* 이 보증서는 앞서 보인 대출 계약서에 따라 정해진 보증인이 대출 은행에 제출하여야 하는 것인데, 여 기에서는 이 보증서에 관한 설명은 생략하겠다.
THIS DEED is made the [ ] day of [ ], 1997 BETWEEN
(1) [ ] (the “Guarantor”); and
(2) [ ] (the “Agent”) as agent for and on behalf of the Beneficiaries.
WHEREAS
(A) By a facility agreement (the “Facility Agreement”) dated [ ], 1997 and made between [ ] (the “Borrower”), the Agent , [ ] and [ ] as arrangers, the financial institutions named therein as managers and the financial institutions named therein as banks (the
“Banks), the Banks have agreed to make available to the Borrower a term loan facility of US$[
]subject to the terms and conditions contained therein.
(B) It is a condition precedent to the availability of the Facility that the Guarantor enter into this Deed.
NOW IT IS HEREBY AGREED as follows:
1. Definitions
(A) Save as otherewise defined herein, terms defined in the Facility Agreement shall have the same meaning in this Deed.
(B) In this Deed:
“Beneficiaries” means the Managers, the Agent and the Banks.
(C) Any reference in this Deed to the “Agent” or any “Bank” shall be construed so as to include its and any subsequent successors, Transferees and assigns in accordance with their respective interests.
2. Guarantee and Indemnity
The Guarantor hereby irrecovaly and unconditionally:
(i) guarantees to the Beneficiaries the due and punctual payment of each and every sum or sums of money which the Borrower shall at any time be liable to pay to the Beneficiaries or any of them under or pursuant to the Facility Agreement and which shall not have been paid at the time demand is made hereunder and agrees to pay any such sum from time to time on the first demand by the Agent; and
(ii) agrees as a primary obligation and not as a surety to indemnify the Beneficiaries from time to time on demand by the Agent from and against any loss incurred by the Beneficiaries or any of them as a result of any of the obligations of the Borrower under or pursuant to the Facility Agreement being of becoming void, voidable, unenforceable or ineffective as against the Borrower for any reason whatsoever, whether or not known to the Beneficiaries or any of them or any other person the amount of such loss being the amount which the person or persons suffering it would otherwise have been entiled to recover from the Borrower.
3. Preservation of Right
(A) The obligations of the Guarantor herein contained shall be in addition to and independant of every other security which the Beneficiaries or any of them may at any time hold in respect of any of the Borrower’s obligations under the Facility Agreement.
(B) The obligations of the Guarantor herein contained shall constitute and be continuing obligations, notwithstanding any settlement of account or other matter or thing whatsoever and in particular (but without prejudice to the generality of the foregoing) shall not be considered satisfied by any intermediate repayment or satisfaction of all or any of the obligations of the Borrower under the Facility Agreement and shall constinue in full force and effect until the obligations of the Borrower under the Facility Agreement have been satisfied in full.
(C) Neither the security constituted by any Facility Document or the obligations of the Guarantor herein contained nor the rights, powers and remedies conferred upon the Agent, the Beneficiaries or other delegate thereof or any of them by any Facility Documents or by law shall be discharged, impaired or otherwise affected
by:-(i) the winding-up, dissolution, administration or reorganisation of the Borrower or any other person or any change in its status, fucntion, control or ownership;
(ii) any of the obligations of the Borrower or any other person under the Facility Agreement or under any other security taken in respect of the obligations of the Borrower under the Facility Agreement being or becoming illegal, invalid, unenforceable or ineffective in any respect;
(iii) time or other indulgence being granted or agreed to be granted to the Borrower or any other person in respect of its obligations under the Facility Agreement or under any such security;
(iv) any amendment to, or any variation, waiver or release of, any of the obligations of the Borrower or any other person under the Facility Agreement or under any such security;
(v) any failure to take, or fully to take, any security contemplated by the Facility Agreement or otherwise agreed to be take in respect of the Borrower’s obligations under the Facility Agreement; and
(vi) any other act, event or omission which, but for this Clause 3(C), might operate to discharge, impair or otherwise affect the security hereby constituted or any of the rights, powers or remedies conferred upon the Agent, the Beneficiaries or other delegate thereof or any of them by this Deed or by law.
(D) Any settlement or discharge between the Guarantor, the Agent, the Beneficiaries or other delegate thereof and any of them (the “Relevant Person(s)”) shall be conditional upon no security or payment to the Relevant Person(s) by the Guarantor or any other person on the Guarantor’s behalf being avoided or reduced by virtue of any provisions or enactments relationg to bankruptcy, insolvency orliquidation for the time being in force and, in the evnet of any such security or payment being so avoided or reduecd, the Relevant Person(s) shall be entitled to recover the value or amount of such security or pament form the Guarantor and from the security herevy provided by the Guarantor subsequently as if such settlement or discharge had not occured.
(E) Neither the Agent, the Beneficiaries or other delegate thereof and any of them shall be obliged before exercising any of the rights, powers or remedies conferred upon them by this Deed or by
law:-(i) to take any action or obtain judgement in any court against the Borrower;
(ii) to take or file any claim or proof in a winding-up or dissolution of the Borrower;
(iii) to enforce or seek to enforce any other security taken in respect of any of the obligations of the Borrower under the Facility Agreement.
(F) The Guarantor agrees that, so long as any amounts are or may be owed by the Borrower under the Facility Agreement or the Borrower is under any actual or contingent obligations thereunder, it shall not exercise any rights which it may at any time have by reason of performance by it of its obligations hereunder:
(i) to be indemnified by the Borrower: and/or
(ii) to claim any contribution from any other guarantor or surety of the Borrower’s obligations thereunder; and/or
(iii) to take the benefit (in which or in part and whether by way of subrogation or otherwise) of any rights of the Beneficiaies under the Facility Documents or of any other security taken pursaunt to, or in connection with, this Deed of the Facility Agreement by all or any of the Beneficiaries.
4. Taxes
(A) All payments to be made by the Guarantor to any person hereunder shall be made free and clear of and without deduction for or on account of tax unless the Guarantor is required to make such a payment subject to the deduction or withholding of tax, in which case the sum payable by the Guarantor in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of the required deduction or withholding, such person receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made or required to be made.
(B) Without prejudice to the provisions of Clause 4(A) if any person or the Agent on its behalf is required to make any payment on account of tax (not being a tax imposed on the net income of its Facility Office by the jurisdiction in which it is incorporated or in which its Facility Office is located) or otherwise on or in relation to any sum received or receivable hereunder from the Guarantor by such person or the Agent on its behalf (including, without limitation, any sum received or receivable undert this Clause 4) or any liability in respect of any such payment is asserted, imposed, levied or assessed against such person or the Agent on its behalf, the Guarantor shall, upon demand of the Agent, promptly indemnify such person against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith.
5. Tax Receipts
(A) If, at any time, the Guarantor is required by law to make any deduction or withholding from any sum payable by it hereunder (or if thereafter there is any change in the rates at which or the manner in which such deductions or withholdings are calculated), the Guarantor shall promptly notify the Agent.
(B) If the Guarantor makes any payment hereunder in respect of which it is required to make any deduction or withholding, it shall pay the full amount required to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Agent for each Bank, within thirty days after it has made such payment to the applicable authority, an original receipt (or a certified coyp thereof) issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld in respect of that Bank’s share of such payment.
6. Representations
(A) The Guarantor represents that:
(i) it is a corporation duly organised under the laws of Korea with power to enter into this Agreement and to exercise its rights and perform its obligations hereunder and all corporate and other action required to authorise its execution of this Deed and its performance of its obligations hereunder has been duly taken;
(ii) under the laws of the Republic of Korea as of the date of this Guarantee, it is not required to make any withholding or deduction (whether on account of tax or otherwise) from any payment it make hereunder; provided, however, that although there is no court precedent or other specific authority on point, under interpretations of the Corporate Tax Law now being considered by the Ministry of Finance and Economy of Korea, it may be required to make withholding for corporate tax and a resident surtax thereon from payment it may make hereunder;
(iii) under the laws of Korea in force at the date hereof, the claims of the Beneficiaries against the Guarantor under this Deed will rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred solely by mandatory provisions of applicable laws;
(iv) in any proceedings taken in Korea in relation to this Deed, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process;
(v) in any proceedings taken in Korea in relation to this Deed, the choice of English law as the governing law of this Deed and any judgement obtained in England will be recognised and enforced, provided that in proceedings in Korea (i) Korean law bearing upon the capacity of the Guarantor to enter into contracts, (ii) Korean laws, decrees and administrative regulations requiring governmental approvals, authorisations and consents for actions or contracts executed by the Guarantor and (iii) Korean law bearing upon the effectiveness as against third parties of the assignment of the Guarantee will be applied by the Korean courts, and provided further that for the enforcement in Korea of a judgment obtain in England (a) such judgment must be final and rendered by a court of competent jurisdiction, (b) the party against whom such judgment was awarded must have received service of process otherwise than by publication or reponded to the action without being served with process, (c) such judgment must be consistent with the public policy of Korea and (d) judgments of the courts of Korea must be accorded similar treatment under the laws of England;
(vi) all acts, conditions and things reqired to be done, fulfilled and performed in order (a) to enable it lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in this Deed, (b) to ensure that the obligations expressed to be assumed by it in this Deed are legal, valid and binding and (c) to make this Deed admissible in evidence in Korea have been done, fulfilled and performed;
(vii) under the laws of Korea in force at the date hereof, it is not necessary that this Deed be filed, recorded or enrolled with any court or other authority in such jurisdiction or that any stamp, registration or similar tax be paid on or in relation to this Deed; and
(viii) the obligations expressed to be assumed by it in this Deed are legal and valid obligations binding on it and enforceable in accordance with the terms hereof except to the extent limited by applicable bankruptcy, insolvency and other similar laws affecting creditor’s rights generally.
(B) The Guarantor further represents that:
(i) it has not taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatenedn against it for its winding-up, dissolution, administration or re-organisation or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues;
(ii) it is not in breach of or in default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which might have a material adverse effect on its business or financial condition;
(iii) no action or administrative proceeding of or before any ocurt or agency which might have a material adverse effect on its business or financial condition has been started or threatened;
(iv) the Original Financial Statements were prepared in accourdance with accounting principles generally accepted in Korea and consistently applied and give (in conjunction with the notes thereto) a true and fair view of its financial condition at the date as of which they were prepated and the results of its operations during the financial year then ended;
(v) sinse publication of the Original Financial Statements, there has been no material adverse change in its business or financial condition;
(vi) as at the date of which the Original Financial Statements were prepared it did not have any liabilities (contingent or otherwise) which were not disclosed thereby (or by the notes thereto) or reserved against therein nor any unrealised or anticipated losses arising from commitments entered into by it which were not so disclosed or reserved against;
(vii) all of the written information supplied by it to the Beneficiaries, in connection with any Facility Document is true, complete and accurate in all material respects and it is not aware of any material facts or circumstances that have not been disclosed to the Beneficiaries, and which might, if disclosed, adversely affect the decision of a person considering whether or not to provide finance to the Borrower or to provide such finance against the security of this Deed;
(viii) no encumbrance exists over all or any of its present or future revenues or assets except as disclosed to the Agent prior to the date of the Facility Agreement;
(ix) the execution of this Deed and its exercise of its rights and performance of its obligations hereunder will not result in the existence of not oblige it to cteate any encumbrance over all or any of its present or future revenues or assets;
(x) the execution by it of this Deed and its exercise of its rights and performance of its obligations hereunder do not and will not:
(a) conflict with any agreement, mortgage, bond or other instrument or treaty to which it is a party or which is binding upon it or any of its assets;
(b) conflict with its constructive documents and rules and regulations; or (c) conflict with any applicable law, regulation or official or judicial order;
(xi) the execution of this Deed constitutes, and its exercise of its rights and performance of its obligations hereunder will constitute, private and commercial acts done and performed for private and commercial purposes; and
(xii) the issued share capital of the Borrower is fully paid up.
7. Financial Information (A) The Guarantor shll:
(i) as soon as the same become available, but in any event within 180 days after the end of each of its financial years, deliver to the Agent in sufficient copies for the Banks its financial statements for such financial year; and
(ii) from time to time on the requeat of the Agent, furnish the Agent with such information about its business and financial conditioin as the Agent may reasonably require.
(B) The Guarantor shall ensure that:
(i) each set of financial statements delivered by it pursuant to Clause 7(A) is prepared on the samen basis as was used in the preparation of the Original Financial Statements and in accordance with accounting principles generally accepted in Korea and consistently applied;
(ii) each set of financial statements delivered by it pursuant to Clause 7(A) is certified by a duly authorised officer of the Guarantor as giving a true and fair view of its financial condition as at the end of the period to which those financial statements relate and of the results of its operations during such period; and
(iii) each set of financial statements delivered by it pursuant to paragragh (i) of Clause 7(A) has been audited by auditors acceptable to the Agent.
8. Covenants
(A) The Guarantor shall:
(i) obtain, comply with terms of and do all that is necessary to maitain in full force and effect all authorisations, approvals, licences and consents required in or by the laws and regulations of Korea to enable it lawfully to enter into and perform its obligations under this Deed or to ensure the legality, validity, enforceability or admissibility in evidence in Korea of this Deed;
(ii) maitain insurances on and in relation to its business and assets with reputable underwriters or insurance companies against such risks and to such extent as is usual for companies carrying on a business such as that carried on by it whose practice is no to self insure;
(iii) after the delivery of any Notice of Drawdown and before the proposed making of the Advance requested therein, notify the Agent of the occurrence of any event of which it is aware which results in or may reasonably be expected to result in any of the representations contained in Clause 6 being untrue at or before the time of the proposed making of the Advance;
(iv) promptly inform the Agent of the occurrence of any Event of Default or Potential Event of Default of which it is aware and, upon receipt of a written request to that effect from the Agent, confirm to the Agent that, save as previously notified to the Agent or as notified in such confirmatioin, no Event of Default or Potential Event of Default has occurred; and (v) ensure that at all times the claims of the Beneficiaries against it under this Deed rank at least
pari passu with claims of all its other unsecured creditors save those whose claims are preferred by any mandatory provisions of applicable laws.
(B) The Guarantor shall not, without the prior written consent of an Instructing Group:
(i) pay, make or declre any divided or other distribution in respect of any financial year until the aggregate amount available for distrigution to its shareholders in respect of such financial year has been determined and then only in an amount not exceeding twenty-five per cent. of the aggregate amount so available for distribution;
(ii) make any loans, grant any credit (save in the ordinary course of business) or give any
guarantee or indemnity (except as required hereby) to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of any obligation of any other person; or
(iii) (disregarding sales of stock in trade in the ordinary course of business) sell, lease (save in the ordinary course of business), transfer or otherwise dispose of, by one or more transactions or series of transactions (whether related or not), the whole or any part (the book value of which is thirty per cent. or more of the book value of the whole) of its revenues or its assets.
9. Judgement Currency
If any sum due from the Guarantor hereunder or under any order or judgment given or made in relation hereto has to be converted from the currency (the “first currency”) in which the same is payable hereunder or under such order or judgment into another currency (the “second currency”) for the purpose of (i) making or filing a claim or proof against the Guarantor, (ii) obtaining an order or judgment in any court or other tibunal or (iii) enforcing any order or judgment given or made in relation hereto, the Guarantor shall indemnify each of the persons to whom such sum is due against any loss suffered as a result of any discrepancy between (a) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (b) the rate or rates of exchange at which the Agent may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in partm of any such order, judgment, claim or proof.
10. Default Indemnity
The Guarantor shall indemnify each of the Beneficiaries against any loss or expense, including legal fees, which it may sustain or incur as a consequence of any default by it in the performance of any of the obligations expressed to be assumed by it herein
11. Certificate
A certificate of the Agent as to (i) any amount due and payable to it from the Borrower under the Facility Agreement but unpaid, (ii) the amount by which a sum payable hereunder is to be increased under Clause 4(A) hereof or (ii) the amount for the time being required to indemnify it or any Beneficiary against any such payment or liability as is mentioned in Clause 4(B) hereof shall be prima facie evidence in any legal proceedings arising out of or in connection with this Deed.
12. Payment
(A) On each date on which an amount is due from the Guarantor hereunder, the Guarantor shall make the same available to the Agent by payment in dollars and in same day funds (or in such other funds as may for the time being be customary in New York for the settlement in New York of international banking transactions in dollars) to the Agent’s account no. [대리 은행 계좌번호] in favour of [대리 은행명] with [계좌가 개설된 은행명], New York, USA.
(B) All payments by the Guarantor hereunder shall be made free and clear of and without deduction for or on account of any set-off or counterclaim.
13. Set-off
In addition to any general lien or similar right to which it may be entitled by operation of law, each Beneficiary shall have the right at any time and without notice to the Guarantor (as well before as after making any demand hereunder) to combine or consolidate all or any of the Guarantor’s then existing accounts with and liabilities to such Beneficiary and to set-off or transfer any sum or sums standing to the credit of any one or more of such accounts in or towards satisfaction of any of the liabilities of the Guarantor hereunder or on any other account or in any other respect. The liabilities referred to in this Clause may be actual, contingent, primary, collateral, several or joint liabilities, and the accounts, sums
and liabilities referred to in this Clase may be denominated in any currency.
14. Suspense Account
Any monies received or recoverd by the Beneficiary hereunder may at its discretion be credited to any suspense or impersonal account and may be held in that account for so long as it thinks fit pending their application at its discretion from time to time in or towards payment of sums from time to time falling due from the Borrower under the Facility Agreement.
15. Provisions Severable
Every provisions containded in this Deed shall be severable and distinct from every other such provision and if at any time any one or more of such provisions is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining such provisions shall not in any way be affected thereby.
16. Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any Beneficiary, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
17. Notices
The provisions of Claese 35 of the Facility Agreement shall apply mutais mutandis to this Deed.
18. Benefit of Deed
This Deed shall be binding upon and enure to the benefit of each party hereto and its successors, Transferees and assigns.
19. Assignment
The Agent shall have a full and unfettered right to assign the whole or any part of the benefit of this Deed to any successor Agent appointed pursuant to the terms of the Facility Agreement and any assignee shall have the same rights against the Guarantor as it would have had if it had been a perty hereto. The Agent shall be entitled to impart any information concerning this Deed and the Guarantor to any such assignee or other successor or any participant or proposed assignee, successor or participant provided that, in the event that such information is not publily available, it shall be made available on the basis that it is kept confidential.
20. Law
This Deed shall be governed by, and shall be construed in accordance with, English law.
21. Jurisdiction
The provisions of Clause 37 of the Facility Agreement shall apply mutatis mutandis to this Deed as if reference therein to the Borrower were reference to the Guarantor.
IN WITNESS WHTEREOF this Deed has been executed by the parties hereto and is intended to be and is hereby delivered on the day first above written.