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TRANSCRIPT
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INDIA NON JUDICIAL
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I, ~-~- - "" .'1.i . AulhQrlsa~ Signatory
lu~.--Authorised Slgn~tory
For RMZ lnfratech Private Limited
CERTIFIED Authorised Signatory Statutory Alert! 1. Tho eulhenllclly' orthls Slemp Cer11flcale should be verlflBd el •www.shclleslamp.com•. Any discrepancy In the d&lells on thls'CerUllct1le end es
evallable on Iha webslle renders 11 lnvelld. 2. n1e o.nus or checking the leoltlmacy Is on the users of !ho cerltllcete. 3. In cas6 of any discrepancy please Inform Iha Competonl Authority. •~R~,.;,um"'
Directof
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INDIA NON JUDICIAL
I §~_yer_nme~!.~f N.<!~Ional C~piJa_l~I~!di~l_Y ~f 11e_1Qj \
; i Certificate No.
! ! Certificate Issued Date
: i Account Reference
; j Unique Doc. Reference
; , Purchased by Description of Document·
Property Description · · ''
Consideration Price (R·;,tF~ .:-·:· .. -,·;-1.
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1-~lhorl••~ S4Jnalor)I
For RMZ INFOTECH PVT. LTD.
Authorised Signatory
. iror RMZ lnfratech Private Limited
Statutory Alart: 1. Th& aulhenllclty or thlR SI amp Certlncate should behrtfiroitffl.edvSlmtNl'totJmp.com'. Any dlscropancy In lho deh1llG on this Certlncato and es
available 9n \he website renders II Invalid. · . · 2. The Onus of checJdng Iha leglllmacy Is o_n the users of Iha certlflcele, 3. In cil&e of any dlacrnpancy pleaso lnrorm the Co,mpalent Authority.
'" .
RMZ INFRATECH PRIVATE LIMITED
as lhe Compahy
ahd
RMZ INFOTECH-PRIVATE LIMITED
as the Guarantor
and
VITAL CONSTRUCTION PRIVATE LIMITED
as the Security Provider
and
IDBI TRUSTEESHIP SERVICES LIMITED
as the Trustee
TRUST DEED April J_Oth_, 2017
For RMZ I nfratech Private Limited
Authorised Signatory
For RMZ INFOTECH PVT. LTD.
Authorised Signatory
For Vltal Con&tructlon Prlviit~·Llmlted
Aulhorlaed Slgnatol)'
TABLE OF CONTENTS
Contents Page
1 DEFINITIONS AND INTERPRETATION ................................................................................. 2
2 APPOINTMENT OF THE TRUSTEE, SETTLEMENT OF TRUST AND EFFECTIVE DATE
.............................................................................................................................................. 13
3 ISSUE OF BONDS ............................................. , ............................................................... ,. 14
4 COVENANT TO PAY REDEMPTION AMOUNT .................................................................. 15
5 COVENANT TO PAY INTEREST ......................................................................................... 15
6 USE OF PROCEEDS ............................................................................................................ 16
7 LISTING AND CREDIT RATING .......................................................................................... 16
8 SECURITY AND GUARANTEE ............................................................................................ 16
9 CONDITIONS ........................................................................................................................ 17
10 EVENTS OF DEFAULT AND REMEDIES ............................................................................ 18
11 COMPANY'S REPRESENTATIONS AND COVENANTS .................................................... 22
12 REDEMPTION RESERVE ............................................. , ................................. , ................... 22
13 POWERS AND DUTIES OF THE TRUSTEE ......................................................................... 2·2
14 RIGHTS OF TRUSTEE ......................................................................................................... 27
15 RETIREMENT AND REMOVAL OF TRUSTEE .............................. , ... , .......................... , ..... 27
16 INFORMATION, MEETINGS AND OTHER DUTIES OF TRUSTEE .................................... 28
17 TRUSTEE1S REMUNERATION ............................................................................................ 28
18 MODIFICATIONS TO THIS DEED ....................................................................................... 29
19 CALCULATIONS AND CERTIFICATES ................................... : ...................................... , ... 29
20 PARTIAL INVALIDITY· .... ; ..................................................................................................... 29
21 REMEDIES AND WAIVERS ................................................................................................. 2~
22 •
APPOINTMENT OF TRUSTEE AS ATTORNEX: OF THE COMPANY ................................ 30
23 ASSIGNMENT ...................................................................................................................... 30
24 ·----·
25 TAX ........................................................................................................................................ 32
26 COUNTERPARTS ................................................................................................................. 33
II
27 GOVERNING LAW ............................................................................................................... 33
28 ENFORCEMENT .................................................................................................................. 33
29 CONFLICT ............................................................................................................................ 34
SC~HEDULE 1 TERMS AND CONDITIONS .................................................................................... 35
SCHEDULE 2 PROVISIONS FOR MEETINGS AND DECISION MAKING ................................... 40
SCHEDULE 3 REPRESENTATIONS AND WARRANTIES ........................................................... 45
SCHEDULE 4 COVENANTS AND UNDERTAKINGS ................................................................... 53
SCHEDULE 5 CONDITIONS .......................................................................................................... 65
SCHEDULE 6 FORM OF VOLUNTARY REDEMPTION El(ERCISE NOTICE .............................. 68
SCHEDULE 7 FORM OF NOTICE OF EARLY REDEMPTION ..................................................... 69
SCHEDULE 8 DETAILS OF SECURITY ................................................................... , .. ,,i ............... 70
SCHEDULE 9 .................................................................................................................................. 71
}V;
Ill
THIS TRUST DEED (this "Deed") is made on this 10th day of April 2017 al New Dell1i.
BETWEEN
RMZ lnfratech Private Limited, a company Incorporated under lhe provisions of the (Indian) Companies Act, 1956 with corporate ldenllfication number U45400HR2014PTC053404 and having its registered office al RMZ Infinity, 15- Udyog Vihar, Phase- IV, NH-8, Gurgaon, Haryana- 122015 (the "Company", which term shall Include Its successors and permitted assigns);
AND
RMZ lnfotech Private Limited, a company Incorporated under the provisions of the (Indian) Companies Acl, 1956 with corporate ldentlflcallon number U01119KA2003PTC041807 and having its registered office at The Mlllenia, Tower - B, Level 2, 12-14, No.1&2, Murphy Road, Ulsoor, Bangalore, Karnataka - 560008 (the "Guarantor", which term shall Include Its successors and permitted assigns);
AND
Vital Construction Private Limited, a company Incorporated under the provisions of the (Indian) Companies Act, 1956 with corporate Identification number U45201 HR2004PTC064121 and having its registered office at RMZ lnflnlty,15- Udyog Vlhar, Phase- IV, NH-8, Gurgaon, Haryana- 122015 (the "Security Provider", which term shall Include Its successors and permitted assigns);
AND
IDBI Trusteeship Services Limited, a company Incorporated under the Companies Act, 1956 with Corporate Identification Number U65991MH2001GOl131154 and having Its registered office at Asian Building, Ground.Floor, 17, R. Kamanl Marg, Ballard Estate, Mumbal-400 001 as the Trustee for the Bond Holders (the "Trustee").
The Company, the Guarantor, the Securily Provider and the Trustee are referred to as the "Parties" In the collective and the "Party" in the singular.
WHEREAS:
The authorised, Issued, subscribed and paid up share capital of the Company as on the Deemed Date of Allotment Is as follows:
Authorised Capital Rs. 25,00,00,000 (Indian Rupees Twenty-Five Crores only)
Issued, Sul:lscrlbed and Paid Up Capital Rs. 25,00,00,000 (Indian Rupees Twenty-Five Crores only)
A The Company Is engaged in the business of the developrr1ent, construction and/or operation of various Industrial parks and other commercial projects.
B. The. Company will, pursuant to the authority granted by the resolutions of Its board of directors . _ passed at Its meeting held on 291"_Marc_h, 29.17 _and !9 .. P!! passed_f!I allotmentm.~~\!098 Qn or
after the date of this Deed and the resolutions of Its shareholders passed at a meeting held on 291" March, 2017, Issue and allot up to 5500 rated, listed, secured, guaranteed, senior, redeemable, non convertible bonds of the Nominal Value of INR 10,00,000 each (Ind Ian Rupees Ten Lakhs only), aggregating to not more than INR 5,50,00,00,000 (Indian Rupees Five Hundred
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and Fifty Crores only), on lhe Terms and Conditions pursuant lo this Deed wil11in lhc Availability Period ("Bonds") ..
C. The Security Provider has consented to provide the Security interest and a corporate guarantee lo secure the due perlormance of the obligations of the Company under l11is Deed pursuanl lo the authority granted by lhe resolutions of its board of direclors passed al ils rTieeling held on 291h March, 2017 and the resolulions of its shareholders passed al a meeting held on 29 111 March, 2017.
D. The Guarantor has consented to guarantee the due performance of lhe obligations of lhe Company under this Deed pursuant to the authority granted by the resolullons of Its board or directors passed at Its meeting held on 291' March, 2017 and the resolutions of its shareholders passed at a meeting held on 29'" March, 2017.
E. The Company has obtained the Trustee's consent to acl as trustee for lhe Bond Holders by a lellerdated B'" December, 2016.
F. The Rating Agency has rated the Bonds as ICRA "A+ (Provisional)" by Its letter dated
G. The Bonds are proposed to be listed on the wholesale debt segment of the Bombay Stock Exchange Limited.
H. This Deed sets out the terms and conditions on which the Bonds are being Issued, the rights, duties and powers of the Trustee and the terms and conditions on which the Secured Assets are to be held and administered by the Trustee for lhe benefit of the Secured Parties.
NOW THIS DEED WITNESSETH as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed:
"Accounts Agreement" means the escrow agreement to be executed entered Into by and between the Company, the Security Provider, the Trustee and Deutsche Bank, Mumbai branch as the account bank.
"Accrued Amount" means, for any Bond on any dale, the sum of (a) lhe Nominal Value and (b) lhe Accrued Interest, on such date.
"Accrued Interest" means, for any Bond on any data, the sum of (a) Interest that has become due and payable and remains unpaid; and (b) Default Interest, tf any, on such date.
"Act" means the (Indian) Companies Act, 1956, to the extent In force of India and/or the (Indian) Companies Act, 2013, to lhe extent In force, as applicable.
"Af!lllate" means,
I. (In relation to an entity) any person Controlled by that entity, any person Controlling that entity and. any entity under common Control with such entity; and
Ii. (In relation to an Individual) a Relative (as defined In the Act) of that person or any entity Controlled by that person.
"Anti-Bribery and Corruption Laws" maans the FCPA, the UK Bribery Act of 2010 or any similar laws, rules or regulations Issued, administered or enforced by the United States, United Kingdom, the European Union or any of tis memoor states, or any other country or Governmental Authority having jurisdiction over the Obllgors or any subsidiary of the Obllgors to the extent applicable .
"Anti-Money Laundering Laws" means all_ ill']Jlicable .financial reco.rd-keeping an\l. · -- reporflng requirements; money laundering statutes (Including all applicable rules and
regulations thereunder); and all applicable related or similar rules, regulations or guidelines, of all jurisdictions Including and without !Imitation of India and Singapore which In each case are issued, administered or enforced by any Governmental Agency having jurisdiction over
2 )!;
the lhe Obligors and their Subsidiaries or to which the lhe Obligors and their Subsidiaries are subjecled to.
11A-n-ti-f0-rror-IS-m FincinCliig Laws" means -all appli~able referen-ces, requirements and regulalions or similar rules, regulations or guidelines pertaining lo anli terrorism financing which in every case are issued, administered or enforced by any governmental agency, having jurisdiction over the the Obllgors and their Subsidiaries, or to which the Obligors and their Subsidiaries are subjected to. In the absence of an equivalent local regulation, the laws of India shall apply.
"Applicable Law" means any applicable statute, national, state, provincial, local, municipal, Foreign, International, multlnattonat or other law, treaty, code, regulation, ordinance, rule, judgment, order, decree, bye-law, approval of any Governmental Authority, directive, guideline, policy, requirement or other governmental restriction or any slrnllar forrn of decision of or determination by, or any interpretation or administration having the force of law of any of the foregoing by any Governmental Authority having jurisdiction over the matter In question, whether In effect as of the date of this Deed or at any time thereafter.
"Articles" In relation to any Obliger (not being an Individual), means the Articles of Association of such Obliger.
"Authorisation" means:
(I) an authorisation, consent, approval, resolution. licence, exemption, filing, notarlsatlon, lodgment or registration; or
(II) In relation to anything which will be fully or partly prohibited or restricted by law or regulation if a Governmental Authority intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without Intervention or action.
"Avallablllty Period" In respect of the Bonds means 30 (thirty) days from the date of execution of this Deed or such other date agreed to by the Trustee, in writing.
"Bond Holders" means the persons who are, for the time being and from time to time, the
holders of the Bonds and whose names appear in the Register of Beneficial Owners, and "Bond Holder'' means each such person.
"BSE" means the Bombay Stock Exchange Limited.
"BSE Exchange Day" means a day (other than a Saturday or a Sunday) on which BSE is open for trading of shares.
"Business Day" means a day (other than a Saturday or a Sunday) on which banks are open for general business In New Delhi and Bangalore.
"Calculation Date" means a day (I) falling at the end of each six calendar month period, the first such period commencing on the Deemed Date of Allotment (II) nominated as such In writing by the Trustee (acting an Instructions of the Bond Holders).
"Company Deed of Hypothecatlon" means a deed of hypothecalion dated as of the date hereof entered Into by and amongst the Compay and the Trustee.
"Company DSRA Account" means the debt se1vlce reserve account established and maintained by the Company pursuant to the terms of the Accounts Agreement and the terms of this Deed, which account shall be solely operated by the Escrow Bank, In its capacity as ·the authorized signatory of such account, and shall be chargect'ln favour of the Trustee, and shall be operated In accordance with the terms of the Accounts Agreement and the Escrow Agreement..
.'.'C::_c;>mpany Escrow Account" filE!alls_Jhe account established .. and . .maintained by. the__ Company pursuant to the terms of the Escrow Agreement and the terms of this Deed, which account shall be solely operated by the Escrow Bank, In Its capacity as the authorized signatory of such account, and shall be charged In favor of the Trustee.
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"Company Shares" means equity shares of the Con1pany or all inslrun1ents of ll1e Con1pany opliona!ly or compulsorily convertible into equity shares.
"Company Share Pledge Agreement" means lhe unattested share pledge agreArnenl dated as of the dale hereof execuled by and between the shareholders of llle Cornpany, lhe Company and the Trustee.
1~C_ontrol'.'... (including ,_with.correlativ.e_meaning ,Jhe_terms_ ~controlled_h_y" .and ··under _common control with") of a Person means {a) ownership of more than 50% {Fifty per cent) of the equity shares, voting rights or other ownership interests of such Person; or (b) the power to appoint more than half of the members of the board of directors; or (c) the power to direct the management or policies of a Person, whether through the ownership of voting rights, power to appoint directors or similar governing body of such Person, or through contractual or other arrangements.
"Debt" on any parttcular date, means the aggregate of the Accrued Amount, Make Whole Amounts {II any)and costs, charges, expenses and liabilities due, owing or Incurred by the Trustee or the Bond Holders from time to lime which are payable by the Company under or In connection with the Bonds, this Deed and/or any other Transaction Document (In each case, whether alone or jointly, or jointly and severally, with any other person,whether as principal, surety or otherwise) as on such date. It is however clarified that in the event of a redemption (in accordance with paragraphs 5, 1 or 5.2 of the Terms and Conditions), Debt shall mean only the Accrued Amount In respect of the Bonds on the date of redemption.
"Debt to Security Ratio" means as on September 30 of every calendar year (till Final Settlement Date), the value calculated In accordance with the following formula and expressed as a percentage:
DSR = {OA- A) I SV x 100
where:
"DSR" means the Debt to Security Ratio, on that Calculation Date;
"OA" means the aggregate amount of Debt as at that Calculation Date provided that where the DSR is being calculated as at the Deemed Data of Allotment, such calculation shall be mada as If all the Bonds have already been paid for and allotted.
"N means (I) the sum of aggregate amount standing to the credit of the Company Escrow Account and the Company DSRAAccount; and {II) the present value of the aggregate amounts standing to the credit of the Company Cash Investment, In aach case as at 5 pm on that Calculation Date;
"SV" means the Security Value, on that Calculation Date
"Deemed Date of Allotment I Allotment Date" means the Pay In Date as set out In the Information Memorandum ..
"Default" means an !;vent of Default or any event or circumstance specified In Clause 10 {Events of Default and Remedies) which. would (with the expiry of a grace period, the giving of notice, the maklrig of any determination under the Transaction Documents or any combination of any of the foregoing) be an Event of Default.
"Default Interest" means, for any period, the amount of Interest payable on any unpaid sum In respect of the Bonds or which le otherwise due but unpaid under the Transaction Documents or during the period when a failure to create and perfect the Security In acoordance with the terms of Clause 8 of this Deed subsists, salculatad at the Default Interest Rate.
"Default Interest Rate" means 5% per annum compunded monthly.
· · -·---"Eleposttory" means NSDl:·andlor Ol:JSL, as the context requires.
11Deslgnated Person11 means a person or entity:
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.w /
{a) located in, incorporaled under the laws or, or owned by, Conlrolled by or acling on behalf of a person localed in or organised under the laws of, any country or lerritory thar is- th-e target -of cou-r1u·y or--rerritory.wieler Sanctions taw-s -an_d_ Reg-Lllal!ohs (including Cuba, Burma/Myanmar, Iran, North Korea, Sudan and Syria);
(b) listed on, or owned or conlrolled by a person listed on, or acting on behalf of a person listed on the "Specially Designated Nailonal and Blocked Person" list maintained by OFAC or any similar list (including any list of specifically designated nationals or designated persons or entities) maintained by, or any public announcement of Sanctions Laws and Regulations designation made by, the U.S. Department of State, the U.S. Department of Commerce, the U.S. Department of Treasury or any other U.S. government entity, lhe United Nations, the European Union;
(c) otherwise a target of Sanctions Laws and Regulalions ("target of Sanctions Laws and Regulations" signifying that a person or national from the sanctioning jurisdiction would ba restricted from doing business with that person); or
(d) listed in lhe annex to, or otherwise subject to the provisions of, the Executive Order.
"Early Redemption Date" means the date prior to the Final Redemption Date on which any Bonds are required to be redeemed In accordance with this Deed, which date shall be, In case of:
(I) an Illegality as set out In Paragraph 5.1 of Schedule 1 (Terms and Conditions) the date mentioned In the notice Issued pursuant to Paragraph 5 of Schedule 1 (Terms and Conditions); or
(ii) an Event of Default (save and except Clause 10.1), in relation to which a notice for redemption under Clause 10.22 (a) has been Issued by \he Trustee, \he date falling after 3 days from the date of such notice;
(Ill) an Event of Default pursuant to Clause 10.1, the date of exercise of the Bond Holders right to accelerate the Bonds upon occurrence of such Event of Default; or
(Iv) an Event of Default pursuant to a breach of Clause 8.1 (f)(i), in relation to which notice for redemption under Clause 10.22 (a) has been Issued by the Trustee, the date falling after 30 days from the date of such notice.
"Encumbrance" means any Security, Quasi-Security, Non Disposal Arrangement, claim, option, power of sale In favour of a third party, retention of title, lock-In, vendor's lien, right of pre-emption, right offlrst refusal or other third party right or security Interest (whether arising under law or by agreement) or an agreement, arrangement or obligation to create any of the fore-going.
"Escrow Agreement" means the escrow agreement to be executed entered Into by and between the Company, the Security Provider, the Trustee and the Escrow Bank.
"Escrow·eank" means Deutsche Bank, AG, Mumbai branch.
"EU" means European Union.
"Event of Default" means an event of default as set out In Clause 1 O (Events of Default and Remedies).
"Executive Order" means the E_xecutive Order No. 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Suppo'1 Terrorism Issued 23 September 2001, as amended by Order 13268.
"FCPA" means \he U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
-------'"F:..e.,,eJ.a_tter" means a fee lette_c_d_aled 81h De.camber, 201.6 .. ante.red into betwe.an tile_ ... Company and the Trustee.
"Final Redemption Date" means the date following the expiry of 39 calendar months from the Deemed Date of Allotment.
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Final SetUernenl D:oite ro-.e:-1'::·; \lie d;:1\e on •NIHch <~II Debi hc:1:~ hi!nrl 11~11,uc: .l!u! no[)( ·i~1 ren1ains due or oulsta11d1119
"Financiar Indebtedness· rnecH1s C\ny lndebtndness ror or in ret>pecl 111
(i) moneys borroweo.
(ii) any amounl raised by acceptance under any acceptance crnrlil l>rll ,•rr:ccplam:e or bill endorsement facility or derna_terialis<3_d eguivalen_t;
(iii) any amounl raised pursuant to any note purchase facility or lhe '"':uc of bonds. notes, Bonds, loan stock or any similar instrument;
(iv) tl1e amount of any liability in respect of any lease or hire purchase conlract which would, in accordance with GAAP, be treated as a finance or capital lease:
(v) receivables sold or discounted (other than any receivables lo ihe exlenl they are sold on a non-recourse basis);
(vi) any amount raised under any other transaction (including any lorward sale or purchase agreement) having the commerclal effect of a borrowing;
(vii) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price including any credit support arrangement in respect thereof (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
(viii) shares (or any instruments convertible into shares) which are expressed to be redeemable or the subject of a put option or any form of guarantee;
(ix) any counter-indemnity obligation tn respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other Instrument issued by a bank or financial institution; and
(x) the amount of any liability in respect of any guarantee or Indemnity for any of the items referred to in paragraphs (I) to (Ix) above.
"Financial Quarter" means a period commencing on the day Immediately following one Quarter End Date and ending on (and including) the next Quarter End Date.
"Flnanclal Year" shall mean the accounting period commencing from Aprll 1st of each year till March 31st of next year.
"FPI" means Foreign Portfolio Investor as registered with the Securities and Exchange Board of India under the SEBI (Foreign Portfolio Investors) Regulations, 2014.
"FPI Redemption Event" means the occurrence of the following event:
(a) the Company failing to list the Bonds (or part thereof) on the Wholesale Debt Market segment of the BSE within 15 BSE Exchange Days from the Deemed Date of Allotment. ·
"GAAP" means generally accepted accounting principles, standards and practices in India.
"Governmental Authority" means any:
(i) government (central, state or otherwise) or sovereign state;
(II) any 1Jqvernmental agency, semi-governmental or judicial or" a.uasi-judlclal or regulatory or administrative entity, department or authority, or any political subdivision thereof; or
. - . ------til~------lnternatlonal organi2atlon,--ageney-0r authority,
including, without limitation, any stock exchange or any self-regulatory organization, established under any Applicable Law. ·
"Guarantee" means the corporate guarantee provided by the Guarantor as of the date hereof ln favor of the Trustee.
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"Guarantor" rt1eans RMZ lnfotech Private Limiled
"Half Yearly End Date" means any of 31 March or 30 September.
"Half Yearly Flnanclal Period 11 means a period commencing on the day immediately following one Half Yearly End Date and ending on (and including) the next Hall Yearly Ent! Date.
"Indirect Tax'' means any goods and services lax, consumption lax, value added lax or any Tax of a simrlar nature.
"Information Memorandum" means the Information memorandum as required under the Act to be issued in relation to the Issuance of the Bonds under this Deed.
"Initial Contribution" has the meaning given to it in paragraph (a) of Clause 2.2 (Setllemenl of Trust).
"INR" or "Rs." or "Rupees" moans the lawful currency of the Republic of India.
"lnteresf' shall mean the Interest payable on the Bonds on each Interest Payment Date at the Interest Rate. ·
"Interest Payment Dale" means the last date of each Interest Period ..
"Interest Period" means each period of one calendar month which
(I) In the case of the first Interest Period, It commences on the Deemed Date Allotment and ends on the end of the calendar month In Which Deemed Date of Allotmsnt occurs; and
(II) In the case of each Interest Psrlods thereafter, JI shall commence Immediately next day of tho day on which the prsvlous Interest Period expires and shall end on the last day of the same calendar month or date of repayment of Debt ,which ever occurs earlisr ..
For avoldanca of doubt If the Doomed Date of Allotment occurs on March 15, 2017 the first Interest Period shall be March 15, 2017 1111 March 31, 2017 and subsequent Interest Period shall be April 1, 201710 April 30, 2017. If the Dsbt Is repaid on January 15, 2019 Interest Period for such month shall bs from January 1, 2019 till January 15, 2019.
"Interest Rate" means 9.5% par annum payable monthly.
"Issue" means tho Issue of the Bonds In accordanca with the terms of this Dsed.
"Loan Agreement" means Iha loan agrsement dated on or about the data of this Dsed, executed by and between tho Company and the Sacurlty Provider, pursuant to the !arms of which, the Company Intends to grant a term loan aggregating upto JNR 260,00,00,000 (Indian Rupees Two Hundred and Sixty Crore).
"Majority Resolution" means:
(I) a rssolutlon passsd at a Meeting of the Bond Holders; or
(Ii) written Instructions given,
by a majority representing not less than 75% of the aggregate Nominal Valua of !he outstanding Bonds.
"Make-Whole Amount" means, In respect of a Bond, an amount calculated in accordance with the followlng.Jormula:
MWA~ (A) x (8) x (ND/ 365)
where:
"A" means !he Interest Rate;
7 ~ I
'8 .. n1eans lhe Nun1111;4/ Vc1lue of li1P. BolldS bnrn9 prGpa1d by lhE--' Conlp<.111y
"ND'.::-. MAX{O. l'>Junibe1 of days frorn CJnd irhJUdtng Ille d31e of prr:p<'lYrlH·~nl lo (11111 excluding) lhe cloli:~ f81ling 18 n1onths cltler th(• Pay In Datr: fo1 th<: Hond llei11q prepaid);
"Material Adverse Effect n1eans a 1na1erial adverse effecl on or ;:1 1nciteri<-.1I advnrst:? Chail~fe-rn:
(I) the condition (financial or otherwise), assets, operations, or business of any Obligor;
(ii) the ability of any Obligor to perform and comply with Its obligations under any Transaction Document;
(iii) the validity, legality or enforceability of any Security expressed lo be created pursuant to any Security Document or on the priority and ranking of any of that Security.; or
(iv) the validity, legality or enforceability of, or the rights or remedies of any parly under, any Transaction Document.
"Meeting of the Bond Holders" means a meeting of the Bond Holders, duly called, convened and held in accordance with the provisions set out in Schedule 2 (Provisions for meetings of/he Bond Holders).
"Memorandum", in relation to any Obltgor (not being an Individual) means the Memorandum of Association of such Obligor.
"Merger Date" means the date on whic.h the merger of the Company and the Sec~rity Provider with the Guarantor becomes effective, which date shall not be later than 15 months from the Deemed Date of Allotment.
"Merger Event" means the date of the order of all of the relevant National Company Law Tribunal approving the merger of the Company and the Security Provider with the Guarantor.
"Mortgage Documents" means the memorandum evidencing creation of mortgage by dep_oslt of title deeds over the Project and Project Land.
"Nominee Director'' has the meaning given to· It In Clause 13.6 (Nominee Director).
"Nomlnal Value" means INR 1,000,000 being the nominal value of each Bond, and as may be proportionately reduced for part redemption of lhe Bonds.
"Non Disposal Arrangement" means any third party escrow or custody arrangements, ·non dlspcisal arrangements, blocking Instructions, powers of attorney for sale· or any
· arrangem.ent having a similar effect In circumstances where the arrangement or transaction Is entered Into primarily as a method of assuring the payment or repayment of any Financial Indebtedness. ·
"NSDL" means the Natlonal Securities Depository Limited.
"Obllgors" means the Company, the Guarantor and the Security .Provider arid "Obllgor" means any of them. • ,
~ "OFAC" means the Office of Foreign Assets Contro1 of the U.S. Department of the Treasury.
________ ____'.'O_tlginaLFJnanciaLSlatements". means in .. relation to an entlty-.lts audlled financial statements for the FlnancJal Year ended 31 March 2016.
"Pay In Date" means the date set out In the Information Memorandum.
~/ 8
29
"Permitted Investments" nieans investments by the Trustee in governmenl securities. term
~~e?sits -~l_t~--~~~~~-~~~~ ~-'.1r:1_~s ~~-~_ lig_uj~ __ cash ~~-n~9~~~_n~_!1:1u_t_L!~I ~!-!_~~~_nils, each of which are capable of being withdrawn or liquidated prior to their original maturity.
"Project" means lhe commercial premises known as "RMZ Infinity, Gurgaon" with leasable area of 728,955 square feet approximately situated at the Project Land.
"Project Land" means the land measuring 18,272.45 square meters and situated al Phase IV, Udyog Vlhar, Gurgaon, Haryana.
"Quarter end Date" means any of 31 March, 30 June, 30 September and 31 December in any year, as applicable.
"Quasi Security'' means a transaction under which any Obliger wlll:
(I} sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by any other Obligor;
(ii} enter Into or permit to subsist any title retention arrangement;
(iii} sell, transfer or otherwise dispose of any of Its receivables on recourse terms;
(Iv} 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; or
(v} enter Into any other preferential arrangement having a similar effect,
In circumstances where the arrangement or transaction Is entered Into primarily as a method of raising or assuring the payment of indebtedness or of financing the acquisition of an asset.
"Ratlr19 Agency" means any of ICRA Limited, CRJSIL Limited or India Ratings and Research Private Limited as maybe selected by the Company.
"Real Estate Business" means dealing In land and Immovable property with a view to earning profit there lrorn and does not Include development of townships, construction of residential/ commercial premises, roads or bridges, educational Institutions, reereational facilities, city and regional level Infrastructure, Real Eslate Investment Trusts (RE!Ts} registered and regulated under the SEBI (REITs} Regulations 2014. Further, earning of renU Income on lease of the property, not amounting to transfer, will not amount to Real Estate Business.
"Record Date" means, in respect of a Bond, the day falling 15 days before the Redemption Date, or any Interest Payment Dale, of that Bond, as applicable.
"Redemption Amount" means in respect of each Bond, on any Redemption Date, the Debt as on such Redemplion Date.
"Redemption Date" means the dates set out In the Redemption Schedule set out at Schedule 9; Final Redemption Date, an Early Redemption Date or a Voluntary Redemption Date, as the case may be.
"Register of Beneficial Owners" means the register of beneficial owners of the Bonds maintained In the records of the Depository. ·
"Rental Documents" shall mean lhe documents listed Jn Annexure 1 and such olher rental documents as may be executed In accordance with the terms of this Agreement.
"Sanctions" means san~tlons or trade embargos administered or enforced by the t;,S, Department of the Treasury's Office of Foreign Assets Control ("OFAC"}, the U.S. Department of Slate, the U.S. Department of .Commerce, the United Nations Security Council ("UNSC"), the European Union ("EU"}, or Her Majesty's Treasury ("HMT"}, Monetary
--,,f\J'\tltffi!lwrlty~f-81ngaportl';·Government of India or Reserve Bank of India.
"Scheduled Bank" means a bank which has been Included In the Second Schedule of Reserve Bank of India Act, 1934. ·
9 ~/
"Secured Assets" means the assets charged, pledged or olherwise 1nade the subject of Securily pursuant lo the Transaction Documenls.
"Secured Immovable Property" means, the Immovable property owned by the Security Provider and more particulary described al Schedule 8 which is proposed lo be or has already been charged in favour or lhe Trustee pursuant lo lhe Morlgage Docurnenls.
"Secured Movable Property" means, the (i) movable property owned by the CofTjjl•[ly and alrotner receiva518s and d-ues payabTeto the -companyrnres-peCI or the Project and more particularly described at Schedule 8 which is proposed lo be or has already been charged in favour of the Trustee pursuant to the Company Deed of Hypothecallon; and (II) movable property owned by the Security Provider and all other receivables and dues payable to the Security Provider in respect of the Project and more partlculary described at Schedule 8 which is proposed to be or has already been charged In favour of the Trustee pursuant to the Security Provider Deed of Hypotl1ecatlon. Upon the Merger Event taking effect, Secured Movable Property shall mean all movable property situate<;! in the Project, all rights of lhe Guarantor In relation lo the Project which are owned by lhe Guarantor or which the Guarantor ls beneficially entitled to, which is not In the nature of immovable property, and all other receivables and dues payable to the Guarantor In respect of the Project and more particularly described at Schedule 8 which ls proposed to be or has already been charged in favour of the Trustee pursuant to the Company Deed of Hypothecatlon.
"Secured Parties" means the Bond Holders and the Trustee.
"Security I Security Interest" means a mortgage, charge, pledge, lien or other security Interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
"Security Documents" means:
(a) this Deed;
(b) the Guarantee;
(c) the Security Provider Guarantee;
(d) the Company Deed of Hypothecatlon;
.(e) the Security Provider Deed of Hypothecatlon;
(I) lhe Mortgage Documents;
(g) the Company Share Pledge Agreement;
(h) the Security Provider Share Pledge Agreement;
(i) the Accounts Agreement;
0) the Escrow Agreement;
(k) the Information Memoranoum;
(I) the Fee Letter; and
(m) any other document that may be designated as a Security Document by the Trustee and the Company.
and "Security Document" means any of them.
"Security Provider Deed of Hypothecatlon" means the deed of hypothecatlon dated as of• the date hereof executed by and between the Security Provider and the Trustee.
"Security Provider Escrow Account" means the account established and malntalneo by the Security Provider pursuant to the terms of the Escrow Agreement, whlcb_ account •hall
·· ··oesolely operated by the Esc.row Bank, In lls capacity as the authorized signatory of such account, and shall be charged In favor of the Trustee.
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3\
"Security Provider Share Pledge Agreernent" n1eans Ille unal\esled sl1:Jre ph~dq1'.
agreement dated as or the dale hereof exer.uh~cl by R11d belween lhe shareholders of l !11-:
Securily Provider, the Security rrovkle1 .-,1nd ll1e Trustee valid lill the Merge1 Dal<~.
;,s-ecu-rTtY PfOVfr.ter Guaranlee·· rne::Hls the corpo-rate guarantee prOvid-~d by lhe Securilv Provider dated as of the date herP.of i11 favor of the Trustee.
"Security Value" means, on Seplen1b-er 30 of every calendar year, the aggregate value uf the Secured Immovable Propcerty as valued by a valuer acceplable lo or appoin!ed by ill<' Truslee.
"Shortfall Amount" shall have lhe meaning ascribed lo such lerm in paragraph 2.21 (I) ol Schedule 4.
"Sponsors" means each of Sponsor 1 and Sponsor 2.
"Sponsor 1" shall mean Mr. Raj Mencia, aged 54 years, residenl of The Haven No. 78/1-A Benson Cross Road, Benson Town, Bangalore and holding a PAN card bearing PAN no. 22789220 (the "Sponsor 1.
"Sponsor 2" shall mean Mr. Manoj Manda, aged 49 years , resident of The Haven No. 78/1-A Benson Cross Road, Benson Town, Bangalore and holding a PAN card bearing PAN no. 22789573
"Subsidiary" has the meaning under the Act.
"Tax" means all forms of present and future taxation Including but not limited to deductions, withholdings, duties, Imposts, levies, fees, cess, charges, social security contributions and rates Imposed, levied , collected , withheld or assessed by any Governmental authority or other taxing authority in India or elsewhere and Include (i) direct taxes on Income Including Tax Deducted at Source (referred to as TDS or WHT or Tax Deduction) and (ii) Indirect Taxes (iii) any interest, additional taxation penalty, surcharge or fine arising out of any misrepresentation , or omission on part of the Company In connection therewith, and "Taxes" shall be construed accordingly.
"Tax Act" means the (Indian) Income Tax Act, 1961.
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under.this Deed.
"Tax Rules" means the (Indian) Income Tax Rules, 1962.
"Terms and Conditions" means the terms and conditions on which the Bonds are to be issued, as set out In Schedule 1 (Terms and Conditions) and as may; from time to time, be modified In accordance with this Deed.
"Transaction. Documents" means:
(I) this Deed;
(it) the Trustee Agreement:
(Ill) the Loan Agreement;
(iv)
(v)
each Security Document (other than this Deed); and
any other document that may be designated as a Transaction Document by the Trustee and the Campa'!/
and "Transaction Documenf' means any of them.
"Trustee Agreement" means the Trustee agreement dated on or prior to the date of this ""<----r--1 ----n· e-Gd"l!ntered Into b·etween the Company andlneTius"l<ie. · · ·- ·· · -·-- ·
"Unanimous Resolution" means:
(i) a resolution passed at a meeting of the Bond Holders duly convened and held in accordance with Schedule 2 (Provisions for Meetings and Decision Making); or
11
•
(ii) written instructions given,
by Bond Holders representing 100°/o of lhe aggregate Nominal Value or the oulslanding Bonds.
"'Voluntary Redemption Date" has the meaning ascribed to the term at paragraph 5.5 (Voluntary Redemption) of Schedule 1 (Terms anci Conditions). 11Voluntary-Redemption-Exereise -Notice'! means-a- notice substanlially-·1n-ll1e-form-sol out In Schedule 6 (Form of Voluntary Redemption Exercise) to be delivered by the Company to the Trustee exercising /ts option to redeem the Bonds on a Voluntary Redemption Date.
1.2 Construction
(a) Unless a contrary indication appears, any reference in this Deed to:
"assets" Includes present and future properties, revenues and rights of every descrlplion;
an "authorised signatory" means a person that has been duly authorised by a person to execute or sign any Transaction Document (or any other document or notice to be executed or signed by that person under or in connection with any Transaction Document) on behalf of lhat person;
the "Company", any "Bond Holder", any "Obllgor'', any "Secured Party" or the "Trustee' shall be construed so as to Include Its successors In title, permitted assigns and permitted transferees;
any Transaction Document or any other agreement or Instrument is a reference to that . Transaction Document or other agreement or Instrument as amended, novated,
supplemented, restated (however fundamentally and whether or nol more onerously) or replaced from time to time and Includes any change In purpose of any extension of, or any increase in any amounts payable under that Transaction Document or other agreement or Instrument and Including any waiver or consent granted In respect of any term of any Transaction Document made available under that agreement or Instrument:
"knowledge" when used In the context of knowledge of a corporate entity shall mean facts and circumstances that any of Its directors, or senior management personal are aware of or are expected to be aware of post exercise of requisite due diligence and care by such director or senior management personel;
"knowledge" when used in the. context of an Individual Person shall mean facts and circumstances such Person is aware of or Is expected to be aware of post exercise of requisite due diligence and care by such Person:
a "guarantee" also Includes any other obligation (whatever called) of any person to pay, purchase, provide funds {whether by tha advance of money, the purchase of or subscription for shares or other securities, the purchase ofassets or services or otherwise), or otherwise be responsible for, any Indebtedness of any other person (and "guaranteed" and "guarantor" shall be construed accordingly);
"Indebtedness" Includes any obligation (whether Incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
a "person" Includes any Individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality) or two or more of the foregoing;
a "regulation" Includes any regulatior•, rule, offlclal directive, request or guideline (whether or not having the force of law) of any governmental, Intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authorily or organisation;
"shares" or "share capital" Includes equivalent ownership Interests (and "shareholder" and .. - - sfmllafexpresslons shall be consfrued aocordlngiy);
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unless ollierwise specified, whenever riny p<1y111e11t lo be 111alk~ 01 ;-1cl1on (n l)e taken 1n1dci
this Deed. is required to be n1ade or \~~ken on a day olhef t1·1rin 11 Bu~;i11ess Day, such pay1nent shall be made or action be taken on !he i1nff1ediately follovi1ing 1311:.;,iness Day,
a JaW or regui3ti0ri of- a -proV-ision or I;~~ or re9ulation is a rererencfl lo U1at law, regulation or, as applicable. that provision as an1ended or re-enacted: and
a time of day is a reference lo Indian Slandard tln1e.
(a) Section, Clause and Schedule headings are for ease of rcferc~ncr-: only
(b) Words denoting the singular shall include the plural and vice vorsa.
(c) Unless a contrary indication appears, a defined term used in any other Transaction Document or in any notice or certificate given under or in connection wilh any Transaction Document has the same meaning in that Transaction Document. notice or certificate as in this Deed.
(d) A Default (other than an Evenl of Default) is "continuing" or "outstanding" if it has not been remedied or waived in writing and an Event of Default is "continuing" or "outstanding" if ii has not been waived in writing.
On and after the Merger Date, unless repugnant to the context all references to the following terms In the Transaction Documents shall be deemed to be a reference to the terms mentioned against them, unless this Deed or Security Documents expressly or by implication provide otherwise:
Sr. No Term Deemed Reference to
(a) Company Guarantor
(b) Security Provider Guarantor
2 APPOINTMENT OF THE TRUSTEE, SETTLEMENT OF TRUST AND EFFECTIVE DATE
2.1 Appointment of Trustee
The Company hereby appoints IDBI Trusteeship Services Limited to act as the Trustee for and on behalf of the other Secured Parties pursuant to the trust created under this Deed and IDBI Trusteeship Services Limited agrees to act as the Trustee for and on behalf of the other Secured Parties In accordance wilh the terms and conditions contained In this Deed and other Transaction Documents.
2.2 Settlement of Trust
(a)
(b)
· The Company hereby settles upon trust the sum of INR 1,000 (the. "Initial · Contrlbut1o·n") by cheque no. 286566 dated 7'h April, 2017 drawn on Vljaya Bank In Indira Nager, Bangalore and the Trustee hereby confirms receipt of and accepts the Initial Contribution.
The Trustee hereby declares that It shall hold:
(i)
(II)
the Initial Contribution; • • the benefit of all representations, covenants, undertakings made by, and all other terms agreed by, the Obllgors under the Transaction Documents;
· · ·---(iii) iiie Securltycreated pursu-a-nt to the Security Documents; and
(iv) all monies received by It under the Transaction Documents, Including as a result of enforcement of the Security created pursuant to the Security Documents (or any part thereof) and/or the exercise of rights and
~I 13
i"ernedie~ under the Tr;:~n~inc.:11011 Doc.-1111u~11t~> (~;;:ive 1or any sun1s 1·l'!L(~1v(1d
solely for its own account)
in lrusl for lhe benefit of the S0curc~d Parties and lht'~ir lransferccs ;:::incl c1ssiune1)s fron1 1i1ne lo lin1e on lhB terms of Ille Transaction Docu111enls.
(c) The Trustee in such capcicily as •~ truslcc-:: agrees:
(i)
(ii)
(iii)
lo ___ execute and deliver_ all doc:urr1en!s, ag_reen1fl_!1!~, iD~lrun1~0I§ ~u~J certiffcaTes conteri1Pfa1ed t.ly it~s oeeci-10 be -executed and delivered by the Trustee or as the Trustee shall deern advisable and in the best interest of the Secured Parties;
lo take whatever action shall be required to be taken by the Trustee by the terms and provisions of this Deed and under the Applicable Laws, to exercise its rights and perform its duties and obligations under such documents; and
subject to the terms and provisions of this Deed and the Applicable Laws, to take such other action In connection with the Foregoing as the Bond Holders may require from time to time direct.
Provided that before initiating any action or exercising any right I discretion or performing any duty or granting any consent I approval under this Deed or any other Transaction Documents, the Trustee shall seek written Instructions from the Bond Holders through Majority Resolution and only upon receipt of relevant instructions from the Bond Holders through Majority Resolution, shall the Trustee exercise its rights and perform its duties and obligations under each of the relevant documents, agreements, instruments and certificates referred to herein; provided however that in the absence of such Instructions, the Trustee shall always act in accordance with the terms of this Deed or any other Transaction Documents. Notwithstanding such requirement for instructions In wrltir:ig, the Trustee shall never knowingly take any action inconsistent with the best Interests of the Bond Holders.
2.3 Non Revocable Trust
The Trustee declares that it shall. not revoke the trusts hereby declared till the whole of the Debt is Irrevocably discharged and paid in full by the Comp<1ny under the Transaction Documents.
2.4 Effective Dale
This Deed shall come Into force and effect on the the date of this Deed.
3 ISSUE OF BONDS
3.1 Issue amount
The aggregate .Nominal Value of all the Bonds under the Issue shall not exceed INR 5,50,00,00,000 (Indian Rupees Five Hundred and Fifty Crores only).
3.2 · Issue mechanics
(a)
(b)
The Bonds shall be Issued In the dematerlallsed form, In one tranche, unless otherwise agreed to.by the Bond Holda.rs· and the Company. . The lndfcatlve dates for the opening and closing of the Issue and the Deemed Date of Allotment of each tranche of the Bonds are set out In the Information Memorandum.
(c) The Company ·riiaY-ciiange such opening and closing dates, the .Deemed Dates of Allotment and the Issue amount without assigning any reason and without prior notice to any person. ·
Terms and Conditions binding
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•
The Terms and Conditions shall be binding on the Company and the Bond Holders and all persons claiming by, through or under any of them. The Trustee shall be enlilled to enforce the-obllgallons-of-the-Company under-or-pursuant-lo lhe-Terrns-and-Condilions 21s if-the-same were set out and contained in this Deed.
4 COVENANT TO PAY REDEMPTION AMOUNT
4.1 Covenant To Pay Redemption Amount
The Company will on the applicable Redemption Date unconditionally pay lo, or lo the order of, each Bond Holder in INR the applicable Redemption Amount and all other amounts due to that Bond Holder in accordance with the Terms and Conditions. Any payment so made will to that extent be a good and valid discharge to the Company In respect of the amounts payable by the Company.
4.2 Early Redemption
(a) The Company undertakes to comply with Its obligations as set out in Paragraph 5 (Early Redemption) of Schedule 1 (Terms and Conditions).
(b) The Company will on the Early Redemption Date uncondltlonally pay to, or to the order of, each Bond Holder in INR the Accrued Amount and the Make Whole Amount, to the extent applicable, as detailed In the Terms and Conditions. It Is however clarified that for an Event of Default pertaining to a FPI Redemption Event (paragraph 5.2 of the Terms and Conditions) leading to Early Redemption and In the event of Early Redemption as contemplated In paragraph 5.1(b) of Schedule 1, the Company will not be liable to pay Make Whole Arnount.
5 COVENANT TO PAY INTEREST
5.1 Covenant
(a) The Company shall, on each Interest Payrnent Date, unconditionally pay to, or to the order of, each Bond Holder In INR, the accrued aggregate Interest for the Interest Period ending on such Interest Payment Date. Such Interest shall accrue from (and Including) the first day of that Interest Period to that Interest Payment Date In accordance with the Terms and Conditions and the Transaction Documents in respect of the Bonds held by such Bond Holder. For avoidance of doubt and as an example lnteresffor Interest Period January 1. 2017 till January 31, 2017 shall be paid on Interest Paymenl Date I.e. January 31, 2017.
(b) The Interest on each Bond will be calculated by reference to the Nominal Value outstanding on the Calculation Date.
5.2 Interest Period
5.3
(a) Subject to paragraphs (b) and (c) below, each Interest Period for the Bonds shall be for the duration of one calendar month.
(b) Subject to Clause 5.3 (Default Interest), an Interest Period for the Bonds shall not extend beyond the Final Redemption Date.
(c) In the case of the first Interest Period, It commences on lhe Deemed Date Allotment and ends on the end of the calendar month Jn which Deemed Date of Allotment occurs.
Default Interest
If payment of any amount due to a Bond Holder Is not made In accordance with Clause 4 (Covenant to pay Redemption Amounts), Clause 6 (Covenant to pay Interest) or otherwise In accordance with the Transaction Documents, as the case may be, the Company shall
--•um11"'corrdltlonally pay re;, ortothe order of, Meli Bond Holder; Default lmeriis! payable on such amount calculated on a dally basis for the period from (and Including) the relevant Redemption Date or other due date, as applicable, to (but excluding) the date of actual payment of such amount, In accordance with the Terms and Conditions or the failure to
15
create and perfect the Security In accordance wilh the lenns of Clause 8 or lhis Oeed, the Company shall unconditionally pay to, or lo Iha order of, each Bond Holder, Defaull lnlmesl payable on the aggregate Nominal Value of the Bonds calculated on a dally basis for lhe period from (and including) lhe date of the relevant default, lo (but excluding) Ille dale of on which the relevant conditions set out in Clause 8 of this Deed are satisfied. in accordance with the Terms and Conditions.
Default-lnlerest-(if-any) may be waived by-lhe Bond Holders by way of Majority Resolution in their sole discretion.
6 USE OF PROCEEDS
6.1 The Company shall use the net proceeds from the Issue in accordance wilh Clause 6.2 and shall not permit or authorize any person to dlreclly or indireclly use the proceeds of the Issue to:
6.1.1 Violate any Anti-Money Laundering Laws and any Anti-Terrorism Financing Laws;
6.1.2 Lend, Invest contribute or otherwise make available the proceeds of the Bond to or for benefit of any Subsidiary, joint venture partner or other Individual or entity In a manner that will result in a violation of any Anti Money Laundering Laws and AntiTerrorism Financing Laws; or
6.1.3 In Iha Real Estate Business, Investment In capital markets. speculative acllvllles or any other purpose prohibited by Applicable Law.
6.2 The funds raised by the Issue shall be ulllised by the Company for the purpose of:
(a) On lending to the Security Provider pursuant to and In accordance wllh the terms of the Loan Agreement, for the sole p~rpose or repayment of the existing Lease Rental Discounting Facility dated 51h September, 2013 from the Stele Bank of India by the Securlly Provider and for an amount upto to INR 260,00,00,000 (Indian Rupees Two Hundred and Sixty Crores only); and
(b) Funding of the Company DSRAAccount, for an amount equivalent to 2 months of Interest, fees and Incidental costs and expenses payable on the Bonds upto INR 15,00,00,ooo (Indian Rupees Fifteen Crores only) and for other transaction expenses related to the Issuance of the Bonds; and
(c) The balance amount of the proceeds towards repayment of existing subordinated debt from the Guarantor, ·
in each case, In compliance with the provisions of Applicable Law.
7 LISTING AND CREDIT RATING
7.1 Listing
(a) The Company shall (I) list the Bonds on the Wholesale Debt Market segment of the BSE and (II) submit the application for listing to BSE, in each case within 15 calendar days after the Deemed Date of Allotment.
7.2 Rating
The Bonds have been rated ICRA "At (Provisional)" by the Rating Agency. Th1> Company undertakes to maintain a rating of ICRA "Pl' from a Rating Agency In respect of the Bonds till the Final Settlement Date. •
8 SECURITY AND GUARANTEE
8.1 Security
-·(a) ·· · · The-EJebt sliall be secured oy:-(1) a first ranking and exclusive Security created over the Secured Immovable
Property In favour of the Trustee, by way of an equitable mortgage;
16
(ii) a first ranking and exclusive Security crealed over the Secured Movable Properly in favour of the Trustee by lhe Company and the Securlly Provider, In-accordance with the-terms-of thffCompany-Deed of Hyp-oth-ffcatlon -and lhe Security Provider Deed of Hypothecalion;
(iii) Till the Merger Date a first ranking and exclusive Security crealed over the Company Shares in favour of the Trustee by lhe Guarantor, in accordance with the terms of the Company Share Pledge Agreement,; and
(iv) Till the Merger Date a first ranking and exclusive Security created over the shares of the Security Provider In favour of the Trustee by the Company, in accordance with the terms al the Security Provider Share Pledge Agreement.
(b) The Debt shall be guaranteed by an unconditional and Irrevocable guarantee provided by the Guarantor, In favour of the Trustee, In accordance with the terms or the Guarantee.
(c) The Debt shall be guaranteed by an unconditional and irrevocable guarantee provided by the Security Provider, In favour of the Trustee, In accordance with the terms o(the Security Provider Guarantee.
(d) It Is clarlHed that nolwlthstandlng anything to the contrary provided herein or In any Transaction Document, upon merger of the Company and Security Provider with the Guarantor, the shares of the Guarantor will not be pledged in favour of the Trustee. It is clarified Further that on lhe occurrence of the Merger Date, the Guarantee shall cease to be In effect and the guarantee of no other entity/person will be required to be provided For the Debt
(e) In addition to the above,
(I) the Company and the Security Provider shall execute and deliver to the Trustee, the Escrow Agreement, not later than 30 days From the Allotment Date;
(II) the Guarantor shall execute and deliver to the Trustee, the Non Disposal Undertaking on or prior to the Allotment Date.
(t) The Security Interest set out In Clause 8.1 (a) above shall be created within the following time periods:
(I) the mortgage referred to In Clause 8.1 (a)(i) shall be evidenced by the . Mortgage Documents and shall be created and perfected within: (A) 90
days from the Allotment Date; or (B) 30 days from the date on which the approval of the Haryana State Industrial Development Corporation for creation of the mortgage, whichever occurs earlier;
(II) the hypothecatlon referred to In Clause 8.1 (a)(ii) In relation to the Security Provider shall be created and perfected within 30 days from the Allotment Date and In respect of the Company prior to the Allotment Date;
(Ill) the pledge referred to In Clause 8.1(a)(lii) shall be created and perfected prior to the Allotment Date; and
(Iv) the pledge referred to In Clause 8. 1 (a)(lv) shall be created and perfected prior to the Allotment Date.
9 " CONDITIONS
9.1 Conditions Precedent
.. {I)_ ___ The Company shall deJll!fil or cause to_hluleil'Lerad.Jo the TcusJe.aafl·the do.cuments and evidence listed In Part I (Conditions Precedent) oF Schedule 5 (Conditions) prior to the Pay In Date. The Company shall al least one day prior lo the Pay In Date, provide a certificate to the Trustee, certifying that all the conditions set out at Part I (Conditions Precedent) or Schedule 5 (Conditions) are complete. The Trustee shall
17
upon receipt of such cerlificale along wilh all documents evidencing the con1plelion of the conditions set out at Part I (Conditions Precedent) of Schedule 5 (Conditions}, immediately inform the proposed Bond Holders.
(ii) The potenlial Bond Holders shall confirm to the Truslee Iha\ they have procured necessary internal corporate approvals (including approval of their respective lnvestn1ent committee and completlon of all relevant l<now-your-customer cllecks) for investing in t11e Bonds, prior~to the flay In Date.
9,2 Conditions Subsequent
The Company shall deliver or cause to be delivered to the Trustee all the documents and evidence listed In Part II (Conditions Subsequent) of Schedule 5 (Conditions) within the time specified therein.
10 EVENTS OF DEFAULT AND REMEDIES
Each of the events or circumstances set out In this Clause 10 is an Event of Default.
10.1 Non payment
The Company does not pay on the relevant Redemption Date or Interest Payment Date any amount payable pursuant to any Transaction Document to which It is a party at the place at and in the currency In which it Is expressed ta be payable, unless its failure to pay Is caused by an administrative or technical error in the banking system relating lo the transmission of funds.
10.2 Other Obllgatlons
(I) An Obllgor does not comply with any of Its obllgallons under any Transaction Documents to which it is a party (other than those referred to In Clause 10.1 (Non Payment)); or
(II} No Event of Default under paragraph (1). above shall occur In relation la the obligations of any of the Obllgors If the failure to comply Is capable of remedy and Is remedied, within 90 days of Issue of notice to the concerned Obllgar or the Company from the Trustee upon failure by such Obllgor to comply with such obligations, unless otherwise set out In this Clause 10.
10,3 Misrepresentation
Any representation or material statement made or deemed lo be made by an Obllgor In any Transaction Document lo which It Is a party or any other document delivered by or on behalf of an Obliger under or In connection with any Transaction Document is or proves to have been Incorrect or Inaccurate or misleading In any respect when made or deemed to be made; provided that no Event of Default shall have occurred pursuant to this Clause If (i) such Incorrect or Inaccurate or misleading representation or statement Is capable of being remedied and (II) such Incorrect or misleading representation or statement Is remedied within a period of 90 .days from the date of Issue of notice to the concerned Obliger or the Company from the Trustee,
10.4 Cross acceleration .
Upon the occurrence of the Merger Dale, any (i) Financial Indebtedness of any Obllgor or; (II) person which Financial Indebtedness is guaranteed by the Guarantor, Is declared ta be or otherwise becomes due and payable prior to Jls specified maturity as a result of any actual or potential default, event of default. Provided that, no Event of Default will occur under this
•Clause 10.4 If the aggregate amount of any Financial lndebtedhess referred ta above Is less than Rs. 5,00,00,000 (or Its equivalent in any other currency or currencies) or If such default Is cured within the originally applicable grace period for such Financial Indebtedness.
10.5 Insolvency.
Any Obllgor Is unabl_e to, or deemed by law to be unable to or admits its Inability to, pay Its debts as they fall due, commences negotiations with one or more of Its creditors with a view to rescheduling any of Its Indebtedness, unless such rescheduling is not on account of any
18
financial inability of lhe Obligor and has been 1nutually agreed lo with the counlerparty to whom the monies are owed.
10:0 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
(i) the suspension of payments, or a moratorium of any indebtedness, unless such suspension or moratorium Is not on account of any flnancial inabillly of the Obliger and has been mutually agreed to with the counterparty to whom the monies are owed;
(ii) winding-up, or dissolution of the Obllgor are Initialed and the court admits such application, which orders are not either stayed or set aside within 90 days from lhe date of passing of such admission order;
(iii) voluntary reorganlsation(by way of voluntary arrangement. scheme of arrangement or otherwise) of any Obliger (except for any permitted reorganisation In accordance with paragraph 2.4 (Merger) of Schedule 4 (Covenants and Undertakings)) Is initiated In respect of the Obligor.
(Iv) any Obligor In respect of the Corporate Debt Restructuring mechanism of lhe Reserve Bank of India, Joint Lenders Forum, Strategic Debt Restructuring or similar schemes of the Reserve Bank of India, which are intended to give relief to companies with financial difficulties;
(v) a composition, compromise, or arrangement with any creditor of any Obligor seeking waiver/reduction of amounts due or seeking additional time for payment of amounts due;
(vi) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, provisional supervisor or other similar officer In respect of any Obllgor or any of their substantial assets, all In respect of any liquidation, winding up proceedings or proceedings Initiated by the lender.
(vii) If an operational creditor (as deftned In the Insolvency and Bankruptcy Code 2016 ('Code")) of any Obliger has flied an application/petition under Section 9 of the Code, relating to unpaid operational debt of such creditor before the competent authority ("Authority") under the Code which has not been disputed by the Company by delivering evidence to the Trustee that the provisions of Section 8(2)(a) of the Code or Section 8(2)(b) of the Code have been satisfied; or
(viii) If any financial creditor (as deftned In the Code) has flied an application under Section 7 of the Code In relation to any Obligor. Provided that If the said application Is rejected by the Authority under Section 7(5)(b) of the Code, then notwithstanding the forgoing, the filing of the application shall cease to be an Event of Default upon the Authority rejecting the admission of such application, and thereupon: (I) all rights and actions that have commenced under this Deed In relation to the Event of Default shall be discontinued by the Parties; and (ii) to the extent that steps have been taken for the exercise of any rights under Clause 10.22 of this Deed, the Parties shall, In good faith, discuss and arrive at the manner In which each Party shall be restored to the position prior to the commencement and exercise of such actions, and the cost of any such actions shall be borne by the Company. The Parties further agree the Trustee and the Bond Holders shall not be liable for any damages, loss or other liabilities that are suffered or may be Incurred by the Obligors pursuant to the
" enforcement or exercise of their rights under Clause 10.22 of this Deed; or
(Ix) If an application for corporate Insolvency resolution process under Section 1 O of the Code Is flied under Section 10 of the Code.
·- 10;7··· -.Judgments0-credltors'-process-
(a) Any Obllgor falls 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 within 15 days of such judgment or order.
19
v v v
(b) Any altachment, sequestration, distress or execution af!ects any asset or assets or the Company and/or the Guarantor and/or the Security Provider
10.8 Moratorium
The government of India or any other relevant Governmental Authority declares a general moratorium or "standstill" (or makes or passes any order or regulalion having a sin1ilar effect) in respect of the payment or repayment or any Flnancial Indebtedness (whetl1er in the nature -01 p7incipal, if\teresrorotfieiwlser -(or- anV-lnaebLedness-wfilch lncl<ides -Financial Indebtedness) owed by the Obligor or its Subsidiaries (and whether or not such declarallon, order or regulation is of general application, applles to a class of persons which includes any Obligor or its Subsidiaries or to the Company alone).
10.9 Expropriation
Any Governmental Authority or other authority (whether de Jure or de facto) takes a step with a view to the nationalisation, compulsory acquisition, expropriation or seizure of all or any part of the business or assets or material rights of any Obllgor; provided that no Event of Default shall have occurred pursuant to this Clause If such step Is withdrawn or cancelled within 90 days of having been taken.
10.10 Cessation of Business
Any Obllgor ceases, or threatens to cease, to carry on all or a substantlal part of the business it carries on or proposes lo carry on as at the Deemed Date of Allotment or gives notlce of Its intention to do so.
10.11 Unlawfulness
(a) It Is or becomes unlaWful for any Obllgor to perform Its obligations under any Transaction Documents.
(b) The Sponsors and/or the directors of lhe Obligors (not being Individuals) are convicted of a criminal offence Involving moral turpitude, dishonesty or which otheiwise Impinges on the lnlegrlty of the Sponsors and/or the Sponsors and/or directors of the Obligors (not being Individuals), includtng any convictions of any offence relating to bribery.
(c) Occurrence of an act of fraud, embezzlement, misstatement, misappropriation or siphoning off of the Obliger or lls Subsidiaries funds or revenues or any other act having a similar effect being committed by the management or director of the Obllgor
. or Its Subsidiaries.
10.12 Repudiation
Any Obliger repudiates a Transaction Document to which it is a party or evidences an Intention to repudiate any Transaction Document to which It is a party.
10.13 Security
(a)
(b}
(c}
Any Security Document Is not (once entered Into) In full force and effect or any Security Document does not (once entered Into) create In favour of the Trustee the Security which It Is expressed to create Is fully perfected with the ranking and priority It Is expressed to have.
Withdrawal or any adverse modifications of the terms of the consent received from the Haryana State Industrial Development Corporation in relation to the mortgage
,of the Project. •
In the reasonable opinion of the Trustee, the Security Is In jeopardy.
10.14 Material Adverse Effect
-·· - -AMaleilaiAdverse Eilec:fexlsts or has occurred.
1Q.15 Audit qualification
20
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Statutory audit report relallng to any financial statements of the Company·or any other Obliger contains reservations with regard to fraud committed by any member of the management or any director or the Companyoilhe Obligors, or material mlsslalemenl~or contains reservations which adversely affects the financial stability of the Company or any Obliger.
10.16 Delfstlng or Suspension In Listing
(a) The Bonds cease lo be listed or are suspended from being listed on the Wholesale Debi Markel segment of the BSE at any lime after the first dale of listing.
10.17 Material Litigation
Anylitigallon, ar_bltratlon, lnvesllgallve or administrative proceeding which Is current, pending or threatened lo restrain an Obligor's entry Into, the exercise of an Obliger's rights under, or compliance by an Obliger with any of Us obligations under, the Transaction Documents.
10.18 Change of Control
The·occurrence of a change of Control of any of the Obligors.
· 10.19 Constltutlona_I Documents
Any amendment to Iha Memorandum or the Articles or the Company or the relevant conslilulional documents of any other Obliger in contravention of Paragraph 2.5(a) of · Schedule 4 (Covenants and Undertakings).
10.20 Merger
The Company or any other Obliger entering Into any _amalgamallon, demerger, merger or corporate reconstruction in contravention of Paragraph 2.4 (Merger) of Schedule 4 (Covenants and Undertakings) or the non-occurrence of the Merger Event on the Merger
_Dale.
10.21 Insurance Pollclas
· Any lns~rance contracted or taken In respect of the Project or Project Land ts not, or ceases lobe, ln full force and affect al any lime when II ts required lo be in effect; or (b) any insurer
· orre~insurer becomes entitled ta avoid or suspend, any.Insurance or any claim under it or otherwise reduce Its liability under any Insurance; or (c) any Insurer of any Insurance Is not bound, or ceases to be bound, to. meet Us obttgatlons in full or In part under any insurance, and w_hich is nol remedied by lh.e Company or the Obligors within a period of 15 days of lhe issue of notice to the concerned Obliger or the Company rrom the Trustee.
10.22 Remedies upon an Event of Default
(a) . Upon lhe occurrence of an Evant of DefauU, the Trustee may and shall tr so directed · . by lhe Bond Holders by a Majority Resofutlon declare lo. the Company and Obllgors
by notice ln wrfllrig substantlaffy In the form set out in Schedule 10 (Form of Notice of Event of OefauU) that:
(i) the Debi shall be due and payable forthwith In respect or each Bond together with all other amounts payable in respect thereof In accordance wUh the Transaction Documents; and
(II) the SecurUy created pursuant to Iha Security Documents has become enforceable.
(b) Upon Iha Security created pursuant lo the Security Documents having become enforceable, the Trustee shall (If directed by the Bond Holders by a Majority Resolution):
(i) enforce any Security created pursua!ll to the Security Oocumenls in .. ~cc.!lr_d_.._oc_11_ wllh the teim~Jh_~eol;_
21
(II) exercise such olher righls and remedies as may be available lo the Trustee under Applicable Law; and
(Iii) take over the control and menagemenl of 1he Project
10.23 Notlflcatlon and expenses
(a) If any Dafaull or any Evant of Default has occurred, Iha Company shall promplly -9ive'nolice-1hareof-to-1he-Truslee-and-1he-Bond-Holders-1n-wrltln9-speclfylng-1he nalure of such Event of Default or or such event (and lhe steps, If any, being taken lo remedy It); provided that, for the avoidance of doubl, the failure of the Company lo give such notice shall nol llmlt or affecl Iha.exercise by lhe Trustee and the Bond Holders of lhelr rights under Clause 10.22 (Remedies upon an Even I of Defaull).
(b) The Company shall, Wilhln 7 days of demand, pay to the Truslee the amount of all costs ond expenses (including legal fees) incurred by lhe Truslee or any Bond
· Holder in connection with the enforcement of, or the preservation of any rlghls under, .the Bond or any Transaction Document.
11 COMPANY'S.REPRESENTATIONS AND COVE!NANTS
11.1 Representations
(a)
(b)
(c)
The Obllgors make the represenlatlons and warranties lo lhe Truslee as sel cul In Schedule 3 (Representations and Warranties).
Subject lo Clause 11.1 (c) below, each of lhe rapresentalions and warranlies sel oul In Schedule 3 (Represenlellons and Warranlies) are deemed lo be made by lhe Compony by reference to lhe facls and circumslances lhen exlsling on lhe Deemed Date of Allotment and shall be repealed on lhe dale of execution or lhls Deed, each Deemed Dale of Allo_tmenl and on each day on which any Debt Is oulslanding.
The representaUons and warrenlies made In paragraph 11 and 13 or Schedule 3 (Reprosenlaflons and Warranfles) shall be deemed lo be made by the Company by reference lo the facls and circumslances exisllng al lhe time of delivery of lhe Financial Slalemenls.
11,2 Covenants amlUndertaklngs
The Company agrees and undertakes to abide by lhe covenants and undertakings set cul in Sch~dule 4 (Covenants and UMertakings) al all limes unlll lhe Debi has been fully paid and duly discharged.
12 REDEMPTION RESERVE
The Company shall malnlaln a radempllon reserve as par Seclion 71(4) or lhe Companies Act_, 2013 read wllh Rule 18(7) ofCompanles (Share Capital and Debentures) Rules, 2014 and clrculars_lssued by Central Governmenl tn_ lhls regard.
13 POWERS ANO _DUTIES OF THE TRUSTEE
13.1 Authority for certain actions
(a) - The truslee shell:
(l) execute and deliver and/or accept the Transacllon Documenls and do any other acl necessary for lhe crealion and perfeclion of lhe Securlly required to be created pursuanl to the Transaction Documents:
(II) execute and dellver all olher documenls, agreemenls, lnstrumenls, certificates, noUces and do all olher aclions as may be necessary or desirable In connecllon wilh lhe prolecllon and preservation of lhe nghls or the Bond Holders;
(Iii) lo .the extent necessary, hold title deeds and other documents relatin_g lo -•any of-the Secured Assels-ln such manner·asll sees fll;-and •
22
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(b)
(c)
(iv) upon the occurrence of Early Redemption or an Event of Default, exercise its rights as Trustee for the Bond Holders under the Transaction Documents -and--under-Appllcable--taw-1n- -accordance--wlth- Paragraµrr--s-(Eiil/Jl Redemption) of Schedule 1 (Terms and Condillons) or Clause 10 (Events of Default and Remedies), as applicable.
The Trustee shall, except In respect of matters on which 11 has been expressly · authorised lo take action (or omit to act) without reference to the Bond Holders, seek the consent of the Bond Holders prior to laking any actions (or omil!lng to act) under the Tranoactlon Documents. The required majorily of Bond Holders for giving oonsent to any proposed action (or omission) by the Trustee shall be in accordance wilh Paragraphs 39 lo 43 of Schedule 2 (Provisions for Meetings end Decision Making).
Without prejudice lo sub clause (b) of this Clause 13.1, the Trustee shall seek Iha prior consent of Bond Holders holding at least 51 % the aggregate Nominal Value of the outstanding Bonds before Incurring any costs and expenses In excess of INR 5,00,000 in relation to the enforcement of any Security provided under the Transaction Documents, provided that this clause shall be for the benent of only the Bond Holders and not the Company.
13.2 Power to hold money on trust
. .The Trustee shall hold upon trust for the benefit of all the Secured Parties all monies received by II In respect of the Bonds, any Secured Assets or otherwise under any Transacllon Document, Including without llmllallon, any monies arising out of:
(I) any dividend, interest, Income or profits arising in respect of any Secured Assets;
(I!) · In connection with or arising out of enforcement of any Security created under the · Transaction Documents In accordance with this Deed; and
(iii) from any other realisation whatsoever,
but Other than the reallsaUon of any amounts which are solely for the account of lhe Trustee (collectively referred to as the "Proceeds').
--13,3 - _Power to apply Proceeds
The Trustee shall In the Hrst place, by and out of the Proceeds (which It can appropriate towards Iha Debt) reimburse itself and pay, retain and discharge all the costs, charges and expenses Incurred In collection, conversion or the exercise of Iha trusts and powers under these presents, Including Iha remuneration ofthe Trustee and/ or any Receiver as herein provided, and shall apply the residue of the Proceeds:
(I) nrslly, In or towards payment to the Bond Holders, pari passu, of all arrears of Default
(II) -
Interest, Maka Whole Amount, payable If any in terms of this Deed, and other costs - or expenses remaining unpaid on Iha Bonds held by them;
secondly In Qr towards payment to the Bond Holders, pari passu, of the Accrued · Amount; and ·
(IU)- • thirdly, !he surplus (If any) of such monies to the Company,
provided that ff the Trustee Is of the opinion that it is expedient to do so, payments may be made on account of principal before lhe whole or any part of any Default Interest or Accrued Interest due, on the Bonds has bean paid off, but such alterallon In lhe order of payment of the prlnclpal, Default Interest and Accrued Interest herein prescribed shall not prejudice the right of the Bond Holders to receive the full amount to which they would have been entlllad If the ordinary order of payment had been observed.
13A Power to accumulate Proceeds
If the amount of the monJes atany time apportlonableunder Clause __ 13.3 (Power lo apply ----Proc:allds) Is less-than ten per cant of the nominal amount of the Bonds then -oulslandlng,
the Trustee shall, Invest such monies In any Permitted Investments In the manner set out In
23
I 1§
Clause 13.5 (Power to Invest monies) below with power, from time to time, at its discretion to vary such investments within the Permilled Investments and to accumulate Iha resulting income thereof until the accumulations log ether with any other fund for the time being under lhe control or the Trustee and available for the purpose shall amount to a sum sufficient to pay at least ten per cent or the nominal amount of the Bonds then outstanding and the accumulations and funds shall be applied In the manner set out In Clause 13.3 (Power lo apply Proceeds).
13.5 Power and Duty to Invest monies
Any moneys (including any unclaimed amounts remaining after provision for payment and saUsf~c.Uon of Iha Debt Is made In accordance with this Deed) held by the Trustee which cannot be applied Immediately for the purposes set out in this Dead, shall be Invested in the name ·Of the Trustee In any of the Permllled lnvestmenls with power to vary and transpose such Investments within the Permilted Investments.The Trustee shall during lhe tenure of Bo.nds Instruct the Escrow Bank appointed pursuant lo the Security Provider Escrow Account and ·Company Escrow Account or any other escrow account opened pursuant to this Agreement or any of the Transaction Documents, lo place amounts received In such escrow account In PermlUed Investments till lhe same are lo be paid to the Bond Holders or are released lo the Obllgors are In accordance with the Transacllan Oocumenls. Any interesVincoma earned on such Permllled Investments shall be transferred to any acoount oflhe Company, as the Company may Indicate. However, the Trustee shall have lien over such Pemllled Investments to secure the Debi repayable to Iha Bond Holders
13.6 Nominee Director
The Trustee acting on the instructions or the Bond Holders shall have a right lo appoint a nominee director(s) In accordance wilh Iha SEBI (Trustee) Regulations, 1993, (as amended from lime to tlme)and the Ac~ on Iha board or directors of the Company (hereinafter referred to as :the "Nominee Director") upon the occurrence of an Event of Default. The Nominee Director shall notbe liable la retire by.rotation nor required lo hold any qualincatlon shares. The Company shall appoint the Nominee Director forthwllh on receiving a nomination notice from the Trustee. The Nominee Dlreclor shall be appointed an all key commlllees or the board of directors of the Company,
13,7 ·Power of Trustee to borr.1>w
·(a) .UponJhe occurrence of an Event of Default, the Trustee may, upon authorisation by a Majority Resolution, raise or borrow moneys on lhe security of the secured Assets 1>r any part thereof ranking ellhar In prlorlly or parl passu:
(I) for the purµose or making any payment under or by virtue ,of this Deed;
(ii) Jn relation to the exercise of any powers, duties or obligations of Iha Trustee o.r the Receiver;
.(Iii) otherwise In relation to the Secured Assets;
(Iv) for defraying any costs, charges and expenses which shall. be incurred by the Trustee under or by virtue of this Deed;
(V) far the purpose of paying off or discharging any mortgages or charges for lhe lime being on the Secured Assets;
(b) The Trustee may raise and borrow such moneys as aforesaid only from reputed banks or financial lnslllullons al market terms and no person lending any such money shall be concerned to inquire as to the propriety or purpose ol lhe exercise of the said poWer or to s~e to the applicStion of any monies so raised or borrowed.
13.8 Power of Trustee upon execution being levied
In addition to the powers hereinbefore conferred, the Trustee may appoint a Receiver to take possession of the Secured Assets which may at any lime appear to be In danger of being
···· laken-under·any process of law by anycredilor oUhe-Company and where-a Receiver-is--
24
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appointed under this Clause 13.8 (PowerofTrus/ee upon execution being levied) the Trustee may at any time give up possession or discharge the Receiver.
--------
Power of Trustee to delegate
(a) The Trustee may, In the execullon and exercise of all or any of the trusts, powers, authorllies and discretions vesled In it by this Deed act by an orncer or officers for the time being of the Trustee and the Trustee may also, whenever II thinks II expedient, delegate by power of attorney or otherwise, to any such officer all or any of the trusts, powers, authorities and discretions vested In the Trustee by this Deed and any such delegation may be made upon such terms and conditions and subject to such regulations (Including power to sub-delegate to any other officer of the Trustee) as the Trustee may think flt.
(b) · Notwithstanding the provisions of paragraph (a) above, the Trustee shall be liable for any fraud, gross negligence or Wiifui default of any orncer to whom the Trustee has delegated or such delegate has sub delegated Its powers.
13.10 Power of Trustee to employ agents
The Trustee may, In carrying out the trusl business employ and pay any person (other than an entity which Is engaged In the same business as the Security Provider) to transact or concur In transacting any business and do or concur In doing all acts required to be done by the Trustee Including the receipt and payment of moneys end shall be entitled ta charge and be paid all usual professional and other reasonable charges far business transected and acts done by it In connection with lhe trusts hereof and also Its reasonable charges In addition to the expenses Incurred by them In connection with matters arising out or or In connection wllh this Deed.
13.11 Trustee may give up possession
U and when the Trustee shall have made an entry Into or taken possession of the Secured Assets under the powers conferred upon the Trustee by these presents, the Trustee may, with the authority of a Majority Resolution of the Band Holders, at any lime thereafter give
· up possession of the Secured Assets or any or them or any part or parts thereof to the ·Campany, ellher unconditionally or upon such terms and conditions as may be specified In · such resolution or consent. ·
13 •. 12 f!edrassal of Bond Holders grievances
The Company shall fumlsh ta the Trustee details or all grievances received from the Band H_olders and the steps taken by the Campany to redress the same. At the request or any Bond Holder.. the Trustee shall, by notice to the Company call upon the Campany ta take appropriate steps ta redress such grievance and shall, If necessary far the purpose or such redressal, at the request or any Bond Halder call a meeting or the Band Holders.
13.13 When Trustee may Interfere
Except as provided herein, lhe Trustee shall not in any manner be required, bound or concerned to Interfere with the management or affairs or the Company or Its business.
13,14 ·Claims for compensation monies
In the event of a Governmental Authorlly taking aver the management of the Campany and/or the entire undertaking or the Company and/or In the event or nationallsatlan or the Company or Its business or a moratorium being passed or in case the running of the business of the Company or its management or control Is taken away either as part of any unemployment rellef scheme or for any other reason whatsoever or under the provisions of the Industries (Development and Regulation) Act, 1951 or any other law,.lhe Trustee shall be entitled to receive the whole of the compensation lo which the Company shall be entitled and: to apply the same or a sufficient portion thereof In accordance with the provisions sel out In Clause 13.3 (Power to apply Proceeds) hereof and all monies secured hereunder shall
___ b_ecomelmmedlately payable and the securl_t~ create_d he_reunder shall become en_rarceable.
13.15 -Purchasers and parsons dealing with Trustee not put on enquiry
I I
The Company acknowledges and agrees that no person dealing with the Trustee, any Racelver or any delegate shall be concerned lo enquire:
. (i) whether the rights conferred by or pursuant to any Transaction Document are exercisable;
(II) whether any consents, regulations, restrictions or directions relating to such rights have.been obtained.or.complied with;
(Ill) otherwise as to the propriety or regularity of acts purporting or intended to be in exercise of any such rights; or
(Iv) as to the application of any money borrowed or raised •
. 13.16 Receipt by Trustee to be effectual discharge
Upon the occurrence of any dealing or transaction In accordance wilhlhls Deed, the receipt by the Trustee 91 the proceeds of all or part of the Security created pursuant lo the Security Documents sold or realised and for any other monies paid otherwise howsoever to It shall effectually discharge the purchaser or purchasers or person paying the same from being concerned to see to the application or being answerable for the loss or mlsappllcatlon or non-application thereof.
13.17 Application to Court
Notwtthslandlng anYthing else contained In this Deed, the Trustee may, at any time after lhe ·· Security hereby constlluled on the Secured Assets becoming enforceable, apply to the Court
foran order that the powers and trusts hereof be exercised and carried Into execution under the dl.recllons of the Court and for the appoinlment of a Receiver or manager of the Secured Assets. and for an)rother order In relation to the execution and administration of the powers and trusts hereof. as the Truslee shall deem expedient and the Trustee may assent to or
.·approve of any application to lhe Court made at the Instance of any of the Bond Holders and ·shall be Indemnified by the Company against all costs, charges and expenses Incurred for otln relation to any such application or proceeding.
13.t8 Jl.ppllcabte Law
The Trustee, In -the c;:Ourse of performance of Its duties under the Transaction Documents, shall not be required to take any acllons which would resull In the Trustee being In breach of Applicable Law.
13(A) Escrow Account:
The Parties agree that all paymenVs made by Lessees/ Licensees In relallon to the Rental Document other than utility charges payable in respecl of any month by such Lessees/Licensees shall be deposited lnlo the Security Provider Escrow Account. Such amounts shall Hrst be applied to pay the Interest due on nexl Interest Payment Dale and secondly to ensure the Required DSRA Amount Is malnialned. Upon the Requ!red DSRA Amount being maintained In the Company DSRA Account and amounts equivalent to 1. lx of the Redemption Amount payable on the immediately nexl Redemption Dale Is received in ·the Security Provider Escrow Account (which shall be transferred to the Company Escrow Account), all further amounls received In the Security Provider Escrow Account shall be transferred to the current account of the Security Provider. which the Security Provider can utilise freely. The process of application of the funds received by the Security Provider as set out In this Clause 13A and the Escrow Agreement shall at all times be followed so as to ensure thatthe Required DSRA Amount Is maintained and that the Company Escrow Account Is funded with amounts equivalent to 1.1x the Redempllon Amount payable on the immediately nexl Redemption Data.
1.t Is further clarified that, all aforesaid .amounts so transferred to the Company Escrow Account shall be placed by the Escrow Bank In Permitted Investments, from Iha day the amounts are deposited into the ·Company Escrow Account till the date of payment of
.. RedempJlonAmountpayable on such Redemption Date lo lhe Bond Holders, as par the· lnstrucllons al the Trustee. Post the payment or the Redempllon Amount. any surplus amount from the amo.unt so transferred shall be lransferred to current account ol the
Company. which ·lhe Company can utilise freely. subject to compliance w1lh the terms and conditions of this Deed.
f\JotwilFISTirldiflQ-a-ny-OfhE!r -pi-OliiSlOfi ·or fl1151JB6d, u-po-n ·111e--oCCUri-'3riCe Or an E-v-erit of Default which subsists no debits or credits lo any of the accounts or the Company or lhe Security Provider, including the Company Escrow Account. Security Provider Escrow Account and other bank accounts hefd by any or both of them, shall be permilled Wilhoul the prior written consent of !he Trustee.
The Parties agree that the Company and the Security Provider shall execute and deliver lo lhe Trustee, the Escrow Agreement, not later lhan 30 days from Iha Allotment Dale.
14 RIGHTS OF TRUSTEE
In add Ill.on to lhe other powers hereby conferred on the Trustee and lhe provisions hereof for its protection and not by way of llmllatlon or derogation of anything in this Deed, II is expressly declared as follows: (I) the Trustee may, In relallon lo this Deed, act on the opinion or advice of or any
Information obtained from any solicitor, counsel, advocate, valuer, surveyor, broker, .auctioneer, qualified accountant or other expert whether obtained by the Company or by lhe Trustee;
(II) the Trustee shall be al liberty lo accept a certificate signed by any one of the .directors or authorised officers of the Company as to any acl or matter prlma facie within the knowledge of the Company es sufficient evidence thereof and a like ·certificate thal any property or assets are in the opinion of the director or authorised officer so certifying worth a particular sum or sullable for the Company's ·purpose or business, as sufficient evidence that II Is worth Iha! sum or so suitable and a like certificate lo the effect that any particular dealing or transaction or step or thing Is In the opinion of the director or authorised officer so certifying expedient, as sufficient evidence th et it Is expedient;
(Iii) the Trustee shall be at liberty lo keep this Deed, the other Transaction Documents and all other related deeds al ils office or 1r lhe Trustee so decides with any bank or company In Mumbai whose business Includes undertaking the safe custody of .documents or wilh any firm of advocates or sollcilors In Mumbai and the Trustee
· 'may pay all sums required lo be paid on account of or In respect of any such deposit;
(iv) with a view to facllllaling any dealing under any provision of this Deed the Trustee shall (subject lo the applicable requirements under this Deed for obtaining consent of the Bond Holders) have lull power lo consent (where such consent is required) to a specified transaction or class of transactions conditionally;
(v) the Trustee, "Ipso facto" do not have lhe obligations or a borrower or a principal debtor or a guarantor as lo lhe monies paid/Invested by Bond Holders for the Bonds.
Provided that nothing contained In !his Clause 14 shall exempt the Trustee from or lndemnWy ii against any llablllly for breach of trust nor any llabllily for fraud, gross negligence, wilrut default or breach of trust which It may be guilty or In relallon to Its dulles under this Deed,
15 RETIREMENT AND REMOVAL OF TRUSTEE 15.1 Retirement
(a) The Trustee may retire al any lime wilhoul assigning any reason and without being responsible for any loss or costs occasioned by such retirement provided that the Trustee shall have given at least 3 months' prior notice in writing lo the Company end the Bond Holders. The retirement of lhe-Trustee shall not be effective unless a ;new trustee Is appointed In accordance with Clause 15.3 to accede to all lhe Transaction Documents.
(b) The Company shall, upon receipt of notice of resignation issued by the Trustee, .. Ja~e prompt steps lo app0int another competent person, to act as fbe Tr~st.ee lo
·replace lheTruslee pursuant lo obtaining consent of the Bond Holders by way of a Majority
27
.i.
Resolution) In a meeting called In accordance wilh Schedule 2 (Provisions for Meetings and Decision Making).
15.2 Removal
The Trustee may be removed by the Bond Holders by (a) a resolution passed at a Mealing of the Band Holders; or (b) wrillen instruclions given, In bolh cases by a rflajorily representing not-less than-75%-of-the aggragala-Nomlnal-Valua of-lhe-oulslandlng-Bonds.-'J'ha removal of Iha Trustee shall not be effective unless a new trustee Is appointed in accordance wilh Clause 15.3 lo accede lo all the Transacllon Documents.
15.3 Appointment of now Trustee
Upon receipt or the notice of retirement from the Trustee or on the (emoval of the Trustee in accordance with Clause 15.2 (Removal), the Bond Holders may, by a Majority Resolution, appoint a company, body corporate or a statutory corporallon company which Is registered under Iha Securities and Exchange Board of India (Trustee) Ragulallons, 1993 as Trustee hereof Who shall accede lo all lhe Transacllon Documents.
16 INFORMATION, MEETINGS AND OTHER DUTIES OF TRUSTEE
16.1 Coples of Transaction Documents
(a) The Trustee shall maintain at the address speclOed In Clause 24.3 (Address -Trustee), or such olher office as notified to the Bond Holders by not less than 5
. Business Days' notice, copies of each Transaction Document, which shall be open .to lnspacllon by each Bond Holder on Business Days during the working hours of the Trustee provided that any Bond Holder seeking to Inspect the Transaction
· Documents has nolified the Trustee of ils request al least 1 (one) Business Day prior to the proposed date for Inspection.
(b) The Trustee shall, if requested in writing by any Bond Holder, provide copies of the Traneaction Dotumenls lo such Bond Holder provided that such Bond Holder Indemnifies the Trustee Immediately upon demand for any stamp duly which may become payable on the Transaction Documents In any Jurisdiction Into which the Transacllon Documents are sanl al Iha requesl or the Bond Holder.
16.2. Other Information
The Trustee shall d.1.slribule lo the Bond Holders copies of all nollcas and documents received by It from any Obllgor In Its capacity as Trustee for the Bond Holders.
16,3 Meetings and Instructions
(a) The Trustee, Iha Company and the Bond Holders shall at all limes be entitled to call a meeting of Bond Holders In accordance with Schedule 2 (Provisions for Meetings and Decision Making). ·
(b) ·Where the Trustee Is required by the terms of this Deed to seek the lnslrucllons of the Bond Holders, It may do so either by calling a meeting or Bond Holders or by seeking wrlllen instructions from the Bond Holders provided lhal upon becoming aware of the occurrence of any Evant of Defaull lho Trustee shall immadlately eaek wrlllen Instructions from lhe Bond Holders by sending a notice lo each Bond Holder.
16.4 Other duties
The Trustee undar1akes for the banefll of the Bond Holders that it shall, upon receipt of instructions from the applicable majority of Bond Holders, initiate and represent lhe Bond Holders In any legal or other proceedings necessary lo enforce the rights of lhe Bond Holders and the Trustee In connecllon with the Bonds and/or under the Transacllon Documents· provided sufficient monies shall have bean provided (or provision for ii would have bean made) to the satisfaction of lhe Truslee. ·
.t7 ___ TRUSTEE'S REMUNERATION
17.1 Faas
28
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The Company shall pay Lo \he Trustee remuneration mutually agreed between the Company 1miUh~ Iruslee.ln<i Fee Letter.
17.2 Trustee expenses
The Company shall pay lo lhe Trustee all legal, travelling and other costs, charges and expenses Incurred by ll or its officers. employees or agenls in connection with execution of .this Deed Including costs, charges and expenses of and Incidental lo the approval and
· execution of this Deed and all other documents affecting the security herein and will indemnify lhe Trustee against ell actions, proceedings, costs, charges, expenses, claims and demands whatsoever which may be brought or made against or Incurred by Iha Trustee In respecl of any mailer or thing done or omllled to be done In respect of or In relation to the Bonds and/or the Secured Assets.
18 · MODIFICATIONS TO THIS DEED
The Trus.tee may agree lo any modification lo or waiver under this Deed or any other Trans.action Document only with the prior consent of the Bond Holders obtained In accordance with the provisions of Schedule 2 (Provisions for lhe meellngs of lhe Bond
• Holders).
19 . CALCULATIONS AND CERTIFICATES
19.1 Accounts
In any proceedings arising oul of or In connection with a Transaction Document, the enlrles .-riade: In the accounts maintained by a Trustee are, except in the case of manifest error or fraud, prlma facle evidence of the mailers to which they relate.
19.2 Certificates and Determinations
• (a) Subjecl to paragraph (c) below, any certificate provided by lhe Trustee In relation to the Debt shall be prima facle proof or lhe Debt, wllhoul production of any voucher, documents or other papers .unless proved olheiwlse.
(b) Without prejudice to paragraph (a) above and subject to paragraph (c) below, any calculation, cerllficallon or delerminallon by a Trustee under any Transaction
· Dooumenl Is, In the absence of manlfesl error. prlma facle evidence ol the mallers to which ll relates unless proved otheiwlse •
. (c) The Bond Holders may (by way of a Majority Resolution) provide to the Trustee eny. · calculations in required to .be made under .lhe Transaction Documenls on any
Calculallon Dale. If lhe calculations provided by the Bond Holders by such Majority · Resolution differ from lhe calculations made by lhe Trustee, lhe calculalions made
by the Bond Holders will Jl(evall In Iha absence of manifest error as prlma racle evidence.
19.3 Day count convention
Any·1_n~erest, premlu.m, commission or fee accruing under a Transaction Document will accrue from day to day and Is calculated on lhe basis or the actual number of days elapsed (actual/actual).
20 PARTIAL INVALIDITY
If, at any time, any provision of the Transaction Documents Is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceabilily of the remaining provisions nor the legallly, validity or enforceability of such .provision under lhe law of eny other jurisdiction will in any way be affected or' impaired.
21 . REMEDIES AND WAIVERS
No .failure to exercise, nor any delay In exercising, on the part of the Trustee, any right or remedy under the Transaction D.ocuments shall operate as a waiver. nor shalLany single or
. paitliil exercise olSnyngfif or-remedy prevent any further cir other exercise or tile exerdse·
~I 29
,J
of any other right or remedy. The rights and remedies provided In this Deed are cumulative and not exclusive of any rights or remedies provided by law.
22 APPOINTMENT OF TRUSTEE AS ATTORNEY OF THE COMPANY
22, 1 Appointment
Ibe_~_OmRaoy_lle1J1J!y_Jrnivocably_<!ppolnti;_!hJ1 Trustee_ as well as each Receiver lo be appointed under this Deed to be its attorney or attorneys, and In the name and on behalf or Iha-Company (and to the exclusion of Iha Company) to act and execute all deeds and things lo ere.ate and/or perfect security In terms of the Transaction Documents and the Security Doouments, which the Company Is authorised to execute and do under the covenants and provisions herein contained and generally to use the name of the Company In the exercise of all (Ir any of the powers under this Dead or by Applicable Law conferred on the Trustee or any Receiver appointed by the Trusta·a and also to exercise on behalf of the Company at the cost of the Company the powers under this Dead or by Applicable taw conferred on the Trustee or any Receiver appointed by It and also to execute on behalf of the Company at Ula cost of the Company such documents and deeds as may be necessary 10 give effect 10 the provisions referred to herelnabove and also for preservation, anrorcamanl and reallsaUon or the Security and the Company shall bear the expenses lhal may be Incurred by the Trustee or any Receiver in that behalf and without prejudice to ttie generality or lhe foregoing the Company has appointed Iha Trustee, Inter a/la lo:
(a) · _execute and do all acts, d_aeds and things which the Company is authorised to execute and do under Iha covenants and provisions contained in this Deed, upon
. defallll or failure by Iha Company lo do so when required by this Deed;
(b) generally use lhe name of. Iha. Company in Iha exercise of all or any of lhe powers conferred by thts Deed or by Applicable Law on the Trustee or any Receiver appointed by the Trustee, upon default or failure by the Company lo do so when required by this Deed; and
(c) on and from the occurrence of an Event or Default, exercise all of the powers and rights or and vested in the Company, in accordance with the terms of this Deed and Iha other Transacllon Documents.
22.2 · Ratification
The Company rallfles -and confirms and agrees to ratify and confirm whatever any such allorney shall <lo in the exercise or purported exercise of lhe power of allorney granted by ll In Clause 22.1 (Appo/nlmanl).
23 ASSIGNMENT
(a)- The Company may not (and shall ensure that no other Obligor will) assign or transfer any of its rights or obllgallons (Including, for the avoidance of doubt, by declaring or creating any trust of lls rights, title, Interest or benefits) under this Deed or lhe Transaction Documents.
(b) Upon the resignation or removal or the Trustee pursuanfto this Deed:
(I) lhe resigning or, as lhe cese may be, removed Trustee shall be automatically discharged from any further obllgallons under this Deed upon appointment of a new Trustee as set out In Clause 15(3);
(ti) Its successors and l_he Company shall have lhe same righlsand obligations among themselve_s as they would have had If Iha successor-had been originally party to this Deed as Iha Trustee; and
(iii) this Deed shall be construed as If all references lo Iha former Trustee were repla_ced by references to the successor Trustee.
24 NOTICES
24.1 Comrnunlcallons
~I 30
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Any communication lo be made under or In connection wllh the Transaction Documenls shall becmade-ln-writing_and,-unless-otherwlse-stated, .may_ be made_by fax, letter _oreleclronic mall.
24.2 Address - Company
Notices and communications to be given to the Company shall be sent to:
- Address:
Attention:
Fax number:
- E-mail _address:
The Miltenia, Tower B, Level 12-14, No 1 & 2, Murphy Road, Ulsoor, Bangalore, Karnataka
Ms. Saresw'!lhl Shetty
+91 (80) 4000 4000
:9r any _sut;>sµtu~~ a_Qd_ress, fa~--number, electronic mall address, or d_apartmenl or officer ?B - the Company. may notify to the Trustee by not less than 5 Business Days' notice.
24.3 Address -Trustee
Notices and communications to be given to the Trustee shall be sent to:
Address: Asian Building, Ground Floor, 17, R. Kaman! Marg, Ballard Estate, Mumbal,400 001
Attention:
E'mall 'address:
Anjall Athalye
or any substitute address, lax nu-mber, electronic mall address, or department or officer as the Trustee may notify to the Company by not less than 5Buslness Days' notice.
24.4 Address - Guarantor
Notices and communications to be given to the Guarantor shall be sent to:
Address: The Mlllenla, Tower B, Level 12-14, No 1 & 2, Murphy Road, Ulsoor, Bangalore, Karnataka
Allention: _ Ms. Sarawathl Shetty
E.mall • addre_ss: [email protected]
- or any substitute address, fax number, electronic mall address, or department or officer as lh_e _Guaranior may notify to the Company by not less than 5 Business Days' nolice.
24,5 - Ad.dress - Security Provider
Notices and communications to be given to the Security Provider shall be sent to:
Address: The Mlllenla, Tower B, Level 12-14, No 1 & 2, Murphy Road, Ulsoor, Bangalore, Karnataka
Attention: Ms. Sarawethl Shelly
E-mail address: [email protected]
. or any substitute address, fax number, electronic mall address, or department or officer as the Security Provider may notlty to the Company by not less than 5 Business Days' notice .
~,.,0ch P"""'~
..s <,: 24.6 "' . '3
·Address -Bond Holders
2 Gu n ~ cl Q.
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*
Notices and communications to be given to a Bond Holder shall be sent to the_ address, lax number or electronic mall address of that Bond Holder as set out In the records of the
-- Deposno-iy-an11e-relevant um-ax or If Bond Holder h•s provided any-substitute address, fax-number or electronic mall address to the Trustee and the Campany by not less than 5 Business Days notice to such substitute address, fax number or electronic mail Id.).
. .
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24.7 Delivery
Any·communicalion or document nlade or delivered by one person to another under or in connection with !his Deed will only be effecllve:
(I) .ii sent by lax before 5 p.rn. on a Business Day, when sen! or, if sent by fax at any other lirne, at 9 a.rn. on Iha next Business Day, provided, in each case, that the eerson sendi~ the fax shall have received a tra11~rnission receipt;
(ii) if by way of letter, five Business Days after being deposiled in the post postage prepaid in an envelope addressed to ii at that address, as the case rnay be, and
(iii) If sent by electronic rnall before 5 p.rn. on a Business Day, when sent or, if sent by ·electronic rnail al any other lime, at 9 a. m. on the nexl Business Day, provided, in each case, lhe electronic rnail is aclually received In readable form and In English;
and ii It is expressly marked for the attention of the department or officer Identified in Clause 24.2 (Address - Company), Clause 24.3 (Address - Trustee), Clause 24.4 (Address - Guarantor), Clause 24. 5 (Address - Security Provider) or Clause 24.6 (Address - Bond Hqlders) (or any substitute department or officer as the other person shalt specify fqrthis purpose).
25 TAX
25.1 Tax deduction
(a)
(b)
(c)
(d)
(e)
All payments to be made by lhe Company to any Secured Party under or in 'Connection· with the Bonds or a Transaction Document shall be made free and ·
· 'clear of and without any Tax Deduction, unless the Company. Is required to make a Tax Deduction under the Tax Act.
· If any Tax Is deductible at the source under the Income Tax Act, 1961, then the Company s.hatl deliver the original Tax Deduction certificate ("TDS certlflcate") In the format prescribed under the Income Tax Rules, 1962 to each of the Secured :Parties within tlmeltnes prescribed under the Income Tax Act, 1961 and any rules thereunder .
. . If the Company fails to deposit Taxes due or fails to deliver the TDS certificate ·within tlmelines prescribed under the Income Tax Act, 1961 and rules thereunder
and any of the Secured Parties suffer a loss or tax liability as a result of any of the aforesaid acts of the Company, lhen the Company shall, within 2 Business Days of demand from such Bond Holders, ·promptly Indemnify the Bond Holders against such payment or liability, together with any Interest, penalties, costs and expenses payable or Incurred or to be incurred by the Bond Holder in connection therewith.
Any change .to Tax Deduction required under Applicable Law shall promptly be notified by the. Company, lo the Trustee and each Bond Holder, upon becoming
. : aware that II must make a Tax Deduction (or that lhere Is any change In the rate or 'the basis of a Tax Deduction).
Trustee shall obtain.from the Bond Holders and furnish to Iha Company, and Bond Holders shall furnish to the Trustee, the following documents from each Bond Holders, every Financial Year till the Financial Year In which Bonds are redeemed;
a. b . c. d, e. f.
g,
Interest certificate In the prescribed form No Permanent Establishment Declaration
· Information related to recipient of interest Form No 1 OF of the Tax Act Permanent Account Number card copy Tax Residency Certificate Issued by the competent tax authorities In Singapore valid for the period for which the Interest pertains to. Tax laentmcatlon Number Issued by the Singapore tax aiitlior1m.-s.
25.2 l11dlrect Tax
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32
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(a) All amounts expressed lo be payable In respect of the Bonds or under the Tra.nsacllon Documents In respect of any Indirect Taxes, ~all be borne ,t>y_,lh., Obligors -(lnclUcllng any cost or expenses lo be reimbursed or lndemnlfled by any Party lo a Bond Holder shall be deemed lo be exclusive of any Indirect Taxes).
(b) If any indirect Tax is chargeable on any amounts payable to a Bond Holder (including any cost or expenses lo be reimbursed or indemnified), Iha amount of such Indirect Tax shall be added lo such amounts and the Company shall, within 2 Business Days of demand, pay to that Bond Holder an amount equal to the amount of the indirect Tax.
25,3 Stamp Taxes
The .Company shall pay all stamp duty, laxes, charges and penallles payable In respect of the. Bonds, lhe Transaction Documents and/or the transactions contemplated thereby, from time lei lime,. and In the event of the Company falling to pay such stamp duty, taxes and penal\l~s. lhe Trustee may (but shall not be bound lo) pay the same and the Company shall reimburse !he same to the Trustee on demand. The Company shall pay and, within 2 Business Days of demand, Indemnify each Secured Party against any cost, loss or llablllty
'thatsuch Secured .. Party Incurs In relation to all stamp duty, registration and other similar Taxes payable In respect of Iha Bonds and/or any Transaction Document.
2~ . COUNTERPARTS
This Deed may.be executed in any number of counterparts, and this has the same effect as irthe signatures on Iha cou.nlerparts were on a single copy or this Deed.
27. GOVERNING LAW
This Deed Is governed by Indian law.
28 ENFORCEMENT
28.1 Jurisdiction
(a)
(b)
(c)
(d)
The courts and .tribunals of Bangalore have exclusive jurisdiction to settle any dispute arising out of or In connection with this Deed (including a dispute regarding the existence, validity or termination or this Deed) (a "Dispute").
. The Company agrees lhal the courts and tribunals of Bangalore are lhe most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
· This Clause 28.1 Is for the beneOI of Iha Trustee and Iha Bond Holders only. As a result, the Trustee shall not be prevented from taking proceedings relating lo a Dispute In any other courts with jurisdiction .
. . However, any legal proceedings in relation lo Bonds shall be Initiated by the Trustee only acting on Majority Resolullon and single proceedings shall be Initialed on behalf of all Bond Holders in respect of the same cause of action.
28.2 Consent to Enforcement etc.
The Company lr.revocably and generally consents in respect or any proceedings anywhere In connection with any Transaction Document to the giving of any relief or Iha Issue of any process In connection with lhose proceedings including. without llrnitation, the making, enforcement or .execution against any assets whalsoever (Jrrespeclive or their use or
I Intended use) or any order or judgment which may be made or given In those proceedings.
28.3 Waiver of Immunity
The Company Irrevocably agrees that, should any Party lake any proceedings anywhere (whelt:ier for C!in. Injunction, specific performance, damages or otherwise in connection with any Transaction Document), no immunity (to the exlenUhat ll may at any lime extsl, whether
··-~-on-the grounds· onoverelgnty or otherwise) from those proceedings, rrom·a11achmen1- · (whether in aid of execullon, before judgment or otherwise) of its assets or from execution
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of Judgment shall be claimed by ii or wllh respect to Its assets, any such immunity being Irrevocably waived. The Company Irrevocably agrees that It and Its assets are, and shall be, subject to such proceedings, attachment or execution In respect of Its obllgattons under the Transaction Documents.
29 CONFLICT
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The-Transaction- Documents conslitute-lhe-enlire- understanding-between-the-Parties-with regard to the subject matter hereof and supersede any other agreement between lhe Panias relating .lo .the subjecl matler hereof and thereof, Including but nol llmiled.to any lerm sheet. However, In the event of any ccnmct arising between the provisions of this Deed and the Transaction Documents,· 1he provisions of lhls Deed shall govern and supersede all other documents executed.between the Parties. ·
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SCHEDULE 1 TERMlj_ANDj;!l!lDITIONS
1 ISSUE AND FORM OF BONDS
The Bonds will be Issued In lhe form as contemplated and defined under Section 2(30) of the Companies.Act, 2013 In dematerlalised form pursuant to the depository arrangements made by the Company wllh the Depository. The Bond Holders are required to hold the Bonds In de-materialised lorm only, and no Bond certificales will be Issued. The Company shall not re-materialise Iha Bonds. The Bonds shall be alloted wllhln 2 days from Iha Deemed Date orAllolmenl.
2 BONDS TO BE SECURED AND TO RANK PARI PASSU
(a) • . The Bonds shall be secured by Iha Security creeled pursuant lo lhe Securily ... Documen.ts and shall be guaranteed by the Guarantee provided by Iha Guaranlor.
(b) · · The. Bonds together wllh Iha Debt In respect of the Bonds shall, as between the Bond Holders Inter se; rank parl passu without any preference or priority whatsoever of one ·aver the other •.
(c) The Bonds together with the Debt In respect of the Bonds shall. rank senior lo all other unsecured, unsubordlnated debt of the Company.
3 BONDS FREE FROM EQUITIES
the Bond Holders shall be e.nlllled to their Bonds free from equities or cross claims by the · .company against the original or any Intermediate holders thereof.
4 REDEMPTION
The Comp~ny shall redeem each .Bond In full by paying the Accrued Amount and all other amounts payable In respect thereof In accordance with the Transaction Documents, In accordancewith the Schedule o(Redemplion as set out at Schedule 9.
5 EARLY REDEMPTION
Mandatoiy Redemptions:
5.1 Illegality
(a) If, at any time, It I.•• becomes or will become unlawful or contrary lo any re9ulallon In any. appucabie jurisdiction for a Bond Holder to fund or mainlain its Investment in the Bonds, lhe Bond Holder will .use its reasonable efforts to transfer the Bonds to an ellglble transferee at a price payable for redemption of such Bond as detailed in Clausa s; 1(b) (provided that the Band Holder Is not prohibited from transacting with such transferee under Applicable Law or Internal policies and procedures).
(b) 11 the Bond Holder Is unable lo transfer the Bands in accordance with paragraph (a) above, II shall be entitled to request the Company ta redeem Its Bands by delivering
· a notice In writing to the Company, The Company shall redeem each Bond held by such Bond Holder In.full by paying:
(I) Accrued Amounl an the date specified in the notice delivered by such Bond Holder (being no earlier than the last day of any applicable grace period penmltled by law or regulallon. as the case may be), If the lliegallly referrad to In paragraph (a) above Is attributable to an action or omission of lhe Bond Holder; _or
(II) Accrued Amounts and ell costs and expensas Incurred by the Trustee In respect of its Bonds in respect of Its Bonds on the dala specified in lhe notice .dellverad by such Bond Holder (being no earlier than the last day of any applicable grace pertod permitted by law or regulation, as the case may_
'---be),. if-the. Illegality referred to In paragraph (a) aboveJs.on_accountof ___ _ factors other than those specified In paragraph (I) above.
35
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For the avoidance of doubt, II Is hereby clarified thal any payment made by the Company lo the Bond Holders pursuant lo a redemption of the Bonds on account of Illegality In accordance wllh lhls paragraph 5. 1 shall not Include any Make Whole Amounts.
5,2 FPI Reilemption Event
(a) - · Upon the-occurrence-of-an FPI Redemption Event.-a-Bond-Holder (who-is-an FPI and an Initial subscriber to the Bonds) may require the Company lo redeem Its Bonds by delivering a notice to the Trustee and Company, The Company shall redeem the Bonds held by such Bond Holder In full by paying the Accrued Amounts and all costs and expenses Incurred by the Trustee In respect of Its Bonds Immediately pursuant lo the notice delivered by such Bond Holder.
(b) _The Company shall promptly notify the Trustee and each Bond Holder of lhe occurrence of a FPI Redemption Event.
5.3 Cash Flow Redemptions
(a) In the event of a sale of Project or any part thereof ("Asset Sale") or lhe sale of any of lhe shares or securities held by the Borrower ("Share Sale") In the Security Provider, the Company shall ens.ure that all the proceeds from such Assel Sale or Share Sale are used lo redeem the outstanding Bonds and the relevant Redemption Amount (Including the Make Whole Amounl) In respecl or each Bonds being redeemed and all olher amounts payable to the Bond Holders under the Transaclion Documents or olherwlse In respect of lheir Bonds are redeemed wllhln a period of
· 10 days from the occurrence of the Asset Sale or Share Sale.
(b) · Without prejudice to the obligations of the Obligors under Clause 5.3(a) above, no , Asset Sale or Share Sale shall occur unless: (a) the Obllgors provide the Trustee
with a prior notice of the proposed Asset Sala or Share Sale along with all details of the transaction and consideration payable al least 30 days prior to the proposed Asset Sale or Shara Sale, unless the Trustee accepts a shorter notice period; (b) the acqulrer of the assets or the shares confirm the terms of the Transaction Documents and uncondllionally consents to the Merger Evant and no rlghls shall be
_ provided to such acqulrerwithoul the prior written consent of lhe Trustee .
. (c) The notice set out in sub·clause (b) above, shall also speciry (i) the number and details of Bonds to be redeemed, (Ii) the proposed Redemption Date; and the (Iii) the aggregate Redempllon Amount, Including the Make Whole Amount payable on such Bonds.
5.4 Redemption upon occurrence t>f an Evant of Default
Nolwllhslandlng anything contained to the conlrary contained In this Deed, the Bonds shall be redeemable al the option of Iha Truslee al any lime prior to the expiry of the term of the _Bonds upon the occurrence of an Event of Default. Upon lhe occurrence or an Event of Defaull the Company shall rede_em all Bonds and pay Accrued Amount and Make Whole Amount to the Bond Holders.
5;5 · Voluniary Redemption
(a) The Company may redeem some or all of the oulslendlng Bonds in full by delivering a notice In the form and manner set out In Schedule 6 ("Voluntary Redemption Exercise Notice") lo the Truslee (with a copy to the Bond Holders) at leasl 45 days prior lo the proposed dale ("Voluntary Redemption Date") and by deposlling In lhe Company Escrow Account, on or before al least 45 days prior lo a Volunlary Redemption Dale, the relevant Redemption Amount In respect of. each Bonds being redeemed and all olher amounts payable lo the Bond Holders under the Transaction Documents in respect of their Bonds on a Voluntary Redemption Date.
(b) The Voluntary Redemption Exercise Nollce shall specify (I) the number of Bonds lo ---be redeemed; (li)'lhe \lahlntary Radampliorr Date pei Bond; and the (lllfthe
aggregate Redemption Amount, Including the Make Whole Amount.
35
I ~3-W1ftf ., I
5,6 Approvals and Other Provisions Applicable to Redemptions
(a) Any-redemption berore-tha-mlnlmum-resldaannatutlty-term a:s-stlpulated-wilr Ile strictly in accordance with and with approval from Reserve Bank or India 1r applicable and any other approvals required from Governmental Authorities, and the Obligors shall take all actions to oblain the necessary regulatory approvals.
(b) Other than as expressly sel out In this Deed (providing for payment or Make Whole Amount), no pre-payment premium or prepayment charges or early redemption charges are payable by lhe Company upon Iha exercise or Its rights under this Clause 5.6
6 REDEMPTION MECHANICS
(a)· No action Is required on lhe part or any Bond Holder(s) at lhe lime or redemption of the Bonds. On the relevant Redemption Dale, the relevant amounts shall be paid· by
. the Company, in accordance wllh Paragraph 13 (Payments) below, to those Bond · Holders whose names appear on the Register of Beneficial Owners as on the : Record Dale and, ror these purposes, a statement issued by the Depository shall be
conclusive evidence In respect thereor.
(b) All Bonds that are redeemed In rull on any Redemption Date will rorthwlth be cancelled end extinguished through appropriate corporate action.
· • ·(c) Ar\y partial redemption or a Bond on any Redemption Date will lo that exlenl be a good discharge lo !he Company egainsl the Bond Holder In respect of the amounts paid by !he Company.
· (d) ··Any redemption by the Company or some (but not all) the Bonds pursuant lo Paragraph 5.2 (Volunlaty Redemption) above may only be made Ir:
(I) any redemption of Bonds is pro-rata across !he Bonds held by all the Bond Holders In the proportion of the aggregate Nominal Value or the Bonds held by each Bond Holder to the aggregate Nominal Value or the Bonds then outstanding:
(ii) a whcile number of Bonds are redeemed In respect or each Bond Holder: and
· · .(Iii) ror -the avoidance or doubl, such redemption is rnade together with applicable Make Whole Amount and all other amounts payable under the
· · Trsnsacllon= Documents or otherwise in respect of such Bonds.
(e) Any sums rece_lved from the Company by the Bond Holders and/or lhe Trustee shall be applied: nretly, towards payment or any costs and/or rees then due lo the Bond Holciers and/or the Trustee or any receiver or advisor. allorney or agent appointed for the benefit of the Bond Holders and/or the Trustee; secondly, towards outstanding amounts of Default Interest: thirdly, towards payment or any Interest that
_Is due and unpaid: fourthly, towards. re-payment of of the Redemption Amounts applicable on the Bonds being redeemed,
· (f} -· ·• The Company shall not re-Issue any part or the Bonds which have been redeemed.
7 .DEFAULT AND REDEMPTION
(a) . · · The provisions of Clause 10 (Events o/ Default and Remedios) of the Deed shall be applicable to each Bond as Ir set out herein.
(b) Promptly upon a request by the Trustee, the Company shell supply to the Trustee a certificate signed by two of ils directors or senior officers on lls behalr certifying that no Default ls continuing (or If a Default ls continuing, specifying the Derault and the steps, If any, being taken to remedy II).
_ REGISIEROFBENEFJCtAL OWNERS
37
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The Regisler of Beneficial Owner(s) containing all relevant particulars shall be malnlalned by the Deposllory.
9 TRANSFER
The Bonds shall be freely lranslerable by Issuance of lranslar lnslrucllons lo lhe Depcs\lcry by. lhe relevant Bond Holders In accordance with Applicable Law. The Bonds shall be transferred and/or lransm ilted·by ortoa·transrercr-cr-lransferee only in-accordance wllh-the applicable provisions of the Acl and other Applicable Lawe lncludlng the rules/procedures as prescribed by lhe relevant Depositories and the relevant depository participants of the lransfaror or transferee,
10 PAYMENTS
(a) Any payments to be made to a Bond Holder pursuant to Clause 4 (Covenant to Pay and Use of Proceeds).cf the Deed and/or these Terms and CcndlUcns shalt be made by the Company In INR In same day funds using the services of electronic clearing
(b)
(c)
(d)
· services (ECS),. reel lime gross setllement (RTGS), direct credit or national electronic fund transfer (NEFT) Into such bank account cf the Bond Holder as may be nollflecl to the Company by such Bond Holder or the Trustee (acting on behalf or the Bond Holder).
Payment cf the applicable Redemption Amount will be made to the sole holder and rn case of joint holders to the one whose name stands nrst In Register cf Beneficial owners.
Any payment which Is due to be made on a day that Is not a Business Day shall be made on the next Business Day In the same calendar month (II there Is one) or Iha .Preceding Business Day (if there Is not).
· All payments to be made bY the Company to a Bond Holder pursuant to the Deed arid/or these Terms and Conditions, Including Redemption Amounls, Default
· Interest, Make Whole Amount and all other payments upon redemption cf the Bonds, shall be made free and clear of and without any deduction or withholding for or on account of Tax unless the Company Is required to make a Tax Deduction under the Tax Act, In which case the Company shall make that Tax Deduction In accordance wllh and Within the lime prescribed by Applicable Lew and deliver to the relevant Bond Holder a tax deduction certificate in the format prescribed and within the time prescribed uncier the Tax Rules.
11 TAX
The provisions of Clause 25 (Tax) of the Deed shall be applicable to each Bond Holder as if setotit herein. ·
12 DAY COUNT CONVENTION
13
Any Interest, premium, commission or fee accruing on lhe Bonds will accrue from day lo day and Is calculated on the basis of the actual number cf days elapsed(actuallactual). In the event that the Interest Payment Dale falls on a public holiday/non Business Day or the date on which any amcunls payable In respect cf the Bonds becomes payable on a public holiday/non Business Day. ll wlll be construed to be the next Business Day unless specilled otherwise here In above. If any Redemption Date falls on a day which Is not a Business Day or ls)a public holiday, .the succeeding Business Day shall be considered the Redemption Date; provided that any Interest payable shall be calculated uptc the origin al Redempllon Date.
DISCHARGE
A Bond shall be taken as discharged on payment of atl amounts due in respect thereof on the applicable Redemption Date for that Bond to the Bond Holder whose name appears In lhl!B.'l!llst0r cf Beneflclal Owner(s) on therolevan.t Record D.a.te. ln.terest shall be t.aken ·~-discharged on payment or the same to the Bond Holder whose name appears In the Register cf Beneflclal Owner(s) on the relevant Record Date. On such payments being made, the c\"I p""
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68
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Company will Inform the Deposllory and accordingly lhe account or lhe Bond Holders wilh the Depository will be adjusled.
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14 BOND HOLDERS NOT ENTITLED TO SHAREHOLDERS RIGHTS
Except as provided in lhe Deed, the Bond Holders will not be entllled to any of lhe rights and privileges available lo the members or the Company Including right to receive notices of or lo .attend and vote at general meetings. If, however, any resolution affecting the rights attached to the· Bonds Is placed before the members of the Company, the Company shall ensure that such resolution will first be placed before the Bond Holders for their consideration and not take any action in pursuance of such resolution unless the resolution has been
. approved by the applicable majority of.Bond Holders.
1~. VARIAT!i'.>N OF BOND HOLDERS' RIGHTS
The rights, privileges, terms and conditions allached to the Bonds may be varied, modlned or abrogated in accordance with the provisions of Schedule 2 (Provisions for Meetings and Oac/slonMaking) or by the Trustee In accordance with Clause 18 (Modifications lo /his Oeed) of the Deed. . ·
16 NOTICES '
The provisions of Clause 24 (Notices) of Iha Deed shall be applicable to each Bond Holder as l!set 0ut he.rein. ·
. 17 G.OVERNlNG.LAW AND ENFORCEMENT ' ' . - . ; .
The Bonds are governed by Indian law. The provisions or Clause 28 (Enforcement) ol the •. Deed shatlbe applicable to ,each Bond as If set out herein .
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SCHEDULE 2 PROVISIONS FOR MEETINGS AND DECISION MAKING
The Following provisions shall apply to any meeting or the Bond Holders:
1 The Trustee or lhe Company may, al any lime, and the Truslee shall et lhe request in writing or:
(a)
(b)
Bond Holders representing not less than 10% (len per cent.) or the Nominal Value · of Iha Bonds for the time being outstanding; or
a Bond Holder with a grievance made In accordance with Clause 13.12 (Roi;lressal . of Bona Holders grievances) of the Deed,
call .a meeting of the Bond Holders. Any meeting called by the Trustee or the Company under the Deed can be by way or a physical meeting or or by way or a telephone conference call and In case of a physical meeting, shall be held at such place In the city where the registered office of the Company Is situated or at such other place es the Trustee shall determine.
2 A meeting of the Band Holders may be called by giving not less than 7 Business Days' notice In writing,
3 A meeting may be called after giving any shorter notice than that speclned in paragraph 2 above, If consent Is accorded thereto by Bond Holders representing not less then 66.67% of the Nominal Value of the Bonds for the time being outstanding.
4 Every notice of a meeting of the Bond Holders shall specify the place (or In case or a telephone conference call, the details required to altend such call), day and hour of the meeting and shall contain a statement or the business to be transacted at the meeting.
5 Notice .or every meeting shall be given to:
6
.1
(a) every Bond Holder in accordance wilh Clause 24 (Notices) of this Deed;
· (b) the persons entitled to a Bond In consequence of the death or Insolvency of a Bond Holder, by sending II through post In a pre-paid letler addressed to them by name or by the title of 'representatives of the deceased', or 'assignees ofthe.insolvent' or by
. ·any Ilka description at the address, If any, In India supplied For the purpose by the
. persons clalmlng to be so entitled 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;
(c) ·the auditor or auditors for the time being of the Company In the manner detailed In · Section 20 or the Act In respect or any members of the Company; and
(d) the Trustee when the meeting Is convened by the Company and to the Company when Iha meeting Is convened by the Trustee.
The. accidental omission to give notice to, or the non-receipt of notice by, ahy Bond Holder or other person 19 whom It should be given shall not Invalidate the proceedings at the meeting.
There shall be annexed lo the notice of the meeting an explanatory statement setting out ell material Feels concerning each such Item or business, including in particular the nature or the concern or Interest. If any, therein of every director and the manager, If any, of the Company, provided that where any 11•1'11 of spacial business as aforesaid to be transacted at a meeting of the. Bond Holders relates to, or affecls, any other company, the extent of shareholding interest in that other company of every director, and the managing director, If any, of, the first mentioned company shall also be set out In the statement .ii the extent of
. such. snareholding Interest js npt loss than twenty per cent of the paid up share capital of that other company.
40
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14
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16
17
18.
19
20 ..
Where any Item of business consists or according of approval Jo any document by the meetlng, the time and place where the document cen be Inspected shall be specifi~d In the state'1Yfe1u-afol'0Sllfct · · · -
Bond Holders holding not Jess than 51% arthe Nominal Value or the Bands for the lime being outstanding shall be lhe quorum for the meeting or the Bond Holders and provisions of paragraph 10 below shall apply with respect thereto.
If, within half an hour from the ti.me appointed for holding a meeting of the Bond Holders, a quorum is not present, the mealing, if called upon the requisition of the Bond Holders shall
·stand dissolved but In any other case the meeting shall stand adjourned lo the same day In · the next week, at the same lime and place (or In case of a telephone conference call, the details required to attend such cell on Iha same time and date shall be circulated by the Trustee three days prior to such c.all ), or to such other day and at such other time and place (or In case of a telephone conference call, the details required to attend such call), as the Trustee may determine and If at the adjourned meeting· also a quorum Is not present within half an hourfrom the time appointed for Iha holding or the meeting, the Bond Holders present
· shall b.a a quorum,
•The nominee ofthe Trustee shall be the Chairman of the meeting and the decision of lhe · Trustee shall ba final and binding on all the parties and In his absence the Bond Holders personally preserit at !he meeting shall elecl one of themselves lo be the Chairmen thereof
· . on a show .of hands.
lfTruslee does not nominate the Chairman and if a poll is demanded on the election of lhe Chairman. It shall be taken forthwith In accordance with the provisions of the ACt, !he Chairman elected on a show of hands exercising all the powers of the Chairman under lhe said provisions.
·The Truslee and the directors of the Company and their respective legal advisers may attend 'any meeting but shall not be entitled as such to vote thereat.
Al any meeting, a resolution pul to Iha vole of the meeting shall be decided on a show of hands unless a potl Is demanded In the manner hereinafter mentioned, and unless a poll is so demanded, a declaration by the Chairman that on a show of hands the resolution has or has not been c;irrled ellher unanimously or by a particular majority and an entry to lhal effect In the books containing the minutes of the proceedings of the mealing, shall ba conclusive evidence of the fact, without proof of the number or proportion or the votes cast In favour of .o.r against such resolution.
Before or on the declarallon of the result on voting on any resolution on a show of hands, a · poll may be ordered to be taken by the Chairman of lhe meeting of his own motion, and shall be ordered lo be taken by him on a demand made In that behalf by Bond Holders holding Elonds ieprasenting not less than 10% of the Nominal Value of the Bonds for the time being outstanding present In person or by proxy.
The demand of a poll may be withdrawn at anytime by the person or persons who made the demand.
A poll demanded on a question or adjournmenl shall be taken forthwith.
A poll demanded on any olher question (not being a quesllon relating lo the eleclion of a Chairman) shall be taken al such time not being later than forty-eight hours from the time when the de1T1and was made, as the Chairman may direct.
Al every such meeting each Bond Holder shall. on a show or hands, be entitled to one vote . only, but on a poll he shall be entitled to one vote in respect of every Bond or which he is a . holder In respect of which he is e.ntilled to vote.
Any Bond .Holder entitled to attend and vole at lhe meeting shall be entitled lo appoint another person (whether a Bond Holder or not) as his proxy to attend and vote Instead of himself.
41 l &Y
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. 21 In every notice calling the meeting there shall appear with reasonable prominence a statement that a Bond Holder entllled lo allend and vote Is entllled to appoint one or more proxies, to attend and vole Instead or himself, and that a proxy need not be a Bond Holder.
22 The instrument appointing a proxy and either the original power or attorney (if any) under which ll is signed or a notarially certified copy of such power of allorney shall be deposited at the registered office or the Company (wllh a copy to the Trustee) not less than forty·elghl hours-before-the-time lor-holding the- meetlng-oradjourned-rneetlng-at ·which the-person named ln the Instrument proposes to vote or In case or a poll, not less than twenly·fo~r hours before the time appolnled ror lhe taking or the poll and In defaull, the instrument of proxy shall not be treated as valid.
23 The Instrument appointing a proxy shall:
(a) be In writing; and
(b) be signed by the person appointing or his attorney duly authorised In writing, or If the appointer Is a body corporate, be under lls seal or be signed by an officer or en atlorney duly authorised by it.
24 The lns.trumenl appointing a proxy shall be in a form prescribed under the Act and shall not be questioned on the ground that it falls to comply with any special requirements specified
. for such. Instruments by the Articles.
25 Every Bond Holder entitled lo vote at a meeting of the Bond Holders of the Company on any .resolution lo be moved thereat shall be entitled during the period beginning twenty four hours before the time fixed for the commencement or the meeting and ending with the conclusion cf the meeting lo Inspect the proxies lodged, at any time during the business hours cf the Company, provided not less than three days' notice in writing of the Intention so le Inspect ts given to the Company .
. 26 A vole given In accordance with the terms of an instrument or proxy shall be valid . nolwlthstandlng the previous death or Insanity of the principal or the revocation or the proxy or OfllTe authority under which the proxy was executed or the transfer of the 6ond in respect of Which the proxy Is given provided that no Intimation in writing of such death, insanity; revocation or transfer has been received by Iha Company al its registered office before the commencement of the mealing or adjourned meeting at which the proxy Is used.
27 On a poll taken at any meeting a Bond Holder entitled to more than one vote need not use a_ll .his Votes or cast in the same way all the votes he uses.
28 When a poll Is to be taken, the Chairman of the meellng shall appoint two scrutinisers to ·scrutinise the vo.tes given on the poll and to report thereon lo him.
29 The Chairman shall have power, at any time before the result of the poll ls declared, to remove scrutinisers from office and to fill vacancies Jn the offlce of scrutinisers arising from such.removal-or from any· other cause.
30 or the two scrutinisers appointed under paragraph 29. one shall be a Bond Holder (not being . an officer or employee of the Company) present al the meeting unless there Is no such Bond Holder available and willing lo be appointed.
31 Subjectlo lha provisions of the Act, the Chairman oflhe meeting shall have power to regulate the manner In which a poll shall be taken.
32 I he resUlt of _the poll shall be deemed lo be the decision of lhe meeting on the resolution on Which .the poll was taken.
3.3 · In the case of joint Bond Holders. the vote of the first named Bond Holder who tenders a ·vote whether In person or by proxy shall be accepted lo the exclusion of the other join I holder or holders.
34 The Chairman of a meeting of the Bond Holders may, with the consent of the meeting, ________ cadjourn .. the .. same from lime to time and from place to place, but no business shall be
transacted al any adjourned meeting other than lhe business left unfinished at the meeting from which the adjournment look place. .,,ectl P,·
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35 In the. case or equality or votes, whether on a show or hands, or on a poll, the Chairman or the meeting at Which the show of hands takes place or al which the poll IS demanded, shall
.· be·entltled 10-a-second-or-casl'lng vare-1n-aadltlon-10-111e votirorvotes-10-w~lctrne may oe entitled to as ·a Bond Holder.
36 The demand of a poll shall not prevent the conllnuance or a meeting for the transaction of any business other than the quasllon on which a poll has been demanded.
37 The Chairman or any meeting shall be the sole Judge or the validity of every vote tendered at such meeting. The Chairman present at the taking or a poll shall be the sole judge or the validity ofeve;y vote tendered at such poll.
JB · A meeting of the Bond Holders shall have the following powers exercisable by a Unanimous Resolutlon:
(a) to amend or waive any or following terms of the Bonds and/or the Transaction Documents:
(I)
(Ii) .
(Ill)
·(Iv)
(v)
(vi)
(vii)
(viii)
the. applicable majority of Bond Holders required to vote on, or give Instructions to the Trustee on, any metier provided for under this Deed;
an extension to the dale or payment of any amount In respect of the Bonds :or under the Trans~ctlon Documents; ·
a reduction In the amount er any payment of principal, Interest, fees or . commission payable In respect cf the Bonds or under the Transaction Documents:
a change to any Obliger;
any provision which expressly requires the consent of all the Bond Holders;
the manner of sharing cf any proceeds or enforcement under Clause 13.3 (Power to apply Proceeds);
· lhe release of any ~ecurlty created pursuant to any TransBclion Document or of any Secured Assets (except as provided In any Transaction Document);
. the nature or scape of the Secured Assels except to the extent that It relates ta the sale or disposal cf a Secured Asset where that sale er disposal is expressly permitted under this Deed or any other Transaction Document; and
(b) .lo authorise the Trustee to concur In and execute any supplemental deed embodying any such modification by passing a Unanimous Resolullcn far this purpose.
39 With rasped lei removal of the Trustee and appointment of new Trustee, a resolution Cf the . BonciHolders at.a. meeting shall be by way of a Majority Resolution.
40 All ether .resclullons of the Bond Holders at a meeting shall be by way cf a Majority Resclutlcn.
41 A resQlutlcn, passed at a general meeting of Bond Holders duly convened and held In accordancewith this Deed, shall be binding upon all the Bond Holders whether present or not ~I such meeting and each of the Bond Holders shall be bound to give ettect thereto accordingly, and lhe passing of any such resolutions shall be conclusive evidence that the circumstances Justify the passing thereof, the Intentions being that II shall rest with the meeting to determine without appeal whether or not the circumstances justify the passing or such resolution.
42 Notwithstanding anything contained herein, II shall be competent fer the Bond Holders to exercise Iha rights, powers and authorities of the Bond Holders tn respect cf the Bonds by way .of wrllten Instructions from each Bond Holder to the Trustee instead of by voling and
.. ---·-P•Ssing.resclutlons at meetings provided lhal:
(a) .in respect of matters, which at a meeting would have require a Unanimous ·Resolution, the Trustee must be so lns~ucted In writing by Bond Holders holding 100% of the outstanding aggregate Nominal Value of the Bonds; and
(b) In respect of matters, which at a meeting would have required a Majority Resolution, the Trustee must be so Instructed In writing by Bond Holders holding at least 75% of the outstanding aggregate Nominal Value of the Bonds.
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In case a meeting of the Bond Holders Is held by way of a telephone conference call. any decision, consent or any other lns~uction from any Bond Holder to the Trustee shall be effective only upon being also communicated by way of written Instructions.
Fortli~·avoldanca of doubt, if any Obllgor or Its respective Affiliates ts the tegel or beneficial owrie(of.the Bonds It will have not have a right or entitlement to vote at a meeting of the Bond Holders.
44
G I I
SCHEDULE 3 REPRESENTATIONS AND WARRANTIES
1 STATUS
(a) Each Obllgor is a private limited company, duly incorporated under the provisions · or lhe Act and validly exlsling under the raws or India.
(b) Each Obllgor has the power, authority and all material permits, approvals, authorizations, licenses, registrations, and consents Including registrations, to own and operate Its assets and to carry on tts business in substantially the same manner as It Is currenlly conducted.
2 BINDING OBLIGATIONS
The obligations expressed to be assumed by each of lhe Obllgors under each or the Transaction Documents to which it Is a party, are legal, valid, binding and enforceable.
3 · . NON~CONFLICT WITH OTHER OBLIGATIONS
The: enlry into and performance of. by each of the Obligors, and the transactions contemplated by, the Transaction Documents to which It ls a party, do not and will not connict with:
(a) any Applicable Law;
· (b) · the M~morandum or Articles or the constitutional documents of the Obtlgors; or
· (c) any agreement or lnslrument binding upon the Company or any assets or the ·. ObUgors, Including any of the agreements entered Into with any or the creditors or · the Guarantor,
(d) . the proposed scheme of arrangement for the Merger Evant,
nor (except as provided In any Transaction Document) result In the existence or. or oblige It to creale, any Security over any or Its assels.
4 · POWER AND AUTHORITY
. The :Company (and each other Obliger) has the power and authority to enter Into, perform an.d dallvar, and has taken all necessary action to authorise Its entry Into, and Iha performance and delivery, of Iha Transaction Documents to which it is or will be .a party, and the·transactlons contemplated by those Transaclion Documents.
5. VALIDITY AND ADMISSIBILITY IN EVIDENCE
All.Aut.horisatlons required :
(a)
(b)
(c)
(d)
(e)
.to enable the Company (and each other Obliger) to lawfully enter Into, exercise Its · rights and comply with its obligations in the Transaction Documents to which It Is a
party;
to make the Transaction Documents to which the Company (or any other Obliger) Is ·a party admissible In evidence in proceedings before any court and/or lrlbunal" In India;
lo enable the Company (and each other Obligor) to create the Security expressed to be created by It pursuant to any Transaction Document and to ensure that such Security has the priority and ranking It Is expressed to have;
· for .the each or the Obllgors to carry on Its business; and
lo ensure the obllgallons of the Company (and each other Obliger) under the Transaction Documents lo which. they are party are legal, valid, binding and enforceable,
----tiave'oeeri obtained cir effected arid are in full force !liid ellec:t.
45
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6 NO FILING OR STAMP TAXES
Under law, other lhan lhe regislratlon of Iha Security Oocumanls with Iha jurlsdlclional Registrar of Companies If appllcabla, tha recording of lhe pledga of th• pursuant lo the Security Documents in the records of the Depository, the filing of the lnlormallon Memorandum with the BSE, the filing of the Information Memorandum {Including Form PAS· 4) with the Registrar of companies and the Securities and Exchange Board of India, filing of ttie creation onHe cHarges wltntlleCentrarReglstry ofSecurillsallon AsserRecarrslrucllon and Sacurlty Interest of India and Registrar of Companies, lhe notarlsatlon of the powers of attorney pursuant to tha Security Documenls and lhe paymant of slamp duty which has
. already been made, It Is nol necessary that any Transaollon Document be filed, recorded or enrolled wllh any court or other authority or that any stamp, raglstrallon, nolarlal or similar
· · taxes or fees be paid on or In relation to any Transacllon Documant or the transacllons contemplated thereunder.
7 DEDUCTION OF TAX
The Company Is not required to make a Tax Deducllon under Applicable Law In respect of Its paymenl obllgailons under the Bonds or lhe Transactions Documenls olher than: (I) a Tax Deduclion specified under paragraph (d) of Clause 10 (Payments) ol Schedule 1 {Terms and Conditions) on any aclual payment of monies that become payable in accordance with the
· Terms and Conditions or the Transaclion Documents: and (II) payments to !he Trustee in accordance wllh the Fee Leiter.
8 TAXES
Eacl)Qbllgor has paid all Taxes required to be paid by II within lhe time period allowed for . ·payment wllhout Incurring any penallies for non payment other than any Taxes being
co•tested by ll In good faith and· In accordance with lhe relevant procedures for which · adequate reserves are being maintained In accordance wllh GMP.
9 No DEFAULT
(a) No Default Is conllnulng or might reasonably be expecledto result from the entering into or performance by lhe Company of any Transacllon Document to which II ls a party.
{b) . No other event or circumstance Is outstanding which constitutes an event or defeull · under any other agreement or lnslrument which ls binding on the Company {and
each olher Obllgor) or to which the assets of the Company {and each olher Ob/Igor) are subject which might have a Material Adverse Effecl.
(c) Neither Ob/Igor, nor any of Its directors or officers (as may be applicable) is on lhe caution list of the Export Credit Guarantee Corporalion of India or defaulter list of the Reserve Bank of India or the wilful defauller llsl of lhe Credit Information Bureau· tlidla Limited or any other aulhorlly and no director Is disqualified under Section 164 of the Companies Act, 2013.
10 COMPLIANCE WITH APPLICABLE LAW
{a) Each Obliger is, end since its formalion hes been, In compliance with all laws, statutes, rules, regulatlons and orders binding on or applicable to It and.
(b) Each Obllgor Is In compliance with all, and has not breached any. Applicable Laws governing the Bonds and the Transacllon Documenls •
. {c) There Is no lnvestigaUon, disciplinary proceeding or Inquiry by, or order, decree,
(d)
decision or judgment of, any court or Governmental Authority outstanding or . anticipated against the Obllgors or any person for whose acts or defaulls it may be
vicariously liable which if adversely delermined could have a Material Adverse Effect.
46
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failure to comply with any Applicable Law or requiring II lo lake or omit any acllon _which If adversely determined could have a Ma[erlal_l\dver~e t;_ffect.
11 NO LIABILITIES
No Ob.llgor has any liabilities whalsoever (olher lhan llabllllies rellecled In Iha Original financial Slalemenls or incurred pursuanl lo lhe Transacllon Documenls).
12 NO MISLEADING INFORMATION
(a)
(b)
(c)
Any factual Information provided by or on behalf of Iha Company, any other Obliger In connection with the Issue of the Bonds was true, complete and accurate In all material respects as al 1he dale II was provided or as at the dete (If any) at which II Is stated.
Any financial projections provided by or on behalf of the Company, any other Obllgor In connection with the Issue of the Bonds were prepared on the basis of recent
:. hlst.orlcal Information and on the basis of reasonable assumptions.
·. Nothing has occurred or been omitted from the information so provided and no lnformallon has been given or wilhheld Iha! results in the Information provided by or on behalf of the Company, any other Obliger being untrue or misleading in any material respect.
13 FINAN.CIAL STATEMENTS
(a) The Original Financial Slalements of the Obllgors were prepared In accordance with • GAAP consislently applied.
(b) The Orlgtnal Financial Slalemenls of each or lhe Obligors give a true and fair view ·of Its financial condition and oparalions as al the end of and for the relevant Financial Year or Financial Quarter, as applicable.
(c) There has been no material change In lhe condition (financial or otherwise). assets, operations cir business or the Obligors since 31 March 2016.
(d) As at the dale of lhe most recent financial slalemenls, Iha, Obllgors do nol have any Indebtedness (whether arising under contract or olherwlse and regardless or
: whether or not contingent) which was not disclosed by those 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.
14 .PAR! PASSU RANKING
(a) Each Security Document creates (or, once enlered lnlo, Wiii creale) In favour of lhe ·Trustee for the benefit of lhe Bond Holders the Security which ii is expressed to
· . create with the ranking and prlorily ii is expressed to have .
. (b) Wllhout limltlng sub-paragraph (a) above, lhe payment obllgatlons of lhe Company under the Bonds and the Transaction Documents rank at least pari passu with the
· · claims of all their other unsecured and unsubordlnaled creditors, except ror obligatlons mandalorily preferred by law applying to companies generally.
15 LEGAL AND BENEFICIAL OWNERSHIP
The Company (or each other Obligor) Is the absolute legal and beneficial owner of all the assets over which It purports lo create Security pursuant to any Transaction Document, free From any Encumbrance (other than lhe Securily created pursuant lo such Transaction Document).
16 NO PROCEE.DINGS PENDING OR THREATENED
There are no lltlgatlon, arbitration, lnvesligatlve or adminlstralive proceedings of or before any court, arbilral body or agency (Including any Tax authorities) have been started or. lo the
. _ .... bes.tofJts knowledge, threatened againsUhe. Company (and each other Obliger), nor there are any circumstances likely to give rise to any such llllgalion, arbitration or administrative proceedings.
47
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17 NO IMMUNITY
Each Obliger and its assels are nol enlilled lo immunity from suit, execullon, attachment or other legal process In India. The entry Into or the Transaction Documents conslitutas, and lhe exercise or the Obligors' rights and pertormance or and compliance with the Obllgors' obligations under the Transaclion Documents will constitute, private and commercial acts done and performed for private and commercial purposes.
18 SOLVENCY
(a) The Company (and each other Obliger) Is able to, and has not admitted its Inability to, pay Its debts as they mature and has not suspended making peyment on any or its debts.
(b) The Company (or any olher Obllgor), by reason or actual or anticipated financial dlfficullles, has not commenced, and does not intend to commence, negotiations
. wllh one or more of its creditors with a view to rescheduling any al its Indebtedness.
(c) No moralorlum has been, or may, In the reasonably foreseeable lulure be, declared In. respect of any indebledness of the Company or any other Obliger.
(d) No Obllgor has taken any corporate action and no olher steps have been taken or legal proceadlngs have been started or received any notice for any legal
· . proceedings . against it for its winding-up, dissolution, administration or reorganis~Uon or fpr the appointment or a receiver, administration, adminlslrallve
, receiver, trustee or similar officer of it or of any or all of Its assets or revenues.
19 AUTHORISED SIGNATORIS:S
Each person specified as an authorised signatory of each Obllgor In any documents delivered to the Trustee pursuant to the Transaction Documents, Is subject to any notice to the contrary delivered to the Trustee, aulhorised to sign all documents and notices on behalf of such Obllgor.
20 MATERIAL ADVERSE EFFECT
N_o fact or.circumstance, condillon or occurrence exists that could reasonably be expected io result In a Material Adverse Effect.
21 RENTAL DOCUMENTS
(a) There are no restrictions Including by way of right of first offers, right of first refusals or any analogous reslrictlons under the Rental Documents which would restrict, in any way, the creation and ·enforcement of the Security (Including by way of sale, iransfer or assignment of the Project or Project Land In whole or In part) on terms
· and conditions other than those which are decided by the Trustee .
(b) The Security Provider Is in compliance with the material terms al the Renlal · .· Documents and the execulion, delivery and performance of the Transaction
· Documents is in compliance wilh the terms or the Rental Documents.
· 22. NON'BANKING FINANCE COMPANY
Neither the Company nor any other Obliger ts a cora Investment company or a non-banking financial company registered with the Reserve Bank or India and neither or them Is required to: be r~gi_stered as non-banking financial company or a core Investment company with the RBI.
23 INSURANCE
24
The Company and other relevanl Obligors have insured the Secured Assets (where i_nsur~~le In nature} and other assets with financially sound and reputable insurers against su_chrisks and In such amounts as are normally maintained by persons carrying on the same
. or-a Similar·class of business.
SECURITY CREATION
48
·! 2v
! i\;.
(a)
(b)
(c)
(d)
(e)
The Security Documents when executed, delivered and registered (if applicable) and when appropriate forms are filed as required under Applicable Law, shall create
. the:Security-lnterest·expressed to-1>e-·creatod-mereoy overrne assetsreferreij-lo therein and such assets are not subject lo any subsisting prior Security (other than the existing Security Interest subsisting in favour of the Stale Bank of India).
· The claims of. the Secured Parties In respect or the Security creeled under the Security Documents shall rank In the order of priority stipulated in !he Security ·ooouments .
. Each relevant Obliger is the sole legal and beneficial owner of and has good, clear _ and marketable !Ille to, and has all rights, title and Interests in the Secured Assets,
· : and,_ has not crealed any Security Interest on lha Secured Assets in favour of any person other than the Secured Party nor does it have any obligation to create any
:·-sec~rlly _Interest an such Secured Assets.
No- ·Authorisation, consent. waiver, approval or permission of any person or ' Governmental Authority Is required lo create or enforce lhe Security Interest · contemplated under the Security Documents other than consent or the Haryana
State Industrial Development Corporation.
. No consents, waivers, approvals, permissions and Authorisations from any
. Governmental Authority, lenders and other third parties Is required by the Company In connection with, or in relation to, (a) the execution and delivery al the Transacllon Documents, (b) creation and perfection of Security Interest pursuant lo the Security Documents, (c) the consummation of the lransacllons/obllgallons contemplated therein, (d) enforcement al the Security Interest created under the Security
: Documents, and (e) transfer the assets subject to lhe pledge to any person in accordance with the relevant Security Documents.
. .
2$" · STANDARD ASSET
· EachObllgor's account is classified as a 'standard asset' by its bankers in accordance with the guidelines issued by !he Reserve Bank of India in !his regard.
~· SANCTIONS
The Obtlgors and their Affiliates will not directly or Indirectly use the proceeds of the offering . o! the financing hereunder, or lend, conlribule or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity:
(a) : to 1.und or facilitate any activities of or business with any Individual or entity ("Person") that, at lt1e lime of such funding or facllltallon, Is (collecllvely, a "Sanctl on Target"):
I. the subjecl or the- largel of any Sanclions 1 or
11, owned 50% or more by or otherwise controlled by, or acting on behalf of one or more Persons referenced Jn clause (A)-above, or
111. located, organized or resident in a country or territory that is the subject or the large I of Sanctions (including but not limited to, Cuba, Iran, North Korea, Sudan, the Crimea region In Ukraine and Syria) (each. a "Sanctioned Country"), ·
(b) to fund or facilitate any activities of or business In any Senclioned Country, or
(c) In anyolher manner Iha! will resull in a viola lion by any Person (Including any Person participating In the transaction, whether as initial purchaser, advisor, Investor or
· ·otherwise) of Sanctions.
(d) None al the Obligors. an.d .their Affiilate, nor,' lo the best or !heir knowledge, any . o•arreclar, ·officer, employee, agent. ccinlrolled affiliate or other person acting on behalf .
.µ/ 49
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•
at the direction or ln the interest of the Company, or the Guarantor or any of their subsidiaries is a Person that is a Sanction Targel.
(e) None of the Obligors and their Afflllate has or Intends to have any business operations or other dealings:
(I) In any Sanctioned Country, including Iha Crimea region In Ukraine, Cuba, Iran, Sudan. North Korea and Syria,
(ii) with any Specially Designated National ("SON") on OFAC's SON list or with a Designated Person targeted by asset freeze sanctions Imposed by the UN, EU or HMT or any other applicable sanctions authority
(f) . The Obllgors and their Afflilate has/have Instituted and mslnteln(s) policies and procedures designed lo prevent sanctions violations (by such Company and Guarantor and their Subsidiaries and by parsons associated with such Company and Guarantor and their Subsidiaries).
(g) · • The Obllgors and their Affiliate nellher know nor have reason to believe that any of :them are or may become subjacl of sanclions-relaled investigations or juridical :proceedings.
27 · ANTl•MONEY.LAUNDERING AND ANTI-TERRORISM FINANCING
The operations of the Obligors and ll1elr Afflilata are and have been conducted at all limes in compliance with applicable financial record keeping an reporting requirements end Anti· Money, Laundering Laws and Anti-Terrorism Financing Laws, regulations, rules and guidelines In Its jurisdictions and in other Jurisdicllons In which such entities, as the case may be, conducts business (collectively, the Anti-Money Laundering and Anti-Terrorism Financing Laws) and no acllon, suit or proceeding by or before any court or governmental or regulatory agency, aulhorily or body or any arbitrator Involving the Obligors and its subsldlartas with respect to Money Laundering and Anti-Terrorism Financing Laws is pending and no such acllons, suits or proceedings or, to the knowledge of the Obllgors end their Affiliate, threatened or contemplated
28 · ANTITERRORISM
Neither tj,a Company, any other Obliger nor of their Afftliales, nor as far as the Company Is . (or ought to reasonably to be) aware, after due enquiry and diligence by the Company, any .amplqyaa or petson acting on behalf of the Company or its Affiliates, in connection wllh the Bonds:
·(I) is in violation or, or is the subject of any action, proceeding, lillgatlon, claim or lnvesUgalion concerning, any Sanctions;
(Ii) Is a Designated Person;
(iii) has received funds or other property from a Designated Person or conducted any activities or business dealings, directly or indirectly, with or for the banent of a Designated Person;
(Iv) has engaged or Is engaging, dlrcclly or indirectly, In any transaction or conduct that would reasonably be expected lo result in it or any of Its Affiliates becoming a DeSlgnated Person, or which evades or avoids,· or Is intended for the purpose of ~vading or avoiding, any. prohibitions or restriclions set forth In any sanctions; or
(v) hes dealt or engaged in, or deals or engages in, dlreclly or Indirectly, any transaction . or activities relating lo any property or interest In property blocked pursuant to any Sanctions.
29 ANTI-CORRUPTION LAWS
., , a. NellheLlhe Company, any other .Obliger nor any of Us Affiliates 1. nor as far as the . Company Is (or ought reasonably to be) aware, after due enquiry and diligence by the Company, any of their respective employees or parsons acting on behalf of a
~ 50
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Attillale, dlreclly or lndireclly, has made, offered lo make, promised to make or authorized the payn1enl or giving of, dlreclly or lndireclly, an "unlawful payment" or 'lmpropar·transfer or-value" willliinne meaning or.-aM lsnoflrfanyot~er way In vlolatlon of lhe FCPA, or any olher applicable anti-corruption laws. Neither the
. Company nor any of its Amliates, nor as far es the Company Is (or ought reasonably to be) aware, after due enquiry and diligence by the Company, any employee or parson associated wilh or acting on behalf or the Company or any other IAffillate or
- the Company has directly or indireclly 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 or Improper transfer of value to any public official or any employee from corporate funds; violaled or ls. In violation of any provlsl_on or lhe FCPA or any olher applicable anti-corruption laws; or made or
· recelv_ed directly or indireclly any bribe, rebale, payott, influence paymenl, kickback • or other unlawful payment prohibited under any Applicable Law or regulation ·equivalent to the FCPA or any other applicable anll-corruptlon laws. Neither the Company nor any of its Affiliates, nor as far as the Company Is (or ought reasonably
: .lo •be) aware, afler due enquiry and diligence by the Company, any or their ·respS.ctive employees or persons acting on behalf or an Affillate Is or has been (as
: far_ a_s the Company Is aware) subject to any action, proceeding, litlgalion, claim or Investigation with regard to any actual or alleged unlawful payment or violation of the_FCPA or any applicable anli·corruption laws.
!>,___ To 1he best knowledge and belief or the Company, afler reasonable enquiry and dHlgence, It and all ils Subsidiaries have conducted and are conducting their busln.esses In compliance with the or Anll-Brlbery and Corruption Laws.
;,._. To. the best knowledge and belief or the Company, afler reasonable enquiry and · -· diligence, it and all its Subsidiaries and the Obllgors have Instituted and maintain
systems, controls, policies and procedures designed to:
I. detect incidences of bribery and corrupUon; and
II. promole and achieve compliance with the An11·Brlbery and Corruplion Laws.
ii• Neither the Company, the Obligors nor any of Its Subsidiaries, nor as lar as the · Company, the Obligors nor any of ils Subsidiaries Is (or oughl reasonably to be)
·a\'ia;re, after reasonable enquiry and dillgence by the CQmpany, any of their . ; resp'ectlve directors, officers, employees, agents, representatives or any other
• persons acting for or on behalf of the Company, the Obllgors nor any of lls >Subsidiaries has:
I. directly or Indirectly, made, offered to make, promised to make or eulhorlzed !he payment or giving or, anything or value to any person, while knowing that all or a portion of such money or lhing of value will be offered, given or promised, directly or Indirectly, to a person to Influence that parson In his or her. official capacity, induce that person to do or omit an act in violallon of his or her lawful duty, or to secure any Improper advantage in
·order to assist lr:i obtaining or retaining business for or with, or directing business lo, any person thal may or may not constitute an "unlawful payment" or "Improper transfer of value" within the meaning of, and Is not In any other way In violation or the Anti-Bribery and Corrupllon Laws;
II. ·directly or indirectly used any corporate funds for any unlawful contribution, gift, enlertainment or other unlawful expense relating to political office or activi1y;
ill. made any direct or lndlrecl unlawful payment or Improper transfer or value _ _to any public.official or any company employee from corporate funds;
51
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Iv. - received directly or indirectly any bribe. rebale, payoff, influence paymenl, kickback or other unlawful paymenl or Improper lransfer of value prohibiled under any Anli-Bribery and Corruption Laws; or
v, been (as far as lhe Obllgors' are aware) or Is subjecl to any llllgallon, arbitraUon or administralive, regulatory or criminal proceedings or invesllgation with regard to any aclual or alleged unlawful payment, improper -1ransfer or- value or olher· violallon-of ·any--Anll'Brlbery -and Corrupllon Laws.
3Q DISQUALIFICATION
No Person who ts a director/ officer of Iha Company has, at any lime, been subjecl to any ciisquallficallon under lhe Act or under any other legislation relallng to the dlsquallflcatlon of _directors/:officers, or was the subject of any invesligalion or proceedings capable of leading to a disquallncation order being made. -
3_1 _ EMPLOYEES
Th~ C:ompany fully complies with all the applicable labour laws, and has made all statutory contrtbu_tions and no sum is due and outslanding towards lhe same. Further, the Company has compile~ wilh all applicable collective agreements, orders, awards, codes or conducl and.praclic~ relevant to conditions of service and to lhe relations between II and Its 'employees: The Company Is currenlly nol involved in and !here are no present clrcumstance_s_ to its knowledge which are likely to give rise to any labour, industrial or trade dispute or any dispute or negotiation regarding a claim of material importance wllh any lrade ·u.rilon-of_Bss_o~latlon of trade unions or organisation Or body of employees.
32 FULL OISC~QauRE
Alliriformation (as supplemented from time to time) lhat has been or will hereafter be made a_vailable lo_theTrustee by the Company or any of its representatives In connection with the tr<ansectlons contemplated hereby is and will al all times be comple'e and correct to the bast .oflhe C:ompany's knowledge and belief In all male rial respects and does not and will not (as
- the ¢as~ may be) contain any unlrue statement of a material fact or omit to slate a material fact necessary In order to 111al1e the slataments contained therein not misleading.
52
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SCHEDULE 4 COVENANTS AND UNDERTAKINGS
1 .INFORMATION UNDEFlTAl(INGS
1.1 Financial Statements
The Company shall supply 10 lhe Trustee, in respect or each Obligor:
(I) as soon they become available, but In any event wilhln 60 days after the end or each Financial Year, lho audited financial slalemenls of the relevant Obliger (non·
· cons.olidated and, if required to be produced by Applicable Law, consolidated in which event lhe same will be produced within 120 days after the end of each f'lniillclal Year) for that Financial Year: and
. . ... (II) ·as.soon they become available, but In any event within 60 days after the end or each
Half Yearty Financial Period, the financial slalements of the relevant Obliger •(certlnad by a diroclor of the relevanl Obliger) for that Half Yearly Financial Period.
M! •Requirements as to financial statements
(a) Each set or financial statements delivered pursuant lo paragraph 1.1 (Financial St.atements) above shall be certified by a director of the relevant Obliger as giving a ·true and fair view of Its financial condition and operations as at the end or and for the _peri~d In relalion lo which those nnancial statements were drawn up.
(b) . The Obllgors shall procure that each sel of financial statemenls delivered pursuant .. · to paragraph 1.1 (Financial Slatemonts) of this Schedule 4 (Covenants and
· Underlaklngs) Is prepared using GAAP.
1,J Requiremarits regarding Bonds
{a) · The Company shall submit a quarterly report, certified by a director or, if required by , Applicable Law, ils statutory auditors, to the Trustee containing the following
particulars:
(I) . updated list of names and addresses of all Bond Holders;
(Ii) details (If any) of any amount due but unpaid In respect or any 9ond and reasons for the same;
·(Ill) the number and nature of grievances received from lhe Band Holders along with details of grievances: and (A) resolved by the Company and (B) unresolved by the Company and reasons for the same;
(Iv). a confirn1ation lhat the assets of the Company are sufficient to discharge the claims of lhe Bond Holders as and when the same become due;
(b) ·The Company shall submit a certificate signed by a director to lhe Trustee:
(I) within 5 Business Days of September 30 of each calendar year until the Final Settlement Date, cerlifylng that lhe Company (and the relevant Obllgor) is in compliance wilh the Required Debt to Security Ratio and the Required Debt Service Coverage Ratio; and
(II) within 5 Business Days of September 30 of each calendar year until the Final S.etllomenl Dale, certllylrig that the Company (and the relevant Obllgor) is in compliance with the Required Net Debt lo Net Operating 1i1came Ralio.
1 .• 4 lnfonnatlon: mlscellaneous
(a) · The Company shall supply lo lhe Trustee:
(I) all documents dispatched by II to its shareholders (or any class of them) or · · ·---------- ----·-1ts-·creditors -generally atlhe sarne·Ume as lhey·are dlspalched;
- ___ .,__ ________ _
i •
I '
. ~ml-iM1™1~2.
. (Ii)
(ill)
(iv)
(v)
(vi)
(vii)
(viii)
(Ix)
(X)
(XI)
·.(xii)
(xiii)
(xiv)
(xv)
promplly, If ii has notice of any application for winding up having been made ·or any slatutory notice of winding up has been given to lt or any other Obllgor under lhe Act or ii a receiver Is appointed, all In respect or any of Its or any other Obliger's properlies or business or undertaking, Information In respect thereof;
promplly, Information regarding any downgrade In the existing credit rating given lo the Bonds;
promptly, Intimation if ii fails lo list the Bonds on the Wholesale Debi Market segment or the BSE in accordance with this Deed and reasons for such failure:
promptly, upon lls occurrence, inrormation of any event on which the Bonds have ceased or will cease to be listed, traded or quoted on lhe Wholesale Debi Segment of lhe BSE or if trading in lhe Bonds has been suspended . for any reason for a period of at leasl 5 consecutive SSE Exchange Days or for a lolal of al least 15 trading days on the BSE in any 365 day period;
prompUy inforn1atlon, in case of any mat8rial act of fraud, embezzlement, .misstatemenl, misapproprialion or siphoning off of the Obllgors' funds or raven11es or any olher acl having a Similar effect being committed by the managernentor an officer or director of any or the Obliger.
promptly upon becoming aware of them, the details of any liligalion, arbitration, Investigative or admlnislrallve proceedings which are current, threatened or pending against any Obligor, and which might, If adversely determined, l1ave a Material Adverse. Effect;
· promptly, such further lnfonnallon regarding Iha financial condition, business and operations or any Obliger as lhe Trustee or a Bond Holder (through the Trustee) may rcnsonably request;
promptly, lnforrnallon regarding the happening of any labour strikes. lockouts, shul-downs, fires or any avenl likely to have a substantial effect .on Iha Company's profits or business and of any material changes In the rate or production or sales of the Company with an explanation or the reasons therefor.
prqmplly, information regarding any substantial loss or damage which the Company may suffer due lo any force ma Jaure Circumstances or act of God, such as eartl1quake, flood, tempest or typhoon, etc., against which the ·company may nol l1ave insured Its properties;
promptly, upon its occurrence, the invocalion.or any guarantee created by the Guarantor, In respecl of any Financial Indebtedness
promptly, Information regarding any change in the composition of the board of directors of the Campany;
promptly, information regarding any change in the nature and conduct or its business;
promptly, notice or any change- in Its authorised signatories, signed by one of lls directors or·its con1pany secretary, whose specimen signature has previously been provided to !he Trustee, accompanied (where relevant) by a specimen signalure ot each new signatory:
lnformalion within a period of 7 (seven) days of any nationalisation or any proposal by any Governmental Authority to effect any nationalisation or any action which results in or could reasonably be expected to have a Material Adverse Effect;
- --·------ -- (xvi) all documents filed by it or any other Obliger with any Governmental Aulhorlty In connection witl1 lhis Deed or any other Transaction Documents.
54
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(xvii) Certificate Issued by an aul11orised signalory of the Co111pany and a charlered accountant setting out the value of the receivables fron1 the Project at the-end-ofevery-Fli-1ancial Quarter ~fFfd-FrnariCiarvear.
(b) The Obligors shall supply to the Trustee the following in an electronic forrr1 al the lime of allo1menl of lhe Bonds:
(i) its Memorandum and Arlicles and all necessary resolulion(s) for the allotment of the Bonds;
(ii) a copy of the annual reports for the previous three years; and
(Iii) statements containing particulars of, dates of, and parties lo all material contracts and agreements.
1,5 Notification of default
(a) The Obllgors shall notify the Trustee of any Defaull (and the steps, if any, being taken to remedy It) Including any breach of the representations and warranties, pronlptly upon becoming aware of its occurrence.
(b) Promptly on each Quarter End Date, and otherwise upon a request by lhe Truslee, the Company shall supply to the Trustee a certlHcate signed by two of its directors or senior officers on lls behalf certifying that no Default Is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
1.6 Books and records
(a) The Obligors shall keep proper books of account as required by the Act and maintain proper accounting, management Information and control systems In accordance with GMP and therein make true and proper entries of all dealings and transactions in relation to the Secured Assets and the business of the Obligors, and keep the said books of account and all other books, registers and other documents relating to the affairs of the Obllgors at their respective registered office.
Upon the request of the Trustee, the Obllgors shall (and shall ensure that each Obllgor shall) provide the Trustee and any of its representatives, professional advisers and contractors with access to and permit them to, at the cost of the Bond Holders to visit and carry out Inspections of the Secured Assets during normal business hours;
.2 GENERAL UNDERTAKINGS
2.1 Authorisations
The Obllgors shall promptly:
(1) obtain, comply with and do all that Is necessary to maintain In full force and effect; and
(II) supply certified copies to the Trustee of,
any Authorisation required under any law or regulation to enable It to perform Its obligations under any Transaction Documents (Including, without llmltatlon, In connection with any payment to be made thereunder), to ensure the legality, validity, enforceability or admissibility In evidence In Its jurisdiction of Incorporation of any Transaction Document or for a purpose specified In Paragraph 5 (Valldlfy and admissibility In evidence) of Schedule 3 (Representations and Warranties), and to enable It to carry on its business a,~ It Is bang conducted from tlme to time.
2.2 Compliance with laws
(a) Each Obllgor, each of Its directors, officer and employees shall comply In all respects with Applicable Law to which It may be subject Including the Act (Including without llmltation Section 205C of the Companies Act, 1956 relating to transfer of unclaimed/unpaid amounts of lnlerest on Bonds and redemption of Bonds to Investor Education and Protection Fund (IEPF), If applicable to It), the SEBI
55
(Trustee) Regulations, 1993, the SEBI (Issue and Listing or Debt Securities) Regulatlons, 2008 as amended from lime lo Orne, the Companies (Share Capital and Bonds) Rules. 2014, the Companies (Prospectus and Allotment of Securilies) Rules, 2014, the sl1nplified listing agreement issued in terms of notification bearing number SEBl/IMDIBOND/1/2009/11/05 dated 11 May 2009 issued by SEBI, as amended fron1 time to time and Anti-Money Laundering and Anli-Terrorism F_inanci~g L~y.is.
(b) Without prejudice to the generality of sub-paragraph (a) above, the Company shall (and shall ensure that each of its directors, officer and employees shall) comply in all respects with any circular, guideline, direction, notification or rule issued by any Governmental Authority with respect to the Issue.
2.3 Negative pledge
(a) No Obligor shall create or permit to subsist any Encumbrance over the Secured Assets other than the security to be created in favour of the Trustee for the benefit of the Secured Parties under the Security Documents.
(b} The Sponsors shall, directly and/or through their Immediate relatives, at all times be in direct or Indirect Control of each of the Obllgors. The Company shall not be entitled to transfer, dispose off or encumber in any manner its shareholding in the Security Provider, without the prior written consent of the Trustee. Millennia Realtors Private Limited shall not transfer Its shares In the Guarantor without the prior wrilten consent of Trustee. The Guarantor shall not be entitled lo transfer, dispose off or encumber In any manner Its shareholding In the Company, without the prior written consent of the Trustee.
2.4 Mergers Acquisitions and Investments
Other than the merger of the Company and the Security Provider with the Guarantor, the Obllgors shall not without the prior consent of the Trustee enter into any amalgamation, demerger, merger or corporate reconstruction without the prior written consent of the Trustee except for any change as a result of any" solvent Intra-group restructuring, merger, amalgamation or change In holding within the Affiliates which does not have an adverse effect on the Secured Assets or the Bonds;
2.5 Constllutional Documents
(a} No Obligor shall make any amendment to Its constitutional documents which may have any adverse effecl on the rights of the Secured Parties under the Transaction Documents or the Bonds.
(b} Each Obllgor shall within 2 Business Days after any amendment Is made Jo any constitutional document of any Obligor, notify the Trustee of such amendment.
2.6 Further Assurances
(a) Each Obligor shall ensure that the Security granted to the Trustee pursuant to the Transaction Documents:
(b}
(I) constitutes and will constitute the Security expressed to be conferred pursuant to the relevant. Transaction Documents: and
(II) has and shall continue to have the ranking It Is expressed to have under the Transaction Documents ..
Each Obllgo'r shall do all acts, deeds and things, make all flllngs and registrations and take any action as may be necessary or desirable to:
(I) establish and perfect the rights of the Trustee In and to the Secured Assets and give effect to the Security, Including any recording, filing, registration, giving of notice or other similar action; and
(II) create, perfect, protect and malnteln the Security and the prlolity of the Security In full force and effect.
56
{c) Each Obligor shall execute any lransfer, conveyance, charge, assign111en1 or assurance of the Secured Assets (whether to thP. Trustee or its nominee8 or olherwise),-make-any-registralion and give any notice, order or-direction to facilltale the realisation of the Secured Assets or !he exercise of any rights vested in the Trustee or their nominees.
2.7 Rental Documents
(a) The Company shall procure that the Security Provider shall, in respect of any binding agreement or deed, including any Lease Deed or leave and license agreement, relating to and/or concerned with the lease, licence, common area n1aintenance charges, or rent of any units, shops, commerclal premises or any struclure whatsoever in !he Project on and after the date of this Deed (each a "Rental Document") comply with provisions of Clause 2.7(c) of this Schedule IV to this Trust Deed:
(b} for existing Rental Documents executed prior to the date of this Deed, Issue a letter in the form attached herewith as Annexure 1 } stating that all payments to be made by any person in relation to the Rental Document other than ulllltles payable by the occupiers of units in the Project shall be made In accordance with the payment instructions (the "Payment Instruction") set out In such letter on account of the financing and mortgage agreements entered Into with the Bond Holders. All Payment Instructions shall be in accordance with Clause 13 A of this Deed and the Escrow Agreement; and
(c) for Rental Documents executed on or after the date of this Deed, Include the Payment Instruction In the Rental Document.
(d) The Payment Instructions shall uncondltlonally specify that all the receivables in relation to the Project (other than charges for ulllltles) are deposited only In the Company Escrow Account.
('3) The Company shall not, and shall ensure that Security Provider shall not, do or permit to be done any act (Including, without limitation, giving any instructions to any person} that Is or would be contrary to such Payment Instruction (Including the manner and method of payment as set out In such Payment Instruction), without the prior written consent of the Trustee.
(f} The Company shall, till the Final Settlement Date, notify the Trustee of any Intimation received from a lessee or unit holder of their Intention to terminate any of their Rental Documents or part thereof, within a period of 3 days from receipt of such Intimation.
(g} The Company shall provide a copy, along with necessary rental, term, escalations, area and other details, of any new letter of Intent or lease agreements executed In respect of the Project, promptly upon such execution.
(h} The Company shall, tlll the Fina! Settlement Dale,
(i} submit, as soon as the same Is available, and In any event not later than 45 days from the end of each Financial Quarter or such other period as may be agreed by the Tru.stee with the Company a certificate signed by a Director of the Security Provider; and ·
(II) procure that, an Independent practicing chartered accountant submits, as soon as the same Is available, and In any event not later than 60 days from the en~ of each Financial Year or such olher period as may be agreej by Trustee with the Company, a certificate.
In each case (A) setting out the consolidated lease or licence of units constructed and/or erected, If applicable, on the Project; (B) fisting the units which have been leased or licensed (C) setting out any rent, licence fee, security deposits, maintenance amounts and the utilities amounts received under the Rental Documents In respect of such units; (D). gross and net (of TDS) lease rentals,
57
common area mainlenance charges, olher incon1es and fees collected fron1 lhe unil holders, lenants, amounts expended on asset 1nanagemenl and other charges.
2.8 Credit Rating
(a) The Con1pany shall appoint a Raling Agency for the purpose of rating of the Bond::; and renewal of the rating for the Bonds and the Company shall con1ply wilh all the -terms- and-aondilions of lhe-Gredit- rating-lel (er-issued-by-such Rating-Agency.
(b) The Company shall ensura that the Bonds are rated by a Rating Agency on an annual basis or such other period as may be required by the Trustee. The credit rating awarded by the relevant Rating Agency shall be forthwith communicated lo the Trustee by the Company and/or by the Rating Agency.
2.9 Leasing
The Company shall ensure that, at all times, at least 90% (Ninety percent) of the leasable space Is leased out lo Its tenants at a minimum rate of INR 85 (Rupees Eighty Five) per square feet per month. In the event at any time Iha threshold leased/licensed area falls below the aforesaid 90% of the leasable space of lhe Project, the Company shall remedy lhe same within a period of six months from lhe date of Issue of notice by the Trustee.
2.10 Insurance
(a) Security Provider shall and the Company shall ensure that the Security Provider shall, obtain and maintain each Insurance Policies in relation to the Project with reputable underwriters or Insurance companies, acceptable to and to the satisfaction of the Trustee, against those risks, and to the extent, usually insured against by prudent companies located in the same or a similar location and carrying on a similar business or operating similar projects.
(b) The Security Provider shall and the Company shall ensure that the Trustee is designated as the first loss payee In relation to the Insurance Policies obtained or to be obtained by the Security Provider In relation to the Project.
(c) The Company shall not, and shall pro9ure that no Obllgor shall, do anything or permit anything to be done or not done which could adversely affect the Insurance cover provided by the Insurance Policies obtained or to be obtained by the Security Provider In respect of the Project.
(d) The Security Provider shall and the Company shall ensure that the Security Provider shall promptly pay premiums and do all things necessary (including without limitation renewing the Insurance Policies obtained or to be obtained by It from time to time) to maintain the Insurance Policies obtained or to be obtained by It In respect of the Project until the Final Settlement Date.
(e) The Company shall, and shall procure that the Security Provider shall, submit the Insurance Policies obtained or to be obtained by It with the Trustee In accordance with the terms of this Deed and other Transaction Documents.
(f) The Security Provider shall and the Company shall ensure that the Security Provider shall promptly renew each Insurance Polley obtained or to be obtained by It In respect of the Project before such Insurance Polley lapses and shall comply with the terms and conditions thereof. The Company shall, and shall procure that the Security Provider shall, submit the renewal of each Insurance Policy obtained or to be obtained by It with the Trustee with 10 (ten) Business Days of the date thereof.
(g) The Company shall not, and shall procure that each Obllgor shall not, adversely amend any Insurance Policy obtained or to be obtained· by It without the prior written consent of the Trustee.
(h) If the Company or any Obligor does not pay the premium of the Insurance Policies pertaining to the Project In accordance with the terms thereof, the Trustee shall have the right, but not the obligation to the pay the premiums of !!le Insurance Policies
58
and the Company shall be under an obligation to imn1edialely rein1burse lhe Trustee in this regard.
2.11 Accounting Pollcles and Financial year
No Obliger alter its accounting policies or Its Financial Year so that such Financial Year ends on any date other than on 31 March of each year, unless the Financial Year is changed by the laws of India In which event the Financial Year shall be as per Applicable Law.
2.12 Arm's length deallngs
No Obllgor shalt enter into any arrangement, agreement or commitment (including any derivative transaction) with any person or pay any fees, commissions or other sums on any accounl whatsoever to any persons other than:
(I) In the ordinary course of business, al arm's length and on normal commercial terms: or
(Ii) as required or permitted by the Transaction Documents.
2.13 Restricted payments
No Obllgor shall without Iha prior approval of the Trustee
(i) pay, repay or prepay any principal, Interest or other amount on or In respect of, or redeem, purchase or decrease any Financial Indebtedness owed actually or contlngenlly, to any shareholder of the Company and/or the Security Provider or their respective Affiliates (as may be applicable);
(ii) declare, pay or make any dividend or other payment or distribution of any kind on or In respect of any class of Its shares; or
~Ii) reduce, return, purchase, repay, cancel or redeem any of its share capital.
(iv) all of the Indebtedness provided lo the Company, the Security Provider or any of the Obllgors by any Obllgor or their respective Affiliates, Including under the InterCompany Loan Agreement dated April 7, 2017 between the Company and the Security Provider.
Provided however, that the restrictions set out In such clauses (I) to (Iv) alone shall not apply: (I) (a) when there Is no occurrence of an Event of Default, and (b) the Required DSRA Amount and other stipulated reserves are being maintained by the Obllgors; or (II) for using the proceeds pursuant to Clause 6.2(c) of this Deed.
2.14 Taxes
(a) Each _Obllgor shall pay and discharge all Taxes, rates, rents and governmental charges upon such Obllgor and Its respective assets before penallles become attached thereto and shall establish adequate reserves for the payment of any Taxes, rates, rents and governmental charges becoming due unless such Taxes, rates, rent and governmental charges are being contested In good faith by
. appropriate proceedings.
(b) Each Obliger shall make all ftllngs required under Applicable Law and regulations (including, without llmltalion. the obligations to Ille regular tax returns with any Governmental AuthoritYl·
2.15 Redressal of grievances
The Company shall promptly and expedltlo4sly, attend to and redress grievances, If any, of the Bond Holders. Further, the Company shall comply wllh directions that may be given by the Trustee In this regard.
2.16 Listing
59
(a) The Company shall cause lhe Bonds issued lo be listed on the Wholesale Debi Markel seginent of the BSE within 15 BSE Exchange Days after the Deemed Date of Allotment and shall at all \i111es mainlain such listing of the Bonds on the Wholesale Debl Marl<et Seg1nenl of the BSE in accordance with the len11s of !he Lisling Agreement, as amended from time to time.
(b) The Company shall ensure that no de If sling or suspension or !he Bonds is caused oy-the acli6ns-6YCWfiiSSiOrlS"Of ~Hl'j 0151igor.
2.17 Information Memorandum
The Company shall comply with all lhe provisions of the Information Memorandum.
2.18 Money laundering
Each Obllgor shall (and shall ensure that any of !heir respecllve directors, officers, brokers or other agents acllng or benefiting in any capacity In connection with the Bonds, and any of their respective parents, subsidiaries, or Affiliates will) at all limes comply with all respects of all applicable anti-money laundering, anti-corruption and similar laws and regulations In the jurisdictions In which it conducts ils business.
2.19 Limitation on use of funds
The Company shall ensure that the proceeds of the Bonds are not directly or Indirectly lent, contributed or otherwise made available to any Person (whether or not related to the Company) for the purpose of financing the acllvltles of any Person or for the benefit of any country at the relevant lime subject to any US sanctions administered by OFAC.
2.20 Antl·terrorlsm and US regulation
(a) No Obligor shall, dlreclly or indirectly, engage in any transaction that violates any of the applicable prohibitions set forth In any Sanctions Laws and Regulations.
(b) No Obllgor shall, directly or Indirectly, use all or any part of Iha proceeds of.any Bonds, or lend, make payments, contribute or otherwise make available all or part of such proceeds (or permit or authorize any of the foregoing activities) to any subsidiary, joint venture partner or other person, to fund any activities or business with any Designated Person that could result in a violation of Sanctions Laws and Regulations by any of the Obllgor.
(c) None of the funds or assets of the Obllgors that are used to repay the Bonds and pay all amounts under the Transaction Documents shall constitute property of, or shall be beneficially owned directly or Indirectly by, any Designated Person and no Designated Person shall have any direct or Indirect Interest in the Company that would constitute a violation of any Sanctions Laws and Regulations.
(d) No Obllgor shall fund all or part of any payment under this Deed or any other Transaction Document out of proceeds derived from transactions that violate the prohibitions set forth In any Sanctions Laws and Regulations.
(e) The Obllgors shall not whether by act or omission, become subject to regulation under any Anti Corruption Laws.
(f) No Obllgor, nor any of their Subsidiaries or joint ventures, nor any of their respective directors, officers or employees nor, to the knowledge of the Obllgors, any persons acting on any of their behalf: has received notice of or Is aware of any claim, action, suit, proceeding or Investigation against It with respect to Sanctions by any Sanctions Authority. •
(g) None of the Obllgors or their Affiliates or any of their director or officer, Is currently subject to any US sanctions administered by OFAC or pursuant to the U.S. Iran Sanctions Act of 1996 ("ISA') and the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 ('CISADA"), or any equivalent sanctlpns or measures Imposed by the United Nations Security Council, the European Union or Sanctions Authority, and none of the Obligors or their Affiliates will directly or Indirectly use the proceeds of the financing, or lend, contribute or otherwise make
~ ~0ch Privil
/ "E).. "' .s (.. "' 3 ~ urgaon ;= cl 0.
60
* 3D
available such proceeds lo any subsidiary, jolnl venture partner or other person or entily, for the purpose of financing lhe activities of any person currenlly subject lo any lc!S sanctions administered by Ol'AC-or pursuant to ISAana CISADA or-afiy equivalent sanctions or measures imposed by the Unlled Nations, the European Union y , that could result in a violation of Sanctions by any of the Obllgors or their Affiliates.
(h) The operations of each member of the Obligors or their Affiliates have been conducted at all times In all material respects In compliance with all Anti-Money Laundering and Anti-Terrorism Financing Laws and no action, suit or proceeding by or befOre any court or governmental agency, authorily or body or any arbitrator Involving the Obllgors or their Affiliates with respect to any Anti-Money Laundering and Anti-Terrorism Financing Laws Is pending and, to the best of the Obllgors' knowledge, no such actions, suits or proceedings are threatened or contemplated.
2.21 Financial Covenants
(a) The Company shall ensure that until the Final Settlement Date:
(i) Debt to Security Ratio shall not exceed the Required Debt to Security Ratio;
(II) Debt Service Coverage Ratio shall not be less than Required Debt Service Coverage Ratio; and
(iii) Net Debt to Net Operating Income Ratio shall not exceed Required Net Debt to Net Operating Income Ratio.
(b) For the purposes of the this paragraph 2.21,
I. Debt Service Coverage Ratio means shall mean the ratio of (a): (b), where:
(a)= Gross Rentals and Net Common Area Maintenance Margin for the last 4 Fiscal Quarters which amount is to be applied after TDS; and
(b) = debt amortization Including interest expanses and guarantee fees, principal repayments I payments and all other amounts payable by the Company In
relation to Its Financial Indebtedness pertaining to the loans availed on the security of the Project (Including to the Bond Holders and the existing lenders) in the last two (2) Fiscal Quarters;
ti. Net Debt to Net Operating Income Ratio means the ratio of (a): (b), where
(a) = Net Debt; and
(b) =Gross Rental and Net Common Area Maintenance Margin
Ill. Required Debt to Security Ratio means
a. · 0.66 as on September 30, 2017;
b. 0.64 as on September 30, 2018;
c. 0.62 as on September 30, 2019;
d. and 0.60 as on the Final Settlement Date.
Iv. Required Debt Service Coverage Ratio means 1.20: and
v. Required Net Debt to Net Operating Income Ratio means 6.75 or lower, to be tested as at the Deemed Date of Allotment and thereafter on September 30 of each calendar year.
vi. Net Debt, prior to the Merger Date, means the Debt and any other Financial Indebtedness of the Company. Whereas, N.et Debt post the Merger Date, means the Debt and any other Financial Indebtedness pertaining to the loans availed on the security of the Project less the cash available and pertaining to the Project (Including amounts available In the Company Escrow Account and Company DSRAAccount, all in relation to the Project).
61
J; I
vii. Gross Rental and Net Common Area Mainlenance Margin shall mean lhe gross rentals received from the Projecl and the nel monies received from !he Co1nmon Area Maintenance Charges net or all expenses.
(c) (c) The Company shall ensure until \he Final Selllemenl Dale Iha\ amounts lying lo \he credit of the Company DSRA Account is at least equal lo the Required DSRA Amount at the applicable time. "Required DSRA Amount" means, the amount al Interest-payable-in-relation to-3 lnleresl Periods-built over ;;rperiod-or-6"monlhs.
(d) The covenants set out in Clause 2.21(a) shall be calculated by the Company on September 30 of every calender year as per the audited financial statements of the applicable period and shall deliver statement setting out the computation of each of the covenants In Clause 2.21(a) (certified by the auditor) on or before October 31 of each calendar year.
(e) The Company shall not be entitled to Incur any further Financial Indebtedness and the Obllgors shall not be entitled to raise any further Financial lndebtendess against the Security provided to the Bonds under this Deed.
(f) In case of any shortfall in the Required Debt to Security Cover Ratio ("Shortfall Amount") the Guarantor and the Sponsor shall provide additional equity equivalent to the Shortfall Amount, In a manner satisfactory to the Bond Holders, within 30 days from such ratio being deficient to ensure that the Required Debt to Security Cover Ratio Is maintained, In accordance with the terms of this Deed.
(g) The Company shall secure financing of such amounts as are sufficient to repay the Debt on the Final Redemption Date on or before the expiry of 30 calendar months from the Deemed Date of Allotment.
2.22 Escrow Accounts and Loan Agreement Related Covenants
(a) The Obligors agree and shall ensure that until the Final Settlement Date:
I. all Incomes and all moneys which are receivables arising from or In connection with the Project, Including but not limited to all lease rentals, or leave and license fees, other than Common Area Maintenance Charges and reimbursement of utilities shall be deposited into the Security Provider Escrow Account prior to the Merger Date and Into the Company Escrow Account on and after the Merger Dale.
II. all amounts paid by the Security Provider to the Company pursuant to the Loan Agreement shall be deposited Into the Company Escrow Account;
Iii. no withdrawals from the Company Escrow Account or the Company DSRA Account shall be permitted unless such withdrawal (I) Is tor payment towards the Debt to the Bond Holders In accordance with the Escrow Agreement; or (II) Is specifically permitted under the Escrow Agreement or (11) Is with the prior consent of the Trustee; and
Iv. no withdrawals from the Security Provider Escrow Account shall be permitted unless such withdrawal (i) Is for payment under the Loan Agreement to the Company In accordance with the Escrow Agreement; or (ii) Is specifically permitted under the Escrow Agreement or (II) Is with the prior consent of the Trustee.
(b) The net Interest (for each Interest Period) payable (net of any taxes, withholding, or deductions) by the Security Provider to the Company shall be equivalent to the Interest payable by the Company for such Interest Period.
2.23 Covenants under the Transaction Documents
The Company shall observe and perform each of the covenants set forth In the Transaction Documents, which covenants are hereby Incorporated herein by reference and made a part of this Deed as If such covenants and other relevant provisions were set forth in full herein.
2.24 Anti-Bribery and Corruption Laws; Sanctions
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<i. The CoJT1pany shGll. ;;ind shall nrisur< ih<·tl 1! and lhe Obligors shall
i. conduct ils business 111 con1pli;~nce v..11!11 all applicable provisions ol AnliBribery and Gorruption·laws. ·and
ii. maintain systen1s, controls. policie~.; and procedures designed lo pron1ote and achieve ongoing co111plia11ce lVilh all applicable provision~; of AnliBribery and Corruption Laws
b. The Obligors shall nol directly or indireclly use the transaction proceetls ror any
purpose that would breach any Anli-Bribery and Corruption Laws. c. No Obligor shall, and each Obliger sl1all ensure that no other Affiliate of l11e Obliger
will, whelher directly or indirectly: i. use lhe proceeds of the financing for lhe purpose of financing activities of
any person or entity which is listed by any Sanctions la or engage with any person, entity or project in a country that Is subject to any sanctions or deal in property blocked pursuant to any Sanctions;
ii. fund any paymenl under the Transaction Documents out of proceeds derived from transactions that violate the prohibitions set forth In any Sanctions.
d. The Obllgors shall not, and shall not permit or authorize any other person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of any loan or other transaclion(s) contemplated by this Agreement to fund any trade, business or other activities I in any manner that would reasonably be expected to· result in any Obllgor or any Bond Holder being in breach of any Sanctions (if and to the extent applicable to either of them),
2.23 Project Related Covenants (a) The Obllgors undertake that It shall by September 1, 2017 ensure that the
occupancy of the Project is by way of tenants who have executed lease agreements for an original term of atleast three years and at an average minimum rental of INR 85 per square foot, for an area aggregating to at least 90% of the rentable space of the Project. In the event at any time the threshold leased/licensed area falls below the aforesaid 90% of the leasable space of the Pro)eot, the Company shall remedy the same within a period of l'l months (or such further extended period as may be allowed by the Trustee) from the date of Issue of notice by the Trustee.
(b) The Obllgors shall ensure that in the event BPTP Limited vacates approximately 59,890 square feet of leasable area or more ("Vacation Date"), it shall ensure that within a period of 9 months from the Vacation Date at least go% (Ninety percent) of the leasable space of the Project Is leased out to tenants and the average rentals received in respect of the whole Project are at a minimum average rate of INR 85 (Rupees Eighty Five) per square feet per month of leasable space of the Project.
2.24 Merger Related Covenants (a) The Obligors shall ensure that the Merger Date Is completed within 15 (fifteen)
months from the Deemed Date of Allotment. The l;lorid Holders have consented to the Merger Event as per the terms of the scheme of arrangement submitted to· It and theTrustee shall If required by the National Company Law Tribunal or as a process of Merger Event give its unconditional consent for the Merger Event or occurrence of Merger Date, as applicable, within 5 Business Days of a receipt of
(b)
(c)
· such request from the· Company.
Upon occurrence of the Merger Event~the Company and each other Obllgor shall ensure that all steps to Implement.the merger of the Company and. the•securlty Provider with the Guarantor, Including any filings are completed, such that the Merger Date shall occur no later than 2 Business Days from the Merger Event.
On the Merger Date, all the obligations of the Company and the Security Provider under the Transaction Documents shall vest with the Guarantor and the Guarantor shall assume the obligations of the Company and the Security Provider and shall duly perform such obligations subject to and In accordance with the Transaction Documents and all the terms and conditions of this Deed and each of the
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·1 ran::;c--1cl1011 Oocu111cnls shall co11lin11r: !c1 n~111:-1111 i11 l<uc1· :1•1<l tdfn1:1 and lie binding on Ille Guaranlor
(d) The Guarantor shall do all such other acls as 1118y be required lo ensu1e lhat the terms of lhis Deed and the Transaction Docun1enls ren1a111 in force on Ille same lerrns and condilions as set out in this Deed. includi1 iq btil not li111i\f!d to underlaking the following actions, in11nedialely 011 lhe ocr:urrenc8 of lhc Merger Dale:
a. Procure the revised rating for the Bonds;
b. Re-issue and cause the listing of the Bonds on lhe BSE.
c. Re-open or designate In lhe name of the Guarantor all of lhe applicable bank accounts and the Secured Assets;
d. If applicable, cause the entries in the Registrar of Assurances to reflect lhe name of the Guarantor as the owner of the Project and Project Land;
e. File all necessary forms and declarations with the Registrar of Companies, including such forms as may be necessary to record the subsistence of the Security Interests created pursuant to the Transaction Documents;
f. Pay all necessary stamp duties and levies so as to ensure the effectiveness of the Merger Event and as may be necessary to ensure the valid subsistence of the Security Interests created pursuant to the Transaction Qocuments;
g. File all necessary forms and declarations wilh the Registrar of Companies so as to ensure the effectiveness of the Merger Event; and
h. Re-execute any of the Transaction Documents as may be necessary or required under Applicable Laws or as may be reasonably required by the Trustee to ensure that the terms of the Transaction Documents continue to be In force.
2.25 Disclosures
(a) The Company and the Obllgors agree that In addition to any other rights enjoyed by the Truste.e, upon the occurrence of an event of an Event of Default, the Trustee shall be entitled to disclose the name of the Oblig_ors, and the directors of the Obligors (if required by Applicable Law) as defaulters to any statutory or regulatory authority along with details of the Default committed. The· Obligors further agree that the Trustee may, as it deems appropriate and necessary disclose and furnish to the Credit Information Bureau Limited and any other agency authorised In this behalf by Reserve Bank of India all or any of the following: (i) Information and data relating to the Obllgors (if required under Applicable Law); (II) Information and data relating to the facility availed of/to be availed of by the Obligors (If required under Applicable Law); and (iii) the information and details of the occurren.ce of an Event of Default.
(b) The Obllgors agree and undertake that:
(I) GIBIL and any other agency so authorised by the Reserve Bank of India may use or process the said Information and data disclosed by the Trustee In the. m101nner deemed fit by them; and
(II)· CIBIL and any other agency so authorised by the Reserve Bank of India may furnish, for consideration, the processed Information and data or products thereof
· obtained by them to banks, financial Institutions and other credit grantors or registered users, as may be.specified by the Reserve Bank of _India in this regard.
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SCHEDULE 5 CONPITJONS
Part I - Conditions Procedenl
1 The Obligors
2
3
L -,,.,.,..
(a) A copy of the constitutional documents of each Obligor (not being an individual) and the shareholding pallern of each Obliger (not being an individual).
(b) A copy of a resolution of Lhe board of directors of each Obllgor:
(I) approving the terms of, and lhe transactions contemplated by, the Transaction Documents to which il is a party and resolving thal It execute the Transaction Documents lo which It ls a party:
(II) authorlslng a specified person or persons Lo execute tf1e Transaction Documents lo which It Is a party on Its behalf; and
(Iii) authorising a specllled 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 Transaction Documents to which ii Is a party.
(c) A copy of the special resolullon of the shareholders of the Company approving the Issuance of Bonds in accordance with the Companies (Prospectus and Allotment of Securities) Rules, 2014.
(d) A specimen of the signature of each person authorised by the resolutions referred to in paragraphs (b) and (c) above.
(e) A certificate from the Each Obllgor (signed by a director) enclosing each of the documents speclfled In this Part I (Conditions Precedent) of this Schedule 5 (Conditions) confirming that:
(f)
(I) borrowing, securing or otherwise collaterallslng, as appropriate, the Debt would not cause any borrowing, securing, collaterallslng or similar limit binding on It to be exceeded (Including any limits Imposed under any resolution passed by the shareholders of the Company):
(II) each copy document relating to it specified In this Part I (Conditions Precedent) of this Schedule 5 (Conditions) Is correct, complete .and In full force and effect as at a dale no earlier than the Deemed Date of Allotment;
(Iii) no Default is continuing or would result from the allotment of Bonds under the proposed Issue;
(Iv) the representations and warranties set out In Schedule 3 (Representations and Warranties) of this Dead and In each other Transaction Document are true and correct;
(v) ilo Mate~alAdverse Effect has occurred and no circumstances exist which could give rise, with the passage of time or otherwise, lo a Material Adverse Effect.
(vi) the Obllgor is solvent.
A certlflcate from a chartered accountant confirming the statements made in paragraphs (f)(I), (f)(lll)and (!)(vi) above.
Security
A copy of each of the following Transacllon Documents, duly executed by the parlles to JI.
Rating and Listing
(a) A copy of the rating letter from the Rating Agency providing a minimum rating of ICRA "A" to the Bonds. ···-------·-·
J,.11 65
(b) A copy of the in-principle approval letter from the BSE for listing of the Bonds.
(c) A copy of the letter from the Depository issuing an ISIN in respecl or each tranche of the Bonds.
4 Legat opinions
A le9_al opinion of P&C Le>1al addressed to the Trustee.
5 Other documents and evidence
(a) A copy of each other Transaction Document, duly executed by the parties thereto.
(b) A copy of the Inter-Company Loan Agreement between the Company and Security Provider.
(c) A copy of the acquisition documents for all of the ownership interest in the Security Provider by the Company.
(d) A conflrmallon from the Company on the balance amounts payable for lhe acquisition of all of the ownership Interest In the Security Provider and the Project.
(e) A certificate from the Guarantor stating that the proceeds of the loans being repaid from the Bonds was not applied for any Real Estate Business or purpose.
(f) A copy of any other Authorisation or document, opinion or assurance which the Trustee considers to be necessary or desirable (and has communicated to the Company) In connection with the Bonds or the entry Into and performance of the transactions contemplated by any Transaction Document or for the validity or enforceability of any Transaction Document.
(g) Cerllflcate from any Director of the Company for confirmation as to non-appllcabtllty of Sections 185 and 186 of the Act.
(h) All concerns/ issues raised as a result of legal, technical and financial due diligence should have been resolved to the satisfacllon of the Trustee.
(I) Company to obtain a chartered accountant cerllflcate stating that no notices, demands or tax claims are pending against the Company under the Tax Act ..
0) Copy of the Financial Statements of each Obligar.
(k) Evidence that the Security Provider has reached an agreement with the existing lender for repayment of the moneys owed to such lender (along with the amount to be repaid), utilizing the proceeds of the Loan Agreement.
(I) Evidence that the casts and expenses due from the Company In connection with the Issue of Bonds have been paid.
(m) Evidence that the Registrar and Share Transfer Agent has been appointed.
(n) Evidence that all Taxes (Including stamp duty) payable In connection with the execution, performance and/or eniorcement of the Transaction Oocuments have bean paid.
(o) Delivery of the title reports In relation to the Project Land.
(p) Certificate stating that the loans being re-financed were not used for Real Estate Business.
(q) Open a disbursement account and a Company DSRAAccount with the Escrow Bank
(r) Copy of the scheme of arrangement for the proposed Merger Evant.
(s) Any other document or action as may be reasonably required by the Trustee.
66
•
Part II - Conditions Subsequent
1. Within 1 Business Day of the date of allotment of the Bonds, the Company shall provide to lhe Truslee a copy of the resolution of lhe board of direclors of the Co1npany authorizing U1e allotment of the Bonds to the Bond Holders.
2. The Company and the Security Provider shall execute and deliver lo the Trustee, the Escrow Agreement. not later than 30 days from the Allotment Date:
3. The mortgage referred to In Clause 8.1 (a)(J) shall be evidenced by the Mortgage Documents and shall be created and perfected within: (A) 90 days from the Allotment Date; or (B) 30 days from the data on which the approval of the Haryana Slate Industrial Development Corporation for creation of the mortgage, whichever occurs earlier;
4. The hypothecatlon referred to In Clause 8.1 (a)(ll) In relation to the Security Provider shall be created and perfected within 30 days from the Allotment Date:
5. The pledge referred to in Clause 8.1 (a)(lll) shall be created and perfected prior lo the Allotment Date:
6. The pledge referred to In Clause 8.1(a)(lv) shall be created and perfected prior to the Allotment Date:
7. Within 30 days from the Deemed Date of Allotment, the Company shall provide to the Trustee a certtrlcate from a chartered accountant Jn relation to ut!llzallon of the proceeds of the Issue and the Loan Agreement.
8. Within 6 Business Days from the dale of creation of Security on the relevant Secured Assets, the Company shall provide to the Trustee evidence that the creation of the Security has been , duly filed with the jurisdlctlonal Registrar of Companies, together with the certlftcate of registration of charge provided by the relevant Registrar of Companies In connection with the Secured Assets and reporting the creation of the charge to any other relevant regulatory authority. ·
9. Within 15 Business Days from the Deemed Date of Allotment, the Company shall provide to the Trustee evidence that the prescribed Form PAS-IV has been duly flied with the registrar of companies.
10. Within 7 days from the Deemed Date of Allolment, the Company shall provide to the Trustee a copy of the letter from the Depository crediting the account of the Bond Holders with the Bonds.
11. Within 15 days from the Allotment Date, procure the final listing approval for listing of the Bonds. ·
12. Procure the consent of Haryana State Industrial Development Corporation for the creation of the Security Interest over the Project and Project Land within 90 days from the Allotment Date.
67
SCHEDULE 6
FORM OF VOLUNTARY REDEMPTION EXERCISE NOTICE
From: Company /Bond Holder
To·. Truslee/Company
cc: Guarantor
Date: [•]
Trust deed dated[•] 2014 between the Company and the Trustee (the "Trust Oeed")
Dear Sirs
We refer to the Bond Trust Deed and our option to redeem the Bonds [In whole or In part) under Clause 5.3 (Voluntary Redemption) of tho Terms and Conditions of lhe Bonds, This is a Voluntary Redemption Exercise Notice. Terms defined in the Bond Trust Daed shall have the same meaning when used In this Voluntary Redemption Exercise Notice unless given a different meaning in this Voluntary Redemption Exercise Notice. (i) We hereby exercise our right lo redeem the outstanding Bonds in full on the terms set out
below:
(a) Voluntary Redemption Dale: [•)
(b) Number of Bonds to be redeemed: [•)
(c) Aggregate Redemption Amount:[•] (II) On the Voluntary Redemption Date, upon payment of the Debi In respect of all the Bonds,
the Bonds standing lo the credit of the demat account of each Bond Holder shall be cancelled by Issue of appropriate Instructions by us to the Depository. t
This Voluntary Redemption Exercise Notice Is Irrevocable.
This Voluntary Redemption Exercise Notice Is governed by Indian law.
Signed: ................. ..
Director
[·]
68 ~.;,\ecn Pr;.,~'<>
..s- (.. rv 3 ~ rgaon ~
" 0.
*
oo
SCHEDULE 7 FORM OF NOTICE OF EARLY REDEMPTION
From: Trustee
To: Company
cc; Guarantor
Dated: I Insert dais]
Dear Sirs
Bond Trust Deed dated [ ] (the "Deed")
1. We refer to the Deed and Clause [9.21] (Remedies fol/owing an Event of Default). Terms defined in the Deed shall have the same meaning when used in this nollce unless given a different meaning in this notice.
2. We hereby notify you that:
3.
4.
Signed:
(I) jprovlde details of event] has occurred on l•J;
{II) the event described in paragraph Q) constitutes an ·Event of Default under Clause 10.[•) of the Deed;
(Iii) the Debt is due and payable forthwith In respect of each Bond together with all other amounts payable in respect thereof on H (Early redemption Date) In accordance with the Transaction Documents; and
(iv) the Security created pursuant to the Security Documents shall become enforceable on the Early Redemption Date and we are entitled to enforce our rights under the Security Documents .
We hereby call upon to deposit to the. Company Escrow Account, the Debt by __ .
This notice Is governed by Indian law.
Authorised Signatory for
Trustee
69
SCHEDULE 8 DETAILS DF SECURITY
Industrial Plot bearing No. 15, Udyog Vlhar, Phase IV, Gurgaon ad measuring 18,272.45 square metres with built up area thereon
70 ~,.,ech Pr;.,,,1@
.$' - (..
"' . 3 ~ u aon ~
" 0.
*
SCHEDULE 9
REDEMPTION SCHEDULE
Instalment Opening Principal Month Balance - Redemption
INR -INR
1. 550 0
2. 550 0
3. 550 0
4. 550 0
5. 550 0
6. 550 0
7. 560 0
8. 550 0
9. 550 0
10. 550 0
11. 550 0
12. 550 0
13. 550 0
14. 550 0
15. 550 0
16. 550 0
17. 550 0
18. 550 0
19. 550 0.825
' 20. 649.18 0.825
21. 548.35 0.825
.
22. 547.53 0.825
J.r; 71
----23.
546.70 0.825
1-.-,.
24. 545.88 o.a2s-···-
25. 545.05 0.825
26. 544.23 0.825
27. 543.40 0.825
28. 542.58 0.825
29. 541.75 0.825
30. 540.92 0.825
31. 540.10 0.825
32. 539.27 0.825
33. 538.45 0.825
34. 537.62 0.825
35. 536.80 0.825
36. 535.97 0.825
37. 535·.15 0.825
38. 534.32 0.825
39. . 533.50 533.50
72,
From:
To;
cc:
Dated:
SCHEDULE.10 FORM OF NOTICE OF EVENT OF DEFAULT
IDBI Trusteeship Services Limited as the Trustee
___ as the Company
[other oblgors]
[Insert dale}
Dear Sirs
Trust Deed
dated [·---~ (the "Deed")
1. We refer to the Deed and Clause 10.22 (Remedies following an Event of Defau/I). Terms
defined In the Deed shall have lhe same meaning when used In this notice unless given a
different meaning In this notice.
2. We hereby notify you thal:
(I} [provide details of event] has occurred on [ • ];
(II) the event described in paragraph (I} constitutes an Event of Default under Clause 10.[•] of the Deed;
(Ill) the Debt Is due and payable forthwith In respect of each Bond together with all other amounts payable in respect thereof In accordance with the Transaction Documents; and
(iv} the Security created pursuant to the Security Documents has became enforceable and we are entitled to enforce our rights under the Security Documents, Including the exercise our power of sale pursuant to the Pledge Agreements dated __ and ___ without any further notice to you.
3. This notice Is governed by Indian law.
Signed:.
Authorised Signatory for
IDBI Trusteeship Services Limited as Trustee
~,.,ecn Pr;,%
....._<:: C· "' 2. ~ ur on IP' a: 0.
•
*
73
SCHJ;DULE 11 lnlentlonally Deleted
SCHEDULE1Z lnlenlionally deleted
SCHEDULJ; 13
Intentionally Deleted
74
v
ANNEXURE 1
RENTAL DOCUMENTS
\ti b "- e,.,v .. :v..<-~ :><-\""""'~ ,
'QV/ }Iv /
~
75
Signed and delivered by RMZ Jnfratoch Private Limited l·IL . .--.....Cr\,.,. ,.,, ..... ·'!·.-,._ .,_,_ ..... ,_·,~ t
the signature of ..................... . For RMZ lnfratech Private Limited
under Board Resolution daled 291tt March, 2017
Authorised Slgnalory
•
76
Signed and delivered by RMZ lnfotech Private Limited
th . l I t,.I,..._ "1"·.r..::- Q<.>. ' .., . .,,._ '\/I'< .-; '~. r:c./..f e s1gna ure o ......... :.; ......... ; For RMZ INFOTECH PVT. LTD.
under Board Resolution dated 29'" March, 2017
Authorised Signatory
~/
77
Signed and delivered by Vital Construction Private Limited
th • f \.'.(.,_. i:<X <'\I , e signature o ................ ; .. -.. . !=or Vltal Ct)nstructlon Privet& Ll1nh11d
under Board Resolution dated 29'" March, 2017 l.,~~., . .,.,_~c.~(·
Authorised Slgnalory
78
Signed and delivered by IDBI Trusteeship Services Limited
the signature of . .'.b~I \:.~'l{l, as its authorised signatory
79
1·~~ lllUJ THUSlH :-.Hll' BfUVltll; !flJ.
~'. AUHIORISffi-st~