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a) “ACH” means the automated clearing house system for electronic funds transfer as managed and operated by authorities designated under Applicable Law. b) “Accepted Invoice” shall mean the invoice raised by the Distributor/OEM on the Borrower for the purchase of Goods, specifying the date of invoice, the description of Goods purchased, the amount payable by the Borrower to the Distributor/OEM under such invoice and the acknowledgement of the authorized signatory of the Borrower specifying acceptance of the invoice. c) “Accepted Invoice Amount”/”amount set out in an Accepted Invoice” means the amount set out in the Accepted Invoice as due and payable to the Distributor/OEM d) “Affiliate” with respect to a Person, shall mean any other Person which, directly or indirectly, Controls, is Controlled by or is under the common Control of such first Person and shall include as associate company (as defined under the Companies Act, 2013) and where such first Person is an individual shall include a Relative (within the meaning of the Companies Act, 2013) of such individual; e) “Availability Period” means the period commencing from the Execution Date upto 12 months, or such other period agreed by the Lenders in writing. f) “Business Day” shall mean a day (other than a Saturday or Sunday) on which banks are open for general business in New Delhi. g) “Cheques/Irrevocable Wire Instructions” shall mean in relation to each Loan, the separate cheques provided by each of the Borrower and the Guarantor for (a) each Loan amount, and (b) the aggregate Interest due and payable under such Loan; h) “Control” shall include the power to direct the management and policies of an entity, whether through the ownership of voting capital, by contract or otherwise. i) “Credit Period” means the period commencing on the date of each Accepted Invoice and ending on the date on which the Borrower is required to make payment to the Distributor/OEM under such Accepted Invoice. j) “Default Interest” shall have the meaning ascribed to such term under paragraph 3 of the Master Agreement. k) “Demand Promissory Note” shall mean the demand promissory note in a form as set out in Annexure I to the Master Agreement provided by the Borrower to the Lender, unconditionally promising to repay the Outstanding Amounts in respect of each Loan; l) “Due Dates” shall means dates as set out at Schedule IV of the Master Agreement; m) “Disbursement Request” shall mean the request made by the Borrower in accordance with the terms of Master Agreement and the Schedule of terms for disbursal of the Loan(s) (after deduction of the applicable interest and charges) and substantially in the format attached as Annexure III to the Master Agreement. For avoidance of doubt, a Disbursement Request may be made in writing and, unless otherwise stated, may be made by electronic means. n) “Event of Default” shall mean any event or circumstance specified as such at paragraph 4 of the Schedule of Terms mentioned below; o) “Distributor/OEM ((Original Equipment Manufacturer) ” means the persons set out in Schedule I to Master Agreement. p) “Electronic Clearing System” or “ECS” shall mean transfer of funds electronically, either through a message for transfer of funds sent electronically or through image of instrument of transfer of funds sent electronically or through an electronic file containing the details of the funds transfer sent by electronic media or payment through an electronic cheque or where funds are transferred through various types of plastic cards or such other debit clearing service notified by the Reserve Bank of India (RBI), participation in which has been consented to in writing by the Borrower for facilitating payment of instalments. q) “Facility” shall have the meaning ascribed to it under the Schedule of Terms. r) “Master Agreement” means and includes the terms of Master Facility Agreement and the Schedule of Terms, together with all the schedules, exhibits, addendums, attachments, modifications and appendices annexed thereto. s) “Facility Documents” with respect to each Loan shall mean the Master Agreement, the Schedule of terms, the Schedules executed pursuant to the Master Agreement from time to time (including each Schedule of Terms), the memorandum of hypothecation, deeds of guarantees, the Cheques, the Security Documents and all such other documents incidental to the Loan including the Application Form and such agreements, deeds, power of attorney, undertakings and other documents as contemplated in the Master Agreement or otherwise, on which the Lender has relied upon to extend the Loan to the Borrower. Further, the Facility Documents shall also include all other documents that are executed/entered upon with respect to each Loan, whether preceding, simultaneous or subsequent to the execution of the Master Agreement. t) “Final Settlement Date” as the context may require, means the date on which all Outstanding Amounts under the Facility and/or a Loan, have been irrevocably and unconditionally paid and discharged in full to the satisfaction of the Lenders. u) “Goods” shall mean such goods purchased/to be purchased by the Borrower in terms of any Accepted Invoice. v) “Guarantor” shall mean and refer jointly and severally to the Person or entity who has agreed to provide a guarantee for the obligations of the Borrower(s) under the Facility Documents, including the repayment/payment of the Loan and all other monies due and payable under this Agreement, and includes, depending upon the nature of the Guarantor: (a) its successors and permitted assigns, if the Guarantor is a company within the meaning of the Companies Act, 2013 or a society registered under Applicable Law relating to societies; (b) any or each of the partners and their survivors or 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, if the Guarantor is a partnership firm within the meaning of the Indian Partnership Act, 1932 or the Limited Liability Partnership Act, 2008; (c) 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, if the Guarantor is a sole proprietary concern; (d) the Karta and any or each of the members/coparceners of the Hindu Undivided Family and their survivors and his/her respective heirs, legal representatives, executors, administrators and permitted assigns, if the Guarantor is a Hindu Undivided Family; and/or (e) the trustees for the time being thereof and the successors and permitted assigns of the trust/trustees, if the Guarantor is a Trust. For avoidance of doubt, particulars of the Guarantor are set out at Schedule I of the Master Agreement. w) “Instalments” shall mean instalments as set out at Schedule IV of the Master Agreement. x) “Interest Rate” shall mean the rate of interest as is more particularly set out in the Schedule of Terms. y) “Invoice” shall mean the invoice raised by the Distributor/OEM on the Borrower for the purchase of Goods, specifying the date of invoice, the description of Goods purchased, the amount payable by the Borrower to the Distributor/OEM under such invoice. z) “Interest Payment Dates” the dates on which interest payment is required to be made in respect of a Loan. aa) “Invoice Date” the date on which an invoice in relation to purchase of Goods by the Borrower is issued by the Distributor/OEM. bb) “Lender Account”/ “Account” shall mean an account bearing number [details of the bank account] or such bank account as may be intimated from time to time by the Lender to the Borrower by notice in writing. cc) “Loan” shall mean each loan amount disbursed to the Borrower in accordance with Master Agreement and as is specified in the applicable Schedule of Terms in respect of each Loan. dd) “Margin” shall be such percentage of the Accepted Invoice Amount, as may be set out at Schedule I of the Master Agreement. ee) “Material Receipt Note” shall mean the document issued by the Borrower to the Distributor/OEM, confirming the acceptance of Goods; ff) “Material Adverse Effect” shall mean the effect or consequence of an event, circumstance, occurrence or condition which has caused, as of any date of determination, or could reasonably be expected to cause a material and adverse effect on (i) the condition (financial or otherwise), business, operation or prospects of the Borrower or any of the Obligors, (ii) the ability of any of the Borrower or any of the Obligors to perform their respective obligations under the Facility Documents, (iii) the validity or enforceability of any of the Facility Documents (including the ability of any party to enforce any of its remedies thereunder), or (iv) the effectiveness or priority of the Security Interests created under each of the Security Documents. gg) “Memorandum of Hypothecation” means the memorandum of hypothecation dated on or about the date hereof in respect of the Receivables to be made by the Borrower in favour of the Lender, which shall be an unattested memorandum of hypothecation hh) “NACH” shall mean National Automated Clearing House. ii) “NEFT” shall mean National Electronic Funds Transfer. jj) “Obligors” means the Borrower, the Guarantors (if any), and any other security provider, if any, and “Obligor” means each of them individually. kk) “Outstanding Amount” means the amount outstanding which is due and to be repaid by the Borrower to the Lender, which amount shall include the principal, interest, Default Interest and such other expenses/amounts payable by the Borrower under the Master Agreement and/or each of the Schedule of Terms executed pursuant to the Master Agreement. ll) “Person” shall mean any individual, firm, company, joint venture, association, partnership, trust, or other entity (whether having separate legal personality and identity or not); mm) “Prohibited Transaction” shall mean an Invoice for a transaction set out below and shall include such other transactions as may be specified by the Lender from time to time: 1) Accommodation bills; 2) Bills/Invoices from the service sector; 3) Bills covering payment of electricity charges; 4) Bills for payment of customs duty; 5) hire/purchase bills; 6) bills for fixed asset sale or sale of securities and such other type of financial accommodation. 7) Bills of any group company or sister concern nn) “Purchase Order” shall mean the document using which the Borrower places the order for purchase of Goods to the Distributor/OEM. oo) “Receivables” shall have the meaning as set out in the Memorandum of Hypothecation, if applicable. pp) “Repayment” means the repayment of the principal amount due and payable by the Borrower in respect of each of the Loans and the interest thereon, Default Interest and all other Outstanding Amounts and all other charges and dues payable by the Borrower(s) under the Facility Documents. qq) “Relative” shall have the meaning ascribed to it in the Companies Act, 2013. rr) “RTGS” shall mean Real Time Gross Settlement. ss) “Security” means the security as may be acceptable to the Lender including but not limited to charge of any kind created with respect to the assets of the Borrower. tt) “Security Documents” shall mean (a) the deeds of guarantees, (b) the Memorandum of Hypothecation, (c) Demand Promissory Note, (d) Cheques, and/or (e) any other document designated as such by the Lender. uu) “Standing Instructions” or “SI” shall mean written instructions given by the Borrower to the Lender to debit the account of the Borrower, maintained in a bank for the amount of instalments of the Loan and Interest, as they become due and payable as per the Repayment terms set out at Schedule I of the Master Agreement. vv) “Security Interest” shall mean any mortgage, pledge, hypothecation, charge, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority, right of a Person to deal with including as an attorney, or other security agreement including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under any recording or notice statute, and any lease, any other agreement having substantially the same effect as any of the foregoing or any agreement, conditional or otherwise, to create any of the foregoing. ww) “Transfer Certificate” shall mean a notice in the form attached as Schedule V (Form of Transfer Certificate) of the Master Agreement.
a) Any expression not defined in this Agreement but defined in the General Clauses Act, 1897 shall have the meaning given to it in that Act. b) The headings and titles in this Agreement are inserted solely for convenience of reference and shall, in no way define, limit, construe or deem to affect the construction/interpretation/meaning/scope/extent of the relative provisions. c) References to the masculine gender shall include references to the feminine gender or neuter gender as the case may be and vice versa. d) References to the singular number shall include references to the plural number and vice versa in the context thereto. e) All references to this Agreement and/or any of its Schedules or any other agreements, documents, instruments or schedules, exhibits, appendices, shall include (subject to all relevant approvals) a reference to the Master Agreement and/or its Schedules and that other agreement, document, instruments, schedules, exhibits or appendices, as modified, supplemented, revised, substituted, novated or assigned from time to time. f) Unless otherwise specified, whenever any payment to be made or action to be taken under this Agreement, is required to be made or taken on a day other than a Business Day, such payment shall be made or action be taken on the immediately preceding Business Day. g) In the event of any disagreement or dispute between the Lender and the Obligors regarding the materiality of any matter including of any event of default or otherwise, circumstances, change, fact, information, document, authorization, proceeding, act, omission, claims, breach etc, the opinion of the Lender as the materiality of any of the foregoing, shall be final and binding on the Obligors. h) The Schedules hereto and any amendments thereof shall be deemed to be part of the Master Agreement as if the provisions thereof were set out herein in extension. i) Where there is no Obligor, to the extent there are any rights or obligations applicable only to the Obligor, such provisions will not be applicable to the Borrower, however if any provisions are applicable to both the Borrower and the Obligor, such provisions will continue to be applicable to the Borrower. ii) Any modification/revision of the Facility Documents/Schedules/Schedule of Terms shall be in writing. Such writing shall thereafter form an integral part of the Facility Documents.
1. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE BORROWER AND THE OBLIGORS (IF ANY)
The Borrower and the Obligor (as may be applicable) hereby represent and warrant to the Lender that: (a) The obligations expressed to be assumed by the Borrower/Obligor(s) in each Facility Documents are, legal, valid, binding and enforceable obligations. (b) The execution and delivery of each Facility Document, including the Master Agreement, this Schedule of Terms and the performance of obligations by the Borrower and the Obligors hereunder does not: (i) contravene any applicable law/statute or regulation or any judgment or decree to which the Borrower and the Obligors are subject; and (ii) conflict with, or result in any breach of any covenants, conditions and/ or stipulations under any existing agreement, arrangement or document to which the Borrower and the Obligors(s) have entered into or propose to enter into; (c) The Borrower and/or each Obligor (as applicable) is duly incorporated/registered and validly existing under the law of its jurisdiction of incorporation and has the power to own its assets and carry on its business as it is being conducted. (d) The business of the Borrower and/or the Obligors (as may be applicable) is being conducted in all respects in compliance with all applicable laws. The Borrower and the Obligors (i) have obtained all approvals, permits/ licenses required under applicable law for carrying on its business effectively in the manner, in which such businesses are carried on and such approvals, permits/ licenses are in full force and effect; (ii) are in compliance in all respects with the terms and conditions of such approvals, permits/ licenses. (e) It has not received nor is aware of any existing or threatened complaint, order, directive, claim, citation or notice from any authority or any material written communication from any Person with respect to any aspect of its compliance with any matter covered by the environmental and social law or the environmental, health and safety guidelines. (f)The above representations and warranties shall deemed to be continuing representations and warranties which shall be deemed to have been repeated by the Borrower and the Obligors on the date of and on the date prior to each of the proposed disbursement and till Repayment of all Outstanding Amounts by the Borrower to the Lender/ Final Settlement Date, to the satisfaction of the Lender.
The Borrower and the Obligors (if applicable) hereby undertake and covenant with the Lender, as under: (a) that the Borrower and/or the Obligors shall within two (2) days of change in its particulars as have been submitted to the Lender, including and not limited to the addresses, whether residential and/or office address, and change in the authorised signatories of the Borrower and the Obligors, inform the Lender, in writing of such modified details. The Borrower and/or the Obligor(s), shall in such a case submit the KYC documents to the Lender. (b) Change in Control and constitution of the Borrower and/or the Obligors: (i) contravene any applicable law/statute or regulation or any judgment or decree to which the Borrower and the Obligors are subject; and (ii) none of the corporate Obligor(s) (as may be applicable) shall, change its constitution or its capital structure (including any secondary transfer) except with the prior written consent of the Lenders nor shall any of the corporate Obligors (as may be applicable) make any further issuances of shares, preference shares or warrants or any other instrument having same effect to any person without prior written approval of the Lender. (c) that the Borrower shall use the account on which the repayment cheques (if any) are drawn and/or ECS/NACH are made, as the Borrower’s main account (“Main Account”) and deposit all the Borrower’s business and all other income therein and shall at all times maintain sufficient balance in such Main Account to ensure payment of each of the repayment cheques/ ECS/NACH in accordance with the Repayment. The Borrower shall provide the details of Main Account to the Lender in writing. (d) the Loan(s) availed by the Borrower shall be utilized for the purposes as set out in the Master Agreement hereto and shall not be utilized for any other purpose(s) or for any anti- social or speculative purposes. (e) any dispute of any kind, including about Interest computation shall not entitle the Borrower(s) to withhold payment of an amount due under the Facility Documents. (f)that the NACH delivered to Lender by the Borrower pursuant to this Schedule of Terms and/or the Facility Agreement shall: (i) not be changed, modified, countermanded without the prior written permission of the Lender. (ii) if not acted upon by the bank in which the Main Account is maintained for whatsoever reasons, then, without prejudice to the rights of the Lender to recall the whole of the Outstanding Amounts under the Facility, the Borrower shall issue such revised instructions as may be required to ensure payment to the Lender and/or as may be required by the Lender for the Outstanding Amounts of the Loans as per the Loan account(s) maintained by the Lender in respect of the Loans extended to the Borrower. (g) the Borrower shall sign and execute all documents, and applications and provide requisite information and documents as may be required for effecting the NACH by the bank with which the Main Account is maintained. The Borrower understands/understand that as a pre-condition, for the granting of the Loans to the Borrower pursuant to the Master Agreement and this Schedule of Terms, the Lender requires the Borrower’s consent for the disclosure by the Lender of information and data relating to the Borrower(s), of the Loan availed of/to be availed by the Borrower and each of the Obligors, obligations assumed/to be assumed, by the Borrower and each of the Obligors in relation thereto and default, if any, committed by the Borrower and/or the Obligors, in discharge thereof. Accordingly, the Borrower and each Obligor agrees and give consent for the disclosure by the Lender of all or any of such: (i) information, documents and data relating to the Borrower and each Obligor and/or the Facility Documents to the RBI, the Income Tax Authorities, Credit Bureaus, Credit Rating Agencies, Courts and/or any such statutory or other authorities; (ii) the information and/or data relating to any credit facility availed of/to be availed, by the Borrower and each Obligor, and (iii) default, if any, committed by the Borrower and each Obligor, in discharge of the Borrower and each Obligor’s obligation, as the Lender may deem appropriate and necessary, to disclose and furnish to Credit Information Bureau (India) Ltd. (“CIBIL”) and/or any other agency authorized in this behalf by RBI. (h) The Borrower and each Obligor agree and give consent that: (a) the CIBIL and any other agency so authorized may use, process the said information and data disclosed by the Borrower and/or any Obligor(s) to the Lender in the manner as deemed fit by them; and (b) the CIBIL and any other agency so authorized may furnish for consideration, the processed information and data or products thereof prepared by them, to the Lender, to the Lender’s authorized financial institutions and other credit grantors or registered users, as may be specified by the RBI in this behalf. (i) The Borrower and each Obligor undertake that the Borrower and each Obligor shall take prior consent of the Lenders in respect of facility (ies)/credit/loan(s) obtained by the Borrower from other financial institutions/non- banking finance companies/banks. The Borrower further undertakes that it shall not without the prior written consent of the Lenders, stand surety for anybody or guarantee the repayment of any loan or provide any security or overdraft or the purchase price of any asset. (j) The Borrower agrees and acknowledges that (i) the Lender shall deduct the applicable charges, interest rates, and processing fees as is more specifically set out in the Schedule of Terms, prior to disbursal under each Loan and (ii) that if on the request of the Borrower the Loan is disbursed directly to the Distributor/OEM or any other third party and the Borrower are not the direct recipient of the same, it shall be Borrower’s liability to repay the Loan, together with all applicable interests and charges, in accordance with the terms of the Master Agreement and/or this Schedule of Terms. (k) The Borrower agrees that Lender has the right to any cancellation or reduction of the Facility incase of non-utilization of Loan by the Borrower within stipulated time period. (l) The Borrower and Obligors agree and undertake that it shall not avail the Loan for any Prohibited Transaction. (m) The Borrower further agrees and acknowledges that in the event of subsequent rejection of the Goods (or part thereof) by the Borrower or non-supply of Goods by the Distributor/OEM forming the subject matter of the Accepted Invoice, the Borrower’s liability to repay the Loans availed by the Borrower shall continue to remain in full force and effect. (n) Information Covenant: The Borrower and Obligors will inform the Lenders promptly about the demand notice or show cause notice it has received from any bank/institution/statutory authority such as Income Tax authority, Excise, Sales Tax department, Labour office etc., regarding default in payment of any money due to the said authority or attachment of any asset belonging to the Borrower and Obligors. (o) That the Borrower and/or Obligors shall execute such undertakings, letters of continuity, demand promissory notes and any other documents, in the form and manner, as may be required by the Lender from time to time. (p) The Borrower has, simultaneously with the execution of the Master Agreement and this Schedule of Terms, executed a promissory note dated on or about the date hereof (“DPN”), which is duly signed and delivered by the Borrower to the Lenders as collateral security for repayment of the Outstanding Amount to the Lenders immediately on demand. Further, the Borrower hereby irrevocably and unconditionally agrees and confirms as follows: (i) the DPN shall operate as continuing security to the Lender for repayment of the ultimate balance and/or all sums remaining unpaid now or hereinafter, including all interest which has become payable in respect of/under the Facility or which may in future be advanced; and (ii) till the Final Settlement Date, the Borrower shall remain liable on the DPN notwithstanding payment made from time to time or the Outstanding Amount being reduced or extinguished from time to time or even if the balance in the account may be in credit. (q) The Borrower and Obligors agree and undertake to deliver to the Lender, the following: (i) as soon as they become available, but in any event within 60 (sixty) days after the end of each financial year, the audited financial statements of the Borrower and Obligors (non-consolidated and, if required by the Lender, consolidated) for that financial year; (ii) as soon as they become available, but in any event within 30 (thirty) days after the end of each financial year, the unaudited financial statements of the Borrower and Obligors (non-consolidated and, if required by the Lender, consolidated) for that financial year; and (iii) as soon as they become available, but in any event within 60 (sixty) days after the end of each financial half-year, the financial statements of the Borrower and Obligors (certified by a director of the Borrower) for that financial half-year. 3. LENDER’S RIGHT FOR INSPECTION Any authorized person of the Lender shall have a right, to: (i) visit any of the sites and premises where the business of the Borrower is conducted; (ii)inspect any of the Borrower’s sites, facilities, plants and equipment; (iii)have access to the Borrower’s financials; and (iv)have access to those employees, agents, contractors and subcontractors of the Borrower who have or may have knowledge of matters with respect to which the Lender seeks information.
Third Party Websites and Links
4. REMEDIES FOR THE LENDERS
a) If one or more of the Events of Default shall have occurred, then, the Lender, by a reasonable written notice to the Borrower may, in the sole discretion of the Lender, shall be entitled to recall the entire Outstanding Amount. Upon such declaration by the Lender, the same shall become due and payable forthwith. b) Occurrence of any one or more of the following would be treated as an event of default (“Events of Default”). i) The Borrower or Obligors do not pay on the due date, any amount due and payable pursuant to the Facility Documents at the place at, and in the currency in which, it is expressed to be payable. ii) Any representation or statement made or deemed to be made by any person (other than by the Lender) in the Facility Documents or any other document delivered by or on behalf of any person under or in connection with any Facility Document is or proves to have been incorrect or misleading in any respect when made or deemed to be made. iii) Breach of any terms of the Facility Documents (other than those referred to in Clause 4(b)(i) above (Non-payment) by the Borrower or any Obligor, which will be an Event of Default, if capable of remedy is not remedied within a period of 5 (five) Business Days of its occurrence. iv)the Borrower or any Obligor fails to duly perform any of their obligations in accordance with the terms of any of the Facility Documents. v) It is or becomes unlawful for the Borrower or any Obligor to perform any of its obligations under the Facility Documents. vi) Any steps are taken with a view to make the Borrower or any Obligor insolvent or bankrupt or for protection against creditors or the Borrower or any Obligor, being a company, goes into liquidation or has a receiver appointed in respect of its/their assets or if any reference is made in respect of any Obligor for any insolvency resolution process, liquidation or otherwise under the Insolvency and Bankruptcy Code, 2016, Companies Act, 2013 or under any other law analogous law. vii) Any instruction is given by the Borrower or any Obligor for stop payment with respect to any of the repayment cheques (if any) for any reason whatsoever; viii) the licenses applicable for conducting business (if any), required by the Borrower or any Obligor is suspended/cancelled and/or any proceeding or inquiry is initiated/contemplated professional misconduct against the Borrower or any Obligor or for cancellation/suspension of such license before any court, tribunal or the authority which issue or regulates such degree/license; or ix) any circumstances exists or arise which in the opinion of the Lender gives rise to an opinion that the Borrower or any Obligor may not be able to pay the Outstanding Amounts or the Lender may not be in a position to recover the same in future unless immediate remedial steps are taken. x) Cross Default: the Borrower or any Obligor committing a default under any other loan/credit facility or agreement or contract availed/entered into by Borrower or any Obligor with the Lender, its affiliates and group companies or any third party and the same not being remedied to the satisfaction of the Lender within such time as the Lender may in its absolute discretion specify. xi) the Main Account is not sufficiently funded to enable payment of repayment cheques and/or ECS/NACH and/or the Main Account is closed and/or becomes in-operative and/or frozen and/or operations, including but not limited to debits thereof, are ceased for whatsoever reasons, including but not limited to any action or an order by a court of law and/or any statutory authority (ies). xii) In case at any time and until the Final Settlement Date there is any change in the Control/ownership of the Borrower or any Obligor, without Lender’s prior written approval. xiii) the Security is not created or perfected or maintained to the satisfaction of the Lender. xiv) The Borrower has, changed the Borrower’s material accounting methods or policies or changed the Borrower’s statutory auditors xv) commit or omit any act which may prejudice the interests of the Lender with respect to the Facility. xvi) the Borrower ceases or threatens to cease carrying on its Business. xvii) any order of attachment, distress, execution or other similar process is enforced against the Borrower and / or any of the Obligors or upon the Security and any other assets provided to the Lender in relation to the Facility. xviii) any step is taken by Governmental authority or agency or any other competent authority, with a view to the seizure, compulsory acquisition, expropriation or nationalization of all or (in the opinion of the Lender) a material part of the assets of the Borrower. xix) Occurrence of force majeure events like fire, flood, earthquake, strike, lock out, civil unrest, terror attacks etc. due to which there is damage to the Security and/or assets of the Borrower, which depreciate in value. xx) Any material fact concerning the Borrower’s financial statements, profits, ability to repay and other related information is withheld, suppressed or concealed. xxi) one or more of the events, conditions or circumstances shall exist or shall have occurred which has had, or in the reasonable judgment of the Lender, could be reasonably expected to have a Material Adverse Effect. xxii) any event occurs which under the laws of any relevant jurisdiction has an analogous effect to any of the foregoing Events of Default. xxiii) any other Events of Default as specified under the Transaction Documents. xxiv) any other event occurs which in the sole opinion of the Lender is likely to adversely affect the ability of the Borrower to perform its obligations under this Agreement. xxv) If the Borrower(s) being a partnership firm, has any steps taken by the Borrower and/ or its partners for dissolution of the partnership. xxvi) if the Borrower being a LLP, has any steps taken by the Borrower or its partners for dissolution of the partnership.
a) The Lender reserves the right to terminate the Master Agreement and this Schedule of Terms, without assigning any reason whatsoever, with a 10 (ten) days written notice forthwith and be entitled to recall Outstanding Amounts, as the case may be, together with all applicable charges as immediately payable to the Lender from the Borrower. b) On the occurrence of any of the Events of Default as detailed hereinabove or otherwise, the Lender shall have the right to terminate the Master Agreement and this Schedule of Terms, forthwith and be entitled to recall Outstanding Amounts together with all applicable charges as immediately payable to the Lender from the Borrower. c) on any delay in payment of the Outstanding Amounts together with all applicable charges pursuant to paragraph 5 (a) and/or (b), the Lender shall be entitled to claim a Default Interest, or such rates of interest as may be revised by the Lender from time to time at its sole discretion subject to applicable RBI directives, from the date of such notice of recall/payment till payment/realization of the Outstanding Amounts. Upon the declaration by the Lender under paragraph 5(a) and/or (b), the Outstanding Amount shall become due and payable forthwith. d) On the occurrence of any of the Events of Default as detailed herein-above or otherwise, the Lenders shall have the right to enforce the Security/guarantee provided by any of the guarantors, created pursuant to the Facility Documents; e) The Parties agree and confirm that upon the occurrence of an Event of Default under this Schedule of Terms and/or the Master Agreement or any Facility Documents (in respect of any and all Loans disbursed by the Lenders to the Borrower), the Lender shall be authorized and entitled to cause the Distributor/OEM to immediately and forthwith cease supplying any further Goods or provide any services whatsoever to the Borrower until such Event of Default having being cured to the satisfaction of the Lender under the Facility Documents. f) The Parties agree and confirm that upon the occurrence of an Event of Default under this Schedule of Terms and / or the Master Agreement or any Facility Documents (in respect of any and all Loans disbursed by the Lender to the Borrower), the Lender shall be authorised to convert, the Outstanding Amounts either in part or full and whether the same is due or not, into fully paid-up equity voting shares of the Borrower as a consequence of the Event of Default at the valuation determined per Applicable Law or in accordance with the Strategic Debt Restructuring Scheme (SDR) framed by Reserve Bank of India. g) Notwithstanding any cancellation or termination of the Master Agreement pursuant to the provisions of this Schedule of Terms, all the provisions of the Schedule of Terms shall continue in full force and effect as herein specifically provided mutatis mutandis till the Final Settlement Date.
6. CHARGES & EXPENSES
a) The Borrower and Obligors undertake to pay, forthwith on demand to the Lender, all costs and expenses incurred and/or to be incurred by the Lender in relation to any of the Loans including for the preparation, execution, preservation, performance, enforcement and realization of the Facility Documents, and other instruments in connection with the Loans. b) Any and all stamps duty, legal fees, registration charges or other taxes/levies, in respect of the Loan availed and/or in respect of the Facility Documents evidencing/ concerning the Facility and/or any penalty(ies) that may be imposed, shall be borne and paid for solely by the Borrower and Obligors without claiming any set-off, counterclaim, damages etc. If the Borrower or Obligors fails to pay the same, the Lender will make such payments, in which event such amounts paid by the Lender will form part of the principal amount of the Loan disbursed. The Borrower shall reimburse and pay to the Lender immediately on demand actual 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, Sanction Letter, and any Security Documents. If at any time hereafter it is found or required that any extra stamp duty is payable on the Transaction Documents and /or if it is ascertained that stamp duty at a rate higher than the duty presently paid on this Agreement, is payable/required to be paid then the Borrower shall immediately pay the same with penalty (if any) and keep the Lender indemnified and save harmless at all times from the payment thereof. c) The Borrower hereby authorizes the Lender to deduct any and all amounts payable towards stamp duty, legal fees, registration charges or other taxes/levies, in respect of the Loan and/or the Facility Documents, as may be applicable from time to time, from the Disbursement. The Borrower agrees to pay to the Lender all such other charges and fees as may be levied by the Lender from time to time, including but not limited to fees and charges for the services payable to the Lender such as Loan cancellation, rebooking of the Loan, issuance of duplicate NOCs and/or Cheques. For avoidance of doubt, all amounts payable by the Borrower pursuant to this paragraph 6 shall be exclusive of any Taxes applicable thereon.
7. EVIDENCE OF DEBT
a) The Lender shall maintain in accordance with its usual practice, an account (“the Loan Account”) of the Borrower, in its books, evidencing the amounts payable by the Borrower to the Lender till the Final Settlement Date. b) The Borrower and Obligors hereby irrevocably agree to accept the statement of account provided by the Lender, with respect to the Outstanding Amount and the entries thereof, as true and correct. c) In any legal action or proceeding arising out of or in connection with the Facility Documents, the entries made in the Loan Account shall be conclusive evidence of debt and of the amounts payable, as therein recorded, by Borrower to the Lender. d) The Borrower and Obligors hereby agree to accept the statement of accounts of the Lender for any costs, charges and expenses as sufficient proof of the amounts due and payable to the Lender.
a) The Borrower and each Obligor hereby jointly and severally covenant and represent that they shall be responsible to comply with the covenants and obligations applicable to each of them as contained in the Facility Documents. Further, the Borrower and each Obligor shall jointly and severally indemnify and shall keep indemnified the Lender and its officers, employees, respective representatives (acting on behalf of the Lender) or any of them (each an “Indemnified Party”) against any and all losses, expenses, liabilities, obligations, actions, proceedings, claims, demands and judgments (including without limitation legal and other fees on a full indemnity basis and any increased costs) and Taxes imposed, asserted against or incurred by any Indemnified Party due to non-performance or non-observance or inaccuracy of any of the undertakings, covenants, representations and warranties and agreements on the part of the Borrower and/or each Obligor herein contained (including but not limited to due to the information produced or approved by the Borrower and/or each Obligor being to be misleading and/or deceptive, not true or incorrect in any respect, or due to any enquiry, investigation, subpoena (or similar order) or litigation with respect to the Borrower and/or each Obligor or with respect to the transactions contemplated or financed under this Schedule of Terms and/or the Master Agreement, or due to a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower), or under any document delivered hereunder or pursuant hereto in respect of any matter or thing done or omitted by the Borrower and/or each Obligor relating in any way whatsoever to the Master Agreement or any Facility Document. All sums necessary to effect the indemnity contained under this paragraph 9 shall form part of the Outstanding Amounts and shall be secured by the Security Documents. b) Without limitation to the indemnity as set out in Clause 9(a) above, the Borrower and each Obligor shall jointly and severally indemnify and shall keep indemnified each Indemnified Party against any and all losses, expenses, liabilities, obligations, actions, proceedings, claims, demands and judgments (including without limitation legal and other fees on a full indemnity basis and any increased costs) and taxes imposed, asserted against or incurred by any Indemnified Party arising from distribution or shipment of the Goods or any dispute or discrepancy arising out of or in connection the Distributor/OEM or with any vendor or manufacturer of the relevant Goods. c) For avoidance of doubt, the Borrower shall not withhold or refuse to make any payment to the Lender in accordance with the terms of the Facility Documents in the event of any dispute or discrepancy arising out of or in connection the Distributor/OEM or the vendor or manufacturer of the relevant Goods or any Good supplied by Distributor/OEM (including but not limited to shipment delays or product defects) in respect of which the proceeds of the Loans have been used to pay to Distributor/OEM.
10. CROSS DEFAULT
The Borrower and each Obligor, unconditionally and irrevocably, agrees, confirms and acknowledges that any default by the Borrower and any Obligor under any other credit Master Agreement or arrangement with any group entities of the Lender, their respective Affiliates or its successors-in-interest or any other bank/financial institution/non-banking financial company/housing finance company shall constitute an Event of Default under the Master Agreement.
11. LAW AND ARBITRATION
a) Subject to clause11 (b), the courts in New Delhi shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the Facility Documents (including any dispute relating to any non-contractual obligation arising) (“Dispute”). b) Arbitration a) Subject to the Lender’s right to exercise any remedies under the DRT Act or the SARFESI Act, the Parties agree that at the option of the Lender, any Dispute may be referred to arbitration by the Lender, which decision shall be binding on the Borrower and the Obligors. b) If the Lender chooses that any Dispute is to be resolved by arbitration under this clause, the Lender on the one hand shall appoint 1 (one) arbitrator, the Borrower and the Obligors (acting through themselves or the Borrower, as the case may be) on the other hand, shall appoint the second arbitrator and the 2 (two) arbitrators so appointed shall appoint the third arbitrator who shall act as the presiding arbitrator. In the event a party fails to appoint their arbitrator for any reason whatsoever within 15 (fifteen) days of another party appointing the arbitrator, then, the appointment process set forth in the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) shall be followed. The seat of arbitration shall be at New Delhi, India and the arbitration shall be governed by the provisions of the SIAC Rules. The language of the arbitration proceedings shall be English. The expenses of the arbitration shall be borne in such manner as the arbitral tribunal may determine. The award shall be final, conclusive and binding on all parties concerned. The arbitration tribunal may lay down from time to time the procedure to be followed in conducting arbitration proceedings and shall conduct the arbitration proceedings in such manner as it considers appropriate. c) Notwithstanding anything contained hereinabove, in the event of any law being made or amended so as to bring the Lender under the SARFESI Act or the DRT Act, or any other special legislation to enable the Lender to enforce the security under the SARFESI Act or proceed to recover dues from the Borrower and/or Obligors under the DRT Act, then the Lender shall be entitled at its sole discretion to initiate such additional / parallel actions as it deems fit. The Parties agree that any arbitration proceedings commenced prior to such additional / parallel actions being initiated by the Lender shall, if mutually agreed to between the parties to such arbitration, stand terminated and the mandate of the arbitrators shall come to an end from the date of such mutual agreement between the parties. d) It is clarified for the avoidance of the doubt that this clause is for the benefit of the Lender. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any courts with jurisdiction. To the extent allowed by Applicable Law, the Lenders may take concurrent proceedings in any number of jurisdictions. e) The Borrower and the Obligors, are entitled to initiate legal proceedings in respect of any Dispute against the Lender only in the courts of New Delhi.
a) any Notice to be given by Lender to the Borrower and/or the Obligors (as may be applicable), shall be effective and deemed to have been duly and sufficiently served on the Borrower and/or the Obligors in accordance with the notice details set out in Schedule I of the Master Agreement, three days after the same shall have been delivered to the post office/courier agency properly addressed to the Borrower and/or the Obligors at the address mentioned at Schedule I of the Master Agreement and if delivered to the Borrower and/or the Obligors (as may be applicable) against acknowledgment, it shall be deemed to have been duly served as on the date of delivery and if sent through fax, on receipt of confirmation and if sent through email, on successful sent mail confirmation. b) A certificate by an officer of the Lender that the notice was posted or served, as the case may be, shall be final, conclusive and binding on the Borrower and/or the Obligors.
13. NOT USED
14. TIME TO BE OF THE ESSENCE OF THE MASTER AGREEMENT
Time shall be the essence of the Master Agreement (including any or all Schedules, Annexures and this Schedule of Terms hereto) in so far as it relates to the observance or performance by the Borrower and any Obligor of all or any of the obligations of the Borrower and any Obligor including payment of any sum due hereunder.
Any waiver or forbearance or delay on the part of the Lender to insist upon the performance of any terms and conditions of the Facility Documents, or to exercise any right or privilege conferred in the Facility Documents, or to demand any penalties resulting from any breach of any of the terms or conditions of the Facility Documents shall not be construed as a waiver on the part of the Lender of any of the terms or conditions of the Master Agreement and/or this Schedule of Terms or of any of its rights or privileges or of any other default on the part of the Borrower, and all original rights and powers of the Lender under the Facility Documents will remain in full force, notwithstanding any such forbearance or delay.
16. ENTIRE AGREEMENT
The Master Agreement together with the Schedule of Terms, the Security Documents, any Schedules executed hereto, security documents/promissory note/collaterals/balance confirmation letters that the Borrower may execute/provide at the request of the Lender to secure the due repayment of the Outstanding Amounts together with all applicable interests and charges hereunder, contains the entire understanding of the Parties with respect to its subject matter. The Master Agreement and this Schedule of Terms supersedes all prior agreements and undertakings between the Parties with respect to its subject matter.
17. ASSIGNMENT AND SUCCESSION
a) The Facility Documents shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors. The Borrower, its heirs, successors, legal representatives, executors, administrators and successors-in-interest, as the case may be, shall be bound by the terms of the Master Agreement. However, the Borrower and/or the Obligors shall not assign their respective rights and obligations under the Facility Documents without the prior written consent of the Lender. b) Each of the Lender shall be entitled to transfer any Loan or part thereof or assign its rights and obligations under the Facility Documents without the Borrower’s or other Lenders’ consent and any such Person (“New Lender”) to whom the Loan or any part thereof is assigned or transferred shall be deemed to be a Lender and shall be bound by the terms and conditions of the Facility Documents. The transferring Lender and the New Lender shall execute a Transfer Certificate. The Lenders shall notify the Borrower upon the transfer of any Loan or part thereof to the New Lender and upon the Loan or any part thereof or any rights being assigned or transferred to the New Lender.
The Master Agreement and this Schedule of Terms may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together, shall constitute one and the same instrument.
19. INVALIDITY OF ANY PROVISION
If any of the provisions of the Master Agreement (including the Schedule of Terms) becomes invalid, illegal or unenforceable in any respect under any applicable law or regulation or government policy, the validity, legality and enforceability of the remaining provisions (and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable), shall not in any way be affected or impaired. Any invalid or unenforceable provision of the Master Agreement shall be replaced with a provision which is valid and enforceable and most nearly reflects the original intent of the unenforceable provision, in a mutually agreeable manner.
a) The Borrower and the Obligors agree and acknowledge that it has read the entire Master Agreement, and the Standard Terms, the duly filled in Schedules hereto and the Annexures thereto. The Borrower and Obligors declare that the Borrower and Obligors shall be bound by all the conditions mentioned herein. b) The Borrower and the Obligors further agree and declare that the Master Agreement, this Schedule of Terms, and other documents have been explained to the Borrower and Obligors in the language understood by the Borrower and the Obligors and that the Borrower and Obligors has understood the entire meaning of various clauses and schedules and Annexures forming part and parcel of the Master Agreement as well as of the other documents signed/executed by the Borrower and the Obligors.