Repurchase Agreement (2008)Full Document 

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NOTES REPURCHASE AGREEMENT

This NOTES REPURCHASE AGREEMENT (this “Agreement”) dated as of July 28, 2008 is made by and between Origin Agritech Ltd., a company organized and existing under the laws of the British Virgin Islands (the “Company”) and Citadel Equity Fund Ltd. (the “Seller”).

RECITALS:

WHEREAS, the Company has issued to the Seller, and the Seller has purchased from the Company, the Company’s 1% Guaranteed Senior Secured Convertible Notes due 2012 of US$100,000 principal amount each in an aggregate principal amount of US$40,000,000 (the “Notes”) pursuant to that certain Notes Purchase Agreement dated July 25, 2007 by and among, inter alia, the Company and the Seller.

WHEREAS, in connection with such transaction, an Indenture dated July 25, 2007 (the “Indenture”) was entered into by and among, inter alia, the Company, The Bank of New York (the “Trustee”) and State Harvest Holdings Limited (the “Guarantor”). Capitalized terms that are not otherwise defined in this Agreement shall have the meanings ascribed to them in the Indenture or other relevant Transaction Documents, as applicable.

WHEREAS, the Company now wishes to repurchase from the Seller, and the Seller wishes to sell to the Company, Notes, each of US$100,000 principal amount, in an aggregate principal amount of US$18,700,000 (the “Repurchased Notes”) upon the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements of the parties contained herein, the parties hereto agree as follows:
 
1.
NOTES REPURCHASE; PAYMENT
 
1.1 Repurchase and Sale of the Repurchased Notes. The parties agree that the Company shall repurchase the Repurchased Notes from the Seller in two (2) installments. At the first closing (the “First Closing”), the Company shall repurchase from the Seller and the Seller shall sell to the Company Repurchased Notes in an aggregate principal amount of US$14,000,000 for an aggregate purchase price of US$15,000,000. At the second closing (the “Second Closing”), the Company shall repurchase from the Seller and the Seller shall sell to the Company Repurchased Notes in an aggregate principal amount of US$4,700,000 for an aggregate purchase price of US$5,000,000 (together with the purchase price paid at the First Closing, the “Repurchase Price”). Notwithstanding any terms of this Agreement, the Seller shall be entitled to all rights and privileges in respect of the Repurchased Notes as a noteholder up to the First Closing Date or the Second Closing Date (each as defined below), as the case may be, including, without limitation, the right to receive any Interest payable on the Repurchased Notes in respect of any Record Date prior to the First Closing Date or the Second Closing Date, as applicable. For the avoidance of doubt, except as provided in the preceding sentence, the Seller shall not be entitled to any accrued and unpaid Interest on the Repurchased Notes.
 


1.2 Closing. The First Closing shall occur at the Beijing office of Milbank, Tweed, Hadley & McCloy LLP, or at such other place as the Company and the Seller shall mutually agree, on the date that falls three (3) business days after the date hereof, or if later, the third business day following the satisfaction of all of the conditions set forth in Section 8 (the “First
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