ARTICLE-4

CONDITIONS TO THE OBLIGATIONS OF THE PARTIES AND CONSEQUENCE OF NON COMPLIANCE

 
4.1

Conditions to Obligations of holding Company.

 

The obligation of Holding Company and COMPANY to consummate the transactions described herein shall be subject to the fulfillment, on or prior to the Completion Date of the following conditions.
 

(i)

Performance of Agreements and covenants:
 

All conditions to be performed and satisfied by BSES as specified or envisaged in the Bid documents on or prior to the Completion Date, shall have been duly performed and satisfied by BSES.
 

(ii)

Representations and Warrantees True :
 

The representation and warranties of BSES contained in this share acquisition Agreement shall be true in all material respects on and as of the completion Date with the same effect as though made on and as of the Completion Date, and these shall be delivered to Holding Company on the completion Date, a certificate, in form and substance reasonably satisfactory to Holding Company on the completion Date, a certificate, in form land substance reasonably satisfactory to Holding Company, duly signed by the Chief Executive or the company Secretary of BSES certifying to the foregoing.
 

(iii)

Opinions of Counsel :
 

Holding Company shall have received opinions, dated the Completion Date and in form and substance satisfactory to Holding Company. From the counsel of BSES that BSES shall have the corporate power and corporate authority to enter into valid and legally binding obligations enforceable in accordance with their respective terms and that there is no pending permit, consent, approval or authorization of or declaration to be filed with, any governmental. Authority required in connection with the execution, delivery or performance of this Share acquisition Agreement OR the transaction contemplated here by; and
  (iv) No Action or proceedings
 

No court order shall have been entered in any action or proceeding instituted by any third party, which enjoins, restrains, or prohibits this agreement or the complete consummation of the transactions contemplated by this Share acquisition Agreement
4.2

In case any material condition, obligation or covenant of BSES to be performed by BSES in terms of this agreement at or prior to the Completion Date is not so performed or BSES fails to ay the amount or otherwise fails to complete the transaction as per the terms of this Agreement, due to reasons not attributable exclusive to the Holding Company or GNCTD BSES shall be in material breach of this Share Acquisition Agreement, and in such event Holding Company may terminate this Agreement by notice in writing to BSES. encash forfeit and appropriate the earnest money deposit amount of Rs. 350 lacs submitted with the Bid, without prejudice to its other legal rights and claims

4.3

Conduct until Completion Date:
  4.3.1

Holding Company here by undertakes to procure that between the date of execution of this Agreement and Completion Dates, BSES and its duly authorised representatives shall be given reasonable access to the premises and assets of COMPANY and to the y books, records accounts and other facilities and properties of COMPANY and shall be permitted to make such inspection as may facilitate smooth transfer and be given fully and promptly all such financial and operating information as BSES and their representatives may reasonably request PROVIDED THAT

 
(i)

all such access shall be granted and all such inspections shall be conducted in such as manner as not to interfere unreasonably with the operation of the business of COMPANY;
 
(ii)
 all such access shall be granted and all such inspections shall be subject to requirements of obligations to maintain confidentiality;
 
(iii)

BSES shall strictly observe all relevant regulations and security procedures of COMPANY in force from time to time and shall promptly carry out all reasonable requests and instructions from time to time given to BSES's representatives; and
 
(iv)
 The Bid given by BSES shall not be subject to any variation or cancellation because of any matter which BSES may raise after such inspection or access and BSES shall not claim or assert any right to vary or modify the Bid or the terms of this Agreement or to not to pay the consideration amount and complete the transaction bases on such access or any information received by BSES;
  4.3.2

BSES shall be entitled to appoint two representatives to receive notice of, and attend (in the capacity of observers only) management and board meeting of COMPANY, subject to any duties of confidentiality, which COMPANY may owe to third parties.
  4.3.3 Holding Company hereby assures to BSES that, as from the date of execution of this Agreement and until Completion Date (except as contemplated by this Agreement and save in the case of operational necessity or emergency), it shall cause the COMPANY to maintain and carry on its business in the ordinary and usual course.
  4.3.4

Prior to Completion Date, COMPANY shall not, save;
 

(a)

in the ordinary course of business; or
 

(b)

in case of operational necessity or emergency; or
 

(c)

as disclosed in writing to BSES prior to the submission of the Bid; or
 

(d)

as contemplated by the Bid Documents; or
 

(e)

in relation to any act, event or omission which is not material to COMPANY or its operation or business; or
 

(f)

with the prior consent in writing of BSES;
   

(i)

cancel or release any material debt or claim or sell or transfer any material tangible or intangible asset;

(ii)

enter into material contracts or commitments including borrowings which in aggregate exceeds Rs 50 million;

(iii)

give any material guarantee or indemnity;

(iv)

assume or incur or agree to assume or incur any capital commitment in excess of Rs. 50 million in aggregate;

(v)

dispose of the ownership, possession, custody or control of any corporate or other books or records;

(vi)

materially alter its present business policies (both short term and long term) including those relating to manning levels, salary and benefit levels, ordering supply and stocking;

(vii)

fail to carry out COMPANY's present repair and maintenance procedures in any material respect;

(viii)

cease to maintain in full force and effect all insurance policies now in effect and knowingly default under any material provision thereof, and duly give notice and present and obtain any material claim under any such insurance policies;

(ix)

materially contravene the terms or conditions of any licence or sanction relating to the business or the assets of COMPANY; and

(x)

permit any lien charge or encumbrance to be created over the assets of COMPANY except as envisaged in any of the Bid Documents