LOAN AGREEMENT, 대출 계약서, 영문계약서

For Overseas Project

 

LOAN AGREEMENT(Revolving)

 

 

 

US$ [•]

 

 

between

 

 

[Name of the Borrower]

 

as Borrower

 

 

 

and

 

 

 

THE EXPORT-IMPORT BANK OF KOREA

 

as Lender

 

 

 

 

Dated [•],  20[•]

TABLE OF CONTENTS

Page

Section 1.  Definitions and Interpretation ··················································· 1

Section 2.  The Facility ········································································ 3

Section 3.  Loan Approval and Disbursement ·············································· 3

Section 4.  Interest, Default Interest and Fees ·············································· 4

Section 5.  Repayment ··········································································5

Section 6.  Security ············································································ 6

Section 7.  Payments and Currency ·························································· 6

Section 8.  Conditions Precedent ····························································· 7

Section 9.  Representations and Warranties ················································ 8

Section 10.  Covenants ······································································· 10

Section 11.  Events of Default ······························································ 12

Section 12.  Governing Law and Jurisdiction ············································· 13

Section 13.  Miscellaneous ·································································· 14

 

Annex A  Letter of Guarantee ······························································· 17

Annex B  Request for Loan ································································· 19

Annex C  Certificate of Authority ·························································· 20

Annex D  Acceptance Letter of Process Agent ··········································· 21

Annex E  Legal Opinion of Counsel to Borrower ········································ 22

 

 

LOAN AGREEMENT

 

 

THIS LOAN AGREEMENT made and entered into as of [DATE], 20[•] by and between :

[•] (the "Borrower") a corporation duly organized and existing under the laws of [•] 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 Korea with its head office at 16-1, Yoido-dong, Youngdungpo-gu, Seoul, Korea.

 

 

WITNESSETH:

 

Whereas, the Borrower is a subsidiary of [•] , a Korean corporation with its registered head office at [•].

 

Whereas, the Borrower has requested the Lender to extend revolving credit facility in an outstanding principal amount not to exceed [•] U.S. Dollars (US$ [•] ); 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:

 

 

Section 1.  Definitions and Interpretation

 

1.1  Definitions.  The following terms shall, unless the context otherwise requires, have the following meanings whenever used in this Agreement:

 

"Availability Period" means the period commencing on the date hereof and terminating on the earlier of (i) [•] , 20[•] or such later date as may be agreed upon between the Borrower and the Lender, and (ii) the date on which the Facility is cancelled or terminated in accordance with the terms of this Agreement.

 

"Banking Day" means a day on which banks are open for business in Seoul, New York and [•].

 

"Borrower's Country" means [•].

 

"Event of Default" means any event or circumstance specified as such in Section 11.1.

 

"Facility" means the revolving credit facility to be made in favor of the Borrower under this Agreement or the outstanding amount of such loan facility, as the context may require.

 

“Final Maturity Date” means [•], 20[•].

 

"Guarantee" means the absolute and unconditional letter of guarantee to be issued by the Guarantor in favor of the Lender in the form of Annex A.

 

"Guarantor" means [•], a corporation duly organized and existing under the laws of [•] with its registered head office at [•].

 

“Interest Payment Date" means the [•] th day of each [•], [•], and [•], from the date hereof until the Final Maturity Date.

 

"Interest Period" means an interest period ascertained in accordance with Section 4.2.

 

"Korea" means the Republic of Korea.

 

"LIBOR" means the ( [•] ) months rate displayed by the Lender.

 

"Loan" means each disbursement under the Facility made in accordance with the terms of this Agreement or the principal amount of such loan, as the context may require.

 

"Margin" means [•] percent ( [•] %).

 

"Mortgage" means a first priority mortgage, in the amount of [•] U.S. Dollars (US$ [•] ) which is [•] percent ( [•] %) of the Facility, over the land, buildings and equipment of the Borrower's plant located at [•] .

 

"Mortgage Agreement" means the mortgage agreement to be entered into between the Borrower and the Lender providing for the grant of the Mortgage to the Lender.

 

"Request for Loan" means a written request of the Borrower to make a loan under the Facility in the form of Annex B.

 

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

 

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.

 

 

Section 2.  The Facility

 

2.1  Amount.  Subject to the terms and conditions of this Agreement, the Lender hereby establishes the Facility in favor of the Borrower in an outstanding principal amount not to exceed [•] U.S. Dollars  (US$ [•] ).

 

2.2  Purpose.   The proceeds of the Facility shall be used exclusively for financing general working capital requirements of the Borrower.

 

 

Section 3. Loan Approval and Disbursement

 

3.1 Request for Loan.  (a) Upon fulfillment of all the conditions precedent set forth in Section 8, the Borrower shall from time to time request the Lender to make a Loan on any Banking Day during the Availability Period by sending the Request for Loan duly completed and signed by an authorized representative of the Borrower.

 

 

(b) Upon Request for Loan, the requested amount of such Request for Loan plus then outstanding aggregate principal amount of Loan shall not exceed the amount of the Facility described in Section 2.1. The requested loan amount of each Request for Loan shall not be less than [•] United States Dollars (US$ [•] ).

 

3.2 Loan Approval and Disbursement.  (a) Upon the receipt of the Request for Loan, the Lender shall decide whether it approves or disapproves the Loan considering, inter alia, the amount, availability and purpose of the Loan.

 

(b) If the Lender approves a Request for Loan, the Lender shall immediately disburse the requested Loan amount to the Borrower's account designated in such Request for Loan, provided, however, that in any case such payment shall be made within [•] Banking Days after a receipt by the Lender of a Request for Loan.

 

3.3 Notice of Disbursement. Upon each disbursement of the Loan made under this Agreement, the Lender may notify the Borrower in writing of the date and amount of such Loan. Such notice shall, in the absence of manifest error, be conclusive evidence as to the date and amount of the Loan concerned.

 

3.4 Availability.  The Lender shall have no obligation to make any Loan after the last day of the Availability Period. Any portion of the Facility undisbursed at the end of the Availability Period shall be automatically cancelled.

 

 

Section 4.  Interest, Default Interest and Fees

 

4.1 Interest. (a) The Borrower shall, on each Interest Payment Date, pay interest on the daily outstanding and unpaid amount of the Loan for each Interest Period at the rate per annum equal to the sum of the Margin and LIBOR.

 

(b) Interest shall accrue from and including the first day of each applicable interest period to but excluding the last day of such period, and shall be computed on the basis of the actual number of days elapsed and a year of 360 days.

 

4.2 Interest Periods. (a) The first Interest Period shall commence on the date of the first disbursement of the Loan and end on the first applicable Interest Payment Date after the first Disbursement Date, and each following Interest Period shall commence on the last date of the previous Interest Period and end on the immediately subsequent Interest Payment Date, provided, however, that any Interest Period which otherwise extend beyond the Final Maturity Date shall instead end on the Final Maturity Date.

 

(b) Any Interest Period which would otherwise end on a non-Banking Day shall instead end on the next following Banking Day.

 

4.3 Default Interest. (a) If the Borrower fails to pay any amount payable under this Agreement when due (whether at its stated maturity, by acceleration or otherwise), the Borrower shall pay to the Lender default interest (the "Default Interest") on such overdue amount at the rate per annum equal to the sum of (i) [•] percent ( [•] %), (ii) the Margin and (iii) the relevant LIBOR. 

 

(b) The Default Interest shall accrue during the period from and including such due date to but excluding the date of actual payment thereof, and shall be computed on the basis of the actual number of days elapsed and a year of 360 days.

 

4.5 Expenses.  (a) The Borrower shall, whether or not any portion of the Facility is disbursed, reimburse the Lender on demand for all reasonable expenses, including legal fees of counsel, incurred by the Lender in connection with the preparation, execution and amendment of this Agreement.

 

(b) The Borrower shall reimburse the Lender on demand for all reasonable expenses, including legal fees of counsel, incurred by the Lender in demanding, suing for and recovering payment of any sums due under this Agreement from and after the occurrence of an Event of Default.

 

(c) The Lender shall provide the Borrower with reasonably detailed statements of such expenses.

 

 

Section 5.  Repayment

 

5.1 Repayment (a) Upon giving not less than five (5) Banking Days prior written notice to the Lender, the Borrower may repay all or any portion of then outstanding of the Loan together with all interest accrued to the date of repayment on the amount repaid and with all other amounts then payable under this Agreement, provided, however, that each Loan shall not be repaid within one (1) month after the date of its disbursement.

(b) As the Facility is revolving, any amount so repaid shall, subject to the terms of this Agreement, be available for further Loan during the Availability Period.

 

(c) The Borrower shall repay all amount of the outstanding of the Loan together with all interest accrued and with all other amounts then payable under this Agreement on the Final Maturity Date

 

 

Section 6.  Security

 

6.1  Guarantee.  The Borrower shall, prior to the initial Loan, deliver or cause to be delivered to the Lender the Guarantee duly executed by the Guarantor.

 

6.2  Mortgage.  (a) The Borrower agrees to grant to the Lender the Mortgage to secure the Loan, interest thereon and any other amounts payable by the Borrower under this Agreement. To create and evidence the Mortgage, the Borrower and the Lender shall, prior to the initial Disbursement hereunder, enter into the Mortgage Agreement in the form and substance satisfactory to the Lender.

 

(b) The Borrower shall, as soon as practicable but within [•] ( [•] ) months from the date of this Agreement at the latest, file and/or record the Mortgage Agreement and other necessary documents and take any other necessary actions required under the laws and regulations of the Borrower's Country to create, preserve and perfect the Mortgage and to enable for the Lender to exercise and enforce its rights under this Agreement and the Mortgage Agreement.

 

 

Section 7.  Payments and Currency

 

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 (Account No. : [•]) with [Name and address of the Bank, or to such other account as the Lender may designate to the Borrower in writing from time to time.

 

7.2  Banking Day.  If any sum payable under this Agreement would otherwise become due on a non-Banking Day, such sum shall become due on the immediately following Banking Day and interest thereon, if any, shall be adjusted accordingly.

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 deductions or withholdings of any nature.

 

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.

 

7.5  Application of Payments.  If any payment made by the Borrower is less than the full amount due, the Lender shall have the right to apply the amount received towards principal, interest or other sums owing hereunder, as the Lender considers appropriate.

 

7.6  Loan Accounts.  The Lender shall maintain on its books in accordance with its usual practice a set of accounts recording the Disbursements, the repayments of the Loan, the computation and payment of interest, and other amounts due hereunder. In any legal proceeding and for the purposes of this Agreement, the entries made by the Lender in such accounts shall, in the absence of manifest error, be conclusive and binding on the Borrower as to the existence and amounts of the obligations of the Borrower.

 

7.7  Dollar Transaction.  The payment of all amounts due under this Agreement in U.S. Dollars is of the essence of this Agreement, and such obligations shall not be discharged by any amount paid in another currency, whether pursuant to a judgment or otherwise, to the extent that the amount so paid on prompt conversion to U.S. Dollars under normal banking procedures does not yield the amount of U.S. Dollars due hereunder.

 

 

Section 8.  Conditions Precedent

 

8.1  Conditions to Initial Loan Approval.  As conditions precedent to the initial Loan Approval hereunder, the Lender shall have received the following documents and evidence:

 

(a) Certificate of authority, substantially in the form of Annex C, of each person (i) who has signed this Agreement on behalf of the Borrower, and (ii) who will sign Requests for a Loan, statements and other documents required under this Agreement;

 

(b) The Guarantee duly executed by the Guarantor and documentary evidence of the authority of the person who has signed the Guarantee together with the authenticated specimen signatures of such person; and

 

(c) A letter from the Process Agent, substantially in the form of Annex D.

 

(d) An executed copy of the Mortgage Agreement; and

 

(e) A legal opinion of legal counsel to the Borrower substantially in the form set out in Annex E.

 

8.2  Conditions to Each Loan Approval.  As conditions precedent to each Loan Approval (including the initial Loan Approval) hereunder, each of the following conditions shall be satisfied as of the date of each Loan Approval:

 

(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 Loan Approval;

 

(b) All representations and warranties made by the Borrower in or in connection with this Agreement shall remain true and accurate in all material respects on and as of the date of each Loan Approval; and

 

(c) All of the documents, authorizations and actions, referred to in Section 8.1 above are in full force and effect as of the date of each Loan Approval or, if any change has occurred, the Lender has received supplementary evidence and signature with respect thereto.

 

 

Section 9.  Representations and Warranties

 

The Borrower represents and warrants to the Lender as follows:

 

9.1 Status of Borrower.  The Borrower is a corporation duly organized and validly existing under the laws of the 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.

 

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 and observance of the terms and conditions of this Agreement.

 

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 its terms.

 

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.

 

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 unsecured indebtedness and obligations of the Borrower except as may be preferred by operation of law.

 

9.6  Governmental Authorizations. All governmental authorizations and actions of any kind necessary to authorize the execution and performance of this Agreement or required for the validity and enforceability against the Borrower of this Agreement have been duly obtained or performed and are valid and subsisting in full force and effect.

 

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.

 

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 that would materially and adversely affect the financial condition or business of the Borrower.

 

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.

9.10  Financial Condition.  The audited financial statements of the Borrower delivered to the Lender are complete and accurate and have been prepared in accordance with generally accepted accounting principles in the Borrower's Country consistently applied. Such financial statements accurately and fairly present the financial condition and results of operations of the Borrower as of the dates stated therein and for the periods then ended.  Since the latest date of such financial statements, there has been no material adverse change in the financial condition or results of operations of the Borrower.

 

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 Disbursement by reference to the facts then existing.

 

 

Section 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:

 

10.1  Use of Facility.  The Borrower shall use the proceeds of the Facility exclusively for the purposes specified in Section 2.2.

 

10.2  Financial Statements.  The Borrower shall provide the Lender with copies of its audited financial statement for each fiscal year as they are available, but in any event not later than [•] months after the end of each of its fiscal year, and such other information respecting the financial condition and operations of the Borrower as the Lender may from time to time reasonably request.

 

10.3 Representation and Warranties.  The Borrower shall ensure that the representations and warranties contained in this Agreement remain true and accurate by reference to the facts and circumstances from time to time existing.

 

10.4  Governmental Authorizations.  The Borrower shall obtain, make and keep in full force and effect all authorizations from and registrations with governmental authorities that may be required for the validity or enforceability against the Borrower of this Agreement.

 

10.5 Maintenance of Business.  The Borrower shall maintain its corporate existence in good standing under and in compliance with all applicable laws and regulations, and shall maintain the present character of its business.

 

10.6 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.

 

10.7  Negative Covenants.  Without the prior written consent of the Lender, which consent shall not be unreasonably withheld, the Borrower shall not:

 

(a) create or permit to subsist any lien or other encumbrance on any of its property other than encumbrances which have been disclosed in writing to the Lender prior to the execution hereof;

 

(b) otherwise than in the ordinary course of business, sell or dispose of all or any substantial part of its assets; or

 

(c) declare or pay any dividend or make any distribution, if an Event of Default or an event which constitute, with the giving of notice or the lapse of time or both, an Event of Default has occurred and is continuing.

 

10.8  Insurance.  The Borrower shall maintain insurance on its property, with financially sound and reputable insurers, to the extent and against the risks customary for companies in similar businesses.

 

10.9  Consultation and Visit.  The Borrower shall, from time to time, at the request of the Lender, consult with the Lender with respect to the implementation and administration of this Agreement and the Mortgage Agreement. The Borrower shall, at the reasonable request of the Lender, enable representatives of the Lender to visit any part of its premises for purposes related to this Agreement.

 

10.10  Additional Documents.  The Borrower shall furnish the Lender with such additional documents, instruments, opinions and information as the Lender may reasonably request for purposes of this Agreement.

 

Section 11.  Events of Default

 

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 make payment of any amount payable under this Agreement on the date when such amount is due in accordance with the provisions of this Agreement.

 

(b) The Borrower fails to perform or violates any other provision of this Agreement (other than the provisions of this Section 11.1) and such failure or violation is not remediable or, if remediable, continues uncured for a period of [•] days after receipt by the Borrower of a written notice from the Lender with respect thereto.

 

(c) Any representation or warranty made or deemed to be made by the Borrower in this Agreement, or by the Guarantor in the Guarantee, 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 or the Guarantor 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 who 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, does or will prevent or materially imperil fulfillment by the Borrower or the Guarantor of their respective obligations under this Agreement or the Guarantee, as the case may be.

 

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, (iii) request the Borrower to furnish the Lender with additional security acceptable to the Lender and/or (iv) 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.

 

 

Section 12.  Governing Law and Jurisdiction

 

12.1  Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of [Name of the Country].

 

12.2  Jurisdiction.  (a) The Borrower agrees that any legal action or proceeding arising out of or relating to this Agreement may be brought in the Seoul District Court in Seoul, Korea, and the Borrower hereby irrevocably submits to the non-exclusive jurisdiction of such court in respect of any such action or proceedings.  The Borrower irrevocably and unconditionally waives any objection, which it may now or hereafter have to the laying of the venue of any legal action or proceeding arising out of or relating to this Agreement in [•].

 

(b) The foregoing provisions shall not limit the right of the Lender to bring any legal action or proceeding arising out of or relating to this Agreement in any other jurisdiction.

 

12.3 Process Agent.  The Borrower hereby irrevocably appoints [•] presently at [Address of the Process Agent] as its agent to receive for and on its behalf service of process in Seoul in any action or proceeding with respect to this Agreement.  If the agent named above shall, for any reason, be unable to perform its functions as such agent, the Borrower shall appoint a successor agent for service of process acceptable to the Lender. The Borrower also irrevocably consents to service of process upon it in any such action or proceeding in any manner authorized by the laws of the appropriate jurisdictions.

 

12.4  Waiver of Immunity.   The Borrower irrevocably waives 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.

 

 

Section 13.  Miscellaneous

 

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.

 

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.

 

13.3  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 without the prior written consent of the Lender.

 

13.4      Communications.  (a) Any notice, demand or other communication to be given or made under this Agreement shall be in writing and delivered or sent to the relevant party at its address or telex number or fax number set out below (or such other address or telex number or fax number as the addressee has by prior written notice specified to the other party):

 

(i)          To the Lender

 

Address :  The Export-Import Bank of Korea

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

Attention :

Telex No. : [•]

Fax No. : [•]

 

(ii) To the Borrower

 

Address : [•]

Telex No. : [•]

Fax No. : [•]

 

(b) Any notice, demand or other communication so addressed to the relevant party shall be deemed delivered (i) if given or made by letter, [•] days after sending, (ii) if given or made by telex, when dispatched with confirmed answerback and (iii) if given or made by fax, when dispatched with a simultaneous confirmation of transmission, provided that, if such day is not a working day in the place to which it is sent, such notice, demand or other communication shall be deemed delivered on the next following working day at such place.

 

(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.

 

13.5  Severability.  If any one or more of the provisions contained in 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.

 

13.6  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

[Name of the Borrower]                          The Export-Import Bank of Korea

                                                             

Name :                                  Name :

Title :                                   Title :

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

<Annex A>

 

LETTER OF GUARANTEE

 

Date : [•]

The Export-Import Bank of Korea

Seoul, Korea

Attention: [TITLE], [•] Department

 

Dear Sirs:

 

In connection with the Loan Agreement dated [•] , 20[•]   entered into between [•] as 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 any and all sums payable by the Borrower in accordance with the Loan Agreement.

 

(A) the outstanding principal amount of the Loan up to U.S. Dollars (US$ [•] )

 

(B)  the amount of interest on the Loan at the rate per annum equal to the sum of [•] percent ( [•] %) and LIBOR which shall be determined by the Lender in accordance with terms of the Agreement;

 

(C)  the default interest on the unpaid Loan and interest at the rate per annum equal to the sum of [•] percent ( [•] %) and LIBOR which shall be determined by the Lender in accordance with terms of the Agreement; and

 

(D)  any other amounts payable by the Borrower.

 

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 [Name of the Country].  The Guarantor irrevocably agrees that any legal action or proceeding arising out of or relating to this Guarantee may be brought in the Seoul District Court in Seoul, Korea, 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 B>

 

REQUEST FOR LOAN

                                            

Date : [•]

 

The Export-Import Bank of Korea

Seoul, Korea

 

Attention: [TITLE], [•] 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 Loan in the amount of [•] U.S Dollars (US$ [•] ) to 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.

 

We hereby certify that: (i) the Loan made pursuant to this Request shall constitute a valid Loan 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 : [•]

 

Attachment: Detailed Purpose of the Loan.

 

 

<Annex C>

 

CERTIFICATE OF AUTHORITY

 

The Export-Import Bank of Korea                                    Date : [•]

Seoul, Korea

Attention: [TITLE], [•] Department

 

Dear Sirs:

 

With reference to the Loan Agreement dated [•] (the "Agreement") between [•] (the "Borrower") and The Export-Import Bank of Korea as the Lender, the undersigned, [TITLE] of the Borrower, duly authorized to do so, hereby certify that the following are the names, titles 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 D>

 

ACCEPTANCE LETTER OF PROCESS AGENT

 

Date : [•]

 

The Export-Import Bank of Korea                            

Seoul, Korea

 

Attention : [TITLE], [•] Department

 

Dear Sirs:

 

We understand that, pursuant to the terms of the Loan Agreement dated [•], 20[•] (the "Agreement") between [•] (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 with respect to the Agreement instituted in the Seoul District Court in Seoul, Korea.

 

We hereby irrevocably accept such appointment.

 

Very truly yours,

 

[Name of the Process Agent]

 

 

                       

Name : [•]

Title : [•]

 

 

 

 

 

 

 

<Annex E>

 

LEGAL OPINION OF COUNSEL TO BORROWER

 

The Export-Import Bank of Korea

Seoul, Korea

 

Attention: [TITLE], [•] 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; and

 

(B) 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 its political subdivisions, 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 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 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.

 

7. Choice of Law.  The choice by the parties to the Agreement of the laws of [Name of the Country] is legal, valid and binding.

 

 

Very truly yours,

 

 

 

[Name of the counsel]

 

1_2 Overseas Project Loan Agreement(Revolving).doc