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PLANT SUPPLY AGREEMENT, 영문계약서, 플랜트 공급 계약서 본문
PLANT SUPPLY AGREEMENT
BETWEEN
[Name of the Purchaser]
AS PURCHASER
AND
[Name of the Supplier]
AS SUPPLIER
Dated[•], 20[•]
TABLE OF CONTENTS
PREAMBLE PAGE
ARTICLE 1. DEFINITIONS ·································································· 1
ARTICLE 2. THE COMMODITIES ························································· 3
ARTICLE 3. PAYMENT ······································································· 4
ARTICLE 4. SECURITY ······································································· 6
ARTICLE 5. SHIPMENT ······································································ 6
ARTICLE 6. INSPECTION ···································································· 7
ARTICLE 7. FORCE MAJEURE ····························································· 8
ARTICLE 8. WARRANTY ···································································· 8
ARTICLE 9. DEFAULT 10 ··································································· 10
ARTICLE 10. ARBITRATION ······························································ 13
ARTICLE 11. ASSIGNMENT ······························································· 14
ARTICLE 12. TAXES ········································································· 14
ARTICLE 13. PATENTS, TRADEMARKS, AND COPYRIGHTS ···················· 15
ARTICLE 14. CONFIDENTIALITY ······················································· 15
ARTICLE 15. NOTICE ······································································· 15
ARTICLE 16. EFFECTIVE DATE ·························································· 16
ARTICLE 17. MISCELLANEOUS ························································· 16
SCHEDULE Ⅰ. THE COMMODITIES ············································· 19
SCHEDULE Ⅱ. SPECIFICATIONS ················································· 20
SCHEDULE Ⅲ. DELIVERY SCHEDULE ·········································· 21
SCHEDULE Ⅳ. CERTIFICATE OF ACCEPTANCE ······························ 22
EXHIBIT A. FORM OF PROMISSORY NOTE ······························ 23
EXHIBIT B. FORM OF LETTER OF GUARANTEE ······················· 26
EXHIBIT C. FORM OF LETTER OF COMMITMENT ····················· 31
SUPPLY AGREEMENT
This Plant Supply Agreement (the "Agreement"), made and entered into this [•] day of 20[•] by and between [•], a corporation organized and existing under the laws of [Name of the Country] having its registered office at [•] ("Purchaser") and [•], a corporation organized and existing under the laws of [Name of the Country] having its registered office at [•] ("Supplier").
WITNESSETH :
WHEREAS, Supplier possesses technical information and manufacturing skills with respect to [•] ; and
WHEREAS, Purchaser desires to purchase from Supplier on a deferred payment basis and Supplier agrees to manufacture and supply on a deferred payment basis to Purchaser, a certain quantity of [•] as more specifically described herein (the "Commodities") upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter contained the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS
In addition to the terms defined above, as used herein the following terms shall have the meanings set forth below:
"Bill of Lading" shall mean the bill of lading issued with respect to each shipment of the Commodities.
"Banking Day" shall mean a day on which banks are open for business in
"Certificate of Acceptance" shall have the meaning set forth in Article 6.02.
"Contract Price" shall mean the aggregate amount of the Installments and the Principal Amount to be paid by Purchaser to Supplier hereunder, which such amount is [•] United States Dollars (US$ [•] ).
"Default Rate" shall mean [•] percent ( [•] %) per annum.
"Dollars" and the sign "$" shall mean dollars in the lawful currency of the
"Effective Date" shall have the meaning set forth in Article 16.
"Event of Default" shall have the meaning set forth in Article 9.01.
"Factory" shall have the meaning set forth in Article 2.02.
"First Installment" shall mean the first payment to be made by Purchaser hereunder which such payment shall be in the amount of [•] Dollars(US$ [•] ).
["Guarantor" shall mean a first class international bank satisfactory to Supplier.] References to "Guarantor" and "Letter of Guarantee" or "Standby Letter of Credit" and "L/C Banks" should be included in this Agreement in accordance with the kind of security required by Supplier and Exim Bank.
"Installments Payable on or before the last Shipment" shall mean, collectively, the First Installment, the Second Installment and the Third Installment [•]. If necessary, there can be more Installments according to the nature of the Agreement.
"Interest Payment Date" shall mean the last day of each Interest Period.
"Interest Period" shall mean the period beginning on the last Shipment Date and having a duration of six (6) months and each period thereafter commencing on the last day of the then current Interest Period and having a duration of six (6) months.
"Interest Rate" shall mean [•] percent ( [•] %) above CIRR (Commercial Interest Reference Rate) under the OECD Guidelines prevailing at the time of the Loan Commitment to the Supplier by the Export-Import Bank of Korea (KEXIM).
"Last Shipment Date" shall mean the final Shipment Date set forth in Schedule Ⅲ hereto.
["Letter of Guarantee" shall mean the irrevocable and unconditional guarantee to be issued by the Guarantor guaranteeing the payment of all sums due and payable under the Notes, substantially in the form of Exhibit B hereto and in any event in form and substance satisfactory to Supplier and its counsel.]
"Notes" shall mean the promissory notes of Purchaser evidencing the Principal Amount which such notes shall be substantially in the form of Exhibit A hereto and in any event in form and substance satisfactory to Supplier and its counsel.
"Payment Date" shall mean each of the [•] consecutive semi-annual dates occurring on [•] and [•] of each year, the first Payment Date being [•], 20[•] and the last Payment Date being [•], 20[•].
"Principal Amount" shall mean [•] Dollars (US$ [•] ) and in any event, the amount equal to [•] percent ( [•] %) of the Contract Price.
"Second Installment" shall mean the second payment to be made by Purchaser hereunder, which such payment shall be in the amount of [•] Dollars (US$ [•] ).
"Shipment Date" shall mean the date entered on the Bill of Lading with respect to each shipment of the Commodities.
"Specifications" shall mean the specifications to be used for the manufacture of the Commodities as more specifically set forth in Schedule Ⅱ.
"Third Installment" shall mean the third payment to be made by Purchaser hereunder, which such payment shall be in the amount of [•] Dollars (US$ [•] ).
ARTICLE 2. THE COMMODITIES
2.01 Description
The description, quantity and unit price of the Commodities to be supplied by Supplier to Purchaser hereunder shall be as set forth in Schedule Ⅰattached hereto. All prices stated herein are CIF [•].
2.02 Specification
The Commodities shall be manufactured in accordance with the Specifications set forth in Schedule Ⅱ hereto. Manufacture of the Commodities shall occur at [•] (the "Factory"), or such other place as Supplier shall notify Purchaser. Supplier may at its own risk subcontract any part of the work undertaken hereunder without prior consent of Purchaser.
2.03 Samples
Supplier shall within [•] day after the Effective Date in accordance with Purchaser's written instructions produce such samples of the Commodities as Purchaser may reasonably require. The unit prices to be paid by Purchaser for the samples shall be determined by mutual agreement of the parties prior to the manufacture thereof. The samples may be altered, adapted or otherwise changed as Purchaser may reasonably demand to meet its requirements. Upon manufacture of the samples to the satisfaction of Purchaser, Purchaser shall notify Supplier in writing of its acceptance thereof, and thereafter full commercial production of the Commodities shall begin.
ARTICLE 3. PAYMENT
3.01 Terms of Payment
The Contract Price shall be in an amount not exceeding [•] United States Dollars (US$ [•] ) and shall be paid by Purchaser to Supplier in Dollars as follows:
(a) The Installments Payable on or before the last Shipment
The First Installment of [•] United States Dollars (US$ [•] ) shall be paid within [•] days after the Effective Date. The Second Installment of [•] Dollars ($ [•] ) shall be paid upon the [•] ( [•] th) Shipment Date set forth in Schedule Ⅲ hereto or on [•] whichever comes earlier. The Third Installment of [•] Dollars ($ [•] ) shall be paid on the [•] ( [•] th) Shipment Date set forth in Schedule Ⅲ hereto or on [•] whichever comes earlier. Purchaser shall remit the full amount of each of the Installments in immediately available funds by telegraphic transfer to the account of the Export-Import Bank of Korea with [Name and Address of the Bank] (Account Number [•]) in favor of the Supplier.
(b) Principal Amount
The Principal Amount shall be paid in [•] equal (or as nearly equal as possible) semi-annual installments one such installment being payable on each Payment Date. The last installment shall in any event be in the amount necessary to pay in full the Principal Amount outstanding. The Principal Amount and interest thereon shall be evidenced by and paid in accordance with the Notes which shall be executed and delivered by Purchaser to Supplier pursuant to Section 4.01 hereof.
(c) Interest
Purchaser agrees to pay interest on the Principal Amount outstanding from time to time on each Interest Payment Date for the Interest Period then ending at the Interest Rate. Interest shall accrue on the basis of the actual number of days elapsed and a year of 360 days. Interest shall accrue from and including the first day of an Interest Period to but not including the last day of such Interest Period.
3.02 Prepayment
Purchaser may prepay, in whole or in part, the Principal Amount together with all interests and other amounts then due hereunder on any due date of a Note, provided that the Purchaser shall have given not less than [•] days' prior written notice thereof to the Supplier, and shall pay to the Supplier a prepayment premium equal to the amount of the prepayment amount multiplied by the interest rate which means as in "the Article 1. Definitions" hereof and multiplied by [•], if the remaining repayment period from the date of prepaying the said prepayment amount is three [•] years or less, or multiplied by [•], if the remaining repayment period is between over [•] years and [•] years. Notwithstanding the foregoing, the Purchaser may prepay, without any prepayment premium, the Principal Amount if the remaining repayment period is [•] months or less. The amount of any prepayment shall be equal to the amount of an installment of repayment of Principal Amount or an integral multiple thereof. Any prepayment shall be applied to the installments of Principal Amount in inverse order of maturity.
ARTICLE 4. SECURITY
4.01 Notes
Purchaser shall, within [•] Banking Days before the Last Shipment Date, duly execute and deliver to the Supplier [•] Notes respectively numbered "1" to " [•] " inclusive, evidencing the Purchaser's obligation to pay to the Supplier the Principal Amount plus interest thereon.
4.02 Guarantee
Within [•] Banking Days before the Last Shipment Date, Purchaser shall furnish Supplier with the Guarantee duly executed by the Guarantor.
ARTICLE 5. SHIPMENT
5.01 Shipment Schedule
Supplier shall cause shipment of the Commodities at any Korean port reasonably designated by Supplier not later than the end of each month commencing from [•] to [•] in accordance with Schedule Ⅲ attached hereto. The Last Shipment Date shall be made not later than [•], excluding delays due to such causes as defined in Article 7 hereof.
5.02 Shipping Advice
Shipping advice shall be given by Supplier to Purchaser promptly after the on-board date of the Bill of Lading and shall contain such information as the contract number, loading port, brief description of the Commodities shipped, name of vessel, expected time of arrival, invoice amount of shipment, and the name of the claim settling agent (if necessary) in Korea.
5.03 Title and Risk of Loss
Title to and risk of loss of the Commodities shall pass to Purchaser when the Commodities have effectively passed the ship's rail at the port of shipment.
5.04 Packing and Marking
Commodities shall be packed in accordance with standard export packing methods and shall be marked in accordance with the reasonable instruction of Purchaser.
5.05 Insurance, Freight, Export License
Supplier shall be responsible for insuring against all risks in maritime transportation from the time the Commodities effectively pass the ship's rail at the port of shipment and shall pay freight for the maritime transportation of the Commodities. Supplier at its own expense will obtain all necessary permits or licenses to export the Commodities prior to the relevant Shipment Date thereof.
ARTICLE 6. INSPECTION
6.01 Time and Place of Inspection
Prior to each Shipment Date, Purchaser of its agent or representative shall at its own expense inspect the Commodities at the Factory or such other place as may be notified by Supplier to Purchaser. Supplier shall provide Purchaser with all reasonable assistance in conducting the inspection. Supplier shall give Purchaser [•] days prior notice of the date on and the place at which the relevant Commodities will be ready for final inspection. If Purchaser fails to conduct inspection at such place within [•] days from the date stated in Supplier's notice, Supplier may conduct the final inspection without Purchaser being present, and in such case the Purchaser shall be obligated to accept such Commodities as are determined by Supplier to be in conformance with this Agreement.
6.02 Result of Inspection
Any Commodity or any accessory or part thereof failing to comply within [•] % of the Specification shall be deemed a defective Commodity and Supplier shall replace such Commodity, accessory or part with a conforming Commodity, accessory or part at its own expense. For inspected Commodities deemed to be conforming with the Specifications, Purchaser shall issue to Supplier a written certificate substantially in the form of Schedule Ⅳ to that effect (the "Certificate of Acceptance"), and such issuance shall constitute Purchaser's final and binding acceptance of the Commodities so inspected.
ARTICLE 7. FORCE MAJEURE
7.01 Causes of Delay
If the performance of this Agreement by any party, or of any obligation under this agreement, is prevented, restricted, or interfered with by reason of war, typhoon, revolution, civil commotion, acts of public enemies, blockade, embargo, strikes, lockouts, any law, order, proclamation, regulation, ordinance, demand or requirement having a legal effect of any government, or any other act whatsoever, whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of the party affected of its sub-contractor, including weather, then the party so affected shall, upon giving prior written notice to the other party, be excused from such performance to the extent of such prevention, restriction or interference, provided that the party so affected shall use its best effort to avoid or remove such causes of nonperformance, and shall continue performance hereunder with the utmost dispatch whenever such causes are removed. Upon such circumstances arising, the parties shall meet forthwith to discuss what (if any) modification maybe required to the terms of this Agreement, in order to arrive at an equitable solution.
7.02 Excessive Delay
If the total accumulated time of all delays with respect to each shipment on account of the causes specified in Section 7.01 of this Article aggregates or can reasonably be expected to aggregate [•] calendar days or more, then in such event either party may terminate this Agreement in accordance with the provisions of Article 9 hereof.
ARTICLE 8. WARRANTY
8.01 Warranty Terms
Subject to the limitations set forth below, Supplier warrants that the Commodities will be free from defects in material and workmanship and undertakes to repair or replace free of charge any defective parts, including repaired or replaced parts, in the Commodities provided, however, that the parties expressly acknowledge and agree that this warranty is limited to only such defects in the commodities which are (i) due solely to defective material and/or poor workmanship on the part of Supplier and/or its sub-contractors, (ii)discovered within [•] months after the shipment date of the applicable commodity and (iii) for which notice thereof is duly given to Supplier as provided in Article 8.02 below.
8.02 Notice of Defects
Purchaser shall notify Supplier in writing, or by telex confirmed in writing, within [•] days after discovery of any defects for which claim is made hereunder. Purchaser's failure to give Supplier such notice within [•] days after discovery of the defect shall constitute an absolute, irrevocable and unconditional waiver of any and all claims arising out of or in any way connected with such defect.
8.03 Remedy of Defects
Upon receipt of notice, Supplier shall promptly deliver the replacement part(s) free of charge CIF [•] , or such other port as may be reasonably designated by Purchaser.
8.04 Disclaimer
Purchaser expressly acknowledges and agrees that the warranty contained herein shall not extend to material which ages or deteriorates due to ordinary wear and tear, or to defects or conditions caused, in whole or in part, by deficiencies in supplies, services or facilities furnished by Purchaser. in addition, this warranty does not extend to commodities that have been altered or repaired by personnel unauthorized by Supplier, or which have been subjected to misuse, neglect, improper maintenance, accident, or improper installation or storage by Purchaser, its customers or personnel acting at Purchaser's direction or behalf.
8.05 Purchaser's Responsibility
Purchaser shall indemnify and hold Supplier harmless against any and all claims, proceedings, losses, liabilities, suits, judgments, costs, expenses, penalties or fines for injury or damage to any property or person arising out of or in any way connected with the transportation, installation, use, or maintenance of the Commodities. For so long as this Agreement shall remain in force, Purchaser shall procure from a reputable insurance company a Comprehensive General Liability insurance policy (or its equivalent) in the minimum amount of US$ [•] , per occurrence, and shall at its own expense cause Supplier to be listed as a named insured in such policy.
8.06 Service Engineer
Upon Purchaser's request, Supplier shall dispatch a service engineer to a location reasonably designated by Purchaser to assist Purchaser in providing efficient service to its customers for the period of warranty hereunder. Purchaser shall pay to Supplier all costs associated with such service engineer including but not limited to, salary, transportation, communications, and housing.
ARTICLE 9. DEFAULT
9.01 Event of Default
Each of the following events and occurrences shall constitute an event of default ("Event of Default") :
(a) Purchaser fails to pay on the due date any of the First Installment, Second Installment or Third Installment.
(b) Purchaser rejects any shipment of the Commodities following the issuance of a Certificate of Acceptance with respect to such shipment.
(c) Purchaser fails to execute and deliver the Notes in accordance with Article 4.01 or the Guarantor fails to execute and deliver the Letter of Guarantee in accordance with Article 4.02.
(d) Purchaser fails to perform any of its obligations with respect to any of the security instruments provided by it under Article 4 hereof.
(e) Purchaser fails to pay on the relevant due date any payment of principal, interest, expenses or any other amount which it is obligated to pay under the terms of the Notes.
(f) Purchaser fails to perform or violates any provision of this Agreement or the Notes.
(g) Any governmental consent, filing, license or approval granted or required in connection with this Agreement or any Note expires or is terminated, revoked, withdrawn or modified in any way or any new law or decree is issued which in Supplier's opinion would prevent Purchaser from fulfilling its obligations hereunder or under any Note.
(h) The whole or a substantial part of the assets of Purchaser is confiscated or attached.
(i) Purchaser fails to pay when due any indebtedness or fails to observe or perform any term, covenant or agreement contained in any agreement by which it or its assets is bound evidencing or securing any indebtedness, and the effect of such failure is to accelerate, or to permit the acceleration of the maturity of such indebtedness.
(j) Any change occurs in the ownership or control of Purchaser or Guarantor which in the reasonable opinion of Supplier constitutes a material adverse change affecting the financial condition or operations of Purchaser or Guarantor, respectively.
(k) Purchaser or Guarantor suspends or discontinues its business operations, whether voluntarily or involuntarily, for a period of [•] or more days.
(l) Purchaser or the Guarantor becomes insolvent or unable to pay any money due under any agreement or document evidencing, securing, guaranteeing or otherwise relating to indebtedness in excess of $ [•] or its equivalent in any other currency when due or commits or permits any act of bankruptcy, which term shall include (i) the filing of a petition in any bankruptcy, reorganization, winding-up or liquidation proceeding or other proceeding analogous in purpose or effect, (ii) the failure by Purchaser or the Guarantor to have any such petition filed by another party discharged within [•] days, (iii) the application for or consent to the appointment of a receiver or trustee for the bankruptcy, reorganization, winding-up or liquidation of Purchaser or the Guarantor, (iv) the making by Purchaser or the Guarantor of an assignment for the benefit of its creditors, (v) the admission in writing by Purchaser or the Guarantor of its inability to pay its debts, (vi) the passing of a resolution by, or the entry of any court order or judgment confirming the bankruptcy or insolvency of, Purchaser or the Guarantor or approving any reorganization, winding-up or liquidation of Purchaser or the Guarantor or of a substantial portion of their respective properties or assets, or (vii) any creditor of the Guarantor exercises a contractual right to assume the financial management of the Guarantor.
(m) The Guarantor attempts to repudiate, rescind, limit or annul the Letter of Guarantee; or any legislation or regulation is proposed, enacted or promulgated the effect of which would be to repudiate, rescind, limit or annul the Letter of Guarantee; or the Guarantor fails to comply with any legislation or regulations concerning its organization or authority or any change is made in such legislation or regulations which failure or change, in the reasonable opinion of Supplier, has a material adverse effect on the ability of the Guarantor to meet its obligations under the Letter of Guarantee.
(n) It becomes unlawful for Purchaser to perform any obligation under this Agreement or the Notes, or for the Guarantor to perform any obligation under the Letter of Guarantee.
(o) Any competent governmental authority takes (i) any action to condemn, seize, requisition or otherwise appropriate any substantial portion of the properties or assets of Purchaser (either with or without payment of compensation), (ii) any action to dissolve, liquidate or terminate the existence of the Guarantor or to divest the Guarantor of any material portion of its properties or assets, or (iii) any action relating to Purchaser or the Guarantor which, in the opinion of Supplier, adversely affects Purchaser or the Guarantor's ability to pay its indebtedness under this Agreement, the Notes or the Letter of Guarantee.
(p) Any circumstances occur which in the opinion of Supplier give reasonable grounds for belief that Purchaser or the Guarantor may not (or may not be able to) perform its obligations under this Agreement, the Notes or the Letter of Guarantee.
(q) Supplier fails to manufacture the samples to the satisfaction of Purchaser in accordance with Article 2.03 hereof within [•] days after the Effective Date.
(r) Supplier fails to ship Commodities accepted by Purchaser within [•] days after Purchaser's issuance of a Certificate of Acceptance therefor.
(s) Supplier breaches any of its obligations hereunder and such breach is not cured or steps satisfactory to Purchaser have not been taken to effect cure within [•] days of Purchaser's written notice to Supplier.
9.02 Consequences of Default
(a) Upon the occurrence of any of the Events of Default specified in Article 9.01 (a) or (b), successive Shipment Dates shall be postponed until such Event of default is cured; provided, however, that if any such Event of Default continues for a period of [•] days, Supplier may, at its option, rescind this Agreement by giving Purchaser notice to such effect. In the event of such rescission, Supplier shall be entitled to retain all or any part of the Installments paid by Purchaser hereunder.
(b) Upon the occurrence of any of the Events of Default specified in article 9.01 (c)-(p), and at the option of Supplier, the obligations of Supplier hereunder shall immediately cease ; Supplier may declare, by notice to Purchaser without presentment, demand, notice or protest, all of which are hereby expressly waived by Purchaser, the principal of any Installment and the principal and accrued interest on the Principal Amount payable hereunder and all other amounts payable hereunder immediately due and payable together with Default Interest accrued on all such sums from the date of such declaration.
(c) Upon occurrence of any of the Events specified in Article 9.01 (q)-(s), Purchaser may terminate this Agreement ; provided, however, that all amounts then due and payable to Supplier hereunder shall have been paid in full. In the event of such termination, Supplier shall refund the Installments paid by Purchaser hereunder.
(d) All expenses incurred by either party in enforcing its rights hereunder, including the fees and expenses of counsel, shall be paid by the other party.
ARTICLE 10. ARBITRATION
All disputes arising between the parties in connection with this Agreement which cannot be settled by mutual agreement shall be finally settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce before a board of three arbitrators, consisting of one member to be appointed by each of Purchaser and Supplier, respectively, and one third member to be selected by the two members so appointed. In the event the said two arbitrators fail to agree upon a third arbitrator within [•] days from the date of their appointment, the third arbitrator shall then be appointed by the president of the International Chamber of Commerce. The arbitration award may take the form of an order to pay a sum of money, to perform or refrain from an act, or any combination thereof. The award rendered shall be final and conclusive. No payment under this Agreement shall be delayed or withheld by Purchaser on account of any dispute of whatever nature arising between the parties hereto.
ARTICLE 11. ASSIGNMENT
Neither of the parties hereto shall may assign this Agreement to a third party unless prior written consent of the other party has been obtained. In the event of any assignment by Purchaser, such assignment shall further be subject to the approval of Supplier's bank and/or the relevant Korean governmental authorities, and Purchaser shall at all times remain as the primary obligor for the due performance of all of its obligations under this Agreement. This Agreement shall inure to the benefit of and shall be binding upon the lawful successors, transferees and assigns of either of the parties hereto. Notwithstanding the foregoing, Supplier is entitled to assign to any other party its rights under the Notes and/or the Letter of Guarantee [the Stand-by Letter of Credit] without Purchaser's prior consent.
ARTICLE 12. TAXES
12.01 Taxes in
Supplier shall pay all taxes and duties imposed in the
12.02 Taxes outside
Purchaser shall pay all taxes and duties imposed outside the
ARTICLE 13. PATENTS, TRADEMARKS, AND COPYRIGHTS
Nothing contained herein shall be construed as transferring any patent, trademark or copyright in the Commodities or any part thereof, all such rights being hereby expressly reserved to the true and lawful owners thereof.
ARTICLE 14. CONFIDENTIALITY
Supplier shall retain all rights with respect to the Specifications, plans, working drawings, technical descriptions, calculations, test results and other data, information and documents concerning the design and manufacture of the Commodities, and Purchaser hereby agrees not to disclose the same or divulge any information contained therein to any third parties without the prior written consent of the Supplier except to key employees involved in the usual operation or maintenance of the Commodities.
ARTICLE 15. NOTICE
Any and all notices and communications in connection with this Agreement shall be written in the English language and (i) personally delivered, (ii) transmitted by registered airmail postage prepaid, or (iii) transmitted by tested telex to the parties at the following addresses :
To Purchaser :
[Address]
Telex : [•]
To Supplier :
[Address]
Telex : [•]
Any notice given by registered airmail shall be deemed to have been received [•] days from the date of mailing, any notice personally delivered shall be deemed to have been received upon delivery and any notice sent by telex shall be deemed to have been received when sent. Any party may change its address for the purposes hereof by written notice to the other party.
ARTICLE 16. EFFECTIVE DATE
This Agreement shall become effective from the date (the "Effective Date") on which all of the following conditions have been met :
(a) This Agreement has been duly executed and delivered by the parties hereto.
(b) Supplier has obtained the relevant export license with respect to the Commodities from the government of the
Supplier shall promptly give notice to Purchaser upon the fulfillment of each of the above conditions. This Agreement shall terminate upon payment of all amounts due to Supplier under the terms of this Agreement.
ARTICLE 17. MISCELLANEOUS
17.01 Applicable Law
The parties hereto agree that the validity, formation and interpretation of this Agreement, the Notes, and the Letter of Guarantee shall be governed by the laws of [Name of the Country].
17.02 Discrepancies
In the event that any provision contained in the Specifications is inconsistent with any provisions of this Agreement, then in each and every such event the applicable provisions of this Agreement shall prevail.
17.03 Entire Agreement
This Agreement contains the entire agreement and understanding between the parties hereto and supersedes all prior negotiations, representations, understandings and agreements on any subject matter of this Agreement.
17.04 Severability
If any provision of this Agreement or any document executed in connection herewith shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.
17.05 Waiver of Sovereign Immunity
Purchaser represents and warrants that this Agreement is a commercial rather than public or governmental act and that Purchaser is not entitled to claim immunity from legal proceedings with respect to itself or any of its properties or assets on the grounds of sovereignty or otherwise under any law or in any jurisdiction where an action may be brought for the enforcement of any of the obligations arising under or relating to this Agreement or the Notes. To the extent that Purchaser or any of its properties or assets has or hereafter may acquire any right to immunity from set-off, legal proceedings, attachment prior to judgment, other attachment or execution of judgment on the grounds of sovereignty or otherwise, Purchaser for itself and its properties and other assets hereby irrevocably waives such right to immunity in respect of its obligations arising under this Agreement, the Notes and all documents executed in connection herewith.
17.06 Amendment
No provision of this Agreement may be amended, modified, waived or rescinded except by a written agreement executed by the parties hereto.
17.07 Counterparts; Controlling Language
This Agreement may be executed in any number of counterparts. Any single counterpart or a set of counterparts executed, in either case, by both parties hereto shall constitute a full and original agreement for all purposes. This Agreement, all notices delivered hereunder and all documents to be delivered in connection with this transaction shall be in the English language and in the event of any conflict between the English-language version and the non-English-language version of any such notice or document, the English-language version shall prevail.
17.08 Independent Contractors
It is expressly understood and agreed that the relationship between the parties created by this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to constitute either party as agent of the other for any purpose whatsoever, and neither party shall bind or attempt to bind the other party to any contract or the performance of any obligation, nor represent to third parties that it has any right to enter into any binding obligation on the other's behalf.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized signatories as of the day and year first written above.
[PURCHASER] [SUPPLIER]
By : By :
Name : [•] Name : [•]
Title : [•] Title : [•]
SCHEDULE Ⅰ
THE COMMODITIES
|
Description |
Quantity |
Unit Price |
TotalAmount/Commodity |
|
|
Sets |
US$ |
US$ |
|
|
Sets |
US$ |
US$ |
|
|
Sets |
|
|
Total |
Sets |
US$ |
US$ |
SCHEDULE Ⅱ
SPECIFICATIONS
SCHEDULE Ⅲ
DELIVERY SCHEDULE
|
Shipment No. |
Shipment Date (not later than) |
Quantity Per Model |
Total Quantity |
|
1 |
|
|
|
|
2 |
|
|
|
|
3 |
|
|
|
|
4 |
|
|
|
|
5 |
|
|
|
|
6 |
|
|
|
|
7 |
|
|
|
|
8 |
|
|
|
|
9 |
|
|
|
|
10 |
|
|
|
|
11 |
|
|
|
|
12 |
|
|
|
TOTAL |
|
|
|
SCHEDULE Ⅳ
TO : [SUPPLIER]
CERTIFICATE OF ACCEPTANCE
This is to certify that [•] ("Purchaser") has on the date herein mentioned accepted the following [Description] manufactured by [•] ("Supplier") in accordance with a certain Supply Agreement dated [•], 20[•] by and between Supplier and Purchaser.
Acceptance Date : [•]
Quantity : [•] sets of [Description]
[PURCHASER]
By :
Name : [•]
Title : [•]
EXHIBIT A
PROMISSORY NOTE
No. : [•] Issued at : [Place of Issuance]
US$ [•] Date : [The Last Shipment Date]
FOR VALUE RECEIVED, [•], a corporation organized and existing under the laws of [Name of the Country] having its principal place of business at [•], hereby unconditionally and irrevocably promises to pay, on the [•] day of [•], 20[•] to [•], a corporation duly organized and existing under the laws of [Name of the Country] having its principal place of business at [•] or order, the principal sum of [•] United States Dollars (US$ [•] ) and to pay interest on said principal sum from and including the date hereof, at the rate of [•] percent ( [•] %) per annum, the first payment of interest to be due and payable [•] months after the date hereof (namely [•], 20[•] ) and thereafter payable semi-annually on the [•] day of 20[•] and on the [•] day of 20[•] of each and every year, until maturity (whether by acceleration or otherwise) and thereafter at the rate of [•] percent ( [•] %) until the principal sum and interest thereon are fully paid, plus all expenses, including reasonable legal fees incurred by the holder in enforcing its rights hereunder. Interest shall be calculated on the basis of the actual days elapsed and a year of 360 days.
Both principal and interest shall be payable in United Stated Dollars in immediately available funds to the account of the Export-Import Bank of Korea with [Name and Address of the Bank] (Account Number [•]) in favor of [•], without set-off or counterclaim, free and clear of and without deduction for any present or future taxes, charges, restrictions or conditions of any kind.
This note is a fully negotiable instrument and one of a series of [•], promissory notes in the aggregate principal amount of [•] United States Dollars (US$ [•] ) of like form and tenor except their respective numbers and dates of maturity. Each of the said notes is secured by the Letter of Guarantee dated as of [•] and issued by [•] .
In the event default shall be made in the payment of principal or interest on this note, or in the payment of the principal of or interest on any of the other notes of this series as and when the same shall become due and payable, the holder may at its opinion declare the principal of and accrued interest on this note and all other notes in this series to be forthwith due and payable, whereupon the same shall be forthwith due and payable, and the holder hereof shall have the other remedies as set forth herein, the Letter of Guarantee [the Stand-by Letter of Credit] and such other remedies as may be provided by law.
The holder of this note shall be under no obligation to make presentment for payment, demand or notice of any kind whatsoever.
The maker and the endorsers of this note hereby waive the right to interpose any defense, set-off or counterclaim of any nature or description in any action or proceeding arising out of or in connection with this note.
The maker of this note may, at its option, prepay the whole of this note on any due date of the other notes of this series by payment of the principal hereof together with accrued interest hereon to and including the date of payment, provided that the maker shall have given not less than [•] days' prior written notice, and shall pay a prepayment premium equal to the amount of the prepayment amount multiplied by the interest rate which means as in "the Article 1. Definitions" hereof and multiplied by [•], if the remaining repayment period from the date of prepaying the said prepayment amount is [•] years or less, or multiplied by [•], if the remaining repayment period is between over [•] years and [•] years. Notwithstanding the foregoing, the Purchaser may prepay, without any prepayment premium, the principal hereof if the remaining repayment period is [•] months or less. Notice of prepayment shall identify this note by number, shall specify the date of prepayment and shall be irrevocable.
Upon payment or prepayment of this note by the maker, the note shall be marked "PAID" and surrendered immediately to the maker.
This note shall be governed by the laws of [Name of the Country]. The maker and the endorser hereby consent to any legal action or proceeding in relation to this note being brought in [Name of the Country] and hereby irrevocably waive any immunity from suit, attachment (before or after judgment) or execution on a judgment to which they or their property may be entitled.
The maker and the endorsers hereby irrevocably submit to the non-exclusive jurisdiction of the courts of [•] located in [•] as any holder of this note may elect, and irrevocably consent to the service of process out of said courts by registered airmail, postage prepaid to the maker or endorsers as the case may be or in any other manner provided by law.
The maker hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this note, and to constitute this note the legal, valid and binding obligation of the maker, in accordance with its terms, have been done and performed and have happened in due and strict compliance with all applicable laws and regulation.
This note may be assigned or transferred by the holder without notice to the maker or endorser but it shall not be assignable or transferable by the maker or endorser.
IN WITNESS WHEREOF, the undersigned has caused this note to be signed in its corporate name by its duly authorized representative this day of [•], 20[•].
[PURCHASER]
By :
Name : [•]
Title : [•]
EXHIBIT B
To : [SUPPLIER]
Dated [•]
LETTER OF GUARANTEE
Gentlemen :
In consideration of your delivering [•] (the "Commodities") to [•] (the "Purchaser"), on a deferred payment basis under a certain supply agreement dated [•] ,(the "Supply Agreement") entered into by and between you and the Purchaser, the undersigned, as primary obligor and not merely as surety, hereby irrevocably, absolutely and unconditionally guarantees the full, prompt and punctual payment when due (whether at stated maturity, by acceleration or otherwise) by the Purchaser of a series of [•] promissory notes (the "Notes") to be issued by the Purchaser to your order pursuant to the Supply Agreement, respectively numbered "1" to " [•] ", inclusive, in the aggregate amount of US$ [•], each in the principal amount specified in the schedule of payments below, the first of the said Notes to be due and payable [•] months after the Last Shipment Date of the Commodities and the remaining Notes to be due and payable at intervals of [•] months thereafter, and also guarantees the due and punctual payment by the Purchaser of interest on the principal amount of the Notes, the first such payment of interest to be due and payable [•] months after the Last Shipment Date of the Commodities and subsequent payments to be made semi-annually thereafter, at the rate of [•] percent ( [•] %) per annum until maturity (by acceleration or otherwise) and thereafter at the rate of [•] percent ( [•] %) per annum until full payment. Interest on the principal amount of the Notes shall be calculated on the basis of a 360 day year and actual number of days elapsed.
Below is the schedule of payments due under the Notes:
Note No. Date Principal Amount Due Date
The undersigned hereby waives the right to interpose any set-of or counterclaim of any nature or description in any action or proceedings arising out of or in any way connected with the Notes, this Letter of Guarantee or the Supply Agreement.
In the event that Purchaser fails to pay any amount of principal or interest on any Note on the maturity date or upon acceleration of the Notes in accordance with their terms, the undersigned will pay to you or any assignees hereof the outstanding principal amount of the Notes which are then payable and interest (including default interest for the period from the due date to and including the date of actual payment of the full amount demanded by you or any such assignee) accrued thereon as aforesaid within [•] days after receipt by us of written demand from you or any such assignee including a statement that Purchaser is in default of payment of the amount claimed in respect of the said Notes and/or interest thereon, without requesting you to take any or further procedure of step against Purchaser or with respect to the Notes and/or interest in default; provided, however, that no demand hereunder may be made after the date which is [•] days after the maturity date of the last maturing Note.
Upon payment of any Note by the undersigned such Note shall be surrendered immediately to the undersigned.
The undersigned hereby consents to any renewals, changes, extensions and partial payments of the Notes or the indebtedness for which they are given without notice to it, and consents that no such renewals, changes, extensions or partial payments shall discharge any party to the Notes or the undersigned from any liability thereon or hereon in whole or in part; provided, that no amendment or extension of any of the Notes, the effect of which would be to increase the principal amount of the Notes and the interest payable thereon or to vary the dates of payment under the Notes shall be entered into by you with Purchaser without the written consent of the undersigned.
The undersigned hereby agrees that this Letter of Guarantee and the undertakings hereunder shall be assignable in whole or in part to and shall inure to the benefit of the Export-Import Bank of Korea, Seoul, Korea or any holder of the Notes as if each of them were originally named herein; provided, that upon each such assignment by you or by the Export-Import Bank of Korea, Seoul, Korea or any other assignee, the assignor thereof shall give written notice to the undersigned of the name and address of any such assignee and the extent of the interest assigned to such assignee within [•] days of its taking place. The undersigned shall be entitled to treat any such assignee as the person entitled to the benefit of this Letter of Guarantee to the extent of his interest (as so notified to the undersigned) until the undersigned is notified of a further assignment.
Payment by the undersigned under this Letter of Guarantee shall be made in United States Dollars by telegraphic transfer to the account of the Export-Import Bank of Korea (Account Number [•]) with [Name and Address of the Bank] in favour of you or your assignee without deduction, withholding or set-off of any kind.
In the event that any withholding or deduction is imposed on any payment to be made hereunder by law or by any taxing authority, we agree to pay such additional amount as may be necessary in order that the actual amount received after deduction or withholding shall be equal to the amount that would have been received if such deduction or withholding were not required after allowance for any increase in taxes or charges payable by virtue of the receipt of such additional amount.
This Letter of Guarantee shall come into full force and effect upon its issue and shall continue in force and effect until [•] (60) days after the maturity date of the last Note in the said series or until the full payment of the said [•] Notes and interest thereon whichever occurs first.
Notwithstanding the other provisions of this Letter of Guarantee, the undersigned shall be fully discharged of any further liability under this Letter of Guarantee by paying on any due date of the Notes, an amount in United States Dollars equal to the full outstanding unpaid principal amount of such Notes together with accrued interest thereon up to the date of such payment by telegraphic transfer to the account of the Export-Import Bank of Korea (Account Number [•]) with [Name and Address of the Bank] in favour of you or any such assignee, provided that the undersigned shall have given not less than [•] days' prior written notice to you (or any assignee hereof), and shall pay a prepayment premium equal to the amount of the prepayment amount multiplied by the interest rate which means as in "the Article 1. Definitions" hereof and multiplied by [•], if the remaining repayment period from the date of prepaying the said prepayment amount is [•] years or less, or multiplied by [•], if the remaining repayment period is between over [•] years and [•] years. Notwithstanding the foregoing, the undersigned may prepay, without any prepayment premium, the Principal Amount if the remaining repayment period is [•] months or less. Any such notice by the undersigned shall identify the Note(s) in question by number, shall specify the date of payment, shall be irrevocable and shall oblige you or any assignee hereof to cancel and surrender such Note(s) against such payment by the undersigned being made in full.
The obligations of the undersigned are joint and several with any other guarantee or security and are absolute and unconditional irrespective of any legal limitation, disability, incapacity or other circumstance relating to Purchaser or any other person, or any amendment or supplement to the Supply Agreement, the Notes or any other document, instrument or agreement contemplated therein or of the genuineness, legality, validity, regularity or enforceability of the Supply Agreement, the Notes or any other documents, instrument or agreements contemplated therein.
This shall be a continuing guarantee and shall cover and secure any balance owing under the Notes, but you shall not be obliged to exhaust your recourse against Purchaser or the securities which you may hold before being entitled to payment from the undersigned of the obligation hereby guaranteed.
The undersigned hereby represents and warrants that (a) it is duly organised, validly existing and in full compliance with the laws of [Name of the Country] and has full legal right, power and authority to execute this Letter of Guarantee and to perform its obligations hereunder, (b) it has taken all appropriate and necessary corporate action to authorize the issuance of this Letter of Guarantee and the performance by it of its obligations hereunder, (c) the execution, delivery and performance of this Letter of Guarantee and the covenants herein contained will not violate or contravene any provisions of any existing treaty, law or regulation or any judgment, order or decree of any court, or governmental agency, or violate or result in a default under any mortgage, indenture, contract or agreement to which the undersigned is a party, or by which we or our assets are bound (d) this Letter of Guarantee constitutes the legal, valid and binding obligation of the undersigned enforceable in accordance with its terms and (e) the undersigned has obtained all necessary consents, licenses, approvals, and authorizations and registrations or declarations, with any governmental authority required in connection with the validity and enforceability of this Letter of Guarantee and the same are in full force and effect.
This Letter of Guarantee shall be governed by and construed under and in accordance with the laws of [Name of the Country]. The undersigned hereby irrevocably submits to the non-exclusive jurisdiction of the courts of [•] located in [•].
The undersigned hereby consents to the service of process out of said courts by registered airmail, postage prepaid to the undersigned or in any other manner provided by law.
The undersigned represents and warrants that this Letter of Guarantee is a commercial and not a public or governmental act and that the undersigned is not entitled to claim immunity from legal proceeding with respect to itself or any of its properties or assets on the grounds of sovereignty or otherwise under any law. To the extent that the undersigned or any of its property or assets has or hereafter may acquire any right to immunity from set-off, legal proceedings, attachment prior to judgment, other attachment or execution of judgment on the grounds of sovereignty or otherwise, the undersigned for itself and its properties and other assets hereby irrevocably waives such right to immunity in respect of its obligations under this Letter of Guarantee.
After this Letter of Guarantee has expired as aforesaid, you or any assignee hereof will return the same to the undersigned without any request from the undersigned.
In witness whereof, the undersigned has caused this Letter of Guarantee to be executed and delivered by its duly authorized representative the day and year written above.
Yours very truly,
[GUARANTOR]
By :
Name : [•]
Title : [•]
EXHIBIT C
To : [SUPPLIER] Date : [•]
LETTER OF COMMITMENT
Dear Sirs,
In consideration of the execution by you of the Supply Agreement for [•] (hereinafter called "Plant") with [•] incorporated and under the laws of [•] (hereinafter called "Purchaser"),
We hereby unconditionally and irrevocably undertake that we will immediately prior to and as a condition precedent to the delivery of the Plant execute and deliver to you one (1) irrevocable, unconditional and transferable Letter of Guarantee exactly in the form of Exhibit B in the said Supply Agreement, whereby we will guarantee to you the obligations of the Purchaser under a series of [•] promissory notes in the total aggregate principal sum of [•] Unites States Dollars (U$ [•] ) and interest thereon. All of the said promissory notes are to be issued to you by the Purchaser pursuant to the said Supply Agreement in respect of [•] percent( [•] %) of the Contract Price of the Plant.
2_1 Plant Supply Agreement.doc
Yours faithfully,
[GUARANTOR]
By :
Name : [•]
Title : [•]
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