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 [page]
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 [page]
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 [page]
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 [page]
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
[page]
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 [page]
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 [page]
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 [page]
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
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