LEASE FACILITY AGREEMENT
This Lease Facility Agreement is made on the ______ day of ____________, 2007.
BETWEEN:
| THE LESSEE | : | COMPANY1 9/A, Motijheel Commercial Area (1stFloor)Dhaka-1000 |
| THE LEAD LESSOR | : | FINANCIAL COMPANY1 JBC Tower (6thFloor)10 Dilkusha Commercial Area
Dhaka-1000 |
| THE LESSORS | : | FINANCIAL COMPANY1 JBC Tower (6thFloor)10 Dilkusha Commercial Area
Dhaka-1000 (hereinafter referred to as the ‘Uttara Finance’) |
| : | FINANCIAL COMPANY2 ____________________________________________________________
______________________________ (hereinafter referred to as the ‘Union Capital’) |
WHEREAS:
NOW THE PARTIES HERETO AGREE AS FOLLOWS:
OPERATIVE PROVISIONS:
1. DEFINITIONS
In this Agreement, the following expressions shall have (save where the context otherwise requires) the meanings respectively attributed to them:
‘ACQUISITION COST’ means the acquisition cost of the Leased Assets which shall be the aggregate amount of Facility under this Agreement, together with the financial expenses and other incidental expenses accrued on the sums paid by the Lessors as specified in Schedule-D hereunder and may be varied from time to time by the Amendment Agreement.
‘AMENDMENT AGREEMENT’ means such agreement(s) to be executed between the Lessors and Lessee from amendment of any of the terms herein, including the amendments to be made upon the Execution Date.
‘AVAILABILITY PERIOD’ means _______ (___________) months from the date of signing this Agreement to the date of opening of the Letter of Credit by the Lead Lessor.
‘BANK BASIS’ means the basis calculated by using a multiplier consisting of the actual number of days elapsed divided by 360
‘BUSINESS DAY’ means a day on which (i) banks, financial institutions are open for business in Dhaka, Bangladesh and (ii) dealings in Taka are carried on in the Dhaka interbank market.
‘CERTIFICATE OF LEASE EXECUTION’ means the certificate(s) issued by the Lessee forwarded to the Lead Lessor accepting the Leased Assets in accordance with Clause 15 of this Agreement.
‘CHEQUES’ means the cheques to be issued by the Lessee in favour of the Lead Lessor in accordance to Clause 5 and clause 13 hereunder.
‘DEPRECIATION ALLOWANCE’ means the depreciation of deducted against the use of the Leased Assets. Depreciation Allowance shall be deducted proportionately by each Lessor in accordance to their respective participation in the Facility as shown in Schedule-A hereunder.
‘DRAWING NOTICE’ means a notice of drawing substantially in the form set out in Schedule E.
‘ENCUMBRANCE’ means any mortgage, charge, pledge, lien, assignment, hypothecation, title retention, right of set-off or any security interest whatsoever, howsoever created or arising and whether relating to existing or future assets.
‘EVENT OF DEFAULT’ means any of the events mentioned in Clause 10.
‘EXECUTION DATE’ means the date when the following requirements have been fully satisfied:
(i) The Leased Assets (in full) have been properly imported, installed and commissioned in accordance with requisite designs and specifications to the complete satisfaction of the Lead Lessor and other Lessors;
The Execution Date shall take place within 180 days from the date of retirement of the shipping documents in accordance with the L/C.
‘FACILITY’ means the lease finance facility of an aggregate sum of EURO 2,385,000.00 equivalent to BDT 23,37,00,000.00 (Taka twenty three crore thirty seven lac) only [@ Tk. 98.00] which will be utilised under the terms and conditions of which are set out in this Agreement.
‘LEASED ASSETS’ means the plant, equipment and machinery, or any part thereof as described in Schedule-D.
‘LEASE DEPOSIT’ means the deposit of BDT 6,00,00,000.00 (Taka six crore) only with regard to the Facility.
‘LEASE DOCUMENTS’ means all the agreements, deeds, instruments and documents executed between the Lessee and the Lessors or in favour of the Lessors/ in favour of the Lead Lessor for and on behalf of the Lessors, including the Security Documents, for effecting the Facility.
‘LEASE TERM’ means 48 months from the date of Deferred Payment Bill.
‘LETTER OF CREDIT or L/C’ means the letter of credit(s) to be opened by the Lessor under the Facility pursuant to the application of the Lessee for importing the Leased Asset.
‘MONTHLY RENTALS’ means the monthly rentals payable by the Lessee in accordance to Clause 5.1 hereunder.
‘PROJECT’ means RIETER of ________________________________.
‘RENTAL PAYMENT DATES
‘SUPPLIER’ means _______________________________.
‘SCHEDULE or SCHEDULES’ shall mean any one or more Schedules as attached hereunder the contents of which may be amended from time to time under the Amendment Agreement as the Lessors deem fit.
‘SECURITY DOCUMENTATION’ or ‘SECURITY DOCUMENTS’ means the documents listed in Schedule C.
‘STIPULATED LOSS VALUE’ means Initial Stipulated Loss Value and the Stipulated Loss Value during each respective year which are payable in the amount specified in the Schedule D attached to this Agreement.
‘TAKA’ or ‘Tk.’ means Bangladesh Taka.
‘TAXES’ includes all present and future taxes, levies, imposts, deductions, charges, stamp duties and withholdings whatsoever, including all liabilities with respect thereto.
‘TRANSFER COST’ means costs to be paid by the Lessee to acquire the Leased Assets upon payment of all liabilities under this Lease Facility Agreement. The costs shall be paid at the ratio mentioned in Clause 13 of the Agreement and subsequently to be distributed among the Lessors to the extent of their financing.
2. Facility
The participation of each of the Lessors to this Facility is detailed in Schedule-A hereunder.
3. Conditions precedent
3.1 The L/C will be opened by the Lead Lessor when the Lead Lessor has received in form and substance satisfactory to it the following documents upon fulfilment of the conditions stated below:
3.1.1 A copy of the Certificate of Incorporation and the latest copy of the Memorandum and Articles of Association of the Lessee duly certified to be a true copy by the Registrar of the Joint Stock Company;
3.1.2 Resolutions by the Board of Directors of the Lessee:
4. Opening L/C and Reimbursement
4.1.4 submission of the pro-forma invoice complete with all terms and conditions with the Lead Lessor within 15 (fifteen) days from the date of signing of this Facility Agreement;
the Lessee may serve on the Lead Lessor a Drawing Notice, to be actually received by the Lessor not later than 10.00 hours Dhaka time 3 (three) Business Days before the proposed date of the drawdown and to take effect within the Availability Period.
4.10 The Lease
4.10.1 That upon receipt of the Leased Asset the Lessee shall execute the Certificate of Lease Execution in accordance to the terms set forth hereunder.
5. Monthly Rentals
6. Interest Rate, Collection Fee, Depreciation Costs etc.
6.1 Notwithstanding anything contained herein and in any other documents, the parties hereto have agreed that the computation of rental is based on a interest rate at 18% per annum.
7. Representations and warranties
8. Covenants
8.1 The Lessee covenants with the Lessors that, from the date hereof until all its liabilities under this Agreement have been discharged:
9. No set off/witholding of funds
9.1 All payments by the Lessee under this Agreement (whether in respect of principal, interest, fees or otherwise) shall be made in full, without any deduction or withholding (whether in respect of set-off, counterclaim, duties, taxes, charges, levies or otherwise) unless the Lessee shall be prohibited by law from so doing, in which event the Lessee shall:
10. Default
10.1 If:
then or at any time thereafter, the Lead Lessor may, and upon the request of the Lessors shall, by notice to the Lessee, declare the Facility to be immediately due and payable whereupon:
10.2 If and whenever any Lessor is notified under this Agreement of the occurrence of an Event of Default, it shall promptly inform each of the other Lessors.
11. Lessee’s obligations upon termination
11.1 In the Event of Default the Lessee shall forthwith return the Leased Assets to the Lessors in accordance with the terms of Clause 13 and simultaneously shall pay to the Lessors the following:
11.2 In the event the Lessee performs the obligation of return of the Leased Assets, and the Lead Lessor sells the Leased Assets, the Lead Lessor may offset any remaining balance, determining by deducting all expenses relating to the sale of the Leased Assets from the proceeds of the sale of the Leased assets, against the amount of the foregoing Clause 11.1.
12. Damages
13. Return and Transfer of Leased Assets
14. Acquisition of Leased Assets
15. Acceptance of Leased Assets
16. Delay in Delivery and Defects in Leased Assets
17. Insurance
(a) the payment of either repairing or replacing the Leased Assets.
(b) the payment of the damages mentioned in the Clause 12 and/or the payment of any debts or obligations of the Lessee to the Lessor.
(c) the payment for compensating damages incurred to any third party due to the occurrence of the insured events.
18. Scope of the obligations of the Lead Lessor
18.1 The Lessors hereby authorises the Lead Lessor to act on their behalf in connection with this Agreement and authorises the Lead Lessor to exercise such rights, powers and discretions as are specifically delegated to it by the terms under this Agreement, together with all such rights, powers and discretions as are reasonably incidental thereto.
18.2 When acting in connection with this Agreement, the Lead Lessor shall:
18.3 When acting in connection with this Agreement, the Lead Lessor may:
18.3.1 assume that none of the Events of Default have occurred and that the Lessee is not in breach of or default of its obligations hereunder unless it has actual knowledge or received actual notice to the contrary;
18.5.5.1 for the execution, validity, enforceability or effectiveness of this Agreement or any document delivered pursuant thereto or connected therewith; or
18.6 Where the Lead Lessor, in complying with instructions received by it from the other Lessors, incurs any costs, claims, damages, expenses and liabilities (at actuals), including all such costs in respect of the issuance of the Certificate of Lease Execution, in connection with the preservation and/or enforcement of any of the rights of the Lessors under this Agreement, the Lessors shall reimburse the Lead Lessor all such costs, claims, damages, expenses and liabilities in the proportion to their participation of the Facility within three (3) business days of notification by the Lead Lessor.
18.7 The other Lessors agree that the Lead Lessor shall not be responsible for the accuracy and completeness of any representation made (whether orally or otherwise) herein or in connection herewith, or for the validity, effectiveness, adequacy or enforceability of this Agreement or for the creditworthiness of the Lessee. Neither the Lead Lessor, nor any of its directors, officers or employees shall be under any liability for or in respect of any action taken by it or them in relation to this Agreement save for their own gross negligence or willful misconduct.
18.8 With respect to its own participation in the Facility, the Lead Lessor shall have the same rights and powers under this Agreement as any other Lessor and may exercise them.
19 Change of Lead Lessor
19.1 In the event that the Lead Lessor considers itself not in a position to continue as the Lead Lessor, it may notify the Lessee and the Lessors of the proposed termination of its agency. After giving of such notice the Lead Lessor and/or the Lessors may propose a successor as Lead Lessor. Upon the written acceptance (in such form as the Lessors may approve) by the successor of its appointment as Lead Lessor:
19.2 In any proceedings relating to this Agreement:
19.2.1 a statement as to any amount due to the Lessors under this Agreement which is certified as being correct by an officer of the Lead Lessor; and a statement as to any amount due to a Lessor under this Agreement, which is, certified as being correct by an officer of the Lessor;
19.2.2 shall, unless otherwise provided in this Agreement and save from manifest error be conclusive evidence that such amount is in fact due and payable.
20. Consultation Procedures
21. Liquidation of Lease Assets and Securities
21.1 In the event that the Leased Assets are repossessed and liquidated by virtue of provisions of this Agreement or process of law, all such moneys so received shall be applied in the manner hereinafter appearing.
PROVIDED THAT if the distribution money shall be insufficient to pay all amounts in full under paragraph (ii) of this Sub-Clause, such distribution money shall be apportioned for payment ratably and without preference or priority among the Lessors in the proportion of their respective outstanding financial obligations on the date of such distribution.
22.1 Set-off
The Lessee authorises each Lessor to the fullest extent permitted by law to apply any credit balance to which the Lessee is entitled on any account of the Lessee with that Lessor in satisfaction of any sum due and payable from the Lessee hereunder but unpaid. No Lessor shall be obliged to exercise any right given to it by this Clause.
22.2 Lessor’s contributions
22.2.1 Any Lessor which receives or recovers any amount (other than from the Lead Lessor) in respect of sums due from the Lessee under this Agreement (whether by set-off or otherwise) (a ‘Recovering Lessor’) shall promptly notify the Lead Lessor of such receipt or recovery and the amount thereof.. The Lead Lessor shall, as soon as practicable thereafter, ascertain from the Lessors the aggregate sums received or recovered by the Lessors (whether by the exercise of any right of set-off or otherwise) and what payments are required to be effected for such aggregate to be divided amongst the Lessors in proportion to their participation.
22.2.2 The Lessors shall promptly make such payments to each other, through the Lead Lessor, as the Lead Lessor shall direct to effect the proportionate division referred to above.
22.3 Invalidity of any provision
If any of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
22.4 Waivers
Time shall be the essence in this Agreement, but no failure to exercise nor any delay in exercising on the part of any Party hereto any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
The Lead Lessor and the Co-Lessors shall have no obligation for arranging or providing any Facility exceeding the limit mentioned in Schedule-A. In case of any cost overrun the Lessee shall be obliged to provide the additional funds necessary for the importation, installation and commissioning of the Leased Assets failing which the Lessee shall be responsible towards the Lessors for any lost, costs or damage sustained due to its failure to arrange the funds and provide the Certificate of Lease Execution.
23. Notices
23.1 each communication to be made hereunder shall be in writing but, unless otherwise stated, may be made by facsimile or letter.
23.2 Any communication or document to be made or delivered pursuant to this Agreement shall be made or delivered to each party at the address or facsimile number identified with its signature below and shall be deemed to have been made or delivered when such communication or document has been dispatched (in the case of any communication made by facsimile) or (in the case of any communication made by letter) when left at that address or, as the case may be, seven days after being deposited in the post first class postage prepaid in an envelope addressed to it at that address, provided that any communication or document to be made or delivered to the Lead Lessor shall be effective only when received by the Lead Lessor at the address to which it is to be sent.
24. Entire Agreement
25. Assignment and transfers
26. Counterparts
There shall be two engrossment of this Agreement on stamp papers, one to be furnished to the Lead Lessor and the other to be furnished to the Lessee, both are the same document and shall constitute the original; the Lessors shall each be furnished a copy of the Agreement certified true by an authorised officer of the Lead Lessor.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST WRITTEN ABOVE.
| THE LESSOR | COMPANY1 By___________________________Name:
Title: Address: Telephone No.: Fax No.: |
| WITNESS : | By__________________________Name:Title:
Address: |
| THE LEAD LESSOR | FINANCIAL COMPANY1 By___________________________Name:
Title: Address: Hadi Mansion 2, Dilkusha Commercial Area Dhaka-1000 Telephone No.: 9560111 Fax No.: 9563620 |
| WITNESS : | By__________________________Name:Title:
Address:
|
| THE LESSOR | FINANCIAL COMPANY1 By___________________________Name:
Title: Address: JBC Tower (6th floor) 10, Dilkusha Commercial Area Dhaka-1000 Telephone No.:9568207-9 Fax No.: 9552461 |
| WITNESS : | By__________________________Name:Title:
Address:
|
| FINANCIAL COMPANY2 By___________________________Name:
Title: Address: Printers Building 5, RAJUK Avenue Dhaka-1000 Telephone No.: 9565026 Fax No.: 9565027 |
|
| WITNESS : | By__________________________Name:Title:
Address: |
SCHEDULE A
FUNDING PARTICIPATION OF LESSORS
| Financial Institution | Funding Participation | Total Funding Participation in Tk. |
| FINANCIAL COMPANY1 | ||
| FINANCIAL COMPANY2 | ||
| Total |
SCHEDULE B
NOTICE FOR FUNDING
To:
FINANCIAL COMPANY 1
JBC Tower, 6th floor
10, Dilkusha Commercial Area
Dhaka 1000
FINANCIAL COMPANY2
_______________________
_______________________
_______________________
Dear Sirs,
We refer to the Facility constituted by a Lease Facility Agreement (the ‘Facility Agreement’) dated _____________ and made between (1) Aegis Textile Limited (the ‘Lessee’), (2) FINANCIAL COMPANY1 [the ‘Lead Lessor’], (3) FINANCIAL COMPANY1 (4) FINANCIAL COMPANY2 (Party Nos. 3-4 are hereinafter collectively referred to as “the Lessors”). Terms defined in the Lease Facility Agreement have the same meanings herein.
Please be informed that we have notice from ____________________ for retirement of shipping documents and payment of Tk. _______________________ (Taka ________________) only under Letter of Credit No. ________________________ dated ______________________________ opened by us under the Facility.
We hereby request you to pay a sum of Tk. _______________________ (Taka ____________________) only in accordance to the proportion of your participation under the Facility on _______________ not later than 10.00 a.m. in immediately available, freely transferable, cleared funds to FINANCIAL COMPANY1 , JBC Tower, 6th floor, 10, Dilkusha Commercial Area, Dhaka 1000.
__________________
Lead Lessor
SCHEDULE C
SECURITY DOCUMENTATION
| Sl. | Security | Instrument |
| 1. | Lease Deposit : | Deposition of 8 nos. of post dated cheque for Tk. 75,00,000.00 (Taka seventy five lac) each for building up of equity with the Lessor in accordance to Clause _____ of the Lease Facility Agreement. |
| 2. | Deposition of 48 Nos. post dated cheques each for Tk. 36,34,000.00 (Taka thirty six lac thirty four thousand) only with Financial company 1 in accordance to Clause ________ hereinabove. | Under the Lease Facility Agreement. |
| 3. | Deposition of 48 Nos. post dated cheques each for Tk. 14,69,000.00 (Taka fourteen lac sixty nine thousand) with Financial company 2 in accordance to Clause ________ hereinabove. | Under the Lease Facility Agreement. |
| 4. | Deposition of a post dated cheque for Tk. 1,00,000.00 (Taka one lac) in accordance to Clause 13.4 hereinabove. | Under the Lease Facility Agreement. |
| 5. | Corporate Guarantee | Corporate Guarantee executed by COMPANY 1 in favour of the Lessor guaranteeing the liabilities and obligations of the Lessee under the Lease Facility Agreement till adjustment of the liability: |
| 6. | Personal Guarantee by the Directors of the Lessee undertaking repayment of the debt obligation of the Lessee | Personal guarantees to be executed by the following persons in favour of the Lessors: |
| 7. | Undertaking by the Lessee to the Lessor to bear any exchange rate fluctuation or any other cost exceeding the Facility amount. | A Letter of Undertaking to be executed by the Lessee in favour of the Lessors. |
SCHEDULE-D
TERMS AND CONDITIONS OF THE LEASE
1. LEASE ASSET : PLANT AND MACHINERY
| Name of Machinery | Description | Imported/Local | Amount in Tk. |
| 2. | ACQUISITION COST | : | Taka ____________________ | ||
| 3. | SUPPLIER | : | |||
| 4. | INSTALLATION PLACE | : | |||
| 5. | LEASE TERM | : | 48 months from the date of payment of Deferred Payment bill. | ||
| 6. | MONTHLY RENTAL | : | |||
| 7. | LEGAL FEES & OTHER EXPENSES | : | Includes all reasonable expenses incurred by the Lead Lessor in connection with the arrangement of this Facility and any legal expenses incurred in connection with the due diligence, negotiation, syndication and documentation of the Facility. Enforcement costs, if any, will be recoverable at actuals. In the event that the Facility is not signed, legal fees and other expenses will be reimbursed to the Arranger against evidence of expenditure. | ||
| 8. | STIPULATED LOSS VALUE | : | |||
| 1st Year | |||||
| 2nd year | |||||
| 3rd year | |||||
| 4th year | |||||
| 9. | Special Covenants: |
SCHEDULE-E
DRAWING NOTICE
To
FINANCIAL COMPANY 1
JBC Tower (6th floor)
10, Dilkusha Commercial Area
Dhaka-1000
BDT ……………………
Lease Facility Agreement dated ________________ 200____
We refer to the Facility constituted by a Lease Facility Agreement (the ‘Lease Facility Agreement’) dated _________ and made between COMPANY1 (the ‘Lessee’), the Agent and the Lessors named therein. Terms defined in the Lease Facility Agreement have the same meanings herein.
Please be informed that we have notice from ____________________ for retirement of shipping documents and payment of Tk. _______________________ (Taka ________________) only under Letter of Credit No. ________________________ dated _____________.
We hereby:
(i) give you notice that we wish to draw an amount of BDT [amount] on ………….. 200 …….;
(ii) request you to pay the amount to [name and address of bank to which remittance is to be made and account number]; and
(iii) confirm that as at today’s date each of the conditions contained in Clause 2 is satisfied and we know of no reason why they should not be satisfied as at the date referred to in (i) above.
COMPANY1
By …………………………………
Drafted by:
For: “The Lawyers & Jurists”
M.L.Hotel Tower Ltd,208,Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.
www.lawyersnjurists.com
LEASE FACILITY AGREEMENT
This Lease Facility Agreement is made on the ______ day of ____________, 2007.
BETWEEN:
| THE LESSEE | : | COMPANY1 9/A, Motijheel Commercial Area (1stFloor)Dhaka-1000 |
| THE LEAD LESSOR | : | FINANCIAL COMPANY1 JBC Tower (6thFloor)10 Dilkusha Commercial Area
Dhaka-1000 |
| THE LESSORS | : | FINANCIAL COMPANY1 JBC Tower (6thFloor)10 Dilkusha Commercial Area
Dhaka-1000 (hereinafter referred to as the ‘Uttara Finance’) |
| : | FINANCIAL COMPANY2 ____________________________________________________________
______________________________ (hereinafter referred to as the ‘Union Capital’) |
WHEREAS:
NOW THE PARTIES HERETO AGREE AS FOLLOWS:
OPERATIVE PROVISIONS:
1. DEFINITIONS
In this Agreement, the following expressions shall have (save where the context otherwise requires) the meanings respectively attributed to them:
‘ACQUISITION COST’ means the acquisition cost of the Leased Assets which shall be the aggregate amount of Facility under this Agreement, together with the financial expenses and other incidental expenses accrued on the sums paid by the Lessors as specified in Schedule-D hereunder and may be varied from time to time by the Amendment Agreement.
‘AMENDMENT AGREEMENT’ means such agreement(s) to be executed between the Lessors and Lessee from amendment of any of the terms herein, including the amendments to be made upon the Execution Date.
‘AVAILABILITY PERIOD’ means _______ (___________) months from the date of signing this Agreement to the date of opening of the Letter of Credit by the Lead Lessor.
‘BANK BASIS’ means the basis calculated by using a multiplier consisting of the actual number of days elapsed divided by 360
‘BUSINESS DAY’ means a day on which (i) banks, financial institutions are open for business in Dhaka, Bangladesh and (ii) dealings in Taka are carried on in the Dhaka interbank market.
‘CERTIFICATE OF LEASE EXECUTION’ means the certificate(s) issued by the Lessee forwarded to the Lead Lessor accepting the Leased Assets in accordance with Clause 15 of this Agreement.
‘CHEQUES’ means the cheques to be issued by the Lessee in favour of the Lead Lessor in accordance to Clause 5 and clause 13 hereunder.
‘DEPRECIATION ALLOWANCE’ means the depreciation of deducted against the use of the Leased Assets. Depreciation Allowance shall be deducted proportionately by each Lessor in accordance to their respective participation in the Facility as shown in Schedule-A hereunder.
‘DRAWING NOTICE’ means a notice of drawing substantially in the form set out in Schedule E.
‘ENCUMBRANCE’ means any mortgage, charge, pledge, lien, assignment, hypothecation, title retention, right of set-off or any security interest whatsoever, howsoever created or arising and whether relating to existing or future assets.
‘EVENT OF DEFAULT’ means any of the events mentioned in Clause 10.
‘EXECUTION DATE’ means the date when the following requirements have been fully satisfied:
(i) The Leased Assets (in full) have been properly imported, installed and commissioned in accordance with requisite designs and specifications to the complete satisfaction of the Lead Lessor and other Lessors;
The Execution Date shall take place within 180 days from the date of retirement of the shipping documents in accordance with the L/C.
‘FACILITY’ means the lease finance facility of an aggregate sum of EURO 2,385,000.00 equivalent to BDT 23,37,00,000.00 (Taka twenty three crore thirty seven lac) only [@ Tk. 98.00] which will be utilised under the terms and conditions of which are set out in this Agreement.
‘LEASED ASSETS’ means the plant, equipment and machinery, or any part thereof as described in Schedule-D.
‘LEASE DEPOSIT’ means the deposit of BDT 6,00,00,000.00 (Taka six crore) only with regard to the Facility.
‘LEASE DOCUMENTS’ means all the agreements, deeds, instruments and documents executed between the Lessee and the Lessors or in favour of the Lessors/ in favour of the Lead Lessor for and on behalf of the Lessors, including the Security Documents, for effecting the Facility.
‘LEASE TERM’ means 48 months from the date of Deferred Payment Bill.
‘LETTER OF CREDIT or L/C’ means the letter of credit(s) to be opened by the Lessor under the Facility pursuant to the application of the Lessee for importing the Leased Asset.
‘MONTHLY RENTALS’ means the monthly rentals payable by the Lessee in accordance to Clause 5.1 hereunder.
‘PROJECT’ means RIETER of ________________________________.
‘RENTAL PAYMENT DATES
‘SUPPLIER’ means _______________________________.
‘SCHEDULE or SCHEDULES’ shall mean any one or more Schedules as attached hereunder the contents of which may be amended from time to time under the Amendment Agreement as the Lessors deem fit.
‘SECURITY DOCUMENTATION’ or ‘SECURITY DOCUMENTS’ means the documents listed in Schedule C.
‘STIPULATED LOSS VALUE’ means Initial Stipulated Loss Value and the Stipulated Loss Value during each respective year which are payable in the amount specified in the Schedule D attached to this Agreement.
‘TAKA’ or ‘Tk.’ means Bangladesh Taka.
‘TAXES’ includes all present and future taxes, levies, imposts, deductions, charges, stamp duties and withholdings whatsoever, including all liabilities with respect thereto.
‘TRANSFER COST’ means costs to be paid by the Lessee to acquire the Leased Assets upon payment of all liabilities under this Lease Facility Agreement. The costs shall be paid at the ratio mentioned in Clause 13 of the Agreement and subsequently to be distributed among the Lessors to the extent of their financing.
2. Facility
The participation of each of the Lessors to this Facility is detailed in Schedule-A hereunder.
3. Conditions precedent
3.1 The L/C will be opened by the Lead Lessor when the Lead Lessor has received in form and substance satisfactory to it the following documents upon fulfilment of the conditions stated below:
3.1.1 A copy of the Certificate of Incorporation and the latest copy of the Memorandum and Articles of Association of the Lessee duly certified to be a true copy by the Registrar of the Joint Stock Company;
3.1.2 Resolutions by the Board of Directors of the Lessee:
4. Opening L/C and Reimbursement
4.1.4 submission of the pro-forma invoice complete with all terms and conditions with the Lead Lessor within 15 (fifteen) days from the date of signing of this Facility Agreement;
the Lessee may serve on the Lead Lessor a Drawing Notice, to be actually received by the Lessor not later than 10.00 hours Dhaka time 3 (three) Business Days before the proposed date of the drawdown and to take effect within the Availability Period.
4.10 The Lease
4.10.1 That upon receipt of the Leased Asset the Lessee shall execute the Certificate of Lease Execution in accordance to the terms set forth hereunder.
5. Monthly Rentals
6. Interest Rate, Collection Fee, Depreciation Costs etc.
6.1 Notwithstanding anything contained herein and in any other documents, the parties hereto have agreed that the computation of rental is based on a interest rate at 18% per annum.
7. Representations and warranties
8. Covenants
8.1 The Lessee covenants with the Lessors that, from the date hereof until all its liabilities under this Agreement have been discharged:
9. No set off/witholding of funds
9.1 All payments by the Lessee under this Agreement (whether in respect of principal, interest, fees or otherwise) shall be made in full, without any deduction or withholding (whether in respect of set-off, counterclaim, duties, taxes, charges, levies or otherwise) unless the Lessee shall be prohibited by law from so doing, in which event the Lessee shall:
10. Default
10.1 If:
then or at any time thereafter, the Lead Lessor may, and upon the request of the Lessors shall, by notice to the Lessee, declare the Facility to be immediately due and payable whereupon:
10.2 If and whenever any Lessor is notified under this Agreement of the occurrence of an Event of Default, it shall promptly inform each of the other Lessors.
11. Lessee’s obligations upon termination
11.1 In the Event of Default the Lessee shall forthwith return the Leased Assets to the Lessors in accordance with the terms of Clause 13 and simultaneously shall pay to the Lessors the following:
11.2 In the event the Lessee performs the obligation of return of the Leased Assets, and the Lead Lessor sells the Leased Assets, the Lead Lessor may offset any remaining balance, determining by deducting all expenses relating to the sale of the Leased Assets from the proceeds of the sale of the Leased assets, against the amount of the foregoing Clause 11.1.
12. Damages
13. Return and Transfer of Leased Assets
14. Acquisition of Leased Assets
15. Acceptance of Leased Assets
16. Delay in Delivery and Defects in Leased Assets
17. Insurance
(a) the payment of either repairing or replacing the Leased Assets.
(b) the payment of the damages mentioned in the Clause 12 and/or the payment of any debts or obligations of the Lessee to the Lessor.
(c) the payment for compensating damages incurred to any third party due to the occurrence of the insured events.
18. Scope of the obligations of the Lead Lessor
18.1 The Lessors hereby authorises the Lead Lessor to act on their behalf in connection with this Agreement and authorises the Lead Lessor to exercise such rights, powers and discretions as are specifically delegated to it by the terms under this Agreement, together with all such rights, powers and discretions as are reasonably incidental thereto.
18.2 When acting in connection with this Agreement, the Lead Lessor shall:
18.3 When acting in connection with this Agreement, the Lead Lessor may:
18.3.1 assume that none of the Events of Default have occurred and that the Lessee is not in breach of or default of its obligations hereunder unless it has actual knowledge or received actual notice to the contrary;
18.5.5.1 for the execution, validity, enforceability or effectiveness of this Agreement or any document delivered pursuant thereto or connected therewith; or
18.6 Where the Lead Lessor, in complying with instructions received by it from the other Lessors, incurs any costs, claims, damages, expenses and liabilities (at actuals), including all such costs in respect of the issuance of the Certificate of Lease Execution, in connection with the preservation and/or enforcement of any of the rights of the Lessors under this Agreement, the Lessors shall reimburse the Lead Lessor all such costs, claims, damages, expenses and liabilities in the proportion to their participation of the Facility within three (3) business days of notification by the Lead Lessor.
18.7 The other Lessors agree that the Lead Lessor shall not be responsible for the accuracy and completeness of any representation made (whether orally or otherwise) herein or in connection herewith, or for the validity, effectiveness, adequacy or enforceability of this Agreement or for the creditworthiness of the Lessee. Neither the Lead Lessor, nor any of its directors, officers or employees shall be under any liability for or in respect of any action taken by it or them in relation to this Agreement save for their own gross negligence or willful misconduct.
18.8 With respect to its own participation in the Facility, the Lead Lessor shall have the same rights and powers under this Agreement as any other Lessor and may exercise them.
19 Change of Lead Lessor
19.1 In the event that the Lead Lessor considers itself not in a position to continue as the Lead Lessor, it may notify the Lessee and the Lessors of the proposed termination of its agency. After giving of such notice the Lead Lessor and/or the Lessors may propose a successor as Lead Lessor. Upon the written acceptance (in such form as the Lessors may approve) by the successor of its appointment as Lead Lessor:
19.2 In any proceedings relating to this Agreement:
19.2.1 a statement as to any amount due to the Lessors under this Agreement which is certified as being correct by an officer of the Lead Lessor; and a statement as to any amount due to a Lessor under this Agreement, which is, certified as being correct by an officer of the Lessor;
19.2.2 shall, unless otherwise provided in this Agreement and save from manifest error be conclusive evidence that such amount is in fact due and payable.
20. Consultation Procedures
21. Liquidation of Lease Assets and Securities
21.1 In the event that the Leased Assets are repossessed and liquidated by virtue of provisions of this Agreement or process of law, all such moneys so received shall be applied in the manner hereinafter appearing.
PROVIDED THAT if the distribution money shall be insufficient to pay all amounts in full under paragraph (ii) of this Sub-Clause, such distribution money shall be apportioned for payment ratably and without preference or priority among the Lessors in the proportion of their respective outstanding financial obligations on the date of such distribution.
22.1 Set-off
The Lessee authorises each Lessor to the fullest extent permitted by law to apply any credit balance to which the Lessee is entitled on any account of the Lessee with that Lessor in satisfaction of any sum due and payable from the Lessee hereunder but unpaid. No Lessor shall be obliged to exercise any right given to it by this Clause.
22.2 Lessor’s contributions
22.2.1 Any Lessor which receives or recovers any amount (other than from the Lead Lessor) in respect of sums due from the Lessee under this Agreement (whether by set-off or otherwise) (a ‘Recovering Lessor’) shall promptly notify the Lead Lessor of such receipt or recovery and the amount thereof.. The Lead Lessor shall, as soon as practicable thereafter, ascertain from the Lessors the aggregate sums received or recovered by the Lessors (whether by the exercise of any right of set-off or otherwise) and what payments are required to be effected for such aggregate to be divided amongst the Lessors in proportion to their participation.
22.2.2 The Lessors shall promptly make such payments to each other, through the Lead Lessor, as the Lead Lessor shall direct to effect the proportionate division referred to above.
22.3 Invalidity of any provision
If any of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
22.4 Waivers
Time shall be the essence in this Agreement, but no failure to exercise nor any delay in exercising on the part of any Party hereto any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
The Lead Lessor and the Co-Lessors shall have no obligation for arranging or providing any Facility exceeding the limit mentioned in Schedule-A. In case of any cost overrun the Lessee shall be obliged to provide the additional funds necessary for the importation, installation and commissioning of the Leased Assets failing which the Lessee shall be responsible towards the Lessors for any lost, costs or damage sustained due to its failure to arrange the funds and provide the Certificate of Lease Execution.
23. Notices
23.1 each communication to be made hereunder shall be in writing but, unless otherwise stated, may be made by facsimile or letter.
23.2 Any communication or document to be made or delivered pursuant to this Agreement shall be made or delivered to each party at the address or facsimile number identified with its signature below and shall be deemed to have been made or delivered when such communication or document has been dispatched (in the case of any communication made by facsimile) or (in the case of any communication made by letter) when left at that address or, as the case may be, seven days after being deposited in the post first class postage prepaid in an envelope addressed to it at that address, provided that any communication or document to be made or delivered to the Lead Lessor shall be effective only when received by the Lead Lessor at the address to which it is to be sent.
24. Entire Agreement
25. Assignment and transfers
26. Counterparts
There shall be two engrossment of this Agreement on stamp papers, one to be furnished to the Lead Lessor and the other to be furnished to the Lessee, both are the same document and shall constitute the original; the Lessors shall each be furnished a copy of the Agreement certified true by an authorised officer of the Lead Lessor.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST WRITTEN ABOVE.
| THE LESSOR | COMPANY1 By___________________________Name:
Title: Address: Telephone No.: Fax No.: |
| WITNESS : | By__________________________Name:Title:
Address:
|
| THE LEAD LESSOR | FINANCIAL COMPANY1 By___________________________Name:
Title: Address: Hadi Mansion 2, Dilkusha Commercial Area Dhaka-1000 Telephone No.: 9560111 Fax No.: 9563620 |
| WITNESS : | By__________________________Name:Title:
Address:
|
| THE LESSOR | FINANCIAL COMPANY1 By___________________________Name:
Title: Address: JBC Tower (6th floor) 10, Dilkusha Commercial Area Dhaka-1000 Telephone No.:9568207-9 Fax No.: 9552461 |
| WITNESS : | By__________________________Name:Title:
Address: |
| FINANCIAL COMPANY2 By___________________________Name:
Title: Address: Printers Building 5, RAJUK Avenue Dhaka-1000 Telephone No.: 9565026 Fax No.: 9565027 |
|
| WITNESS : |