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FACILITY AGREEMENT
THIS AGREEMENT is made at Pune and on this ___________ day of _____________
between:
Bajaj Finance Limited, a company incorporated under the provisions of the Companies
Act, 1956, having its registered office at Mumbai Pune Road, Akurdi, Pune - 411035 and
Corporate Office at 4th Floor, Off Pune - Ahmednagar Road, Viman Nagar, Pune411014 , acting in these presents through its branch office at the address mentioned
below its signature (hereinafter referred to as "Bajaj Finance" or “BFL”, which
expression shall, unless repugnant to the context, include its successors and assigns) of
the First Part; and
_____________________________ as detailed in the Annexure hereto (hereinafter
referred to as the “Borrower” or “Vendor” which expression shall, unless repugnant to
the context, include (i) in the case of a company/body corporate, its successors and
permitted assigns; (ii) in the case of a partnership of firm, any or each of the partners
and survivor(s) of them and the partners from time to time (both in their personal
capacity and as partners of the firm) and their respective heirs, legal representatives,
executors, administrators and permitted assigns, successors of the firm; (iii) in the case
of a proprietary concern, the proprietor(ess) (both in his/her personal capacity and as
proprietor(ess) of the concern) and his/her heirs, legal representatives, executors,
administrators and permitted assigns, successors of the concern; (iv) in the case of a
HUF, the Karta of the HUF and any or each of the members/ coparceners of
the HUF and the survivor(s) of them and their respective heirs, legal representatives,
executors, administrators and permitted assigns, successors; (v) in the case of an
individual, his/her heirs, legal representatives, executors, administrators and permitted
assigns; Reference to the “Borrower” shall include the Co-Borrower as detailed in the
Annexure hereto and in case there is more than one borrower/co-borrower, mean, as the
subject or context may permit, each of them or any one or more of them.) of the Second
Part; and
Bajaj Auto Limited, a company incorporated under the provisions of Companies Act,
1956 and having its registered office at Mumbai-Pune Road, Akurdi, Pune 411 035
(hereinafter referred to as "Manufacturer" or “BAL”, which expression shall, unless
repugnant to the context, include its successors and assigns) of the Third Part
A.
Interpretation
In this Agreement, unless the contrary intention appears:
(a)Words of any gender are deemed to include all other genders;
(b)Words using the singular or plural number also include the plural or singular number,
respectively;
(c) References to the word "include" or "including" shall be construed without limitation;
(d)A reference to an "amendment" includes a supplement, modification, notation,
replacement or re-enactment and "amended" is to be construed accordingly;
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(e) An "authorization" includes an authorization, consent, clearance, approval,
permission, resolution, license, exemption, filing and registration;
(f)"Law" includes any constitution, statute, law, rule, regulation, ordinance, judgment,
order, decree, authorization, or any published directive, guideline, requirement or
governmental restriction having the force of law, or any determination by, or
interpretation of any of the foregoing by any judicial authority, as amended from time to
time;
(g)A reference to a sub-clause or article of this agreement shall denote a reference to
such sub-clause or article as specified;
(h) The index to and the headings in this agreement are inserted for convenience of
reference only and are to be ignored in construing and interpreting this agreement;
(i)The words 'hereof', 'herein', and 'hereto' and words of similar import when used with
reference to a specific section or sub-clause in this agreement shall refer to such section
or sub-clause in this agreement and when used otherwise than in connection with
specific sections, sub-clauses shall refer to this agreement as a whole;
(j) The Schedules and Annexure hereto shall be deemed to be part of this Agreement as
though the provisions thereof were set out herein in.
WHEREAS
A. BAL is engaged in the manufacture and marketing of two wheelers and three
wheelers (herein after collectively referred to also as the "Goods") of various
models and variants. Over the years BAL has established a vast vendor network
comprising of vendors across the country and such vendors are supplying
material for manufacture of Goods to BAL or with consent of BAL supplying
material for manufacture of Goods to each other through such network. BFL is in
the business of providing financial assistance to various body corporates and
other persons;
B. The Vendor is one of the vendors of BAL and supplies Goods to BAL as and
when a request to this effect is made by BAL. In consideration for purchase of
Goods by BAL, BAL pays to the Vendor the sale price of the Goods after a pre
fixed credit period and therefore, BAL maintains a credit line for the Vendor.
C. BFL has , at the request of the Vendor, agreed to extend term loan facility upto a
maximum principal amount of INR _________________/- (Rupees
_________________________________) (the “Facility”) to the Vendor BFL for
sanction of certain finance facilities for the purpose as mentioned in First
Schedule (“Purpose”).
D. The Vendor has agreed to authorize BAL to pay to BFL any monies lying to the
credit of the Vendor from the account of the Vendor as maintained by BAL. The
Parties are now desirous of recording the details of this Facility in writing as
appearing hereinafter.
.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. Principal Conditions of the Facility
a. Subject to the other terms and conditions herein contained, BFL hereby agrees to
grant the Facility to the Borrower.
b. The Borrower shall utilize the Facility only for the Purpose or for such other purpose
as may be expressly agreed by BFL in writing.
c. BFL may disburse the amounts under the Facility to the Borrower in one lump sum or
in such installments as BFL may deem fit in its sole and absolute discretion.
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2. Repayment and Interest
a. The Borrower agrees that the Facility shall be repayable in terms of the Second
Schedule / on demand / as may be intimated by BFL, from time to time, in its sole and
absolute discretion and that BFL can, at any time, in its discretion, cancel the Facility
without prior notice to the Borrower and revise the repayment schedule in the Second
Schedule in its sole and absolute discretion. The Borrower agrees and undertakes to
forthwith issue fresh PDC’s / ECS instruction to BFL in the event of any revision in the
repayment schedule.
b. The Borrower shall be liable to pay interest on the Facility from the date of
disbursement of the Facility at the rates specified in the First Schedule hereto.
c. The Borrower shall repay the Facility along with the charges/interest (on reducing
balance rate) in installments (“Installments”) in the manner and within the term as
specified in the Second Schedule or as may be intimated by BFL from time to time. The
Borrower confirms having perused, understood and agreed to BFL’s method of
calculating interest on reducing balance rate and Installments as specified in the Second
Schedule.
d. The Borrower shall, in addition, pay and/or reimburse to BFL, as the case may be,
interest-tax and any other tax or other levy as may be levied on or in respect of the
interest payments under these presents.
e. In the event of the Borrower committing a default in the payment of any sum payable
hereunder, whether by way of repayment of the outstanding balance of the Facility or by
way of payment of any Installment of interest or any other payment due and payable by
the Borrower hereunder or the Borrower committing any breach of any other conditions
of this Agreement or under any other instrument in respect of the Facility, the Borrower
shall, in respect of the outstanding amount under/in relation to Facility and in respect of
the installment of interest or other amount, pay by way of liquidated damages additional
interest at the rate as specified in the point no. B of the Second Schedule hereto with
monthly rests, from the date of default till the date of payment. The payment of additional
interest shall not absolve the Borrower of the other obligations in respect of such default
or affect the rights of BFL in respect of the default.
f. Notwithstanding anything to the contrary herein contained, BFL shall be entitled to
increase the rates of interest after giving prior notice to the Borrower, subject to such
increase not being contrary to the directives, if any, issued by the Reserve Bank of India
from time to time.
g. The acceptance by BFL of any payment which is less than payment in full of all the
amounts due and owing at such time shall not constitute a waiver of BFL’s right to
receive payment in full at such time or at any other prior or subsequent time.
h. The Borrower may prepay the entire amount of the Facility by giving minimum 10
days notice in writing of the Borrower's intention to prepay. BFL will be entitled to levy a
prepayment charge at the rate stipulated in the Second Schedule or the rate that BFL
charges on such prepayment on the date of such prepayment, whichever is higher, on
the amount so prepaid. The prepayment shall take effect only when the cheques /
demand drafts have been cleared. Notwithstanding anything contrary or otherwise
contained herein, BFL shall give notice to the Borrower of any change in the terms and
conditions of the prepayment and the prepayment charges.
i. The Borrower shall provide such Securities for the purpose of securing the dues
under/in relation to the Facility, as more particularly described in the Second Schedule
hereto.
j. The Borrower/s hereby confirms and assures that:
i.
the Borrower will give post dated cheques (“PDCs”) in favor of BFL for
payment/repayment of all the amounts due to BFL under the Facility
including but not limited to the interest payment installments towards the
Facility. The Borrower(s) hereby unconditionally and irrevocably,
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covenants that the post dated cheques given by the Borrower(s) will be
valid as from the respective date of such cheques and that at any point of
time the Borrower(s) shall not claim that they are invalid due to any reason
whatsoever. The Borrower(s) further confirms that the Borrower shall
ensure availability of funds in the account in respect of which such PDCs
have been drawn and that the Borrower(s) will not at any time close the
said account and/or issue any notice instructing BFL not to present any of
such cheques for encashment or instruct the bank on which the PDCs are
drawn to stop payment on any of such cheques. The Borrower(s) shall be
entitled to replace the cheques and/or issue fresh cheques on payment of
swapping charges as mentioned in the Second Schedule to BFL; Or
ii.
k.
The Borrower shall give Electronic Clearing Mandate (E.C.S) / any other
electronic or other clearing mandate in favor of BFL for payment/
repayment of all the amounts due to BFL under the Facility and this
Agreement including but not limited to the interest Installments towards the
Facility. The Borrower(s) hereby unconditionally and irrevocably, covenants
that the E.C.S. / any other electronic or other clearing mandate will be valid
as from the respective date of such E.C.S. / any other electronic or other
clearing mandate and that at any point of time the Borrower(s) shall not
claim that they are invalid due to any reason whatsoever. The Borrower(s)
further confirms that the Borrower shall ensure availability of funds in the
account in respect of which such E.C.S. / any other electronic or other
clearing mandate have been drawn and that the Borrower(s) will not at any
time close the said account and /or issue any notice instructing BFL not to
present any of such E.C.S. / any other electronic or other clearing mandate
for encashment or instruct the bank on which such E.C.S. / any other
electronic or other clearing mandate has been drawn to stop payment on
any of such E.C.S. / any other electronic or other clearing mandate.. The
Borrower(s) shall be entitled to replace the E.C.S. / any other electronic or
other clearing mandate and issue fresh E.C.S. / any other electronic or
other clearing mandate only on payment of swapping charges as
mentioned in the Second Schedule to BFL.
(i). If any cheque given by the Borrower to BFL is dishonored for any reason
whatsoever, then without prejudice to BFL’s other rights (including but not limited to
those under Chapter XVII of the Negotiable Instruments Act, 1881) for every cheque
which is dishonoured, the Borrower shall be liable to pay to BFL a sum as specified
in the Second Schedule as BFL’s charge for the dishonour of the cheque on its first
presentation and a further sum of equal amount on every occasion when the
cheque is dishonoured on its second or subsequent presentation.
(ii). If any E.C.S. / any other electronic or other clearing mandate given by the
Borrower to BFL is dishonored for any reason whatsoever, then without prejudice to
BFL’s other rights (including but not limited to those provisions of Section 25 (1) of
Payment Of Settlement System Act, 2007) for every E.C.S. / any other electronic or
other clearing mandate which is dishonored, the Borrower shall be liable to pay to
BFL a sum as specified in the Second Schedule as BFL’s charge for each
dishonour of E.C.S. / any other electronic or other clearing mandate.
l. The Borrower shall also be liable to pay certain charges as mentioned in the Second
Schedule for representation of the dishonoured cheque on such occasion.
m. The Borrower shall pay to BFL the sum specified in the Second Schedule as nonrefundable service charges.
n. All sums payable by the Borrower to BFL shall be paid without any deductions
whatsoever at such place as BFL may specify and shall be so paid so as to enable BFL
to realize the sum on or before the due date. Credits for payments will be given only
after realization.
o. On dishonour of any of the PDCs/E.C.S. given by the Borrower to BFL towards
payment/repayment under/in relation to the Facility, BFL in due course of time will inform
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to BAL and the Borrower and request them to make the payment of the amount due
under/in relation to the Facility.
p. Without prejudice to any of the terms and conditions contained herein the Borrower.
further agrees that, if any of the PDCs / E.C.S are not honoured for any reason
whatsoever for the repayment of the dues under/in relation to the Facility, then and in
that event, the Borrower irrevocably and unconditionally authorizes and requests BAL to
deduct the amount payable by the Borrower to BFL under/in relation to the Facility from
the amount standing credit in the Borrower’s vendor account as mentioned in the First
Schedule hereunder (the “Vendor Account”) with BAL. Further, in case there is no
sufficient balance in the Vendor Account the aforesaid amount may be recovered by
BAL directly from any of the vendors of the Borrower whose name(s) is/are listed in
Annexure – I hereto and amount so deducted by BAL will be paid to BFL by BAL
under/in relation to the Facility.
q. BFL shall appropriate amount so received from BAL towards the payment/repayment
of the amounts due under/in relation to the Facility and under this Agreement.
r. The obligations of the Borrower hereunder with reference of BFL shall always be
construed as those of principal debtor.
s. The Borrower undertakes not to revoke the supply arrangement with BAL or any part
thereof except with the prior written consent of BFL. Further, BAL undertakes to promptly
inform BFL of its intention to revoke the supply arrangement with the Vendor.
3. Representations, Warranties and Undertakings of the Borrower
The Borrower hereby represents, warrants, acknowledges, covenants and undertakes
as follows:
a.
The Borrower hereby declares that the Borrower is aware that BFL has agreed to
grant the Facility based on the representations made by the Borrower from time to time
and believing all of them to be true and correct and that there have not been any
material changes therein which may affect the said representations since they were
made by the Borrower.
b. It is duly constituted and validly existing under the laws of India and that it has the
power and authority to own its property and assets and carry on its business as it is now
being conducted;
c. It is authorised to enter into this Agreement and nothing in law or in any other
agreement prohibits it from entering into this Agreement or from performing any of its
obligations hereunder;
d. It shall promptly intimate BFL about any change in its constitution;
e. It does not have any litigation and/or arbitration and/or legal proceedings pending or
threatened against or by BFL or any of its affiliates nor does it have any other legal
proceeding pending or threatened which might affect any of the obligations of the
Borrower under this Agreement;
f. That notwithstanding anything stated herein, BFL may, in its sole and absolute
discretion and without assigning any reason, not disburse the Facility or any part thereof
and BFL shall not be responsible or liable for any cost, loss, damage or expenses or
other consequence caused by reason of such non-disbursement.
g. The Borrower undertakes to BFL that the Borrower will.
i. carry on its business efficiently and secure all necessary consents as may be
required by law and keep such consents in force and ensure that no breach of
any provision of law is caused,
ii. furnish verified statements in regard to the Borrower's business as may be
required from time to time in such form and manner as may be specified by BFL
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and, if so required by BFL, have such statements certified by the Borrower's
auditors.
h. The Borrower shall do all such things and execute all such writings as BFL may
require from time to time for duly or more perfectly securing the repayment of the
Facility.
i. BFL shall have a permanent lien and right of set off on all monies, securities, deposits
and other assets and properties belonging to the Borrower or standing to the Borrower’s
credit (whether singly or jointly with any other person/s) with BFL or any of its group
companies. In this regard the Borrower irrevocably authorizes BFL to intimate such
companies and banks with whom the Borrower has an account to adjust the amount
lying to the credit of the Borrower's account with the companies against all the dues
payable by the Borrower by exercising the right of set-off. In this regard any discharge
given by BFL to such companies shall be valid and binding on the Borrower.
j. Any statement of account furnished by BFL shall be accepted by and be binding on the
Borrower and shall be conclusive proof of the correctness of the amounts mentioned
therein.
k. The Borrower shall indemnify and keep indemnified BFL against all claims, costs,
losses and expenses that may be incurred by BFL by reason of any act or default on the
part of the Borrower.
l. The obligation of BFL to make each disbursement under the Facility shall be subject to
the condition that:
a)
b)
c)
d)
e)
f)
g)
m.
The Borrower meets BFL’s requirement of creditworthiness. BFL shall be entitled
to make or cause to be made inquiries of such nature as BFL may deem fit for
the creditworthiness of the Borrower. BFL shall be further entitled to call for such
credentials from the Borrower as may be required to prove the creditworthiness
of the Borrower.
No Events of Default and no event which, with the lapse of time or notice and
lapse of time as specified herein would become an Event of Default, shall have
happened and/or be continuing.
The Borrower shall have satisfied BFL at the time of disbursement / requesting
for disbursement that the same is required by the Borrower for the Purpose or
such other purpose as may be agreed by BFL in writing.
No extraordinary circumstances shall have occurred which shall make it
improbable for the purpose for which the Facility is provided to be carried out
and/or for the Borrower to fulfill its obligations under this Agreement.
BFL shall be entitled to call upon the Borrower and the Borrower shall be liable to
furnish to BFL such security as decided by BFL.
The Borrower shall procure and provide to BFL all the documents as may be
reasonably required by BFL including without limitation copy of the constitutional
documents of the Borrower and the Guarantors, certified true copy of the board
resolutions/the authority letters/powers of attorney as the case may be in the
form and substance acceptable to BFL.
The Borrower shall procure the guarantee of the guarantors as mentioned in the
Third Schedule (the “Guarantors”) in respect of the Facility in the form and
substance acceptable to BFL.
The Borrower hereby absolutely and unconditionally indemnifies and agrees to keep
BAL and BFL indemnified, saved and harmless at all times, against all claims,
demands, rights, actions, suits and proceedings of whatsoever kind or nature made,
taken, by any person or party and against all and any losses, damages, costs, charges,
expenses and liability of any kind or nature whatsoever which BAL and/or BFL may
suffer sustain, incur, or be exposed to in respect of or in relation to the Facility and/or
performance of their respective obligations or in exercise of their rights under this
Agreement..
n. The Borrower hereby agrees and undertakes that:
i.
The Borrower shall prior to the date of first disbursement under the Facility deliver
to BFL the duly executed security documents creating the Security (as mentioned
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in the Second Schedule) in favour of BFL, in the form and substance acceptable
to BFL.
ii.
The Borrower shall complete the perfection of the Security, including without
limitation filing of charges with the registrar of companies having appropriate
jurisdiction and obtaining no objection certificates from the existing chargeholders
(if any) prior to the date of fist disbursement under the Facility, in the form and
substance acceptable to BFL..
iii.
The Borrower shall furnish to BFL, any other document / evidence / proof as may
be required by BFL from time to time, in the form and substance acceptable to
BFL.
iv.
Furnish acknowledged copy of application to Department of Income Tax for
procuring certificate (“NOC”) under Section 281(1)(ii) of the Income Tax Act,
1961
o. The Borrower shall comply with and fulfill all the Conditions Precedent (as mentioned
in the Second Schedule) and financial covenants (as laid down in the Fourth Schedule).
p. The Borrower undertakes that BAL shall not be liable to the Borrower in any manner
whatsoever for actions taken in pursuance of this Agreement;
q. The Borrower agrees to procure the NOC under Section 281(1)(ii) of the Income Tax
Act, 1961 within 15 days from the date of first disbursement.
r. The Borrower hereby covenants with BFL that the Borrower shall apprise BFL of the
occurrence or likely occurrence of any event which is likely to affect the capacity of the
Borrower to repay the Facility or any monies under/in relation to the Facility to BFL.
s. The Borrower undertakes not to take any action inconsistent with or prejudicial to
these rights of BFL.
t. The Borrower agrees to accept BFL's accounts as sufficient evidence of the amount
received on sale/realization and of all charges and expenses incurred by BFL.
u. The Borrower confirms that BFL or any Receiver that BFL appoints will not be liable
for any loss or damage the Borrower may suffer if BFL exercises any of its rights and
powers under law or the memorandum of hypothecation executed by the Borrower in
favour of BFL (“Memorandum of Hypothecation”).
v. The Borrower shall pay the shortfall or deficiency, if the net sum realized by such
sale/assignment is insufficient to pay the dues secured by the Memorandum of
Hypothecation.
w. If any surplus remains with BFL after payment of the dues secured by the
Memorandum of Hypothecation, BFL will apply it in payment or liquidation of any other
moneys due from the Borrower to BFL, whether solely or jointly with any other person.
x. BFL shall be at liberty to apply any other moneys in the hands of BFL standing to the
Borrower's credit or belonging to the Borrower in or towards the payment of the
balances, provided that nothing herein contained shall in any manner prejudice or arrect
the remedy of BFL against the Borrower personally.
4. Events of Default
a. The Borrower shall be deemed to have committed an act of default on the happening
of any one or more of the following events, namely:
i. If the Borrower fails to pay any monies payable hereunder on the dates and in the
manner stipulated in this Agreement;
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ii. the Borrower committing a default in respect of any of the other obligations of the
Borrower under this Agreement or any other agreement with BFL or under any other
facility provided by BFL or any other bank or financial institution to the Borrower.
iii. the Borrower utilising the Facility or any part thereof for a purpose other than as
mentioned herein;
iv. occurrence of any event which is likely to prejudicially affect the Borrower's business,
including but not limited to industrial action, steps taken by authorities for recovery of
statutory dues etc;
v. institution of any legal proceedings against the Borrower by any person making a
claim for money against the Borrower including without limitation in respect of any
guarantee given by the Borrower;
vi. a notice of insolvency or winding up is served on the Borrower or if the Borrower
becomes bankrupt or any such proceeding is initiated or if a resolution is passed for the
same or if the Borrower suspends payments to any of the creditors or threatens to do so,
or if any petition of bankruptcy or winding up is filed by or against the Borrower;
vii. a receiver is appointed over the whole or any part of the property of the Borrower;
viii. any order of attachment, distress, execution or other similar process is levied on any
of the Borrower' properties / assets and/or upon any security provided to BFL in relation
to the Facility;
ix. the Borrower ceases or threatens to cease carrying on its business or any part
thereof;
x. if there is a substantial change in the shareholding pattern of the Borrower or in the
management/control of the Borrower;
xi. any representation, warranty, undertaking and/or covenant under this Agreement is
breached or is or becomes false or untrue, misleading or otherwise incorrect.
xii. if the Borrower or any of the Guarantors defaults in discharging its/their liability, under
any other agreement or other writing between the Borrower / Guarantor and BFL, or
under any other agreement or writing of indebtedness of the Borrower/Guarantor, or in
the performance of any covenant, term or undertaking thereunder, or any indebtedness
of the Borrower/Guarantor not being paid when due or any creditor of the
Borrower/Guarantor becoming entitled to declare any indebtedness due and payable
prior to the date on which it would otherwise have become due or any guarantee or
indemnity or collateral given or other support agreement entered into by the
Borrower/Guarantor not being honored when due and called upon;
xiii .
The Borrower or any Guarantor is unable generally to pay its debts as they fall
due and/or commences negotiations with any one or more of its creditors with a view to
the general readjustment or rescheduling, in the light of financial difficulties or in
contemplation of any default, event of default (however described) or potential events of
default under any agreement relating to the same (howsoever described), of any
indebtedness, and/or makes a general assignment for the benefit of or a composition
with its creditors and/or admits or is ordered to pay any liability and such liability is not
paid when due (provided that for the avoidance of doubt any reference in this SubClause to any indebtedness shall not include any indebtedness which is being bona fide
disputed and in respect of which no court order has been made against the
Borrower/Guarantor to pay such indebtedness;
xiv.
There exists any circumstances which in the sole opinion of BFL may jeopardize
any of the rights and/or interests of BFL.
xv. any litigation, arbitration, investigative, regulatory or administrative proceeding /
action is current, pending or threatened against the Borrower or any of the Guarantors or
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any other event occurs, which BFL determines in its absolute discretion has (or might, if
adversely determined, have) a material adverse effect on:
(a)
the condition (financial or otherwise), assets, operations, prospects or
business of the Borrower or any of the Guarantors; or
(b)
the ability of the Borrower or any Guarantor to comply with its
obligations under this Agreement and/or any other document in relation to the
Facility; or
(c) the validity, legality or enforceability of, or the rights or remedies of BFL
under this Agreement and/or any other document in relation to the Facility; or
(d)
the validity, legality or enforceability of the Security or on the priority or
ranking of the Security;
xvi. to the extent that Security has been provided by any person other than the
Borrower, any of the events set out in Clauses 4 (a) (i) to 4 (a) (xv) above occur in
relation to such third party.
xvii.
if there is any deterioration or impairment of any securities or any part thereof or
any decline or depreciation in the value thereof (whether actual or reasonably
anticipated), which causes the securities or any part thereof, in the judgment of BFL to
become unsatisfactory as to character or value;
xviii.
the securities (if any) created ceases to enure to the benefit of BFL;
xix.
if it is certified by a firm of accountants appointed by BFL (which BFL is entitled
and hereby authorised to so appoint at any time) that the liabilities of the Borrower
exceed the Borrower’s assets or that the Borrower is carrying on a business at a loss;
xx.
there is a default, event of default or other similar condition or event (however
described), or a potential event of default which with the lapse of time or giving of notice,
may become an event of default, under one or more agreements or instruments entered
between (i) BFL and the Borrower, or (ii) BFL and any of the Borrower’s
affiliates/associated company(ies); or (iii) the Borrower and any of its lenders; or (iv) the
Borrower’s affiliates/associated company(ies) with any of their lenders; or (v) Borrower
and any of BFL’s affiliates/ associated companies including but not limited to BAL.
xxi.
if a cross default as below occurs:
(a)
Any debt of the Borrower is not paid when due nor within any originally applicable
grace period;
Any event of default or a potential event of default (however described) which
with the lapse of time or giving of notice may become an event of default occurs
under any contract or document relating to any debt;
Any commitment for any debt of the Borrower is cancelled or suspended by a
creditor as a result of an event of default (however described);
Any creditor of the Borrower becomes entitled to declare any debt due and
payable prior to its specified maturity as a result of an event of default (however
described); or
Any encumbrance over any assets of the Borrower to secure any other debt
becomes enforceable.
(b)
(c)
(d)
(e)
xxii. In the event the Borrower fails to pay to BFL any monies due under this Agreement
and BAL pays such sums in terms of this Agreement.
xxiii. If the Borrower fails to file form 8 with the ROC within 30 days from the date of
creation of charge or before the date of first disbursement, whichever is earlier.
b.
Consequences of an Event of Default
On the happening of any of the Events of Default, the Lender may after giving 7 days
notice in writing to the Borrower take one or more of the following steps:
Page 9 of 16
c.
(i)
Accelerate/recall the repayment of the entire outstanding Facility along
with interest due and all other monies due to the Lender;
(ii)
Suspend/ Cancel the undisbursed Facility;
(iii)
to enforce any/all security/ies provided to the Lender in terms of this
Agreement and the other related documents; and/or
(iv)
to take possession of/sell/dispose/transfer assets over which security (if
any) has been created in favour of the Lender;
(v)
to exercise and enforce all rights and remedies available to the Lender
under this Agreement and/or the other Transaction Documents or in law;
(vi)
The Lender shall, without prejudice to any of the rights and remedies
specified hereinabove, be entitled to review the management set up or
organisation of the Borrower and to require the Borrower to restructure it
as may be considered necessary by the Lender, including the formation of
management committees with such powers and functions as may be
considered suitable by the Lender. The Borrower shall promptly comply
with all such requirements of the Lender.
All expenses incurred by the Lender after an Event of Default occur including in
connection with:
(i)
preservation of, or enforcement action against the Borrower’s assets or
the assets provided as security in terms hereof (whether then or
thereafter existing); and
(ii)
collection of amounts due under this Agreement and/or the other
Transaction Documents,
shall be to the Borrower’ account and payable by the Borrower immediately upon
receipt of notice from the Lender in this regard.
5. Appropriation of funds and Miscellaneous Rights
a. All monies resulting from the enforcement and/or realization of the monies by BFL
shall be applied with all convenient dispatch in the manner hereinafter provided;
FIRSTLY: There shall be paid out of such moneys or provision made thereout for all
costs, charges and expenses incurred by BFL and/or by any receiver, agent or manager
for or incidental to the enforcement or realization or receipt of such moneys.
SECONDLY: The balance of such moneys shall be applied first in liquidation of the
outstanding amounts due under or in respect of Facility or any other finance facilities
provided by BFL to the Borrower with interest, commission and other charges upto the
date of payment or realization and all amounts that BFL may pay or may be required to
pay and the surplus available shall be applied in liquidation of all the other indebtedness
of any nature of the Borrower to BFL.
However, the aforesaid manner of application of monies, shall not be binding on BFL in
absolute terms and BFL may in exercise of discretion apply the monies otherwise. b.
Notwithstanding anything herein contained, BFL shall have a lien over all the assets of
the Borrower in BFL’s control and/or charged in favour of BFL and a right of set off
against any monies due from BFL to the Borrower and to combine all accounts of the
Borrower for recovery of BFL’s dues.
b. In case of delay in payment of the installment dues for any reason whatsoever
including without limitation shonour of the PDC/ECS/any electronic or other clearing
mandate, without prejudice to any of its other rights, BFL shall be entitled to charge
penal charges @ Rs. 500/- for delay in each payment.
c. BFL shall be entitled, but not obliged, to combine all accounts of the Borrower with
BFL to apply any credit balance to which the Borrower may be entitled on any account of
Page 10 of 16
the Borrower with BFL in satisfaction of any sum due and payable to BFL hereunder but
remaining unpaid.
d. The powers of BFL under this Agreement may be exercised on behalf of BFL by any
officer or officers of BFL.
e. The Borrower hereby agrees to accept as conclusive proof of the correctness of any
sum claimed by BFL to be due from the Borrower in respect of the Facility a statement of
account made out from the books of BFL and signed by an authorised officer of BFL,
without production of any vouchers, documents or other papers.
f. The Borrower shall not transfer or assign any of its rights or liabilities under this
Agreement to any person without the prior written consent of BFL. However, the
Borrower agrees that notwithstanding anything to the contrary contained in any
documents executed under / in relation to this Agreement, BFL shall have the right to
assign and / or transfer and / or novate and / or otherwise securitise its rights or
obligations under this Agreement and / or the Facility or any part thereof and/or enter
into indemnity or other arrangements for risk sharing, whether with or without recourse to
BFL, to one or more scheduled commercial banks or any other entity, trust, any
association whether located / placed in India or outside India, without any reference or
notice to the Borrower. The Borrower shall not, however, claim any privity of contract with
any such entity to whom the Facility or any part thereof and/or the rights or obligations
under this Agreement / in relation to the Facility have been assigned /
transferred/securitised or BFL has entered into indemnity or arrangements for risk
sharing.
g. BFL may at the risk and cost of the Borrower engage one or, more person(s) to collect
the Borrower's outstanding and/or to enforce any security and may furnish to such
person(s) such information, facts and figures as BFL thinks fit and may delegate to such
person(s) the right and authority to perform and execute all acts, deeds, matters and
things connected therewith or incidental thereto as BFL thinks fit.
h.
The Borrower shall furnish to BFL at such intervals as may be decided by BFL
and notified to the Borrower and at any other time whenever required by BFL, full and
correct particulars/statements of all the stocks and machineries and shall allow BFL or
its service providers to take inspection of all the books of accounts and shall produce
such evidence as BFL may require as to the value thereof. It shall be lawful for BFL at
any time and from time to time during the continuance of the Facility to appoint and
employ at the expense of the Borrower in all respects and for such period as BFL shall
think fit one or more person(s) or a firm or a company to inspect the value of all or any of
the assets of the Borrower comprising stacks and /or machineries on behalf of BFL.
6. General Terms
a. The Borrower shall reimburse BFL all costs (including Advocates costs), charges,
expenses, taxes, duties (including stamp duties) incurred by BFL in connection with the
negotiation, preparation, stamping, execution, administration and enforcement of this
Agreement and any document executed pursuant hereto as also any security documents
and/or the rights of BFL hereunder or thereunder and the insuring, taking possession of
maintaining, storage and selling of any of the securities shall be borne and paid by the
Borrower alone. If the Borrower requires any document/s to be prepared for his /her /its
use other than for servicing the loan for which this Agreement is signed, the charges as
levied by BFL from time to time will be applicable. These charges will be applicable for
all forms of NOCs issued by BFL and other documents which may be issued on the
written request of the Borrower.
b. Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of prohibition or
unenforceability but shall not invalidate the remaining provisions of this Agreement or
affect such provision in any other jurisdiction.
c. A notice to be given by BFL to the Borrower, shall be effective and deemed to have
been duly served on the Borrower, three days after the same shall has been delivered to
the post office properly addressed to the Borrower at the address given below or
Page 11 of 16
otherwise and if delivered to the Borrower against acknowledgement, it shall be deemed
to have been duly served as on the date of delivery.
d. A certificate by an officer of BFL that the notice was posted or served, as the case
may be, shall be final, conclusive and binding on the Borrower.
e. Unless otherwise advised in writing to BFL by the Borrower and acknowledged by
BFL the address of the Borrower for the purpose of service of communications shall be
as detailed in the Annexure.
f. BFL may, at the request of the Borrower, or in its absolute discretion change the
branch administering BFL at any other place as may be considered appropriate and in
that event Borrower shall be deemed to have availed the Facility and shall be liable to
pay/repay the Facility and all amounts in relation to the Facility to or at such other branch
and according to all provisions contained herein relating to the branch of BFL shall apply
to that new branch.
g. Any delay in exercising or omission to exercise any right, power or remedy accruing to
BFL under this Agreement or any other agreement or document shall not impair any
such right, power or remedy and shall not be construed to be a waiver thereof or any
acquiescence in any default, affect or impair any right, power or remedy of BFL in
respect of any other default. The Borrower hereby agrees that in case the Borrower
commits a default in payment or repayment of principal amount of the Facility or interest
thereon, BFL and/or the Reserve Bank of India (RBI) will have an unqualified right to
disclose or publish the details of the default and the name of the Borrower as defaulters
in such manner and through such medium as BFL or RBI in their absolute discretion
may think fit.
h. The Parties hereby agree that BFL shall give notice to the Borrower of any change in
the terms and conditions including disbursement schedule, interest rates, service
charges, prepayment charges etc. BFL hereby agrees that the changes in interest rates
and charges shall be effected only prospectively.
7.
Disclosure
7.1
The Borrower hereby agrees and gives consent to the disclosure by BFL of all or
any such:
(a)
information and data relating to the Borrower;
(b)
the information or data relating to any credit facilities including, the Facility
availed of or to be availed of by the Borrower from BFL and the
Borrower’s obligations in any credit facility granted / to be granted, by
BFL; and
(c)
default, if any, committed by the Borrower in discharge of such obligation;
as BFL may deem appropriate and necessary, to disclose and furnish to Credit
Information Bureau (India) Ltd. and any other agency authorized in this behalf by
Reserve Bank of India or any other regulatory authority.
7.2
The Borrower further declares that the information and data furnished by the
Borrower to BFL is/shall be true and correct and further undertakes and declares
that:
(a)
the Credit Information Bureau (India) Ltd. and any other agency so
authorized may use, process the said information and data disclosed by
BFL in the manner as deemed fit by them; and
(b)
the Credit Information Bureau (India) Ltd. and any other agency so
authorized may furnish for consideration, the processed information and
data or products thereof prepared by them to banks/financial institutions
and other credit grantors or registered users, as may be specified by the
Reserve Bank of India in this behalf.
Page 12 of 16
7.3
8.
By execution of this Agreement, the Borrower irrevocably agrees and consents to
BFL, at any time, disclosing or sharing, or in any other manner making available
any information concerning the Borrower, its business, its accounts held with BFL
or another group member of BFL including, any branch, related companies,
affiliates ("Group Member"), including the financial position of the Borrower, the
facilities granted and which will be granted hereafter to the Borrower, to: (a) any
office or branch of BFL or another Group Member or any assignee of BFL; (b)
any professional adviser, agent, service provider of BFL or another Group
Member in connection with providing services or any facility to the Borrower; (c)
any guarantor or third party security provider of the Borrower; (d) any regulator or
governmental authority with jurisdiction over BFL; (e) any court of law; or (f) any
bank or financial institutions as per normal banking practice; or (g) any actual or
potential assignee, novatee, transferee, participant or sub-participant (or any
agent or adviser of any of the foregoing) in relation to any of BFL’s rights and/or
obligations under the Facility; or (h) any rating agency, insurer or insurance
broker of, or direct of indirect provider of credit protection to any Group Member.
Acceleration
BFL shall have the right to, at its absolute discretion, upon providing a notice in
writing, cancel all undrawn portions of the Facility and demand repayment of all
outstanding amounts under/in relation to the Facility. Upon receipt of such notice
by the Borrower, all outstanding amounts along with all accrued interest and other
charges shall become immediately due and payable.
9.
Waiver
It is hereby agreed between the parties that BAL and/BFL shall not in any manner
be liable to the Borrower for any loss, cost or damage caused to the Borrower due
to any act done by BFL and/or BAL under the terms of this Agreement.
10.
Amendment
No amendment / variation of this Agreement shall be binding on any Party unless,
and to the extent that, such variation is mutually agreed and recorded in a written
document executed by such parties, but where any such document exists and is so
signed, such Party shall not allege that such document is not binding by virtue of
absence of consideration.
11.
Governing Law, Jurisdiction And Dispute Resolution
11.1 Any claims, disputes or differences arising under or in connection with this
Agreement or anything done or omitted to be done pursuant thereto shall be
governed according to the laws of India and subject to the exclusive jurisdiction of
the courts and tribunals at Pune.
11.2 Notwithstanding anything to the contrary or otherwise mentioned herein , all claims,
disputes, differences or questions of any nature arising between the Parties to this
agreement, whether during or after the termination of this Agreement, in relation to
the construction, meaning or interpretation of any term used or clause of this
Agreement or as to the rights, duties, liabilities of the Parties arising out of this
Agreement, shall be referred to the sole arbitrator to be appointed by BFL. The
Parties hereto mutually agree and confirm that the arbitration proceedings shall be
conducted in English and in accordance with the Arbitration and Conciliation Act,
1996 and the proceedings shall be held at Pune. It is clarified that this arbitration
clause shall not apply to any claim and/or dispute and/or difference in respect of
which a summary suit under Order 37 of the Civil Procedure Code can be instituted
by BFL.
Page 13 of 16
ANNEXURE
Name of the Borrower
___________________________________________
Address
Borrower
___________________________________________
of
the
___________________________________________
Form of Organization
___________________________________________
Address of the Borrower for Notices and Communications:
Name:
________________________________________________
Kind Attn:
________________________________________________
Address:
________________________________________________
Facsimile:
________________________________________________
Email address: ____________________________________
SCHEDULES
First Schedule
.
A. Brief particulars of the Facility sanctioned by BFL to the Borrower:
Loan of Rs. __________________ /- (Rs. _____________________________) in terms
of
tripartite Term Loan Agreement between Bajaj Auto Ltd, Bajaj Finance Ltd
and_______________________________________
B. Purpose: _________________________________
C. Vendor Account: ____________
Second Schedule
A. Present rates of interest payable in respect of the Facility @ ______% p.a.
Type of Interest Rate: Floating rate
(*)
Floating rate of ________%
Rate Linked to Bajaj Finance Ltd (BFL) Base Rate with Monthly reset. Current BFL base
rate 11.45%
B. Additional Interest payable by way of liquidated damages for default @ 2.5% p.m. or
2% higher than the normally applicable rate, whichever is higher
C. Repayment Schedule of the Facility: ___ equal monthly Installments post principal
moratorium of ____ months.
D. Prepayment charges: Nil
Page 14 of 16
E Amount payable on each dishonour of cheque/PDC/E.C.S. issued by the Borrower to
BFL Rs.1000/-for each dishonored cheque
F. Service Charge: Processing fee of ___% of the facility amount plus applicable taxes
charges.
G. Amount of Demand Promissory Note :
_______________________________________)
Rs.
__________________/- (Rs
H. Charge Schedule for various services availed from BFL.
i. PDC Swap charges for each PDC/E.C.S replaced with another PDC/DD/Pay
Order/E.C.S Rs 1000/- for every SWAP
ii. Charges for Duplicate NOC at the termination of the contract : Rs 0/-per NOC
or as revised from time to time + taxes as applicable.
I. Security:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
J.
Conditions Precedent to the first disbursement
Delivery by the Borrower of the following:
i.
a certified true copy of a resolution of the Board of Directors of the Borrower
authorising the availing of the Facility and execution of this Agreement and all
documents to be executed under / in relation to this Agreement, and for the
purpose the application of the Common Seal of the Borrower;
ii. a certified true copy of Forms 8 as prescribed under the Act confirming registration of
the charge(s) created in favour of BFL under the Security;
iii. a certified true copy of the constitutive documents of the Borrower, the Guarantor and
security providers.
iv. letters from secured creditor(s) (if any) of the Borrower or third party permitting the
creation of Security in favour of BFL in accordance with the requirements of this
Agreement; and
v. a demand promissory note duly executed by the Borrower and undertaking to repay
the entire amount of the Facility along with interest at the rate specified.
Third Schedule
Name of the Guarantors: _____________________________________
Fourth Schedule
Financial Covenants:
IN WITNESS Whereof the Parties have executed this Agreement on the day and the
year as
THE COMMON SEAL of ________________________
has been hereunto affixed pursuant to the Resolution
Page 15 of 16
Common
Seal
of its Board of Directors of the Borrower passed in that
behalf on the ____Day of ____________________ In
the
presence
of
1._____________________2.____________________
_)
Director(s)/authorised signatories/officials, who
have signed) these presents and Authorised
Person/Secretary of the) Borrower who has
signed/countersigned these presents in) token thereof.
Signed and Delivered by ________________________
On behalf of __________________________________
As its authorized signatory
SIGNED SEALED AND DELIVERED BY
)
Bajaj Finance Limited
)
Through its authorized signatory
)
)
(Authorized Signatory for Bajaj Finance Limited)
SIGNED SEALED AND DELIVERED BY
Bajaj Auto Limited
Through its authorized signatory
)
(Authorized Signatory for Bajaj Auto Limited
)
)
)
)
Page 16 of 16