영문 차관계약서2(LOAN AGREEMENT)

LOAN AGREEMENT(2)

 

 

 

 

THIS AGREEMENT date the (  ) day of (  ) nineteen hundred and ninety-five

 

BETWEEN

 

(1) ( ) a company duly incorporated and validly existing with good standing under the laws of ( ) and having its (registered) (principal) office at ( ) (the "Borrower")

 

(2) ( )

 

( the "Bank")

 

WHEREAS :

 

( )

 

NOW IT IS HEREBY AGREED as follows :

 

Article 1. Definitions

 

1.1 In this Agreement the following ｅxpressions shall, except where the context requires otherwise, have the following respective meanings :

 

"Accounts" 

 

the audited profit and loss account of the Borrower for the period ended ( ) and the audited balance sheet of the Borrower as at such date ;

 

"Agreement"

 

this Agreement as originally executed or as it may be amended in accordance with its terms from time to time ;

 

"Availability Period"

 

the period commencing on the date of this Agreement and terminating on the Termination Date, both dates inclusive ;

 

"Business day"

 

a day on which banks and foreign exchange markets are open in London for the transaction of business of the nature required by this Agreement and also, in relation to a day on which a payment is to be made under this Agreement, in New York City ;

 

"Commitment"

 

"Dollars" and " $

 

"the sign the lawful currency for the time beingof the United States of America ;

 

"Drawing"

 

each drawing of the Facility in accordance with Clause 3 ;

 

"Drawdown Date"

 

in relation to any Drawing, the date on which such Drawing is, or, as the case may be, is to be, made by the Borrower;

 

"Event of Default"

 

any of the events specified in Clause 15 :

 

"Facility"

 

the loan facility specified in Clause 2.1 ;

 

"Guarantee"

 

the guarantee to be given by the Guarantor substantially in the from of Annex2 ;

 

"Guarantor"

 

"Indebtedness"

 

of any person from time to time, all obligations of such person for the payment or repayment of money, whether present or future, actual of contingent, including, but not limited to (a)under acceptances, bills, bonds, debentures,notes'or similar instruments, (b) under guarantees, indemnities or other assurances against financial loss, (c) in respect of the purchase, hire or lease of any asset or services, and (d) indebtedness of other persons secured by or benefiting from any Security interest on the property of such person, but excluding trade indebtedness of such person incurred in the ordinary course of business up to in the aggregate

( ) Dollars ( $ ) or its equivalent in other currencies :

 

"Interest Payment Date"

 

 subject to Clause 8.3, the last day of each Interest Period;

 

"Interest Period"

 

in relation to the Loan or any relevant part thereof, subject as provided below, each period of time for which a rate of interest is determined in accordance with Clause 4 being the period of time which begins either (a) on the Drawdown Date of the first Drawing or (b) on the last day of the immediately preceding Interest Period (including the Interest Period the commencement of which is stipulated in sub-clause (a) immediately preceding) and, in either case, ends on the day which, subject to the provisions hereof, is six(6) months thereafter,provided that (i) an Interest Period which would otherwise end of a day which is not a Business Day shall end on the next succeeding Business Day, unless such next succeeding Business Day shall fall in the next succeeding calendar month in which event the last day of such Interest Period shall be the immediately preceding Business Day, (ii) the first Interest Period with respect to any Drawing, other than the first Drawing, shall be for a period of time beginning on the Drawdown Date of such Drawing and ending on the last day of the then current Interest Period with respect to the Loan and, (iii), if any Interest Period would extend beyond and Repayment Date (but for the provisions of this sub-clause (iii)), such Interest Period, as to the aggregate principal amount of the Loan required to be repaid on such Repayment Date, shall end on such Repayment Date ;

 

"Loan"

 

the aggregate principal amount advanced by the Bank pursuant to this Agreement and for the time being outstanding ;

 

"Margin"

 

( ) percent. (%) per annum;

 

"Notice of Drawing"

 

a notice given by the Borrower to the Bank substantially in the form of Annex 1 ;

 

"Repayment Dates"

 

subject to Clause 8.3, the dates which fall ( );

 

"Same-Day Funds"

 

Dollar Funds settled through the New York Clearing House Interbank Payment System on a same-day basis (or· such other funds as the Agent may specify as having become customary at the time for the settlement in New York of Dollar transactions of the type contemplated by this Agreement) :

 

"Security Interest"

 

(a) an lien, mortgage, charge, encumbrance,pledge, hypothecation, assignment by way of security or security interest of any kind and howsoever arising or any other perferential arrangement resulting in a secured transaction or having the same economic or legal effect as any of the foregoing or (b) any agreement to give any of the foregoing : and

 

"Termination Date"

 

the earlier of (a) the date occurring ( ) ( )months after the date of this Agreement and (b) the date on which the Commitment is fully drawdown, terminated or is cancelled.

 

 

 

1.2 In this Agreement, unless the context otherwise requires :

 

(a) references to persons include firms, corporations, states and administrative and governmental entities ;

 

(b) references to the singular number include the plural and vice versa ;

 

(c) the words "hereof", "herein" and "hereunder" and other words of similar import shall refer to this Agreement as a whole and not to any particular part hereof ; and

 

(d) any reference to any Clause, sub-clause or Annex is a reference to such Clause, sub-clause or Annex of, or to, this Agreement.

 

1.3 The Table of Contents and Clause headings are for ease of reference only and shall not affect the interpretation of any of the provisions hereof.

 

 

 

Article 2. Facility

 

2.1 on the terms and conditions hereinafter specified, the Bank hereby agrees to make available during the Availability Period to the Borrower through its office indicated at the head of this Agreement a loan facility in a maximum aggregate principal amount equal to its .Commitment.

 

2.2 The Borrower will apply the proceeds of the Drawings solely and exclusively towards ( ) but failure of the Borrower to comply with this Clause 2.2 shall not prejudice the rights of the Bank under this Agreement.

 

Article 3. Drawings

 

3.1 Subject to the conditions specified In Clause 9, the Facility may be drawn down by the Borrower on any Business Day during "the Availability Period upon notice by the Borrower in accordance with Clause 3.2.

 

3.2 In the case of each Drawing the Borrower shall give to the Bank, not later than noon (Tokyo time) five(5) Business Days prior to the proposed Drawdown Date, a Notice of Drawing, in writing, or by cable or telex, confirmed thereafter in writing, and duly executed by an authorized signatory of the Borrower, specifying the amount of the proposed Drawing (which shall be an integral multiple of ( ) and not less than ( ) or shall be the undrawn amount of the Facility), the proposed Drawdown Date and containing the Borrower's confirmation that the proceeds of the proposed Drawing will be used in accordance with Clause 2.3. Subject to Clause 12.1, each Notice of Drawing once given shall be irrevocable and unconditional and the Borrower shall be obliged to borrow in accordance therewith.

 

3.3 Subject to Clause 9, the Bank shall promptly transfer the amount requested in each such Notice of Drawing to such account in New York City as the Borrower shall designate in Same Day Funds.

 

3.4 The amount of the Commitment remains unborrowed at the end of the Availability Period shall forthwith be automatically cancelled.

 

Article 4. Interest

 

4.1 The Borrower shall pay interest in respect of the unpaid princip alamount of the Loan from time to time outstanding at the rate determined in accordance with Clause 4.2 in Dollars in arrears on each Interest Payment Date in respect of the Interest Period ending on such Interest Payment Date.

 

4.2 The interest rate applicable to the Loan or any relevant part thereof for each Interest Period relative thereto shall be the rate per annum determined by the Bank to be the aggregate of (a) the Margin arid (b) the rate at which the Bank is offered by prime banks in the London Interbank Market as at 11 : 00 a.m. (London time) two(2) Business Days prior to the commencement of such Interest Period Dollar deposits of an amount comparable to the amount of the Loan or relevant part thereof scheduled to be outstanding during such Interest Period for a period comparable to such Interest Period. If the Bank shall be unable or otherwise fails to provide a rate pursuant to this Clause 4.2 then the rate of interest shall be determined in accordance with Clause 12.3.

 

4.3 In the event that the Borrower fails to pay on the due date thereof any principal, interest or any other amount payable pursuant to this Agreement the Borrower shall to the extent permitted by law on demand made by the Bank from time to time pay interest thereon from the due up to the date of actual payment (as well after as before judgment) at a rate calculated by the Bank to be one percent.(1%) above the rate which would otherwise have been payable if such amount had during the period of such failure constituted a Loan made hereunder for successive Interest Period of such duration not exceeding six(6) months as the Bank may from time to time designate ; the first Interest Period shall commence on the day on which the failure occurred. So long as such failure continues, such rate shall be recalculated in accordance with the provisions of this Clause 4.3 at the end of each such period.

 

4.4 Each determination of a rate of interest (including a rate of interest under Clause 4.3) by the Bank hereunder shall, in the absence of manifest error, be conclusive and binding on the parties hereto. The Bank shall promptly notify the Borrower of each determination of the rate of interest applicable on the Loan, but any failure by the Bank so to notify the Borrower shall not relieve the Borrower to pay interest on the Loan at the newly-determined rate.

 

4.5 Interest relative to each Interest Period hereunder shall accrue from day to day and be calculated on the basis of 360 day year arid the actual number of days elapsed.

 

Article 5. Evidence of Debt

 

The Bank will open and maintain on its books a loan account with respect to each Drawing. The Bank shall debit to such account the amount of each Drawing, accrued interest thereon and any commitment fee accrued hereunder and shall credit each payment of principal, interest and commitment fee on account thereof by appropriate entries. Such loan account shall constitute prima facie evidence of the amounts due from time to time from the Borrower to the Bank under this Agreement. In any legal action or proceeding in respect of this Agreement, such account shall, save for manifest error, be conclusive as to the amounts of principal, interest, commitment fee and other sums due from time to time from the Borrower under this Agreement.

 

 

 

Article 6. Fees

 

6.1 The Borrower shall pay to the Bank in Dollars a commitment fee calculated from and including the date of this Agreement up to and including the Termination Date at the rate of ( ) percent. (( )%) per annum on the undrawn portion of the Bank's Commitment from time to time. Such commitment fee shall accrue from day to day and be calculated on the basis of a 360 day year and the actual number of days elapsed and shall be paid in arrears on the (dates falling at (      (  ))month intervals from the date of this Agreement) .and on the Termination Date.

 

6.2 The Borrower shall pay to the Bank a facility fee in Dollars on ( )or, if earlier, the date on which the Borrower gives the first Notice of Drawing, in the amount of U.S. $, such fee to be due and payable irrespective of whether any Drawing is made hereunder.

 

Article 7. Repayment, Prepayment and Cancellation

 

7.1 The Borrower repay principal amount of the Loan outstanding at the end of the Availability Period, so far as not otherwise repaid or prepaid under the terms of this Agreement, by semiannual instalments on the Repayment Dates. The amount of each of the first ( ) of such instalments shall be equal to ( ) of the principal amount of the Loan outstanding at the end of the Availability Period and the amount of the final instalment shall be equal to the balance of the Loan then outstanding.

 

7.2 The Borrower may not voluntarily prepay the whole or any part of the Loan, or cancel the whole or any part of the Facility which has not been drawn down or requested in a Notice of Drawing, except in accordance with the express terms of this Agreement.

 

7.3 The Borrower may without premium upon giving not less than thirty(30) Business Day's prior written notice to the Bank prepay on any Interest Payment Date falling after ( ) all or part (but if in part,in an exact aggregate amount in Dollars equal to the repayment instalment or instalments to which such prepayment is to be applied) of the Loan provided always that the Borrower shall have supplied to the Bank such evidence as the Bank may reasonably require, and in a from satisfactory to the Bank, that all consents, approvals and licenses necessary for such prepayment have been obtained. Any such prepayment shall be applied to discharge the unpaid repayment instalments under Clause 7.1 in the inverse order of their maturity.

 

7.4 Any notice of prepayment given by the Borrower under this Agreement shall be irrevocable and the Borrower shall be bound to prepay in accordance with each such notice together with all accrued but unpaid interest and all other sums then due from the Borrower hereunder. Any amount prepaid may not be reborrowed.

 

7.5 Any prepayment made under Clause 10, 11.1 or 12.3 shall, if made otherwise than on an Interest Payment Date or Dates relative to the amount prepaid, be made together with accrued interest on the amounts prepaid and such additional amount as the Bank shall certify(which certificate shall, in the absence of manifest error, be conclusive and binding on the parties) to be necessary to compensate the Bank for any loss, premium or penalties directly incurred or to be incurred by it in liquidating or employing fixed deposits from third parties.

 

7.6 The Borrower may upon giving not less than thirty(30) Business Day's prior written notice to the Bank cancel with effect from the expire of such notice the whole or any part (being an integral multiple of(         )) of the Facility which has not been drawn down or requested in a Notice of Drawing. Such right of cancellation is subject to payment by the Borrower to the Bank, on the date of expiry of the said notice,of any accrued and unpaid commitment fee in respect of that part of the Facility which is being cancelled. Upon such cancellation taking effect, the Commitment shall be cancelled or, as the case may be, reduced.

 

 

 

Article 8. Payments

 

8.1 All payments to be made by the Borrower under this Agreement shall be made to the Bank in Dollars and In Same Day Funds by crediting the Bank's account No. ( ) with ABC Bank, New York Office,New York, New York 10005, or such other bank and/or account in New York City as the Bank may designate in writing, not later than10 : 00 a.m. (New York time) on the date for payment.

 

8.2 All payments to be made by the Borrower under this Agreement shall be made without setoff or counterclaim and free and clear of and without deduction for or an account of, any present of future taxes,levees, imposts, duties, charges, fees, deductions or withholdings of any nature (collectively called "Taxes" ) now or hereafter imposed, levied,collected, withheld, assessed or otherwise by any taxing authority unless the Borrower is compelled by law to make payment subject to any of such Taxes. In that latter event the Borrower shall at the same time pay to the Bank such additional amounts as may be necessary to ensure that such Bank receives a net amount in Dollars equal to the full amount which it would have received had payment not been made subject to any of such Taxes, shall promptly account to the relevant authorities for the relevant amount of any of such Taxes so withheld or de-deducted and shall produce to the Bank on request such evidence as the Bank may require of such payment.

 

8.3 whenever any payment hereunder shall become due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day unless such next succeeding Business Day falls in the next succeeding calendar month, in which event such due date shall be the immediately preceding Business Day, and the amount(if any) of interest or commitment fee payable shall be adjusted accordingly.

 

 

 

Article 9. Conditions Precedent

 

9.1 The obligation of the Bank under this Agreement and the right of the Borrower to give a Notice of Drawing under Clause 3.2 shall subject to the prior receipt by the Bank of :

 

(a) (i) certified Inure copies of the documents constituting the Borrower and the Guarantor, respectively,

 

(ii) certified true copies of the necessary resolutions or approvals of the governing bodies or authorities of the Borrower and of the Guarantor, respectively, approving this Agreement and the Guarantee, authorizing appropriate persons to execute this Agreement on behalf of the Borrower and the Guarantee on behalf of the Guarantor and to take any action contemplated hereby or thereby, which resolutions or approvals shall be in form and substance satisfactory to the Agent,

 

(iii) specimen signatures and certificates of incumbency of the persons referred to in (ii),

 

(ⅳ) certified true copies or other satisfactory confirmation of all the appropriate authorizations, licenses, approvals, exemptions and consents as may be necessary to authorize the transactions contemplated by, and the execution, delivery and performance of,this Agreement and the Guarantee, and

 

(v) a certified true copy of the Accounts ;

 

(b) the Guarantee duly executed by the Guarantor :

 

(c) legal opinions dated not more than ten(10) Business Days prior to the Drawdown Date of the first Drawing and addressed to the Bank from(i) ( ) legal counsel to the Borrower substantially in the form of Annex3 and(ii) ( ) legal counsel to the Guarantor,substantially in the form of Annex 4 ;

 

(d) all fees, charges and expenses then due and payable to the Bank in connection with this Agreement :

 

(e) evidence that the Borrower's authorized agent for service of process referred to in Clause 24.2 and the Guarantor's authorized agent for service of process referred to in paragraph 15 of the Guarantee have each accepted their appointment by the Borrower and the Guarantor as their respective agents so to receive service of process ; and

 

(f) such other documents as the Bank may in the context of this Agreement reasonably require.

 

9.2 No Notice of Drawing given pursuant to Clause 3.2 shall be valid until all of the aforementioned conditions precedent shall have been fulfilled to the satisfaction of the Bank.

 

9.3 The obligation of the Bank hereunder is subject to the further condition precedent that as of each Drawdown Date :

 

(a) the representations and warranties made and given by the Borrower in the terms of Clause 13.1 and by the Guarantor in the terms of paragraph 11 of the Guarantee being true, accurate and fully observed as if the same had been made and given on such Drawdown Date with respect to the facts and circumstances existing at such time ;and

 

(b) on Event of Default and no condition, event or circumstance which,with the giving of notice or lapse of time or both or the fulfillment of any other condition, would constitute an Event of Default has occurred and is continuing or would result from the drawdown of such Drawing.

 

 

 

10. Changes in Law or Banking Practices: Increasein Coat

 

In the event that after the date of this Agreement there is any change in or introduction of may law, regulation, regulatory requirement of official directive having the force of law (or if not having the force of law the observance of which is in accordance with the reasonable practice of banks in the country concerned) or in the interpretation or application thereof by any governmental or other competent authority charged with the administration thereof and/or any compliance by the Bank with any request from any central bank or other fiscal monetary or other authority,which

 

(a) subjects or will subject the Bank to any tax with respect to payments of principal of or interest on the Loan or any other amount payable hereunder : or

 

(b) Increases the taxation of or changes or will change the basis of taxation of payments to the Bank of principal of or interest on the Loan or any other amount payable hereunder (except for taxes on the overall net income of the Bank) ; or

 

(c) imposes, modifies or deems applicable any reserve or deposit requirements against assets held by, or deposits in or for the account of, or loans by an office of the Bank ; or

 

(d) Imposes of will impose on the Bank any other condition affecting this Agreement, its Commitment or the Loan ;and if as a result of any, of the foregoing :

 

(i) the cost to the Bank of making, funding or maintaining the Loan or its Commitment is increased, or

 

(ii) the amount of principal, interest or other amount payable to the Bank hereunder is reduced, or

 

(iii) the Bank makes any payment or foregoes any interest or other return on or calculated by reference to the gross amount of any sum receivable by it from the Borrower hereunder, in any case by an amount which the Bank deems material, then and in each such case ;

 

(e) the Bank shall upon learning of the same use reasonable efforts promptly to notify the Borrower such event :

 

(f) upon demand being made by the Bank to the Borrower, the Borrower shall pay to the Bank that amount which shall compensate the Bank for such increased cost, reduction, payment of foregone interest or other return ; and

 

(g) at the option of the Borrower, provided the Borrower obtains all consents, approvals and licenses necessary and gives less than thirty(30) Business Day's prior written irrevocable notice to the Bank not later than five(5) Business Days after the receipt by the Borrower of such notification from the Bank, the whole amount (but not part) of the principal amount of the Loan outstanding may by prepaid together with accrued interest but without premium. Upon the giving of such notice by the Borrower the Bank shall be under no further obligation to lend moneys hereunder and the Bank's Commitment shall thereupon be terminated.

 

A certificate by a duly authorized officer of the Bank (setting forth the amount of the payment referred to in this Clause 10 and the basis therefor)shall be submitted by he Bank to the Borrower and shall, save for manifest error, be conclusive evidence of such amount.

 

 

 

Article 11. Changes in Law or Regulation : Prohibition

 

11.1 If any change in applicable law or regulation or in the interpretation or application thereof by any governmental, law enforcement or other authority charge with the administration thereof shall make it unlawful for the Bank to give effect to or maintain its obligations under this Agreement (which shall include the funding by the Bank of the Loan), the Borrower shall repay to the Bank an amount equal to the principal amount of the Loan outstanding together with accrued interest thereon but without premium on the next succeeding Interest Payment Date (or if such law or regulation requires an earlier prepayment within thirty(30) days) after demand by the Bank and accompanied by evidence of such change and upon the making of such demand the Bank shall be under to further obligation to lend moneys here under and the Bank's Commitment shall thereupon be terminated.

 

11.2 Without prejudice to the foregoing obligations of the Borrower, in the event that it does so become unlawful for the Bank to give effect to or maintain its obligations under this Agreement the Bank will, provided that immediated cancellation of the Commitment is not required by reason of the event rendering it unlawful for the Bank to give effect to or maintain its obligations under this Agreement as aforesaid,having notified the Borrower of the supervening illegality promptly enter into negotiations with the Borrower. Such negotiations shall be conducted by each of the parties thereto in good faith with a view to agreeing on terms for reorganising the Bank's Commitment on a basis that is not unlawful, including without limitation the funding of its Commitment from alternative sources and the transfer or assignment thereof to a branch or affiliate of the Bank that is not affected by the applicable law or regulation. If within thirty(30) days from the date of the Bank's notification to the Borrower as aforesaid (provide that prior cancellation of the Commitment has not been necessary) no agreement is reached as to the terms on which the commitment maybe reorganized, then the Commitment shall forthwith be terminated and the Borrower shall at the end of the said thirty(30) day period make prepayment to the Bank in accordance with the provisions of Clause 11.1

 

Article 12. Changes in Prevailing Conditions

 

12.1 In the event and on each occasion that two(2) Business Days immediately before the commencement of any Interest Period relative to the Loan or any Drawing the Bank shall have determined that (a) Dollar deposits of the relevant amount and for the relevant period are for any reason not being offered by prime banks to the Bank in the London Interbank Market and/or (b) by reason of circumstances affecting the London Interbank Market the rate of which such deposits are available will not or does not accurately reflect the cost to the Bank of making, maintaining or funding the Loan or, as the case may be, a Drawing then the Bank shall as soon as practicable give written notice thereof to the Borrower. If such notice by the Bank relates to a Drawing to be made hereunder, then such Drawing shall not be made and the Notice of Drawing given pursuant to Clause 3.2 shall be cancelled.

 

12.2 If the Loan is outstanding then, in the event of such notice, the Borrower may upon obtaining all necessary consents, approvals or licenses by notice given to the Bank not later than two(2) Business Days prior to the Interest Payment Date immediately following the giving of such notice by the Bank prepay the Loan without premium on such Interest Payment Date.

 

12.3 If the Borrower does not exercise its right of prepayment of the Loan pursuant to Clause 12.2, during the thirty(30) days succeeding the giving of such notice by the Bank, the Bank shall so far as it is able,negotiate in good faith with the Borrower with a view to determining an alternative basis acceptable to the Banks and the Borrower for continuing the Loan either for an alternative period or periods or in an alternative currency, or in Dollars obtained in an alternative market or markets, as the case may be, to arrive at an alternative interest rate acceptable to the Bank and the Borrower to be substituted for the interest rate which would otherwise have been fixed pursuant to Clause 4.2, and in any case on the basis that the net return to the Bank shall be the same as it would have been if the circumstances resulting in the foregoing determination had not occurred. If within such thirty(30) days period the Bank shall have determined such alternative basis or, as the case may be, a substituted interest rate than such alternative basis or substituted interest rate shall be retroactive to and affective from the first day of such Interest Period. If the Bank is unable to determine such an alternative basis or substituted interest rate within such thirty(30) days period, the Commitment shall terminate at the end of such thirty(30) days period and the Borrower shall prepay the Loan without premium on the first Business Day following such thirty(30) days period together with accrued interest on the Loan as from the first day of such Interest Period at a rate per annum equal to the aggregate of (a) the Margin and(b) the rate certified by the Bank (whose certificate shall,. save for manifest error, be conclusive and binding on all parties hereto) to bean interest rate equivalent to the cost to the Bank of funding the Loan from the last Interest Payment Date until the date of prepayment by the Borrower.

 

12.4 During any period when any substituted interest rate Is in effect, the Bank shall periodically determine whether any of the circumstances referred to Clause 12.1 still pertain and, if they do not, shall forthwith give notice of such fact to the Borrower whereupon the Bank and the Borrower shall establish a date on which such substituted interest rate shall cease to apply and on which interest shall be determined and payable in accordance with Clause 4 above.

 

 

 

Article 13. Representations and Warranties

 

13.1 The Borrower hereby makes the following representations and warranties for the benefit of the Bank :

 

(a) the Borrower is a company duly incorporated and validly existing with good standing under the laws of ( ) and has the power and authority to own its awwets and carry on is business as it is being conducted :

 

(b) the Borrower has the corporate power and authority to enter into and perform this Agreement and to borrow hereunder and has taken all necessary action to authorize the borrowing of the Facility upon the terms and conditions of this Agreement and to authorize the execution, delivery and performance of this Agreement in accordance with its terms ;

 

(c) this Agreement when executed and delivered does and will constitute the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms :

 

(d) the Loan and the obligations of the Borrower under this Agreement constitute the direct, unconditional, unsecured and general obligations of the Borrower ranking at least pari passu with all its other outstanding unsecured and un subordinated obligations and liabilities(including contingent obligations and liabilities) from time to time outstanding, other than as preferred by Statute ;

 

(e) the execution, delivery and performance of this Agreement by the Borrower will not exceed any power granted to it by or violate or conflict with or result in any breach of in any respect any provision of ( i )any law or regulation or any order or decree of any governmental authority, agency or court or (ii) the constitutive documents of the Borrower or (iii) any contract, Indenture, deed of trust, Security Interest,agreement or other undertaking or instrument to which the Borrower is a parley or which is binding upon it or any of its assets, and does not and will not result in the imposition of any Security Interest on any of its assets pursuant to the provisions of any such contract, indenture,deed of trust, Security Interest, agreement or other undertaking ;

 

(f) any permission, order, consent, license, approval or authorization of any governmental authority, bureau or agency In ( ) or elsewhere required in connection with the execution, delivery or performance of this Agreement to ensure the legality, validity, enforceability or admissibility in evidence hereof has been obtained and is in full force and effect and a true copy thereof has been delivered to the Bank :

 

(g) the Borrower is not in bleach of any provision of law or governmental directive, guideline or policy statement and whether having the force of law or not, or any agreement to which it is a Party or by which it may be bound, and no litigation arbitration or administrative proceedings are presently current or pending, or are to its knowledge threatened, which breach, litigation, arbitration or administrative proceedings, as the case may be, would be material in the context of this Agreement and would have an adverse effect on the Borrower or might impair the Borrower's ability to perform its obligations hereunder ;

 

(h) (except for filing, registration and recording requirements which have already been fulfilled) it is not necessary or advisable under the laws of (         ) to file, register or otherwise record this Agreement or any other document relating hereto in any public office or else wherein order to ensure the validity, effectiveness, enforceability or admissibility in evidence of this Agreement ;

 

(i) there are no stamp taxes, taxes, withholdings, levies, registration taxes, duties or similar charges now due, or which under the present laws of (        ) cuuld in the future become due in connection with the execution, delivery or enforcement of this Agreement or in connection with any payment to she made pursuant hereto or in connection with the admissibility into evidence hereof (other than such stamp taxes or other similar duties or charges as have already been paid) :

 

(j) the Accounts accord with the books of account of the Borrower,which books of account have been prepared in accordance with accounting principles and practices generally accepted in ( ) and consistently applied and the Accounts give (in conjunction with the notes thereto) a true and fair view, having been prepared with due care and diligence, of (i) the financial condition of the Borrower as at the date as of which they were prepared and (ii) the results of the operations of the Borrower for the period to which they relate. As at the date to which the Accounts relate, the Borrower had no significant liabilities (contingent or otherwise) except those which are disclosed by or reserved against in the Accounts. There has been no material adverse change in the financial position of the Borrower from that set forth in the Accounts :

 

(k) neither the execution nor the delivery of this Agreement, nor the performance of any of the transactions contemplated herein, nor the compliance with any of the terms and conditions hereof, will cause any limit or restrictions on the borrowings or chartings of the Borrower or any other limitation or restriction on the Borrower ( whether imposed by statute, regulation, agreement or otherwise) to be exceeded or contravened :

 

(I) the Borrower is subject to legal proceeding in ( ) and neither the Borrower nor any of its property or assets enjoys any right of sovereign other immunity from legal proceedings or the execution of judgment or attachment or otherwise ;

 

(m) the Borrower's irrevocable and unconditional submission to the nonexclusive jurisdiction of the High Court of Justice of England, the State and Federal Courts in New York and the Tokyo District Court in terms of Clause 24.2 and its waiver of immunity in terns of Clause25 are its legal, valid and binding obligations ;

 

(n) the choice of the laws of New York to govern this Agreement is under the laws of ( ) a proper, valid and binding choice of law and will be recognised and applied by the courts of ( ) ;

 

(o) the transactions contemplated by this Agreement are not subject to any currency deposit requirements or any reserve requirements of whatsoever nature under the laws of ( ) :

 

(p) all information furnished to the Bank by the Borrower in connection with this transaction is true and correct in all material respects and does not omit any information necessary to make any of the information so furnished not misleading or incomplete and all facts concerning the business and affairs of the Borrower which might reasonably be expected to be material for disclosure to a bank or financial institution proposing to lend moneys to the Borrower have been disclosed to the Bank ; and

 

(q) no Event of Default and no condition, event or circumstance which,with the giving of notice or lapse of time or both of the fulfillment of any other condition, would constitute an Event of Default has occurred.

 

13.2 The representations and warranties set forth in Clause 13.1 are given and made on and as of the date hereof, shall survive the execution of this Agreement and the making of each Drawing and shall be deemed to be given, made and repeated by the Borrower on and as of each Drawdown Date and Interest Payment Date with respect to the facts and circumstances existing at such time ( Provided that the reference to the Accounts contained in sub-clause 13.1 (j ) shall be deemed to be a reference to the then latest accounts delivered to the Bank pursuant to sub-clause 14.1(e)).

 

Article 14. Continuing Undertaking

 

14.1 The Borrower covenants and undertakes that during the Availability Period and so long thereafter as the Loan or any other sum owing hereunder remains outstanding the Borrower shall :

 

(a) obtain and promptly renew from time to time and comply with the terms of all consents, licenses, approvals and authorities which maybe required under any applicable law or regulation of ( ) to enable it to perform its obligations under this Agreement or for the validity or enforceability of this Agreement :

 

(b) not, without the prior written consent of the Bank, sell, lend transferor otherwise dispose of the whole or any part of its interest in all or any substantial part of its undertaking property or assets, whether as a single transaction or a series of transactions related or not ;

 

(c) pay or cause to be paid all of its obligations, rents, rates, taxes, assessments, impositions, calls and outgoings whatsoever (whether governmental, municipal or otherwise) imposed upon or payable in respect of ots property or assets as and when the same shall become payable save for any of the same which are being contested in good faith and by appropriate proceedings ;

 

(d) deliver to the Bank, as soon as the same is available (and in any even within forty-five(45) days) after the end of each of its financial hart(years ending after the date hereof, a copy of its unaudited accounts for such half year having ensured that such accounts were prepared either on the same basis as the Accounts or, with the prior written consent of the Bank, on such other basis as is acceptable to the Bank,and were prepared in accordance with accounting principles and practices generally accepted in ( ) and consistently applied and give(in conjunction with the notes thereto) a true and fall view of (i) the financial condition of the Borrower as at the date as of which they were prepared and (ii) the results of the operations of the Borrower for the period to which they relate and were certified by its duly authorized officer as giving (in conjunction with the notes thereto) a true and fair view of its financial condition as at the end of such financial period and of the results of its operations during such financial period ;

 

(e) deliver to the Bank, as soon as the same is available (and in any event within ninety(90) days) after the end of each of its financial years ending after the date hereof, a copy of its account for such financial year having ensured that such accounts were prepared either on the same basis as the Accounts or, with the prior written consent of the Bank, on such other basis as is acceptable to the Bank, and were prepared in accordance with accounting principles and practices generally acceptable and consistently applied in (          ) and give (in conjunction with the notes thereto) a true and fair view of (i) the financial condition of the Borrower as at the date as of which they were prepared and (ii) the results of the operations of the Borrower for the period to which they relate, were audited by auditors acceptable to the Bank and were certified by its duly authorized officer as giving (in conjunction with the notes thereto) a true and fair view of its financial condition as at the end of such financial year and of the results of its operation during such financial year ;

 

(f) from time to time promptly upon request by the Bank, deliver to the Bank such other information as the Bank may reasonably require in the context of this Agreement ;(9) as soon as it becomes aware of the same, give written notice to the Bank of the occurrence of any Event of Default or any condition,event or circumstance which, with the giving of notice or lapse of time or both or the fulfillment of any other condition, would constitute an Event of Default ; and

 

(h) will procure and maintain that at all times its financial condition, evidenced, as the case may be, by the Accounts or subsequent half yearly or yearly accounts for any of its financial years or half-years ending after the date hereof delivered ,pursuant to and in accordance with the terms hereof, shall be such that . (financial covenants)

 

14.2 The Borrower hereby further covenants and undertakes that from and after the date hereof during the Availability Period and so long thereafter as any amount payable hereunder is outstanding :

 

(a) it will ensure that the Loan and its obligations under this Agreement shall at all times rank at least pari passu with all its other unsecured and unsubordinated obligations and liabilities (including contingent obligations and liabilities) from time to time outstanding, other than as preferred by Statute ; and

 

 

 

(b) it will not, except with the prior written consent of the Bank, create or have outstanding any Security Interest upon the whole or any part of its undertaking, property, revenue of assets, present or future.

 

Article 15. Events of Default

 

In case any one or more of the following events shall have occurred and be continuing :

 

(a) the Borrower fails to pay when due any principal of, or any interest on, the Loan or any other amount payable hereunder ; or

 

(b) the Borrower or the Guarantor defaults in the due performance or observance of any of its covenants, undertakings or obligations under this Agreement or the Guarantee, as the case may be, and if such default is capable of remedy, the Borrower or the Guarantor, as the case may be, fails to remedy such default within a period of thirty(30) days after having received notice from the Bank requiring the same to be remedied ; or

 

(c) any representation, warranty or statement made or deemed to be made by or on behalf of the Borrower herein or otherwise in connection with this Agreement or by or on behalf of the Guarantor in the Guarantee or in connection with the Guarantee or in any certificate, statement, notice, opinion or other document give an, made or furnished to the Bank or entered into by the Borrower or the Guarantor pursuant to or in connection with this Agreement or the Guarantee, as the case may be, proves to be untrue or incorrect (as at the date when, or when deemed to have been, given, made furnished or entered into) in any respect which the Bank considers to be material or any condition, event or circumstance shall occur or exist as a result of which if any of the representations, warranties or statements had been repeated immediately thereafter with reference to the facts and circumstances existing at the time of such repetition such representation, warranty or statement would not be true and accurate in any respect which the Bank considers to be material ; or

 

(d) any Indebtedness of the Borrower (other than the Loan) or of the Guarantor shall be capable of being declared due and payable prior to the stated maturity thereof or any Indebtedness of the Borrower(other than the Loan) or of the Guarantor shall become due and payable prior to the stated maturity thereof, or such indebtedness shall not be paid at the maturity thereof, or any payment shall become due and shall not be paid when due under any guarantee, Indemnity or other similar instrument issued in respect of Indebtedness pursuant to which the Borrower or the Guarantor shall have any liability ; or(e) the Guarantee ceases for any reason to be In full force and effect or the validity or applicability thereof to any Indebtedness or any other obligation of the Borrower hereunder is disaffirmed by or on behalf of the Guarantor : or

 

(f) the Borrower or the Guarantor has a receiver, trustee or similar officer appointed to it or its undertaking or assets, becomes bankrupt or insolvent or is unable or is deemed by an appropriate authority or in accordance with applicable legislation unable to pay its debts or admits in writing its inability to pay its debts as they mature, or a general moratorium is imposed on the payment of Indebtedness of either the Borrower or the Guarantor ; or(9) proceedings are commenced or other action taken for the dissolution of the Borrower or the Guarantor (except for the purposes of an amalgamation or reorganization which has been previously approved in writing by the Bank) ; or

 

(h) anything analogous to or haying a substantially similar effect to any of the events specified in sub clauses (f) and (9) of this Clause 15 shall occur under the law of any applicable jurisdiction in relation to the Borrower or the Guarantor : or

 

(i) (the Borrower ceases to be wholly owned by the Guarantor or) there occurs any material adverse change in the business, assets or general financial condition of the Borrower or the Guarantor which, in the opinion of the Bank, could materially affect the ability of the Borrower to perform any its obligations under this Agreement or the ability of the Guarantor to perform its obligations under the Guarantee', or

 

(j ) any governmental consent required on the part of the Borrower or the Guarantor in order to ensure the legality of this Agreement or the Guarantee or the performance thereof by the Borrower or the Guarantor, as the case may be, is withdrawn or ceases for any reason to be in full force and effect :

 

Then and at any time thereafter if such Even of Default shall be continuing the Bank may, by notice in writing to the Borrower :(i) declare the Commitment to be cancelled whereupon the same shall be forthwith cancelled ; and /or(ii) declare the principal of and accrued interest in respect of the Loan and all other amounts payable hereunder to be forthwith due and pay able whereupon the same shall become forthwith due and payable, without presentment, demand, protest or other notice of any kink, all of which are hereby expressly waived by the Borrower

 

Article 16. Indemnity

 

The Borrower shall on demand indemnify the Bank against all losses, expenses and liabilities which the Bank may sustain or incur as a consequence of all or any of (a) any accelerated repayment consequent upon Clause 15, (b) any default in punctual payment by the Borrower of any moneys tour or expressed to be due under this Agreement, or (c) the failure by the Borrower to borrow a Drawing having given a Notice of Drawing in respect thereof. A certificate of the Bank setting forth the amount of such losses, expenses and liabilities and specifying the basis therefor shall, in the absence of manifest error, be conclusive and binding on the parties hereto.

 

Article 17. Expenses

 

17.1 The Borrower shall reimburse the Bank (on a full idemnity basis) for the proper charges and expenses (including travel, accommodation,telex, telephone, cable, legal fees and expenses and publicity) incurred by it in connection with the preparation, execution and implementation of this Agreement and the Guarantee.

 

17.2 The Borrower shall reimburse (on a full indemnity basis) the Bank on demand for all expenses (including legal expenses) incurred by it in suing for or recovering any sum due under this Agreement or the Guarantee or in preserving any or the Guarantee of its rights under or in enforcing this Agreement.

 

Article 18. Stamp Duties

 

The Borrower shall pay all ( if any) stamp, registration and similar taxes or charges imposed by law or governmental authorities in any jurisdiction which may be payable or determined payable in connection with the execution, delivery or performance of this Agreement or the Guarantee or by any law or governmental authorities in connection with the enforcement of either or both and shall Indemnify the Bank against any all liabilities with respect to or resulting from delay or omission to pay such taxes or charges.

 

Article 19. Writers

 

No failure to exercise and no delay in exercising on the part of the Bank,any right, power or privilege hereunder and no course of dealing between the Borrower and the Bank shall operate as a waiver there of, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.

 

Article 20. Notices and Language of Documents

 

20.1 All notices, requests, demands or other communications to or upon the respective parties hereto shall be deemed to have been duly given or made

 

(a) at the time of delivery, if delivered by hand,

 

(b) on dispatch, if given or made by telex(with confirmed answer-back),

 

(c) on the day after dispatch, if sent by telegram or cable,

 

(d) five(5) days after being mailed, if sent by airmail

 

to the party to which such notice, request, demand or other communication is required or permitted to be given or made under this Agreement addressed as follows :

 

(i) if to the Borrower at :

 

(Telex)

 

Attention :

 

(ii) if to the Bak at :

 

(Telex)

 

Attention :

 

or to such other address as either of the parties hereto may hereafter specify in writing to the other party. The paroles hereto declare (but without any legal obligation being created thereby) that whenever practicable they will use telex for the purposes of notices and other communications pursuant to this Agreement.

 

20.2 Each document, instrument, statement, report, notice or other communication delivered in connection with this Agreement shall be in English or where not in English shall be accompanied by a certified English translation which translation shall with respect to all documents of a contractual nature and all certificates and notices to be delivered hereunder shall be the governing version and upon which in all other cases the Bank shall be entitled to rely.

 

Article 21. Assignment and Blanches

 

21.1 This agreement shall be binding on and inure to the benefit of the Borrower, the Bank and their respective successors and permitted assigns, expect that the Borrower may not assign all or any part of its rights hereunder.

 

21.2 The Bank may assign the whole or any part of its rights and benefits under this Agreement to another bank or financial institution.

 

21.3 The Bank may enter into any agreement to permit another bank or financial institution to participate in all or part of the Bank's rights hereunder.

 

21.4 The Borrower agrees that In relation to any such assignment or participation as contemplated in this Clause 21 the Bank may disclose to the proposed assignee or participant any information relating to or obtained by the Bank pursuant to this Agreement of relating to the Facility.

 

21.5 The Bank reserves the right to make the Loan available from, and to receive the benefit of any payment due to it pursuant to this Agreement at, any of its branches but shall ensure, in exercising such right,that the Borrower would not become liable by reason of any law, regulation or other like circumstances existing at the time of such exercise for any additional amount otherwise payable under this Agreement, which would not have been payable if such right had not been exercised.

 

21.6 For the purposes of this Agreement the terms "Borrower", "Bank" and "Guarantor" shall where the context so admits include their respective successors and permitted assigns and transferees.

 

Article 22. Illegality

 

If at any time any provision of this Agreement is or become illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the laws of any other jurisdiction shall in any way be affected or impaired there by.

 

Article 23. Currency Indemnity

 

23.1 Any payment or Payments made to the Bank in a currency (the"Currency of Payment") other than the currency in which the payment should have been made pursuant to this Agreement (the "Currency of Obligation" ) in whatever circumstances and for whatever reason including (without limitation) the payment of damages pursuant to a judgment or order of a court or tribunal or any jurisdiction,shall only constitute a discharge to the Borrower to the extent of the Currency of Obligation amount which the Bank is able or would have been able, on the date or dates of receipt by it of such payment or payments in the Currency of Payment (or, in the case of any such date which is not a Business Day, on the next succeeding Business Day), to purchase in the foreign exchange market of its choice with the amount or amounts so received.

 

23.2 If the amount of the Currency of Obligation which the Bank or is so able to purchase falls short of the amount originally due to the Bank hereunder, the Borrower shall indemnify and hold the Bank harmless against any loss or damage arising as a result by paying to the Bank that amount in the Currency of Obligation certified by the Bank as necessary to so indemnify and hold harmless the Bank. This indemnity shall constitute a separate and independent obligation from the other obligations contained in this Agreement, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Bank from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due hereunder or under any such judgment or order. The certificate of the Bank as to the amount of any such loss or damage aforesaid (which shall be deemed to constitute a loss suffered by the Bank) shall, save for manifest error, be conclusive and binding on the Borrower.

 

Article 24. Governing Law and Jurisdiction

 

24.1 This Agreement shall be governed by and construed in accordance with the laws of England.

 

24.2 The Borrower agrees that any actions or proceedings with respect to this Agreement may be brought in the High Court of Justice of England, in any New York State or Federal Court sitting in New York City or the Tokyo District Court and, by execution and delivery of this Agreement, the Borrower hereby irrevocably and unconditionally submits for all purposes of or in connection with these presents to the nonexclusive jurisdiction of the High Court of Justice of England, such New York State or Federal Courts and the Tokyo District Court. Without prejudice to the generality of the foregoing and for the purpose of proceedings in the High Court of Justice of England, the Borrower hereby irrevocably designates, appoints and empowers ( ) at its address of ( ) for the purpose of acceptance of service of process on its behalf and as its agent to accept such service of process and for the purpose of proceedings in the State and Federal Courts of New York, the Borrower here by designates, appoints and empowers ( ) at its address of ( ) for the purpose of acceptance of process on its behalf and as its agent to accept such service of process and for the purpose of proceedings in the Tokyo District Court the Borrower hereby designates, appoints and empowers ( ) for the purpose of acceptance of service of process on its behalf and as its agent to accept such service of process and irrevocably designates ( ) an the address to receive such process. If any agent for service of process appointed pursuant to this Clause 24.2 shall cease or desire to cease or shall not be capable or qualified so to act or the designated address in Tokyo shall no longer fulfil such requirement the Borrower shall promptly irrevocably designate and appoint another agent or address, as the case may be, acceptable to the Bank. Failing any such designation and appointment within seven(7)days after written demand therefor by the Bank, the Bank shall be entitled to designate and appoint another agent or address, as the case may be, on behalf of the Borrower. For this purpose and by way of security, by execution and delivery of this Agreement the Borrower hereby irrevocably appoints the Bank as its attorney and on its behalf and in its name or in the name of the Bank to effect any such designation and appointment. The Borrower further agrees that any legal action or proceedings with respect to this Agreement may be brought in the courts of any country in which assets of the Borrower may be located from time to time.

 

Article 25. Waiver of Immunity

 

The Borrower hereby consent generally in respect of any legal action or proceedings arising out of or in connection with this Agreement, to the giving of any relief or the issue of any process in connection with such action or proceeding including, without limitation, the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such action or proceedings and to the extent that the Borrower may in any jurisdiction claim for itself, or any of its assets, immunity from suit,execution, attachment (whether in aid of execution, before judgment or otherwise) or any other legal process and to the extent that in any such jurisdiction there may be attributed to itself or its assets such immunity(whether or not claimed) the Borrower hereby irrevocably and unconditionally undertakes not to claim and hereby irrevocably and unconditionally waives such immunity to the fullest extent permitted by the laws of such jurisdiction.

 

Article 26. Authority to Combine Accounts

 

The Borrower hereby confirms the right of the Bank to combine and consolidate accounts and of set-off with respect to any credit balance standing upon any account of the Borrower with any branch of the Bank and in whatever currency in or towards satisfaction of any sum (whether of principal, interest or otherwise) not paid when due to the Bank from the Borrower hereunder and agrees that the Bank in the name of the Borrower or the Bank may do all such acts and execute all such documents as may be necessary or expedient for any such purpose.

 

Article 27. Survival of Obligations

 

All covenants, agreements, obligations, representations and warranties made herein or in connection herewith shall survive the execution and delivery of this Agreement, the making and repayment of the Loan and the payment of any other amounts payable hereunder.

 

Article 28. Counterparts

 

This Agreement may be executed in any number of counterparts and any single counterpart or set counterparts signed, in either case, by all the parties hereto shall be deemed to constitute a full and original agreement for all purposes.

 

 

 

IN WITNESS whereof this Agreement has been executed by the duly authorized representatives of the parties hereof on the day and year first above written.

 

 

 

 

 

ANNEX1

 

Notice of Drawing

 

To :

 

For the attention of :

 

U.S. $  Loan Agreement

 

dated, 1995.

 

We refer to the above Loan Agreement between ourselves, as Borrower and yourselves as lender. Terms defined in the Loan Agreement bear the same meaning herein.

 

We give you notice that we wish to borrow a Drawing in the principal amount of $  1995 or, if that is not a Business Day, on the next succeeding Business Day. Such amount should be credited to our account number at We confirm that no Event of Default and no condition, event or circumstance which, with the giving of notice or lapse of time or both or the fulfillment of any other condition, would become an Event of Default has occurred and is continuing or would result from the borrowing of such Drawing and that the representations and warranties contained in Clause 13.1 of the Loan Agreement remain true, correct and fully observed as if such had been made on and as of the date of this Notice of Drawing.

 

We wish to confirm that we intend to use the proceeds of the above Drawing in accordance with the provisions of Clause 2.3 of the Loan Agreement.

 

Dated, 1995.

 

For and on behalf of

 

By :

 

Authorized Signatory

 

 

 

ANNEX2

 

Form of Guarantee

 

To : (Date)

 

 

 

In order to induce (the "Bank") to make a credit Facility available to ( ) (the "Borrower" ) on the terms and conditions of and as contemplated in that certain Loan Agreement dated ( ) (as the same may be amended or supplemented from time to time, the "Agreement" ) between the Borrower and the Bank and in consideration thereof ( ) of ( )(the "Guarantor") hereby makes the following representations and warranties to the Bank and hereby covenants and agrees with the Bank as follows :

 

1. In this Guarantee, except where the context require otherwise or unless otherwise defined in this Guarantee, words and ｅxpressions defined in the Agreement and used in this Guarantee shall have the same meaning herein.

 

2. The Guarantor, as primary obliger and not merely as surety, hereby irrevocably, unconditionally and absolutely guarantees to the Bank and its successors and assigns the full and punctual payment of the principal of and interest on the Loan as and when the same shall become due(whether at meturity, by acceleration or otherwise) and the full, complete and prompt performance of all other liabilities and obligations of the Borrower incurred and to be incurred under the Agreement (all of which principal and interest and other liabilities and obligations are herein collectively called the "Guaranteed Obligations" ) and unconditionally undertakes that whenever the Borrower defaults or fails to pay any of the Guaranteed Obligations the Guarantor shall forthwith pay the same to the Bank upon first demand by the Bank, accompanied by a certificate executed by the Bank to the effect that any Guaranteed Obligations has or have become due and is or are unpaid, any such certificate, save for manifest error, being conclusive and binding on the Guarantor, and any such demand, save for manifest error, being conclusive evidence of the Guarantor's actual liability hereunder to such extent.

 

3. This Guarantee shall not be considered as satisfied by any intermediate payment or satisfaction of any part of the Guaranteed Obligations and shall be a continuing security binding upon the Guarantor until the Guaranteed Obligations and all other amounts payable hereunder have been discharged and satisfied in full provided that any discharge or satisfaction of the Guaranteed Obligations which shall, on the subsequent,bankruptcy, Insolvency or corporate reorganization of the Borrower beset aside or avoided under any laws relating to bankruptcy, insolvency or corporate re-organization, such discharge or satisfaction of the Guaranteed Obligations shall be deemed to be void and this Guarantee and the liability of the Guarantor hereunder shall continue to apply as if the Guaranteed Obligations had at all times remained owing by the Borrower and the Guarantor shall indemnify the Bank in respect thereof, All liabilities to which this Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon and this Guarantee shall be in addition to and not in substitution for, and shall not be prejudiced or affected by, any other security or guarantee which the Bank may at any time hold for any of the Guaranteed Obligations. No failure or delay on the part of the Bank in exercising any right, power or privilege hereunder or partial or single exercise thereof, shall constitute a waiver thereof. Except as expressly provided herein, no waiver of any rights hereunder and no modification or amendment of this Guarantee shall be deemed to be made by the Bank unless the same shall be in writing and duly signed on behalf( of the Bank; each such waiver (if any)shall apply only with respect to the specific instance involved and shall in no way impair the rights of the Bank or the obligations of the Guarantor to the Bank in any other respect at any other time.

 

4. The Bank may at any time and from time to time without the consent of, or notice to, the Guarantor, without incurring responsibility to the Guarantor, and without impairing or releasing the obligations of the Guarantor hereunder, upon or without any terms or conditions and in whole or in part (except that this Guarantee shall not extend to any increase in the principal amount of the Guaranteed Obligations) :

 

(a) change the manner, place or terms of, and/or change or extend the time of payment of, renew or alter, any of the Guaranteed Obligations, and security therefor, or any liability incurred directly or indirectly in respect thereof, and this Guarantee shall apply to the Guaranteed Obligations as so changed, extended, renewed or altered ;

 

(b) exercise or refrain from exercising any rights against the Borrower or any other person ( including the Guarantor) ;

 

(c) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) Incurred directly or indirectly in respect thereof of hereof :

 

(d) apply any sums by whomsoever ,paid or however realised to any liability or liabilities of the Borrower to the Bank regardless of what liability or liabilities of the Borrower remain unpaid :

 

(e) consent to or waive any breach of, any act, omission or default under the Agreement, or any of the instruments, documents or agreements referred to therm ; and/or

 

(f) subject to subparagraph (a) above, modify or amend in any manner any of the provisions of the Agreement or any of the instruments,documents or agreements (other than this Guarantee) referred to therein.

 

5. As a separate and independent stipulation and without prejudice to the other provisions contained herein, no question may arise involving the invalidity, irregularity or unenforceability of all or any part of the Guaranteed Obligations or of any security thereof shall affect, impair or be a defence to any claim under this Guarantee, and irrespective of the determination of such question this Guarantee is an unconditional and general obligation of the Guarantor and the Guarantor shall not be discharged nor shall its liability be affected by any act, thing, omission or means whatever whereby its liability would have been discharged if it had not been the principal debtor and the Guarantor undertakes to indemnity the Bank against all actions, costs, demands, losses or injury which it may suffer or incur as a result of any such act, thing, omission or means. The Bank shall not be required to seek to enforce the Agreement as a condition of enforcing this Guarantee nor shall any failure to seek to enforce the Agreement affect, impair or be a defense to this Guarantee.

 

6. If and to the extent that the Guarantor makes any payment to the Bank or to any other person pursuant to or in respect of this Guarantee, any claim which the Guarantor may have against the Borrower by reason there of shall be subject and subordinate to the prior payment in full of all the Guaranteed Obligations and the Guarantor will not without the prior written consent of the Bank exercise any legal rights or remedies of any kind which may accrue howsoever to it in respect of any such payment so long as any of the Guaranteed Obligations remain owing and outstanding and in the event of the insolvency, liquidation or bankruptcy of the Borrower the Guarantor will not until the Guaranteed Obligations have been bald and satisfied in full prove in competition with the Bank in respect of any moneys owing to the Guarantor by the Borrower on any account 7f will give to the Bank the benefit of any such proof. The Guarantor will not setoff against its liability to the Bank hereunder any sums standing to the credit of the Guarantor with the Bank.

 

7. The Guarantor's liability hereunder shall not be affected or determined by the Borrower entering into liquidation or other similar process or being bankrupt or being reorganized or doing or suffering any act which does or may result in liquidation, other similar process, bankruptcy, insolvency or reorganization and this Guarantees shall continue to be effective or shall be reinstated (as the case may be) if at any time any payment by the Borrower in respect of the Guaranteed Obligations must be returned by the Bank upon such liquidation, bankruptcy or insolvency or any reorganization of the Borrower or otherwise and any settlement or discharge between the Bank and the Guarantor shall be subject to the condition that no security or payment to the Bank by the Borrower or any other person shall be avoided or reduced by virtue of any laws relating to bankruptcy, liquidation or insolvency and if any such security or payment shall be so avoided or reduced the Bank shall be entitled to recover the value or amount thereof from the Guarantor subsequently as if no such settlement or discharge had occurred. Any money received by virtue of or in connection with this Guarantee may be placed to the crew it of a suspense account with a view to preserving the rights of the Bank to prove for the whole of its claims against the Borrower in the event of the insolvency, liquidation or bankruptcy of the Borrower.

 

8. The Guarantor hereby undertakes that it has not taken or receive, and that so long as any of the Guaranteed Obligations remain owing and outstanding, it will not take or receive any Security Interest from the Borrower in respect of the granting of this Guarantee.

 

9. The Guarantor covenants that all payments in satisfaction of its obligation under this Guarantee shall be made and applied in accordance with the provisions of Clause 8 of the Agreement and shall be made without set-off or counterclaim and free and clear of and without deduction for or on account of any present or future taxes, levies, imposts, duties,charges, fees, deductions or withholdings of any nature whatsoever(collectibely called "Taxes" ) now or hereafter imposed, levied, collected, withheld or assessed or otherwise unless the Guarantor is compelled by law to make payment subject to any of such Taxes. In that latter event the Guarantor shall at the same time pay to the Bank such additional amounts as may be necessary to ensure that the Bank receives a net amount in Dollars equal to the full a mount which it would have received had payment not been made subject to any of such Taxes, shall promptly account to the relevant authorities for the relevant amount of any of such Taxes so withheld or deducted and shall produce to the Bank on request such evidence as the Bank may require of such payment.

 

10. (a) Any payment or payments made to the Bank in a currency (the"Currency of Payment" ) other than the currency in which the payment should have been made pursuant to this Guarantee (the "Currency of Obligation" ) in whatever circumstances and for whatever reason including (without limitation) the payment of damages for breach of this Guarantee, shall only constitute a discharge to the Guarantor to the extent of the Currency of Obligation amount which the Bank is able or would have been able, on the date or dates of receipt by it of such payment or payments in the Currency of Payment (or, in the case of any such date which is not a Business Day, on the next succeeding Business Day), to purchase in the foreign exchange market of its choice with the amount or amounts so received.

 

(b) If the amount of the Currency of Obligation which the Bank is so able to purchase falls short of the amount originally due to the Bank hereunder, the Guarantor shall indemnify and hold the Bank harmless against any loss or damage arising as a result by paying to the Bank that amount In the Currency of Obligation certified by the Bank as necessary to so indemnify and hold harmless the Bank. This indemnity shall constitute a separate and independent obligation of the Guarantor from its other obligations contained in this Guarantee, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Bank from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due hereunder or under any such judgment or order. The certificate of the Bank as to the amount of any such loss or damage as aforesaid (which shall be deemed to constitute a loss suffered by the Bank) shall, save for manifesi error, be conclusive and binding on the Guarantor.

 

11. The Guarantor makes the following representations and warranties which shall survive the execution and delivery of this Guarantee and the making of the Loan:

 

(a) the Guarantor is a company duly organized and validly existing with good standing under the laws of ( ) and it has the power and authority to own it's aseets and carry on its business as it is now being conducted ;

 

(b) the Guarantor has the corporate power and authority to enter into and perform this Guarantee and it has taken all necessary action to authorize the execution, delivery and performance of this Guarantee in accordance with its terms ;

 

(c) this Guarantee constitutes an will continue to constitute the legal,valid and binding obligation of the Guarantor enforceable in accordance with its terms ;

 

(d) the obligations of the Guarantor under this Guarantee constitute direct, unconditional, unsecured and general obligations of the Guarantor, ranking at least pari passu with all its other outstanding unsecured and unsubordinated obligations and liabilities (including containment obligations and liabilities) from time to time outstanding, other than as preferred by Statute :

 

(e) the execution, delivery and performance of this Guarantee by the Guarantor will not exceed any power granted to it by or violate or conflict with or result in any breach of, in any respect, any provision of (i) any law or regulation or any order or decree of any governmental authority, agency or court or (ii) the constitutive documents of the Guarantor or (iii) any contract, indenture, dead of trust, Security Interest, agreement or other undertaking or instrument to which the Guarantor is a party or which is binding upon it or any of its assets,and does not and will not result in the imposition of any Security Interest on any of its assets pursuant to the provisions of any such contract, indenture, deed of trust, Security Interest, agreement or other or other undertaking ;

 

(f) any permission, order, consent, license, approval or authorization of any governmental authority, bureau or agency in ( ) or elsewhere required in connection with the execution, delivery or performance of this Guarantee, to ensure the legality, validity,enforceability or admissibility in evidence hereof has been obtained and is in full force and effect and a true copy thereof has been delivered to the Bank ;

 

(g) the Guarantor is not in breach of any Provision of law or governmental directive, guideline or policy statement and whether having the force of law or not, or any agreement to which it is a party or by which it may be bound, and no litigation, arbitration or administrative proceedings are presently current or pending or, to the knowledge of the Guarantor, threatended, which breach, litigation, arbitration or administrative proceedings, as the case may be, would be material in the context of this Guarantee and would have an adverse effect on the Guarantor or might impair the Guarantor's ability to perform its obligations hereunder ;

 

(h) (except for filing, registration and recording requirements which have already been fulfilled ) it is not necessary or advisable under the laws of ( ) to file, register or otherwise record this Guarantee or any other document relating hereto in any public office or else wherein order to ensure the validity, effectiveness or enforceability of this Guarantee ;

 

(i) there are no stamp taxes, taxes, withholdings, levies, registration taxes, duties or similar charges now due, or which under the present laws of ( ) could in the future become due, in connection with the execution, delivery or enforcement of this Guarantee or in connection with any payment to be made by the Guarantor pursuant hereto or in connection with the admissibility into evidence of this Guarantee (other than such stamp taxes or other similar duties or charges as have already been paid) ;

 

(j) copies of the audited accounts of the Guarantor for the year ending(date of latest available audited accounts) which have been delivered to the Bank were prepared in accordance with accounting principles and practices generally accepted in ( ) and consistently applied and give (in conjunction with the notes thereto) a true and fair view, having been with prepared due care and diligence, of (i) the financial condition of the Guarantor as at that date as of which they were prepared and (ii) the results of the operations of the Guarantor for the period to which they relate. As at the date to which such accounts relate, the Guarantor had no significant liabilities (contingent or otherwise) except those which are disclosed by or reserved against in such accounts. There has been no material adverse change In the financial position of the Guarantor from that set forth in such accounts ;

 

(k) all information and other data relating to the Guarantor given in writing the Bank in connection with the Agreement or this Guarantee is true and correct in all material respect and does not omit any information necessary to make such information and other data not misleading or incomplete and all facts concerning the business and affairs of the Guarantor which might reasonably be expected to be material for disclosure to a bank or financial institution proposing to lend moneys on the security of this Guarantee have disclosed to the Bank ;

 

(l) the Guarantor is subject to legal proceedings in ( ) and neither the Guarantor nor any of its properly or assets enjoys any right of sovereign or other immunity from legal proceedings or the execution of judgment or attachment or otherwise :

 

(m) the Guarantor's irrevocable and unconditional submission to the nonexclusive jurisdiction of the High Court of Justice of England, the State and Federal Courts in New York and the Tokyo District Court in terms of paragraph 15 and its waiver of immunity in terms of paragraph 16 are its legal, valid and binding obligations ;

 

(n) the choice of the laws of England to govern this Guarantee is under the laws of ( ) a proper valid and binding choice of law and will be recognised and applied by the courts of ( ) ;

 

(o) no Event of Default nor any condition, event or circumstance which with the giving of notice or lapse of time or both or the fulfillment of any other condition, would constitute an Event of Default has occurred ;

 

The representations and warranties contained In this paragraph 12 shall survive the execution of this Guarantee and shall be deemed to be given,made and repeated by the Guarantor on and as of each Drawdown Date and each Interest Payment Date with respect to the facts and circumstances existing at such time (provided that the reference to audited accounts of the Guarantor in subparagraph (j) shall be deemed to be a reference to the then latest accounts of the Guarantor delivered to the Bank pursuant to paragraph 12 (b)).

 

12. The Guarantor undertakes with the Bank that during the Availability Period and so long thereafter as it has any liability (contingent or actual) under this Guarantee it shall :

 

(a) obtain and promptly renew from time to time and comply with the terms of all consents, licenses, applovals and authorizations which may be required under any applicable law or regulation of ( ) to enable it to perform its obligations hereunder or for the validity and enforceability of this Guarantee ;

 

(b) deliver to the Bank, as soon as available (and in any event within ninety(90) days) after the end of each of its financial years ending after the date hereof, a copy of its profit and loss account and balance sheet for such financial year having ensured that the same were prepared either on the same baals as the accounts referred to in paragraph 11 (j) or, with the prior written consent of the Bank, prepared on some other basis acceptable to the Bank, and were prepared in accordance with accounting principles and practices generally accepted in ( ) and consistently applied and give (in conjunction with the notes thereto) a true and fair view of (i) its financial condition as at the date as of which they were prepared and (ii) the results of its operations for the period to which they relate, were audited by auditors acceptable to the Bank and were certified by its duly authorised officer as giving ( in conjunction with the notes thereto ) a true and fair view of its financial condition as at the end of such financial period and of the results of its operations during such financial period ,

 

(c) from time to time promptly upon request by the Bank, deliver to the Bank such other information as the Bank may reasonably require in the context of the Agreement, the Loan and for this Guarantee ;

 

(d) as soon as it becomes aware of the same, give written notice to the Bank of the occurrence of any Even of Default or any condition,event or circumstances which, with the giving of notice or lapse of time or both or the fulfillment of any other condition, would constitute an Event of Default ;

 

(e) ensure that its obligations under this Guarantee shall rank at least pari passu with all its other unsecured and unsubordinated obligations and liabilities (including contingent obligations and liabilities) from time to time outstanding, other than as preferred by Statute ; and

 

(f) except with the prior written consent of the Bank, create or have outstanding any Security Interest upon the whole or any part o( its undertaking, property, revenue or assets, present of future.

 

13. Any notice or demands given or made hereunder to the Guarantor shall be deemed to have been duly given or made :

 

(a) at the time of delivery , if delivered by hand,

 

(b) on dispatch, if given or made by telex (with confirmed answerback),

 

(c) on the day after dispatch, if sent by telegram or cable,

 

(d) five(5) days being mailed, if sent by airmail to the Guarantor :

 

 

 

(Telex : )

 

Attention :

 

or at such other address as the Guarantor may hereafter specify in writing to the Bank.

 

14. This Guarantee is binding upon the .Guarantor and its successors and shall inure to the benefit of and be enforceable by the Bank and its successors and assigns. The Guarantor may not assign any of its rights,duties or obligations hereunder.

 

15. This Guarantee shall be governed by and construed in accordance with the laws of England. The Guarantor agrees that any legal action or proceedings with respect to this Guarantee may be brought in the High Court of Justice of England, in any New York State of Federal Court sitting in New York City or the Tokyo District Court and, by execution and delivery of this Guarantee, the Guarantor hereby irrevocably and unconditionally submits for all purposes of or in connection with these presents to the nonexclusive jurisdiction of the High Court of Justice of England, such New York State or Federal Courts and the Tokyo District Court. Without prejudice to the generality of the foregoing and for the purpose of proceedings in the High Court of Justice of England, the Guarantor hereby irrevocably designates, appoints and empowers ( )at its address at ( ) for the purpose of acceptance of service of process on its behalf and as its agent to accept such service of process and for the purpose of proceedings in the State and Federal Courts of New York, the Guarantor hereby designates, appoints and empowers ( ) at its address at for the purpose of acceptance of service of process on its behalf and as its agent to accept such service of process and for the purpose of proceedings in the Tokyo District Court, the Guarantor hereby designates, appoints and empowers ( ) for the purpose of acceptance of service of process on its behalf and as its agent to accept such service of process and irrevocably designates ( ) as the address to receive such process. If at any time before the Guaranteed Obligations and all other amounts payable hereunder have been discharged and satisfied in full any agent for service of process appointed pursuant to this paragraph 15 shall cease or desire to cease or shall not be capable or qualified so to act or the designated address in Tokyo shall no longer fulfil such requirement the Guarantor shall promptly irrevocably designate and appoint another agent or address, as the case may be, acceptable to the Bank. Failing any such designation and appointment within seven(7) days a(leer written demand therefor by the Bank, the Bank shall be entitled to designate and appoint another agent or address, as the case may be, on behalf of the Guarantor. For this purpose and byway of security, by execution and delivery of this Guarantee, the Guarantor hereby irrevocably appoints the Bank as its attorney and on its behalf and in its name or in the name of the Bank to effect any such designation and appointment. The Guarantor further agrees that any legal action or proceedings with respect to this Guarantee may be bought in the court of any country in which assets of the Guarantor may be located from time to time.

 

16. The Guarantor hereby consents generally in respect of any legal action or proceedings arising out of or in connection with this Guarantee to the giving of any relief or the issue of any process in connection with such action or proceedings including, without limitation, the making,enforcement or execution against any property (irrespective of its use or intended use) of any order or judgment which may be made or given in such action or proceedings and to the extent that the Guarantor may in any jurisdiction claim, for itself or its assets immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process and to the extent that in any such jurisdiction there may be attributed to itself or its assets such immunity(whether or not claimed) the Guarantor hereby irrevocably and unconditionally agrees not to claim and hereby irrevocably and unconditionally waives such immunity to the fullest extent permitted by the laws of such jurisdiction.

 

 

 

IN WITNESS whereof, the Guarantor has caused this Guarantee to be executed and delivered by its duly authorised signatory on the

 

day of, 1995.

 

 

 

Annex 3

 

Form of Opinion of ( ) Legal Counsel to the Agent and the Banks

 

To :

 

Dear Sirs,

 

 

 

We have acted as your ( ) legal counsel in connection with (i) a US $ ( ) Loan Agreement (the "Agreement") dated

( ), 1995 and made between ( ) as Borrower and yourselves as lender and (ii) the Guarantee dated ( ), 1995

in your favour, given by the Guarantor, Terms defined in the Agreement shall have the same meaning herein. We have examined executed copies of the Agreement and the Guarantee and such other documents and the laws of ( ) as we have considered necessary or desirable to examine in order that we may give this opinion.

 

(a) the Borrower Is a company duly incorporated and validly existing with good standing under the laws of ( ) and has the power and authority to own assets and carry on its business as it is now being conducted ;

 

(b) the Guarantor is a company duly organized and validly existing with good standing under the laws of ( ) and it has the power and authority to own its assets and carry on its business as it is now being conducted ;

 

(c) the Borrower has the corporate power and authority to enter into and perform the Agreement and to borrow thereunder and it has taken all necessary action to authorize the borrowing of the Facility upon the terms and conditions of the Agreement and to authorize the execution, delivery and performance of the Agreement in accordance with its terms ;

 

(d) the Guarantor has the corporate power and authority to enter into and perform the Guarantee and it has taken all necessary action to authorize the execution, delivery and performance of the Guarantee in accordance with its terms ;

 

(e) the Agreement constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms :

 

(f) the Guarantee constitutes the legal, valid and binding obligations of Guarantor enforceable in accordance with its terms :

 

(g) the Loan and the obligations of the Borrower under the Agreement and the obligations of the Guarantor under the Guarantee constitute the direct, unconditional, unsecured and general obligations of the Borrower and the Guarantor, as the case may be, ranking at least pari passu with all its other outstanding unsecured and unsubordinated obligations all liabilities (including contingent obligations and liabilities) from time to time outstanding, other than as preferred by Statute :

 

(h) the execution, delivery and performance of the Agreement by the Borrower and the execution, delivery and performance of the Guarantee by the Guarantor, did not and will not exceed any power granted to it by or violate or conflict with or result in any breach of in any respect any provision of (i) any law or regulation or any order or decree of any governmental authority, agency or court or (ii) the constitutive documents of the Borrower ;

 

(i) any permission, order, consent, license, approval or authorization of any governmental authority, bureau or agency in ( ) or elsewhere required in connection with the execution, delivery or performance of the Agreement or the Guarantee to ensure the legality, validity, enforceability or admissibility in evidence thereof has been obtained and is in full (once and effect and a true copy thereof has been delivered to the Bank ;

 

 

 

(j) (except for filing, registration and recording requirements which have already been fulfilled) it is not necessary or advisable under the laws of ( ) to file, register or otherwise record the Agreement or the Guarantee or any other document relating thereto in any public office or elsewhere in order to ensure the validity, effectiveness,enforceability or admissibility in evidence hereof :

 

(k) there are no stamp taxes, taxes, withholdings, levies, registration taxes, duties or similar charges now due, or which under the present laws of ( ) could in the future become due in connection with the execution, delivery or enforcement of the Agreement or the Guarantee or in connection with any payment to be made pursuant thereto or in connection with the admissibility into evidence thereof (other than such stamp taxes or other similar duties or charges ans have already been paid) ;

 

(l) each of the Borrower and the Guarantor is subject to legal proceedings in ( ) and neither the Borrower not the Guarantor nor any of its property or assets enjoys any right of sovereign or other immunity from legal proceedings or the execution of judgment or attachment or otherwise ;

 

(m) the Borrower's irrevocable and unconditional submission to the nonexclusive jurisdiction of the High Court of Justice of England, the State and Federal Courts in New York and the Tokyo District Court in terms of Clause 24.2 of the Agreement and its waiver of immunity in terms of Clause 25 of the Agreement and the Guarantor's irrevocable and unconditional submission to the jurisdiction of the same courts in the terms of paragraph 15 of the Guarantee and its waiver of immunity in terms of paragraph 16 of the Guarantee, are the valid and binding obligations of the Borrower and the Guarantor, respectively and accordingly the courts of ( ) would recognise as valid and enforce any final and conclusive judgment of such courts which was obtained against the Borrower or the Guarantor ;

 

(n) the choice of the laws of England to govern the Agreement and the Guarantee are under the laws of ( ) proper, valid and binding choice of law and will be· recognised and applied by the courts of ( );

 

(o) the transactions contemplated by the Agreement and the Guarantee are not subject to any currency deposit requirements or any reserve requirements of whatsoever nature under the laws of ( ):

 

(p) under the laws of ( ) it is not necessary(i) in order to enable the Bank to enforce its rights under the Agreement or the Guarantee or (ii) by reason of the execution, delivery and performance of the Agreement or the Guarantee by the Bank that it should be licensed,qualified or otherwise entitled to carry on business in ( ); and

 

(q) the Bank is not and will not be deemed to be resident domiciled or canting on business in ( ) by reason only of the execution, delivery, performance and/or enforcement of the Agreement or the Guarantee.

 

 

 

(The foregoing opinion is subject to the following qualifications ; )

 

 

 

Annex 4

 

Form of Opinion of ( ) Legal Counsel to Borrower

 

To :, 1998

 

Dear Sirs,

 

We have acted as ( ) legal counsel to ( ) (the "Borrower" in connection with the US $ ( ) Loan Agreement (the "Agreement") dated ( ), 1995 and made between the Borrower and as lender. Terms defined in the Agreement shall have the Borrower and as lender. Terms defined in the Agreement shall have the same meaning herein. We have examined an executed copy of the Agreement and such other documents and laws of ( ) as we have considered necessary or desirable to examine in order that we may give this opinion.

 

(Subject the qualifications hereinafter set forth,) we are of the opinion that :

 

 

 

(a) the Borrower Is a company duly incorporated and validly existing with good standing under the laws of ( ) and has the power and authority to own its assets and carry on its business as it is now being conducted :

 

(b) the Borrower has the corporate power and authority to enter into and perform the Agreement and to borrow the thereunder and has taken all necessary action to authorize the borrowing of the Facility upon the terms and conditions of the Agreement and to authorize the execution, delivery and performance of the Agreement in accordance with its terms ;

 

(c) the Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms ;

 

(d) the Loan and the obligations of the Borrower under the Agreement constitute the direct, unconditional, unsecured and general obligations of the Borrower ranking at least pari passu with all its other outstanding unsecured and unsubordinated obligations and liabilities (including contingent obligations and liabilities) from time to time outstanding, other than as preferred by Statute ;

 

(e) the execution, delivery and performance of the Agreement by the Borrower did not and will not exceed any power granted to it by or violate or conflict with or result in any breach of in any respect any provision of (i) any law or regulation or any order or decree of any governmental authority, agency or court of (ii) the constitutive documents of the Borrower or (iii) to the best of our knowledge, information and belief, any contract, indenture, deed of trust Security Interest, agreement or other undertaking or instrument to which the Borrower is a party or which is binding upon it or any of its assets, and does not and will not result in the imposition of any Security Interest on any of its assets pursuant to the provisions of any such contract,indenture, deed of trust, Security Interest, agreement or other undertaking ;

 

(f) any permission, order, consent, license, approval or authorization of any governmental authority, bureau or agency in ( ) or elsewhere required in connection with the execution, delivery or performance of the Agreement to ensure the legality, validity, enforceability or admissibility in evidence thereof has been obtained and is in full force and effect and a true copy thereof has been delivered to the Bank ;

 

(g) to the best of our knowledge, information and belief, the Borrower is not in breach of any provision of law or governmental directive,guideline or policy statement and whether having force of law or not,or any agreement to which it is a party or by which it may be bound, and no litigation, arbitration or administrative proceedings, are presently current, pending or theratend, which breach. litigation, arbitration or administrative proceedings, as the ease may be, would be material in the context of the Agreement and would have an adverse effect on the Borrower or might impair the Borrower's ability to perform its obligation thereunder :

 

(h) (except for filing, registration and recording requirements which have already been fulfilled) it is not necessary or advisable under the laws of ( ) to file, register or otherwise record the Agreement or any other document relating thereto in any public office or elsewhere in order to ensure the validity, effectiveness, enforceability or admissibility in evidence of the Agreement ;

 

(i) there are no stamp taxes, taxes, withholdings, levies, registration taxes, duties or similar charges now due, or which under the present laws of ( ) could in the future become due in connection with the execution, delivery or enforcement of the Agreement or in connection with any payment to be made pursuant thereto or In connection with the admissibility into evidence thereof (other than such stamp taxes or other similar duties or charges as have already been paid) ;

 

(j) neither the execution nor the delivery of the Agreement, nor the performance of any of the transactions contemplated therein, nor the compliance with any of the terms and conditions thereof, will cause any limit or restrictions on the borrowings or chargings of the Borrower (whether imposed by statute, regulation, agreement or otherwise) to be exceeded or contravened ;

 

(k) the Borrower is subject to legal proceedings in ( ) and neither the Borrower nor any of its property or assets enjoys any right of sovereign or other immunity from legal proceedings or the execution of judgment or attachment or otherwise ;

 

(l) the Borrower's irrevocable and unconditional submission to the non-exclusive jurisdiction of the High Court of Justice of England, the State and Federal Courts in New York and the Tokyo District Court in terms of Clause 24.2 of the Agreement and its waiver of immunity in terms of Clause 25 of the Agreement are its legal, valid and binding obligations and accordingly the courts of ( ) would recognise as valid and enforce any final and conclusive judgment of such courts which was obtained against the Borrower ;

 

(m) the choice of the laws of England to govern the Agreement is under the Laws of ( ) a proper,valid and binding choice of law and will be recognised and applied by the courts of ( ) ,

 

(n) the tranactions contemplated by the Agreement are not subject to any currency deposit requirement or any reserve requirements of whatsoever nature under the laws of ( );

 

(o) under the laws ( ) it is not necessary (i) In order to enable the Bank to enforce its rights under the Agreement or (ii) by reason of the execution, delivery and performance of the Agreement by the Bank that it should be licensed, qualified or otherwise entitled to carryon business in ( ); and

 

(p) The Bank is not and will not be deemed to be resident, domiciled or carrying on business in ( ) by reason only of the execution,delivery, performance and/or enforcement of the Agreement.

 

(The foregoing opinion is subject to the following qualifications : )

 

 

 

Annex5

 

Form of Opinion of ( ) Legal Counsel to the Guarantor

 

To :

 

Dear Sirs,

 

We have acted as ( ) legal counsel to ( ) (the "Guarantor") in connection with (i) the US $ ( ) Loan Agreement (the "Agreement") dated ( ), 1995 and made between ( ) as Borrower ( ) and as lender and (ii) the Guarantee dated ( ), 1995 in favour of the Bank, given by the Guarantor (the "Guarantee"). Terms defined in the guarantee shall have the same meaning therein. We have examined an executed copy of the Guarantee and such other documents and the laws of ( ) as we have considered necessary or desirable to examine in order that we may give this opinion.

 

(Subject to the qualifications hereinafter set forth,) we are of the opinion that:

 

(a) the Guarantor Is a company duly organized and validly exiting with good standing under the Laws of ( ) and it has the power and authority to own its assets and carry on its business as it is now being conducted ;

 

(b) the Guarantor has the corporate power and authority to enter into and perform the Guarantee and it has taken all necessary action to authorize the execution, delivery and performance of the Guarantee in accordance with its terms ;

 

(c) the Guarantee constitutes the legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms ;

 

(d) the obligations of the Guarantor under the Guarantee constitute direct, unconditional, unsecured and general obligations of the Guarantor, ranking at least pari passu with all its other outstanding unsecured and unsubordinated obligations and liabilities (including contingent obligations and liabilities) from time to time outstanding, other than as preferred by Statute ;

 

(e) the execution, delivery and performance of the Guarantee by the Guarantor did not and will not exceed any power granted to it by or violate or conflict with or result in any breach of, in any respect, any provision of (i) any law or regulation or any order or decree of any governmental authority, agency or court or (ii) the constitutive documents of the Guarantor or (iii) to the best of our knowledge, information and belief, any contract, indenture, deed of trust, Security Interest, agreement or other undertaking or instrument to which the Guarantor is a party or which is binding upon it or any of its assets, and does not and will not and will not result in the imposition of any Security Interest on any of its assets pursuant to the provisions of any such contract, indenture, deed of trust, Security Interest, agreement or other undertaking ;

 

(f) any permission, order, consent, license, approval or authorization, of any governmental authority, bureau or agency in ( ) or elsewhere required in connection with the execution, delivery or performance of the Guarantee, to ensure the legality, validity, enforceability or admissibility in evidence thereof has been obtained and is in full force and effect and a true copy thereof has been delivered to the Bank ;

 

(g) to the best of our knowledge, information and belief, the Guarantor is not in breach of any provision of law or governmental directive,guideline or policy statement and whether having the force of law or not, or any agreement to which it is a party or by which it may be bound, and no litigation, arbitration or administrative proceedings are presently current, pending or theratened, which breach, litigation, arbitration or administrative proceedings, as the carte may be, would be material in the context of the Guarantee and would have an adverse effect on the Guarantor or might impair the Guarantor's ability to perform its obligations thereunder ;

 

(h) (except for filing, registration and recording requirements which have already been fulfilled) it is not necessary or advisable under the laws of ( ) to file, register or otherwise record the Guarantee or any other document relating thereto in any public office or elsewhere in order to ensure the validity, effectiveness or enforceability of the Guarantee :

 

(i) there are no stamp taxes, taxes, withholdings, levies, registration taxes, duties or similar charges now due, or which under the present laws of ( ) could in the future become due, in connection with the execution, delivery or enforcement of the Guarantee or in connection with any payment to be made by the Guarantor pursuant thereto or in connection with the admissibility into evidence of the Guarantee(other than such stamp taxes or other similar duties or charges as have already been paid) ;

 

(j) the Guarantor Is subject to legal proceedings in ( ) and neither the Guarantor nor any of its property or assets enjoys any right of sovereign or other immunity from legal proceedings or the execution of judgment or attachment or otherwise ;

 

(k) the Guarantor's irrevocable and unconditional submission to the nonexclusive jurisdiction of the High Court of Justice of England, the State and Federal Courts in New York and the Tokyo District Court in terms of paragraph 15 of the Guarantee and its waiver of immunity in terms of Paragraph 16 of the Guarantee are its legal,valid and binding obligations ;

 

(l) the choice of the laws of England to govern the Guarantee Is under the laws of ( ) a proper, valid and binding choice of law and will be recognised and applied by the courts of ( );

 

(m) under the laws of ( ) it is not necessary(i) in order to enable the Bank to enforce its rights under the Agreement or the Guarantee or (ii) by reason of the execution, delivery and performance of the Agreement or the Guarantee by the Bank that it should be licensed,qualified or otherwise entitled to carry on business in ( );and

 

(n) the Bank is 4 the execution, delivery, performance and/or enforcement of the Agreement or the Guarantee ;

 

(The foregoing opinion is subject to the following qualifications : )