COVENANTS AND UNDERTAKINGS OF THE BORROWER. The Borrower undertakes towards the Lender that, from the Closing Date and so long as any amounts are owing under the Loan Agreement, it will: 4.1 inform the Lender, forthwith upon becoming aware thereof, of the occurrence of an Event of Default (as specified in Clause 5 below), or of the occurrence of any event which, with the giving of a notice or the lapse of time or both, would constitute an Event of Default; 4.2 obtain or cause to be obtained, at any time and from time to time, such registration, licenses, consents, approvals, authorizations and exemptions as may be required by any applicable law or regulation, to enable the Borrower to perform its obligations under the Loan Agreement or required for the validity or enforceability of the Loan Agreement; 4.3 be responsible for all stamp duty, if any, payable on the Loan Agreement, any documents thereunder or any of the documents provided by way of collateral; 4.4 fully and punctually fulfill all its debts and obligations to the Lender; 4.5 notify the Lender of any breach or of any likely breach of any of the conditions or undertakings whatsoever towards the Lender immediately upon it becoming aware of the same; 4.6 maintain its corporate existence, rights, governmental approvals and franchises necessary to the conduct of the Borrower's business; 4.7 promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or the Borrower's business; 4.8 without derogating from the Lender's rights under law - 4.8.1 subject to prior notice and appointment, permit an authorized representative of the Lender to visit and inspect any of the properties of the Borrower during the Borrower's regular business hours, including, without limitation, its books of account, and to discuss its affairs, finances and accounts with the Borrower's officers and auditor, all at such reasonable times and as often as the Lender may reasonably request, provided that inspection of the Borrower's source code shall only be made by a third party consultant acceptable to the Lender and the Borrower; 4.8.2 deliver to the Lender the information and reports described in this Sub-Clause 8 as follows: 4.8.2.1 immediately upon the occurrence of any event likely to have a significant and/or Material adverse impact upon the Borrower, a summary of such event and its implications; 4.8.2.2 With reasonable promptness, such other information and data with respect to the Borrower, as the Lender may from time to time request; 4.8.2.3 All information (including, without limitation, all financial statements) provided by the Borrower to other Holders and the press releases of the Borrower to the press. 4.9 keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to the Borrower's business and affairs. 4.10 no other facility shall derogate from any of the Lender's rights,. 4.11 without derogating from the Borrower's undertakings and obligations under the Loan Agreement, observe and perform towards the Lender, all of the Borrower's other undertakings and obligations that it has undertaken towards any of the Borrower's Holders with respect to the Borrower's conduct of the Borrower's business, including all the undertakings to disclose information.
Appears in 2 contracts
Samples: Loan Agreement (Esim LTD), Loan Agreement (Esim LTD)
COVENANTS AND UNDERTAKINGS OF THE BORROWER. 9.1. The Borrower covenants and undertakes towards that the Lender thatBorrower shall, from the Closing Date and so long as the Facilities or any amounts part thereof are owing under outstanding, and until full and final payment of the Loan Agreement, it willIndebtedness to the satisfaction of the Bank and unless the Bank waives compliance in writing:
4.1 inform (a) utilise the LenderFacilities only for the Purpose and for no other purpose whatsoever including investment in capital market/shares/debentures/mutual funds/purchase of gold in any form, forthwith upon becoming aware including primary gold, gold buillion, gold jewellery, gold coins, units of gold exchange traded funds (ETF) and units of gold mutual funds or any illegal /speculative activity and provide to the Bank the end use certificate in relation thereto within 7 (seven) days of each/ the last utilisation date and/or as and when required by the Bank, from its statutory auditor/ chartered account as agreeable to the Bank;
(b) repay the Facilities and interest thereon and all monies owing to the Bank hereunder, according to the terms thereof;
(c) conduct business in compliance with all applicable laws, regulations, authorizations, licenses and consents;
(d) properly keep such records, books of accounts as are required to be maintained under applicable law and the Transaction Documents and such accounts as are adequate to reflect truly and fairly the financial condition and results of operations of the occurrence Borrower. The Borrower shall not radically change its accounting systems without the prior written approval of an Event of Default the Bank;
(as specified in Clause 5 below), or e) notify the Bank of the occurrence of any event whichor the existence of any circumstances which constitutes or results in any declarations, representations, warranty, covenants or condition under this Agreement and/or the other Transaction Documents being or becoming untrue or incorrect in any respect;
(f) promptly inform the Bank of any events, which have a Material Adverse Effect, within a period of two Business Days of happening of such events.
(g) maintain insurances on and in relation to its business and Security with an insurance company(ies) against such risks and to such extent as is usual and appropriately prudent for companies carrying on the business such as that carried on by the Borrower;
(h) deliver to the Bank: (i) copies of all documents issued by the Borrower to all its creditors (or any general class of them) at the same time as they are issued; (ii) such statements / information / accounts / records / reports / documents, financial or otherwise as may be required by the Bank from time to time in relation to the Facilities, the Borrower’s business and operations, within the period specified by the Bank;
(i) get itself rated by Credit Rating Agency/ies, as approved by the Bank, and to get such rating done annually or at such intervals as may be decided and intimated by the Bank to the Borrower, from time to time. In the event the Borrower’s (and/or any security provider’s) credit worthiness deteriorates, in the sole opinion of the Bank, and/or when the rating of the Borrower (and/or security provider) has been downgraded by the Credit Rating Agency in its report then at its discretion, in addition to the other rights available, the Bank shall be entitled to unconditionally re-price the Facilities and such revised pricing shall be binding on the Borrower and/or to unconditionally cancel the Facilities without any notice to the Borrower and upon such cancellation, the outstanding Facilities shall immediately become due and payable irrespective of any agreed maturity and the Bank shall be entitled to enforce its Security.
(j) file all relevant tax returns and pay all its taxes/duties promptly when due;
(k) within the stipulated timelines, submit to the Bank the following in the form and substance satisfactory to the Bank:
(i) certified declaration (self-certified/internal auditor) of Unhedged Foreign Currency Exposure (“UFCE”) as on the last quarter to be submitted before end of ensuing quarter or 30 days from acceptance of the Sanction Letter, whichever is earlier. The certified declaration is required to be submitted thereafter regularly on a quarterly basis before 15 days of end of subsequent quarter. Additionally, once on annual basis, the UFCE information would need to be audited and certified by the statutory auditor and a certificate to this effect signed by the statutory auditor needs to be submitted regularly on annual basis within 15 days from the date of closure of the annual audited results. The UFCE information needs to be submitted in lines with the giving requirements of the RBI Circular reference DBOD.No.BP.BC.116/21.06.200/201314 dated June 3, 2014 and DBOD. No. BP.BC. 85/21.06.200/2013-14 dated January 15, 2014, as amended from time to time.
(ii) in case of non- receipt of certified declaration and the annual certificate signed by the statutory auditor within the above stated timelines, additional interest up to ---% per annum over and above the Applicable Rate of Interest on all the outstanding Facilities except Non Fund Based Facilities on which additional commission @ --% of the Applicable Commission over and above Applicable Commission shall be payable by the Borrower to the Bank.
(iii) in case the Bank is required regulatory to provide for any applicable incremental provision or risk weighted assets on account of UFCE as stated in the declaration, the Borrower agrees that pricing/interest rate may be revised upwards by charging additional interest over and above Applicable Rate of Interest on all the outstanding Facilities except Non Fund Based Facilities on which additional % of the Applicable Commission over and above Applicable Commission may be charged by the Bank.
(l) ensure all assets that are material to the conduct of its business as presently conducted or as proposed to be conducted are in good operating condition and repair, subject to ordinary wear and tear;
(m) ensure that the Borrower’s inventory is in good and marketable condition and does not include any material quantity of items which are obsolete or damaged and is saleable in the normal course of the Borrower’s business as currently conducted;
(n) ensure that the transactions entered into pursuant to the Transaction Documents do not violate any Sanctions, directly or through persons or entities subject to any Sanctions, which may pertain, inter alia, to the Purpose and/or end use of the Facilities, goods manufactured in or originated from/through certain countries, shipment from/to/using certain countries, ports, vessels, liners and/or due to involvement of certain persons and entities;
(o) Amend its constitutional documents, if any, so as to give full effect to the terms of the Transaction Documents or as may be required by the Bank within the time line provided by the Bank;
(p) acknowledge and confirm that the Bank shall have an unqualified right to classify the Borrower under the Special Mention Account category, in accordance with the Framework for Revitalising Distressed Assets in the Economy - Refinancing of Project Loans, Sale of Non-Performing Assets (NPA) and Other Regulatory Measures issued by the RBI on February 26, 2014, as amended and updated from time to time;
(q) The Borrower acknowledges and confirms that notwithstanding anything contained in this Agreement or any other Transaction Documents (including under Clause 7.4), in the event of formation of a notice joint lenders forum pursuant to the terms of the Framework for Revitalising Distressed Assets in the Economy – Guidelines on Joint Lenders’ Forum (JLF) and Corrective Action Plan (CAP) dated 26 February 2014 issued by RBI, as amended or the lapse of time modified or both, would constitute an Event of Default;
4.2 obtain or cause to be obtained, at any time and replaced from time to time, such registrationthe Borrower shall convert the Facilities or part thereof (including any unpaid interest thereon) into paid-up equity share capital of the Borrower, licenses, consents, approvals, authorizations and exemptions as may be required by the Bank, in accordance with the Strategic Debt Restructuring Scheme issued by the RBI on June 8, 2015 as amended or modified or replaced from time to time; or in accordance with the RBI guidelines on Prudential Framework for Resolution of Stressed Assets dated June 07, 2019 and as updated from time to time or any applicable law other Resolution framework allowed by RBI from time to time.
(r) permit officers or regulationrepresentatives of the Bank or their advisors, to enable experts, consultants, valuers or any other nominees or representatives of the Bank (at the expense of the Borrower to perform its obligations under the Loan Agreement or required for the validity or enforceability of the Loan Agreement;
4.3 be responsible for all stamp dutyincluding travel costs and expenses), if anyat any time, payable on the Loan Agreementupon prior notice, any documents thereunder or any of the documents provided by way of collateral;
4.4 fully and punctually fulfill all its debts and obligations to the Lender;
4.5 notify the Lender of any breach or of any likely breach of any of the conditions or undertakings whatsoever towards the Lender immediately upon it becoming aware of the same;
4.6 maintain its corporate existence, rights, governmental approvals and franchises necessary to the conduct of the Borrower's business;
4.7 promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or the Borrower's business;
4.8 without derogating from the Lender's rights under law -
4.8.1 subject to prior notice and appointment, permit an authorized representative of the Lender to visit and inspect its offices, properties and any of the properties of the Borrower during works, buildings, equipment and enable and assist them in carrying out technical, financial and legal inspections; to examine the Borrower's regular business hours, including, without limitation, its books of accountrecords, account and documents and to make copies there from, to conduct a stock audit; and to discuss its the Borrowers affairs, finances and accounts with the Borrower's ’s principal officers, engineers and auditors (and by this provision the Borrower authorises such auditors to discuss its affairs, finances and accounts). The Bank or any of their representatives shall receive full cooperation and assistance from the officers and auditor, all at such reasonable times and as often as the Lender may reasonably request, provided that inspection employees of the Borrower's source code Borrower in relation to such inspection. Provided that, no such prior notice as aforesaid shall only be made required to be provided by a third party consultant acceptable the representatives of the Bank if an Event of Default has occurred;
(s) the Borrower shall do everything necessary in the judgment of the Bank to: (i) create, perfect and maintain the Security, if any, in full force and effect at all times (including the priority thereof); and (ii) preserve and protect the Security, if any, and protect and enforce its rights and title, and the rights and title of the Bank to the Lender and the BorrowerSecurity;
4.8.2 deliver (t) The Borrower shall submit to the Lender Bank, the information and reports described in this Subetc. as envisaged under RBI circular No. DBOD.No.BP.BC.94 /08.12.001/2008-Clause 8 as follows:
4.8.2.1 immediately upon the occurrence of any event likely to have a significant and/or Material adverse impact upon the Borrower, a summary of such event and its implications;
4.8.2.2 With reasonable promptness, such other information and data with respect to the Borrower09 dated 8th December 2008, as the Lender may amended from time to time.
(u) Borrower shall comply with all laws (including laws relating to environment, social labour and governance Laws) applicable to the Parties.
(v) Borrower agrees that it shall not directly or indirectly, take part in or financing any activity, production, use of, trade in, distribution of, or otherwise involved in any excluded activity except that, in the case of tobacco, the Bank shall use all reasonable efforts not to provide funding to clients engaged in such activities and shall ensure that in all events, the Party’s aggregate funding to such clients shall not at any time request;
4.8.2.3 All information exceed two per cent. (including, without limitation, all financial statements2%) provided by the Borrower to other Holders and the press releases of the Borrower to the pressParty’s total disbursed portfolio in respect of such Relevant Financing Operations.
4.9 keep true records (w) Borrower shall put in place appropriate procedures and books policies to restrict its employees, consultants or other agents from causing breach of account (a) any conditions, covenants or undertakings under this [agreement] and (b) Environmental, Social and Governance Laws.
(x) Borrower shall put in which fullplace appropriate procedures and policies to prohibit the engagement of any person under 18 years of age on a worksite, true regardless of their direct employer.
(y) Borrower shall put in place appropriate procedures and correct entries will be made policies to respect the right of all dealings workers to bargain collectively (through a trade union or transactions other appropriate mechanisms). Additionally, it shall not discriminate in relation to respect of any employment decision against workers on the Borrower's business and affairsgrounds of their trade union membership.
4.10 no other facility (z) Borrower shall derogate from any best endeavours to ensure that all subcontractors, including labour-only contractors, are required to comply with all Environmental, Social Labour and Governance Laws and with clauses III (d) & (e) related to child labour and freedom of the Lender's rights,association.
4.11 without derogating from (aa) Borrower shall, if required by Bank, finalize an ESG Action Plan, and comply with the Borrower's undertakings and obligations under the Loan Agreement, observe and perform towards the Lender, all of the Borrower's other undertakings and obligations that it has undertaken towards any of the Borrower's Holders with respect to the Borrower's conduct of the Borrower's business, including all the undertakings to disclose informationmilestones provided therein.
Appears in 2 contracts
Samples: Master Facility Agreement, Master Facility Agreement
COVENANTS AND UNDERTAKINGS OF THE BORROWER. 9.1. The Borrower covenants and undertakes towards that the Lender thatBorrower shall, from the Closing Date and so long as the Facilities or any amounts part thereof are owing under outstanding, and until full and final payment of the Loan Agreement, it willIndebtedness to the satisfaction of the Bank and unless the Bank waives compliance in writing:
4.1 inform (a) utilise the LenderFacilities only for the Purpose and for no other purpose whatsoever including investment in capital market/shares/debentures/mutual funds/purchase of gold in any form, forthwith upon becoming aware including primary gold, gold buillion, gold jewellery, gold coins, units of gold exchange traded funds (ETF) and units of gold mutual funds or any illegal /speculative activity and provide to the Bank the end use certificate in relation thereto within 7 (seven) days of each/ the last utilisation date and/or as and when required by the Bank, from its statutory auditor/ chartered account as agreeable to the Bank;
(b) repay the Facilities and interest thereon and all monies owing to the Bank hereunder, according to the terms thereof;
(c) conduct business in compliance with all applicable laws, regulations, authorizations, licenses and consents;
(d) properly keep such records, books of accounts as are required to be maintained under applicable law and the Transaction Documents and such accounts as are adequate to reflect truly and fairly the financial condition and results of operations of the occurrence Borrower. The Borrower shall not radically change its accounting systems without the prior written approval of an Event of Default the Bank;
(as specified in Clause 5 below), or e) notify the Bank of the occurrence of any event which, with the giving of a notice or the lapse existence of time any circumstances which constitutes or bothresults in any declarations, would constitute an Event of Defaultrepresentations, warranty, covenants or condition under this Agreement and/or the other Transaction Documents being or becoming untrue or incorrect in any respect;
4.2 obtain or cause (f) promptly inform the Bank of any events, which have a Material Adverse Effect, within a period of two Business Days of happening of such events.
(g) maintain insurances on and in relation to be obtained, at any time its business and from time Security with an insurance company(ies) against such risks and to time, such registration, licenses, consents, approvals, authorizations extent as is usual and exemptions as may be required by any applicable law or regulation, to enable the Borrower to perform its obligations under the Loan Agreement or required appropriately prudent for the validity or enforceability of the Loan Agreement;
4.3 be responsible for all stamp duty, if any, payable companies carrying on the Loan Agreement, any documents thereunder or any of the documents provided business such as that carried on by way of collateral;
4.4 fully and punctually fulfill all its debts and obligations to the Lender;
4.5 notify the Lender of any breach or of any likely breach of any of the conditions or undertakings whatsoever towards the Lender immediately upon it becoming aware of the same;
4.6 maintain its corporate existence, rights, governmental approvals and franchises necessary to the conduct of the Borrower's business;
4.7 promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or the Borrower's business;
4.8 without derogating from the Lender's rights under law -
4.8.1 subject to prior notice and appointment, permit an authorized representative of the Lender to visit and inspect any of the properties of the Borrower during the Borrower's regular business hours, including, without limitation, its books of account, and to discuss its affairs, finances and accounts with the Borrower's officers and auditor, all at such reasonable times and as often as the Lender may reasonably request, provided that inspection of the Borrower's source code shall only be made by a third party consultant acceptable to the Lender and the Borrower;
4.8.2 deliver to the Lender the information and reports described in this Sub-Clause 8 as follows:
4.8.2.1 immediately upon the occurrence of any event likely to have a significant and/or Material adverse impact upon the Borrower, a summary of such event and its implications;
4.8.2.2 With reasonable promptness, such other information and data with respect to the Borrower, as the Lender may from time to time request;
4.8.2.3 All information (including, without limitation, all financial statements) provided by the Borrower to other Holders and the press releases of the Borrower to the press.
4.9 keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to the Borrower's business and affairs.
4.10 no other facility shall derogate from any of the Lender's rights,.
4.11 without derogating from the Borrower's undertakings and obligations under the Loan Agreement, observe and perform towards the Lender, all of the Borrower's other undertakings and obligations that it has undertaken towards any of the Borrower's Holders with respect to the Borrower's conduct of the Borrower's business, including all the undertakings to disclose information.
Appears in 1 contract
Samples: Master Facility Agreement
