The
base
interest rate for the first advance made hereunder shall be the interest rate
for loans of same grade announced by the People’s Bank of China on the date of
Interest Starting Date; thereafter, when the interest rate or penalty interest
rate is adjusted pursuant to the foregoing provisions, the base interest rate
shall be the interest rate for loans of same grade announced by the People’s
Bank of China on the adjustment date; if no interest rate is announced by the
People’s Bank of China for loans of same grade, the base interest rate shall be
the inter-bank acceptable or customary interest rate for loans of same grade
on
the adjustment date, unless otherwise provided by the parties.
|
4.
|
The
interest of the loan shall be accrued from the date when the loan
is
deposited into Party A’s account. The interest of the loan hereunder shall
be accrued on a daily basis. The daily interest rate = annual interest
rate/360. A compound interest shall be accrued from the following
date if
Party A fails to pay accrued interest when
due.
|
|
5.
|
Settlement
of Interest
|
|
(1)
|
If
a fixed interest rate is applied to the loan, the interest shall
be
calculated and settled at the agreed interest rate. If a floating
interest
rate is applied to the loan, the interest shall be calculated at
such
interest rate as then determined at each floating period; if the
interest
rate changes several times within one interest settlement period,
the
interest accrued at each floating period shall be first calculated
and
then added up on the interest settlement date as the interest accrued
within such interest settlement
period.
|
2
| (2) |
The
interest shall be settled at i
as
follows
|
| i. |
The
interest shall be settled on a monthly
basis for the loan hereunder and the interest settlement date shall
be the
20th of every month.
|
| ii. |
The
interest shall be settled on a seasonly
basis for the loan hereunder and the interest settlement date shall
be the
20th of every season ending month.
|
| iii. |
Others:
[intentionally
left blank].
|
Article
5 Advance
and Use of Money Borrowed
| 1. |
Conditions
Precedent to the Advance of the Money
Borrowed
|
Party
B
is only obligated to advance the money borrowed upon the satisfaction of the
following conditions unless the same are wholly or partly waived by Party
B:
| i. |
Party
A having completed the approval, registration, delivery and other
legal
procedures in respect of the loan
hereunder;
|
| ii. |
If
a security is created for this Contract, the security as Party
B required
has become effective and
persistent;
|
| iii. |
Party
A has opened the special account for drawing and repaying as Party
B
required;
|
| iv. |
Party
A having committed no event of default, or any circumstances endangering
Party B’s lender’s right perhaps set forth in this
Contract;
|
| v. |
The
loan hereunder is not be prohibited and limited by the laws and
regulations, rules or competent authorities
|
| vi. |
Other
conditions
|
[intentionally
left blank] .
| 2. |
Schedule
of Use of the Loan
|
Schedule
of use of the loan shall be (1) as
follows:
(1)
Schedule as follows:
(i)
November 13, 2007 amount
Ten
Million Yuan;
(ii)
November 20, 2007
amount
Ten
Million Yuan;
(iii)
December 3, 2007
amount
Sixty
Million Yuan;
3
(iv)
[intentionally
left blank] (date) amount
[intentionally
left blank];
(v)
[intentionally
left blank] (date) amount
[intentionally
left blank];
(vi)
[intentionally
left blank] (date) amount
[intentionally
left blank].
(2)
[intentionally left blank]
| 3. |
Party
A shall use the money according to Schedule of Use of the Loan
as above 2
described, unless Party B agrees in writing in advance, Party A
shall not
accelerate, postpone, cancel the drawing
|
| 4. |
If
Party A uses the money in part, the termination date of the loan
shall be
confirmed as article 3 described.
|
Article
6 Repayment
| 1. |
Repayment
Principles
|
Repayment
made by Party A hereunder shall comply with the following
principles:
Party
B
has right to use the money of Party A’s repayment first to repay the fees
advanced by Party B and the fees of settling the debt, the remain shall be
subject to the principles of interest paid first and principal repaid then
and
the interest paid together with the principal. If its principal amount is
overdue for over 90 days, or its interest is overdue for over 90 days, or loans
otherwise provided for by laws or regulations, the principles of principal
repaid first and interest paid then shall be complied with after Party A
repaying the foresaid money.
| 2. |
Payment
of Interest
|
Party
A
shall pay to Party B all interest accrued on the interest settlement date.
The
first date of payment of interest shall be the first interest settlement date
after the advance of the money borrowed. All interest accrued shall be paid
at
the time of final repayment.
| 3. |
Schedule
of Repayment of Principal
|
Schedule
of repayment of principal shall be (1) as
follows:
(1)
Schedule as follows:
(i)
October 15, 2008 amount
Eighty
Million Yuan;
(ii)
[intentionally
left blank] (date) amount
[intentionally
left blank];
(iii)
[intentionally
left blank] (date) amount
[intentionally
left blank];
(iv)
[intentionally
left blank] (date) amount
[intentionally
left blank];
(v)
[intentionally
left blank] (date) amount
[intentionally
left blank];
4
(vi)
[intentionally
left blank] (date) amount
[intentionally
left blank].
(2)
[intentionally left blank]
|
4.
|
Method
of Repayment
|
|
Prior
to the repayment date provided in this Contract, Party A shall deposit
into an account opened by Party B enough funds for any amount then
due and
such funds will be automatically transferred and paid to Party B,
or, on
the repayment date provided in this Contract, Party A shall transfer
funds
from other account for the repayment of the loan. If Party A fails
to
repay the loan in a timely manner, Party B shall have the right to
transfer and receive any funds from the account opened by Party A
at China
Construction Bank’s system.
|
|
5.
|
Prepayment
|
Party
A
shall submit to Party B a written application 30
bank
business days in advance for its prepayment of the principal and may prepay
part
or whole of the principal upon Party B’s consent.
If
Party
A prepays the principal, the interest shall be accrued based on the actual
number of days the money is borrowed and at the interest rate set forth in
this
Contract.
If
Party
B agrees Party A to prepay the principal, then Party B has right to charge
the
compensation, the standard of the compensation shall be
1
as
follows:
compensation
= amount of principal prepaid x number of months ahead x 1‰.
In case
of less than one month, it
shall be deemed as one month.
If
Party
A prepays part of the principal of the loan that is to be repaid by
installments, such prepayment shall be made pursuant to the repayment schedule
in reverse order. After such prepayment, the interest rate set forth in this
Contract shall continue to be applied to the outstanding loan.
Article
7 Party
A’s Right and Obligations
|
1.
|
Party
A shall have the right to:
|
| (1) |
require
Party B to advance the loan according to this
Contract.
|
| (2) |
use
the loan for the purpose provided in this
Contract.
|
| (3) |
apply
to Party B for an extension of the loan if Party A satisfies the
conditions required by Party
B.
|
| (4) |
require
Party B to keep confidential relevant accounting information and
production and operation related trade secrets provided by Party
A, unless
otherwise provided for by laws, regulations and rules, requirement
of the
competent authorities or other agreement between both
parties.
|
5
| (5) |
reject
Party B and its personnel asking for bribe, or report to the competent
authorities for the foresaid acting and the violation of laws and
regulations regarding credit interest rate and service
fees.
|
| 2. |
Party
A shall be obligated:
|
| (1) |
to
draw the money and repay the principal and interest of the loan,
pay the
fees as described in this
contract.
|
| (2) |
to
provide relevant financial and accounting materials, information
on
production and operation conditions as requested by Party B and
be
responsible for the truthfulness, completeness and validity of
the
materials so provided, including without limited to, provide Party
B
within the first 15
bank business days of the first month of every quarter with the
balance
sheet and loss and profit statement (income and expenditure statement
for
government sponsored institute) at the end of last quarter and
provide at
the end of every year cash flow statement of the current year,
not to
provide false materials or to disguise the necessary operating
financial
fact;
|
| (3) |
to
notify Party B in writing of any change in its name, legal representative
(person in charge), domicile, business scope or registered capital
or
company charter within 30 business days after the change and attaching
the
relevant materials changed.
|
| (4) |
to
use the money for the purpose set forth in the contract, not to
misappropriate or embezzle the money borrowed or commit the unlawful
transaction with the money borrowed; to actively cooperate with
and
voluntarily accept Party B’s inspection of and supervision over its
production and operation and financial activities as well as the
use of
the money borrowed hereunder; not to spirit its money away or transfer
its
assets or use related transactions to escape debts owing to Party
B; not
to enter into any false agreement with the related party and to
use the
accounts and notes receivable without actual transaction background
to
discount, pledge, draw the money and credit from the
bank;
|
| (5) |
to
abide by the regulations promulgated by the State regarding the
environment protection, if Party A use the money borrowed hereunder
for
production, manufacture and
construction;
|
| (6) |
not
to use the assets generating from the loan hereunder to provide
security
for a third party without Party B’s consent before its full repayment of
the interest and principal owing to Party
B;
|
| (7) |
to
report to Party B the related transactions of over 10% net assets
value,
including (i) related relations among parties; (ii) items and feature
of
the transaction; (iii) sum and corresponding rate of the transaction;
(iv)
policy of fixing the price (including non-money or symbolistic
money
transaction), if Party A is a group
client;
|
| (8) |
to
guarantee obtaining the approval of the coming project from the
relevant
competent authorities and not to disobey any laws and regulations,
capital
fund or other raising money shall be transferred enough in time
and in
proportion as described in the contract; to guarantee accomplishing
the
project as the plan
described.
|
6
Article
8 Party
B’s Rights and Obligations
| 1. |
Party
B shall have the right to require Party A to repay the principal,
interest
and fees, to execute other rights set forth in the contract, to require
Party A to fulfill other obligations as described in the
contract.
|
| 2. |
Party
B shall advance the loan as described in the contract, but for the
postponement due to Party A or something not due to Party
B.
|
| 3. |
Party
B shall be obligated to keep confidential financial materials and
production and operation related trade secrets provided by Party
A, unless
otherwise provided for by laws, regulations and rules, by relevant
competent authorities, and by agreement entered into between both
parties.
|
| 4. |
Party
B shall not provide or ask for the bribe, to or from Party A and
its
personnel
|
| 5. |
Party
B shall not commit anything to damage Party A’s lawful interest, or in bad
faith.
|
Article
9 Liability for Breach
of Contract and Remedy for Damage of Party B’s Debt
| 1. |
Party
B’s Event of Default
|
| (1) |
If
it fails to advance the loan as described in the contract without
duly
reason, Party A has right to ask Party B to advance the loan ahead
as
described in the contract;
|
| (2) |
If
Party B violates the relevant laws and regulations and accepts
non-receivable interests and fees, Party B has right to ask to
back the
foresaid.
|
| 2. |
Party
A’s Event of Default
|
| (1) |
in
breach of any term and condition or other obligations provided
in
laws.
|
| (2) |
not
fulfill any obligation provided in this contract, expressing by
word or
action
|
| 3. |
Event
of damage of Party B’s Debt
|
| (1) |
Party
B’s debt shall be deemed to be damaged if the event falls into any
of the
following circumstances: Party A happens to be contracting, consignment,
lease, reform with the stock system, decreasing the capital fund,
investment, association, merger, acquisition, purchase and recombination,
division, joint venture, application for suspending business for
internal
rectification, application for dissolution or bankruptcy, revoked,
change
of shareholder/actual controller or transfer of big assets, winding-up,
closed, highly penalty by competent authorities, deregistered,
revoked its
business license, part of big legal dispute, suffering from financial
losses of operation and manufacture, non-execution of its responsibilities
by legal representative
|
7
| (2) |
Party
B’s debt shall be deemed to be damaged if the event falls into any
of the
following circumstances: Party A shall not fulfill the mature debt
hereunder(including CCB subsidiaries or other third party’s mature debt),
transfer the assets with low-price or gratis, reduce and release
the third
party debt, execute the its own lender’s right or other right in laches,
or provide securities for the third
party;
|
| (3) |
Party
B’s debt shall be deemed to be damaged if shareholders of Party A
abuse
its independence or limited responsibility to escape repaying the
debt,;
|
| (4) |
Any
precondition of advancing the loan provided in the contract is
not
satisfied continuously;
|
| (5) |
Party
B’s debt shall be deemed to be damaged if the Guarantor falls into
any of
the following circumstances:
|
| i. |
in
breach of any term and condition or state set forth in the guarantee,
and
false, mistake, omit exist in guarantee
items;
|
| ii. |
happens
to be contracting, consignment, lease, reform with the stock system,
decreasing the capital fund, investment, association, merger, acquisition,
purchase and recombination, division, joint venture, application
for
suspending business for internal rectification, application for
dissolution or bankruptcy, revoked, change of shareholder/actual
controller or transfer of big assets, winding-up, closed, highly
penalty
by competent authorities, deregistered, revoked its business license,
part
of big legal dispute, suffering from financial losses of operation
and
manufacture, non-execution of its responsibilities by legal
representative, something impact on the guarantor’s capacity of
guarantee;
|
| iii. |
other
circumstances maybe lose or lose capacity of
guarantee;
|
| (6) |
Party
B’s debt shall be deemed to be damaged if the pledge and mortgage
falls
into any of the following
circumstances:
|
| i. |
the
collateral of the pledge or mortgage will be damaged, destroyed
and lost,
shank in value because of the third party’s action, collection of state,
seized, confiscation, retraction gratis, house breaking and moving,
market
floating or any other reasons like
that;
|
| ii. |
the
collateral of the pledge or mortgage will be seized, detained,
frozen,
transferred, lien, auction, supervised by administration, dispute
of
property;
|
| iii. |
the
pledgor or mortgager breaches the terms and statement of the contract,
and
false, mistake, omit exist in guarantee
items;
|
| iv. |
other
circumstances damage realizing the pledge or
mortgage;
|
8
|
(7)
|
if
the security contract does not take effect or is invalid or revoked,
the
guarantor falls into other circumstance under which it is partly
or wholly
deprived of its ability to secure the loan, or the guarantor refuses
to
perform its guarantee obligations, the collateral shrinks in value
and
others Party B’s debt shall be deemed to be
damaged
|
| (8) |
other
circumstances Party B’s debt shall be deemed to be
damaged
|
| 4. |
Party
B’s Remedial Measures
|
Upon
the
occurrence of any of the events of default set forth in paragraph (2) to
paragraph (3) hereinabove, Party B shall be entitled to one or more of the
following rights:
|
(1)
|
to
stop the advance of the loan,
|
| (2) |
declare
the immediate maturity of the loan and require Party A to repay all
principal, interest and expenses hereunder whether or not due and
payable.
|
|
(3)
|
if
Party A fails to use the loan provided herein, Party B has right
to
collect liquidated damages from Party A on the amount of the loan
not used
as provided hereunder at [intentionally
left blank] %.
|
|
(4)
|
to
impose interest and compound interest on the part of the loan
misappropriated by Party A at the penalty interest rate from the
date the
loan is not used for the purpose provided herein to the date the
principal
and interest are repaid in full and pursuant to the method of settlement
of interest provided herein if Party A fails to use the loan for
the
purpose provided herein.
|
| (5) |
if
the loan is overdue, to impose interest and compound interest on
the
outstanding principal and interest payable by Party A (including
the
principal and interest declared by Party B to be wholly or partly
due and
payable) at the penalty interest rate from the date the loan is overdue
to
the date the principal and interest are repaid in full and according
to
the method of settlement of interest provided herein. The overdue
loan
refers to Party A’s failure to repay the loan in a timely manner or its
repayment of the loan behind the repayment schedule set forth in
this
Contract.
|
|
to
impose compound interest on any overdue interest payable by Party
A at the
interest rate and according to the method of settlement of interest
set
forth in the contract before the maturity of the
loan.
|
| (6) |
other
remedial measures, including but not
limited:
|
| i. |
to
transfer and receive any amount in any currency from the account
opened by
Party A at China Construction Bank’s system without informing in
advance.
|
| ii |
to
exercise rights under the security
|
9
| iii |
to
require Party A to provide such new security as required by Party
B for
all debts hereunder.
|
| iv |
to
terminate this Contract.
|
Article
10 Other
Matters Agreed
| 1. |
Burden
of the Expenses and Fees
|
Party
A
shall bear the Expenses and Fees hereunder and regarding the security hereunder
of lawyer service, insurance, evaluation, registration, safekeeping, appraisal,
and notarization and so on, except otherwise agreed between both
parties.
Party
A
shall bear the Expenses and Fees including but not limited of lawsuit,
arbitration, property safekeeping, traveling, execution, evaluation, auction,
notarization, delivery, notification, lawyer service etc.
| 2. |
Use
of Party A’s Information
|
Party
A
agrees, Party B apply to the People’s Bank of China and its competent department
of credit for approval of setting up a credit data-base, or to relevant
authorities and departments for searching Party A’s credit; Party B provides
Party A’s information for the credit data-base approved by the People’s Bank of
China and its competent department of credit, and fair use and disclose Party
A’s information as Party B’s business required.
| 3. |
Public
Notification for Urging
Repayment
|
Upon
the
occurrence of delay of repaying the principal and interest or any of the events
of default set forth hereunder, Party B has right to report to the competent
authorities and department, and has right to report to mess media.
| 4. |
Evidential
Force of Party B’s Record
|
It
shall
be composed of certain evidences effectively proofing the creditor’s right
relations between both parties that Party B’s internal financial record of
principal, interests, fees and repaying record, and Xxxx and Voucher executed
and kept by Party B regarding Party A’s drawings, repaying, repayment of
interests, and Record and Voucher Party B urging the loan, unless otherwise
there will be believable and assured opposite evidences.
| 5. |
Some
Rights Reserved
|
Party
B’s
right hereunder shall not impact and exclude any right Party B entitled by
laws
and regulations and other contracts. It shall not deem to be surrender of right
and interests hereunder or permission of breach of the contract if any
tolerance, period grace, preference of breach of contract or delay performing
the right hereunder. It shall not limit, hinder, and obstruct to perform ahead
the foresaid right and other right. So it shall not cause Party B being
responsible for Party A as well.
10
| 6. |
Except
the debt as described in the contract, Party B has right to transfer
the
money in currency of RMB or any others in Party A’s account opening at CCB
to repay any mature debt first, if Party A burdens the other debt
of Party
B as well, meanwhile Party A shall agree without any
objection.
|
| 7. |
Party
A shall give a written notice to Party B as soon as possible, if
Party B’s
mail address or contact is changed, otherwise Party A shall bear
the loss
because of the failure of the foresaid
notice.
|
| 8. |
Transfer
of the Payable Money
|
As
to all
Party A’s payable money hereunder, Party B has right to transfer the money in
currency of RMB or any others in Party A’s account opening at CCB without
informing Party A in advance. Party A shall be obligated to assist Party B
to go
through the procedures of settling and selling foreign exchange or purchasing
and selling foreign exchange if any, Party A shall bear the risk of foreign
exchange rate.
| 9. |
Settlement
of Dispute
|
Any
dispute arising from the performance of this Contract may be settled through
negotiation. If no settlement could be reached, the dispute shall be dealt
with
according to (1)
below:
| (1) |
to
bring a lawsuit at the People’s Court where Party B’s domicile is located;
or
|
|
(2)
|
to
submit the dispute to [intentionally
left blank]
Arbitration Commission (the place of arbitration is [intentionally
left blank])
for arbitration according to its arbitration rules then effective
at the
time of submission. The arbitration award shall be final and binding
on
the two Parties.
|
In
the
course of lawsuit or arbitration, the Parties shall continue to perform those
provisions in this Contract which are not under dispute.
| 10. |
Effectiveness
of this Contract
|
This
Contract shall become effective after it is signed by Party A’s legal
representative (person in charge) or authorized representative and stamped
with
its corporate seal and signed by Party B’s person in charge or authorized
representative and stamped with its corporate seal.
11
| 11. |
This
Contract shall be made in four
counterparts.
|
| 12. |
Other
Matters Agreed
|
[intentionally
left blank]
[intentionally
left blank]
[intentionally
left blank]
[intentionally
left blank]
Article
11 Representations
|
1.
|
Party
A is fully aware of Party B’s business scope and scope of
authority.
|
|
2.
|
Party
A has perused each clause in this Contract. As requested by Party
A, Party
B has explained correspondingly clauses in this Contract. Party A
is fully
aware of and understands the meaning and corresponding legal consequences
of each clause in this Contract.
|
| 3. |
Party
A shall execute and fulfill the obligation hereunder in accordance
with
laws, regulations, rules and company charter or internal organizational
documents, as well as obtain the approval of the internal competent
department of company or the national competent
authorities.
|
| Party A (corporate seal): Beijing Origin State Harvest Biotech Limited. |
| Legal representative (person in charge) or authorized representative (signature): |
| /s/ Xxxxxxxx Xxx |
| /s/ CORPORATE SEAL |
| November 12, 2007 |
| Party B (corporate seal): China Construction Bank Corporation Beijing Shangdi Sub-Branch |
| Legal representative (person in charge) or authorized representative (signature): |
| /s/ Qi Xue |
| /s/ CORPORATE SEAL |
| November 13, 2007 |
12
