UTTAR PRADESH CO-OPERATIVE SOCIETIES ACT 1965
Name of the co-operative society]
AND
Registrar, Cane Co-Operative Societies
AND
[Name of the Purchaser ]
TRANSFER AGREEMENT
CONTENTS
Contents
CLAUSE 1: DEFINITIONS AND INTERPRETATIONS ................................................. 5
CLAUSE 2: TRANSFER OFMILL ................................................................................. 12
CLAUSE 3: PAYMENT OF MONIES …………………………………………………14
CLAUSE 4: CERTAIN LIABILITIES ............................................................................. 16
CLAUSE 5: SPECIFIED ASSETS AND EXCLUDED ASSETS .................................... 16
CLAUSE 6: FIRST VOLUNTARY RETIREMENT SCHEME (“FIRST VRS”) ............ 17
CLAUSE 7: TRANSFER OF EMPLOYEES .................................................................... 18
CLAUSE 8: POSSESSION OF THE FIXED ASSETS .................................................... 21
CLAUSE 9: CONDITIONS PRECEDENT ...................................................................... 23
CLAUSE 10: CLOSING OF THE TRANSACTION ....................................................... 23
CLAUSE 11: BID SECURITY, FINANCIAL GUARANTEE AND PERFORMANCE
GUARANTEE .................................................................................................................. 24
CLAUSE 12: PAYMENT OF TAXES AND STAMP DUTY .......................................... 25
CLAUSE 13: OBLIGATIONS POST SIGNING DATE .................................................. 25
CLAUSE 14: REPRESENTATIONS AND WARRANTIES .......................................... 27
CLAUSE 15: INDEMNITY .............................................................................................. 29
CLAUSE 16: TERMINATION AND CONSEQUENCES OF TERMINATION AND
VACATION OF PREMISES ............................................................................................ 31
CLAUSE 17: CONFIDENTIALITY ................................................................................ 33
CLAUSE 18: DISPUTE RESOLUTION .......................................................................... 34
CLAUSE 19: MISCELLANEOUS ................................................................................... 35
SCHEDULES
SCHEDULE –I DETAILS OF ASSETS & LIABILITIES………………………..…… 40
SCHEDULE –II DETAILS OF LAND…………………..…………………………….. 41
SCHEDULE –III DETAILS OF VRS SCHEME ……………………………………… 42
Page 3
TRANSFER AGREEMENT
This TRANSFER AGREEMENT is made and entered into at [__ _] on this the [
day of __, 2009],
BY AND BETWEEN
The _________________________ a co-operative society registered under the Uttar
Pradesh Co-operative Societies Act, 1965 and having its registered office at __________________________, (hereinafter referred to as the “Seller” which expression shall, unless repugnant to the context or meaning thereof, include its successor or successors in business and permitted assigns),
AND
Registrar, Cane Co-Operative Societies appointed under sub-section (1) of Section 3 of the Uttar Pradesh Co-operative Societies Act, 1965 (“Confirming Party”) and having his office at [_____](hereinafter referred to as the “Registrar” which expression shall, unless repugnant to the context or meaning thereof, include its successor or successors in business and permitted assigns)
AND
[___], a [company incorporated under the Companies Act, 1956] and having its registered office at[___], (hereinafter referred to as the “Purchaser” which expression shall, unless repugnant to the context or meaning thereof, include its successor or successors in business and permitted assigns).
1 Please insert name of Purchaser The Seller and the Purchaser are hereinafter called collectively as “Parties” and individually as “Party”.
WHEREAS:
A. The Seller, being a co-operative society, is the owner of the Mill (as defined hereinafter).
B. In accordance with the provisions of Uttar Pradesh Co-operative Societies Act, 1965 and Uttar Pradesh Co-operative Sugar Mill Societies (Special Provision) Rules, 2007 made thereunder, the Registrar had issued an advertisement on June 25, 2009, inviting Expression of Interest cum Request for Qualification (“EOI cum RFQ”) for transfer of the Mill excluding Excluded Assets and Excluded Liabilities through competitive bidding;
C. Technical Proposals were invited from interested parties in terms of the EOI cum RFQ. Based on the Technical Proposals received, the Registrar had shortlisted bidders. Thereafter Financial Proposals were invited from the Shortlisted Bidders in terms of the ‘Request For Proposal’ document issued simultaneously with EOI cum RFQ.
D. After evaluating all the Financial Proposals received by the Seller from the Shortlisted Bidders, the Seller accepted the proposal submitted by the Purchaser to purchase and own the Mill on as–is–where–is basis for the consideration and upon the terms and conditions set-out hereinafter;
E. During the process of competitive bidding, [Name and address of the Company] has represented itself as being an Associate or Group Company of the Purchaser.
The Net Worth and Turnover of the Associate(s) / Group Company(ies) (terms defined hereinafter) of the Purchaser had been considered by the Seller while evaluating the Bid and accordingly, the Purchaser was selected based on the same. (applicable only in case the Purchaser has been selected on the basis of the financials of an Associate or Group Company)
E. The Parties, having arrived at an understanding in respect of the above, are now desirous of recording the same in writing and as such are executing these presents.
NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING MUTUAL COVENANTS, CONDITIONS AND AGREEMENTS SET FORTH HEREIN AND THE RELATED DOCUMENTATION AND OTHER CONSIDERATION, THE SUFFICIENCY AND ADEQUACY WHEREOF IS HEREBY ACKNOWLEDGED, AND INTENDING TO BE LEGALLY BOUND, THE PARTIES HERETO AGREE AS FOLLOWS.
CLAUSE 1: DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this Agreement, the following terms and expressions shall, unless repugnant or contrary to the context hereof, shall have the meanings assigned herein:
“Accounting Advisor” shall mean the advisor appointed by the [Seller/Registrar] to determine (i) the value of the NWCAA (defined hereinafter); (ii) the First VRS Amount; and (iii) any other action in connection with this Transaction;
“Agent” shall mean and include the agent, representative, nominee, officer, director, employee, attorney or any other person validly acting for and on behalf of a Party;
“Agreement” shall mean this Transfer Agreement alongwith the EOI cum RFQ, RFP and all annexures and schedules attached hereto, and shall include any modifications in writing thereto between the Parties in terms hereof after the Signing Date;
“Approvals and Intimations” shall mean all requisite statutory, regulatory and Government approvals, consents, filings, clearances, licenses and permissions including those from banks and financial institutions, creditors, suppliers, customers, insurance companies, or any other Persons, making of any intimations to any Person, or any other necessary requirements for the execution of this Agreement;
“Assets” shall mean all assets of the Mill including Books and Records, Contracts, Current Assets, Fixed Assets, and Permits;
“Bid Amount” shall mean the sum of Rs. [_____] as mentioned by the Purchaser in the Financial Proposal;
“Books and Records” shall mean all books and statements of accounts, auditors’ reports, statutory filings and registers of assets of the Mill and all other documents and records pertaining to the Mill;
“Business Day” means any day that is a working day of Mill;
“Cane Area Rights” shall mean the cane area(s) as reserved/allotted by the Cane Commissioner, Government of Uttar Pradesh to the Mill;
“Centralised Service Staff” shall mean those employees appointed by the committee of management and/or MD of the UPCSFFL
“Certain Liabilities” mean such liabilities, debts and other obligations in respect of the Mill, to be assumed by the Purchaser; a list of Certain Liabilities as on the Signing Date is attached hereto as Schedule I;
“Closing Date” shall mean the Final Payment Due Date/Extended Final Payment Due Date or the date on which last of the items which is execution of Sale Deed, required to be undertaken as part of Closing is undertaken or achieved, whichever is later, which date shall not be later than 12 (twelve) months from the Signing Date, or such other date as may be mutually agreed to by the Purchaser and the Seller;
“Closing” means consummation of the Transaction with the execution of Sale Deed contemplated in this Agreement on or before the Closing Date;
“Confidential Information” shall mean all and any information pertaining to the Seller and / or the Mill, whether documented or otherwise, furnished by or shared by or obtained from either Party to/with/by the other Party, whether prior to execution of this Agreement, under this Agreement or otherwise, including but not limited to trade secrets, pricing and sales policies financial information, business plans, forecasts and technical information. However the term “Confidential Information” would not include the information that is generally available to the public or which is already in the knowledge of the Purchaser, its Group Company(ies) or Associate(s) or its/ their Agents and such knowledge has been acquired by lawful means from sources other than the Seller;
“Contingent Liabilities” shall mean all claims/liabilities not admitted/contested/disputed by the mill;
“Contracts” shall mean contracts relating to the Mill entered into by the Seller with any Persons and subsisting as on the Signing Date;
“Current Assets” shall mean all current assets of the Mill and include, stocks of sugar, molasses, bagasse, sugar cane, work in progress, stores, consumables, machinery spares, packing material, books debts, loans and advances, deposits, cash and bank balance, advances to suppliers, security deposits, balance as per excise records and earnest money deposits pertaining to the Mill and the like, relating or pertaining to the Mill as of the Signing Date;
“Current Liabilities” shall mean all current liabilities including suppliers payable accounts, performance guarantees, sundry debtors payable, security deposits payable and amounts payable to contractors and Statutory Dues including Income Tax, Sales/Trade Tax / VAT, Entry Tax and others statutory dues relating or pertaining to the Mill as of the Signing Date;
“Damages” shall include all and any losses, damages, dues, costs, claims, demands, charges, liabilities, whether pecuniary or otherwise, expenses (including, without limitation, reasonable attorneys’ fees and expenses actually incurred) or the like, by whatever name called, whether before any court of law or a quasi-judicial forum or otherwise actually incurred or suffered by the Party claiming;
“Employees” mean all officers, permanent and seasonal labour/ staff employed/ including Centralised Service Staff and the Wage Board Employees who are posted in or in connection with or for the Mill on the Signing Date “Encumbrance” shall include any right, title, lien, charge, benefit or any interest whatsoever, whether existing or created or purporting to exist or be created, and whether present, future or contingent, including those in the nature of sale, agreement to sell, pledge, hypothecation, mortgage, charge (whether fixed or floating), adverse possession, or any other rights or encumbrance generally or any other adverse claim of any kind whatsoever on the Assets;
“Excluded Assets” means all assets of the Mill ownership of which shall be retained by the Seller and shall not be transferred to the Purchaser under this Agreement and are more particularly described in Schedule I of this Agreement.
“Excluded Liabilities” shall mean Liabilities of the mill other than Certain Liabilities which will be retained and settled by Seller/Registrar as described in Schedule I to this Agreement;
“Final Payment Amount” shall be the amount arrived at as per the formula provided in Clause 3.3(d);
“Financial Guarantee” shall mean the bank guarantee issued by any Indian commercial bank which has been included in the Second Schedule of Reserve Bank of India Act, 1934 for 75% of the Bid Amount in favour of [Seller / Registrar];
“First VRS” shall mean VRS announced on the Intimation Date;
“First VRS Payment Date” shall mean the date as provided in Clause 3.2 (a) on which date the First VRS amount shall be paid by the Purchaser to the Seller / Registrar;
“Fixed Assets” shall mean all fixed assets of the Mill including Lands (including freehold / leasehold land), buildings, fixed & loose plant & machinery, capital work in progress etc. as on the Signing Date;
“Group Company” or “Associate” means, in relation to the Purchaser, a Person who controls, is controlled by, or is under the common control with the Purchaser (including any member of the consortium where the Purchaser is a consortium). As used in this definition, the expression “Control” means with respect to a person which is a company or corporation, the ownership, directly or indirectly of more than 50% (fifty per cent) of the voting shares of such person, and with respect to a person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise;
“Indemnitee” shall have the meaning ascribed to it in Clause 15.4;
“Indemnitor” shall have the meaning ascribed to it in Clause 15.4;
“Initial Payment Amount” means 25% of the Bid Amount;
“Intimation Date” shall mean the date i.e. on which official intimation was sent to the Selected Bidder / Purchaser of his selection as the successful bidder;
“Inventory /Inventory Balances” means the balances of inventory of Sugar, molasses, bagasse and alcohol.
“Lands” mean all lands belonging to and forming part of the Mill, described and detailed more fully in Schedule II hereto.
“Law” shall mean and include the laws of India as may be in force from time to time, whether in force by way of statutory enactments, rules, regulations or otherwise.
“Liabilities” shall mean all the liabilities pertaining to the Mill including borrowings by the Seller and Current Liabilities;
“Material Adverse Effect” shall mean any event which individually or in the aggregate with all other circumstances, conditions, changes in or effects has, had or may have or could reasonably be expected to be materially adverse to the business, operations, Assets or Liabilities (including, without limitation, Contingent Liabilities), Employee relationships, customer relationships, results of operations or the condition (financial or otherwise) of the Mill, but shall not include any event caused in the Ordinary Course;
“Mill” means all rights, title and interest of the Seller in the sugar mill situated at ___________________________________________, Uttar Pradesh including any distillery together with all the Assets including the Specified Assets, Liabilities including the Certain Liabilities, Permits, Contracts, consumables and all other rights and privileges in relation thereto and more particularly described in Schedule I of this Agreement.
“Net Working Capital Adjustment Amount” or “NWCAA” shall have the meaning ascribed to it in Clause 3.4;
“Non-Retiring Employees” shall mean such Employees who continue in the employment of the Mill after the First VRS.
“Ordinary Course” shall mean the ordinary and usual course in which the act in question has been done or undertaken while carrying on the operations of the Mill prior to Signing Date;
“Permits” means all governmental filings, intimations, permits, consents, licenses, product approvals, use permits, registrations, re-registrations, applications and filings pertaining to licenses and permits, whether existing or pending, concessions and other grants and authorisations issued or granted by governmental, statutory or local authorities to the Mill “Performance Guarantees” shall have the meaning ascribed to it in Clause 11.3 and shall be as per the format provided in RFP; “Person” shall include an individual, an association, a firm, a corporation, a partnership firm, a joint venture, a trust, an unincorporated organisation, a joint stock company, governmental or statutory authority, including a government or political sub-division, or agency or instrumentality thereof or other entity or organisation, which is not a party hereto;
“Purchase Price” shall mean Bid Amount, Net Working Capital Adjustment Amount and other amounts mentioned in Clause 3 of this Agreement;
“Signing Date” shall mean the date of signing of this Agreement;
“Specified Assets” shall mean all the Assets of the Mill other than the Excluded Assets of the mill as described in Schedule I to this Agreement.
“Taxes” shall mean all and any statutory or other governmental levies, taxes, charges, cess, penalties, rates, stamp duties and other dues pertaining or relating to the Transfer of Mill as contemplated herein, including but not limiting to sales/trade tax, income tax, registration charges, etc.;
“Transaction” shall have the meaning ascribed to it in Clause 2.1;
“Transaction Development Cost” or “TDC” shall mean all fees paid and payable by the Seller / Registrar to Advisors, Legal Advisors, Accounting Advisors ,valuers & to others and all expenses incurred in connection with this Transaction to be reimbursed by the Purchaser to the Seller / Registrar;
“Transfer” shall mean and include sale, transfer, assignment, conveyance or the like, and the cognate expressions of Transfer (such as “Transferred”) would be construed accordingly;
“UP Government” or “GoUP” shall mean Government of Uttar Pradesh;
“UPCSFFL” means Uttar Pradesh Cooperative Sugar Factories Federation Limited, which was established in 1963 for development and expansion of cooperative sugar industry in Uttar Pradesh and having its registered office at 9-A, Rana Pratap Marg, Lucknow – 226 001;
“VRS” shall mean the voluntary retirement scheme to be offered to the Wage Board Employees and the Centralized Service Staff in accordance with this Agreement.
“Wage Board Employees” shall mean employees appointed by the General Manager/Occupier of the mills whose terms are governed by Wage Board
1.2 INTERPRETATIONS
Unless otherwise stated or unless the context otherwise requires, in this Agreement:
1.2.1 the headings used in this Agreement are included for convenience only and shall not be used in construing or interpreting this Agreement;
1.2.2 any reference to the plural shall include the singular and the vice-versa;
1.2.3 any reference to masculine gender shall include feminine or neutral gender;
1.2.4 the references to the Recitals, Articles, Clauses, Schedules and Annexures shall be references to the recitals, articles, clauses, schedules and annexures of this Agreement;
1.2.5 the references to statutes shall be references to the statutory enactments, rules and regulations (as modified, amended or re-enacted) in force;
1.2.6 reference to any Party to this Agreement shall, where the context permits, include its successors in title;
1.2.7 reference in this Agreement to do or not to do anything which any Party is required to do or not to do shall include its acts, defaults and omission whether:
(a) direct or indirect,
(b) on its own account, or
(c) for or through any other person, and
(d) those which it permits or suffers to be done or not done by any other person;
1.2.8 the effect of all obligations affecting the Parties under this Agreement is cumulative and no obligation shall be limited or modified by any of the other obligations unless there is in this Agreement an express limitation or modification;
1.2.9 where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have corresponding meanings;
1.2.10 any reference to “writing” includes printing, typing, lithography and other means of reproducing words in permanent visible form, including in electronic form;
1.2.11 the terms “include” and “including” shall mean, “include without limitation”; and
1.2.12 any capitalized term used in this Agreement and not specifically defined herein shall have the same meaning ascribed to it in the EOI cum RFQ and RFP, as the case may be.
CLAUSE 2: TRANSFER OF MILL
2.1 In consideration of the Purchase Price to be paid by Purchaser to Seller in the manner set out herein and subject to the provisions of this Agreement and the order passed by the Registrar, on the Signing Date, the Seller shall agree to Transfer and deliver to the Purchaser and the Purchaser shall agree to purchase, acquire and accept from the Seller, all rights, title and interest of the Seller in and to the Mill, together with the , Current Assets, Certain Liabilities & Contingent Liabilities, Permits, Contracts, and all other rights and privileges in relation thereto, excluding the Fixed Assets, and the Excluded Assets as a going concern on “as is where is basis”. The Parties agree that the Seller shall Transfer the Fixed Assets to the Purchaser on the Closing Date. The Transfer and transactions contemplated in this Agreement are hereinafter referred to as “Transaction”.
2.2 The Parties acknowledge and agree that the Transaction will constitute an outright slump sale of the Mill as an inseparable whole as a going concern on ‘as is where is basis’ for a lump sum consideration mentioned in Clause 3 of this Agreement.
Seller and Purchaser have also agreed to enter into separate additional agreement(s)/deed(s) with respect to certain components comprised within the Mill solely for the purpose of fulfilling filing and registration requirements under the applicable laws and to that extent, may allocate a part of the Purchase Price to such component of the Mill. However, determination and allocation of a value to any asset or liability comprised in the Mill for the purpose of payment of stamp duty, registration fees or other similar taxes or fees shall not be regarded as assignment of values to such individual assets or liabilities.
2.3 The Purchaser shall obtain all necessary and relevant permissions, approvals, consents as may be required from appropriate governmental / statutory /municipal authorities for running and operating the Mill currently at its sole cost and expense. The Seller shall assist in the transfer or assignment of any Permits that are capable of being transferred or assigned. The Seller shall however cooperate by giving its consent and no objection letters in obtaining such permission / grant of relevant approvals to the Purchaser, as may be reasonably requested by the Purchaser from time to time.
2.4 The Parties have mutually agreed that as part of the Transfer of the Mill, the Seller shall Transfer the Fixed Assets to the Purchaser on the Closing Date. Further, the Parties agree that the Seller shall not transfer the Excluded Assets and the Excluded Liabilities to the Purchaser and the Seller shall continue to retain ownership and / or responsibility for the same.
2.5 It is hereby further agreed between the Parties that all Contingent Liabilities and legal cases pending in respect of the Mill, shall be transferred by the Seller to the Purchaser, as part of the Mill in the manner contemplated in this Agreement. The Purchaser shall become solely liable in respect of such Contingent Liabilities and the Seller shall have no liabilities whatsoever in such respect.
2.6 It is further clarified that the Seller shall also transfer all books of accounts, documents and records pertaining to the Mill including those related to the Contingent Liabilities and legal cases. However, the Seller may retain copies of the aforesaid books of accounts, documents and records.
2.7 On the Signing Date, the Seller shall:
a) hand over possession of all Specified Assets;
b) deliver to the Purchaser all documents and registrations evidencing the rights of the Seller to the Specified Assets other than Fixed Assets;
c) execute and lodge such other deeds and documents for Transfer of the Specified Assets other than Fixed Assets as may be required by the Purchaser and do all such acts as may be required, including taking action for registration of the Transfer of such Specified Assets other than Fixed Assets as may be required by the Purchaser;
d) deliver to the Purchaser all the Books and Records; and
e) deliver to the Purchaser such other material documents that pertain to the Mill and which may be in possession of the Seller to consummate Transfer of the Mill;
2.8 The Employees of the Seller shall stand transferred to Purchaser as on the Signing Date. The Purchaser shall not retrench any of the Employees so transferred for one complete crushing season or one year from the Signing Date whichever is earlier (which shall however not be earlier than the implementation of the Second VRS).
2.9 The Purchaser agrees that it shall maintain separate Books and Records with respect to the Mill from the Signing Date till the Closing Date.
2.10 From Signing Date to Closing Date, the Purchaser is entitled to operate the Mill and responsible for all the responsibilities and running expense including salaries etc. Pertaining to the Mill including statutory, legal or any other liability. All operating profit or loss from the operations of the Mill will belong to the Purchaser from Signing Date.
CLAUSE 3: PAYMENT OF MONIES
The consideration for Transfer of the Mill, excluding the Excluded Assets and the Excluded Liabilities, shall be the aggregate of the following amounts to be paid by the Purchaser together with certain other dues in the manner set forth below.
3.1 Initial Payment:
a) The Purchaser has paid the Initial Payment Amount of Rs. ………….. (Rupess …………………. ) (25% of Bid amount) plus TDC amounting to Rs. ……………… by DD no. ……. on the Signing date to the Seller.
b) Along with the Initial Payment Amount, the Purchaser has submitted the Financial Guarantee issued by ………………. bank for 75% of the Bid Amount. The Financial Guarantee shall have validity for at least 90 days from the Signing Date.
c) Upon receipt of the Initial Payment Amount and the Financial Guarantee by the Seller the Parties shall execute this Transfer Agreement.
3.2 Second Installment:
a) The Purchaser shall pay the cost of First VRS, determined as per Clause 6, within 40 days from the Intimation Date to the Registrar (“First VRS Payment Date”).
b) The Seller shall provide a certificate from the Accounting Advisor to the Purchaser certifying the value of the Second Installment amount atleast 03 days before the First VRS Payment Date.
3.3 Final Payment:
a) The Purchaser shall pay the Final Payment Amount within forty five (45) days from the Signing Date to the Seller / Registrar (the “Final Payment Due Date”).The Net Working Capital Adjustment Amount shall be determined in accordance with the Clause 3.4.
b) However, the Purchaser has the option of making payment of the Final Payment Amount on the Extended Final Payment Due Date which shall in any case be not later than March 31, 2010 (the “Extended Final Payment Due Date”). In case the Purchaser is willing to exercise the option for making payment of the Final Payment Amount on the Extended Final Payment Due Date, the Purchaser shall have to intimate the Seller in writing his willingness to exercise this option and the number of days of extension it desires, by a notice in writing to be received by the Seller at least five working days prior to the Final Payment Due Date. Alongwith the letter for extension of Final Payment Date, the Purchaser shall provide the Seller a letter from the concerned bank confirming that the Financial Guarantee for the 75% of the Bid Amount has been extended upto 15th May, 2010.
c) If the Final Payment Due Date is extended as above, the Purchaser shall pay interest for such extended period from 46th day till the Extended Final Payment Due Date @ SBI PLR + 2% p.a. as prevailing on the Final Payment Due Date.
d) Accordingly, the Final Payment Amount shall be calculated in the following manner:
Final Payment Amount = 75% of Bid Amount + Net Working Capital Adjustment Amount + Applicable Interest for extended period (if any) + Value of Scrap
3.4 Net Working Capital Adjustment Amount
a) The Seller/Registrar shall appoint an Accounting Advisor at its sole discretion for computation of Net Working Capital Adjustment Amount (“NWCAA”).
b) The NWCAA shall be determined as follows:
NWCAA = [Current Assets (excluding inventories) forming part of Specified Assets as on Signing Date minus Current Assets (excluding inventories) forming part of Specified Assets as on March 31, 2009] plus (Inventories as on Signing Date – Inventories as on June 30, 2009) minus (Current Liabilities forming part of Certain Liabilities as on Signing Date minus Current Liabilities forming part of Certain Liabilities as on March 31, 2009) Plus value of scrap.
c) The Accounting Advisor shall certify the value of NWCAA and submit the report within 30 days of the Signing Date to the Seller. The Seller shall thereafter provide the certificate from the Accounting Advisor certifying the value of the NWCAA to the Purchaser prior to the Final Payment Due Date.
d) After payment of First Installment (Initial Payment) and up to Final Payment of Bid Amount as laid down above, if the Bidder/Purchaser defaults in any payment at any stage or breaches any of the terms and conditions, the entire amount paid by the Purchaser up to that point, shall be forfeited and following shall take place
i. The process of selection of Purchaser may be started de novo if Registrar so decides.
ii. The Purchaser shall return the possession of the Mill(s) within 03 days from the notice of default.
iii. The Purchaser shall also reimburse the damages to the Mills as estimated by Registrar
iv. The Registrar shall have right to invoke the Bank Guarantee(s).
CLAUSE 4: CERTAIN LIABILITIES
4.1 The Seller in accordance with the provisions of this Agreement shall Transfer the Certain Liabilities to the Purchaser on the Signing Date.
4.2 The Seller shall retain remaining liabilities for discharging in terms of UP State Cooperative Societies Act.
CLAUSE 5: SPECIFIED ASSETS AND EXCLUDED ASSETS
5.1 The Seller in accordance with the provisions of this Agreement shall Transfer the Specified Assets other than Fixed Assets to the Purchaser on the Signing Date. The Seller shall Transfer the Fixed Assets to the Purchaser on the Closing Date.
5.2 The Parties agree that the Excluded Assets are not being Transferred and the Seller shall retain ownership and possession of the Excluded Assets.
5.3 Prior to Signing Date, the Seller/Registrar has cleared all Encumbrances over the Current Assets included in the Specified Assets and which are being transferred to the Purchaser and thereafter, prior to Closing Date, the Seller shall clear Encumbrances over all Specified Assets. .
5.4 Notwithstanding anything contained herein, nothing in this Agreement shall obligate the Seller to Transfer to the Purchaser or empower the Purchaser to assume, acquire, avail or claim any right, interest or benefit of any assets, benefits, privileges, incentives, discounts, debts, monies receivable, book debts etc., of whatsoever nature not Transferred in terms hereof. CLAUSE 6: FIRST VOLUNTARY RETIREMENT SCHEME (“FIRST VRS”)
6.1 WAGE BOARD EMPLOYEES
a) The Seller had announced First VRS on Intimation Date to Wage Board Employees and they were allowed a period of 30 days from the date of announcement, for exercising their option of First VRS. The employees who do not exercise the option of First VRS shall be transferred to the Purchaser along with the Mill in the manner specified in this Agreement.
b) After the closure of the First VRS, the Purchaser shall be informed about the number of employees willing to exercise their option of First VRS.
c) Thereafter, Seller and the Registrar in consultation with the Purchaser shall finalize the Wage Board Employees to whom the Purchaser is willing to offer the First VRS. The services of the Wage Board Employees who had opted for the First VRS but in whose case the Purchaser has not given consent for acceptance of First VRS shall be transferred to the Purchaser in the manner specified in this Agreement.
6.2 CENTRALIZED SERVICE STAFF (CSS)
a) The Seller had announced First VRS on Intimation Date to Centralized Service Staff posted /deputed in the mill and they were allowed a period of 30 days from the date of announcement, for exercising their option of First VRS. The CSS who do not exercise the option of First VRS shall be transferred to the Purchaser in the manner specified in this Agreement.
b) After the closure of the First VRS, the Purchaser shall be informed about the number of employees who have exercised their option of First VRS.
c) The Purchaser is under an obligation to pay for the First VRS amount of all the CSS who have exercised their option of First VRS.
6.3 The First VRS amount payable to Wage Board Employees identified by the Purchaser and the Centralized Service Staff of the Mill shall be as per the GoUP VRS norms according to their years of service performed/ remaining.
6.4 The First VRS amount to be paid by the Purchaser shall be the amounts mentioned in this Agreement.
6.5 The Registrar with the assistance of the Accounting Advisor shall compute the First VRS amount in respect of Wage Board Employees identified by the Purchaser and Centralized Service Staff. The Registrar shall provide to the Purchaser, a certificate from the Accounting Advisor certifying the amount of First VRS, supported by employee wise break-up of the amount. The Purchaser is under an obligation for making the payment of First VRS amount within 40 days from the Intimation Date.
CLAUSE 7: TRANSFER OF EMPLOYEES
7.1 The Employees of the Seller who have either not exercised the option of First VRS or where the Purchaser has not given consent for acceptance of First VRS shall stand transferred as on the Signing Date. It is agreed that the Purchaser shall issue appointment letters to all the Employees of the Seller for the transfer of services from the Seller to the Purchaser subject to the following conditions:
a. The terms and conditions of employment offered by the Purchaser to the Employees of the Seller shall in no manner be less favourable than the terms and conditions presently applicable to the Employees of the Seller. However, the pay of Centralized Service Staff will be revised in terms of the Sixth Pay Commission of the Government of India w.e.f. Signing Date;
b. The services of Employee shall not be interrupted by the Transfer of their services from the Seller to the Purchaser;
c. No Employee shall be retrenched, dismissed, terminated or laid off other than in terms of the applicable staff regulations and statutory provisions. In any case, no retrenchment of employees shall be undertaken by the Purchaser during at least one complete crushing season or one year from the Signing Date whichever is earlier (which shall however not be earlier than the implementation of the Second VRS);
d. Within one calendar year or after one crushing season from the Signing Date, whichever is earlier, the Non-Retiring Employees shall be given an option of Voluntary Retirement Scheme (“Second VRS”) by the Purchaser. The Purchaser shall enter into a memorandum of understanding with the labour union of the Employees and [the UP Government/ Registrar] for Second VRS. The terms of the Second VRS shall not be inferior to the then prevailing terms for the VRS policy of the GoUP. The Purchaser shall be obligated to pay the VRS dues to such Non-Retiring Employees who exercise their option of Second VRS. The process of Second VRS shall be completed within 4 months from the date of announcement of Second VRS.
e. The Purchaser shall provide a Performance Guarantee of Rs.7,00,00,000 (Rupees seven crores) only to the Seller/Registrar for implementation of Second VRS in accordance with the terms of this Agreement.
7.2 On and from the Signing Date, the Employees whose services are being transferred from the Seller to the Purchaser shall be deemed to be the Employees of the Purchaser and the Purchaser shall be liable to pay to such Employees all amounts becoming due and payable to them, as per the terms of employment and statutory provisions whether by way of salary, bonus, or otherwise. Also, the transfer of services of such Employees would be with the benefit of continuity of service (i.e., such Employees would be given the benefit of the number of years of services performed in the Mill or UPCSFFL) in regard to retirement benefits including but not limited to provident fund, leave encashment and gratuity and the Seller shall transfer to the Purchaser the relevant amounts in the respective funds, if any, subject to the rules of the said funds, in the manner set out below:
a) A PF Trust has been created at the Head Office of UPCSFFL whose members are Centralized Services Employees. The Managing Director of UPCSFFL is the Chairman of the Trust. It is managed by a Board of 8 Trustees comprising 4 Trustees from the employer i.e. UPCSFFL and 4 members from the employees of the Centralized Services of UPCSFFL.
b) The PF Funds of the Centralized Services Staff who opt for transfer of services from Seller to the Purchaser shall be transferred to the PF Trust of the Purchaser. In case, the Purchaser has no Trust for PF funds, then the funds shall be transferred to the PF Commissioner’s account.
c) With respect to the Wage Board Employees whose services are transferred from the Seller to the Purchaser, PF records are maintained by respective Regional Provident Fund Commissioners (“RPFCs”) or Employees Provident Fund Trust (EPFT) and their contribution is sent to the respective RPFCs.
d) The PF dues of the Wage Board Employees and Centralized Service Staff till Signing Date shall be the obligation of the Seller.
7.3 The amount in respect of Gratuity shall be the liability of the Purchaser as and when it becomes due and payable to all employees.
7.4 The Seller shall be liable to pay to the Employees all amounts becoming due and payable to them, as per the terms of employment and statutory provisions whether by way of salary, bonus, or otherwise, calculated up to Signing Date.
Unpaid dues to the Employees if any, incurred or arising or accruing prior to the Signing Date shall be paid by the Seller.
7.4 General Conditions of Employment Policy of the Mill The Purchaser agrees to adopt the following measures with respect to the employment policy of the Mill after Signing Date:
a) The Purchaser agrees to provide reservation in employment or other matters as per the applicable GoUP policies for private sector investment.
b) The Purchaser agrees to recognize that the GoUP in relation to its employment policies follows certain principles for the benefit of the members of the Scheduled Castes/ Scheduled Tribes, physically handicapped persons and other socially disadvantaged categories of society. The Purchaser shall use its best efforts to provide adequate job opportunities for such persons. Further in the event of any reduction in the strength of the employees of the Mill, the Purchaser shall use its best efforts to ensure that the physically handicapped persons, Scheduled Castes/Scheduled Tribes are retrenched at the end.
CLAUSE 8: POSSESSION OF THE FIXED ASSETS
8.1 (a) It is hereby agreed between the Parties that the Seller shall handover the possession of the Fixed Assets in accordance with this Agreement.
(b) The Parties agree that on the Signing Date, the Purchaser shall be handed over the possession, custody and control of the Fixed Assets till the Closing Date. During the period of such possession the Purchaser shall be entitled to carry out additions, repairs and maintenance (R&M) of the Fixed Assets in the Ordinary Course at its own cost and have the right to carry out crushing activities in the Mill.
8.2 For the avoidance of doubt it is hereby clarified that until Closing Date, the rights, title and interest in the Fixed Assets shall remain with the Seller and only the possession, custody and control of the Fixed Assets will be handed over to the Purchaser. Nothing herein shall be deemed to be transfer of right, title or interests of any kind whatsoever in favour of the Purchaser in respect of the Fixed Assets, until such time as the entire Purchase Price has been paid by the Purchaser on Closing Date.
8.3 From the Signing Date and till the Closing Date, the Purchaser shall:
a) give to the Seller such access as is reasonably requested by the Seller to the books, records which pertain to the Mill and which are being Transferred in terms hereof and also provide copies of such documents and information as the Seller may reasonably require;
b) deal with the Fixed Assets in the Ordinary Course, as per Law and maintain all insurance policies; The purchaser shall not disturb nature of Fixed Assets
c) immediately inform the Seller upon occurrence of any Material Adverse Effect in the Mill or any part thereof or any material variances or breach of any representations, warranties or covenants hereunder of the Seller;
d) not create any Encumbrance on or in any of the Fixed Assets, assume any Encumbrance in respect thereof or Transfer the same in favour of any third Person; and
e) not wilfully or negligently damage or destroy any Asset.
f) not, after the Signing Date, acquire or dispose of, or agree to acquire or dispose of, any material Asset, or cause any material variation in Liabilities except with the prior approval of the Seller, in writing.
Without prejudice to the generality of the foregoing, the Purchaser shall not, without prior approval of the Seller, in writing:
1. create any Encumbrance on or in any of the material Assets , assume any Encumbrance in respect thereof except for working capital borrowing or Transfer the same in favour of any third Person;
2. assume any Liabilities or borrow any money in relation to the Mill, except for the purposes of working capital requirements;
3. wilfully or negligently damage or destroy, any Asset which may materially affect the Mill;
4. waive any receivables, debts, claims or rights in relation to the Mill;
5. write-off or write-down any of the material Assets;
6. amend, terminate, waive, dispose, or allow lapse of, or fail to preserve, any of the Permits;
7. increase the total number of the Employees or vary the terms and conditions of employment of its Employees, except in the Ordinary Course;
8. cancel or amend the terms of any Contracts except in ordinary course;
9. enter into any collective bargaining agreement with the Employees; and
10. undertake any Capital Expenditure activity
8.4 The Purchaser agrees that after the execution of this Agreement and prior to Closing, Purchaser shall (a) promptly inform the Seller in writing about any matter arising after the date hereof that, if existing at, or occurring on, the date of this Agreement, would have been required to be set forth or described or addressed in this Agreement; (b) give written notice to Seller promptly after becoming aware of the occurrence or non-occurrence of any event or circumstance which would cause any condition to Closing not to be satisfied. In such event, the Seller will use their reasonable efforts to prevent or promptly remedy any matter which is or would be the subject of any notice.
CLAUSE 9: CONDITIONS PRECEDENT
9.1 Notwithstanding anything to the contrary herein contained or implied, it is expressly agreed and declared that the following conditions precedent shall be fulfilled prior to Closing:
a) The Purchaser having paid the First VRS amount and the Final Payment Amount;
b) the Purchaser having furnished Financial Guarantee and Performance Guarantee;
CLAUSE 10: CLOSING OF THE TRANSACTION
10.1 The Closing shall take place only after each of the Conditions Precedent are duly complied with by the Purchaser to the satisfaction of the Seller including the payment of all monies contemplated herein. In this regard, it is agreed that upon fulfilment of each of the Conditions Precedent, the Parties shall undertake such steps as may be required to achieve Closing.
10.2 On or before the Closing Date, the Seller shall execute such deeds and documents and undertake all such acts and omissions as may be reasonably required by the Purchaser for effecting and evidencing Transfer of the Mill.
10.3 On or before the Closing Date, each Party shall hand over a signed letter to the other Party that all the representations and warranties made hereunder are true on the Closing Date.
10.4 The Seller shall cooperate with the Purchaser and execute all such documents including power of attorney(s), if required, and do such further acts that may be necessary for perfecting the title of the Purchaser in the Mill or any of the Assets acquired by the Purchaser
CLAUSE 11: BID SECURITY, FINANCIAL GUARANTEE AND
PERFORMANCE GUARANTEE
11.1 BID SECURITY
(i) The Bid Security of the Purchaser submitted along with the Financial Bid (the “Bid Security”) shall be released within 30 days from the last date of payment of the Final Payment Amount to be made by the Seller.
(ii) The entire Bid Security shall be forfeited in the following cases:
1. In case the Purchaser selected to purchase the Mill, fails to pay any amount as per the provisions given in Clause 3, or
2. If the Purchaser is disqualified as per the terms of the RFP, or
3. In case the Purchaser fails to deposit Financial Guarantee in accordance with Clause 11.2.
11.2 FINANCIAL GUARANTEE
(i) The Purchaser shall submit the Financial Guarantee with the Seller on the Signing Date as per Clause 3 of this Agreement. The details of the same are as under:
Bank Guarantee No……….. Dated…………….. for Rs. ……………. Issued by ……………………. (Bank) valid upto ……………………………
(ii) The Financial Guarantee shall be released within 10 days of the receipt of the Final Payment Amount
(iii) In the event of Purchaser defaulting in payment at any stage or committing a breach of any terms and conditions of this Agreement, the Financial Guarantee shall be invoked without any prior intimation to the Purchaser.
11.3 PERFORMANCE GUARANTEE
(i) The Purchaser shall, submit performance guarantee equivalent to Rs. 7.00 crores (Rs. Seven Crores) to the Seller ,to be valid for 18 months within 45 days from the Signing Date, in favour of the Seller / Registrar in the form of single or multiple bank guarantees issued by any scheduled commercial bank.
(ii) The Purchaser agrees that the Seller shall have unconditional and irrevocable right to invoke the Performance Guarantees in the events of the Purchaser failing to implement Second VRS.
(iii) The Performance Guarantees shall be released with in thirty days after implementation of Second VRS.
(iv) The performance guarantee shall be worded in such a way as to be encashed by the issuing Bank without demur, immediately upon receipt of such written request from the Seller.
CLAUSE 12: PAYMENT OF TAXES AND STAMP DUTY
12.1 The Purchaser shall, save as herein expressly provided, bear pay and discharge all assessments, rents, rates, taxes, outgoing and impositions of whatsoever nature relating or pertaining to the operations and activities of the Mill of the Seller pertaining to the period after the Signing Date. The Purchaser shall be liable and responsible for all obligations or liabilities arising from or in respect of the operations and activities of the Mill from the Signing Date.
12.2 Save and except as herein otherwise provided, the Purchaser shall bear and pay the stamp duty, registration charges and sales tax or any other applicable tax, if any payable, on or in respect of the Transfer of the Mill.
12.3 Capital Gains tax, if any, payable in connection with the Transfer contemplated under this Agreement, shall be borne by the Seller.
CLAUSE 13: OBLIGATIONS POST SIGNING DATE
13.1 Licenses and Permits
The Seller/Registrar shall provide all assistance as may be required by the Purchaser to obtain all Permits that are not capable of being transferred along with the Mill.
13.2 The Seller shall preserve all books of account, records and files in respect of the Mill, which are not Transferred to the Purchaser, for such period as may be specified under any applicable statute or regulation or as requested by the Purchaser. The Seller shall allow access reasonably required by the Purchaser to such books of account, records and files in order to adequately deal with all litigation, tax claims, proceedings and assessments in respect of the Mill. The Seller agrees with the Purchaser to provide all reasonable assistance, co-operation and support including declarations, forms, documents etc. to enable the Purchaser to adequately deal with all litigation, tax claims, proceedings, assessments etc. Any requests by the Purchaser for access to any of the books of account, records and files in respect of the Mill, shall be made by giving the Seller written notice of 7 (seven) days .
13.3 The Seller shall ensure that all monies received by it after the Signing Date towards repayment of any book debts or advances granted by it to any person are appropriated by it only in trust and on behalf of the Purchaser and that the same are transferred to the Purchaser immediately.
13.4 The Seller shall cooperate with the Purchaser in providing all information, documents and support as may be desired for defending the pending litigation matters transferred to the Purchaser under this Agreement.
13.5 The Seller shall cooperate with the Purchaser and execute all such documents including power of attorney(s), if required, and do such further acts that may be necessary for perfecting the title of the Purchaser in the Mill or any of the Assets acquired by the Purchaser.
13.6 Letters to debtors
The Seller and the Purchaser shall advise each of the parties from whom sums, which form part of book debts and advances, are due and receivable, to pay such sums directly and only to the Purchaser after Closing Date.
13.7 Letters to creditors
The Seller and the Purchaser shall advise each of the parties to whom sums, which are expressly provided for in the Certain Liabilities, are payable that such sums shall be payable by the Purchaser after the Closing Date to the exclusion of the Seller.
CLAUSE 14: REPRESENTATIONS ANDWARRANTIES
14.1 The Seller represents and warrant to the Purchaser as under:
(a) That it is legally competent to enter into and has the full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and that this Agreement is valid and legally binding on it and is enforceable against it in accordance with terms contained hereof.
(b) All necessary Approvals and Intimations that are required to be obtained from or made to any Person, before execution, delivery and performance of its obligations hereunder have been duly obtained/ made before the Signing Date.
(c) The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly and validly authorized by its committee of management and / or shareholders and all necessary action with regard to the same has been duly complied with and the copy of such resolutions / authorisations passed by it and provided by it to the other Party along with execution hereof are true and complete;
(d) The execution, delivery and performance by it of this Agreement does not and will not:
(i) violate any of the provisions of its constitutional documents;
(ii) breach or result in a default of any agreement entered into by it or of any contract, agreement, instrument or document to which it is a party or by which it or its assets are bound;
(iii) breach or otherwise violate any order, writ, judgment, injunction or decree issued by any governmental authority or violate any Law applicable to it, its business or assets;
(iv) except as provided herein, require any consent, authorization, approval, exemption or other action by, or any filing, registration or qualification with, any Person or entity.
(e) Save and except what is expressly stated herein, neither the Seller nor any of its agents, employees, attorneys, representatives, directors, or officers have made any representations or warranties regarding the Mill of any kind or nature whatsoever including without limitation or any matter pertaining thereto including its Assets, Liabilities or Employees.
14.2 The Purchaser represents and warrants to the Seller as follows:
(a) That it is legally competent to enter into and has the full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and that this Agreement is valid and legally binding on it and is enforceable against it in accordance with terms contained thereof.
(b) All necessary Approvals and Intimations that are required to be obtained from or made to any Person, before execution, delivery and performance of its obligations hereunder have been duly obtained/ made before the Signing Date.
(c) The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly and validly authorized by its board of directors and all necessary corporate action with regard to the same has been duly complied with and the copy of such board resolution passed by it and provided by it to the other Party along-with execution hereof are true and complete;
(d) The execution, delivery and performance by it of this Agreement do not and will not:
(i) violate any of the provisions of its constitutional documents;
(ii) breach or result in a default of any agreement entered into by it or of any contract, agreement, instrument or document to which it is a party or by which it or its assets are bound;
(iii) breach or otherwise violate any order, writ, judgment, injunction or decree issued by any governmental authority or violate any Law applicable to it, its business or assets;
(iv) except as provided herein, require any consent, authorization, approval, exemption or other action by, or any filing, registration or qualification with, any Person or entity.
(e) It has not filed for bankruptcy or has been involved in any bankruptcy, liquidation or winding up proceeding whatsoever;
(f) The Purchaser and/ or its Agents having undertaken a due diligence in respect of the Mill to the complete satisfaction of the Purchaser and verified the representations and warranties made by the Seller herein;
(g) The Purchaser has reviewed the Guidelines for Selection of Consultants/Advisors, Developers for PPP Projects and Private Partners for Disinvestments issued by the Department of Infrastructure Development, Government of Uttar Pradesh and represents that the Purchaser is duly qualified in terms thereof.
14.3 Nothing herein contained shall prevent the Purchaser from mortgaging/hypothecating any Assets of the Mill with any scheduled bank registered with the Reserve Bank of India/international bank or Financial Institution (“Purchaser’s Lender”) as security for any financial arrangement/facility made available by such bank/institution/lender to the Purchaser after Closing Date. The Purchaser expressly agrees and hereby undertakes not to transfer the Mill prior to implementation of Second VRS.
CLAUSE 15: INDEMNITY
15.1 The Purchaser agrees to indemnify, defend and hold the Seller, its officers, Advisors, agents, employees and the Registrar harmless from and against any Damages that the Seller may suffer, sustain, incur or become subject to, arising out of or due to: (a) the material breach of any representation, warranty of the Purchaser in this Agreement; (b) the material non-fulfilment of any covenant, agreement or other obligation of the Purchaser under this Agreement; (c) any material non-compliance by the Purchaser with any Law, corporate or regulatory requirement, which may be applicable to the Transfer of the Mill; (d) any Certain Liability.
Provided that in no event shall the Purchaser be liable whether in contract, tort or otherwise for any special, indirect, incidental or consequential damages arising out of or in connection with this Agreement or any breach, performance or nonperformance hereof.
15.3 If there occurs an event, which a Party asserts is an indemnifiable event under this clause; the Party seeking indemnification (the “Indemnitee”) shall notify the indemnifying Party (the “Indemnitor”) to provide indemnification promptly.
15.4 If such event involves (a) any claim or (b) the commencement of any action or proceeding by a third party, the Indemnitee shall give the Indemnitor written notice of such claim or the commencement of such action or proceeding. The Indemnitor shall have a period of thirty (30) days within which to respond thereto. If the Indemnitor accepts responsibility within such thirty (30) day period, the Indemnitor shall be obligated to compromise or defend, at its own expense and by counsel acceptable to the Indemnitee, such matter, and the Indemnitor shall provide the Indemnitee with such assurances as may be reasonably required by the Indemnitee to assure that the Indemnitor will assume and be responsible for the entire liability at issue. If the Indemnitor does not respond within such thirty (30) day period and/ or rejects responsibility for such matter, in whole or in part, the Indemnitee shall be free to pursue, without prejudice to any of its rights hereunder, such remedies as may be available to the Indemnitee under Law.
15.5 Notwithstanding anything to the contrary contained in this Clause, in cases where the Indemnitee fears a possibility of loss incurring on it in the event immediate action is not taken, the Indemnitee shall have the right to take interim measures pending communication from the Indemnitor.
15.6 Aggregate liability threshold, De- Minimise Purchaser Losses
Notwithstanding any other provision of this Agreement, the Seller shall not be required to indemnify the Purchaser from or against any Damages under this Clause 15, unless the cumulative aggregate amount of such Damages to the Purchaser exceeds Rupees 1 Crore (“Aggregate Liability Threshold”). Furthermore, in calculating the Damages to the Purchaser, for purposes of indemnification hereunder, any Damages to the Purchaser in respect of each individual event that are less than Rupees 10 lakhs shall be excluded in their entirety (“De-Minimise Purchaser Damages”) and the Seller shall have no liability whatsoever to the Purchaser for such De-Minimise Purchaser Damages. It has been specifically agreed that the cumulative amount payable by the Seller, as an indemnity amount or otherwise, under this Clause 15 shall not be more than 50% of the Bid Amount.
15.7 All representations and warranties of the Parties shall survive for a period of 6 months from the Closing Date (“the R&W Claim Period”). After the expiry of the R&W Claim Period, no claim may be raised by either Party in respect of any representations and warranties made by the other Party. Furthermore, the representations and warranties made hereunder shall be deemed to be qualified for all purposes with the disclosures made by the Seller and its representatives.
15.8 The Purchaser shall not be entitled to any indemnification with respect to any Damages to the Purchaser to the extent the Purchaser had a reasonable opportunity in good faith to mitigate the losses but failed to do so.
15.9 The remedies set forth in this Clause shall be the exclusive remedies available to the Purchaser for any breach of or any matter relating to any representation, warranty, covenant, obligation, or agreement by the Seller contained in this Agreement.
15.10 Notwithstanding anything to the contrary contained herein, no Indemnitee shall be entitled to recover any indemnification payment under this Agreement by setting off such payment against any amount due from the Indemnitee under this agreement or otherwise.
CLAUSE 16: TERMINATION AND CONSEQUENCES OF TERMINATION AND VACATION OF PREMISES
16.1 Termination by the Seller
i. The Seller shall be entitled to terminate this Agreement in case of occurrence of any of the following events, if such defect / breach is not cured by the Purchaser within 30 days of notice from the Seller:
a. in case the Purchaser not paying the First VRS amount, the Final Payment Amount or not furnishing the Performance Guarantee;
b. in case of any material breach of this Agreement by the Purchaser;
c. in case of any material breach of any representation or warranty, covenant, agreement and/or other obligation of the Purchaser under this Agreement;
d. in case of institution of bankruptcy or insolvency or other similar proceedings against the Purchaser which has an effect on the ability of the Purchaser to perform its obligations under this Agreement;
e. in case the Purchaser is a consortium (i) institution of bankruptcy or insolvency or other similar proceedings against any member of the consortium which has an effect on the ability of the Purchaser to perform its obligations under this Agreement, or (ii) the constitution of the consortium is altered in a manner otherwise than in accordance with this Agreement;
f. in case the Purchaser is selected based on the financial strength of an Associate or Group Company, institution of bankruptcy or insolvency or other similar proceedings against the Associate or Group Company which has an effect on the ability of the Purchaser to perform its obligations under this Agreement
ii. In case the Agreement is terminated in terms of Clause 16.1(i), the Purchaser shall return the possession of the Mill to the Seller as far as possible in its original condition and the Employees of the Mill shall revert back, within 3 days of issuance of notice for termination of this Agreement failing which the Purchaser shall be deemed to be in illegal possession of the Mill.
iii. In case the Agreement is terminated in terms of Clause 16.1(i), the Seller may in addition to termination and without prejudice to any other rights and remedies that the Seller may have, invoke the Financial Guarantee and forfeit the amounts already received (including the Initial Payment Amount and First VRS amount) which the Purchaser acknowledges would be a genuine pre-estimate of losses and damages suffered by the Seller.
16.2 Termination by Purchaser
(i) The Purchaser shall be entitled to terminate this Agreement in case of any material breach of this Agreement by the Seller, if such defect / breach is not cured by the Seller within 30 days of notice from the Purchaser. The 30 days period for curing the defect/breach may be further extended for as many days as mutually agreed by the Parties in writing.
(ii) In case the Agreement is terminated in terms of Clause 16.2 (i), the Purchaser shall return the possession of the Mill to the Seller as far as possible in its original condition and the Employees of the Mill shall revert back, within 3 days of issuance of notice for termination of this Agreement failing which the Purchaser shall be deemed to be in illegal possession of the Mill.
(iii) In case the Agreement is terminated in terms of Clause 16.2 (i), the Seller shall refund the amounts already received (including the Initial Payment Amount and First VRS amount) from the Purchaser. Also, the Seller shall release the Bid Security, Financial Guarantee and Performance Guarantee to the Purchaser.
16.3 In case the Transfer contemplated in this Agreement cannot be consummated on account of any judgement, order or direction of court, tribunal, quasi-judicial or statutory authority or change in Law, the Parties would be entitled to terminate this Agreement. In such a case, the Purchaser will forthwith hand over the possession of the Mill to the Seller as far as possible in its original condition and the Employees of the Mill shall revert back. In addition, the Seller shall refund all the monies and release the Bid Security, Financial Guarantee and Performance Guarantee received from the Purchaser in terms of this Agreement.
CLAUSE 17: CONFIDENTIALITY
17.1 Treatment of Confidential Information: During the term of this Agreement, and for a period of (1) one year following the termination thereof, the Purchaser shall and shall cause its Associates to, keep confidential and will not disclose, and will cause its Associates not to disclose, to third parties the Confidential Information received from, or made available by the Seller in the course of the transactions contemplated hereby, and will not use and will cause its Associates not to use such Confidential Information for any purpose other than the performance of its obligations under this Agreement. On termination of this Agreement for any reason, all documents, memoranda, notes and other writings whatsoever prepared by the Purchaser which contain the Confidential Information shall be returned to the Seller.
17.2 Notice Prior to Disclosure: If the Purchaser (or its Associate) is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Purchaser will promptly notify the Seller of such request or requirement so that the Seller may seek an appropriate protective order or waive compliance with the provisions of this Clause.
17.3 Agreements Confidential: The terms and conditions of this Agreement, and all Annexes Exhibits, Schedules, attachments and amendments hereto and thereto shall be considered Confidential Information protected under this Clause17. The Purchaser shall not, issue any press releases or public announcements concerning this Agreement or its subject matter without the prior written consent of the Seller.
CLAUSE 18: DISPUTE RESOLUTION
18.1 If any dispute or difference arises between the Parties hereto during the subsistence of this Agreement or thereafter, in connection with the validity, interpretation, termination, implementation or alleged breach of any provision of this Agreement or regarding any question relating hereto the Parties hereto shall endeavour to settle such dispute or difference amicably. In the event that they are unable to agree to an amicable solution to the dispute or difference the Parties hereto shall refer such dispute or difference for arbitration as per Clause 18.2 hereunder.
18.2 Upon failure to amicably settle (as provided under Clause 18.1 within a period of 30 Business Days from raising of the dispute or difference, the dispute or difference shall be referred to a sole arbitrator to be appointed with mutual consent. In the event the Parties fail to reach a consensus on the appointment of such sole arbitrator within 30 days of a dispute being raised by any Party, each Party would have a right to nominate one arbitrator each and such nominated arbitrators would thereafter appoint the presiding arbitrator. For avoidance of doubt it is made clear that Seller and/or Registrar as the case may be, shall nominate, whether collectively or individually, only one arbitrator.
18.3 The arbitration proceedings shall be held in accordance with the Arbitration and Conciliation Act, 1996.
18.4 The place of the arbitration shall be [Lucknow].
18.5 The proceedings of arbitration shall be in the English language.
18.6 The arbitral award shall be substantiated in writing and the arbitral tribunal shall also have the right to decide on the costs of arbitration proceedings.
CLAUSE 19:MISCELLANEOUS
19.1 Additional Conditions
A. For a Consortium
In case the Purchaser is a Consortium, the Purchaser hereby agree and undertake as follows:
i. The Lead member of the Consortium shall maintain at least 51% of the interest in the Consortium for a period of 1 year from the Closing Date. The other members of the consortium will maintain at least 10% of the interest in the Consortium for said period of 1 year.
ii. The composition of the Consortium (including addition of new member) shall not be altered for a period of 1 year from the Closing Date. However, inter-se change in shareholding among the members is permissible subject to the Lead Member maintaining 51% stake during the said period.
iii. The members of the Consortium have submitted an undertaking to the Seller clearly agreeing that each of the members shall be jointly and severally liable for all the obligations of the Purchaser in this Agreement.
B. In case Purchaser is selected based on the financial strength of an Associate or Group Company
The Associate or Group Company of the Purchaser has submitted an undertaking to the Seller confirming that it will extend any and all necessary financial support to the Purchaser for successful completion of the Transaction. Further, in the said undertaking, the Associate or Group Company has clearly agreed that it shall be jointly and severally liable for all the obligations of the Purchaser (including all consequences on account of a breach of obligations by the Purchaser) in this Agreement. In confirmation of the foregoing, the Associate or Group Company has signed this Agreement.
19.2 Expenses
Save as expressly provided herein, and the RFP, each Party will bear the legal, accounting and other expenses incurred by such Party in connection with the negotiation, preparation and execution of this Agreement.
19.3 Assignment
Neither this Agreement nor any right, interest or obligation hereunder may be assigned, pledged or otherwise transferred by any Party, whether by operation of Law or otherwise, without the prior consent of the other Party, save and except what is provided herein.
19.4 No Waiver
The failure of a Party at any time to require observance or performance by any other Party of any of the provisions of this Agreement shall in no way affect the first stated Party’s right to require such observance or performance at any time thereafter and shall not amount to waiver by the first stated Party of its rights.
19.5 Amendments
This Agreement may be amended only in writing signed by both the Parties, and any such amendment shall be effective only to the extent specifically set forth in such writing.
19.6 Counterparts
This Agreement would be executed in two (2) originals, each of which, when so executed, shall be deemed an original, but all of which shall constitute but one and the same instrument.
19.7 Entire Agreement
This Agreement, together with the other agreements referred to herein and the schedules and exhibits attached hereto, contains the entire agreement of the parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions.
19.8 Public Announcements
Upon execution hereof, the Parties shall jointly plan any disclosures about the transaction contemplated herein to the public, in good faith, except any disclosures as may be required under law, or in the case of the Seller, to Employees and other third parties affected by this transaction.
19.9 Further Assurances
(a) The Parties shall from time to time do and perform such additional acts and execute and deliver such additional documents and instruments as may be required by applicable governmental rules or reasonably requested by any Party to establish, maintain or protect its rights, interests or remedies or to effect the intents and purposes of this Agreement.
(b) Except to the extent required by Law, the Purchaser and the Seller, shall not, at any time, disclose or make public any Confidential Information.
19.11 Remedies under this Agreement
Each Party hereto agree that any remedy or right conferred upon either Party for breach hereof shall be in addition to and without prejudice to all other rights and remedies available to it, whether under the applicable Law or otherwise.
19.12 Notices
Unless otherwise specifically provided herein, all notices, consents, equests, demands and other communications required or permitted hereunder:
(a) shall be in writing;
(b) shall be sent by messenger, certified or registered mail or a reliable express delivery service, charges prepaid as applicable, to the appropriate address(es) set forth below, or to such other addresses as any Party may inform, in writing, to the other Parties by giving five Business Days’ prior notice:
Purchaser
[___]
Seller:
[___]
(c) shall be deemed to have been given on the date of receipt by the addressee (or, if the date of receipt is not a Business Day, on the first Business Day after the date of receipt), as evidenced by a receipt executed by the addressee (or a responsible person in his or her office), the records of the person delivering such communication or a notice to the effect that such addressee refused to claim or accept such communication, if sent by messenger, or express delivery service.
19.13 Severability
Any provision of this Agreement which is found to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
19.14 Survival
The obligation of the Parties relating to Confidentiality and indemnification obligations of this Agreement shall survive termination or expiry of this Agreement, as the case may be.
19.15 Governing Law
This Agreement shall be a contract under the laws of India and for all purposes shall be governed by and construed and enforced in accordance with the laws of India.
19.16 Jurisdiction
This Agreement shall be subject to the exclusive jurisdiction of the Courts at [Location of Mill], only and no other Court shall have jurisdiction.
19.17 Period of Agreement
This Agreement shall be valid till Closing Date which shall not be later than 12 months from the Signing Date.
IN WITNESS WHEREOF this Agreement has been executed on the date and year first above written.
[Name of Co-operative Society]
_________________________________
Name:
Designation:
[Name of Purchaser]
_________________________________
Name:
Designation:
Registrar, Cane Co-Operative Societies
_________________________________
Name:
CONSENTING PARTIES in pursuance of Clause 19.1
(In case of Associate or Group Company)
[Name of Associate / Group Company]
_________________________________
Name:
Designation:
Schedule I: Details of Assets and Liabilities
Schedule II: Details of Land
Schedule III: Details of First VRS
SAILENT FEATURES OF V.R.S. AS PER G.O.NO. 1420SC/18-2-2008-345/95TC dt 18-07-2008, 2199SC/18-2-2008-345/95TC dt. 22-07-08 & 2200SC/18-2-2008-345/95TC dt. 22-07-08
1. This Scheme is applicable to all the Wage Board Permanent / Seasonal employees/workers and employees/officers of Centralized Services who have been permanently appointed at the Mill.
2. The following benefits shall be admissible to the employee who opted VRS:-
a) Amount lying in P.F. account of the employee.
b) Encashment of earned leave lying in the account of the employees as per rules..
c) Gratuity payable to the employees as per Payment of Gratuity Act.
d) As per terms and conditions of applicable service rules amount payable to the employees in lieu of notice for 01 month or 03 months as the case may be.
e) Each permanent / seasonal employee who opted VRS will be entitled to get Compensation as under :-
i. PERMANENT EMPLOYEE:-
Amount equivalent to one and half month salary at a time of VRS for every completed year of service. (Salary means basic salary plus D.A.). OR
At the time of VRS, amount of salary payable to the employees for remaining period of service. Whichever is less.
ii. SEASONAL EMPLOYEES :-
Amount equivalent to 22 Days salary for every completed Crushing Season of service. (Salary means basic salary plus D.A.). OR
At the time of VRS, amount equivalent to 15 Days salary payable to the employees for remaining period of service. Whichever is less.
3. For computation of amount of compensation period of one month shall be equivalent 30 days.
4. In addition, retired employee and his family shall be entitled for traveling allowance as per entitlement up to the place of permanent residence.