|
THIS AGREEMENT made at Cuttack the
...
day of
... 200
.. between M/S.
.;
a Public/Private Limited Company, incorporated and Registered under the
Companies Act of 1956 having its Registered Office at.
P. O
. Dist.
in the state
of Orissa hereinafter called "The BORROWERS" which expression
shall, unless repugnant to the subject or context thereof, include their
successors and assigns of the FIRST PART.
ORISSA STATE FINANCIAL CORPORATION, a Statutory
Corporation established under the State Financial Corporation Act 1951
and having its Head Office at O.M.P. Square, Cuttack-3 hereinafter
called the "0. S F. C." which expression shall unless
repugnant to the subject or context thereof, include its successors and
assigns of the SECOND PART.
INDUSTRIAL PROMOTION AND INVESTMENT CORPORA TION OF
ORISSA LIMITED, A Government Company incorporated and registered under
the Companies Act, 1956 and having its Registered Office at IPICOL
House, Janapath, Bhubaneswar in the State of Orissa hereinafter referred
to as the" IPICOl " which expression shall, unless it is
repugnant to the subject or context thereof include its successors and
assigns of the THIRD PART.
WHEREAS at the request of the Borrowers the O.S.F.C.
agreed to lend and advance to the Borrowers a term loan of Rs... lakhs (
Rupees... only) interalia on the condition that the Borrowers will
secure the repayment of the said loan with interests cost, charges and
expenses thereon and/or relating thereto in the manner following-
1. (i) By mortgage over all its hereditaments and
premises situated at.
.. P. O
Dist
...
in the State of Orissa more parti- cularly described in the schedule' A
' hereunder together with all buildings, structures, erections and
godowns present and future or any part thereof.
(ii) Hypothecation of all its present and future
plants, machineries, equipments, appliances, fixtures, implements stored
or to be stored laying at.
. in. the District.
short particulars whereof are given in Schedule 'B' hereunder .
2. WHEREAS the Borrowers created mortgage in favour
of OSFC and have executed a letter of Hypothecation in .favour of the
OSFC in pursuance of the said sanction orders amounting to Rs
..lakhs.
3. WHEREAS at the request of the Borrowers IPICOL
agreed to lend and advance to the Borrowers a term loan of Rs.
..
Iakhs (Rupees.
..
) only inter alia on the conditions that the Borrowers would secure the
repayment of the said loan with interest, cost, charges and expenses
thereon and/or relating thereto in the following manner :-
-
By an equitable mortgage over all its land,
hereditaments and premises situated at... . ..... ...District
...
, in the State of Orissa more particularly described in the
Schedule' A' hereunder together with all buildings structures
erections and godowns present and future or any part thereof .
-
Hypothecation of all its present and future
plants, machineries, equipments, appliances, stores, fixtures,
implements stored or to be stored laying at... District... short
particulars whereof are given in the Schedule 'B' hereunder .
4. WHEREAS the Borrowers created an equitable
mortgage in favour of IPICOL and have executed a letter of Hypothecation
in favour of the IPICOL in pursuance of the sanction order .
5. WHEREAS it was agreed between all the three
parties hereto that tripartite agreement should be entered into between
the parties hereto for the purpose of securing and ensuring the rights
of OSFC & IPICOL and rights for division of sale proceeds in the
event of enforcement of securities would rank paripassu in the manner
hereinafter appearing.
NOW these presents witness and it is hereby agreed by
and between the parties hereto as follows :
(1) NOTWITHST ANDING anything to the contrary
contained in the OSFC Mortgage and the IPICOL Mortgage ( hereinafter
collectively called "The said Securities" ) the rights of
OSFC & IPICOL interest in respect of the securities created by the
OSFC mortgage and IPICOL mortgage and mentioned in the respective
schedule thereto and other assets and any further assets that may be
comprised in the said securities (hereinafter referred to as the
" Mortgage Premises") shall rank paripassu for all purposes
and to all intents.
(2) (A) DURING the subsistence of the securities
referred to in the preceding clause all insurance in respect of the
mortgaged premises and the other assets and the further assets
comprised in the said securities shall be taken from such office or
offices of insurance of repute in India as may be agreed to by OSFC
& IPICOL and such policies of the Insurance shall be taken out in
the joint names of the Borrowers as the Mortgagors and OSFC & the
IPICOL as the Mortgagees. In case of any money becoming due and
payable under such insurance the amount realised from the Insurance
Company or Companies shall be received in the first instance by OSFC
and shall be subject to the mutual consent of OSFC and IPICOL be
applied either to the repairs, re instatement or replacement of the
properties and premises so damaged or destroyed or towards
appropriation in the manner hereinafter mentioned.
(B) All Title Deeds relating to the mortgaged
premises shall remain with the OSFC for itself and as the Agent of the
IPICOL and the OSFC shall make the same available to the IPICOL as and
when occasion arises.
(3) All money resulting from the enforcement of the
securities under the OSFC Mortgage and IPICOL mortgage or the amount
realised in respect of any policy or policies of Insurance or any
compensation money from acquisition or requisition of the mortgaged
premises or any of them or any part thereof or any other realisation
from the said securities either by enforcement or otherwise shall be
applied in the manner hereinafter appearing.
FIRSTLY, they shall be paid out of such money all
charges, cost and expenses incurred by OSFC & IPICOL or by anyone
of them incidental to the enforcement of the said securities or
realisation on receipt of such moneys.
5 SECONDLY , the balance of such money shall.
(i) In the event of money available for distribution
to OSFC and IPICOL being sufficient to pay to them the full amount
of the money due under the said securities be applied simultaneously
in the payment to the OSFC & IPICOL the full money respectively
due under the said securities.
(ii) In the event of money available for
distribution to OSFC & IPICOL being insufficient to pay to OSFC
&. IPICOL, the full amount of the money due under the said
securities be applied paripassu as nearly as may be practicable
towards payment to OSFC &. IPICOL in proportion to the amount
due to them without any preference or priority whatsoever. The
amount distributable to each of OSFC &. IPICOL shall bear to the
distributable amount the same proportion which the outstanding
amount of each of the said institutions bears to the aggregate of
the outstanding due to them by the Borrowers under the said
securities.
THIRDLY , surplus, if any, out of such money shall be
paid to person or persons entitled thereto.
(4) All policies of Insurance in respect of the
mortgaged premises shall hence- forth be kept by OSFC in its custody
for the mutual benefits of OSFC &. IPICOL and the same shall be
made available form OSFC to IPICOL as and when occasion arises.
(5) EITHER OSFC or IPICOL or any of them shall be
entitled to bring suit or to take any steps for enforcement of the
security created in their respective favour or otherwise for
realisation of their respective dues from the borrowers and in the
event of institution of any suit or proceedings by either OSFC or
IPICOL, such institutions shall join the other as party.
(6) PRIOR to taking any action or other steps for
enforcement of securities created in their respective favour OSFC
& IPICOL shall duly perform and act upon the same and each of them
shall consult and co-operate with other in respect of all matters
pertaining without affecting its own rights and each of them shall at
all times keep the other informed of all serious and important matters
coming to its knowledge relating to the mortgaged premises or any
portion thereof or otherwise relating to the borrowers.
(7) If either OSFC or IPICOL in pursuance of the
powers reserved to them under their respective documents decide to
take over the management of the borrower's industrial concern or to
enforce their right to sell the mortgaged premises or any part thereof
to exercise any other rights or powers conferred by the respective
documents or by law in their respective favour then in such case each
of them shall consult the other before enforcing such security or
exercising such rights or powers. If, at any time in the course of
enforcing the security either OSFC or IPICOL decide to appoint a
Receiver in exercise of the powers reserved to them neither OSFC nor
IPICOL shall appoint such Receiver except in consulting with the other
.
(8) PURSUANT to the permission in writing that may be
jointly and severally given by the OSFC & IPICOL to the Borrowers
to sell any assets forming part of the mortgaged premises if the
Borrower sell any such assets the sale of such assets shall, subject
to the consent of QSFC & IPICOL, be utilised by the Borrowers in
acquiring additional capital assets or be paid by the Borrowers to the
OSFC in the first instance and OSFC & IPICOL shall thereafter
utilise and adjust such sale proceeds towards repayment of OSFC dues
and IPICOL's dues from the Borrowers as provided in clause 3 hereof.
(9) The OSFC & IPICOL mortgage will stand
modified, amended and/or altered as aforesaid and shall always be
deemed to have been so modified, amended and/or altered and subject to
such modifications, amendment and/or alterations, each of the OSFC and
the IPICOL mortgage shall be in full force and effective and binding
upon the respective parties thereto. ( 10) The Borrowers do hereby
confirm the provisions contained in these presents and undertake. that
during the subsistence of the securities created by the borrowers in
favour of the OSFC & IPICOl as aforesaid the Borrowers shall not
do or suffer to be done or be part or privy to any act, deed, .matter
or thing which may in anywise prejudicially affect the securities and
the rights of OSFC & IPICOL.
IN WITNESSTH whereof the parties hereto put their
hands and seals to the agreement and the Common seal of the borrowers
has been affixed hereto.
|
Witness |
Borrower(s) |
|
1. |
|
|
2. |
OSFC |
|
IPICOL |
|
SCHEDULE-A
SCHEDULE-B |
|