(Loan Agreement should be dully signed and executed by all parties as per the State Stamp Act and agreement should be notarized as well)
(Borrower) _______________________Hereinafter referred to as “the Borrower”
(Lender) __________________________Hereinafter referred to as “the Lender”
The Lender, as the Foreign Equity Holder of the Borrower’s company and holding equity shares of value ________ (USD) in the company and being qualified to lend funds to the Borrower, has taken into consideration and accepts the request of the Borrower for a loan destined for the purpose of_______________________________________________.
Have agreed as follows:
Article 1. Definitions
In this agreement the words and expressions specified below shall, except where the context otherwise requires, have the following meaning:
“Loan” means the aggregate principal amount of the Advance for the time being outstanding hereunder;
“Funds” means, except as otherwise provided herein, the loan facility granted to the Borrower in this Agreement;
“Advance’ means, except as otherwise provided herein, an advance (as from time to time reduced by repayment) made or to be made by the Lenders hereunder;
“Guarantee” means the guarantee in respect of the obligations of the Borrower under this Agreement executed by the Borrower in favour of the Lender;
“Business Day” A day on which banks are open for business in <<Country>>.
“Event of Default” means any of those events specified in Article 9 and any event which may become (with the passage of time, the giving of notice, the making of any determination hereunder or any combination thereof) as Event of Default;
Article 2. The Loan: term and purpose
2.1 The Lender grants to the Borrower a Loan in the amount of USD ………, (in words: ________________________, subject to the terms and conditions of this agreement.
2.2 The Loan may be exclusively used for general corporate purposes within the scope of the daily business and investments agreed with ……
2.3 The Loan is granted for a period of five years up to and including 1 July 2020.
Article 3. Drawdown
3.1 The Borrower shall draw the loan amount as mentioned in Annex I.
3.2 The Borrower will inform the Lender of their intention of drawing, and the same shall be verified by Lender’s nominated Project Manager, who has been previously (or will be) appointed by the Lender. The funds will be made available with the Borrower’s bank commencing in 7 banking days the Borrower signs the ‘Final Loan Agreement’, “ECB” (External Commercial Borrowing) application filed with “RBI” (Reserve Bank of India) through _______ Banker (ICICI Bank), “LRN” (Loan Registration Number) is obtained from “RBI” and the Borrower complies with all the pre-requisites.
Article 4. Interest rate, payment of interest, costs
4.1 The Borrower shall pay a variable interest rate based on 6 months Libor plus a Margin of bps. The interest is payable at the end of each calendar year and the last interest payment is payable at the final repayment date, see Annex I.
4.2 The Lender is entitled to alter the Margin at any time according to market circumstances and the credit profile of the Borrower as the Lender feels necessary. Changes in the Margin will be communicated by the Lender (by e-mail or letter) and take effect on new (re)borrowings as per the RBI guidelines.
4.3 No setup fee or other initial fees will be applicable.
4.4 The interest shall be calculated on the basis of the actual number of days elapsed and a three hundred and sixty (360) day year.
Article 5. Repayment
5.1 The Borrower shall repay on demand to the Lender the said loan amount mentioned in schedule annexed hereto as Annex I and interest shall be payable thereon annually/half-yearly/quarterly/monthly at the rate stipulated in the schedule hereto unless the lender revises the same and informs the borrower accordingly.
5.2 The Borrower shall pay each and every instalment on due date as specified in the provisional loan agreement.
Article 6. Prepayments
6.1 The Borrower shall not without the prior written approval of the Lender (which approval may be given subject to such terms and conditions as may be stipulated by the lender including payment of prepayment premium), prepay the outstanding principal amount together with interest due in full or in part before the due dates or before demand.
Article 7. Payments
7.1 All payments by the Borrower shall be made on a good value basis on the agreed dates to the account designated by the Lender, without set-off or counterclaim and free and clear of any taxes or withholding of any nature and without any deductions whatsoever.
7.2 If any payment falls due under this agreement on a non-Business Day, the payment shall be made on the next succeeding Business Day, unless such next succeeding Business Day falls in another calendar month in which event the payment shall be made on the preceding Business Day.
7.3 Moneys received by the Lender under or pursuant to this agreement shall be applied first in or towards payment of all costs and expenses incurred by the Lender pursuant to this agreement, secondly in or towards payment of any interest accrued, thirdly in or towards repayment of the Loan and fourthly in or towards payment of any other sums due to the Lender under this agreement.
Article 8. Grossing up for Taxes
8.1 If at any time the Borrower is required to make any deduction or withholding in respect of tax from any payment due under this agreement for the account of the Lender, the sum due from the Borrower in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Lender receives on the due date for such payment a net sum equal to the sum which it would have received had no such deduction or withholding been required to be made and the Borrower shall indemnify the Lender against any losses or costs incurred by reason of any failure of the Borrower to make any such deduction or withholding or by reason of any increased payment not being made on the due date for such payment. The Borrower shall promptly deliver to the Lender any receipts, certificates or other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid.
Article 9. Default interest
9.1 The Borrower shall pay default interest on any sum due under this agreement which is not paid on the due date for payment thereof for each day during the period of such default. The rate of such interest will be equal to the sum of the interest according to article 4 increased by an additional margin of ____ percent (not more than what RBI has prescribed). The default interest is payable on demand.
Article 10. Costs and evidence of indebtedness
10.1 The Borrower shall on first demand indemnify the Lender against any loss or expenses (including legal and out-of-pocket expenses) incurred by the Lender in connection with the enforcement of, or preservation of rights under, this agreement or otherwise in respect of the moneys owing under this agreement, together with interest at the rate referred to in article 9 from the date on which such expenses were incurred until the moment of payment in full thereof.
10.2 Any certificate of the Lender as to any amount pursuant to and for the purposes of this agreement shall be conclusive and binding on the Borrower, subject to manifest error.
Article 11. General covenants and other
11.1 The Borrower ensures that at all times the payment obligations under this agreement will rank at least pari passu with all other present or future unsecured and unsubordinated payment obligations (except payment obligations mandatory preferred by law).
11.2 The Borrower, without prior consent of Lender, will not be allowed to create, extend or permit to subsist any mortgage, charge, pledge, lien or other security interest on or over its undertaking, property or assets (including uncalled capital), or any part thereof, present or future in order to secure any other loan or any other indebtedness for borrowed money.
11.3 At the first request of the Lender the Borrower will immediately grant security satisfactory to the Lender, at the Lender´s sole discretion as continuing security for the prompt payment, discharge and performance of all the Borrower´s obligations, present or future, actual or contingent, under this agreement. All costs incurred, including legal costs, costs of advisors, etc., will be payable by the Borrower.
Article 12. Events of Default
12.1 The Lender may serve an immediate notice of termination and may simultaneously declare that all amounts outstanding under this Agreement shall become immediately due and payable whereupon they shall become due and payable together with accrued interest, including default interest, thereon and any other amounts payable under this Agreement, , if any of the following events occurs:
1. any principal of, or interest on, the Loan or any other moneys becoming payable under this agreement is or are not paid in the due place of payment and/or on the due date for payment thereof, unless due to a technical or administrative errors which is remedied within five (5) Business Days;
2. the Borrower fails to observe or perform any of the terms contained in this agreement or in other agreements concluded between the Borrower and the Lender, which default, in the opinion of the Lender, either (i) is not capable of remedy or (ii) is capable of remedy but is not remedied within three (3) Business Days of the earlier of (a) the Lender notifying the Borrower of the or (b) the Borrower becoming aware or should have become aware of the default and/or the Borrower fails to observe or perform any of its payment obligations under any other finance agreement;
3. the Borrower stops or suspends payment of any of its debts or admits inability to pay any of its debts as they fall due or commences negotiations with one or more of its creditors with a view to general readjustment or rescheduling of all or part of its indebtedness or proposes or enters into any composition or other arrangement for the benefit of its creditors;
4. the Borrower takes any action or steps for its winding-up, dissolution, or re-organization or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it of any or all of its revenues and assets;
5. an execution or distress is levied against or an encumbrance takes possession of the whole or a material part of the assets of the Borrower;
6. the Borrower ceases or threatens to cease to carry on its business or disposes or threatens to dispose of all or a substantial part of its business, property or assets or enters into, or decides to enter into, a merger, or is taken over by a third party, or the Borrower is dissolved or any preparatory act for that purpose is taken;
7. the Borrower without the prior written consent of the Lender changes its articles of association in such a disadvantageous way to the Lender that, would such change have been made before the date of signing this agreement, the Lender would, in its sole opinion, not have concluded this agreement, or not on the same terms;
8. the Borrower uses all or part of this Loan to obtain interest profits through transactions which cannot be regarded as part of the Borrower’s ordinary business.
9. where any event occurs (or circumstances exist) which, in the opinion of the Lender, is likely to materially and adversely affect the ability of the Borrower to perform all or any of its obligations under, or otherwise comply with (any of) the terms of the Agreement;
10. any obligation for the payment or repayment of money, present or future, actual or contingent, sole or joint (jointly and severally ‘Indebtedness’) of the Borrower to any third party is not paid when due;
11. any Indebtedness becomes due, or capable of being declared due, prior to its stated maturity by reason of default;
a. the value of the Borrower’s assets is less than its liabilities (taking into account contingent and prospective liabilities); and/or
b. Any event occurs in relation to the Borrower that is analogous to an event as set out above.
The Borrower undertakes to inform the Lender promptly of the (likelihood of the) occurrence of any of the above mentioned events.
Article 13. Set off
13.1 The Lender shall at all times be entitled to set off all and any debts receivable by Lender from the Borrower under this Agreement or of whatever other nature, whether or not due and payable and whether or not contingent, against any debts owed by Lender to the Borrower under this Agreement or of whatever other nature, whether due and payable or not, regardless of the currency in which such debts are denominated. If such balances are in different currencies, the Lender may convert either balance at a market rate of exchange for the purpose of the set-off.
Article 14. Miscellaneously
14.1 The Borrower shall not have the right to assign or to transfer any of its rights under this agreement to any third party or to encumber any right under this agreement without the prior and written consent of the Lender.
14.2 The Lender may not assign or transfer all or part of its rights and obligations under this Agreement except with the prior written consent of the Borrower unless the assignee is a group company of the Lender.
14.3 Borrower hereto waives its right to invoke and/or claim (wholly or partly) dissolution (“ontbinding”) and/or nullification (“vernietiging”) of this agreement.
14.4 No failure to exercise or delay in exercising any right or remedy provided under this agreement or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.
14.5 This agreement contains the whole agreement between the Lender and the Borrower relating to the subject matter of this agreement and supersedes any previous written or oral agreement between the parties in relation to the matters dealt with in this agreement. No amendment to, or waiver of any provision of, this agreement shall be effective unless in writing and signed by or on behalf of each of the parties.
14.6 If any provision in this agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this agreement but the legality, validity and enforceability of the remainder of this agreement shall not be affected. To the extent permitted by law, such provision shall be deemed substituted by provisions (i) that are valid, legal and enforceable and (ii) the operation and effect of which are as similar as possible to the provisions they substitute for.
Article 15. Financial and other information
15.1 The Borrower will provide the Lender with such further information as to its business affairs and financial condition as the Lender may reasonably consider necessary or desirable.
Article 16. Applicable Law
16.1 This agreement shall be governed by and construed in accordance with the laws of the Netherlands.
16.2 Each of the parties agree that the courts of the …………. are (subject to clause 16.3 below) to have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims) which may arise in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by, this Agreement or otherwise arising in connection with this Agreement and for such purposes irrevocably submit to the jurisdiction of the ……………. courts and waive any objection to proceedings in the …………….. courts on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.
16.3 The agreement contained in clause 16.2 above is included for the benefit of the Lender. Accordingly, notwithstanding the provisions of clause 16.2 above, the Lender shall retain the right to bring proceedings in any other court that may have jurisdiction to whose jurisdiction the Borrower hereby irrevocably submits.
Article 17. Confidentiality
All information regarding this loan, its structure and the Lender’s affairs is to remain confidential and this also applies to all Borrower’s information given to the Lender and its coordinators.
Article 18. Execution of this Agreement
The terms and conditions of this Agreement shall be confirmed by the Borrower and the Lender executing and transmitting one copy of this Agreement to each other via e-mail. Said executed e-mail copies shall be binding and will also initiate and conclude the legal liabilities between Borrower and Lender of this Agreement. However, both parties, Borrower and Lender have read and approved all terms of this contract.
By signing below, both parties abide by their corporate and legal responsibilities and execute this Agreement under full penalty of perjury.
SIGNATURES AND SEALS:
Signed for and on behalf of
Director /Authorized Signatory
Seal of the Borrower
Signed for and on behalf of
Seal of the Lender
|Drawdown, Repayment and Interest Schedule|
|Date of drawal / Repayment/ interest (MM/DD/YYYY)||Drawal
|Repayment of Principal
|Repayment of Interest
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