Guarantee Agreement
EXHIBIT
4.47
SECURITY
001
File
Number: No,026 Year 2007 Zi 123010
Guarantor
(hereinafter referred to as “Party A”): Beijing
Origin State Harvest Biotech Limited.
Domicile:
Zhongguancun Developement Plaza Area A 000, 00 Xxxxxxx Xxxxx Xxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx
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
Guarantee
(hereinafter referred to as “Party A”): Beijing
Origin State Harvest Biotechnology Limited
Lender
(hereinafter referred to as “Party B”): China
Construction Bank Corporation Beijing Shangdi Sub-Branch
In
order
to ensure the execution of the “Renminbi Capital Loan Contract” (hereinafter
referred to as the “Master Contract”, contract no.: No.026
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 guarantee 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 Scope of Guarantee
The
scope
of the guarantee 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) 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
2 Mode of Guarantee
The
mode
of guarantee hereunder is guarantee of joint and several liability provided
by
Party A.
Article
3 Term of Guarantee
The
term
of Guarantee hereunder shall be commencing from the execution day hereto and
ending on 2 years later following the termination of the Master Contract, In
case of the renewal of the Debt agreed by Party A, the term of Guarantee
hereunder shall be ending on 2 years later following the termination of the
renewal agreement. If Party B announces the debt is mature in advance as
provided in the Master Contract, then the term of Guarantee hereunder shall
be
ending on 2 years later following the date which Party B announces the debt
is
mature in advance. If the debt is settled in part, as to each debt, the term
of
Guarantee hereunder shall be ending on 2 years later following the last part
of
debt being settled.
Article
4 Independence of the Contract
The
Contract shall be independent of the Master Contract. The invalidation of the
Master Contract shall not impact the effectiveness of the Contract. In case
the
Master Contract is seemed to be invalid, Party A shall bear the guarantee of
joint and several liability because of the debt of return
of
property or compensation for losses.
2
Article
5 Modification of the 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.
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
6 Guarantee liability
1.
If the
debt of the Master Contract is mature or Party B announces the debt is mature
in
advance as provided in the Master Contract or laws, or the debtor does not
fulfill the debt enough on time, or the debtor breach the other agreement of
the
Master Contract, Party A shall bear the guarantee liability in the scope of
the
guarantee immediately.
2.
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.
3.
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.
4.
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;
3
(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;
5.
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.
6.
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
7 Other obligations of Party A
1.
Party
A shall supervise the debtor’s use of the money (including the purpose of the
use), and accept the supervision of Party A’s finance, assets and operation from
Party B, and provide the relevant information, documents, materials, and
guarantee them accurate, actual, integrity and effective; Party A shall not
provide securities beyond its capability for the third party.
2.
If it
happens to commits contracting, consignment, leasing, reform with the stock
system, decreasing the register capital, investment, association, merger,
acquisition, purchase and recombination, joint venture, application for
suspending business for internal rectification, application for dissolution,
being revoke, application for bankruptcy, 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, or other reasons
cause losing its capacity of guarantee, Party A shall give Party B a written
notice immediately and confirm the burden, transfer or succession of the
guarantee liability hereunder as Party B required, or provide a new
security.
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 changing and shall attach the relevant materials
changed.
Article
8 Other obligations of Party A
1.
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.
2.
Use of
Party A’s Information
4
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.
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.
6.
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.
7.
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.
8.
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.
5
| 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.
1o.
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.
This
Contract shall be made in four
counterparts.
12.
Other
Matters Agreed
[intentionally
left blank]
[intentionally
left blank]
Article
9 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.
|
Party
A
(corporate seal): Beijing Origin State Harvest Biotech
Limited.
6
Legal
representative (person in charge) or authorized representative (signature):
| /s/ Xxxxxxxx Xxx | |||
| /s/ CORPORATE SEAL |
November
13
,
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
7
