Mortgage Agreement
EXHIBIT
4.45
SECURITY
002
File
Number: No,025 Year 2007 Zi 123010
Guarantor
(hereinafter referred to as “Party A”): Beijing
Origin Seed Limited.
Domicile:
Xxxxxxxxxxxx Xxxxxxxxxxxx Xxxxx, 00 Xxxxxxx Xinxi Road, Haidian District,
Beijing
Postal
Code: 100085
Legal
Representative (person in charge): Xxxxxxxx Xxx
Telephone:
00000000
Fax:
00000000
Lender
(hereinafter referred to as “Party B”): China
Construction Bank Corporation Beijing Shangdi Sub-Branch
Domicile:
Xx.00 Xxxxxxx Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Construction Bank
Postal
Code: 100085
Legal
Representative (person in charge): Qi Xue
Telephone:
00000000
Fax:
00000000
1
In
order
to ensure the execution of the “Renminbi Capital Loan Contract” (hereinafter
referred to as the “Master Contract”, contract no.: No.025
Year 2007 Zi 123010)
between
Beijing
Origin Seed Limited.
(hereinafter referred to as the “Master Contract Debtor”) and Party B, Party A
agrees to provide mortgage to secure all the lender’s right under the Master
Contract. 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 Collateral
1.
Party
A creates a mortgage on the property described in the “Collateral Schedule”
provided in this Contract.
2.
Party
A shall not refuse to bear the mortgage liability, if the certificate of
encumbrance and other right certificates with respect to the collateral updates,
which cause the inconsistency between the “Collateral Schedule”, or other right
certificates (encumbrance) Party B held or the certificate of encumbrance
and
the foresaid new certificate of encumbrance, original mortgage registration
document.
3.
Party
A shall go though the necessary procedures of mortgage registration as Party
B
required, where the additional Collateral because of adhering, mixing,
processing, rebuilding will be the new part of mortgage for Party B’s creditors’
right, unless otherwise as provided in laws or in the agreement between both
parties.
4.
Party
A shall provide a new security as Party B required, if the Collateral has
been
or maybe shrunk in value, which impact Party B realizing its creditors’
right.
Article
2 Scope of Security
The
scope
of the security hereof shall be 1as
follows:
1.
All
debt set forth in the Master Contract, including but not limited, all of
principal, interests(including compound interest and penalty interest), damages,
compensation, any other amount paid to Party B by the debtor(including but
not
limited, related charges, telecommunication fees, incidental expenses, related
bank charges refused to bear by the foreign beneficiary), fees of Party B
realizing its creditor’ right and securities(including but not limited, fees of
lawsuit, arbitration, property safekeeping, traveling, executing, evaluation,
auction, notarization, delivery, bulletin and lawyer service etc.)
2.
The
principal(say)RMB
FIFTY-ONE MILLION set
forth
in the Master Contract, and interests(including compound interest and penalty
interest), damages, compensation, any other amount paid to Party B by the
debtor(including but not limited, related charges, telecommunication fees,
incidental expenses, related bank charges refused to bear by the foreign
beneficiary), fees of Party B realizing its creditor’ right and
securities(including but not limited, fees of lawsuit, arbitration, property
safekeeping, traveling, executing, evaluation, auction, notarization, delivery,
bulletin and lawyer service etc.)
Article
3 Register of Collateral
Both
Parties shall complete the registration of the collateral with appropriate
registration department within 5 business days upon the execution of this
Contract. Party A shall, as of the date of this Contract, submit to Party
B the
certificate of encumbrance, original mortgage registration document and other
right certificates with respect to the collateral.
Article
4 Modification of Master Contract
1.
If the
articles of the Master Contract is modified by the agreement between both
parties(including but not limited the modification of currency for repaying,
mode of repaying, loan account, repayment account, plan of using the money,
plan
of repaying the money, interests rising date, interests settling date, starting
date or ending date of the term of the debt if the foresaid term is not
extended), Party A agrees to bear the guarantee of joint and several liability
for the debt of the changed Master Contract.
However,
except Party A agrees in advance, if the term of the debt is extended or
the
amount of the principal is increased by the agreement between both parties,
Party A shall only bear the guarantee of joint and several liability for
the
debt of the former Master Contract.
2.
Party
A’s guarantee liability shall not be reduced or exempted because of the
follows:
(1)
Party
B or the debtor happens to be reform of the system, merge, acquisition,
division, decreasing or increasing capital, association, changing company’s
name;
(2)
Party
B consigns the third party to fulfill the obligations as provided in the
Master
Contract.
3.
If the
creditor’s right of the Master Contract is transferred to the third party, Party
A shall assist Party B and the third party to go through procedures of changing
registration of the mortgage as provided in laws.
4.
In
case of the pending invalidation, invalidation, revoking, relief of the debt
and
creditor’s right of the Master Contract, Party A shall still bear the guarantee
of joint and several liability for the debt as provided in the Master
Contract.
Article
5 Possession and safekeeping of the Collateral
1.
Party
A shall possess, safekeep and maintain the collateral appropriately, fair
use
the collateral, keep the collateral intact, pay any taxes with respect to
the
collateral. Party B has right to check the collateral, and require the original
certificate of encumbrance for safekeeping.
2.
Party
A shall tell the third party about the encumbrance of Party B, if Party A
does
consign or agree third party to possess, safekeep and use the collateral,
shall
ask to keep the collateral intact, accept Party B’s supervision of the
collateral and shall hinder Party B realizing its encumbrance. Party A’s
obligations shall not be reduced and exempted, and meanwhile be responsible
for
the third party’s action.
3.
Party
A shall bear the compensations, if it causes to be injury or damage by the
collateral. Party B has right to ask for the recovery from Party A, if Party
B
bear the liability and pay the compensations.
Article
6 Insurance of the collateral
1.
Party
A shall take a property insurance for the collateral with such insurance
type,
insured period and insured amount as designated by Party B and required by
relevant laws, except otherwise as provided in agreement by both parties.
The
insurer shall have legal qualification and good credit.
2.
The
insurance policy shall be identified that Party B is the preferred payee
(i.e.,
the first beneficiary) of the insurance; the modification of the insurance
policy shall be attached Party B’s written consent; In case of insurance
accident, the insurer shall directly remit the insurance indemnity to an
account
designated by Party B. If the collateral has been insured already without
identifying the foresaid content, the insurance policy shall be changed and
identified correspondingly.
3.
Party
A shall confirm the insurance effective continuously, and shall not make
the
insurance to be interrupted, removed, invalid with any excuse, or make the
insurer reducing and exempting its own liability of compensation or changing
the
insurance policy without Party B’s consent. If the insured period is ending, and
the debt secured by Party A is not repaid, Party A shall continue the insurance,
and the insured period shall be extended correspondingly.
4.
Party
A shall deliver the original insurance policy to Party B within 30
business
days commencing from the execution date of this contract (or the date of
continuing the insurance), and obligate the relevant necessary documents
of
claim for compensation and transfer of insurance interest and
right.
5.
As to
the insurance compensations of the collateral, Party B has right to choose
the
follows to dispose, Party A shall assist to go through the relevant
procedures:
(1)
upon
Party B’s consent, to repair the collateral, and to recover the value of the
collateral;
(2)
to
repay or early repay the principal and interest and other relevant fees of
the
Master Contract;
(3)
to
provide the pledge for the debt of the Master Contract
(4)
upon
providing the new security as Party B required, Party A shall dispose with
freedom.
Article
7 Limitation of Party A disposing of the collateral
1.
Party
A shall not dispose of the collateral in any mode, including but not limited
abandonment, leasing, donation, transfer, capital contribution, overlap
security, movement, reform for commonweal purpose, and adhering, rebuilding,
dividing from other property without Party B’s written consent.
2.
Upon
Party B’s written consent, the consideration and the other amounts of Party A
disposing of the collateral shall deposit into the designated account. Party
B
has right to choose any mode as provided in the Article 6 paragraph 5 item
(2)
to (4) to dispose of the collateral, Party A shall assist to go through the
relevant procedures.
Article
8 The third party interference
1.
If the
collateral is of collection, confiscation, backout, seizure, withdraw in
gratis,
or of seal-up, freeze, detain, supervision, lien, auction, force possession,
destroy by third party, Party A shall notify Party B as soon as possible,
and
take actions to deter, exclude, or remedy, to avoid increasing the loss;
If
Party B requires, Party A shall provide a new security as Party B
required.
2.
If the
collateral happens to be the foresaid circumstances, the remain of the
collateral shall still be the mortgage of the debt. The compensations and
damages Party A got because of the foresaid reasons shall be deposited into
the
designated account. Party B has right to choose any mode as provided in the
Article 6 paragraph 5 item (1) to (4) to dispose of the collateral, Party
A
shall assist to go through the relevant procedures.
Article
8 The realizing of mortgage
1.
Party
B has right to deposit of the collateral, if the debtor does not fulfill
the
mature debt of the Master Contract or the debt announced to be mature early,
or
breach the other terms as provided in the Master Contract.
2.
The
value of the collateral recorded in the “Collateral Schedule” or as provided
(hereafter as “interim value”), no matter whether recorded in the register of
the competent authorities or not, shall not be the final value. The final
value
shall be the net value that the consideration Party B disposing of the
collateral deduct taxes.
If
the
debt is repaid by the collateral, the foresaid interim value shall not be
the
accordance, at the time the value of the collateral shall be fixed based
on the
agreement between both parties or the fair evaluation in laws.
3.
The
consideration Party B disposed of the collateral, after paying the fees of
selling and auctioning (including but not limited fees of safekeeping,
evaluation, auction, transfer, assignment of state-owned land use right),
shall
be preferred repaid the debt of the Master Contract, the remnant shall be
backed
to Party A.
4.
Party
B may apply the mandatory of Party A’s property besides the collateral without
consideration of surrender of the encumbrance or disposal of the collateral
first, if the Party A is the debt as same.
5.
Party
A shall not take any mode to interfere Party B realizing the encumbrance
(nonfeasance or feasance).
6.
Party
A’s
guarantee liability hereunder shall not be reduced and exempted, no matter
whether the debt of the Master Contract to Party B is supported by other
securities (including but not limited, Guarantee, Mortgage, Pledge, Credit
Insurance, SBLC etc.), no matter when the foresaid securities is started,
whether effective or not, whether Party B has claimed to other guarantors
or
not, and whether the third party agree to bear the whole and part of the
debt of
the Master Contract or not, and whether the other securities are provided
by the
debtor itself, Party B has right to ask Party A bear the guarantee liability
in
the scope of the guarantee in the Master Contract, Party A shall not give
any
objection.
7.
If
Party
A only provides guarantee for the part of the debt of the Master Contract,
then
Party A agrees, if any, because of the repayment from the debtor, Party B
realizing other security right or any other reasons causing the debt of the
Master Contract to be settled in part, Party A shall still bear the guarantee
liability for the remain debt in the scope of the guarantee of the Master
Contract.
8.
If
Party A only provides guarantee for the partial debt of the Master Contract,
and
the debt of the Master Contract is still not repaid wholly after the guarantee
is made, then Party A promises, to claim the subrogation to the debtor or
other
guarantors, which will not hurt party B’s interests, and agrees the debt of the
Master Contract shall be settled prior to Party A realizing the subrogation
of
its own
Specifically,
before the debt of Party B is settled wholly:
(1)
Party
A agrees, not to claim the subrogation of the debtor or other security; in
case
of any reason, Party A realizes the foresaid right, then Party A shall use
the
money to repay the debt not settled first;
(2)
If
the debt is supported with security in property, Party A agrees not to perform
the subrogation or others to claim the collateral or the money of the disposal,
Party A shall use the money to repay the debt not settled first;
(3)
If
the debtor or other security provides countersecurity
for Party A, then Party A shall use the money from the foresaid countersecurity
to
repay
the debt not settled first;
9.
If the
Master Contract is not executed, uneffect, invalid, partial invalid or be
revoked, be dissolution, and Party A is not the debtor hereunder, then Party
A
shall bear the joint and several liability in scope of the security
10.
Party
A has been aware of the risk of the foreign exchange rate. If Party B adjusts
the interest rate, mode of interest calculation and settlement in accordance
with the policy of the interest rate and the Master Contract, which causes
the
debtor repaying more interest, penalty interest, compound interest, then
Party A
shall bear the guarantee liability for the additional part.
11.
Except
the debt of the Master Contract, if the debtor bear the other mature debt
to
Party B, then Party B has right to transfer and deduct any amount in any
currency from the account opened by the debtor at China Construction Bank’s
system to repay any mature debt first, and Party A’s guarantee liability shall
not be reduced and exempted.
Article
10 Liability
for Breach
1.
Party
A’s liability for breach
(1)
If
Party A breaches any condition or provides any false, mistaken, omitted
statement against the guarantee items, Party B has right to take actions
of one
or several as follows:
i.
ask
Party A to correct the breach in certain time,
ii
ask
party A to provide a new security
iii
ask
Party A for the compensations
iv
dispose of the collateral
v
other
remedy permitted in laws
(2)
Party
B has right to choose any mode as provided in the Article 6 paragraph 5 item
(2
to (4) to dispose of the collateral, Party A shall assist to go through the
relevant procedures.
(3)
If
the encumbrance
is not valid, the collateral value shrinks in value, Party B does not realize
its encumbrance enough and in time, and Party A is not the debtor hereunder,
then Party B has right to ask Party A to bear the joint and several liability
in
scope of the security
2
Party
A’s liability for breach
If
Party B
loses the certificate of the encumbrance from Party A; or after the debt
of the
Master Contract has repaid, Party B does not return the certificate of the
encumbrance immediately or not assist to go through the procedures of canceling
the mortgage registration after Party B applying, Party A has right to
take
actions of one or several as follows:
|
(1)
|
ask
Party B to bear the fees for filing a new certificate of
encumbrance
|
|
(2)
|
ask
Party B to return the certificate of encumbrance, or assist to
cancel the
mortgage registration
|
Article
11 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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
If
Party
B does not perform or delay to perform any right or not use the remedy enough
of
the Master Contract, Party A’s guarantee liability shall not be reduced and
exempted, but if Party B reduces and exempts the debt, Party A’s guarantee
liability shall be reduced and exempted correspondingly.
7.
If
Party A happens to be division, dissolution, bankruptcy, revoked, canceled
the
industrial and business reiteration, revoked the license, or the collateral
happens to be destroyed, lost, damaged, out of control, or the certificate
happens to be in dispute or canceled, Party A shall notify Party B
immediately.
8.
Dissolution
or bankruptcy of the debtor
After
learning of dissolution or bankruptcy of the debtor, Party A shall notify
Party
B to apply for its creditor’s right, and meanwhile engage in the procedures of
dissolution or bankruptcy immediately, and perform the subrogation
in advance. If Party A does know and shall know the debtor engaging in
the
procedures of dissolution or bankruptcy, but not perform the subrogation
in advance, Party A shall bear the loss.
In
spite
of paragraph 5 item 2 in this article, in the course of the bankruptcy, if
Party
B enters into a compromise agreement with the debtor, or agree the plan of
recombination, Party B’s right hereunder shall not be impaired by the agreement
and the plan, Party A’s guarantee liability shall not be reduced and exempted.
The agreement and the plan of Party A shall not be against Party B’s claim. As
to the remain payable debt because of the concession to the debtor made by
Party
B in the agreement and the plan, Party B has right still to ask Party A to
repay
in the future.
9.
Party
A’s
dissolution or bankruptcy
Party
B
has right to engage in the liquidation and bankruptcy of Party A and apply
for a
claim, if Party A happens to be in liquidation and bankruptcy, the creditor’s
right is still not mature in the Master Contract if any.
10.
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.
11.
Other
Matters Agreed
[intentionally
left blank]
[intentionally
left blank]
12.
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.
|
13.
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.
14.
This
Contract shall be made in five
counterparts.
Article
12 Collateral
Schedule
The
Collateral
Schedule hereof is as follows:
Collateral
Schedule
|
Name
of the Collateral
|
Title
Certificate and No.
|
Domicile
|
Acreage
or amount
|
Assessed
Value of the Collateral (yuan)
|
Amount
of Mortgage Created for Other Creditor’s Right
(yuan)
|
Remarks
|
||||||
|
Xxxx
Xx. 00 in the Life Science Park of Zhongguancun (land-use right)
and
buuilding
|
Xxxx
Xxxxx Xxx Xxxx ( 2004 )Zi Xx.000
|
Xxxx
Xxxxxxx Xxxx xx Xxxxxxxxxxxx
|
00000
|
51million
|
0
|
|||||||
Article
13
Party A’s statement and 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.
4.
Party
A
confirms it has been fully
aware of the assets, debt, operation, credit, honor of the debtor, whether
it
has capacity and limitation of executing the Master Contract or not, and
all of
the content of the Master Contract.
5.
Party
A shall be entitled with property and disposal of the collateral by laws,
the
collateral is not commonweal facilities, or the property prohibited to business
and transfer, not engage in any dispute of the ownership.
6.
There
is not other part owner of the collateral, or the mortgage shall be consented
by
other part owners in writing if any.
7.
There
is not any flaw or burden shall be notified to Party B in a written, including
but not limited the collateral might be prohibited, be sealed up, be detained,
be leased, be lien, or might fail to pay the purchasing money, maintenance
fees,
building money, national taxes, assignment of land use right, compensations
etc.
or might be secured for the third party.
8.
All
relevant materials and information regarding the collateral Party A provides
to
Party B shall be actual and lawful, accurate and integrity.
9.
The
mortgage provided by Party A hereunder shall not damage any third
party’s
lawful
interests, and not breach any obligation of Party A as provided hereunder
or in
laws.
Party
A
(corporate seal): Beijing Origin Seed Limited
Legal
representative (person in charge) or authorized representative (signature):
/s/
Xxxxxxxx Xxx
/s/
CORPORATE SEAL
November
18, 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
18, 2007
