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Loan Agreement
LOAN AGREEMENT (INTERNATIONAL)
LOAN AGREEMENT (INTERNATIONAL)
This ACREEMENT entered into as of ___ (Day) ___ (Month), 20__， between ABC
company, a [Name of country]company (the "Borrower") and CREDlT BANK, N. A. , a national banking association of the United States of America (the "Bank").
WITNESSETH:
WHEREAS, the Borrower has requested the Bank to extend to the Borrower a term
loan in the principal amount of One Million United States Dollars (U. S. $ 1,
000, 000) upon the terms and subject to the Conditions of this Agreement; and
WHEREAS, the Bank is prepared to make such a loan available to the Borrower upon
the terms and subject to the conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained therein, the
parties agree as follows:
Article 1 Definitions
Section 1. 1 For the Purposes of this Agreement, the following expressions have
the meanings set forth below:
"Business Day": any day on which banks are open to conduct their regular banking
business in London, England, and Los Angeles, California, and on which dealings
in Dollar deposits between banks are carried out in the London interbank market;
"Commitment": the obligation of the Bank to make the loan to the Borrower on the
date hereof;
"Credit Los Angeles": Credit Bank, International Division, Los Angeles,
California;
"Dollars" and the sign "$": lawful money of the United States of America and, in
relation to all payments hereunder, immediately available funds;
"Event of Default": any of the events specified in Article Ⅷ of this Agreement;
"Guarantor": XYZ Bank Limited;
"Indebtedness": of any Person, or the Borrower, means all items of indebtedness
which, in accordance with generally accepted accounting principles in [Name of
Country] Would be included in determining liabilities as shown on the liability
side of a balance sheet of such Person or the Borrower as of the date
indebtedness is to be determined, and shall also include all indebtedness and
liabilities of others assumed or guaranteed or in respect of which the Borrower
is secondarily or contingently liable (other than by endorsement of instruments
in the course of collection) , whether by reason of any agreement to acquire
such indebtedness or to supply or advance sums or otherwise;
"Installment Payment Dates": subject to Section 4. 1, the dates which are
eighteen months, twenty-four months, thirty months, thirty-six months, forty -
two months, forty-eight months, fifty - four months and sixty months from the
date hereof;
"Interest Payment Date": the last day of each Interest Period;
"Interest Period": the period commencing on the date hereof and ending on the
day which is ____ months after such date, and each period thereafter beginning
on the last day of the immediately preceding Interest Period and ending on the
day which is three months or six months after such date, as the Borrower may
elect; provided, however, that (I) any Interest Period which would otherwise end
on a day which is a Business Day shall be extended to the next succeeding day
which is a Business Day, and (II) any Interest Period commencing before and
which would otherwise end after an Installment Payment Date shall end on such
Installment Payment Date;
"Interest Rate": the rate of interest to be determined as provided in sections
2.4, 2.6 and 2.7, as the case may be;
"Lending Office": the International Banking Facility of the Bank, or such other
branch, office, affiliate or subsidiary of the Bank as it may at its discretion
from time to time designate, from which the Loan will thereafter be made and for
the account of which the Loan will be outstanding and all payments hereunder
will be made;
"Loan": the loan made by the Bank to the Borrower pursuant to Section 2. 1
hereof; "Note": the promissory note of the Borrower to the order of the Bank in
substantially the form of Exhibit A hereto, evidencing the indebtedness of the
Borrower to the Bank resulting from the Bank's Loan to the Borrower;
"Person": any natural person, corporation, firm, association, government,
governmental agency or any other entity other than the Borrower and whether
acting in an individual, fiduciary or other capacity.
Article 2 The Loan
Section 2.1. The Commitment
Upon the terms and subject to the conditions herein set forth, and relying upon
the representations and warranties of the Borrower, the Bank agrees, acting
through its Lending office; on the date hereof to lend to the borrower, and the
Borrower agrees to borrow, the principal amount of One Million Dollars ( $ 1,
000, 000).
Section 2. 2. Disbursement
On the date hereof, upon fulfillment of the conditions set forth in Article Ⅵ,
the Bank shall make the amount of the Loan available to the Borrower by
remitting the amount of the Loan to an account in New York designated by the
Borrower, If the Borrower fails to satisfy the conditions precedent set forth in
Article Ⅵ 1, the Bank shall be obligated to make the Loan.
Section 2.3. Repayment; Payment of Interest; Designation of Interest Period
The Borrower agrees to repay the principal amount of the Loan on the installment
Payment Dates in eight equal installments and to pay interest on each interest
Payment Date on the outstanding principal balance of the Loan at the Interest
Rate. The Borrower shall give notice to the Bank not less that five Business
Days prior to the commencement of each interest Period (other than the first
Interest Period) whether it has elected an Interest Period of three months or
six months. If no such notice is received by the Bank, the relevant interest
Period shall be the same length as the previous Interest Period; provided,
however, that an interest Period commencing before and which would otherwise and
after an installment Payment Data shall end not such installment Payment Date.
Section 2. 4. Determination of interest Rate
The interest Rate for each interest Period with respect to the Loan shall be one
and one-half percent (1-1/2%) above the rate at which Dollar deposits in an
amount equal to the principal amount of the Loan to be made or maintained are
offered by the Bank for such Interest Period to prime banks in the London
interbank market as of 11: 00A.M. (London time) two Business Days prior to the
commencement of such Interest Period.
Section 2. 5. The Note
The Borrower's obligation to repay the principal amount of the Loan made by the
Bank hereunder shall be evidenced by a note of the Borrower in the form of
Exhibit A to this Agreement with appropriate inspections pursuant to this
Section 2. 5. The Note shall (I) be dated the date hereof, (II) be payable to
the order of the Bank in the principal amount of the Loan, (III) mature in eight
equal installments, payable on the installment Payment Dates and (IV) bear
interest at the interest Rate on the outstanding principal balance thereof from
time to time, computed for each Interest Period and payable on the Interest
Payment Dates.
Section 2.6. Substitute Basis. In the event that on any date on which an
Interest Rate is to be determined pursuant to Section 2.4, (I) the Bank shall
determine that Dollar deposits in the principal amount of the Note to be
outstanding for the interest Period for which such interest Rate is to be
determined are not available to the Bank in the London interbank market, or (II)
the Bank shall determine that the offered rate quotations at which Dollar
deposits are offered in the London interbank market do not accurately reflect
the cost of the Bank of making maintaining the Loan for such interest period,
the Bank shall forthwith give notice of such determination to the Borrower, by
telex, telegram or cable at least one Business Day prior to the first day of any
interest Period so affected. During the thirty (30) days next succeeding the
date of any such notice, the Bank and the Borrower shall enter into negotiations
in good faith in order to arrive at a mutually acceptable alternative basis
(such alternative basis being hereinafter referred to as the "Substitute Basis")
for funding the Loan. If within the thirty (30) days following the date of any
such notice the Bank and the Borrower shall agree upon a Substitute Basis, such
Substitute Basis shall be retroactive to and effective from the first day of the
then current Interest Period. If after thirty (30) days from the date of such
notice the Bank and the Borrower have failed to agree upon a Substitute Basis,
then the Bank shall certify in writing to the Borrower the interest rate or
rates at which the Bank is prepared to make or maintain the Loan for such
interest Period, it being understood that the Bank's interest rate shall be a
rate per annum equal to one and one-half percent (1-1/2%), above a rate which
adequately and fairly reflects the cost to the Bank of obtaining the funds
necessary to maintain the Loan for the then current Interest Period, such
interest rate or rates to be retroactive to and effective from the first day of
such interest Period. The Bank shall furnish to the Borrower appropriate
evidence establishing the manner in which the Bank obtained such funds and the
cost to the Bank of obtaining such funds. Upon receipt of notice of the interest
rate or rates at which the Bank will make or maintain the Loan, the Borrower
shall have the right to prepay in full (but not in part), pursuant to the
provisions of Section 4. 7, the then outstanding principal amount of the Loan
and the Note, together with interest accrued therein to the date of such
prepayment.
Section 2.7. Interest Rate on Overdue Principal
In the event of failure by the Borrower to pay when due (whether upon stated
maturity, by acceleration or otherwise) any payments due under the Loan or the
Note, the Borrower shall pay interest, to be paid upon demand, to the holder of
the Note on the unpaid amounts from the date such payments were due to the date
of actual payment, (before as well as after judgment) for each day at a rate per
annum equal to the higher of (I) one percent (1%) above the Interest Rate
applicable to the Loan for the Interest Period immediately preceding the failure
by the Borrower to pay or (II) two and one-half percent (2-1/2%) above the rate
at which Dollar deposits were offered by the Bank in the amount outstanding for
a one month period to prime banks in the London interbank market as of ll:00
A.M. (London time) on the date of such failure by the Borrower to pay and on the
first Business Day of each succeeding one month period thereafter. The Bank
shall give prompt written or telex notice to the Borrower of the Interest Rate
in effect from time to time in accordance with the foregoing sentence. Without
prejudice to the rights of the Bank under this Section and to the extent
permitted by applicable law, the Borrower agrees to compensate the Bank for any
loss or expense which the Bank may sustain or incur as a consequence of the
Failure by the Borrower to pay when due any portion of the principal of or
interest accrued on the Loan or the Note, or any other amount payable hereunder,
including but not limited to any amounts payable by the Bank in order to honor
its Commitment or make or maintain the Loan. A certificate of the Bank setting
forth the basis for the determination of the amounts necessary to compensate the
Bank as aforesaid in respect of such loss or expense shall be conclusive as to
such determination and such amounts.
Section 2.8. Computation; Determination Conclusive
All payments of interest shall be computed on the basis of a year of 360 days
for the actual number of days involved. Each determination of any Interest Rate
by the Bank shall be conclusive and binding on the parties hereto (save for
manifest arithmetic error).
Section 2.9. Use of proceeds
(a) The proceeds of the Loan will be used to finance a [specify purpose].
(b) The Bank hereby notifies the Borrower, and the Borrower hereby acknowledges
that it understands, that it is the policy of the Board of Governors of the
Federal Reserve System of the United States of America that extensions of credit
by international banking facilities may be used only to finance the non-United
States operations of a customer located outside the United States of America.
The Borrower acknowledges that the proceeds of the Loan will be used solely to
finance its operations outside the United States of America.
Article 3 Letter of Credit
Section 3.1. Letter of Credit. The performance by the Borrower of its
obligations hereunder and under the Note shall be supported and guaranteed by a
standby letter of credit issued to the Bank by the Guarantor in the form of
Exhibit B hereto (the "Guaranty"). Such Guaranty shall be in the Amount of and
shall not expire prior to the date which is one month after the final
installment Payment Date.
Article 4 Payments
Section 4.1. Payment
All payments made by the Borrower under this Agreement or the Note shall be made
to the Bank without setoff or counterclaim and in freely transferable United
States Dollars no later than 10: 00 a. m. (Los Angeles time) at Crocker Los
Angeles for the account of the Lending Office. Whenever any funds are due to be
paid on a day which is not a Business Day, the date for the making thereof shall
be extended to the next succeeding Business Day. Interest or any other amounts
due hereunder shall be computed on the basis of the number of days elapsed until
and including such succeeding Business Day.
Section 4.2. Obligation to Make Payments in Dollars. The obligation of the
Borrower to repay the principal of and interest on the Loan and the Note,
together with interest thereon, pursuant to the terms of this Agreement and of
the Note, and the obligation of the Borrower to pay all other amounts under this
Agreement, shall be dischargeable only by payment in Dollars, regardless of any
law, rule, regulation or statute, whether now or hereafter in existence or in
effect in any jurisdiction which affects or purports to affect such obligation.
The obligation of the Borrower to make payment in Dollars of the principal of
and interest on Loan and the Note shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, which is expressed in or
converted by the Bank to any currency other than the full amount of Dollars
expressed to be payable in respect of the principal of and interest on the Loan
and the Note and all other amounts due hereunder. The obligation of the Borrower
to make payments in Dollars as aforesaid shall be enforceable as an alternative
or additional cause of action for the purpose of recovery in Dollars in the
amount (if any) by which such actual receipt shall fall short of the full amount
of Dollars expressed to be payable in respect to the principal of or interest on
the Loan and the Note and all other amounts due hereunder, and shall not be
affected by judgment being obtained for any other sums due under this Agreement
or the Note.
Section 4.3. Borrower's Right to Partial Prepayment. The Borrower shall have the
right on not less than thirty (30) Business days’ written or telex notice (which
notice shall be irrevocable) to the Bank specifying the amount and date of
prepayment, to prepay the Loan in full or in part, together with accrued
interest thereon, on any Interest Payment Date. Each partial prepayment shall be
in integral multiples of $ 100, 000and and shall be applied first to unpaid
installments of principal of the Loan in the inverse order of maturity thereof.
The amounts so prepaid may not be re-borrowed hereunder.
Section 4.4. Reimbursement
The Borrower will reimburse the Bank for all costs, expenses and losses
(including loss of profit ) incurred by the Bank (including , without
limitation, costs, expenses and losses incurred in connection with the
acquisition or liquidation of deposits or other funds acquired by the Bank in
order to make or maintain the Loan or in connection with the re* employment of
such deposits or other funds following the payment or prepayment of the Loan at
rates lower than the rate of interest on the Loan as provided for by this
Agreement except for loss of profit accruing after the Interest Payment Date
next succeeding such payment or prepayment ) by reason of (a) the Loan not being
made on the date hereof, or (b) the payment or prepayment of any principal of
the Loan on a date other than an Interest payment Date. The Bank shall describe
and certify any such costs, expenses and losses incurred by it to the Borrower,
and such certification and notice shall be binding and conclusive in the absence
of manifest error in computation or transmission.
Section 4.5. Taxes
(a) All payments on account of the Note and the principal of and interest on the
Loan and all other amounts payable under this Agreement or the Note by the
Borrower shall be made free and clear of and without reduction by reason of all
present and future income, stamp and other taxes, duties, fees, levies, imposts,
deductions, charges, compulsory loans, withholdings or other charges whatsoever
imposed, assessed, levied or collected by [Name of Country] or any department,
agency or other political subdivision or taxing authority thereof or therein or
any organization of which it is a member, together with interest thereon and
penalties with respect thereof, if any, on or in respect of this Agreement, the
Loan, the Note, the registration, notarization or other formalization of any
thereof, the enforcement of any thereof, and any payment of principal, interest,
charges, fees or other amounts made on, under or in respect of any thereof
(herein collectively called "Taxes"). If any Taxes are so levied or imposed, the
Borrower shall pay to the Bank such additional amounts as may be necessary so as
to assure the Bank that it will receive a net amount equal to the total amount
of the payments provided for herein or in the Note which the Bank would have
received if such amounts had not been subject to Taxes. All Taxes will be paid
by the Borrower prior to the date on which penalties attract thereto. Within 45
days after the date on which payment of any such Taxes is due pursuant to
applicable law, the Borrower will furnish to the Bank the original of a receipt
for the full payment of such Taxes or, if such is not available, evidence of
such payment satisfactory in form and substance to the Bank.
(b) The Borrower will indemnify and hold harmless the Bank or holder of the Note
against and will reimburse to any such party upon demand the amount of any Taxes
actually paid by any such party.
Section 4.6. Increased Costs. On and after the date of this Agreement in the
event that any change in any applicable law, rule or regulation or in the
interpretation or administration thereof by any govern mental authority charged
with the interpretation or administration thereof or in any directive of any
applicable fiscal or monetary authority (whether or not having the force of law)
shall change the basis of taxation of payments to the Bank of the principal of
or interest on the Loan or the Note or in respect of any other amounts due under
this Agreement or shall impose, modify or deem applicable any reserve, special
deposit or similar requirements against assets of, deposits with or for the
account of, or credit extended by , the Bank, or shall impose on the Bank or the
London interbank market any other condition affecting this Agreement, the Loan,
or the Note and the result of any of the foregoing is to increase to cost to the
Bank of making or maintaining the Loan or to reduce the amount of any sum
receivable by the Bank hereunder, then the Borrower shall pay to the Bank upon
its demand such additional amount or amounts as will compensate the Bank for
such additional cost or reduction. A certificate of the Bank setting forth the
basis for the determination of such amount necessary to compensate the Bank as
aforesaid shall be delivered to the Borrower and shall, save for manifest error
in computation or transmission, be conclusive as to such determination and such
amount.
Section 4.7. Change of Law
Notwithstanding any other provisions herein, in the event that any change in any
applicable law, rule or regulation or in the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof shall make it unlawful for the Bank to (I) honor its
Commitment, or (II) make or maintain the Loan, the Bank shall notify the
Borrower and shall furnish the Borrower, in writing, evidence certified by the
Bank of such change. Upon such notice by the Bank to the Borrower of the change,
the Commitment of the Bank shall terminate and the aggregate principal amount of
the Loan and the Note then outstanding, together with interest accrued thereon
and any other amounts payable to the Bank under this Agreement shall be repaid
on the Interest Payment Date next succeeding the date of any such change or on
such earlier date as is specified by the Bank.
Article 5 Representations and Warranties
To induce the Bank to enter into this Agreement and to make and maintain the
Loan, the Borrower makes the following representations and warranties to the
Bank.
Section 5.1. Due Incorporation Qualification
The Borrower is a [specify type of entity] duly organized, validly existing and
in good standing under the laws of [Name of Country] and it has the corporate
power to own its property and to carry on its business as now being conducted
and is duly qualified to do business in each jurisdiction in which the character
of the properties owned by it therein or the transaction of its business therein
makes such qualification necessary.
Section 5.2. Capacity and Authorization
The Borrower has full power and authority to enter into this Agreement, to make
to borrowings, to execute and deliver the Note and to incur the obligations
provided for herein and therein, all of which have been duly authorized by all
proper and necessary corporate action.
Section 5.3. Consents and Registrations
All authorizations, consents, approvals, registrations, declarations, exemptions
and licenses with or from any person which are required in connection with the
execution, delivery, performance, validity or enforceability of or payment under
this Agreement and the Note (except central bank permissions to remit foreign
exchange which are not available at this time) have been obtained and are in
full force and effect.
Section 5.4. Legality and Enforceability
This Agreement constitutes, and the Note when issued and delivered pursuant
hereto will constitute, the legal, valid and binding obligations of the Borrower
enforceable in accordance with their respective terms in any competent court in
[Name of Country].
Section 5.5. Compliance with Other Instruments
The execution and delivery of this Agreement and compliance with its terms, and
the issuance of the Note as contemplated therein will not result in a breach of
any of the terms or conditions of, or result in the imposition of any lien,
charge or encumbrance upon any properties of the Borrower pursuant to, or
constitute a default (with due notice or lapse of time or both) or result in an
occurrence of an event for which and holder or holders of indebtedness may
declare the same due and payable under, any indenture, agreement, order,
judgment or instrument under which the Borrower is a party or by which the
Borrower or its property may be bound or affected, or under the Memorandum or
Articles of Association of the Borrower, and will not violate any provision of
applicable law.
Section 5. 6. Financial Statements
The balance sheet of the Borrower as at ____, and the related earnings statement
of the Borrower for the fiscal year then ended, copies of which have been
furnished to the Bank, are complete and correct and fairly present the financial
condition of the Borrower as at such date and the results of its operations for
the period ended on such date and have been prepared in accordance with
generally accepted accounting principles in [Name of Country] applied on a
consistent basis. There are no material liabilities, direct or indirect, fixed
or contingent, of the Borrower as of the date of such balance sheets which are
not reflected therein or in the notes thereto. There has been not material
adverse change in the business, properties, condition (financial or other) or
operation of the Borrower since the date of said balance sheet.
Section 5. 7. Material Adverse Events. Except as heretofore disclosed by the
Borrower to the Bank in writing, since ____, neither the condition (financial or
otherwise) , the business nor the properties of the Borrower have been
materially and adversely affected in any way.
Section 5. 8. Litigation, Etc.
Except as heretofore disclosed by the Borrower to the Bank in writing, there are
no actions, suits or proceedings (whether or not purportedly on behalf of the
Borrower) pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower, at law or in equity, before or by and person, which , if
adversely determined, would have a material adverse effect on the business,
properties or condition (financial or otherwise) of the Borrower. The Borrower
is not in violation or default with respect to any applicable laws and/or
regulations which materially affect the operations and/or condition (financial
or otherwise) of the Borrower nor is it in violation or default with respect to
any order, writ, injunction, demand or decree of any court or any Person or in
violation or default in any material respect under any indenture, agreement or
other instrument under which the Borrower is a party or may be bound, default
under which might have consequences which would materially and adversely affect
the business, properties or condition (financial or otherwise) of the Borrower.
Section 5.9. Taxes
The Borrower is permitted to make all payments hereunder or under the Note as
provided in the Agreement and the Note, all such payments to the Bank shall be
free and clear of any Taxes and such payments when received by the Bank will not
be subject to Taxes. The Borrower is permitted to pay all Taxes as provided in
this Agreement.
Section 5.10. Documentary Tax
Neither this Agreement, the Note nor the Guaranty is subject to any stamp or
documentary tax or other similar charge, including but not limited to any
registration tax of [Name of Country] or any political sub-division or taxing
authority thereof or therein, except stamp duty under the [Name of Country]
Revenue Code.
Section 5.ll. Immunity
The Borrower is subject to suit with respect to its obligations hereunder and
the borrowings by the Borrower hereunder and the execution, delivery and
performance of this Agreement and the Note by the Borrower constitute private
and commercial acts rather than governmental and public acts. Neither the
Borrower nor any of its assets enjoys any right of immunity on the grounds of
sovereignty or otherwise from setoff, suit, judgment or execution in respect of
its obligations under this Agreement.
Section 5. 12.Title.The Borrower has good and marketable title to its properties
and assets reflected in the balance sheet and related notes of the Borrower as
at ____, referred to in Section 5. 6 and all properties and assets acquired by
the Borrower thereafter and prior to the date hereof; and none of such
properties or assets are subject to any lien (including any encumbrance or
security interest), except as disclosed in the most recent balance sheet
referred to in Section 5. 6 and the related notes.
Section 5.13. Taxes
The Borrower has filed or caused to be filed all tax returns which are required
to be filed by it pursuant to the laws, regulations or orders of each
governmental entity or taxing authority with taxing power over the Borrower or
its assets. The Borrower has paid, or made provision for the payment of, all
taxes, assessments, fees and other governmental charges which have or may have
become due pursuant to said returns, or otherwise, or pursuant to any assessment
received by the Borrower, except such taxes, if any, as to which adequate funded
reserves (determined in accordance with generally accepted accounting principles
in [Name of Country]) have been provided. The charges, accruals and reserves in
respect of taxes on the books of the Borrower (determined in accordance with
generally accepted accounting principles in [Name of Country]) are adequate. The
Borrower knows of no proposed material tax assessment against it and no
extension of time for the payment of any tax is in effect or has been requested
except as disclosed in the financial statements furnished to the Bank.
Section 5.14. Adverse Contracts and Orders
Except as heretofore disclosed in writing to the Bank, the Borrower is not a
party to or bound by, or subject to, any contract, instrument, charger, by-law
or other corporate restriction or any order, decree or judgment of any Person
(the "Restrictive Documents") which materially and adversely affects its
business, properties or condition (financial or otherwise) or is in default in
the performance, observance, or fulfillment of any of the obligations or
conditions contained in any of such Restrictive Documents.
Section 5.15. Pari Passu
The Borrower's obligations hereunder and under the Notes rank and will rank at
least pari passu in priority of payment and in all other respects with all other
indebtedness of the Borrower.
Section 5.16. Legal Form
This Agreement, the Note and the Guaranty are in proper legal form under the
laws of [Name of Country] and would be entitled to enforcement in accordance
with their respective terms if proceedings for the enforcement thereof were
brought against the Borrower in the courts of [Name of Country].
Section 5. 17. The Guarantor
The Guarantor is duly organized and in good standing under the laws of [Name of
Country] and has full power, authority and legal right to incur indebtedness
under the Guaranty, to execute and deliver the Guaranty, and to perform and
observe the terms and provisions of the Guaranty, and the Guaranty when duly
executed and delivered will constitute the legal, valid and binding obligation
of the Guarantor enforceable in accordance with its terms in any competent court
in ([Name of Country]).
Article 6 Conditions of Lending
Section 6.1. The obligation of the Bank to make the Loan hereunder is subject to
performance by the Borrower of all its obligations under this Agreement and to
the fulfillment of the following conditions precedent in a manner satisfactory
to the Bank on or before the date hereof:
(a) The Bank shall have received the duly executed Note in the principal amount
of the Loan."
(b) The Bank shall have received the duly executed Guaranty, and such Guaranty
shall be in form and substance satisfactory to the Bank.
? (1) The borrower shall have complied and shall then be in compliance with all
the terms, covenants and conditions of this Agreement which are binding upon it,
(2) both immediately prior to and at the completion of the borrowing there shall
exist no Event of Default and no event which, with the giving of notice or the
lapse of time, or both, would constitute an Event of Default, and
(3) the representations and warranties contained in Article V shall be true with
the same effect as though such representations and warranties had been made at
the time of such borrowing.
(d) The Borrower and the Guarantor shall have received all necessary
governmental approvals required to be obtained in connection with this
Agreement, the Note and the Guaranty, including all necessary approvals, if any,
for the borrowing hereunder, for the use of the proceeds thereof and for the
schedule of repayment in Dollars of principal of, and interest on, the Note in
accordance with the terms hereof and of the Guaranty and all other payments
contemplated hereunder or thereunder or otherwise payable in connection with the
transactions contemplated hereby, and such approvals shall be in full force and
effect.
(e) The Bank shall have received a certified copy of a letter from the [Central
Bank] approving in principal the borrowing hereunder and the remittance of
Dollars by the Borrower pursuant to this Agreement and the Note.
(f) The Bank shall have received certified copies of all corporate action taken
by the Borrower and the Guarantor to authorize this Agreement, the Note, the
Guaranty and the borrowing hereunder, as the case may be, and copies of all
governmental approvals referred to in the preceding paragraph (d), and such
other documents as the Bank shall reasonably require. Such corporate action
shall be satisfactory in form and substance to the Bank and its counsel.
(g) The Bank shall have received opinions of:
(1) Counsel to the Borrower, which counsel shall be satisfactory to the Bank,
substantially in the form of Exhibit C hereto and with respect to such other
matters as the Bank may reasonably require;
(2) Special [Name of Country] counsel to the Bank, with respect to such matters
as the Bank may require, including, without limitation, the enforceability in
accordance with their respective terms of this Agreement, the Note and the
Guaranty; and
(3) Such other opinions of counsel as the Bank may require.
(h) The Bank shall have received evidence of the authority of each person: (I)
who has signed this Agreement on behalf of the Borrower, (II) who has signed the
Guaranty on behalf of the Guarantor, (III) who will execute the Note on behalf
of the Borrower, (IV) who will sign the statements, reports, certificates and
other documents required or permitted by this Agreement and who will otherwise
act as the representative of the Borrower in connection with the operation of
this Agreement.
(I) The Bank shall have received the authenticated specimen signature of each
person named pursuant to the preceding paragraph (h).
(j) The Bank shall have received any and all further information and documents,
including records of corporate proceedings, which the Bank may reasonably
request in connection with the transaction contemplated by this Agreement, such
documents, where appropriate, to be certified by proper corporate authorities.
Article 7 Covenants
So long as the Borrower may borrow hereunder and until payment in full of the
Note and performance of all other obligation of the Borrower hereunder, and
except to the extent that the Bank may otherwise agree in writing:
Section 7. 1. Financial Statements
The Borrower will furnish to the Bank as soon as available but in no event more
than sixty (60) days after the close of each semester of each of the Borrower's
fiscal years, an un-audited balance sheet of the Borrower as of the end of such
period and a profit and loss statement of the Borrower for such periods,
completely and correctly setting forth and fairly presenting the financial
condition of the Borrower; Section 7. 2. Reports.
(a) The Borrower will provide to the Bank as soon as possible and in any event
within five days after the occurrence of each Event of Default, or each event
which with the giving of notice or lapse of time, or both, would constitute an
Event of Default, which is continuing on the date of such statement, a statement
of the Managing Director of the Borrower setting forth details of such Event of
Default or event and the action which the Borrower proposes to take with respect
thereto; and
(b) The Borrower shall provide the Bank with such additional information,
reports or statements as the Bank may from time to time reasonably request and
will permit the Bank or its representatives, at any reasonable time or times, to
inspect the properties of the Borrower and to inspect, audit and examine the
books or records of the Borrower and to take extracts therefrom.
Section 7.3. Pari Passu Treatment
The Borrower's obligations hereunder and under the Notes rank and will rank at
least pari passu in priority of payment and in all other respects with all
indebtedness of the Borrower, and the Borrower will not secure or allow to be
secured any other indebtedness now or hereafter existing by any mortgage, lien,
pledge or other charge upon its present or any future assets or revenues (except
trust receipts made in the normal course of business) unless the benefit of such
security is at the same time extended equally and ratably to the Borrower's
obligations hereunder and under the Note. The Borrower will insure that all
applicable laws in the appropriate jurisdictions are complied with so that the
Borrower's obligations hereunder and under the Note shall rank at least equally
with such other Indebtedness.
Section 7.4. Maintenance of Consents and Registrations
The Borrower will do and cause to be done all things necessary to, and it will
comply with all laws applicable to it and it will obtain all consents, licenses,
approvals or authorizations of or registrations with any governmental authority,
bureau agency which may at any time be required or desirable in the opinion of
the Bank with respect to this Agreement, any amendment of supplement hereto, and
the Note and shall take all necessary and appropriate action to ensure the
continuance in force of all consents, licenses, approvals, authorizations or
registrations so obtained. He Borrower shall deliver to the Bank a certified
copy of the [Central Bank] loan registration letter (and a Board of Investment
Section 37 approval letter) within ninety days from the date hereof.
Section 7.5. Insurance
The Borrower will at all times at its own expense insure and keep insured, with
such insurance as the Bank may from time to time reasonably approve, all
buildings and constructions of an insurable nature being or forming part of its
property, and shall maintain insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower operates.
Section 7.6. Maintenance of Existence; Conduct of Business
The Borrower will preserve and maintain its corporate existence, its business as
presently conducted, and all of its rights, privileges and franchises necessary
or desirable in the normal conduct of said business, keep its properties useful
or necessary in its business in good working order and condition, and will
comply with all applicable laws and regulations of any person and the terms of
any indenture, contract or other instrument to which it may be a party or under
which it or its properties may be bound, if noncompliance will have a material
adverse effect upon its financial condition.
Article 8 Events of Default
Section 8.1. If any one or more of the following "Events of Default "shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule,
regulation or decree of any administrative or governmental body):
(a) Failure by the Borrower to pay , in accordance with the terms or this
Agreement or the Note, the principal of or interest accrued on the Loan or the
Note, or any other amounts payable hereunder, when the same becomes due and
payable in accordance with the terms hereof (whether at maturity, by notice of
intention to prepay or otherwise); or
(b) Failure by the Borrower to perform or observe any other term, covenant or
agreement contained herein or in the note; or
? Any representation or warranty made by the Borrower herein or any statement or
representation made in any certificate, report or opinion delivered pursuant
hereto shall prove to have been incorrect or misleading in any material respect
when made; or
(d) Any registration or governmental consent or approval granted or required in
connection with this Agreement, the Note or the Guaranty expires or is
terminated or revoked or is modified in any manner or fails to remain in full
force and effect; or
(e) It becomes unlawful for the Borrower or the Guarantor to perform any of its
obligations hereunder or under the Note or the Guaranty, as the case may be, or
any other document contemplated hereby or referred to herein; or
(f) The Guarantor shall renounce or modify its obligations under the Guaranty;
or
(g) The Borrower the Guarantor shall fail to pay at maturity, or within any
applicable period of grace, any Indebtedness; or fail to observe or perform any
term, covenant or agreement contained in any agreement by which it is bound
evidencing or securing Indebtedness; if the effect of such failure is to
accelerate, or to permit (assuming the giving of notice or lapse of time or
both, if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate, the maturity thereof or of any such obligations,
whether or not such acceleration occur or such default shall be waived; or
(h) The Borrower or the Guarantor shall be adjudicated a bankrupt or insolvent,
or admit in writing its inability to pay its debts as they mature, or make an
assignment for the benefit of creditors; or the Borrower or the Guarantor shall
apply for or consent to the appointment of a receiver, trustee, or similar
officer for or for all or any substantial part of its property; or such
receiver, trustee or similar office shall be appointed without the application
or consent of the Borrower or the Guarantor and such appointment shall continue
un-discharged for a period or fourteen (14) days; or the Borrower or the
Guarantor shall institute (by petition, application, answer, consent or
otherwise) any suspension of payments, bankruptcy, insolvency reorganization,
arrangement, readjustment or debt, dissolution, liquidation or similar
proceeding relating to it under the laws of any jurisdiction, or any such
proceeding shall be instituted (by petition, application or otherwise) against
the Borrower or the Guarantor and shall remain un-dismissed for a period of
fourteen (14)days; or any judgment, writ, warrant of attachment or execution or
similar process shall be issued or levied against a substantial part of the
property of the Borrower or the Guarantor and such judgment, writ, or similar
process shall not be released, vacated or fully bonded within fourteen (14) days
after its issue or levy; or
(I) A final judgment for money, in excess of $ or its equivalent on the date of
final judgment or at any time thereafter shall be rendered against the Borrower
and if, within fourteen (14) days after entry thereof, such judgment shall not
have been discharged, satisfied or execution thereof stayed pending appeal, or
if, within fourteen (l4) days after the expiration of any such stay, such
judgment shall not have been discharged or satisfied; or
(j) All or any substantial part of the property of the Borrower or the Guarantor
shall be condemned, seized or otherwise appropriated, or custody or control of
such property shall be assumed , by any person or entity acting or purporting to
act under authority of government (de jure or de facto) or the Borrower or the
Guarantor shall have been prevented from exercising managerial control over all
or said substantial part of its property by any such person or entity;
THEN, upon the happening of any of the foregoing Events of Default which shall
be continuing, the obligation of the Bank to make the Loan hereunder shall
immediately cease, and the Bank may declare the principal of and accrued
interest in respect of the Loan and the Note to be immediately due and payable
whereupon the principal and accrued interest and any and all other amounts
payable hereunder shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower, provided that upon the happening of any event specified
in Section 8. 1 (h) hereof, the Loan and Note shall be immediately due and
payable without any declaration or other notice to the Borrower.
Article 9
Section 9.1. Jurisdiction
The Borrower hereby agrees that any legal action or proceeding with respect to
this Agreement, the Note of the other documents contemplated hereby or referred
to herein and any action or proceeding to execute or otherwise enforce any
judgment obtained against if for breach thereof, may be instituted in the courts
of the State of California or in the United States District Court for the
Northern District of California or in any court in [Name of Country] or
elsewhere, as the Bank may elect, and by execution and delivery of this
Agreement the Borrower irrevocably and unconditionally submits to each such
jurisdiction.
Section 9. 2. Service of Process
The Borrower hereby irrevocably and unconditionally designates, appoints and
empowers CT Corporation System, presently located at 700 South Flower Street,
Los Angeles, California 90017, U.S.A., as its agent to receive for and on its
behalf service of process in California in any action or proceeding with respect
to this Agreement or the Note. The Borrower agrees that the failure of any such
agent to give notice to the Borrower of any such service shall not impair or
affect the validity of such service or of any judgment rendered in any action or
proceeding based thereon. The Borrower further irrevocably consents to service
of process upon it out of said courts in any such action or proceeding by
mailing copies thereof by United Stated registered air mail, postage prepaid, to
the Borrower at the address specified in Section 10. 5 hereof. The foregoing,
however, shall not limit the right of the Bank to serve process in any other
manner permitted by law. The Borrower represents and warrants that so long as it
shall be obligated to the Bank under this Agreement or the Note, it shall
maintain a duly appointed agent satisfactory to the Bank for the service of
summonses and other legal process in California for the purposes of any legal
suit, action or proceeding brought by the Bank and shall keep the Bank advised
in writing of the identity and location of such agent.
Section 9.3. Venue
The Borrower hereby irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relation to this Agreement or the
Note brought in the courts of the State of California or the United States
District Court for the Northern District of California and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court as been brought in an inconvenient forum.
Article 10 Miscellaneous
Section 10.1. Entire Agreement
This Agreement with Exhibits embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relation to the subject matter hereof.
Section 10.2. Expenses
The Borrower shall, whether or not the Loan is made, reimburse the Bank, on
demand, for all reasonable expenses incurred by the Bank (including, without
limitation, the fees and expenses of any special United States or other counsel
to the Bank and, in the case of matters referred to in clause (b) below, other
counsel to the Bank, independent accountants and other experts and
communication, travel and all other out - of - pocket expenses) incurred in
connection with (a) the negotiation, preparation, execution, delivery and
administration of this Agreement, the Note and the other documents contemplated
hereby or referred to herein , and any amendments or other modifications of , or
waives or consents under, any thereof; (b) the enforcement of this Agreement and
the Note, and ? if an Event of Default shall have occurred and be continuing
(whether or not notice of such Event of Default is given by the Bank or any
other action is taken in respect thereof), in the administration of this
Agreement.
Section l0.3. No Waiver. No failure or delay on the part of the Bank in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power preclude any
other or further exercise thereof or the exercise of any other right or power
hereunder. No waiver of any provision of this Agreement or the Note and no
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be in writing and signed by the Bank, and the
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on the Borrower in any case
shall, of itself, entitle the Borrower to any other or further notice or demand
in similar or other circumstances. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
Section l0.4. Survival
The representations and warranties of the Borrower set forth herein shall
survive the making of the Loan and the obligations of the Borrower under
Sections 2.7, 4.2, 4.4, 4.5, 4.6 and l0.2 hereof shall survive the repayment of
the Loan and the cancellation of the Note.
Section l0.5. Notices
Any communication, demand or notice to be given hereunder or with respect to the
Note shall be duly given when delivered in writing or sent by telex or
authenticated cable as follows:
If to the Borrower:
____________
____________
Attention: ___
If to the Bank: Credit Bank
____________
_____________
Attention: ___
Telex No:________
Or, as to each party, at such other address as such party may designate by
notice in writing to the other party. All notices by mail from one country to
another shall be sent as first class, postage prepaid, airmail. Except as
otherwise provided herein, all notices or demands sent by registered airmail
shall be deemed received 8 days after they have been sent and notices or demands
sent by telex shall be deemed received at the time of the dispatch thereof.
Section 10.6. Governing Law
This Agreement, the Note and the right and the obligations of the parties
hereunder and thereunder shall be governed by and construed in accordance with
the laws of the State of California.
Section l0.7. Separability of Provisions
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, not be effective to the extent of
such prohibition or unenforceability without invalidation the remaining
provisions hereof or affection the validity. Or enforceability of such
provisions in any other jurisdiction.
Section l0. 8. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the Borrower
and the Bank and their respective successors and assigns, except that the
Borrower may not assign any of its rights and obligations hereunder. The Bank
shall have the right at any time without the consent or notice to the Borrower
to sell, assign, transfer, negotiate of grant participations in or otherwise
dispose of all or part of the Loan outstanding under this Agreement or the Note.
The Borrower shall at the request of the Bank execute and deliver to the Bank,
or to such other party or parties as the Bank may designated, any and all
further instruments as may be necessary or desirable to give full force and
effect to such disposition. The Borrower hereby acknowledges and agrees that any
such disposition will give rise to a direct obligation of the Borrower to the
participant. The Borrower hereby authorizes the Bank and each participant in
case of default by the Borrower hereunder to proceed directly by right of
set-off, banker's lien or otherwise against and assets of the Borrower which may
at the time of such default be in the hands of the Bank or such participant to
the full extent of its interest in the Agreement, the Loan and the Note.
Section 10.9. Language
All notices, demands, requests, statements or other communications to be made or
given by the Borrower hereunder shall be in the English language. Any documents
other than financial statements required to be delivered pursuant to this
Agreement which are not in the English language must be accompanied by a
certified English translation thereof and in the event of any conflict between
the original of the document and the English language translation thereof, the
English language translation shall for all purposes be deemed to be the correct
and controlling version.
Section 10.10. Headings, Etc.
The headings of the various sections and subsections hereof are for convenience
of reference only, do not constitute a part hereof and shall not affect the
nearing or construction of any provision hereof.
Section 10.ll. Accounting Terms
All accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to in Section 5.
6 hereof, and all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
Section l0.12. Amendment
No provision of this Agreement or the Note may be amended, modified,
supplemented, discharged or terminated, unless the Bank consents thereto in
writing.
Section 10.13. Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
ABC COMPANY
BY ____
CREDIT BANK, N. A.
BY ____
EXHIBIT A PROMLSSORY NOTE
U.S$1, 000, 000, 00, l984
By means of this PROMLSSORY NOTE, the undersigned, ABC Company (the "Borrower")
unconditionally promises to pay to Credit Bank, N. A for the account of its
International Banking Facility (the "Bank"),or order, the principal amount of
One Million Dollars (U. S. $1,000, 000) in lawful currency of the United States
of America in eight (8) equal installments on the maturity dates and in the
amounts herein below specified:
Maturity Date Amounts of installments
of installments
$125, 000
$125, 000
$125, 000
$125, 000
$l25, 000
$125, 000
$125, 000
$125, 000
The Borrower unconditionally promises to pay interest on the unpaid principal
amount hereof at the Interest Rate (on the basis of a 360 day year for the
actual number of days involved) on the Interest Payment Dates, all as provided
in the Loan Agreement, dated as of _________, 20 _________, between the Borrower
and the Bank (the "Loan Agreement").
If this Note or any portion hereof or any interest herein becomes due and
payable on a day which is not a Business Day, its maturity shall be extended to
the next succeeding Business Day, and interest shall accrue on the principal
amount hereof at the rate specified in the Loan Agreement during such extension.
Any payment made hereunder shall be made in United States Dollars in immediately
available funds no later than 10: 00 a.m. (Los Angels time) to Credit Bank, N.
A. , International Division, Los Angeles, California, U. S. A. , for the account
of Credit Bank, N.A., international Banking Facility.
Terms used herein which are defined in the Loan Agreement shall have the same
meaning as in the Loan Agreement.
This Note is the Note referred to in the Loan Agreement and is entitled to all
the benefits provided therein. Reference is made to the Loan Agreement for the
rights and obligations of prepayment, the events of default and the rights of
acceleration of the maturity in the event of default.
This note shall be governed by and construed in accordance with the laws of the
State of California, United States of America.
ABC COMPANY
BY________
EXHIBIT B Letter of Credit
XYZ BANK LIMLTED
[Address]
Credit Bank, N. A.
International Banking Facility
Los Angeles, California 90000 U.S.A.
Date:
Letter of Credit No.:
Gentlemen:
We hereby establish this irrevocable letter of credit in your favor for account
of ABC Company in the amount of U. S. $ _______ (amount in words), available
against your draft(s) drawn at sight on Credit Bank, N.A., Letter of Credit
Department, Los Angeles, California, accompanied by your signed and dated
statement as follows:
"The amount drawn under Letter of Credit No.[_________]dated[_______] issued by
XYZ Bank Limited on behalf of ABC Company is payable to the undersigned pursuant
to the terms of that certain Loan Agreement dated as of _________, 20 ___,
between ABC Company and Credit Bank. N.A."
All drafts drawn under this Letter of Credit must bear the clause "Drawn under
XYZ Bank Limited Letter of Credit Number_____, dated_______, 20 ___.
Partial drawings are permitted.
We hereby engage with the drawers, endorsers and bona fide holders of drafts
drawn under and in compliance with the terms of this Letter of Credit that the
drafts will be duly honored if drawn and presented to the above drawn in Los
Angeles, California, on or before [Expiry date 30 days after the final
Installment Payment Date].
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1983 Revision), International Chamber of Commerce,
Publication No. 400.
Special Instructions to Drawee Bank
In reimbursement for any payment made by you hereunder, you may debit our
account with you.
