Renminbi Capital Loan Contract China Construction Bank Corporation Beijing Branch
EXHIBIT
4.42
Renminbi
Capital Loan Contract
China
Construction Bank Corporation
Beijing
Branch
Borrower
(hereinafter referred to as “Party A”): Beijing
Origin Seed 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) Forty
Million Yuan.
Article
2 Purpose
of Money Borrowed
Party
A
will use the money borrowed for the purpose of working
capital.
Article
3 Term
of Money Borrowed
As
provided in this Contract, the term of the money borrowed is 12
months
commencing from September
29, 2007
and
ending on September
28, 2008.
If
the
commencement date of the term of the money borrowed hereunder is different
from
that specified in the bank remittance voucher, the date specified in the bank
remittance voucher for the first advance shall prevail. 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 a monthly
interest
rate at (1)
below:
|
(1)
|
fixed
rate of 6.075‰,
which rate shall remain unchanged during the term of the money
borrowed;
|
|
(2)
|
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.
|
|
2.
|
Penalty
Interest Rate
|
|
(1)
|
The
penalty interest rate shall be a monthly
interest rate.
|
1
|
(2)
|
If
Party A fails to use the loan for the purpose specified herein, the
penalty interest rate shall be at (i)
below:
|
|
(i)
|
fixed
rate of 12.15‰;
|
|
(ii)
|
floating
rate, that is, [intentionally
left blank]%
above the base interest rate and adjusted every [intentionally
left blank]
months from the Interest Starting Date. The penalty interest adjustment
date shall be the date corresponding to the Interest Starting Date
in the
month the penalty 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.
|
|
(3)
|
The
penalty interest for overdue loan hereunder shall be at the rate
of (i)
below:
|
|
(i)
|
fixed
rate of 9.1125‰;
|
|
(ii)
|
floating
rate, that is, [intentionally
left blank]%
above the base interest rate and adjusted every [intentionally
left blank]
months from the Interest Starting Date. The penalty interest adjustment
date shall be the date corresponding to the Interest Starting Date
in the
month the penalty 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.
|
|
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 = monthly interest
rate/30 = 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 on a monthly
basis for the loan hereunder and the interest settlement date shall
be the
20th of every month.
|
Article
5 Advance
and Use of Money Borrowed
| 1. |
Conditions
Precedent to the Advance of the Money
Borrowed
|
| (1) |
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 according to relevant
laws and
regulations;
|
| ii. |
If
a security is created for this Contract, a security contract or other
form
of security that satisfies Party B’s requirement having become
effective;
|
| iii. |
Party
A having committed no event of default set forth in this
Contract;
|
| iv. |
Other
conditions precedent to the advance of the loan as agreed by the
two
Parties:
|
| [intentionally left blank]. |
| (2) |
Party
B shall begin to advance the loan within five
bank business days after Party A has satisfied the foregoing
conditions.
|
| 2. |
Schedule
of Use of the Loan
|
| (1) September 29, 2007 | amount Forty Million Yuan; |
| (2) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (3) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (4) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (5) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (6) [intentionally left blank] (date) | amount [intentionally left blank]; |
Article
6 Repayment
| 1. |
Repayment
Principles
|
Repayment
made by Party A hereunder shall comply with the following
principles:
3
|
(1)
|
the
principle of principal repaid first and interest paid then shall
be
applied to the following loans: its principal amount is overdue for
over
90 days; its interest is overdue for over 90 days; Party A has ceased
its
production and operation or project the loan involves although the
loan is
not matured or is overdue for less then 90 days; loans otherwise
provided
for by laws or regulations;
|
|
(2)
|
the
principles of interest paid first and principal repaid then and the
interest paid together with the principal shall be applied to loans
other
than those described in the above paragraph
(1).
|
| 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
|
Party
A
shall repay the principal of the loan as per the schedule as
follows:
| (1) September 28, 2008 | amount Forty Million Yuan; |
| (2) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (3) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (4) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (5) [intentionally left blank] (date) | amount [intentionally left blank]; |
| (6) [intentionally left blank] (date) | amount [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
|
| (1) |
Party
A is only required to give Party B a prior notice for its prepayment
of
the interest.
|
| (2) |
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.
|
4
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
Article 4 of this Contract.
If
Party
A prepays the principal, Party A agrees to pay to Party B liquidated damages
as
follows: liquidated damages = amount prepaid x number of months ahead x rate
of
liquidated damages. The rate of liquidated damages is 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 Security
of Money Borrowed
In
case
of a secured loan, the form of security is 1
as
follows:
| 1. |
Guarantee.
|
| 2. |
Mortgage.
|
| 3. |
Pledge.
|
| 4. |
Standby
Letter of Credit.
|
| 5. |
Credit
Insurance.
|
| 6. |
Others:
[intentionally
left blank].
|
Article
8 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.
|
|
2.
|
Party
A shall be obligated:
|
| (1) |
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;
|
5
| (2) |
to
use the loan for the purpose provided in this Contract without
misappropriating or embezzling the money
borrowed;
|
| (3) |
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.
|
| (4) |
to
repay the principal and interest of the loan in a timely manner according
to this Contract.
|
| (5) |
Party
A and its investors shall not spirit its money away or transfer its
assets
to escape debts owing to Party B;
|
| (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
give Party B a prior written notice and obtain Party B’s consent if Party
A intends to provide security for the debts of others during the
valid
term of this Contract, which may affect its ability to repay the
loan
hereunder;
|
| (8) |
to
promptly provide other security as acceptable to Party B if the guarantor
hereunder is winding-up, closed, deregistered, revoked its business
license, bankrupt, revoked, suffering from losses, partly or wholly
deprived of corresponding ability to secure the loan hereunder, or
the
collateral or property pledged to secure the loan hereunder decreases
in
value or accidentally is damaged or
lost;
|
| (9) |
to
promptly notify Party B of any change in its name, legal representative
(person in charge), domicile, business scope or registered capital
during
the valid term of this Contract.
|
| (10) |
to
give Party B a 30
days prior written notice, obtain Party B’s consent and arrange for the
satisfaction of and security for the debts hereunder as requested
by Party
B if Party A commits any of the following during the valid term of
this
Contract: contracting, lease, reform with the stock system, association,
merger, acquisition, division, joint venture, application for suspending
business for internal rectification, application for dissolution
or
bankruptcy, which will definitely affect Party B’s realization of its
rights as a creditor of the loan;
|
| (11) |
to
promptly notify Party B in writing and arrange for the satisfaction
of and
security for the debts hereunder as requested by Party B if Party
A is
winding-up, closed, deregistered, revoked its business license, or
its
legal representative or person in charge is engaged in illegal activities
or involved in serious litigation, or it experiences severe difficulties
in its production and operation or its financial conditions deteriorate
significantly during the valid term of this Contract, which materially
and
adversely affects its performance of obligations to repay the loan
hereunder;
|
6
| (12) |
to
bear all expenses with respect to this Contract and the security
hereunder, such as legal fees, insurance, assessment, registration,
custody, appraisal and notarization expenses.
|
Article
9 Party
B’s Rights and Obligations
|
1.
|
Party
B shall have the right to:
|
| (1) |
learn
the production, operation and financial activities of Party A and
require
Party A to provide relevant documents, such as plan statistics, financial
and accounting statements;
|
| (2) |
deduct
and transfer from the account opened by Party A at China Construction
Bank’s system any amount in any currency owing to Party B and payable
by
Party A under this Contract.
|
|
2.
|
Party
B shall be obligated to:
|
| (1) |
advance
the loan fully and in a timely manner as provided for in this Contract,
except for any delay due to the reasons attributable to Party
A;
|
| (2) |
keep
confidential financial materials and production and operation related
trade secrets provided by Party A, unless otherwise provided for
by laws,
regulations and rules.
|
Article
10 Liability
for Breach of Contract
|
1.
|
Event
of Default
|
| (1) |
Party
A’s Event of Default
|
| i. |
it
fails to provide true, complete and valid financial and accounting
materials, production and operation conditions and other relevant
materials as requested by Party B;
|
| ii. |
it
fails to use the loan for the purpose agreed by the two
Parties;
|
| iii. |
it
fails to repay the principal and interest in a timely
manner;
|
| iv. |
it
refuses or prevents Party B from supervising and inspecting the use
of the
loan;
|
| v. |
it
transfers its assets or spirits its money away to escape
debts.
|
| vi. |
its
operation and financial conditions deteriorate, it is unable to repay
debts when due, or is involved or will be involved in material litigation,
arbitration proceeding, or other legal dispute, which, in the opinion
of
Party B, may affect or has affected or impaired Party B’s rights and
interests hereunder;
|
7
| vii. |
it
incurs any other indebtedness which has affected or may affect its
performance of the obligations hereunder to Party
B;
|
| viii. |
it
fails to discharge other debts owing to China Construction
Bank;
|
| ix. |
it
commits any of the followings during the valid term of this Contract:
contracting, lease, merger, acquisition, joint venture, division,
association, reform with the stock system and other acts that change
its
operation manner or operation system, which, in the opinion of Party
B,
may affect or has affected or impaired Party B’s rights and interests
hereunder;
|
| x. |
other
circumstances under which the realization of creditor’s rights will, in
the opinion of Party B, definitely be
affected;
|
| xi. |
it
is in breach of other obligations provided in this
Contract.
|
| (2) |
Party
A shall be deemed to be in default if the guarantor falls into any
of the
following circumstances and Party A fails to provide new security
as
required by Party B:
|
| i. |
contracting,
lease, merger and acquisition, joint venture, division, association,
reform with the stock system, bankruptcy or revocation, which will
definitely affect the guarantor’s joint and several liabilities
hereunder;
|
| ii. |
the
guarantor provides a third party with guarantee beyond its
capability;
|
| iii. |
the
guarantor is deprived or may be deprived of its ability to guarantee
the
loan;
|
| iv. |
other
events of default of the guarantor provided for in the guarantee
contract.
|
| (3) |
Party
A shall be deemed to be in default if the mortgagor falls into any
of the
following circumstances and Party A fails to provide new security
as
required by Party B:
|
| i. |
the
mortgagor fails to purchase and maintain a property insurance for
the
collateral as required by Party B or fails to take care of the insurance
indemnity according to the mortgage contract after insurance accident
occurs;
|
| ii. |
the
mortgagor fails to take care of the damages according to the mortgage
contract when the collateral is damaged, lost or decreased in value
as a
result of a third party’s action;
|
| iii. |
the
mortgagor donates, transfers, leases, mortgages repeatedly, removes
or
otherwise disposes of the collateral without Party B’s written
consent;
|
8
| iv. |
the
mortgagor fails to take care of the proceeds from the disposal of
the
collateral according to the mortgage contract after the mortgagor
disposes
of the collateral upon Party B’s
consent;
|
| v. |
the
mortgagor fails to timely restore the value of the collateral or
fails to
provide other security as acceptable to Party B if the collateral
is
damaged, lost or decreased in value which will definitely affect
the
discharge of the debt hereunder;
|
| vi. |
other
events of default of the mortgagor provided for in the mortgagor
contract.
|
| (4) |
Party
A shall be deemed to be in default if the pledgor falls into any
of the
following circumstances and Party A fails to provide new security
as
required by Party B:
|
| i. |
the
pledgor fails to purchase and maintain a property insurance for the
collateral as required by Party B or fails to take care of the insurance
indemnity according to the pledge contract after insurance accident
occurs;
|
| ii. |
the
pledgor fails to take care of the damages according to the pledge
contract
when the collateral is damaged, lost or decreased in value as a result
of
a third party’s action;
|
| iii. |
the
pledgor fails to take care of the proceeds from the disposal of the
collateral according to the pledge contract after the pledgor disposes
of
the collateral upon Party B’s
consent;
|
| iv. |
the
pledgor fails to timely restore the value of the collateral or fails
to
provide other security as acceptable to Party B if the collateral
is
damaged, lost or decreased in value which will definitely affect
the
discharge of the principal and interest
hereunder;
|
| v. |
other
events of default of the pledgor provided for in the pledge contract.
|
| (5) |
Party
A shall be deemed to be in default if the security contract or other
form
of security 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 and Party A fails to provide new security
therefor.
|
2. Remedial
Measures
Upon
the
occurrence of any of the events of default set forth in paragraph (1) to
paragraph (5) hereinabove, Party B shall be entitled to one or more of the
following rights:
|
(1)
|
to
stop the advance of the loan, 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.
|
9
|
(2)
|
to
collect liquidated damages from Party A on the principal amount of
the
loan hereunder at [intentionally
left blank] ‰.
|
|
(3)
|
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.
|
|
(4)
|
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 Article 4 hereof before the maturity of the
loan.
|
| (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.
|
|
(6)
|
to
transfer and receive any amount in any currency from the account
opened by
Party A at China Construction Bank’s
system.
|
|
(7)
|
to
require Party A to provide such new security as required by Party
B for
all debts hereunder.
|
|
(8)
|
to
exercise rights under the security.
|
|
(9)
|
to
terminate this Contract.
|
Article
11 Other
Matters Agreed
1. [intentionally
left blank];
2. [intentionally
left blank];
3. [intentionally
left blank];
4. [intentionally
left blank];
Article
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
|
10
|
(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.
Article
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.
Article
14 This
Contract shall be made in five
counterparts.
Article
15 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 has the right to sign this Contract.
|
Party
A
(corporate seal): Beijing Origin Seed Limited.
Legal
representative (person in charge) or authorized representative (signature):
/s/
Xxxxxxxx Xxx
/s/
CORPORATE SEAL
September
29, 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
September
29, 2007
11
