韩国输出入银行贷款协议 LOAN FACILITY AGREEMENT OF THE EXPORT-IMPORT BANK OF KOREA The Bank For the Lender; The Export-Import Bank of Korea, Changwon Branch 贷款行：韩国输出入银行昌原分行 Address: 5th fl., Gyeongnam Trade Center 7-4, Yongho-韩国输出入银行贷款协议
LOAN FACILITY AGREEMENT OF THE EXPORT-IMPORT BANK OF KOREA
The Bank For the Lender; The Export-Import Bank of Korea, Changwon Branch
Address: 5th fl., Gyeongnam Trade Center 7-4, Yongho-dong, Changwon-si, Gyeongsangnam-do, Korea, 641-740
Fax NO.: 82-55-287-6831 传真号：82-55-287-6831
For the Borrower: 借款人：
Fax NO.: 传真号：
2. THE FACILITY贷款
4. CONDITIONS OF UTILISATION提款条件
7. PREPAYMENT AND CANCELLATION提前还款及取消
9. INTEREST PERIODS计息期
10. CHANGES TO THE CALCULATION OF INTEREST利息计算变更
12. TAX GROSS UP AND INDEMNITIES包税与赔偿
13. INCREASED COSTS增加成本
14. OTHER INDEMNITIES其他赔偿
15. COSTS AND EXPENSES成本和开销
17. INFORMATION UNDERTAKINGS信息承诺
18. FINANCIAL COVENANTS财务契约
19. GENERAL UNDERTAKINGS一般承诺
20. EVENTS OF DEFAULT违约事件
21. PAYMENT MECHANICS付款方式
24. CALCULATIONS AND CERTIFICATES计算与证书
25. CHANGES TO PARTIES各缔约方的变更
26. PARTIAL INVALIDITY部分失效
27. REMEDIES AND WAIVERS补偿措施及弃权
28. WAIVER OF IMMUNITY放弃豁免权
29. AMENDMENTS AND WAIVERS修订与弃权
30. ENTIRE AGREEMENT完整协议
32. GOVERNING LAW适用法律
"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 loan.
"Margin" means Two point Eight percent (2.8%) per annum.
“保证金”为每年百分之二点八（ 2.8% ） 。
"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 impair:
(a) the ability of the Borrower to perform and comply with any of its payment or other material obligations under this Agreement;
(b) the ability of the Borrower to perform and comply with its material obligations under the Contract;
(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 Agreement;
(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 interest.
"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 Day;
(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 that calendar month; 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 to end. 如果计息期自公历月份的最后一个工作日开始计算，则该计息期须在其即将终止的公历月份
The above rules will only apply to the last Month of any period.
"Party" means a party to this Agreement. “缔约方”指本协议的一方。
"Prepayment Premium" means a prepayment premium payable by the Borrower to the Lender in accordance with Clause 7.3.
"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 same).
"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$" means the lawful currency of the United States of America.
“美元” ， “USD”或“US$”是指美利坚合众国的法定货币。
"Utilisation" means a utilisation of the Facility. “提款”是指该贷款的提取。
"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.
(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 permitted transferees;
“贷款行” ， “借款人”或任何“缔约方”应解释为包括其权利继承人、许可继受人及和许可受让人;
(ii) "assets" includes present and future properties, revenues and rights of every description;
(iii) "indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
(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 authority or organisation; and
(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. 本协议中，单数用语亦包括复数，反之亦然。
(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.
除非有相反指示，否则本协议中使用的 “决定”或“已决定” 均指决定人有绝对酌情权做出的决定。
(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第三方利益
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贷款
2.1 The Facility贷款
(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.-).
The Borrower shall apply all amounts borrowed by it under this Agreement solely for the purpose of financing its general working capital requirements.
The Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION提款条件
4.1 Conditions Precedent to the Initial Utilisation初次提款前的先决条件
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:
(a) Articles of Incorporation. A certified copy of the articles of incorporation of the Borrower;
(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 Agreement;
(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 signatures of such person;
(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 Date;
(e) Utilisation Schedule. A utilisation schedule in the form and substance satisfactory to the Lender;
(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 再次提款前的先决条件
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 Default shall exist; 无违约行为。无违约行为存在;
(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 respects;
(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 Lender; and
(d) Other Documentation. The Lender shall have received such other documentation as the Lender may reasonably request.
5.1 Delivery of a Utilisation Request提款要求的递送
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 Date.
5.2 Completion of a Utilisation Request提款申请的填写
(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 Period;
(ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and Amount); and
提款货币和提款金额符合第5.3 条（货币和金额）之规定 ;以及
(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 Request.
5.3 Currency and amount货币与金额
The currency specified in a Utilisation Request must be U.S. Dollar.
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依靠提款申请
(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约束力
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.
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 Period.
5.8 Notice of Utilisation提款通知
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.
6.1 Repayment of Loans贷款还款
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.
The Borrower may not reborrow any part of the Facility which is repaid.
7. PREPAYMENT AND CANCELLATION提前还款及取消
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 becoming aware of that event;
(b) upon notifying the Borrower, the Facility unutilised at that time will be immediately cancelled; 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 Lender贷款行暂停或取消贷款
(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 occurred and is continuing; or
(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 be.
(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自愿提前还款
(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 Agreement
provided, however, that if the Lender does not consent to such prepayment, the Borrower shall not prepay any part of the Loan.
(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 maturity.
(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 prepaid.
借款人应按本协议项下第7.3（a）条之规定支付任何提前还款金额的同时，向贷款行支付等同于提前偿还金额百分之零点五（ 0.5％ ）的提前还款额。
(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.
(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 penalty.
(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.
8.1 Calculation of Interest利息的计算
The Interest Rate on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
(a) Margin; and保证金；以及
8.2 Payment of Interest利息的支付
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滞纳利息
(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.
Interest and default interest shall be computed on the basis of the actual number of days elapsed and a year of 360 days.
8.5 Notification of Interest Rate利率通知
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计息期
9.1 Determination of Interest Periods计息期的确定
(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 Date.
(b) An Interest Period for a Loan shall not extend beyond the final maturity.
9.2 Non-Business Days非工作日
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贷款的合并与分立
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 Period.
10. CHANGES TO THE CALCULATION OF INTEREST利息计算变更
10.1 Absence of Quotations无报价
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 Borrower.
10.2 Market Disruption市场干扰
(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 Margin; and保证金；以及
(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" means: 在本协议中，“市场干扰事件”是指：
(i) at or about noon on the Quotation Day for the relevant Interest Period the applicable LIBOR is not available; or
(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 Funding利息或资金替代基准
(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 interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall be binding on all Parties.
11.1 Commitment Fee承诺费
(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.
(c) 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管理费
(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包税与赔偿
12.1 Tax Gross-up包税
(a) The Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law
(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 Lender.
(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税收补偿
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印花税
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增加成本
13.1 Increased Costs增加成本
(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 of:
(i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
(ii) compliance with any law or regulation made after the date of this Agreement.
(b) In this Agreement "Increased Costs" means:在本协议中“增加成本”是指：
(i) a reduction in the rate of return from the Facility or on the Lender's overall capital;
(ii) an additional or increased cost; or附加或增加成本；或
(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其他赔偿
14.1 Currency Indemnity货币赔偿
(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
(i) making or filing a claim or proof against the Borrower; or对借款人提出索赔或证明；或
(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 payable.
14.2 Other Indemnities其他赔偿
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 Default; 发生任何违约事件;
(b) a failure by the Borrower to pay any amount due under this Agreement on its due date;
(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 Borrower.
15. COSTS AND EXPENSES成本和开销
15.1 Transaction Expenses交易开销
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修订成本
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执行成本
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.