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LOAN FACILITY AGREEMENT OF THE EXPORT-IMPORT BANK OF
The Bank For the
L The Export-Import Bank of Korea, Changwon
Address: 5th
fl., Gyeongnam Trade Center 7-4, Yongho-dong, Changwon-si,
Gyeongsangnam-do, Korea, 641-740
57-4641740
Fax NO.: 82-55-287-6831&&
82-55-287-6831
Borrower:&&&
2. THE FACILITY
3. PURPOSE
4. CONDITIONS OF
UTILISATION
5. UTILISATION
6. REPAYMENT
7. PREPAYMENT AND
CANCELLATION
8. INTEREST
9. INTEREST
10. CHANGES TO THE CALCULATION OF
12. TAX GROSS UP AND
INDEMNITIES
13. INCREASED
INDEMNITIES
15. COSTS AND
REPRESENTATIONS
17. INFORMATION
UNDERTAKINGS
18. FINANCIAL
19. GENERAL
UNDERTAKINGS
20. EVENTS OF
21. PAYMENT
22. SET-OFF
23. NOTICES
24. CALCULATIONS AND
CERTIFICATES
25. CHANGES TO
26. PARTIAL
INVALIDITY
27. REMEDIES AND
28. WAIVER OF
29. AMENDMENTS AND
30. ENTIRE
31. COUNTERPARTS
32. GOVERNING LAW
"LIBOR" means the British Bankers' Association (the "BBA")
Interest Settlement Rate for U.S. Dollars for the relevant Interest
Period which appears on the “3750” page, or such other page for the
purpose of displaying such rate of interest, of the Reuters screen
on the Quotation Day for such period. If the agreed page is
replaced or service ceases to be available, the Lender may specify
another page or service displaying the appropriate rate after
consultation with the Borrower.
"Loan" means a loan made or to be made under the Facility
or the principal amount outstanding for the time being of that
"Margin" means Two point Eight percent (2.8%) per
"Material Adverse Effect" means, in any respect of any
event or circumstances (or combination thereof), an effect which
materially impairs, or is reasonably likely materially to
(a) the ability of the Borrower to perform and comply with
any of its payment or other material obligations under this
(b) the ability of the Borrower to perform and comply with
its material obligations under the C
(c) the business, operation or financial condition of the
Borrower which, in each case, is, or could reasonably be expected
to be, materially prejudicial to the interests of the Lender under
or in connection with this A
(d) the validity, enforceability or priority of any
Security interest purported to be created under this Agreement or
the Guarantee in a manner or to an extent that is or would be
prejudicial to the ability of the Lender to enforce any Security
"Month" means a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month, except that:
(a) subject to paragraph (c) below, if the numerically
corresponding day is not a Business Day, that period shall end on
the next Business Day in that calendar month in which that period
is to end if there is one, or if there is not, on the immediately
preceding Business D
(b) if there is no numerically corresponding day in the
calendar month in which that period is to end, that period shall
end on the last Business Day in and
(c) if an Interest Period begins on the last Business Day
of a calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period is
The above rules will only apply to the last Month of any
"Party" means a party to this Agreement.
"Prepayment Premium" means a prepayment premium payable by
the Borrower to the Lender in accordance with Clause
"Quotation Day" means, in relation to any period for which
an interest rate is to be determined, two Business Days before the
first day of that period.
"Repayment Date" means the date falling One (1) year and
Six (6) Months after the date of the first Utilisation.
"Security" means a mortgage, charge, pledge, lien or other
security interest securing any obligation of any person or any
other agreement or arrangement having a similar effect.
&"Tax" means any tax,
levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under this Agreement.
"Unpaid Sum" means any sum (including but not limited to,
principal, interest, and/or fees) due and payable but unpaid by the
Borrower under this Agreement.
"U.S. Dollar", "USD" or "US$" means the lawful currency of
the United States of America.
"Utilisation" means a utilisation of the Facility.
"Utilisation Date" means the
date of a Utilisation, being the date on which therelevant Loan is
to be made.
"Utilisation Request" means a notice substantially in the
form set out in Schedule 1.
1.2 Construction
(a) Unless a contrary indication appears, any reference in
this Agreement to:
(i) the "Lender", the "Borrower" or any "Party" shall be
construed so as to include its successors in title, permitted
assigns and p
(ii) "assets" includes present and future properties,
revenues and rights
(iii) "indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment or repayment of
money, whether present or future,
(iv) a "person" includes any individual, firm, company,
corporation, government, state or agency of a state or any
association, trust, joint venture, consortium or partnership
(whether or not having separate legal personality);
(v) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the force of
law) of any governmental, intergovernmental or supranational body,
agency, department or of any regulatory, self-regulatory or other
(vi) a provision of law is a reference to that provision
as amended or re-enacted.
(vii) words indicating the singular will include the
plural and vice versa where the context requires.
(b) Unless a contrary indication appears, a reference to
"determines" or "determined" used in this Agreement means a
determination made in the absolute discretion of the person making
the determination.
(c) Section, Clause and Schedule headings are for ease of
reference only.
(d) A Default (other than an Event of Default) is
"continuing" if it has not been remedied or waived.
1.3 Third Party Rights
A person who is not a Party has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy
the benefit of any term of this Agreement except as otherwise
specifically provided in this Agreement, but even then the Parties
hereto shall at all times be entitled to rescind or vary this
Agreement without the consent of the person concerned.
2. THE FACILITY
2.1 The Facility
(a) Subject to the terms of this Agreement, the Lender
makes available to the Borrower a term loan facility in an
aggregate amount of Three Hundred Thousand U.S. Dollars
(US$300,000.-).
US$300,000.-
3. PURPOSE
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under
this Agreement solely for the purpose of financing its general
working capital requirements.
3.2 Monitoring
The Lender is not bound to monitor or verify the
application of any amount borrowed pursuant to this
Agreement.
4. CONDITIONS OF
UTILISATION
4.1 Conditions Precedent to the Initial
Utilisation
Prior to and as conditions precedent to the Initial
Utilisation hereunder, the following documents and evidence shall
have been received by the Lender in form and substance satisfactory
to the Lender:
Articles of Incorporation. A certified copy of the articles
of incorporation of the B
(b) Certificate of Authority. A certificate of authority
substantially in the form of Schedule 4, of each person (i) who has
signed this Agreement on behalf of the Borrower and (ii) who will
sign the Utilisation Request, statements and other documents
required under this A
(c) Guarantee. The Guarantee duly executed by the
Guarantor and documentary evidence of the authority of the person
who has signed the Guarantee together with the authenticated
specimen signa
(d) Evidence of Fee Payment. Evidences that the fees,
costs and expenses then due from the Borrower pursuant to Clause 15
(Costs and expenses) have been paid or will be paid by the first
Utilisation D
(e) Utilisation Schedule. A utilisation schedule in the
form and substance satisfactory to the L
(f) Legal Opinion. An opinion of a legal counsel to the
Borrower substantially in the form of Schedule 5; and
(g) Acceptance Letter of Process Agent. A letter
substantially in the form of Schedule 6 as an evidence that the
Process Agent specified in Clause 33.2 has accepted its appointment
as an agent of the Borrower for service of process.
4.2 Conditions Precedent to Further Utilisation
As conditions precedent to each Utilisation (including the
initial Utilisation) hereunder, each of the following conditions
shall be satisfied as of the date of each Utilisation:
(a) No Default. No D
(b) Continuing Representation. All the representations and
warranties made by the Borrower in or in connection with this
Agreement shall remain true and accurate in all material
(c) Continuing Effectiveness. All of the documents,
instruments, evidence, contracts, authorizations and actions
referred to in Clause 4.1 above are in full force and effect or, if
any change has occurred, the Lender shall have received
supplementary evidence and signature with respect thereto in the
form and substance satisfactory to the L and
(d) Other Documentation. The Lender shall have received
such other documentation as the Lender may reasonably
5. UTILISATION
5.1 Delivery of a Utilisation Request
Subject to the satisfaction of all applicable conditions
in this Agreement, the Borrower may utilise the Facility by
delivery to the Lender of a duly completed Utilisation Request not
less than Five (5) Business Days before the requested Utilisation
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not
be regarded as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within
the Availability P
(ii) the currency and amount of the Utilisation comply
with Clause 5.3 (Currency and Amount); and
(iii) the proposed Interest Period complies with Clause 9
(Interest Periods).
(b) Each Utilisation Request shall be signed by an
authorized representative of the Borrower.
(c) Only one Loan may be requested in each Utilisation
5.3 Currency and amount
The currency specified in a Utilisation Request must be
U.S. Dollar.
5.4 Utilisation
If the conditions set out in this Agreement have been met
or waived in accordance with this Agreement, the Lender shall make
the Loan available by the Utilisation Date.
5.5 Reliance on Utilisation Request
(a) The Lender shall reasonably and promptly determine the
adequacy of the Utilisation Request and any other evidence and
information provided under this Clause 5 (Utilisation) and shall
not be responsible for any delay in the making available of any
Utilisation arising out of any reasonable request it may make for
additional documentation, evidence or information. The Lender’s
determination of the adequacy of any Utilisation Request shall be
conclusive.
(b) The Lender shall be entitled (but not obliged) to rely
and act upon any documentation, evidence or information related to
the Utilisation Request that appears on its face to have been duly
completed notwithstanding that such documentation, evidence or
information proves to be not genuine, not properly signed or
otherwise incorrect in any respect.
5.6 Binding Effect
Each Utilisation of the Loan shall constitute a legal,
valid and binding obligation of the Borrower, repayable in
accordance with the terms of this Agreement.
5.7 Availability
Except as mutually agreed among the Lender, the Borrower
and if any, the Guarantor in writing, no Utilisation shall be made
by the Lender after the expiration of the Availability Period. Any
portion of the Facility unutilised at that time shall be
immediately cancelled at the end of the Availability
5.8 Notice of Utilisation
Upon each Utilisation made hereunder, the Lender shall
notify the Borrower in writing of the date and amount of such
Utilisation. Such notice shall, in the absence of manifest error,
be conclusive evidence as to the date and amount of the Utilisation
concerned.
6. REPAYMENT
6.1 Repayment of Loans
The Borrower shall repay the Loan to the Lender on
Repayment Date in the amount necessary to repay the Loan in full
then outstanding under this Agreement.
6.2 Reborrowing
The Borrower may not reborrow any part of the Facility
which is repaid.
7. PREPAYMENT AND
CANCELLATION
7.1 Illegality
If it becomes unlawful in any
applicable jurisdiction for the Lender to perform any of its
obligations as contemplated by this Agreement or to fund or
maintain the Loan,:
(a) the Lender shall promptly notify the Borrower upon
(b) upon notifying the Borrower, the Facility unutilised
at that time will be i and
(c) the Borrower shall repay the Loan made to the Borrower
on the last day of the current Interest Period or, if earlier, the
date specified by the Lender in the notice delivered to the
Borrower (being no earlier than the last day of any applicable
grace period permitted by law).
7.2 Suspension or Cancellation by the
(a) The Lender may, by written notice to the Borrower,
suspend the right of the Borrower to any Utilisation or cancel, in
whole or in part, the unutilised portion of the Loan if
(i) any Event of Default has occurr
(ii) if the Loan has not been fully utilised by the last
day of the Availability Period.
(b) Upon the giving of any such notice under Clause
7.2(a), the right of the Borrower to any further Utilisation of the
Loan shall be suspended or cancelled, as the case may
(c) The exercise by the Lender of its right of suspension
shall not preclude the Lender from exercising its right of
cancellation, either for the same or any other reason specified in
this Clause 7.2.
(d) Upon any cancellation, the Borrower shall pay to the
Lender all fees and other amounts accrued (whether or not then due
and payable) under this Agreement up to the date of that
cancellation.
7.3 Voluntary Prepayment of Loans
(a) The Borrower may, if it gives the Lender not less than
seven (7) Business Days' (or such shorter period as the Lender may
agree) prior written notice, prepay the whole or any part of the
Loan on any Repayment Date, together with all interest accrued on
the amount prepaid and any other amount then payable under this
provided, however, that if the Lender does not consent to
such prepayment, the Borrower shall not prepay any part of the
(b) The amount of any partial prepayment shall be equal to
the amount of an instalment for repayment of the Loan or an
integral multiple thereof. Such prepayment shall be applied to
instalments of the Loan in the inverse order of
(c) The Borrower shall pay to the Lender, simultaneously
with any prepayment made under this Clause 7.3(a), the Prepayment
Premium equal to Zero point Five percent (0.5%) of the amount being
(d) The Lender’s calculation of any amount due pursuant to
Clause 7.3(c) above shall, in the absence of manifest error, be
conclusive.
7.4 Restrictions
(a) Any notice of cancellation or prepayment given by any
Party under this Clause 7(Prepayment And Cancellation) shall be
irrevocable and, unless a contrary indication appears in this
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made
and the amount of that cancellation or
prepayment.
(b) Any prepayment under this Agreement shall be made
together with accrued interest on the amount prepaid without
(c) The Borrower may not reborrow any part of the Facility
which is prepaid.
(d) The Borrower shall not repay or prepay all or any part
of the Loan except at the times and in the manner expressly
provided for in this Agreement.
8. INTEREST
8.1 Calculation of Interest
The Interest Rate on each Loan for each Interest Period is
the percentage rate per annum which is the aggregate of the
applicable:
8.2 Payment of Interest
On each Interest Payment Date, the Borrower shall pay to
the Lender interest accrued at the Interest Rate on the outstanding
amount of the Loan during each Interest Period.
8.3 Default Interest
(a) If the Borrower fails to pay any amount payable by it
under this Agreement on its due date (whether at stated maturity,
by acceleration or otherwise), default interest shall accrue on
that Unpaid Sum from (and including) the due date up to (but
excluding) the date of actual payment (both before and after
judgment) at a rate that is two percent (2%) higher than the
applicable Interest Rate. Any default interest accruing under this
Clause 8.3 shall be immediately payable by the Borrower on demand
by the Lender.
(b) Default interest (if unpaid) arising on an overdue
amount will be compounded with the overdue amount at the end of
each Interest Period applicable to that overdue amount but will
remain immediately due and payable.
8.4 Computation
Interest and default interest shall be computed on the
basis of the actual number of days elapsed and a year of 360
8.5 Notification of Interest Rate
The Lender may notify the Borrower of the determination of
a rate of interest under this Agreement on or before twenty (20)
days prior to each Interest Payment Date.
9. INTEREST PERIODS
9.1 Determination of Interest Periods
(a) Each Interest Period for a Loan shall start on (and
including) the Utilisation Date and end on (but excluding) the next
Interest Payment Date, and each subsequent Interest Period shall
commence on (and including) an Interest Payment Date and end on
(but excluding) the next following Interest Payment
(b) An Interest Period for a Loan shall not extend beyond
the final maturity.
9.2 Non-Business Days
If an Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period will instead end on the
next Business Day in that calendar month (if there is one) or the
preceding Business Day (if there is not).
9.3 Consolidation and Division of Loans
If two or more Interest Periods end on the same date,
those Loans will be consolidated by the Lender into, and treated
as, a single Loan on the last day of the Interest
10. CHANGES TO THE CALCULATION OF
10.1 Absence of Quotations
If, for any Interest Period, the Lender cannot determine
LIBOR by reference to the Reuters Service or any other service that
displays BBA rates, the Lender shall notify the
10.2 Market Disruption
(a) If a Market Disruption Event occurs in relation to a
Loan for any Interest Period, then the rate of interest on that
Loan for the Interest Period shall be the percentage rate per annum
which is the sum of:
(i) the M and
(ii) the rate notified to the Borrower by the Lender as
soon as practicable and in any event before interest is due to be
paid in respect of that Interest Period, to be that which expresses
as a percentage rate per annum the cost to the Lender of funding
the Loan from whatever source it may reasonably select.
(b) In this Agreement "Market Disruption Event"
(i) at or about noon on the
Quotation Day for the relevant Interest Period the applicable LIBOR
(ii) before close of business in London on the Quotation
Day for the relevant Interest Period, the Borrower receives
notifications from the Lender that the cost to it of obtaining
matching deposits in the relevant interbank market would be in
excess of LIBOR.
10.3 Alternative Basis of Interest or
(a) If a Market Disruption Event occurs and the Lender or
the Borrower so requires, the Lender and the Borrower shall enter
into negotiations (for a period of not more than thirty days) with
a view to agreeing a substitute basis for determining the rate of
Any alternative basis agreed pursuant to paragraph (a) above
shall be binding on all Parties.
11.1 Commitment Fee
(a) The Borrower shall pay to the Lender a commitment fee
(the "Commitment Fee"), payable in arrears on each Interest Payment
Date, on the daily uncancelled and unutilised portion of the
Facility at the rate of Zero point Five percent (0.5%) per annum
provided that the last Commitment Fee shall be paid on the last day
of the Availability Period.
The Commitment Fee having been paid shall not be refunded for
any reason whatsoever except for manifest error in calculation of
the Commitment Fee.
11.2 Management Fee
(a) The Borrower shall pay to the Lender a management fee
(the "Management Fee") in the amount equal to Zero point One Five
percent (0.15%) of the aggregate amount of the Facility specified
in Clause 2 (The Facility) within thirty (30) days from the date of
this Agreement.
(b) The Management Fee having been paid shall not be
refunded for any reason whatsoever except for manifest error in
calculation of the Management Fee.
12. TAX GROSS UP AND INDEMNITIES
12.1 Tax Gross-up
(a) The Borrower shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by
(b) The Borrower shall promptly upon becoming aware that
the Borrower must make a Tax Deduction (or that there is any change
in the rate or the basis of a Tax Deduction) notify the Lender
accordingly. Similarly, the Lender shall notify the Borrower on
becoming so aware in respect of a payment payable to the
(c) If a Tax Deduction is required by law to be made by
the Borrower, the amount of the payment due from the Borrower to
the Lender shall be increased to such amount as may be necessary so
that the Lender receives the full amount it would have received if
those payments had been made
without that deduction.
(d) If the Borrower is required to make a Tax Deduction,
the Borrower shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed and
in the minimum amount required by law.
12.2 Tax Indemnity
The Borrower shall (within three (3) Business Days of a
demand by the Lender) pay to the Lender an amount equal to the
cost, loss or liability which the Lender determines will be or has
been (directly or indirectly) suffered for or on account of Tax by
the Lender in respect of this Agreement.
12.3 Stamp Taxes
The Borrower shall pay and, within three (3) Business Days
of a demand by the Lender, indemnify the Lender against any cost,
loss or liability that the Lender incurs in relation to all stamp
duty, registration and other similar Taxes payable in respect of
this Agreement.
13. INCREASED COSTS
13.1 Increased Costs
(a) The Borrower shall, within three (3) Business Days of
a demand by the Lender, pay for the account of the Lender the
amount of any Increased Costs incurred by the Lender as a result
(i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
(ii) compliance with any law or regulation made after the
date of this Agreement.
(b) In this Agreement "Increased Costs"
(i) a reduction in the rate of return from the Facility or
on the Lender'
(ii) an addition
(iii) a reduction of any amount due and payable under this
Agreement,
which is incurred or suffered by the Lender to the extent
that it is attributable to the Lender having entered into its
Commitment or funding or performing its obligations under this
Agreement.
14. OTHER INDEMNITIES
14.1 Currency Indemnity
(a) If any sum due from the Borrower under this Agreement
(a "Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the
purpose of:
(i) making or filing a claim or proof against the
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within
three (3) Business Days of demand, indemnify the Lender against any
cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum
from the First Currency into the Second Currency and (B)
the rate or rates of exchange available to that person at the time
of its receipt of that Sum.
(b) The Borrower waives any right it may have in any
jurisdiction to pay any amount under this Agreement in a currency
or currency unit other than that in which it is expressed to be
14.2 Other Indemnities
The Borrower shall, within three (3) Business Days of a
demand, indemnify the Lender against any cost, loss or liability
incurred by the Lender as a result of:
(a) the occurrence of any Event of D
(b) a failure by the Borrower to pay any amount due under
this Agree
(c) funding, or making arrangements to fund, a Loan
requested by the Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by
the Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in
accordance with a notice of prepayment given by the
15. COSTS AND
15.1 Transaction Expenses
The Borrower shall promptly on demand pay to the Lender
the amount of all costs and expenses (including legal fees)
reasonably incurred by the Lender in connection with the
negotiation, preparation, printing, execution and implementation of
this Agreement and any other documents referred to in this
Agreement.
15.2 Amendment Costs
If (a) the Borrower requests an amendment, waiver or
consent or (b) an amendment is required by law, the Borrower shall,
within three (3) Business Days of demand, reimburse the Lender for
the amount of all costs and expenses (including legal fees)
reasonably incurred by the Lender in responding to, evaluating,
negotiating or complying with that request or
requirement.
15.3 Enforcement Costs
The Borrower shall, within three (3) Business Days of
demand, pay to the Lender the amount of all costs and expenses
(including legal fees), such as translation, accommodation and
travel expenses, incurred by the Lender in connection with the
enforcement of or the preservation of any rights under this
Agreement.
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