EXHIBIT 4.5
[INDIAN CURRENCY -- 100 RUPEE NOTE]
RUPEE LOAN AGREEMENT
THIS AGREEMENT made the 3rd day of July 1998 Between XXXXXX INFOWAY
LIMITED, a company within the meaning of the Companies Act, 1956 and having its
Registered Office at May Fair Centre, 1/8-303/36 S.P. Road, Secunderabad
(hereinafter referred to as "the Borrower", which expression shall, unless it be
repugnant to the subject or context thereof, include its successors and
permitted assigns) of the ONE PART And EXPORT-IMPORT BANK OF INDIA, a
corporation established under the Export-Import Bank of India Act, 1981 and
having its Head Office at Centre One, Floor 21, World Trade Centre, Cuffe
Parade, Mumbai 400 005 (hereinafter referred to as "Exim Bank" which expression
shall, unless it be repugnant to the subject or context thereof, include its
successors and assigns) of the OTHER PART.
WHEREAS
i) The Borrower has requested Exim Bank to grant to it financial
assistance by way of a Rupee Loan for the purpose mentioned in Schedule I.
ii) Exim Bank has agreed to grant the said financial assistance to
the Borrower upon the terms and conditions hereinafter mentioned.
NOW IT IS HEREBY AGREED as follows:
I. Definitions
All expressions wherever used in this Agreement and in the Schedules
and Annexure hereto shall, unless the context may otherwise require, have the
meanings assigned to them in Schedule I.
II. Rupee Loan
Exim Bank hereby agrees to lend and disbursement to the Borrower and
the Borrower agrees to avail of the Rupee Loan facility from Exim Bank for the
purpose and upon the terms and subject to the conditions contained in this
Agreement.
III. Conditions for Disbursement
The obligation on the part of Exim Bank to make a disbursement to the
Borrower hereunder and maintain the Rupee Loan shall be subject to compliance by
the Borrower with the following among other conditions contained in the Rupee
Loan Agreement, to the satisfaction of the Exim Bank:
(i) the Borrower shall have produced a certified true copy each of the
contract, if any, with overseas supplier for import of machinery and equipment,
and all related documents and documentary evidence that may be listed in the
Letter of Sanction including for arrangements made with bank(s)/financial
institution(s) for financing the projected expenditure and the working capital
requirements as per the financing plan submitted to Exim Bank;
(ii) The Borrower shall have furnished a drawdown schedule to Exim Bank
within a period of 30 days from the date of this Agreement indicating the
amount(s) of disbursement required and the proposed date(s) thereof,
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and shall have complied with the disbursement Procedure prescribed by the
Lender.
(iii) the proposed date for a disbursement hereunder shall be a Business
Day failing on or before the Termination Date, unless otherwise agreed by Exim
Bank;
(iv) the Borrower shall have obtained or shall have made arrangements
satisfactory to Exim Bank for obtaining all necessary approvals, licences,
consents and clearances from the Government, Reserve Bank of India and other
concerned regulatory and corporate authorities as may be specified in the Letter
of Sanction, for the borrowings under the Rupee Loan Agreement, the carrying on
of the business of the Borrower as contemplated to be carried on, the
implementation of the Project as also for the due execution and delivery of and
performance under the Rupee Loan Agreement and documents hereby contemplated and
for creation of the Security as herein provided;
(v) the Borrower shall have produced to Exim Bank a certificate of the
Borrower's Statutory auditors in the form prescribed by Exim Bank certifying to
the effect that the aggregate amount of the Rupee Loan facility together with
the moneys borrowed by the Borrower will not exceed the limit on borrowings
fixed by its shareholders in terms of the relevant provisions of the Companies
Act, 1956;
(vi) the Borrower shall have created valid Security and furnished
Security Documents in favour of Exim Bank and, wherever applicable, shall have
produced evidence satisfactory to Exim Bank of the filing of particulars of
creation of charge(s) constituting the Security with the concerned registering
authorities;
(vii) the Borrower shall have furnished/procured all necessary documents
in form and substance acceptable to Exim Bank and shall have also fulfilled all
condition(s) precedent to disbursement including payment offer, charges and
other dues, if any, as may have been stipulated by Exim Bank in the Letter of
Sanction;
(viii) All representations and warranties made by the Borrower in its
application for the Rupee Loan facility and in the Rupee Loan Agreement shall
have remained true and correct on the date of disbursement hereunder as if each
of them shall have been repeated herein with respect to the facts and
circumstances existing on the date thereof;
(ix) no Event of Default and no event which, with the giving of notice
or lapse of time or both would become an Event of Default, shall have happened
and be continuing.
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IV. Fee
The Borrower shall pay to Exim Bank a Fee at the rate and in the
manner as may be specified in Schedule I hereto. The Fee shall not be refunded
by Exim Bank even if the Rupee Loan facility or any part thereof shall not be
availed of or cancelled for any reason whatsoever.
V. Interest
The Borrower shall pay to Exim Bank interest on the principal amount
of the Rupee Loan outstanding from time to time half-yearly on June 20 and
December 20 in each year at the Interest Rate specified in Schedule I Provided
that any interest accrued and remaining outstanding on the final Repayment Date
shall be paid on that date.
VI. Repayment
The Rupee Loan shall be repaid to Exim Bank in accordance with the
repayment schedule set out in Schedule II hereto.
VII. Liquidated Damages
In the event of any default in payment of an instalment of principal,
interest or any other monies when due under this Agreement, the Borrower shall
be liable to pay, without prejudice to the remedies available to Exim Bank under
this Agreement or otherwise, additional interest by way of liquidated damages on
the defaulted amount(s) for the period of default at the rate of two percent
(2%) per annum payable in the manner and on the dates specified above for
payment of interest.
VIII. Security
Repayment of the Rupee Loan together with payment of interest,
compound interest, additional interest by way of liquidated damages in case of
default, costs, charges and expenses and all other monies whatsoever stipulated
in the Rupee Loan Agreement shall be secured by the Borrower by creation of the
Security and/or execution and delivery of the Security Documents specified in
Schedule III-A in accordance with the provisions of the Rupee Loan Agreement.
Any mortgage/charge comprised in the Security shall rank in the order of
priority set out in Schedule III-B.
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IX. Communication
Any notice or other communication herein contemplated to be given by
one party to the other shall be sent to such party's address specified in
Schedule IV.
X. General Conditions to form an integral part of Agreement
This Agreement shall be read with the General Conditions contained in
the Annexure hereto which shall form an integral part of this Agreement and be
deemed incorporated herein by reference and the parties hereto agree to accept
and be bound by the provisions thereof.
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SCHEDULES
FOR
RUPEE LOAN AGREEMENT
SCHEDULE I
(Ref. Clause I)
DEFINITIONS
"Business Day" shall be construed as reference to a day on which banks
(and Exim Bank) shall remain open for business in Mumbai for the purpose
contemplated by this Agreement;
"Event of Default" shall mean any of the events specified in Section
XXI(2) of the General Conditions;
"Fee" shall mean one time non-refundable service fee payable by the
Borrower to Exim Bank at the rate of one per cent (1%) of the amount of the
Rupee Loan facility within a period of 30 days from the date of Letter of
Sanction;
"General Conditions" shall mean the general terms, conditions,
covenants and other provisions and stipulations set out in the Annexure hereto
which shall form an integral part of this Agreement and be deemed to be
incorporated herein by reference;
"Interest Rate" shall mean the rate of 15.5% per annum at which
interest shall be chargeable by the Lender hereunder on the amount of the Rupee
Loan:
"Letter of Sanction" shall mean the letter No. OIF:EOU:D-282:254 dated
June 05, 1998 addressed to the Borrower by Exim Bank and incorporated herein by
reference, advising sanction of the Rupee Loan facility upon the main terms and
conditions therein stipulated and duly accepted by the Borrower, and shall
include amendment(s)/modification(s) therein as may be issued by Exim Bank from
time to time;
"Loan Agreement" shall mean this Agreement read with the General
Conditions;
"Project" shall mean the setting up of a public data network for
providing Electronic Commerce, Electronic Data Interchange and Internet
services;
"Repayment Date" shall mean a date on which an instalment of the Rupee
Loan falls due for payment in accordance with the amortization schedule set out
in Schedule II hereto;
"Rupee Loan" shall mean the rupee loan facility agreed to be provided
by the Lender to the Borrower in pursuance of Clause II hereof under its lending
programme for Export Oriented Units (Export Facilitation Activities) up to the
sum not exceeding Rs 21.50 crores (Rupees Twenty One crores and Fifty Lacs only)
for the purpose of financing/ payment/funding/remittance of:
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(i) a part of the cost and related expense of supplies and/or
services required for execution of the Project and/or
"Security and/or Security Documents" shall mean the security and/or
the documents mentioned in Schedule III-A hereto, each in form and substance
acceptable to Exim Bank;
"tax" shall be construed so as to include any tax, levy, impost, duty
or other charges of a similar nature;
"Termination Date" shall mean the earlier of (a) December 31, 1990 and
(b) the first Business Day on which the entire Rupee Loan has been disbursed.
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SCHEDULE II
(Ref. Clause VI)
AMORTIZATION SCHEDULE
The Rupee Loan shall be repaid by the Borrower in 6 (Six)
substantially equal half-yearly instalments, commencing from December 20, 1999,
or such other date closer to that date as may be advised by Exim Bank at the
time of making the first disbursement.
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SCHEDULE III-A
(Ref. Clause VIII)
*SECURITY AND/OR SECURITY DOCUMENTS
(i) A certified true copy of the resolutions paused by the board of
directors of the Borrower, inter alia authorising the borrowing of the Rupee
Loan, execution of the Rupee Loan Agreement and Security Documents and creation
of the Security for the Rupee Loan.
(ii) (a) A first charge by way of hypothecation in favour of Exim
Bank over the Borrower's moveable fixed assets, both present and future.
(b) A mortgage of the Borrower's lands and other immoveable,
properties, both present and future, in the form acceptable to Exim Bank.
(iii) An irrevocable and unconditional guarantee in favour of Exim
Bank from Xxxxxx Computer Services Ltd, guaranteeing the due repayment of the
Rupee Loan and payment of interest thereon and all costs, charges, expenses and
other monies payable by the Borrower to Exim Bank under the Loan Agreement.
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SCHEDULE III-B
(Ref. Clause VIII)
(ORDER OF PRIORITY OF CHARGE)*
The mortgage and charge constituting Security in favour of Exim Bank
shall rank in the following order of priority:
Amount Secured/To be Secured by
Mortgage/Charge
-------------------------------
(1) Pari passu with the mortgage(s)/charge(s) created/to be NA
created by the Borrower as under:
(2) Exclusive first charge in favour of Exim Bank
(3) Prior and paramount over charge(s) created/to be created by NA
the Borrower in favour of:
(4) Second and subject to the charge(s) created/to be created NA
by the Borrower in favour of the following financial
institution(s)/bank(s):
*To be modified as per sanction terms.
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SCHEDULE IV
(Ref. Clause IX)
ADDRESS OF THE PARTIES FOR SERVICE OF NOTICE/COMMUNICATION
Name Mailing Address
---- ---------------
1. Xxxxxx Infoway Limited 00, Xxxxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxx - 600 015
Telephone: 000-0000000
Fax : 000-0000000
2. Export-import Bank of India Post Bag 16100 Cable EXIMINDIA
Centre One, Floor 21
World Trade Centre Telex
Cuffe Parade
Mumbai 400 005 Fax
India
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed the day and year first hereinabove written.
**The Common Seal of Xxxxxx Infoway Limited has, pursuant to the
Resolution passed by its Board of Directors at their meeting held on
July 3, 1998 hereunto been affixed in the presence of Xxxx Xxxxxxx R
one of its Directors and Shri Thiagarajank Secretary/Authorised Person who
have signed these presents in token thereof,
SIGNED AND DELIVERED BY EXPORT-IMPORT BANK OF INDIA by the hand of
Shri _____________________ its ____________________________.
**Common Seal provision to be modified if necessary, in order to conform to the
Articles of Association of the Borrower.
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ANNEXURE
GENERAL CONDITIONS
INDEX
SECTION HEADING PAGE
I. Definitions & Interpretation................................... 1
II. Terms of Disbursement.......................................... 1
III. Computation of Interest........................................ 2
IV. Interim Disbursement........................................... 3
V. Deferment of Repayment Date.................................... 3
VI. Prepayment..................................................... 3
VII. Appropriation of Payments...................................... 4
VIII. Security....................................................... 5
IX. Place and Mode of Payment by the Borrower...................... 6
X. Representations and Warranties................................. 6
XI. Affirmative Covenants.......................................... 8
XII. Negative Covenants............................................. 11
XIII. Project Records and Inspection................................. 12
XIV. Other conditions to apply during the currency of the Rupee Loan 13
XV. Cancellation, Suspension & Termination......................... 14
XVI. Acceleration of Repayment...................................... 15
XVII. Reimbursement of Costs and Expenses............................ 17
XVIII. Miscellaneous.................................................. 18
ANNEXURE
GENERAL CONDITIONS
I. Definitions & Interpretation
----------------------------
(1) Except as expressly specified herein, all expressions used in the
General Conditions and defined in the Loan Agreement of which the
General Conditions form a part, shall have the same meanings as given
to them in the Loan Agreement. In the event of any inconsistency
between any provision of the Loan Agreement and the General
Conditions, the relative provision of the Loan Agreement shall
prevail.
(2) In the Loan Agreement and in the General Conditions, words denoting
the singular shall include the plural and vice-versa. Reference to a
specified Clause or sub-Clause shall be construed as a reference to
that specified Clause or sub-Clause of the Loan Agreement and
reference to a specified Section or sub-Section shall be construed as
a reference to that specified Section or sub-Section of the General
Conditions.
(3) The headings of various Clauses and Sections in the Loan Agreement are
given for convenience of reference only and shall not affect the
interpretation of the relative provisions.
II. Terms of Disbursement
---------------------
(1) The Borrower shall be required to submit a drawdown schedule to Exim
Bank within 30 days from the date of the Loan Agreement. The Rupee
Loan facility shall be made available to the Borrower in one or more
disbursement(s) as may be decided by Exim Bank subject to the Borrower
complying with the provisions of the Loan Agreement and the
disbursement procedure stipulated by Exim Bank and provided the
financing of the expenditure shall be in consonance with the details
furnished to Exim Bank.
(2) Exim Bank shall make disbursement by payment for account of the
Borrower to the credit of such account with a bank in India as may be
advised by the Borrower. Exim Bank shall have the right to review the
costs incurred and progress made by the Borrower in connection with
the Project since the date of the first/previous disbursement before
making further disbursement(s). All collection/remittance charges, if
any, in respect thereof shall be borne by the Borrower. Interest on
the disbursement shall begin to accrue from the date of
transfer/authorisation by Exim Bank.
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(3) Exim Bank may, at its discretion, deduct from sums to be lent and
advanced by it to the Borrower, any monies then remaining due and
payable by the Borrower to Exim Bank under any other account(s) of the
Borrower.
III. Computation of Interest
-----------------------
(1) Notwithstanding anything to the contrary contained in the Agreement,
Exim Bank shall be entitled at all times during the currency of the
Rupee Loan to increase the Interest Rate whenever Exim Bank may deem
it necessary, having regard to any change in the directive, guidelines
or policy of the Government or of any regulatory, corporate or other
authority, applicable to Exim Bank, after notifying the Borrower in
writing of its intention to do so, and upon being notified by Exim
Bank, the Borrower shall be liable to pay interest on the amount of
the Rupee Loan then outstanding at such increased Interest Rate from
the date of notification. Provided However that if the increased
Interest Rate shall not be acceptable to the Borrower, then the
Borrower shall be at liberty to prepay, without any premium but after
giving 30 days' notice in writing to Exim Bank, the entire amount of
the Rupee Loan then outstanding together with interest accrued thereon
at such increased rate up to the date of prepayment and all other
monies then due and payable hereunder.
(2) Interest on the Rupee Loan and on all other monies accruing due under
the Loan Agreement shall, in case the same be not paid when due, carry
further interest at the same rate as aforesaid computed from the
respective due dates and shall become payable upon the footing of
compound interest with rests taken or made half-yearly. Provided
However that payment of such interest by the Borrower shall not
entitle it to withhold or defer payment of any moneys then due and
payable nor shall it in any manner prejudice the right of Exim Bank to
proceed against the Borrower for any default under the Loan Agreement.
(3) Computation of interest which shall have accrued under the Loan
Agreement for even periods of six months shall be made on an annual
basis. In all other cases, such computation shall be made on the
basis of actual number of days elapsed (including the first day of the
period during which it accrues but excluding the last) using 365 days
a year factor.
(4) All payments of interest to Exim Bank under the Loan Agreement shall
include interest tax and any other deduction(s) that may be required
at law to be made and/or paid by Exim Bank from the amount of interest
payable to it, to the intent that Exim Bank shall receive interest
from the Borrower free and clear of all taxes and deductions
whatsoever.
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IV. Interim Disbursement
--------------------
(1) In the event of Exim Bank, agreeing to make a disbursement at the
request of the Borrower pending compliance by it with any of the pre-
disbursement conditions and formalities, disbursement may be made by
Exim Bank against such interim securities/arrangements as may be
decided by it, and the Borrower shall be liable to pay interest on
such interim disbursement(s) at a higher rate if so stipulated by Exim
Bank until the Borrower shall have fully complied with all the pre-
disbursement conditions and formalities to the satisfaction of Exim
Bank. The Borrower shall also execute in favour of Exim Bank such
documents as may be required by it in this behalf.
(2) The Borrower shall be liable to repay interim disbursement(s) on
demand if so required by Exim Bank, and save as otherwise stipulated,
all interim disbursement(s) shall be deemed to have been made under
the Loan Agreement and accordingly all the provisions of the Loan
Agreement shall be applicable thereto. Any security including
guarantee(s) that may be furnished by the Borrower to Exim Bank for
securing interim disbursement(s) shall remain in full force and effect
until creation of the final security in terms of the Loan Agreement.
V. Deferment of Repayment Date
---------------------------
(1) Exim Bank may, at the request of the Borrower, in suitable
circumstances and at its absolute discretion agree to revise, vary or
postpone the Repayment Date of any instalment of the Rupee Loan or any
part thereof upon such terms, and conditions including the charging of
a higher rate of interest as may be decided by Exim Bank.
(2) If for any reason, the amount finally disbursed by Exim Bank out of
the Rupee Loan facility shall be less than the amount agreed to be
lent and disbursed to the Borrower under the Loan Agreement, the
amount of repayment instalments of the Rupee Loan shall stand reduced
proportionately but shall be payable on the Repayment Date(s)
specified in the Loan Agreement, or the repayment instalment(s) shall
be reduced by the unavailed portion of the facility in the inverse
order of maturity, at the discretion of Exim Bank.
VI. Prepayment
----------
(1) The Borrower may at any time after the Termination Date, prepay the
whole or any part of the Rupee Loan together with accrued interest
thereon subject
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to payment of prepayment premium at such rate as may be determined by
Exim Bank, having regard to the then remaining maturity period of the
Rupee Loan, and provided the Borrower shall have given to Exim Bank
not less than thirty days' notice in writing of its intention to
prepay.
(2) A notice given pursuant to sub-Section (1) shall be irrevocable; it
shall specify the amount and the date on which prepayment is proposed
to be made and shall oblige the Borrower to make such prepayment. Any
prepayment so made shall satisfy pro-tanto the Borrower's obligations
for repayment under Clause VI of the Loan Agreement. Amounts prepaid
may not be re-borrowed hereunder.
(3) If profitability of the Borrower, its cash flow and other
circumstances shall in the opinion of Exim Bank so warrant, then Exim
Bank shall be entitled to require the Borrow to repay the Rupee Loan
on dates earlier than the Repayment Date(s) specified in the Loan
Agreement and/or to increase the amount of instalment(s) of the Rupee
Loan, notwithstanding anything to the contrary contained therein.
VII. Appropriation of Payments
-------------------------
(1) Unless otherwise required by Exim Bank, any payment under the Loan
Agreement when made to or received/recovered by Exim Bank, shall be
appropriated in the following order and the Borrower waives any right
it may have to direct appropriation in any other order:
(a) costs and expenses;
(b) Fee;
(c) additional interest by way of liquidated damages;
(d) compound interest;
(e) interest; and
(f) instalments of principal due under the Loan Agreement.
(2) Notwithstanding anything contained in sub-Section (1) hereinabove,
Exim Bank may at its discretion, appropriate such payment towards
satisfaction of dues, if any, payable by the Borrower in respect of
other loan(s) borrowed from Exim Bank.
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VIII. Security
--------
(1) The Borrower shall, wherever applicable, furnish to Exim
Bank permission under Section 281(1) of the Income-Tax Act,
1961, and any other permission/consent of competent
authorities as may be required for the creation of valid
Security in favour of Exim Bank. The Borrower shall also
ensure that original of the relevant Security Document, as
applicable, and documentary evidence of registration of
creation/modification of charge in favour of Exim Bank,
shall be forwarded to Exim Bank upon registration.
(2) The Borrower shall also furnish to the Exim Bank prior
written consent of other charge-holder(s), if any,
permitting creation of the Security in favour of Exim Bank.
If the assets constituting the Security shall be required to
be charged exclusively in favour of the Exim Bank, then the
Borrower shall also furnish written consent of other charge-
holder(s), if any, in form and substance acceptable to Exim
Bank, for excluding such assets from the scope of security
in its/their favour.
` (3) The rights of Exim Bank under the Security and the Security
Document's shall, save if exclusively created in its favour,
rank pari passu with the rights thereover of any co-financer
to the Project without any preference or priority of one
over the other or others of them for all purposes and to all
intents but shall however at all times during the currency
of the Security rank prior to the rights of other charge-
holder(s) under charge(s), if any, created or that may
hereafter be created by the Borrower for securing borrowings
for its working capital or other requirements unless
otherwise agreed by Exim Bank.
(4) If Exim Bank shall at any time be of the opinion that the
Security provided by the Borrower shall have become
inadequate to secure the discharge of its liabilities and
obligations as then outstanding under the Loan Agreement,
then the Borrower shall forthwith on demand by Exim Bank,
provide such additional security as may be acceptable to
Exim Bank within the period, if any, stipulated by Exim
Bank. In such event, the Borrower shall furnish to Exim Bank
written consent of prior charge-holder(s), if any,
permitting creation of such additional security in favour of
Exim Bank which shall rank in the order of priority required
by Exim Bank.
(5) The Borrower shall keep Exim Bank advised in writing from
time to time of all its acquisitions of immoveable
properties and fixed assets, and whenever called upon by
Exim Bank, make out a clear and marketable title thereto to
the satisfaction of Exim Bank and charge the properties and
assets in its favour in such form and manner and within such
time as may be required by Exim Bank.
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IX. Place and Mode of Payment by the Borrower
-----------------------------------------
(1) Any payment to be made by the Borrower to Exim Bank under the
Loan Agreement shall be made by means of telegraphic, telex or
mail transfer by cheque or bank draft drawn in favour of Exim
Bank on a bank at Mumbai or at such other place and for the
credit of such account as may be notified by Exim Bank, so as to
enable it to realise the amount at par on or before the relative
due date. Credit for all payments by cheque/bank draft which is
realised, shall be given on the date of realisation or on the
relative due date whichever is later.
(2) All payments by the Borrower hereunder shall be made free and
clear of _________ without deduction for or on account of (i) any
set-off or counter-claim or (ii) any present or future tax,
except as may be required by law.
(3) Whenever any payment hereunder shall become due on a day which is
not a Business Day, the due date thereof shall be advanced to the
immediately preceding Business Day and the amount (if any) of
interest and Fee shall be adjusted accordingly.
X. Representations and Warranties
------------------------------
Except as otherwise disclosed in writing to Exim Bank, the
Borrower shall be deemed to have made the following representations and
warranties, namely, that:
(i) the Borrower is a company duly organised and existing under
the laws of India and has all necessary corporate powers to
carry on its business, to avail of the Rupee Loan facility
and to enter into the Loan Agreement and each of the
documents thereby contemplated and to perform its
obligations hereunder and thereunder, and all corporate and
other actions required to authorise the execution of the
Loan Agreement and each of such documents and the
performance by the Borrower of its obligations hereunder and
thereunder have been duly taken;
(ii) the Borrower has not taken any corporate action nor have any
other steps been taken or legal proceedings been commenced
or (to the best of the Borrower's knowledge and belief)
threatened against the Borrower for its winding-up or
dissolution or reorganisation or for the appointment of a
receiver, trustee or similar officer of itself or of any of
its assets or revenues;
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(iii) the Borrower is not in breach of or default under any
agreement to which it is a party or which is binding on the
Borrower or any of its assets to an extent or in a manner
which, in the opinion of Exim Bank, might have a material
adverse effect on its business or financial condition;
(iv) the information furnished by the Borrower to Exim Bank in its
application for the Rupee Loan facility and in connection with
its business activities and the Project which shall be deemed
to be the basis on which the Rupee Loan facility shall have
been sanctioned, has remained true, complete and accurate in
all material respects and the Borrower is not aware of any
material facts or circumstances that have not been disclosed
to Exim Bank which, if disclosed, might adversely affect the
decision of a bank to provide similar facility to the
Borrower;
(v) the execution of the Loan Agreement and each of the documents
thereby contemplated when executed, the borrowings hereunder
and the performance by the Borrower of its obligations
hereunder and thereunder, will not constitute or result in
breach of any law, rule or regulation or contravene any
judgement, decree or order of any court or governmental
authority binding on the Borrower;
(vi) the obligations expressed to be assumed by the Borrower in the
Loan Agreement are, and in each of the documents thereby
contemplated when executed by the Borrower shall be, legally
valid obligations binding on the Borrower in accordance with
the terms hereof and thereof;
(vii) the Borrower is conducting its business and operations in
compliance with all applicable laws and directives of
governmental authorities having the force of law as also with
all applicable published guidelines and policy statements
whether or not having the force of law;
(viii) the Borrower has filed true, complete and timely tax returns
and has paid all taxes due in respect of its business
operations except to the extent where payment of such taxes is
being contested in good faith, adequate reserves having been
provided for the payment thereof;
(ix) nothing contained in the Loan Agreement conflicts with the
Memorandum and Articles of Association or any other
constitutional document of the Borrower or with any other
document to which the Borrower is a party or by which it is
bound;
(x) the Borrower has a good, clear and marketable title to all the
properties and assets ownership of which is reflected in its
most recent audited financial statements and the notes
thereto, and that all such properties and assets are free and
clear of mortgages, liens,
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charges and other encumbrances, save as reflected in the notes
to the audited financial statements or disclosed to Exim Bank;
(xi) no consent, approval, exemption or other action by, or notice
to or filing with any governmental authority is necessary in
connection with the execution, delivery, performance or
enforcement of the Loan Agreement or any of the documents
thereby contemplated, except as may have been obtained and
certified true copies of which have been delivered to Exim
Bank;
(xii) there are no suits, proceedings, claims or disputes pending or
threatened against or affecting the Borrower or any of its
properties and assets, the adverse determination of which, in
the opinion of the Exim Bank, might affect the Borrower's
financial condition or operations or impair its ability to
perform its obligations under the Loan Agreement or under any
of the documents thereby contemplated;
(xiii) the Borrower is not in breach or violation of any applicable
law, rule or regulation in force within or outside India
governing the implementation of the Project or utilisation of
the Rupee Loan facility or borrowings under the Loan
Agreement;
(xiv) no event has occurred and is continuing which is, or with the
lapse of time or notice or both, would constitute an Event of
Default;
(xv) all financial statements, information and data furnished by
the Borrower to Exim Bank are complete and correct and such
financial statements have been prepared in accordance with the
generally accepted accounting principles and practices in
India consistently applied and they accurately and fairly
present the financial condition and result of operations of
the Borrower as of the date thereof. Since the date of its
most recent financial statements, there has been no change in
the Borrower's financial condition or results of operations to
an extent as may impair the Borrower's ability to repay the
Rupee Loan on the Repayment Date(s) or to perform any other
obligation under the Loan Agreement in accordance with the
terms thereof. The Borrower has no contingent obligations,
liabilities for taxes or other outstanding financial
obligations which are material in the aggregate, except as
disclosed in such statements, information and data.
XI. Affirmative Covenants
---------------------
The Borrower covenants and agrees that so long as the Rupee Loan
and/or any other monies due and payable by the Borrower to Exim Bank under the
Loan Agreement shall remain unpaid, the Borrower will:
8
(a) apply all moneys borrowed hereunder for the purpose for which
the Rupee Loan has been sanctioned by Exim Bank;
(b) (i) as soon as available but no later than 45 days after the
close of each quarter of its financial year furnish its
unaudited financial statements for such period to Exim Bank,
duly certified by an officer of the Borrower not below the
designation of company secretary or if Exim Bank shall so
require, by its managing director, as being complete and
correct and fairly representing its financial condition and
results of operation;
(ii) as soon as available but no later than 180 days after the
close of each financial year of the Borrower, furnish its
financial statements for the year then ended to Exim Bank,
audited and certified by an independent auditor acceptable to
Exim Bank. Such certificate shall not be qualified or limited
because of restricted or limited examination of such auditor
and shall be accompanied by a statement that, during such
examination, the auditor observed no evidence of an Event of
Default or any circumstances which upon lapse of time or
notice or both, would become an Event of Default, or a
statement that evidence of an Event of Default or any such
circumstances was found;
(iii) within 30 days after the end of each quarter of its financial
year, submit a status report on the Project in such form and
containing such information as Exim Bank may request, signed
by a responsible officer of the Borrower referred to in
paragraph (i) above;
(iv) furnish such other statements, lists of property, accounts,
budgets, projections, opinions, certificates, information
and/or other documents as Exim Bank may reasonably require;
(c) maintain adequate books of accounts and records in accordance
with generally accepted accounting principles and practices in
India consistently applied and permit employees or agents of
Exim Bank at all reasonable times to inspect its properties
and to examine or audit its books of accounts and records and
make copies and memoranda thereof;
(d) promptly give written notice to Exim Bank of:
(i) any litigation, arbitration or other proceedings commenced or
threatened against the Borrower including any application for
its winding-up, which if determined against the Borrower may
impair its ability to discharge its obligations under the Loan
Agreement;
(ii) any dispute between the Borrower and any governmental
authority or Project authority or between the Borrower and its
sub-contractor or supplier concerned with the Project;
9
(iii) any Event of Default or any event which but for the giving of
notice or lapse of time or both would constitute an Event of
Default;
(iv) any event or incident such as strike, lock-out, fire or an act
of God or force-majeure, happened or likely to happen which
may disable or make it improbable for the Borrower to conduct
its business activities or to complete the Project or which
may delay its completion or cause cost escalation or compel
the Borrower to abandon the Project; and
(v) any other matter which has caused or might lead to a material
adverse change in the Borrower's financial condition or
operations, or adversely affect the observance and performance
of its obligations hereunder;
(e) obtain, maintain and promptly renew from time to time all
authorisations, approvals, consents, licences and exemptions
as may be required to enable it to perform its obligations
under the Loan Agreement or under the documents thereby
contemplated or as may be required for the validity or
enforceability thereof, or otherwise necessary for the
Project;
(f) maintain and preserve its corporate existence and all rights
and privileges enjoyed by it, conduct its business in an
orderly, efficient and customary manner, maintain and keep all
its properties in good working order and condition and fully
and effectively insured; comply with all laws, rules,
regulations and directions of any governmental authority non-
compliance of which may adversely affect its business or
assets, and discharge all its indebtedness and perform all
contractual obligations promptly pursuant to agreements to
which it is a party or by which it is bound;
(g) pay regularly all taxes, assessments, dues, duties and imposts
in respect of its business, income and immoveable properties,
including any tax payable on interest on the Rupee Loan;
(h) maintain personnel for implementation of the Project to the
satisfaction of Exim Bank, and whenever required, submit bio-
data and other relevant particulars of such personnel to Exim
Bank;
(i) regularly pay premia in respect of all its insurance policies
and keep the same in full force and effect and reimburse Exim
Bank for any premium paid by it;
(j) ensure that its payment obligations under the Loan Agreement
will at all times rank in right of payment at least pari passu
with all its other secured debts, whether now or hereafter
outstanding, and discharge its liabilities to Exim Bank
without preference or priority, to any other lender;
10
(k) cause its promoters to meet any shortfall in resources or
costs overrun for completion of the Project or meeting any
increase in the cost of machinery to be acquired by means of
the Rupee Loan, on terms satisfactory to Exim Bank;
(l) constitute a project management committee of its directors and
representatives of lenders financing the Project, including
Exim Bank, for the purpose of supervising and monitoring the
progress of implementation as also operation of the Project.
XII. Negative Covenants
------------------
The Borrower further covenants and agrees that until full and final
payment by the Borrower of all its indebtedness under the Loan Agreement, it
shall not, without the prior written consent of Exim Bank:
(a) create any mortgage, charge, lien or other encumbrance in any
form whatsoever over any of its properties and assets
constituting the Security except a pari passu mortgage/charge
in favour of any term lender(s) who may have co-financed or
agreed to co-finance the Project;
(b) create, incur or assume any further indebtedness of any nature
whether for borrowed money or otherwise, except any
indebtedness for its working capital or otherwise arising out
of the ordinary course of business;
(c) enter into any merger/amalgamation or consolidation or sell,
lease or transfer all or a substantial portion of its
undertaking and/or assets otherwise than in the ordinary
course of business;
(d) effect any material change in composition of its board of
directors or in the management set-up or ownership of its
business;
(e) assume, guarantee, endorse or in any manner become directly or
contingently liable for or in connection with the obligation
of any person, firm, company or corporation except for
transactions in the ordinary course of business;
(f) amend its Memorandum and Articles of Association or alter its
capital structure or its shareholding pattern;
(g) alter the scope of the Project or undertake any
diversification, modernisation or expansion of its business
activities or set up a new project;
11
(h) allow transfer/disposal of shareholding of any of the
promoters in its equity/quasi equity capital or permit
withdrawal of any subordinated loans or deposits obtained at
any time by the Borrower from its directors and their friends
and associates to finance a part of the cost of the Project or
the working capital requirements of the Borrower, or make
prepayment of any long-term debt;
(i) enter into any transaction with any person or entity otherwise
than in the ordinary course of business on usual commercial
terms or in which the Borrower would be obligated to pay more
than the nominal commercial price for any purchase or to
receive less than the full commercial price (subject to normal
trade discounts for its services);
(j) declare or pay any dividend or make any other distribution to
any of the shareholders if the Borrower shall be in default in
making any payment under the Loan Agreement, and then only out
of the profits of the then current financial year after making
necessary provisions.
XIII. Project Records and Inspection
------------------------------
So long as any part of the Rupee Loan shall remain outstanding, the
Borrower shall:
(a) maintain separate records showing expenditure incurred in
respect of the Project and the machinery, if any, acquired by
means of the Rupee Loan and the operations and financial
condition of the Borrower, and permit the authorised agents
and representatives of Exim Bank to carry out all technical
survey and inspections of works during the stage of setting-up
and operations of the Project as also inspection of the
records, registers and accounts of the Borrower. Such agents
and representatives of Exim Bank shall have free access at all
reasonable times to such records, registers and accounts and
to all schedules, cost estimates, plans and specifications
relating to such works, and they shall receive full co-
operation and assistance from the Borrower. The cost of such
inspection shall be payable by the Borrower forthwith on
receipt of a notice of demand from Exim Bank;
(b) forward to Exim Bank on demand a chart showing the actual
progress of the Project as compared to original schedule
together with percentage of completion of all major phases of
acquisition and/or construction/erection of equipment, plant
and machinery, and on completion of the Project, furnish to
Exim Bank a statement with various heads of expenditure
showing the final cost of the Project as compared to the
original estimate together with reasons for variation(s), if
any.
12
XIV. Other conditions to apply during the currency of the Rupee Loan
---------------------------------------------------------------
(1) (i) Exim Bank shall be entitled to appoint any person, firm, company
or association of persons engaged in technical, management or
consultancy business or any chartered accountant/cost accountant for
carrying out any specific assignment to supervise and monitor progress
of the Project, examine systems and procedures adopted by the Borrower
for its working or to act as its concurrent or internal auditors or
for conducting a special audit of the Borrower. Such
consultants/accountants shall give their report to Exim Bank.
(ii) The Borrower shall give full co-operation and provide necessary
assistance to the person or firm so appointed by Exim Bank in
carrying out his/their assignment. The costs, charges and
expenses including professional fees and travelling and other
expenses of and incidental to such appointment shall be payable
by the Borrower and shall be reimbursed to Exim Bank forthwith on
receipt of a notice of demand in this behalf.
(2) Exim Bank shall also have the right to review the management set-up of
the Borrower and if found necessary, to require restructuring thereof
including the formation of committees or sub-committees of the
management of the Borrower with such powers, authorities and functions
as shall be considered desirable by Exim Bank.
(3) The Borrower shall not avail of any double finance from any source in
respect of the same expenditure being financed by Exim Bank hereunder
nor shall it avail of any additional finance in respect of the Project
from any undisclosed source without the prior written consent of Exim
Bank.
(4) Without in any way affecting the Borrower's obligations hereunder,
Exim Bank shall be entitled to apply, set-off and appropriate, at its
discretion and without reference to the Borrower, any moneys belonging
to the Borrower or lying at credit in any account of the Borrower with
Exim Bank or to which it may otherwise be entitled, (so far as the
same may extend) in or towards reimbursement/payment of any amount
payable by the Borrower under the Loan Agreement, and to the extent
that such monies may be denominated in a foreign currency, to apply
monies in such foreign currency to the extent as shall on the date of
such application, set-off or appropriation, be equivalent of the
amounts due hereunder, and for the purpose, also to obtain approvals,
consents and permissions from all competent authorities as may be
necessary in this behalf.
(5) All other conditions stipulated in the Letter of Sanction or
subsequently imposed by Exim, Bank shall continue to remain applicable
to the Rupee
13
Loan as if each of them were repeated in extenso herein and
accordingly, the Borrower shall also be liable to observe and perform
all such conditions.
XV. Cancellation, Suspension & Termination
--------------------------------------
(1) Cancellation by Notice to Exim Bank
The Borrower may, by a notice in writing to Exim Bank, cancel the
Rupee Loan facility or any part thereof which the Borrower may not have availed
of prior to the Termination Date.
(2) Suspension
Access by the Borrower to drawal of the Rupee Loan or any part thereof
may be suspended without Prejudice to Exim Bank's right of termination:
(a) if an Event of Default shall have happened; or
(b) if any change in the Borrower's set-up shall have taken place,
which in the opinion of Exim Bank (which shall be final and
binding on the Borrower), may adversely affect the conduct of the
Borrower's business or its financial position or the efficiency
of the Borrower's management or personnel or completion of the
Project.
(3) Suspension to Continue till Default Remedied
The right of the Borrower to make drawal of the Rupee Loan shall
continue to be suspended until the event which gave rise to such suspension has
ceased to exist to the satisfaction of Exim Bank, and Exim Bank shall have
notified the Borrower that its right to make drawal has been restored.
(4) Termination
If any of the events specified hereinabove shall have happened as may
entitle Exim Bank to suspend drawal of the Rupee Loan, then Exim Bank may at its
option, by a notice in writing to the Borrower, terminate the Borrower's right
to make any drawal of the Rupee Loan. Upon such notice, the unavailed portion
of the Rupee Loan facility shall stand cancelled.
(5) Notwithstanding any cancellation, suspension or termination pursuant
to the aforesaid provisions, all the provisions of the Loan Agreement
shall continue to be in full force and effect as therein specifically
provided.
14
XVI. Acceleration of Repayment
-------------------------
(1) If any of the Events of Default specified in sub-Section (2) shall
have happened and be continuing for a period of 30 days from the date
of its happening without being remedied to the satisfaction of Exim
Bank, the decision of Exim Bank as to whether any Event of Default
shall have happened and/or been continuing being final and binding on
the Borrower, then Exim Bank may, by a notice in writing to the
Borrower, declare the unpaid principal amount of and all accrued
interest on the Rupee Loan (together with other monies payable under
the Loan Agreement) to become immediately due and payable whereupon
the whole of the outstanding principal amount of the Rupee Loan and
accrued interest thereon as also all other monies accrued or payable
thereunder as mentioned in such notice shall, notwithstanding anything
to the contrary contained in the Loan Agreement, become immediately
due and payable without any presentment, demand, protest or notice of
any kind whatsoever, all of which are hereby expressly waived by the
Borrower, and the Security created in favour of Exim Bank shall become
enforceable.
(2) Events of Default
(a) Default shall have occurred in the payment of any principal
amount of the Rupee Loan or any interest thereon, when due.
(b) Default shall have occurred in the performance of any other
obligation of the Borrower under the Loan Agreement or under any
other agreement between the Borrower and Exim Bank.
(c) Any breach or default shall have occurred under any other
agreement involving the borrowing of money or the extension of
credit under which the Borrower may be obligated as a borrower or
guarantor, if such default shall permit or cause termination of
any commitment to lend or acceleration of any indebtedness or if
such default shall consist of the failure on the part of the
Borrower to pay any indebtedness or any instalment thereof when
due.
(d) Any breach or default shall have occurred in the observance or
performance of any obligation by a guarantor or surety or any
other person liable for the Borrower, under any agreement or
document furnished to or executed in favour of Exim Bank in
respect of the Rupee Loan facility.
(e) Any representation or warranty contained herein or in the
application for sanction of the Rupee Loan facility or in any
other agreement or document executed pursuant to the Loan
Agreement shall prove to have been false, incomplete or
misleading in any material respect when made or deemed to have
been made.
15
(f) Any licence, consent, approval or exemption of any competent
authority as may be necessary for the Project or otherwise
required for the validity, enforceability or legality of the
Rupee Loan Agreement, Security, or any of the Security Documents
or for the performance hereof or thereof, shall be revoked,
withheld or materially modified or shall otherwise not be renewed
or fail to remain in full force and effect and such circumstances
shall remain unremedied for a period of fourteen (14) days from
the date of commencement thereof.
(g) The Borrower shall fail to pay or shall admit in writing its
inability to pay its debts as they mature or shall declare a
general moratorium on payment of its debts or shall enter into a
composition or arrangement with or make a general assignment for
the benefit of its creditors.
(h) A petition shall have been presented in a court of competent
jurisdiction for the winding-up, liquidation or dissolution of
the Borrower or any similar or analogous proceedings shall have
been taken.
(i) A receiver or liquidator shall be appointed of all or any part of
the undertaking of the Borrower.
(j) Any attachment or distraint shall be levied on the properties or
assets of the Borrower or any part thereof or certificate
proceedings shall be taken or commenced for recovery of any dues
from the Borrower or any decree or judgement for money, damages
or for a fine or penalty in excess of Rs. 1,00,000/- shall be
entered against the Borrower, and not paid and discharged or
stayed within 30 days.
(k) All or a substantial part of the undertaking or assets of the
Borrower shall be seized, nationalised, confiscated,
expropriated, requisitioned or compulsorily purchased by or under
authority of any government or its agency or shall be disposed of
without the prior written consent of Exim Bank at less than full
market value thereof.
(l) A strike, lock-out or lay-off shall occur with respect to the
Project or the Borrowers business or its contractors/suppliers or
an extraordinary situation shall occur which in the opinion of
Exim Bank shall make it improbable for the Borrower to perform or
observe its obligations in the normal course under the Loan
Agreement or under any other document delivered in connection
therewith.
(m) The right of the Borrower to make drawal of the Rupee Loan shall
be terminated by Exim Bank pursuant to the provisions of the Loan
Agreement.
(n) Any breach or default not specifically referred to above in this
sub-Section shall have occurred and such breach or default shall
16
continue without being remedied to Exim Bank's satisfaction for a
period of 30 days after Exim Bank shall have given a written
notice thereof to the Borrower.
(3) If any Event of Default or any event which, after notice or lapse of
time, or both would constitute an Event of Default, shall have
happened and been continuing for a period of 30 days from the date of
its occurrence, the Borrower shall forthwith give notice thereof to
Exim Bank in writing specifying the nature of such Event of Default or
of such event.
(4) All expenses incurred by Exim Bank, after an Event of Default shall
have occurred in connection with preservation of the Borrower's assets
and collection of amounts due under the Loan Agreement shall be
forthwith payable by the Borrower, and until payment, shall carry
interest at the Interest Rate besides additional interest by way of
liquidated damages at the rate provided in the Loan Agreement.
XVII. Reimbursement of Costs and Expenses
-----------------------------------
(1) The Borrower shall be liable to pay stamp duty, registration charges,
duties and taxes, if any, at any time payable on the Loan Agreement,
the Security and the Security Documents, as also interest/penalty for
any delay or default in making such payment, and shall within 30 days
from the date of notice of demand from Exim Bank, pay to or as the
case may be, reimburse Exim Bank for all such sums of money and costs,
charges and expenses paid or incurred by Exim Bank in connection
therewith and for the preparation, negotiation, execution and
performance of this Agreement and the documents thereby contemplated
as also for the protection and preservation of the Security and for
actual or attempted enforcement thereof. All such sums shall, whether
or not debited to the Borrower's account with Exim Bank, carry
interest from the date of incurring of the expenditure by Exim Bank
till reimbursement, at the Interest Rate besides additional interest
by way of liquidated damages at the rate provided in the Loan
Agreement.
(2) The Borrower agrees to indemnify Exim Bank from and against all
losses, claims, demands, damages, liabilities, costs (legal costs on a
full indemnity basis), charges and expenses of any nature whatsoever,
which Exim Bank may suffer, pay, incur or be put to in the premises by
reason of any default on the part of the Borrower under the Loan
Agreement or the Security Documents or otherwise howsoever.
17
XVIII. Miscellaneous
-------------
(1) Evidence of Debt
(a) Exim Bank shall maintain, in accordance with its usual
practice, a Rupee Loan account in the name of the Borrower
evidencing inter alia the amount(s) from time to time lent
by and owing to Exim Bank and interest and other moneys
payable under the Loan Agreement as also amount(s) received
or recovered by it.
(b) In any legal proceedings arising out of or in connection
with the Loan Agreement, the entries made in the Rupee Loan
account maintained as aforesaid shall be prima-facie
evidence of the existence of the liability of the Borrower
as therein recorded.
(2) Partial Invalid ity
If at any time, any provision of the Loan Agreement shall become
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, then neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction shall in any way be
thereby affected or impaired.
(3) Waiver
No delay in exercising or omission to exercise any right, power or
remedy accruing to Exim Bank upon any default under the Loan Agreement, Security
Documents or any other agreement or document executed pursuant thereto, shall
impair any such right, power or remedy or shall constitute a waiver thereof or
of any obligation of the Borrower hereunder or thereunder or be construed as an
acquiescence in such default, nor shall the action or inaction of Exim Bank in
respect of any default or any acquiescence by it in any default, affect or
impair any right, power or remedy of Exim Bank in respect of any other default.
The rights and remedies provided in the Loan Agreement are cumulative and not
exclusive of any rights and remedies to which Exim Bank shall otherwise be
entitled.
(4) Jurisdiction
(a) The parties hereto agree that any legal action or
proceedings in connection with this Agreement or the Rupee
Loan or for
18
enforcement of the Security may be brought in the courts/tribunals
at Mumbai, and by execution and delivery of this Agreement, the
Borrower hereby unconditionally and irrevocably submits to and
accepts with regard to any such action or proceedings for itself
and in respect of its properties, the jurisdiction of the
courts/tribunals at Mumbai.
(b) The submission by the Borrower to such jurisdiction, however,
shall not (and shall not be construed so as to) limit the right of
Exim Bank to take any legal action or proceedings against the
Borrower in any other jurisdiction nor shall the taking of any
legal action or proceedings by Exim Bank in any one or more
jurisdiction preclude the taking of legal action or proceedings in
any other jurisdiction, whether or not concurrently.
(c) The Borrower, hereby irrevocably waives any objection which it may
now or hereafter have to the laying of the venue of any such legal
action or proceedings in a court/tribunal located at Mumbai, or at
the election of Exim Bank, in any other court/tribunal having
jurisdiction, and hereby further irrevocably waives any claim that
such legal action or proceedings brought in any such
court/tribunal has been brought in an inconvenient forum.
(5) Certification by Exim Bank
Where pursuant to any provision of the Loan Agreement, Exim Bank may
certify or determine a rate of interest or an amount to be payable by the
Borrower or any other matter, such certificate or determination shall be
conclusive and binding on the Borrower in the absence of manifest error.
(6) Language
The Loan Agreement shall be executed also in Hindi language. In the
event of any inconsistency in the provisions of the English and the Hindi
versions of the Loan Agreement, the document in the English language shall
prevail.
(7) Benefit of the Loan Agreement
The Loan Agreement shall be binding upon and enure to the benefit of
each party thereto and its successors and assigns provided however that the
Borrower shall not be entitled to assign or transfer any of its rights, benefits
or obligations hereunder. An assignment, transfer or sub-participation by Exim
Bank of all or a part of its rights and obligations hereunder shall be effective
and binding on the Borrower.
19
(8) Service of Notice
Any notice or communication to be given or made to Exim Bank or to the
Borrower shall be in writing. Such notice or communication shall be deemed to
have been given or made when it shall be delivered by hand or despatched by mail
or transmitted by telegram, telex or fax to the party to which it is required to
be given or made at such party's address mentioned in the Agreement or at such
other address as such party shall have notified in writing to the party sending
notice or communication.
20
