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Loan Agreement (Direct Loan)
다음은 한국산업은행의 대출계약 영문계약서 샘플이다.
LOAN AGREEMENT(Direct Loan)
US$ [?]
between
[Name of the Borrower]
as Borrower
and
THE EXPORT-IMPORT BANK OF KOREA
as Lender
Dated [?], 20[?]
TABLE OF CONTENTS
Page
Article 1. Definitions and Interpretation ??????????????????????????????????????????????????? 2
Article 2. The Facility ?????????????????????????????????????????????????????????????????????????4
Article 3. Disbursement ?????????????????????????????????????????????????????????????????????? 4
Article 4. Interest and Default Interest ????????????????????????????????????????????????????? 6
Article 5. Fees and Expenses ???????????????????????????????????????????????????????????????? 7
Article 6. Repayment and Prepayment ????????????????????????????????????????????????????? 8
Article 7. Payments and Currency ????????????????????????????????????????????????????????? 10
Article 8. Conditions Precedent ?????????????????????????????????????????????????????????????11
Article 9. Representations and Warranties ??????????????????????????????????????????????? 13
Article 10. Covenants ??????????????????????????????????????????????????????????????????????? 15
Article 11. Events of Default ????????????????????????????????????????????????????????????????16
Article 12. Governing Law and Jurisdiction ??????????????????????????????????????????????17
Article 13. Miscellaneous ????????????????????????????????????????????????????????????????????18
Annex A Promissory Note ???????????????????????????????????????????????????????????????????22
Annex B Letter of Guarantee ????????????????????????????????????????????????????????????????24
Annex C Request for Disbursement ????????????????????????????????????????????????????????26
Annex D Certificate of Authority ???????????????????????????????????????????????????????????27
Annex E Opinion of Counsel to Borrower ????????????????????????????????????????????????28
Annex F Opinion of Counsel to Guarantor ????????????????????????????????????????????????30
Annex G Acceptance Letter of Process Agent ????????????????????????????????????????????32
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of [DATE] by and between :
[?] (the "Borrower"), a corporation duly organized and existing under the laws of [Name of the Country] with its registered head office at [?] ; and
The Export-Import Bank of Korea (the "Lender"), a bank duly organized and existing under the laws of the Republic of [Name of the Country] with its registered head office at 16-1, Yoido-dong, Youngdungpo-gu, Seoul, Korea.
WHEREAS the Borrower and [?] (the "Supplier"), a corporation organized and existing under the laws of [?] with its registered head office at [?], have entered into a contract dated [?] (the "Contract") providing for the supply by the Supplier and the purchase by the Borrower of [?] (the "Plant");
WHEREAS, under the Contract, the Borrower is required to pay to the Supplier the contract price in the amount of [?] U.S. Dollars (US$ [?] ) (the "Contract Price"), and the Borrower is prepared to pay [?] percent ( [?] %) of the Contract Price to the Supplier as advance payment;
WHEREAS the Borrower has requested the Lender to extend a loan in an aggregate principal amount not exceeding [?] U.S. Dollars (US$ [?] ) to finance the Borrower's payment of [?] percent ( [?] %) of the Contract Price to the Supplier ; and
WHEREAS, subject to the terms and conditions of this Agreement, the Lender has agreed to extend to the Borrower the loan so requested by the Borrower.
NOW, THEREFORE, the Borrower and the Lender agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions
The following terms shall, unless the context otherwise requires, have the following meanings whenever used in this Agreement:
(a) "Acceptance Date" means the earlier of (ⅰ) the date of acceptance of the Plant by the Borrower in accordance with the terms of the Contract and (ⅱ), [?], 20[?] or such later date as may be agreed upon between the Borrower and the Lender.
(b) "Banking Day" means a day on which banks are open for business in Seoul, New York and [?] .
(c) "Disbursement" means each disbursement of the Facility made in accordance with the provisions of this Agreement or the principal amount of such disbursement, as the context may require.
(d) "Disbursement Documents" means, with respect to each Disbursement, the copy of the commercial invoice, bill of lading or statement of performance, which the Supplier is required to submit to, or receive from, the Borrower in order to obtain payment of all or any portion of the Contract Price under the Contract.
(e) "Event of Default" means any of the events specified in Section 11.1.
(f) "Facility" means the loan facility to be made available in favor of the Borrower under this Agreement or, where the context so requires, the amount of such loan facility.
(g) "Guarantee" means the absolute and unconditional letter of guarantee to be issued by the Guarantor in favor of the Lender in accordance with the provision of Section 6.3.
(h) "Guarantor" means [?] , a financial institution organized and existing under the laws of [?] and having its head office at [?] .
(i) "Indebtedness" means any obligation for the payment or repayment of money, whether present or future.
(j) "Interest Payment Date" means (ⅰ) [?] and [?] in each year before the first Repayment Date; and (ⅱ) each Repayment Date.
(k) "Interest Period" means the period commencing on the date on which each Disbursement is made and ending on the date immediately preceding the next Interest Payment Date; and thereafter the period commencing on an Interest Payment Date and ending on the date immediately preceding the next Interest Payment Date.
(l) “Interest Rate" means the interest rate set forth in Section 4.1.
(m) "Korea" means the Republic of Korea.
(n) "Loan" means the aggregate principal amount of Disbursements from time to time outstanding.
(o) "Note" means the promissory note to be issued by the Borrower in favor of the Lender pursuant to Section 6.2.
(p) "Repayment Date" means each of the [?] ( [?] ) consecutive dates occurring semi-annually from and including the date which shall be [?] months following the Acceptance Date.
(q) "Request for Disbursement" means a written request of the Borrower, in the form of Annex C, to disburse the Facility.
(r) "U.S. Dollars" or "US$" means the lawful currency of the United States of America.
Section 1.2 Interpretation
(a) The table of contents and the headings of Sections of this Agreement are inserted for convenience of reference only and shall have no effect on the interpretation of any provision of this Agreement.
(b) References to a specified Section or Annex will be construed as references to that specified Section or Annex of this Agreement.
(c) Words indicating the singular will include the plural and vice versa where the context requires.
ARTICLE 2
THE FACILITY
Section 2.1 Amount of Facility
The Lender hereby establishes the Facility, upon the terms and conditions set forth in this Agreement, in favor of the Borrower in the aggregate amount of [?] U.S. Dollars (US$ [?] ).
Section 2.2 Purpose
The proceeds of the Facility shall be used exclusively to finance the Borrower's payment of [?] percent ( [?] %) of the Contract Price to the Supplier .
ARTICLE 3
DISBURSEMENT
Section 3.1 Disbursement Procedures
Upon satisfaction of all the conditions precedent set forth in Section 8.1 and Section 8.2, the Facility shall be disbursed by the Lender in accordance with the disbursement procedures set forth in this Article 3.
Section 3.2 Direct Payment Procedure
(a) The Borrower shall from time to time request the Lender to make Disbursements for the due amount under the Contract directly to the Supplier's account with a commercial bank selected by the Supplier.
(b) Each Request for Disbursement under this procedure shall be signed by an authorized representative of the Borrower and shall be accompanied by the Disbursement Documents related thereto.
(c) Within [?] Banking Days after the receipt by the Lender of the Request for Disbursement and the Disbursement Documents related thereto, the Lender shall pay the requested amount directly to the Supplier, which payment shall constitute a Disbursement hereunder as of the date of such payment.
Section 3.3 Letter of Credit Procedure
(a) With respect to the portion of the Contract Price to be financed by the Lender under this Agreement, the Borrower may arrange a documentary letter of credit (the "Letter of Credit") to be opened by a commercial bank in the Borrower's country in favor of the Supplier and advised through a commercial bank in Korea (the "Korean Bank"). The Letter of Credit shall be subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 and shall bear the following clause:
"This Letter of Credit is issued pursuant to the Loan Agreement dated [?] between [Name of the Borrower] and The Export-Import Bank of Korea."
(b) The reimbursement made by the Lender to the Korean Bank of its payment of a draft drawn under the Letter of Credit shall constitute a Disbursement as of the date and in the amount of such reimbursement.
(c) The negotiation under the Letter of Credit shall be restricted to the Korean Bank. The Lender shall not be responsible for any acts or omissions of the Korean Bank with respect to the Letter of Credit, including its failure to detect any non-compliance of or inconsistency in documents accepted in connection with the negotiation of the Letter of Credit.
Section 3.4 Reimbursement Procedure
(a) The Borrower may request the Lender that Disbursements be made to the Borrower's account with a commercial bank selected by the Borrower for the reimbursement of any payments which have been made by the Borrower to the Supplier in accordance with the terms of the Contract and are eligible for financing under this Agreement.
(b) Each Request for Disbursement under this procedure shall be signed by an authorized representative of the Borrower and shall be accompanied by the Disbursement Documents and the evidence of payment related thereto.
(c) Within [?] Banking Days after the receipt by the Lender of the Request for Disbursement and the Disbursement Documents related thereto, the Lender shall pay the requested amount to the Borrower, which payment shall constitute a Disbursement hereunder as of the date of such payment.
Section 3.5 Availability
Except as the Lender shall otherwise agree, no Disbursement shall be made by the Lender after the Acceptance Date.
Section 3.6 Notice of Disbursement
Upon each Disbursement made hereunder, the Lender shall notify the Borrower in writing of the date and amount of such Disbursement. Such notice shall, in the absence of manifest error, be conclusive evidence as to the date and amount of the Disbursement concerned.
ARTICLE 4
INTEREST AND DEFAULT INTEREST
Section 4.1 Interest
The Borrower shall pay to the Lender interest on the outstanding and unpaid principal amount of the Loan at the rate of [?] percent ( [?] %) per annum. Such interest shall be paid in arrears on each Interest Payment Date for each Interest Period, provided, however, that the first interest accrued from any Disbursement (other than the final Disbursement) made within [?] days prior to any Interest Payment Date may be paid on the next following Interest Payment Date.
Section 4.2 Default Interest
If the Borrower fails to pay any amount payable under this Agreement when due (whether at stated maturity, by acceleration or otherwise), the Borrower shall pay to the Lender default interest on such overdue amount at the rate equal to [?] percent ( [?] %) per annum above the Interest Rate for each day during the period from and including the due date thereof to but excluding the date of actual payment thereof, during which period interest shall not accrue pursuant to Section 4.1 on any such overdue principal.
Section 4.3 Computation
Interest and default interest shall be computed on the basis of the actual number of days elapsed and a year of 360 days.
ARTICLE 5
FEES AND EXPENSES
Section 5.1 Commitment Fee
(a) The Borrower shall pay to the Lender a commitment fee, payable on each Interest Payment Date, on the daily uncancelled and undisbursed portion of the Facility at the rate of [?] percent ( [?] %) per annum.
(b) Such commitment fee shall commence to accrue from and including [?], 20[?] and shall be computed on the basis of actual number of days elapsed and a year of 360 days.
Section 5.2 Credit Insurance Premium
The Borrower shall pay to the Lender the insurance premiums for the buyer credit insurance for the Loan in the same amount and at the same time as the Lender is required to pay to the [Korea Export Insurance Corporation]. The Lender shall notify the Borrower of the amount and due date of such insurance premium [?] days prior to each such due date.
Section 5.3 Expenses
(a) The Borrower shall reimburse the Lender on demand for all reasonable costs and expenses, including legal fees of counsel, incurred by the Lender in connection with the preparation, execution or amendment of this Agreement.
(b) The Borrower shall reimburse the Lender on demand for all reasonable costs and expenses, including legal fees of counsel, incurred by the Lender in demanding, suing for or recovering any sums due under this Agreement from and after the occurrence of an Event of Default.
(c) The Lender shall provide the Borrower with a reasonably detailed statement of costs and expenses to be reimbursed by the Borrower.
ARTICLE 6
REPAYMENT AND PREPAYMENT
Section 6.1 Repayment
The Borrower shall repay the Loan in [?] ( [?] ) equal, consecutive and semiannual installments on each Repayment Date, provided that the last installment shall be in the amount necessary to repay in full the Loan then outstanding.
Section 6.2 Promissory Note
(a) In order to evidence its obligations to repay the Loan and to pay interest thereon, the Borrower shall, within [?] days of the Acceptance Date, issue and deliver to the Lender a Note in the form of Annex A. The Note shall be in a principal amount equal to the amount of the Loan then outstanding.
(b) Upon the full payment of all sums payable on the Note, the Note shall be marked as fully paid and returned to the Borrower by the Lender.
Section 6.3 Guarantee
The Borrower shall, prior to the initial Disbursement, deliver or cause to be delivered to the Lender the Guarantee substantially in the form of Annex B and duly executed by the Guarantor.
Section 6.4 Voluntary Prepayment
(a) Upon giving not less than [?] days′prior written notice to the Lender, the Borrower may prepay all or any portion of the Loan together with all interest accrued to the date of prepayment on the amount prepaid and any other amount then payable under this Agreement.
(b) The amount of any partial prepayment shall be equal to the amount of an installment for repayment of the Loan or an integral multiple thereof. Such prepayment shall be applied to installments of the Loan in the inverse order of maturity. The Borrower shall not be entitled to reborrow under this Agreement any amounts so prepaid.
(c) The Borrower shall, simultaneously with any prepayment made under this Section, pay a prepayment premium of [?] percent ( [?] %) of the amount of principal to be prepaid.
Section 6.5 Mandatory Prepayment
If the Contract is terminated or cancelled for any reason before the Acceptance Date, the Borrower shall, without any premium or penalty, prepay to the Lender the Loan together with accrued interest thereon, unless the Lender shall otherwise agree.
ARTICLE 7
PAYMENT AND CURRENCY
Section 7.1 Place of Payment
All payments to be made by the Borrower under this Agreement shall be made in U.S. Dollars in immediately available funds to the account of the Lender with [Name and address of the Bank], (Account No. [?] ), or to such other account as the Lender may designate to the Borrower in writing not less than [?] days prior to the due date for any payment hereunder.
Section 7.2 Banking Day
If any payment to be made by the Borrower under this Agreement falls due on any day which is not a Banking Day, such payment shall be made on the immediately following Banking Day and interest thereon, if any, shall be adjusted accordingly.
Section 7.3 Payments to be Free and Clear
All sums payable by the Borrower under this Agreement shall be paid in full, without set-off or counterclaim or any restriction or condition, and free and clear of any tax or other deduction or withholding of any nature.
Section 7.4 Grossing-up of Payments
If the Borrower or any other person is required by any law or regulation to make any deduction or withholding (on account of tax or otherwise) from any payment under this Agreement, the Borrower shall, together with such payment, pay such additional amount as will ensure that the Lender receives the full amount which it would have received if no such deduction or withholding had been required.
Section 7.5 Application of Payments
If the amount of any payment made by the Borrower under this Agreement is less than the total amount due and payable in respect of such payment, the Lender shall have the right to apply the amount received towards principal, interest or other sums owing hereunder as the Lender considers appropriate.
Section 7.6 Loan Accounts
The Lender shall, in accordance with its usual practice, maintain a set of accounts recording the Disbursements, the repayments of the Loan, the computation and payment of interest and the payment of other amounts due hereunder. In any legal action or proceeding in respect of this Agreement, the entries made by the Lender in such accounts shall, in the absence of manifest error, be conclusive evidence of the existence and amounts of the obligations of the Borrower under this Agreement.
Section 7.7 Dollar Transaction
The payment of all amounts due hereunder in U.S. Dollars is of the essence of this Agreement, and such obligations shall not be discharged by any payment made in another currency, whether pursuant to a judgment or otherwise, to the extent that the amount of such payment on prompt conversion to U.S. Dollars under normal banking procedures does not yield the amount of U.S. Dollars due hereunder.
ARTICLE 8
CONDITIONS PRECEDENT
Section 8.1 Conditions to Initial Disbursement
As conditions precedent to the initial Disbursement hereunder, the following documents and evidence shall have been received by the Lender, in form and substance satisfactory to the Lender:
(a) Contract. An executed copy of the Contract;
(b) Certificate of Authority. Certificate of authority, substantially in the form of Annex D, of each person (i) who has signed this Agreement on behalf of the Borrower, and (ii) who will sign the Note, Requests for Disbursement, statements and other documents required under this Agreement together with the authenticated specimen signatures of each such person;
(c) Guarantee. The Guarantee duly executed by the Guarantor and documentary evidence of authority of the person who has signed the Guarantee together with the authenticated specimen signature of such person;
(d) Legal Opinion. (i) A legal opinion of legal counsel to the Borrower substantially in the form of Annex E, and (ii) A legal opinion of legal counsel to the Guarantor substantially in the form of Annex F; and
(e) Acceptance Letter of Process Agent. The letter from the process agent specified in Section 12.3 substantially in the form of Annex G.
Section 8.2 Conditions to Each Disbursement
As conditions precedent to each Disbursement (including the initial Disbursement), each of the following conditions shall be satisfied as of the date of each Disbursement:
(a) Neither an Event of Default nor an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default shall exist as of the date of each Disbursement;
(b) All the representations and warranties made by the Borrower in this Agreement shall remain true and accurate in all material respects on and as of the date of each Disbursement; and
(c) All the documents and authorizations referred to in Section 8.1 above are in full force and effect as of the date of each Disbursement or, if any change has occurred, the Lender has received supplementary evidence and signature with respect thereto.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender as follows:
Section 9.1 Status of Borrower
The Borrower is a corporation duly incorporated and validly existing under the laws of [Name of the Country]and has the power and authority to own its property, to conduct its business as currently conducted and to consummate the transactions contemplated in this Agreement.
Section 9.2 Authorization of Borrowing
The Borrower has taken all necessary action and procedures to authorize the execution and delivery of this Agreement and all other documents hereunder, and to authorize the performance of its obligations under this Agreement.
Section 9.3 Enforceability
This Agreement has been duly executed and delivered by the Borrower and constitutes, and the Note when duly executed and delivered by the Borrower will constitute, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms.
Section 9.4 No Contravention
The execution, delivery and performance of this Agreement (i) will not violate or contravene any law or regulation which is applicable to the Borrower, and (ii) will not constitute a default or an event that would constitute a default under any other agreement to which the Borrower is a party.
Section 9.5 Ranking of Loan
The Borrower's obligations under this Agreement and the Note rank and will rank at least pari passu in priority of payment and in all other respects with all other Indebtedness of the Borrower except as may be preferred by operation of law.
Section 9.6 Government Approvals
All governmental authorizations and approvals necessary to authorize the Borrower's execution and performance of this Agreement or required for the validity and enforceability of this Agreement have been duly obtained or performed and are valid and subsisting in full force and effect.
Section 9.7 Commercial Acts
The Borrower is subject to civil and commercial law with respect to its obligations under this Agreement, and the Borrower's performance of its obligations hereunder constitutes private and commercial acts rather than governmental or public acts.
Section 9.8 Legal Proceedings
There are no legal actions or proceedings pending or, as far as is known to the Borrower, threatened before any court or governmental agency which would materially and adversely affect the financial condition or business of the Borrower.
Section 9.9 No Event of Default
No event has occurred and is continuing which constitutes or which, with the giving of notice or the lapse of time or both, would constitute an Event of Default or a default under any other agreement to which the Borrower is a party or by which it may be bound.
The representations and warranties of the Borrower made in this Agreement shall be continuing representations and warranties, shall survive the execution of this Agreement and shall be deemed to be repeated by the Borrower on the date of each Request for Disbursement by reference to the facts then existing.
ARTICLE 10
COVENANTS
The Borrower covenants and agrees that, until all amounts owing under this Agreement have been paid in full, it shall perform the following obligations:
Section 10.1 Undertaking of Borrower
The Borrower shall perform all of its obligations under this Agreement and the Note independently of any claims which it may now or hereafter have against the Supplier or any other person in connection with the performance of the Contract. The Borrower hereby agrees to forego the utilization of such claims as the basis of any counterclaim against, or deduction or set-off from, the payment of the indebtedness of the Borrower under this Agreement.
Section 10.2 Notice of Default
The Borrower shall promptly give written notice to the Lender of each event that constitutes or that, with the giving of notice or the lapse of time or both, would constitute an Event of Default and each other event that has or might have a materially adverse effect on the Borrower's ability to perform its obligations under this Agreement.
Section 10.3 Modifications of Contract
Prior to making any material modification or assignment of the Contract by the parties thereto, the Borrower shall obtain or cause the Supplier to obtain the written consent of the Lender, which consent shall not be unreasonably withheld. The Borrower shall, promptly after such modification or assignment, deliver or cause to be delivered to the Lender a true and complete copy of documents related thereto.
Section 10.4 Additional Documents
The Borrower shall submit to the Lender such additional documents, opinions or information as the Lender may reasonably request for purposes of this Agreement.
ARTICLE 11
EVENTS OF DEFAULT
Section 11.1 Events of Default
Each of the following events or occurrences shall constitute an Event of Default under this Agreement:
(a) The Borrower fails to pay any amount of principal, interest, or any other amount payable under this Agreement on the date when such amount is due, and such failure to pay shall continue for a period of [?] days.
(b) The Borrower fails to perform or observe any of the covenants or provisions set forth in this Agreement, exclusive of any events specified as Events of Default in this Section, and such failure remains unremedied for a period of [?] days after written notice thereof has been given to the Borrower by the Lender.
(c) Any representation or warranty made or deemed to be made by the Borrower in this Agreement proves to have been incorrect in any material respect and, if capable of being cured, shall not have been corrected to the satisfaction of the Lender within [?] days after receipt by the Borrower of a written notice from the Lender requiring to cure such incorrectness.
(d) The Borrower or the Guarantor fails to discharge when due any of its Indebtedness payable under any other agreement in an amount greater than [?] U.S. Dollars (US$ [?]) (or the equivalent thereof in another currency), or any such amount has, prior to the scheduled maturity thereof, become due and payable as a result of a default thereunder.
(e) The Borrower or the Guarantor voluntarily or involuntarily merges or consolidates with any other entity, which may reasonably be considered by the Lender to materially and adversely affect the ability of the Borrower or the Guarantor to perform all or any of its obligations under this Agreement or the Guarantee.
(f) The Borrower or the Guarantor becomes insolvent or commits or permits any act of bankruptcy, reorganization, liquidation or winding-up.
(g) A writ of attachment or execution or similar process is issued against a substantial part of the assets of the Borrower or the Guarantor which remains undismissed, unbonded or undischarged for a period of [?] days.
(h) The Guarantee is disaffirmed or questioned as to its validity or enforceability by the Guarantor or ceases for any reason to be valid and in full force and effect.
(i) Any governmental authorization necessary for the performance of any obligations of the Borrower or the Guarantor under this Agreement or the Guarantee fails to become or remain valid and subsisting in full force and effect.
(j) Any other event occurs or any other circumstance arises which, in the reasonable judgment of the Lender, is likely materially and adversely to affect the ability of the Borrower or the Guarantor to perform all or any of their respective obligations under this Agreement or the Guarantee.
Section 11.2 Consequences of Default
If any Event of Default shall occur and be continuing, the Lender may at its option and by written notice to the Borrower (i) suspend further Disbursement until such Event of Default is cured, (ii) cancel the undisbursed portion of the Facility, and/or (iii) declare the Loan, together with all accrued interest and any other amounts payable under this Agreement, to be forthwith due and payable whereupon the same shall immediately become due and payable without further notice or formality.
ARTICLE 12
GOVERNING LAW AND JURISDICTION
Section 12.1 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of [Name of the Country].
Section 12.2 Jurisdiction
The Borrower agrees that any legal action or proceeding arising out of or relating to this Agreement may be brought by the Lender in any Federal or State court sitting in [?], and the Borrower hereby irrevocably submits to the jurisdiction of such courts in respect of any such action or proceeding. The foregoing provisions shall not limit the right of the Lender to bring any such action or proceeding in any other appropriate jurisdiction.
Section 12.3 Service of Process
The Borrower irrevocably appoints [Name and Address of the Process Agent] as its agent to receive on its behalf service of process or other legal summons relating to any action or proceeding brought in the State of New York with respect to this Agreement. So long as the Borrower has any obligation under this Agreement, the Borrower shall maintain a duly appointed agent for the service of such process or summons, and if it fails to maintain such an agent, any such process or summons may be served by mailing a copy thereof by registered mail addressed to the Borrower.
Section 12.4 Waiver of Immunity
The Borrower irrevocably waives, to the fullest extent permitted by applicable law, all immunity to which it or its property may be or become entitled, whether on the basis of sovereignty or otherwise, from jurisdiction, attachment or execution in any action or proceeding arising out of or relating to this Agreement.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Entire Agreement; Amendment
This Agreement constitutes the entire obligation of the parties hereto and supersedes any prior expressions of intent or understandings with respect to this transaction. Any amendment of this Agreement shall be in writing and shall be signed by duly authorized representatives of both parties hereto.
Section 13.2 Waiver; Cumulative Rights
No failure or delay on the part of the Lender to exercise any right provided for in this Agreement shall constitute a waiver of such right or any obligation of the Borrower under this Agreement, nor shall any single or partial exercise of any such right preclude any further exercise thereof. No waiver by the Lender hereunder shall be effective unless it is in writing. The rights and remedies provided for in this Agreement are cumulative and not exclusive of any other rights or remedies which the Lender may otherwise have.
Section 13.3 Disclaimer
The Lender shall not be responsible in any way for the performance of the Contract by the parties thereto, and shall have no obligation to intervene in any dispute arising out of the Contract. Any claim that the Borrower may have against the Supplier or any other person with respect to the performance of the Contract shall not affect or impair the obligations of the Borrower under this Agreement.
Section 13.4 Assignment
This Agreement shall be binding upon and inure to the benefit of each party hereto and its successors and assigns, provided that the Borrower may not assign or transfer any of its obligations under this Agreement or the Note without the prior written consent of the Lender. The Lender may assign or transfer, with prior notice to the Borrower, all or any portion of the Loan and its rights and benefits under this Agreement or the Note, provided that the Lender shall not assign the Note without accompanying an assignment of the corresponding rights under this Agreement.
Section 13.5 Communications
(a) Any documents to be given or made under this Agreement shall be delivered by hand or sent by air mail or by telex or telefax, and shall be deemed delivered (i) if delivered by hand, upon delivery; (ii) if sent by mail, the fourteenth day following the date of mailing; and (ⅲ) if sent by telex or telefax, the second business day following the date of transmission.
(b) The mailing address and telex and telefax numbers of the Lender and the Borrower shall be as follows (or such other address or numbers as either party from time to time notify the other):
(i) For the Lender
The Export-Import Bank of Korea
[Address]
Attention : [?]
Telex No. : [?]
Telefax No. : [?]
(ii) For the Borrower
[Address]
Attention : [?]
Telex No. : [?]
Telefax No. : [?]
(c) All notices, demands or other communications hereunder and any other documents required to be delivered hereunder shall be in the English language or accompanied by a certified translation thereof into the English language.
Section 13.6 Severability of Provisions
If any one or more of the provisions of this Agreement or any document executed in connection herewith shall be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Section 13.7 Counterparts
This Agreement may be executed in any number of counterparts. Any single counterpart or a set of counterparts signed, in either case, by both parties hereto shall constitute a full and original agreement for all purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized representatives as of the date first above written.
For and on behalf of For and on behalf of
[BORROWER] The Export-Import Bank of Korea
By ________________ __ By _____________________
Name : [?] Name : [?]
Title : [?] Title : [?]
<Annex A>
PROMISSORY NOTE
Date : [?]
Amount of Principal: US$ [?]
The Export-Import Bank of Korea
Seoul, Korea
Attention : [?] Department
FOR VALUE RECEIVED, [?] (the "Borrower") by this promissory note (the "Note") unconditionally promises to pay to the order of the Export-Import Bank of Korea (the "Lender") the principal sum of [?] U.S. Dollars (US$ [?] ) in installments as hereinafter provided and interest on the principal balance hereof from time to time outstanding, as hereinafter provided, at the rate of [?] percent ( [?] %) per annum.
The principal of this Note shall be paid in [?] ( [?] ) installments, the first of which shall be in the sum of [?] U.S. Dollars (US$ [?] ) and shall be due and payable on [?]. The remaining installments shall each be in the sum of [?] U.S. Dollars (US$ [?] ) and shall be due and payable semi-annually thereafter on [?] and [?] of each year (each, the "Repayment Date").
Interest on this Note is due and payable on [?] and [?] of each year before the first Repayment Date and, thereafter, on each Repayment Date including the first Repayment Date. Such interest will be calculated on the basis of the actual number of days elapsed (including the first day, but excluding the last day) over a year of 360 days.
In the event that any amount of principal hereof or accrued interest on this Note is not paid in full when due (whether at stated maturity, by acceleration or otherwise), the Borrower shall pay to the Lender default interest at the rate of [?] percent ( [?] %) per annum on such unpaid amount for the period from and including the date such amount was due to but excluding the day such amount is paid in full.
Both principal of and interest on this Note shall be payable in U.S. Dollars in immediately available funds to the account of the Lender (Account No. [?]) with [Name and Address of the Bank] New York or to such other account as the holder of this Note may designate in writing. All sums payable by the Borrower under this Note shall be paid without deduction for or on account of any present or future taxes, duties or other charges.
Upon default in the prompt and full payment of any installment of principal or interest on this Note, the entire outstanding principal hereof and interest thereon shall immediately become due and payable at the option and upon demand of the holder hereof.
The Borrower hereby waives demand, diligence, presentment, protest or notice of every kind with respect to this Note, and warrants to the holder that all action and approvals required for the execution and delivery hereof have been duly taken and obtained.
The failure of the holder hereof to exercise any of its rights hereunder in any instance shall not constitute a waiver thereof in that or any other instance.
This Note is issued pursuant to the Loan Agreement dated [?] , 20[?]
between the Lender and the Borrower, and shall be governed by and construed in accordance with the law of the State of New York, United States of America.
For and on behalf of
[BORROWER]
Name : [?]
Title : [?]
<Annex B>
LETTER OF GUARANTEE
Date : [?]
L/G No.: [?]
The Export-Import Bank of Korea
Seoul, Korea
Attention: [?] Department
Dear Sirs:
In connection with the Loan Agreement dated [?], 20[?] (the "Agreement") entered into between [?] (the "Borrower") and The Export-Import Bank of Korea as the Lender, we, [?] (the "Guarantor"), as primary obligor and not merely as surety hereby irrevocably and unconditionally guarantee the payment to you of the following sums payable by the Borrower under the Agreement:
(A) The principal of the loan (the "Loan") up to [?] U.S. Dollars (US$ [?] ) which shall be repaid in [?] ( [?] ) consecutive semi-annual installments;
(B) The interest on the Loan at the rate of [?] percent ( [?] %) per annum computed on the basis of the actual number of days elapsed and a year of 360 days; and
(C) The default interest on the unpaid Loan and interest at the rate of [?] percent ( [?] %) per annum from the due date to the date of full payment thereof; and
(D) Any other amounts payable by the Borrower under the Agreement.
In the event that the Borrower fails to pay any sum guaranteed hereby when due (whether at its stated maturity, by acceleration or otherwise), the Guarantor shall, forthwith upon your written demand, pay the sum demanded to your designated bank account as set out in such demand. Such demand shall be conclusive evidence that such sum is due and payable.
All payments to be made by the Guarantor hereunder shall be free from any deduction or withholding, and if any deduction or withholding is required, the Guarantor shall additionally pay the amount deducted or withheld so that you receive the full amount of such demand if no such deduction or withholding had been made.
Except for such written demand, no other documents or any other action shall be required under this Guarantee notwithstanding any applicable law or regulation.
The Guarantor hereby agrees that any part of the Agreement may be amended, renewed, extended, modified, released or discharged by mutual agreement between you and the Borrower, without impairing or affecting in any way the liability of the Guarantor hereunder, without notice to the Guarantor and without the necessity for any additional endorsement, consent or guarantee by the Guarantor, provided, however, that the sum guaranteed hereunder shall not be increased without the prior written consent of the Guarantor.
The Guarantor hereby agrees that this Guarantee shall, upon a prior written notice to the Guarantor, be assignable to and inure to the benefit of any financial institution as if it were originally named herein.
This Guarantee shall come into full force and effect from the date hereof and shall remain in effect until all sums guaranteed hereby shall be paid in full by the Borrower or by the Guarantor.
This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, United States of America. The Guarantor irrevocably agrees that any legal action or proceeding arising out of or relating to this Guarantee may be brought in any Federal or State court sitting in the State of New York, United States of America, and the Guarantor hereby irrevocably submits to the non-exclusive jurisdiction of such court in any such action or proceeding.
For and on behalf of
[GUARANTOR]
Name : [?]
Title : [?]
<Annex C>
REQUEST FOR DISBURSEMENT
Date : [?]
Request No. : [?]
Amount of Disbursement : US$ [?]
The Export-Import Bank of Korea
Seoul, Korea
Attention: [?] Department
In accordance with the Loan Agreement dated [?] (the "Agreement") between [?] (the "Borrower") and the Export-Import Bank of Korea as the Lender, we hereby request you to make a Disbursement in the amount of [?] U.S. Dollars (US$ [?] ) to the Supplier's (or the Borrower's) account No. [?] with [Name and Address of the Bank]. Capitalized terms used herein have the meanings assigned to them in the Agreement.
The Disbursement Documents related to this Disbursement are enclosed herein as required by the terms of the Agreement.
We hereby certify that: (i) the Disbursement made pursuant to this Request shall constitute a valid Disbursement under the Agreement; (ii) as of the date of this Request, no event has occurred and is continuing which constitutes or would constitute an Event of Default under the Agreement; and (iii) as of the date of this Request, the representations and warranties made by the Borrower in the Agreement remain true and correct.
Yours truly,
For and on behalf of
[BORROWER]
Name : [?]
Title : [?]
<Annex D>
CERTIFICATE OF AUTHORITY
The Export-Import Bank of Korea Date : [?]
Seoul, Korea
Attention : [?] Department
Dear Sirs:
With reference to the Loan Agreement dated [?] (the "Agreement") between The Export-Import Bank of Korea as the Lender and [?] (the "Borrower"), the undersigned, [TITLE] of the Borrower, duly authorized to do so, hereby certify that the following are the names, title and true specimen signatures of the persons, each of whom is authorized to sign and deliver on behalf of the Borrower the Agreement and any other documents required thereunder:
Name and Title Specimen Signature
If any certification contained herein ceases to be true and correct at and as of any time before the final Disbursement under the Agreement, the Borrower immediately give the Lender notice to that effect.
IN WITNESS WHEREOF, this certificate has been executed as of [?] .
For and on behalf of
[BORROWER]
Name : [?]
Title : [?]
<Annex E>
OPINION OF COUNSEL TO BORROWER
The Export-Import Bank of Korea
Seoul, Korea
Attention : [?] Department
Dear Sirs:
In my capacity as counsel to [?] (the "Borrower"), I have examined originals or copies of the following documents relating to the Loan Agreement dated [?] (the "Agreement") between the Borrower and The Export-Import Bank of Korea (the "Lender"):
(A) The Agreement;
(B) The form of the Note; and
(C) Such other documents which I have considered necessary or appropriate as a basis for the opinions expressed herein.
The opinions expressed herein are limited to questions arising under the laws of [Borrower’s Country], and I do not purport to express an opinion on any question arising under the law of any other jurisdiction.
All terms defined in the Agreement and used but not defined herein have the meanings given to them in the Agreement.
Subject to the foregoing, it is my opinion that:
1. Power and Authority. The Borrower is a corporation duly incorporated and validly existing under the laws of [Borrower’s Country], and has the power and authority to own its property, to conduct its business as currently conducted and to execute, deliver and perform the Agreement and the Note.
2. Authorization. The execution, delivery and performance by the Borrower of the Agreement and the Note have been duly authorized by all necessary action of the Borrower, and do not contravene any law, rule or regulation of [Borrower’s Country].
3 Government Approvals. All governmental authorizations, approvals and consents of [Borrower’s Country] which are necessary to authorize the execution, delivery and performance of the Agreement or the Note have been obtained and are in full force and effect.
4. Enforceability. The Agreement has been duly executed and delivered by the Borrower and constitutes, and the Note, when duly executed and delivered by the Borrower, will constitute, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms.
5. No Default. To the best of my knowledge, no event has occurred and is continuing that constitutes, or that with the giving of notice or the lapse of time or both would constitute, an Event of Default or a default under any other agreement to which the Borrower is a party or by which it may be bound.
6. Legal Proceeding. There are no actions or proceedings pending or, to my knowledge, threatened the adverse determination of which might have a materially adverse effect on the financial condition of the Borrower or impair the ability of the Borrower to perform its obligations under the Agreement or the Note.
7. No Immunity. Neither the Borrower nor its property has any right of immunity on grounds of sovereignty or otherwise from jurisdiction, attachment (before or after judgment) or execution in respect of any action or proceeding arising out of or relating to the Agreement or the Note.
8. Choice of Law. The choice by the parties to the Agreement of the laws of [Name of the Country] to govern the Agreement is legal, valid and binding.
9. Jurisdiction. The Borrower has the power to submit, and pursuant to the Agreement has legally, validly and irrevocably submitted, to the jurisdiction of the Federal or State courts sitting in [?] in respect of any action or proceeding arising out of or relating to the Agreement or the Note.
Very truly yours,
<Annex F>
OPINION OF COUNSEL TO GUARANTOR
The Export-Import Bank of Korea Date : [?]
Seoul, Korea
Attention : [?] Department
Dear Sirs:
In my capacity as counsel to [? ] (the "Guarantor"), I have examined originals or copies of the following documents relating to the Loan Agreement dated [? ] (the "Agreement") between [? ] (the "Borrower") and The Export-Import Bank of Korea (the "Lender"):
(A) The Agreement ;
(B) The form of the Note;
(C) The guarantee in favor of the Lender executed and delivered by the Guarantor in accordance with Section 6.3 of the Agreement (the "Guarantee"); and
(D) Such other documents which I have deemed necessary or appropriate as a basis for the opinions expressed herein.
The opinions expressed herein are limited to questions arising under the laws of [Guarantor's Country], and I do not purport to express an opinion on any question arising under the law of any other jurisdiction.
All terms defined in the Agreement and used but not defined herein have the meanings given to them in the Agreement.
Subject to the foregoing, it is my opinion that:
1. Power and Authority. The Guarantor is a financial institution duly organized and validly existing under the laws of [Guarantor's Country], and has the power and authority to own its property, to conduct its business as currently conducted and to execute, deliver and perform the Guarantee.
2. Authorization. The execution, delivery and performance by the Guarantor of the Guarantee have been duly authorized by all necessary action of the Guarantor, and do not contravene any law, rule or regulation of [Guarantor's Country].
3. Government Approvals. All governmental authorizations, approvals and consents of [Guarantor's Country] which are necessary to authorize the execution and performance of the Guarantee have been obtained and are in full force and effect.
4. Enforceability. The Guarantee has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with its terms.
5. No Default. To the best of my knowledge, no event has occurred and is continuing that constitutes, or that with the giving of notice or the lapse of time or both would constitute, an Event of Default or a default under any other agreement to which the Guarantor is a party or by which it may be bound.
6. Legal Proceeding. There are no actions or proceedings pending or, to my knowledge, threatened the adverse determination of which might have a materially adverse effect on the financial condition of the Guarantor or impair the ability of the Guarantor to perform its obligations under the Guarantee.
7. No Immunity. Neither the Guarantor nor its property has any right of immunity on grounds of sovereignty or otherwise from jurisdiction, attachment (before or after judgment) or execution in respect of any action or proceeding arising out of or relating to the Guarantee.
8. Choice of Law. The choice by the Guarantor of the laws of [Name of the Country] to govern the Guarantee is legal, valid and binding.
9. Jurisdiction. The Guarantor has the power to submit, and pursuant to the Guarantee has legally, validly and irrevocably submitted, to the jurisdiction of the Federal or State courts sitting in [?] in respect of any action or proceeding arising out of or relating to the Guarantee.
Very truly yours,
<Annex G>
ACCEPTANCE LETTER OF PROCESS AGENT
Date : [?]
The Export-Import Bank of Korea
Seoul, Korea
Attention : [?] Department
Dear Sirs:
We understand that, pursuant to the terms of the Loan Agreement dated as of [?] (the "Agreement") between [Borrower] (the "Borrower") and the Export-Import Bank of Korea as the Lender, we have been irrevocably appointed as agent of the Borrower to receive, for and on behalf of the Borrower, the service of summons, complaint, or any other documents relating to any action or proceeding instituted in the State of New York with respect to the Agreement.
We hereby irrevocably accept such appointment.
Very truly yours,
[PROCESS AGENT]
Name : [?]
Title : [?]
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