INDENTURE OF MQRTGAGE
THIS INDENTURE made at Mumbai on this the……………..day of……………..2000 by ABC Power Generation Company Limited, a company registered under the Companies Act, 1956 (1 of 1956) and having its registered office at ……………..Mumbai (hereinafter called "the Company") (which expression shall unless excluded by. or repugnant to the context or meaning thereof be deemed to include its successors and assigns) of the ONE PART and the XYZ Finanace Company Limited, a company registered under the Companies Act, 1956 (1 of 1956) and having its registered office at…………….. Mumbai (hereinafter called "XYZF" or "the Security Trustee") (which expression shall unless excluded by or repugnant to the context or meaning thereof be deemed to include the Security Trustee or the Security Trustees for the time being hereof and its successor/s and assigns) of the SECOND PART acting in its capacity as the Security Trustee for the Term Lenders and the Commitment Charge Lenders.
WHEREAS
(1) By Loan Agreements entered into between the Company and Term Lenders, each of the Term Lenders have agreed to lend and advance to the Company and the Company has agreed to borrow from each of the Term Lenders on the terms and conditions contained in the Loan Agreements sums in the form of loans to the maximum extent set out against their respective names in Part A of the First Schedule hereto.
(2) One of the conditions of the Loan, Agreements Is that the-Loans together with all interest, liquidated damages, costs, expenses and other monies, including in case of foreign currency loans any increase as a result of revaluation/devaluation/fluctuation whatsoever stipulated in the Loan Agreements shall be secured, inter alia, by a first mortgage of the Company's immovable properties situate at Maharashtra.
(3) By Guarantee Agreements between the Company, the Guarantors and the Counter Guarantors, the Guarantors have agreed to guarantee (and the Counter Guarantors have agreed to counter guarantee) certain payment obligations of the Company, to the extent set out against their respective names in Part 8 of the First Schedule hereto (hereinafter collectively referred to as "the Guarantee Assistance”, to The Export-Import Bank of Hong Kong (hereinafter referred to as "HK-EXIM Bank") in terms of the HK-EXIM Loan, Agreement dated November 26, 2000.
(4) One of the conditions of the Guarantee Agreements is that the Guarantee Assistance together with all guarantee commission and payments, if any, made pursuant to the Guarantee, all interest thereon, costs, charges, fees, expenses and all other monies, including any increase ,as a result of revaluation/devaluation/fluctuation in foreign currencies whatsoever stipulated in the Guarantee Agreement shall be secured, inter alia, by a first mortgage over the Company's immovable properties situate at Maharashtra.
(5) By the Commitment Charge Financing Documents entered into/to be entered into between the Company and the, Commitment Charge Lenders, each of the Commitment Charge Lenders have agreed to lend and advance to the Company and/or provide guarantee assistance to the Company and the Company has agreed to borrow and/or avail from each of the Commitment Charge Lenders on the terms and conditions contained in Commitment Charge Financing Documents the sums in the form of loans and/or guarantees to the maximum extent set out against their respective names in Part C of the First Schedule hereto.
(6) One of the conditions of the Commitment Charge Financing Documents is that, the principal together with all interest, liquidated damages, costs, expenses and other monies whatsoever stipulated in the Commitment Charge Financing Documents shall be secured, inter alia, by a second and subservient charge over the Company's immovable properties situate at Maharashtra.
(7) The Company is seized and possessed of and/or otherwise well, and sufficiently entitled to all those pieces or parcels of lands, hereditaments and