EXHIBIT 4.9
English translation
For reference only
FOREIGN CURRENCY LOAN AGREEMENT (2002.ZH)
No.: 2005 Year Development Zone Zi No. 05013
Borrower: Wuxi Suntech Power Co., Ltd.
Enterprise Legal Person Business License Number: [illegible] He Su Xi No. 004890
Legal Representative: Xx Xxx-ren
Account Opening Financial Institution and Account Number: Bank of China,
Development Zone Branch
Domicile: 00-0 Xxxxxxxxxx Xxxxx Xxxx, Xxxxx High & New-tech Industry Development
Zone, Wuxi
Contact: Tel: 0000-0000000; Fax: 0000-0000000
Lender: Bank of China, High & New-tech Industry Development Zone, Wuxi Branch
Legal Representative or Person In-Charge: Qi Bin
Domicile: 140 Wangzhuang Road, Wuxi City
Contact: 0000000
Through equal consultation, the Borrower and the Lender reach a unanimous
agreement upon the matters in relation to the Lender granting a foreign currency
capital loan to the Borrower and enter into this Contract.
ARTICLE 1 CURRENCY AND LOAN AMOUNT
The currency of the loan is US dollars.
The total loan amount under this Contract is (in full-form characters) Two
Million United States Dollars, (in short-form) USD2,000,000.
ARTICLE 2 TERM
The term of the loan is six months, calculating from the drawdown date
agreed upon by the parties to the last repayment date as agreed by the parties.
If the drawdown date that the parties have agreed upon is a specific period, the
abovementioned "drawdown date" refers to the commencement date of the drawdown
period.
ARTICLE 3 PURPOSE
The purpose of the loan under this Contract is as follows:
(1) Capital turnover;
(2) ________________;
(3) ________________.
Without the written consent of the Lender, the Borrower may not change the
purpose of the loan.
ARTICLE 4 INTEREST RATE AND INTEREST CALCULATION
The interest rate of the loan adopts the __first__ interest rate method
below:
(1) Adopting three months floating interest rate, and the interest
rate is international market interest rate (LIBOR or HIBOR) for period of 3
months plus 150 percentage points, and the interest rate for this period is
4.23% per annum.
(2) As an increase or decrease of ___% over ___month floating year
term foreign currency loan interest rate as announced by the Head Office of Bank
of China, and the interest rate for this period is ___% per annum.
(3) Adopting a fixed interest rate, and the interest rate is ___% per
annum.
Interest of the loan shall be calculated from the date the Borrower
actually draws down the loan, in accordance with the actual drawdown amount and
the number of days elapsed on the basis of 360 days a year.
For floating interest rate that adopts ___ months floating interest rate,
at the conclusion of every ____ months since the effective date of this
Contract, the interest rate for the next floating period is re-determined on the
basis of the then ___ month floating ___ month period international market
interest rate (LIBOR or HIBOR) or the ___ months floating ___ year term foreign
currency loan interest rate as announced by the Head Office of Bank of China.
The Borrower adopts the method in sub-clause ______ below in paying
interest:
(1) The Borrower shall pay interest once every quarter. March 20, June
20, September 20 and December 20 of every year shall be the interest payment
dates. If the last repayment date of the principal of the loan is not an
interest payment date, the Borrower must pay all the payable interest on the
last repayment date of the loan principal.
(2) Interest shall be paid every month; the corresponding loan
disbursement date shall be the interest payment date.
ARTICLE 5 CONDITIONS FOR DRAWDOWN
If the Borrower fails to satisfy the following conditions, the Lender
has the right to reject the Borrower's drawdown application:
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(1) submit a written drawdown application and the relevant documents
evidencing the purpose of the loan ___ days in advance;
(2) this loan Contract and the relevant attachments have formally
taken effect;
(3) the security contract stipulated in Article 9 of this Contract is
already in effect;
(4) the Borrower has, pursuant to the Lender's request, opened the
relevant accounts for drawdown, interest payment, fees payment and repayment;
(5) the Borrower has submitted the following written materials to the
Lender:
1. resolutions and authorization letters of the board of
directors or other departments with requisite power,
approving the execution and the performance of this
Contract;
2. the list of personnel who are authorized to sign this
Contract and the documents relating to this Contract and the
signature specimens of the aforesaid personnel;
3. evidence that the (estimated) budget funding (including
self-raised funds) for the loan project has wholly
materialized;
4. approval documents for the project land use, planning,
construction design proposals;
5. project work commencement approval issued by the
governmental department in charge;
6. documents evidencing registration of debts issued by foreign
exchange administrative department.
(6) none of the events of default specified in Article 12 has
occurred;
(7) other drawdown conditions specified by law and agreed upon by the
parties have been satisfied.
ARTICLE 6 TIME FOR DRAWDOWN
Borrower shall follow the time provided in sub-clause (1) below for
drawdown:
(1) Borrower shall drawdown the loan in a lump-sum on January 31,
2005.
(2) Borrower shall drawdown the entire amount as agreed in this
Contract within ____ months from ____ year ____ month ____ day. The Lender has
the right not to disburse any portion that is not drawn down after the
above-mentioned time. If the Lender agrees to disburse the loan, the Lender has
the right to impose a liability fee upon the portion drawn late based on the
ratio of ____ per day; for the portion that the Lender refuses to disburse, the
Lender has the right to collect a liability fee based on the ratio of ____.
ARTICLE 7 DRAWDOWN FORMALITIES
Prior to each drawdown, the Borrower shall submit a drawdown application as
requested by the Lender and handle other drawdown formalities.
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ARTICLE 8 REPAYMENT
The Borrower must strictly comply with the following repayment schedule to
repay the loan under this Contract:
Number of
Installment Payments Repayment Date Repayment Amount Repayment Time Repayment Date Repayment Amount
-------------------- -------------- ---------------- -------------- -------------- ----------------
1 July 31, 2005 USD2 Million
If the Borrower needs to adjust any part of the above repayment schedule,
it must submit a written application ____ days in advance before the due date of
the corresponding loan. Unless otherwise agreed, any change in the repayment
schedule must be mutually confirmed by the parties in writing.
In the event several loan contracts between the Borrower and the Lender are
due, the Lender has the right to determine the order in which the contracts are
performed by each of the Borrower's repayments.
The Borrower may make loan prepayment, but it should notify the Lender ____
days in advance. The Lender is entitled to calculate and receive a compensation
fee equal to ___% of the interest that should be payable on the prepaid portion.
The prepaid amount shall first be used to repay the loan that matures the last,
and repayments are applied to the loans in reverse order of the maturities of
such loans. The Borrower may not ask to re-draw and re-use the portions that the
Lender has agreed to be prepaid.
ARTICLE 9 SECURITY
All the debts under this Contract shall be secured by the first manner
below:
(1) Wuxi [illegible handwritings] Investment Guarantee Company Limited
shall provide joint liability repayment guarantee and shall separately enter
into a "Guarantee Contract," the number of which is 05013.
(2) ______________ shall provide mortgage security and separately
enter into a "Mortgage Contract," the number of which is ___________.
(3) ______________ shall provide pledge security and separately enter
into a "Pledge Contract," the number of which is ___________.
If the guarantor's financial situation deteriorates or other reason causes
the debt repayment ability to drop visibly, or the mortgaged or pledged property
decreases in value, is destroyed or damaged, or is destroyed or lost, causing
the securing ability to visibly decline or disappear, the Lender has the right
to demand the Borrower to replace the guarantor or to provide new property for
mortgage or pledge, in order to secure the debt under this Contract.
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ARTICLE 10 INSURANCE
The Borrower shall insure with insurance companies agreed to by the Lender
the facilities, engineering construction, goods transportation in connection
with the project or trade under this loan and the risk during the operation
period of the project, and the types of the insurance shall comply with the
Lender's requirement and the insured amount shall not be less than the loan
principal. The Borrower shall assign the rights and benefits under the insurance
to the Lender and deliver the original copy of the insurance policy to the
Lender within ____ days after this Contract becomes effective. Prior to the full
settlement of the loan principal, interest and fees under this Contract, the
Borrower may not terminate the insurance for whatever reason. In the event the
Borrower terminates the insurance, the Lender has the right to continue the
insurance or to insure on its behalf whereupon all the cost shall be borne by
the Borrower. The Borrower shall be liable to the Lender for all losses caused
by the termination of the insurance.
The Borrower shall notify the Lender in writing within 3 days after the
Borrower has known, or should have known, the occurrence of the insurance
incident, and it shall promptly submit its claim to the insurer in accordance
with the relevant provisions of the insurance policy; losses caused to the
Lender due to the failure of timely notification or timely claim or due to
non-performance of the obligations under the insurance policy shall be borne by
the Borrower.
The insurance payout shall first be applied to repay the loan principal and
interest and other payable fees; however, the Lender may, by considering the
project situation, determine whether or not the insurance payout can continue to
be used on the project or trade supported by the loan; if the insurance payout
is insufficient to pay the loan principal and interest owed, it shall not
constitute the reason to exempt the Borrower from repaying the payable debt.
ARTICLE 11 REPRESENTATIONS AND COVENANTS
The Borrower represents as follow:
(1) The Borrower is registered in accordance with the law and legally
exists.
(2) The Borrower has obtained the authorization required to execute
this Contract.
(3) All the documents, information, statements and evidence provided
by the Borrower to the Lender are accurate, true, complete and valid.
(4) The Borrower has not concealed any of the following situations
that have occurred or are occurring and that are possible to affect the judgment
on its repayment ability:
1. material events of discipline violation, illegality or being
sued for compensation involving the Borrower or its main
leaders;
2. the event of the Borrower's default under other contracts;
3. debt or contingent debt undertaken by the Borrower or
mortgage or pledge security provided to a third party by the
Borrower;
4. outstanding litigation and arbitration cases;
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5. other situations that may possibly affect the financial
condition and debt repayment ability of the Borrower.
The Borrower covenants as follow:
(1) As requested by the Lender, to provide the most current financial
statements every month; in the first quarter of every year, to provide the
audited financial statements for the preceding year; as requested by the Lender,
to provide at any time documents and information that include, but are not
limited to, reports, statements, etc. on the operational situation and financial
situation of the Borrower.
(2) If the Borrower has entered into, or is going to enter into, a
counter-guarantee agreement or similar agreement with the guarantor of this
Contract in relation to the guarantee obligation of such guarantor, such
agreement will not harm any of the Lender's rights under this Contract.
(3) To accept credit checks and supervisions by the Lender and to
provide sufficient assistance and cooperation.
(4) If the Borrower reduces the registered capital or carries out
material change of property right and adjustment to the mode of operation
(including but not limited to entering into equity joint venture or contractual
joint venture with foreign enterprises; division, consolidation, merge other
entities into itself, being merged into other entities; reorganization,
organization or reconstruction into a joint stock company; carrying out changes
in operation manner such as leasing, subcontracting, joint operation,
commissioning, etc.), the Borrower is required to notify the Lender in advance.
If the abovementioned acts will adversely affect the Borrower's repayment
ability, the Lender's consent must be obtained.
(5) The Borrower shall not deal with its own property in a manner that
reduces its repayment ability. When the Borrower provides guarantee to a third
party or use its own assets to set-up a mortgage or pledge security, it will
timely notify the Lender and it promises that the total debt amount that is so
secured shall not exceed ____________ times of its own net assets.
(6) The repayment order for the Lender's debt by the Borrower shall
take priority to the loans made to the Borrower by the Borrower's shareholders,
and shall not be inferior to the same type of debts of other creditors;
- Before the Borrower applies for loans in other banks or
increases other debts, it should obtain the Lender's written
consent. (This provision is an optional provision, and is
mainly suitable for use in business unit loans)
- In real property development project in which this loan is
used by the Borrower, the business volume for individual
housing consumer loans obtained at the place of the Lender
shall make up over ____ of the total volume of the
individual housing consumer loans in such a real property
development project. (This provision is an optional
provision, and is suitable for use in real property project
loans)
- With respect to real property projects developed by the
Borrower, the construction work contractor has not advanced
capital for the project
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construction. If the contractor has made advance capital,
the Borrower has provided the Lender with the written
document in relation to the contractor waiving its priority
in receiving payment for its construction work advance
payment. (This provision is an optional provision, and is
suitable for use in real property project loans)
(7) The Borrower covenants to timely notify the Lender when the
following events occur:
1. An event of default under this Contract or any other
contracts occurs;
2. The Borrower undergoes changes in organizational/ownership
relationship, changes in senior management personnel,
amendment to the company's articles of association of the
company and material adjustment to internal organization;
3. Difficulties appears in the Borrower's operation and its
financial situation deteriorates;
4. The Borrower is involved in a material litigation or
arbitration case;
5. There is occurrence of other situation that affects its
repayment ability.
(8) No later than ____ days before the due date for each principal and
interest payment, the Borrower shall deposit sufficient funds to prepare for
payment.
(9) The Borrower shall administer the relevant settlement business
under this loan at the Lender or other branch organization of Bank of China, and
the volume of its settlement business shall reach the requirement of the Lender.
(10) When the after-tax net profit of the relevant fiscal year is zero
or negative, or the after-tax profit is insufficient to make up for the
cumulative losses of the past fiscal years, or the before-tax was not used in
repaying the principal, interest and fees that should be settled by the Borrower
during such fiscal year or the before-tax profit is insufficient to settle the
principal, interest and fees of the next installment, the Borrower may not in
any manner distribute dividends and bonuses to the shareholders.
(11) Timely attend to foreign exchange loan registration, verification
and approval of the repayment of the principal and interest and other
formalities at the foreign exchange administrative bureau.
ARTICLE 12 EVENTS OF DEFAULT AND HANDLING OF DEFAULTS
If the Borrower fails to timely make full payment of interest, the Lender
has the right to impose compound interest on the amount of outstanding interest
in accordance with the interest rate and method of the interest calculation for
the loan principal.
If the loan principal or interest is overdue, the Lender has the right to
impose an additional penalty interest on the overdue portion from the date the
same is overdue based on a ratio of 20% over the original interest rate. If the
original loan adopts floating interest rate, the corresponding overdue loan
interest rate as to be additionally imposed shall be based on the new floating
rate, while the original floating period and the floating interest calculation
method remain unchanged. If the original loan adopts a fixed interest rate,
additional imposition shall be made on the basis of the original loan contract
interest rate.
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If the Borrower fails to use the loan for the purpose as stipulated by this
Contract, the Lender has the right to impose an additional penalty fees on the
misappropriated portion of the loan based on a ratio of 50% of the original
interest rate.
Under one of the following circumstances, the Lender has the right to stop
the Borrower from making drawdown of loan or cancel the loan limit yet to be
drawn down, and declare that the entire principal and interest under this
Contract becomes immediately due and payable:
(1) The Borrower defaults in paying principal or interest for over ___
days;
(2) The Borrower is overdue and misappropriated a loan sum amounting
to ___________;
(3) The representations of the Borrower in Article 11 are untrue or
the Borrower breaches the covenants it gives;
(4) The Borrower commits events of default under other contracts;
(5) The guarantor, the mortgagor, or the pledgor commits an events of
default under the security contract, affecting the Borrower in its performance
of the obligations under this Contract;
(6) The Borrower ceases its business, or events of dissolution,
de-registration or bankruptcy occur;
(7) The financial situations of the Borrower or the guarantor
seriously deteriorate;
(8) The mortgaged or pledged property has decreased in value, been
destroyed or damaged, destroyed or lost, or subject to a closing-down order or
been frozen, and the Borrower fails to provide new security as demanded by the
Lender;
(9) The progress of the construction of the project is seriously
behind schedule, or the construction cost of the project exceeds the budget
level that is acknowledged by and acceptable to the Lender;
(10) The quality of the construction of the project does not meet
State or industry standards.
ARTICLE 13 DEDUCTION
The Borrower agrees that any amount payable under this Contract by the
Borrower may be deducted directly by the Lender from the Borrower's accounts
established with the various institutions of Bank of China.
ARTICLE 14 TAXATION
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Taxes and fees in relation with the entering into, performance and dispute
resolution of this Contract, including but not limited to stamp duty, interest
withholding tax, litigation fee, enforcement fee, attorney agency fee,
notarization fee, etc. shall be paid or reimbursed by the Borrower.
ARTICLE 15 SET-OFF, ASSIGNMENT AND RIGHT RESERVATION
The Borrower shall fully pay for the payable amount under this Contract and
shall not claim set-off, unless the Lender consents.
Without the written consent of the Lender, the Borrower shall not assign
its obligations under this Contract to a third party.
Any forbearance, time extension, concession or delay in exercising any
rights under this Contract shall not in any way affect, damage or limit any
rights and benefits that the Lender enjoys in accordance with this Contract and
the laws and regulations and it shall not be deemed as a waiver of rights and
interests of this Contract by the Lender and it shall not exempt the Borrower
from any obligations that the Borrower should bear under this Contract.
ARTICLE 16 MODIFICATION AND RESCISSION
This Contract can be amended, supplemented or rescinded through written
consent of the parties. Any amendment and supplement to this Contract forms an
integral part of this Contract.
The invalidity of any provisions of this Contract shall not affect the
validity of other provisions.
ARTICLE 17 APPLICABLE LAW, DISPUTE RESOLUTION AND JURISDICTION
The law of the People's Republic of China is applicable to this Contract.
All disputes or issues arising from the performance of this Contract or in
connection with this Contract shall be resolved through consultation by the
parties. If consultation fails, the parties agree to adopt the method provided
in (1) below for resolution:
(1) directly bring a law suit in accordance with the law to the
People's court where the Lender is situated.
(2) Submit it to the __________________ arbitration commission for
arbitration.
ARTICLE 18 APPENDIX
The following appendixes and other appendixes mutually confirmed by the
parties form an integral part of this Contract, and have equal validity as this
Contract.
(1) __________________;
(2) __________________;
(3) __________________;
(4) __________________.
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ARTICLE 19 TAKING EFFECT OF THE CONTRACT
This Contract shall take effect after it is signed and affixed with seals
by the legal representative or authorized signatory of both the Borrower and the
Lender.
This Contract is made out in two originals. The Borrower and the Lender
each holds one original, which is equally valid.
ARTICLE 20 SPECIAL NOTES
The Borrower has fully consulted with the Lender on all the terms and
conditions of this Contract.
The Lender has asked the Borrower to pay special attention to all the terms
and conditions relating to the rights and obligations of both parties and to
fully and accurately understand them. The Lender has provided the corresponding
explanation to the aforementioned terms and conditions as requested by the
Borrower.
The understandings of the terms and conditions of the Contract by the
signing parties completely match.
Borrower: (company seal) Lender: (company seal)
Legal Representative Legal Representative
(or authorized signatory) (or authorized signatory)
/s/ [company chop] /s/ [company chop]
------------------------------------- ----------------------------------------
January 31, 2005 January 31, 2005
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