Security Sharing Agreement

SECOND ADDENDUM TO PARI PASSU

SECURITY SHARING AGREEMENT

This second Addendum to Pari Passu Security Sharing Agreement is made on this the 11th day of June, 2005.

AMONGST

1. THE BORROWER : COMPANY 1House No. 13, Road No. 12

Dhanmondi Residential Area

Dhaka-1209
2. SECURITY AGENT : BANK 1Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000
3. FIRST SYNDICATED LENDERS : BANK 2Head Office

Jibon Bima Tower

10, Dilkusha Commercial Area

Dhaka 1000

(hereinafter referred to as ‘BANK 2’)

BANK 1

Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000

(hereinafter referred to as ‘BANK 1’)

BANK 3

Head Office

Biman Bhaban

100, Motijheel Commercial Area

Dhaka-1000

(hereinafter referred to as ‘BANK 3’)

BANK 4

Head Office

Zaman Court

45, Dilkusha Commercial Area

Dhaka-1000

(hereinafter referred to as ‘BANK 4’)

BANK 5

Head Office

19, Dilkusha Commercial Area

Dhaka-1000

(hereinafter referred to as ‘BANK 5’)
4. SECOND SYNDICATED LENDERS : BANK 1Head Office

Adamjee Court Annexe Building-2

119-120, Motijheel Commercial Area

Dhaka-1000.

(hereinafter referred to as ‘BANK 1’)

BANK 2

Head Office

Jibon Bima Tower

10, Dilkusha Commercial Area

Dhaka-1000.

(hereinafter referred to as ‘BANK 2’)


BANK 3Head OfficeBiman Bhaban

100, Motijheel Commercial Area

Dhaka-1000.

(hereinafter referred to as ‘BANK 3’)

BANK 6

24-25, Dilkusha Commercial Area

Dhaka-1000.

(hereinafter referred to as ‘BANK 6’)

WHEREAS:

A.   Pursuant to a Pari Passu Security Sharing Agreement dated 29.12.2001 followed by First Addendum to Pari Passu Security Sharing Agreement dated 02.07.2002 between the Borrower, the Security Agent and the First Syndicated Lenders (the “Security Sharing Agreement”), the parties thereto agreed that the security interests created over the assets of the Borrower in favour of the First Syndicated Lenders for securing the debt Bank 4igations of the Borrower under the Facility Agreement (as defined in the Security Sharing Agreement) shall be enforced and shared in the manner set forth thereunder.

B.   By another Facility Agreement dated 11.06.2005 executed between the Second Syndicated Lenders and the Borrower, the Second Syndicated Lenders have agreed to grant the Borrower a syndicated term loan facility of Tk. 24,00,00,000.00 (Taka twenty four crore) only on the terms and conditions set forth therein.

C.   Pursuant to the above, the First Syndicated Lenders have agreed to share security interest over the assets of the Borrower, already charged/mortgaged to them, with the Second Syndicated Lenders on pari passu basis in the manner set forth hereunder.

D.   It is now necessary to amend the Security Sharing Agreement and the parties hereto in consideration of mutual benefits have agreed to enter into this Amendment under the terms and conditions set forth hereunder.

NOW IT IS HEREBY AGREED AS FOLLOWS:

1. That the parties hereto agree and confirm that the Security Sharing Agreement is hereby amended and restated with the amendments as follows:

Article – 1: DEFINITIONS

Section-1.1

Wherever used in this Agreement or Annexures hereto unless the context otherwise requires, the following terms have the following meanings:

“AMOUNT OUTSTANDING” means the aggregate of the amounts in any currency at any time and from time to time outstanding in respect of principal, interest, interest on interest, interest on overdue payment, penalty interest, commitment charge, front end fees and all other amounts then due and unpaid to a Chargee under this Agreement, the Facility Agreements and loan documents thereof.

“CHARGEES” mean the First Syndicated Lenders and Second Syndicated Lenders collectively and “CHARGEE” means any one of them and, in each case, shall include the successors-in-title and permitted assigns;

“CREDIT CONTRACTS” mean the Facility Agreements collectively and “CREDIT CONTRACT” means any one of them.

“DISTRIBUTION MONEYS” mean any moneys received by all or by any one of the Chargees or any receiver appointed by all or by any one of them, by enforcement of the Securities.

“FACILITY AGREEMENTS” means the First Facility Agreement and Second Facility Agreement collectively.

“FIRST FACILITY AGREEMENT” means Facility Agreement dated 29.12.2001 read with the First Addendum to Facility Agreement dated 02.07.2002  executed between the First Syndicated Lenders and the Borrower.

“FIRST SYNDICATED LENDERS” means BANK 2, BANK 1, BANK 3, BANK 4 and BANK 5.

“FIRST TERM LOAN” means the term loan facility of Tk. 28,05,00,000.00 (Taka twenty eight crore five lac) only pursuant to the First Facility Agreement.

“LOAN FACILITIES” mean the First Term Loan and Second Term Loan collectively and “LOAN FACILITY” means any one of them.

“SECOND FACILITY AGREEMENT” means Facility Agreement dated 11.06.2005 executed between the Second Syndicated Lenders and the Borrower.

“SECOND SYNDICATED LENDERS” mean BANK 2, BANK 1, BANK 3 and BANK 6.

“SECURITY” or “THE SECURITIES” means the security described in Clause 3 hereunder.

“SECURED INDEBTEDNESS” means the indebtedness of the Borrower under the Loan Facilities secured by the Security under the Credit Contracts;

“SECOND TERM LOAN” means the term loan facility of Tk. 24,00,00,000.00 (Taka twenty four crore) only pursuant to the Second Facility Agreement.

“TERM LENDERS” mean the First Syndicated Lenders and the Second Syndicated Lenders.

“TERM LOAN FACILITY” means the aggregate of First Term Loan and Second Term Loan amounting to Tk. 52,05,00,000.00 (Taka fifty two crore five lac) only.

Article-2: CONSULTATION PROCEDURES

Section-2.1

Except as the Chargees may otherwise agree from time to time, each Chargee will comply with the following procedures in giving notice of default to the Borrower under its Credit Contract, as provided for therein, or in taking any other action under its Credit Contract or in the enforcement of the Security hereinbefore defined which could require payment or repayment by the Borrower of any amount outstanding under such Credit Contract in advance of the scheduled payment or repayment date:

a)   any Chargee desiring to give such notice of default, or to take such other action, will first inform the other Chargees by fax of such intention (‘the First Notice’) and the reasons for giving such notice or taking such other actions under its Credit Contract.

b)   within 15 days of the date of dispatch of the First Notice, the Chargee to whom such First Notice has been sent may request consultation with the other Chargees (including the Chargee giving the First Notice) by fax (the ‘Consultation Notice’).

c)      if no Consultation Notice is received within the said period of 15 days, the Chargee giving the First Notice may, after 7 days further notice to the other Chargees of such intention, give notice of default to the Borrower, or take such other action under its Credit Contract.

Section-2.2

If a Consultation Notice is issued by a Chargee, the Chargee who issued the First Notice undertakes within 21 days of the dispatch of such Consultation Notice to consult with the Chargee serving the Consultation Notice; at the end of the said period of 21 days the Chargee who issued the First Notice may, in any event, give notice of default to the Borrower, or take such other action under its Credit Contract.

Section-2.3

If any Chargee terminates or suspends disbursement to the Borrower under the provisions of its Credit Contract, such Chargee will promptly inform the other Chargees of such termination or suspension and the reasons thereof. If in the judgement of the Chargee taking such action, the reasons thereof are susceptible to correction, such Chargee shall take into account the views of the other Chargees with regard to effecting such correction and resuming disbursement to the Borrower under its Credit Contract.

Section-2.4

It is understood that nothing contained in section 3.1, 3.2 and 3.3 above shall modify any of the rights of the Chargees against the Borrower under their respective Credit Contracts. It is further understood that, notwithstanding the provisions of this Article, any Chargee shall be free to disregard the provisions of this Article, if in its judgement, its Loan to the Borrower is in jeopardy or in threat of jeopardy.

Section-2.5

If in accordance with the provisions of this Article, any Chargee should give notice of default to the Borrower or take any other action under its Credit Agreement or in the enforcement of the Security, such Chargee shall contemporaneously send to the other Chargees a copy of such notice or details of such action (as the case may be).

Section-2.6

Prior to exercising the right under Section 2.4 and 2.5, the party intending to exercise such right shall serve notice upon the other parties to the Agreement as soon as reasonably possible indicating its intention to proceed against the Borrower unilaterally and shall provide details of such action.

Article-3 : SECURITY AND CUSTODY OF SECURITY DOCUMENTS

Section 3.1

Loan Facilities granted by the Chargees under the Credit Contracts are secured, inter alia, by the Securities as is described in ‘Schedule A’ attached hereto and notwithstanding when the same are created, shall rank pari passu and the enforcement proceeds therefrom be shared amongst the Chargees on pro-rata basis.

Section 3.2

3.2.1        The Security Agent shall retain the documents/papers relating to charge/mortgage mentioned in the ‘Schedule A’ for and on behalf of the Chargees.

3.2.2        Documents/papers relating to land measuring 410.50 decimals as described in the instruments under Clauses 1 and 4 of ‘Schedule A’ shall be kept by the Security Agent for and on behalf of the Chargees.

Section 3.3

The Borrower hereby agrees that in the event of a necessity to discharge any Security by filing a Memorandum of Satisfaction with the relevant registering authority/authorities written intimation shall be given to the remaining Chargees and the Borrower shall execute and register such mortgage, charge or modification(s) to the Security as may be necessary and required by the remaining Chargees.

Article-4: SECURITY SHARING ARRANGEMENTS

Section-4.1

4.1.1 In the event of any enforcement on the Security by virtue of any provision under this Agreement or due process of law, the assets or proceeds derived therefrom will be distributed among the Chargees generally, or if any of the Chargee shall receive any moneys by enforcement of such Security, all such moneys so distributed or received by the Chargees or any of them on account of the Secured Indebtedness under their respective Credit Contracts shall be applied in the manner hereinafter appearing.

4.1.2   Unless and until the whole of the Amount Outstanding shall have been fully paid off, all Distribution Moneys received by any or all of the Chargees shall, as amongst the Chargees, be applied and divided as follows:

a.  first, in paying all costs and expenses necessarily incurred or to be incurred in or about the sale, realisation and step-in rights or otherwise in the performance or exercise of the trusts, powers and duties vested in such Chargees under the relevant Security Document(s) or otherwise with respect of such security, including the remuneration of any receiver and manager (if any);

b.  secondly, in paying the interest and all fees, including penalty interest, for the time being due and owing under the Credit Contract of such Chargees;

c. thirdly, in paying the principal for the time being due and owing under the Credit Contract of such Chargees;

d.   fourthly, in paying any other moneys due and payable under the Credit Contract of such Chargees; and

e.  lastly, in paying the surplus (if any) to the person(s) entitled thereto.

PROVIDED THAT if the Distribution Moneys shall be insufficient to pay in full all amounts due under Clauses (a-d) of Sub-section 4.1.2 in the order set out therein, such Distribution Moneys shall be apportioned for payment under such Clauses ratably and without preference or priority amongst the Chargees in the proportions that the part of the Amount Outstanding which is due under the respective Credit Contract and/or any other documents contemplated thereby at the date of such distribution/payment bears to the whole of the Amount Outstanding at such date of payment/distribution.

Section-4.2

If any Chargee shall receive any monies in excess of its entitlement under this Section, such Chargee shall hold any such excess monies in trust for the other Chargees to whom it shall account therefor as soon as the respective entitlement of each Chargee has been established pursuant to the provisions of their respective Credit Contracts.

Section-4.3

The Chargees hereby agree, each with the others of them, to ensure that timely and appropriate action will be taken in all matters connected with the enforcement of the Security and that all matters referred to in the documents constituting the Security and in the Credit Contracts which require that the Chargees be ad idem shall be agreed upon in a spirit of co-operation and with solicitude for the respective interests of the other Chargees.

Article-5: REPRESENTATIONS AND WARRANTIES

Section 5.1

(a)        Each of the parties hereto hereby represent and warrant that:

(i)         it has the power to enter into this Agreement;

(ii)        the execution of this Agreement as an Agreement and performance by it of its Bank 4igations under this Agreement have been duly authorized; and this Agreement has been duly executed by it as an agreement and constitutes valid and binding Bank 4igations on its part; and

(iii)       neither the execution nor the performance of this Agreement will conflict with, or result in a breach of, any of the terms, conditions or provisions of its documents of incorporation or, as applicable, its establishment.

Article-6: UNDERTAKINGS

Section 6.1

The Borrower undertakes with each of the Chargees not to create or agree to create or permit to subsist any mortgage, charge, pledge, lien, hypothecation or other encumbrance of whatsoever nature over any of its assets as described under the instruments stated in Schedule A ranking in priority to or pari passu with the Securities, nor, without the prior written consent of the Chargees, ranking subsequent to the Securities.

Article-7: NOTICES

Section 7.1

Any notice or request required or permitted to be given or made by any one of the Chargees to the other Chargee shall be in writing. Subject to the provisions of Article-2 of this Agreement, such notice or request shall be deemed to have been duly given or made when it shall be delivered by hand or telefax to the Chargee to whom it is required or permitted to be given or made at such Chargee’s address and/or facsimile number specified hereinbelow under the names of the signatories, or such other address as such Chargee shall have designated by notice to the Chargee giving such notice or making such request.

Article-8: MISCELLANEOUS

Section 8.1

This Agreement shall bind and inure to the benefit of the respective successors of the parties hereto, but each Chargee undertakes with the other that in the event of its assigning or transferring its interests under the Credit Contracts, such assignment or transfer will be made expressly subject to the terms of this Agreement and such Chargee will procure that any assignee or transferee will undertake, in form and substance to the reasonable satisfaction of the other Chargee, to be bound by the security sharing arrangements contained in this Agreement.

Section 8.2

Any provision in this Agreement which is or may become prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without affecting the validity or enforceability of the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

Section 8.3

Nothing in this Agreement (including the Schedule) shall be so construed as to render the parties hereto liable as a partnership, association or joint venture or as creating a partnership, association or joint venture between them (and consequently any and all terms and provisions which would, or might, otherwise be implied into this Agreement shall not apply) and no party shall hold itself out as agent for, or incur any liability on behalf of, or be entitled to any indemnity from, any other except as provided for in this Agreement.

Section 8.4

No failure or delay by any of the Chargees in exercising any right, power, or remedy shall operate as a waiver thereof or otherwise impair any of its rights, powers, or remedies. No single or partial exercise of any such right shall preclude any other or further exercise thereof or the exercise of any other legal right. No waiver of any such right shall be effective unless notice is given in writing.

Section 8.5

This Agreement shall remain in force till the Borrower has adjusted all of its Secured Indebtedness.

Section 8.6

Neither this Agreement nor any terms hereof may be changed, waived, discharged, or terminated unless such change, waiver, discharge or termination is in writing signed by all the parties hereto.

Section 8.7

There shall be two engrossment of this Agreement on stamp papers, one to be furnished to the Security Agent for and on behalf of the Chargees and the other to be furnished to the Borrower, all shall be the same document and shall constitute the original. The Chargees shall each be furnished with a copy of the Agreement certified to be true by an authorised officer of the Security Agent.

Section 8.8

The rights or remedies provided for herein are cumulative and are not exclusive of any other right, power, or remedy provided by law. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion of any other appropriate right or remedy.

Section 8.9

This Agreement and its performance shall be governed by and construed in all respects in accordance with the laws of Bangladesh.

Section 8.10

That the parties hereto further declare and confirm that the amendments made herein and the Bank 4igations, commitments and rights of the parties under this Amendment Agreement embodies all the modifications of the Security Sharing Agreement which shall be valid, effective and binding on the parties hereto, their respective successors-in-interest and assigns. In event of any conflict between this Amendment Agreement and Security Sharing Agreement or any modifications thereof, the terms of this Amendment Agreement shall prevail.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

THE BORROWER COMPANY 1By___________________________Name:

Title:

Address: House No. 13, Road No. 12

Dhanmondi Residential Area

Dhaka-1209

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address: House No. 13, Road No. 12

Dhanmondi Residential Area

Dhaka-1209

 
SECURITY AGENT BANK 1By___________________________Name:

Title:

Address: Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address: Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000

 
FIRST SYNDICATED LENDERS BANK 2By___________________________Name:

Title:

Address:  Head Office

Jibon Bima Tower

10, Dilkusha Commercial Area

Dhaka 1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address:  Head Office

Jibon Bima Tower

10, Dilkusha Commercial Area

Dhaka 1000
BANK 1By___________________________Name:

Title:

Address:     Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address: Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000

 
BANK 4By___________________________Name:

Title:

Address:  Head Office

Zaman Court, 45, Dilkusha Commercial Area

Dhaka-1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address:  Head Office

Zaman Court

45, Dilkusha Commercial Area

Dhaka-1000

 
BANK 3By___________________________Name:

Title:

Address:  Head Office

Biman Bhaban

100, Motijheel Commercial Area

Dhaka-1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address:  Head Office

Biman Bhaban

100, Motijheel Commercial Area

Dhaka-1000

 
BANK 5By___________________________Name:

Title:

Address: Head Office

19, Dilkusha Commercial Area

Dhaka-1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address: Head Office

19, Dilkusha Commercial Area

Dhaka-1000
SECOND SYNDICATED LENDERS BANK 2By___________________________Name:

Title:

Address:  Head Office

Jibon Bima Tower

10, Dilkusha Commercial Area

Dhaka 1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address:  Head Office

Jibon Bima Tower

10, Dilkusha Commercial Area

Dhaka 1000

 
BANK 1By___________________________Name:

Title:

Address: Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address: Head Office

Adamjee Court Annex Building 2

119-120, Motijheel Commercial Area

Dhaka-1000

 
BANK 3By___________________________Name:

Title:

Address:  Head Office, Biman Bhaban

100, Motijheel Commercial Area

Dhaka-1000

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address:  Head Office, Biman Bhaban

100, Motijheel Commercial Area

Dhaka-1000

 
BANK 6By___________________________Name:

Title:

Address: 24-25, Dilkusha Commercial Area

Dhaka-1000.

Telephone No.:

Fax No. :
WITNESS : By__________________________Name:Title:

Address: 24-25, Dilkusha Commercial Area

Dhaka-1000.

 

Drafted by:

For: “The Lawyers & Jurists”
M.L.Hotel Tower Ltd,
208,Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.

www.lawyersnjurists.com

SCHEDULE A

PARTICULARS OF SECURITY:

Sl. Mortgage/Charge Chargees Amount Secured
1. Deed of Mortgage No. __________ dated __________ registered with the concerned Sub-Registry office. First Syndicated Lenders Tk. 28,05,00,000.00
2. Letter of Hypothecation by way of Fixed Charge dated 29.12.2001 First Syndicated Lenders Tk. 28,05,00,000.00
3. Deed of Floating Charge dated 29.12.2001 First Syndicated Lenders Tk. 28,05,00,000.00
4. Deed of Mortgage executed/to be executed by the Borrower and registered with the concerned Sub-Registry office. Second Syndicated Lenders Tk. 24,00,00,000.00
5. Letter of Hypothecation by way of Fixed Charge dated 11.06.2005 Second Syndicated Lenders Tk. 24,00,00,000.00
6. Deed of Floating Charge dated 11.06.2005 Second Syndicated Lenders Tk. 24,00,00,000.00

Drafted by:

For: “The Lawyers & Jurists”
M.L.Hotel Tower Ltd,
208,Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.

www.lawyersnjurists.com

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