EXHIBIT 10.23
English Translation of the Original Contract
ENTRUSTED LOAN CONTRACT
Contract No. [2006] Xxxxx Xxx Xxx Xxx Zi QD26003
Entrustor: Jiangsu Linyang Electronics Co., Ltd.
Legal Representative: Xx Xxxxxxx
Registered Address: 1259 Renmin Xilu, Qidong, Jiangsu Province
Entrustee: Bank of China Co., Ltd., Qidong Subbranch
Legal Representative or Responsible Officer: Li Ping
Registered Address: 552 Renmin Zhonglu, Qidong, Jiangsu Province
Borrower: Jiangsu Linyang Solarfun Co., Ltd
Legal Representative: Xx Xxxxxxx
Registered Address: 000 Xxxxxxx Xxxx, Xxxxxxxx Development Zone, Qidong, Jiangsu
Province
To effectively make use of its self-owned funds, the Entrustor entrusted the
Entrustee with the provision of loans to the Borrower (the "Entrusted Loan"),
and the three parties enter into the following agreement:
ARTICLE 1 GENERAL PROVISIONS
Under this contract (this "Contract"), the Entrustor will entrust its self-owned
funds with the Entrustee, and the Entrustee shall provide Entrusted Loan to the
Borrower identified by the Entrustor, according to the specific conditions
determined by the Entrustor, including the purpose, amount, term and interest
rate of the Entrusted Loan, assist the Entrustor to collect the Entrusted Loan
and handle the relevant procedures in respect thereof.
The Entrustor shall be solely responsible for the due diligence investigation
with respect to the credit standing and financial conditions of the Borrower,
and the feasibility of the project for which the loan is to be used, and the
Entrustee shall not be liable for any such investigation.
The Entrustor shall also be solely responsible for the due diligence
investigation with respect to the credit standing of the guarantor and the
conditions, as well as the custody of the
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collaterals, and the Entrustee shall not assume any of such responsibilities.
(Remarks: This is an optional provision, which shall be applied together with
Article 13 hereunder).
The responsibility of the Entrustee hereunder shall be limited to the provision
of the Entrusted Loan to the Borrower and assisting the Entrustor to supervise
the use of the Entrusted Loan. Collection and preservation of the Entrusted Loan
shall be the sole responsibility of the Entrustor, and the responsibility of the
Entrustee with respect thereto shall only be to assist the Entrustor to issue
and mail the interest list and loan collection notice.
Any dispute between the Entrustor and the Borrower arising from this Contract
shall have no relevance to the Entrustee. Any losses arising from such dispute,
including without limitation, the risk that the principal of the Entrusted Loan
and the interest accrued thereon may not be repaid on time when it falls due,
shall solely be borne by the Entrustor and the Borrower. The Entrustee shall not
bear any risk arising from any Entrusted Loan or any losses therefrom.
The execution of this Contract by the Entrustee shall not be deemed the
provision by the Entrustee of any guarantee for the Borrower with respect to the
repayment of the Entrusted Loan. In case the Entrustee does not exhaust all its
rights hereunder, it shall not be deemed to breach this Contract.
ARTICLE 2 CURRENCY, AMOUNT AND TERM OF THE ENTRUSTED LOAN
The currency of the Entrusted Loan hereunder shall be Renminbi (RMB).
The amount of the Entrusted Loan hereunder shall be twenty million Renminbi (RMB
20,000,000).
The term of the Entrusted Loan hereunder shall be six months, which shall
commence from the date agreed by the parties the Borrower may draw the Entrusted
Loan (the "Drawdown Date") from the Entrustee , and shall expire as of the last
date agreed by the parties that the Borrower shall make the repayment . If the
drawdown time agreed by the parties is a specified period of time, the above
"Drawdown Date" shall refer to the commencement date of such specified period.
ARTICLE 3 PURPOSE OF THE LOAN
The Entrusted Loan shall be used
(a) as working capital to solve the problem of insufficient working capital
faced by the Borrower; and
(b) (N/A).
Without consent of the Entrustor and the written notice from the Entrustor to
the Entrustee, the Borrower shall not change the purpose of the Entrusted Loan
provided hereunder.
ARTICLE 4 INTEREST RATE AND INTEREST CALCULATION METHOD
The annual rate of the Entrusted Loan shall be 6.138%. If the Entrustor and the
Borrower agree to adjust the interest rate of or change the interest calculation
method for the Entrusted Loan during the term of this Contract, the Entrustor
shall inform the Entrustee such
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adjustment or change in writing. The interest shall accrue on the basis of the
adjusted interest rate from the workday immediately following the date the
Entrustee receives such notice from the Entrustor.
Interest calculation method: The interest shall accrue on the amount of the
Entrusted Loan actually drawn by the Borrower from the first Drawdown Date to
the date the interest is finally determined. For purpose of determining the
interest hereunder, one year shall be 360 days.
Interest Payment: The interest shall be paid on a quarterly basis. Each March
20, June 20, September 20 and December 20 shall be the date for the Borrower to
pay the interest (the "Interest Payment Date"). If the last date to repay the
principal of the Entrusted Loan by the Borrower is not an Interest Payment Date,
the Borrower shall pay off all the interest payable at the last date it that
shall repay the principal of the Entrusted Loan. The Borrower shall pay the
interest on each Interest Payment Date. In case the Borrower fails to make
timely and full payment of the interest, and the balance in the deposit account
of the Borrower is not enough for the current interest payable, upon written
authorization by the Entrustor, the Entrustee may charge liquidated damages
against the Borrower for the amount of the due but outstanding interest at the
rate of 0.05%/day.
ARTICLE 5 SERVICE FEE
The fees for the services provided by the Entrustee to the Entrustor hereunder
("Service Fee") shall be paid on the basis of 0.01% of the total amount of the
Entrusted Loan on a monthly basis. For the Entrusted Loan with a term less than
one month, the Fee shall be paid on the basis of 0.01% of the total amount of
Entrusted Loan.
The Entrustor shall pay the Service Fee to the Entrustee on a monthly/quarterly
basis from the date the Entrusted Loan is released to the Borrower [or in a lump
sum within 10 days from the date the Entrusted Loan is released]. If the
Entrustor fails to make such payment, it shall pay liquidated damages in a
amount of 0.0[/]% of the overdue and outstanding payment. The Entrustee shall be
entitled to deduct the Service Fee and liquidated damages from the Entrusted
Loan Account opened with the Entrustor (the "Entrusted Loan Account"), the
principal or interest collected or any other amount with respect to which the
Entrustor enjoys the right of claim against the Entrustee.
ARTICLE 6 ENTRUSTED LOAN ACCOUNT
The Entrustor shall, within three days as of the date of this Contract, open the
Entrusted Loan Account with the Entrustee or a designated branch thereof, which
shall be used for drawdown, money transfer, receipt of principal and interest,
and payment of charges.
The Entrustor shall, within five days as of the date of this Contract, deposit
into the Entrusted Loan Account in full in a lump sum the total amount of the
Entrusted Loan of RMB20,000,000, [or it may, in accordance with the Borrower's
Drawdown Schedule, no less than three workdays prior to each drawdown, deposit
into the Entrusted Loan Account in full in a lump sum the amount to be drawn].
In no event may any drawdown by the Borrower exceed the balance of deposit in
the Entrusted Loan Account.
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The Entrustee shall transfer each repayment of the principal and each payment of
the interest (including default interest) received by it into the Entrusted Loan
Account.
ARTICLE 7 BORROWER'S ACCOUNT
Following the effectiveness of this Contract, the Borrower shall open an account
with the Entrustee or a designated branch thereof, which shall be used for such
purposes as drawdown, repayment of principal and payment of interest.
The Borrower shall, no less than five days prior to the expiry of each drawdown,
deposit into the Entrusted Loan Account a sufficient amount for the repayment of
the principal and the payment of the interest as they fall due.
The settlement of the accounts and settlement and sale of foreign exchange in
connection with the sale of relevant products from the projects [or trading]
financed by the Entrusted Loan, shall be handled with the Entrustee or any of
its branches. [Optional]
Or:
The Borrower shall, procure from the Entrustee or any of its branches such
intermediate services as local and foreign currency depositing, international
and domestic settlement, foreign exchange settlement and sale in a proportion no
lower than the ratio of the Entrusted Loan to the aggregate of all the
outstanding borrowings by the Borrower from the other banks. [Optional]
ARTICLE 8 DRAWDOWN SCHEDULE
The Borrower shall make the drawdown under the Entrusted Loan in accordance with
the Drawdown Schedule set forth in Item (a) below:
(a) The Borrower shall draw the proceeds under the Entrusted Loan in a
lump sum on October 26, 2006.
(b) The Borrower shall draw completely all the proceeds under the
Entrusted Loan commencing from N/A in accordance with the following drawdown
schedule (the "Drawdown Schedule"):
Times of Drawdown Date of Drawdown Amount of Drawdown
----------------- ---------------- ------------------
1
2
3
.......
Where the Borrower needs to make any drawdown prior to the applicable scheduled
drawdown date, it shall obtain the consent of both the Entrustor and the
Entrustee.
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Without the consent of the Entrustor and the written notice from the Entrustor
to the Entrustee, any amount that fails to be drawn on the applicable scheduled
drawdown date set forth above may not be drawn after such scheduled drawdown
date. In the event the Entrustor agrees to release such amount that fails to be
drawn on the applicable scheduled drawdown date, the Entrustee may pursuant to
the written authorization from the Entrustor, charge liquidated damages on such
amount at the rate of 0.05%/day and on the basis of the number of days actually
delayed and 360 days a year.
In case the Entrustor fails to deposit the sufficient amount for any scheduled
drawdown into the Entrusted Loan Account prior to such drawdown so that the
Borrower cannot make such drawdown in accordance with the Drawdown Schedule, the
Entrustor shall pay liquidated damages to the Borrower at the rate of 0.05%/day
and on the basis of the number of days actually delayed and 360 days a year.
ARTICLE 9 PRECONDITIONS TO DRAWDOWN
Any drawdown by the Borrower under the Entrusted Loan shall be subject to the
satisfaction of each of the following conditions:
(a) The Entrustor shall have opened the Entrusted Loan Account with the
Entrustee or a designated branch thereof and deposited thereinto the Entrusted
Loan Account in full;
(b) The Borrower shall have opened an account with the Entrustee or any
branch thereof;
(c) This Contract shall be in due force and effect;
(d) The Guarantee Contract, the Mortgage Contract and the Pledge Contract
executed pursuant to Article 13 herein below shall be in force and effect;
(Notes: this item shall be optional and selected accordingly by referring to
Article 13.)
(e) The Borrower shall have submitted to the Entrustee resolutions and
authorizations of its board of directors or other governing body approving the
execution and performance of this Contract by the Borrower;
(f) The Borrower shall have submitted to the Entrustee the name list and
signature specimens of the persons with the authority to execute this Contract
and documents and instruments relating hereto;
(g) The Entrustee shall have received from the Borrower the "Application
for Drawdown under Entrusted Loan" that shall be valid; and
(h) Any other conditions to drawdown agreed between the parties hereto.
ARTICLE 10 REPAYMENT AND PRE-REPAYMENT OF THE ENTRUSTED LOAN
After any drawdown under the Entrusted Loan, the Borrower shall repay such
drawdown strictly in accordance with the repayment schedule set forth below (the
"Repayment Schedule"). In case the Borrower intends to make any adjustment to
the Repayment Schedule, it shall submit a written application to the Entrustor
30 days prior to the applicable scheduled repayment date and obtain the written
consent from the Entrustor.
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Times of Repayment Date of Repayment Amount of Repayment
------------------ ----------------- -------------------
1 April 25, 2007 RMB20,000,000
2 / /
3 / /
....... / /
In case the Borrower intends to pre-repay any drawdown hereunder, it shall
submit a written application to the Entrustor therefor and the Entrustor shall
respond thereto in writing. Where the Entrustor accepts such application, it
shall notify the Entrustee of such decision. Any amount pre-repaid by the
Borrower subject to the consent from the Entrustor shall be applied against the
drawdown that falls due last, which means that pre-repayment shall be applied in
a reverse order.
Any amount pre-repaid subject to the consent from the Entrustor may not be drawn
by the Borrower.
ARTICLE 11 OVERDUE PENALTY AND MISAPPROPRIATION PENALTY
If the Borrower fails to repay any amount of the Entrusted Loan pursuant to the
Repayment Schedule, to reach an agreement on extension with the Entrustor, and
to notify the Entrustee in writing, such amount shall be considered overdue.
Pursuant to the written authorization of the Entrustor, the Entrustee can charge
an overdue interest at a rate 40% higher than the original loan interest rate
for the overdue portion of the loan in RMB [Or a penalty interest at a rate
N/A higher than the original loan interest rate shall be charged for the
overdue portion of the loan in foreign currency].
If the Borrower uses any amount of the Entrusted Loan for purposes other than
those set forth in this Contract, pursuant to the written authorization of the
Entrustor, the Entrustee can charge a misappropriation interest at a rate 70%
higher than the original loan interest rate, for the misappropriated amount in
RMB [or a penalty interest at a rate N/A higher than the original loan
interest rate shall be charged for the misappropriated amount in foreign
currency].
ARTICLE 12 CERTIFICATE OF INDEBTEDNESS
The Entrustee should record the principal, interest, expenses and any other
items owed by the Borrower under this Contract on the Entrustee's internal
books. The above-mentioned records as well as bills and certificates issued and
kept by the Entrustee when processing the Borrower's drawdown, repayments, and
interest payments are effective certificates of creditor's right and
indebtedness between the Entrustor and the Borrower.
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ARTICLE 13 GUARANTEE [THIS ARTICLE IS OPTIONAL. THE ENTRUSTOR CAN DECIDE WHETHER
TO CHOOSE ANY GUARANTEE AND WHAT TYPE OF GUARANTEE TO CHOOSE.]
Debt under this Contract will use N/A type of guarantee:
(a) N/A will provide [joint and several liability] repayment guarantee and
sign a separate Guarantee Contract;
(b) N/A will provide mortgage guarantee and sign a separate Mortgage
Contract; or
(c) N/A will provide pledge guarantee and sign a separate Pledge
Contract.
ARTICLE 14 BORROWER'S REPRESENTATIONS AND WARRANTIES
14.1 The Borrower hereby represents as follows:
(a) The Borrower is duly incorporated and validly existing under
applicable laws;
(b) The Borrower has necessary power for the execution of this Contract;
(c) All documents, materials, statements, and certificates provided by the
Borrower to the Entrustor and the Entrustee are accurate, true, complete and
effective; and
(d) The Borrower shall use the proceeds from the Entrust Loan in
compliance with relevant laws, statutes, regulations and policies of the
government.
14.2 The Borrower hereby warrants as follows:
(a) It shall, at the request of the Entrustor, provide the Entrustor with
its latest financial statements, documents and materials including but not
limited to reports and statements reflecting the Borrower's operating result and
financial conditions;
(b) It shall notify the Entrustor and the Entrustee in writing prior to
any reduction in its registered capital or material change to its ownership or
any adjustment to its business mode;
(c) The Borrower undertakes to notify the Entrustor and the Entrustee
immediately upon the occurrence of any of the following events:
(i) defaults under this Contract or other contracts with the
Entrustee; and
(ii) when the Borrower has operating difficulties or its financial
conditions deteriorate;
(d) All settlements of the Borrower under the Entrusted Loan shall be
handled by the Entrustee or any branch of the Bank of China and the settlement
business amount shall meet the requirements of the Entrustee.
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ARTICLE 15 REPRESENTATIONS AND WARRANTIES BY THE ENTRUSTOR
15.1 The Entrustor represents that:
(a) The Entrusted Loan is provided with its own legally obtained money
fully at its discretion;
(b) It is entitled to perform under this Contract in accordance with PRC
laws, policies and its own rules and regulations;
(c) It voluntarily concludes and executes this Contract that expresses its
true intentions under all the necessary authorizations, and it has completed all
procedures required to conclude and execute this Contract; and
(d) It is its own responsibility to determine the Borrower, loan use, loan
rate and tenor under this Contract.
15.2 The Entrustor undertakes that:
(a) It shall deposit its own money into the Entrusted Loan Account as
specified under Article 4, and ensure that deposits in the Entrusted Loan
Account will not be less than the amount to be drawn by the Borrower under this
Contract;
(b) It shall pay the Entrustee the Service Fee as agreed under this
Contract; and
(c) It shall indemnify the Entrustee against and hold the Entrustee
harmless from, any claims, rights and lawsuits brought by the Borrower and
relevant damages, reimbursements, costs, expenses, losses and liabilities
suffered by the Borrower as a result of the Entrustor's gross negligence,
misconduct or implementation of the Entrustor's instructions.
ARTICLE 16 BREACH OF CONTRACT AND LIABILITY FOR BREACH
16.1 Breach by the Borrower and Liability for Breach
Occurrence of any of the following events shall constitute the Borrower's
breach of this Contract:
(a) The Borrower fails to use the Entrusted Loan for the purposes
specified by this Contract;
(b) The Borrower fails to repay principal due or pay interests due, fees
or any other amount payable in accordance with the terms herein; or
(c) The Borrower breaches any other provision herein relating to its
obligations hereunder.
In case of any breach by the Borrower as set forth above, the Entrustee,
subject to the authorization from the Entrustor, may take the following
remedies either separately or simultaneously:
(a) request the Borrower to cure the breach within a specified period;
(b) stop releasing loans or cancel the facilities not yet used by the
Borrower; and/or
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(c) declare that the principal and interests under this Contract become
due and request the Borrower to forthwith pay off the principal and interests
and fees that fall due.
16.2 Breach by the Entrustee and Liability for Breach
Any refusal by the Entrustee of any application of the Borrower for any
drawdown pursuant hereto without good cause shall constitute a breach by the
Entrustee hereunder, and in such case, the Entrustor or the Borrower can take
the following remedies either separately or simultaneously:
(a) request the Entrustee to cure such breach within a specified period;
and/or
(b) the Entrustor have the right to dismiss the Entrustee;
16.3 Breach by the Entrustor and Liability
Occurrence of any of the following events shall constitute a breach by the
Entrustor hereunder:
(a) The Entrustor fails to deposit (or remit) the fund in full into the
Entrusted Loan Account opened with the Entrustee or any of its branches in
accordance with this Contract;
(b) The source of the funds for the Entrusted Loan is illegal or
noncompliant;
(c) The Entrustor fails to pay the Service Fee to the Entrustee in time
according to the Contract terms;
In case of any of the above events, the Entrustee or the Borrower shall
have the right to take the following remedies either separately or
simultaneously:
(a) request the Entrustee to cure such breach within a specified period;
(b) The Entrustee may refuse to handle the Entrusted Loan business for the
Entrustor;
(c) The Entrustee may deduct any Service Fee payable to it by the
Entrustor; and/or
(d) Each of the Entrusee and the Borrower shall have the right to claim
compensation for any losses suffered by it.
16.4 claim against the Borrower for the payment of liquidated damages and
compensation in accordance with this Contract.
ARTICLE 17 TAXES
Any taxes and fees in connection with the execution and performance of this
Contract and settlement of dispute hereunder, including but not limited to stamp
duty, interest withholding tax, legal costs, enforcement expenses and
notarization fees shall be paid or reimbursed by the Borrower.
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ARTICLE 18 ASSIGNMENT
Any obligation under this Contract may not be assigned by the Borrower to a
third party without written consent of the Entrustee and the Entrustor.
ARTICLE 19 SUPPLEMENTS, AMENDMENTS AND INTERPRETATION
This Contract may be amended or supplemented by written agreement among all the
parties hereto. Any amendment and supplement to this Contract shall constitute
an integral part of this Contract.
Invalidity of any provision in this Contract shall not affect the validity of
any remaining provision.
In case any provision in this Contract is rendered illegal, invalid or
unenforceable as a result of any change in any national law, regulation or
judicial practice, the legality, validity and enforceability of the remaining
provisions herein shall not be affected. In such case, the parties hereto shall
cooperate with each other closely to amend this Contract as soon as practicable
the provision that is illegal, invalid or unenforceable.
ARTICLE 20 GOVERNING LAW, DISPUTE SETTLEMENT AND JURISDICTION
The Contract shall be governed by the laws of the People's Republic of China.
All disputes and controversies arising from the performance of this Contract
shall be resolved through negotiations among the parties. Where no settlement is
reached through negotiations, the parties agree that such dispute shall be
resolved in the manners set forth in Item N/A below:
(a) directly bring an action before a competent court in the place where
the Entrustor is located;
(b) submit the dispute to N/A Arbitration Commission for arbitration.
ARTICLE 21 APPENDIX
The following appendix(es) and other appendix(es) confirmed by each party shall
be an integral part of this Contract and have the equal effect.
(a) N/A
(b) N/A
(c) N/A
(d) N/A
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ARTICLE 22 MISCELLANEOUS
22.1 N/A
22.2 N/A
ARTICLE 23 EFFECTIVENESS
This Contract shall take effect upon being affixed with the signature or
personal seal of the legal or authorized representative of, and the company of,
each party hereto.
This Contract shall be executed in three counterparts with equal force, with
each party to hold one.
Entrustor: JIANGSU LINYANG ELECTRONICS CO., LTD. (affixed with the company
seal):
Legal representative (or authorized signatory): Xx Xxxxxxx (seal)
Entrustee: BANK OF CHINA CO., LTD., QIDONG SUBBRANCH (affixed with the company
seal)
Legal representative (or authorized signatory): Li Ping (signature)
Borrower: Jiangsu Linyang Solarfun Co., Ltd. (affixed with the company seal):
Legal representative (or authorized signatory): Xx Xxxxxxx (seal)
Dated: 25th October, 2006
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