COMPREHENSIVE GUARANTEE ARRANGEMENT, 영문계약서, 포괄적 보증 계약서

 

COMPREHENSIVE GUARANTEE ARRANGEMENT

 

 

 

Between

 

 

 

[Name of the Guarantor Bank]

(as guarantor)

 

 

 

and

 

 

 

THE EXPORT-IMPORT BANK OF KOREA

(as lender)

 

 

dated as of [·] , 20[·]

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

Page

ARTICLE 1  DEFINITIONS ····················· 2

ARTICLE 2  COMPREHENSIVE GUARANTEE ············· 3

ARTICLE 3  ELIGIBLE CREDITS AND LIABILITIES ·········· 3

ARTICLE 4  GENERAL PROCEDURES FOR FINANCING AND GUARANTEEING ELIGIBLE CREDITS 4

ARTICLE 5  EFFECTIVENESS ···················· 5

ARTICLE 6  MISELLANEOUS ···················· 5

 

<Annex I> MAXIMUM REPAYMENT PERIOD OF AN ELIGIBLE CREDIT ·· 9

<Annex II> COMPREHENSIVE GUARANTEE ············· 10

 

<Exhibit A> LETTER OF COMMITMENT ··············· 12

<Exhibit B> LOAN APPLICATION ·················· 14

<Exhibit C> LOAN APPROVAL ···················· 16

<Exhibit D> LETTER OF INCLUSION ················· 18

<Exhibit E> OPINION OF COUNSEL TO GUARANTOR ········· 19

<Exhibit F> ACCEPTANCE LETTER OF PROCESS AGENT ········ 22

<Exhibit G> CREDIT AGREEMENT ·················· 23

 

< Exhibit A to Credit Agreement>REQUEST FOR DISBURSEMENT ·····42

< Exhibit B to Credit Agreement >NOTICE OF DISBURSEMENT ······ 44

<Exhibit C to Credit Agreement>OPINION OF COUNSEL TO BORROWER ·· 45

 

COMPREHENSIVE GUARANTEE ARRANGEMENT

 

THIS COMPREHENSIVE GUARANTEE ARRANGEMENT (the "Arrangement") made and entered into as of [·], 20[·] by and between:

 

[Name of the Guarantor BANK] (the "Guarantor"), a bank duly organized and existing under the laws of [Name of the Guarantor's country] with its registered head office at [·]; and

 

The Export-Import Bank of Korea ("KEXIM"), a financial institution duly organized and existing under the Export-Import Bank of Korea Act of the Republic of Korea (“Korea”) with its registered head office at 16-1, Yoido-dong, Youngdungpo-gu, Seoul, Korea.

 

RECITALS

 

WHEREAS:

 

(A) the Guarantor and KEXIM desire to improve the trade and financial relations between [Guarantor’s Country] and Korea and, specifically, to assist the Purchasers’ purchasing Korean origin or Korean manufactured goods and/or services (the “Goods”);

 

(B) with the Guarantor’s guarantee cover, KEXIM is prepared to provide a credit to the Purchasers in [Guarantor’s Country] by entering into credit agreements (the “Credit Agreement”) directly with each of the Purchasers in U.S.Dollars to finance each Purchaser’s purchasing the Goods; and

 

(C) the Guarantor is also prepared to provide such guarantee cover comprehensively for KEXIM’s credits to be extended to the Purchasers, in the aggregate maximum amount of guarantee liability outstanding from time to time not exceeding [·] U.S.Dollars (US$[·]).

 

NOW, THEREFORE, in consideration of the recitals above and mutual promises and covenants below and subject to the terms and conditions of this Arrangement, the Guarantor and KEXIM hereby agree as follows:

 

ARTICLE 1  DEFINITIONS

 

1.1  In addition to the terms defined in the Recitals above and in the body below, following terms shall have the meaning assigned to them in this Arrangement (including Annexes and Exhibits), unless otherwise expressly provided for herein:

 

“Borrower” means the borrower under each of the Credit Agreement.

 

“Credit Agreement” means any or all of the credit agreements entered into between KEXIM and the Borrower substantially in the form attached hereto as Exhibit G, in accordance with which KEXIM provides a credit to Borrower to finance the Borrower’s purchasing the Goods.

 

“Eligible Credit” means the credit extended by KEXIM to the Borrower in accordance with a Credit Agreement covered by this Arrangement.

 

“Eligible Liabilities” means all obligations and liabilities of each of the Borrower to KEXIM under related Credit Agreements and due performance of which are guaranteed by the Guarantor pursuant to this Arrangement.

 

“Goods” means the goods and/or services (i) which are of Korean origin, manufacture or, in case of services, Korean rendering, purchased by the Purchaser from the Supplier (ii) payment for which are financed in accordance with the Credit Agreement and guaranteed by this Arrangement and (iii) which are not prohibited from exporting by applicable laws and/or international conventions.

 

“Purchaser” means any of the purchasers who purchases Goods with the financing under the related Credit Agreement.

 

“Supplier” means a supplier of the Goods, who is a Korean natural or juridical person or any entity owned and controlled by Korean natural or juridical person.

 

1.2 Unless the context otherwise requires in this Arrangement:

(a)    Terms defined in the Credit Agreement attached hereto as Exhibit G have the same meaning when used in this Arrangement (including Annexes and Exhibits);

(b)   A reference to a Clause, Annex or Exhibit is a reference to a Clause, Annex  or Exhibit of this Arrangement; and

(c)    Words denoting the singular include the plural and vice versa, whereas the context so requires.

 

 

ARTICLE 2  COMPREHENSIVE GUARANTEE

 

2.1. Subject to the terms and conditions set forth in this Arrangement, the Guarantor hereby establishes a line of comprehensive guarantee to guarantee the Borrowers’ due performance of the Eligible Liabilities. The terms and conditions of the Guarantor’s guarantee obligations under this Arrangement are provided for in the Comprehensive Guarantee attached hereto as Annex II.

 

2.2. The aggregate amount of Eligible Credits outstanding from time to time under all Credit Agreements which are guaranteed under this Arrangement shall not exceed [·] U.S.Dollars (US$[·]).

 

2.3. The amount of each Eligible Credit under each Credit Agreement which is guaranteed under this Arrangement shall not exceed [·] U.S.Dollars (US$ [·] ]).

 

 

ARTICLE 3  ELIGIBLE CREDITS AND LIABILITIES

 

(a) Any Eligible Credit and Eligible Liability to be guaranteed in accordance with this Arrangement shall, unless otherwise expressly provided for in this Arrangement or agreed upon between the Guarantor and KEXIM in writing, satisfy the following conditions:(a) The Loan from an Eligible Credit shall be used to finance the Borrower’s purchasing of the Goods from the Supplier, provided, however, that the goods and/or services which are not Korean origin, manufacture or, in case of services, Korean rendering may be financed as an Eligible Credit only upon KEXIM’s prior written consent thereto;

(b) Prior to the shipment or, as the case may be, commissioning, of any Goods, the Supplier shall have received from the Purchaser an advance payment of at least [·] percent ([·] %) of the Contract Price of the Goods, exclusive of any of discounts, allowances, rebates or commissions, provided, however, that the requirement of advance payment shall not be applied to a Loan with a repayment period not longer than [·] years;

(c) The amount of the Loan under an Eligible Credit to be approved by KEXIM for each transaction shall not exceed one hundred percent (100%) of the balance of the Contract Price of the Goods after deduction of the advance payment provided for in (b); and

(d) The maximum repayment period of an Eligible Credit covered under this Arrangement shall be subject to the Maximum Repayment Period of an Eligible Credit attached hereto as Annex I.

 

 

ARTICLE 4 GENERAL PROCEDURES FOR FINANCING AND  GUARANTEEING ELIGIBLE CREDITS

 

General procedures for financing and guaranteeing the Eligible Credits are as follows:

 

(a)  The Guarantor shall submit KEXIM a commitment letter of guarantee (the “Letter of Commitment”) duly issued by the Guarantor to KEXIM substantially in the form and substance attached hereto as Exhibit A, by which the Guarantor firmly commits itself to issue the Letter of Inclusion for the Credit Agreement to be entered into between KEXIM and the related Borrower substantially in the form and substance attached hereto as Exhibit D. The Letter of Commitment shall accompany a loan application (the “Loan Application”) duly executed by the Borrower substantially in the form and substance attached hereto as Exhibit B.

(b)  After its due receipt of the Letter of Commitment and the accompanied Loan Application and where it approves the Loan Application, KEXIM shall notify both of the Guarantor and the Borrower of the loan approval substantially in the form attached hereto as Exhibit C (the “Loan Approval”).

(c)  After KEXIM’s loan approval and notification thereof to the Guarantor and the Borrower, KEXIM and the Borrower shall enter into the related Credit Agreement substantially in the form and substance of the Credit Agreement attached hereto as Exhibit G. Immediately after the execution of the related Credit Agreement, KEXIM shall notify the Guarantor the date and a certified copy of the related Credit Agreement.

(d) The Guarantor shall issue and deliver to KEXIM the Letter of Inclusion as an initial condition precedent document under the related Credit Agreement.

(e)  KEXIM shall disburse the Loan as per the Credit Agreement.

(f) KEXIM shall provide, or cause to be provided, the Guarantor of the duplicate or certified copies of the following documents:

(i) Disbursement Documents related to concerned Request for Disbursement (only      

upon the Guarantor’s request);

(ii)   Notice of Disbursement and Notice of Completion of Disbursement;

(iii) Final Repayment Schedule; and

(iv) Notice of Loan Outstanding (only upon the Guarantor’s request).

 

 

ARTICLE 5  EFFECTIVENESS

 

5.1. This Arrangement shall become effective from the date on which KEXIM dispatches to the Guarantor the notice of its receipt of all of the followings:

(a)        documentary evidence of the authority of each person (i) who has signed this Arrangement for and on behalf of the Guarantor and (ii) who will make, sign and deliver the Letter of Commitment and the Letter of Inclusion for and on behalf of the Guarantor;

(b)        the authenticated specimen signatures of each person specified (a) above;

(c)        legal opinion substantially in the form and substance attached hereto as Exhibit E; and

(d)       acceptance letter of process agent substantially in the form and substance attached hereto as Exhibit F.

 

5.2. No Loan Application under this Arrangement will be approved by KEXIM after [·] years from the date on which this arrangement is effective according to Section 5.1, unless otherwise agreed upon between KEXIM and the Guarantor.

 

 

ARTICLE 6  MISELLANEOUS

 

6.1 Entirety and Severability

 

(a) This Arrangement constitutes the entire obligations of the parties hereto and supersedes any prior expressions of intent or understanding with respect to this transaction.

 

(b  If any one or more of the provisions contained in this Arrangement 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.

 

6.2 Communications

 

All notice, request or other communications hereunder shall be made in English and shall be delivered by hand or sent by airmail (including by internationally recognized courier services) or by telex, facsimile or SWIFT. Such communications shall be deemed to have been duly given or made when it shall have been delivered by hand, received by mail or dispatched by telex, facsimile or SWIFT. The mailing address and telex, facsimile and SWIFT numbers of the Guarantor and KEXIM are as follows:

 

(i) For the KEXIM:

 

The Export-Import Bank of Korea

16-1, Yoido-dong, Youngdungpo-gu,

Seoul, 150-996, Korea

Attention : [·]

Telex No.: [·]

Facsimile No.: [·]

SWIFT: [·]

 

(ii) For the Guarantor:

 

[·] [Address]

Attention : [·]

Telex No.: [·]

Facsimile No.: [·]

SWIFT : [·]

 

6.3        Assignments

 

The Guarantor shall have no right to assign or transfer any of its rights or obligations under this Arrangement without prior written consent of the KEXIM.

 

 

6.4        Amendment

 

Any amendment of this Arrangement shall be in writing and shall be signed by duly authorized representatives of both parties hereto.

 

6.5  Governing Law and Jurisdiction

 

(a) This Arrangement shall be governed by and construed in accordance with the laws of [Name of the Country].

 

(b) The Guarantor and KEXIM irrevocably agree to submit to the non-exclusive jurisdiction of [·] court of [Name of the Country], sitting in [·] in any action or proceeding arising out of or relating to this Arrangement, and the Guarantor and KEXIM irrevocably agree that all claims in respect of such action or proceeding may be heard or determined in such court. The Guarantor and KEXIM agree that a final judgement in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(c) In addition, the Guarantor and KEXIM irrevocably and unconditionally waive any objection which it may now or hereafter have to any action, suit or proceeding arising out of or in connection with this Arrangement being brought in any of the aforesaid courts, and further agree to, irrevocably and unconditionally, waive any claim that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

(d) The Guarantor irrevocably appoints [·] [Name and Address of the Process Agent] as its process agent for and on its behalf and in respect for its property service of legal process, summons, notices and documents which may be served in any action or proceeding brought in the State of New York, in state or federal court with respect to this Arrangement and agrees that the failure of such agent to give any advice or notice of any such service of process to the Guarantor shall not impair or affect the validity of such service or of any judgment based thereon. So long as the Guarantor has any obligation under this Arrangement, the Guarantor shall maintain a duly appointed agent for the service of process and if it fails to maintain such an agent, any such process may be served by mailing a copy thereof by registered, postage prepaid mail addressed to the Guarantor. Nothing herein provided shall affect the right of KEXIM giving service of process to the Guarantor in any other manner permitted by applicable law.

 

6.6  Waiver of Immunity

 

The Guarantor irrevocably waives all immunity to which it, its properties or assets may be or become entitled on the ground of sovereignty or otherwise, from set-off, legal proceedings, attachment, prior to judgment, other attachment, or execution in any action or proceeding arising out of or relating to this Arrangement.

 

 

IN WITNESS WHEREOF, the parties hereto have caused the Arrangement to be executed and delivered by their respective duly authorized representatives as of the date and year first above written.

 

For and on behalf of [GUARANTOR]   By __________________ Name : [·] Title : [·]

For and on behalf of The Export-Import Bank of Korea   By __________________ Name : [·] Title : [·]

 

 

<Annex I>

 

MAXIMUM REPAYMENT PERIOD OF AN ELIGIBLE CREDIT*

 

 

 

Contract Price	Maximum Repayment Period
Less than US$ [·]	[·] years
From and including US$ [·]      ~  Less than US$ [·]	[·] years
From, and including US$ [·]      ~  Less than US$ [·]	[·] years

 

 

 

* "Repayment Period" means the period from the date of the Acceptance Date for each Loan to the date of final repayment under the related Credit Agreement. Such Repayment Period may be reasonably decided by KEXIM within Maximum Repayment Period considering the characteristic of the transaction such as the amount of the Contract Price and the life of the Goods.

 

<Annex II>

 

COMPREHENSIVE GUARANTEE

 

For good and valuable consideration of which the Guarantor hereby acknowledges its due existence, the Guarantor who entered into the Comprehensive Guarantee Arrangement (the “Arrangement”) with KEXIM, irrevocably as principal debtor and not merely as surety, guarantees to KEXIM the due performance of the Eligible Liabilities in accordance with the Arrangement and this Comprehensive Guarantee. Terms defined in the Arrangement and the Credit Agreement attached to the Arrangement as Exhibit E thereto have the same meaning when they are used in this Comprehensive Guarantee, unless otherwise expressly provided for.

 

The Guarantor shall pay to KEXIM within [·)] days after KEXIM’s written demand all sums which may at any time be due (whether at its stated maturity, by acceleration or otherwise) and payable, but are not paid when due by the Borrower under any individual Credit Agreement for which the Guarantor has issued a Letter of Inclusion. The Guarantor’s payment obligations shall include the due but unpaid principal, interest accrued thereon, unpaid default interest and all other amounts including expenses which are due but unpaid under any individual Credit Agreement, provided, however, that, (i) the aggregate amount of the Guarantor’s payment obligation outstanding from time to time shall not exceed [·] U.S.Dollars (US$[·]), (ii) the Guarantor’s payment obligation under an individual Credit Agreement shall not exceed [·] U.S.Dollars (US$[·]), and (iii) [the Guarantor has the option to make the repayment of principal and interest as per the Repayment Schedule set out in the related Credit Agreement].

 

All payment by the Guarantor to KEXIM under this Comprehensive Guarantee shall be free from any deduction or withholding, and if any deduction or withholding is required, the Guarantor shall pay, in addition to the amount due and payable, the amounts to be so deducted or withheld so that KEXIM will receive the full amount of such demand as if no such deduction or withholding had been made.

 

This Comprehensive Guarantee is in addition to and not in substitution for any present and future guarantee, lien or other security held by KEXIM in connection with the related Credit Agreement and KEXIM’s rights under this Comprehensive Guarantee and the Arrangement are in addition to and not exclusive of those provided by law.

 

KEXIM shall not be bound first to enforce any rights against the Borrower or any other person or any guarantee, collateral, or other security, if any, before enforcing the Guarantor’s liabilities under this Comprehensive Guarantee.

 

The Guarantor’s liabilities under the Arrangement and this Comprehensive Guarantee shall be a continuing guarantee, shall extend to the ultimate balance of the Eligible Liabilities up to the limit specified above and shall continue in force notwithstanding any intermediate payment in whole or in part of the Eligible Liabilities.

 

The Guarantor’s liabilities under this Comprehensive Guarantee are independent of the legal validity and enforceability of the respective Contract and/or the Credit Agreement for which the Guarantor has issued a Letter of Inclusion.

 

Any demand addressed to the Guarantor in connection with this Comprehensive Guarantee by the KEXIM shall be in a written form duly signed and indicate that certain Borrower [Borrower] has failed to pay the KEXIM certain amount [Itemized amounts due but unpaid] under the certain individual Credit Agreement [number, dates, parties, details of Contract to finance for which the Credit Agreement entered into] covered under the Arrangement and for which the Guarantor has issued a Letter of Inclusion [number and date of issuance]:

 

All payment by the Guarantor to KEXIM under this Comprehensive Guarantee shall be made to the bank account designated by KEXIM as set out in the demand and shall be made for value on the due date at such times and in such funds as being customary at the time for the settlement in U.S.Dollars.

 

The Guarantor shall indemnify KEXIM against all legal and other expenses (on a full indemnity basis) incurred by KEXIM in connection with the enforcement of its rights under the Arrangement and this Comprehensive Guarantee.

 

 

 

 

 

 

 

<Exhibit A>

 

[Letterhead of the Guarantor]

LETTER OF COMMITMENT

 

 

 Date: [·]

To : The Export-Import Bank of Korea

[Address]

Attention : [·] Department

 

 

Cc. : [·]

[Name and Address of the Borrower]

 

Re : The Credit Agreement to be entered into between the Borrower and KEXIM to finance [·] [Title of the related Supply Contract] between [·] and [·]on [·]

 

 

Dear Sirs,

 

Regarding the above-captioned Credit Agreement to be entered into between [·] [Name and Address of the Borrower] (the “Borrower”) and KEXIM, we hereby firmly commit ourselves to issue and deliver to KEXIM the Letter of Inclusion as a condition precedent document to the initial Disbursement under the Credit Agreement to guarantee KEXIM’s credit which will be extended to the Borrower to finance above-captioned Supply Contract concluded or to be concluded between [·] [Purchaser] and [·] [Supplier] in accordance with the Credit Agreement to be entered into between KEXIM and [·] [Borrower]. Our guarantee liabilities are subject to the terms and conditions of the Comprehensive Guarantee Arrangement dated as of [·] between [·] [Guarantor] and KEXIM.

 

Please refer to the Loan Application attached hereto with regards to the major terms and conditions of the Supply Contract and the Credit Agreement for which we issue this Letter of Commitment,

 

 

 

Sincerely yours,

 

 

For and on behalf of

[GUARANTOR]

 

By __________________

Name : [·]

Title : [·]

 

 

<Exhibit B>

*LOAN APPLICATION

[Letterhead of the Borrower]

 

 

 Date: [·]

To. : [·]

The Export-Import Bank of Korea

[Address]

Attention : [·] Department

 

 

Re : The Credit Agreement to be entered into between the Borrower and KEXIM to finance [·] [Title of the related Supply Contract] between [·] on [·]

Dear Sirs,

 

Regarding the above-captioned Credit Agreement to be entered into between [·] [Name and Address of the Borrower] (the “Borrower”) and the Export-Import Bank of Korea (“KEXIM”), we hereby made our Loan Application pursuant to Paragraph (a), Article 4 of the Comprehensive Guarantee Arrangement dated as of [·] and entered into between [·] [Guarantor] and KEXIM.

 

Major terms and conditions of the Supply Contract and the Credit Agreement for which we apply for your financing are as follows:

 

1.   Supplier

             Name : [·]

             Address : [·]

             Telephone : [·]

             Facsimile : [·]

2.    Purchaser

             Name : [·]

             Address : [·]

             Telephone : [·]

             Facsimile : [·]

 

3.    Goods to be purchased from Korea :

        (*specify in reasonable detail)

4.    Contract Price : US$[·]

5.    Advance Payment : US$[·]

6.    KEXIM Loan Amount : US$[·]

7.    Type of Interest: Fixed rate

                      □ Floating rate  

     (*Floating Rate is available in case of the Repayment Period is less than 2 years)

 

8.    Scheduled Acceptance Date(s): [·], 20[·]

9.    Repayment Period of the Loan: [·] ([·]) year(s)

10.   Repayment Type of the Loan

                      □ Lump-sum Repayment*

                      □ Equal Semi-annual Installments Repayment

(* Lump-sum Repayment is available in case of the Repayment Period is less than 2 years)

 

 

Sincerely yours,

 

 

For and on behalf of

[BORROWER]

 

By __________________

Name : [·]

Title : [·]

 

 

*This Loan Application should be submitted to KEXIM via the Guarantor as an attachment to the Guarantor’s Letter of Commitment.

 

<Exhibit C>

*LOAN APPROVAL

[Letterhead of KEXIM]

Date: [·]

To : [·]

[Name and Address of the Borrower]

Attention : [·] Department

 

Cc. [·]

[Name and Address of the Guarantor]

Attention : [·] Department

 

KEXIM Loan No.: [·]

KEXIM Loan Amount: [·] U.S.Dollars (US$[·])

Loan Approval Date: [·], 20[·]

 

 

Dear Sirs,

 

Reference is made to your Loan Application dated as of [·] and the Letter of Commitment dated as of [·] and issued by the Guarantor under the Comprehensive Guarantee Arrangement dated as of [·] and entered into between [Guarantor] and KEXIM. Please be informed that KEXIM has approved your Loan Application with the terms and conditions as follows:

 

1.    KEXIM Loan Amount : US$ [·]

2.    Interest Rate : [·]

3.    Commitment Fee: [·]

4.    Management Fee : [·]

5.    Exposure Fee : [·]

6.    Last Date of Disbursement : no later than [·], 20[·]

7.    Repayment Period of the Loan: [·] ([·]) year(s)

8.    Repayment Type of the Loan (*in case of Short-term Loan) :

                      □ Lump-sum Repayment

                      □ Equal Semi-annual Installments Repayment

 

 

Sincerely yours,

 

 

For and on behalf of

 

The Export-Import Bank of Korea

 

 

By __________________

Name : [·]

Title : [·]

 

 

 

 

 

<Exhibit D>

LETTER OF INCLUSION

Date: [·]

To:

The Export-Import Bank of Korea

Attention : [·] Department

 

Cc.

[Name and Address of the Borrower]

Attention:

 

Re. The Comprehensive Guarantee Arrangement dated [·] between [Guarantor] (the “Guarantor”) and the Export-Import Bank of Korea (the “KEXIM”); The Credit Agreement between [·] [Purchaser] (the “Purchaser”) as borrower and KEXIM as lender dated [·]; and the Supply Contract between [Purchaser] and [Supplier] dated [·]

 

Dear Sirs,

 

Reference is made to the Comprehensive Guarantee Arrangement (together with the Comprehensive Guarantee attached thereto, the “Comprehensive Guarantee”) dated [·] between our [·] [Guarantor] and KEXIM .

 

We hereby irrevocably and unconditionally confirm that the aforementioned Comprehensive Guarantee is applicable to and covers in full all the amounts, including, but not limited to, principal, interest, default interest, fees and expenses which are due and payable by the Borrower under the above-captioned Credit Agreement for financing of the above-captioned Supply Contract, of which the maximum Eligible Liabilities shall not exceed [·] U.S.Dollars (US$[·]).

 

For on behalf of

[Guarantor]

 

By___________________

Name : [·]

Title : [·]

 

<Exhibit E>

 

OPINION OF COUNSEL TO Guarantor

Date: [·]

 

To : [·]

The Export-Import Bank of Korea

[Address]

Attention : [·] Department

 

Dear Sirs:

 

In my capacity as counsel to [Name of the Guarantor](the "Guarantor"), I have examined originals or copies of the following documents relating to the Comprehensive Guarantee Arrangement dated [·] (the "Arrangement") between the Guarantor and The Export-Import Bank of Korea (“KEXIM”):

 

(A) The Comprehensive Guarantee Arrangement including, inter alia, Comprehensive Guarantee attached thereto as Annex II; and

 

(B) 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 Arrangement and used but not defined herein have the meanings given to them in the Arrangement.

 

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 Arrangement.

 

2.  Authorization.  The execution, delivery and performance by the Guarantor of the Arrangement 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 Arrangement have been obtained and are in full force and effect.

 

4.  Enforceability. The Arrangement 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 Arrangement.

 

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 Arrangement.

 

8.  Choice of Law. The choice by the Guarantor of the laws of [Name of the Country] to govern the Arrangement is legal, valid and binding.

 

9. Jurisdiction. The Guarantor has the power to submit, and pursuant to the Arrangement has legally, validly and irrevocably submitted, to the jurisdiction of the Federal or State courts sitting in the [Place of the Court] in respect of any action or proceeding arising out of or relating to the Arrangement. In the event that a judgment of such courts were obtained after service of process in the manner specified in the Arrangement, the same would be recognized and enforced by the courts of [Guarantor’s Country] without a further review on the merits, provided, however, that [·] [list of applicable conditions for the recognition and enforcement of a foreign judgment in the Guarantor’s country]

 

 

Very truly yours,

 

 

 

 

<Exhibit F>

 

ACCEPTANCE LETTER OF PROCESS AGENT

Date : [·]

To : [·]

[Name and address of the Guarantor]

To : [·]

The Export-Import Bank of Korea

Attention : [·] Department

 

Dear Sirs:

 

We understand that, pursuant to the terms of the Comprehensive Guarantee Arrangement dated as of [·] (the "Arrangement") between [Name of the Guarantor] as guarantor (the "Guarantor") and the Export-Import Bank of Korea as lender (the “Lender”), we have been irrevocably appointed as agent of the Guarantor to receive, for and on behalf of the Guarantor, the service of writ, process, summons, complaint, or any other documents relating to any action or proceeding instituted in the State of New York with respect to the Arrangement.

 

We hereby irrevocably accept such appointment and our acceptance shall be binding upon us and all our successors acting in our capacity or persons in charge of our office.

We agree that we will maintain an office in [·] and will give you prompt notice of any change of our address during such period.

 

We further agree that we will not terminate our agency hereunder prior to (i) the termination of all of the Guarantor’s obligations under the Arrangement or (ii) the appointment of a successor agent by the Guarantor pursuant to the Arrangement.

 

Very truly yours,

 

[PROCESS AGENT]

                          

 

Name : [·]

Title : [·]

 

<Exhibit G>

CREDIT AGREEMENT

 

 

THIS CREDIT AGREEMENT (the “Agreement”) is made and entered into as of [·], by and between:

 

[·] [Name of the Borrower] (the "Borrower"), a corporation duly organized and existing under the laws of [·] [Name of the Borrower’s Country] with its registered head office at [·] [Address of the Borrower]; and

 

The Export-Import Bank of Korea (“KEXIM” or the “Lender”), a Bank duly organized and existing under the laws of the Republic of Korea (“Korea”)with its registered head office at 16-1, Yoido-dong, Youngdungpo-gu, Seoul, Korea.

 

RECITALS

 

WHEREAS:

 

(A) the Borrower as the Purchaser and [·] [Name of the supplier] (the "Supplier"), a corporation organized and existing under the laws of [Name of the Country] with its registered head office at [·] [Address of the Supplier], have entered into a contract dated [·] (the "Contract") providing for [·] [Name of the Project] (the "Project");

 

(B) 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 with the guarantee cover under the Comprehensive Guarantee Arrangement entered into between [Name of the Guarantor] and KEXIM;

 

(C) With regard to the Comprehensive Guarantee cover, the Guarantor has issued and delivered to KEXIM a Letter of Commitment by which the Guarantor unconditionally and irrevocably confirmed that it will issue and deliver to KEXIM the Letter of Inclusion for this Agreement in due procedure; and

 

 

(D) based on the Letter of Commitment and 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 including the Recitals above and the Exhibits hereto:

 

"Acceptance Date" means [the date of acceptance of the goods or services by the Borrower in accordance with the terms of the Contract or the date which shall be determined in accordance with OECD guidelines].

 

"Business Day" means a day on which banks are open for business in New York

 

"Comprehensive Guarantee Arrangement" means the comprehensive guarantee arrangement entered into between the Guarantor and KEXIM on [·], providing for the terms and conditions of ,inter alia, the Guarantor’s guarantee obligations to cover this Agreement.

 

"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.

 

"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.

 

"Event of Default" means any of the events specified in Section 11.1.

"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.

 

"Guarantor" means the [Name of the Guarantor], a financial institution organized and existing under the laws of [Name of the Country] and having its head office at [·], which is the Guarantor in the Comprehensive Guarantee Arrangement.

 

"Indebtedness" means any obligation for the payment or repayment of money, whether present or future.

 

"Interest Payment Date" means the last date of each Interest Period.

 

"Interest Period" means

   (a) Before the First Repayment Date ; The Interest Periods shall be the period commencing on the date of the initial Disbursement and ending on the date six (6) months thereafter and, from then on, the six-month periods shall commence on the last day of the immediately preceding Interest Period. However, the first Interest Period with respect to each Disbursement other than the initial Disbursement shall commence on the date on which such subsequent Disbursement is made and end on the last day of then current Interest Period determined in accordance with the first sentence hereof.

 

  (b) On and After the First Repayment Date ; In the event that any Interest Period determined in accordance with paragraph (a) above would otherwise extend beyond the first Repayment Date, such Interest Period shall instead end on the first Repayment Date and, thereafter, the Interest Period shall be the period commencing on the Repayment Date and ending on the immediately subsequent Repayment Date.

 

"Interest Rate" means the interest rate set forth in Section 4.1.

 

"Korea" means the Republic of Korea.

 

"Libor" means the six (6) months rate displayed on the “3750” page, or such other page for the purpose of displaying such rate of interest, of the Telerate Matrix by the British Bankers Association as the rate of interest offered by principal banks in the London interbank market for deposits in U.S Dollars at or about 11:00 a.m. London Time two(2) London Banking Days prior to the beginning of relevant Interest Periods.

 

"Loan" means the aggregate principal amount of Disbursements from time to time outstanding.

 

"Letter of Inclusion" means a letter of inclusion to be issued by the Guarantor for the extended line of credit in accordance with the Comprehensive Guarantee Arrangement.

 

"Repayment Date"

[In case of equal semi-annual installment repayment]

means each of the [·] ([·]) consecutive dates occurring semi-annually from and including the date which shall be six (6) months following the Acceptance Date.

[In case of lump-sum repayment]

means date falling on [·] days from final Disbursement

 

 

"Request for Disbursement" means a written request of the Borrower confirmed by the Guarantor to disburse the Facility, in form and substance attached hereto as Exhibit A.

 

"U.S. Dollars" or "US$" means the lawful currency of the United States of America.

 

 

Section 1.2  Interpretation 

 

(a) Terms defined in the Comprehensive Guarantee Arrangement have the same meaning when used in this Agreement, unless the context otherwise requires.

 

(b) 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.

 

(c) References to a specified Section or Exhibit will be construed as references to that specified Section or Exhibit of this Agreement.

 

(d) 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  Satisfaction of Conditions Precedent

 

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  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 ten (10) Business 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  Availability  

 

Except as the Lender shall otherwise agree, no Disbursement shall be made by the Lender after twenty (20) days after the Acceptance Date.

 

Section 3.4  Notice of Disbursement

 

Upon each Disbursement made hereunder, the Lender shall notify the Borrower and the Guarantor in writing of the date and amount of such Disbursement, in form and substance attached hereto as Exhibit B. 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 twenty (20) 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 two percent (2%) 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  (in case Repayment Period is 2 years or more)

 

(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 the date [·] days from the date of the Loan Approval and shall be computed on the basis of actual number of days elapsed and a year of 360 days.

 

Section 5.2  Exposure Fee  (in case Repayment Period is 2 years or more)

 

(a) The Borrower shall pay to the Lender Exposure Fee at the rate of [·] percent ([·]%) on the principal amount of each Loan disbursed and then outstanding in arrears on the last day of each Interest Period.

 

(b) The Exposure Fee shall be calculated in the same way as specified in Section 4.1 and 4.3,

 

Section 5.3  Management Fee  (in case Repayment Period is 2 years or more)

 

The Borrower shall pay to the Lender Management Fee at [·] percent ([·] %) on the amount the on the Amount of Facility within fifteen (15) days following the date of this Agreement.

 

Section 5.4  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 

 

[in case of equal semi-annual installment repayment]

The Borrower shall repay the Loan in [·] ([·]) equal, consecutive and semiannual installments on each Repayment Date, provided, however, that the last installment shall be in the amount necessary to repay in full the Loan then outstanding.

 

[in case of lump-sum repayment]

The Borrower shall repay the Loan in at the date falling on [·] days from final Disbursement

 

Section 6.2  Letter of Inclusion

 

The Borrower shall, within [·] ([·]) days after the execution of this Agreement and as one of the condition precedent documents to initial Disbursement, deliver or cause to be delivered to the Lender a Letter of Inclusion for the Facility substantially in the form and substance of Exhibit D attached to the Comprehensive Guarantee Arrangement and duly executed by the Guarantor.

 

Section 6.3  Voluntary Prepayment 

 

(a) Upon giving not less than [·] ([·]) days’ prior written notice to the Lender and the Guarantor, 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 repayment 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 6.4  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 [·] Business Days prior to the due date for any payment hereunder.

 

Section 7.2  Business Day

 

If any payment to be made by the Borrower under this Agreement falls due on any day which is not a Business Day, such payment shall be made on the immediately following Business 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

 

As conditions precedent to the initial Disbursement hereunder, (i) all of the the Commitment Fee, the Exposure Fee, the Management Fee and any other amounts including expenses under Section 5.4 which are due as of the date of the initial Disbursement shall have been paid in full and (ii) the following documents and evidence shall have been received by the Lender, in form and substance satisfactory to the Lender:

 

(a)      Contract.  A certified executed copy of the Contract and amendment thereto, if any and, if necessary, evidence that the Contract and amendment thereto, if any is in full force and effect;

 

(b)      Letter of Inclusion.  The Letter of Inclusion duly executed by the Guarantor; and

 

(c)      Legal Opinion. A legal opinion of legal counsel to the Borrower substantially in the form of Exhibit C.

 

(d)     All the documents and authorizations referred to in this Article 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

* (This Article 9 may be deleted upon the Guarantor’s request)

 

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 Borrower’s 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 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 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  No 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

* (This Article 10 may be deleted upon the Guarantor’s request)

 

 

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 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 or the Guarantor 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 ten (10) 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 thirty (30) 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 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.

* (Alternatively)

[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 or the Guarantor 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 Guarantor becomes insolvent or commits or permits any act of bankruptcy, reorganization, liquidation or winding-up.

 

(c) 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.

  

(d) 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 Guarantor to perform all or any of their respective obligations under 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, andEvent of Default provided in Section 11.1 Paragraph (a) shall occur and be continuing, (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 [Place of the Court] 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  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, however, that the Borrower may not assign or transfer any of its obligations under this Agreement 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.

 

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 Guarantor 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 [BORROWER]   By __________________ Name : [·] Title : [·]

For and on behalf of The Export-Import Bank of Korea   By __________________ Name : [·] Title : [·]

 

< Exhibit A to Credit Agreement>

 

REQUEST FOR DISBURSEMENT

 

Date : [·]

Request No.: [·]

Amount of Loan: US$[·]

 

To: The Export-Import Bank of Korea

[Address]

Attention : [·] Department

 

In accordance Credit Agreement dated [·], 20[·] (the "Agreement") between [·] [Name of the Borrower] and the Export-Import Bank of Korea, we hereby request you to make a Disbursement in the amount of [·] U.S. Dollars (US$[·]). 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 : [·]

 

 

*CONFIRMATION

 

 

We, as the Guarantor, hereby confirm the Borrower’s Request for Disbursement under the Credit Agreement between [·] and [·] as of [·] and our Letter of Inclusion issued on [·] in accordance with the Comprehensive Guarantee Arrangement between KEXIM and our Bank on the date of [·].

 

 

 

 

For and on behalf of

[GUARANTOR]

                       

Name : [·]

Title [·]:

 

 

* This Confirmation duly signed by the Guarantor should be attached to the Request for Disbursement before it is submitted to the Lender.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

< Exhibit B to Credit Agreement >

 

NOTICE OF DISBURSEMENT

                                            

Date : [·]

Disbursement No.: [·]

Amount of Loan : US$ [·]

 

To : [Name andAaddress of the Borrower]

Attention : [·]

 

Cc : [·] [Name and Address of the Guarantor]

Attention : [·]

 

In accordance Credit Agreement dated [·], 20[·] (the "Agreement") between [·] [Name of the Borrower] and the Export-Import Bank of Korea, and your Request for Disbursement No. [·] dated [·], 20 [·], we hereby notify you that the amount specified below was disbursed as follows:

 

Disbursement Date: [·]

Account Disbursement Made to: No. [·] at [·] [Names of Bank account holder]

Disbursement Amount: [·] U.S. Dollars (US$[·]).

 

This Notice shall be conclusive and binding in the absence of manifest error.

 

Capitalized terms used herein have the meanings assigned to them in the Agreement.

 

 

For and on behalf of

The Export-Import Bank of Korea

 

                       

Name : [·]

Title : [·]

 

 

<Exhibit C to Credit Agreement>

 

OPINION OF COUNSEL TO BORROWER

 

To : [·]

The Export-Import Bank of Korea

[Address]

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 Credit Agreement dated [·] (the "Agreement") between the Borrower and The Export-Import Bank of Korea (the "Lender"):

 

(A) The Agreement; and

(B) 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 [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.

 

2. Authorization.  The execution, delivery and performance by the Borrower of the Agreement 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 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 the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its 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.

 

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.

 

8. No Stamp Duty, Tax or Other Charges.  No stamp duty, tax or other charges are payable on or by reason of the execution and delivery by the Borrower of the Agreement. All sums payable by the Borrower under the Agreement will be made without any deduction of or an account of any tax, levy, impost, duty, charge, fee, deduction or withholding of whatsoever nature imposed by any taxing authority of the Borrower’s country.

 

9. 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.

 

10. Jurisdiction.  The Borrower has the power to submit, and pursuant to the Agreement has legally, validly and irrevocably submitted, to the jurisdiction of the [·] courts sitting in [Place of the Court] in respect of any action or proceeding arising out of or relating to the Agreement. In the event that a judgment of such courts were obtained after service of process in the manner specified in the Agreement, the same would be recognized and enforced by the courts of [Borrower’s country] without a further review on the merits, provided, however, that [·] [list of applicable conditions for the recognition and enforcement of a foreign judgment in the Borrower’s country]

 

 

Very truly yours,

 

 

[Name of the Law Firm]

 

                                  

Name : [·]

Title : [·]

 

1 Comprehensive Guarantee Arrangement.doc