English Translation) Agreement No. G—02: Maximum Amount Guaranteed Agreement 017
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No:
2007 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ Di Zhi No. 017
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Guarantor:
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Dalian
Chuming Food Co.
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Business
License No:
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Da
Gong Shang Qi Fa Zhi No. 2102002111023
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Legal
Representative:
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MA,
Feng Qing
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Business
Address:
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Quan
Shui Village, Nang ▇▇▇▇▇ ▇▇▇ Town, Gan Jin Zhi District, Dalian
City
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Zip
Code:
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116031
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Bank
Account:
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Bank
of China Corp., Liaoning Branch, No. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
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Tel:
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▇▇▇▇▇▇▇▇
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Fax:
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Beneficiary:
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Bank
of China Corp., Liaoning Branch (Bank of China Liaoning
Branch)
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Legal
Representative:
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DONG,
▇▇▇▇ ▇▇▇
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Business
Address:
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▇▇.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇
Code:
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116001
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Tel:
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▇▇▇▇▇▇▇▇
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Fax:
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In
order
to guarantee the performance of the loan specified in Article
1
of the main loan agreement, Guarantor voluntarily put the assets listed on
the
attached “pledged asset list” as security for the benefit of Beneficiary. After
equal negotiation, Guarantor and Beneficiary enter into this agreement. The
meaning of the terms in this agreement shall be governed by the main loan
agreement.
Article
1
Main
Loan
Agreement
The
Main
Loan Agreement of this Agreement is:
The
Agreement signed between Beneficiary and Dalian Chuming Group Co. Ltd for
a
credit line from November 30, 2007 to November 29, 2011, and any supplemental
or
amendments thereto.
Article
2
Main
Loan
and Loan Term
Except
specify otherwise by law, the main loan refers to the loans made from November
30, 2007 to November 29, 2011, which is specified in Article 1 of this
agreement.
Article
3
Maximum
Beneficiary Amount
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1.
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The
maximum guaranteed amount under this agreement is:
RMB19,650,000
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2.
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The
guaranteed amount shall also include the interest (including base
interest, agreed interest, compound interest and penalty interest)
of the
main loan specified in Article 2 of this agreement; breach penalty,
damage
reimbursement, collection expenses (including but not limit to
litigation
expenses, attorney fees, notary fees, enforcement expense, etc),
or any
other losses or expenses because of Borrower’s breach.
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The
sum
of subsections 1 and 2 of this Article shall be the maximum guaranteed
amount.
Article
4
Pledged
Assets
Please
see the attached “pledged asset list" for detailed information regarding the
pledged assets.
During
the guarantee period, when there is any damage, loss or government seizure
related to the pledged assets, Beneficiary has the priority right to collect
insurance premium, damage reimbursement or any reimbursement. Even if the
term
of the main loan has not matured, Beneficiary can collect insurance premium,
damage reimbursement or any reimbursement.
Article
5
Registration
If
the
law requires the registration of the security interest granted herein, Guarantor
and Beneficiary shall go through the registration formalities with the relevant
registration agencies within 30 days after the execution of this
agreement.
If
any
items pursuant to the registration changes thereafter, Guarantor and Beneficiary
shall amend the registration within 30 days.
Article
6
Possession
and Storage of the Pledged Assets
The
pledged assets under this agreement shall be possessed and stored by Guarantor.
However, any ownership receipts or titles shall be deposited with Beneficiary.
Guarantor shall accept Beneficiary’s inspection at any time.
Guarantor
shall properly store, perform necessary daily maintenance of the pledged
assets
and adopt measures to preserver the pledged assets in whole; if the pledged
assets require repairs, Guarantor shall arrange for such repairs and shall
bear
the cost.
Without
the written consent of Beneficiary, Guarantor shall not transfer, lease,
lend,
or use pledged assets as capital contribution, modify, remodel or otherwise
change the status of the pledged assets in whole or in part. Even with the
written consent of Beneficiary, the proceeds from the disposal of the pledged
assets shall be used to pay off the main loan in advance or to deposit with
a
third party appointed by Beneficiary.
2
Article
7
Decrease
Value of the Pledged Assets
Prior
to
the total repayment of the main loan of this agreement, if the value of the
pledged assets decreases because of Guarantor’s own conducts, Beneficiary has
the right to request that Guarantor immediately cease all such conducts.
If the
value of the pledged assets has decreased, Beneficiary has the right to request
that Guarantor recover the value of the pledged assets or to provide additional
pledged assets equal to the decreased value. If Guarantor fails to recover the
decreased value and fails to provide additional pledged assets, Guarantor
has
the right to request Borrower to repay the loan prior to the loan maturity
date.
If Borrower can not repay the loan, Beneficiary has the right to excise the
rights under this agreement.
If
any of
the pledged assets is lost or decrease in value because of natural disaster,
accidents, third party interference or other reasons, Guarantor shall take
proper measure to stop the expansion of the loss and shall make written notice
to Beneficiary immediately.
Article
8
Proceeds
If
Borrower is unable to make timely payment or fails to perform any obligations
as
described in this agreement, such as to cause the pledged assets to be seized
by
the People’s Court, Beneficiary shall have the right to collect all resulting
and legally mandated proceeds therefrom beginning from the date of seizure,
excepting those proceeds for which Beneficiary fails to notify the parties
obligated to pay such proceeds. All proceeds shall first be applied toward
the
related collection expenses.
Article
9 Insurance
of the Pledged Assets
Guarantor
shall purchase insurance with the proper type of insurance and the term of
the
insurance from an insurance company which both parties have agreed. The total
insured amount shall not less than the assess value of the pledged assets.
The
content of the insurance policy shall meet the Beneficiary’s requirement and
shall not have any restriction condition that is adversary to the interest
of
Beneficiary.
Prior
to
the total repayment of the main loan, Guarantor cannot interrupt, terminate,
revise or change the insurance policy for any reason. Guarantor shall also
adopt
all reasonable and necessary measures to ensure the validity of the insurance
under this agreement. If Guarantor fails to purchase insurance or violate
any of
the subsection above, Beneficiary can decide to obtain insurance or renew
the
insurance, all related expense to be borne by Guarantor. Beneficiary shall
also
have the right to apply any loss to the balance of the main loan.
Within
30
days from the execution of this agreement, Guarantor shall provide Beneficiary
with an original copy of the insurance policy and also transfer to Beneficiary
all rights to the insurance premium to be held until the main loan is repaid
in
full.
Article
10 Obligations
If
Borrower fails to make loan payment on a scheduled payment date or prepayment
date under the main loan agreement, Beneficiary shall have the right to exercise
its rights under this agreement and shall have priority to the pledged assets
up
to the maximum guaranteed amount pursuant to Article 3 of this
agreement.
3
Scheduled
payment date herein shall refer to such date, the premium payment date and
interest payment date or any other agreed date on which Borrower shall make
any
payment to Beneficiary. The prepayment date shall refer to any date proposed
by
Borrower and agreed to by Beneficiary prior to the loan maturity date, or
such
date that Beneficiary request Borrower to make payment on premium, interest
and/or other fund prior to the loan maturity date, in accordance with this
agreement.
Article
11 Exercise
and Term of Security Rights
After
the
execution of this agreement, Beneficiary shall have the right to exercise,
in
whole or in part, all of its rights over the pledged assets.
With
respect to each loan, Beneficiary must exercise its rights within the
corresponding statute of limitation. If a loan is to be repaid in installment,
the statute of limitation shall begin to run from the payment expiration
date of
the last installment of the loan.
Article
12 Disposal
of Pledged Assets
After
the
execution of this agreement, Beneficiary shall have the right to negotiate
with
Guarantor regarding the sale or auction the pledged assets, and the resulting
proceeds shall be applied first to repayment of the main loan. If the parties
cannot reach an agreement, Beneficiary may initiate proceeding before the
People’s Court to force the auction of the pledged assets. The proceeds from the
disposal of the pledged assets shall be applied first to expenses relating
to
such disposal, with the balance to be applied toward the main loan.
If
the
main loan is secured by assets other than the pledged assets, such other
assets
shall not affect the rights of Beneficiary herein.
Article
13 Relationship
between this Agreement and the Main Loan Agreement
Any
amendment to the main loan agreement relating to extension of term shall
require
the prior written consent of Beneficiary. Absent such consent or if Beneficiary
refuses to grant consent, Guarantor shall be liable for the maximum guaranteed
amount.
Any
other
amendment to the main loan agreement or to any individual agreement thereunder
or to a specific loan shall not require Beneficiary’s prior written consent,
provided that Guarantor shall continue to be liable for the maximum guaranteed
amount.
Beneficiary
and Guarantor may mutually agree to amend the maximum guaranteed amount as
specified in Article 3 of this agreement.
Any
amendments hereto shall not affect the rights of any other beneficiary of
the
pledged assets that is not a party to this agreement and that did not consent
to
such amendment in writing.
4
Beneficiary
shall have the right to transfer in whole or in part any rights under this
agreement to any Bank of China Corp. related entity or to any third party
without the prior consent of Guarantor, and any such transfer shall not diminish
or eliminate Guarantor’s obligations, and Guarantor shall cooperate with
Beneficiary or the intended transferee with respect to the registration of
such
transfer.
Article
14 Representations
and Warranties
Guarantor
hereby represents as follows:
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1.
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Guarantor
is duly
existing and in good standing in its jurisdiction of formation
and have
the right to conduct its business and the legal ownership and right
to
dispose of the pledged assets.
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2.
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There
are no co-owners of the pledged assets, or has secured the written
consent
of co-owners, if any, which shall be deposited with Beneficiary
prior to
the execution of this agreement.
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3.
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Guarantor
fully understands the terms of the main loan agreement, the signature
and
execution of which are based on Guarantor’s actual intent and pursuant to
legal and valid authorization under the bylaws and relevant internal
corporate governance documents. If Guarantor provides guaranty
to any
third party, such guaranty shall require the prior approval of
Guarantor’s
board of directors and shareholders. The amount of this agreement
shall
not exceed any amount limited pursuant to the bylaws of Guarantor.
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The
entering into or execution of this agreement shall not violate the terms
of any
binding agreements or any legal documents. Guarantor has obtained all necessary
permission, license, registration for the purpose of entering into this
agreement.
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4.
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Guarantor
represents that all material documents provided to Beneficiary
are
accurate, true, complete and valid.
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5.
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There
are no other undisclosed parties other than Guarantor having claims
over
the pledged assets.
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6.
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Guarantor
shall timely notify Beneficiary when a third party asserts a claim
over
any of the pledged assets, or if such pledged asset is seized or
is
involved in a major legal
proceeding.
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7.
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If
a pledged asset involves on-going construction, Guarantor represents
that
there is no third party beneficiary that has priority over Beneficiary,
and if such third party has priority, Guarantor represents that
it has
secured the necessary release of priority from such third party,
which
shall be deposited with
Beneficiary.
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5
Article
15. Breach
After
the
execution of this agreement, if Guarantor refuses to register or cause delay
in
the registration of the pledged assets, thereby preventing this agreement
and
the security interest from becoming effective, this shall constitute a breach
of
this agreement, and Guarantor shall reimburse Beneficiary for any resulting
damages.
Article
16 Related
Party and Related Party Transaction Disclosure
The
parties agree as follows: Beneficiary
has determined that Guarantor is a group client in accordance with the
Commercial Banking Group Client Credit Risk Management Guide. Guarantor shall
periodically report to Beneficiary of any transaction involving an amount
greater than 10% of Guarantor’s reported net asset, including the relationship
of the parties of the transaction, pursuant to Article 17 of the Commercial
Banking Group Client Credit Risk Management Guide.
Article
17 Default
The
following shall be deemed an event of default:
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1.
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Guarantor
transfers, leases, contribute, modify, revise or otherwise change
the
pledged assets, in whole or in
part;
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2.
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Guarantor
prevents or otherwise interferes with Beneficiary’s exercise of its rights
under this agreement;
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3.
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Upon
the decrease in value of the pledged assets as set forth in Article
7 of
this agreement, and Guarantor fails to recover the decreased value
or to
provide additional pledged assets;
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4.
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Guarantor
makes untrue statement or violates any of the representations and
warrants
set forth in this agreement;
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5.
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Guarantor
violates any terms of this
agreement;
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6.
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Guarantor
ceases all operations, is dissolved or files for bankruptcy;
and
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7.
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Guarantor
causes an event of default of any contract of which Beneficiary
or any
other Bank of China related entity is a
party.
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In
the
event of default, Beneficiary shall have the right to take any one or all
of the
following actions:
6
(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 Guarantor’s credit limit;
(c) To
halt,
reduce or terminate all or part of Guarantor’s then pending fund withdrawal
request, as well as any non-withdrawn fund;
(d) To
declare any outstanding amount owing to Beneficiary, 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 Beneficiary and Guarantor;
(f) To
obligate Guarantor to pay all damages resulting from the event of
default;
(g) To
exercise its rights with respect to the pledged assets; or
(h)
To
take
any such other actions as Lender may deem necessary.
Article
18 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.
Article
19 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.
Article
20 Governing
Law; Dispute Resolution
This
agreement shall be governed by the laws of the People’s Republic of
China.
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After
this agreement is in effect, any dispute arising therefrom shall be resolved
by
the parties through negotiation. If the dispute remains unresolved, the parties
agree to resolve in accordance with the terms of the main loan agreement.
During
the period of dispute resolution, the dispute shall have no effect on the
parties’ obligations pursuant to the remaining terms of this agreement that are
not in dispute.
Article
21 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 Guarantor.
Article
22 Attachments
The
following attachments have been negotiated by the parties and shall constitute
a
part of this agreement, having the same legal effect:
(a) Schedule
of Pledged Assets
Article
23 Other
Agreements
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1.
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Guarantor
may not assign or otherwise transfer any rights or obligations
under this
agreement to a third party without Beneficiary’s written
consent.
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2.
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Guarantor
hereby consent to the assignment or transfer by Beneficiary 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 Beneficiary under this agreement, including the right to initiate
legal
proceeding in the name of Lender to enforce this
agreement.
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3.
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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.
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4.
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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.
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5.
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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.
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Article
24 Effectiveness
and Creation of Security Interest
This
agreement shall become effective upon execution by the legal representatives
of
the parties hereto, and the application of their respective seals, provided
that
if the law requires the registration of the pledged assets, then this agreement
shall become effective after such registration. The security interest becomes
effective upon the effectiveness of this agreement.
8
This
agreement shall have three original copies with equal legal effect, with
each
party to hold one such copy.
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Guarantor:
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Beneficiary:
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Dalian
Chuming Food Co., Ltd.
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Bank
of China Corp., Liaoning Branch
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[seal]
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[seal]
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Legal
Representative: /s/ MA Fengqing
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Authorized
Representative: /s/ [eligible]
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November
30, 2007
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November
30, 2007
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9
Attachment
(Schedule
of Pledged Assets)
No.
2007
Bank of China Liaoning Branch 017
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Assets
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Quantity
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Assessed
Value
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Ownership
(Registration
No.)
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Location
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Registration
Agency
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Land
use rights
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48,461.10
square meters
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RMB
40.27 million
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2003
No. 04009
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Dalian,
Ganjingzhi District, Xingzhaizhi Village, Lizhi Mountain
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Ganjingzhi
District Real Property Registration Agency
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10