This Loan Agreement ("Agreement") is being executed BY AND BETWEEN
ADITSH FINTECH PRIVATE LIMITED, a company incorporated under the Companies Act 2013 and having its registered office at B 415 Basement Nirman Vihar , Delhi- 110092 and also having its corporate office at B-25 Ground Floor Sector 1 Noida 201301 and carrying on the business in India as a Non-Banking Financial Company, (hereinafter referred to as "Lender" which expression shall, unless repugnant to the subject, context or meaning thereof, be deemed to mean and include its successors and assigns) of the ONE PART.
The person(s) named and described in the Schedule A(hereinafter referred to as the "Borrower" and the term Borrower includes Applicant and Co-Applicant(s) which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include their successors and permitted assigns) of the OTHER PART;
NOW IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS,THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREEDAND DECLARED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
1. DEFINITION &INTERPRETATION
"Agreement" shall mean this Loan Agreement and all documents (which may be executed between the Borrower and Lender from time to time in relation to the subject matter of this Agreement) and any and all schedules, appendices, annexures and exhibits attached to it or incorporated in it;
"Applicable Law" shall mean any applicable laws, that is to say, any enactment, legislation, statute, law, regulation, ordinance, rule, judgment, order, decree, bye-law, clearance, directive, guideline, policy, requirement or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration having the force of law of any of the foregoing, by any governmental authority having jurisdiction over the matter in question, mandatory accounting standards whether in effect as on the date of this Agreement or thereafter, in any jurisdiction;
"Business Day" shall mean a day, which is not a public holiday under Section 25 of the Negotiable instruments Act, 1881 or a Sunday or when the clearing facility offered by the Reserve Bank of India is unavailable;
"Disbursement Date" shall have the meaning ascribed to it in Clause 2.2
"Interest " means:
(i) the interest on the Loan as set out in Schedule C, Subject to variation from time to time as provided herein; and/or
(ii) any other interest payable by the Borrower in terms of this Agreement;
"Loan" shall mean the Loan Facility or Financial assistance by way of a short-term/long term loan lent/ advanced by Lender to the Borrower pursuant to this Agreement as set out in Schedule C;
"Employment" means the place, address or state, as provided by the Borrower
and specified in Schedule A and Schedule B of this Agreement, where Borrower has shown place of working at the time of availing Loan Facility
"Overdue Interest" shall have the meaning ascribed to it in Clause 3.3
"Person" means any individual or individuals and shall include his / her legal representatives, administrators, executors and heirs;
"Processing Fees" shall have the meaning ascribed to it in Clause 2.3
"Repayment Date" shall mean the date on which the Repayment Instalments is payable by the Borrower to Lender, as more specifically provided in Schedule C
Instalment” shall mean the instalments as set out in Schedule C setting out the manner in which repayment of Loan along with the applicable Interest shall be made by the Borrower;
"Schedule" shall mean schedules forming a part of this Agreement;
"Tax(es)" shall mean any and all present or future taxes, levy, impost, duty, stamp duty charge, fee, deduction or withholding in the nature of tax, or interest or penalty in respect of any of the items referred to above, wherever imposed, levied, collected, withheld or assessed by any government authority, whether on this transaction, transaction documents, financing or facility extended herein, acquisition or provision of asset, any sum of money or consideration payable in respect of this transaction or any part thereof, or otherwise, pursuant to the Applicable Law, and shall include any loss of tax benefit, deduction, credit or set-off.
"Term" the term of this Agreement shall be as specified in Schedule C.
“Co Borrower” the term Co applicant(s) and Co Borrower(s) will have same meaning for the purpose of Loan taken by the Borrower
In this Agreement, unless the context or meaning thereof otherwise requires:
1.2.1. All references to any payments or sums due herein shall be subject to applicable Taxes.
1.2.2. Words of any gender are deemed to include the other gender;
1.2.3. Words using the singular or plural number also include the plural or singular number, respectively;
1.2.4. The terms "hereof", 'herein", "hereby", "hereto" and derivative or similar words refer to this entire Agreement;
1.2.5. The term "Clause" refers to the specified clause of this Agreement;
1.2.6. Heading, sub-heading and bold typeface are only for convenience and shall be ignored for the purposes of interpretation;
1.2.7. Reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision;
1.2.8. Any term or expression used but not defined herein shall have the same meaning attributable to it under applicable law;
1.2.9. References to the word "include" or "including" shall be construed without limitation;
1.2.10.Each of the representations, warranties and undertakings contained hereof shall be separate and independent and shall not be limited by reference to any other Clause or by anything in this Agreement; and
1.2.11.The schedules and exhibits annexed to this Agreement form an integral part of this Agreement and will be of full force and effect as though they were expressly set out in the body of this Agreement.
2. AMOUNT OF LOAN
2.1 Lender has agreed to lend to the Borrower Loan of such amount as may be specified in Schedule C to this Agreement, for the Term, on the basis of, and subject to the conditions, terms, and covenants herein set forth.
2.2 The disbursement of the Loan shall be made by Lender within two (2) working days from the date of receipt of all the necessary documents which may be required by Lender for the purpose of the said disbursement ("Disbursement Date").
2.3 In addition to any other amount payable to Lender by the Borrower under this Agreement, Lender shall be entitled to receive a fee towards processing of the Loan prior to any disbursal, as mentioned in Schedule C("Processing Fee").
2.4 The said disbursement shall be made by Lender through the Real Time Gross Settlement ("RTGS"),system of fund transfer or such other contemporaneous mode of settlement as the Parties may decide.
2.5 The Borrower acknowledges and agrees that the Borrower shall, prior to the first instance of drawdown, issue to Lender, ACH/NACH Debit Mandate Form of the aggregate of the Repayment Instalment of Borrower's designated bank account(s) as specified in Schedule E. For the purposes of this clause, `ACH/NACH Debit Mandate Form' shall pertain to the debit instruction issued by the Borrower to Lender to avail the services of National Automated Clearing House (offered by National Payments Corporation of India) which, inter alia, permits automated processing and exchange of mandate information electronically with well-defined timelines for acknowledgment/ confirmation. It is hereby clarified that where Lender is of the view that balance amount available under the NACH Debit Mandate Form is not sufficient to meet the payment obligations of the Borrower under this Agreement, Lender shall direct the Borrower to modify/ reissue subsequent NACH Debit Mandate Form in order to meet such insufficiency and the Borrower-shall comply with such direction forthwith.
2.6 The Borrower further acknowledges and agrees that the Borrower will, prior to the first instance of drawdown, issue to Lender.
2.6.1 Such number of post-dated cheques of such amount as stated in Schedule E; and
2.6.2 Such number of undated cheques for the Repayment Amount or the Loan Amount as mentioned in Schedule E.
2.7 The Borrower affirms that the Borrower has provided Employment details, as specifically provided in Schedule B of this Agreement, and all other particulars.
2.8 The Borrower agrees to intimate to Lender any change in Employment immediately and reimburse to Lender any costs/expenses or outgo suffered by Lender for compliance with Applicable Law or Taxes for giving effect to such change. In the event the Borrower fails to communicate such change in Employment Location, Lender shall consider the Borrower Location updated with its records as final.
3.1 During the Term, the repayment of the Loan shall be made in Repayment Instalments payable on each Repayment Date, more specifically described in the Schedule C and Sanction Letter.
3.2 The Parties hereby agree that the Repayment instalment shall be payable from the NACH Debit Mandate Form deposited by the Borrower at the time of execution of this Agreement
3.3 Where the Repayment instalment remains unpaid on a particular Repayment Date, due to dishonour of the NACH Mandate, Lender shall send a notice to the Borrower demanding repayment of the Repayment instalment along with the NACH dishonour charges. Lender shall have the right to levy overdue interest ("Overdue Interest") on the Repayment instalment at the rate specified in Schedule C to this Agreement. The Overdue Interest shall be payable on the Repayment instalment from the Repayment Date till the actual payment date Provided that Lender may at its sole discretion provide a some grace period at it deems fit or waive off part or full of the said Overdue Interest and final decision of Lender will be binding on Borrower . It is hereby further clarified that Lender shall also have the right and be entitled to encash one or more undated/post-dated cheques forthwith, in order to recover any or all of the amounts outstanding, due and payable by Borrower to Lender.
3.4 In the event Lender does not receive the aforesaid outstanding amount and the Borrower's afore said undated/post-dated cheque(s) is dishonoured, the Borrower will be deemed to have committed an Event of Default, as defined in Clause 9.1 of this Agreement. On occurrence of the aforesaid event of Default, Lender shall have the right to take such appropriate actions as specified in Clause 9.3 of this Agreement. The Borrower shall also be liable for all costs, charges and expenses which Lender may pay or incur in any way resulting from the aforesaid Event of Default.
3.5 The Borrower will not allow to close loan during lock in period, after lock in period. The Borrower will have discretion to make pre-payment in part or full Loan amount with charges mentioned in Schedule C and Sanction Letter,
3.6 Any and all disputes between the Parties in relation to or arising out of this Agreement shall not affect the Borrower's obligation to ensure payment to and receipt by Lender of amounts due and payable under this Agreement, from time to time, as the Borrower's obligations to make payments under this Agreement shall remain un-contingent, irrevocable and absolute under all circumstances.
3.7 Any and all payments contemplated under this Clause 3 shall be made through the RTGS or National Electronic Funds Transfer (NEFT) system of fund transfer or such other contemporaneous mode of settlement as the Parties may decide.
4. END USE OF LOAN
The disbursement of the Loan, at the time of request therefore, is required immediately by the Borrower for the Purpose, as specified in Schedule C to this Agreement, and the Borrower shall accordingly, upon request, produce such evidence as to the proposed utilization of proceeds of the disbursement as may be reasonably required by Lender ("End Use").The Borrower shall also provide an end use certificate under the letter head of the Borrower in the format as specified in Schedule F of the Agreement.
5. DUE DILIGENCE
The Loan amount shall be disbursed by Lender on the Disbursement Date only upon completion of satisfactory due diligence of the Borrower by Lender. The Borrower acknowledges and agrees that Lender has the right not to make the disbursement in the event Lender is not satisfied with the results of the due diligence.
6. OUTSOURCINGBY LENDER
The Parties acknowledge and agree that Lender shall have the right to engage, at any time and from time to time, the services of third parties for the purpose of collection / recovery of any and all amounts outstanding and due and payable to Lender under the terms of this Agreement.
7. REPRESENTATION AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower acknowledges that Lender is entering into this Agreement in reliance on the representations and warranties hereby given by the Borrower to Lender, being true and correct both on the date hereof, on the Disbursement Date and shall be continuing till all amount dues under this Agreement have been paid. The Borrower represents and warrants as follows:
7.1.1 The Borrower is into full time regular employment existing under the laws of India, and has the power and authority to:
a. carry on his employment as it is now being carried on; and
b. avail the Loan amount as well as enter into this Agreement and not prohibited from entering into this Agreement.
7.1.2 This Agreement when executed and delivered, will constitute valid and binding obligations of the Borrower;
7.1.3 The Borrower has not taken any corporate or other action, as may be applicable, nor have any steps been taken or legal proceedings of any manner been initiated or threatened against the Borrower for its winding-up, dissolution, administration, re-organization, insolvency, bankruptcy, or for appointment of receiver, administrator or other court officer of the Borrower, as may be applicable, or all of any of its assets, businesses or undertakings;
7.1.4There is no litigation, proceeding or dispute or action, pending or threatened, against the Borrower, the adverse determination of which might affect the Borrower's ability to repay any portion of the Loan amount or have a materially adverse effect on the financial condition of the Borrower;
7.1.5 The Borrower has obtained all permissions, approvals, consents or sanctions, if any required, of the government or any government or statutory body, agency or authority for availing of the Loan amount, and will at all times till the amounts due to Lender are paid in full, keep all such permissions, approvals, consents or sanctions, valid and subsisting;
7.1.6 The execution and delivery of this Agreement and documents to be executed in pursuance hereof, and the performance of the Borrower's obligations hereunder and thereunder does not and will not (i) contravene any Applicable Law, statute or regulation or any judgment or decree to which the Borrower and/or its assets, businesses and/or undertakings is subject, (ii) conflict with or result in any breach of, any of the terms of or constitute default of any covenants, conditions and stipulations under any existing agreement or contract or binding to which the Borrower is a party or subject, or (iii) conflict or contravene any provision of the Memorandum and the Articles of Association of the Borrower or such other constituent documents, as may be applicable;
7.1.7 The Borrower agrees that, unless agreed by Lender in writing, obligations of the Borrower arising out of this Agreement are absolute, unconditional and non-cancellable and are distinct and separate from any other obligations of the Borrower towards Lender, whether under this Agreement or otherwise. The obligations shall not be affected in any manner for any reason whatsoever. No part of the obligations arising from this Agreement is conditional on or shall stand vitiated by any set-off or claim for any reason, including, but not limited to termination of this Agreement.
7.1.8 There has been no material adverse change in the financial condition of the Borrower, nor has any event, which is or may be prejudicial to the interest of Lender and/or which is likely to materially and / or adversely affect the ability of the Borrower to perform all or any of its obligations under this Agreement, taken place since the date of the latest audited financials of the Borrower;
7.1.9 No extraordinary circumstances shall have occurred which shall make it improbable for the purpose, for which the assistance is provided, to be carried out and / or for the Borrower to fulfil its obligations under this Agreement.
7.1.10 The Borrower is in compliance with and abides by all Applicable Laws and regulations including but not limited to all labour welfare related and environment protection statutes and provisions, as may be applicable to the Borrower;
7.1.11 In the case The Borrower is into employment, he has right to continue in employment and he will continue in regular employment in the same manner or better manner as it was carrying on in past before borrowing loan from Lender
7.1.12 The Borrower will not seek to claim or recover from Lender on any grounds whatsoever and/or in any circumstances whatsoever, any purported damages or compensation, direct, indirect or consequential, for any acts or actions whatsoever of Lender hereunder and/or in respect of the Loan amount, taken or omitted by Lender in terms hereof and/or pursuant hereto and/or to protect any of its interests and rights as the Lender or a creditor, and the Borrower hereby expressly waives any right to seek or make any such claim or recovery on any ground whatsoever;
7.1.13 That (a) the fair value of the assets of the Borrower exceeds its aggregate liabilities; (b) the Borrower has the ability to meet all of its obligations as they mature; and (c) the Borrower has sufficient capital to carry on its business;
7.1.14 The Borrower is not in arrears of any public demand such as income-tax, corporation tax, goods and service tax and all other Taxes and revenues or any statutory dues payable to the federal or state governments or any local or other authority;
7.1.15 Neither the Borrower, nor any person acting on its behalf, has been engaged in (a) any corrupt / fraudulent practices / collusive / coercive practices in connection with the Borrower's business or operations (b) money laundering; or (c) the financing of terrorism;
7.1.16 The Borrower further acknowledges and confirms that the information provided to Lender in connection with the Loan amount does not contain any untrue statement of a material fact, nor does it omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made;
7.1.17 Particulars of the office addresses of the Borrower, as last provided by the Borrower to Lender is valid and subsisting and any one of the said addresses shall deemed to be the valid address for correspondence unless otherwise notified to Lender by the Borrower in writing;
7.1.18 Change in employment or office or business address by the Borrower will be informed to the Lender within 15 days of occurring such event.
7.1.19 Details of all the operative bank account(s) in any form or manner maintained with any bank or financial institution in India and/ or outside India, as specifically provided by the Borrower in Schedule E, is true and complete in all aspects;
7.1.20 There are no other bank account with any bank or financial institution in India and/ or outside India other than as mentioned in Schedule E; and
7.1.21 No Event of Default, as specified in Clause 9, has occurred or is likely to occur.
7.2 REPRESENTATIONS AND WARRANTIES OF THE CO-BORROWERS
The Co-Borrowers acknowledge that Lender is entering into this Agreement in reliance on the representations and warranties hereby given by the Co-Borrowers to Lender, being true and correct both on the date hereof, on the first Disbursement Date and shall be continuing till all amount dues under this Agreement have been paid. The Co-Borrowers hereby undertake, represent, warrant and confirm for themselves that:
7.2.1 The Co-Borrowers are resident citizens of India and have the competence and power to execute this Agreement and perform their obligations under this Agreement; and
7.2.2 The Co-Borrowers are solvent and have adequate net worth to be able to perform their obligations under this Agreement; and
7.2.3 The entry into, delivery and performance by the Co-Borrowers of, and the transactions contemplated by, this Agreement do not and will not conflict: (i) with any law; (ii) with any document which is binding upon the Co-Borrowers or on any of their respective assets; and
7.2.4 The Co-Borrowers do not have, will not be entitled to, and will not claim any immunity for themselves or any of their respective assets from suit, execution, attachment or other legal process in any proceedings in relation to this Agreement; and
7.2.5 No litigation, investigation, arbitration, administrative or other proceedings are pending or threatened against the Co-Borrowers or their respective assets, which, if adversely determined, might have a material adverse change in relation to the Co-Borrowers
7.2.6 Borrower and Co Borrower will severely and Jointly be responsible for Loan taken by Borrower from the Lender and will be discharged from their responsibility only on final payment of the Loan taken by Borrower from the Lender and No Dues is issued by Lender to the Borrower
8.1 Positive Covenants
The Borrower covenants and undertakes that, during the Term of the Agreement, the Borrower will, unless Lender waives compliance in writing:
8.1.1 Utilize the Loan amount only for the Purpose stated by it to Lender, viz. the End Use, and for no other purpose whatsoever;
8.1.2 Ensure repayment of the Loan amount and all monies owing to Lender under this Agreement, according to the terms hereof;
8.1.3 Maintain its employment or corporate existence or legal entity status under law as applicable, and all rights and privileges enjoyed by it and obtain and comply with the terms of and do all that is necessary to maintain in full force and effect, all authorisations, approvals, licenses and consents required to enable it to lawfully carry on its business and affairs;
8.1.4 Maintain its going concern status and do nothing that shall threaten the going concern status of the Borrower;
8.1.5 Obtain and comply with the terms of, and do all that is necessary to maintain in full force and effect, all authorisations, approvals, licenses and consents required to enable it to enter into and perform its obligations under this Agreement, and to ensure the legality, validity, enforceability and admissibility in evidence of this Agreement;
8.1.6 Promptly inform Lender of any material litigation, arbitration or other proceedings which affect the Borrower, forthwith upon the same being instituted or threatened by any person whatsoever including if making a claim for money against the Borrower, or enforcing against the Borrower any guarantee or indemnity given by the Borrower;
8.1.7 Promptly inform Lender of any occurrence, event or incident of which it becomes aware which might adversely affect the Borrower or affect its ability to perform its obligations under this Agreement and/or in respect of the outstanding amount of the Loan, including without limitation, any force majeure event or act of God such as earthquake, flood, tempest or typhoon, etc as well as the happening of any labour strikes, lockouts, shut-downs, fires or other similar happenings which could reasonably be expected to adversely impact the day-to-day functioning or the business of the Borrower;
8.1.8 Promptly inform Lender of the occurrence of any Event of Default or of the occurrence of an event which, with the passage of time or the giving of notice would become an Event of Default, and also, where applicable, of the steps being taken to remedy the same, and will, from time to time, if so requested by Lender, confirm to Lender in writing that save as otherwise stated in such information, no default has occurred and/or is continuing;
8.1.9 Promptly inform Lender of any change in particulars of the Borrower's inter alia, Business Location, email address and telephone number;
8.1.10 Pay regularly all Taxes, assessments, dues, duties, levies and impositions as may, from time to time, be payable to any government or statutory or regulatory body or authority;
8.1.11 Ensure that it owns adequate and appropriate moveable and immoveable properties sufficient for the conduct of the Borrower's business at all times;
8.1.12 Maintain insurances on and in relation to its business and assets and properties with an insurance company/companies against such risks and to such extent as is usual and appropriately prudent for companies carrying on the business such as that carried on by the Borrower;
8.1.13 Maintain adequate and proper books, accounts and records pertaining to this Agreement, including without limitation books of account, cheques, licenses, financial and accounting statements, financial records, and all other similar documentation in accordance with generally accepted accounting principles and practices or other applicable accounting principles and practices„ consistently applied and will preserve such records for a period of 3 (three) years after the expiration or termination of this Agreement, provided that the Borrower must comply with all applicable Taxes in respect of retention of records. At Lender's costs and expenses, the Borrower will permit, upon reasonable notice to the Borrower, Lender's authorized personnel examine the books of accounts of the Borrower and discuss the affairs, finances and accounts of the Borrower with, and be advised as to the same by, its and their senior executive officers and independent accountants, all at such reasonable times and intervals and to such reasonable extent as Lender may desire;
8.1.14 Perform, on request of Lender, such acts as may be necessary to carry out the intent of this Agreement;
8.1.15 Promptly inform Lender of any distress or other process of court being taken against any of the Borrower's premises and/or property and/or assets.
8.1.16 Furnishing of Documents
Without prejudice to the Borrower's obligations under Clauses 10.1(i) to 10.1(xv), the Borrower shall, provide to Lender the documents listed in Schedule D hereto, prior to making a request for the Loan disbursal, as well as such other publicly available information and statements in respect of the financial condition and operations of the Borrower as Lender may from time to time reasonably request and a certificate of no default signed by the Co-Borrowers, in the following form and/ or such other form as Lender may from time to time stipulate:
"We certify that no event has occurred nor is continuing which would constitute an Event of Default under the Master Loan Agreement dated --------------, 2019 between ___________________________________________ and ADITSH FINTECH PRIVATE LIMITED operating under the brand name 'ADILOANS ' or would constitute such an Event of Default but for the requirement that notice be given or time elapse or both."
Notwithstanding the generality of the above, the Borrower hereby confirms that it shall permit Lender, it officers, employees and agents, upon reasonable prior notice, to enter upon any of the Borrower's premises or property at all reasonable times and have the right to inspect/audit its books/ records, assets and properties.
8.2 Financial Covenants
The Borrower covenants and undertakes that, so long as any part of the Loan amount is outstanding and until full and final payment of all money owing hereunder, the Borrower shall ensure that financial covenants hereunder or as otherwise notified by Lender from time to time, are met.
8.3 Negative Covenants
The Borrower covenants and undertakes that so long as any part of the Loan amount along with Interest is outstanding and until full and final payment of all moneys owing hereunder the Borrower shall not, without the prior written consent of Lender having been obtained:
8.3.1 Do or omit to do and not permit any act, matter or thing which would cause any of the representations and warranties, under this Agreement, if repeated immediately prior to the disbursement of the Loan amount, to be untrue, inaccurate or misleading and immediately notify Lender in writing of any such fact or circumstance which might cause any of the representations and warranties set forth in Clause 7 to be untrue or misleading, or of any material adverse effect which may occur in relation to the business of the Borrower;
8.3.2 Change the place of employment of the Borrower;
8.3.3 Procure from any other Lender, loans of amount that exceeds 5% of the turnover of the Borrower calculated as per the last audited financial statements of the Borrower;
8.3.4 Open any new bank account in any form or manner with any bank or financial institution in India and/ or outside India;
8.3.5 Diverge substantial amount, to be determined in the sole opinion of ADITSH FINTECH, lying in the Borrower's designated bank account(s), as specified in Schedule E, to any other bank account, whether existing or new. Provided that in an event the prior approval of Lender has been obtained in this regard, the Borrower shall forthwith issue to Lender, a NACH Debit Mandate Form of the outstanding Repayment Amount as on such date, of such other bank account;
8.3.6 Enter into any contract of a long-term or unusual nature nor terminate any contract pertaining to the Borrower which may be a deterrent to the Borrower's future business.
It is hereby clarified that the prior consent for the aforesaid matters shall not be unreasonably withheld by Lender.
9. EVENTS OF DEFAULT & CONSEQUENCES THEREOF
9.1 The occurrence of any of the following events, or events similar thereto, shall each constitute an event of default ("Event of Default"):
If the Borrower fails to make payment of any sum, whether for principal or interest or charge or otherwise due to Lender from the Borrower under this Agreement, at and/or within the time stipulated therefor and in the manner specified therefor, whether hereunder and/or in accordance with the terms of any other document executed or written in pursuance hereof;
9.1.2 General Default
The breach of, or omission to observe, or default by the Borrower in observing any of their obligations or undertakings under this Agreement and/or in respect of any portion of the Loan amount or any term, condition, provision including any representation or warranty contained in Clause 7 of this Agreement; provided that if the same is remediable, if such breach, omission or default shall continue for a period of 7 (seven) Business Days after notice thereof in writing is given by Lender and such action as Lender may require shall not have been taken within 7 (seven) days of Lender providing notice of such default and of such required action;
9.1.3 Breach of Covenants
Breach by the Borrower of any covenant, including financial covenants;
Any representation or warranty or assurance or covenant on the part of the Borrower made or deemed to be made or repeated in or pursuant to this Agreement or in any notice, certificate or statement or other writing referred to herein or delivered hereunder is or proves to be incorrect or misleading in any material respect;
9.1.5 Cross Default
Any default by the Borrower, under any other agreement or other writing between the Borrower and Lender, or under any other agreement or writing of indebtedness of the Borrower, or in the performance of any covenant, term or undertaking thereunder, or any indebtedness of the Borrower not being paid when due or any creditor of the Borrower 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 not being honoured when due and called upon;
9.1.6 Inability to pay debts
The Borrower 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 or potential Event 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 to pay such indebtedness);
9.1.7 Non-payment of decretal amount
The Borrower fails to pay any amount under any Court order or decree or judgment against the Borrower;
9.1.8 Levy of Execution or Distress
Any execution or distress is levied against or an encumbrance or other officer takes possession of the whole or any part of the property, undertaking or assets of the Borrower or any encumbrance over the whole or any part of the property, undertaking or assets of the Borrower becomes enforceable;
9.1.9 Cessation of Business or Employment
The Borrower ceases or threatens to cease to carry on the business or employment it carries on at the date hereof;
The Borrower (a) initiates or any other person has initiated against it a proceeding under the Insolvency and Bankruptcy Code, 2016 or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and such proceeding or petition is admitted by the Statutory Authority; or (b) has a resolution passed for its liquidation or winding-up; or (c) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its undertaking, assets and properties;
9.1.11 Compulsory Acquisition
All or substantially all of the undertaking, assets or properties of the Borrower or its interests therein are seized, nationalized, expropriated or compulsorily acquired by the authority of government;
The Borrower repudiates this Agreement or does or causes to be done any act or thing evidencing an intention to repudiate this Agreement;
9.1.13 Change in Ownership/Management
There is any material change in the ownership or management of the Borrower which in the sole opinion of Lender would prejudicially affect the interest of Lender;
9.1.14 Material Adverse Effect
a. There occurs any event or situation, such as and including but not limited to such events or situations having or likely to have any material adverse effect, as determined solely by Lender, on the business or financial or other condition or operations or prospects of the Borrower, which in the sole opinion of Lender is prejudicial to the interests of Lender or in the sole opinion of Lender is likely to materially affect the financial condition of the Borrower and/or its ability to perform all or any of its obligations under this Agreement and/or otherwise in respect of any portion of the Loan amount and to comply with any of the terms of this Agreement and/or for the Loan amount; or
b. The Borrower is or becomes a party to any litigation, arbitration, administrative or other action, investigation by any governmental entity, claim, suit or proceedings which would have a material adverse effect on the terms of this Agreement.
9.1.15 Further Events of Default
a. The Borrower misusing any portion of the Loan amount or any part thereof, or using any portion of the Loan amount or any part thereof for any purpose other than for which the Loan amount has been sanctioned by Lender;
b. Any consent, authorisation, approval or the like, or license of or registration with or declaration to governmental or public or statutory or regulatory authority, registration with or declaration to governmental or public bodies or authorities required to be made by the Borrower in connection with the execution, delivery, validity, enforceability or admissibility in evidence of this Agreement or the performance by the Borrower of its obligations hereunder and/or in respect of any portion of the Loan amount is modified in a manner unacceptable to Lender or is not granted or revoked or is terminated or expires and is not renewed or otherwise ceases to be in full force and effect;
c. If there are any material changes in the proposal for which the Loan amount is sanctioned;
d. If any material fact concerning the Borrower's profit or ability to repay or any other relevant aspect of its Loan application is withheld, suppressed or cancelled or not made known to Lender;
9.2 Notice to Borrower on the happening of an Event of Default
Upon the occurrence of an event of default, Lender shall or any agent of Lender authorized in this behalf shall serve a notice on the Borrower calling upon the Borrower to remedy such event of default, where the same is remediable within a period of 15(fifteen ) days from the date of such notice
9.3 Consequences of Event of Default
If the Borrower fails to remedy the event of default within a period of 15(fifteen ) days from the date of such notice, then, Lender may take any or all of the following actions:
Demand that all or any part of the outstanding amount and all other amounts accrued under or otherwise in connection with this Agreement are immediately due and payable, whereupon they shall become immediately due and payable by the Borrower, without further notice or other legal formalities of any kind.
Lender shall have a right to terminate this Agreement at any time upon the occurrence of Event of Default. The termination or expiry of the Agreement for any reason shall not relieve the Borrower from any liabilities or obligations set forth in this Agreement which: (1) the Borrower has expressly agreed, shall survive such termination or expiry; or (2) remain to be performed or by their nature would be intended to be applicable following any such termination or expiry.
9.3.3 Other Actions
a. Exercise any right, power or remedy permitted to it by law, including by suit, in equity, or by action at law, or both, or otherwise, whether for specific performance of any covenant, condition or term contained in this Agreement or for an injunction against a violation of any of the terms and conditions of this Agreement, or in aid of the exercise of any power or right granted in this Agreement and/or as a creditor.
b. In addition to aforesaid remedies, Lender may initiate civil and criminal proceedings against the Borrower for recovery of any or all dues of Lender including, without limitation, an action against the offence of dishonour of cheques under Section 138 of Negotiable Instruments Act.
10. VALIDITY OF AGREEMENT
This Agreement shall be valid and subsisting from the date hereof, until the repayment of the entire portion of Loan amount disbursed by Lender in favour of the Borrower along with all Interest including Overdue Interest, if any, all other dues and Taxes, as applicable to the satisfaction of Lender.
11.1 The Borrower shall, without prejudice to any other right of Lender, indemnify and keep indemnified and hold harmless Lender against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs expenses or disbursements of any kind or nature whatsoever (including without limitation, reasonable fees and disbursements of lawyers) which may be imposed on, incurred by, or asserted against Lender in any claim, litigation, proceeding or investigation instituted or conducted by any governmental agency or instrumentality or any person or entity, and which are related to this Agreement or any document executed pursuant hereto, whether or not Lender is a party thereto, and shall pay and reimburse to Lender, without any dispute or demure any losses, costs, charges or expenses which Lender shall certify as sustained or suffered or incurred by Lender as a consequence of occurrence of an Event of Default, or any other breach by the Borrower and/ or the Co-Borrowers of its and/ or their obligations under this Agreement or otherwise in connection with this Agreement (including any interest or fees incurred in funding any unpaid sum) or otherwise on account of the Loan amount.
11.2 None of the Borrowers will seek to claim or recover from Lender on
any grounds whatsoever and/or in any circumstances whatsoever, any
purported damages or compensation, direct, indirect or consequential,
for any acts or actions whatsoever of Lender hereunder and/or in
respect of the Loan
amount, taken or omitted by Lender in terms hereof and/or pursuant hereto and/or to protect any of its interests and rights as Lender or a creditor, and the Borrower hereby expressly waives any right to seek or make any such claim or recovery on any ground whatsoever.
12. JOINT AND SEVERAL LIABILITY
12.1 All obligations of the Borrower under this Agreement are joint and several and may not be waived or apportioned except by written assent of Lender. In the event of default in payment to Lender of any outstanding mounts due and payable by Borrower under this Agreement, Lender shall have the right to recover any or all such outstanding amounts from one of the Borrower at Lender's sole option.
12.2 In a case where Schedule A provides for one or more Co-Borrowers, each of such Co-Borrowers do hereby specifically agree as follows:
12.2.1 That the liability of any Co-Borrowers is joint and several liability to the fullest extent of the liability or obligation of the Borrower, and accordingly, Lender may, at the sole discretion of Lender, call upon and demand each Borrower and Co-Borrowers to comply with any of the provisions hereof, or make payment of any sum due hereunder;
12.2.2 The grant of this Loan to any one of the Borrower /Co-Borrowers shall be deemed to be adequate consideration in respect of all other Borrower/Co-Borrowers;
12.2.3 Each Borrower and Co-Borrowers has assumed joint and several liability to the fullest extent for any and every amount due hereunder, irrespective of the disbursement of the Loan to any of the Borrower or Co-Borrowers, or the practice in respect of payments of Interest, principal or any other sum being paid by any particular Borrower or Co-Borrowers, or whether there is any loan sharing agreement or any other mutual agreement among such Borrower/Co-Borrowers providing for any mutual sharing of liability among themselves.
12.2.4 Any waiver, abatement, non-prosecution or any other relaxation granted by Lender to any Borrower or Co-Borrowers shall be of no relevance in respect of the joint and several liability of each Borrower/Co-Borrowers;
12.2.5 Any security interest created by any Borrower/Co-Borrowers shall be deemed to be respect of the joint and several obligations of the Borrower/Co-Borrowers hereunder;
12.2.6 Any notice or other communication served on any of the Borrower/Co-Borrowers shall be deemed to be served on each one of them.
13. POWER OF ATTORNEY
13.1 The Borrower hereby agrees and appoints Lender and its officers, employees and agents and authorised representatives to be its duly constituted attorneys for all or any of the following purposes, upon the occurrence of an Event of Default, namely:
13.1.1 to sign all papers, documents agreements indentures and writings that the Borrower would be bound to do under or in pursuance of these presents and / or the Loan amount for and behalf of the Borrower and to attend before the Sub-Registrar of Assurances or any other relevant authority and admit execution thereof;
13.1.2 generally to do, perform and execute or cause to be done, performed or executed all acts, deeds, performed or executed all acts, deeds, matters, things and documents in all matters arising under or out of or concerning or touching these presents as the Borrower could itself do, perform or execute.
13.1.3 The Borrower further agrees that the above powers may be exercised without any prior notice to the Borrower and further agrees to ratify and confirm all that Lender or any substitute or substitutes appointed by Lender may lawfully do or cause to be done in exercise of the aforesaid powers.
13.1.4 The Borrower agrees to give all assistance to Lender and its officers and authorized representatives for the purpose of exercising any of the powers set out hereinabove, including endorsing of documents, signing of papers and doing all such things as may be necessary to enable Lender and its officers to exercise all the powers hereby conferred.
13.1.5 The Borrower further agrees that the above powers may be exercised without any prior notice to the Borrowers and further agree to ratify and confirm all that Lender or its authorized representative may assign in part or full of the Loan under this agreement to third party or parties and all the terms and conditions of this agreement will be applicable to the Borrower without any condition or limitation
13.2 The Borrower further agrees that the aforesaid powers have been granted for valuable consideration and as such shall be irrevocable in nature till such time as any amounts remain due owing or payable under or in respect of or in pursuance of the Loan amount and / or these presents.
14. ACCESS TO INFROMATION FROM CREDIT INFORMATION AGENCIES
The Borrower understands that as a precondition to disburse the Loan, Lender will access the Borrower's past credit history. Accordingly, the Borrower authorizes Lender to access and update the Borrower's and/or its Director(s)/Partner(s), if any:
a. Information and data relating to Borrower/Director(s)/Partner(s) credit history,
b. Default, if any, committed by the Borrower/Director(s)/Partner(s) on previous occasion available with Credit Information Bureau (India) Limited (CIBIL) or any other agency authorised in this respect by Reserve Bank of India (RBI)
15. DISCLOSURE TO CREDIT INFORMATION AGENCIES
In case of default in repayment of the Loan amount or in the payment of any and all outstanding amount including any amounts due and payable under this Agreement whether by way of interest or otherwise, Lender will have an unqualified right to disclose or publish the names of the Borrower in such manner and through such medium as Lender in its absolute discretion may think fit.
Each Party undertakes that it/he shall, at all times, during the continuance of this Agreement, ensure that all the terms and conditions of this Agreement and all information relating to the Loan amount shall be kept confidential ("Confidential Information") and it/he shall not disclose any information relating to this Agreement to any third party, without the prior written consent of the other Party. Confidential Information does not include information which (i) is known to them at the time of disclosure as evidenced by their written records; or (ii) has become publicly known and made generally available through no wrongful act of theirs; or (iii) they lawfully receive from a third party without restriction on disclosure, provided such disclosure is without breach of a non-disclosure obligation or (iv) has been independently developed by them without access to other Party's Confidential Information.
Any Notice or request required to be permitted to be given or made under this agreement to the Parties shall be given in writing. Such notice request shall be deemed to have been duly given or made when it shall be delivered by hand, mail or telegram or Fax confirmation to the Party to which it shall be delivered as per address given below:
Aditsh Fintech Private Limited
Address: B 415 Basement Nirman Vihar , Delhi- 110092
B-25 Ground Floor Sector 1 Noida 201301
- For Co Borrower-1
- For Co Borrower -2
The Borrower shall bear, pay and reimburse to Lender all costs (including stamp duty), charges and expenses of Lender in connection with the drafting and finalisation of this Agreement, and all other documents and all costs, charges or expenses which Lender shall certify as sustained or incurred by it as a consequence of occurrence of an Event of Default including all costs, charges and expenses of the legal advisers of Lender and any legal recourse adopted. All such sums shall be reimbursed by the Borrower to Lender within 3 (three) days from the date of notice of demand from Lender.
19. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the Republic of India. The courts either in New Delhi or Uttar Pradesh shall have exclusive jurisdiction over all matters arising pursuant to this Agreement.
Any disputes or differences arising out of or in connection with the agreement during its subsistence or thereafter between the Parties including any disputes and differences relating to the interpretation of the agreement or any clause thereof shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and rules framed there under and any amendment, modification, statutory enactment thereto from time to time. The arbitration proceedings shall be carried in English language. The proceedings of arbitration will be as follows:
a. The Lender will appoint one - Sole Arbitrator. In the event the person so nominated refuses or is unable to act as Arbitrator, Lender shall nominate another person as the sole arbitrator and so on. The Sole Arbitrator so appointed shall decide the reference and any application for interim order made pursuant thereto, on the basis of the written statements of the Parties and the documents produced by them by way of affidavits, alone. Pleadings shall be completed within 3(Three) months of the Sole Arbitrator entering on the reference. The Parties shall not be entitled to any oral hearing or adducing oral evidence, nor be entitled to make an application to the Sole Arbitrator for the purpose, unless mutually agreed by them, in writing.
b. Adjournment, if any, shall be granted by the Sole Arbitrator only in exceptional cases, for bona fide reasons to be recorded in writing. In the event of an adjournment being granted, the Sole Arbitrator shall be entitled to direct that Party(s) seeking an adjournment to pay to the other Party(s) such amount as costs, as it deems fit and proper.
c. After an award or an order is made, a signed copy of thereof shall be delivered to each Party within 7 (Seven) Business Days of the date thereon.
d. Arbitration shall be conducted at New Delhi or Noida in an event of any dispute on deciding the place of jurisdiction between the Parties, such place shall be decided by the Sole Arbitrator.
e. The costs of arbitration shall be fixed by the Sole Arbitrator and the Sole Arbitrator in the final award shall specify (a) Party entitled to costs; (b) the Party who shall pay costs; (c) the amount of costs; and (d) the manner in which costs shall be paid. For the purpose of this Clause, 'costs of arbitration' shall mean the fees and expenses of the Sole Arbitrator, legal fees and expenses any administrative fees and any other expense incurred in connection with arbitral proceedings and arbitral award.
f. It is further agreed that the Co-Borrower is deemed as a necessary and proper party to any dispute(s) referred by either of the Parties to the Sole Arbitrator under this Clause.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
The Borrower expressly recognizes and accepts that Lender shall be absolutely entitled and have full power and authority to sell, assign or transfer in any manner, in whole or in part, and in such manner and on such terms as Lender may decide, (including reserving a right to Lender to retain its power hereunder to proceed against the Borrower on behalf of the purchaser, assignee or transferee) any or all outstanding dues of the Borrower to any third party of Lender's choice without any further reference or intimation of the Borrower. Any such action, sale, assignment or transfer shall bind the Borrower to accept such third party as creditor exclusively or as a joint creditor with Lender as the case may be. Any cost on account of such sale, assignment or transfer shall be to the account of Lender and any cost of enforcement of rights and recovery of outstanding dues, shall be to the account of the Borrower. None of the Borrower shall assign this Agreement or any of the rights, duties or obligations of the Borrower hereunder, except with the prior written consent of Lender.
The failure, with or without intent, of any Party hereto to insist upon the performance by the other Party, of any term or stipulation of this Agreement, shall not be treated as, or be deemed to constitute, a modification of any terms or stipulations of this Agreement. Nor shall such failure or election be deemed to constitute a waiver of the right of such Party, at any time whatsoever thereafter, to insist upon performance by the other, strictly in accordance with any terms or provisions hereof.
24. ENTIRE AGREEMENT
The Parties hereto confirm and acknowledge that this Agreement shall constitute the entire agreement between them and shall supersede and override all previous communications, either oral or written, between the Parties with respect to the subject matter of this Agreement, and no agreement or understanding varying or extending the same shall be binding upon any Party hereto unless arising out of the specific provisions of this Agreement.
No amendment, modification or addition to this Agreement shall be binding on either opartf the Parties hereto unless set forth in writing and executed by them through their duly authorized representatives.
This Agreement shall be executed in 2(two) counterparts one each to be retained by the respective Parties. Each counterpart shall be treated as an original and shall be capable of being enforced without reliance on the other counterparts as an original document