PURCHASE AGREEMENT, 구매계약서, 영문 계약서

 

PURCHASE AGREEMENT(Bond)

 

 

 

THE EXPORT IMPORT BANK OF KOREA

 

as Issuer

 

 

and

 

 

[AAA BANK], [BBB INC.]

 

as Lead Managers

 

 

and

 

 

[CCC INC.]

 

as Co-Manager

 

 

in respect of Series U.S.$ [•], [•] percent. Notes due 20[•]

 

THE EXPORT IMPORT BANK OF KOREA

 

U.S.$ [•]

Euro Medium Term Note Programme

TABLE OF CONTENTS

Page

 

1.          APPOINTMENT ······································································ 2

2.          ISSUE OF THE NOTES ····························································· 2

3.          AGREEMENT BY THE MANAGERS ············································ 3

4.          CONDITIONS PRECEDENT ······················································· 4

5.          ADDITIONAL REPRESENTATIONS AND WARRANTIES ·················· 5

6.          CLOSING ·············································································· 6

7.          COMMISSION ········································································ 6

8.          EXPENSES ············································································· 6

9.          COMMUNICATIONS ································································ 7

10.        SELLING RESTRICTIONS ························································· 8

11.         INDEMNITY AND CONTRIBUTION ············································ 8

12.        GOVERNING LAW ································································· 11

13.        RIGHTS OF THIRD PARTIES ···················································· 11

SCHEDULE 1 MANAGERS ································································ 13

 

 

 

 

 

 

 

 

 

 

PURCHASE AGREEMENT(Bond)

 

THIS AGREEMENT is made on [•], 20[•]

BETWEEN

(1)         THE EXPORT�IMPORT BANK OF KOREA (the "Issuer")

(2)         AAA Bank, BBB Inc. (as lead managers, the "Lead Managers") and

(3)         CCC Inc. (as co-manager, together with the Lead Managers, the "Managers")

 

WHEREAS

(A)                The Issuer has entered into an amended and restated dealer agreement dated [•] 20[•] (the "Dealer Agreement") with the Dealers and Arrangers named in it in respect of the Issuer's U.S.$ [•] Euro Medium Term Note Programme (the "Programme").

 

(B)                The Issuer proposes to issue U.S.$ [•] [•] percent. Notes due 20[•] (the "Notes"), which expression, where the context so admits, shall include the Global Certificates to be delivered in respect thereof and the Managers wish to subscribe such Notes. Definitive Notes, if any, will be in registered form in denominations of U.S.$ [•] each with coupons attached.

 

(C)                Notes which are offered and sold outside the United States to non U.S. persons in reliance on Regulation S will be represented by beneficial interests in a global certificate (the "Unrestricted Global Certificate"), in registered form, without coupons attached. Notes which are offered and sold in the United States in reliance on Rule 144A will also be represented by beneficial interests in a global certificate (the "Restricted Global Certificate" and, together with the Unrestricted Global Certificate, the "Global Certificates"), in registered form, without coupons attached. The Unrestricted Global Certificate will be deposited with [Name and Address of the Bank] as common depositary (the "Common Depositary") for Euroclear and Clearstream, Luxembourg and registered in the name of [•] as nominee for the Common Depositary on or about the Closing Date (as defined below). The Restricted Global Certificate will be deposited with [•], as custodian (the "Custodian") for, and registered in the name of [•]. as nominee for, The Depository Trust Company ("DTC") on or about the Closing Date.

 

 

IT IS AGREED as follows:

 

1.          APPOINTMENT

 

In accordance with Clause 13.3 of the Dealer Agreement, the Issuer appoints those of the Managers who are not Dealers (the "New Dealers") as Dealers under the Dealer Agreement for the purposes of the issue of the Notes only and not for any other Tranche or Series under the Dealer Agreement. Each New Dealer accepts its appointment under the Dealer Agreement and as such each New Dealer is hereby vested with all the authority, rights, powers, duties and obligations of a Dealer under the Dealer Agreement as if each New Dealer had originally been named a Dealer in the Dealer Agreement as set out in Clause 13.3 thereof. This Agreement shall, in relation to each New Dealer, be deemed to constitute such New Dealer's confirmation and agreement to perform and comply with the duties and obligations assumed by it under the Dealer Agreement on the terms set out in this Agreement.

 

 

2.          ISSUE OF THE NOTES

 

2.1        Dealer Agreement

The Notes shall be issued pursuant to Clause 2.2 of the Dealer Agreement and on the terms of Clauses 3, 5 to 9 (but not 9.1), 12, 13.2, 14, 16 and 18 of the Dealer Agreement as modified by this Agreement. Unless otherwise defined in this Agreement, terms defined in the Dealer Agreement shall have the same meaning in this Agreement. References in the Dealer Agreement to "Notes" and "Dealers" shall be construed as references to the Notes and the Managers, respectively, for the purposes of this Agreement.

 

2.2        The Notes

The Notes shall be in the form set out in Schedule 1 Part C and Schedule 1 Part D to the Agency Agreement and have the terms set out in the section entitled "Terms and Conditions of the Notes" in the Offering Circular, as supplemented by the Pricing Supplement (the "Pricing Supplement") dated the date of this Agreement relating to the Notes, which the Issuer confirms it has prepared and copies of which it authorises the Managers to distribute in connection with the offering and sale of the Notes.

 

2.3        Agreement to Issue

Subject to the terms and conditions of this Agreement, the Issuer agrees to issue the Notes on [•],  20[•] (the "Closing Date") or such later date not being later than [DATE] as the Issuer and the Managers may agree (the "Issue Date"), to the Managers or as the Managers may direct in accordance with Clause 6 hereof. The Notes shall be issued at a price (the "Issue Price") equal to [•] per cent of their principal amount less the amount referred to in Clause 7 hereof and the expenses cap payable to the Managers under Clause 8 hereof but plus accrued interest, if any, on the Notes from the Closing Date to the Issue Date.

 

2.4        Publicity

The Issuer confirms the arrangements made on its behalf by the Managers for announcements in respect of the Notes to be published on such dates and in such newspapers or other publications as it may agree with the Managers.

 

2.5        Manager's statements

The Issuer acknowledges that the names of the Managers appearing in the Pricing Supplement constitute the only information provided by or on behalf of the Managers in connection with the offering of the Notes.

 

 

3.          AGREEMENT BY THE MANAGERS

 

3.1        Subscription

The Managers agree, severally and not jointly, that they shall subscribe the Notes on the Issue Date, in the amounts set forth opposite their respective names in Schedule 1 (Managers) hereto, all on the terms set out herein.

 

3.2        Default by Manager

If any one of the Managers fails to subscribe and pay for any of the Notes agreed to be subscribed for by such Manager in the amounts set forth opposite its name in Schedule 1 (Managers) hereto and such failure shall constitute a default of its or their obligations hereunder, the remaining Managers shall be obliged severally to subscribe and pay for (in the respective proportions which the principal amount of the Notes set forth opposite their names in Schedule 1 (Managers) hereto bears to the aggregate principal amount of Notes set forth opposite the names of all the remaining Managers) the Notes which the defaulting Manager agreed but failed to subscribe for, provided, however, that in the event that the aggregate principal amount of Notes which the defaulting Manager agreed but failed to subscribe for shall exceed [•] per cent. of the aggregate principal amount of the Notes, the remaining Managers shall have the right to subscribe for all, but shall not be under any obligation to subscribe for any, of the Notes.

 

 

4.          CONDITIONS PRECEDENT

 

4.1        Dealer Agreement

Clause 9.2 of the Dealer Agreement shall apply to the issue and subscription of the Notes.  In addition, the obligation of each Manager to subscribe and pay for the Notes pursuant to this Agreement is conditional upon there having been delivered to the Managers letters from each of [•] Corp. and the internal auditor of the Issuer in such form as the Managers may reasonably request on and dated as of the date of this Agreement and the Issue Date.

 

4.2        Additional Conditions Precedent

The obligation of the Managers to subscribe for the Notes is further conditional upon:

 

4.2.1     (a) neither the Issuer nor any of its subsidiaries or branches shall have sustained since the date of the latest audited financial statements set out in the Offering Circular any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labour dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Circular, and (b) since the respective dates as of which information is given in the Offering Circular there shall not have been any material change in the capital stock, reserve for loan losses or long term debt of the Issuer or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Issuer and its subsidiaries, otherwise than as set forth or contemplated in the Offering Circular, the effect of which, in any such case described in (a) or (b), is in the judgment of the Managers so material and adverse as to make it impracticable or inadvisable to proceed with the issue of the Notes on the terms and in the manner contemplated herein; and

 

4.2.2     there shall not have occurred any of the following on or after the date hereof: (a) a suspension or material limitation in trading in securities generally on the London Stock Exchange; (b) a general moratorium on commercial banking activities in New York, the United Kingdom or the Republic of Korea declared by the relevant authorities; (c) a change or development involving a prospective change in the United States, the United Kingdom or the Republic of Korea taxation affecting the Issuer, the Notes or the transfer thereof or the imposition of exchange controls by the United States, the United Kingdom or the Republic of Korea; (d) the outbreak or escalation of hostilities involving the United States, the United Kingdom or the Republic of Korea, or the declaration by the United States, the United Kingdom or the Republic of Korea of a national emergency or war, if the effect of any such event in the judgment of the Managers makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Offering Circular; or (e) the occurrence of any material adverse change in the existing financial, political or economic conditions in the United States, the United Kingdom or the Republic of Korea or elsewhere which, in the judgment of the Managers would materially and adversely affect the financial markets or the market for the Notes and other debt securities.

 

 

5.          ADDITIONAL REPRESENTATIONS AND WARRANTIES

The Issuer does, and on the Issue Date shall be deemed to, represent, warrant and agree to and with each Manager that:

 

5.1        There are no outstanding guarantees or contingent payment obligations of the Issuer in respect of indebtedness of third parties except as included in the Offering Circular; and the Issuer is in compliance with all of its obligations under any outstanding guarantees or contingent payment obligations as included in the Offering Circular.

 

5.2        The Issuer has no material off-balance sheet transactions, arrangements, and obligations; and the Issuer has no material relationships with unconsolidated entities that are contractually limited to narrow activities that facilitate the transfer of or access to assets by the Issuer such as structured finance entities and special purpose entities that are reasonably likely to have a material effect on the liquidity of the Issuer or the availability thereof or the requirements of the Issuer for capital resources.

 

5.3        None of the proceeds from the issue of the Notes will be used in connection with projects or dealings in or related to any country or with any person or entity that is subject to U.S. economic sanctions administered by, inter alia, the Office of Foreign Assets Control of the United States Department of the Treasury.

6.          CLOSING

 

6.1        Issue of Notes

Not later than 5 p.m. (London time) on the Closing Date (or such other time on the Closing Date as may be agreed between the Managers and the Issuer), the Issuer will issue and deliver to the Managers or their order the Global Certificates duly executed and authenticated, to be held, in the case of the Unrestricted Global Certificate, by or to the order of the Common Depositary and registered in the name of [•] as nominee for the Common Depositary, and, in the case of the Restricted Global Certificate, by the Custodian to the order of DTC and registered in the name of [•]. as nominee for DTC.

 

6.2        Payment

Against such delivery the Managers shall pay or cause to be paid to the Issuer the net subscription moneys for the Notes (being the aggregate amount payable for the Notes calculated at the Issue Price less the commissions referred to in Clause 7 hereof, and the amount payable to the Managers under Clause 8 hereof and plus accrued interest, if any, referred to in Clause 2.3 hereof).  Such payment shall be made by [•] as Common Depositary and [•] as DTC Custodian on behalf of the Managers, in United States dollars in same day settlement funds to such United States dollar account in New York City as shall be notified by the Issuer to the Managers, evidence of such payment taking the form of confirmations by each of the Common Depositary and the DTC Custodian that they have made the relevant payment to the Issuer.

 

 

7.          COMMISSION

 

The Issuer shall pay to the Managers a combined management fee and commission of [•] per cent. of the principal amount of the Notes. Such commission shall be deducted from the subscription moneys by the Managers prior to payment to the Issuer.

 

 

8.          EXPENSES

 

In connection with the issue of the Notes, the Managers will be paid for expenses subject to a cap of U.S.$ [•] (or its equivalent), for fees and expenses of printing costs, advertising fees, all listing fees in connection with the issue of the supplemental offering circular dated [•],  20[•] and the issue of the Notes and any jointly incurred expenses relating to any investor presentation or roadshow (collectively, the "Expenses"). Any Expenses in excess of U.S.$ [•] shall be shared equally by the Managers.

The Issuer shall pay any of its own travel costs incurred with respect to the roadshow in connection with the offering of the Notes and all fees and expenses of international legal counsel, local counsel, accountants and rating agencies in respect of the Notes, any ongoing fees and expenses of the Fiscal Agent, the Paying Agents and the other agents appointed under the Agency Agreement in relation to the performance of their duties under the Agency Agreement.

The Managers shall pay their own travel expenses including airfare, hotels and any meals not jointly shared, as well as any other out-of-pocket costs and expenses incurred for the purpose of, or in connection with, the offering of the Notes.

 

 

9.          COMMUNICATIONS

 

The telephone number, fax number, telex number, address and designated person of the Managers for the purposes of Clause 14 of the Dealer Agreement are:

 

[AAA Bank]

[Address]

 

Telephone No. : [•]

Fax : [•]

Attention : [•]

 

[BBB Inc.]

[Address]

 

Telephone No. : [•]

Fax : [•]

Attention : [•]

 

[CCC Inc.]

[Address]

 

Telephone No. : [•]

Fax : [•]

Attention : [•]

 

10.        SELLING RESTRICTIONS

 

For the purposes of paragraph 3.2 of Schedule A to the Dealer Agreement, the applicable TEFRA exemption is not applicable. For the purposes of this issue of Notes, the wording appearing in paragraph 10 of Schedule A to the Dealer Agreement, under the heading "Singapore", shall be amended by replacing the words ……

 

 

11.         INDEMNITY AND CONTRIBUTION

 

11.1       The Issuer agrees to indemnify and hold harmless each Manager, each person, if any, who controls any Manager within the meaning of either Section 15 of the United States Securities Act of 1933 (the "Securities Act") or Section 20 of the United States Securities Exchange Act of 1934 (the "Exchange Act") and each affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act, an "Affiliate") of any Manager from and against any and all losses, claims, damages and liabilities or actions in respect thereof (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Offering Circular, or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, and will reimburse each Manager for any legal or other expenses reasonably incurred by such Manager in connection with investigating or defending any such action or claim as such expenses are incurred, provided, however, that the Issuer shall not be liable to the extent that such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission made in the Offering Circular based upon and in conformity with written information furnished to the Issuer by any Manager expressly for use therein.

 

11.2       In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Clause 11.1, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding, provided, however, that an omission by such indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Managers.  The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.  Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this Clause 11.2, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than [•] days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.  No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

 

11.3       To the extent the indemnification provided for in Clause 11.1 is unavailable to an indemnified party or is insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under Clause 11.1, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer on the one hand and the Managers on the other hand from the offering of the Notes or (ii) if the allocation provided by Clause 11.3(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in Clause 11.3(i) above but also the relative fault of the Issuer on the one hand and of the Managers on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Issuer on the one hand and the Managers on the other hand in connection with the offering of the Notes shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Notes (before deducting expenses) received by the Issuer and the total discounts and commissions received by the Managers, in each case as set forth herein, bear to the aggregate offering price of the Notes.  The relative fault of the Issuer on the one hand and of the Managers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer or by the Managers and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Managers' respective obligations to contribute pursuant to this Clause 11 are several in proportion to the respective principal amount of Notes they have subscribed for hereunder, and not joint.

 

11.4       The Issuer and the Managers agree that it would not be just or equitable if contribution pursuant to this Clause 11 were determined by pro rata allocation (even if the Managers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Clause 11.3.  The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Clause 11.3 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this Clause 11, no Manager shall be required to contribute any amount in excess of the amount by which the total price at which the Notes subscribed for by it from the Issuer in connection with the initial distribution of such Notes exceeds the amount of any damages that such Manager has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The remedies provided for in this Clause 11 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

11.5       The indemnity and contribution provisions contained in this Clause 11 and the representations, warranties and other statements of the Issuer contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Manager, any person controlling any Manager or any Affiliate of any Manager or by or on behalf of the Issuer as well as their respective officers or directors or any person controlling any of them and (iii) acceptance of and payment for any of the Notes.

 

 

12.        GOVERNING LAW

 

This Agreement shall be governed by and construed in accordance with the law of [Name of the Country].

 

 

13.        RIGHTS OF THIRD PARTIES

 

13.1      An indemnified party (as defined in Clause 11.2) who is not a party to this Agreement (a "Third Party") may enforce the terms of Clause 11 hereof, subject to and in accordance with this Clause, Clause 11 hereof and Clause 18 of the Dealer Agreement and any other relevant term of this Agreement and the provisions of the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act").

 

13.2      As conditions precedent to bringing any proceedings to enforce the terms of Clause 11, a Third Party which is (or was at the relevant time) a person who controls any Manager within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, or an Affiliate of any Manager, must:

(1)         obtain the written consent of such Manager; and

(2)         give written notice to the Issuer in accordance with the provisions of this Agreement agreeing to be bound by Clause 18 of the Dealer Agreement.

A Third Party which has given notice to the Issuer agreeing to be bound by Clause 18 of the Dealer Agreement shall be deemed to be included in the category of persons for whose benefit the Issuer has agreed to submit to the jurisdiction of the courts specified therein.

 

13.3      A prospective purchaser of Notes referred to in Condition 2(g) may enforce the terms of Clause 8.14 of the Dealer Agreement subject to and in accordance with that Clause and any other relevant term of this Agreement and the provisions of the Third Parties Act.

 

13.4      The parties to this Agreement do not require the consent of any person not a party to this Agreement to rescind or vary this Agreement at any time.

 

13.5      Except as set out in this Clause 13, a person who is not a party to this Agreement has no right under the Third Parties Act to enforce any term of this Agreement.

 

 

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

 

The Issuer

THE EXPORT�IMPORT BANK OF KOREA

By :                       

 

 

The Lead Managers

[AAA Bank]

By :                       

 

 

[BBB Inc.]

By :                       

 

 

The Co-Manager

[CCC Inc.]

By :                       

SCHEDULE 1

 

 

MANAGERS

 

 4_3 Purchase Agreement(Bond).doc