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Exhibit 10.33
[LETTERHEAD MEMORANDUM INDIAN BANK]
MEPZ BRANCH
EXPONK KADAPERI
2368301 2368251 MADRAS-45.
__/80/95 05.09.95
M/s Moduler Electronics (I) P Ltd.
406, Dalamal Towers,
Nariman Point,
Bombay - 400021.
Dear Sirs,
We are pleased to inform you that the following facilities have been sanctioned
to you for a period up to 11.08.96.
Facility Limit Margin Interest
- -------- ----- ------ --------
(Rs.in lacs)
Packing credit 300.00 25% 13% p.a. up to 180 days
(increased from
Rs.200.00 lacs) 15% beyond 180 days up to 270 days
PLR + 3.5% p.a. beyond 270 days
up to 360 days
FBN/FBP (90 days) 1412.50 Nil 13% pa up to 90 days
(increased from
Rs.350.00 lacs) 15% p.a. beyond 90 days up to 180 days
Import LC 875.00 10% Commission as per FEDAI Rules
(DA 90/xxx 180 days)
(Increased from
Rs.400.00 lacs)
Guarantee 10.00 Perf.Gtee-10% Commn as per ru
customs 50%
Excise money-
25% cash and bal
75% by primary
collateral security
Securities:
1. Primary:
PC AND FBN/FBP: Joint documentation. Paripassu I charge on stocks of raw
materials stocks in process and finished goods for the PC
facility and export receivables for FBM/FBP. EDGC Cover for PC
and FBP.
LC Against XXXXX stamped LC agreement and hypothecation of goods
covered XXn under the LC
Guarantee Counter guarantee by the company.
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[LETTERHEAD MEMORANDUM INDIAN BANK] MEPZ BRANCH
KADAPERI
MADRAS-45.
05.09.95
- 2 -
2. Collateral
a. Assets: Paripassu II charge on the existing Plant &
Machinery with WDV of Rs.97.35 lacs as on 31.03.94.
Paripassu XXII charge on the imported Plant &
Machinery estimated at a cost of Rs.910.00 lacs acquired
for the HDD project. (I charge to ICICI)
b. Guarantee: Personal guarantee of Mr M.L. Tandon
Terms and conditions:
1. The satisfactory credit reports on the buyers should be obtained for FBP.
2. Stocks should be insured adequately with bank clause.
3. Operations will be allowed strictly based on the QIS statements. The
company should submit QIS Statements and other select operations data
regularly.
4. The paid-up capital of the company should be increased to Rs.220.00 lacs
before 30.09.95 and auditors certificate to this effect to be submitted.
5. Unsecured loan of Rs.641.00 lacs is to be brought in by the promoters as per
ICICI appraisal and auditors certificate to be submitted to this effect.
6. ECGC Policy and buyerwise limit is to be obtained for FBP limits wherever
applicable.
We reserve XX to ourselves the right to cancel/suspend/reduce any or all the
facilities sanctioned to the company and to alter/amend/vary X the terms and
conditions of our sanction including rate of interest at our sole discretion
without assigning any reason whatsoever.
Please arrange for the Board resolution and execution of the documents for the
revised limits.
Please send us the duplicate copy of this letter duly signed by you in token
of having accepted the above terms and conditions.
Yours faithfully,
/s/
- ----------------------------------
CHIEF MANAGER
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P.C.: 23-144
D-I Place Bombay
Rs. 300,00,000- 13.10.1995
ON DEMAND I/We promise to pay INDIAN BANK or their order within their
Office at Madras Export Processing Zone Madras 45 the sum of Rupees Three
crores only for value received, with interest thereon at the rate of 1
percent over the official rate of the RESERVE BANK OF INDIA with a minimum of
13 percent per annum from the date to date of payment in full with quarterly
rests, or at such rates and rests as may be revised as per the instructions of
the Reserve Bank of India from time to time.
Common seal affixed in the presence of Two Directors of the company as per Board
Resolution dt. 26.09.95.
[SEAL] [STAMP]
[SIGNATURES] [SIGNATURES]
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P.C.: 23-144
D-I Place Bombay
Rs. 14,12,50,000- 13.10.1995
ON DEMAND I/We promise to pay INDIAN BANK or their order within their
Office at Madras Export Processing Zone Madras-45 the sum of Rupees Fourteen
crores twelve lacs and fifty thousand only for value received, with interest
thereon at the rate of 1 percent over the official rate of the RESERVE BANK OF
INDIA with a minimum of 13 percent per annum from the date to date of payment
in full with quarterly rests, or at such rates and rests as may be revised as
per the instructions of the Reserve Bank of India from time to time.
Common seal affixed in the presence of Two Directors of the company as per
Board Resolution dt. 26.09.95.
[SEAL]
[SIGNATURES] [SIGNATURES]
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[STAMP]
[SEAL]
[STAMP]
(Document not to be attested)
Place Bombay
Date 13.10.'95
To
The Manager
Indian Bank
Madras Export Processing Zone
Dear Sir,
Sub: Cheques, Bills, hundies and other instruments with or without
government securities, share certificates, railway receipts,
bills of lading and documents constituting title to goods
attached, lodged with you for collection and/or discount and/or
purchase from time to time.
In consideration of your collecting and/or discounting and/or
purchasing or agreeing to collect, discount and/or purchase all cheques, bills,
hundies and other instruments with or without government securities and share
certificates or other documents including railway receipts, bills of lading or
other documents constituting title to goods now lodged or which may at any time
or from time to time lodged by me/us to you:
I/We beg to tenner herewith my/our joint and several pronote for Rs.
14,12,50,000- (Rupees Fourteen crores twelve lacs and fifty thousands only) as
cover for the arrangement.
I/We agree that all such collection, discount or purchase of cheques,
bills, hundies and other instruments until further altered or specifically
otherwise provided for shall be upon the following terms and conditions,
1. You may, at your option but at my/our costs, risk and
responsibility in all respects appoint an agent who shall be my/our agent to
collect.
2. You or the agent at your or his option, may send for collection or
payment or discount on my/our account at my/our entire costs, risk and
responsibility by post or by other manner to another agent or to the drawee
thereof any cheques, bills, hundies or other instruments with or without share
certificates, government securities or other documents including railway
receipts, bills of lading or other documents constituting title to goods
attached, I/We agree that such other agent or the drawee shall be deemed to be
my/our agent for collection at my/our entire risk and responsibility in all
respects.
3. You or an agent may at your or his option but at my/our risk and
responsibility reserve in exchange for cheques, bills, hundies and other
instruments, cheques, bank drafts or other mandates for payments in lieu of
cash.
[STAMP]
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4. Receipts by you or by an agent of cheques, bank drafts, or other
mandates for payments as above and the loss, mutilation or dishonour thereof
and/or of other securities of any descriptions is not to prejudice your rights
on any cheques, bills, hundies, or other instruments in case of dishonour or
non-payment as the case may be, nor shall any proceedings taken thereon or you
granting time or entering into any arrangements with any parties to such
cheques, bills, hundies or other instruments (and I/we hereby consent to your
so granting time or entering into arrangements) prejudice or affect your
absolute recourse to me/us under the arrangement.
5. Should you or an agent receive, in exchange for such cheques, bills,
hundies or other instruments, payment by an instrument which you or the agent
cannot conveniently collect through normal channels it is clearly understood
that such instruments may be collected in any manner and by any agency
(including despath to the drawee) at my/our entire risk and responsibility and
the agent or agents (including the drawee) employed in such collection shall
be considered fully as my/our agent or agents.
6. I/we hereby agree that all bills, and/or documents including railway
receipts, bills of lading and documents of title to goods which I/we may from
time to time hand you for purchase or discount or against which you make me/us
advances, and the goods, government securities and shares thereby represented
and the proceeds thereof, are to be held by you as a continuing security for the
payment on demand of the said bills so purchased handed over or discounted and
of all advances, banking accommodation and/or expenses which you may make,
afford or incur to or for me/us in connection therewith and all others
liabilities to you present and future, and you are to be at liberty to exercise
all my/our rights (if any) as unpaid sellers of the said goods, government
securities and shares and without further reference to me/us to sell, insure,
warehouse, or otherwise deal with the said goods or to sell deal with government
securities and shares as though you are the absolute owners thereof and you are
expressly authorised by me/us to refuse to deliver goods covered by the bills
(whatever be tenor) except against payment. I/We agree that your accounts of
sale and accounts of your expenses shall be accepted by me/us as conclusive
evidence of the correctness of the matter therein written and I/we declare that
this Agreement and your rights hereunder shall in no way be affected by my/our
death or any change in my/our name, style or constitution.
7. I/We further agree that you and your agents shall be exempt from
all liabilities for any loss or damage due to deterioration of goods or loss
howsoever caused to me/us arising from any telegraphic or cable error,
irregularity, delay, mistake, omission or misinterpretation, or otherwise
howsoever.
8. I/We also agree that you are entitled to treat every scrip of
governments securities and shares and every document constituting title to
goods including railway receipts, bills of lading, etc. handed in by me/us to
you as genuine without any further enquiry and that I/we agree to indemnify you
and keep you indemnified against any loss caused to you by reason of the said
documents subsequently turning out to be forged and not genuine and also
against any loss caused to you by the misdelivery or wrong delivery by the
Railway and Postal authorities of the government securities and shares and
goods comprised in the documents and railway receipts for any reason whatsoever.
9. I/We agree and undertake that the amount advanced will be used only
for the purpose/purposes mentioned in the borrower's proposal and for which it
has been sanctioned and I/we further agree that notwithstanding anything
contained in this agreement, you shall have the right to recall the entire
amount advanced together with interest and other charges or any part thereof in
case the amount advanced is/has been used for any purpose other than for which
it has been sanctioned or if you apprehend or you have reason to believe that
I/We have violated or am/are violating the condition.
10. I/We further agree that in respect of foreign bills
purchased/negotiated/advance against FOBC made by you, the provisions of the
rules of Foreign exchange Dealers' Association of India, the Uniform customs
and Practice for Documentary Credits and/or the Uniform Rules for Collection of
International Chamber of Commerce and the directives of the RBI, current as on
the date of purchase/negotiation shall be binding on me/us.
[STAMP]
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11. I/We further agree that
i) In consideration of your making a provisional advance of Rs.
14,12,50,000 against the foreign bills for collection expressed to be made
payable in foreign currency tendered from time to time the bills will be drawn
by me/us in favour of yourself naming yourself as payee for due and valid
consideration and such advances shall be at the sole discretion of yourself:
ii) In respect of money lent and advanced or agreed to be lent and
advanced, it is agreed that you being a holder for value will be entitled to
appropriate the proceeds of the bills towards the provisional advances made by
you to me/us as hereinabove mentioned;
iii) You, on converting foreign currency amount to Indian Rupees either
on realisation or at any point of time, will pay over to or recover from me/us
the difference in the rupee amount i.e. the difference between the Rupee amount
advanced and the rupee equivalent arrived at, while converting foreign currency
into Indian Rupee currency, after deducting the costs and expenses incurred by
the Bank in respect thereof and the moneys which shall then be owing on the
securities of these presents.
Dated this 13th day of October, 1995.
Common seal affixed in the presence [STAMP]
of Two Directors of the company as [SIGNATURES]
per Board Resolution Dt. 26.09.95.
- -------------------------------------------------------------------------------
In case of inland Bills/cheques purchased limit, delete clauses nos. 10 and 11
under the signature of borrower.
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[STAMP]
From:
Moduler Electronics (India) Ltd
406 Dalamal Towers, Nariman Point,
Bombay - 400021
To
Indian Bank
Madras Export Processing Zone branch
Madras - 45
Dear Sirs,
In consideration of Indian Bank Madras Export Processing Zone branch at
my/our request signed and/or agreed to sign, as and when required by me/us
guarantee in favour of various authorities and departments of the Central and
State Governments, Semi-Government bodies, local or public bodies or authorities
or various other persons, companies, corporations or bodies Corporate whom I/we
may specify from time to time but so that the total amount of the liabilities
outstanding under all such guarantees does not at any one point of time exceed
a sum of Rs. 10,00,000- and subject to your right to refuse to issue any
guarantee of which you do not approve or to refuse to issue any further
guarantees at any time. The expression "such guarantees" shall unless
repugnant to the context or meaning thereof be deemed to include any renewals
of extensions or modification of all or such guarantees.
1. That the Bank shall be entitled to act in accordance with
guarantees executed and/or to be executed by it within the sanctioned limit of
Rs. 10,00,000- (Rupees Ten lacs only) as aforesaid and to make payments
thereunder without any further consent and inspite of any directions or
contrary directions given by us or any of us.
2. That I/We shall pay on demand and without demur pay to the Bank all
amounts which the Bank may be called upon to pay from time to time under the
said guarantees executed and/or to be executed and all other moneys arising out
of the said guarantees or any of them with interest thereon and all costs,
charges (including Bank Charges) and expenses of the Bank.
3. That I/We shall indemnify, on demand and without demur and keep
indemnified the Bank from and against all actions, losses, claims, demands,
duties, penalties, damages, costs, charges, expenses and other liabilities
whatsoever which may be brought or made against or sustained or incurred by the
Bank (and whether paid by the Bank or not) in consequence of the Bank having
executed the said guarantees or any of them or otherwise howsoever in relation
thereto.
4. That the Bank shall as its sole discretion and without reference to
me/us admit or compromise and pay or submit to arbitration or dispute or resist
any claim or demand
[STAMP]
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- --------- against the Bank under or in respect of the said guarantees my/our
counter-guarantee being available to the Bank in respect of any action which
may be taken against the Bank and I/we also agree to pay the Bank on demand
with interest at 21.75% p.a. or at such other rates as may be prescribed by the
Bank from time to time all such moneys as I/we may be liable to pay under this
counter-guarantee and that the Bank may proceed against and recover from any of
my/our property as including any credit balance held by the Bank or any
security for the time being held by the Bank on our account by sale or
otherwise and to allocate and apply the net proceeds of sale and realisation
thereof and any other moneys in the Bank's hands standing to my/our
credit/belonging to me/us on any account whatsoever independently the one or
the other in such order and in such manner as the Bank may think fit in or
towards payment of any amount payable be me/us to the Bank in terms of this
deed.
5. I/We do hereby put on record and confirm that on demand from the
beneficiary under the said guarantees the bank will be entitled in its absolute
and unfettered discretion except in the event of the Bank being restrained by
an order or injunction to make payment of whole or part of the amount of the
said guarantee or any of them as it may be called upon to do by such
beneficiary without going into the question of validity propriety or legality
of the said demand and without any reference to me/us and that I/we shall not
have any right to question in any way whatsoever the Bank's making such payment
and I/we shall always be bound by it. Any request of demand made to or upon
you by the beneficiary or beneficiaries of all or any of such guarantees for
payment/s of any sum or sums of money shall be sufficient authority from me/us
to the Bank for making such payment/s.
6. This counter guarantee will extend to any extension of the
guarantee/s for which I/we may from time to time and which the Bank may agree
to grant at my/our request subject to the Bank's absolute right and discretion
whether to extend the guarantee/s or not and without costing any obligations on
the bank for extending the said guarantee/s.
7. This guarantee shall be continuing security binding on me/us, our
successors and assigns and shall remain valid until all the guarantees issued
hereunder are duly cancelled and returned to the Bank and further that it shall
not be considered as wholly or partially satisfied or exhausted by any
payment/s made by me/us from time to time to the beneficiary of the guarantees.
8. This counter-guarantee is without prejudice to and in addition to
any other security or securities held or which may be held by the Bank
hereafter on account or in relation to the said guarantees.
9. The giving or granting of time or any extension thereof to me/us or
the neglect, omission or forbearance on the part of the Bank in requiring or
enforcing payment of any moneys due hereunder or any other variations,
modifications or amendments to any agreement between me/us and the Bank shall
not in any way prejudice limit, restrict or affect this guarantee as we shall
be considered as principal debtors in respect of all the guarantees covered
herein above.
10. This counter guarantee and indemnity shall be irrevocable and shall
be binding on me/us and each of us jointly and severally and also on my/our
respective heirs, executors, administrators, estates and effects jointly and
severally/our successors and assigns (whether statutory or contractual).
11. I/We and each of us shall be liable hereunder to you jointly and
each severally. On the death of any one or more of us, his heirs, executors,
administrators, legal representatives, estates and effects (as the case may be)
shall be liable jointly and severally with the survivor or survivors.
12. The liability incurred by us and each of us hereunder shall not in
any way be prejudiced or affected by any change in our partnership firm whether
by death or retire-
[STAMP]
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ment or insolvency of any partner or by admission of any new partner or
partners or otherwise howsoever even though the firm may become a sole
proprietory concern, and all the partners for the time being of the firm or the
sole proprietor and his/their respective heirs, executors, administrators,
legal representatives, estates and effects, as the case may be, shall be liable
to you hereunder, jointly and severally.
The common seal of M/s Moduler Electronics (India) Ltd was
hereunto affixed pursuant to a resolution passed by the Board of Director at
their meeting held on ----------------- in the presence of ------------------ a
director of the company who has affixed his signature hereto.
Common seal affixed in the presence [STAMP]
of Two Directors of the company as [SIGNATURES]
per Board Resolution Dt. 26.09.95.
Place: Bombay
Date: 13.10.95
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[STAMP]
THIS AGREEMENT MADE this 13th day of October 1995 by and between
Moduler Electronics (India) Ltd. hereinafter called the "Borrower" which
expression, wherever the context so requires or admits shall be deemed to
include its/his heirs, executors, administrators, assigns and attorneys of the
one part and INDIAN BANK, a body corporate, constituted under the Banking
Companies (Acquisition & Transfer of Undertakings) Act, 1970, carrying on the
business of Banking and having its Head Office at 31, Rajaji Salai, Madras-1,
hereinafter called the Bank, which term shall mean and include its successors
and assigns.
WHEREAS the Borrower is already enjoying the financial assistance/has
requested for granting of financial assistance under Import LC limit up to a
maximum amount of Rs. 875 lacs and
WHEREAS the Borrower in the course of his business has requested for
additional financial assistance (1) for purposes of purchase of goods on credit
under Letters of Credit with the condition attached thereto to the effect that
such delivery of goods shall be against acceptance of usance bills drawn
thereunder opened by the Bank in favour of suppliers (2) on the Bank issuing
guarantees in connection with purchase/sale of goods from time to time (3) and
for purchase of goods on credit under bills to be drawn on the Borrower and to
be co-accepted with the Bank.
WHEREAS the Bank has agreed to grant to the Borrower such facilities up
to a limit of Rs. 875 lacs to purchase goods on credit basis under (1) letters
of credit with DA usance drafts drawn thereunder and/or (2) Guarantees in
favour of purchasers/sellers of goods on credit to make payment of amounts in
the event of default of payment by the Borrower and/or (3) co-acceptance
facilities as aforesaid to be secured by the goods and/or documents of title
goods hypothecated and/or to be hypothecated to the Bank-the words goods shall
mean and include all goods, stock-in-trade, merchandise goods, vehicles of
every type and description.
It is hereby agreed between the Borrower and the Bank as follows:
1. That an account styled as Import LC shall be opened in the books of
the Bank at their TEPI branch or at any other branch of the Bank at the request
of the Borrower with a limit of Rs. 875 lacs.
[STAMP]
12
2. ---------------------------------------------------------
as prescribed and that may be prescribed by the Bank from time to time in the
matter of issuing letters of credit with DA usance drawn thereunder and/or
guarantees and/or co-acceptance of bills as stated herein.
3. That the Bank shall at its absolute discretion issue letters of
credit and/or guarantees and/or co-acceptance of bills as stated above as it
thinks fit subject to the terms, conditions, covenants and limitations
hereinafter contained.
4. That the Bank shall be liable to pay the amount of (a) usance
drafts covered by the letters of credit (b) guarantees (c) bills co-accepted by
the Bank from time to time provided the delivery of goods so purchased on
credit from time to time are made by suppliers of goods against acceptance of
the said usance drafts drawn for the actual amounts due being the price of
goods excluding charges like handling charges and transport charges and other
charges by whatever name they are called as may be levied by suppliers of goods.
5. That the Borrower before requesting the Bank for issuing of
guarantee on his behalf in favour of suppliers/purchasers of goods on credit
to the Borrower, the Borrower shall in writing furnish all information such as
supplier's/purchaser's name, nature of goods, quantity of goods, actual price
of goods, the place from where the goods are to be supplied/purchased, nature
of transport by which goods will be brought/sent, time within which the goods
will be received/delivered and such other information as may be required by the
Bank from time to time. In the absence of such information, the Bank shall not
be bound to issue the guarantees/co-accept the bills.
6. All goods now lying or hereafter stored at the godowns and yards
and premises in --------- or lying at any other godown, wheresoever or in
respect of which the Borrower can make any deposit, pledge, hypothecation or
charge wherever they may be and/or received at all times and from time to time
as per arrangements herein entered, the Borrower hereby agrees to hypothecate
goods and therefore the same are hereby hypothecated and charged to the Bank by
way of first charge and the term/word "goods" occuring in the clauses in this
agreement shall wherever the context so requires mean and include goods covered
by the documents of title to goods covered by such documents.
7. The Borrower hereby agrees and undertakes that it/he shall be
liable to pay all amounts due to sellers/purchasers as and when they fall due
and at no time, it/he shall default in making payments of full amounts due
from time to time and in the event of failure on its/his part of its/his own
accord and/or on demand by the Bank, the Bank shall on account of the
obligations entered into on behalf of the Borrower in terms of this agreement
without further reference or without any demur on any count either as notified
by the Borrower or anybody on its/his behalf or anybody claiming under it/him,
shall pay to the debit of Borrower's account amounts due as determined with
interest if any on account of non-payments by the borrower in time or on due
dates. On account of payment of the amounts so made, the Borrower shall
immediately provide at least sufficient funds by crediting the required funds
into its/his account without fail to enable the Bank for adjustment of the same
towards its/his liability with it. All amounts so paid by the Bank with
interest at -------% p.a., above the Reserve Bank of India rate with a minimum
of -------% p.a., or at such rate or rates as may be stipulated by Reserve Bank
of India shall be liable to be calculated on daily debit balances and charged
against the account of the Borrower on the last working day of every English
calendar quarter so long as the account shall remain open and shall be paid by
the Borrower on demand by the Bank along with any other moneys, costs, charges,
expenses, outgoings and sums of money whatsoever.
8. The Borrower shall display at a conspicuous place at the godown/s
or place of the borrower, a board notifying to whomsoever it may concern, that
the goods are under hypothecation in favour of the Bank.
[STAMP]
13
9. The Borrower engages to hold the goods as Trustee for and on behalf
of the Bank and in event of the said goods or any portion thereof being sold
and delivered before full payment of the balance due under this Agreement, the
proceeds of such sale shall be received by the Borrower as Trustee for the Bank
and paid to the Bank without fail as and when received by it/him.
10. The Borrower shall keep and maintain a register of the goods in
which shall be entered particulars of goods received and delivered and the
balance at any time and the market value of the same. The said register and
the goods wherever they are, shall be open for inspection at all time by the
Manager of the Bank or any officer authorised by any official of the Bank who
may for that purpose enter upon any premises where the goods are lying without
any obstruction or objection being raised by the Borrower. The Borrower shall
daily or weekly or at such intervals as may be fixed from time to time by the
Bank, furnish to the Bank a statement of all the entries which have been made in
the register the previous day or during the previous week or the previous
intervening period as the case may be as and when the Bank calls upon the
Borrower to do so. Failure or omission or delay on the part of the Borrower to
submit such statements as called upon by the Bank shall in no way prejudice the
rights of the Bank under this Agreement. The Borrower shall segregate goods
and stocks covered by this Agreement from other goods and stocks in a way that
it should be possible at all times for the Bank to identify the goods and
stocks under hypothecation.
11. The Borrower shall insure the goods for the full market value
against risks of fire, war, riots and civil commotion or any other risk etc.,
as directed by the Bank and deliver the policies in respect thereof to the Bank
duly assigned in the Bank's name, failing which the Bank shall be entitled to
insure the goods and debit the amount and expenses so incurred to the
Borrower's account. The proceeds, if any, of such policies shall be applied
towards liquidation of the balance due to the Bank.
12. The Borrower may be permitted to avail of the facility up to the
maximum limit fixed herein and in terms of the guarantee/LCs issued/bills
co-accepted from time to time and the terms and conditions of the
guarantee/LC/co-accepted bills shall be read part and parcel of these presents
subject to clause 15 of this Agreement.
13. The Bank shall be at liberty to have the goods valued by an
appraiser appointed by the Bank and the fees and expenses of such appraisement
shall be debited to the Borrower's account.
14. The Borrower agrees and undertakes not to have advance from any
other Bank or from any body else on the goods hypothecated and charged to the
Bank and they shall be stored separately and apart from any other goods in the
godowns.
15. The Bank shall be entitled to advance and/or pay any amounts as are
necessary for the purpose of safeguarding its interest including payment of
duties to customs and/or other authorities in connection with the goods covered
by the LC/guarantee/bills co-accepted, to the debit of the borrower's account
and the Borrower shall be liable to pay the amounts so advanced and/or paid by
the Bank with interest and other charges, expenses etc., as levied from time to
time by the Bank. The security created in terms of these presents shall be
available for the repayment of all such amounts debited to the account of the
borrower from time to time and the limit/s to that extent shall be deemed to
stand enhanced.
16. The Borrower hereby declares and agrees that the Bank shall be
entitled to get the goods cleared with the help of any agency like clearing
agents, in the event of any necessity as felt by the Bank at the absolute cost,
risk and responsibility of the Borrower.
17. That the Bank shall be at liberty to withdraw the facilities herein
provided at any time and without any prior notice and without assigning any
reason even though the limit herein fixed is in force and the Borrower shall
not be entitled to claim any amount from the Bank as compensation, damages or
otherwise on that account.
[STAMP]
14
18. ---------------------------------------------------
Borrower holding such goods as agent and trustee for the Bank. In the event of
the Borrower failing to pay on demand the balance or any other moneys due to
the Bank under or by virtue of this agreement or in the event of the Borrower
failing to observe or perform any of the terms and conditions hereof or in the
event of the Borrower becoming bankrupt or being wound up for committing any
act of insolvency or if for any reason the Bank thinks that the security is in
jeopardy; the Borrower undertake to deliver to the Bank on demand made by the
Bank the said goods without raising any objection, to enable the Bank, to sell
or otherwise dispose of the same for the purpose of realisation of the balance
due, and the Bank shall also be entitled at any time to take possession of the
said goods wherever they may be found and for that purpose enter upon the
premises where such goods are lying and the Borrower or his agent shall be
obliged to deliver possession of the said goods to the Bank. It shall be
lawful to the Bank ------ or at any time thereafter and without any notice to
the Borrower (without prejudice to the right of the Bank to use the Borrower or
realise any other security held) absolutely to sell or otherwise dispose of
either by public auction or private contract/treaty, all or any of the goods
hypothecated and charge to it and to apply the net proceeds of such sale
towards the -------- of the principal and interest moneys due to the Bank on the
said ------------ account with further interest thereon at ---------- p.a.,
together with all costs and charges incurred or to be incurred by the Bank
- ------ obtained by the books of the Bank signed by the Manager or other duly
authorised officer therefor for the time being which the Borrower hereby agrees
to accept as sufficient proof of the correctness thereof without production of
any other vouchers or paper; that if the net sale proceeds together with the
net proceeds of the policies referred in clause 11 shall be insufficient to
cover the amount so found due, the Borrower promises forthwith on production to
it/him of the account so to be prepared and signed as aforesaid, to pay any
further balance which may appear to be due by the Borrower thereon.
19. In the event of there being a surplus in such proceeds it shall be
lawful for the Bank to apply the said surplus as far as same shall extend in or
towards payment or liquidation of any other moneys due from the Borrower by way
of loans, discount of bills, letters of credit, guarantee, charges or of any
other demand legal or equitable against the Borrower or any other indebtedness,
future or contingent and whether matured or not, due solely or in conjunction
with any other person or persons which the law of set off or mutual credit would
in any case admit together with interest on the said claims at such rates as the
said documents provide, and any Bank charges thereon and after adjustment of
all liabilities as stated above, the surplus if any shall be held by the Bank
at the disposal of the Borrower.
20. If the Borrower fails to pay on demand or if in the opinion of the
Bank or any of its concerned officers its/his financial position has suffered,
or if anything has happened to shake or reduce its/his credit, the Bank shall
have the right of adjusting any balance to the credit of Borrower in any
account whatsoever to the amount due from it/him.
21. Nothing herein contained shall operate or be deemed to negative,
qualify or otherwise prejudicially affect the Bank's rights or remedies (which
it is expressly agreed the Bank shall have) in respect of any present or future
securities, guarantees, obligations or decree for any indebtedness or liability
of the Borrower to the Bank whether the said securities referred to herein are
renewed, altered or varied to any manner.
22. The Borrower shall pay all costs, charges and expenses incurred by
the Bank in the negotiation, execution or carrying into effect of this
Agreement or in relation to the exercise or any power of sale or other power or
in relation to any act, deeds matter or thing arising out of this Agreement and
incidental thereto and shall also pay interest thereon at the rate aforesaid
and in the matter aforesaid.
23. This Agreement shall operate as a continuing security for the
balance ultimately due to the Bank and it is not to be considered as closed for
the purpose of this security and the security is not to be considered as
exhausted by reason of the account
[STAMP]
15
____________ being brought to credit at any time or from time to time or if all
moneys due or owing to the Bank having been paid in full the balance is at
credit and the Bank's rights are not to be prejudiced in any manner even if the
account be overdrawn beyond the limit herein fixed and the security shall
continue in operation till this agreement is cancelled either by the Bank or by
mutual consent in writing of parties as hereinbefore mentioned.
24. The Borrower hereby declares and agrees that the finances provided
from time to time in terms of this agreement shall be applied by the Borrower
only for purpose as mentioned hereinabove and no part of it shall be applied by
him/it for any other purpose or any other activity of the Borrower.
25. The Borrower further declares and agrees that he/it shall not be
entitled to dispose of all or any of its assets, rights or interest which will
result in the transfer of ownership or will have the effect of ultimately
transferring its ownership to any other or others without the written consent
of the Bank.
26. The Borrower hereby further declares and agrees that he/it shall be
deemed to have committed breach of this agreement among other conditions if the
Borrower takes any steps on account of which division of funds at any time
provided by the Bank is made by the Borrower and decision of the Bank in the
matter whether there has been or is diversion of funds as stated herein is made
or not shall be binding on the Borrower.
In witness whereof the Borrower and the Bank have hereunto affixed
their respective hands the day and year above written at Bombay.
SCHEDULE
Common seal affixed [STAMP]
in the presence of [SIGNATURES]
Two Directors of
the company as per
Board Resolution
Dt. 26.09.95.
16
[CURRENCY]
[STAMP]
[STAMP]
PERSONAL GUARANTEE
THE DEED OF GUARANTEE executed at Bombay this 11th day of October 1994
by Shri M.L. Tandon residing at 37, Merry Niketan, Mt. Mary Road, Bandra (W),
Bombay 400 050 (hereinafter referred to as "the Guarantor", which expression
shall, unless it be repugnant to the subject or context thereof, include his
heirs, executors and administrators)
in favour of
THE INDUSTRIAL CREDIT AND INVESTMENT CORPORATION OF INDIA LIMITED, a public
company incorporated under the Indian Companies Act, 1913 (7 of 1913) and
having its Registered Office at 163, Backbay Reclamation, Bombay 400 020 and a
Zonal Office at Zenith House, K. Khadye Marg, Mahalaxmi, Bombay 400 034
(hereinafter referred to as "the Lender", which expression shall, unless it be
repugnant to the subject or context thereof, include its successors and assigns)
17
2
WHEREAS
(1) Moduler Electronics (I) Pvt. Limited, a Company within the
meaning of the Companies Act, 1956 and having its Registered
Office at 406, Dalamal Towers, Nariman Point, Bombay 400 021
(hereinafter referred to as "the Borrower") has requested the
Lender to lend and advance to it Foreign Currency Loan
aggregating US $25,50,000 equivalent to Rs.803 lacs (Rupees
Eight Hundred and three lacs only) for its Project at Madras
Export Processing Zone, Madras for the manufacture of Hard Disk
Drives.
(2) The Lender has agreed in principle to lend and advance to the
Borrower sums as set out in the Schedule hereto aggregating US$
25,50,000 equivalent to Rs.803 lacs (hereinafter referred to as
"the Loan") on the terms and conditions contained in the Loan
Agreement dated the 11th day of October 1994 entered into
between the Borrower and the Lender (hereinafter referred to as
"the Loan Agreement").
18
3
(3) One of the terms of the Loan Agreement is that the Loan along
with interest, costs and charges would be secured inter alia by
an irrevocable unconditional guarantee of the guarantors.
NOW THIS DEED WITNESSETH AS FOLLOWS
In consideration of the premises, the Guarantor hereby unconditionally,
absolutely and irrevocably guarantees to and agrees with the Lender as follows:
1. The Lender shall have the sole discretion --
(i) to make disbursement(s) and/or interim disbursement(s) to
the Borrower from out of the Loans at such time, on such
conditions and in such manner as the Lender may decide.
2. The Borrower shall duly and punctually repay the Loans,
together with all interest, liquidated damages, front end fees,
premia on prepayment or on redemption, costs, expenses, and
other monies in accordance with the Loan Agreement and perform
and comply with all the other terms, conditions and covenants
contained in the Loan Agreement.
19
4
3. In the event of any default on the part of the Borrower in
payment/repayment of any of the moneys referred to above, or in the event of
any default on the part of the Borrower to comply with or perform any of the
terms, conditions and covenants contained in the Loan Agreement, the Guarantor
shall, upon demand, forthwith pay to the Lender without demur all the amounts
payable by the Borrower under the Loan Agreement.
4. The Guarantor shall also indemnify and keep the Lender indemnified
against all losses, damages, costs, claims and expenses whatsoever which the
Lender may suffer, pay or incur by reason of or in connection with any such
default on the part of the Borrower including legal proceedings taken against
the Borrower and/or the Guarantor for recovery of the moneys referred to in
Clause 2 above.
5. The Guarantor hereby agrees that, without the concurrence of the
Guarantor, the Borrower and Lender shall be at liberty to vary, alter or modify
the terms and conditions of the Loan Agreement and of the security documents
executed by the Borrower in favour of the Lender and in particular to defer,
postpone or revise the repayment of the Loans and/or payment of interest and
other monies payable by the Borrower to the Lender on such terms and conditions
as may be considered necessary by the Lender including any increase in the rate
of interest. The Lender shall also be at liberty to absolutely dispense with
or release all or any of the security/securities furnished or required to be
furnished by the Borrower to the Lender to secure the Loans. The Guarantor
agrees that the liability under this Guarantee shall in no manner be affected
by any such variations, alterations, modifications, waiver, dispensation with
or release of security, and that no further consent of the Guarantor is
required for giving effect to any such variation, alteration, modification,
waiver, dispensation with, or release of security.
6. The Lender shall have full liberty, without notice to the
Guarantor and without in any way affecting this guarantee, to exercise at any
time and in any manner any power or powers reserved to the Lender under the
Loan Agreement, to enforce or forbear to enforce payment of the Loans or any
part thereof or interest or other moneys due to the Lender from the Borrower or
any of the remedies or securities available to the Lender, to enter into any
composition or compound with or to grant time or any other indulgence or
facility to the Borrower AND the Guarantor shall not be released by the
exercise by the Lender of its liberty in regard to the matters referred to
above or by any act or omission on the part of the Lender or by any other
matter or thing whatsoever which under the law relating to sureties would but
for this provision have the effect of so releasing the Guarantor AND the
Guarantor hereby waives in favour of the Lender so far as may be necessary to
give effect to any of the provisions of this Guarantee, all the suretyship
and other rights which the Guarantor might otherwise be entitled to enforce.
20
5
7. This Guarantee shall be enforceable against the Guarantor
notwithstanding that any security or securities comprised in any instrument(s)
executed or to be executed by the Borrower in favour of the Lender shall, at
the time when the proceedings are taken against the Guarantor on this
Guarantee, be outstanding or unrealised or lost.
8. The Guarantor hereby agrees and gives consent to the sale,
mortgage on prior, pari-passu or second charge basis, release etc., of any of
the assets by the Borrower from time to time as may be approved by the Lender
or the transfer of any of the assets of the Borrower from one unit to the other
or to the release or lease out by the Lender any or whole of the assets charged
to the Lender on such terms and conditions as the Lender may deem fit and this
may be treated as a standing and continuing consent for each and every
individual act of transfer, mortgage, release or lease of any of such assets of
the Borrower. The Guarantor hereby declares and agrees that no separate
consent for each such transfer, mortgage, release or lease any of such assets
would be necessary in future.
9. The Guarantor hereby agrees and declares that the Borrower will be
free to avail of further loans or other facilities from the Lender or any other
financial institution or bank in addition to the Loans and/or to secure the
same during the subsistence of this guarantee and in that event the guarantee
herein contained will not be affected or vitiated in any way whatsoever but
will remain in full force and effect and binding on the Guarantor.
10. The rights of the Lender against the Guarantor shall remain in
full force and effect notwithstanding any arrangement which may be reached
between the Lender and the other Guarantor/s, if any, or notwithstanding the
release of that other or others from liability and notwithstanding that any
time hereafter the other Guarantor/s may cease for any reason whatsoever to be
liable to the Lender, the Lender shall be at liberty to require the performance
by the Guarantor of its obligations hereunder to the same extent in all
respects as if the Guarantor had at all times been solely liable to perform
the said obligations.
11. To give effect to this Guarantee, the Lender may act as though the
Guarantor was the principal debtor to the Lender.
12. The Guarantor hereby declares and agrees that he has not received
and shall not, without the prior consent in writing of the Lender receive any
security or commission from the Borrower for giving this guarantee so long as
any monies remain due and payable by the Borrower to the Lender under the Loan
Agreement.
13. The Guarantor shall not in the event of the liquidation of the
Borrower prove in competition with the Lender in the liquidation proceedings.
21
6
14. A certificate in writing signed by a duly authorised official of
the Lender shall be conclusive evidence against the Guarantor of the amount for
the time being due to the Lender from the Borrower in any action or proceeding
brought on this Guarantee against the Guarantor.
15. This Guarantee shall not be wholly or partially satisfied or
exhausted by any payments made to or settled with the Lender by the Borrower
and shall be valid and binding on the Guarantor and operative until repayment
in full of all moneys due to the Lender under the Loan Agreement.
16. This Guarantee shall be irrevocable and the obligations of the
Guarantor hereunder shall not be conditional on the receipt of any prior notice
by the Guarantor or by the Borrower and the demand or notice by the Lender as
provided in Clause 20 hereof shall be sufficient notice to or demand on the
Guarantor.
17. The liability of the Guarantor under this Guarantee shall not be
affected by --
i) any change in the constitution or winding up of the Borrower
or any absorption, merger or amalgamation of the Borrower
with any other company, corporation or concern; or
ii) any change in the management of the Borrower or take over of
the management of the Borrower by Central or State Government
or by any other authority; or
iii) acquisition or nationalisation of the Borrower and/or of any
of its undertaking(s) pursuant to any law; or
iv) any change in the constitution of the Lender.
18. This Guarantee shall be a continuing one and shall remain in full
force and effect till such time the Borrower repays in full the Loans together
with all interest, liquidated damages, front end fees, premia on prepayment or
on redemption, costs, expenses and other monies that may from time to time
become due and payable and remain unpaid to the Lender under the Loan Agreement.
19. The liability of the Guarantor hereunder shall not exceed the sum
of US$ 25,50,000 equivalent to Rs.803 lacs, plus all interest, liquidated
damages, front end fees, premia on prepayment or on redemption, costs, expenses
and other monies payable by the Borrower to the Lender under the Loan Agreement.
22
7
20. Any demand for payment or notice under this Guarantee shall be
sufficiently given if sent by post to or left at the last known address of the
Guarantor or his successors or assigns, as the case may be, such demand or
notice is to be made or given, and shall be assumed to have reached the
addressee in the course of post, if given by post, and no period of limitation
shall commence to run in favour of the Guarantor until after demand for payment
in writing shall have been made or given as aforesaid and in proving such
notice when sent by post it shall be sufficiently proved that the envelope
containing the notice was posted and a certificate by any of the responsible
officers of the Lender that to the best of his knowledge and belief, the
envelope containing the said notice was so posted shall be conclusive as
against the Guarantor, even though it was returned unserved on account of
refusal of the Guarantor(s) or otherwise.
21. Notwithstanding anything contained herein, this guarantee shall be
binding on the Guarantor till the Borrower creates the stipulated security in
Article III of the said Loan Agreement.
IN WITNESS WHEREOF the Guarantor has hereunto set his hand on the day
and year first hereinabove written.
23
8
SCHEDULE
PARTICULARS OF LOAN
Requested Equivalent
Name of the Lender Currency Amount Rs. in lacs
- ------------------ --------- ---------- -----------
The Industrial Credit and US$ $16,50,375 520
Investment Corporation of SGD 12,85,000 266
India Limited (ICICI) BEF 2,15,900 2
163, Backbay Reclamation YEN 46,87,500 15
Bombay 400 020
---
TOTAL 803
===
SIGNED AND DELIVERED )
)
by the within named ) [SIGNATURE]
)
Shri M.L. Tandon )