AGREEMENT – PRE-SHIPMENT FINANCE FACILITY This agreement (“Agreement”) is made on this ____ day of ________ at __________ between (1) Bajaj Finance Limited, a company registered under the Company‟s Act 1956 and having its registered office at Mumbai-Pune Road, Akurdi, Pune 411035 and a branch office at Bajaj Finance Ltd, __________________________________________________________________ (hereinafter referred to as “BFL”, which expression shall unless repugnant to the subject or context shall mean to include all its successors and assigns) – PARTY OF THE FIRST PART AND (2) ________________________________________________________________ it‟s Office at ___________________________________________________________________ (herein after referred to as the "Vendor" or “Borrower”, which expression unless repugnant to the subject or context shall mean and include all its successors and permitted assigns) – PARTY OF THE SECOND PART AND (3) Bajaj Auto Limited, a Company incorporated under the Indian Companies Act 1956 and having its registered office at Mumbai-Pune Road, Akurdi, Pune 411 035 (herein referred to as "Manufacturer" or "BAL", which expression unless repugnant to the subject or context shall mean and include all its successors and permitted assigns) – PARTY OF THE THIRD PART BFL, Vendor and BAL are hereinafter collectively referred to as the „Parties‟ and individually as a „Party‟. WHEREAS: a. BAL is engaged in the manufacture and marketing of two wheelers, three wheelers (hereinafter referred to also as the "Products") 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 different raw-material/parts/components (hereinafter referred to also as the "Goods") for manufacture of the Products to BAL or with consent of BAL supplying different raw-material/parts /components for manufacture of Goods to each other through such net work. b. BFL is in the business of providing financial assistance to various body corporates and other persons. c. 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. d. BFL has, at the request of the Vendor, agreed to extend Pre-shipment finance facility upto a maximum principal amount of INR _______________/- (Indian Rupees ______________________________________ ) (the “Finance Facility”) to the Vendor, from time to time, to carry out activity of supplying the Goods to BAL on theterms and conditions as stipulated herein and in the Forms. e. 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 Finance Facility in writing as appearing hereinafter. DEFINITIONS – In this Agreement: a. “Due Date” means the date so allocated in the Forms. b. “Dues” has the meaning as ascribed to it in Clause 4.8 herein. c. “Form” has the meaning as ascribed to it in Clause 2 herein. d. “Finance Facility” meansthepre-shipment finance facility granted/agreed to be granted by BFL under the sanction letter dated ________________________ and this Agreement to enable the Vendor to supply the Goods to BAL and terms and conditions of the purchase orders of BAL from time to time and also define in the preamble hereto. Interpretation: a. Clause headings are for ease of reference only and are not intended to be part of or to affect the meaning, interpretation or construction of any of the terms and conditions of this Agreement. b. References to any gender includes any other gender, the plural shall include the singular and bodies corporate shall include unincorporated bodies and (in each case) vice versa. c. Reference to any statute, enactment, ordinance, order, regulation or other similar instrument shall be construed to include a reference to the statute, enactment, ordinance, order, regulation or instrument as from time to time amended, extended, re-enacted or consolidated; and all statutory instruments, orders, regulations or instruments made pursuant to it. d. Unless the context otherwise requires those provisions contained in this Agreement which relate to any subject matter of which there are more than one shall apply severally to each. e. Clauses, Sections, Pages, and the Schedules referenced by name shall refer to the Clause, Section, Page, or the Schedule having the title referred to. f. The terms and conditions of each Form shall form an integral part of this Agreement. Page 2 of 14 NOW THEREFORE THIS AGREEEMENT WITNESSETH AS FOLLOWS: 1. The Parties hereby agree that this Agreement will be in force for an initial period of ___months commencing from ________________________ or till such period as the dues of BFL in relation to the Finance Facility is repaid in full (whichever is later) for the purpose of assisting each other by performing duties and obligation mentioned herein. 2. BFL has agreed to extend the Finance Facility to the Vendor from time to time on an uncommitted basis as per the format laid down in Schedule or as may be acceptable to BFL, separately signed by the Vendor and given to BFL (hereinafter referred to as the “Form”). The terms and conditions of each such form shall be deemed to be a part of this Agreement. The Vendor hereby agrees that if required by BFL, the Vendor shall forthwith get the details mentioned in the Forms confirmed by BAL. 3. The Finance Facility shall be based on the order placed by BAL on Vendor for the supply of different Goods to be effected to different locations as per purchase order(s) of BAL and shall be made available to the Vendor on the sole and absolute discretion of BFL and upon such terms and conditions as may be stipulated by BFL from time to time. 4. OBLIGATIONS OF BAL, VENDOR & BFL 4.1 In consideration of BFL agreeing to make/continuing to make/making advances to the Vendor from time to time in terms of this Agreement, the aggregate amount of which is not any time to exceed INR _____________________/- (Indian Rupees ______________________________________), the Vendor hereby irrevocably and unconditionally agree that all such advances made/to be made to the Vendor by BFL, shall be applied by the Vendor solely for the purchase/manufacture of the Goods. 4.2 Further, till such time that Goods are in possession of the Vendors,the Vendor shall keep the Goods fully insured against loss or damage by fire, riot, theft, and civil commotion and such other risks as it may require with an insurance company approved by BFL and shall hold the insurance proceeds and all other moneys received from such Insurance in trust for BFL and on receipt of all such monies, forthwith handover/pay the same to BFL. 4.3 It is understood that the Goods, if kept, stored, lying now or hereafter in the Vendor‟s premises shall be in the Vendor‟s control and possession and the Vendor further agrees and undertakes not to avail of any advance from any other bank/financial institution on the same Goods so long as the Vendor is indebted or liable to BFL. 4.4 It is further agreed that all monies advanced and due to BFL under the Finance Facility shall be repayable on demand and in accordance with the terms of this Agreement. 4.5 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. 4.6 The Vendors shall pay the stamp duty and other charges and expenses as may be applicable / payable and /or incurred in connection with preparation, perfection and execution of this Agreement and/or the Forms. If at any time hereafter it is found or required that any extra stamp duty is payable on this Agreement and /or if it is ascertained that stamp duty at a rate higher than the duty presently paid on this Page 3 of 14 Agreement, is payable/required to be paid then the Vendors shall immediately pay the same with penalty (if any) and keep BFL and BAL indemnified and save harmless at all times from the payment thereof. 4.7 The Borrower shall provide such securities for the purpose of securing the dues under/in relation to the Finance Facility, as more particularly described in the Schedule hereto (“Security”). 4.8 The Borrower shall be liable to pay interest on the Finance Facility from the date of disbursement of the Facility at the rates specified in the Schedule hereto. The Vendor shall give Post Dated Cheques or ECS Mandate to BFL towards repayment of the Finance Facility alongwith all interest, default interest, penalty, charges, dues, costs and expenses thereto (collectively the “Dues”) in the form and substance as acceptable to BFL. 5. BALs Role: 5.1 BAL agrees and the Vendor confirms that, if the Vendor fails to honour Post Dated Cheques/ ECS Mandate given to BFL towards repayment of the Finance Facility alongwith interest costs charges etc. then, BAL shall in its sole discretion and without prejudice to rights of BFL, be authorised to and it may , without requirement of any consent from and/or any notification to the Vendor in this regard, deduct, the amount so due from the amount standing to the credit of Vendor‟s Account with BAL, as mentioned in part A of Annexure A hereto (“Vendor’ Account”). Further, in case there is no sufficient balance in Vendor‟s Account the said amount could be recovered from the accounts of Vendor‟s group companiesmaintained with BAL and pay the same to BFL for repayment of the Finance Facility on behalf of the Vendor. 5.2 The Vendorunder takes not to revoke its Goods supply arrangement with BAL or any part thereof during the currency of the Pre-shipment Finance Facility except with previous consent of BFL in writing.Further, BAL undertakes to promptly inform BFL of its intention to revoke the Goods supply arrangement with the Vendor. 5.3 The Borrower hereby unconditionally and irrevocably indemnifies and agrees keep BAL, its directors, employees, officers, associates and representatives (“Indemnified Persons”) indemnified and harmeless at all times against any and all actions, suits, proceedings, claims, loss, costs, damages, liabilities, judgments, amounts paid in settlement and expenses, whether currently subsisting or arising in the future, including without limitation attorney‟s fees and disbursements as may be incurred in connection with investigating, preparing to defend, defending or appealing against any such action, suit, proceeding, claim, inquiry or investigation which may be asserted against or incurred by the Indemnified Persons, as a result of, or in connection with, or arising out of the Facility and/or performance of its obligations or in exercise of its rights under this Agreement. 6. Representations, Warranties and Covenants The Vendor hereby represents, warrants, covenants, declares and undertakes on a continuing basis as follows: a. 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; b. 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; c. It shall promptly intimate BFL about any change in its constitution; Page 4 of 14 d. It does not have any litigation 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 Vendor under this Agreement; e. The Vendor shall not use the Finance Facility or any part thereof for any other purpose other than for which it is granted; f. The name of the Vendor and/or its partners/directors does not appear in any willful defaulters list; g. The Vendor shall repay the Finance Facility to BFL on time irrespective of the cancellation of purchase order by BAL and/or any dispute arising out of / in relation to the quantity, quality or time of delivery of Goods with BAL; h. The Vendor shall and shall be liable to make timely payment to BFL under/in relation to the Finance Facility irrespective of any delay or default on part of BAL to make the payment to the Vendor; i. The Vendor shall pay an upfront processing fees at the rate of 0.50% of sanctioned credit limit of the Finance Facility to BFL before availing the respective Finance Facility; j. In case of any default in timely payment of Dues, the Vendor shall be liable to pay default interest as specified in Schedule hereto to BFL from the date of such default till such time as the actual payment is received by BFL to its satisfaction; k. In case a cheque or ECS mandate provided by the Vendor to BFL is dishonored for any reason whatsoever, the Vendor shall pay a penalty of Rs.1000/- or such amount as BFL may in its sole discretion deem fit, for each such dishonour; l. The Vendor shall deliver to BFL a demand promissory note and a letter of continuity in respect of such demand promissory note in the form and manner acceptable to BFL; m. The Vendor shall issue such information as may be reasonably required by BFL from time to time; n. The Vendor shall issue a letter to its bankers in the format as prescribed in Annexure B hereto or in such form and manner as may be acceptable to BFL and issue a copy of the same to BFL duly acknowledged by the bankers of the Vendor; o. The Vendor shall issue a duly executed demand promissory note and a letter of continuity for the demand promissory note to BFL in the form and manner acceptable to BFL as a pre disbursement condition to the Finance Facility; p. The Vendor shall do all such acts and deeds and execute all such documents as may be required by BFL from time to time in relation to the Finance Facility; q. The details contained in each of the Forms are/shall be true and correct in all respects. r. The Borrower undertakes that BAL shall not be liable to the Borrower in any manner whatsoever for actions taken in pursuance of this Agreement. s. The Borrower hereby agrees and undertakes that: i. The Borrower shall prior to the date of first disbursement under the Finance Facility deliver to BFL the duly executed security documents creating the Page 5 of 14 Security (as mentioned in the 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 Finance Facility, in the form and substance acceptable to BFL. iii. Borrower shall maintain comprehensive insurance covers as per best industry practices. The insurance cover would be kept valid throughout the tenure of the Finance Facility and insurance covers against loss of assets securing the Finance Facility to be endorsed in favour of BFL as a „loss payee‟. iv. 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. t. The Borrower shall comply with and fulfill all the Conditions Precedent (as mentioned in the Schedule) and financial covenants (as laid down in the Facility Agreement). u. The Borrower 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 Finance Facility or any monies under/in relation to the Finance Facility to BFL. v. The Borrower undertakes not to take any action inconsistent with or prejudicial to these rights of BFL. w. 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. x. 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 (“Memorandum of Hypothecation”). y. 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. z. 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. aa. 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. bb. 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. Page 6 of 14 7. Event of Default a. The Borrower shall be deemed to have committed an event 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; 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 Finance 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 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's properties / assets and/or upon any security provided to BFL in relation to the Finance Facility; viii. the Borrower ceases or threatens to cease carrying on its business or any part thereof; ix. if there is a substantial change in the shareholding pattern of the Borrower or in the management/control of the Borrower; x. 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. if 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 Sub-Clause 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. if there exists any circumstances which in the sole opinion of BFL may jeopardize any of the rights and/or interests of BFL. Page 7 of 14 xv. any litigation, arbitration, investigative, regulatory or administrative proceeding / action is current, pending or threatened against the Borrower or any of the Guarantors or 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 FinanceFacility; 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 Finance 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 7 (a) (i) to 7 (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; (b) 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; (c) 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); (d) 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 (e) Any encumbrance over any assets of the Borrower to secure any other debt becomes enforceable; xxii. In the event Vendor 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. Page 8 of 14 b. Consequences of an Event of Default i. c. 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: (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; (v) 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. 8. Appropriation of Funds 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 the Finance 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. Page 9 of 14 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. c. In case of delay in payment of the installment dues for any reason whatsoever including without limitation dishonour 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. 1000/- for delay in each payment. d. 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 the Borrower with BFL in satisfaction of any sum due and payable to BFL hereunder but remaining unpaid. e. The powers of BFL under this Agreement may be exercised on behalf of BFL by any officer or officers of BFL. f. 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 Finance 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. g. 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 Finance 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 Finance Facility or any part thereof and/or the rights or obligations under this Agreement / in relation to the Finance Facility have been assigned / transferred/securitised or BFL has entered into indemnity or arrangements for risk sharing. h. 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. i. 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 Finance 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. Page 10 of 14 9. TERMINATION :This Agreement will not be terminated by either Party unless entire Dues in relation to the Finance Facility is successfully paid by the Vendor to BFL. 10. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION 10.1 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. 10.2 Unless prohibited by any applicable law in force, 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. 11. Notice: Any notice, communication or documents by a Party to the other Party may be given by personal delivery, courier, registered post or fax at the address hereinafter mentioned. The notice shall be deemed to have been served upon the Party to whom it is meant, if a proof of delivery is available with the Party who has given such notice. Notice to BFL Kind Attention Address Telephone : Bajaj Finance Ltd. : : :+ Fascimile Notice to the Vendor Kind Attention Address Telephone Fascimile : _____________________________________ : Mr.___________________________________ : _______________________________________________ : : Notice to the BAL: Kind Attention Address Telephone Fascimile :Bajaj Auto Ltd. :) : : : : Changes in the designated person are to be communicated in writing by the Party to the other Party. Each such notice, request or communication shall be effective upon receipt. The notice shall be deemed to have been served upon the Party to whom it is given, if given by personal delivery when so delivered and acknowledgement received, if given by post on expiration of three days after the notice etc., shall have been delivered to the post office and if given by fax upon acknowledged transmission thereof. If it is by electronic mode or Page 11 of 14 fax, a physical confirmation would be issued by the Party sending it immediately on the same day or on the following business day. 12. Successors & Assigns: The provisions of this Agreement shall be binding upon and inure to the benefit of the successors and assigns of BFL. The Vendor/BAL shall not be entitled to assign any of its rights/obligations or liabilities under this Agreement without the prior written consent of BFL. 13. Force Majeure: The Vendor shall be liable for any failure to perform any of its obligations under this Agreement notwithstanding the prevention of performance, hindered or delayed by a Force Majeure Event (defined below) “Force Majeure Event” includes any event due to any cause beyond the reasonable control of either Party including, without limitation, unavailability of any communication system including Internet, breach or virus in the processes or payment mechanism, sabotage, fire, flood, explosion, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war, acts of government. 14. Counterparts: This Agreement may be executed in two or more being executed in two counterparts and by each Party hereto on separate counterparts, each of which when so executed and delivered, shall be an original, but all the counterparts shall together constitute one and the same instrument. 15. Relationship: Nothing in this Agreement creates a joint venture, relationship of partnership or an employer employee relationship between the Parties are between the Parties and the employees, agents, officers or representatives of the other Party. Accordingly, except as expressly authorised under this Agreement neither Party has authority to pledge the credit of or make any representation or give any authority to contract on behalf of another Party. No staff of one Party shall be construed as being an employee of any other Party by virtue only of this Agreement or the performance of the Parties‟ obligations under this Agreement. The agents, contractors, consultants or employees of one Party may not bind the other Parties in any manner whatsoever. 16. Amendments to Agreement: 16.1 The Parties hereby agree to meet on an “as required” basis to discuss and resolve any operational and relationship issues or opportunities that may arise between them. 16.2 The Agreement may be amended by mutual agreement between the Parties as long as such amendment(s) is (are) recorded in writing. Amendment to the Agreement may not require any amendment to the main agreement and may be annexed in the form of an Annexure duly signed by both the Parties. 17. Severability: In the event a provision of this Agreement or part thereof shall, for any reason, be determined as void, invalid, illegal, prohibited or unenforceable for any reason in any jurisdiction such provision or part thereof shall be ineffective only to the extent of such voidance, invalidity, illegality, prohibition or unenforceability and that shall not invalidate, impair or affect the remaining provisions of this Agreement or affect such provision or part Page 12 of 14 thereof in any other jurisdiction. If any provision is unenforceable against any person constituting the Vendor, it will, to the extent possible, remain enforceable against all the other persons constituting the Vendor. The Vendor shall take all steps, execute all documents and do everything reasonably required by BFL in order to give full legal effect to the intended commercial purpose of such provision or part thereof as far as possible. Schedule I. Security i. Tripartiate Agreement between Bajaj Finance Limited ____________________________ Bajaj Auto Limited II. Conditions Precedent 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 Finance 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. iv. Certified true copy of the board resolution of Guarantors and other corporate security providers, authorizing them to create security/guarantee and to execute all documents including undertaking, indemnities etc. under/in relation to the Finance Facility in favour of BFL for due repayment of the Finance Facility; 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 Finance Facility along with interest at the rate specified. III Interest Rate : _____% pa (Floating rate ) IV Default Interest : ____ % per annum V Prepayment Charges : NIL Page 13 of 14 In Witness whereof, the Parties hereto have executed this Agreement on the date as first hereinabove mentioned. THE COMMON SEAL of the abovementioned Borrower has been hereunto affixed pursuant to the Resolution of its Board of Directors of the Borrower passed in that behalf on the ______________________ 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 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 ) ) ) Common Seal ) ) Page 14 of 14
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