TERM LOAN AGREEMENT
X ASSOCIATES LIMITED
DUTCH-BANGLA BANK LIMITED
This Term Loan Agreement is made on this the________ day of ____________, 2009 of the Christian era.
X Associates Limited, a private company limited by shares incorporated in Bangladesh under the relevant of Companies Act, having its Office address at …………………………………………., represented by its Chairman/Managing Director Mr……………………..………….., hereinafter referred to as the “Borrower” (which expression unless excluded by or repugnant to the context shall mean and include its successors-in-interest, administrators, legal representatives, executors and assigns).
DUTCH-BANGLA BANK LIMITED, a scheduled bank incorporated in Bangladesh under the Companies Act 1994 and carrying out its banking business being governed by the Bank Companies Act, 1991, having its Head Office at Sena Kalyan Bhaban, (3rd, 4th & 5th Floor), 195, Motijheel Commercial Area, under P.S.-Motijheel, Dhaka-1000, along with one of its branch offices namely “Banani Branch”, Plot # 75, Block # B, Kemal Ataturk Avenue, Banani, Dhaka-1213, Bangladesh, hereinafter called the “Bank” (which expression shall where the contents so admit include its successors-in-interest, legal representatives, administrators and assignees) of the SECOND PART.
- 1. Definitions:
1.1 As used in this Agreement and in any documents delivered pursuant hereto the following expressions shall have the following meanings respectively:
“Agreement” means this Term Loan Agreement between the Borrower and the Bank executed on the date written above, and also includes any amendment of it made from time to time;
“Availability Period” means 01 (one) years from the date of disbursement;
“Bangladesh Bank” means the Bank established under Article 3 of the Bangladesh Bank Order, 1972 (P.O. No. 127 of 1972) for the purpose of carrying on the business of the central banking and also includes its successors;
“Business Day” means a day on which Banks are open for the transaction of business of the nature required in this Agreement;
“Change in Law” means the adoption, promulgation, amendment, modification, repeal or reinterpretation after the date of execution of this agreement by any Government Authority of any Law of Bangladesh;
“Event of Default” means any of the events specified in clause 11;
“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;
“Interest” means the meaning ascribed in clause 5 of this Agreement;
“Interest Period” means the period between the Interest Payment Dates;
“Interest Rate” means the rate at which interest is payable on the loan facility during that Interest Period and is determined in accordance with Clause 5.
“Laws of Bangladesh” means, in relation to this Agreement, all laws enforced in Bangladesh and included all rules, regulation, orders, directives, notifications made or issued by any competent Authority pursuant to or under any such Law and any decree or Judicial decision given or pronounced by any Court of Competent Jurisdiction;
“Loan Facility” means the Loan Facilities granted by the Bank to the Borrower as described in Clause 3 hereunder.
“Movable or Immovable
Property” means any such property, as defined in the Transfer of Property Act, 1882 as well as in the General Clauses Act, 1897 from time to time owned by the Borrower.
“Sanction Letter” means the letter under ref. no. ……………………………………….dated …………………….issued by the Bank and accepted by the Borrower.
“Security Documents” means the documents mentioned in the Schedule attached herewith.
“Tax” means all present and future taxes, imposts, levies, assessments, duties, charges, fees, deductions and withholdings in all relevant jurisdictions and all interest on them, additions to them and penalties and fines in respect of them, and “Taxation” shall be construed accordingly.
2.1 Any reference in this Agreement to:
2.1.1 a ‘month’ means (and references to ‘months’ shall be construed accordingly) a period starting on one day in a calendar month and ending on the numerically corresponding day in the next relevant calendar month, or if that day is not a Business Day, on the next Business Day in the said next calendar month, or, if none, on the preceding Business Day, provided that if either the period starts on the last Business Day in a calendar month or there is no corresponding day in the said next relevant calendar month, the period shall end on the last Business Day of the next relevant calendar month.
2.1.2 a ‘person’ shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) or one or more of the foregoing;
2.1.3 a ‘statute’ shall be construed as a reference to such statute as amended or re-enacted from time to time; and
2.1.4 a clause or a schedule is a reference to a clause or a schedule hereof.
2.2 Clause headings are for convenience only and shall not in any way affect the interpretation thereof.
Save where the context otherwise requires words importing the singular number shall include the plural and vice versa.
- Loan Facility:
3.1 Subject to the provisions of this Agreement the Bank has sanctioned Term Loan-Specific facility of Tk.1,07,30,000.00 (Taka one crore seven lac thirty thousand) only for retirement of shipping documents of L/C.
3.2 The validity period of the Loan Facility is 05 (five) years including 06 (six) months grace period from the date of first disbursement.
4. DRAWDOWN & DISBURSEMENT OF TERM LOAN FACILITY
4.1 The Term Loan Facility shall be available subject to:
- The prior satisfaction of the provisions of Clause 7;
- Loan will be disbursed in part or full upto 95% of invoice value, not exceeding the approved limit, consequent to the arrival of import documents of the L/C;
- No Event of Default having occurred and being continuing or being likely to occur by reason of draw down;
- The representations and warranties set out in Clause 8 being correct
4.2 The Borrower may serve on the Bank in writing the Drawing Notice, to be actually received by the Bank not later than ____________ (______________________) Business Days before the proposed date of disbursement. The specimen Drawing Notice is annexed hereto which shall be deemed to be the part of this agreement and marked as ANNEXURE ‘A’.
4.3 Disbursement shall be made upon receiving certificate of satisfaction from Bank’s Lawyer to the effect that all documentation have been completed as per sanction terms;
4.4 The Bank reserves the right to monitor the utilisation of the Loan Facility and withhold or stop the disbursement of the Loan Facility during the continuance of this Agreement.
4.5 The Bank reserves the right to cancel or call back the sanctioned limit or alter, amend the terms & conditions of this sanction letter wholly or partly at its discretion without assigning any reason whatsoever;
5 INTEREST, COMMISSION, other charges, ETC.
5.1 The Borrower shall pay interest at the rate of 13% per annum with quarterly rests or as revised by the Bank from time to time for the Term Loan facility;
5.2 The Borrower shall pay the interests on quarterly basis and shall be paid at the end of each quarter. The rates of interest for the facilities mentioned above may be changed at the sole discretion of the Bank.
5.3 The Borrower shall pay other charges/fees as per prevailing schedule of charges of the Bank.
5.4 If any Interest Payment Date falls on a non Business Day interest shall be payable on the next succeeding Business Day or if that Business Day falls in the next calendar month of the year, on the preceding Business Day;
5.5 In the event the Borrower fails to make any payment under the Loan Facility when due under this Agreement and the same remains unpaid, then the Borrower shall pay supervision and monitoring charge on the unpaid amount from the due date to the date of payment in full at the rate of 0.50% per quarter over the prevailing rate on the principal and interest due.
6 REPAYMENT OF THE LOAN
6.1. The loan will be repayable in 54 (fifty four) equal monthly instalments. Repayment will be start from the 7th month of disbursement. Last installment shall cover the entire outstanding of the loan both principal & interest due.
6.2. If any Repayment Date falls on a non-Business Day, the instalment shall be payable on the next succeeding Business Day or if that Business Day falls in the next calendar month of the year, on the preceding Business Day.
7 CONDITIONS PRECEDENT
7.1 The Loan will become available to the Borrower only when the Bank has received in form and substance satisfactory to it the following documents papers:
(i) a copy of the Certificate of Incorporation and
(ii) the latest copy of the Memorandum and Articles of Association duly certified to be a true copy by the Registrar of the Joint Stock Companies and Firms;
7.2 The certified copy of the last return submitted to the office of the Registrar of Joint Stock Companies and Firms regarding the transfer of shares/change of directors shall be submitted by the Borrower;
7.3 Approval by the Board of Directors of the Borrower for borrowing of Tk. 1,07,30,000.00 (Taka one crore seven lac thirty thousand) only and for the execution of the Loan and Security Documents and for authorising such person(s) to execute the Loan documents for and on behalf of the Borrower and providing specimen signature(s) of the authorised signatories of the Borrower;
7.4 The Security Documentation described in Schedule ‘A’ duly executed and perfected;
7.5 Certified and up to dated financial report by the Borrower’s Auditor has been furnished to the Bank;
7.6 Notwithstanding the preceding paragraph, the Loan Facility will not become available to the Borrower unless the Bank is satisfied that the Borrower has made full disclosure of all charges, liens and other encumbrances over its assets;
7.7 Special conditions:
(i) updated clean CIB report on the Borrower to be retained;
(ii) credit risk grading is to be done as per Bangladesh Bank Guidelines and minimum “acceptable” risk grade is to be obtained (CRGM prescribed format-BRPD Circular No. 18, dated 11/12/2005);
(iii) at a given point in time, total exposure on different accounts of X Associates Ltd. and its allied concerns shall not exceed 35% of the regulatory capital of the Bank (within which funded liability shall be maximum 15% of the regulatory capital of the Bank), as per Master Circular-Single Borrower exposure limit vide BRPD circular no. 05 dated 09.04.2005 of Bangladesh Bank;
(iv) overdue liabilities and EOL or allied concerns of the Borrower to be adjusted/brought down immediately.
8 REPRESENTATIONS AND WARRANTIES
8.The Borrower acknowledges that the Bank has entered into this Agreement in reliance on representations by the Borrower in the following terms and the Borrower hereby accordingly warrants and represents to the Bank that:
- The Borrower is duly incorporated and has the power to conduct the business which it conducts and/or proposes to conduct;
- The Borrower has power under its constitution to enter into this Agreement to execute the Security Documents and all corporate or other action, authorisations required to authorise the execution and performance by the Borrower of its obligations hereunder has duly been taken;
- The signing and delivery of this Agreement and the Loan Documents and the performance of any of the transactions contemplated in any of the said Agreement and Loan Documents will not:
- i. Contravene or constitute a default under any provision contained in any agreement, instrument, law, judgement, order, license, permit or consent by which the Borrower or any of its assets is bound or affected; or
- ii. Cause any limitation on it or the powers of its directors to be exceeded; and
- iii. Oblige the Borrower to create or result in the existence of any encumbrance over any of its assets or result in any breach of any law, order, judgement or agreement;
8.2 All material acts, conditions and things required by the laws to be performed in order to ensure that the obligations of the Borrower contained in this Agreement and in the Loan Documents are legal, valid and enforceable and in particular, no further registration, recording, filing or notarisation of this Agreement and of the Security Documents and no payment of any duty or tax and no other action is necessary or desirable in this regard;
8.3 No event of default has occurred under this or any other agreement or instrument by which the Borrower or any of its assets is bound or affected;
8.4 No litigation, arbitration or administrative proceeding or claim which might have a material adverse effect on its business, assets or condition or materially and adversely affect its ability to perform its obligation under this Agreement, is presently in progress against the Borrower or any of its assets;
8.5 All necessary returns have been delivered by or on behalf of the Borrower to the relevant taxation authorities and the Borrower is not in default in the payment of any taxes of a material amount subject to any pending appeal;
8.6 There has been no material adverse change in the financial condition of the Borrower since the date of the latest accounts which in the reasonable opinion of the Borrower would be likely to adversely affect the Borrower’s ability to meet its financial obligations in respect of the Loan Facility;
8.7 The Borrower has good title to all of its assets and none of the assets of the Borrower is affected by any encumbrance;
8.8 The Borrower has taken no corporate action or any other steps have been taken or legal proceedings started against the Borrower for its winding up, or dissolution or for the appointment of a receiver, administrator, trustee or similar officer to the Borrower or any or all of its assets and undertaking;
8.9 The Borrower has disclosed fully in writing to the Bank all facts and information which it knows or should reasonably know and which are material for disclosure to the Bank in the context of this Agreement and all such information submitted to the Bank in connection with the grant of this Loan Facility are correct; and
8.10 The representations and warranties in this Clause 8.1-8.9 shall be deemed to be repeated, updated during the continuance of this Agreement and during each time the Loan Facility is availed by the Borrower.
The Borrower covenants with the Bank that from the date hereof until all its liabilities under this Agreement have been discharged:
9.1 The Borrower shall not create or permit to exist over all or any part of its business or assets (present or future) any encumbrance other than those approved and accepted by the borrower without the prior Notice to the Bank;
9.2 The Borrower shall deliver to the Bank copies of its audited financial statements including the balance sheet and income statement to be prepared in accordance with generally accepted accounting principles applied in Bangladesh for that period within 90 (ninety) days of the end of each of its Fiscal/Calendar years with a copy to the Head Office certified by an Auditor. Such statements shall : (i) contain an income statement and a balance sheet, (ii) accurately disclose all its liabilities (actual or contingent), (iii) prepared by a firm of independent accountants of recognised standing and (iv) give a true and fair view of the result of the operations and the state of affairs of the Borrower;
9.3 During normal office hours:
- The Bank may visit the office and any of the premises where the business of the Borrower is conducted subject to the prior notice to the Borrower;
- The Bank shall have access to the Borrower’s books of account and records upon the prior notice to the Borrower; and
- Upon prior notice to the Borrower, the Bank shall also have access to those authorised employees and agents of the Borrower who have or may have knowledge of matters with respect to which the Bank seek information.
9.4 Until all the liabilities of the Borrower under this Agreement and the Security Documents have been discharged the Borrower shall ensure that at all times its liabilities under this Agreement and the Security Documents shall be and remain the direct, general and unconditional liabilities of the Borrower with the exception of any liabilities which are mandatorily preferred by law and not by any agreement;
9.5 That the Borrower shall immediately on becoming aware of it, notify the Bank in writing of the occurrence of any Event of Default and at the same time inform the Bank of any action taken or proposed to be taken in connection therewith;
9.6 That the Borrower shall promptly give notice in writing to the Bank of any litigation, arbitration or administrative or other proceeding before or of any judicial, administrative, governmental or other authority or arbitrator, of any dispute with any governmental regulatory body or law enforcement authority, of any labor dispute, or of any other event which has or may have an adverse effect on the assets or prospects of the Borrower or its ability to perform or observe its respective obligations under this Agreement and the Security Documents;
9.7 That the Borrower shall duly and punctually:
(i) make all returns, accounts and computations;
(ii) furnish all information in complete and accurate form; and
(iii) make all payments
9.8 That the Borrower shall keep all property useful and necessary in its business in good working order and condition, valid and free from liability to forfeiture, cancellation and avoidance of loss, and take or defend all legal proceedings or other action for the protection or recovery of the assets of the Borrower; and
9.9 That the Borrower shall do or cause to be done, all things necessary to preserve and keep in full force and effect its existence and its material rights, franchises, licenses and patents, if any;
9.10 That the Borrower shall comply with all laws applicable to it or its business or property and shall obtain, keep in force and comply with all consents required under those laws.
9.11 The Borrower shall give prior notice to the Bank for any change in the Memorandum and Articles of Association of the Company, or any change in the shareholders and top management of the Company;
9.12 The Borrower shall obtain and maintain in full force and effect all relevant authorisations (governmental and otherwise) and will promptly obtain any further authorisation or renewal which may become necessary to enable it to perform any of the transactions contemplated by this Agreement and to conduct its business;
9.13 The Borrower shall not notice the Bank after making any changes in the Board of directors;
9.14 The Borrower shall comply with the other terms and conditions of the Sanction Letter and the Sanction Letter shall be deemed to be integral part of this Agreement.
9.15 BRAC to submit particulars of receivables hypothecated from time to time
10.1 . The Borrower undertakes to pay all debts when they become due.
10.2 . The Borrower undertakes to pay all fees, duties and taxes that are due.
10.3 . The Borrower undertakes that it has no overdue/classified liabilities with any other Bank(s) in its own name or in the name of allied concern(s), if any;
10.4. The Borrower undertakes not to give any guarantees and not to lease out or dispose of any of its assets (excluding the assets owned by the Borrower) for whatever reason without the prior consent of the Bank, such consent not to be unreasonably withheld;
10.5. The Borrower undertakes to maintain all necessary insurance over its assets and properties.
11 EVENT OF DEFAULT
11.1. The Borrower fails to pay any sum due from it hereunder on the due date or on demand, if so payable;
11.2. Any representation, warranty or statement which is made by the Borrower in this Agreement proves to be incorrect in any material respect or if repeated at any time with references to the fact and circumstances subsisting at such time would not be accurate in all material respects;
11.3. Any material provision of this Agreement, and/or the Security provided by the Borrower is or becomes for any reason, invalid or unenforceable or any consent or approval required by the Borrower for the performance of its obligations hereunder is revoked or modified to an extent which is material;
11.4. Any other material indebtedness of the Borrower is declared to be or is capable of being rendered due and payable before its normal maturity by reason of any actual or potential default, event of default;
11.5. The Borrower transfers or disposes of a substantial part of its business or assets (excluding the assets owned by the Borrower by the virtue of its leasing business);
11.6. The Borrower changes the nature or scope of its business suspends a substantial part of its present business or any governmental authority expropriates all or part of its assets and the result of any of foregoing is, in the reasonable opinion of the Bank, materially and adversely to affect the Borrower’s financial condition or the Borrower’s ability to perform its obligations under this Agreement;
11.7. The Borrower is insolvent or unable to pay its debts or proposes or makes a general assignment or an arrangement or composition with or for the benefit of the relevant creditors;
11.8. There is any change in the directives of the Government of Bangladesh, which in the reasonable opinion of the Bank, would prejudice the Borrower’s ability to meet its financial obligations in respect of this Facility;
11.9. There is a material, adverse change in the Borrower’s financial position that prejudices the ability of the Borrower to meet its obligations under this Agreement, then or at any time thereafter, the BANK may declare the loan facility to be immediately due and payable whereupon it shall become so due and payable, together with accrued interest thereon and any other amounts then payable under this Agreement and proceed to enforce the Security Documents, and any other security provided hereunder or in connection herewith. The Bank shall also be entitled to cancel the remaining Loan Facility (if any).
12 DEFAULT INDEMNITY AND EXPENSES
12.1.1 The Borrower shall fully indemnify the Bank from and against any reasonable expense, loss, damage or liability (as to the amount of which the certificate of the Bank shall, save for manifest error, be conclusive and binding upon the parties hereto) which any of them may incur as a consequence of the occurrence of any Event of Default, of any failure to borrow or of any prepayment under this Agreement (subject to the provisions of Clause 7);
12.1.2 The Borrower shall pay on demand, in each case on the basis of a full indemnity to the Bank all reasonable expenses (including legal expenses) incurred in connection with any variation, consent or approval relating to this Agreement and any stamp, documentary and other duties and taxes to which this Agreement may be subject or give rise and shall fully indemnify the Bank from and against any losses or liabilities which they may incur as a result of any delay or omission by the Borrower to pay any such duties or taxes.
The Loan Facility shall be secured inter alia, by:
(i) Hypothecation of plant, machinery & equipments;
(ii) Personal guarantee of all the directors of the company.
14.1 Evidence of Indebtedness
In any proceedings relating to this Agreement a statement as to any amount due to the Bank under this Agreement which is certified as being correct by an officer of the Bank shall, unless otherwise provided in this Agreement and save from manifest error be conclusive evidence that such amount is in fact due and payable.
14.2 Right to Call Bank the Loan
The Bank, at its opinion, reserves the right to charge penal and/or additional interest in case of default in payment of fees, interest and/or instalments on due dates and amend any of the terms and conditions of the entire credit facility, to request payment of all outstanding amounts, to decline any disbursement or withdrawal request and even cancel the entire credit facility at its own discretion without assigning any reason whatever;
14.3 Set Off
The Bank may, without notice to the Borrower, combine, consolidate or merge all or any of the Borrower’s accounts with, and liabilities to the Bank and (after taking into account any such combination, consolidation or merger) may set off or transfer any sum standing to the credit of any of those accounts or otherwise owing by the Bank to the Borrower, or towards satisfaction of any of the Borrower’s liabilities to the Bank under this Agreement, and may do so whether or not the balances on those accounts and the liabilities are expressed in the same currency, and the Bank is authorized to effect any necessary conversions at its own rate of exchange then prevailing.
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.
14.5 Assignment & Transfer
14.5.1 The Borrower may not assign or transfer any of its rights or obligations under this Agreement;
14.5.2 The Bank may, without consent from the Borrower, at any time assign, transfer or sub-participate to any other person all or any of its rights under all or any of this Agreement;
14.5.3 The Bank may, without consent from the Borrower, disclose to a prospective assignee, transferee or sub-participant any information about the Borrower which has been made available to the Bank.
14.6 Governing Law & Jurisdiction
14.6.1 This Agreement shall be governed by and construed in accordance with the laws of Bangladesh.
14.6.2 The Borrower hereby irrevocably submits to the non-exclusive jurisdiction of the court of Bangladesh with respect to any legal action, which the Bank may institute in connection with this Agreement and the Security Documents.
There shall be 2 (two) engrossment of this Agreement on stamp papers, one copy each to be furnished to the Borrower and the Bank, both of which shall be the same document and shall constitute the original but one agreement.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORISED REPRESENTATIVES AS OF THE DAY AND YEAR FIRST WRITTEN ABOVE.
X Associates Limited
Name : ————————-
WITNESS : By —————————
Dutch-Bangla Bank Limited
For: “The Lawyers & Jurists”
Hotel Royal Tower (1st Floor)
208, Shahid Sayed Nazrul Sarani
Dutch-Bangla Bank Limited
Term Loan Agreement dated ____________________________
We refer to the Term Loan constituted by a Loan Agreement dated ________________ and made between your Bank and us.
(i) give you notice that we wish to draw the loan amount of Tk.1,07,30,000.00 (Taka one crore seven lac thirty thousand) only on ____________ for retirement of shipping documents of L/C.
(ii) request you to pay the aforementioned loan amount to the A/C No. …………………in the name of X Associates Limited maintained with the Bank;
(iii) confirm that as at today’s date each of the conditions contained in the said Term Loan Agreement are satisfied.
X Associates Limited
Name : ————————-
WITNESS : By —————————
|Letter of Hypothecation by way of fixed charge on Plant & Machinery.||Letter of Hypothecation by way of fixed charge on Plant and Machinery with full title guarantee all plant, machinery & equipment i. e. electrical equipments for bicycle industry, PVC conveyor, PU pouring machine & PU conveyor, furniture and fixture, office equipment and all other fixed assets of the company executed/to be executed by the Borrower in favour of Dutch Bangla Bank Limited, Banani Branch by way of specific charge.|
|Deed of Floating Charge||Deed of Floating Charge with full title guarantee all floating assets book debts, bills receivables, goodwill, work-in-process, stocks of goods and all other movable assets both tangible and intangible and all documents of title, undertakings, contracts, engagements, securities and other assets of the company executed/to be executed by the Borrower in favour of Dutch Bangla Bank Limited, Banani Branch by way of floating charge.|
|A notarized Irrevocable General Power of Attorney.||A notarized Irrevocable General Power of Attorney executed/to be executed by the Borrower in favour of Dhaka Bank Limited, Banani Branch to sell the machinery & equipment and other assets of the Borrower company.|
|Personal Guarantee of all the directors of the company||Personal Guarantee executed/to be executed by the Guarantors in favour of the Bank guaranteeing the liabilities and obligations of the Borrower under the Term Loan Agreement.|
For: The Lawyers & Jurists
M.L.Hotel Tower Ltd,
208,Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.