Documenti di Didattica
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IN FAVOUR OF
[], a company registered under the Companies Act, 1956 and having its
registered office at []
(The Company and the Debenture Trustee are hereinafter collectively referred to
as Parties and
individually as a Party.)
WHEREAS:
conditions set out under the DSA (hereinafter referred to as the Transaction).
B. The Company has/ will issue the Debentures under the Debenture Subscription
Agreement
pursuant to: (i) the authority granted by the resolutions of its board of directors
passed at its
meeting held on [], for the issuance of the Debentures, and (ii) the terms and
conditions of
C. [] has been appointed as the Debenture Trustee to accept, hold and enforce
the security
for the benefit of the Holders on the terms and conditions contained in the
Debenture Trust
Deed dated [] between the Debenture Trustee and the Company (the
Debenture Trust
Deed) and the other Debenture Documents upon trust and for the benefit of the
Holders.
D. One of the conditions of the Debenture Documents is that the Debentures and
other
Amounts Due, from time to time, are to be secured inter alia by a charge on the
E. Accordingly, the Debenture Trustee has called upon the Company to execute
these presents,
1.1 Definitions
Capitalised terms used in this Deed unless otherwise defined herein shall have
the meanings
accorded to such terms in the Debenture Trust Deed. In this Deed, the following
terms shall
Debenture Trust Deed shall mean the trust deed dated _______________,
2014, entered
between the Company and the Debenture Trustee, read with amendments /
supplements
thereto.
Receiver shall have the meaning assigned to such term in Clause 7 of this
Deed.
Clause 1.2 of the Debenture Subscription Agreement shall apply hereto as if the
provisions
thereof have been expressly set out (mutatis mutandis) in this Deed and with
each reference
2. COVENANT TO REPAY
the purposes of, and subject to the terms and conditions set out in the
Debenture
covenant with the Debenture Trustee that it shall repay the Amounts Due to the
relevant
Agreement and the other Debenture Documents as stipulated and in the manner
set out
therein.
3. CHARGE
As continuing security for the payment and discharge of the Amounts Due and
the other
obligations of the Issuer, the Company as the legal and/or beneficial owner of the
(a) all moveable assets of the Company including all current assets, furniture,
fixtures,
book debts, bills, whether documentary or clean, (both present and future),
whether in the possession or under the control of the Company or not, and all
other moveable assets of whatever description, whether affixed to the earth or
not,
whether installed or not and whether lying loose or in cases, or which are lying or
are stored in or are to be stored in or are to be brought into or upon any of the
else the same may be, whether now belonging to and/or that may at any time
during the continuance of this Deed, together with all benefits, rights and
or acquired by the Company, and all the estate, right, title, interest, benefit,
property, claims and demands whatsoever of the Company (together the First
Hypothecated Property) unto and upon the same, both present and future;
(b) all cash flows, revenues, Companys receivables and investments of the
Company,
any person in respect of any flats or other property sold / agreed to be sold by
the
Company, any fees, charges and/or commissions paid / payable by any vendor /
Person to the Company, operating cash flows and all rights, title, interest,
benefit,
claims and demands whatsoever of the Company in, to, under and in respect of
all
whatsoever nature, all the rights, title, interest, benefits, claims and demands
[BMR Legal: a carve-out should be included for insurance proceeds which are
required for
the Project.] and/or the Project and all the estate, benefit, property whatsoever of
the Company (together the Second Hypothecated Property) unto and upon the
same, both present and future; [BMR Legal: the above charge on the Second
i.e. any payments permitted or required to be made from the Company revenue
under the
(c) all the bank accounts (Accounts) and all rights, title, interest, benefit, claims
and
demands whatsoever of the Company in, to, under and in respect of all such
Property) unto and upon the same, both present and future.
4. RANKING OF CHARGE
of the Debenture Trustee for the benefit of the Holders shall be first ranking. The
Security
Interest created here under shall rank pari passu inter se amongst all the
Holders, without
any preference or priority whatsoever on account of date of issue or allotment, or
otherwise.
5. SECURITY
5.1.1 This Deed and the security created hereunder, is and shall be a continuing
security for
repayment of the Amounts Due and fulfilment of the other obligations and shall
remain in
5.1.2 The Debenture Trustee shall not be responsible in any way for the
quantum, quality,
This Deed shall become effective on the date of this Deed without the
requirement of any
further action by any of the Parties on the terms and conditions contained herein.
The Company shall forthwith, and in any case within 30 (thirty) Business Days of
the date of
this Deed or within such number of days as may be permitted under applicable
Law,
whichever is shorter, take all steps and actions to perfect the security created by
the
Companies.
The Company does hereby further agrees, declares and covenants with the
Debenture
Trustee as follows:
(a) Inspection
The Debenture Trustee and/or their authorised officials shall be entitled at all
times,
to enter any place of business of the Company and inspect, value, insure,
superintend the disposal of and take particulars of all or any part of such
Trustee for the due repayment of the amounts intended to be hereby secured
and
the Debenture Trustee shall permit the Company, until the occurrence of and
during
Property and upon the happening of any such event, the Debenture Trustee may,
Hypothecated Property, at the cost of the Company, and may apply the net
proceeds of any such sale or transfer or disposition towards the payment of the
Amounts Due. The Debenture Trustee shall be entitled to exercise such power in
such manner and at such time or times and for such consideration as deemed fit
or
Majority Holders and whether such sale and/or transfer occurs by public auction
or
private sale or otherwise and the Hypothecated Property (or any part thereof)
may
be sold (i) subject to any conditions which the Debenture Trustee and/or Majority
Holders may think fit to impose, (ii) to any Person (including any Person
connected
with the Holders or any of them or any person connected to shareholders or any
of
the shareholders of the Company) and (iii) at any price which the Debenture
Trustee
any amounts in excess of the Amounts Due recovered from such sale shall be
The Company will execute such further writings and take all such further actions
as
may be necessary for giving effect to the rights of the Debenture Trustee and the
TheSubject to the provisions of this Deed, the Company shall at all times ensure
that
Company.
7. APPOINTMENT OF RECEIVER
7.1 The Debenture Trustee at anytime, after the occurrence and during the
continuance of an
Event of Default and in addition to the powers hereinbefore conferred upon the
Debenture
7.2 Unless otherwise directed by the Debenture Trustee, such Receiver shall have
and exercise
all powers and authorities vested in the Debenture Trustee under the Debenture
Documents
or under applicable Law and shall be deemed vested with all such powers as are
required by
any person to hold, possess, deal with and/or sell and transfer any part or whole
of the
Hypothecated Property.
7.3 The Debenture Trustee may from time to time fix the remuneration of such
Receiver and
shall direct payment thereof from the Company and upon failure of the Company
to make
any such payments promptly, make the same out of the Hypothecated Property
and/or
other Encumbered Assets, and the Receiver shall be entitled to earn interest on
any sums
not paid on time at the rate as may be agreed by the Debenture Trustee but not
exceeding
the interest payable on the Debentures. The Debenture Trustee may, at its
discretion
without being obliged to do so, arrange for funds to make payment to the
Receiver against
7.4 The Debenture Trustee may pay over to such Receiver any monies
constituting part of the
Hypothecated Property to the intent that the same may be applied by such
Receiver in the
course of discharge of its duties and the Debenture Trustee may from time to
time
determine what funds the Receiver shall be at liberty to keep in hand with a view
to carrying
7.5 Every such Receiver shall be the agent of the Issuer for all purposes and the
Issuer shall be
responsible for its acts and defaults, losses or misconduct and liable (other than
in cases of
gross negligence, fraud or wilful default by such Receiver) and the Debenture
Trustee and
the Holders shall not incur any liability or responsibility therefor by reason of
their making or
consenting to its appointment as such Receiver.
8. REPORTING REQUIREMENTS
The Company shall, whenever required by the Debenture Trustee, give full
particulars to the
Debenture Trustee of the Hypothecated Property and shall furnish and verify all
statements,
reports, returns, certificates and information from time to time and as required
by the
Debenture Trustee and make, furnish and execute all necessary documents to
give effect to
this security.
[BMR Legal: A regular interval should be agreed to between the Parties for
complying
with the reporting requirement other than an instance when the Security Interest
has
become enforceable.]
9. REPRESENTATIONS
9.1 The Company hereby declares that the Hypothecated Property is and will at
all times be the
9.2 The Company acknowledges and accepts that the Debenture Trustee has
agreed to enter
into this Deed on the basis of, and in full reliance of the representations and
warranties
9.3 This Deed executed by the Company in favour of the Debenture Trustee is its
legal, valid and
9.4 The Company acknowledges and agrees that it is generally subject to civil
and commercial
law and to legal proceedings and neither it nor any of its assets or revenues is
entitled to any
immunity or privilege (sovereign or otherwise) from any set-off, judgment,
execution,
9.5 No steps have been taken for the liquidation, winding up or dissolution or
insolvency of it or
proceedings of any kind in any court or before any arbitrator or any other
government
Trustee.
9.7 All information which has been made available to the Debenture Trustee by
the Company in
supplemented so as to be, complete and correct in all respects and does not
contain any
10. ENFORCEMENT
The security created hereunder in favour of the Debenture Trustee shall become
Trustee alone may enforce the security created over the Hypothecated Property
in
Nothing herein shall prejudice the rights or remedies of the Debenture Trustee
under
The Company shall, from time to time, forthwith on demand pay to or reimburse
the
Debenture Trustee all costs, charges and expenses (including legal and other
fees on a full
upon payment of the outstandings and all monies hereby secured and until
payment of the
same and all other amounts payable under the Debenture Documents in full in
cash, all such
costs, charges and expenses shall be secured by this Deed and shall form part of
the
amounts outstanding.
The Company shall pay all stamp duties, Taxes, fees, penalties or other charges
payable on
Deed and any document, act and registration performed pursuant hereto. If the
Company
fails to pay any such stamp duties, Taxes, fees, penalties or other charges
payable, the
Debenture Trustee may (but is not obligated to) pay such amounts, on behalf of
the
Hypothecated Property for any such amounts paid by the Debenture Trustee as
aforesaid.
13. INDEMNITY
Subject to Section VI of the Debenture Trust Deed and in accordance with the
terms
specified therein, the Company shall indemnify and keep indemnified the Holders
and the
Debenture Trustee against any and all actual Losses. All sums necessary to effect
the
14. CONSTRUCTION
The provisions contained herein shall be read in conjunction with the provisions
of the
Debenture Trust Deed, and to the extent of any inconsistency or repugnancy the
latter shall
All monies received by the Debenture Trustee or any Receiver appointed under
these
Debenture Trustee or any Receiver in excess of the Amounts Due and any costs,
charges and
The Company shall remain liable to the Holders for any deficiency occurring,
arising or
existing under the Debenture Documents in the event the monies received by
the Debenture
17. RELEASE
This Deed and the charge created over the Hypothecated Property in favour of
the
Debenture Trustee will terminate when all the Amounts Due have been
irrevocably paid and
or remedy accruing to the Debenture Trustee upon any default hereunder shall
impair any
such default, nor shall the action or inaction of the Debenture Trustee or any
receiver in
respect of any default or any acquiescence by it in any default shall not affect or
impair any
right, power or remedy of the Debenture Trustee in respect of any other defaults
nor shall
any single or partial exercise of any such right, power or remedy preclude any
further
exercise thereof or the exercise of any other right, power or remedy. The rights
and
remedies of the Debenture Trustee herein provided are cumulative and not
exclusive of any
Documents.
A waiver or consent granted by the Debenture Trustee under this Deed will be
effective only
if permitted under applicable Law, given in writing and only in the specific
instance and for
Company.
The Company hereby irrevocably appoints the Debenture Trustee and each
Receiver to be its
attorney and upon the occurrence of an Event of Default with full power of
substitution and
in its name or otherwise on its behalf to sign, seal, execute, deliver, perfect and
do all deeds,
instruments, acts and things which may be desirable or necessary or which the
Debenture
Trustee or the Receiver shall think proper or expedient for carrying out any
obligations
imposed on the Company hereunder or for exercising any of the powers hereby
conferred in
connection with any sale or disposition of any part of the Hypothecated Property
or the
exercise of any rights in respect thereof or for giving to the Debenture Trustee
the full benefit
of the security created herein and so that the appointment hereby made shall
operate to
anything which it can lawfully do as its attorney and without prejudice to the
generality of the
foregoing the Company has appointed the Debenture Trustee, inter alia to:
(a) (a) execute and do all acts, deeds and things which the Company is
authorised to
(b) (b) generally use the name of the Company in the exercise of all or any of the
give effect to the provisions of this Deed and for the preservation, enforcement
and
The Company ratifies and confirms and agrees to ratify and confirm any deed,
instrument, act
All notices to the Company and the Debenture Trustee may be given in
accordance with the
Every provision contained in this Deed shall be severable and distinct from every
other
This Deed and any disputes or claims arising out of or in connection with it, its
subject
The Parties agree that the courts and tribunals in [] shall have shall have
exclusive
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24. NO LEGAL TITLE FOR SECURED PARTIES
Nothing contained in this Deed shall confer upon the Holders, any legal title to
any part of
the Hypothecated Property; provided however, that the Holders shall have a
beneficial
other than the Debenture Trustee any legal or equitable right, remedy or claim
under or in
and shall be construed to be, for the sole and exclusive benefit of the Debenture
Trustee.
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