~A=~ 150900\;2008 ~ Date: 12th February, 2019 To, The Manager (Listing), The BSELtd. Mumbai Company's Scrip Code: 505700 Sub : Intimation under Regulation 30 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 Dear Siry Madam, Pursuant to above referred Regulation and Securities and Exchange Board of India (Issue and Listing of Debt Securities) Regulations, 2008 and Securities and Exchange Board of India (Issue And Listing of Debt Securities) (Amendment) Regulations, 2012, please find enclosed hereto Debenture Trust Deed executed between the Company and Debenture Trustee i.e. Vistra ITCL (India) Limited in relation to the issue of Secured, Rated, Listed Redeemable Non-Convertible Debentures ("NCDs) on Private Placement Basis of face value upto Rs.I0,00,0001 - (Rupees Ten Lakhs Only) each aggregating upto Rs. 150,00,00,0001- (Rupees One Hundred and Fifty Crores Only). You are requested to take the same on your records. Thanking you, Yours faithfully, For Elecon Engineering Company Limited Bharti Isarani Company Secretary & Compliance Officer Encl:As above Cranes Rubber Industry Marine Industry Plastic Industry Power Industry Steel Industry Sugar Industry Gearing industries. Gearing economies. Mining Cement Industry ELECON ENGINEERING COMPANY LIMITED, Post Box # 6, Vallabh Vidyanagar - 388120, Gujarat, India. Tel.: +91 - 2692 - 238701, 238702. Fax: +91 _2692 _227484. CIN L29100GJ1960PLC001082 I [email protected]I www.elecon.com
Transcript
~A=~150900\;2008~
Date: 12th February, 2019
To,
The Manager (Listing),The BSELtd.MumbaiCompany's Scrip Code: 505700
Sub : Intimation under Regulation 30 of SEBI (Listing Obligations and DisclosureRequirements) Regulations, 2015
Dear Siry Madam,
Pursuant to above referred Regulation and Securities and Exchange Board of India (Issue andListing of Debt Securities) Regulations, 2008 and Securities and Exchange Board of India (IssueAnd Listing of Debt Securities) (Amendment) Regulations, 2012, please find enclosed heretoDebenture Trust Deed executed between the Company and Debenture Trustee i.e. Vistra ITCL(India) Limited in relation to the issue of Secured, Rated, Listed Redeemable Non-ConvertibleDebentures ("NCDs) on Private Placement Basis of face value upto Rs.I0,00,0001 - (Rupees TenLakhs Only) each aggregating upto Rs. 150,00,00,0001- (Rupees One Hundred and Fifty CroresOnly).
You are requested to take the same on your records.
Thanking you,
Yours faithfully,For Elecon Engineering Company Limited
SECTION A ................................................................................................................................................. S
1. DEFINITIONS AND INTERPRETATION ......................................................................... S
2. ISSUANCE OF DEBENTURES, PURPOSE, AND SUBSCRIPTION ............................. 5
3. COVENANT TO PAY ........................................................................................................... 5
4. TERMS OF DEBENTURES ................................................................................................. 5
5. CONDITIONS PRECEDENT, CONDITIONS SUBSEQUENT AND CLOSING .......... 5
6. SECURITY AND GUARANTEE ......................................................................................... 7
7. REPRESENTATIONS AND WARRANTIES ................................................................... lO
8. COVENANTS OF THE ISSUER. ....................................................................................... 12
9. EVENTS OF DEFAULT ...................................................................................................... IS
DETAILS OF PLANT AND MACHINERY .................. ., ................................................................... 54
ANNEXURE A GENERAL INFORMATION .......................................................................... , ....... 56
SECTION B ............................................................................................................................................... 57
1. SETTLEMENT OF THE TRUST AND APPOINTMENT OF THE DEBENTURE TRUSTEE .............................................................................................................................. 57
(i)
2. TERMS OF DEBENTUID~S ............................................................................................... 57
3. CONDITIONS FOR THE ISSUANCE OF DEBENTURES ............................................ 59
4. COVENANTS OF THE ISSUER ........................................................................................ 59
5. EVENTS OF DEFAULT AND REMEDIES ...................................................................... 68
6. REPRESENTATIONS AND WARRANTIES ................................................................... 75
7. OTHER RIGHTS OF THE DEBENTURE TRUSTEE, POWERS AND DISCRETIONS ..................................................................................................................... SO
8. RELEASE/SUBSTITUTION OF SECURITY .................................................................. 84
SCHEDULE II DUTIES OF THE DEBENTURE TRUSTEE .......................................................... 96
SCHEDULE II DUTIES OF THE DEBENTURE TRUSTEE .......................................................... 96
~.·· i
(ii)
DEBENTURE TRUST DEED
This debenture trust deed is executed on this 8'" day of February 2019 by and between:
1. The Issuer referred to in Pm1 A of Annexure A; and
2. The Debenture Trustee referred to in Part B of Annexure A
The Issuer and the Debenture Trustee are hereinafter collectively referred to as the '"Parties" and individually as a "Party".
WHEREAS:
A. The Issuer is a public listed company engaged, inter alia, in tl1e business of manufacturing of industrial geared motors and reducers, material handling equipment, mining equipment, and casting processes ("Business").
B. The Issuer intends to raise resources from the issue of the Debentures (as defined be/01<) pursuant to this Deed to (i) repay certain existing Financial Indebtedness (as defined belmt), (ii) meet working capital requirements of the Issuer; and (iii) meet the requirements under the Finance Documents (as defined below) regarding deposit of DSRA (as defined below), payment of transaction related expenses or m1y other purposes pennitted by the Debenture Holders (as defined below) in accordance with the tenus hereof and the specific tenns of each Tranche (as defined below) which shall be more specifically mentioned in the respective Issue Document (as defined below) for each Tranche. ((i), (ii), and (iii) above are hereinafter collectively refen·cd to as the "'Purpose'}
C. Accordingly, the Issuer proposes to issue and allot, on private placement basis, INR (as defined below) denominated senior, secured, rated, listed, non-convertible debentures of the face value of INR 10,00,000 (Rupees Ten Lakhs Only) each ("Debentures'), for an aggregate nominal value of INR 150,00,00,000 (Rupees One Hundred Fifty Crores Only) ("Debenture Amount") on private placement basis, in two series and multiple !ranches, in tenns of this Deed and the respective Issue Documents for each such issuance. The Issuer proposes to issue the Debentures in the following series:
(i) Debentures for an aggregate nominal value of INR 60,00,00,000 (Rupees Sixty Crore only) of the Debenture Amount ("Series I Debentures"); and
(ii) Debentures for an aggregate nominal value of INR 90,00,00,000 (Rupees Ninety Crore only) of the Debenture Amount ("Series II Debentures");
D. The Issuer proposes to issue the Series I Debentures and the Series II Debentures in multiple tranches in the manner set out below (each such issuance of Debentures shall be referred to as a "Tranche"):
(i) Firstly, Debentures for an aggregate nominal value of up to INR I 05,00,00,000 (Rupees One Hundred and Five Crores) out of the Series I Debentures and I or Series II Debentures, (''Initial Tranche"), in the manner set out in the relevant Application; and
(ii) Subsequent to the Initial Tranche, such Debentures out of the Series I Debentures and/ or the Series II Debentures for an aggregate nominal value not exceeding the remaining Debenture Amount in one or more Tranches ("Subsequent Tranehe(s)"). The Debentures shall be issued in dematerialised fonn and are subject to the provisions of the Depositories Act, 1996 and rules notified by the Depository, from time to time.
E. The Issuer has, pursuant to:
(3)
(i) the approval of the Board (as defined below) of the Issuer under Section 179(3)(c) and Section !79(3)(f) of the Act and in tenns of the resolution of the management committee of the Board of the Issuer at the meeting held on 20 December 20 !8; and
(ii) the approval of the shareholders of the Company in tenns of the special resolution passed under Rule 14(2) of the Companies (Prospectus and Allotment of Securities) Rules, 2014 at the extraordinary general meeting held on 4 August 2014
agreed to issue and allot the Debentures on a private placement basis in the manner set out above in accordance with the tenns of this Debenture Trust Deed (as defined below) and the Issue Document relevant to a particular Tranche.
F. The Debenture Trustee is registered with the Securities and Exchange Board of India as a debenture tmstee under the Securities and Exchange Board of!ndia (Debenture Trustee) Regulations, 1993. The Debenture Trustee has, at the request of the Issuer, agreed to act as the debenture trustee under these presents for the benefit of the Debenture Holders, and each of their successors and assigns, pursuant to the Debenture Trustee Appointment Letter (as d~fined below) and the Debenture Trustee Agreement (as d~fined below).
G. Accordingly, the Parties have entered into this Deed to record the tenns and conditions goveming inter alia the role, duties, functions and powers of the Debenture Tmstee in accordance with the tenns hereto.
NOW THEREFORE, in consideration of the foregoing and other good and valuable-consideration, the receipt and adequacy of which are hereby expressly acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
(4)
SECTION A
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.1.1 Capitalised ten11s used in this Deed and not defined in the main body of the Deed shall have the meanings ascribed to such tenns in Clause 1.1 (Dq(initions) of Schedule I (D~finition and Interpretation) of this Section A.
1.1.2 The rules of interpretation applicable to this Deed are as set out in Clause 1.3 (Intelpretation) of Schedule I (Definition and !JzteJpretation) of this Section A.
2. ISSUANCE OF DEBENTURES, PURPOSE, AND SUBSCRIPTION
2.1 The Issuer proposes to issue and allot the Debentures, in terms of the provisions of this Deed to be read in conjunction with the terms and conditions applicable to each Tranche under their respective Issue Documents and other Finance Documents.
2.2 The proceeds from the issue of the Debentures will be solely utilised by the Issuer for the Purpose and will not be utilised for any other purpose without the consent of the Debenture Trustee.
2.3 A.pplication for subscliption to the Debentures must be made by the subscribers of the relevant Tranche of Debentures in accordance with the tenns of this Deed and the relevant Issue Documents.
3. COVENANT TO PAY
The Issuer covenants with the Debenture Trustee that the Issuer shall pay to the Debenture Trustee for the benefit of the Debenture Holders the Secured Obligations, including the Interest at the Interest Rate (including any Default Interest) on the Interest Payment Date and Redemption Instalments on each Redemption Date (including any other amount accrued and payable due to an Event of Default) as per the Tenns of the Debentures and all costs, charges, expenses and other monies payable by the Issuer in respect of the Debentures including in ease of acceleration, upon the occurrence and continuance of an Event of Default, in accordance with the ten11s of this Deed and the Finance Documents.
4. TERMS OF DEBENTURES
The Debentures shall have such tenns as set forth in Schedule II (Terms of Debentures) of this Section A.
5. CONDITIONS PRECEDENT, CONDITIONS SUBSEQUENT AND CLOSING
5.1 Conditions Precedent to Initial Tranche
The Issuer agrees and underiakes to comply with and fulfil the conditions precedent to subscliption to the Initial Tranche, as specified in Clause I of Part A (Conditions Precedent to the Initial Tranche) of Schedule III of this Section A and infonn the Debenture Trustee in writing, of compliance with the aforementioned conditions by providing a CP Completion Ceriificate and the proposed utilisation ofthe Initial Tranche Debenture Amount.
5.2 Conditions Precedent to each Subsequent Tranche
5.2. I On or after the date of fulfilment of the conditions precedent, set out in Clause II of Part A (Conditions Precedent to the Subsequent Tranches) of Schedule HI to this Section A, and the fulfilment of all the relevant conditions subsequent set out in Part B (Conditions Subsequent) of Schedule III to this Section A required to be complied with as on such date, the Issuer shall provide the Debenture Trustee with a CP Completion Certificate (duly signed by an authorised representative of the Issuer) confinning fulfilment of the
(5)
conditions precedent set out in Clause II of Part A Subsequent Tranches) of Schedule IH to this Section evidencing such fulfilment.
( CondiNons Precedent to the A along with, the documents
5.2.2 The Debenture Trustee shall, if satisfied with the completion of all conditions precedent as set out in Clause II of Part A (Conditions Precedent to the Subsequent Tranches) of Schedule HI to this Section A in a fonn and manner acceptable to the Debenture Trustee and provided that no Event of Default or Potential Event of Default has occurred or is continuing, accept the CP Completion Certificate, pursuant to which, the Issuer may make a drawdown request (the "Drawdown Request") on or prior to the Availability Date, specifying the Tranche Debenture Amount of the Subsequent Tranche and the Series of Debentures proposed to be issued in accordance with the tenus of the Tranche Offer Document. It is clarified that if any Potential Event of Default or Event of Default has occurred prior to the payment of the relevant Tranche Debenture Amount, then the relevant subscribers of the Debentures shall not be required to make any payment of such Tranche Debenture Amount, and the Issuer shall be required to redeem the outstanding Debentures already issued, in the manner set out in this Deed.
5.2.3 It is further clarified that notwithstanding any provision to the contrary contained in this Deed, an offer for each Subsequent Tranche would be deemed to be made only if the following conditions are met:
(a) the Debentures pertaining to all the previous Tranches have been allotted; and
(b) the Issuer has circulated the relevant Tranche Offer Document, including a fresh Offer Letter, to the eligible investors, in relation to the proposed Subsequent Tranche.
5.2.4 The fulfilment of any condition precedent may be waived or deferred in writing by the Debenture Trustee, following a written request from the Issuer setting out (i) the condition precedent in respect of which the Issuer seeks a waiver or deferral; and (ii) the reasons for seeking such waiver or defenal.
5.3 Closing
5.3.1 For the Initial Tranche:
Subject to satisfaction of the conditions specified in Clause I of Part A (Conditions Precedent to the Initial Tranche and Second Tranche) of Schednle III to this Section A, provided that no Event of Default or Potential Event of Default has occutTed or is continuing, the subscribers of the relevant Tranche of Debentures may subscribe to the relevant Debentures by crediting the relevant Tranche Debenture Amount for the Initial Tranche by RTGS to the Escrow Account on or prior to the Issue Closing Date set defined in the relevant Issue Document.
5.3.2 For Subsequent Tranches
Within 5 (five) Business Days from the date of receipt of the Drawdown Request, or such other period as maybe mutually agreed between the Issuer and the Debenture Trustee, provided that no Event of Default or Potential Event of Default has occurred or is continuing, subject to: (i) acceptance by the Debenture Trustee of the CP Completion Certificate; and (ii) receipt by the Issuer of the duly completed application in the fonn set out in the relevant Issue Document, the subscribers of the relevant Tranche of Debentures Holder(s) may subscribe to the relevant Debentures by crediting the Tranche Debenture Amount for the relevant Subsequent Tranche by RTGS to the Escrow Account.
5.3.3 The relevant Tranche of Debentures shall be allotted to the subscriber(s) of the Debentures by the Issuer as fully paid up Debentures on the Pay In Date, by passing the
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Allotment Resolution in accordance with Clause 5.3.4 below and filing the return of allotment for the relevant Tranche of Debentures under Fonn P AS-3 with the Registrar of Companies, in accordance with the provisions of the Act.
5.3.4 On the relevant Pay In Date, the following shall occur, to the extent practicable, simultaneously:
(a) the Issuer shall cause the Board to pass all necessary corporate resolutions for the allotment of the relevant Tranche of Debentures in dematerialized fonn to the subscribers of the Debentures (''Allotment Resolution");
(b) the Issuer shall allot the relevant Tranche of Debentures to the initial subscribers of such Debentures and intimate the subscribers of such allotment by way of a letter of allotment ("Letter of Allotment");
(c) the Issuer shall file with the Registrar of Companies, the retum of allotment in Fonn PAS 3, in accordance with the provisions of the Act; and
(d) the Issuer shall fumish to the Debenture Trustee, the certified true copy of the duly passed Allotment Resolution, the Letter of Allotment, and a certified trne copy of the return of allotment on the issue of relevant Tranche of the Debentures under Form PAS-3 (return of allotment) filed by the Issuer with the Registrar of Companies, in accordance with the provisions of the Act.
5.4 Conditions Subsequent:
5.4. I The Issuer agrees and undertakes to comply with and fulfil the conditions subsequent specified in Part B (Conditions Subsequent) of Schedule HI of this Section A.
5.4.2 The fulfilment of any condition subsequent provided in Part B (Conditions Subsequcnt) of Schedule HI to this Section A may be waived or deferred in writing by the Debenture Trustee (acting on Approved Instructions), following a written request from the Issuer setting out (i) the condition subsequent in respect of which the Issuer seeks a waiver or deferral; and (ii) the reasons for seeking such waiver or deferral.
6. SECURITY AND GUARANTEE
6. I Description of Security and Guarantee
6.1. I Security Interest
In consideration of the Debenture Holders subscribing to or purchasing the Debentures and to secure the payment of Secured Obligations, the Issuer agrees to provide and undertakes to ensure that each Obligor (as the case may be) provides the following security in favour of the Debenture Trustee for the benefit of the Secured Parties:
(a) first ranking and exclusive charge and mmigage on the Madhuban Property by the Guarantor, by the execntion of a Deed of Mortgage;
(b) first ranking and exclusive mmigage by the Issuer, on the Rajkot Property, by the execution of a Deed ofMmigage;
(c) first ranking and exclusive mortgage, on the Vallabh Vidyanagar Property by the Issuer, by the execution of a Deed of Mortgage;
(d) first ranking and exclusive mortgage by the Issuer on the Bangalore Property by way of an Equitable Mortgage;
(e) first ranking and exclusive charge by the Issuer on the Plant and Machinery by executing a Deed of Hypothecation or a Deed of Mortgage, at the discretion of the Debenture Trustee;
(f) a residual charge on all the fixed (movable) and current assets of the Issuer by execution the Deed of Hypothecation;
(7)
(g) a first ranking exclusive charge by the Issuer on the DSRA, the Escrow Account, and any sub-accounts (or any account in substitution thereof} that may be opened in accordance with this Deed and the Escrow Account Agreement, and all amounts standing to the credit of each of the above bank accounts, whether now or in the future, by execution of the Deed of Hypothecation; and
(h) any other security that may be specified by the Debenture Trustee in accordance with the tenus of the Finance Documents.
6.1.2 Guarantees and Other Undertakings:
In consideration of the Debenture Holders subscribing to or purchasing the Debentures and to secure the payment of Secured Obligations, the Issuer agrees to provide and undertakes to ensure that each relevant Obligor provides the following undertakings, guarantees, deeds, and documents in favour ofthe Debenture Trustee for the benefit of the Secured Parties:
(a) Demand Promissory Note and Letter of Continuity to be issued by the Issuer;
(b) post-dated cheques and undated cheques from the Issuer and the Guarantor in the manner set out in Clause 6.4 (Post-Dated and Undated Cheques) below;
(c) unconditional and irrevocable Corporate Guarantee provided by the Guarantor in favour of the Debenture Tmstee; and
(d) any other guarantee, undertaking, deed, or document as may be specified by the Debenture Tmstee (acting on Approved Instmctions) in accordance wi.thJenns of the Finance Documents.
6.2 Time of Security Creation and Perfection
6.2.1 The Issuer shall ensure that the Security Interest to be created or provided under Clauses 6. !.1 (a), (f), and (g) shall be created prior to disbursement of the Tranche Debenture Amount for the Initial Tranche.
6.2.2 The Issuer shall ensure that the guarantees, undertakings, deeds, or documents to be provided under Clause 6.!.2 (Guarantees and Other Undertakings) shall be provided prior to the disbursement of the Tranche Debenture Amount for the Initial Tranche.
6.2.3 The Issuer shall ensure that in relation to the Security Interest set out under Clause 6.1.1 (a) (Security Interest) the following actions and/ or compliances are concluded prior to disbursement of the Tranche Debenture Amount for the Initial Tranche:
(a) The no dues certificate from the State Bank of India in relation to the loan of INR 38,50,00,000 (Indian Rupees Thirty Eight Crores and Fifty Lakhs) secured by the Madhuban Property;
(b) Filing of Fonn CHG- 4 with the Registrar of Companies for satisfaction of the charge in favour of the State Bank oflndia; and
(c) registration ofthe Deed of Mortgage in relation to the Madhuban Prope11y with the relevant sub-registrar of assurances (under the Registration Act, 1908).
6.2.4 The Issuer shall ensure that the following actions and/ or compliances are concluded within the timelines set out below:
(a) in relation to the Security Interest set out under Clause 6. Ll (a) (Security Interest), the original title deeds pertaining to the Madhuban Property are deposited with the Debenture Tmstee in a fonn and manner satisfactory to the Debenture Trustee within 15 (fifteen) days from the Deemed Date of Allotment for the Initial Tranche; and
(b) in relation to the Security Interest set out under Clause 6.!.1 (a), (f), and (g), the Security Interest is perfected in accordance with applicable Law, including completion of filing of Form CHG - 9 in relation to the relevant Security Interest
with the Registrar of Companies and receipt of acknowledgement of such filing from the Registrar of Companies within 30 (thirty) days from the Deemed Date of Allotment for the Initial Tranche or such sh011er period as may be prescribed by applicable Law.
6.2.5 The Issuer shall ensure that the Security Interest under Clauses 6.1.1 (b), and (c), shall be created and perfected in accordance with applicable Law, including where required, registration of the documents or deeds in relation thereto with the relevant Sub- Registrar of Assurances and completion of filing and registration of the Security Interest with the Registrar of Companies prior to the disbursement of the Tranche Debenture Amount for any Subsequent Tranche.
6.2.6 The Issuer shall ensure that the Security Interest under Clause 6.1.1 (d) and (e), shall be created and perfected in accordance with applicable Law, including where required, registration of the documents or deeds in relation thereto with the relevant Sub- Registrar of Assurances and completion of filing and registration of the Security Interest with the Registrar of Companies within 30 (thirty) days from the Deemed Date of Allotment for the Initial Tranche.
6.2.7 The Issuer shall execute, and shall ensure that the Guarantor execute the relevant Finance Documents to which such Person is a party, for the creation and perfection of Security Interest and I or the credit enhancement set out in Clauses 6.1 (Description ~(Security and Guarantee) above, in favour of the Debenture Tmstee to secure the Secured Obligations, including bnt not limited to such powers of attorney as may be required to be provided by the aforementioned Persons in favour of the Debenture Tmstee, prior to the disbursement of the Tranche Debenture Amount for the Initial Tranche, except where a greater time period for the same is pennitted under this Clause 6.2 (Timing of Security Creation).
6.3 Filing and Registration
6.3.1 For the purposes of enabling the Debenture Tmstee to have a claim to the extent provided herein over all other creditors, the Issuer shall make all such filings and registrations (at its own cost and expense), in respect of issuance and allotment of the Debentures to the Debenture Holders and creation of the relevant Security Interest in accordance with the timelines set out in Part .B of Schedule HI of Section A.
6.3.2 The Issuer shall, on or around the date of the relevant Finance Documents, file or cause to file duly completed forms as prescribed under the Act. Further, the Issuer shall register the Finance Documents with the relevant Registrar of Companies and pay the requisite filing fee, within the timelines set out under the Finance Documents or such shorter timelines as may be prescribed under applicable Law and shall deliver a copy thereof to the Debenture Tmstee.
6.3.3 The Issuer shall provide to the Debenture Tmstee a ce1iified true copy of an updated register of charges of the Issuer maintained by the Issuer incorporating the creation of the relevant Security Interest in favour of the Debenture Tmstee for the benefit of the Debenture Holders within 7 (seven) days from the date of creation of relevant Security Interest and provide the certificates of registration of charge issued by the relevant Registrar of Companies immediately upon receipt thereof.
6.4 Post Dated Cheques and Undated Cheques
The Issuer shall deposit and shall ensure that the Guarantor deposits post-dated cheques ("PDCs") or undated cheques ("UDCs") in the name of the Debenture Trustee in the following manner: (A) the Issuer shall deposit PDCs for (i) all scheduled Interest payments and (ii) for all Scheduled Redemption Amounts including Redemption Premium; and (B) the Issuer shall deposit UDCs for the entire Debenture Amount to the
(9)
Debenture Trustee; and (C) the Guarantor shall provide a UDC for the entire Debenture Amount to the Debenture Trustee.
7. REPRESENTATIONS AND WARRANTIES
In addition to the representations and warranties furnished by the Issuer in Clause 6 (Representation and Warranties) of Section B, the Issuer furnishes the following representations and warranties which shall be deemed to be repeated on each day (with respect to the facts and circumstances then existing) till the Final Redemption Date:
7.1 Organization
The Issuer is a company limited by shares, duly incorporated and has the corporate power to own its assets, conduct and operate its Business as presently conducted.
7.2 Title to Secured Assets
The Issuer owns and has good, un-Encumbered, legal and /or beneficial title to all its properties, assets and revenues on which the Issuer is required to create Security Interest pursuant to the Finance Documents except for such assets over which Encumbrance is created by the Issuer in favour of the Existing Lenders.
7.3 No Amendments to Constitutional Documents
Other than as specifically permitted under the provrswns of this Deed and/or under applicable Law, the Issuer's Constitutional Documents have not been amended since the date of this Deed.
7.4 · ~ Authorisations
The Issuer is not required to obtain any Authorisations from any Person (other than the Authorisations required to be obtained and specified in this Deed and the other Finance Documents), including bnt not limited to any Authorisations from any Existing Lenders of the Issuer: (i) to enter into, and comply with its obligations under this Deed and the other Finance Documents to which it is a party or will be a party, (ii) to ensure that the Debenture Security has the priority and ranking it is expressed to have, and (iii) to ensure that the Debenture Trustee, or any other Person in favour of whom the Debenture Security is created, is able to enforce such Debenture Security in accordance with the tenus of the relevant Security Document.
7.5 Disclosure
The infmmation provided by the Issuer in the relevant Tranche Offer Document, the Issue Document and all infonnation (including any documents, reports or written infonuation) in relation to the Issuer and its Business provided to the Debenture Trustee (for the benefit of the Debenture Holders) is true and accurate (other than for projections and other forward-looking statements which the Issuer believes to be reasonable) in all material respects and does not contain any infmmation which is misleading in any material respect and all other infonnation provided by the Issuer pursuant to the Finance Documents is accurate in all material respects in each case, as at the date it is provided or as at the date at which it is stated.
7.6 No Material Omissions
Any factual infonnation provided by the Issuer to the Debenture Trustee or the Debenture Holders for purposes of entering into this Deed or the other Finance Documents is true complete and accurate in all material respects and there are no omissions which would make such infonnation misleading in any material respect, in each case, as at the date it is provided or as at the date (if any) at which it is stated.
7.7 Debenture Security
7.7.1 The Issuer is the sole legal and beneficial ov.ner of the relevant Secured Assets on which
' (I 0)
,. '
the Security Interest is required to be created by the Issuer.
7.7.2 The Security Interest created or to be created by the Issuer 0\er the Secured Assets under the Finance Documents is or shall be in the nature of a sole and exclusive first ranking Security Interest (save and except for the Security Interest created/ to be created by the Issuer on all its fixed (movable) and current assets over which a residual charge shall be created by the Issuer).
7.8 Compliance with Anti Money Laundering Laws
The commercial operations of the Issuer and Affiliates of the Issuer is and has been conducted at all times in compliance with all applicable financial record keeping and reporting requirements and money laundering statutes in India and of all jurisdictions in which the Issuer and Affiliates of the Issuer conduct their business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency having jurisdiction over the Issuer or Affiliates of the Issuer (collectively, "Anti Money Laundering Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any Affiliates of the Issuer with respect to Anti Money Laundering Laws is pending and no such actions, suits or proceedings are threatened or contemplated.
7.9 Corrupt Practices
7.9.1 In the process of obtaining any govemment concessions or licenses required in connection with the activities of the Issuer generally, neither the Issuer nor any person acting on behalf of the Issuer has committed any act that could be deemed to be a violation of any applicable anti-corruption or anti-bribery law.
7.9.2 The Issuer is and has been at all times in compliance with, and is not under investigation with respect to, and has not in fact been given notice of, any violation of any applicable state or local or any foreign, internatioual or supranational law (including common law), statute1 ordinance, rule, regulation, order, judgment, directive, decree, injunction, code or other legally binding requirement applicable to the activities of the Issuer, as presently conducted or as currently contemplated to be conducted.
7.10 Illegal or Unauthorized Payments; Political Contributions
7.1 0.1 Neither the Issuer nor any director, officer, employee, or any other person acting for or on behalf ofthe foregoing (individually and collectively, an "Issuer Affiliate"), has violated any applicable anti-bribery or anti-corruption laws, nor has any Issuer Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or auth01ized the giving of anything of value, to any officer, employee or any other person acting in an official capacity for any Govemmental Authority, as defined below, to any political party or official thereof or to any candidate for political office (individually and collectively, a "Government Official") or to any person under circumstances where such Issuer Affiliate knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to any government official, for the purpose of (A) influencing any act or decision of such Government Official in his official capacity, (B) inducing such Government Official to do or omit to do any act in relation to his lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official to influence or affect any act or decision of any Governmental Authority, or assisting the Issuer in obtaiuing or retaining business for or with, or directing business to the Issuer or Affiliates of the Issuer (any such payment. a "Prohibited Payment").
7.10.2 Neither the Issuer nor any of the Affiliates of the Issuer has been subject to any investigation by any Govemmental Authority regarding any Prohibited Payment.
7.11 Anti-Corruption Laws
(II)
7.11 .1 Neither the Issuer nor any A ffiliatcs of the Issuer has made an "'uniawti.d payment" within the meaning of and is not in any other way in violation of the Indian Penal Code, 1860, the Prevention of Corruption Act, 1988 and or any similar laws, rules or regulations issued, administered or enforced by India or any governmental agency having jurisdiction over the Issuer or Affiliates of the Issuer ("Anti-Corruption Laws").
7.11.2 Neither the Issuer nor any of the Affiliates of the Issuer (as applicable), nor any director or officer associated with or acting on behalf of the Issuer or Affiliates of the Issuer (as applicable) have used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic govenunent official or employee from CO!Jlorate funds; violated or is in violation of any Anti-Corruption Laws; or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment prohibited under any Anti-Corruption Laws.
8. COVENANTS OF THE ISSUER
8.1 In addition to the covenants set out in Clause 4 (Covenants of the Issuer and Obligors) of Section B of this Deed, the Issuer undertakes that:
8.1.1 Escrow Account
(a) P1ior to disbursement of the Tranche Debenture Amount for the Initial Tranche, the Issuer shall create and maintain the Escrow Account with the Account Bank for the deposit of Debenture Amount and withdrawal for the Pul]lose in accordance with the Escrow Account Agreement.
(b) The Issuer shall not, except with the prior written consent of the Debenture Trustee, in relation to the Escrow Account or sub accounts in relation thereto, enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts. All monies deposited in the Escrow Account will be utilized in the manner set out in the Finance Documents.
8.1.2 DSR Amount
(a) Simultaneous to the disbursement of the Tranche Debenture Amount for the relevant Tranche, the Issuer shall ensure that the Escrow Account or relevant subaccount thereof is credited with amounts equal to the DSR Amonnt or create the DSRA
(b) Subject to Issuer's obligation to maintain the required DSR Amount, the liquidation of the DSRA by the Issuer shall always be in accordance with the Escrow Account Agreement. The restliction on the liquidation of the DSRA shall not affect the obligations of the Issuer to make any payments due to be made on a Redemption Date.
(c) So long as any Debenture is outstanding, the Issuer shall not create any Security Interest on, save and except for any Security Interest created pursuant to the Finance Documents, or close down or suspend or liquidate, the DSRA (except in accordance with this Deed and/or the Escrow Account Agreement) without the prior written consent of the Debenture Trustee (acting on the Approved Instructions).
(d) Without prejudice to rights of the Debenture Trustee and the Debenture Holders, in the event the DSRA is liquidated by the Issuer, the Issuer shall promptly within 15 (fifteen) days of such liquidation replenish the DSRA such that the DSR Amount is maintained.
8.1.3 Approval
(12)
The Issuer shall obtain all regulatory and statutory penuissions and other requirements as specified by relevant regulatory authmities from time to time, for the purpose of perfonnance of its obligations under the Finance Documents, if required.
8.1.4 Infonnation Covenants
(a) Subject to applicable Law, the Issuer shall provide to the Debenture Tmstee (who will provide the same to the Debenture Holders) the following infonnation in relation to the Issuer, whether a request for the same has been made or not. Additionally, the Issuer will also provide the following information to the Debenture Holders in case a written request for the same is made by the Debenture Holders to the Issuer:
(i) payment of any amounts in relation to any arbitration award or any order under any legal proceedings or regulatory orders, passed against the Issuer and/ or the Guarantor;
(ii) infonnation regarding any change in composition of the Board of the Issuer, including any major change in composition which may amount to change of Control, within 7 (seven) Business Days of conducting such change;
(iii) all infonnation required by an external agency undertaking the obligation to monitor the Security Cover Ratio;
(iv) within 5 (five) Business Days from the date of approval of the financial statements by the BoardDf the Is~uer for the relevant Financial Quarttr, a management infonuation statement (MIS) for the preceding Financial Quarter and a confinnation on compliance with the relevant Financial Covenants;
(v) on demand, all infonnation submitted by the Issuer to any Governmental Authority;
(vi) within 5 (five) days of receipt by the Issuer, submit any inspection rep01t received from any Governmental Authority;
(vii) subject at all times to the covenants under Clause 8.1.13 (Negative Covenants) of Section A of this Deed, the Issuer shall forthwith and in any even within 1 (one) day provide infonnation with respect to any Encumbrance created on the shareholding of the Issuer held by the Guarantor, the Promoter, and i or the Promoter Group, including where such Encumbrance is created pursuant to applicable Law;
(viii) as soon as the same become available, but in any event within 15 (fifteen) days after the end of each calendar month (in the fonn and manner acceptable to the Debenture Trustee and the Debenture Holders), bank statements in relation to the Escrow Account;
(ix) within 21 (twenty-one) days from the end of each month, infonnation regarding the outstanding order book details for each unit of the Business, status of order execution and statement of debtors along with ageing,and creditors a! ong with ageing, for the preceding Month; and
(x) within 180 (one hundred and eighty) days from the end of the Financial Year, audited Financial Statements ofthe Issuer for that Financial Year.
(b) Subject to applicable Law, the Issuer shall, in relation to the Debentures, furnish to the relevant stock exchange(s) for dissemination, along with the yearly and half yearly financial results, a communication, counter sigued by the Debenture Tmstee, containing inter-alia the following infonnation:
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(i) credit rating and name of Credit Rating Agency;
(ii) debt to equity ratio, accompanied with a certificate of a practicing char1ered accountant confinning the said debt-equity ratio;
(iii) previous due date for the payment of interest, principal and whether the same has been paid or not;
(iv) next due date for the payment of interest and principal;
(v) an updated list of the names and addresses of the Debenture Holders; and
(vi) snch other infonnation as may be required under applicable Law including but not limited to the LODR Regnlations,
(c) The Issuer shall, in relation to the Debentures, furnish a quarterly report to the Debenture Trustee (or as may be required in accordance with applicable Law) containing the following particulars:
(i) an updated list of the names and addresses of the Debenture Holders;
(ii) details of the interest, principal amount and any other amounts that may be due in respect of the Debentures, but unpaid and reasons thereof;
(iii) the number and nature of grievances received from the Debenture Holders and resolved by the Issuer and those grievances not yet resolved to the satisfaction of the Debenture Holders and reasons for the same; and
- (iv) a statement that the assets of the Issuer which are available by· way of Security are sufficient to discharge the claims of the Debenture Holders as and wben they become due.
(d) The Issuer shall promptly and expeditiously attend to and redress the grievances, if any, of the Debenture Holders under or pursuant to the Finance Documents, or in connection with the Debentures. The average time required by the Issuer for the redress a! of routine grievances of the Debentnre Holders shall be 10 (ten) Business Days from the date of receipt of the complaint by the Issuer. The Issuer further undertakes that it shall promptly comply with the suggestions and directions that may be given in this regard, from time to time, by the Debenture Trustee and shall advise the Debentnre Trustee periodically of the compliance.
(e) The Issuer sball provide a prior written intimation to the Debenture Trustee (on behalf of the Debentnre Holders) at least 21 (twenty one) days prior to availing any Financial Indebtedness.
(f) Subject to applicable Law, give to the Debenture Holders and the Debenture Trustee or its nominee(s) all tbe necessary documents and reports and such infonnation and copies of relevant extracts as they shall reasonably require as to all matters relating to the business of the Issuer or any part thereof and to investigate the affairs thereof and shall allow the Debenture Trustee to make such reasonable examination and investigation as and when required by the Debenture Trustee and shall furnish the Debenture Trustee with all such reasonable information as the Debentnre Trustee may require and shall pay all reasonable costs, charges and expenses incidental to such examination and investigation~ to the extent such payment is not addressed or documented or provided for in a Finance Document
Notwithstanding any1hing contained in any Finance Document, any disclosure by the Issuer shall be strictly in accordance with the SEBI (Prohibition of Insider Trading) Regnlations, 2015 and the Issuer shall not share, disclose or otherwise provided access to any ·'unpublished price sensitive information'' (as defined therein) to the Debenture Trustee or its nominee(s) or any Debenture Holder.
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8.1.5 Disclosures
(a) The Issuer agrees and confinns that the Debenture Trustee, or any of the Debenture Holders may disclose infonnation in relation to the Debentures or the Finance Documents to any banks or financial institution or any Governmental Authority, if required, pursuant to applicable Law.
(b) Any public announcement pertaining to the Debentures or statement to the public pertaining to the Debentures or the Finance Documents shall be made subject to the consent of and to the satisfaction of the Debenture Trustee which consent shall not be unreasonably withheld.
8.1.6 Taxes
The Issuer agrees to file by the date due, all returns, reports and filings in respect of Taxes required to be filed by it and pay, when due, all Taxes due and payable by it other than Taxes that are contested by the Issuer in good faith and in accordance with relevant procedures provided that the Issuer will maintain adequate reserves in accordance with the Accounting Standards for such disputed Taxes, subject to applicable Law.
8.1. 7 Accounting and Financial Management
The Issuer shall maintain an accounting and control system, management infonnation and financial control system and books of account and other records, which on a standalone basis adequately give a fair and true view of the financial condition of the Issuer and the results of its operations in confom1ity with the Accounting Standards, subject to applicable Law.
8 .1.8 Auditors
The Issuer shall appoint and maintain as its auditor a reputable finn of external independent auditors licensed to practice in India and authorize them to communicate directly with the Debenture Trustee and the Debenture Holders, subject to applicable Law.
8.1.9 Security
The Issuer shall:
(a) Ensure that the Security Interest required to be created under Clause 6.1 (Description of Securi(y and Guarantee) is created and perfected within such timelines and with such priority and ranking as prescribed under this Deed and the Finance Documents, and shall take all actions as set out therein and deliver such instmments and deeds as may be requested by the Debenture Tmstee (acting in accordance with Approved Instructions) for creating and perfecting such Security Interest;
(b) Ensure that it maintains the Debenture Security created under the Security Documents, and, if necessary, shall create and perfect Additional Security in order to secure the Secured Obligations under the Finance Documents;
(c) Ensure that it maintains the Security Cover Ratio in accordance with Clause 7 (Security Cover) of Schedule H (Terms of the Debentures) of Section A of the Deed; and
(d) Ensure that the Guarantor irrevocably and unconditionally undertakes to promptly contribute all necessary amounts towards meeting any shortfall in the collection of Redemption Instalments or Secured Obligations, as soon as the Issuer becomes aware of such a shortfall and is unable to remedy such shortfall within 5 (five) Business Days thereof.
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8.1.1 0 Notice of Potential Events of Default
The Issuer shall, in relation to the Debentures, notify the Debenture Trustee in writing immediately on becoming aware of any failure to comply with the tenus of this Deed or the other Finance Documents or the occun·ence of Potential Event of Default or Event of Default without waiting for the Debenture Trustee to take any action in respect thereof The Debenture Trustee shall not be required to take any steps to ascertain if a Potential Event of Default has occurred or is continuing or if any event which could lead to an Event of Default or potential Event of Default has occurred and the Debenture Trustee shall be entitled to assume that no such events or potential events have occurred until it has received written notice to the contrary.
8. L 11 Notice to Debenture Trustee
Subject to applicable Law, the Issuer shall send to the Debenture Trustee at least 7 (seven) Business Days (or such shorter period as may be agreed by the Debenture Trustee) prior to the date of publication in relation to the Debentures, a copy of the fonn of each notice to be given to the Debenture Trustee, in relation to the Debentures.
8.1.12 Valuation Report
The Issuer shall, as and when required by the Debenture Trustee, procure a Valuation Report to the satisfaction of the Debenture Trustee.
8.1.13 Negative Covenants
In addition to the Negative Covenants stipulated in Clause 4.2 of Section B of this Deed, __ Witllolit the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Debenture Trustee (acting on the Approved Instructions), unless otherwise specified hereunder in this Clause, the Issuer hereby covenants with the Debenture Trustee that until the Final Redemption Date:
(a) the Issner shall not make, provide or procure any investments in or for any other line of business that is not related to the Business of the Issuer;
(b) indnct a person as a director on the Board of the Issuer who has been identified as a wilful defaulter in relation to any facility issued by any banks, financial institutions or non-banking finance company and in case such person is found to be on the Board of the Issuer, it would take expeditious steps for removal of the person from the Board of the Issuer;
(c) the Issuer shall not and shall ensure that the Guarantor shall not settle or pay any amounts in relation to any arbitration award or any order under any legal proceedings or regulatory orders, passed against the Issuer and/ or the Guarantor, unless the Issuer provides prior intimation of at least 5 (five) Business Days to the Debenture Trustee, unless compliance with the relevant arbitration award or any order under any legal proceedings or regulatory orders requires a shorter notice. Provided that no such prior intimation shall be required where i) the regulatory order is for an amount less than INR 50,00,000 (Indian Rupees Fifty Lakhs Only); or ii) where the orders from Govemmental Authorities in relation to Taxes are for amounts less than INR 5,00,00,000 (Indian Rupees Five Crores);
(d) the Issuer shall not enter into related party transactions, either in funded or nonfunded fonn, except in the ordinary course of business on ordinary commercial tenus and on the basis of arm's length arrangement;
(e) the Issuer shall not enter into or establish any management, partnership, profit-sharing, royalty agreement or other similar arrangement whereby the Issuer's income or profits are, or might be, shared with any other Person; or enter into any management contract or similar arrangement whereby its business or operations are managed by any other Person;
JIG)
(f) the Issuer shall not voluntarily delist the Debentures or pennit or suffer the Debentures to be delisted at any time until the Final Redemption Date;
(g) the Issuer shall not create or pennit to exist any Security Interest on the Debenture Security (which the Issuer has created) other than the Security Interest created under the Security Documents;
(h) the Issuer shall not claim any immunity or limitation of liability against any payment obligations arising towards the Debenture Holders in connection with the Debentures;
(i) the Issuer shall not incur any further Financial Indebtedness except for Permitted Indebtedness, and shall ensure tbat the Guarantor, do not incur any further Financial Indebtedness unless prior intimation of at least 21 (twenty-one) Business Days is provided to the Debenture Trustee;
(j) The Issuer shall not provide any guarantees or indemnities of any nature whatsoever on and from the date of this Deed except for guarantees issued for the procurement or perfonnance of contracts in the ordinary course of Business of the Issuer and as required to be issued to Government Authority/ties under any applicable Law. Provided that such guarantees shall not be issued for or on behalf of any other Person.
8.1.14 Financial Covenants
(a) The Issuer agrees and undertakes to adhere to and maintain the following financial ratios ("'Financial Covenants"runtil the Final Redemption Date:
(i) The ratio of Total Extemal Debt to Net Worth shall not exceed !.Ox (one time);
(ii) The ratio of Total Extemal Debt to EBITDA:
A. for the Financial Year ending 2019, shall not exceed 4.0x (four times);
B. for the Financial Year ending 2020, shall not exceed 3.75x (three point seven five times); and
C. thereafter till the Final Redemption Date, shall not exceed 3.25x (three point two five times),
(iii) The ISCR shall not fall below 2.5x (two point five times); and
(iv) The DSCR shall not fall below l.33x (one point three three times).
(b) The Financial Covenants ratios set out in this clause shall be tested on a quarterly-basis at the end of each Financial Quarter.
(c) Any breach of Financial Covenants which has not been remedied within 15 (fifteen) days from the date of occun·ence of the breach shall result in an Event of Default.
8.1.15 Shareholding Covenants
The Issuer shall ensure that:
(a) there is no change in shareholding of the Guarantor and that Promoter and the Promoter Group shall at all times own 51% (fifty-one per cent) of the equity shareholding of the Guarantor; and
(b) The Promoter shall exercise Control of the Guarantor.
8.1.16 Pennitted Security
.,'
(17)
In addition to the covenant in Clause 4.2.15 (b) of Section B of this Deed, save and except for the Pennitted Security the Issuer shall not create, agree to create or pennit to subsist any Encumbrance on the assets of the Issuer, except for Pennitted Security
8.1.17 Corrupt Practices
In the process of obtaining any government concessions or licenses required in connection with the activities of the Issuer generally, neither the Issuer nor any person acting on behalf of the Issuer shall commit, any act that could be deemed to be a violation of any applicable bribery and anti-co!Tuption Law.
8.1.18 Compliance with Law
The Issuer shall at all times ensure compliance with all applicable Law in all material respects including but not limited to Anti Money Laundering Laws and Anti- Corruption Laws.
9. EVENTS OF DEFAULT
9.1 Events of Defaults
9.1.1 In addition to the Events of Default set out in Clause 5.1.2 of Section B of this Deed, the following shall constitute an Event of Default:
(a) Any adverse observations made by the SEBI on the Issuer which may, in the sole discretion of the Debenture Holders result in a Material Adverse Effect;
(b) A failure by the Issuer to maintain the Security Cover Ratio in accordance with_ the provisions of this Deed; and
(c) A failure by any Obligor to comply with any of the provisions of the other Finance Documents.
10. NOTICES
10.1 Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Deed shall be in writing and signed by or on behalf of the party giving it. Such notice shall be served by sending it by facsimile to the number set forth below or delivering by hand, mail or courier to the address set forth below. In each case it shall be marked for the attention of the relevant party set forth herein below. Any notice so served shall be deemed to have been duly received (a) when delivery is made by hand, when hand delivered to the other party; or (b) when sent by facsimile, upon transmission; or (c) when sent by physical mail, where 7 (seven) business days have elapsed after deposit in the mail with certified mail receipt requested postage prepaid; or (d) when sent by courier on the 2"d (second) business day after deposit with an ovemight delivery service, postage prepaid, ·with next business day delivery guaranteed, provided that the sending party receives a confinnation of delivery from the delivery service provider; or (e) when sent by electronic mail notification with return receipt requested, upon the obtaining of a valid return receipt from the recipient.
IL&FS Financial Centre, Plot No. 22, G Block, Bandra Kurla Complex, Bandra (East), Mumbai- 400 051, India
022-2653 3535
022-2653 3297
mumbai(wvistra.com
I 0.2 Change of Address
A Party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Clause, by giving the other Parties a written notice of the new address in the manner set forth above.
All notices from or to the Issuer to the Debenture Holders in general shall be sent to the Debenture Trustee, who shall forthwith send a copy to the Debenture Holders.
I 0.3 Electronic Communication
10.3.1 Any communication to be made between the Issuer and the Debenture Trustee under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Issuer and the Debenture Trustee:
(a) agree that, unless and until notified to the contrary, this is to be an accepted fom1 of communication;
(b) notify each other in writing of their electronic mail address and/or any other infonnation required to enable the sending and receipt of infonnation by that means;
(c) notify each other of any change to their address or any other such infonnation supplied by them;
(d) when a Party includes an email address as part of the "administration details" it provides to the other Party from time to time in connection with this Deed, such Party shall be deemed to have agreed to the receipt of communications from the other Party by electronic mail to such address;
(e) Any electronic communication made between the Issuer and the Debenture Trustee will be effective only when actually received in readable fonn and in the case of any electronic communication made by the Issuer to the Debenture Trustee only if it is addressed in such a manner as the Debenture Trustee shall specify for this purpose; and
(f) A Party shall notify the affected other Party promptly upon becoming aware that its electronic mall system or other electronic means of communication cannot be used due to technical failure (if such failure is likely to last for more than 24 (twenty-four) hours). Until that Party has notified the other affected Party that the failure has been remedied, all notices between those parties shall be sent by letter in accordance with this Clause 10.1 above.
10.3.2 All notices from or to the Issuer to the Debenture Holders in general shall be sent to the Debenture Trustee, who shall forthwith send a copy to the Debenture Holders.
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SCHEDULE I
DEFINITIONS AND INTERPRETATION
l.l Definitions
"Account Bank" shall mean HDFC Bank Limited or any other bank appointed as the escrow agent under the Escrow Account Agreement.
"Accounting Standards" shall mean the Indian Accounting Standards (Ind-AS) I India GAAP as applicable, promulgated by the Accounting Standards Board of the Institute of Chartered Accountants of India, together with its pronouncements thereon from time to time and applied on a consistent basis.
"Additional Security" shall mean, any further Security Interest created, in accordance and I or for compliance of the tenns under this Deed and I or the Finance Documents.
"Affiliate" shall mean, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company, and in the case of a person who is a natural person, includes a relative of such person. The tenn Holding Company and Subsidiary shall have the meaning ascribed to the tenus in the Act.
"Agreed Form" shall mean a document in a fonn agreed between the Parties and initialled for the purpose of identification by or on behalf of each of them (in each case with such amendments as maybe agreed by or on behalf of the Parties).
·"Application" shall mean the application for subscription to the Debentures to be submitted by the eligible investors as per the tenus of this Deed and the relevant Issue Documents.
"Approved Instructions" shall mean the prior written instructions of the Majority Debenture Holders.
"Assets" shall mean assets or properties of every kind, nature (including shares, whether equity or preference), character and description (whether i1mnovable, movable, tangible, intangible, absolute, accrued, fixed or otherwise) as operated, hired, rented, owned or leased by a Person from time to time, including cash, cash equivalents, receivables, securities, accounts and note receivables, real estate, plant and machinery, equipment, patents, copyrights, domain names, trademarks, brands and other intellectual property, raw materials, inventory, fumiture, fixtures and insurance and shall include assets or properties comprising the Hypothecated Property and all rights, title and interests therein.
"Availability Date" shall mean in respect of tl1e Debentures the date at the end of 6 (six) months from the Deemed Date of Allotment for the Initial Tranche or such other date as maybe mutually agreed between the Issuer and the Debenture Trustee.
"Authorisation" shall mean (a) an authorisation, consent, approval, no-objection, resolution, licence, exemption, filing, notarisation or registration; and (b) in relation to anything which will be fully or partly prohibited or restricted by law or regulation if a Governmental Authority is to intervene or act in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.
"Bangalore Property" shall mean, property owned by the Issuer, situated at 1st Floor, Elecon House, BDA Site No. 850/1, Katha No. 850/1. PID No. 82-1- 850/1, 100 Feet Road, Binnamangala 1st Stage, Indiranagar, Bangalore.
"Board" shall mean the board of directors of the Issuer or the Guarantor, as the case may be.
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""Business Day" shall mean a day (other than a Saturday or a Sunday) on which scheduled commercial banks are generally open for business in Delhi, Mumbai and Anand, India"
"Business'' shall have the meaning ascribed to the tenn in Recital A hereof.
"CDSL" shall mean Central Depository Services (India) Limited.
"CIBIL" shall mean Trans Union CIBIL Limited.
"Companies Act" or "Act" shall mean the (Indian) Companies Act, 1956 to the extent the same is valid and in force or the (Indian) Companies Act, 2013, to the extent notified by the Central Govemment from time to time, as may be applicable and includes any other statutory amendment or re-enactment thereof.
"Control" shall mean (including with correlative meaning, the tenns, "Controlling", "Controlled by" and "under common Control with"), with respect to a Person (a) the legal or beneficial ownership or control (either singly or together with any other Person) of more than 50% (fifty percent) of the voting rights, voting securities or of the issued share capital of such Person; or (b) the right to appoint and/or remove (either singly or together with any other Person) all or the majority of the members of the board of directors or other goveming body of such Person; or (c) the power (either singly or together with any other Person) to direct or cause the direction of the management and/or remove all or the majority of the members of the board of directors or other governing body of such Person.
"Constitutional Documents" shall mean the articles of association and/ or memorandum of association in case of a company.
"Corporate Guarantee" shall mean the deed of corporate guarantee in Agreed Fonn to be executed on or about the date of this Deed by the Guarantor in favour of the Debenture Trustee.
"CP Completion Certificate" shall mean the written confirmation provided by the Issuer (duly signed by an authmised representative of the Issuer) to the Debenture Trustee confinning the fulfilment of the relevant conditions precedent by the Issuer.
"Credit Rating Agency'' shall mean any credit rating agency registered under Securities and Exchange Board of India (Credit Rating Agencies) Regulations, 1999, as amended from time to time.
"Debentures'' shall have the meaning ascribed to the terrn in Recital C.
"Debenture Amount" shall have the meaning ascribed to the tenn in Recital C hereof.
"Debenture Holders" shall mean Persons in whose name the Debentures are registered, who (a) in the case of Debentures held in the dematerialized fonn, shall be the person for the time being appearing in the Register of Beneficial Owners as the holder of the Debentures; and (b) in the case of Debentures held in physical fonn, the persons for the time being appearing in the Register of Debenture Holders of the Debentures, from time to time.
"Debenture Security" shall mean collectively the Security Interest created in favour of the Debenture Trustee pursuant to this Deed and the other Finance Documents.
"Debenture Trustee Agreement" shall mean the debenture trustee appointment agreement dated December 21,2018, entered into between the Debenture Trustee and the Issuer.
"Debenture Trustee Appointment Letter" shall mean the letter dated December 28, 2018 issued by the Debenture Trustee and counter signed by the Issuer accepting tenus of appointment of the Debenture Trustee to act as the trustee for the benefit ofthe Debenture Holders.
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"Debenture Trustee Regulations" shall mean the Secmities and Exchange Board of India (Debenture Trustee) Regulations, 1993, as amended from time to time.
''Debt Listing Regulations'' shall mean the Securities and Exchange Board of India (Issue and Listing of Debt Securities) Regulations, 2008, as amended from time to time.
"Deed" I "Debenture Trust Deed" shall mean this debenture trust deed, together with the Schedules, annexes hereto, as may be amended, modified or supplemented from time to time, in accordance with its tenns.
"Deed of Hypothecation" shall mean the deed of hypothecation executed/ to be executed by the Issuer to create the requisite Security Interest over moveable property in favour of the Debenture Trustee (for the benefit of the Debenture Holders).
"Deeds of Mortgage" shall mean such indentures of mortgage executed/ to be executed by the Issuer and the Guarantor, as the case maybe in favour of the Debenture Trustee (for the benefit of the Debenture Holders) to create Security Interest on the Mortgaged Property (save and except for the Bangalore Property) and the Plant and Machinery (as the case maybe).
"Deemed Date of Allotment" shall notwithstanding the actual date of allotment of the Debentures, mean the relevant Pay In Date for the Initial Tranche, or a Subsequent Tranche, as the case maybe.
"Default Interest" shall mean interest at the rate of 3% (three percent) per annum over and above the Interest Rate.
"Deliiafilfl'romissory Note" shall mean the demand promissory note to be issued by the Issuer, in terms of Clause 6.1.2 (a) (Guarantee and Other Undertakings) of Section A of this Deed.
"DSCR" or debt service coverage ratio shall mean, for any trailing 12 (twelve) Month period, the ratio arrived at by dividing the EBITDA for the period minus Taxes for the period by the aggregate of the Total Debt aud the Total Interest Expenses.
"Depository" shall mean National Depository Services Limited or Central Depository Services (India) Limited, as the case may be.
"DSRA" shall mean the fixed deposit maintained by the Issuer for an amount which is equivalent to the DSR Amount and is maintained in accordance with tbe terms of this Deed and the Escrow Account Agreement.
"DSR Amount" shall mean an amount which is equivalent to the aggregate of the Interest and Redemption Premium payable on the Outstanding Face Value for the ensuing Financial Quarter.
"EBITDA" shall mean earnings before other income, interest, taxes, depreciation and amortization.
"Encumbrance" shall mean any Security Interest, non-disposal undertaking, escrow, power of attorney (by whatever name called) securing any obligation of any Person or any other agreement or arrangement having a similar effect, option, pre-emptive right, adverse clai1n, title retention agreement, conditional sale agreement, co-sale agreement, trust (other title exception of whatsoever nature) or other encumbrance of any kind, or a contract to give or refrain from giving any of the foregoing, including any restriction imposed under applicable Law or contract, and the term "Encumber" shall be construed accordingly.
"Escrow Account" shall mean a non-interest-bearing account maintained by the Issuer with the Account Bank (and shall include all sub accounts thereto).
"Escrow Account Agreement" shall mean the escrow agreement entered/ to be entered into between the Issuer, the Debenture Trustee and Account Bank on or about the date of
(22)
this Deed, to establish and govem the operation of the Escrow Account and all subaccounts (if any) thereto.
"Equitable Mortgage' shall mean a mortgage by deposit of title deeds where pursuant to a declaration by the Directors of the Issuer, the Debenture Trustee records that a deposit of documents has occurred.
"Equity Raising Event" shall mean the raising of equity capital by the Issuer, by way of an initial public offering either through a primary issue of equity shares of the Issuer or by sale of the Issuer's shares held by the Guarantor, the Promoter and I or the Promoter Group in the secondary market or an event whereby any one or more entities, invests in a single/multiple round of investments by way of subscription to or purchase of equity shares of the Issuer and shall exclude a sale of the Issuer's shares held by the Guarantor, the Promoter and I or the Promoter Group in the secondary market that is concluded pursuant to specific written consent from the Debenture Trustee.
"Event of Default" shall have the meaning ascribed to it in Clause 9 (Events of D~(ault) of Section A and Clause 5 .1.2 (Events of Default) of Section B.
"Existing Lender(s)" shall mean the existing lenders of the Issuer and the Guarantor as and set out in Schedule Vl (Existing Lenders) to this Section A of this Deed.
"Final Maturity Date" shall mean:
(a) in relation to the Series I Debentures, the date falling at the end of 36 (thirty-six) months from the Deemed Date of Allotment of the Initial Tranche Debentures; and -~-~~- ~
(b) in relation to the Series II Debentures, the date falling at the end of 60 (sixty) months from the Deemed Date of Allotment of the Initial Tranche Debentures.
"Final Redemption Date" shall mean any date on which the outstanding Debentures have been redeemed in full and the entire amount of the outstanding Secured Obligations is paid to the Debenture Holders.
"Finance Documents" shall mean, (a) this Deed, (b) the Debenture Trustee Agreement (c) the respective Tranche Offer Document, (d) the Security Documents, (e) the Escrow Account Agreement, (f) the Demand Promissory Note, (g) the Letter of Continuity, (h) the Corporate Guarantee; (i) the Sanction Letter, and G) any other document as mutually agreed between the Debenture Trustee and the Issuer to be designated as a Finance Document
"Financial Covenants" shall have the meaning ascribed to such term in Clause 8.1.14 (Financial Covenants) of this Section A.
"Financial Indebtedness" shall mean any indebtedness for or in respect of:
(a) monies bonowed;
(b) any amount raised by acceptance under any acceptance of credit facility, bill acceptance or bill endorsement facility or dematerialized equivalent;
(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with Accounting Standards, be treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the extent sold/ discounted on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
(23) '1\ ;
(g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of auy derivative transaction, only the marked to market value shall be taken into account);
(h) shares which are expressed to be redeemable;
(i) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
Gl the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.
"Financial Quarter" shall mean each of the following periods in a calendar year, viz. January 1 to March 31, April 1 to June 30, July 1 to September 30 and October 1 to December 31.
"Financial Year" shall mean the period commencing from April 1 of one year and ending on March 31 of the immediately succeeding year.
"Governmental Approvals" shall mean any pennission, approval, consent, license, pennit, order, decree, authorization, registration, filing, notification, exemption or ruling to or from or with any Governmental Authority.
"Governmental Authority" shall mean any national, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency,. any
· ~-- siatufury-body or commission or any non-governmental regulatory or administrative authority, body or other organization to the extent that the rules, regulations and standards, requirements, procedures or orders of such authority, body or other organization have the force of Law or any court, tribunal, arbitral or judicial body, or any stock exchange.
"Guarantor" shall mean, Emtici Engineering Limited, a company registered under the Companies Act, 1956, and existing under the Companies Act, 2013, with corporate identity number U29259GJ1956PLCOOI509, and having its registered office at AnandSojitra Road, Vallabh Vidyanagar, Anand, Gujarat- 388120.
"Guarantor Shares·· shall mean such equity shares of the Issuer as are equivalent to 23.47% (twenty-three point four seven per cent) of the issued and paid-up share capital of the Issuer, on a fully diluted basis and shall include, on and from the date of release of the relevant Pennitted Security the equity shares of the Issuer, so released from the Encumbrance under the Pennitted Security.
"Guidelines" shall have the meaning ascribed to it in Clause 14.1 (Conflict Provisions) of Section B.
"Hypothecated Property" shall have the meaning ascribed to the tenn in the Deed(s) of Hypothecation executed/ to be executed by the Issuer in favour of the Debenture Trustee and shall for the avoidance of doubt include the Plant and Machinery.
"Initial Tranche'' shall have the meaning ascribed to the tenn in Recital C.
"INR" or "Rupees" shall mean Indian National Rupees.
"Interest Rate" shall have the meaning ascribed to the tenn in Clause 4(a) (Rate of Interest) of Schedule H (Terms of the Debentures) of Section A.
"Interest" shall mean the amount of interest payable on the Outstanding Face Value at the Interest Rate on each Interest Payment Date.
(24)
·'Interest Payment Date" shall mean 1 'Febmary; 1" May; F' August and 1'' November of each calendar year, and the last Interest Payment Date shall fall on the Final Maturity Date.
"Interest Period" shall mean each period detennined in accordance with Clause 4(d) (Interest Period) of Schedule II (Terms of the Debentures) of Section A of this Deed.
"ISCR" or interest service coverage ratio shall mean, in relation to the trailing 12 (twelve) Months, the ratio arrived at by dividing the EBITDA for the period by the Total Interest Expenses for the period.
''Issue Documents" shall mean the Shelf lnfonnation Memorandum, and I or Tranche Offer Documents setting out the principal tenus and conditions under which either the Initial Tranche or any Subsequent Tranche is to he issued from time to time.
"Law" shall mean any statute, Jaw, regulation, ordinance, mle, judgment, decree, by-law or approval, order or judgment of any competent authority, notification, mle of common law, governmental approval, directive, guideline, policy, requirement or other governmental restriction, or any similar form of decision of, or detennination by, or any interpretation, policy or administration, having the force of law of any of the foregoing, by any Govennnental Authority having jurisdiction over the matter in question, whether in effect as of the date of this Deed or thereafter.
"Letter of Continuity" shall mean the letter of continuity to be issued by the Issuer, in terms of Clause 6.12 (a) (Guarantee and Other Undertakings) of Section A of this Deed.
"LODR Regulations" shall mean the~~Sccmities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, as amended from time to time.
"Madhuban Property" shall mean, property owned by the Guarantor, situated at Survey Nos. 128,!29,133,134,135/3,147/1,147/2,127, 125/2, 125/1, 131, 130, 132, 136, 145, 144, 146, 153, 154p, 155p at village Magri, Anand-Sojitra Road, Vallabh Vidyanagar 388120, Gujarat.
"Majority Debenture Holders" shall mean such number of Debenture Holders collectively holding 51% (fifty one percent) or more of the Outstanding Face Value of the Debentures.
"Mandatory Redemption" sha!lmean the events described in Clause 3(c) (Mandatory Redemption) of Schedule II (Terms of Debentures) of Section A on the happening of which the Debentures shall be mandatorily redeemed in accordance with the tenns of this Deed.
"Mandatory Redemption Amount" shall mean, in respect of a Debenture, the aggregate of:
(a) the aggregate Outstanding Face Value of the Debentures;
(b) the Interest accrued on the Outstanding Face Value of the Debentures;
(c) unpaid Default Interest, if any;
(d) the Redemption Premium; and;
(e) all other costs (including any legal costs or enforcement costs), charges and expenses incmTed under or in connection with this Deed and other Finance Documents.
''Market Value" shall mean the value of the Secured Asset set out in the Valuation Report.
"Material Adverse Effect" shall mean, as of any date of detennination by the Debenture Trustee, a material and adverse effect on:
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(a) the condition (financial or otherwise), assets, operations, prospects or business of any Obligor;
(b) the ability of any Obligor to perfonn and comply with its obligations under any Finance Documents;
(c) the validity, legality or enforceability of, or the rights and remedies of the Debenture Trustee and/ or the Debenture Holders under any Finance Documents; or
(d) the validity, legality or enforceability of any Debenture Security expressed to be created pursuant to any Finance Document or on the effectiveness, priority and ranking of any such Debenture Security.
"Mauritius Merger" shall mean the amalgamation of Elecon Transmission International Limited, Mauritius; a wholly owned subsidiary of the Issuer, into the Issuer.
"Mortgaged Property" shall mean collectively the Madhuban Property, Mortgaged Property II and Mortgaged Property Ill.
"Mortgaged Property II" shall mean collectively the Rajkot Property, and the Vallabh Vidyanagar Property and any other immoveable property to be provided to secure the Secured Obligations under or pursuant to the tenns of this Deed and the Finance Documents.
"Mortgaged Property HI" shall mean collectively the Bangalore Property and any other immoveable property to be provided to secure the Secured Obligations under or pursuant t() thideniisofthisDeed and the Finance Documents.
"Net Worth" shall mean, at any time, the aggregate of the amounts paid up or credited as paid up on the issued ordinary share capital of the Issuer and the amount standing to the credit of the reserves of the Issuer, including any amount credited to the share premium account,
but deducting:
(a) any debit balance on the profit and loss account of the Issuer;
(b) (to the extent included) any amount shown in respect of goodwill or other intangible assets of the Issuer;
(c) (to the extent included) any provision for deferred taxation;
(d) (to the extent included) any amounts arising from an upward revaluation of assets made at any time after March 31, 20 18; and
(e) any amount in respect of any dividend or distribution declared, recommended or made by the Issuer and to the extent such distribution is not provided for in the most recent financial statements,
and so that no amount shall be included or excluded more than once.
"Nominee Director" shall have the meaning ascribed to the term in Clause 7.3 (Nominee Director) of Section B.
"NSDL" shall mean National Securities Depository Limited.
"Offer Letter" mean each the private placement offer letter for the Initial Tranche and each Subsequent Tranche, prepared and issued by the Issuer to the proposed subscribers of the Debentores, containing the private placement offer letter in the fonn specified pursuant to sub-rule (!) of Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014 offering, by way of private placement to the proposed subscribers of the Debentures, each Tranche of Debentures, containing the application fonn for subscription to the Debentures.
(26)
"Obligors" shall mean collectively, the Issuer and the Guarantor. "Obligor" shall be construed accordingly.
"Outstanding Face Value" shall mean, in relation to each outstanding Debenture, on any given date, such amounts of the face value of the Debenture that remains outstanding and has not been redeemed by the Issuer as on that date.
"Pay In Date" shall mean in relation to any Tranche of Debentures, the date on which the relevant Tranche Debenture Amount is credited to the Escrow Account.
"PDC(s)" shall have the meaning ascribed to the tenn in Clause 6.4 (Post Dated Cheques and Undated Cheques) of Section A of this Deed.
"Potential Event of Default" shall mean any event or circumstance which with giving of notice or lapse of time or both, would become an Event of Default.
"Permitted Indebtedness" shall mean:
(a) facilities provided by the Existing Lenders;
(b) working capital facilities in the form of cash credit facilities or in any other fonn of working capital and non-fund based facilities, that may be availed from any bank or financial institutions, in the ordinary course of the business of the Issuer for financing its regular operations; provided that availing of such working capital facility(ies) shall not result, or is not likely to result, in the breach of any of the Financial Covenants;
(c) the term debt of an aggregate amount not exceeding INR 25,00,00,000 (h1dian Rupees Twenty Five Crore) provided that the availing of such tenn debt shall not result, or is not likely to result, in breach of any of the Financial Covenants; and
(d) any other Financial Indebtedness expressly permitted by the Debenture Trustee.
"Permitted Investments" shall have the meaning ascribed to the tenn in Clause 4.5.4 (Investment of Monies) of Section B.
"Permitted Security" shall mean:
(a) the existing Security Interest created by the Issuer over assets of the Issuer (other than the Secured Assets) in favour of Existing Lenders;
(b) such Security Interest as may be created by the Issuer over assets of the Issuer (other than the Secured Assets) to secure Pennitted Indebtedness, where such Security Interest shall not in any manner affect the ability of the Issuer to maintain and/ or provide the Security Cover; and
(c) the existing Security Interest created:
(i) over 1,56,00,000 (One Crore Fifty and Fifty-Six Lakh) equity shares of the Issuer, created by the Guarantor in favour of Infrastructure Finance Company Limited, in relation to the corporate loan agreement dated October 6, 2017, for a loan oflNR 95,00,00,000 (Indian Rupees NinetyFive Crores);
(ii) over 1,12,00,000 (One Crore and Twelve Lakh) equity shares of the Issuer, created by Prayas Engineering Limited, an entity in the Promoter Group, in favour of Tata Capital Limited, in relation to the loan agreement dated February 14, 2018, for a loan of INR25,00,00,000 (Indian Rupees Twenty-Five Crores); and
(iii) over 36,00,000 (Thirty-Six lakh) equity shares of the Issuer, created by the Guarantor in favour of Aditya Birla Finance Limited, in relation to the sanction letter dated March 10, 2016, in relation to loan of INR 60,00,00,000 (Indian Rupees Sixty Crores);
(27)
"Person" shall mean any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, Hindu undivided family, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under applicable Law.
"Plant and Machinery" shall mean the plant and machinery of the Issuer, detailed in Schedule VH (Details ()(Plant and Machine1y) of Section A, situated at the factory in the Vallabh Vidyanagar Property which is currently charged to Aditya Birla Finance Limited and required to be charged in favour of the Debenture Trustee, in accordance with the tenns set out under this Deed.
"Prepayment Premium" shall mean the premium rate, calculated as a percentage of the amount being redeemed, in accordance with the tenns set out in the table below:
Within 12 months from the Deemed Date of Allotment of the Initial Tranche
Between 12-24 months from the Deemed Date of Allotment of the Initial Tranche
Between 24- 36 months from the Deemed Date of Allotment of the Initial Tranche
Between 36- 48 months from the Deemed Date of Allotment of the Initial Tranche
After 48 months from the Deemed Date of Allotment ofthe Initial Tranche
"Principal Moratorium'' shall mean:
Series I
NA
1%
1%
NA
NA
Series II
NA
NA
2.0%
1.0%
0.0%
(a) in relation to the Series I Debentures, a period of 15 (fifteen) months from the Deemed Date of Allotment of the Initial Tranche Debentures; and
(b) in relation to the Series II Debentures, a period of 36 (thirty-six) months from the Deemed Date of Allotment of the Initial Tranche Debentures.
"Promoter" shall mean Mr. Prayasvin Bhanubhai Patel, aged 60 years, and presently residing at Honest House, Bakrol Road, Vallabh Vidyanagar- 388120, Gujarat, India.
"Promoter Group" shall mean, the Persons set out under Schedule IV (Details of Promoter Group) to Section A of this Deed.
"Promoter Shares" shall mean such equity shares of the Issuer as are equivalent to 58.64% (fifty eight point six four per cent) of the issued and paid-up share capital of the Issuer, on a fully diluted basis and shall include, on and from the date of release of the relevant Pennitted Security the equity shares of the Issuer, so released from the Permitted Security.
"Purpose" shall have the meaning ascribed to the tenn in Recital B.
"Put Option Date" shall mean any date subsequent to the end of 48 (forty-eight) months from the Deemed Date of Allotment of the Initial Tranche.
"Put Option Notice" shall have the meaning ascribed to the tenn in Clause 3(d) (Put Redemption) of Schedule II of Section A.
(28)
"Put Redemption Date" shall mean the date falling on the completion of 30 (thirty)days from the date of issuance of the Put Option Notice.
"Rajkot Property" shall mean, property owned by the Issuer, situated at Survey No. 8711 & 88, Block No. 364, Village Pransla, Upleta Tehsil, District Rajkot, Gujarat and Survey No. 702, 704, 705 & 708 Paiki, Block No. 1723, Village Dhank, Upleta Taluka, District Rajkot, Gujarat.
"RBI" shall mean the Reserve Bank of India.
"Record Date" shall mean the date falling on second last Friday which is immediately prior to an Interest Payment Date or a Redemption Date, as the case may be.
"Redemption Date" shall mean in relation to a redemption under:
(a) Clause 3(a) (Scheduled Redemption) of Schedule II (Terms of Debentures) of Section A, a Scheduled Redemption Date;
(b) Clause 3(b) (Voluntary Redemption) of Schedule II (Terms of Debentures) of Section A, a Voluntary Redemption Date;
(c) Clause 3(c) (Mandatory Redemption) of Schedule II (Terms of Debentures) of Section A, the date of redemption referred to in Clauses 3(c)(i) to (iii); and
(d) Clause 3(d) (Put Redemption) of Schedule II (Terms of Debentures) of Section A, the date of redemption specified in the Put Option Notice.
"Redemption Instalment(s)" shall have_the meaning ascribed to the term in Clause 3(a) (Scheduled Redemption) of Schedule II (Terms of Debentures) of Section A.
"Redemption Premium" shall have the meaning ascribed to the term in Clause 3(e) (Redemption Premium) of Schedule II (Terms of Debentures) of Section A.
"Redemption Schedule" shall have the meaning ascribed to the term in Clause 3(a) (Scheduled Redemption) of Schedule U (Terms of Debentures) of Section A.
"Register of Beneficial Owners" shall mean the register of beneficial owners in respect of the Debentures maintained by the Depository in accordance with Section II of the Depositories Act, 1996 and the regulations made thereunder.
"Register of Debentnre Holders" means the register maintained by the Issuer at its registered office and containing the names of the Debenture Holders in accordance with the provisions of the Companies Act.
"Registrar of Companies" or "ROC" shall mean the jurisdictional registrar of companies under the Act.
"RTGS" shall mean the real time gross settlement payment system.
"Sanction Letter" shall mean the sanction letter dated February 4, 2019, indicatively setting out the terms and conditions for the Issue, as may be amended from time to time
"Scheduled Redemption Amount" shall mean, the aggregate of:
(a) the relevant Redemption Instalment;
(b) the Interest accrued on the Outstanding Face Value of the Debentures;
(c) unpaid Default Interest, if any;
(d) the Redemption Premium; and
(e) all other costs (including any legal costs or enforcement costs), charges and expenses incurred under or in connection with this Deed and other Finance Documents.
(29)
"Scheduled Redemption Date" shall mean each date set out in Schedule V (Redemption Schedule) to Section A of this Deed.
"Secured Assets" shall mean moveable, immoveable and other assets which are subject to Security Interest created in favour of the Debenture Tmstee for the benefit of the Debenture Holders according to the tenns of this Deed and other Finance Documents.
"Secured Obligations" shall mean the Redemption Instalments, Scheduled Redemption Amounts, Mandatory Redemption Amounts, Put Redemption Amounts, and the Voluntary Redemption Amonnt including all Interest (including Default Interest), Redemption Premium, Prepayment Premium and all other costs, charges, expenses and other monies payable under the Finance Documents by the Obligors in relation to the Debentures and all present and future obligations and liabilities (whether financial, perfonnance or otherwise, whether actual or contingent) of the Obligors to the Secured Parties under the Finance Documents.
"Secured Parties" shall mean the Debenture Holders and the Debenture Tmstee.
"Security Cover Ratio" shall mean, on any day, the result obtained by dividing:
(a)
(b)
the amount in Indian Rupees that is the aggregate Market Value of the Secured Assets
the amom1t in Indian Rupees that is the sum of (i) the aggregate of the Outstanding Face Value of the Debentures; and (ii) Redemption Premium payable on outstanding Debentures and (ii) the aggregate amount of Interest payable in
-· ---~ --respect of the outstanding Debentures for that Interest Period; ----- ·-
multiplied by 100.
"Security Documents" shall mean and include:
(a) the Deed of Mortgage in relation to the Madhuban Property;
(b) the Deed of Mortgage in relation to the Rajkot Property;
(c) the Deed of Mortgage in relation to the Vallabh Vidyanagar Property
(d) the documents evidencing Equitable Mortgage in relation to the Bangalore Property;
(e) the Deed of Hypothecation or Deed of Mortgage in relation to the Plant and Machinery;
(f) the Deed of Hypothecation in relation to the DSRA, the Escrow Account and the relevant fixed and current assets of the Issuer; and
(g) all such documents pursuant to which Security Interest has been or will be created in favour of the Debenture Tmstee acting on behalf and for the benefit of the Debenture Holders under or pursuant to the Finance Documents and the powers of attomey (if any) provided by the relevant Obligor in favour of the Debenture Trustee in relation to the foregoing.
"Security Interest" shall mean the mortgage, pledge, hypothecation, assignment, deposit anangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever securing any obligation of any Person including, without limitation, any arrangement under which money or claims to money, or the benefit of, a bank or other account may be applied, set off or made subject to a combination of accounts so as to effect discharge of any sum owed or payable to any Person and any conditional sale or other title retention agreement, any financing or similar statement or notice filed under any recording or notice statute, and any lease having substantially the same effect as any of the foregoing.
"Series I Debentures" shal1 have the meaning ascribed to the tenn in Recital C(i);
llv (30)
"Series n Debentures" shall have the meaning ascribed to the tenn in Recital C(ii);
''Shelf Information Memorandum" shall mean the information memorandum for private placement of Debentures for an aggregate nominal value of the Debenture Amount in multiple Tranches containing tbe disclosures in accordance with the Act, and the Debt Listing Regulations and to be updated on a semi-mmual basis calculated from the Deemed Date of Allotment for the Initial Tranche and, if necessary, in tenns of the applicable Law, prior to each Subsequent Tranche.
"Successor Trustee" shall have the mem1ing ascribed to it in Clause 7.10.2 of Section B.
"Tax" or "Taxes" shall include without limitation all taxes (Indian and where applicable non-Indian), including without limitation, income tax, withholding tax, dividend distribution tax, capital gains tax, fringe benefit tax, sales tax, customs duty, wealth tax, gift tax, excise duty, service tax, payroll tax, occupation tax, recording, value added or transfer taxes, governmental charges, fees, levies or assessments or other taxes, levies, fees, stamp duties, statutory gratuity and provident fund payments or other employment benefit plan contributions, withholding obligations and similar charges of any jurisdiction and shall include any interest, fines, and penalties related thereto and, with respect to such taxes, any estimated tax, interest and penalties or additions to tax and interest on such penalties and additions to tax.
"Terms of the Debentures" shall mean the terms and conditions for the Debentures set out in Schedule II (Terms of the Debentures) of Section A of this Deed.
"Total Debt" shall mean at any time the aggregate amount of Financial Indebtedness of the Issuer.
"Total External Debt" shall mean at any time the aggregate amount of all fund-based Financial Indebtedness of the Issuer availed from Persons other than the Guarantor, the Promoter, and/ or the Promoter Group, without any double counting.
'Total Interest Expenses" shall mean all interest, coupon, charges, and redemption premia payable by the Issuer on any Financial Indebtedness.
"Tranche" shall have the meaning ascribed to the term in Recital D.
"Tranche Debenture Amount" shall mean the aggregate amount proposed to be raised through the issuance of the relevant Tranche.
"Tranche Offer Document" shall mean the infonnation memorandum for private placement of Debentures in relation to either the Initial Tranche or Subsequent Tranches containing the disclosures in accordance with the Act, and the Debt Listing Regulations and the relevant Offer Letter.
"Trust Property" shall mean the amount mentioned in Clause 1.1 of Section B and all other Debenture Security created by the Issuer and any Obligor under or pursuant to any Finance Documents, all of the Debenture Trustee's rights under and pursuant to this Deed and the Finance Documents and all sums received by the Debenture Trustee under or pursuant to this Deed or any Finance Documents (save for any sums received solely for its own account), all monies received by it out of, whether prior to or as a result of enforcement of the Debenture Security created hereunder or under any Finance Documents or the exercise of rights and remedies under this Deed or any Finance Documents.
"UDC(s)" shall have the meaning ascribed to the term in Clause 6.4 (Post Dated Cheques and Undated Cheques) of Section A of this Deed.
"Valuation Report" shall mean, the valuation report prepared to detennine the true market value of the Secured Assets, by such Person as may be acceptable to the Debenture Trustee.
(31)
"Val!abh Vidyanagar Property" shall mean land owned by the Issuer, located at (i) bearing Survey No.371/2 total admeasuring H. 0-30-35 ARE Paiki H. 0-15-17 ARE, within limits of village Karamsad, taluk and district, Anand, (ii) Survey No.ll3 total admeasuring H. 1-18-92 ARE, within limits of village Mogari, taluk and district, Anand and (iii) Survey No.ll4/Paiki total admeasuring H. 22-72-30 ARE Paiki H. 12-38-32 ARE, within limits of village Mogari, taluk and district, Anand.
"Voluntary Redemption'" shall have the meaning ascribed to tenn under Clause 3(b)(i) (Voluntary Redemption) of Schedule II (Terms of the Debentures) of Section A.
"Voluntary Redemption Amount" shall mean, in respect of a Debenture, the aggregate of:
(a) the aggregate Outstanding Face Value of the Debentures;
(b) the Interest accrued on the Outstanding Face Value of the Debentures;
(c) unpaid Default Interest, if any;
(d) the Redemption Premium;
(e) the applicable Prepayment Premium; and;
(f) all other costs (including any legal costs or enforcement costs), charges and expenses incurred under or in connection with this Deed and other Finance Documents.
"Voluntary Redemption Date" shall have the meaning ascribed to the tenn in Clause 3(b) ("Vo1im(ilry Redemption) of Schedule U (Terms of Debentures) of Section A.··· . · ··· ·---~·
"Voluntary Redemption Notice" shall have the meaning ascribed to term under Clause 3("b )(ii) (Voluntmy Redemption) of Schedule II (Terms oft he Debentures) of Section A.
"XIRR" shall mean the internal rate of return for a schedule of cash flows on an annual basis (excluding any Default Interest, fees and/or costs payable under the Finance Documents), calculated using the Microsoft Excel, 2010 XIRR function (or if such program is no longer available, such other software program for calculatiug internal rates of return as detennined by the Debenture Trustee.
1.2 Other Terms
Other tenns may be defined elsewhere in the text of this Deed and, unless otherwise indicated, shall have such meaning throughout this Deed.
1.3 Interpretation
1.3.1 Unless the context of this Deed otherwise requires;
(a) Words using the singular or plural number also include the plural or singular number, respectively;
(b) Words of any gender are deemed to include the other gender; and
(c) Reference to the word "include .. shall be construed without limitation.
1.3.2 The terms "hereof', "herein", "hereby", "hereto" and derivative or similar words refer to this entire Deed or specified Clauses or Schedules of this Deed, as the case may be.
1.3.3 The tenn "'Clause" refers to the specified Clause in Section A or Section B of this Deed.
1.3.4 Any reference to any statute or statutory provision shall include;
(a) All subordinate legislations made from time to time under that provision (whether or not amended, modified, re-enacted or consolidated from time to time) and any retrospective amendment; and
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(b) Such provision as from time to time amended, modified, re-enacted or consolidated (whether before or after the date of this Deed) to the extent such amendment, modification, re-enactment or consolidation applies or is capable of applying to the transaction entered into under this Deed and (to the extent liability there under may exist or can arise) shall include any past statutory provision (as amended, modified, re-enacted or consolidated from time to time) which the provision referred to has directly or indirectly replaced.
1.3.5 References herein to any agreement or document shall include such agreement or document as amended, modified or supplemented from time to time.
1.3.6 The Schedules hereto shall constitute an integral part of this Deed.
1.3. 7 The index bold typeface, headings and titles herein are used for convenience of reference only and shall not affect the construction of this Deed.
1.3.8 Any word or phrase defined in the body of this Deed as opposed to being defined in paragraph 1.1 of, Schednle I of Section A shall have the meaning assigned to it in such definition throughout this Deed (whether in Section A or Section B of this Deed), unless the contrary is expressly stated or the contrary clearly appears from the context.
1.3.9 If any provision in paragraph 1.1 of, Schedule I of Section A is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive provision in the body of this Deed.
1.3.10 Time is of the essence in the performance of the Parties' respective obligations. If any time period specified herein is extended, such extended time shall also be of the essence. When any number of days is prescribed herein, the same shall be reckoned exclusively of the first and inclusively of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding day which is a Business Day.
1.3.11 References to a Party shall, where the context pennits, include such Party's respective successors, legal representatives and pennitted assigns.
1.3.12 No rule of construction or interpretation shall apply to the disadvantage or detriment of the Party having control or being responsible for the preparation of this Deed.
1.3.13 The perfonnance of the obligations of each of the Parties to this Deed is subject to and shall be perfonned in accordance with the applicable Law.
1.3 .14 All notices, demands, consents, approvals, disclosures or other communication required or pennitted to be given or made under this Deed, shall be in writing. It is further clarified that where any provision of this Deed refers to the Approved Instructions, the reference is to consent provided or to be provided in writing (unless a resolution is duly passed by the Debenture Holders with requisite majority at a meeting of the Debenture Holders); and (b) Debenture Tmstee, the reference is to consent provided or to be provided in writing. "Writing", "written" and comparable tenns refer to printing, typing and other means of reproducing words (including electronic media) in a visible fonn.
1.3.15 In case of any conflict or ambignity amongst the provision of Section A and Section B of this Deed, the provisions of Section A shall prevail.
1.3 .16 In the event of any disagreement or dispute between the Debenture Trustee and the Issuer regarding the materiality of any matter including any event, occurrence, circumstance, change, fact, information, document, authorisation, proceeding, act, omission, claims, breach, default or otherwise, the opinion of the Debenture Trustee (acting on the Approved Instructions) in relation to the materiality of any of the foregoing shall be final and binding on the Issuer.
1.3.17 Unless the contrary intention appears, a reference to a "month" or ·'months" is a reference to a period starting on .?ne day in a calendar month and ending on the numerically corresponding day in theriext calendar month or the calendar month in which it is to end,
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except that if there is no numerically corresponding day in that month, that period will end on the last day in that month.
1.3 .18 All references made to the act, deed or thing done or to be done by the Debenture Trustee under this Deed or any of the Finance Documents shall be done I carried out by the Debenture Trustee on the Approved Instructions of the Debenture Holders unless otherwise stated herein or required in tenns of any applicable Law. All acts done or refrained to be done by the Debenture Trustee under this Deed or any other Finance Documents shall be done for the benefit of and on behalf of the Debenture Holders.
1.3.19 Any reference in this Deed to any "Debenture Holder'', the "Issuer'', the "Debenture Trustee" or any "Party" shall be construed so as to include its successors in title, pennitted assigns and pennitted transferees.
1.3.20 Any reference to 'listing' or 'listed' in this Deed or the other Finance Documents shall refer to listing of the Debentures on the wholesale debt market segment of the Bombay Stock Exchange.
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SCHEDULE II
TERMS OF THE DEBENTURES
1. STATUS
The Debentures constitute direct, unconditional, unsubordinated and secured obligations of the Issuer and shall at all times rank pari passu inter se without any preference or priority of one over the other. The Debentures shall at all times rank above all other present and future direct, unconditional, unsubordinated and unsecured obligations of the Issuer (save for such exceptions as may be provided by mandatory provisions of applicable Law).
2. LISTING OF DEBENTURES
A. The Issuer shall take all steps for completion of the fom1alities for listing and commencement of trading on the wholesale debt market segment of BSE Limited where the Debentures are to be listed by no later than 20 (twenty) days from the Deemed Date of Allotment of each Tranche.
B. In case any Debentures are not listed within 20 (twenty) days of the applicable Deemed Date of Allotment for any reason whatsoever, the Issuer shall reimburse such relevant Debenture Holders for all accrued interest (at the rate of 1% (one percent) per annum over the Interest), along with all costs and expenses, until such Debentures are listed to the satisfaction of the Debenture Trustee.
C. Upon a failure by the Issuer to list"the Debentures beyond 20 (twenty) days from each Deemed Date of Allotment , the Debenture Trustee shall have a right to call an Event of Default and require the Issuer to reimburse such relevant Debenture Holders all the Secured Obligations including all accrued Interest, Default Interest, if any, costs and expenses payable under the Finance Documents(including liquidity costs), as determined by each such Debenture Holder that such Debenture Holder may have incurred in connection with the investment in the Debentures.
3. REDEMPTION
(a) Scheduled Redemption
(a) Series I Debentures (if outstanding) shall be mandatorily redeemed in full by the Issuer in 7 (seven) equal quarterly instalments (each a "Redemption Instalment I"), by payment of the Scheduled Redemption Amount, on the relevant Scheduled Redemption Date, commencing at the end of the relevant Principal Moratorium.
Series l1 Debentnres (if outstanding) shall be mandatorily redeemed in full by the Issuer in 8 (eight) equal quarterly instalments (each a "Redemption Instalment U"), by payment of the Scheduled Redemption Amount, on the relevant Scheduled Redemption Date, commencing at the end of the Principal Moratorium.
(b) Redemption Instalment I and Redemption Instalment II shall collectively be referred to as "Redemption Instalment(s)"; and the schedule of payments of the Redemption Instalments on the relevant Schednled Redemption Dates set out in Schedule V to Section A of this Deed, shall be referred to as the "Redemption Schedule".
Each payment of a Redemption Instalment shall result in the proportional reduction in the Outstanding Face Value of the Debentures.
In case of Mandatory Redemption, Put Redemption and I or Voluntary Redemption, if the amounts paid by the Issuer result in partial redemption of the Debentures, the amount redeemed
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by the Issuer shall be reduced from the forthcoming Redemption Instalments and the Redemption Schedule shall be revised accordingly by the Debenture Trustee and the Issuer shall be infonned of such revision in the Redemption Schedule. Such revised redemption schedule shall replace the existing Redemption Schedule.
(b) Voluntary Redemption
(i) Notwithstanding anything to the contrary contained herein, upon the expiry of 12 (twelve) Months for Series I Debentures and 24 (twenty-four) Months from Series II Debentures from the Deemed Date of Allotment of the Initial Tranche, and subject to applicable Law, the Issuer, at its option, may redeem all or part of the aggregate Outstanding Face Value, on a pro rata basis from each of the Debenture Holders by payment of the Vohmtary Redemption Amount on the Voluntary Redemption Date (each a "Voluntary Redemption"). Provided that any such Voluntary Redemption Amount shall first be applied towards redemption of the outstanding Series I Debentures in full and thereafter towards redemption of the outstanding Series II Debentures.
(ii) The Issuer may exercise the right of Voluntary Redemption only on an Interest Payment Date and shall provide the Debenture Trustee (who shall intimate the Debenture Holders) with a notice of at least 60 (sixty) days prior to the proposed date of any Voluntary Redemption ("Voluntary Redemption Notice"). Such Voluntary Redemption Notice shall contain, amongst others, the following infonnation:
·----- ·-· (A)
(B)
the proposed date of the Voluntary Redemption ("Voluntary Redemption Date"); and
the amount that will be paid on such Voluntary Redemption Date, provided that no Voluntary Redemption shall be less than an amount of Rs. 1,00,00,000 (Rupees One Crore).
(iii) Any Voluntary Redemption Notice shall be irrevocable and a failure to redeem the Debentures set out under a Voluntary Redemption Notice will be an Event of Default
(iv) If the Debenture Holders receive a Voluntary Redemption Notice, the Debentures held by them shall be partially or fully redeemed in accordance with the tenus of the Voluntary Redemption Notice by payment of the Voluntary Redemption Amount calculated up to the Voluntary Redemption Date.
(c) Mandatory Redemption
(i) If it becomes unlawful for the Debenture Holders to perfonn any of their obligations as contemplated by this Deed, the Debenture Trustee shall notify the Issner npon becoming aware of such event and the Debenture Holders shall require the Issuer to mandatorily redeem all the Debentures on the last day of the Interest Period occurring after the Debenture Trustee has notified the Issuer or, if earlier, the date specified by the Debenture Trustee in the notice delivered to the Issuer (being no earlier than the last day of any applicable grace period permitted by applicable Law) by payment of the Mandatory Redemption Amount calculated up to the aforementioned date of redemption.
(ii) Upon the occurrence of an Equity Raising Event by the issuer, the Issuer shall infonn the Debenture Trustee of such Equity Raising Event within I (one) day thereof, and the Debenture Trustee may, by a prior notice to the Issuer of at least 15 (fifteen) days, require the Issuer to mandatorily redeem the outstanding Debentures by payment of the Mandatory Redemption Amount calculated up to
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the relevant Redemption Date specified in the aforementioned notice (issued by the Debenture Trustee to the Issuer).
(iii) In the event that the Issuer fails to get the Debentures listed on the concerned stock exchange within 20 (twenty) days from the relevant Deemed Date of Allotment in accordance with paragraph 2 (Listing of Debentures) of Schedule II (Terms of the Debentures) of Section A of this Deed, the Issuer shall forthwith mandatorily redeem all outstanding Debentures upon receiving a notice from the Debenture Trustee seeking such redemption by payment of the Mandatory Redemption Amount within 5 (five) Business Days of the date of receipt of such notice.
(iv) In case the Debenture Holders exercise their option of mandatory redemption under sub clause (i), (ii) and (iii) of this Clause, the Issuer shall not be liable for payment of Prepayment Premium.
(d) Put Redemption
(e)
The Debenture Trustee (acting on the Approved Instructions) shall on any Put Option Date, subject to providing prior written notice of at least 30 (thirty) days to the Issuer, ("Put Option Notice"), have the right to require the Issuer to make a full redemption of all or part the Debentures to the Debenture Holders by making a payment of the Mandatory Redemption Amount calculated up to the Put Redemption Date.
Redemption Premium
The Issuer shall, on the relevant Redemption Date, pay such premium on the Outstanding Face Value of the Debentures (collectively referred to as "Redemption Premium"):
(i) in relation to the Series I Debentures, such that the aggregate amount paid upon redemption of the relevant Debentures results in a XIRR of 13.41% (thirteen point four one per cent) over the face value of the Debentures being redeemed; and
(ii) in relation to the Series II Debenh1res, such that the aggregate amount paid upon redemption of the relevant Debentures results in a XIRR of 16.77% (sixteen point seven seven per cent) over the face value of the Debentures being redeemed.
4. INTEREST
(a) Interest & Rate of interest
The Interest on the Debentures shall be payable at the rate of 12.25% (twelvepoint two five percent) per annum, compounded monthly, for both Series I Debentures and Series II Debentures to be computed on the basis of actual I actual convention ("Interest Rate"), and payable on the Interest Payment Dates.
(b) Payment of interest
The Issuer shall pay accrued Interest on the Debentures on each Interest Payment Date. For the avoidance of doubt, the first Interest Payment Date shall fall on 1May, 2019 and the last Interest Payment Date shall fall on the Final Maturity Date.
Interest shall be paid by the Issuer without any deductions other than statutory withholding taxes, if any. Any levies or taxes on the principal repayments shall be grossed up such that the Debenture Holders receive the same amount as if no such deduction had been applied.
(c) D~fault Interest
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Upon occun-ence of an Event of Default, without prejudice to the other rights of the Debenture Trustee, Default Interest shall be payable by the Issuer on the entire outstanding Debenture Amount. Additionally, in the event of noncompliance of any of the conditions mentioned under Part B (Conditions Subsequent) of Schedule HI of Section A of this Deed, within the timelines as mentioned therein, without prejudice to the other rights of the Debenture Trustee, Default Interest shall be payable by the Issuer on the entire outstanding Debenture Amount (including Interest). The Default Interest will be payable for the period from the date of occun-ence of the Event of Default and I or noncompliance with any of the conditions mentioned under Part B (Conditions Subsequent) of Schedule HI of Section A of this Deed, till such time it is continuing and has not been waived or cured. Any Default Interest accruing under this paragraph (c) shall be immediately payable by the Issuer on demand by the Debenture Trustee or if not demanded then on the immediately falling Interest Payment Date. The Debenture Trustee shall not be obliged to provide any notice to the Issuer before levying the Default Interest. The Debenture Trustee acting upon the instructions of the Majority Debenture Holders shall have the power to waive any Default Interest. The Issuer acknowledges that any Default Interest or any other amount payable under this Deed is not a penalty and is reasonable.
(d) Interest Periods
(i) Each Interest Period (other than the first Interest Period) for the Debentures shall start on the day following the last day of the preceding Interest Period and end on the next Interest Payment Date. Further; the Interest Payment Date for the last Interest Period shall be the Final Maturity Date.
(ii) The Issuer acknowledges that any Default Interest or any other amount payable under this Deed is not a penalty and is reasonable.
(iii) The Interest, Default Interest, and/ or any other payments shall be paid in full, excluding any tax deducted at source (TDS).
5. PAYMENTS
The Issuer shall maintain the Register of Debenture Holders in accordance with applicable Law. For the said purpose, the Issuer shall request the registrar and transfer agent to provide a list of Debenture Holder(s) as on the Record Date and the payment of the Redemption Instalments, all Interest and other monies will be made to the sole Debenture Holder and in case of joint holders to the one whose name stands first in Register of Debenture Holders/Register of Beneficial Owners on the Record Date. All payments by the Issuer under the Finance Documents shall be made free and clear of all present and future taxes, levies, imposts, charges, deductions and withholdings of whatsoever nature except Income Tax.
6. SECURITY
The Secured Obligations, including remuneration of the Debenture Trustee, Account Bank, all fees, costs, charges, expenses and other monies payable by the Obligors in respect thereof shall be secured by the Debenture Security created or to be created under or pursuant to the Finance Documents.
7. SECURITY COVER
The Issuer shall during the currency of the Debentures maintain a minimum-Security Cover Ratio of 1 .Sx (one point five times) of the Secured Obligations.
8. TRANSFER OF DEBENTURES
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(a) The Debentures shall be freely transferable and transmittable by the Debentnre Holders in whole or in part without the prior consent of the Issuer. The Issuer shall be bound by the tenns of this Deed to the Debenture Holders and their subsequent transferees and assignees without any further act from the Debenture Holders. Further, the Debenture Holders and I or the Debenture Trustee shall also have the right to novate, transfer or assign their rights and/or the benefits under the other Finance Documents upon such transfer I transmission of the Debentures, in accordance with the tenns of this Deed.
(b) The Issuer shall provide full cooperation and assistance, as may be required by the Debenture Holders and/ or the Debenture Trustee, to complete the fonnalities for such transfer, including but not limited to, executing such documents as may be required by the Debenture Holders and/or the Debenture Trustee in its sole discretion.
(c) It is clarified that without prior Approved Instructions, the Issuer shall not be entitled to assign any of the rights, duties or obligations under this Deed or under any other Finance Documents.
In this Clause 8:
(a) Definitions
Tax Deduction" shall mean a deduction or vdthholding for or on account of Tax from a payment under any Transaction Document.
In this Clause 8 a reference to·"'determines" or "determined'' shall mean a determination made in the absolute discretion of the person making the determination.
(b) Tax Deduction
(i) The Issuer shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by applicable Law.
(ii) If the Issuer is required to make a Tax Deduction, the Issuer shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by applicable Law.
A. Within the timelines as provided under the applicable Law (without letting any penalty being levied) of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Issuer shall deliver to the Debenture Trustee evidence satisfactory to the Debenture Trustee including all relevant Tax receipts I Tax deduction certificates in originals that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. Such certificate should be issued directly in the names of the Debenture Holders. The Issuer shall provide the TDS certificates within 2 (two) months from the end of each Financial Quarter evidencing that the Tax Deduction has been made.
B. In the event that a Debenture Holder is entitled by virtue of any applicable Law or bilateral tax treaty to receive amounts at a lower rate of tax withholding, such Debenture Holder will provide evidence thereof to the Issuer who will then deduct Tax at such lower rate.
9. VARJATION OF DEBENTURE HOLDERS RIGHTS
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The rights, privileges, tenus and conditions attached to the Debentures may be varied, modified or abrogated with an instruction of the Debenture Holders acting pursuant to a Majority Resolution.
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SCHEDULE HI
PART A
CONDITIONS PRECEDENT
I. Conditions Precedent to the Initial Tranche
1. Corporate Documents
(a) The Issuer shall provide documents and/ or satisfy the conditions mentioned below:
(i) A certified ttue copy of the Constitutional Documents of the Issuer together with the certificate of incorporation issued by the ROC.
(ii) Certified true copies of the resolutions passed by its shareholders under Section !80(!)(a) and Section 180(1)(c) of the Companies Act.
(iii) A certified l!ue copy of the resolutions of the Board of the Issuer:
A. approving the tenns of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it shall execute the Finance Documents to which it is a party;
B. authorizing the creation of Security Interest over contemplated by the Security Documents, to secure the Debentures;
C. authorising the appointment of the various intennediaries such as Debenture Trustee, registrar .and transfer agent, ete.;
D. authorising the opening of bank account for receipt of Debenture Amount or any other bank account necessary for the issue;
E. authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
F. authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
(iv) A copy of the special resolution passed by the shareholders of the Issuer] approving the private placement of the Debentures under Section 42 of the Companies Act read along with Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014.
(v) Evidence of filing of fonn the board resolution/ special resolution in Fonn MGT 14 with the relevant Registrar of Companies prior to issuance of the Offer Letter, within the timelines specified under the applicable Law.
(vi) The Agreed Fonn of the amendment of the Issuer's Constitutional Documents for the purpose of incorporating the provisions of the Finance Documents, in accordance with the applicable Law, shall be submitted to the Debenture Trustee.
(b) The Issuer shall ensure that the Guarantor provides documents and/ or satisfies the conditions mentioned below:
(i) A certified true copy of the Constitutional Documents of the Guarantor together with the certificate of incorporation issued by the ROC.
(ii) Certified true copies of the resolutions passed by its shareholders under Section of 185 and 186, of the Act, if required.
(iii) A certified true copy of the resolutions of the Board of the Guarantor:
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A. approving the tenns of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it shall execute the Finance Documents to which it is a party;
B. authotizing the creation of Security Interest over contemplated by the Security Documents, to secure the Debentures;
C. authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
D. authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed andlor despatched by it under or in connection with the Finance Documents to which it is a party.
2. Finance Documents
(a) Execution of the following Finance Documents in a fom1 and manner satisfactory to the Debenture Trustee:
(i) this Deed;
(ii) the Debenture Trustee Agreement
(iii) the Deed of Mortgage in relation to the Madhuban Property;
(iv) the Escrow Account Agreement;
(v) the Deed of Hypothecation;
(vi) the Sanction Letter; and
(vii) the Corporate Guarantee.
(b) Issuance of the relevant Issue Documents for the Initial Tranche.
3. Security Creation
(a) A certificate from an independent practicing-chartered accountant in relation to the Issuer confirming that:
(i) issuance of the Debentures and securing the obligations of the Issuer under the Finance Documents would not cause any borrowing, security or similar limit binding on the Issuer to be exceeded;
(ii) the value of the Debenture Security to be created is sufficient to attain the Security Cover Ratio of 1.50x; and
(iii) any Taxes or other sums due and payable by the Issuer to the Government oflndia, have been paid;
(iv) other than those disclosed to the Debenture Trustee, there are no proceedings pending and/or initiated and/or threatened against the Issuer for or on account of any Taxes or any other sums, which may be due and payable by the Issuer to the Govenunent of India, under the provisions of Section 281 ofthe (Indian) Income-tax Act, 1961;
(v) that the Secured Assets on which Security Interest is being created by the Issuer pursuant to the Security Documents are un-encumbered other than the existing charges on the fixed (moveable) and current assets of the Issuer in favour of the Existing Lenders;
(b) A certificate from a director of the Issuer certifying/confmning that:
(i) each copy document specified in this Part A (Conditions Precedent) of Schedule III of Section A and relating to the Issuer is correct, complete
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and in full force and effect as at a date no earlier than the date of this Deed and the date of the certificate
(ii) there are no restrictions on the borrowing powers of the Issuer as per its Constitutional Documents and corporate authorizations and it is authorized to raise debt in accordance with the provisions of the Companies Act;
(iii) no Material Adverse Effect has occurred;
(iv) there is no pending or threatened litigation, investigation or proceeding that may have a Material Adverse Effect;
(v) there are no defaults in any material contract to which the Issuer is a party that may have a Material Adverse Effect;
(vi) representations and warranties set out in this Deed are true and correct in all respects;
(vii) no Event of Default has occurred and is continuing or might be reasonably expected to result from 1he issuance of 1he Debentures;
(viii) all Authorisations or other documents, opinion or assurance which the Debenture Trustee considers to be necessary or desirable (in connection with the entry into and performance of the transactions) contemplated by any Finance Documents (to which it is a party) or for the validity and enfmceability of any FinancecDocuments (to which.it is a party) has been obtained; and
(ix) all Taxes, statutory dues, including without limitation, statutory dues under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 have been duly paid by the Issuer to the satisfaction of the Debenture Trustee.
(c) Procure 1hat the Guarantor shall provide a certificate issued by an independent practicing-chartered accountant certifying that:
(i) any Taxes or other sums due and payable by the Guarantor to the Goverrunent oflndia, have been paid;
(ii) other than those disclosed to the Debenture Trustee, there are no proceedings pending and/or initiated and/or threatened against the Guarantor for or on account of any Taxes or any other sums, which may be due and payable by the Guarantor to 1he Government of India, under the provisions of Section 281 of the (Indian) Income-tax Act, 1961 or under any other act or provision for the time being in force;
(iii) that the value of the Debenture Security is sufficient to meet the payment of the Redemption Instalments and the Interest; and
(iv) that the Madhuban Property on which Security Interest is being created pursuant to the relevant Security Documents is un-encumbered;
(d) Title opinion report of a duly licensed advocate certifying the title of the Guarantor to the Madhuban Property.
(e) Valuation Report of the Madhuban Property in a form and manner acceptable to the Debenture Trustee.
(f) Creation and perfection of Security Interest over the relevant assets in the manner set out in Clause 6 (Security and Guarantee) of Section A.
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4. Other Documents and Evidence
(a) A copy of the audited Financial Statement of the Obligors has been delivered to the Debenture Trustee.
(b) A certificate from a practicing independent chartered accountant certifying the current net wo1ih of the Issuer and the Guarantor.
(c) Evidence that the fees, costs and expenses (including legal fees and expenses) then due from each of the Obligors pursuant to the Finance Documents have been paid.
(d) Evidence that the Issuer has appointed the Debenture Trustee in tenns of the duly executed Debenture Trustee Agreement.
(e) Evidence to the satisfaction of the Debenture Trustee that Issuer has established the Escrow Account, in accordance with the terms of the Finance Documents.
(f) Such other documents the Debenture Trustee may reasonably require from, and which have been notified to the Obligors as being necessary to comply with their respective "know your customers" requirements including but not limited to, a copy of the PAN cards of the Guarantor and the authorised signatories of the Issuer.
(g) Completion of all due diligence required in respect of the Issuer and the Guarantor.
~ (h)- .Bubmission of a signed limited due diligence report from I. Sagar Associates, the ~ --legal counsels to the Debenture Trustee, to the satisfaction of the Debenture Trustee.
(i) Submission of an executed signed copy of the Sanction Letter by the Issuer.
Gl PDCs and UDC in the manner provided under Clause 6.4 (Post Dated Cheques and Undated Cheques) of Section A in respect of the Initial Tranche.
(k) Submission by the Issuer of the Demand Promissory Note and Letter of Continuity
(1) Evidence that the Issuer has appointed the registrar and transfer agent in tenns of the registrar and transfer agent appointment agreement.
(m) Receipt of in-principle listing approval from the relevant stock exchange.
(n) Intimation of the board meeting to be held to approve the issue of the Debentures to the stock exchange(s) where the Issuer is listed, as required by the LODR Regulations.
(o) Certified true copy of the signature I incumbency ce1iificate provided by the Issuer setting out the specimen signatures of each person authorized by the Issuer's board and shareholders' resolutions mentioned in Items (A) above.
(p) Submission of completed master creation fonn with NSDL/CDSL for generation of!SIN.
(q) Confinnation of receipt of an !SIN Number from CDSL/NSDL in relation to the issuance of the Debentures in dematerialised form.
(r) Submission of updated register of charges maintained by the Issuer as per the provisions of the Act.
(s) A legal opinion from the counsel to the Debenture Trustee in the fonn and manner acceptable to the Debenture Trustee.
(t) Application for no objection certificates from the following Existing Lenders of
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the Issuer, in a fonn and manner acceptable to the Debenture Trustee, for issuance of Debentures, and creation of Security Interest set out under Clause 6.1. 1 (f) and (g) (Security Interest):
(i) IDBI Bank Limited;
(ii) Bank of Baroda;
(iii) Aditya Birla Finance Limited; and
(iv) Axis Bank Limited.
(u) No objection certificate obtained by the Guarantor from Axis Bank Limited, in a fonn and manner acceptable to the Debenture Trustee for provision of the Corporate Guarantee.
(v) In relation to the Security Interest set out under Clause 6.Ll (a) (Security Interest) of Section A of this Deed:
(i) Copy of the prepayment notice submitted by the Guarantor to the State Bank of India in relation to the loan secured by the Madhuban Property;
(ii) Copy of the 'no dues certificate' in a form and manner acceptable to the Debenture Trustee stating that the outstanding amounts under the loan referred to in (i) above has been paid in full;
(iii) Copy of the fonn CHG-4 submitted to the Registrar of Companies in relation to the satisfaction of the existing Encumbrance on the Madhuban Property and the challan ev!dencingreceipt of such fonn CHG-4;
(iv) Evidence of registration of the Deed of Mortgage executed in relation to the Madhuban Property at the relevant Sub Registrar of Assurances.
(w) Certified true copy of the credit rating letter for the Debentures evidencing a rating of 'A-' from any Credit Rating Agency (acceptable to the Debenture Trustee).
(x) Copy of the tripartite agreement between the Issuer, its registrar and transfer agent and NSDL and CDSL in relation to the Debentures.
(y) Copy of the intimation letters acknowledged by the following Existing Lenders of the Issuer with respect to proposed boJTowing and/or proposed creation of Security Interest in respect of the Debentures:
(i) HDFC Bank Limited; and
(ii) the State Bank oflndia.
(z) Any other condition which any of the advisors and I or consultants appointed by the Debenture Trustee and I or Debenture Holders may recommend based on the due diligence conducted, in tenus of this Deed.
H. Conditions Precedent to the Subsequent Tranches
1. Issuance of the relevant Tranche Offer Document to the proposed subscribers of the Debentures in accordance with applicable Law and submission of application by the subscribers for subscription to the relevant Tranche.
2. PDCs in the manner provided under Clause 6.4 (Post Dated Cheques and Undated Cheques) of Section A in respect of the relevant Subsequent Tranche.
3. Certificate of the director of the Issuer confinning that no Event of Default has occurred and all conditions precedent for the relevant Tranche and conditions subsequent required to be complied with as on such date have been complied with.
(45)
4. Certificate having been obtained from a practicing chartered accountant of the Issuer certifying that (i) the proceeds arising out of the Initial Tranche have been utilised in the manner set ont in Clause 2.2 and Clause 2.3 of Section A of this Deed in a fonn and manner satisfactory to the Debenture Trustee, and (ii) the Security Cover Ratio as required under Clause 7 (Security Cover) of Schedule II of Section A is maintained.
5. Creation and perfection of Security Interest over the relevant assets in the manner set out in Clause 6 (Security and Guarantee) of Section A to meet and satisfy the requirements of the applicable Security Cover Ratio in tenus of this Deed
6. Title opinion of a duly licensed advocate certifying the title of the Issuer over Mortgaged Property II.
7. Valuation Report with respect to the Mortgaged Property II in a form and manner acceptable to the Debenture Trustee.
8. Execution of each of the remaining Finance Documents, including but not limited to the Issue Documents and the Security Documents required in relation to the Security Interest to be created in accordance with Clause 6 (Security and Guarantee) of Section A, in fonn and substance satisfactory to the Debenture Trustee.
9. Delivery of all original title deeds pertaining to the Mortgaged Property II to the Debenture Trustee.
10. Notwithstanding anything contained to the contrary in the Finance Documents, compliance with Clause II of Part B of Schedule HI of Section A and completion of all
- cornpliances-iricluding registrations and filings in relation to the relevant Debenture -~---Security over the Secured Assets to provide such priority and ranking as may be required in accordance with the tenns of the Finance Documents, in a fonn and manner satisfactory to the Debenture Trustee.
(46)
PARTB
CONDITIONS SUBSEQUENT
I. Conditions Subsequent to the Initial Tranche, or Subsequent Tranches
The Issuer shall ensure that all the conditions subsequent as specified below shall be fulfilled to the satisfaction of the Debenture Holders and within the timelines provided herein:
l. A certified true copy of the resolution of the Board of the Issuer authorising the allotment of the relevant Tranche on the Pay In Date for that Tranche to be provided on the Pay In Date, along with Letter of Allotment confinning the allotment of relevant Debentures to the Debenture Holders(s) on the relevant Pay In Date in respect of such Tranche.
2. Subject to applicable Law, intimation to the stock exchange(s) where the Issuer is listed, of the board resolution for allottnent of the relevant Tranche.
3. Filing of the corporate action fonn and letter of allotment with NSDL or CDSL, as the case may be, for credit of the Debentures under the relevant Tranche into the specified dematerialised account, and evidence that the Debentures have been credited to the dematerialised account of the Debenture Holders within 5 (five) days from the Deemed Date of Allotment for the relevant Tranche.
4. Obtaining of final listing and trading approval of the relevant stock exchange(s) and completion of the listing of the relevant Debentures on the wholesale debt market segment of the relevant stock exchange(s) within 20 (twenty) days of the Deemed Date of Allotment for the relevant Tranche. . ........... ·--·---
5. Certified true copy of the updated Register of Debenture Holders and the updated Register of Beneficial Holders of the Issuer to be provided within 10 (ten) Business Days of the Deemed Date of Allotment for the relevant Tranche, as the case may be.
6. End use certificate from a reputed practicing independent chartered accountant of the Issuer to be obtained within 30 (thirty) days fi·om the Deemed Date of Allotment with respect to the relevant Tranche, as the case may be.
7. Copy of the Fonn PAS-3 filed with the Registrar of Companies, along with evidence of payment of fees in relation to the same on the Deemed Date of Allotment of the relevant Tranche.
8. Copy of the Fonn PASA filed with the Registrar of Companies, along with evidence of payment of fees in relation to the same within 30 (thirty) days from the date of the relevant Tranche Offer Document.
9. Copy of the complete record of the private placement offers in Fonn PAS -5 for the issue of the relevant Tranche within 30 (thirty) days from the date of the relevant Tranche Offer Document.
I 0. Filing of fonn MGT 14 with the relevant Registrar of Companies within 30 (thirty) days of the date of passing of the various resolutions (required to be filed under applicable Law) in terms of this Deed.
11. Execution of the debt listing agreement with the relevant stock exchange where the Debentures are proposed to be listed as per the timelines set out under applicable Law in order to ensure that the Debentures issued under the relevant Tranche are listed in accordance with the timelines set out under this Deed.
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II. Conditions Subsequent to the Initial Tranche
The Issuer shall ensure that all the conditions subsequent as specified below shall be fulfilled to the satisfaction of the Debenture Holders and within the timelines provided herein
1. Amendment of the Issuer's articles of association, within 60 (sixty) days from the Deemed Date of Allotment for the Initial Tranche, as per the Agreed Fonn submitted to the Debenture Trustee.
2. No objection certificates from the following Existing Lenders of the Issuer, in a fonn and manner acceptable to the Debenture Trnstee, for issuance of Debentures, and creation of Security Interest set out under Clause 6.1.1 (f) and (g) (Security Interest), within 30 (thirty) days from the Deemed Date of Allotment for the Initial Tranche:
(a) IDBI Bank Limited;
(b) Bank of Baroda;
(c) Aditya Birla Finance Limited; and
(d) Axis Bank Limited;
3. Compliance by the Obligors with the conditions in relation to the Security Interest set out in Clauses 6.1.1(a), (f) and (g) of Section A of this Deed in the manner set out under Clause 6.2.4 and 6.2.7 (Time of Security Creation and Pe1fection) of Section A of this Deed.
4. Compliance by the Obligors with the conditions in relation to the Security Interest set out · ·rn·ctauseif6.1.1 (b), (c), (d), and (e) of Section A of this Deed in the manner setout ire ~······ ·
Clause 6.2.5, 6.2.6, and 6.2.7 (Time of Security Creation and PeJfection) of Section A of this Deed.
5. Title opinion of a duly licensed advocate certifying the title of the Issuer and Valuation Report each with respect to the Mortgaged Property III in a fonn and manner acceptable to the Debenture Trustee within 30 (thi1ty) days from the Deemed Date of Allotment for the Initial Tranche.
6. Delivery of aJI original title deeds pertaining to the Mortgaged Property III to the Debenture Trustee along with execntion of snch documents as may be required in relation thereto within 30 (thirty) days from the Deemed Date of Allotment for the Initial Tranche.
7. Evidence of filing of the Fonn CHG-9 and submission of certificate of registration of charge (CHG-2) received from the Registrar of Companies pursuant to the Fonn CHG-9 filed by the Issuer for the Security Interest created over the Mortgaged Property and the Hypothecated Property along with a copy of acknowledgement of charge and evidence of payment of fee in relation to such Fonn within 30 (thirty) days from the Deemed Date of Allotment for the Initial Tranche nnless a shorter period is prescribed for such actions nnder applicable Law.
8. Any other condition as may be stipulated by the Debenture Ttustee.
(48)
IN WITNESS WHEREOF, the Parties have entered into this Deed the day and year first above written.
The common seal of ELECON ENGINEERING COMPANY LIMITED as the Issuer, has been hereunto affixed pursuant to the resolution passed by its Management Committee at their meeting held on _E~~~':Ji__:/Z,_____;;u;u.:J~·in the presence of
Mr. _j'-!J,Jll"!~I--J::L-l....U:&l]~---- who has signed in t en thereof seth s hand hereto.
SIGNED and DELIVERED by the within-named VISTRA ITCL (INDIA) LIMITED as Debenture Trustee by the hand of
Scheduled Redemption Redem t:ion Instalments Date Seriesi Debentures · . SeriesUDebentures 01-Aug-20 14.29% 01-Nov-20 14.29% 01-Feb-21 14.29% 01-May-21 14.29% 01-Aug-21 14.29% 01-Nov-21 14.29% Se1ies I Final Redemption 14.29% Date 01-May-22 12.50% 01-Aug-22 12.50% 01-Nov-22 12.50% 01-Feb-23 12.50% 01-May-23 12.50% 01-Aug-23 12.50% 01-Nov-23 12.50% Series II Final Redemption 12.50%
---- -· ·Date-----
TOTAL 100.00% 100.00%
ILLUSTRATION OF CASH FLOWS
Set out below is an illustrative schedule of redemption for Series I Debentures and Series II Debentures
I Sr, Jlolo. Scheduled Redemption Redemption Instalments. (INR Crore) . Date .. Series I Debentures Sedes H Debentures
1 01-Aug~20 8.57 2 01-Nov-20 8.57 3 01-Feb-21 8.57 4 01-May-21 8.57 5 01-Aug-21 8.57 6 01-Nov-21 8.57 7 Series I Final Redemption
8.57 Date
8 01-May-22 11.25 9 01-Aug-22 11.25 10 01-Nov-22 11.25 II 01-Feb-23 I 1.25 12 01-May-23 11.25 13 01-Aug-23 11.25 14 01-Nov-23 11.25 15 Series II Final Redemption
11.25 Date TOTAL (INR Crore) 60.00 90.00
(52)
SCHEDULE VI
EXISTING LENDERS
I. Existing Lenders of the Issuer
S.No. Name ofthe Lender Amount availed Rs Lal<hs)
1. IFCI Limited 9500
2. Aditya Birla Finance Limited 6000
3. Corporate loans granted by lOOO consortium of banks consisting of State Bank of India (as lead bank), Bank of Baroda, Export Import Bank of India and !DB! Bank Limited
4. Working capital loan from 1,13,000 consortium of banks consisting of State Bank of India (as lead bank), Bank of Baroda, HDFC Bank Limited, IDBI Bank Limited, and -~---- "'""·--·-----··
Axis Bank Limited
5. Tata Capital Financial Services 2200 Limited
H. Existing Lenders of the Guarantor
S.No. Name of the Lender Amount availed Rs Crores)
1. State Bank oflndia 38.5
2. HDFC Bank Limited 3.00
3. Axis Bank Limited 12.22
4. !DB! Bank Limited 4.65
(53)
(in Outstanding as of December 31, 2018 (in Rs Lakhs)
9280
2775
187.50
79,029.67
2200
(in Outstanding as of January 29, 2019 (in Rs Crores)
23.71
2.24
9.56
4.13
SCHEDULEVH
DETAILS OF PLANT AND MACHINERY
S.No. Asset No Description of Assets
I. 390 Architectural and civil design consultancy for CJO 70120
2. 334 Supply of industrial shed steel structure for cell projectlOOO G.B. She
3. 428 & 429 Construction of HMBS, H8 & H9 shed (PHASE I) for CJO 7892
3099 Servo voltage stabilizer with ultra isolation transfonner. Model 3 4. Phase
5. 2906 Palletize Racking System (Part I) for CJO 10193
1182 & Liebherr Gear Hob bing machine Model No.LC380 with Simens CNC 6. 1183 System type
1178 & Liebherr Gear Robbing machine Model No.LC700 with Simens CNC 7. 1179 System CJO
22. 1200 & LIEBHERR make CNC Gear Hobbing M/C Model No.LC 380/400 1201 with EPCG for CJO
(55)
A. Issuer
B. Debenture Trustee
ANNEXURE A
GENERAL INFORMATION
ELECON ENGINEERING COMPANY LIMITED, a company registered under the Companies Act, 1956 and existing under the Companies Act, 2013, with corporate identity number L291 OOGJ 1960PLCOO 1082 and having its registered office at Anand, Sujitra Road Vallabh Vidyanagar Vallabh Vidyanagar, Gujarat 388120 IN (hereinafter referred to as the "Issuer", which expression shall unless repugnant to the context or meaning thereof include its successors and pennitted assigns) of the FIRST PART;
VISTRA ITCL (INDIA) LIMITED, a company registered under the Companies Act, 1956 and existing under the Companies Act, 2013, with corporate identity number U66020MH1995PLC095507, ha;ing its registered office at IL&FS Financial Centre, Plot No. 22, G Block, Bandra Kurla Complex, Bandra (East), Mumbai - 400051, India (hereinafter referred to as the "Debenture Trustee" or "Trustee", which expression shall unless excluded by or repugnant to the context or meaning thereof, include its successors and permitted assigns) of the SECOND PART.
II jLV
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---------
SECTION B
1. SETTLEMENT OF THE TRUST AND APPOINTMENT OF THE DEBENTURE TRUSTEE
1.1 The Issuer hereby settles in trust with the Debenture Trustee the sum of INR 1,000 (Rupees One Thousand only). The Debenture Trustee has accepted the above amount of INR I ,000 (Rupees One Thousand only) in trust declared and, subject to the tenns and conditions in this Deed, Debenture Trustee Appointment Letter and Debenture Trustee Agreement agreed to act as trustee for the benefit of the Debenture Holders in relation to all amounts and properties received by it in respect of the Debentures.
1.2 The Debenture Trustee hereby agrees to act as debenture trustee during the term of this Deed on behalf of and for the benefit of the Debenture Holders upon and subject to the terms and conditions of this Deed, Debenture Trustee Appointment Letter and Debenture Trustee Agreement, including the tenns and conditions of the Debentures, and declares that it shall hold the Debenture Security to be created by the Issuer under the Finance Documents, and all proceeds or realisations thereof, whether prior to or as a result of enforcement of the Debenture Security, in trust for the benefit of the Debenture Holders and subject to the powers, provisions, agreements and declarations contained in the Finance Documents and the Debenture Trustee Appointment Letter.
1.3 The Debenture Trustee (acting for the benefit of the Debenture Holders) shall hold upon trust for the benefit of the Secured Parties, subject to the powers and provisions contained herein, for the due payment and discharge of the Secured Obligations, all monies received by it out of, whether prior to or as a result"of enforcement of the Debenture Security or the exercise of rights and remedies under the Finance Documents.
1.4 The Debenture Trustee shall be guided in discharge of its duties and enforcement of its rights under this Deed and the other Finance Documents.
2. TERMS OF DEBENTURES
2J Nature of Debentures
2" 1" I The Debentures constituted and proposed to be issued hereunder are issued in aggregate for the Debenture Amount on a private placement basis.
2" 12 The Debentures shall have such tenns as set forth in Schedule II (Terms of Debentures) of Section A of this Deed"
2" 1.3 The Debentures shall be dematerialized and shall thereafter be subject to the provisions of the Depositories Act, 1996 and rules notified by the Depository, from time to time.
2.1.4 The Issuer covenants with the Debenture Trustee that the Issuer shall pay to the Debenture Holders relevant Interest (including any Default Interest) and Redemption Instalments (including any Redemption Instalment accrued and payable due to an Event of Default) as per the tenns of the Debentures set out at Schedule II (Terms of the Debentures) of Section A and Secured Obligations including in case of acceleration upon the occurrence and continuance of an Event of Default, in accordance with the tenns of this Deed and the Finance Documents"
L2 Security
The payment of the Secured Obligations shall be secured by the Debenture Security created in terms of this Deed and other Finance Documents"
23 Appropriation of Payments
(a) Upon the occurrence of an Event of Default, any payments due and payable by the Issuer to the Debenture Holders shall be appropriated in the following manner:
- (57)
(i) Firstly, towards the reimbursement of the Debenture Trustee expenses incurred or to be incurred by the Debenture Trustee or the Debenture Holders towards enforcement of any rights of the Debenture Trustee or Debenture Holders and remuneration under this Deed and the Finance Documents;
(ii) Secondly, towards the claims of the Debenture Holders in accordance with the Finance Documents;
(iii) Thirdly, in or towards payment of the Secured Obligations with respect to the Debentures whether or not such amounts shall be then due and payable; and
(iv) Fourthly, towards payment of the surplus (if any) of the said monies promptly to the Issuer or to the order of the Issuer, unless required to be paid to such other Person or Persons entitled thereto under applicable Law.
2.4 Place and Mode of Payment by the Issuer
All monies payable by the Issuer to the Debenture Holders m tenus of the Finance Documents shall be paid to the Debenture Holders.
2.5 Restriction on Preferential Payments
The Issuer shall pay and discharge all its liabilities to the Debenture Holders under this Deed without preferring one over the other.
2.6 When Debenture Trustee May Interfere
Prior to the happening of any events, upon the happening of which the Debenture Security shall become enforceable, the Debenture Trustee shall not be in any manner required, bound or concerned to interfere with the management or the affairs of any of the Obligors or the Obligors' business or any part thereof.
2.7 Debentures Free from Equity
The Debenture Holders will be entitled to their Debentmes free from equities or cross claims by the Issuer or against the original or any intennediate holders thereof.
2.8 Debenture Holders not entitled to Voting Rights
The Debenture Holders will not be entitled to any voting rights available to tbe shareholders and to any voting rights at the general meetings of the Issuer.
2.9 Debenture Trustee not to recognise any interest in the Debentures
The Debenture TIUstee shall not be affected by any notice, express or implied, of the rights, title or claim of any person to the said monies other than the Debenture Holders.
2.10 Debenture Redemption Reserve
The Issuer hereby agrees and undertakes that it shall create the debenture redemption reserve as per the Companies Act and if during the currency of these presents, any guidelines are fonnulated (or modified or revised) by any Governmental Authority having authority under Law in respect of creation of debenture redemption reserve, the Issuer shall abide by such guidelines. The Issuer shall submit to the Debenture Trustee a certificate duly certified by a practicing chartered accountant, certifying that the Issuer has transferred a suitable sum to debenture redemption reserve at the end of each Financial Year.
2.11 Reservation of Rights by Debenture Holders
It is hereby clarified that, notwithstanding the provlSlons of this Deed and the appointment of the Debenture frustee as a trustee for the benefit of the Debenture
};_; (58)
. ,''' .'
J2r-'
Holders, the Debenture Holders shall, during the tenn of the Debentures and until the full and final payment of all amounts due on the Debentures and discharge of the Secured Obligations, continue to retain and exercise all the tights they are entitled to under each of the Finance Documents without reference to the Debenture Trustee, save for the right to remedy the Event of Default, which must be exercised by the Debenture Trustee on the Approved htstructions of the Debenture Holders as per the tenus of the Finance Documents.
3. CONDITIONS FOR THE ISSUANCE OF DEBENTURES
3.1 As a condition precedent to receiving the Initial Tranche Debenture Amount in connection with the Initial Tranche Debentures proposed to be issued under the this Deed, the Issuer must comply with the conditions as set out in Clause I of Part A (Conditions Precedent to the Initial Tranche) of Schedule HI of Section A of this Deed at least 3 (three) Business Days or such shorter time as agreed between the Issuer and the Debenture Trustee (acting on Approved Instructions), prior to the Pay In Date of the htitial Tranche Debentures e. With respect to any Subsequent Tranches, the Issuer must comply with each of the conditions as set out in Clause II of Part A (Conditions Precedent) of Schedule III of Section A of this Deed at least 3 (three) Business Days or such shorter time as agreed between the Issuer and the Debenture Trustee (acting on Approved htstructions), prior to the Pay In Date of any Subsequent Tranche of Debentures, and shall provide the Debenture Trustee with all documents and other evidence listed therein, in a fonn and substance satisfactory to the Debenture Trustee (acting on Approved Instructions).
3.2 The fulfilment of any condition precedent may be waived or deferred in writing by the Debenture Trustee (acting on Approved Instructions), following a written request from the Issuer setting out (i) the condition precedent in respect of which the Issuer seeks a waiver or deferral; and (ii) the reasons for seeking such waiver or deferral.
3.3 The Issuer shall issue all the relevant Tranche Debentures in accordance with the tenus of the Debenture Trust Deed and the relevant Tranche Offer Document, and the Debenture Holders shall subscribe to all the relevant Tranche Debentures only once all the relevant conditions precedents have been fulfilled or waived (as the case maybe) to the satisfaction of the Debenture Trustee (acting on Approved Instructions) in accordance with this Deed.
3.4 On the relevant Pay In Date, the Issuer will convene a board meeting for the allotment of the relevant Tranche of Debentures to the subsctibers of the Dehentures and issue a letter of allotment in relation to the Debentures to the Debenture Holders on the relevant Deemed Date of Allotment along with the instructions for crediting the Debentures in the respective demateria!ised accounts of Debenture Holders. The Debentures shall be credited to the respective dematerialised accounts of the Debenture Holders within 3 (three) Business Days from the relevant Deemed Date of Allotment.
4. COVENANTS OF THE ISSUER
The undertakings in this Clause 4 (Covenants of the Issuer) remain in force from the date of this Deed for so long as any amount is outstanding under the Finance Documents till the Final Redemption Date.
4.1 Affirmative Covenants
4.1.1 Allotment
(a) The Issuer shall provide to the Debenture Trustee a certified true copy of resolutions passed by the Board and the shareholders required pursuant to the tenus of the Finance Documents.
(b) The Issuer shall provide to the Debenture Trustee proof of credit of the Debentures into the depository participant account of the Debenture Holders.
(59)
4.1.2 Governance and financial stability
(a) The Issuer shall maintain its corporate existence and right to carry on its businesses/operations.
(b) The Issuer shall at all times during the currency of the Debentures, maintain a positive net worth.
4.1.3 Subordination of other debts
Any Financial Indebtedness (except the Pennitted Indebtedness) shall be subordinate to the Debentures and will not be repaid until the Final Redemption Date.
4.1.4 Regulatory compliance
(a) The Issuer shall ensure that it complies with all regulatory and other requirements including disclosure requirements as may be specified by any regulatory authorities from time to time in connection with the issuance of the Debentures including disclosing all obligations under the Finance Documents as required under applicable Law.
(b) Without prejudice to the generality of sub-paragraph (a) above, the Issuer shall, at all times, be in compliance with all provisions of the Companies Act, the Debenture Trustee Regulations, LODR Regulations, the Debt Listing Regulations, the debt listing agreement entered into with the concerned stock exchange and the Issue Document(s) issued by the Issuer in relation to the Debentures.
(c) The Issuer shall ensure to comply with all the requirements as set out under the Companies Act and the allied rules including but not limited to requirements in relation to filings to be made by the Issuer with the Registrar of Companies, details of directors of the Issuer required to be included in auy documents executed by the Issuer from time to time, statutory registers required to be maintained as per the Companies Act.
4.1.5 Information to Debenture Holders and Debenture Trustee
The Issuer shall promptly infonn the Debenture Trustee (who shall intimate the Debenture Holders):
(a) if notice of any application for winding up having been made, or of any notice of any acquisition, or otherwise of any suit or other legal process intended to be filed or initiated against the Issuer, as the case may be, or if a receiver is appointed for any of the Debenture Security, its Assets, Business or undertaking;
(b) of the happening of any labour strikes, lockouts, shutdowns, fires or other similar happenings which may have a Material Adverse Effect;
(c) of any loss or damage, which the Issuer may suffer due to any force majeure circumstances or act of God, such as earthquake, flood, tempest or typhoon, etc; and
(d) upon becoming aware of any Event of Default or a potential Event of Default.
4.1.6 Other Infonnation to the Debenture Trustee
Subject to Applicable Law, the Issuer shall infonn the Debenture Trustee:
(a) Before declaring or distributing any dividend;
(b) Before any change in nature and conduct of its Business;
(60)
(c) Of all orders, directions, notices, of courts/tribunals, affecting or likely to affect the Debenture Security; and
(d) Of any change in composition of its Board, including any major change in composition which may amount to change of Control.
4.1.7 Costs and Expenses
(a) During the tenor of the Debentures, the Issuer shall bear all such imposts, duties and Taxes as may be levied from time to time by any Governmental Authority or other authority with the sanction of Law required to be paid by the Issuer in respect of the Debentures.
(b) Issuer shall bear all transaction related costs incuned by the Debenture Trustee or the Debenture Holders in relation to the issue of Debentures, including with respect to legal counsel, valuers and auditors/consultants.
4.1.8 Payment of rents, etc.
The Issuer shall pay all rents, royalties, Taxes, rates, levies, cesses, assessments, impositions and outgoings, governmental, municipal or otherwise imposed npon or payable by the Issuer as and when the same shall become payable and when reasonably required by the Debenture Trustee, produce the receipts of such payment and observe, perform and comply with all covenants and obligations which ought to be observed and perfonned by the Issuer under this Deed and the other Finance Documents. The Issuer shall ensure that the Debenture Security does not become charged or Encumbered or liable to charge, seizure or confiscation, duato.the .. non-payment of the said Taxes and payments.
4.1.9 Comply with applicable Law
The Issuer shall comply in all material respects with all applicable Law.
4.1.1 0 Register of Debenture Holders
The Issuer shall ensure that Register of the Debenture Holders in respect of the Debentures will be maintained by Depository in accordance with the provisions of the Depositories Act, 1996 and the provisions of applicable Law.
4. J.J 1 Inspection
(a) The Issuer shall keep proper books of account and pennit the Debenture Trustee and its authorised representatives to inspect all records, registers and accounts of the Issuer at such time and in such manner as may be required by the Debenture TnJstees or its authorised representatives, subject to written intimation to the Issuer, at least 24 (twenty four) hours prior to the inspection. Any such representative of the Debenture Trustee shall have free access at all reasonable times to any part of the Issuer's records, registers and accounts and to all schedules, costs, estimates, plans and shall receive full co-operation and assistance from the employees of the Issuer. The cost of inspection, including travelling and all other expenses shall be payable by the Issuer to the Debenture Trustee in this behalf.
(b) The Debenture Trustee (acting on the Approved Instructions) shall, at any time before the Final Redemption Date, have the right to, in consultation with the Issuer, require tbe Issuer to appoint a:
(i) reputable auditor acceptable to the Debenture Trustee as an internal/concunent auditor; and/ or
(i) an accountant on behalf of the Debenture Trustee and on tenus acceptable to the Debenture Trustee. The role of the accountant will include but is not limited to certification of purpose for which the
;0 (61)
proceeds of the Debentures under this Deed are used, review of budget, comparison of actual perfonnance with the budget and projections, carry out cash transaction audit on a monthly basis, review the quarterly reports and selected material transactions, review compliance certificates, review working capital facilities available and balances outstanding (if any), review of related parties transactions and review of material long tenn contract.
(c) The Issuer will bear all costs in connection with the appointment and performance by monitoring accountant and the internal/concurrent auditor of their work. The Issuer will provide all reasonable assistance to the monitoring accountant and the internal/concurrent auditor in the conduct of their activities including but not limited to the provision of all information from time to time as reasonably required by such entities on a timely basis. Upon the happening of an Event of Default and failure of the Issuer to bear such costs, the Debenture Holder shall bear all such cost, charges and expenses incurred or to be incurred by the Debenture Trustee which shall be reimbursed to the Debenture Holder by the Issuer as a part of the Secured Obligations.
(d) The Debenture Trnstee and any consultants appointed by it shall, at any time prior to the allotment of the first Tranche Debentures and till the Final Redemption Date, have the right to conduct a full due diligence on the Issuer and the Guarantor , and the Secured Assets, including but not limited to corporate diligence, technical diligence, title diligence, diligence in relation to the valuation
· ----·-of- the Secured Assets and diligence in relation to "know your customers" requirements. The Issuer shall bear the cost of such due diligence and shall provide all reasonable assistance for the same including but not limited to the provision of all infonnation from time to time as reasonably required by the Debenture Trustee or any of its consultanl' on a timely basis.
4.1.12 Compliance
The Issuer shall provide a compliance certificate duly certified by the Debenture Trustee to the Debenture Holders, (on a half-yearly basis), in respect of compliance with the tenus and conditions of issue as contained in this Deed, compliance with tenns of the Debentures, defaults, if any, in payment of Interest or Redemption Instalments and action taken therefore.
4.1.13 Quarterly Report
The Issuer shall provide to the Debenture Trustee on a quarterly basis a report containing:
(a) an updated list of the names and addresses of the Debenture Holders;
(b) details of any Interest due but unpaid and reasons thereof;
(c) the number and nature of grievances received from the Debenture Holders and (i) resolved by the Issuer and (ii) unresolved by the Issuer and the reasons for the same; and
(d) a statement that the assets which are available by the way of security created under the Finance Documents are sufficient to discharge the claims of the Debenture Holders as and when they become due.
4.1.14 ProofofPavment
The Issuer shall provide to the Debenture Trnstee confirmation/proofs of payment of Interest and Redemption Instalments on due dates.
4.1.15 Other Reporting
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The Issuer shall provide to the Debenture Trustee promptly, whether a request for the same has been made or not. Additionally, the Issuer will also provide the following infonnation to the Debenture Holders in case a written request for the same is made by the Debenture Holders to the Issuer:
(a) A copy of all notices, resolutions and circulars relating to new issue of securities at the same time as they are sent to shareholders or holders of any other instruments of the Issuer including the Debenture Holders.
(b) A copy of all the notices, call letters, circulars, proceedings, etc. of the meetings of Debenture Holders at the same time as they are sent to the Debenture Holders or advertised in the media.
(c) Copy of any notice of any application for winding up having been made or receipt of any statutory notice of winding up under the provisions of the Companies Act or any other notice nnder any other applicable Law or if a receiver is appointed of any of the properties or business or unde1takings of the Issuer.
(d) Upon receipt by the Issuer of, (a) any notice of demand received from any operational creditor under the provisions of Insolvency and Bankruptcy Code, 2016; and/ or (b) any notice of any application made for insolvency resolution process under the provisions of Insolvency and Bankruptcy Code, 20 I 6.
(e) Copy of any notice of and I or any other details of any litigation, arbitration, administrative proceedings and I or tax proceedings or otherwise of any suit or legal process intended to befileclor.lnii!ateif'against the Issuer and/or Guarantor which have or might, if adversely detennined, have a Material Adverse Effect promptly upon becoming aware of such notice, details, suits, or legal process.
(f) The occurrence of any event which constitutes an Event of Default or indicates the possibility of the occurrence of an Event of Default, specifying the nature of such Event of Default and any steps which the Issuer is taking and I or proposes to take to remedy the same.
(g) Proof of payment of tax deducted at source (TDS) on Interest Rate, proof of filing TDS retnrns, and; TDS certificates shall be shall be furnished as per the timelines pennitted under applicable Law.
(h) Quarterly financial statements of the Issuer, within 30 (thirty) days of the close of the Financial Quarter.
(i) Annual audited financial statements of the Issuer within 180 (one hundred and eighty) days of the close of the Financial Year.
(j) A report certified by an independent practicing chartered accountant regarding compliance of the Issuer with respect to use of the proceeds raised through the issuance of Debentures.
(k) Details of interest and other payments dne but unpaid and reasons thereof; the updated list of the Debenture Holders (along with their names and addresses) and the number and nature of grievances from the Debenture Holders and resolved by the Issuer; and Assets available by way of Debenture Security are sufficient to discharge the claims of the Debenture Holders.
(I) Notice of any change in the authorized signatories of the Issuer in relation to the Debentures, accompanied by requisite board resolntions authorizing the signatories and attaching the specimen signatures of any new authorized signatory.
(m) Notification, upon becoming aware, of any Event of Default or Potential Event of Defanlt.
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(n) Subject to applicable Law, any explauations required by the Debenture Trustee on any transactions which have or are expected to have a negative impact entered into by the Obligors.
(o) Subject to applicable Law, such other infonnation regarding the financial condition, business and operations of the Obligors as the Debenture Trustee may reasonably request.
(p) Notice of the Issuer availing any Permitted Indebtedness at least 21 (twenty one) days prior to the availing of such Pennitted Indebtedness.
(q) Promptly, all infonnation disclosed by the Guarantor in relation to (i) their direct and/or indirect holding or any debt provided to Affiliates of the Issuer or any other companies, and (ii) Control exercised by them over any other company or Affiliates of the Issuer.
4.l.l6 Shortfall Undertaking
The Issuer shall ensure that the Guarantor shall, in the event of any shortfall in payment of Redemption Instalment or Interest or DSR Amount or any other Secured Obligations that remain unpaid by the Issuer for a period of 5 (five) Business Days, provide to the Debenture Trustee immediately, such shortfall amounts required to fnlfil such payment obligations and enter into an unconditional and irrevocable binding undertaking setting out the terms and conditions of such undertaking.
4. 1. 17 The Issuer shall provide the Debenture Trustee with such other infonnation required by the Debenture. Trustee for the effective discharge of its duties and obligations, and other-- ........ ---infonnation reasonably requested by the Debenture Trustee.
4. 1.18 The Issuer shall ensure that the Promoter shall not conduct same I similar business as the Issuer in any other entity apart from the Issuer (apart from businesses and/or entities which are already in existence) and shall ensure that all such future businesses which are same I similar to the business of the Issuer are conducted through the Issuer.
4. L !9 The Issuer shall ensure compliance with any other condition, as may be stipulated by the Debenture Trustee (acting on the Approved Instructions).
4.2 Negative Covenants
In addition to the Negative Covenants stipulated in Clause 8. 1.13 (Negative Covenants) of Section A of this Deed, until the full discharge of the Secured Obligations, without the prior written consent of the Debenture Trustee, (which is given in accordance to the Approved Instructions and shall not unreasonably withheld or delayed), the Issuer:
4.2. I shall not be entitled to receive, realise or otherwise deal with any of the Debenture Secmity, except in accordance with the Finance Documents;
4.2.2 other than in the ordinary course of business, shall not sell or dispose of any Assets or any part thereof or create thereon any Encumbrance of any kind whatsoever, to the intent and purpose that the Assets and all parts thereof shall remain and continue to remain free from any Encumbrances whatsoever during the continuance of these presents, except as created in favour of the Debenture Trustee, provided that such sale or disposal of Assets does not result in a Material Adverse Effect;
4.2.3 shall not take any steps, to purchase, redeem or buy back any securities (other than the Debentures) or otherwise make any payment in respect thereof (other than the Debentures) issued by the Issuer (except as required under applicable Law);
4.2.4 shall not make any amendments to its Constitutional Documents, except as required in tenns of the Finance Documents or applicable Law;
4.2.5 shall not effect any change in the accounting methods or policies, except as required under applicable Law;
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4.2.6 shall not pennit any change in its key management and composition of the Board of the Issuer, except as required under applicable Law;
4.2.7 shall not enter into any transaction of merger, de-merger, consolidation, spin-off, reorganization, scheme of arrangement or compromise with its creditors or shareholders or effect any scheme of amalgamation or reconstruction or make any acquisitions, other than the Mauritius Merger (provided that the details of the Mauritius Merger and the financial impact thereof on the Issuer shall be intimated to the Debenture Trustee in a fonn and manner required by the Debenture Trustee, within 15 (fifteen) days from the date of filing the application for the Mauritius Merger, before the relevant Governmental Authority);
4.2.8 subject to the terms of this Deed, shall not incur any Financial Indebtedness (existing or future), secured or unsecured, in any manner to or from any other Person (including any group companies or related parties) other than the Permitted Indebtedness;
4.2.9 shall not upon the occurrence of an Event of Default, declare any dividend to its shareholders or make any distribution in any manner whatsoever, in any Financial Year, until the Issuer has paid or made satisfactory provisions in respect of the Secured Obligations;
4.2.10 shall not change the capital structure of the Issuer including issuance of new equity shares, preference shares, optionally convertible debentures, compulsorily convertible debentures, bonus shares or any other convertible instrument or warrants or any other instrument with the same effect;
4.2.11 shall not change in material accounting methods or policies contravening the applicable accounting standards or change, as requireaby applicable Law or guidelines, or change the Issuer's statutory auditors;
4.2.12 shall not enter into any related party transaction either in funded or non-fnnded fom1, except transactions which are entered into in the ordinary conrse of business and on arm's length basis;
4.2.13 until the Final Redemption Date, shall not without the prior written consent of the Debenture Trustee (acting on Approved Instructions of the Debenture Holders and which consent shall not be unreasonably withheld or delayed):
(i) pennit any change in Control of the Issuer;
(ii) create any Encumbrance over the Secured Assets in favour of any Person other than the Debenture Trustee in tenns of this Deed;
(iii) transfer in part and I or in full, any of the rights or interest of the Issuer in favour of any other Person;
(iv) initiate insolvency resolution process, winding up, bankruptcy or liquidation proceedings or dissolution of the Issuer;
(v) enter into any instrument or writing in the ordinary course of business, if such instrument or writing can result in a Material Adverse Effect;
(vi) commit or omit to do any act which may prejudice the interests of the Debenture Trustee or Debenture holders with respect to the issuance of Debentures;
(vii) diversify into auy business, which, in the opinion of the Debenture Trustee, is unrelated to the Business;
(viii) provide any further financial assistance to its onshore and I or offshore subsidiaries,
4.2.16 shall procure that the Guarantor, the Promoter, and/ or the Promoter Group (as relevant) shall not effect auy change in the shareholding pattern (as on January 30, 2019) of the
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Corporate Guarantor, except for any inter se transfer of shareholding of the Corporate Guarantor within the Promoter Group; and
4.2.17 shall not effect any change in the composition of executive directors of the Board.
4.3 Creation of Further Charge
Further, each of the Obligors shall ensure that the Debenture Security provided to secure the Secured Obligations is of such value as is sufficient to meet the security margin requirements under this Deed in addition to the applicable Law. In the event the value of the Debenture Security deteriorates, the Issuer shall deposit with the Debenture Trustee the Additional Security in such fonn as is acceptable to the Debenture Trustee and in such time period as may be specified in lhe Finance Documents or olherwise as may be specified by the Debenture Trustee (who shall act in accordance with the directions of the Debenture Holders), failing which the Debenture Trustee may in terms of this Deed, enforce any or all of the Debenture Security, without being liable for any loss or damage or diminution in value of the Debenture Security.
4.4 Further Assurances
4.4.1 The Issuer shall:
(a) Conduct its Business with due diligence and efficiency and in accordance with sound engineering, technical, managerial and financial standards and business practices with qualified and experienced management personnel. The Issuer shall maintain and keep in good condition, working order (ordinary wear and tear
. excepted). and repair all necessary equipment owned by it (either directly. or- .. ---· -indirectly) and used or held for use in the conduct of its Business and shall carry out all necessary repairs, renewals, replacements, betterments and improvements, all as shall be consistent with sound business practice and necessary so that the Business carried on in connection therewith may be properly conducted.
(b) Obtain all regulatory and statutory pennissions and other requirements as specified by relevant regulatory authorities from time to time, for the purpose of perfonnance of its obligations under the Finance Documents, if required.
(c) Execute and/or do, at their own expense, all such deeds, assurances, documents, instruments, acts, matters and things, in such fonn and otherwise as the Debenture Trustee may reasonably or by Law require or consider necessary in relation to enforcing or exercising any of the rights and authorities of the Debenture Trustee.
(d) Obtain, comply with the tenns of and do all that is necessary to maintain in full force and effect all Authorisations necessary to enable it lawfully to enter into and perfonn its obligations under this Deed or to ensure the legality, validity, enforceability or admissibility as evidence in a court of law in India of this Deed and the Finance Documents.
(e) Pay the stamp duty on this Deed on or before the execution of this Deed and all the expenses and charges for the registration thereof, if applicable, in addition to paying the costs and expenses payable under the olher Finance Documents including upon the issuance of the Debentures.
(f) Comply with:
(i) All applicable Law, rules, regulations and guidelines, as applicable in respect of the Debentures, including the Companies Act, the Companies (Share Capital and Debentures) Rules, 2014, press release issued by the Reserve Bank of India.
(ii) Obtain such regulatory approvals as may be required from time to time, under applicable Law.
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(iii) Furnish to the Debenture Trustee such data, information, statements and reports as may be deemed necessary by the Debenture Trustee in order to enable them to comply with the provisions of applicable Law.
(g) Comply with the end-use of the proceeds of the Debentures as prescribed in the Finance Documents.
(h) If so required by the Debenture Trustee, lend its name as plaintiff or co-plaintiff to any proceedings that the Debenture Trustee may institute and co-operate in recovery proceedings with the Debenture Trustee in the manner pennissible under applicable Law.
(i) Make available to the Debenture Trustee, on request and free of charge, all evidence (under its control and possession) required by the Debenture Trustee in any proceedings, under or pursuant to the Finance Documents, or in connection with the Debentures, and strive to ensure the attendance at any hearing of such witnesses as the Debenture Trustee may require.
(j) Promptly and expeditiously attend to and redress the grievances, if any, of the Debenture Holders, under or pursuant to the Finance Documents, or in connection with the Debentures. The average time required by the Issuer for the redressal of routine grievances of the Debenture Holder shall be as per applicable Law. The Issuer further undertakes that it shall promptly comply with the suggestions and directions that may be given in this regard, from time to time, by the Debenture Trustee and shall advise the Debenture Trustee periodically of the compliance, subject to applicable Law. · ·--------·--
(k) Ensure that nothing in this Deed conflicts with the Constitutional Documents of the Issuer.
(I) Ensure that all filings with the jurisdictional Registrar of Companies are made within the timelines prescribed under applicable Law.
(m) Make, from time to time, all such filings and registrations, and file and submit all such fonns, documents, instruments, transfer deeds and take all such other steps, as may be necessary in connection with the creation, perfection or protection of the Debenture Security under the Finance Documents.
4.4.2 The Issuer agrees that all costs, expenses, stamp duty, registration fees and charges paid or incurred by the Debenture Trustee or its authorized agents, representatives, successors and assignees in the exercise of any of the rights, remedies or powers granted herein or under the Finance Documents, including reasonable travelling, other allowances, and additional stamp duties, taxes, other duties, penalties, costs, charges and expenses in connection with or relating to the Debentures (including costs of investigation of title and protection of the Debenture Holders interests), shall be from the account of the Issuer and the Issuer undertakes promptly on demand to pay the same, or as the case may be to reimburse the Debenture Trustee or its authorized agents, representatives, successors and assignees for any such monies paid by them, with Interest from the date the Issuer received notice thereof from the Debenture Trustee and/or its authorized agents, representatives, successors and assignees until reimbursement by the Issuer and all such amounts shall be added to the Secured Obligations and be secured under these presents and other Debenture Security provided under the Finance Documents.
4.4.3 Insurance
(a) At its own cost and expense, the Issuer undertakes to keep the Debenture Security adequately insured against such risks, and for such amount(s) and till the Final Redemption Date or under Law or contract, either in the joint names of the Debenture Trustee and the Issuer, or with the Debenture Trustee named as loss payee therein, with.-such reputable insurer(s). The Issuer s]jall deposit with the
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Debenture Trustee photocopies of all such insurances along with any cover notes and receipts evidencing payment of, including but not limited to premia.
(b) In relation to such insurances as are required to be maintained pursuant to subClause (a) above, the Issuer shall make punctual payment of all premia to be paid in relation to such insurances and shall not do or suffer to be done any act which may invalidate such insurance.
(c) In the event the Issuer becomes entitled to make any claims under the above insurances, the Issuer undertakes to promptly make a claim under such insurances, and apply all monies received in reinstatement of the relevant Debenture Security.
(d) If the Issuer fails to insure and I or keep insured any of the Debenture Security, the Debenture Trustee shall, without prejudice to its rights and liabilities under this Deed or at Law, be at liberty to insure and keep insured any of the Debenture Security, and the Issuer shall on demand repay the Debenture Trustee all fees, costs, commissions and charges incurred by the Debenture Trustee in doing so.
4.4.4 Investment of Monies
Pending distribution to the Debenture Holders, the amounts standing to the credit of the DSRA which is under the trust or powers herein contained ought to be invested by the Debenture Trustee, may be invested by the Debenture Trustee (acting on Approved Instructions) in the name of the Trustee in fixed deposit witl1 lien marked in favour of the Debenture Trustee ("Permitted Investments"). Any interest accruing on the DSRA shall ·be···uti11s-ed TrCacCordance with the terms of the Finance Documents. ... · -·------- ·
4.4.5 Permitted Indebtedness
(a) The Issuer shall inform the Debenture Trustee of all its Pennitted Indebtedness by providing a prior intimation in writing of not less than 21 (twenty-one) days to the Debenture Holders.
(b) The Issuer assures the Debenture Trustee that the Debenture Security on which the Issuer creates Security Interest is and will be the Issuer's absolute and unEncumbered property (except for the Encumbrance created in favour of the Debenture Trustee) with full power of disposition and realization and will be kept in proper condition subject to normal wear aud tear. The Issuer assures not to create any security ranking senior or pari passu with or subject to the Debenture Security created pursuant to the Finance Documents to which it is a party, except in the manner stipulated in the Finance Documents.
4.4.6 The Issuer agrees and undertakes that all obligations of the Obligors under this Deed and the other Finance Documents are joint and several.
5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default
5.1.1 Upon occurrence of an Event of Default, the Debenture Trustee shall, subject to the prior consent and Approved Instructions, have an unconditional aud unrestricted right to enforce the Debenture Security and to sell and dispose of or otherwise deal with the Debenture Security. The remedies set forth in Clause 5.2 (Remedies) of Section B shall be available to the Debenture Trustee, without prejudice to any other right or remedy available to the Debenture Holders and Debenture Trustee under the Finance Documents, applicable Law or equity. It is hereby clarified that the Debenture Trustee shall exercise its right to call an Event of Default only with prior Approved Instructions.
5.1.2 The occurrence of each or any of the following events shall be considered an "Event of Default":
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(a) Payment Default
The Issuer and/or any otl1er Obligor does not pay on the due date any amount due and payable pursuant to the Finance Documents, at the place and in the cun·ency in which it is expressed to be payable unless its failure to pay is caused by administrative or technical error in which case also such default shall not extend beyond I (one) Business Day.
(b) Other obligations
(i) A breach of any tenus, conditions, undertakings, representations, obligations and covenants of the Finance Documents by the Issuer, the Guarantor and/ or where relevant the Promoter and/ or the Promoter Group, which if capable of remedy is not remedied within a period of 15 (fifteen) days of its occurrence.
(ii) If the Issuer the Guarantor and/ or where relevant the Promoter and/ or the Promoter Group undertakes any fraudulent action and/ or defaults under the terms of any of the Finance Documents.
(iii) A breach by the Issuer or any other Obligor in making the necessary filings with the concerned Registrar of Companies or any other Governmental Authority within the timelines prescribed under applicable Law.
(c) Misrepresentation
Any representation, statement or· infonnatiori.lniii:le or given or deemed to be made by the Issuer and/ or any other Obligor in the Finance Documents or any other document delivered by or on behalf of the Issuer or its Affiliates or any other Obligor under, or in connection with any Finance Documents, is or proves to have been incorrect or misleading, in any respect when made or deemed to be made.
(d) Financial Covenants
Any breach of any of the Financial Covenants occurs during the tenure of the Debentures, which is not remedied within a period of 15 (fifteen) days of its occurrence.
(e) Security and Asset Coverage
Any reduction in the Security Cover Ratio occurs during the tenure of the Debentures if such default is not remedied within a period of 15 (fifteen) days of its occmTence.
(f) Security Creation
The Issuer or any other Obligor (to the extent applicable), fails to create the Security Interest or any part thereof, within the timelines provided for security creation under this Deed and the relevant Finance Documents, create any additional security, within the timeline stipulated in the tenus of the Finance Documents, ensure that the Debenture Security, provides the Security Cover Ratio, in accordance with the terms of the Finance Documents, and if such default is not remedied within a period of 15 (fifteen) days of its occurrence.
(g) Cross default
(i) Any Financial Indebtedness of the Issuer and I or the Guarantor owed to any of its creditor is not paid when due nor within any originally applicable grace period.
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(ii) Any Financial Indebtedness of the Issuer and I or the Guarantor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
(iii) Any commitment for any Financial Indebtedness of the Issuer and I or the Guarantor is cancelled or suspended by a creditor of the Issuer as a result of an event of default (however described).
(iv) Any creditor of the Issuer and I or the Guarantor becomes entitled to declare any Financial Indebtedness of the Issuer due and payable prior to its specified maturity as a result of an event of default (however described).
(h) Additional Financial Indebtedness
Other than the Pennitted Indebtedness, if any additional Financial Indebtedness is incurred by the Issuer without the prior written consent of the Debenture Trustee.
(i) Insolvency
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
The Issuer or any other Obligor is unable or admits inability to pay its debts as they fall due (within the prescribed time period), suspends (or threatens to suspend) making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling/restructuring any of its indebtedness.
The value of the assets of the Issuer or any other Obligor is less than its liabilities (taking into account contingent liabilities). - - --
A moratorium is declared in respect of any indebtedness of any Issuer or any other Obligor.
Convening of a general meeting of the Issuer for the purpose of voluntarily winding-up.
A liquidation order or a bankruptcy order has been passed in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 with respect to the Issuer or any other Obligor.
A resolution plan is not submitted to adjudicating authority at the end of insolvency resolution process period in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 with respect to the Issuer or any other Obligor.
An application is filed by any financial creditor or any operational creditor for the insolvency resolution process under the Insolvency and Bankruptcy Code, 2016 in relation to the Issuer.
G) Insolvency proceedings
Any corporate action, legal proceedings or other procedure is taken in relation to:
(i) the suspension of payments, a moratorium of any indebtedness, insolvency resolution, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Issuer or any other Obligor;
(ii) a composition, compromise, assignment or arrangement with any creditor of the Issuer or any other Obligor, including any corporate debt restructuring, scheme of revival or rehabilitation, or fonnation of a corrective action plan and where such event is not voluntary;
(iii) the appointment of a liquidator, receiver, administrator administrative receiver, c_ompulsory manager, provisional supervisor, insolvency
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resolution professional or other similar officer in respect of the Issuer or any other Obligor or any of their assets; or
(iv) enforcement of any Security Interests over the Debenture Security or any analogous procedure or step in any jurisdiction.
(k) Judgments: Creditors' process
(i) The Issuer fails to comply with or pay any sum due from it under any final judgment or any final order made or given by a court of competent jurisdiction.
(ii) Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Issuer.
(I) Un!awfit!ness
It is or becomes unlawful for the Issuer or any other Obligor to perfonn any of their respective obligations under the Finance Documents.
(m) Repudiation
The Issuer or any other Obligor repudiates (in whole or in part) a Finance Document to which it is a party or evidences an intention to repudiate a Finance Document to which it is a party.
(n) Security
Any of the Finance Documents once. executed-and delivered fails to provide the Security Interests, material rights and title intended to be created thereby (including the priority intended to be created thereby) or such Security Interest fails to have the priority contemplated in such Finance Document or any such Finance Document shall cease to be in full force and effect, or the validity thereof or the Security Interest purported to be created thereby is jeopardised or endangered in any manner whatsoever or any other obligations purported to be secured or guaranteed thereby or any part thereof shall be disaffinned by or on behalf of the Issuer or any party (other than the Debenture Trustee) to the Finance Documents (to the extent applicable).
( o) Business in Jeopardy
In the reasonable opinion of the Debenture Trustee:
(i) the Business of the Issuer is in jeopardy; and/or
(ii) the management of the Issuer as on the date of this Deed is wholly or substantially displaced which results in a change of Control of the Issuer or the authority of the Issuer in the conduct of its business is wholly or substantially curtailed.
(p) Material Adverse Effect
Any event or circumstance occurs which the Debenture Tmstee (acting on Approved Instruction) detennines might have a Material Adverse Effect and which if capable of being remedied has not been remedied within a period of 15 (fifteen) days from the occurrence.
( q) Expropriation and Nationalisation
Any Governmental Authority or other authority (whether de jure or tie facto) condemns~ nationalises, compulsorily acquires, expropriates, seizes or otherwise assumes custody or control of all or material part of the business or assets of the Issuer of any other Obligor.
(r) Material Litigation
(i) Any litigation, arbitration, investigative or administrative proceeding is current pending or threatened which restrains the Issuer's or any other Obligor's entry into, the exercise of any of an Issuer's or any other Obligor's rights under, or compliance by the Issuer or any other Obligor with any of the obligations under, the Finance Documents, and which has not been remedied, dismissed, discharged or stayed within a period of 15 (fifteen) days from the date of such Event of Default, to the satisfaction of the Debenture Trustee.
(ii) Any litigation, arbitration, investigative or administrative proceeding is current pending which the Debenture Trustee otherwise determines has a Material Adverse Effect, and which has not been remedied, dismissed, discharged or stayed within a period of 15 (fifteen) days from the date of such Event of Default, to the satisfaction of the Debenture Trustee.
(iii) Any litigation, arbitration, investigative or administrative proceeding which is adversely detennined against any Obligor and the final orders in relation to which have not been complied within the timelines stated under such order or judgment.
(iv) Any action/investigation initiated by any regulatory body including the Serious Fraud Investigation Office and I or Central Vigilance Commission against the Obligors or any anti-graft and I or anticorruption investigations I actions.
(sJ.~~-··· Change.ofControl
(i) Occurrence of any event which leads to a change of Control, directly or indirectly, in the Issuer except within the Promoter and the Promoter Group;
(ii) Any action taken by the Guarantor, the Promoter and I or Promoter Group that results in or is likely to result in any change in the shareholding status set out in Schedule III (Details of Shareholding) of this Section B including a transfer of all or any rights to, disposal of, or creation of any Security Interest in, the Guarantor Shares and/ or Promoter Shares; or.
(iii) Any action taken by the Guarantor, the Promoter and I or Promoter Group, following a release of the Pennitted Security set out under Column B of Schedule III (Details of Shareholding) of this Section B, that results in or is likely to result in the transfer of all or any rights to, disposal of, or creation of any Security Interest in, the Guarantor Shares and/ or Promoter Shares.
(t) Material Authorisations
Any Authorisation necessary for the Issuer:
(i) to comply with its obligations under this Deed or any other Finance Document is not obtained when required or is rescinded, tenninated, lapses or otherwise ceases to be in full force and effect, and is not restored or reinstated within 15 (fifteen) days of notice by the Debenture Trustee (acting in accordance with Approved Instructions) to the Issuer; or
(ii) to carry on its business or operations, is not obtained when required or is rescinded, terminated, lapses or otherwise ceases to be in full force and effect, and is not restored or reinstated within 15 (fifteen) days of notice by
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the Debenture Trustee (acting in accordance with Approved Instructions) to the Issuer.
(u) Finance Documents
This Deed or any of the other Finance Documents or any provision hereof or thereof except as otherwise expressly pennitted hereunder, ceases to be in full force and effect except at the stated termination date thereof, or shall be assigned or otherwise transferred or is revoked, declared void, or prematurely tenninated by any party thereto (other than with the prior written consent of the Debenture Trustee which shall be given in accordance to the Approved Instructions).
(v) Force Mqjeure
Occurrence of force majeure events like fire, flood, earthquake, strike, lock out, civil unrest, terror attacks etc. which results in a Material Adverse Effect, and such Material Adverse Effect continues for a period of 90 (ninety) days.
(w) Tax Claim
Any claim by tax authorities which in the opinion of Debenture Trustee could result in a Material Adverse Effect and which if capable of being remedied has not been remedied within a period of 15 (fifteen) days from the issuance of such claim unless the Issuer has contested such claims in good faith and in accordance with relevant procedures under the applicable Law.
(x) Receivables and Default under the Escrow Account Agreement
(i) The Issuer fails to comply with the funding requirement of the DSR Amount within the timelines stipulated in Clause 8.1.2 (DSR Amount) of Section A.
(ii) If the shortfall in DSRA has not been met to maintain the amounts equivalent to the DSR Amount within 7 (seven) days from the date of liquidation of the DSRA in the form of fixed deposits or if such shortfall amounts equivalent to meet the DSR Amount is not made available in the Escrow Account on the instructions of the Debenture Trustee (acting on Approved Instructions).
(y) Breach of Material Agreements
If the Issuer:
(i) Contravene any tenns of any material contracts or agreements entered into by the Issuer in relation to the business of the Issuer;
(ii) Breach the Constitutional Documents of the Issuer.
(z) If the Issuer fails to furnish proof of payment of TDS and TDS certificates to the Debenture Trustee within such timelines as provided under the applicable Law and this Deed.
(aa) Listing of the Debentures
(i) The Issuer fails to get the Debentures listed on the concerned stock exchange within 20 (twenty) days from the Deemed Date of Allotment applicable to the relevant Tranche.
(ii) The Debentures are delisted from the concerned stock exchange during the tenure of the Debentures for any reason.
(ab) Financial Statements
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Any adverse qualification made by the auditors in the audited financial statements of the Issuer which amounts to a Material Adverse Effect.
(ac) Rating
Downgrade in the credit rating of the Issuer / Debentures by any Credit Rating Agency, below BBB+ or an equivalent rating.
(ad) Miscellaneous
Any other Event(s) of Default, as may be set out in the other Finance Documents.
5.2 Remedies
Upon the occurrence of an Event of Default, the Debenture Trustee shall, in accordance to the Approved Instructions and upon request of the Debenture Holders, exercise any or all, or a combination of, the following remedies, without prejudice to any other right which the Debenture Holders may be entitled to exercise under the Finance Documents:
(a) Declare all or any part of the Secured Obligations to be immediately (or on such dates as the Debenture Trustee may specify) due and payable, whereupon it shall become so due and payable;
(b) Require the Issuer to redeem all the outstanding Debentures, such that the Debenture Holders receive the Redemption Instalments along with accrued but unpaid Interest and all other costs, charges and expenses incurred under or in cmmection with this Deed and other Finance Documents and/ or declare that the
----- Interest Payment Date shall fall on the 1" day of every Month; -----~~---
(c) Appoint Nominee Directors;
(d) Exercise their rights under the Finance Documents, including in relation to enforcement of Security Interest created under this Deed and other Finance Documents towards repayment of the Secured Obligations;
(e) Encash the PDCs in the manner provided under Clause 6.4 (Post Dated Cheques and Undated Cheques) of Section A (either together or in multiple) to the extent required to recover the outstanding Secured Obligations;
(f) Freely assign all rights nuder this Deed and/or the Finance Documents.
(g) Take such action with respect to the enforcement of the Debenture Secmity as may be prescribed under the Finance Documents, including but not limited to:
(i) Settle, arrange, compromise and submit to the courts or tribunals in Delhi or to arbitration any account, claims, questions or dispute whatsoever which may arise in connection with the Debenture Security or in any way relating to the Debenture Security and execute, release or other discharges in relation thereto;
(ii) Bring, take, defend, compromise, submit to the courts or tribunals in Delhi or to arbitration and discontinue any actions, suits or proceedings whatsoever, civil or criminal, in relation to any portion of the Debenture Security;
(iii) Through authorized agents and representatives, enter any place or premises where the Debenture Security or their records may be situated kept or stored. For such entry, the Debenture Trustee may do all acts deeds or things deemed necessary by the Debenture Trustee;
(iv) Assent to the entry into, tennination or modification of any contracts or arrangements which may be subsisting in respect of the Debenture Security including the terms of any concession or licenses for the time being held; and
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(v) Exercise step-in rights created in relation to the Secured Assets, m accordance with the tenus of the Finance Documents, subject to applicable Law;
(h) Freeze and solely operate the Escrow Account, including encashing the DSR Amounts; and
(i) exercise such other rights as the Debenture Trustee may deem fit under applicable Law to protect the interest of the Debenture Holders including taking appropriate action under the provisions of Insolvency and Bankruptcy Code, 20 16;
5.3 Expenses on Preservation of the Debenture Security of the Issuer and of Collection
Subject to the terms of the Finance Documents, all reasonable expenses (along with supporting bills and/ or invoices) incurred by the Debenture Trustee after an Event of Default has occurred in connection with the:
(a) Preservation of the Debenture Security (whether then or thereafter existing); and
(b) Collection of all amounts due under the Finance Documents,
shall be payable by the Issuer.
The Issuer agrees to accept the Debenture Trustee's accounts as sufficient evidence of the amount received on realization and of all charges and expenses incurred by the Debenture Trustee. Further, a certificate of the Debenture Trustee setting out the amounts due (along with supporting bills and/or invoices) and payable to the Debenture Holders any part thereof under the Finance Documents shall be final Mid-binding on the Issuer with respect to such amounts due.
5.4 Right to Disclose/Publish the Names of the Issuer and their Directors as Defaulters
Upon the occurrence of an Event of Default the Debenture Trustee shall, in accordance with the provisions of applicable Law and to the extent required under Law, disclose the name of any Obligor and each of the directors of the Issuer to the Reserve Bank of India, CIBIL or any other Govenunental Authority in this behalf. The Debenture Holders, the Debenture Trustee and the Reserve Bank of India and any other Govennnental Authority shall pursuant to the provisions of applicable Law, have the right to publish the name of any Obligor and the directors of the Issuer as defaulters in such manner and through such medium as they in their absolute discretion may think fit.
The Issuer undertakes not to take any action inconsistent with or prejudicial to the aforesaid rights of the Debenture Trustee under this Clause 5.4 (Right to Disclose/ Publish the Names of the Issuer and their Directors as Defaulters).
6. REPRESENTATIONS AND WARRANTIES
6.1 General Warranties
In addition to the representations and warranties furnished by the Issuer under Clause 7 (Representations and Warranties) of Section A of this Deed, the Issuer hereby represents and warrants that:
(a) Status
The Issuer is duly incorporated and validly existing under the law of its jurisdiction of incorporation.
(b) Binding Obligations
The obligations expressed to be assumed by the Issuer in each Finance Documents are, legal, valid, binding and enforceable obligations.
(c) Non-conflict with Other Obligations
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The entry into and perfonnance by the Issuer, and the transactions contemplated by, the Finance Documents do not and will not conflict with:
(i) any applicable Law;
(ii) its Constitutional Documents; or
(iii) any agreement or document binding on the Issuer,
nor (except as provided in Finance Documents) result in the existence of, or oblige it to create, any Security Interest over any of its assets.
(d) Power and Authority
It has the power to enter into, perfonn and deliver, and has taken all necessary actions to authorise its entry into, perfonnance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
(e) Validity and Admissibility in Evidence
(i) All Authorisations required:
(A) to enable the Issuer to lawfully enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;
(B) to enable the Issuer to create the Security Interest expressed to be created pursuant to any Finance Documents to which it is a party and to ensure that
____ ----~\lCh Security Interest has the priority and ranking it is expressed to have, ___________ -
have been obtained or will be obtained or effected as per the tenns of this Deed and other Finance Documents and to the extent obtained, are in full force and effect.
(ii)All Authorisations required for it to carry on its Business have been obtained or effected and are in full force and effect.
(f) No Filing or Stamp Taxes
Other than the payment of stamp duty which has already been paid and is shown on the face of each relevant Finance Documents, registration of the relevant Finance Documents with the relevant sub-registrar of assurances (under the Registration Act, 1908) and the filing of fonns to perfect the Security Interest created under the Finance Documents are made as required under the Act and I or under the Finance Documents with the relevant Registrar of Companies, it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.
(g) No Deji:wlt
(i) No Event of Default or Potential Event of Default is continuing or might reasonably be expected to result from the issue of Debentures.
(ii) No other event or circumstance is outstanding which constitutes a default under any other material agreement or instnnnent which is binding on it or to which any of its assets are subject and no notice has been received and no proceeding is threatened in relation to any such agreement or instrument.
(iii) No default, howsoever described, has occurred in relation to any indebtedness (including any contingent liabilities) of the Issuer and the
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name of the Issuer has ever appeared in the defaulters' list of CIBIL or RBI.
(h) No Misleading Information
(i) Any factual infonnation provided by the Issuer in relation to any Finance Document is true and accurate in all respects as at the date it was provided or as at the date (if any) at which it is stated.
(ii) Nothing has occurred or been omitted from the factual infonnation referred to in sub-paragraph (i) above and no infonnation has been given or withheld that results in that infonnation being untrue or misleading.
(iii) all necessary disclosures have been made by the Issuer in this Deed and the Issue Document(s) including but not limited to statutory and other regulatory disclosures. The infonnation provided to the Debenture Holders and its representatives and agents during the preparation and negotiation of Finance Documents was provided by the Issuer and its respective representatives in good faith and was when given, and is as of the date hereof, true, accurate, complete and not misleading.
(i) Financial Statements
(i) The audited financial statements of the Issuer for the immediately preceding financial year ("Financial Statements") truly and fairly represent its financial condition and operations as at the end of and for the relevant Financial Year. ---·-·---
(ii) There has been no Material Adverse Effect in its business or financial condition since the date of the Financial Statements.
(iii) There is no indebtedness (whether arising under contract or otherwise and regardless of whether or not contingent) which was not disclosed in the Financial Statements (or by the notes thereto) or reserved against therein, nor any unrealised or anticipated losses which were not so disclosed or reserved against.
Gl Ranking
(i) Each Security Document, to which it is a party, creates (or, once entered into and when the actions specified therein for creation of security have been undertaken in accordance with the tenus set out herein and therein) will create in favour of the Debenture Trustee, the Security Interest which it is expressed to create with the ranking and priority it is expressed to have.
(ii) Without limiting the above, the payment obligations of the Issuer under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by the Jaw in its place of incorporation applying to companies generally.
(k) Title
(i) The Issuer has good and marketable title to, or valid leases and licences of or is otherwise entitled to use, all assets necessary or desirable for it to carry on its Business as it is being or is proposed to be conducted.
(ii) The Issuer has good, clear and marketable title to the assets on which the Issuer is required to create the Security Interest pursuant to the Finance Documents, and such assets are free from all Encumbrances except the
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Pennitted Security, and the Security Interest created pursuant to, or pennitted by, the Finance Documents.
(iii) Each of the Hypothecated Property and the Mortgaged Property is, in all cases free and clear of all Security Interest except the Pennitted Security and/or Security Interest created pursuant to the Finance Documents, and no contracts or arrangements, conditional or unconditional, exist for the creation by the Issuer of any Security on the Hypothecated Property and the Mortgaged Property save and except for the agreements pertaining to the Permitted Security.
(I) No proceedings pending or threatened
(i)
(ii)
(iii)
No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, is likely to have a Material Adverse Effect and no such proceedings have been started or threatened against the Issuer.
The Issuer is not aware of any circumstances which are likely to give rise to any snch litigation, proceeding, investigation or inquiry materially affecting the Issuer.
There are no disputes with any revenue or taxation authority or government authority or other official department in India or elsewhere, in relation to the affairs of the Issuer which, if determined adversely, would have a Material Adverse Effect, and there are no facts which the_ ______ ...
---- --·-·-· .. 1Ssuer is aware of which may give rise to any such dispute.
(iv) There are no claims pending against the Issuer by an employee or workman or third party, in respect of any accident or injury or termination of employment, which would have a Material Adverse Effect.
(m) No Immunity
(i) Neither the Issuer nor any of its assets are entitled to immunity from suit, execution, attachment or other legal process in India.
(ii) Entry by the Issuer into the Finance Documents (to which it is a party) constitutes, and the exercise of its rights and perfonnance of and compliance with its obligations under the Finance Docuinents (to which it is a party) will constitute, private and commercial acts done and perfonned for private and commercial purposes.
(n) Solvency
(i) The Issuer is able to, and has not' admitted its inability to, pay its debts as they mature and has not suspended making payment on any of its debts and it will not be deemed by a court to be unable to pay its debts within the meaning of the applicable Law, nor in any such case, will it become so in consequence of entering into the Finance Documents.
(ii) The Issuer has not, by reason of actual or anticipated financial difficulties, commenced, or intends to commence, negotiations with one or more of its creditors with a view to rescheduling any of their Financial Indebtedness.
(iii) The value of the assets of the Issuer is more than its liabilities (taking into account contingent and prospective liabilities) and it has sufficient capital to carry on its Business.
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(iv) No moratorium has been, or may, in the reasonably foreseeable future be, declared in respect of any of the indebtedness of the Issuer.
(v) The Issuer has not taken any corporate action nor has taken any legal proceedings or other procedure or steps in relation to any bankruptcy proceedings.
(vi) The Issuer does not have accumulated losses equal to or exceeding 50% (fifty percent) of the sum total of its paid-up capital and free reserves.
(vii) No corporate action, legal proceeding or other procedure or step described in Clause 5.1.2(j) (Insolvency Proceedings) of Section B has been taken or is currently pending or threatened in relation to the Issuer and none of the circumstances described in Clause 5.1.2(i) (Insolvency) of Section B applies to the Issuer.
(o) Compliance with Applicable Law, Authorisations and Licenses
The Issuer's Business is being conducted in all respects in compliance with applicable Law. The Issuer (a) has obtained all material Authorisations required under applicable Law for carrying on its Business effectively in the manner, in which such businesses are carried on and such Authorisations are in full force and effect; and (b) is in compliance in all respects with the tenus and conditions of such Authorisations, and (c) has received all approvals and consents required by it from any Person under the tenus of its Constitutional Documents in relation to the Debentures and the Finance Documents.
(p) Finance Documents
The Issuer confirms that there has not occurred any amendment or modification of any Finance Documents in a manner which is not pennitted by the Debenture Trustee.
(q) Taxes and Employee benefits
(i) The Issuer has satisfactorily paid all its dues as on date for or on account of any Tax due and payable to any Governmental Authority, and as such there are no outstanding dues payable by the Issuer to any Governmental Authority for or on account of any Tax.
(ii) The Issuer has not received any notice or intimation till date of Taxes or any other sums due and payable by it to any Governmental Authority.
(iii) Other than assessments being undertaken in the ordinary course of business, there are no proceedings pending before or initiated or threatened by any Tax authority in respect of the Issuer which could result in any Security Interest being or becoming subject to any Tax claims pursuant to Section 281 of the (Indian) Income-tax Act, 1961. The Issuer has paid all employee benefits in accordance with applicable Law and there are no outstanding payments to be made in relation to the employee benefits.
(r) Compliance with Applicable Law
The issue of the Debentures is in compliance with applicable Law including all provisions of the Companies Act
(s) Payment of Outstanding Amounts
Except as disclosed to the Debenture Trustee all outstanding dues, of an amount of INR 1,00,000 (Rupees One Lakh only) or above, payable to any creditor of the Issuer (including any operational or financial creditor) been paid on the relevant due date.
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(t) Breach of Material Agreements
The Issuer confirms that it is in compliance with the tenus of all material agreements and contracts in relation to the business of the Issuer and there has not occurred any breach or threatened breach or tennination of such agreements or contracts nor has any amendment or modification of such agreements or contracts has been proposed or undertaken.
7. OTHER RIGHTS OF THE DEBENTURE TRUSTEE, POWERS AND DISCRETIONS
7.1 Relationship between the Debentnre Trustee and the Issuer
7 .1.1 The Debenture Trustee shall not, in any respect be an agent of, or trustee for, the Issuer by virtue of this Deed or the other Finance Documents.
7.1.2 The Debenture Trustee shall not be liable to the Issuer for any breach by any of the other parties to any of the Finance Documents.
7.2 Consent of Debenture Holders
7 .2.1 Each Debenture Holder may appoint a nominee who shall be duly authorized to provide requisite consents/approvals to be provided by the Debenture Holder under the Finance Documents and the Debenture Trustee shall recognize the directions provided by such duly authorized nominee of the Debenture Holder.
7 .2.2 It is hereby agreed that for all matter requiring fhe Approved Instructions, the Debenture Holders (and their. duly appointed nominees) shall have the option to provide the same~hY····~····~·······-···-· way of an e-mail and fhe Debenture Trustee shall recognise the same.
7.3 Nominee Director
7.3.1 The Debenture Holders and the Debenture Trustee shall have a right to appoint a nominee director as per fhe terms of this Deed and in accordance wifh applicable Law on the Board of the Issuer (hereinafter refened to as the "Nominee Director") upon the occun-ence of:
(a) an Event of Default;
(b) Default in creation of Debenture Security in tenus of the Finance Documents; and/or
(c) Default in redemption of Debentures, in tenus of this Deed.
7.3.2 The Nominee Director shall not be liable to retire by rotation nor be required to hold any qualification shares. Subject to applicable Law, the Issuer shall appoint the Nominee Director fmihwith on receiving a notice to that effect from the Debenture Trustee. The Nominee Director shall be appointed on all key committees of the Board of the Issuer. Subject to applicable Law, the Issuer shall take steps to amend its Constitutional Documents for this purpose if necessary.
7.3.3 The Issuer shall ensure that the Nominee Director is not and not deemed to be an "officer in default" or "person in-charge" of the Issuer.
7.3.4 The Issuer shall indemnifY and hold harmless each Nominee Director from and against any damages suffered or incurred by or claim brought or made against such Nominee Director as a result of or relating to any breach of applicable Law by the Issuer or against any claims and liabilities arising on account of their being directors on the Board of the Issuer to the maximum extent penuitted under the applicable Law.
7.4 General Rights, Powers and Discretions
7.4.1 In addition to the other powers conferred on the Debenture Tmstee including inter alia, under Clause 7 (Other Rights of the Debenture Trustee, Powers and Discretions) of Section Band under Schedule II (Duties of the Debenture Trustee) of this Section Band
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provrsrons for its protection and not by way of limitation or derogation of anything contained in this Deed nor of any statute limiting the liability of the Debenture Trustee, it is expressly declared as follows:
(a) The Debenture Trustee may, in relation to these presents, act on the opinion or advice of or any infonnation obtained from any solicitor, counsel, advocate, valuer, surveyor, broker, auctioneer, qualified accountant or other expert obtained by the Issuer or by the Debenture Trustee. Any such advice, opinion or infonnation and any communication passing between the Debenture Trustee and their representative or attorney or a receiver appointed by them may be obtained or sent by letter, facsimile, email, or telephonic message.
(b) The Debenture Trustee shall be at liberty to accept a certificate signed by any one of the authorized signatories of the Issuer as to any act or matter prima facie within the knowledge of the Issuer as sufficient evidence thereof and a like certificate that any property or Assets are in the opinion of the Director so certifying worth a pm1icular sum or suitable for the Issuer's purpose or business as sufficient evidence that it is worth that sum or so suitable and a like certificate to the effect that any particular dealing or transaction or step or thing is in the opinion of the director so certifying expedient as sufficient evidence that it is expedient.
(c) The Debenture Trustee shall be at liberiy to keep these presents and all deeds and other documents of title relating to any of the Secured Assets at its place of business or if the Debenture Trustee so decides with any banker or company in whose business includes undertaking-the.safe ci.isiocly of documents or with any advocates or finn of solicitors. The Debenture Trustee may pay all sums required to be paid on account of or in respect of any such deposit.
(d) Save as herein otherwise expressly provided, the Debenture Trustee shall, as regards all trusts, powers, authorities and discretions have absolute and uncontrolled discretion as to the exercise thereof and to the mode and time of exercise thereof and in the absence of fraud, negligence or wilful misconduct shall not be responsible for any loss, costs, charges, expenses or inconvenience that may result from the exercise or non-exercise thereof.
(e) Subject to the provisions of Schedule I of this Section Band unless specifically mentioned under this Deed or the other Finance Documents, if the approval, consent or opinion of Debenture Trustee is required to be exercised for any matter under this Deed or the other Finance Documents, such matter shall require either the approval in writing of the Majority Debenture Holders present and voting at a meeting.
(f) The Debenture Trustee shall maintain customary books and records relating to the receipt and disbursement of all monies which it may receive or disburse under the Finance Documents. The Debenture Trustee shall, on written request of any of the Debenture Holders, furnish them with all such infonnation as may be reasonable required by them. The Debenture Tmstee shall keep copies of all the reports and returns delivered to or filed by it.
(g) The Debenture Trustee shall have full power to detennine all questions and doubts arising in relation to any of the provisions hereof and every such detennination, bona fide made, whether or not the same shall relate wholly or partially to the acts or proceedings of the Debenture Trustee, shall be conclusive and binding upon all Persons interested hereunder. Without limiting the effect of the foregoing, in respect of any doubt or ambiguity arising in relation to any of the provisions of these presents or if the Debenture Trustee is unsure as to the manner in which it should exercise its powers, authorities, discretions, rights or
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remedies under these presents and the other Finance Documents, the Debenture Trustee may obtain the instructions or directions of Debenture Holders, and it shall not be liable to the Debenture Holders or any other party for so acting in accordance with such instructions or directions.
7.4.2 Provided that nothing contained in this Clause 7.4.2 (General Rights, Powers and Discretions) shall exempt the Debenture Trustee from or indemnify them against any and all losses, liabilities, claims, actions, damages, fees and expenses for breach of trust nor any and all losses, liabilities, claims, actions, damages, fees and expenses which attaches to the Debenture Trustee in respect of any negligence, default, breach of trust, fraud or wilful misconduct which the Debenture Trustee may be guilty of in relation to their duties hereunder.
7.5 Breach of Covenant by the Issuer may be waived
The Debenture Trustee shall not, unless written consent has been given by the Debenture Holders or directed by a resolution of the Debenture Holders at a meeting of the Debenture Holders, waive any breach by the Issuer of any of the covenants and provisions in this Deed and the other Finance Documents. Further, such waiver would be granted by the Debenture Trustee after imposing such terms and conditions as approved by the Debenture Holders and such waiver shall be without prejudice to the rights of the Debenture Trustee or the Debenture Holders in respect of any subsequent breach thereof. Any waiver or consent granted by the Debenture Trustee under this Deed will be effective only if given in writing and then only in the instance and for the purpose for which it was given.
7.6 Power of Debenture Trustee to Delegate
The Debenture Trustee may, in the execution and exercise of all or any of the trusts, powers, authorities and discretions vested in them, act by an officer or officers for the time being of the Debenture Trustee and the Debenture Trustee may also, whenever the Debenture Trustee thinks it is expedient, delegate by power of attorney or otherwise to any such officer all or any of the trusts, powers, authmities and discretions vested in them be these presents and any such delegation may be made upon such tenus and conditions and subject to such regulations (including power to sub-delegate) as the Debenture Trustee may think fit.
7.7 Powers of Debenture Trustee to Employ Agents
The Debenture Trustee may, in carrying out the trust business, employ and pay any person or concur in transacting any business and do or concur in doing all acts required to be done by the Debenture Trustee including the receipt and payment of reasonable moneys and shall be entitled to charge and be paid all usual professional and other charges for business transacted and acts done by them in connection with the trusts hereof and also its reasonable charges in addition to the expenses incurred by them in connection with matters arising out of or in connection with these presents.
7.8 Debenture Trustee may Contract with the Issuer
Neither the Debenture Trustee nor any agent of the Debenture Trustee shall be precluded from making any contract or entering into any arrangement or transaction with the Issuer or with itself in the ordinary course of business of the Debenture Trustee or from undertaking any banking, financial or agency services for the Issuer either with or without a commission or other remuneration or any other contract or arrangement or transaction with the Issuer or being concemed or interested in any such contract or arrangement or transaction which any other Issuer or person not being a Debenture Trustee would he entitled to enter into with the Issuer and they shall not be in anywise liable to account either to the Issuer or to the Debenture Holders for any profits made by them thereby or in connection therewith and the Debenture Trustee or any agent of the Debenture Trustee
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shall also be allowed to retain for their or his own benefit any customary share of brokerage, fee, commission, interest, discount or other compensation or remuneration allowed to them or him.
7.9 Appointment of Debenture Trustee as Attorney ofthe Issuer
7.9.1 Appointment
The Issuer hereby irrevocably appoints the Debenture Trustee to be appointed under these presents to be its attorney or attorneys, and in the name and on behalf of the Issuer to act and execute all deeds and things which the Issuer is authorised to execute and do under tbe covenants and provisions contained herein and other Finance Documents and generally to use the name of the Issuer in the exercise of all or any of the powers by these presents or under the Finance Documents or by applicable Law conferred on the Debenture Trustee and also to execute on behalf of the Issuer at the cost of the Issuer the powers hereunder or by applicable Law conferred on the Debenture Trustee and also to execute on behalf of the Issuer at the cost of the Issuer such documents and deeds as may be necessary to give effect to the provisions referred to hereinabove and other Finance Documents and also for preservation, enforcement and realisation of the charge created hereunder and under other Finance Documents and the Issuer shall bear the expenses that may be incurred by the Debenture Trustee in that behalf, provided at any time prior to the occurrence of an Event of Default, the Debenture Trustee shall exercise its powers under this Clause 7.9.1 (Appointment) only if the Issuer fails to comply with the instructions of the Debenture Trustee under this Deed.
7.9.2 Ratification
The Issuer covenants with the Debenture Trustee to ratifY and confirm all acts or things made, done or executed by any attorney as contemplated hereinabove.
7.10 Retirement and Removal of Debenture Trustee
7.10.1 Resignation
(a) The Debenture Trustee may at any time, without assigning any reason and without being responsible for any loss or costs occasioned thereby, resign as the trustee, by giving a prior written notice of 60 (sixty) days to all Parties, provided that it shall continue to act as trustee until a successor trustee is appointed by the Issuer with the Approved Instructions of the Debenture Holders (which consent shall not be unreasonably withheld).
(b) The Issuer shall, upon receipt of notice of resignation issued by the Debenture Trustee, take prompt steps to appoint another entity acceptable to the Debenture Holders, as trustee for the Debenture Holders in place of the Debenture Trustee (the "Successor Trustee").
7.10.2 Removal
The Debenture Holders may remove the Debenture Trustee by passing a resolution of the Debenture Holders, in accordance with applicable Law, and nominate an entity competent to act as their trustee and require the Issuer to appoint such entity as the Successor Trustee. The Issuer shall within 15 (fifteen) days of receipt of the aforesaid resolution take all necessary steps to appoint the entity named in the resolution as the Successor Trustee and complete all necessary fonnalities to give effect to such appointment.
7.10.3 Successor Trustee as the Debenture Trustee
Upon appointment of the Successor Trustee pursuant to the preceding sub-Clauses 7.10.l(Resignation) and 7.1 0.2 (Remova[) of Section B above, all references in this Deed to the Debenture Trustee shall, unless repugnant to the context, mean and refer to the Successor Trustee and the Successor Trustee shall without any further act or deed succeed
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to all the powers and authorities of the Debenture Tmstee as if it had been originally appointed as the Debenture Trustee.
7.11 Debenture Trustee's Remuneration
7.11.1 Subject to the tenus of the Finance Documents, the Issuer shall in each and every year until the redemption of the Debentnres pay to the Debentnre Trustee so long as it hold the office of the debenture trustee of these presents, remuneration agreed between the Issuer and the Debenture Trustee for its services as Debentnre Tmstee in addition to all legal, documented travelling and other costs, charges and expenses which the Debentnre Tmstee or its officers, employees or agents may incur in relation to execution of the tmst and all other documents affecting the security herein. The remuneration shall continue to be payable until the Debenture Tmstee is finally discharged. The remuneration of the Debenture Trustee shall be as provided under the Debenture Trustee Agreement.
7.11.2 The Issuer undertakes to pay all fees payable to the Debentnre Trustee.
7.11.3 Subject to the terms of the Finance Documents, the Issuer shall indemnifY the Debenture Trustee against all actions, proceedings, costs, charges, expenses, claims and demands whatsoever which may be brought or be made against or incurred by the Debenture Trustee in respect of any matter or thing done or omitted to be done without its wilful default or gross negligence in respect of or in relation to the proper1ies and Debenture Security charged/to be charged to the Debenture Trustee in terms of this Deed and other Finance Documents.
8. RELEASE/SUBSTITUTION OF SECURITY
8.1 All the terms and conditions relating to release or substitution of other Debenture Security shall be governed as per the tenus and conditions provided in the relevant Finance Documents. Provided that any release or substitntion of Debenture Security shall only be penuitted on the basis of the Approved Instructions or with the prior written consent of the Debentnre Holders and up to the extent and on the conditions as may be prescribed by the Debentnre Holders.
8.2 In accordance with the Approved Instructions and upon receiving the prior written consent of the Debenture Holders, the Debentnre Trustee may, at the request and cost of the Issuer, release, re-assign or reconvey to the relevant mortgagor, such portion of the Debenture Security as specified by the Debenture Holders.
8.3 The reconveyance and reassignment or the perfonuance of actions as stated hereinabove or the conveyance and other deeds, documents and writings in case of the Mortgaged Property or transfer of mortgage or other assurance reqnired to be created, by the Debenture Trustee acting for the benefit of the Debenture Holders, shall, if executed by any of the duly and validly authorized officers of the Debenture Trustee, be deemed as good and effectual as if the same had been executed by the Debentnre Trustee acting for the benefit of the Debenture Holders.
9. INDEMNITY
9.1 Generallndemnity
9.1.1 The Issuer shall, within 10 (ten) days of demand, indemnifY the Debenture Trustee/Debenture Holders from time to time, against any and all losses, liabilities, obligations, damages, judgments, costs, expenses (including, without limitation, advisors' fees), claims, fines, penalties, proceedings, actions or demands, of any kind or nature incurred by the Debentnre Trustee I Debentnre Holders, unless otherwise specified hereunder in this Clause 9.1.1 (General Indemnity), as a resnlt of:
(a) the issuance and subscription to or purchase of the Debentures;
(b) exercise of any rights or perfonnance of any obligations of the Secured Parties under any Finance Docuin~nts;
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(c) enforcement of any Debenture Secmity;
(d) loss in reputation in respect of the business or affairs of the Issuer. Prorided that the indemnity under this Clause 9.1.1(d) (General Indemnity) shall not extend to loss caused to the Debenture Trustee and/ or the Debenture Holders under or pursuant to the loss of reputation of directors or employees of the Obligors acting in their personal capacity;
(e) costs and expenses payable pursuant to the Finance Documents;
(f) an inaccuracy, misrepresentation or any breach of any representation or warranty made by the Obligors in any Finance Documents;
(g) any breach of any covenant or obligation of contained in any Finance Documents (other than by the Debenture Trustee);
(h) any liability (Tax or otherwise) arising out of the related party transactions undertaken by the Issuer; and
(i) any Tax liabilities on account of Goods and Service Tax or any review or searches carried out by any tax authority on the Obligors, as applicable.
9.1.2 Any indemnification payment made by the Issuer shall be grossed up to take into account any Taxes, payable by the Debenture Trustee I Debenture Holders or deductible by the Issuer on such payment. The indemnification rights of the Debenture Trustee I Debenture Holders under this Deed are independent of, and in addition to, such other rights and remedies as the Debenture Trustee I Debenture Holders may have under the applicable Law or in equity or otherwise, including the rigl!t to seek specific perfom1ance or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby. The Issuer acknowledges and agrees that any payments to be made pursuant to this Clause 9.1.2 (General Indemnity) are not in the nature of a penalty but merely reasonable compensation for the loss that would be suffered, and therefore, the Issuer waives all rights to raise any claim or defence that such payments are in the nature of a penalty and undertakes that they shall not raise any such claim or defence.
9.1.3 The Debenture Trustee or Receiver may retain and pay out of any money in its possession all sums necessary to effect the indemnities contained in this Clause 9.1.3 (General Indemnity) and all sums payable by the Issuer under this Clause shall fonn a part of the Secured Obligations.
9.2 Indemnity to the Debenture Trustee I Debenture Holders
9.2.1 The Issuer shall promptly indemnify the Debenture Trustee/Debenture Holders against any costs (including legal costs), losses or liabilities incuned by the Debenture Trustee I Debenture Holders (acting reasonably) as a result of acting or relying on any notice, request or instruction which it reasonably believes to be genuine, conect and appropriately authmised.
9.2.2 Notwithstanding that the Issuer may have given instructions to the contrary, the Debenture Trustee I Debenture Holders shall not be liable to the Issuer for any loss or damage which may be caused on account of the Debenture Trustee/ Debenture Holders acting in accordance with applicable Law, regulations or rules (including rules and regulations of the various payment systems or with the tenus of the Debenture Trustee's I Debenture Holders' arrangements with banks or financial institutions) except where such loss or damage is caused by the fraud, negligence, or misconduct of the Debenture Trustee. Provided that the Debenture Holders shall not be liable in any manner to the Obligors or any Persons claiming through the Obligors.
9.3 Indemnity to the Debenture Trustee/Debenture Holders in relation to Section 281
9.3 .1 The Issuer hereby irrevocably and unconditionally represents, wanants ap.dconfinns to the Debenture Trustee on a continuing basis that:
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(a) for the purposes of Section 281 of the Income Tax Act, 1961, the Issuer has satisfactorily paid all its dues as on date for or on account of any income tax due and payable to the Govermnent of India, and as such there are no outstanding dues payable by the Issuer to the Govemment of India for or on account of income tax; and
(b) the Issuer has not received any notice or intimation till date of:
(i) any Taxes or any other sums due and payable by the Issuer to any Govermnental Authority; and/ or
(ii) any proceedings pending and/ or initiated and/ or threatened against the Issuer for or on account of any Taxes or any other sums, which may be dne and payable by the Issuer to any Govemmental Authority;
(c) the Issuer hereby indemnifies the Secured Parties and keeps the Secured Parties indemnified without protest or demur for any expenses, costs, losses, clai1ns, actions, damages arising out of or in connection with any inaccuracy or breach of any representation or warranty contained in this Clause 9.3.l(c) (Indemnity to the Debenture Trustee/Debenture Holders in relation to Section 281) or for violation of Section 281 of the Income-tax Act, 1961.
10. PROVISIONS FOR MEETING OF DEBENTURE HOLDERS
11.
The provisions set out in Schedule I of this Section B hereto shall apply to the meetings of the Debenture Holders.
IMPLIEDWAlVER AND MODIFICATIONS
II. I No Implied Waiver or Impairment
No delay or omission of fhe Debenture Tmstee in exercising any right, power or remedy accruing of the Debenture Trustee upon any default hereunder shall impair any such right, power or remedy or be construed to be a waiver thereof or any acquiescence in such default, nor shall the action or inaction of the Debenture Trustee in respect of any default or any acquiescence by it in any default affect or impair any right power or remedy of the Debenture Trustee in respect of any other defaults nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights and remedies of the Debenture Trustee herein provided are cumulative and not exclusive of any rights or remedies provided by Law or equity.
11.2 Modifications
The Debenture Trustee may concur with the Issuer in making any modifications in these presents which in the opinion of the Debenture Trustee would not be materially prejudicial to the interests of the Debenture Holders, and to any modification of the terms of the Debentures or any of the other Finance Documents which is of a formal, minor or technical nature or is to co!Tect a manifest error. The Debenture Trustee shall always be bound by the Approved Instructions while concuning for any modification under this Clause 11.2 (Modifications). Any other change or modification to the tenns of the Debentures shall require approval of the Debenture Holders and to this Deed shall require the approval of the Debenture Holders (unless specified otheiWise). Upon obtaining such approval, the Debenture Trustee and the Issuer shall give effect to the same by executing necessary deed(s) supplemental to these presents or to the Finance Documents (as necessary).
12. TERM
12.1 This Deed shall be effective on and from the date first hereinabove written and shall be in force till the Secured Obligations have been fully discharged and satisfied, and the
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requisite fonnalities for satisfaction of charge in all respects, have been complied with in tenns of the Finance Documents.
12.2 Tennination of this Deed shall not affect any accrued rights or obligations or those intended to be of a continuing nature or to come into force upon tennination or expiry of this Deed.
12.3 The provisions of C1anse 12 (Term), Clause 13 (Governing Law and Jurisdiction) and Clause 14 (Miscellaneous) of this Section Band Clause 10 (Notices) of Section A to the extent relevant or applicable shall survive the tennination of this Deed.
13. GOVERNING LAW AND JURISDICTION
13.1 This Deed shall be governed and interpreted by and construed in accordance with the substantive Laws of India.
13.2 The Issuer agrees that the courts and tribunals in Delhi shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Deed and/ or the Finance Documents and accordingly any suit, action or proceedings (together referred to as "Proceedings") arising out of or in connection with this Deed and/ or the Finance Documents may be brought in such courts or the tribunals and the Issuer irrevocably submits to and accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of those courts or tribunals.
13.3 The Issuer irrevocably waives any objection now or in future, to the laying of the venue of any Proceedings in the courts and tribunals at Delhi and any claim that any such Proceedings have been brought in an inconvenient forum and further irrevocably agree that a judgment in any Proceedings brought in the courts and tribunals at Delhi may be enforced in the courts of any other jurisdiction, (subject to the laws of such jurisdiction) by a suit upon such judgment, a certified copy of which shall be conclusive evidence of such judgment, or in any other manner provided by law.
13.4 Nothing contained in this Clause 13 (Governing Land and Jurisdiction) of Section B, shall limit any right of the Secured Parties to take Proceedings in any other court or tribunal of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction whether concun·ently or not and the Issuer irrevocably submits to and accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of such court or tribunal, and the Issuer irrevocably waives any objection it may have now or in the future to the laying of the venue of any Proceedings and any claim that any such Proceedings have been brought in an inconvenient forum.
13.5 The Issuer hereby consents generally in respect of any Proceedings arising out of or in connection with any Finance Documents to the giving of any relief or the issue of any process in connection with such Proceedings including, without limitation, the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgement which may be made or given in such Proceedings.
13.6 The Issuer irrevocably agrees that, should any Party take any proceedings anywhere (whether for an injunction, specific perfonnance, damages or otherwise in connection with any Finance Document), no immunity (to the extent that may at any time exist, whether on the grounds of sovereignty or otherwise) from those proceedings, from attachment (whether in aid of execution, before judgment or otherwise) of its assets or from execution of judgment shall be claimed by it or with respect to its assets, any such immunity being irrevocably waived.
14. MISCELLANEOUS
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14.1 Conflict Provisions
14.1.1 This Deed shall be read in conjunction with the Finance Documents.
14.1.2 Notwithstanding anything to the contrary contained in this Deed, or any other Finance Document, the Parties hereby agree, confinn and undertake that in case there is any repugnancy, inconsistency or conflict between the tenus and conditions mentioned in this Deed and other Finance Documents and the provisions as mentioned in the Companies Act, the Companies (Share Capital and Debentures) Rules, 2014, and/or any other notification, circular, press release issued by the Reserve Bank of India from time to time (hereinafter collectively referred to as the "Guidelines"), the provisions as contained in the Guidelines shall prevail and override the provisions of this Deed and other Finance Documents.
14.1.3 Notwithstanding anything to the contrary contained in this Deed, or any other Finance Document, the Parties hereby agree, eonfinn and undertake that in case there is any repugnancy, inconsistency or conflict between the tenns and conditions mentioned in this Deed on one hand and the provisions as mentioned in any of the Finance Documents on the other hand, the provisions as contained in the relevant Finance Document shall prevail and override the provisions of this Deed.
14.2 Discharges and Releases
Notwithstanding any discharge, release or settlement from time to time between the Debentnre Trustee and the Issuer, if any discharge or payment in respect of the obligations of the Issuer under this Deed is avoided or set aside or ordered to be surrendered, paid away, refunded or reduced by virtne of any provision of Law or enactment relating to bankruptcy, insolvency, liquidation, winding up, composition or arrangement for the time being in force or for any other reason resulting in the above, the Debentnre Trustee shall be entitled hereafter to enforce this Deed as if no such discharge, release or settlement had occurred, subject to applicable Law.
14.3 Counterparts
This Deed shall be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument.
14.4 Specific Performance
This Deed shall be specifically enforceable at the instance of any Party. The Parties agree that a non-defaulting Party will suffer immediate, material, immeasurable, continuing and itreparable damage and hann in the event of any material breach of this Deed and the remedies at Law in respect of such breach will be inadequate (each Party hereby waives the claim or defence that an adequate remedy at Law is available) and that such nondefaulting Party shall be entitled to seek specific perfonnance against the defaulting Party for perfonnance of its obligations under this Deed in addition to any and all other legal or equitable remedies available to it.
14.5 Entire Agreement
This Deed, together with the Finance Documents, constitutes and contains the entire agreement and understanding amongst the Parties with respect to the subject matter hereof and supersedes all previous communications, negotiations, commitments, either oral or written amongst the Parties respecting the subject matter hereof.
14.6 Severability
If any provision of this Deed is detennined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part of such provision and the remaining part of such provision and all other provisions of this Deed shall continue to be in full force and effect. If for any reason whatsoever, any provision of this Deed is or becomes, or is declared by a court of competent jurisdiction to be, invalid,
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illegal or unenforceable, then the Parties shall negotiate in good faith to agree on such provision to be substituted, which provisions shall, as nearly as practicable, leave the Parties in the same or nearly similar position to that which prevailed prior to such invalidity, illegality or unenforceability.
14.7 Further Actions
The Parties shall do or cause to be done such further acts, deeds, matters and things and execute such further documents and papers as may be reasonably required to give effect to the tenns of this Deed.
14.8 Rights Cumulative
The rights, powers, privileges and remedies conferred upon the Debenture Trustee and/or the Debenture Holders in this Deed are cumulative and are not exclusive of auy rights, powers, privileges or remedies provided under other Finance Documents or by Law or otherwise.
14.9 Waiver and Discharge
14.9.1 Neither failure to exercise nor any delay in exercising any right, power, privilege or remedy under this Deed shall in any way impair or affect the exercise thereof or operate as a waiver thereof in whole or in part, unless made in writing referring specifically to the relevant provisions of this Deed and signed by a duly authorized representative of such Party. Any waiver provided by a Party in writing shall not affect in any way the validity of this Deed or the right to enforce such obligation, agreement, undertaking or covenant at any other time.
14.9.2 No single or partial exercise of any right, power, privilege or remedy under this Deed shall prevent any further or other exercise thereof or the exercise of any other right, power, privilege or remedy.
14.10 Relationship of the Parties
The Parties are independent contractors. None of the Parties shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Parties except as specifically provided by this Deed. Nothing in this Deed shall be interpreted or construed to create an association or partnership between the Parties, deem them to be persons acting in concert or to impose any liability attributable to such relationship upon any of the Parties nor, unless expressly provided otherwise, to constitute any Party as the agent of any of the other Parties for any purpose.
14.11 Amendments
This Deed may be modified, amended or supplemented only by the mutual written agreement of the Parties, as contemplated under this Deed.
14.12 Limitation on Liability
14.12.1 In addition to the other powers hereby conferred on the Debenture Trustee and the provisions hereof for its protection and not by way of1imitation or derogation of anything in these presents contained nor of any statute limiting the liability of the Trustee, it is expressly declared as follows:
(a) the Debenture Trustee may, in relation to these presents, act on the opinion or advice of any solicitor, counsel, advocate, valuer, surveyor, broker, auctioneer, qualified accountant or other expert whether obtained by the Issuer or by the Trustee and subject to the provisions of the Act and the applicable Debenture Trustees Regulations, the Debenture Trustee shall not be responsible for any loss occasioned by so acting and the Debenture Trustee shall not be liable for acting on any such advice, opinion or information obtained or sent by letter, telegram,
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cablegram, facsimile transmission. The Trustee shall however be liable for all acts of omission and commission on part of its employees;
(b) the Debenture Trustee shall be at liberty to accept a certificate signed by any one of the directors of the Issuer and the Debenture Trustee shall not be bound in any such case to call for further evidence, unless otherwise instructed by the Debenture Holders, or be responsible for any loss that may b_e occasioned by its failing to do so. However, if the Debenture Trustee has cause to believe of any errors and wrongful facts in any snch certificate, then the Debenture Trustee shall cause an independent verification thereof;
(c) the Debenture Trustee shall not be bound to take any steps to ascertain whether any Event of Default has occurred upon the occurrence of which the Debenture Security hereby constituted or constituted under the Finance Documents or the rights under the Debentures become enforceable unless the Debenture Trustee has actual knowledge of such Event of Default. In the event that the Debenture Trustee has knowledge of certain facts which would consequently result in an Event of Default, the Debenture Trustee shall immediately inform the same to the Debenture Holders and declare an Event of Default;
(d) the Debenture Trustee shall not be bound to act at the request or direction of the Debenture Holders under any provisions of these presents unless the Debenture Trustee is indemnified to its satisfaction against all costs, charges, expenses which may be incurred in complying with such request or direction;
(e)_ ~-:unless .otherwise specifically provided, the Debenture Trustee shall not be bound ----------·------(i) to give notice to any person of the execution hereof or to see to the perfonnance or observance of any of the obligations hereby imposed on the Issuer, or (ii) in any way to interfere with the conduct of any the Issuer's business unless and until the Security hereby constituted or the rights under the Debentures shall have become enforceable and the Debenture Trustee shall have determined to enforce the same;
(f) the Debenture Trustee shall be at liberty to keep these presents and all deeds and other documents of title relating to any portion of the Trust Property at its registered office or elsewhere or if the Debenture Trustee so decides with any bank or company whose bnsiness includes undertaking the safe custody of documents or with any finn of advocates or solicitors and the Debenture Trustee may pay all sums required to be paid on account of or in respect of any such deposit;
(g) the Debenture Trustee shall not be responsible for the monies paid by the applicants for the Debentures or be bound to see to the application thereof;
(h) the Debenture Trustee shall not be responsible for acting upon any resolution purported to have been passed at any meeting of the Debenture Holders in respect whereof minutes have been made and signed, even though it may subseqnently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that for any reason the resolution was not valid or binding upon the Debenture Holders; and
(i) without prejudice to the rights to indemnity by applicable Law given to the Debenture Trustee, the Debenture Trustee shall, subject to the provisions of the Act, be entitled to be indemnified out of the Trust Property in respect of all liabilities and expenses incurred by it in the execution or purported execution of the powers and trusts thereof or of any powers, authorities or discretion vested in it pursuant to these presents and against all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in any manner relating to the Trust Property ocany part thereof, except in cases of illegality, fraud, bad
/JJ (90)
faith, negligence, and wilful misconduct of the Debenture Trustee. The Debenture Trustee may retain and pay out of any monies in its hands upon the trust of these presents the amount of any liabilities and expenses necessary to effect such indemnity and also remuneration of the Debenture Trustee as herein provided, and the Debenture Tmstee shall have a lien and charge on the Tmst Property for all moneys payable to it under this Clause 14.2.1 (Limitations on Liability) or otherwise howsoever arising out of or in connection with this Deed or the issuance of Debentures.
14.12.2 Provided that nothing contained in this Clause 14.2.2 (Limitations on Liability) shall exempt the Debenture Trustee from or indemnify it against any liability for breach of trust nor any liability which by virtue of any rule or law would otherwise attach to it in respect of any gross negligence, wilful default, or fraud or breach of trust which the Debenture Tmstee or its employees or agents may be guilty of in relation to its duties hereunder and under the applicable Law.
14.13 Limitation on Rights of Others
Nothing in this Deed, whether express or implied, shall be construed to give to any person other than the Debenture Trustee and the Debenture Holders any legal or equitable right, remedy or claim nuder or in respect of this Deed, except as expressly provided in this Deed, any covenants, conditions or provisions contained herein all of which are, and shall be construed to be, for the sole and exclusive benefit of the Debenture Trustee and the Debenture Holder.
14.14 Administration of Trust
Without prejudice to the other provisions of this Deed, the principal place of administration of the trust shall be in New Delhi.
15. CALCULATIONS AND CERTIFICATES
15.1 Accounts
In any litigation or other proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by the Debenture Trustee are prima facie evidence of the matters to which they relate.
15.2 Certificates and Determinations
Any certification or detennination by the Debenture Trustee of a rate or amount under any Finance Document is conclusive evidence of the matters to which it relates. Notwithstanding the above stated, the Issuer has the right to seek clarification and CO!Tection of such certification or detennination (in case of a manifest error) within 15 (fifteen) days of receipt of such certification or detennination.
15.3 Day Count Convention
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on an actual by actual basis.
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SCHEDULE I
PART A
PROVISIONS FOR THE MEETINGS OF THE DEBENTURE HOLDERS
The following provisions shall apply to the meetings of the Debenture Holders:
1. The Debenture Trustee may, at any time, and the Debenture Trustee shall at the request in writing of the Issuer or of the Debenture Holders representing not less than I!IO'h (one tenth) of the Outstanding Face Value of the Debentures, convene a meeting of the Debenture Holders. Any such meeting shall be held at such place as the Debenture Trustee shall detennine.
2. The Debenture Trustee shall convene a meeting of the Debenture Holders on the happening of any event which constitutes an Event of Default or the occurrence of any event which in the opinion of the Debenture Trustee affects the interests of the Debenture Holders.
3. Notice of Meeting to Debenture Holders
3.1 A meeting of the Debenture Holders may be called by giving not less than 5 (five) days' notice in writing.
3.2 A meeting may be called after giving shorter notice than that specified in sub-clause 3.1 above if consent is accorded thereto by the Majority Debenture Holders.
4. Co_l!!.el!JS andl\1anner of Service of Notice and Persons on whom it is to be Served
4.1 Every notice of a meeting shall specifY the place, day and hour of the meeting. There shall be annexed to the notice of the meeting a statement setting out all the material facts concerning each item of business. Where any item of business relates to the approval of any document by the meeting, the time and place where the document can be inspected shall be specified in the statement aforesaid.
4.2 Notice of every meeting shall be given to:
(a) Every Debenture Holder in the manner provided in this Deed;
(b) The persons nominated by the Debenture Holder as being entitled to Debentures in case of death or insolvency of a Debenture Holder, by sending it through post in a prepaid letter addressed to them by name or by the title of the representatives of the deceased, or assignees of the insolvent or by any like description at the address, if any, in India supplied for the purpose by such persons or until such an address has been so supplied, by giving the notice in any manner in which it might have been given if the death or insolvency had not occurred; and
(c) The Issuer.
4.3 The accidental omission to give notice to, or the non-receipt of notice by, any Debenture Holder or other person to whom it should be given shall not invalidate the proceedings at the meeting.
5. Quorum for Meeting
5.1 A minimum of 2 (two) Majority Debenture Holders or Debenture Holders representing one-tenths in value of the outstanding amount of the Debentures, whichever is lower, personally present shall be the qumum for the meeting of the Debenture Holders except as provided in sub-clause 5.2 hereto.
5.2 If, within half an hour from the time appointed for holding a meeting of the Debenture Holders, a quorum is not present, the meeting, if called upon the requisition of the Debenture Holders shall stand dissolved but in any other case the meeting shall stand adjourned to the same day in the next week, at the same time and place, or to such other
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' 1 •
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day and at such other time and place as the Debenture Trustee may detennine and if at the adjourned meeting also a quorum is not present within half an hour from the time appointed for holding the meeting, the Debenture Holders present shall be the quorum.
6. Chairman of Meeting
6.1 The Debenture Holders personally present at the meeting shall elect one of themselves to be the chainnan thereof on a show of hands.
6.2 If a poll is demanded on the election of the chainnan, it shall be taken forthwith in accordance with the provisions of the Companies Act relating to the meetings of the board of directors of a company, the chainnan elected on a show of hands exercising (for the time being) all the powers of the chainnan under the said provisions.
6.3 The person elected chainnan, as a result of the poll, shall be chainnan for the rest of the meeting.
7. Directors, Authorised Person{s) and Trustees may Attend Meeting
The Debenture Trustee and the directors or authorised person(s) of the Issuer and their legal advisors/solicitors may attend any meeting but shall not be entitled as such to vote thereat.
8. Passing of Resolution by Poll
At any meeting, a resolution put to the vote of the meeting shall be decided on a poll only.
9. Votes
At every such meeting each Debenture Holder shall be entitled to 1 (one) vote in respect of every Debenture of which he is a holder in respect of which he is entitled to vote.
10. Proxies
10.1 Any Debenture Holder entitled to attend and vote at the meeting shall be entitled to appoint another person (whether a Debenture Holder or not) as his proxy to attend and vote instead of himself.
10.2 In every notice calling the meeting there shall appear with reasonable prominence a statement that a Debenture Holder entitled to attend, and vote is entitled to appoint one or more proxies, to attend and vote instead of himself, and that a proxy need not be a Debenture Holder.
10.3 The instrument appointing a proxy and the power of attorney (if any) under which it is signed or a copy of the power of attorney certified by a notary shall be deposited at the registered office of the Issner not less than 48 (forty eight) hours before the time appointed for the taking of the poll and in default, the instnunent of proxy shall not be treated as valid.
10.4 The instrument appointing a proxy shall:
(a) be in writing; and
(b) be signed by the appointer or his attorney duly authorized in writing, or if the appointer is a body corporate, be under its seal or be signed by an officer or an attorney duly authorized by it.
10.5 The instrument appointing a proxy shall be in any of the forms set out in Fonn No. MGT. 11 of the Companies (Management and Administration) Rules, 2014 and shall not be questioned on the ground that it fails to comply with any special requirements specified for such instruments by the Constitutional Documents of the Issuer.
10.6 The Debenture Trustee and every Debenture Holder entitled to vote at a meeting of the Debenture Holders on any resolution to be moved thereat shall be entitled during the period beginning 24 (twenty four) hours before the time fixed for the commencement of
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the meeting and ending with the conclusion of the meeting to inspect the proxies lodged, at any time during the business hours of the Issuer, provided that requisitions for such inspection are received in writing by the Issuer not Jess than 3 (three) days prior to the date of the meeting.
10.7 A vote given in accordance with the tenus of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or the revocation of the proxy or of the authority under which the proxy was executed or the transfer of the Debentures in respect of which the proxy is given, provided that no intimation in writing of such death, insanity, revocation or transfer shall have been received by the Issuer at the registered office before the commencement of the meeting or adjourned meeting at which the proxy is used.
11. To Vote Differently
A Deb en tore Holder entitled to more than I (one) vote or his proxy or other person entitled to vote for him, as the case may be, need not if he votes, use all his votes or cast in the same way all the votes he uses.
12. Scrutineers at Poll
12.1 The chainnan of the meeting shall appoint 2 (two) independent scrutineers to scrutinize the votes given on the poll and to report thereon to him.
12.2 The chairman shall have power, at any time before the result of the poll is declared, to remove a scrutineer from office and to fill vacancies in the office of scrutineer arising fronuJ.J"_h_removal or from any other cause. ____ --·-~--
12.3 Of the 2 (two) scrutineers appointed under this clause, one shall always be a Debenture Holder (not being an officer or employee of the Issuer) present at the meeting, provided such a Debenture Holder is available and willing to be appointed.
13. Manner of Taking Poll and Results Thereof
13.1 Subject to the provisions of the Companies Act, the chainnan of the meeting shall have power to regulate the manner in which a poll shall be taken.
13.2 The result of the poll shall be deemed to be the decision of the meeting on the resolution on which the poll was taken.
14. Voting in case of Joint Holders
In the case of joint Debenture Holders, the vote of the senior who tenders a vote whether in person or by proxy shall be accepted to the exclusion of the other joint holder or holders.
15. Power to Adjourn Meeting
The chainnan of a meeting of the Debenture Holders may, with the consent of the meeting, adjourn the same from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
16. Continuance of Business
The demand of a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which a poll has been demanded.
17. Chairman's Decision Conclusive
The Chainnan of any meeting shall be the sole judge of the validity of every vote tendered at such meeting. The Chainuan present at the taking of a poll shall be the sole judge of the validity of every vote tendered at such poll.
18. Resolution
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18.1
18.2
19.
A resolution passed at a meeting of the Debenture Holders duly convened and held in accordance with these presents shall be binding upon all the Debenture Holders, whether present or not at such meeting, and each of the Debenture Holders shall be bound to give effect thereto accordingly, and the passing of any such resolutions shall be conclusive evidence that the circumstances justify the passing thereof, the intention being that it shall rest with the meeting to determine without appeal whether or not the circumstances justify the passing of such resolution.
If the resolution is approved by such number of Debenture Holders that represent more than 51% (fifty one percent) of the value of outstanding Debentures held by the Debenture Holders who are present and voting or if a poll is demanded, by such number of Debenture Holders that represent more than 51% (fifty one percent) of the value of outstanding Debentures held by the Debenture Holders who are present and voting in such poll ("Majority Resolution").
Minutes
Minutes of all resolutions and proceedings at every such meeting as aforesaid shall be made and duly entered into books from time to time provided for the purpose by the Debenture Trustee at the expenses of the Issuer and any such minutes as aforesaid, if purported to be signed by the chainnan of the meeting at which such resolutions were passed or proceeding held or by the chainnan of the adjourned meeting shall be conclusive evidence of the matters therein contained and until the contrary is proved every such meetiug in respect of the proceedings of which minutes have been made shall be deemed to have been duly held and convened and all resolutions passed thereat or proceedings taken, to have been duly passedall(rfike!1:--~----
PARTB
PROVISIONS FOR THE APPROVED INSTRUCTIONS AND DECISION-MAKING PROCESS
For obtaining any Approved Instructions or consent of the Debenture Holders, the Debenture Trustee (or as applicable, the Issuer or a Debenture Holder) shall provide a notice in writing to the last available address of each Debenture Holder at least 5 (five) days or such shorter notice as may be agreed to by all the Debenture Holders, , prior to the date on which any decision is required to be made, Approved Instruction is sought, or consent is to be provided.
If the notice specifies any notice period, then any instructions/ consents received after such notice period will not be accepted. The Debenture Holders are required to submit their instructions/ consent only in written fonn (which shall include an e-mail) to the Debenture Trustee.
Wherever the Debenture Trustee is inter-alia required to take a decision, make an opinion or exercise discretion or take any action or give instructions in tenns of this Deed or any other Finance Documents, he shall only do so in accordance with the Approved Instructions.
(95)
SCHEDULE II
DUTIES OF THE DEBENTURE TRUSTEE
1. Duties of the Debenture Trustee
In perfonning its obligations in relation to the Debentures:
(b) The Debenture Trustee shall, subject to these presents, perfonn its duties and obligations, and exercise its rights and discretions, in keeping with the trust reposed in the Debenture Trustee by the Debenture Holders, and shall further conduct itself, and comply with the provisions of the Indian Trusts Act, 1882 and all other applicable Law.
(c) The Debenture Trustee shall carry out all its obligations, duties and functions as the Debenture Trustee in accordance with the terms set out in the Finance Documents and where the same is silent or contrary to any other provision of the Finance Documents, on the instructions of the Debenture Holders. It is hereby clarified that the Debenture Trustee shall, unless otherwise provided for in the Finance Documents, seek written instructions from the Debenture Holders and only upon receipt of the relevant instructions from the Debenture Holders, shall the Debenture Trustee exercise sucb rights and perform such duties and obligations referred to in the Finance Documents. Notwithstanding such requirement for instructions in writing, the Debenture Trustee shall never take any action inconsistent with the best interests of the Debentures.
. (d) -· lrt- tne-event the Debenture Trustee shall have knowledge of the occurrence or- -~~~"----- · continuance of any Event of Default or a potential Event of Default, the Debenture Trustee shall promptly notify the Debenture Holders.
(e) The Debenture Trustee shall provide the Debenture Holders with infonnation relating to any cure periods (if any) being availed by the Issuer under the Finance Documents and any steps the Issuer is taking I proposes to take to remedy the default.
(f) The Debenture Trustee shall not do any act, deed or thing whicb is prejudicial or detrimental to the interest of the Debenture Holders.
(g) The Debenture Trustee shall do any act, deed or thing or refrain from doing any act, deed or thing, which may be reasonably expected of the Debenture Trustee under the given circumstances at that point in time, in exercise of its rights and to perfonn its duties and obligations under this Deed and the other Finance Documents, including, for the management, administration, preservation or maintenance of the Secured Assets and/or Debenture Security.
(h) The Debenture Trustee shall forward notice of any Tax or security interest received by the Debenture Trustee in respect of any of the assets over which a Debenture Security has been created, to the Debenture Holders.
(i) Except as otherwise provided herein, or in the other Finance Documents and under written instructions from the Debenture Holders, monies received by the Debenture Trustee hereunder (or pursuant to the other Finance Documents) for the benefit of the Debenture Holders shall be kept segregated from the other assets of the Debenture Holders; provided however the Debenture Trustee shall not be liable to make payment of any interest thereon.
(j) The Debenture Trustee shall keep copies of all repm1s and returns delivered to it by tbe Issuer or filed by it on behalf of the Issuer, all at the cost of the Issuer.
(k) Upon written instructions from the majority of the Debenture Holders, the Debenture Trustee in such capacity as a trustee agrees:
(96) ·J
(i) to execute and deliver all documents, agreements, instruments and certificates contemplated by the Finance Documents to be executed and delivered by the Debenture Trustee or as the Debenture Trustee shall deem advisable and in the best interest of the Debenture Holders;
(ii) to take whatever action shall be required to be taken by the Debenture Trustee by the tenus and provisions of the Finance Documents, to exercise its rights and perform its duties and obligations under such documents;
(iii) subject to the terms and provisions of the Finance Documents, to take such other actions in connection with the foregoing as the Debenture Holders may from time to time direct.
Notwithstanding such requirement for instructions in writing the Debenture Trustee shall never knowingly take any action inconsistent with the best interests of the Debenture Holders.
2. Cumulative Powers in relation to the Debentures
In relation to the Debentures, the powers conferred by each of the Finance Documents in favour of the Debenture Trustee or any receiver, receiver and manager or administrator appointed under any Finance Documents, are:
(a)
(b)
cumulative;
without prejudice to their respective powers under applicable Law, equity or under any of the Finance Documents;-,rrd----- -
(c) may be exercised as often as the Debenture Trustee or such receiver, receiver and manager or administrator deems fit, and the Debenture Trustee or such receiver, receiver and manager or administrator may, in connection with the exercise of their powers, join or concur with any Person in any transaction, scheme or arrangement, and the Issuer acknowledges that the respective powers of the Debenture Trustee and such receiver, receiver and manager or administrator shall, in no circumstances, be suspended, waived or otherwise prejudiced by anything other than an express waiver or variation in writing.
3. The Debenture Trustee shall satisfy itself that the Offer Letter does not contain any matter which is inconsistent with the tenns of the issue of the Debentures or with the Deed.
4. The duties and obligations of the debenture trustee as set forth in Rule 18(3) of the Companies (Share Capital and Debentures) Rules, 2014 shall be deemed to be incorporated herein by reference.
(97)
SCHEDULE III
DETAILS OF SHAREHOLDING
A B c SNo Name of the Percentage of Total Shareholding Percentage of Number of
Shareholder Shareholding in Issuer Shares under Shares subject in the Issuer Security to Security
Interest Interest I. Prayasvin 1.75% !9,62,932 . .
Bhanubhai Patel
2. Trupti Pradip 1.28% 14,31,058 - -
Patel 3. Bhanubhai 0.20% 2,27,490 . .
Patel-Karta-(B I Patel-Hut)
4. Taruna Patel 0.18% 2,06,517 - .
5. Aishwarya 0.00% 2,220 - .
Pray~syitL .. ··------ ~~-·-·.
Patel 6. Akansha P. 0.55% 6,15,220 . .
Patel 7. Emtici 23.47% 2,63,37,818 72.90% I ,92,00,000
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