Exhibit 10.28
(Summary Translation)
Renminbi Loan Agreement
China Construction Bank Corporation
Jiangxi Province Branch
Loan No.: LDKGD-200601
Loan Type: Jiangxi LDK Solar Hi-Tech Co., Ltd (Loan for infrastructure)
Borrower (Party A):
Domicile: Xinyu, Gaoxin Avenue Postcode: 338000
Legal Representative (Official in Charge): XXXX Xxxxxxxx
Fax: 0000000 Phone: 0000000
Lender (Party B): China Construction Bank Corporation, Xxxxx Xxxxxx
Domicile: Xinyu, No. 180 Central Beihu Road Postcode:
Official in Charge: XX Xxxxxx
Fax: Phone:
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Borrower (hereinafter "Party A"): Jiangxi LDK Solar Hi-Tech Co., Ltd
Lender (hereinafter "Party B"): China Construction Bank Corporation, Xxxxx
Xxxxxx
Based on the loan application by Party A, Party B agrees to make a loan
available to Party A. In accordance with the laws and regulations, through
friendly consultation, this Loan Agreement is entered into by and between
Party A and Party B that both parties shall abide by.
ARTICLE 1 AMOUNT
Party B shall provide Party A a Loan not exceeding RMB 80,000,000.
ARTICLE 2 PURPOSE:
The loan shall only be used by Party A to finance the 75 Mega-Watt
Multicrystalline Silicon Wafer Project.
ARTICLE 3 TERM OF THE LOAN
The duration of this Loan shall be three years, from 10 March 2006 to 19 March
2009.
In the event that the starting date is different from the date on the Loan
Transfer Document, the date recorded on the Initial Loan Transfer Document shall
prevail. The Loan Transfer Document is a component of this Agreement, and it
shall has the same legal binding effect with this Agreement.
ARTICLE 4 INTEREST RATE, DEFAULT INTEREST RATE, CALCULATION AND SETTLEMENT
1. Interest Rate:
The Loan under this Agreement shall bear interest at a rate of 6.336% per annum.
The Interest Rate shall be in accordance with (2) of this Article:
(1) Fixed rate. The Interest Rate remains the same during the Loan Period;
(2) Floating rate, which floats 10% above the Loan Base Rate. The
adjustment are made every twelve months commencing from the starting date of
Interest. The Interest Rate Adjustment Day shall be the corresponding day of the
Value Date in the adjustment month or, if there is no corresponding day of that
month, shall be the last day of the adjustment month.
2. Default Interest Rate
(1) The Default Interest Rate shall be 11.520% per annum.
(2) In the event where Party A fails to use the facility in conformance
with the Purpose set forth, the Default Interest Rate shall be in accordance
with (b) of this Article:
(a) Fixed rate.
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(b) Floating Rate which floats 100% above the Loan Base Rate. The
adjustment are made every twelve months commencing from the
starting date of Interest. The Default Interest Rate Adjustment
Day shall be the corresponding day of the Value Date in the
adjustment month or, if there is no corresponding day of that
month, shall be the last day of the adjustment month.
(3) In the event where the Loan is overdue, the Default Interest Rate
shall be shall be in accordance with (b) of this Article:
(a) Fixed rate.
(b) Floating Rate which floats 50% above the Loan Base Rate. The
adjustment are made every twelve months commencing from the
starting date of Interest. The Default Interest Rate Adjustment
Day shall be the corresponding day of the Value Date in the
adjustment month or, if there is no corresponding day of that
month, shall be the last day of the adjustment month.
3. The Value Date in this Article refers to the day on which the initial Loan
under this Agreement has been transferred to the account of Party A.
The Base Rate under the initial loan allotment refers to the interest rate for
loans of the same grade announced by the People's Bank of China on the Value
Date; henceforth, when the Loan Interest or the Default Interest Rate is
adjusted in accordance with aforementioned rules, the Base Rate refers to the
interest rate for loans of the same grade announced by the People's Bank of
China on the Value Date; when the People's Bank of China no longer announce the
interest rate for loans of the same grade, the Base Rate refers to the interest
rate for loans of the same grade recognized by the Interbank Market, unless
otherwise agreed by both Parties.
4. Interest of Loan shall be commenced calculating on the day when the loan has
been transferred to the account of Party A. The Loan Interest will be calculated
on a daily basis. Daily interest rate = monthly interest rate/30 = annual
interest rate/360. If Party A failed to pay interest on time, the Interest will
be recalculated on next succeeding day.
5. Settlement
(1) The Interest for Loan with Fixed Rate shall be calculated based on the
Interest rate agreed by Parties. The Interest for Loan with Floating Rate shall
be calculated based on the Interest rate set by each floating period; if the
Interest Rate changes more than one time within an individual settlement period,
the Interest shall be calculated first in accordance with each floating period.
The Interest in such settlement period is the aggregation of the interest in
each floating period on the Interest Settlement Day.
(2) The Loan Interest shall be calculated on a monthly basis. The Interest
Settlement Day shall be the 20th day of each month.
ARTICLE 5 LOAN DISBURSEMENT AND USAGE
1. Conditions Precedent to Disbursement
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(1) Unless if Party B waive its rights in whole or in part, Party B bears
the obligations to launch the Loan only if the following precedent conditions
are satisfied:
(a) Party A has, in accordance with relevant laws and regulations,
completed loan related approval(s), registration, delivery and
other statutory procedures;
(b) If there is a security attached upon this Agreement, Security
Agreement or other security measures meet the requirements by
Party B;
(c) no Event of Default by Party A have occurred under this
Agreement;
(d) other precedent conditions agreed by both Parties.
(2) The Loan shall be launched to Party A by Party B within one Business
Day upon the satisfaction of aforesaid precedent conditions.
2. Usage Plan:
Xxxxx 00, 0000 Xxxxxx: XXX 80,000,000
[ date ] [ Amount ]
[ date ] [ Amount ]
[ date ] [ Amount ]
[ date ] [ Amount ]
[ date ] [ Amount ]
ARTICLE 6 PAYMENT
1. Payment Principle
Under this Agreement, Party A shall make the Payment according to the following
principles:
(1) The Principal shall be paid prior to the Interest in the event if
Party A failed to pay the overdue Loan within 90 days upon the maturity of the
Principal, or if Party A failed to pay the overdue Loan within 90 days upon the
maturity of the Interest, or if Party A suspends its business operations or the
Loan related Project is terminated although the Loan is not matured yet or the
overdue period not exceeds 90 days, or any other events prescribed by laws,
regulations or rules.
(2) The Interest shall be paid prior to the Principal and the Interest
shall be paid together with the Principal in the event other than aforementioned
situations.
2. Interest Payment
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Due Interest shall be paid by Party A to Party B on the Interest Settlement Day.
The initial Payment Day is the initial Interest Settlement Day after the launch
of the Loan. The Principal shall be fully paid upon the last Payment Day.
3. Principal Payment Schedule:
The Principal shall be paid by Party A as following:
Xxxxx 00, 0000 Xxxxxx: XXX 38,000,000
Xxxxx 00, 0000 Xxxxxx: XXX 42,000,000
[ date ] [ Amount ]
[ date ] [ Amount ]
[ date ] [ Amount ]
4. Payment Method
Party A shall deposit enough payables on the account opened by Party B prior to
the Payment Day agreed by both Parties and transfer the payment automatically,
or transfer fund from other accounts on the Payment Day agreed by both Parties
to repay the Loan; in the event where Party A fail to make the payment on time,
Party B could transfer fund from accounts opened by Party A within China
Construction Bank Corporation.
5. Pre-payment
(1) Party A shall notify Party B of its intention to make pre-payment.
(2) Party A shall give Party B a written notice of its intention to prepay
thirty Business Days prior to its Pre-Payment Day. Party A could prepay the
whole or any part of the Loan with consent of Party B.
If Party A prepays the Loan, the Interest shall be calculated according to the
actual Loan Days and the Interest Rate prescribed in Article 4 of this
Agreement.
If Party A prepays the Loan, it agreed to pay Party B a certain amount of
compensation. Compensation = Pre-payment Amount x 0.015% x Advance Days.
If Party A repay the principal and interests of the loan by installment, the
Pre-payment shall first be used to repay the loan with the latest due date,
i.e. the loans shall be repaid in reverse order. The Interest Rate agreed by
this Agreement shall apply to the remain Loan balance after the completion of
the pre-payment.
ARTICLE 7 SECURITY
The security measure set on the Loan shall in accordance with 1 and 2 of this
Article:
1. Warranty
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2. Mortgage
3. Pledge
4. Standby Letter of Credit
5. Credit Insurance
6. Other: (intentionally left blank)
ARTICLE 8 PARTY A'S RIGHTS AND OBLIGATIONS
1. Party A has the following rights:
(1) Party A is entitle to request Party B launch the Loan in accordance
with this Agreement;
(2) Party A is entitle to use the Loan in accordance with the purpose set
out in this Agreement;
(3) Party A is entitle to apply postpone the Loan Period if all
requirements by Party B are satisfied;
(4) Party A is entitle to request Party B keep the relevant financial
documents and business secrets of production and operations provided by Party A
confidential, unless if otherwise prescribed by the laws and regulations.
2. Party A assumes the following obligations:
(1) Party A shall provide relevant financial materials and materials
relating to its production and operation as Party B's request, including but not
limited to, providing to Party B within the first 15 bank business days of
each quarter a balance sheet as of the end of last quarter, and profit and loss
statements (or income and expenditure statements in case of a public
institution) as of the end of last quarter, and at the end of each year,
providing a cash flow report as of the end of the same year; Party A shall be
responsible for the truthfulness, completeness and validity of such materials;
(2) Party A shall use the loan proceeds for the purposes as provided
herein and shall not use for other purposes;
(3) Party A shall actively cooperate with Party B and voluntarily accept
Party B's examination and supervision with respect to its production and
operation, financial activities and use of the loan proceeds hereunder;
(4) Party A shall repay the principles and interests pursuant to the
terms and provisions herein;
(5) Party A and its investors shall not withdraw its capital investment or
shift the assets for other purposes therefore to avoid its indebtedness to Party
B;
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(6) Party A shall not, without Party B's consent, provide any guarantee to
any third party with the assets formed by the loans hereunder before the
principals and interests of Party B's loan hereunder are repaid off;
(7) Party A shall give Party B a prior written notice and seek for Party
B's consent in case that Party A intents to provide guarantee for other party's
indebtedness during the term hereof and such guarantee may impact Party's
ability to repay the debt hereunder;
(8) Party A shall provide to Party B other guarantee accepted by Party B
in case that the guarantor hereunder is in a situation of production suspension,
closing-up, deregistration, being withdrawn of its business license, bankruptcy,
cancellation and deficit and therefore has lost part or all of its ability to
guarantee the loans hereunder, or in case that the collaterals and pledges
hereunder are devaluated, damaged or destroyed by accident;
(9) Party A shall notify Party B in time of any change of its name, legal
representative (responsible person), domicile, business scope, registered
capital during the term hereof;
(10) Party A shall give Party B a 30-day written notice and seek for Party
B's consent in case that, during the term hereof, Party A is involved in
contracting, leasing, equity reforming, joint operation, merger, acquisition,
splitting, joint venture, application for suspension and streamlining,
application for dismissal, application for bankruptcy and other activities that
may impact realization of creditor's right of Party B, and shall repay or
provide securities to the debts hereunder upon Party B's request;
(11) Party A shall give party B a written notice immediately in case that,
during the term hereof, Party A is in a situation of production suspension,
closing-up, deregistration, being withdrawn of its business license, illegal
activities by its legal representative or major responsible persons, being
involved in significant litigation, serious difficulty in production and
operation, worsening financial conditions, and shall repay or provide securities
to the debts hereunder upon Party B's request;
(12) Party A shall bear the legal fees, insurance, evaluation,
registration, deposit, authentication, notarization and other fees relating to
this Agreement and the guaranties hereunder.
ARTICLE 9 PARTY B'S RIGHTS AND OBLIGATIONS
1. Party B has the following rights:-
(1) knowing Party A's production and operation and financial activities
and requesting Party A to provide relevant statistics, financial statements and
other documents and materials; and
(2) deducting relevant amount in any currency payable by Party A to Party
B according to this Agreement from Party A's account opened with the system of
China Construction Bank Corporation;
2. Party B has the following obligations:-
(1) lending loans on time and in full amount according to the provisions
hereof, except for the case of any delay caused by Party A; and
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(2) keeping the financial materials and the business secrets with respect
to production and operation provided by Party A confidential unless otherwise
provided by laws, regulations.
ARTICLE 10 DEFAULT LIABILITIES
1. Default Events
(1) It shall be deemed as a default by Party A in the event that: -
(a) Party A fails to provide true, complete and effective
materials with respect to accounting, production and operation
and other materials as requested by Party B;
(b) Party A fails to use the loan proceeds for the purpose as
agreed by the Parties;
(c) Party A fails to repay the principles and interests in due
time;
(d) Party A refuses or disturbs Party B's examination and
supervision to the use of the proceeds;
(e) Party A transfers its assets or withdraws its capital
contribution to avoid debts;
(f) Party A's operational and financial status becomes worse or
even insolvent, or Party A is involved or will be involved in
significant litigation or arbitrational proceedings or other
legal disputes, which Party B deems as may affect or damage or
have affected or damaged Party B's rights and interests
hereunder;
(g) that any other indebtedness of Party A has affected or may
affect Party B's performance of the obligations hereunder;
(h) Party A fails to repay other due indebtedness to China
Construction Bank Corporation;
(i) Party A is involved in any contracting, leasing, merger,
acquisition, joint venture, splitting, joint operation,
joint-stock reform and other activities that may change Party
A's operational mode or operational system and may, upon Party
B's sole discretion, influence or damage or have influenced or
damages Party B's rights and interests hereunder;
(j) Party A is involved in other circumstances that, upon Party
B's sole discretion, may influence the realization of the
creditor's rights;
(k) Party A breaches other obligations hereunder.
(2) Party A will be deemed as default if Party A fails to provide new
guarantee that meets Party B's requirement in the event that the guarantor:
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(a) is involved in contracting, leasing, merger and acquisition,
joint venture, splitting, joint operation, joint-stock reform,
bankruptcy, cancellation and other events that will affect the
guarantor's performance of its joint and several liabilities;
(b) provides guaranties to third party which is beyond its
repayment ability;
(c) has lost or may loss its guarantee ability; or
(d) has other default events as provided in the guarantee
agreement.
(3) Party A will be deemed as default if Party A fails to provide new
guarantee that meets Party B's requirement in the event that the mortgagor:
(a) fails to purchase property insurance for the collateral, or
fails to dispose the insurance compensation pursuant to the
mortgage contract after the insured accident occurs;
(b) fails to dispose the insurance compensation pursuant to the
mortgage contract in case that the collateral is damaged,
destroyed or devaluated due to behaviours by a third party;
(c) without Party B's written consent, confers, transfers,
leases, re-mortgages, relocates or otherwise disposes the
collateral,
(d) notwithstanding Party B's consent to dispose the collateral,
fails to distribute the proceeds of such disposal pursuant to
the mortgage contract;
(e) fails to recover the collateral's value or fails to provide
other guarantee accepted by Party B in case that the
collateral is damaged, destroyed or devaluated and the
repayment of the indebtedness hereunder therefore may be
influenced; or
(f) has other default event specified in the mortgage contract.
(4) Party A will be deemed as default if Party A fails to provide new
guarantee that meets Party B's requirement in the event that the pledge:
(a) fails to purchase property insurance for the pledge, or fails
to dispose the insurance compensation pursuant to the pledge
contract after the insured accident occurs;
(b) fails to dispose the insurance compensation pursuant to the
pledge contract in case that the pledge is damaged, destroyed
or devaluated due to behaviours by a third party;
(c) notwithstanding Party B's consent to dispose the pledge, fails
to distribute the proceeds of such disposal pursuant to the
pledge contract;
(d) fails to recover the pledge's value or fails to provide other
guarantee accepted by Party B in case that the pledge is
damaged, destroyed or
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devaluated and the repayment of the principles and interests
hereunder therefore may be influenced; or
(e) has other default event specified in the pledge contract.
(5) Party A may be deemed as default if it fails to provide new guarantee
upon Party B's request in case that the guarantee contract or other types of
guarantee does not become effective, is invalid or is dismissed, or that the
guarantor loses part or all of its guarantee ability, or that guarantor refuses
to perform its guarantee obligations.
2. Relief of Default
Party B has the right to take one or several of the following actions in case of
any default event specified in the item (1) to (5) above:
(1) to cease loan distribution, declare the loan becoming due immediately
and require Party A to immediately repay the principles, interests and fees of
all the debts due or undue hereunder;
(2) to collect 5/oo of the loan principal from Party A as a default
compensation;
(3) to collect interest and compound interest for such part of loans as is
used by Party A for any purpose other than those specified hereunder according
to the penalty interest rate and the interest calculation method provided herein
for the period from the date of such use for other purpose till the date of
repayment of all the principals and interests;
(4) to collect compound interest for the outstanding interests due from
Party A according to the loan interest rate and calculation method as provided
in Article 4 hereof before the loan term expires;
(5) to collect interest and compound interest for the outstanding
principals and interests of Party A after the loan term expires (including part
or all of the principals and interests declared by Party B as becoming due in
advance) for the period from the overdue date till the date of repayment in full
of such outstanding principals and interests according to the penalty interest
rate and the interest calculation method provided herein. Overdue repayment
refers to Party A's failure to make full repayment in time or to repay the
instalments according to the repayment schedule as provided herein;
(6) to deduct relevant amount in any currency from Party A's account
opened with the system of China Construction Bank Corporation;
(7) to request Party A to provide new guarantee that meets Party B's
requirement for all the indebtedness hereunder;
(8) to perform guarantee right;
(9) to terminate this Agreement.
ARTICLE 11 MISCELLANEOUS
1. (intentionally left blank) ;
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2. (blank hereinafter) ;
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3. ;
-------------------
4. .
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ARTICLE 12 DISPUTE RESOLUTION
Any dispute raised in the performance hereof may be resolved through negotiation
or, if negotiation fails, by means of the following item (1):
(1) submitting to the people's court of the place where Party B resides;
(2) submitting to (intentionally left blank) Arbitration Committee (venue of
arbitration) (intentionally left blank) in accordance with the arbitration rules
existing when application for arbitration is submitted. The arbitral award is
final and binding to both parties.
The non-dispute terms and provisions hereof should be performed during the
period of litigation or arbitration.
ARTICLE 13 EFFECTIVENESS OF CONTRACT
This Agreement becomes effective after Party A's legal representative
(responsible person) or an authorized representative signs his name and affixes
Party A's seal hereon and Party B's responsible person or an authorized
representative signs his name and affixes Party B's seal hereon.
ARTICLE 14 This Agreement is executed in four copies.
ARTICLE 15 Representation Clause
1. Party A clearly understands Party B's business scope and power of
authorization.
2. Party A has reviewed all the terms and provisions hereof. Party B has
explained the terms and provision hereof upon Party A's request. Party A fully
understands the meaning of the terms and provisions hereof and is fully aware of
relevant legal consequences.
3. Party A is duly authorized to execute this Agreement.
Party A: Jiangxi LDK Solar High-Tech Co., Ltd. (Company seal)
Legal representative (responsible person) or authorized representative
(signature):
/s/ Xiangqun Fu
------------------------
March 20, 2006
Party B: China Construction Bank Xinyu City Branch (Bank seal)
Responsible person or authorized representative (signature): /s/ Xxxxxx Xx
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March 20, 2006
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