SYNDICATED TERM LOAN AGREEMENT, 차관계약서, 영문계약서

SYNDICATED TERM LOAN AGREEMENT

DATED [•] ,  20[•]

US$[•]

CREDIT FACILITY

FOR

THE EXPORT-IMPORT BANK OF KOREA

ARRANGED BY

[AAA]

[BBB]

[CCC]

[DDD]

[EEE]

[FFF]

as Mandated Lead Arrangers

WITH

[FFF]

as Facility Agent

INDEX

Page

1.      Interpretation ··················································································· 1

2.      Facility·························································································· 10

3.      Purpose·························································································· 11

4.      Conditions precedent ········································································· 11

5.      Utilisation – Loans············································································ 12

6.      Repayment····················································································· 13

7.      Prepayment and Cancellation································································ 13

8.      Interest·························································································· 15

9.      Terms···························································································· 16

10.  Market disruption·············································································· 16

11.  Taxes···························································································· 18

12.  Increased Costs················································································ 20

13.  Mitigation······················································································ 20

14.  Payments······················································································· 21

15.  Representations··············································································· 23

16.  Information covenants········································································ 26

17.  General covenants············································································· 27

18.  Default·························································································· 29

19.  The Administrative Parties··································································· 32

20.  Evidence and calculations···································································· 37

21.  Fees······························································································ 38

22.  Indemnities and Break Costs································································· 38

23.  Expenses························································································ 39

24.  Amendments and waivers···································································· 40

25.  Changes to the Parties········································································ 41

26.  Disclosure of information···································································· 43

27.  Set-off··························································································· 44

28.  Pro rata sharing················································································ 44

29.  Severability····················································································· 46

30.  Counterparts···················································································· 46

31.  Notices·························································································· 46

32.  Language······················································································· 47

33.  Governing law················································································· 48

34.  Enforcement···················································································· 48

SCHEDULE 1 ORIGINAL PARTIES ························································ 49

SCHEDULE 2 CONDITIONS PRECEDENT DOCUMENTS ···························· 52

SCHEDULE 3 FORM OF DIRECTOR'S CERTIFICATE ································· 53

SCHEDULE 4 FORM OF REQUEST ························································ 55

SCHEDULE 5 FORM OF TRANSFER CERTIFICATE ··································· 56

 

 

THIS AGREEMENT is dated [DATE], 2002[•]

BETWEEN:

(1)        THE EXPORT-IMPORT BANK OF KOREA (the "Borrower");

(2)        [AAA], [BBB], [CCC], [DDD], [EEE] and [FFF], as mandated lead arrangers (in this capacity the Mandated Lead Arrangers);

(3)        [GGG]  as co-arranger (in this capacity the Co-Arranger);

(4)        [HHH] as senior lead managers (in this capacity the Senior Lead Managers);

(5)        [I I I] as lead manager (in this capacity the Lead Manager);

(6)        THE FINANCIAL INSTITUTIONS listed in Part A of  Schedule 1 as tranche A lenders (in this capacity the Original Tranche A Lenders);

(7)        THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 as tranche B lenders (in this capacity the Original Tranche B Lenders);

(8)        THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 as tranche C lenders (in this capacity the Original Tranche C Lenders); and

(9)        [FFF] as facility agent (in this capacity the Facility Agent).

IT IS AGREED as follows:

1.                  Interpretation

1.1              Definitions

In this Agreement:

Act means the Export-Import Bank of Korea Act of 1969, as amended.

Administrative Party means a Mandated Lead Arranger, the Lead Arranger, the Co-Arranger, the Senior Lead Manager, the  Lead Manager or the Facility Agent.

Affiliate means a Subsidiary or a Holding Company of a person or any other Subsidiary of that Holding Company.

Availability Period means the period from and including the date of this Agreement to and including the date falling 45 days after the date of this Agreement.

Break Costs means the amount (if any) which a Lender is entitled to receive under this Agreement as compensation if any part of a Loan or an overdue amount is prepaid.

Business Day means a day (other than a Saturday or a Sunday) on which banks are open for general business in Hong Kong, London, Seoul and New York City and in relation to any date for payment or purchase of a currency, the principal financial centre of the country of that currency.

Commitment means:

(a)        in relation to a Tranche A Lender, its Tranche A Commitment;

(b)        in relation to a Tranche B Lender, its Tranche B Commitment; or

(c)        in relation to a Tranche C Lender, its Tranche C Commitment.

Default means:

(a)          an Event of Default; or

(b)        an event which would be (with the expiry of a grace period, the giving of notice or the making of any determination under the Finance Documents or any combination of them) an Event of Default.

Event of Default means an event specified as such in this Agreement.

Facility means the Tranche A Facility, the Tranche B Facility or the Tranche C Facility (as the case may be) and Facilities means all of them.

Facility Office means the office(s) notified by a Lender to the Facility Agent:

(a)                on or before the date it becomes a Lender; or

(b)               by not less than five Business Days' notice,

as the office(s) through which it will perform its obligations under this Agreement.

Fee Letter means any letter entered into by reference to this Agreement between one or more Administrative Parties and the Borrower setting out the amount of certain fees referred to in this Agreement.

Final Maturity Date means, subject to Clause 14.6 (Business Days):

(a)        in relation to the Tranche A Loan, the date falling one year after the Utilisation Date of the Tranche A Loan;

(b)        in relation to the Tranche B Loan, the date falling two years after the Utilisation Date of the Tranche B Loan; and

(c)       in relation to the Tranche C Loan, the date falling three years after the Utilisation Date of the Tranche C Loan.

Finance Document means:

(a)                this Agreement;

(b)               a Fee Letter;

(c)                a Transfer Certificate; or

(d)               any other document designated as such by the Facility Agent and the Borrower.

Finance Party means a Lender or an Administrative Party.

Financial Indebtedness means any indebtedness for or in respect of:

(a)                moneys borrowed;

(b)               any acceptance credit;

(c)                any bond, note, debenture, loan stock or other similar instrument;

(d)               any redeemable preference share;

(e)                any finance or capital lease;

(f)                receivables sold or discounted (otherwise than on a non-recourse basis);

(g)                the acquisition cost of any asset to the extent payable after its acquisition or possession by the party liable where the deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset;

(h)               any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then marked to market value of the derivative transaction will be used to calculate its amount);

(i)                 any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing;

(j)                 any counter-indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; or

(k)               any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (j) above.

Holding Company of any other person, means a company in respect of which that other person is a Subsidiary.

Increased Cost means:

(a)                an additional or increased cost;

(b)               a reduction in the rate of return under a Finance Document or on its overall capital; or

(c)                a reduction of an amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or its Holding Company but only to the extent attributable to that Finance Party having entered into any Finance Document or funding or performing its obligations under any Finance Document.

Korea means the Republic of Korea.

Lender means:

(a)                an Original Tranche A Lender, an Original Tranche B Lender or an Original Tranche C Lender; or

(b)               any person which becomes a Tranche A Lender, a Tranche B Lender or a Tranche C Lender after the date of this Agreement.

LIBOR means for a Term of any Loan or overdue amount:

(a)                the applicable Screen Rate; or

(b)               if no Screen Rate is available for the relevant currency or Term of that Loan or overdue amount, the arithmetic mean (rounded upward to four decimal places) of the rates, as supplied to the Facility Agent at its request, quoted by the Reference Banks to leading banks in the London interbank market,

as of 11.00 a.m. (London time) on the Rate Fixing Day for the offering of deposits in the currency of that Loan or overdue amount for a period comparable to that Term.

Loan means the Tranche A Loan, the Tranche B Loan or the Tranche C Loan (as the case may be) and Loans means all of them.

London Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London.

Majority Lenders means, at any time, Lenders:

(a)                whose share in the outstanding Loans and whose undrawn Commitments then aggregate [•] percent. or more of the aggregate of all the outstanding Loans and the undrawn Commitments of all the Lenders;

(b)               if there is no Loan then outstanding, whose undrawn Commitments then aggregate [•] percent. or more of the Total Commitments; or

(c)                if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated [•] percent. or more of the Total Commitments immediately before the reduction.

Margin means:

(a)          in relation to the Tranche A Loan, [•] percent. per annum;

(b)          in relation to the Tranche B Loan, [•] percent. per annum; or

(c)                in relation to the Tranche C Loan, [•] percent. per annum.

Material Adverse Effect means a material adverse effect on:

(a)                the business or financial condition of the Borrower;

(b)               the ability of the Borrower to perform its obligations under any Finance Document; or

(c)                the validity or enforceability of any Finance Document.

Original Financial Statements means the audited non-consolidated financial statements of the Borrower for the year ended [•].

Original Lenders means the Original Tranche A Lenders, the Original Tranche B Lenders and the Original Tranche C Lenders.

Party means a party to this Agreement.

Pro Rata Share means:

(a)                for the purpose of determining a Lender's share in a utilisation of a Facility, the proportion which its Commitment under that Facility bears to the Total Commitments under that Facility; and

(b)               for any other purpose on a particular date:

(i)                 the proportion which a Lender's share of the Loans (if any) bears to all the Loans;

(ii)               if there is no Loan outstanding on that date, the proportion which its Commitment bears to the Total Commitments on that date;

(iii)             if the Total Commitments have been cancelled, the proportion which its Commitment bore to the Total Commitments immediately before being cancelled; or

(iv)             when the term is used in relation to a Facility, the above proportions but applied only to the Loans and Commitments for that Facility.

For the purpose of sub-paragraph (iv) above, the Facility Agent will determine in the case of a dispute, whether the term in any case relates to a particular Facility.

Rate Fixing Day means the second London Business Day before the first day of a Term or such other day as the Facility Agent determines is generally treated as the rate fixing day by market practice in the relevant interbank market.

Reference Banks means the principal London offices of the Facility Agent, Bank of America, National Association and [CCC] and any other bank or financial institution appointed as such by the Facility Agent under this Agreement.

Repeating Representations means the representations which are deemed to be repeated under this Agreement.

Request means a request for a Loan, substantially in the form of Schedule 4 (Form of Request).

Screen Rate means the British Bankers Association Interest Settlement Rate (if any), for the relevant currency and Term displayed on the appropriate page (in the case of US Dollar, page 3750) of the Telerate screen selected by the Facility Agent.  If the relevant page is replaced or the service ceases to be available, the Facility Agent (after consultation with the Borrower and the Lenders) may specify another page or service displaying the appropriate rate.

Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having a similar effect.

Subsidiary means an entity of which a person has direct or indirect control or owns directly or indirectly more than 50% of the voting capital or similar right of ownership.

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any related penalty or interest).

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

Tax Payment means a payment made by the Borrower to a Finance Party in any way relating to a Tax Deduction or under any indemnity given by the Borrower in respect of Tax under any Finance Document.

Term means each period determined under this Agreement by reference to which interest on a Loan or an overdue amount is calculated.

Total Commitments means the aggregate for the time being of the Total Tranche A Commitments, the Total Tranche B Commitments and the Total Tranche C Commitments, being US$[•] at the date of this Agreement.

Total Tranche A Commitments means the aggregate of the Tranche A Commitments of all the Tranche A Lenders, being US$[•] at the date of this Agreement.

Total Tranche B Commitments means the aggregate of the Tranche B Commitments of all Tranche B Lenders, being US$ [•] at the date of this Agreement.

Total Tranche C Commitments means the aggregate of the Tranche C Commitments of all Tranche C Lenders, being US$ [•] at the date of this Agreement.

Tranche A Commitment means:

(a)        in relation to an Original Tranche A Lender, the amount set opposite its name in Part A of Schedule 1 (Original Parties) under the heading "Tranche A Commitments" and the amount of any other Tranche A Commitment it acquires; and

(b)        in relation to any other Tranche A Lender, the amount of any Tranche A Commitment it acquires,

to the extent not cancelled, reduced or transferred under this Agreement.

Tranche A Facility means the credit facility made available by the Tranche A Lenders to the Borrower under this Agreement referred to in paragraph (a) of Clause 2.1 (Facilities).

Tranche A Lender means:

(a)          an Original Trache A Lender; or

(b)          any person which becomes a Tranche A Lender after the date of this Agreement.

Tranche A Loan means, unless otherwise stated in this Agreement, the principal amount of the borrowing by the Borrower under the Tranche A Facility or the principal amount outstanding of that borrowing.

Tranche B Commitment means:

(a)        in relation to an Original Tranche B Lender, the amount set opposite its name in Part B of Schedule 1 (Original Parties) under the heading "Tranche B Commitments" and the amount of any other Tranche B Commitment it acquires; and

(b)        in relation to any other Tranche B Lender, the amount of any Tranche B Commitment it acquires,

to the extent not cancelled, reduced or transferred under this Agreement.

Tranche B Facility means the credit facility made available by the Tranche B Lenders to the Borrower under this Agreement referred to in paragraph (b) of Clause 2.1 (Facilities).

Tranche B Lender means:

(a)          an Original Trache B Lender; or

(b)          any person which becomes a Tranche B Lender after the date of this Agreement.

Tranche B Loan means, unless otherwise stated in this Agreement, the principal amount of the borrowing by the Borrower under the Tranche B Facility or the principal amount outstanding of that borrowing.

Tranche C Commitment means:

(a)        in relation to an Original Tranche C Lender, the amount set opposite its name in Part C of Schedule 1 (Original Parties) under the heading "Tranche C Commitments" and the amount of any other Tranche C Commitment it acquires; and

(b)        in relation to any other Tranche C Lender, the amount of any Tranche C Commitment it acquires,

to the extent not cancelled, reduced or transferred under this Agreement.

Tranche C Facility means the credit facility made available by the Tranche C Lenders to the Borrower under this Agreement referred to in paragraph (c) of Clause 2.1 (Facilities).

Tranche C Lender means:

(a)          an Original Tranche C Lender; or

(b)          any person which becomes a Tranche C Lender after the date of this Agreement.

Tranche C Loan means, unless otherwise stated in this Agreement, the principal amount of the borrowing by the Borrower under the Tranche C Facility or the principal amount outstanding of that borrowing.

Transfer Certificate means a certificate, substantially in the form of Schedule 5 (Form of Transfer Certificate), with such amendments as the Facility Agent may approve or reasonably require or any other form agreed between the Facility Agent and the Borrower.

Utilisation Date means each date on which a Facility is utilised.

1.2              Construction

(a)                In this Agreement, unless the contrary intention appears, a reference to:

(i)                 an amendment includes a supplement, novation, restatement or re-enactment and amended will be construed accordingly;

assets includes present and future properties, revenues and rights of every description;

an authorisation includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration or notarisation;

control means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract or otherwise and, for the purpose of Clause 18.13 (Ownership and financial support), the power to appoint or remove the President of the Borrower;

disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;

indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money;

a person includes any individual, company, corporation, unincorporated association or body (including a partnership, trust, joint venture or consortium), government, state, agency, organisation or other entity whether or not having separate legal personality;

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

(ii)               a currency is a reference to the lawful currency for the time being of the relevant country;

(iii)             a Default being outstanding means that it has not been remedied or waived;

(iv)             a provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;

(v)               a Clause, a Subclause or a Schedule is a reference to a clause or subclause of, or a schedule to, this Agreement;

(vi)             a person includes its successors in title, permitted assigns and permitted transferees;

(vii)           a Finance Document or another document is a reference to that Finance Document or other document as amended; and

(viii)         a time of day is a reference to Hong Kong time.

(b)               Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:

(i)                 if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);

(ii)               if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and

(iii)             notwithstanding sub-paragraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.

(c)                Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any term of any Finance Document, the consent of any third party is not required for any variation (including any release or compromise of any liability) or termination of that Finance Document.

(d)               Unless the contrary intention appears:

(i)                 a reference to a Party will not include that Party if it has ceased to be a Party under this Agreement;

(ii)               a word or expression used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement; and

(iii)             any obligation of the Borrower under the Finance Documents which is not a payment obligation remains in force for so long as any payment obligation of the Borrower is or may be outstanding under the Finance Documents.

(e)                The headings in this Agreement do not affect its interpretation.

2.                  Facilities

2.1              Facilities

Subject to the terms of this Agreement, the Lenders agree to make available to the Borrower during the Availability Period facilities up to an aggregate principal amount not, at any time, exceeding the Total Commitments.  In particular:

(a)        the Tranche A Lenders agree to grant to the Borrower a term loan facility up to an aggregate principal amount not, at any time, exceeding the Total Tranche A Commitments;

(b)        the Tranche B Lenders agree to grant to the Borrower a term loan facility up to an aggregate principal amount not, at any time, exceeding the Total Tranche B Commitments; and

(c)        the Tranche C Lenders agree to grant to the Borrower a term loan facility up to an aggregate principal amount not, at any time, exceeding the Total Tranche C Commitments. 

2.2              Nature of a Finance Party's rights and obligations

Unless otherwise agreed by all the Finance Parties:

(a)                the obligations of a Finance Party under the Finance Documents are several;

(b)               failure by a Finance Party to perform its obligations does not affect the obligations of any other Party under the Finance Documents;

(c)                no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;

(d)               the rights of a Finance Party under the Finance Documents are separate and independent rights;

(e)                a debt arising under the Finance Documents to a Finance Party is a separate and independent debt; and

(f)                a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights.

3.                  Purpose

3.1              Loans

Each Loan may only be used for financing  the general working capital requirements of the Borrower.

3.2              No obligation to monitor

No Finance Party is bound to monitor or verify the utilisation of a Facility.

4.                  Conditions precedent

4.1              Conditions precedent documents

A Request may not be given until the Facility Agent has notified the Borrower and the Lenders that it has received all of the documents and evidence set out in Schedule 2 (Conditions precedent documents) in form and substance satisfactory to the Facility Agent. The Facility Agent must give this notification to the Borrower and the Lenders promptly upon being so satisfied.

4.2              Further conditions precedent

The obligation of each Lender to participate in any Loan is subject to the further conditions precedent that on both the date of the Request and the Utilisation Date for that Loan:

(a)                the Repeating Representations are correct in all material respects; and

(b)               no Default is outstanding or would result from that Loan.

5.                  Utilisation - Loans

5.1              Giving of Request

(a)                The Borrower may borrow one Loan under each Facility by giving to the Facility Agent a duly completed Request.

(b)               Unless the Facility Agent otherwise agrees, the latest time for receipt by the Facility Agent of a duly completed Request is 11.00 a.m. five Business Day before the proposed Utilisation Date.

(c)                Each Request is irrevocable.

5.2              Completion of Request

The Request for a Loan will not be regarded as having been duly completed unless:

(a)          it identifies the Facility the Loan applies to:

(b)               the Utilisation Date is a Business Day falling within the Availability Period;

(c)                The amount of the Loan requested is:

(i)                  the amount of the Total Tranche A Commitments (in the case of the Tranche A Loan), the Total Tranche B Commitments (in the case of the Tranche B Loan) or the Total Tranche C Commitments (in the case of the Tranche C Loan), as the case may be; or

(ii)               such other amount as the Facility Agent may agree (acting on the instruction of all Lenders of the relevant Facility); and

(c)        the proposed Term complies with this Agreement.

Only one Loan may be requested in a Request.

5.3              Advance of Loans

(a)                The Facility Agent must promptly notify each relevant Lender of the details of the requested Loan and the amount of its share in that Loan.

(b)               The amount of each relevant Lender’s share of a Loan will be its Pro Rata Share on the proposed Utilisation Date of that Loan.

(c)                No Lender is obliged to participate in a Loan if, as a result:

(i)         its share in the Loan under a Facility would exceed its Commitment for that Facility; or

(ii)        that Loan would exceed the Total Tranche A Commitments (in the case of the Tranche A Loan), the Total Tranche B Commitments (in the case of the Tranche B Loan) or the Total Tranche C Commitments (in the case of the Tranche C Loan).

(d)               If the conditions set out in this Agreement have been met, each relevant Lender must make its share in a Loan available to the Facility Agent for the Borrower on the Utilisation Date of that Loan.

6.                  Repayment

The Borrower shall repay the Loans in full on their respective Final Maturity Dates.

7.                  Prepayment and cancellation

7.1              Mandatory prepayment - illegality

(a)                A Lender must notify the Borrower promptly if it becomes aware that it is unlawful in any jurisdiction for that Lender to perform any of its obligations under a Finance Document or to fund or maintain its share in any Loan.

(b)               After notification under paragraph (a) above:

(i)                 the Borrower must repay or prepay the share of that Lender in each Loan made to it on the date specified in paragraph (c) below; and

(ii)               the Commitment of that Lender will be immediately cancelled.

(c)                The date for repayment or prepayment of a Lender's share in a Loan will be:

(i)                 the Business Day following receipt by the Borrower of notice from the Lender under paragraph (a) above or such other date as may be agreed between the Borrower and the Lender; or

(ii)               if later, the latest date allowed by the relevant law.

7.2              Voluntary prepayment

The Borrower may, by giving not less than [•] Business Days' prior written notice to the Facility Agent, prepay a Loan in whole (but not in part) only on the last day of a Term for that Loan.

7.3              Automatic cancellation

The Commitment of each Lender will be automatically cancelled at the close of business on the last day of the Availability Period unless otherwise agreed by all the Lenders.

7.4              Involuntary prepayment and cancellation

(a)                If the Borrower is, or will be, required to pay to a Lender a Tax Payment or an Increased Cost, the Borrower may, while the requirement continues, give notice to the Facility Agent requesting prepayment and cancellation in respect of that Lender.

(b)               After notification under paragraph (a) above:

(i)                 the Borrower must repay or prepay that Lender's share in each Loan made to it on the date specified in paragraph (c) below; and

(ii)               the Commitment of that Lender will be immediately cancelled.

(c)                The date for repayment or prepayment of a Lender's share in a Loan will be the last day of the current Term for that Loan or, if earlier, the date specified by the Borrower in its notification.

7.5              Partial prepayment of the Loan

No amount of a Loan prepaid under this Agreement may subsequently be re-borrowed.

7.6              Miscellaneous provisions

(a)                Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) and the affected Loans and Commitments.  The Facility Agent must notify the Lenders promptly of receipt of any such notice.

(b)               All prepayments under this Agreement must be made with accrued interest on the amount prepaid.  No premium or penalty is payable in respect of any prepayment except for Break Costs.

(c)                No prepayment or cancellation is allowed except in accordance with the express terms of this Agreement.

(d)               No amount of the Total Commitments cancelled under this Agreement may subsequently be reinstated.

8.                  Interest

8.1              Calculation of interest

The rate of interest on each Loan for each of its Terms is the percentage rate per annum equal to the aggregate of the applicable:

(a)                Margin; and

(b)               LIBOR.

Interest shall accrue at the rate so determined from and including the first day of the Term to but excluding the last day of the Term.

8.2              Payment of interest

Except where it is provided to the contrary in this Agreement, the Borrower must pay accrued interest on each Loan made to it on the last day of each Term for that Loan.

8.3              Interest on overdue amounts

(a)                If the Borrower fails to pay any amount payable by it under the Finance Documents, it must immediately on demand by the Facility Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before, on and after judgment.

(b)               Interest on an overdue amount is payable at a rate determined by the Facility Agent to be one per cent. per annum above the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Tranche C Loan in the currency of the overdue amount.  For this purpose, the Facility Agent may (acting reasonably):

(i)                 select successive Terms of any duration; and

(ii)               determine the appropriate Rate Fixing Day for that Term.

(c)                Notwithstanding paragraph (b) above, if the overdue amount is a principal amount of a Loan and becomes due and payable prior to the last day of its current Term, then:

(i)                 the first Term for that overdue amount will be the unexpired portion of that Term; and

(ii)               the rate of interest on the overdue amount for that first Term will be one per cent. per annum above the rate then payable on that Loan.

After the expiry of the first Term for that overdue amount, the rate on the overdue amount will be calculated in accordance with paragraph (b) above.

(d)               Interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each of its Terms but will remain immediately due and payable.

8.4              Notification of rates of interest

The Facility Agent must promptly notify each relevant Party of the determination of a rate of interest under this Agreement.

9.                  Terms

9.1              Duration

(a)                Each Loan has successive Terms.

(b)               Each Term for a Loan will start on the Utilisation Date of that Loan or on the expiry of its preceding Term.

(c)                Subject to the following provisions of this Clause, each Term for a Loan will be [•] months or any other period agreed by the Borrower and the Lenders of the relevant Facility.

9.2              No overrunning the Final Maturity Date

If a Term for a Loan would otherwise overrun the Final Maturity Date of that Loan, it will be shortened so that it ends on that Final Maturity Date.

9.3              Other adjustments

The Facility Agent and the Borrower may enter into such other arrangements as they may agree for the adjustment of Terms.

9.4              Notification

The Facility Agent must notify the Borrower and the Lenders of the duration of each Term promptly after ascertaining its duration.

10.              Market disruption

10.1          Failure of a Reference Bank to supply a rate

If LIBOR is to be calculated by reference to the Reference Banks but a Reference Bank does not supply a rate by 12.00 noon (London time) on a Rate Fixing Day, the applicable LIBOR will, subject as provided below, be calculated on the basis of the rates of the remaining Reference Banks.

10.2          Market disruption

(a)                In this Clause, each of the following events is a market disruption event:

(i)                 LIBOR is to be calculated by reference to the Reference Banks but no, or only one, Reference Bank supplies a rate by 12.00 noon (London time) on the Rate Fixing Day; or

(ii)               the Facility Agent receives by close of business on the date which is one Business Day after the Rate Fixing Day notification from Lenders whose shares in the Tranche A Loan, the Tranche B Loan or, as the case may be, the Tranche C Loan in aggregate exceed 50 per cent. of that Loan that the cost to them of obtaining matching deposits in the relevant interbank market is in excess of LIBOR for the relevant Term.

(b)               The Facility Agent must promptly notify the Borrower and the Lenders of a Facility of a market disruption event in relation to that Facility.

(c)        If a notification given by the Facility Agent under paragraph (b) above applies to any Loan which has not been made, that Loan shall not be made.  However, within five Business Days of the giving of the notification, the Borrower and the Facility Agent must enter into negotiations for a period of not more than [•] days with a view to agreeing an alternative basis for determining the rate of interest and/or funding applicable to the affected Loan.  Any alternative basis agreed will be, with the prior consent of all the Lenders of the relevant Facility, binding on all the Parties with respect to that Facility. 

10.3          Alternative basis of interest or funding

If a notification given by the Facility Agent under Clause 10.2(b) above applies to any loan which is outstanding then, for the purpose of the calculating the rate of interest on that Loan pursuant to Clause 8.1 (Calculation of Interest):

(a)                within five Business Days of the giving of the notification, the Borrower and the Facility Agent must enter into negotiations for a period of not more than [•] days with a view to agreeing an alternative basis for determining the rate of interest and/or funding for the affected Loan;

(b)               any alternative basis agreed under paragraph (a) above will be, with the prior consent of all the Lenders of  the relevant Facility, binding on all the Parties with respect to that Facility; and

(c)                if no alternative basis is agreed, the rate of interest on each affected Lender's share in the affected Loan for the relevant Term will be the aggregate of the applicable:

(i)                 Margin; and

(ii)        rate notified to the Facility Agent by that Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Term, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its share in that Loan from whatever source it may reasonably select.

11.              Taxes

11.1          General

In this Clause Tax Credit means a credit against any Tax or any relief or remission for Tax (or its repayment).

11.2          Tax gross-up

(a)                The Borrower must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.

(b)               If the Borrower or a Lender is aware that the Borrower must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it must promptly notify the Facility Agent.  The Facility Agent must then promptly notify the affected Parties.

(c)                If a Tax Deduction is required by law to be made by the Borrower, the amount of the payment due from the Borrower will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

(d)               If the Borrower is required to make a Tax Deduction, it must make the minimum Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by law.

(e)                Within [•] days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Borrower must deliver to the Facility Agent for the relevant Finance Party evidence satisfactory to that Finance Party (acting reasonably) that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.

11.3          Tax indemnity

(a)                Except as provided below, the Borrower must indemnify a Finance Party against any loss or liability which that Finance Party (in its absolute discretion) determines will be or has been suffered (directly or indirectly) by that Finance Party for or on account of Tax in relation to a payment received or receivable (or any payment deemed to be received or receivable) under a Finance Document.

(b)               Paragraph (a) above does not apply to any Tax assessed on a Finance Party under the laws of the jurisdiction in which:

(i)                 that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

(ii)               that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable by that Finance Party.  However, any payment deemed to be received or receivable, including any amount treated as income but not actually received by the Finance Party, such as a Tax Deduction, will not be treated as net income received or receivable for this purpose.

(c)                A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Borrower of the event which will give, or has given, rise to the claim.

11.4          Tax Credit

If the Borrower makes a Tax Payment and the relevant Finance Party (in its absolute discretion) determines that:

(a)                a Tax Credit is attributable to that Tax Payment; and

(b)               it has used and retained that Tax Credit,

the Finance Party must pay an amount to the Borrower which that Finance Party determines (in its absolute discretion) will leave it (after that payment) in the same after-tax position as it would have been in if the Tax Payment had not been made by the Borrower.

11.5          Stamp taxes

The Borrower must pay and indemnify each Finance Party against any stamp duty, registration or other similar Tax payable in connection with the entry into, performance or enforcement of any Finance Document, except for any such Tax payable in connection with the entry into of a Transfer Certificate.

11.6          Value added taxes

(a)                Any amount (including costs and expenses) payable under a Finance Document by the Borrower is exclusive of any value added tax or any other Tax of a similar nature which might be chargeable in connection with that amount.  If any such Tax is chargeable, the Borrower must pay to the Finance Party (in addition to and at the same time as paying that amount) an amount equal to the amount of that Tax.

(b)               The obligation of the Borrower under paragraph (a) above will be reduced to the extent that the Finance Party is entitled to repayment or a credit in respect of the relevant Tax.

12.              Increased Costs

12.1          Increased Costs

Except as provided below in this Clause, the Borrower must pay to a Finance Party the amount of any Increased Cost incurred by that Finance Party or its Holding Company as a result of:

(a)                the introduction of, or any change in, or any change in the interpretation or application of, any law or regulation; or

(b)               compliance with any law or regulation,

made after the date of this Agreement.

12.2          Exceptions

The Borrower need not make any payment for an Increased Cost to the extent that the Increased Cost is:

(a)                compensated for under another Clause or would have been but for an exception to that Clause;

(b)               a tax on the overall net income of a Finance Party or its Holding Company; or

(c)                attributable to a Finance Party or its Holding Company wilfully failing to comply with any law or regulation.

12.3          Claims

A Finance Party intending to make a claim for an Increased Cost must notify the Borrower promptly of the circumstances giving rise to, and the amount of, the claim.

13.              Mitigation

13.1          Mitigation

(a)                Each Finance Party must, following agreement with the Borrower regarding the costs of mitigation, take all reasonable steps to mitigate any circumstances which arise and which result or would result in:

(i)                 any Tax Payment or Increased Cost being payable to that Finance Party; or

(ii)               that Finance Party being able to exercise any right of prepayment and/or cancellation under this Agreement by reason of any illegality,

including transferring its rights and obligations under the Finance Documents to an Affiliate or changing its Facility Office.

(b)               A Finance Party is not obliged to take any step under this Subclause if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

13.2          Conduct of business by a Finance Party

No term of this Agreement will:

(a)                interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit;

(b)               oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it in respect of Tax or the extent, order and manner of any claim; or

(c)                oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computation in respect of Tax.

14.              Payments

14.1          Place

Unless a Finance Document specifies that payments under it are to be made in another manner, all payments by a Party (other than the Facility Agent) under the Finance Documents must be made to the Facility Agent to its account at such office or bank in the principal financial centre of the country of the relevant currency as it may notify to that Party for this purpose by not less than five Business Days' prior notice.

14.2          Funds

Payments under the Finance Documents to the Facility Agent must be made for value on the due date at such times and in such funds as the Facility Agent may specify to the Party concerned as being customary at the time for the settlement of transactions in that currency in the place for payment.

14.3          Currency

(a)                Unless a Finance Document specifies that payments under it are to be made in a different manner, the currency of each amount payable under the Finance Documents is determined under this Clause.

(b)               Amounts payable in respect of costs and expenses are payable in the currency in which they are incurred.

(c)                Each other amount payable under the Finance Documents is payable in US Dollars.

14.4          Distribution

(a)                Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided below, be made available by the Facility Agent to that Party by payment (on the date and in the currency and funds of receipt) to its account with such office or bank in the principal financial centre of the country of the relevant currency as it may notify to the Facility Agent for this purpose by not less than five Business Days' prior notice.

(b)               The Facility Agent may apply any amount received by it for the Borrower in or towards payment (as soon as practicable after receipt) of any amount due from the Borrower under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.

(c)                Where a sum is paid to the Facility Agent under this Agreement for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received it.  However, the Facility Agent may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount.  If it transpires that the sum has not been received by the Facility Agent, that Party must immediately on demand by the Facility Agent refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Facility Agent at a rate calculated by the Facility Agent to reflect its cost of funds.

14.5          No set-off or counterclaim

All payments made by the Borrower under the Finance Documents must be made without set-off or counterclaim.

14.6          Business Days

If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment will instead be:

(a)        in the case of payment of any principal under this Agreement, the preceding Business Day; or

(b)        in the case of any other payments, the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

14.7          Partial payments

(a)                If any Administrative Party receives a payment insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Administrative Party must apply that payment towards the obligations of the Borrower under the Finance Documents in the following order:

(i)                 first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Administrative Parties under the Finance Documents;

(ii)               secondly, in or towards payment pro rata of any accrued interest due but unpaid under this Agreement;

(iii)             thirdly, in or towards payment pro rata of any principal amount due but unpaid under this Agreement; and

(iv)             fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

(b)               The Facility Agent must, if so directed by all the Lenders, vary the order set out in sub-paragraphs (a)(ii) to (iv) above.

(c)                This Subclause will override any appropriation made by the Borrower.

14.8          Timing of payments

If a Finance Document does not provide for when a particular payment is due, that payment will be due within three Business Days of demand by the relevant Finance Party.

15.              Representations

15.1          Representations

The representations set out in this Clause are made by the Borrower to each Finance Party.

15.2          Status

(a)                It is a special governmental financial institution, duly established under the Act and validly existing under the laws of Korea. 

(b)               It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

15.3          Powers and authority

It has the power to enter into and perform, and has taken all necessary action to authorise the entry into and performance of, the Finance Documents to which it is or will be a party and the transactions contemplated by those Finance Documents.

15.4          Legal validity

Subject to any general principles of law limiting its obligations and referred to in any legal opinion required under this Agreement, each Finance Document to which it is a party is its legally binding, valid and enforceable obligation.

15.5          Non-conflict

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not conflict with:

(a)                any law or regulation applicable to it;

(b)               its constitutional documents; or

(c)                any document which is binding upon it or any of its assets.

15.6          No default

(a)                No Default is outstanding or will result from the execution of, or the performance of any transaction contemplated by, any Finance Document; and

(b)               No other event is outstanding which constitutes a default under any document which is binding on it or any of its assets to an extent or in a manner which is reasonably likely to have a Material Adverse Effect.

15.7          Authorisations

All authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, the Finance Documents have been obtained or effected (as appropriate) and are in full force and effect.

15.8          Financial statements

Its audited non-consolidated financial statements most recently delivered to the Facility Agent (which, at the date of this Agreement, are the Original Financial Statements):

(a)                have been prepared in accordance with accounting principles and practices generally accepted in Korea, consistently applied; and

(b)               fairly represent its non-consolidated financial condition as at the date to which they were drawn up,

except, in each case, as disclosed to the contrary in those financial statements.

15.9          No material adverse change

There has been no material adverse change in its non-consolidated financial condition since the date to which the Original Financial Statements were drawn up.

15.10      Litigation

No litigation, arbitration or administrative proceedings are current or, to its knowledge, pending or threatened, which, if adversely determined, are reasonably likely to have a Material Adverse Effect.

15.11      Pari passu ranking

Its payment obligations under the Finance Documents rank at least pari passu with all its other present and future unsecured and unsubordinated payment obligations, except for obligations mandatorily preferred by law applying to companies generally.

15.12      Taxes on payments

All amounts payable by it under the Finance Documents may be made without any Tax Deduction.

15.13      Immunity

(a)                The execution by it of each Finance Document constitutes, and the exercise by it of its rights and performance of its obligations under each Finance Document will constitute, private and commercial acts performed for private and commercial purposes; and

(b)               It will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in Korea in relation to any Finance Document.

15.14      No adverse consequences

(a)         It is not necessary under the laws of Korea:

(i)         in order to enable any Finance Party to enforce its rights under any Finance Document; or

(ii)        by reason only of the execution of any Finance Document or the performance by it of its obligations under any Finance Document,

that any Finance Party should be licensed, qualified or otherwise entitled to carry on business in Korea; and

(b)        no Finance Party is or will be deemed to be resident, domiciled or carrying on business in Korea by reason only of the execution, performance and/or enforcement of any Finance Document.

15.15      Stamp duties

No stamp or registration duty or similar taxes or charges are payable in Korea in respect of any Finance Document except for stamp duty payable on any Finance Document that is executed in Korea.

15.16      Information

(a)                All information provided by the Borrower to any Finance Party is true, complete and accurate in all material respects as at date such information was provided and is not misleading in any respect;

(b)               the information provided by the Borrower to any Finance Party prior to the date of this Agreement did not omit as at the date any information which, if disclosed, might adversely affect the decision of a person considering whether to enter into this Agreement; and

(c)                as at the date of this Agreement, nothing has occurred since the date of the relevant information provided by the Borrower to any Finance Party prior to the date of this Agreement which renders that information untrue or misleading in any respect and which, if disclosed, might adversely affect the decision of a person considering whether to enter into this Agreement.

15.17      Times for making representations

(a)                The representations set out in this Clause are made by the Borrower on the date of this Agreement.

(b)               Unless a representation is expressed to be given at a specific date, each representation is deemed to be repeated by the Borrower on the date of each Request and the first day of each Term. 

(c)                When a representation is repeated, it is applied to the circumstances existing at the time of repetition.

16.              Information covenants

16.1          Financial statements

(a)                The Borrower must supply to the Facility Agent in sufficient copies for all the Lenders its audited non-consolidated financial statements for each of its financial years.

(b)        All financial statements must be supplied as soon as they are available and within 180 days of the end of each financial period.

16.2          Form of financial statements

(a)                The Borrower must ensure that each set of financial statements supplied under this Agreement is certified by a director of the Borrower and gives a true and fair view of its financial condition as at the date to which those financial statements were drawn up.

(b)               The Borrower must notify the Facility Agent of any material change to the basis on which its audited financial statements are prepared.

(c)                If requested by the Facility Agent, the Borrower must supply to the Facility Agent:

(i)                 a full description of any material change notified under paragraph (b) above; and

(ii)               sufficient information to enable the Finance Parties to make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and its most recent audited financial statements delivered to the Facility Agent under this Agreement.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

16.3          Information - miscellaneous

The Borrower must supply to the Facility Agent, in sufficient copies for all the Lenders if the Facility Agent so reasonably requests:

(a)                promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings which are current, threatened or pending and which might, if adversely determined, have a Material Adverse Effect; and

(b)               promptly on request, such further information regarding the financial condition and operations of the Borrower as any Finance Party through the Facility Agent may reasonably request.

16.4          Notification of Default

(a)                The Borrower must notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

(b)               Promptly on request by the Facility Agent, the Borrower must supply to the Facility Agent a certificate, signed by two of its authorised signatories on its behalf, certifying that no Default is outstanding or, if a Default is outstanding, specifying the Default and the steps, if any, being taken to remedy it.

17.              General covenants

17.1          General

The Borrower agrees to be bound by the covenants set out in this Clause.

17.2          Authorisations

The Borrower must promptly obtain, maintain and comply with the terms of any authorisation required under any law or regulation to enable it to perform its obligations under, or for the validity or enforceability of, any Finance Document.

17.3          Compliance with laws

The Borrower must comply in all respects with:

(a)        all banking regulations imposed by the Bank of Korea, Ministry of Finance and Economy of Korea and Financial Supervisory Service of Korea to which it is subject; and

(b)        all other laws and regulations to which it is subject where failure to do so is reasonably likely to have a Material Adverse Effect.

17.4          Pari passu ranking

The Borrower must ensure that its payment obligations under the Finance Documents rank at least pari passu with all its other present and future unsecured and unsubordinated payment obligations, except for obligations mandatorily preferred by law applying to companies generally.

17.5          Negative pledge

(a)                Except as provided below, the Borrower may not create or allow to exist any Security Interest on any of its assets without the consent of the Majority Lenders (which consent shall not be unreasonably withheld).

(b)               Paragraph (a) does not apply to any lien, security interest, encumbrance or other preferential arrangements arising by operation of law and in the ordinary course of business.

(c)                The Borrower may not sell, transfer or otherwise dispose of any of its assets on terms where it is or may be leased to or re-acquired or acquired by the Borrower or any of its related entities in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset without the prior written consent of the Majority Lenders (which consent shall not be unreasonably withheld).

17.6          Disposals

(a)                Except as provided below, the Borrower may not, either in a single transaction or in a series of transactions and whether related or not, dispose of all or any part of its assets.

(b)               Paragraph (a) does not apply to any disposal:

(i)                 made in the ordinary course of business of the disposing entity; or

(ii)               of assets in exchange for other assets comparable or superior as to type, value and quality.

17.7          Change of business

The Borrower must ensure that no substantial change is made to the general nature of the business of the Borrower from that carried on at the date of this Agreement.

17.8          Mergers

The Borrower may not enter into any amalgamation, demerger, merger or reconstruction otherwise than under an intra-group re-organisation on a solvent basis or other transaction agreed by the Majority Lenders.

17.9          Acquisitions

(a)                Except as provided below, the Borrower may not make any acquisition or investment.

(b)               Paragraph (a) does not apply to:

(i)                 acquisitions or investments made in the ordinary course of business; or

(ii)        acquisitions where the consideration (when aggregated with the consideration of any other acquisition not allowed under this Clause) does not exceed US$[•] or its equivalent in any financial year of the Borrower.

18.              Default

18.1          Events of Default

Each of the events set out in this Clause is an Event of Default.

18.2          Non-payment

The Borrower does not pay on the due date any amount payable by it under the Finance Documents in the manner required under the Finance Documents.

18.3          Breach of other obligations

The Borrower does not comply with any other term of the Finance Documents not already referred to in this Clause, unless the non-compliance:

(a)                is capable of remedy; and

(b)               is remedied within [•] days of the earlier of the Facility Agent giving notice and the Borrower becoming aware of the non-compliance.

18.4          Misrepresentation

A representation made or repeated by the Borrower in any Finance Document or in any document delivered by or on behalf of the Borrower under any Finance Document is incorrect in any material respect when made or deemed to be repeated, unless the circumstances giving rise to the misrepresentation:

(a)                are capable of remedy; and

(b)               are remedied within [•] days of the earlier of the Facility Agent giving notice and the Borrower becoming aware of the misrepresentation.

18.5          Cross-default

Any of the following occurs in respect of the Borrower:

(a)        any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period);

(b)          any of its Financial Indebtedness:

(i)         becomes prematurely due and payable;

(ii)        is placed on demand; or

(iii)       is capable of being declared by a creditor to be prematurely due and payable or being placed on demand,

in each case, as a result of an event of default (howsoever described); or

(c)        any commitment for its Financial Indebtedness is cancelled or suspended as a result of an event of default (howsoever described),

unless the aggregate amount of Financial Indebtedness falling within paragraphs (a)-(c) above is less than US$[•] or its equivalent.

18.6          Insolvency

Any of the following occurs in respect of the Borrower:

(a)        it is unable to pay its debts as they fall due or insolvent;

(b)        it admits its inability to pay its debts as they fall due;

(c)        it suspends making payments on any of its debts or announces an intention to do so;

(d)       by reason of actual or anticipated financial difficulties, it begins negotiations with any creditor for the rescheduling of any of its indebtedness; or

(e)        a moratorium is declared in respect of any of its indebtedness.

 

18.7      General moratorium

 

Korea declares a moratorium on the payment of any External Indebtedness (including obligations arising under guarantees) of Korea or Korea becomes liable to repay prematurely any sums in respect of such External Indebtedness (including obligations arising under guarantees) as a result of a default under, or breach of the terms applicable to, such External Indebtedness or such obligations, or Korea ceases to be a member in good standing of the International Monetary Fund or the International Bank for Reconstruction and Development or the international monetary reserves of Korea become subject to any lien, charge, mortgage, encumbrance or other security interest or any segregation or other preferential arrangement (whether or not constituting a security interest) for the benefit of any creditor or class of creditors.  For the purpose of this Clause 18.7, External Indebtedness means any obligation for the payment or repayment of money borrowed which is denominated in a currency other than the currency of Korea.

18.8      Insolvency proceedings

(a)        Except as provided in paragraph (b) below, any of the following occurs in respect of the Borrower:

(i)         a meeting of it is convened for the purpose of considering any resolution for (or to petition for) its winding-up, administration or dissolution or any such resolution is passed;

(ii)        any person presents a petition for its winding-up, administration or dissolution;

(iii)         an order for its winding-up, administration or dissolution is made;

(iv)       any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets; or

(v)        its directors or other officers request the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer.

(b)        Paragraph (a) does not apply to a petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within 30 days.

18.9      Creditors' process

Any attachment, sequestration, distress, execution or analogous event affects any material asset(s) of the Borrower and is not discharged within 30 days.

18.10    Cessation of business

The Borrower ceases, or threatens to cease, to carry on all or a substantial part of its business.

18.11    Effectiveness of Finance Documents

(a)                It is or becomes unlawful for the Borrower to perform any of its obligations under the Finance Documents.

(b)               Any Finance Document is not effective or is alleged by the Borrower to be ineffective for any reason.

(c)                The Borrower repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

18.12    Material adverse change

Any event or series of events occurs which, in the opinion of the Majority Lenders, is reasonably likely to have a Material Adverse Effect.

18.13    Ownership and financial support

The Government of Korea ceases to own and control (directly or indirectly) the Borrower or for any reason fails to provide the financial support to the Borrower stipulated by Article 37 of the Act or Article 37 of the Act is amended in a manner which might result in a Material Adverse Effect. 

18.14    Acceleration

If an Event of Default is outstanding, the Facility Agent may, and must if so instructed by the Majority Lenders, by notice to the Borrower:

(a)        cancel the Total Commitments; and/or

(b)        declare that all or part of any amounts outstanding under the Finance Documents are:

(i)         immediately due and payable; and/or

(ii)        payable on demand by the Facility Agent acting on the instructions of the Majority Lenders.

Any notice given under this Subclause will take effect in accordance with its terms.

19.              The Administrative Parties

19.1          Appointment and duties of the Facility Agent

(a)                Each Finance Party (other than the Facility Agent) irrevocably appoints the Facility Agent to act as its agent under the Finance Documents.

(b)               Each Finance Party irrevocably authorises the Facility Agent to:

(i)                 perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions; and

(ii)               execute each Finance Document expressed to be executed by the Facility Agent.

(c)        The Facility Agent has only those duties which are expressly specified in the Finance Documents.  Those duties are solely of a mechanical and administrative nature.

19.2          Role of the Mandated Lead Arrangers

Except as specifically provided in the Finance Documents, no Mandated Lead Arranger has any obligations of any kind to any other Party in connection with any Finance Document.

19.3          No fiduciary duties

Except as specifically provided in a Finance Document, nothing in the Finance Documents makes an Administrative Party a trustee or fiduciary for any other Party or any other person.  No Administrative Party need hold in trust any moneys paid to it for a Party or be liable to account for interest on those moneys.

19.4          Individual position of an Administrative Party

(a)                If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and may exercise those rights and powers as though it were not an Administrative Party.

(b)               Each Administrative Party may:

(i)                 carry on any business with the Borrower or its related entities (including acting as an agent or a trustee for any other financing); and

(ii)               retain any profits or remuneration it receives under the Finance Documents or in relation to any other business it carries on with the Borrower or its related entities.

19.5          Reliance

The Facility Agent may:

(a)                rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person;

(b)               rely on any statement made by any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify;

(c)                engage, pay for and rely on professional advisers selected by it (including those representing a Party other than the Facility Agent); and

(d)               act under the Finance Documents through its personnel and agents.

19.6          Majority Lenders' instructions

(a)                The Facility Agent is fully protected if it acts on the instructions of the Majority Lenders in the exercise of any right, power or discretion or any matter not expressly provided for in the Finance Documents.  Any such instructions given by the Majority Lenders will be binding on all the Lenders.  In the absence of instructions, the Facility Agent may act as it considers to be in the best interests of all the Lenders.

(b)               The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings in connection with any Finance Document.

(c)                The Facility Agent may require the receipt of security satisfactory to it, whether by way of payment in advance or otherwise, against any liability or loss which it may incur in complying with the instructions of the Majority Lenders.

19.7          Responsibility

(a)                No Administrative Party is responsible to any other Finance Party for the adequacy, accuracy or completeness of:

(i)           any Finance Document or any other document; or

(ii)        any statement or information (whether written or oral) made in or supplied in connection with any Finance Document.

(b)               Without affecting the responsibility of the Borrower for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms that it:

(i)                 has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of the Borrower and its related entities and the nature and extent of any recourse against any Party or its assets); and

(ii)               has not relied exclusively on any information provided to it by any Administrative Party in connection with any Finance Document.

19.8          Exclusion of liability

(a)                The Facility Agent is not liable or responsible to any other Finance Party for any action taken or not taken by it in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.

(b)               No Party may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in connection with any Finance Document.  Any officer, employee or agent of the Facility Agent may rely on this Subclause and enforce its terms under the Contracts (Rights of Third Parties) Act 1999.

19.9          Default

(a)                The Facility Agent is not obliged to monitor or enquire whether a Default has occurred.  The Facility Agent is not deemed to have knowledge of the occurrence of a Default.

(b)               If the Facility Agent:

(i)                 receives notice from a Party referring to this Agreement, describing a Default and stating that the event is a Default; or

(ii)               is aware of the non-payment of any principal or interest or any fee payable to a Lender under this Agreement,

it must promptly notify the Lenders.

19.10      Information

(a)                The Facility Agent must promptly forward to the person concerned the original or a copy of any document which is delivered to the Facility Agent by a Party for that person.

(b)               Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

(c)                Except as provided above, the Facility Agent has no duty:

(i)                 either initially or on a continuing basis to provide any Lender with any credit or other information concerning the risks arising under or in connection with the Finance Documents (including any information relating to the financial condition or affairs of the Borrower or its related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before, on or after the date of this Agreement; or

(ii)               unless specifically requested to do so by a Lender in accordance with a Finance Document, to request any certificate or other document from the Borrower.

(d)               In acting as the Facility Agent, the agency division of the Facility Agent is treated as a separate entity from its other divisions and departments.  Any information acquired by the Facility Agent which, in its opinion, is acquired by it otherwise than in its capacity as the Facility Agent may be treated as confidential by the Facility Agent and will not be treated as information possessed by the Facility Agent in its capacity as such.

(e)                The Facility Agent is not obliged to disclose to any person any confidential information supplied to it by the Borrower solely for the purpose of evaluating whether any waiver or amendment is required to any term of the Finance Documents.

(f)                The Borrower irrevocably authorises the Facility Agent to disclose to the other Finance Parties any information which, in its opinion, is received by it in its capacity as the Facility Agent.

19.11      Indemnities

(a)                Without limiting the liability of the Borrower under the Finance Documents, each Lender must indemnify the Facility Agent for that Lender's Pro Rata Share of any loss or liability incurred by the Facility Agent in acting as the Facility Agent, except to the extent that the loss or liability is caused by the Facility Agent's gross negligence or wilful misconduct.

(b)               The Facility Agent may deduct from any amount received by it for a Lender any amount due to the Facility Agent from that Lender under a Finance Document but unpaid.

19.12      Compliance

The Facility Agent may refrain from doing anything (including disclosing any information) which might, in its opinion, constitute a breach of any law or regulation or be otherwise actionable at the suit of any person, and may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation.

19.13      Resignation of the Facility Agent

(a)                The Facility Agent may resign and appoint any of its Affiliates as successor Facility Agent by giving notice to the Lenders and the Borrower. 

(b)               Alternatively, the Facility Agent may resign by giving notice to the Lenders and the Borrower, in which case the Majority Lenders may appoint a successor Facility Agent.

(c)                If no successor Facility Agent has been appointed under paragraph (b) above within 30 days after notice of resignation was given, the Facility Agent may appoint a successor Facility Agent.

(d)               The person(s) appointing a successor Facility Agent must, if practicable, consult with the Borrower prior to the appointment.

(e)                The resignation of the Facility Agent and the appointment of any successor Facility Agent will both become effective only when the successor Facility Agent notifies all the Parties that it accepts its appointment.  On giving the notification, the successor Facility Agent will succeed to the position of the Facility Agent and the term "Facility Agent" will mean the successor Facility Agent.

(f)                The retiring Facility Agent must make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as the Facility Agent under the Finance Documents.

(g)                Upon its resignation becoming effective, this Clause will continue to benefit the retiring Facility Agent in respect of any action taken or not taken by it in connection with the Finance Documents while it was the Facility Agent, and, subject to paragraph (f) above, it will have no further obligations under any Finance Document.

(h)               The Majority Lenders may, by notice to the Facility Agent, require it to resign under paragraph (b) above. 

19.14      Relationship with Lenders

(a)                The Facility Agent may treat each Lender as a Lender, entitled to payments under this Agreement and as acting through its Facility Office(s) until it has received not less than five Business Days' prior notice from that Lender to the contrary.

(b)               The Facility Agent may at any time, and must if requested to do so by the Majority Lenders, convene a meeting of the Lenders.

(c)                The Facility Agent must keep a register of all the Parties and supply any other Party with a copy of the register on request.  The register will include each Lender's Facility Office(s) and contact details for the purposes of this Agreement.

19.15      Notice period

Where this Agreement specifies a minimum period of notice to be given to the Facility Agent, the Facility Agent may, at its discretion, accept a shorter notice period.

20.              Evidence and calculations

20.1          Accounts

Accounts maintained by a Finance Party in connection with this Agreement are prima facie evidence of the matters to which they relate for the purpose of any litigation or arbitration proceedings.

20.2          Certificates and determinations

Any certification or determination by a Finance Party of a rate or amount under the Finance Documents will be, in the absence of manifest error, prima facie evidence of the matters to which it relates.

20.3          Calculations

Any interest or fee accruing under this Agreement accrues from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days.

21.              Fees

21.1          Facility Agent's fee

The Borrower must pay to the Facility Agent for its own account an agency fee in the manner agreed in the Fee Letter between the Facility Agent and the Borrower.

21.2          Arrangement fee

The Borrower must pay to the Mandated Lead Arrangers for the account of the Mandated Lead Arrangers and the Original Lenders an arrangement fee in the manner agreed in the Fee Letter between the Mandated Lead Arrangers and the Borrower.

22.              Indemnities and Break Costs

22.1          Currency indemnity

(a)                The Borrower must, as an independent obligation, indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:

(i)                 that Finance Party receiving an amount in respect of the Borrower's liability under the Finance Documents; or

(ii)               that liability being converted into a claim, proof, judgment or order,

in a currency other than the currency in which the amount is expressed to be payable under the relevant Finance Document.

(b)               Unless otherwise required by law, the Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.

22.2          Other indemnities

(a)                The Borrower must indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:

(i)                 the occurrence of any Event of Default;

(ii)               any failure by the Borrower to pay any amount due under a Finance Document on its due date, including any loss resulting from any distribution or redistribution by that Finance Party of any amount among the Lenders under Clause 28 (Pro rata sharing) of this Agreement;

(iii)             (other than by reason of negligence or default by that Finance Party) a Loan not being made after a Request has been delivered; or

(iv)             a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment.

The Borrower's liability in each case includes any loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document, any amount repaid or prepaid or any Loan.

(b)               The Borrower must indemnify the Facility Agent against any loss or liability incurred by the Facility Agent as a result of:

(i)                 investigating any event which the Majority Lenders reasonably believe to be a Default; or

(ii)               acting or relying on any notice which the Facility Agent reasonably believes to be genuine, correct and appropriately authorised.

22.3          Break Costs

(a)                The Borrower must pay to each Lender its Break Costs.

(b)               Break Costs are the amount (if any) determined by the relevant Lender by which:

(i)                 the interest which that Lender would have received for the period from the date of receipt of any part of its share in a Loan or an overdue amount to the last day of the applicable Term for that Loan or overdue amount if the principal or overdue amount received had been paid on the last day of that Term;

exceeds

(ii)               the amount which that Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Term.

(c)                Each Lender must supply to the Facility Agent for the Borrower details of the amount of any Break Costs claimed by it under this Subclause.

23.              Expenses

23.1          Initial costs

The Borrower must pay to each Administrative Party the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with the negotiation, preparation, printing, execution and syndication of the Finance Documents.

23.2          Subsequent costs

The Borrower must pay to the Facility Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with:

(a)                the negotiation, preparation, printing and execution of any Finance Document (other than a Transfer Certificate) executed after the date of this Agreement; and

(b)               any amendment, waiver or consent requested by or on behalf of the Borrower or specifically allowed by this Agreement.

23.3          Enforcement costs

The Borrower must pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

24.              Amendments and waivers

24.1          Procedure

(a)                Except as provided in this Clause, any term of the Finance Documents may be amended or waived with the agreement of the Borrower and the Majority Lenders.  The Facility Agent may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.

(b)               The Facility Agent must promptly notify the other Parties of any amendment or waiver effected by it under paragraph (a) above.  Any such amendment or waiver is binding on all the Parties.

24.2          Exceptions

(a)                An amendment or waiver which relates to:

(i)                 the definition of Majority Lenders in Clause 1.1 (Definitions);

(ii)               an extension of the date of payment of any amount to a Lender under the Finance Documents;

(iii)             a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fee or other amount payable to a Lender under the Finance Documents;

(iv)             an increase in, or an extension of, a Commitment or the Total Commitments;

(v)               a term of a Finance Document which expressly requires the consent of each Lender;

(vi)             the right of a Lender to assign or transfer its rights or obligations under the Finance Documents; or

(vii)           this Clause,

may only be made with the consent of all the Lenders.

(b)               An amendment or waiver which relates to the rights or obligations of an Administrative Party may only be made with the consent of that Administrative Party.

24.3          Waivers and remedies cumulative

The rights of each Finance Party under the Finance Documents:

(a)                may be exercised as often as necessary;

(b)               are cumulative and not exclusive of its rights under the general law; and

(c)                may be waived only in writing and specifically.

Delay in exercising or non-exercise of any right is not a waiver of that right.

25.              Changes to the Parties

25.1          Assignments and transfers by the Borrower

The Borrower may not assign or transfer any of its rights and obligations under the Finance Documents without the prior consent of all the Lenders.

25.2          Assignments and transfers by Lenders

(a)                A Tranche A Lender, a Tranche B Lender or a Tranche C Lender (as the case may be) (the Existing Lender) may at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to any other person (the New Lender).  The New Lender shall, upon such assignment or transfer becoming effective pursuant to the provision of this Clause, become a party to this Agreement as Tranche A Lender, a Tranche B Lender or a Tranche C Lender (as the case may be).

(b)               A transfer of obligations will be effective only if either:

(i)                 the obligations are novated in accordance with the following provisions of this Clause; or

(ii)               the New Lender confirms to the Facility Agent and the Borrower in form and substance satisfactory to the Facility Agent that it is bound by the terms of this Agreement as a Lender.  On the transfer becoming effective in this manner the Existing Lender will be released from its obligations under this Agreement to the extent that they are transferred to the New Lender.

(c)                Unless the Facility Agent otherwise agrees, the New Lender must pay to the Facility Agent for its own account, on or before the date any assignment or transfer occurs, a fee of US$ [•].

(d)               Any reference in this Agreement to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under this Agreement.

25.3          Procedure for transfer by way of novations

(a)                In this Subclause:

Transfer Date means, for a Transfer Certificate, the later of:

(i)                 the proposed Transfer Date specified in that Transfer Certificate; and

(ii)               the date on which the Facility Agent executes that Transfer Certificate.

(b)               A novation is effected if:

(i)                 the Existing Lender and the New Lender deliver to the Facility Agent a duly completed Transfer Certificate; and

(ii)               the Facility Agent executes it.

The Facility Agent must execute as soon as reasonably practicable a Transfer Certificate delivered to it and which appears on its face to be in order.

(c)                Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to execute any duly completed Transfer Certificate (including a faxed copy) on its behalf.

(d)               On the Transfer Date:

(i)                 the New Lender will assume the rights and obligations of the Existing Lender expressed to be the subject of the novation in the Transfer Certificate in substitution for the Existing Lender; and

(ii)               the Existing Lender will be released from those obligations and cease to have those rights.

25.4          Limitation of responsibility of Existing Lender

(a)                Unless expressly agreed to the contrary, an Existing Lender is not responsible to a New Lender for the legality, validity, adequacy, accuracy, completeness or performance of:

(i)                 any Finance Document or any other document; or

(ii)               any statement or information (whether written or oral) made in or supplied in connection with any Finance Document,

and any representations or warranties implied by law are excluded.

(b)               Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(i)                 has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of the Borrower and its related entities and the nature and extent of any recourse against any Party or its assets) in connection with its participation in this Agreement; and

(ii)               has not relied exclusively on any information supplied to it by the Existing Lender in connection with any Finance Document.

(c)                Nothing in any Finance Document requires an Existing Lender to:

(i)                 accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause; or

(ii)               support any losses incurred by the New Lender by reason of the non-performance by the Borrower of its obligations under any Finance Document or otherwise.

25.5          Costs resulting from change of Lender or Facility Office

If:

(a)                a Lender assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and

(b)               as a result of circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to pay any Tax Payment or Increased Cost in excess of any Tax Payment or Increased Cost (if any) which it would have been obliged to pay to the Existing Lender in the absence of that assignment, transfer or change, the Borrower shall not be obliged to pay that excess.  Without prejudice to the foregoing, the Borrower shall not be responsible for any costs and expenses arising in connection with any assignment, transfer or change by a Lender under this Clause 25.5.

25.6          Changes to the Reference Banks

If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent must (in consultation with the Borrower) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.

26.              Disclosure of information

(a)                Each Finance Party must keep confidential any information supplied to it by or on behalf of the Borrower in connection with the Finance Documents.  However, a Finance Party is entitled to disclose information:

(i)                 which is publicly available, other than as a result of a breach by that Finance Party of this Clause;

(ii)               in connection with any legal or arbitration proceedings;

(iii)             if required to do so under any law or regulation;

(iv)             to a governmental, banking, taxation or other regulatory authority;

(v)               to its professional advisers;

(vi)             to the extent allowed under paragraph (b) below; or

(vii)           with the agreement of the Borrower.

(b)               A Finance Party may disclose to an Affiliate or any person with whom it may enter, or has entered into, any kind of transfer, participation or other agreement in relation to this Agreement (a participant):

(i)                 a copy of any Finance Document; and

(ii)               any information which that Finance Party has acquired under or in connection with any Finance Document.

However, before a participant may receive any confidential information, it must agree with the relevant Finance Party to keep that information confidential on the terms of paragraph (a) above.

(c)                This Clause supersedes any previous confidentiality undertaking given by a Finance Party in connection with this Agreement prior to it becoming a Party.

27.              Set-off

A Finance Party may set off any matured obligation owed to it by the Borrower under the Finance Documents (to the extent beneficially owned by that Finance Party) against any obligation (whether or not matured) owed by that Finance Party to the Borrower, regardless of the place of payment, booking branch or currency of either obligation.  If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

28.              Pro rata sharing

28.1          Redistribution

If any amount owing by the Borrower under this Agreement to a Lender (the recovering Lender) is discharged by payment, set-off or any other manner other than through the Facility Agent under this Agreement (a recovery), then:

(a)                the recovering Lender must, within three Business Days, supply details of the recovery to the Facility Agent;

(b)               the Facility Agent must calculate whether the recovery is in excess of the amount which the recovering Lender would have received if the recovery had been received by the Facility Agent under this Agreement; and

(c)                the recovering Lender must pay to the Facility Agent an amount equal to the excess (the redistribution).

28.2          Effect of redistribution

(a)                The Facility Agent must treat a redistribution as if it were a payment by the Borrower under this Agreement and distribute it among the Lenders, other than the recovering Lender, accordingly.

(b)               When the Facility Agent makes a distribution under paragraph (a) above, the recovering Lender will be subrogated to the rights of the Finance Parties which have shared in that redistribution.

(c)                If and to the extent that the recovering Lender is not able to rely on any rights of subrogation under paragraph (b) above, the Borrower will owe the recovering Lender a debt which is equal to the redistribution, immediately payable and of the type originally discharged.

(d)               If:

(i)                 a recovering Lender must subsequently return a recovery, or an amount measured by reference to a recovery, to the Borrower; and

(ii)               the recovering Lender has paid a redistribution in relation to that recovery,

each Finance Party must reimburse the recovering Lender all or the appropriate portion of the redistribution paid to that Finance Party, together with interest for the period while it held the re-distribution.  In this event, the subrogation in paragraph (b) above will operate in reverse to the extent of the reimbursement.

28.3          Exceptions

Notwithstanding any other term of this Clause, a recovering Lender need not pay a redistribution to the extent that:

(a)                it would not, after the payment, have a valid claim against the Borrower in the amount of the redistribution; or

(b)               it would be sharing with another Finance Party any amount which the recovering Lender has received or recovered as a result of legal or arbitration proceedings, where:

(i)                 the recovering Lender notified the Facility Agent of those proceedings; and

(ii)               the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.

29.              Severability

If a term of a Finance Document is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:

(a)                the legality, validity or enforceability in that jurisdiction of any other term of the Finance Documents; or

(b)               the legality, validity or enforceability in other jurisdictions of that or any other term of the Finance Documents.

30.              Counterparts

Each Finance Document may be executed in any number of counterparts.  This has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

31.              Notices

31.1          In writing

Any communication in connection with a Finance Document (including a Transfer Certificate) must be in writing and, unless otherwise stated, may be given in person, by post, telex or fax.

31.2          Contact details

(a)                Except as provided below, the contact details of each Party for all communications in connection with the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party.

(b)               The contact details of the Borrower for this purpose are:

 

Address:          [•]

Fax number:        [•]

Telex number:     [•]

Attention:           [•]

(c)                The contact details of the Facility Agent for this purpose are:

 

Address:          [•]

Fax number:        [•]

Telex number:     [•]

Attention:           [•]

(d)               Any Party may change its contact details by giving five Business Days' notice to the Facility Agent or (in the case of the Facility Agent) to the other Parties.

(e)                Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.

31.3          Effectiveness

(a)                Except as provided below, any communication in connection with a Finance Document will be deemed to be given as follows:

(i)                 if delivered in person, at the time of delivery;

(ii)               if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope;

(iii)             if by telex, when despatched, but only if, at the time of transmission, the correct answerback appears at the start and at the end of the sender's copy of the notice; and

(iv)             if by fax, when confirmed by an activity report confirming the fax number to which such communication was sent, the number of pages transmitted and that such transmission was successfully completed.

(b)               A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.

(c)                A communication to the Facility Agent will only be effective on actual receipt by it.

31.4          The Borrower

All formal communication under the Finance Documents to or from the Borrower must be sent through the Facility Agent.

32.              Language

(a)                Any notice given in connection with a Finance Document must be in English.

(b)               Any other document provided in connection with a Finance Document must be:

(i)                 in English; or

(ii)               (unless the Facility Agent otherwise agrees) accompanied by a certified English translation.  In this case, the English translation prevails unless the document is a statutory or other official document.

33.              Governing law

This Agreement is governed by the laws of [Name of the Country].

34.              Enforcement

34.1          Jurisdiction

(a)                The [•] courts have non-exclusive jurisdiction to settle any dispute in connection with any Finance Document.

(b)               The Borrower waives objection to the [•] courts on grounds of inconvenient forum or otherwise as regards proceedings in connection with a Finance Document and agrees that a judgment or order of an English court in connection with a Finance Document is conclusive and binding on it and may be enforced against it in the courts of Korea. 

(c)                To the extent allowed by law, the Finance Parties may take:

(i)                 proceedings in any other court; and

(ii)               concurrent proceedings in any number of jurisdictions.

34.2          Service of process

(a)                The Borrower irrevocably appoints [•] at [•] as its agent under the Finance Documents for service of process in any proceedings before the English courts.

(b)                                 If any person appointed as process agent is unable for any reason to act as agent for service of process, the Borrower must immediately appoint another agent on terms acceptable to the Facility Agent.  Failing this, the Facility Agent may appoint another agent for this purpose.

(c)                The Borrower agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.

(d)               This Clause does not affect any other method of service allowed by law.

34.3          Waiver of immunity

The Borrower irrevocably and unconditionally:-

(a)                agrees not to claim any immunity from proceedings brought by a Finance Party against the Borrower in relation to a Finance Document and to ensure that no such claim is made on its behalf;

(b)               consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and

(c)                waives all rights of immunity in respect of it or its assets.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

 

SCHEDULE 1

ORIGINAL PARTIES

Part A

Tranche A Lenders and Tranche A Commitments

 

Tranche A Lenders	Tranche A Commitments US$
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
Total Tranche A Commitments :	US$[•]

 

 

Part B

Tranche B Lenders and Tranche B Commitments

 

Tranche B Lenders	Tranche B Commitments US$
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
Total Tranche B Commitments :	US$[•]

 

 

Part C

Tranche C Lenders and Tranche C Commitments

Tranche C Lenders	Tranche C Commitments US$
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
[•]	[•]
Total Tranche C Commitments:	US$[•]
Total Commitments :	US$[•]

SCHEDULE 2

CONDITIONS PRECEDENT DOCUMENTS

Borrower

1.          A copy of the constitutional documents of the Borrower.

2.        An English translation of an extract of a resolution of the board of directors of the Borrower approving the terms of, and the transactions contemplated by, this Agreement. 

3.         A director's certificate for the Borrower substantially in the form of Schedule 3.

4.         Evidence that the agent of the Borrower under the Finance Documents for service of process in England has accepted its appointment.

Legal opinions

1.         A legal opinion of [•], Korean law legal advisers to the Borrower, addressed to the Finance Parties.

2.         A legal opinion of [•], English law legal advisers to the Mandated Lead Arrangers and the Facility Agent, addressed to the Finance Parties.

Other documents and evidence

1.         Evidence that all fees and expenses then due and payable from the Borrower under this Agreement have been or will be paid by the first Utilisation Date or five Business Days from the date of this Agreement whichever is earlier.

2.         A copy of any other authorisation or other document, opinion or assurance which the Facility Agent has notified the Borrower is necessary or desirable in connection with the entry into and performance of, and the transactions contemplated by, any Finance Document or for the validity and enforceability of any Finance Document.

3.        Evidence that a report with respect to this Agreement has been filed with the Ministry of Finance and Economy of Korea. 

 

 

SCHEDULE 3

FORM OF DIRECTOR'S CERTIFICATE

 

To:        [FFF] as Facility Agent

The Export-Import Bank of Korea - US$[•] Credit Agreement

dated [•] (the Agreement)

I refer to the Agreement. Terms defined in the Agreement have, unless defined in this Certificate, the same meaning when used in this Certificate.

I am a director of The Export-Import Bank of Korea (the Borrower) authorised to give this Certificate and certify as follows:

1.         Each copy document delivered by the Borrower to the Facility Agent under Schedule 2 (Conditions precedent documents) to the Agreement (including the documents listed below and attached to this Certificate) is true, complete and in full force and effect on the date of this Certificate:

(a)        the Export-Import Bank of Korea Act and the Enforcement Decree;

(b)        the Articles of Incorporation of the Borrower;

(c)       the minutes of a meeting of the board of directors of the Borrower held on [•], 20[•];

(d)       the certified corporate registry extracts of the Borrower dated  [•]; and

(e)        the specimen signature book of the Borrower issued in [•] which contains a list of specimen signatures of the persons who were authorised to execute the Agreement for and on behalf of the Borrower.

2.         Neither the entry into of the Finance Documents by the Borrower, nor the exercise by it of its rights or performance of its obligations under the Finance Documents will breach any borrowing or other power or restriction binding on the Borrower under its constitutional documents.

3.         The Approval is in full force and effect without modification.

4.         The Approval constitutes all corporate action necessary on the part of the Borrower to:

(i)         approve the terms of and transactions contemplated by the Finance Documents; and

(ii)        authorise the signing of, any communications and/or other action under or in connection with, the Finance Documents.

5.         The Borrower has not created any Security Interests which are subsisting at the date of this Certificate.

6.         Unless we notify you to the contrary in writing, you may assume that this Certificate remains true and correct up until the date of the first utilisation by the Borrower under the Agreement.

7.          At the date of this certificate, the Borrower is solvent.

 

 

………………………………………

 

[•] Director

The Export-Import Bank of Korea

 

SCHEDULE 4

FORM OF REQUEST

To :      [FFF] as Facility Agent

From :  THE EXPORT-IMPORT BANK OF KOREA

Date :  [•]

 

The Export-Import Bank of Korea - US$[•] Credit Agreement

dated [•] (the Agreement)

1.          We refer to the Agreement.  This is the Request.

2.         We wish to borrow the [Tranche A / Tranche B / Tranche C] Loan on the following terms:

(a)          Utilisation Date: [•]

(b)          Amount: [•]

(c)          Term: six months

3.          Our payment instructions are: [•].

4.         We confirm that each condition precedent under the Agreement which must be satisfied on the date of this Request is so satisfied.

5.          This Request is irrevocable.

 

By:

The Export-Import Bank of Korea

 

SCHEDULE 5

FORM OF TRANSFER CERTIFICATE

To:        [FFF] as Facility Agent

From:   [THE EXISTING LENDER] (the Existing Lender) and [THE NEW LENDER] (the New Lender)

Date:   [                               ]

The Export-Import Bank of Korea - US$[•] Credit Agreement

dated [•] (the Agreement)

We refer to the Agreement.  This is a Transfer Certificate.

1.         The Existing Lender (as a [Tranche A / Tranche B / Tranche C] Lender) transfers by novation to the New Lender the Existing Lender's rights and obligations referred to in the Schedule below in accordance with the terms of the Agreement.

2.          The proposed Transfer Date is [•] .

3.         The administrative details of the New Lender for the purposes of the Agreement are set out in the Schedule.

4.          This Transfer Certificate is governed by English law.

THE SCHEDULE

Rights and obligations to be transferred by novation

[All rights and obligations of the Existing Lender (as a [Tranche A/Tranche B/Tranche C] Lender) in respect that part of its [participation in the [Tranche A/Tranche B/Tranche C] Loan/[Tranche A/Tranche B/Tranche C] Commitment] in the principal amount of US$ [•].

Administrative details of the New Lender

[insert details of Facility Office, address for notices and payment details etc.]

[EXISTING LENDER]                                                [NEW LENDER]

By :                                                                            By :

The Transfer Date is confirmed by the Facility Agent as [•].

[FFF]

By:

 

SIGNATORIES

Borrower

 

THE EXPORT-IMPORT BANK OF KOREA

 

By :    

Mandated Lead Arrangers

[AAA]

By:

[BBB]

By:

[CCC]

By:

[DDD]

By:

[EEE]

By:

[FFF]

By:

 

 

 

Original Lenders

 

[AAA]

By:

 

[BBB]

By:

 

[CCC]

By:

 

[DDD]

By:

 

[EEE]

By:

 

[FFF]

By:

 

[GGG]

By:

 

[HHH].

By:

 

[I I I]

By:

 

Facility Agent

[FFF]

By:

4_1 Syndicated Term Loan Agreement.DOC