(1) Bajaj Finance Limited, a company registered under the Company‟s... registered office at Mumbai-Pune Road, ... – PRE-SHIPMENT FINANCE FACILITY

(1) Bajaj Finance Limited, a company registered under the Company‟s... registered office at Mumbai-Pune Road, ... – PRE-SHIPMENT FINANCE FACILITY

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