Exhibit 10.29
(Summary Translation)
ENTRUSTED LOAN AGREEMENT
No.: Xxx Xxx 2006 (001)
Trustor: Jianxi Liouxin Industry Co., Ltd.
Address: Xinyu High-Tech Industrial Park
Trustee Lender (hereinafter, "Lender"): Xxxxx Xxxxxx of Bank of China Limited.
Address: 2 Xianlaizhong Avenue, Xinyu
Borrower: Jiangxi LDK Solar High-Tech Co., Ltd.
Address: Xinyu High-Tech Industrial Park, Xinyu, Jiangxi
In order to utilize fund more efficiently, the Trustor hereby entrusts the
Lender to provide entrusted loan to the Borrower. Therefore, the parties agree
as follows:
Article 1 General Provisions
1. The Trustor entrusts the Lender with the Trustor's fund to provide loan to
the Borrower and to collect the principal and interests according to the agreed
deadlines.
2. The Lender shall assist the Trustor to review the credit of the Borrower,
supervise the use of the loan, supervise the timely repayment of principal and
interests and deal with the relevant loan formalities.
3. The risks of the loan hereunder shall be assumed by the Trustor rather than
the Lender.
4. The entry into this Agreement by the Lender shall not be deemed as repayment
guaranty on the part of the Lender for the Borrower.
5. The Lender will charge the Trustor 1/oo of the entrusted amount in one
lump-sum as service fees.
Article 2 Currency, Amount and Period of the Entrusted Loan
1. The currency of the loan hereunder shall be Renminbi.
2. The amount of the loan hereunder shall not exceed Renminbi one hundred
sixteen million and nine hundred thousand.
3. The term of the loan hereunder shall be six months as of the date hereof.
Article 3 Purpose of the Loan
1. The loan shall be used for the purpose of production turnover.
2. Unless otherwise consented by the Trustor in writing, the Borrower shall not
use the loan in ways other than stated above.
Article 4 Trustor's Account
1. The Trustor shall open an entrusted loan settlement account with the Lender
or the entity designated by the Lender within one day as of the date hereof.
2. The Trustor shall deposit the full amount of RMB 116,900 thousand into the
entrusted loan settlement account before each drawdown date according to the
advance schedule of the Borrower with one day as of the date hereof, and the
deposit in this account shall accrue interest as demand deposit.
3. In any event, each drawdown amount by the Borrower shall not exceed the
balance of the Trustor account.
4. The Lender shall transfer the full amount of the principal or interest (and
penalty interest) received (or deducted) each time less the seasonal service
fees to the entrusted loan fund account.
Article 5 Borrower's Account
1. After this Agreement goes into effect and before any advance is made, the
Borrower shall open an loan account and RMB and/or foreign currency deposit
account with the Lender or any branch of the Lender for making advance and
repaying principal, interest and service fees.
2. The Borrower shall open a repayment reserve account with the Lender or its
branch and shall deposit full amount into this account at least five days before
each principal and interest is due for repayment.
3. The Borrower shall use the Lender to conduct a percentage of its home and
foreign currency deposit, domestic and overseas settlement, settlement and sale
of foreign currency and other intermediary transactions, which percentage shall
not be less than that the loan hereunder accounts for among the total amount of
loans borrowed by the Borrower from all the banks.
Article 6 Interest of the Entrusted Loan and Calculation Method
1. The interest rate for the entrusted loan shall be 5.022% per annum. During
the term of this Agreement, if there is a change of interest rate or interest
calculation method as agreed between the Trustor and Borrower, Trustor shall
notify the Lender in writing. Lender shall calculate the interest based on the
adjusted interest rate from the second business day after receipt of such
notice.
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2. Calculation method: Interest shall accrue for the total amount of advances
from the first advance date until the corresponding repayment date. The
calculation basis is 360 days per year.
3. Interest Payment: Borrower shall pay interest seasonally, respectively on
March 20, June 20, September 20 and December 20. If the last repayment date for
principal is not an interest payment date, Borrower shall pay all of the due and
payable interest on the last repayment date. Borrower shall pay interest on each
interest payment date, or Lender may deduct such payment directly from
Borrower's deposit account. If Borrower fails to pay the full amount of interest
on time and the balance in Borrower's deposit account is not enough to pay the
due and payable interest, Lender may charge 2.5/oo0 of the defaulted interest
per day as penalty.
Article 7 Overdue Interest and Misappropriation of Interest
1. If Borrower fails to make repayment on schedule and no agreement is entered
with respect to repayment deferral, then such unpaid amount shall be overdue
amount. Lender may charge interest on the RMB portion of such overdue amount at
the rate of 4/oo0 per day (or charge penalty interest on the foreign currency
portion of such overdue amount at the original interest rate plus 30%).
2. If Borrower uses the loan in ways other than those provided herein, Lender
may charge penalty interest on the RMB portion at the rate of 6/oo0 per day (or
charge penalty interest on the foreign currency portion at the original interest
rate plus 50%).
Article 8 Drawdown Schedule
1. After this Agreement goes into effect, Borrower shall use the loan hereunder
according to the following schedule, provided that Borrower shall obtain prior
consent of Trustor and Lender for any drawdown ahead of schedule:
Drawdown Time Drawdown Date Advance Amount Drawdown Time Drawdown Date Advance Amount
1st Dec. 22, 2006 RMB69,000,000 4th
2nd Dec. 22, 2006 RMB47,900,000 5th
3rd
2. If Borrower defers the drawdown date for one or more advances, Lender may
charge penalty on the deferred amount at the rate of 1/oo0 per day according to
the actual number of deferred days and on the basis of 360 days per year.
3. The deadline for Borrower to drawdown is 7 days after the date hereof. Any
amount not drawn after the deadline shall be canceled. Drawdown deadline is also
the deadline for penalty on deferred advance.
Article 9 Conditions Precedent
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Borrower may make advance upon satisfaction of all of the following conditions:
1. Borrower has opened a loan account and RMB and foreign currency deposit
accounts (loan account, RMB basic deposit account and foreign currency deposit
account) with Lender or its branch.
2. This Agreement goes into effect.
3. Borrower provides to Lender resolution and authorization by the board of the
Borrower or other competent authority granting approval for the entry and
enforcement of this Agreement.
4. Borrower provides to Lender a list of persons authorized to execute this
Agreement and documents relating to this Agreement as well as their respective
sample signatures.
5. Lender receives the Entrusted Loan Drawdown Application from the Borrower.
6. Other conditions agreed among the parties hereto for drawdown.
Article 10 Repayment Schedule and Conditions for Early Repayment
1. Borrower shall repay the loan hereunder according to the following schedule,
provided that Borrower shall make 30 days prior written application for any
adjustment to the repayment schedule and obtain Trustor's written consent:
Repayment Time Repayment Date Repayment Amount Repayment Time Repayment Date Repayment Amount
1st June 20, 2007 RMB60,000,000 5th
2nd June 22, 2007 RMB56,900,000 0xx
0xx
0xx
0. Without prior written consent of the Trustor, Borrower shall not make early
repayment.
3. Borrower shall make written request to the Lender and Trustor for any early
repayment plan, and Trustor shall reply in writing. With Trustor's consent, the
early repayment shall be used to repay the last due amount in reverse order.
4. For the amount early repaid with Trustor's consent, Borrower shall not
request to drawdown for a second time.
5. Any amount paid by the Borrower hereunder and that deducted by the Lender
from Borrower's account shall be first used to repay the due and payable
interest and penalty and after that, repay due and payable principal.
6. In the event the Borrower fails to repay one or more loans, the Lender may
deduct such amount from any Borrower's account opened with the Lender.
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7. Borrower shall apply in writing to the Lender and Trustor for any repayment
deferral, and the Trustor shall reply in writing. With Trustor's consent, the
Borrower may defer repayment.
Article 11 Certificate of Indebtedness
Lender shall record the principal, interest, fees and any other amount hereunder
in the internal book of the Lender. Such records and vouchers occurred and kept
by the Lender as a result of drawdown, repayment and payment of interest by the
Borrower are effective evidence for the debt relationship between Trustor and
Borrower.
Article 12 Guaranty
Credit
Article 13 Borrower's Representations and Warranties
1. Borrower makes the following representations:
(1) Borrower is an enterprise legal person duly registered under PRC laws and
regulations, with all necessary rights and authorizations to conduct business
activities in its own name or become a party to any legal action, and has lawful
right to dispose the assets it manages.
(2) Borrower's execution and performance of this Agreement is made on a
voluntary basis with necessary authorization. Such authorization and the
execution and performance do not violate the Articles of Association of the
Borrower or any other regulations or contracts binding on the Borrower. All the
formalities required for the execution and performance of this Agreement by the
Borrower have been duly completed.
(3) All the documents, statements and certificates provided by the Borrower to
the Trustor and Lender for the loan hereunder are accurate, true, complete and
effective.
(4) Borrower has not kept any event from the Trustor and Lender that may cause
Trustor to refuse to make the loan hereunder available to the Borrower.
2. The Borrower makes the following warranties:
(1) The Borrower will use the loan strictly according to this Agreement and will
not misappropriate the loan.
(2) The Borrower will make payment on principal, interest and fees hereunder
according to the schedule agreed herein.
(3) The Borrower will provide the most update financial as requested by the
Lender.
(4) Any counter-guarantee or similar agreement that has been or will be signed
between the Borrower and the guarantor with respect to the guarantee securing
the loans hereunder will not, either from legal aspect or from factual aspect,
prejudice any right or benefit of the Trustor hereunder.
(5) The Borrower will accept the Lender's examination and supervision of
creditability and provide sufficient assistance and cooperation.
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(6) The Borrower will not reduce its registered capital by means whatsoever and
will not significantly change its properties right or adjust its operational
mode without the Turstor's written consent.
(7) The Borrower will notify the Trustor and the Lender in case that the
Borrower provides credit guarantee or provides mortgage or pledge security with
its own assets to any third party.
(8) The repayment ranking of the debts hereunder will not be lower than the
debts of same type of other creditors.
(9) The Borrower warrants that it will notify the Trustor and the Lender
immediately in case of:-
(i) any breach of this Agreement or of any loan agreement or guarantee
agreement signed between the Borrower and any department or branch of the Bank
of China, or with other banks or non-bank financial institutions or units;
(ii) any change of shareholder, change of senior management,
amendment of the articles of association and adjustment of organizational
structure of the Borrower;
(iii) severe difficulties in the Borrower's operation and a worsened
financial condition;
(iv) any litigation, arbitration and other proceedings caused by
significant debt dispute of the Borrower.
3. The Borrower's representations and warranties made in this Article 13 is
continuous and valid and shall be deemed as being re-made when this Agreement is
amended, supplemented or changed.
4. The Borrower acknowledges that the execution hereof by the Trustor and the
Lender is relied on the foresaid representations and warranties.
ARTICLE 14 LENDER'S REPRESENTATIONS AND WARRANTIES
1. The Lender makes the following representations:
(1) The Lender is a state-owned commercial bank [or a branch thereof] duly
incorporated under PRC laws and, holds License of Financial Institution Legal
Person and Financial Business License, has been approved by and registered with
the industrial and commercial administration authority and is fully qualified
[or duly authorized] to operate financial businesses.
(2) The Lender is duly authorized to execute this Agreement and relevant
documents and is entitled to perform the rights and obligations hereunder.
2. The Lender makes the following warranties:
(1) The Lender will distribute loans according to the terms and provisions
hereof and will monitor the utilization of the loans and assist the Trustor in
collection of the principles and interests.
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(2) The Lender will not collect additional interests at its will or collect
additional interests in disguised form.
ARTICLE 15 TRUSTOR'S REPRESENTATIONS AND WARRANTIES
1. The Trustor makes the following representations:
(1) The loan funds provided by the Trustor is lawful and under the Trustor's
ownership and control.
(2) The Trustor has the right to conduct the activities hereunder according to
the laws and policies of the People's Republic of China and to its regulations.
(3) The Trustor's execution and performance of this Agreement is made on a
voluntary basis with all necessary authorization and is a true indication of its
will. The Trustor has finished all the procedures required for execution and
performance hereof.
(4) The Trustor decides the lender, purpose of loans, interest rate and loan
term hereunder on its own determination.
2. The Trustor makes the following warranties:
(1) The Trust will deposit self proprietary funds in the account for the funds
of entrusted loan in accordance with Article 4 of this Agreement, and
undertakes that the amount of the funds in such account will be no less
than the amount of the funds to be withdrawn by the Borrower in accordance
with this Agreement.
(2) The Trustor will pay for the handling fee of the entrusted loan to the
Lender in accordance with this Agreement.
ARTICLE 16 EVENTS OF DEFAULT AND DEFAULT LIABILITIES
1. The occurrence of any of the following events will constitute a
default by the Borrower under this Agreement:
(1) The Borrower has not utilized the loan for the purposes as
stipulated by this Agreement;
(2) The Borrower has failed to repay the principle due or pay the interest,
the expenses or other payables due in accordance with this Agreement;
(3) The warranties and representations by the Borrower set forth in
Article 13 hereof is untruthful; and
(4) The Borrower has breached any other provision of this Agreement regarding
its obligations.
2. In case any of the above events of default has occurred, the Borrower
shall notify the Lender and the Trustor promptly, and the Lender, with the
consent by the Trustor, is entitled to take the following actions
separately or concurrently:
(1) To request the Borrower to rectify the default within a time limit;
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(2) To terminate or cancel the loan facility that has not been withdrawn by
the Borrower;
(3) To announce that all the principle and interest thereof under this
Agreement become due immediately, and request the Borrower to repay
immediately all the principle and interest of the loan facility and the
relevant expenses unconditionally.
3. Events of Default by Lender and Consequences Thereof
(1) The Lender unreasonably rejects a withdrawal by the Borrower in
accordance with this Agreement;
(2) Any provision as stipulated in Article 14 of this Agreement has been
breached.
If any of the above default events by the Lender has occurred, the Trustor or
the Borrower is entitled to separately or jointly take followings actions:
(i) To request the Lender to rectify the default within a prescribed
time limit;
(ii) The Borrower is entitled to make repayment ahead of schedule;
and
(iii)The Trustor is entitled to change the Lender.
4. Occurrence of any of the following events will constitute a default
by the Trustor under this Agreement:
(1) No adequate funds has been deposited in (remitted to) the Trustor's
account opened with the Lender in accordance with this Agreement;
(2) The source of the funds of the entrusted loan is illegal or not
compliable with relevant rules; and
(3) The Turstor has failed to pay the Lender the handing fee for the
entrusted loan promptly in accordance with the Contract.
5. If any of the above defaults has occurred, the Lender or the
Borrower is entitled to take one or several of the actions below:
(1) The Lender or the Borrower is entitled to request the Trustor to rectify
the above default within a prescribed time limit;
(2) The Lender is entitled to refuse to conduct the business of
entrusted loan for the Trustor;
(3) The Borrower is entitled to make repayment ahead of schedule;
(4) The Lender is entitled to deduct the handling fee owed by the
Trustor to the Lender; and
(5) If the Lender or the Borrower has incurred any loss as a consequence, they
are entitled to claim for damages to the Trustor.
ARTICLE 17 EXPENSES
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All expenses (including but not limited to the certification fee) in connection
with this Agreement shall be borne by the Borrower unless stipulated by the law
otherwise.
Article 18 Deduction
Under this Agreement, the Borrower shall pay in full amount of all the items
due, and shall not claim for set-off or counterclaim or attach any condition to
the payment.
ARTICLE 19 TRANSFER OF DEBT
1. In absence of a written consent, the Borrower shall not transfer any right
or obligation under this Agreement to a third party.
2. If the Borrower transfers its rights and obligations under the Contract to
a third party with written consent by the Trustor, such third party shall
abide by all the provisions of this Agreement unconditionally.
ARTICLE 20 PERFORMANCE OF OBLIGATIONS AND WAIVER OF RIGHTS
1. The obligations of the Borrower under this Agreement shall stand alone
without being affected by the relationship between any Party to this
Agreement and the third party, unless it is provided otherwise in this
Agreement.
2. Any tolerance, indulgence, favourite or delayed exercise of any right
under this Agreement rendered by the Trustor to the Borrower shall not
affect, infringe upon or limit any right or interest of the Trustor under
this Agreement and the laws and regulations, and shall not be regarded as
a waiver by the Trustor and the Lender of its rights and interests under
this Agreement.
ARTICLE 21 SUPPLEMENT, AMENDMENT AND INTERPRETATION OF CONTRACT
1. This Agreement can be amended, supplemented upon written agreement by
three Parties; Any amendment or supplement to this Agreement shall
constitute an integrated part of this Agreement.
2. If any change in the laws, regulations or judicial practices of the state
has resulted in the illegality, invalidity or unenforceability of any
clause of this Agreement, the legality, validity and enforceability of any
other clause of this Agreement shall not be affected. Under such
circumstances, the three Parties shall cooperate closely to amend as soon
as possible the clause of this Agreement which has become illegal, invalid
or unenforceable.
3. Issue which are not provided in this Agreement shall be interpreted or
deal with in accordance with the regulations of the Lender.
ARTICLE 22 DISPUTE, JURISDICTION AND WAIVER OF IMMUNITY
1. The execution, validity, interpretation, performance and dispute
resolution of this Agreement shall all be governed by the law of the
P.R.C. During the performance of the Contract, any dispute or
controversy arising out of or in respect of this Agreement shall be
resolved through friendly consultations by the Parties. In case the
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consultation has failed, any Party is entitled to directly bring a
lawsuit before the people's court in the place where the defendant
is premised.
2. All the expenses relevant to litigation shall be borne by the Borrower,
unless otherwise provided by an order of the People's court.
3. During the period of litigation, all the clauses hereunder shall maintain
effective, and the Borrower shall not make dispute resolution as the
excuse for refusing to implement its obligations hereunder.
4. The execution and performance of this Agreement as well as any activities
carried out by the Borrower are civil acts. The Borrower shall not, at
present and in the future, take any economic or administrative actions
against the Lender or bring up any objection or argument against any
jurisdiction, trial or implementation by reason of the immunity of its
corporation, acts or properties.
[If arbitration is adopted to resolve disputes, then the above clauses shall
be:]
1. The execution, effectiveness, construction, performance and dispute
resolution shall be governed by Chinese laws. During the performance of
this Agreement, any dispute or dissension arising out of or in connection
with performance of this Agreement may be resolved though consultation.
When the parties fail to resolve such dispute through consultation, any
party hereto may refer such dispute to Xinyu Arbitration Committee for
arbitration.
2. The arbitration procedure shall be implemented in accordance with the
Arbitration Law of the People's Republic of China and the rules of
arbitration procedure of Xinyu Arbitration Committee.
3. All the expenses relevant to arbitration shall be borne by the Borrower,
unless otherwise provided by an award of the Arbitration Committee.
4. During the arbitration, all the clauses hereunder shall maintain
effective, and the Borrower shall not make dispute resolution as the
excuse for refusing to implement its obligations hereunder.
5. The execution and performance of this Agreement as well as any activities
carried out by the Borrower are civil acts. The Borrower shall not, at
present and in the future, take any economic or administrative actions
against the Lender or bring up any objection or argument against any
jurisdiction, trial or implementation by reason of the immunity of its
corporation, acts or properties.
ARTICLE 23 MISCELLANEOUS
.......
ARTICLE 24 APPENDICES
Following appendices are integral parts hereof:
1. Application for Commission Loan;
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2. Others
.......
ARTICLE 25 NOTICE
1. Any notice, payment requirements and other communication hereunder shall be
delivered or transmitted to the other party, addressed as follows:
To: Trustor: Jiangxi Xxx Xxx Industrial Limited Company
Address: High-Tech Economic Development Area, Xinyu City
Zip Code: 338000
Telex:
Fax: 0790-6860022
Attention: Xxxx Xxxx
To: Lender: Bank of China Limited, Xxxxx Xxxxxx
Address: 0 Xxxx Xxx Xxxxx Xxxx, Xxxxx Xxxx
Zip Code: 338000
Telex:
Fax: 0790-6457338
Attention: Xxxxxxx Xxxxx
To: Borrower: Jiangxi Xxx Xxx LDK Solar Energy High-Tech Limited Co.
Address: Meiyuan Subdistrict, High-Tec Economic Development
Area, Xinyu City
Zip Code: 338000
Telex:
Fax: 0790-6860028
Attention: Xxxxxxxx Xxxx
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Any party hereto shall notify the other two parties in case of any change to the
abovementioned addresses:
2. Any notice given by the Lender or the Borrower shall be deemed to
have been received:
(1) if by registered mail, on the day of the 5th business day
after the mailing of registered mail;
(2) if by telex, on the day of receiving the confirmation of
receipt from the other parties;
(3) if by fax, on the day on which transmitted;
(4) if delivered personally, on the day of the receipt.
ARTICLE 26 EFFECTIVENESS OF CONTRACT
This Agreement shall become effective upon satisfaction of the following
conditions and until the Borrower hereunder have fully repaid the principle and
interest as well as other expenses relevant to the loans:
1. This Agreement has been duly executed by the legal representatives or
authorized person of the parties and affixed with their respective
corporate seals.
2. Other conditions precedent to effectiveness.
This Agreement shall be made in three originals, each party holding one, and all
of these three originals shall have the same effect.
Trustor: Legal Representative (or Authorized
Person):
(Company seal)
(Xxxx Xxxx'x seal)
Lender: Legal Representative (or Authorized
Person):
(Bank seal)
/s/ Xxxxxxx Xx
--------------------------------------------
Borrower: Legal Representative (or Authorized
Person):
(Company seal)
/s/ Xiangqun Fu
--------------------------------------------
Location: Xinyu City
Date: December 22, 2006
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