Short-Term Renminbi Loan Agreement No.: 2007 Bank of China 0169
(English
Translation)
Short-Term
Renminbi Loan Agreement
No.:
2007
Bank of China 0169
Borrower:
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Dalian
Chuming Meat Co., Ltd.
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Business
License No.:
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Dalian
Bureau of Industry and Commerce 2102812123719
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||
Legal
Representative:
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SHI,
Huashan
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||
Business
Address:
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Xx.
0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx Xxxx
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Zip
code:
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116000
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Bank
Account:
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Bank
of China Liaoning Branch 00000000000000
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Telephone:
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86716585
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Facsimile:
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86716686
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Lender:
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Bank
of China Corp., Liaoning Branch (Bank of China Liaoning
Branch)
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Authorized
Personnel:
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DONG,
JianYue
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Business
Address:
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Xx.0,
Xxxxxxxxx Xxxxx, Xxxxxx Xxxx
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Xxx
code: 116001
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Telephone:
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862586901
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Facsimile:
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82586779
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Negotiating
on equal standings, Borrower and Lender enters into this agreement to facilitate
Lender lending Renminbi (RMB) to Borrower on a short-term basis.
This
agreement is entered into under the 2007 Bank Credit Agreement No. 032 between
Bank of China Corp., Liao Ning Branch and Dalian Chuming Group Co., Ltd.
1. |
Loan
Amount
|
Loan
Amount: RMB 30,000,000 (approximately $4.3 million)
2. |
Term
of the Loan
|
Term
of
the Loan: 11 months, beginning from the date the fund is withdrawn, provided
that if fund is withdrawn in installments, then beginning from the withdrawal
date of the first installment.
3. |
Use
of Proceeds
|
Use
of
Proceeds: working capital
Without
Lender’s prior written consent, Borrower shall not use the funds for any other
purposes, including without limitations to acquire stock or make other equity
investment, and shall not use the funds in violation of any laws or regulations
or for purposes prohibited or not legally approved by the State or contrary
to
the stated use of proceeds.
4.
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Interest
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(a) Interest
Interest
shall be determined as follows: Fixed interest of 8.217% per annum, fixed during
the term of this agreement.
(b) Calculation
of Interest
Interest
shall be calculated from the date the fund is withdrawn, based on the amount
withdrawn and the number of days the withdrawn fund is used.
Interest
= principal X number of days X daily interest
Daily
interest is based on a 360-day year, such that daily interest = annual
interest/360
(c) Payment
of Interest
Borrower
shall pay interest as follows: quarterly payment, with the payment amount
determined as of the 20th day of the last month of each quarter and the payment
date being the 21st day.
Whether
or not the final principal payment day falls on an interest payment day,
Borrower shall pay all accrued interest.
(d) Penalty
(1) With
respect to any untimely payment by Borrower, this penalty provision shall apply
immediately after the date of the scheduled payment date until the penalty
amount is fully paid, with the penalty being set at 50% of the contracted
interest rate.
(2) With
respect to any fund not used by Borrower in accordance with the use of proceeds,
this penalty provision shall apply immediately beginning on the date such fund
was used until the penalty amount is fully paid, with the penalty being set
at
100% of the contracted interest rate.
(3)
If
an
amount of fund is used in breach of the use of proceeds and the repayment of
such fund is untimely, the penalty for such fund shall be set in accordance
with
(2) above.
(4) If
Borrower cannot timely make interest payment, interest on such payment shall
be
calculated the interest pursuant to Section 4(c) of this agreement. Any interest
due prior to the loan maturity date shall be calculated in accordance with
Section 4(a) of this agreement.
5. |
Conditions
for Fund Withdrawal
|
Borrower
must satisfy the following prior to withdrawal of funds:
(a) This
agreement and any addendums shall be in effect.
(b) Borrower
shall have complied with Lender’s requirement for guaranty, with such guaranty
being legally in effect.
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(c) Borrower
shall have provided to Lender in advance a copy of this agreement and all
related documentation, signatures, corporate seals.
(d)
Borrower
shall have established a bank account in accordance with Lender’s
requirement.
(e) One
bank
working day prior to the withdrawal date, Borrower shall have provided Lender
with the completed withdrawal request and documentation for the use of proceeds
of the funds being proposed to be withdrawn.
(f) Borrower
shall have provided Lender with a copy of the board resolutions and other
corporate governance related documentation approving the proposed fund
withdrawal.
(g) Borrower
shall have provided any other documentation as legally required and/or agreed
to
by the parties.
If
any of
the foregoing conditions has not been satisfied and unless otherwise waived
by
Lender, Lender shall have the right to refuse Borrower’s fund withdrawal
request.
6. |
Method
and Time for Fund Withdrawal
|
(a) Borrower
shall withdraw fund as follows: the loan amount to be withdrawn in full within
30 days of December 27, 2007.
(b) Lender
shall have the right to refuse Borrower’s fund withdrawal request with respect
to any fund not withdrawn by the stated time. If Lender approves the withdrawal
of any such fund, Lender shall have the right to a fee of 5% of the amount
of
such fund, as well as a fee of 5% of the amount of the fund that Lender does
not
approve for withdrawal.
7. |
Repayment
|
(a) Unless
otherwise agreed to by the parties, Borrower shall repay the loan amount as
follows: the entire principal on at the end of the term of this agreement.
To
alter
the repayment schedule, Borrower must make written request to Lender five bank
working days prior to the repayment date, with any alteration to be made
pursuant to mutual writing of the parties.
(b) Unless
otherwise agreed to by the parties, Lender shall have the right to determine
how
to apply any amount received from Borrower in the event that there are both
outstanding principal and interest, or in the event that Borrower has more
than
one loan due and outstanding with Lender.
(c) Unless
otherwise agreed to by the parties, Borrower shall have the right to prepay
the
loan, provided that Lender is notified in writing one bank working day in
advance, with such prepayment to be applied first to the loan with the latest
due date. Lender shall have the right to a fee of 5% of the amount of the
prepayment.
(d) Borrower
shall make payment as follows: one bank working day prior to a repayment date,
Borrower shall deposit the payment amount into the account specified below,
and
Lender shall have the right to take such payment on the payment
date.
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Account
Name: Dalian Chuming Meat Co., Ltd.
Account
No.: 26586008093001
8. |
Guaranty
|
(a) This
agreement shall be guarantied as follows:
(1) By
Dalian
Chuming Group Co., Ltd.’s 2005 Bank of China No. 024 Pledge Agreement;
(2) By
Dalian
Chuming Group Co., Ltd.’s 2005 Bank of China No. 025 Pledge
Agreement;
(3) By
Dalian
Chuming Group Co., Ltd.’s 2006 Bank of China No. 044 Pledge
Agreement;
(4) By
Dalian
Food Co., Ltd.’s 2007 Bank of China No. 017 Pledge Agreement;
(5) By
Dalian
Mingxing Livestock Co., Ltd. 2007 Bank of China No. 018 Pledge
Agreement;
(6) By
Dalian
Mingxing Livestock Co., Ltd. 2005 Bank of China No. 002 Pledge
Agreement;
(7) By
the
2007 Bank of China No. 037 Guaranty Agreement of Shi Huashan and the other
signatories of the Guaranty Agreement;
(8) By
the
2007 Bank of China No. 038 Guaranty Agreement of Ma
Fengqin and the other signatories of the Guaranty Agreement; and
(9) By
Dalian
Chuming Group Co., Ltd.’s 2007 Bank of China No. 023 Pledge
Agreement.
(b) In
the
event of any of the following, Lender shall have the right to require Borrower
to furnish new guaranty and/or guarantor with respect to the obligations herein,
and Borrower shall have the obligation to comply: (i) if Lender determines
that
an event may affect the ability of Borrower or any of the guarantors to perform
its obligations herein, (ii) if any of the guaranty agreements shall become
ineffective or is terminated, (iii) if the financial conditions of Borrower
or
any of the guarantors deteriorate or if Borrower or a guarantor becomes a party
in a major litigation proceeding, (iv) if any guarantor is party to another
agreement such as to conflict with such guarantor’s obligations herein or to
Borrower, or (v) if any pledged assets depreciates in value, is destroyed,
seized or otherwise lost.
9. |
Representations
and Warranties
|
(a) Borrower
hereby represents as follows:
(1) Borrower
has complied with the legal requirements in entering into this
agreement;
(2) Borrower
has acted in accordance with by its bylaws and/or other internal corporate
governance documentation and is authorized to enter into this agreement, which
shall not violate any other agreements or legal documents of which Borrower
is a
party to, and Borrower has or will have obtained all necessary approvals,
licenses or registrations as required by this agreement;
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(3) All
documents, financial statements, certificates and information provided by
Borrower are accurate, complete and/or in effect;
(4) Borrower
is not borrowing money for any illegal purposes; and
(5) Borrower
has not withheld from Lender any information regarding the financial conditions
of Borrower or any of the guarantors, or its ability to perform its contractual
obligations.
(b) Borrower
hereby warrants as follows:
(1) Borrower
shall, periodically or at Lender’s request, provide financial statements,
including but not limited to annual, quarterly and monthly reports, as well
as
any other related information;
(2) If
Borrower is already a party to, or shall enter into any agreement on behalf
of
any of the guarantors that obligates Borrower to provide guaranty to such
guarantor, any such agreement shall not diminish any of Lender’s rights under
this agreement;
(3) Borrower
shall submit to and cooperate with any credit verification and/or inspection
by
Lender;
(4) Borrower
shall notify Lender of any possible event that may affect the Borrower’s or any
of the guarantors’ financial conditions or ability to perform the contractual
obligations, which event shall include but is not limited to the following,
any
of which shall require the prior consent of Lender if such event shall affect
Borrower’s ability to repay: spin-off, merger, foreign investment, cooperation,
take-over, reorganization, restructuring, going public or other management
changes, decrease in registered capital, transfer of major asset or equity,
incurring major debt or securing such debt with pledged assets, seizure or
forced sale of pledged assets, voluntary or forced bankruptcy, becoming a party
in a major litigation proceeding, deterioration of financial conditions, or
contractual breach by Borrower;
(5) Lender
shall have priority over all other loans of Borrower and shall not be subject
to
subordination of other lenders.
(6) Borrower
shall not make any dividend payments to its stockholders in the event that
Borrower shall have audited zero profit or loss after tax, if Borrower’s audited
after-tax profit is less than the then accumulated loss, if Borrower fails
to
apply audited before-tax profit toward payment of the principal, interest and/or
fees under this agreement, or if Borrower’s audited before-tax profit is less
than the then applicable required payment amount; and
(7) Borrower
shall not otherwise dispose its assets in order to reduce its obligations to
repay, and shall not provide guaranty for an amount greater than 1.5 times
Borrower’s net asset value, or for an amount or transaction that is contrary to
Borrower’s bylaws.
10. |
Lender
has determined that Borrower is a group client in accordance with
the
Commercial Banking Group Client Credit Risk Management Guide. Borrower
shall periodically report to Lender of any transaction involving
an amount
greater than 10% of Borrower’s reported net asset, including the parties
and their contact information, and the purpose, amount and terms
of the
transaction.
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Lender
shall have the right unilaterally to withhold any fund from Borrower and to
seek
early repayment of principal and all outstanding interest in the event of any
of
the following: (i) use of false contracts between related parties; (ii) issuance
of accounts payable based on non-existing transactions; (iii) creating false
accounts receivable for the purpose of obtaining funds or credit from, or
providing guaranty to other banking institutions; (iv) entering into any
material merger, acquisition or restructuring that may adversely affect the
repayment of the loan; (v) avoidance of loan obligations through related party
transactions; or (vi) any other circumstances as specified in Section 18 of
the
Commercial Banking Group Client Credit Risk Management Guide.
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11.
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Default
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The
following shall be deemed an event of default:
(a) Borrower
fails to make timely payment to Lender;
(b) Borrower
uses any fund for purposes contrary to the stated use of proceeds;
(c) If
any of
Borrower’s representation is untrue, or if Borrower breaches any of its
warranties;
(d) On
the
occurrence of any of the events described in Section 9(b)(4) of this agreement,
Borrower fails to provide new guaranty and/or guarantor;
(e) Borrower
acts in contravention of any of the rights of the parties herein;
(f) Borrower
causes an event of default of any contract of which Lender or any other Bank
of
China related entity is a party;
(g) A
breach
by a guarantor of its guaranty agreement, or if a guarantor causes an event
of
default of any contract of which Lender or any other Bank of China related
entity is a party; or
(h)
Borrower
ceases all business operations, is dissolved or files for
bankruptcy.
In
the
event of default, Lender shall have the right to take any one or all of the
following actions:
(a) To
require Borrower and/or the guarantor to take corrective actions within a
specified time period;
(b) To
halt,
reduce or terminate all or part of Borrower’s credit limit;
(c) To
halt,
reduce or terminate all or part of Borrower’s then pending fund withdrawal
request, as well as any non-withdrawn fund;
(d) To
declare any outstanding amount owing to Lender, whether or not pursuant to
this
agreement, immediately due;
(e) To
terminate this agreement in whole or in part, or to terminate such other
agreements between Lender and Borrower;
(f) To
obligate Borrower to pay all damages resulting from the event of
default;
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(g) To
apply
any funds held in Borrower’s account with Lender or any Bank of China related
entity toward payment of all or part of Borrower’s obligations under this
agreement, with notice to Borrower prior to or after the taking of such action
by Lender, and the value of any property held in such account shall be
determined by Lender at the time of seizure;
(h) To
exercise its rights with respect to the pledged assets;
(i) To
require the guarantors to perform their obligations under the guaranty
agreements; or
(j) To
take
any such other actions as Lender may deem necessary.
12. |
Reservation
of Rights
|
Any
party’s failure to require strict performance by the other party of any
provision of this agreement shall not waive, affect, or diminish any right
of
that party thereafter to demand strict performance and compliance therewith.
Each
party has all rights and remedies provided under by law and under this
agreement. A party’s waiver or delay of any of its rights is not a continuing
waiver, election, or acquiescence.
13. |
Amendment
and Termination
|
This
agreement may be amended in writing by the parties after discussion, any such
amendment being made a part of this agreement.
Except
as
otherwise required by law or by contract, no right herein shall terminate prior
to the termination of this agreement.
Except
as
otherwise required by law or by contract, each provision of this agreement
is
severable from every other provision in determining the enforceability of any
provision.
14. |
Governing
Law; Dispute Resolution
|
This
agreement shall be governed by the laws of the People’s Republic of
China.
After
this agreement is in effect, any dispute arising therefrom shall be resolved
by
the parties through negotiation. If the dispute remains unresolved, either
party
may initiate legal proceeding before the People’s Court where Lender or any Bank
of China related entity is located.
15. |
Fees
|
Except
as
otherwise required by law or by contract, all fees incurred in preparing or
carrying out this agreement, or relating to any dispute arising from this
agreement (including but not limited to legal fees) shall be borne by Borrower.
16. |
Attachments
|
The
following attachments have been negotiated by the parties and shall constitute
a
part of this agreement, having the same legal effect:
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(a) Form
of
fund withdrawal request; and
(b) Form
of
receipt for borrowed fund.
17. |
Other
Agreements
|
(a) Borrower
may not assign or otherwise transfer any rights or obligations under this
agreement to a third party without Lender’s written consent.
(b) Borrower
hereby consent to the assignment or transfer by Lender of its rights and
obligations under this agreement to another Bank of China related entity, with
such entity, upon assignment or transfer, having all rights of Lender under
this
agreement, including the right to initiate legal proceeding in the name of
Lender to enforce this agreement.
(c) This
Agreement binds and is for the benefit of the successors and permitted assigns
of each party, to the extent that doing so shall not effect any other terms
of
this agreement.
(d) Except
as
otherwise contracted, notices shall be provided to the parties at the addresses
and contact information contained herein, and each party shall notify the other
party in writing in the event such information changes.
(e) All
transactions under this agreement are in consideration of each party’s own
interest. If any third party is deemed a related party to Borrower pursuant
to
applicable laws, regulations and financial ordinances, such third party shall
be
prohibited from intervening in the fairness of this agreement.
(f) All
titles and headings used in this agreement are for purpose of reference only,
and shall not be used to define the rights and/or obligations of the parties
herein.
18. |
Effectiveness
|
This
agreement shall become effective upon execution by the legal representatives
of
the parties hereto, and the application of their respective seals. This
agreement shall have two original copies with equal legal effect, with each
party to hold one such copy.
Borrower:
|
Lender:
|
Dalian
Chuming Meat Co., Ltd.
|
Bank
of China Corp., Liaoning Branch
|
[seal]
|
[seal]
|
Legal
Representative: /s/ SHI Huashan
|
Authorized
Representative: /s/ XX Xx
|
December
27, 2007
|
December
27, 2007
|
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