FIRST AMENDMENT TO THE DEBENTURE SUBSCRIPTION AGREEMENT DATED 2ND FEBRUARY 2007
Exhibit 10.2
FIRST
AMENDMENT TO THE DEBENTURE SUBSCRIPTION AGREEMENT DATED 2ND
FEBRUARY 2007
THIS
First
Amendment to the Debenture Subscription Agreement dated 2nd
February 2007
(hereinafter referred to as “Amendment”)
is
entered on this 25 day of April
2007;
BY
AND AMONG
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MBL
INFRASTRUCTURES LIMITED,
a
company incorporated in India under the Companies Act, 1956 and having
its
registered office at 23A, Xxxxxx Xxxxxxx Xxxx, 0xx Xxxxx, Xxxxx Xx.
00,
Xxxxxxx - 000000 (hereinafter
referred to as the “Company”);
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| 2. |
THE
PERSONS
whose names and particulars are more particularly set out in Schedule
1
hereto (hereinafter referred to collectively as “Promoters”
and each, a “Promoter”,
which expression shall unless repugnant to the context or meaning
thereof,
be deemed to mean and include their heirs, legal representatives,
executors, and administrators);
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INDIA
GLOBALISATION CAPITAL, INC. a
company organised under the laws of the State of Maryland and
having its office address at 0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 (hereinafter referred to as “Investor”,
which expression shall, unless it be repugnant to the context or
meaning
thereof, be deemed to mean and include its successors and
assigns).
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(The
Investor, the Promoters and the Company may hereinafter be referred to
individually as “Party”
and
collectively as “Parties”,
as the
context may require).
Whereas
the Investor, the Promoters and the Company are the parties to that certain
Debenture Subscription Agreement (the “Debenture
Subscription Agreement”)
dated
2nd
February, 2007, pursuant to which the Investor has agreed to subscribe to
Convertible
Instruments issued by the Company aggregating to approximately the INR
equivalent of US$ 3 million, upon the terms and conditions set forth
therein.
WHEREAS,
the Investor, the Company and the Promoters desire to amend the Debenture
Subscription Agreement on the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES COVENANTS AND AGREEMENTS
HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS:
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1.
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Amendment
to Clause 14 (Future Investment) - Clause 14 (Future Investment)
is hereby
amended to read in its entirety as
follows:
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FUTURE
INVESTMENT
Within
45
days of receipt of documents referred to in Clause 4.1.10(A), the Investor
shall
be required to satisfy the Condition Precedent referred to in Clause 4.1.2
of
the SSPA. In the event the Condition Precedent referred to Clause 4.1.2 of
the
SSPA, is not satisfied within such period, the Investor shall be obliged at
the
option of the Company and the Promoters to invest an additional amount
of
approximately the INR equivalent of US$ 3 million into the Company within 15
days by subscription to further allotment of Convertible Instruments to the
Investor as per the terms of this Agreement. Such date may only be extendable
by
mutual consent. If such additional amount is not paid within such 15 days or
any
extension thereof, the SSPA shall stand terminated.
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2.
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This
Amendment shall become effective upon the execution and delivery
of this
Amendment by the Investor, the Promoters and the Company.
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3.
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Amendment
to the Debenture Subscription Agreement. The Debenture Subscription
Agreement is hereby, and shall henceforth be deemed to be, amended,
modified and supplemented in accordance with the provisions hereof,
and
the respective rights, duties and obligations under the Debenture
Subscription Agreement shall hereafter be determined, exercised
and
enforced under the Debenture Subscription Agreement, as amended,
subject
in all respects to such amendments, modifications, and supplements
and all
terms and conditions of this
Amendment.
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4.
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Ratification
of the Agreement. Except as expressly set forth in this Amendment,
all
agreements, covenants, undertakings, provisions, stipulations, and
promises contained in the Debenture Subscription Agreement are hereby
ratified, readopted, approved, and confirmed and remain in full force
and
effect.
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5.
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No
Implied Waiver. The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver
or
modification of any provision of, or operate as a waiver of any right,
power or remedy of the Parties under, the Debenture Subscription
Agreement
or prejudice any right or remedy that either Party may have or may
have in
the future under or in connection with the Debenture Subscription
Agreement or any instrument or agreement referred to therein. The
Parties
hereto acknowledge and agree that the representations and warranties
of
the Parties contained in the Debenture Subscription Agreement shall
survive the execution and delivery of this Amendment and the effectiveness
hereof.
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6.
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Governing
Law. This Amendment shall be governed by and be governed by and construed
in accordance with the laws of
India.
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7.
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Counterparts.
This
Amendment may be executed in one or more counterparts, each of which
shall
be deemed an original and all of which, taken together, shall constitute
one and the same instrument.
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IN
WITNESS WHEREOF THE PARTIES OF THIS ADDENDUM HAVE SET AND SCRIBED THEIR HANDS
AT
KOLKATA, ON THE DAY MONTH AND YEAR FIRST NOTED ABOVE, IN PRESENCE
OF:
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SIGNED
AND DELIVERED
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BY
THE WITHINNAMED "
INVESTOR "
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XXXXXXX
XXXXXXX
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ON
THE 25 DAY OF APRIL 2007
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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SIGNED
AND DELIVERED
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BY
THE WITHINNAMED "COMPANY"
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BY
THE HAND OF Mr. RAM XXXXX XXXXXXXXX
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(AUTHORISED
SIGNATORY) PURSUANT TO THE
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RESOLUTION
PASSED BY THE BOARD
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ON
THE 25 DAY OF APRIL 2007
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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SIGNED
AND DELIVERED
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BY
THE WITHINNAMED "Promoters"
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ON
THE 25 DAY OF APRIL 2007
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IN
THE PRESENCE OF:
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WITNESS:
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NAME
AND ADDRESS:
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