Renminbi Loan Agreement (Short-Term) (Loan Number: BC (Liaoning) 2009-0137)
Exhibit
10.16
Renminbi
Loan Agreement (Short-Term)
(Loan
Number: BC (Liaoning) 2009-0137)
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Dalian
Chuming Meat Co. Ltd.
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Business
Permit No.:
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2812123719
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Legal
Representative:
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SHI
Huashan
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Principal
Business Address:
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0000
Xxxxxxxx Xx., Xxxxxxxxxx, Dalian
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Bank
and Bank Account #:
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Bank
of China (Liaoning Province Branch)
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00000000000000
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Telephone:
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00000000
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Fax
number:
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00000000
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LENDER:
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Bank
of China Holdings Co. Ltd (Liaoning Province Branch)
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Legal
Representative:
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XXXX
Xxxxxxxx
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Address:
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0
Xxxxxxxxx Xxxxxx, Dalian
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00000000
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Fax
number:
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00000000
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The
BORROWER and the LENDER, after negotiation and discussion on an equal basis,
have reached consensus with regard to the LENDER providing a short-term loan in
Renminbi to BORROWER and thus have entered into this agreement as
evidence.
This
agreement is an individual agreement under the master contract
“Credit Amount Agreement” with the execution number of 2008 BC (Liaoning) 020
between Dalian Chuming Group Co. Ltd and Bank of China (Liaoning Province
Branch).
Article
I Loan Amount
Loan
Amount: RMB 15.4 million even;
RMB
15,400,000.00.
Article
II Term of the Loan
Term of
Loan: 12 months, starting from the date of the actual loan withdrawal, or,
if the loan is to be withdrawn in installments, from the date of first actual
withdrawal.
1
The
BORROWER must make withdrawal according to the stipulated schedule; if the
actual withdrawal is later than the stipulated date of withdrawal, the BORROWER
still make repayment of the loan in accordance with the schedule stipulated
herein.
Article
III Purpose of the Loan
Purpose
of the loan: liquid capital.
The
BORROWER shall not alter the purpose of the loan without written consent from
the LENDER, including but not limited to investing the loan amount in stocks or
other securities, using the loan on projects that are forbidden by any law,
statutes, regulatory rules or state policies or on projects that have not been
approved according to the law, and on any other projects and purposes for which
bank loans are not permitted.
Article
IV Loan Interest and Interest Rate Calculation
1, Loan
Interest
The loan
interest is number __1__type of the following:
(1) Fixed
rate, at the annual interest rate of 5.841%. This interest rate shall
not change during the term of the loan.
[(2) Floating
rate…]
2,
Interest rate calculation
The
interest accrues starting on the date of actual loan withdrawal and is
calculated based on the loan amount actually withdrawn and the number of days
the loan is used.
Interest calculation
formula:
Interest
= loan principal x actual number of days x daily interest rate.
The base
number for calculating daily rate is 360 days of a year, with the conversion
formula being: Daily rate = annual interest rate/360.
3,
Settlement of Interest
BORROWER
shall settle interest according the number __1__ of the following:
(1) Quarterly
settlement, with the 20th day of
the last month of each quarter as the interest settlement date, and the 21st day as
the interest payment date.
[(2) Monthly
settlement…]
If the
date of the last installment of the repayment of the loan principal is not on
the interest payment date, then the date of the last installment of the
repayment of the loan principal is the interest payment date, and the BORROWER
must pay in full all interest due.
4,
Penalty Interest
(1) If
the BORROWER fails to make repayment according to the stipulated schedule, a
past-due loan penalty interest shall be charged on the past due portion,
starting from the past due date until the full repayment of the principal and
interest.
The
past-due loan penalty interest rate is additional 50% over the base loan
interest stipulated in Section 1 herein.
2
(2) If
the BORROWER uses the loan for purposes other than the one stipulated herein,
then a loan misappropriation penalty interest shall be charged on the
misappropriated portion, starting from the day of misappropriation until the
full repayment of the principal and interest.
The loan
misappropriation penalty interest is additional 100% over the base loan interest
stipulated in Section 1 herein.
(3) If
the loan is both past due and misappropriated, then the loan misappropriation
penalty interest shall be charged.
(4) If
the BORROWER is not able to make interest payment on schedule, then a compound
interest based on the interest settlement method stipulated in Section 3 herein
shall be charged, and when the loan becomes past due, the said compound interest
shall be changed to the compound interest based on the penalty interest rate
stipulated in this section.
(5) If
the penalty interest and the compound interest falls upon the adjustment date as
stipulated herein, then the penalty interest and compound interest shall be
calculated in separate sections.
Article
V Condition on Loan Withdrawal
The
BORROWER must satisfy the following conditions before making a loan
withdraw:
1, This
loan agreement and all the attachment hereto have become effective;
2,
BORROWER has provided guarantee according to LENDER’s request, and the guarantee
agreement has become effective and satisfied all legally required approval,
registration or filing procedures.
3, The
BORROWER has reserved and established all the documents and forms about the
BORROWER, seals, personnel lists, signature samples relevant to the performance
of this agreement and has filled out related certificates;
4, The
BORROWER established accounts required for the performance of this agreement
according to the LENDER’s specifications;
5, The
BORROWER has, 7 bank business days prior to the withdrawal of the loan,
submitted written loan withdrawal application and all related documents
evidencing the purpose of the loan to the LENDER to processed related loan
withdrawal procedures;
6, The
BORROWER has submitted to the LENDER the resolution and authorization from its
board of directors or other authorized departments regarding the approval of the
execution and fulfillment of this agreement;
7, The
BORROWER has satisfied all loan withdrawal conditions required by law or
stipulated in between the two parties.
If the
above conditions are not satisfied, the LENDER shall have the right to refuse
the BORROWER’s loan withdrawal application, except the amount already approved
by LENDER to be released.
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Article
VI Time and Method of Loan Withdrawal
1, The
BORROWER must withdraw the loan amount according to the number__2___type of the
time and method schedule below:
(1) One
time withdrawal on MM/DD/YY
(2) Withdraw
the entire amount within 20 days from November 11, 2009
[(3) According
to the following table:]
2, The
LENDER has the right to refuse the withdrawal request for any amount that has
not been withdrawn after the time period specified above.
If the
LENDER agrees to release the remaining amount, then the LENDER has the right to
charge a commitment fee at the standard daily rate of 1% on that amount the
withdrawal of which is delayed after the time period specified above; if the
LENDER refuses to release the remaining amount, then the LENDER has the right to
charge a commitment fee of 1% on that amount.
Article
VII Repayment of Loan
1, The
BORROWER must repay the loan hereunder according to the number __2__ type of
schedule below, there are other stipulations by the two
parties elsewhere:
(1) To
make full repayment of the loan hereunder at the end of the term.
(2) To
make repayment of the loan hereunder according to the table below:
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Repayment
Date
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Repayment
Xxxxxx
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Xxxxxxxx
00, 0000
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XXX
15,400,000.00
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If the
BORROWER need to change the repayment plan above, the BORROWER must submit
written request to the LENDER __30__ bank business days prior to the date on
which the corresponding loan amount repayment is due; and any change to the
repayment plan must be acknowledged in writing by both parties.
2, In the
event that the BORROWER is delinquent in the repayment of both the principal and
the interest, the LENDER has the right to decide the repayment order of the
principal and the interest; if the repayment is in installment, and if there are
several installments of loan repayment hereunder is past due, the LENDER has the
right to decide the order of installments of repayment to be made by the
BORROWER; if there are several loans under different loan agreements that are
past due, the LENDER has the right to decide the order of the loan agreements
under which the repayment obligation must be fulfilled, unless there are other
stipulations for the above elsewhere by the two parties.
3, The
BORROWER may make loan repayment ahead of the schedule, but BORROWER must submit
written request to the LENDER __30__ bank business days in advance, and the
repayment amount made ahead of the schedule must be applied in the reverse order
to the amount that is due last, unless there are other stipulations for the
above elsewhere by the two parties.
4
The
LENDER has the right to charge a compensation fee at the rate of 0.05% on the
receivable interest on the loan amount which is repaid ahead of the
schedule.
4, The
BORROWER must make repayment of the loan according to the number __1__ method
below:
(1) The
BORROWER must make a deposit, in the loan repayment account specified below, of
an amount of cash sufficient for the repayment of both principal and interest no
later than 5 bank business days before the due date for each amount of loan
principal and interest, to be reserved for repayment, and the LENDER has the
right to initiate deduction from the said account on the due date for each
amount of loan principal and interest.
Loan repayment account title: Dalian
Chuming Meat Co. Ltd.
Account number: Bank of China (Liaoning
Province Branch)
26586008093001
[(2)
Other method of repayment stipulated by the two parties:__/__]
Article
VIII Guarantee
The loan
hereunder is guaranteed by:
(1) This
agreement is the master agreement under the “Maximum Amount Pledge Agreement”
with execution number of 2008 BC (Liaoning) MaxPledge 027 between the guarantor
Dalian Chuming Group Co. Ltd and the LENDER and is guaranteed by it to the
maximum.
(2) This
agreement is the master agreement under the “Maximum Amount Guaranty Agreement”
with execution number of 2008 BC (Liaoning) MaxGuaranty 030 between the
guarantor SHI Huashan and other joint asset owners and the LENDER and is
guaranteed by it to the maximum.
(3) This
agreement is the master agreement under the “Maximum Amount Pledge Agreement”
with execution number of 2007 BC (Liaoning) MaxPledge 023 between the guarantor
Dalian Chuming Group Co. Ltd and the LENDER and is guaranteed by it to the
maximum.
2, If any
event occurs to the BORROWER or the guarantor(s) which the LENDER believes is
likely to impair their ability to fulfill their obligations hereunder and
thereunder, or if any guarantee agreement becomes invalid, is revoked or
dissolved, of if the guarantor’s financial situation has deteriorated
or the guarantor is involved in major litigation or arbitration proceedings, or
if there is any other event that is likely to impair their ability to fulfill
their obligations, or if the guarantor has breached contract under the guarantee
agreement or under any other agreement with the LENDER, or if the pledged assets
have devalued, destroyed, disappeared, seized, thus causing reduction or loss of
the guarantee value, the LENDER has the right to demand, and the BORROWER has
the obligation to provide, new guarantee or replacement of guarantor to ensure
the debt obligation hereunder.
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Article
IX Representations and Warranties
The
BORROWER represents as follows:
(1) The
BORROWER is registered according to the law and is in legal existence, and has
the full civil and executive power required for the execution and fulfillment
hereof;
(2) the
execution and fulfillment hereof is based on the expression of the
BORROWER’s true intent, and has obtained the valid and effective authorization
in accordance with the BORROWER’s Articles of Incorporation or other internal
governance documents, and is not in violation of any agreement, contract and/or
other legal documents that are binding to the BORROWER; the BORROWER has already
or will have obtained all the relevant approvals, permits, filings or
registrations required for the execution and fulfillment hereof.;
(3) all
the documents, financial reports, certificates and other materials provided by
the BORROWER hereunder to the LENDER are authentic, complete, accurate and
valid;
(4) The
background information for the business stated in the application by the
BORROWER to the LENDER is true and legal, and has not been used for money
laundering or any other illegal purposes;
(5)The
BORROWER has not withheld from the LENDER any event that might have an adverse
effect on his and the guarantor’s financial situation and ability to fulfill
their obligations;
(6)
[Other event represented by the BORROWER: _____]
2, the
BORROWER warrants as follows:
(1) the
BORROWER will periodically and on time provide his financial reports (including
but not limited to annual reports, quarterly reports and monthly reports) and
other relevant material to the LENDER according to the LENDER’s
request;
(2) If
the BORROWER has already or will have entered into any counter-guarantee
agreement or any other similar agreement with the guarantor hereof, such
agreement will not impair any of the LENDER’s rights
herein;
(3) the
BORROWER will accept the LENDER’s credit check and supervision, and provide
sufficient assistance to and cooperate with the LENDER;
(4) the
BORROWER must promptly notify the LENDER in the event of occurrence of any
circumstance that may affect the BORROWER’s or the guarantor’s financial
situation and their ability to fulfill obligations hereunder and thereunder,
including but not limited to any form of spin-off, merger, joint operation,
joint venture with foreign enterprises, partnership, contract operation,
reorganization, restructure, change of operating format such as proposed IPO,
reduction of registered capital, undertaking of material transfer of assets and
equity, assumption of material debt obligations, encumberment of mortgaged
assets with additional material debt, the seizure, dissolution, cancellation or
placement in the bankruptcy proceeding of the pledged assets, or involvement in
major litigation or arbitration proceedings, or occurrence of major operation
difficulties and deterioration of financial situation, or any event causing the
BORROWER’s breach of contract under other agreement; if the BORROWER takes
action to cause the aforementioned event that will have adverse affect on the
its ability to repay the loan, the BORROWER must obtain the consent from the
LENDER in advance;
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(5) the
BORROWER’s repayment of the debt obligation toward the LENDER is superior to the
debt obligation of the BORROWER’s shareholders to the LENDER, and is not
subordinate to similar debts from other creditors;
(6) If
the BORROWER’s after-tax net profit is zero or negative within certain
accounting year, or the after-tax profit is insufficient to replenish the
cumulative loss of the previous accounting years, or the pre-tax profit has not
been used to repay payable loan principal, interest and fees within the
accounting year or the pre-tax profit is insufficient to repay the loan
principal, interest and fees for the next period, the BORROWER shall not
distribute dividends or bonus in any form to the BORROWER’s
shareholders;
(7) the
BORROWER’s warranties regarding other matters: to process settlement with the
lending bank not lower than the proportion of the credit granted. The repayment
of the loan from the lending bank is superior to the distribution of shareholder
benefit and no cash dividend can be distributed before the repayment of the
principal and interest in the current period. The repayment of the
loan from the lending bank is superior to the repayment of its shareholders’
loan.
Article
X The Borrower’s Disclosure of Group Internal Transactions
The
BORROWER belongs to the customer groups determined by the LENDER according to
the “Commercial Bank Customer Group Credit Granting Business Risk Management
Guidelines”. The BORROWER must report promptly to the LENDER any
affiliate transaction larger than 10% of its net assets, including the affiliate
relationship with all the parties to the transaction, object of transaction and
nature of transaction, transaction amount or corresponding proportion and
pricing polity (including cashless transaction or transaction involving symbolic
cash amount).
The
LENDER has the right to decide unilaterally to suspend the release of the loan
that has not been used to the BORROWER and demand advance repayment of the loan
principal and interest in part or in entirety, should any of the following
occurs to the BORROWER: using false agreements with affiliates, receivable
invoices and account receivables as credit rights to obtain bank discounts or as
pledge, in order to secure bank funds or bank credit; major M&A, acquisition
and reorganization which the LENDER deems to be likely to affect the security of
the loan; attempts to circumvent the banks’ creditor rights through affiliate
transactions; and all other events described in the
“Guideline”.
Article
XI Default Event and Corrective Measures
Any one
of the following event constitutes a default h by the BORROWER
hereunder:
1, The
BORROWER has failed to make repayment and fulfill its settlement obligations
according to the provisions herein;
2, the
BORROWER has used the secured loan on purposes other than stipulated
herein;
3, the
BORROWER’s representation herein is false or is in violation of the warranties
made herein;
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4, the
occurrence of the events described in Section IX-2(4) herein, which the LENDER
deems to be likely to affect the BORROWER’s and the guarantor’s financial
situation and ability to fulfill their obligations, and the BORROWER has failed
to provide new guarantee or to replace guarantor pursuant to the provisions
herein;
5, the
BORROWER has violated other provisions regarding the rights and obligations
between the relevant parties;
6, the
occurrence of any event causing default under any other agreement between the
BORROWER and any organization of Bank of China Holdings Co. Ltd;
7, the
guarantor has violated the provisions of the guarantee agreement or the
occurrence of any event causing default under the guarantor’s any other
agreement with any organization of Bank of China Holdings Co. Ltd;
8, the
BORROWER has ceased operation or the occurrence of dissolution, cancellation or
bankruptcy.
9, The
LENDER has the right to adjust the maximum credit granted according to the
change of the BORROWER’s credit or to suspend or terminate or recall the credit
granted herein.
Upon
occurrence of any of the aforementioned default event, the LENDER has the right
to, separately or simultaneously, take the following measure according to the
situation:
(1) to
demand the BORROWER or the guarantor to rectify the default within a period of
time;
(2) to
reduce in part or in entirety, to suspend or to terminate the maximum credit
granted to the BORROWER;
(3) to
stop in part or in entirety, to suspend or to terminate the processing of the
BORROWER’s loan withdrawal requests herein or under any other agreement between
the BORROWER and the LENDER; to suspend or terminate the release of any loan not
yet released, or the processing of any commercial financing not yet
processed;
(4) to
declare that the principal and interest of any portion of the loan, commercial
financing and all other amount payable hereunder or under any other agreement
between the BL and the LENDER immediately due, in part or in
entirety
(5) to
terminate or dissolve this agreement, to terminate or dissolve, in part or in
entirety, any other agreement between the BORROWER and the LENDER;
(6) to
demand compensation from the BORROWER for any loss caused by the BORROWER’s
default;
(7) upon
only prior or subsequent notice, to withhold any amount deposited by the
BORROWER in the accounts established by the BORROWER with the LENDER or any
organizations of Bank of China Holdings Co. Ltd to satisfy the BORROWER’s debt
obligations to the LENDER hereunder. The amount that is not yet due
in the account shall be regarded as being due in advance; If the
currency in the account is not the same as the pricing currency of the LENDER’s
business, the amount withheld shall be converted according to the applicable
currency conversion rate on the date of withholding;
(8) to
exercise the right to the pledged property;
(9) to
demand the guarantor to assume its guarantor’s responsibilities;
(10) to
take any other possible measures that the LENDER deems necessary.
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XII Preservation
of Rights
If one
party has not exercised the rights, in part or in entirety, hereunder, or has
not demanded the other party to fulfill or assume, in part or in entirety, its
obligations, it does not constitute the forfeiture of that party’s rights or the
waiver of the other parties obligations and responsibilities.
One
party’s tolerance, extension or delay of exercising any right hereunder extended
toward the other party shall have no affect on any right hereunder or under the
laws and statutes, and shall not be construed as forfeiture of such
rights.
XIII
Alternation, Amendments and Termination
Upon
mutual consent, this agreement may be altered or amended in written form and any
alteration and amendment hereto become the inseparable part hereto.
Unless
otherwise stipulated by law or statutes or by provisions between the parties, no
rights and obligations herein shall be terminated before they are
fully and completely fulfilled.
Unless
otherwise stipulated by law or statutes or by provisions between the parties,
the nulling of any provision herein shall have no affect on the legal effect of
other provisions herein.
XIV Applicable
Law and Resolution of Disputes
The
applicable law is the law of the People’s Republic of China.
Upon the
effectuation of this agreement, all disputes regarding the execution,
performance hereof or related hereto must be settled through
negotiations. If negotiation fails, any of the two parties may adopt
the number __2__ method listed below for resolution:
[1,
Submit ____ to the arbitration commission for arbitration]
2, Submit
the case to the people’s court in the location of the LENDER or the organization
of Bank of
China Holdings Co. Ltd that has rights and obligations hereunder or under any
individual provision herein
3, File a
suite to the people’s court of the competent jurisdiction according to the
law.
In the
dispute resolution period, if such dispute does not affect the performance of
other provisions, then such other provision shall continue to be
fulfilled.
Article
XV Fees
Unless
otherwise stipulated by law or by provisions between the parties, the BORROWER
shall bear all the fees arising from the execution, performance and resolution
of disputes in connection herewith (including but not limited to legal
fees).
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Article
XVI Attachments
The
following attachments and other attachments acknowledged by the two parties
jointly are the inseparable part hereof and have the same legal effect as the
this agreement.
1, Loan
withdrawal application;
2, Loan
IOU form;
Article
XVII Other Provisions
1,
Without the written consent from the LENDER, the BORROWER shall not transfer any
right or obligation hereunder to a third party.
2, If,
due to business necessity, the LENDER need to entrust the rights and obligations
hereunder to another organization of Bank of China Holdings Co. Ltd, or to
assign the loan business herein to another organization of Bank of China
Holdings Co. Ltd for management and execution, the BORROWER hereby acknowledge
permission. The other organization of Bank of China Holdings Co. Ltd
authorized by the LENDER, or to which the loan business herein has been assigned
by the LENDER, has the power to exercise all the rights hereunder and has the
right to submit legal case in its own name to the courts or submit arbitration
to the arbitration commission for resolution of disputes regarding this
agreement or to apply for compulsory exercise.
3, This
agreement is legally binding to each party’s legal successor or assignee,
provided that such situation is not in violation of any other provisions
herein.
4, Unless
otherwise indicated, the two parties designate the addresses recorded herein as
contact and correspondence addresses and each promises to notify the other in
writing if the contact and correspondence address changes.
5, The
transaction hereunder is based on each party independent interest. If
another party to the transaction constitutes the LENDER’s affiliated party or
person according to the law, statutes or regulatory requirements, each of the
two parties shall not use such affiliate relationship to affect the fairness of
the transaction.
6, The
headings and business names are used for the convenience of reference
only and shall not be used in interpretation of the contents of the provision or
each party’s rights and obligations herein.
Article
XVIII Effectuation of Agreement
This
agreement shall become effective upon execution by the legal representatives
(responsible persons) or the authorized signatories of the BORROWER and the
LENDER and upon imprint of the business seals.
This
agreement has one set of two copies, with one to the BORROWER and one to LENDER,
and both copies have the same legal effect.
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BORROWER:
Dalian Chuming Meat Co. Ltd. (Seal)
Legal
Representative: SHI Huashan
/s/ MA Fengqin
Dated:
November 11, 2009
LENDER:
Bank of China Holdings Co. Ltd (Liaonin Province Branch) (Seal)
Legal
Representative: (not legible)
/s/ (not
legible)
Dated:
November 11, 2009
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