EXHIBIT 4.7
English translation
For reference only
LONG-TERM LOAN AGREEMENT
Contract No.: 2005 Year Development Zi No. 0048
Borrower (Party A): Wuxi Suntech Power Co., Ltd.
Domicile (Address): 00-0 Xxxxxxxxxx Xxxxx Xxxx, Xxx Xxxx
Legal Representative: Li Yanren
Lender (Party B): Industrial and Commercial Bank of China, Wuxi Branch
Domicile(Address): 00 Xx'xx Xxxx
Legal Representative (Person In-Charge): Hu Weiyi
Party A, due to its need as stated in Article 3.1 of this Contract, applies
for a loan from Party B. Party B agrees to provide a loan to Party A. To clarify
and confirm the rights and obligations of the parties, in accordance with
Contract Law, General Rules on Loans, and other relevant laws and regulations,
based on equality and through consultation in reaching consensus, Party A and
Party B enter into this Contract.
ARTICLE 1 PARTY A'S REPRESENTATIONS AND WARRANTIES
1.1 It is legally established, is an entity with legal person status (or it is a
subsidiary organization legally authorized by a legal person), and has the right
to execute this Contract in accordance with law.
1.2 The proposed project to be constructed using the loan under this Contract
has obtained the relevant approval from the relevant governmental authority.
1.3 The various accounting statements and information provided by Party A on the
project loan investigation, assessment and examination, and management are true,
accurate and complete.
ARTICLE 2 TYPES OF LOAN
2.1 The loan under this Contract is a fixed asset loan.
ARTICLE 3 PURPOSE OF THE LOAN
3.1 The loan under this Contract is to be used for the following purpose: the
new factory area solar power cell construction project.
3.2 Without the written consent of Party B, Party A cannot change the purpose of
the loan as specified in this Contract.
ARTICLE 4 LOAN AMOUNT AND TERM
4.1 The loan amount under this Contract shall be Renminbi (in full-form
characters) Fifty Million, (in short-form) RMB50,000,000 (in case of
inconsistency between the full-form and short-form characters, the full-form
characters shall prevail, as are the cases below).
4.2 The term of the loan under this Contract shall be 36 months from March 31,
2005 to March 28, 2008.
ARTICLE 5 LOAN INTEREST RATE AND INTEREST CALCULATION
5.1 The loan interest rate under this Contract shall be determined once a year:
5.1.1 The interest rate for the first year shall be 5.76% per annum (including
all of the loans separately disbursed within one year from the effective date of
this Contract);
5.1.2 The interest rate for the second year and thereafter (for cases of
separate disbursements, the disbursement date for the first loan shall prevail)
shall be determined in accordance with the law pursuant to the then legally
fixed interest rate of corresponding grade, and Party A shall be notified in
writing within 30 days from the date the interest rate is changed. However,
whether or not the notice is delivered, it shall not affect performance.
5.2 Interests are calculated daily on the loan under this Contract and settled
quarterly. Interest settlement date is the 20th day of the last month of the
quarter. When the loan matures, interest is settled together with the principal.
5.3 Interest of the loan under this Contract shall be calculated from the date
it is drawn.
5.4 If, during the performance of this Contract, People's Bank of China adjusts
the loan interest rate and that it applies to the loan under this Contract,
Party B shall, without being required to notify Party A, calculate the interest
based on such adjusted interest loan rate and manner in accordance with such
stipulation.
ARTICLE 6 CONDITIONS FOR DRAWDOWN
6.1 Prior to each drawdown, Party A shall satisfy the following conditions:
6.1.1 The guarantee contract is legally established and has taken effect;
6.1.2 The capital fund or other fund that should be raised for the project
developed by the loan under this Contract has been put in place in full pursuant
to the stipulated time and proportion;
6.1.3 There has been no budget deficit or the budget deficit has been resolved
through raising capital on its own;
6.1.4 The construction progress has been on schedule;
6.1.5 It has conducted the drawdown formalities with Party B in accordance with
the provisions of the Contract;
6.1.6 There has been no occurrence of events of default stipulated by this
Contract;
6.1.7 It has provided other relevant material for administering the loan as
requested by Party B.
ARTICLE 7 DRAWDOWN ARRANGEMENTS
7.1 The manner of drawdown of the loan under this Contract shall be implemented
in accordance with sub-clause ________ below:
7.1.1 Party A shall draw the loan on ______ year _____ month _____ day in a
lump-sum, and it shall place the entire loan into the account opened with Party
B;
7.1.2 Party A shall draw the loan in ______ installments, the specific drawdown
amount and date shall be as follows:
7.1.2.1 On March 31, 2005, in the amount of (in full-form characters) Twenty
Million Yuan (in short-form: 20,000,000 Yuan);
7.1.2.2 On _____ year _____ month _____ day, in the amount of (in full-form
characters) ___________ (in short-form: _______ Yuan);
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7.1.2.3 On _______ year________ month ______ day, in the amount of (in full-form
characters) (in short-form: ______ Yuan);
7.1.2.4 On _________ year ________ month _______ day, in the amount of (in
full-form characters) (in short-form: ________ Yuan);
7.1.2.5 On _________ year _________ month _________ day, in the amount of (in
full-form characters) (in short-form: _________ Yuan);
7.2 Party A shall draw the loan in accordance with Article 7.1 of this Contract.
If there is any special reason, it shall submit a written application, and after
receiving Party B's written consent, Party A may drawdown _________ days ahead
of or later than the original scheduled date.
7.3 If Party A asks to cancel all or part of the loan yet to be drawn, Party A
should submit a written application to Party B 30 days before the drawdown date
specified by this Contract, and cancellation can be effected only after Party B
consents in writing.
7.4 The specific drawdown date and repayment date of this Contract shall be
determined by the actual date as listed on the promissory note administered by
Party A and Party B. The promissory note or the evidence proving the drawdown of
the loan amount forms an integrated part of this Contract. Other than dates, in
the event other matters stated thereon are inconsistent with this Contract, this
Contract shall prevail.
ARTICLE 8 SOURCE OF THE REPAYMENT FUND AND REPAYMENT
8.1 Party A's sources of funds for repayment of the loan principal and interest
under this Contract include but are not limited to:
8.1.1 the proceeds from the project;
8.1.2 others;
8.2 Notwithstanding any provisions on Party A's sources of funds for repayment
in any other contracts to which Party A is a party, such provisions may not
affect Party A's loan repayment obligations under this Contract. Under no
circumstances whatsoever may Party A use Article 8.1 to refuse performing its
loan repayment obligations under this Contract.
8.3 Party A shall fully pay interests quarterly in accordance with the
provisions under this Contract, and it shall repay the loan principal in
accordance with following sub-clause __________;
8.3.1 Repay the principal in one lump sum, and Party A shall repay the full
amount of the loan principal on _________ year _________ month _________day;
8.3.2 Repay the principal in installments, and the specific times and amounts
are as follow:
8.3.2.1 On June 29, 2006, in the amount of (in full-form characters) Ten Million
Yuan (in short-form: 10,000,000 Yuan);
8.3.2.2 On December 29, 2006, in the amount of (in full-form characters) Ten
Million Yuan (in short-form: 10,000,000 Yuan);
8.3.2.3 On _________ year _________ month _________ day, in the amount of (in
full-form characters) _________ (in short-form: _________ Yuan);
8.3.2.4 On _________ year _________ month _________ day, in the amount of (in
full-form characters) _________ (in short-form: _________ Yuan);
8.3.2.5 On _________ year _________ month _________ day, in the amount of (in
full-form characters) _________ (in short-form: _________ Yuan);
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8.4 For cases where Party A makes prepayment, it should submit written
application to Party B 30 days before the intended prepayment date and it should
obtain Party B's written consent;
8.5 For cases where Party A makes prepayment, it should be done after Party B
consents, and the prepayment amount may not be less than 10,000 Yuan, and it
shall be a multiple of _________ 0,000 yuan.
8.6 The principal that is prepaid by Party A shall be applied to the loans in
reserve order of repayments stipulated under Article 8.3.2 of this Contract.
8.7 Party A shall, prior to the interest settlement date or the principal
repayment date as stipulated in this Contract, get ready in the account
established with Party B sufficient fund for the interests and principal to be
paid for that period, and Party A shall authorize Party B such that on the
agreed interest settlement date or principal repayment date, Party B may, at its
own initiative, debit and receive the fund from Party A's account.
ARTICLE 9 SECURITY
9.1 The manner of security for the loan under this Contract is: mortgage on land
and buildings and factories. Credit.
9.2 Party A is obliged to proactively assist Party B and procure that Party B
and the security provider enter into a security contract (the number of which is
_________) in respect of concrete matters regarding security under this
Contract,
9.3 If the security under this Contract undergoes changes that are adverse to
Party B's credit rights, then upon Party B's notification, Party A should
separately provide security to the satisfaction of Party B.
ARTICLE 10 RIGHTS AND OBLIGATIONS OF THE PARTIES
10.1 Party A's rights and obligations:
10.1.1 Party A shall draw and use the loan in accordance with the time limit and
the purpose of the loan stipulated in this Contract;
10.1.2 Without Party B's written consent, Party A may not make loan prepayment;
10.1.3 Party A, on its own initiate, shall accept Party B's investigation,
understanding and supervision on the situation of the use of the loan under this
Contract;
10.1.4 Party A shall actively accommodate Party B in respect of Party B's
investigation, understanding and supervision on the production, operation,
project construction situation and financial situation, and is obligated to
provide Party B with statements and information relating to the profit and loss
statement, assets and liabilities balance sheet, etc. for the various relevant
periods;
10.1.5 Party A shall actively support Party B's participation in relevant
matters such as the reviews of the 'three accountings' (estimation accounting,
budgeting accounting, final accounting) of the loan project, construction
bidding and acceptance inspection upon completion of the construction, etc.;
10.1.6 Party A shall repay the principal and interest of the loan in accordance
with the provisions of this Contract;
10.1.7 Party A shall bear the expenses of the relevant fees under this Contract,
including but not limited to the fees used for matters relating to notarization,
authentication, evaluation, registration, etc. Party A shall perform the loan
liabilities in this order: fees, penalty interest, compound interest, and
principal;
10.1.8 Return the receipt to Party B within 3 days after acknowledging receipt
of reminder letters or reminder documents mailed or delivered by other means by
Party B;
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10.1.9 If Party A undergoes commissioned leasing, restructuring into a
joint-stock shareholding system, joint operation, consolidation, merger, joint
venture, division, capital reduction, variation in equity interest, material
asset transfer and other actions that will sufficiently affect the realization
of Party B's rights and interests, Party A should notify Party B at lease 30
days in advance and obtain Party B's written consent; otherwise, it shall not
proceed with the above-mentioned actions prior to the full settlement of the
debt;
10.1.10 For changes to industry and business registration matters such as
domicile, correspondence address, business scope, legal representative, etc.,
Party A should notify Party B in writing seven days after a relevant matter is
changed;
10.1.11 If there is occurrence of any other matters that constitute risks to
Party A's normal operation or cause material and adverse effect on its
performance of the repayment obligations under this Contract, including but not
limited to involvement in material economic dispute, bankruptcy, deterioration
in financial situations, etc., Party A shall immediately notify Party B in
writing;
10.1.12 In the event of business cessation, dissolution, cessation of business
for reorganization, business license being revoked or cancelled, within five
days after the occurrence of the event, Party A shall notify Party B in writing,
and Party A shall guarantee to immediately repay the loan principal and
interest.
10.2 Party B's rights and obligations:
10.2.1 Party B may request Party A to provide all the information relating to
this loan;
10.2.2 Party B may, in accordance with the stipulations provided herein or
provided by the law, deduct from Party A's account the loan principal, interest,
compound interest, penalty interest and all the other payable fees as agreed to
be paid by Party A under this Contract; the order for such deduction by Party B
shall be: fees, penalty interest, compound interest and principal.
10.2.3 For Party A's avoidance of Party B's supervision, Party A's falling into
arrears in repaying loan principal and interest, or other serious acts of
default, Party B has the right to impose credit sanction, notify the relevant
department or unit, and press for payment through public announcements in news
media;
10.2.4 Party B shall provide Party A with the full amount of the loan according
to the time schedule as agreed under this Contract (save and except when the
delay arises due to reasons attributable to Party A);
10.2.5 Unless it is otherwise provided in this Contract and unless stipulated by
the laws and regulations, the information and situation provided by Party A
regarding areas such as its debts, finance, production, operation etc. shall be
kept confidential by Party B.
ARTICLE 11 LIABILITIES FOR DEFAULT
11.1 After this Contract becomes effective, Party A and Party B shall perform
its respective obligations as agreed in this Contract. Any party who fails to
perform or fails to completely perform the obligations stipulated under this
Contract shall bear liabilities for default in accordance with the law.
11.2 If Party A fails to handle and effect the loan withdrawal in accordance
with Article 7.1 of this Contract, Party B has the right to, on a daily basis,
calculate and collect a delay default penalty based on the contract interest
rate;
11.3 If Party B fails to handle and effect the loan disbursement in accordance
with Article 7.1 of this Contract, Party B shall on a daily basis pay a delay
default penalty based on the contract interest rate.
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11.4 If Party A makes prepayment of the loan under this Contract without the
written consent of Party B, Party B has the right to calculate and collect
interest according to the term and interest rate of the loan in accordance with
the provisions of this Contract.
11.5 If Party A fails to repay the principal and interest of the loan when they
are due under this Contract, then Party B has the right to set a time limit for
repayment and has the right to exercise the right of set-off against the funds
in all the accounts that Party A has opened with Party B. At the same time,
Party B shall have the right to calculate and collect interest, on a daily
basis, based on /10000 of the overdue loan and to calculate and collect compound
interest on the unpaid interest.
11.6 In the event Party A fails to use the loan for the agreed purpose in this
Contract, Party B shall have the right to cease disbursing the loan, recall part
or all of the loan or discharge the Contract, and to calculate and collect
interest, on a daily basis, 1/10000 of the loan used in breach of contract
according to the number of days that the loan is used in breach of contract. For
unpaid interest, Party B shall calculate and collect compound interest.
11.7 In Party A's use of the loan, if situations listed in Article 11.5 and 11.6
occur concurrently, Party B shall choose the more severe punishment and cannot
impose both punishments at the same time.
11.8 If Party A commits any of the following acts, then within seven days after
Party A receives notification from Party B, Party A shall make rectification and
adopt remedial measures satisfactory to Party B. Otherwise, Party B has the
right to stop or cancel the loan yet to be withdrawn and used and Party B has
the right to recall part or all of the loan ahead of schedule. For any portion
that the Party B fails to recall, a default penalty shall be calculated and
collected on a daily basis in accordance with overdue loan interest rate:
11.8.1 Provide assets and liabilities balance sheet, profit and loss statement
and other financial information that are untrue or conceal material facts;
11.8.2 Fail to accommodate, or refuse to accept, Party B's supervision on the
situation of the loan use and the relevant production operation and financial
activities;
11.8.3 Without the consent of Party B, Party A assigns or disposes of, or
threatens to assign or dispose of, material parts of its assets;
11.8.4 The material parts of its assets or the entire assets are possessed by
other creditors, or being subject to management by designated custodian,
receiver or similar persons or its property are seized or frozen, which may
cause serious losses to Party B;
11.8.5 Without the consent of Party B, Party A conducts contracting, leasing,
restructuring into joint-stock system, joint operation, consolidation, merger,
joint venture, division, capital reduction, variation in equity interest,
material asset transfer and other actions that are sufficient to affect the
realization of Party B's rights and interests and threaten the security of Party
B's creditor rights;
11.8.6 There are changes in industry and business registration matters such as
domicile, correspondence address, business scope, legal representative, etc., or
there are occurrences of situations such as material external investments, etc.
that seriously affect or threaten the realization of Party B's creditor rights;
11.8.7 Involvement in a material economic dispute or deterioration in financial
situations etc., causing serious impact or threat to the realization of Party
B's creditor rights;
11.8.8 Any other situation that may cause a threat or serious loss to the
realization of the Party B's creditor rights under the loan Contract.
ARTICLE 12 EFFECTIVENESS, AMENDMENT, RESCISSION AND TERMINATION OF CONTRACT
12.1 This Contract shall come into force after it is signed and sealed by Party
A and Party B. If it is secured, it shall take effect after the coming into
effect of the security contract, until
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it is terminated on the date the principal, interest, compound interest, penalty
interest, default fees and all other payable fees are completely settled.
12.2 In any one of the following circumstances, Party B has the right to rescind
this Contract and request Party A to repay the loan principal and interest ahead
of schedule and to compensate for Party B's losses:
12.2.1 In the event of Party A's business cessation, dissolution, cessation of
business for reorganization, business license being revoked or cancelled;
12.2.2 The security under this Contract has undergone changes adverse to Party
B's creditor rights and Party A fails to separately provide the required
security demanded by Party B;
12.2.3 Other serious behaviors of default.
12.3 If Party A requests an extension period for the loan, it should submit a
written request to Party B 30 days prior to the due date of this Contract and
provide a written opinion of the security provider agreeing to continue to
provide security. Only after the review and consent by Party B and after the
execution of an extension agreement may the loan under this Contract be
accordingly extended. Prior to the execution of an extension agreement by the
parties, this loan Contract shall continue to be performed.
12.4 After this Contract is effective, unless otherwise stipulated herein,
neither Party A nor Party B shall on its own unilaterally amend this Contract or
rescind this Contract prematurely. If there is an actual need to amend or
rescind this Contract, it shall be done by unanimous consultation of the parties
and by reaching a written agreement. Before reaching the written agreement, this
Contract shall continue to be performed.
ARTICLE 13 DISPUTE RESOLUTION
13.1 Disputes arising out of the course of this Contract's performance shall
first be resolved by consultation between Party A and Party B. When consultation
fails, the dispute shall be resolved by the manner in the following sub-clause
______:
13.1.1 to be arbitrated by __________;
13.1.2 to resolve the dispute through litigation by submitting the case to the
local court where Party B is situated.
ARTICLE 14 OTHER MATTERS AGREED BY THE PARTIES
14.1 __________________________.
14.2 __________________________.
14.3. __________________________.
ARTICLE 15 MISCELLANEOUS
15.1 The appendix to this Contract forms an integral part of this Contract, and
has equal legal force as the main text of this Contract.
15.2 During the performance of this Contract, when a certain drawdown or
repayment date is a non-banking day, then it shall be extended to the next
banking day.
15.3 This Contract is made out in ______ originals. Party A and Party B each
holds _________ original(s), which have same legal effect.
15.4 Special declarations:
15.4.1 This template-form contract is provided by the lender, and the borrower
has perused, reviewed and studied this Contract in detail at the time this
Contract is signed, and it has complete notice of the provisions in this
Contract that relate to the exemptions of or limitations on the lender's
liabilities.
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15.4.2 The lender, in accordance with the borrower's request, has given
sufficient explanation on the provisions regarding the exemptions of or
limitations on the lender's liabilities, and the borrower completely comprehends
and appreciates the true meanings of such provisions. The terms and conditions
of this Contract express the true intentions of the parties to this Contract.
Borrower: (company seal) Lender: (company seal)
------------------------------------- ----------------------------------------
Legal Representative Legal Representative
(or authorized signatory) (or authorized signatory):
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[Chinese signature chop of [Company chop and contract chop
Xxx Xxxxxxxxx] of the lender]
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March 31, 2005 March 31, 2005
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