9911796707
TMI Blog2019 (11) TMI 1660X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Financial Creditor IDBI Bank Ltd. had filed a Petition against the Corporate Debtor EPC Constructions India Ltd. by invoking the Provisions of Section 7 of The Code read with Rule 4 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules 2016 on 29.12.2017. 3. After considering the merits of the case, the said Petition was admitted vide an Order dated 20.04.2018 (CP No. 1832/I&BP/NCLT/MB/2017). Mr. Abhijit Guhathakurtha was appointed as the Interim Resolution Professional (IRP). The said IRP was confirmed as the Resolution Professional (RP) in the CoC meeting dated 25.05.2018. 4. The Applicant submits that on 30.06.2018, the first Invitation for Expression of Interest for submission of Resolution Plans for the Corporate Debtor was published with addendums published on 17.08.2018 and 17.09.2018. The RP had also created a Virtual Data Room (VDR) wherein relevant documents, data and information in relation to Corporate Debtor were provided to Potential Resolution Applicants. The process document for submission of Resolution Plans was circulated to the Resolution Applicants on 04.10.2018. The Applicant mentions that the CoC also approved the process documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CCI imposes an additional procedural obligation on the resolution applicants to furnish the approval from CCI before furnishing the resolution plan. Therefore, we can say that the amendment does not apply on the present CIRP proceedings. Hence, non-furnishing of the approval from CCI is no bar for the CoC or the RP to consider a resolution plan. Hence this objection raised by the Applicant, that RPIF did not have a CCI approval as on the date of meeting i.e. 10.01.2019, stands rejected. Even otherwise, assuming that the aforesaid amendment was applicable in the present case, as on 10.01.2019 the Applicant itself did not have CCI's approval. CCI's approval was furnished on 11.01.2019, a day after the resolution plan of RPIF was approved. In that scenario, even if we assume that RPIF was ineligible to place a resolution plan before the CoC due to not having CCI's approval, but so was the case of the Applicant. The current position is that the RPIF has also furnished the necessary approval from CCI post the resolution plan was approved by the CoC. 9. It is on the basis of this order that the Resolution Plan of RPIFL stood the test of being compliant with the procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the requirements of Section 29A of the IBC. The Resolution Plan has been proposed based on the information made available in the Information Memorandum, the Data Room, management meetings and conference calls, site visit and on the assumptions and other terms and conditions stated in this Resolution Plan. This plan shall become effective and operative upon obtaining the NCLT approval and CCI approval, whichever is later. In the event, any other approval is required for implementation not granted or in case of change in Applicable Law or under any other material circumstances, then notwithstanding anything contained in this Plan, but without prejudice to the financial commitments set forth in this Plan with respect to each creditor of the Company (including the quantum of payment or settlement to be made to such creditor and the timeline within which the payment or settlement is to be made), the Resolution Applicant shall be entitled to revise the acquisition structure (including, the implementation thereof) in compliance with Applicable Law, to implement the Plan by intimating the COC, without prejudice to any timelines specified in this Resolution Plan for payment of Tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outlines a consideration involving: (i) Upfront Consideration (less payment towards (i) Balance CIRP Costs; and (ii) Potential Workmen's Dues) of INR 420 Crores to be paid to the Financial Creditors within 30 Business Days; and (ii) a Deferred Consideration in the form of NCDs of a cumulative face value of INR 480 Cores which shall be repayable within a tenure of 5 years and shall have further terms and conditions as per details given in Annexure 2; together (Deferred Consideration and Upfront Consideration referred together as "Total Consideration. The Resolution Applicant will bring in the aforesaid Upfront Consideration of INR 420 crores and payment towards Admitted Workmen and Employee Dues by way of fresh funds into the Company in the form of equity (including equity shares, preference shares, subordinated debt, quasi equity, and convertible instruments) along with its associate companies. The proposal for Operational Creditors and other stakeholders of the Company is detailed in Section 3 of this Resolution Plan. The Resolution Applicant proposes to completely restructure the Company's balance sheet and focus on operational excellence in order to create signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purposes of this Resolution Plan, the capitalised terms defined by inclusion in quotations and/or parentheses shall have the meaning ascribed to such term under Part A of Annexure 1. Further, the rules of interpretation are set out in Part B of Annexure 1. 2. Liabilities and Creditors Analysis According to the Provisional Balance Sheet, the liabilities of the Company are as follows: As per the amendment to the CIRP Regulations on 31 December 2017, the requirement for disclosing the liquidation value of an asset undergoing resolution to the resolution applicant has been dispensed with. Accordingly, the Liquidation Value for the Corporate Debtor is currently not available with us. According to the List of Creditors, total claims filed amounts to INR 13,254.43 crores, out of which claims aggregating to INR 7,487.45 crores have been verified and admitted ("Admitted Debt") for the purpose of CIRP by the Resolution Professional. The breakup of the claims is as follows: 3. Mandatory Contents of the Resolution Plan 3.1. Payment of the Insolvency Resolution Process Cost (CIRP Cost): i. As per IBC, the CIRP Costs are accorded highest priority amongst the creditors of a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Indian Rupees Four Hundred Eighty Crores) in the form of unlisted NCDs. iii. In addition, according to List of Creditors, total claims filed by the operational creditors of the Company amount to INR 3,696.87 Crores. Out of which claims aggregating to INR 244.78 Crores have been verified and admitted by the Resolution Professional for the purposes of CIRP by the Resolution Professional ("Operational Creditors"). iv. The Liquidation Value payable to the Operational Creditors or the other creditors or stakeholders of the Company (including dues to employees (other than Workmen), government dues, taxes, etc. and other creditors and stakeholders) is expected to be NIL and therefore, they will not be entitled to receive any payment. v. The Admitted Workmen and Employees Dues shall be paid out of the infusion by the Resolution Applicant into the SPV/Corporate Debtor. vi. Post the payment of CIRP Costs in the manner set out in Section 3.1 of this Resolution Plan and payment of Admitted Workmen and Employees Dues in the manner set out in (v) above and 3.4 below, all Admitted Debt of Financial Creditors (including letters of credit and bank guarantees) will be treated in the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deem fit. The Resolution Applicant will not have any obligations over and above Total Consideration to the Financial Creditors; and F. It is clarified that in the event there are any additional CIRP Costs and/or Admitted Workmen and Employee Dues in excess of the amount identified and admitted as of the date hereof, then such excess amount shall also be adjusted from the Upfront Consideration (to the extent the available cash balances of the Company are insufficient in discharging the CIRP Costs), prior to making any payments to the Secured Financial Creditors. vii. With respect to the amount payable to the Financial Creditors (other than those referred to in 3.2 (vi) (a) and (b) above) including accrued or unpaid interest arising after Insolvency Commencement Date and until the Effective Date, in relation to any debt of the Company will be written off in full and shall be deemed to be permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Company or Resolution Applicant or the SPV shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. viii. The cash balances of the Corporate Debtor wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other financing agreements/arrangements (including any undertaking, side letter, letter of comfort, letter of undertaking etc.)) of any actual or potential Financial Creditors of the Company not addressed in Section 3.2, whether admitted or not, due or contingent, asserted or unasserted, crystallized or uncrystallised, known or unknown, disputed or undisputed, present or future, in relation to any period prior to the Effective Date or arising on account of the acquisition of control by the Resolution Applicant over the Company pursuant to this Resolution Plan, shall be deemed to be permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Company or the Resolution Applicant or the SPV shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto. Furthermore, the Company shall stand discharged of any default or event of default under any loan documents or other financing agreements or arrangements (including any side letter, letter of comfort, letter of undertaking etc.) and all rights/remedies of the creditors shall stand permanently extinguished. Furthermore, it is hereby clarified that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or any other Person for the benefit of any of the creditors of the Company. Further, each creditor of the Company shall execute or issue discharge certificates, no-objection certificates and all other documents and take all such actions as may be reasonably required by the Company or the Resolution Applicant for the release of the Encumbrances, security interests and charges contemplated in this paragraph. xiii. Notwithstanding the above, upon the approval of the Resolution Plan by the NCLT under Section 31 of the IBC, on and from the Effective Date: (A) all Claims in connection with all violation or breach of any agreement by the Company shall be settled at NIL value at par with Operational Creditors as specified in this Resolution Plan; (B) any event of default having occurred on part of the Company under any of the financing documents entered into by the Company on its own behalf or entered into on behalf of any of its subsidiaries, joint ventures or associates to secure or guarantee any of their liabilities, prior to the Effective Date and any Claims arising against the Company on account of such defaults shall be settled at NIL value. Notwithstanding the foregoing, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and in such a case, Claims, if any, filed against the Company by such Third Party shall be settled at NIL value. 3.3. Proposal for Operational Creditors (excluding employees and Workmen): i. As per the List of Creditors, total claims filed by Operational Creditors (excluding employees and Workmen) aggregate to INR aggregate to INR 3,696.87 Crores. Out of which claims aggregating to INR 244.78 Crores have been verified and admitted by the Resolution Professional for the purposes of CIRP by the Resolution Professional. ii. In terms of the IBC, the payment due to operational creditors should not be less than the liquidation value payable to the operational creditors in the event of a liquidation of the Corporate Debtor under Section 53 of the IBC. However, the Liquidation Value is expected to be NIL and therefore, NIL payment has been proposed under the Resolution Plan towards all claims of Operational Creditors (whether filed or not, whether admitted or not and whether or not set out in the Provisional Balance Sheet, the balance sheets of the Company or the profit and loss account statements of the Company or the List of Creditors) and no source has been identified for such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of this Resolution Plan by the NCLT, without the requirement of any further action on part of any party. All title deeds and other documents (including charge documents, if any) held by the Operational Creditors or on their behalf shall be immediately returned to the Company. v. Any and all rights and entitlements of any actual or potential Third Party, whether admitted or not, due or contingent, asserted or unasserted, crystallized or uncrystallised, known or unknown, disputed or undisputed, present or future, in relation to any period prior to the Effective Date or arising on account of the acquisition of control by the Resolution Applicant over the Company pursuant to this Resolution Plan, shall be deemed to be permanently extinguished by virtue of the order of the NCLT approving this Resolution Plan and the Company or the Resolution Applicant shall at no point of time, directly or indirectly, have any obligation, liability or duty in relation thereto. 3.4. Proposal for Employees/Workmen: i. As per the List of Creditors, there are INR 4.57 Crores dues to employees and/or Workmen which have been claimed, out of which all the claims aggregating to INR 0.68 Crores have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation, liability or duty in relation thereto. 3.5. Proposal for Statutory Liabilities including Outstanding Governmental Authority Dues, Taxes, etc.: i. As per IBC, since the statutory liabilities are operational debt, the resolution applicant is required to ensure that it pays at least the liquidation value in respect of the statutory liabilities. The statutory liabilities payable by the Company include without limitation Claims under all Taxes and provident fund payments. As stated in Section 3.2. iv of this Resolution Plan, the Liquidation Value is expected to be NIL and therefore, NIL payment has been proposed under the Resolution Plan towards payment of statutory liabilities including but not limited to any outstanding government dues, Taxes, provident fund and other liabilities of the Company and no source has been identified for such payment under this Resolution Plan. ii. Accordingly, all Claims or demands made by, or liabilities or obligations owed or payable to or assessed by, the Governmental Authorities including but not limited to the Central government, the State governments, any regulatory or local authority or body or any agency or instrumentality thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinguished by virtue of the order of the NCLT approving this Resolution Plan and the Company shall not be liable to pay any amount against such dues. All notices, assessments, appellate or other proceedings pending or threatened in relation to the Company, in relation to any period prior to the Effective Date or arising on account of the acquisition of control by the Resolution Applicant over the Company pursuant to this Resolution Plan, shall stand terminated and withdrawn and all consequential liabilities, if any, shall stand extinguished and be considered as not payable by the Company by virtue of the order of the NCLT approving this Resolution Plan and any reassessment, revision or other proceedings under the provisions of the Applicable Laws relating to Taxes would be deemed to be barred in relation to any period prior to the Effective Date, by virtue of the order of the NCLT approving this Resolution Plan. iv. Without prejudice to Section 3.5. i to iii above, all monetary liabilities (including without limitation, for any penalty, interest, fines or fees) of the Company or any Claims which may arise, in relation to; (A) any investigation, inquiry or show-cause notice; (B) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have any obligation, liability or duty in relation thereto. 3.6. Proposal for other stakeholders (including other creditors): i. In relation to any other actual or potential Third Parties (including creditors, existing shareholders and/or other stakeholders) whose claims have not been covered under Section 3.1 to 3.5 above, there will be no funds available for payment to them as the Liquidation Value is insufficient to satisfy the claims of even the Financial Creditors in full. Therefore, NIL payment has been proposed under the Resolution Plan towards payment to such creditors and/or stakeholders and no source has been identified for such payment under this Resolution Plan. ii. Any and all Claims or demands in connection with or against the Company (including any demand for any losses or damages or in connection with any Third Party Claims or any investigations by any governmental bodies or authorities such as the Central Bureau of Investigation, Serious Fraud Investigation Office) by or to any other stakeholder (including any other actual or potential creditor, if any or any counter-party, including any subsidiary, joint venture or associate) whether under Applicable Law, eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted parties, whether admitted or not, due or contingent, asserted or unasserted, crystallized or uncrystallised, known or unknown, secured or unsecured, disputed or undisputed, whether or not set out in the Provisional Balance Sheet, the balance sheets of the Company or the profit and loss account statements of the Company or the List of Creditors, will be deemed to be written off in full and be permanently extinguished in perpetuity by virtue of the order of the NCLT approving this Resolution Plan and the Company or the Resolution Applicant shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto. In relation to any other actual or potential creditors and/or stakeholders whose claims have not been covered under Sections 3.1 to 3.6 above, there will be no funds available for payment to them as the Liquidation Value is insufficient to satisfy the claims of even the Financial Creditors in full. Therefore, NIL payment has been proposed under the Resolution Plan towards payment to such creditors and/or stakeholders and no source has been identified for such payment under this Resolution Plan. 3.7. Treatment of amounts claimed under ongoing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 1.8.3 of the Process Document. Notwithstanding anything contained in this Resolution Plan (except to the extent set out in Section 7 of this Resolution Plan), no part of this Resolution Plan shall become effective or enforceable until either (i) the Resolution Plan is approved by the NCLT in the manner previously proposed by the Resolution Applicant and approved by the COC; or (ii) if approved by the NCLT with any variance, then in the form and substance acceptable to the COC and the Resolution Applicant. Upon approval of the Resolution Plan by the NCLT, this Resolution Plan shall ipso facto form part of the NCLT order approving the Resolution Plan. ii. The implementation schedule for the Resolution Plan is set out in Section 7 of the Resolution Plan. 3.9. Mechanism regarding the management and control of the business of the Company post approval of the Resolution Plan by the Adjudicating Authority: I. On and from the date of approval of this Resolution Plan by the NCLT and until the Transfer Date (as defined in Annexure 2) in the manner set out under Annexure 2 of this Resolution Plan ("Interim Period"), the Company will be monitored by the Monitoring Agency in carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittee as the case may be shall: (A) carry on the business with reasonable diligence and business prudence and in the same manner as it had been doing hitherto, and shall not undertake any additional financial commitments of any nature whatsoever, borrow any amounts or incur any other liabilities or expenditure, issue any additional guarantees, indemnities, letters of comfort or commitment either for themselves or on behalf of its respective affiliates or associates or any third party, or sell, transfer, alienate, charge, mortgage or encumber or deal in any of its properties/assets, except: 1. when the same is expressly provided in this Resolution Plan; or 2. when the same is in the ordinary course of business as carried on, as on the date of approval of this Resolution Plan; or 3. when written consent of Steering Committee and the Resolution Applicant has been obtained in this regard; (B) except as provided in the Resolution Plan, not make any change in capital structure of the Company either by way of any increase (by issue of equity shares, bonus shares, convertible debentures or otherwise), decrease, reduction, reclassification, sub-division or consolidation, reorganis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upon the approval of the Resolution Plan by the COC, the Resolution Applicant shall take all necessary steps towards applying for the approvals listed in Section 7 from various Governmental Authorities, including tax authorities/department and other government departments. The Resolution Applicant shall also file for dismissal of all proceedings against the Company before various courts, tribunals and regulatory authorities where any such proceedings are pending. The approval of the CCI (if applicable) will have been applied for prior to approval of the Plan by the NCLT. Immediately upon approval of the Resolution Plan by the NCLT, and subject to Applicable Law, the Monitoring Agency and the Resolution Applicant shall jointly supervise the implementation (including the mechanism for supervision of payment to the stakeholders of the Company in the manner contemplated in the Resolution Plan) of the Resolution Plan until the Transfer Date, in the manner stated in Section 3.9 above. After the Effective Date, the implementation of the Resolution Plan will be supervised by a suitable management team deployed by the Resolution Applicant. 3.11. Declaration to the effect that the Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Binding, Further Assurance Upon approval of this Resolution Plan by the NCLT, this Resolution Plan shall be binding on the Company employees, members, creditors, guarantors, Governmental Authorities and all other stakeholders who are involved in the Resolution Plan and/or otherwise concerned or connected with the Company. As the Resolution Plan shall be binding on each of the stakeholders mentioned above, all such Persons including but not limited to the Monitoring Agency, employees, guarantors, creditors and shareholders/members shall use their best efforts to do or cause to be done, such further acts, deeds, matters and things and execute such further documents as may be reasonably required by The Resolution Applicant to give full effect to the terms of this Resolution Plan in accordance with its terms and conditions. If required by The Resolution Applicant as the evidence of discharge, the creditors of the Resolution Plan shall provide all documentation and/or execute documents evidencing the full and final discharge of their Claims. ii. Conflict In the event of any repugnancy or inconsistency between this Resolution Plan and any other documents, the provisions cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upfront Consideration and Final Maturity Date of NCDs, the following restrictions shall apply to it on any transfer of shares/control of Corporate Debtor: A. From the Transfer Date and till the occurrence of listing of shares of Corporate Debtor/any initial public offering (IPO) of the Corporate Debtor, any transfer of shareholding/control in the Corporate Debtor shall be made by the Resolution Applicant only to entities compliant with Section 29A of the IBC. B. Upon the occurrence of an IPO/listing of securities of the Corporate Debtor, the Resolution Applicant shall not knowingly or wilfully allow any transfer of shareholding/control of the Corporate Debtor to any entity that is not (to the Resolution Applicant's knowledge) compliant with Section 29A of the IBC. 4. OVERVIEW OF THE RESOLUTION APPLICANT: 4.1. Identity details of The Resolution Applicant have been provided as follows: The information required in sub-sections (A) to (I) below are provided for in Format III of this Plan. (A) Identity of the Resolution Applicant and other connected persons (i.e. (a) persons who are promoters or in the or in the management or control of the resolution applicant; (b) pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be provided under the Resolution Plan in terms of the IBC. 4.2. The Resolution Applicant - Brief Profile The Resolution Applicant, is a Category I Global Business Company, limited by shares under the Mauritius Companies Act, 2001. (A) Background of the Resolution Applicant: The Resolution Applicant is a fund incorporated as a Category 1 Global Business Company, having limited by shares under Mauritius Companies Act 2001 that intends to invest in fast-growing sectors in India, Africa, South/South East Asia and GCC. Royale Partners Investment Fund Limited, Mauritius (i.e. the Resolution Applicant) is owned by RPMG Investment LLC ("RPMG"). RPMG focuses on Investment management, private equity, asset management and proprietary trading. It is incorporated in Mauritius and headquartered in Dubai with offices in Hong Kong. In addition to the aforesaid, detailed background and identity of the Resolution Applicant has been set out in Annexure 9. (B) Details of experience in engineering, procurement and construction (EPC)/Power/Infrastructure/Mining/Real Estate Business, SWOT Analysis RPMG group has a strong presence and connections in the UAE which can serve as an additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n track record in honouring debt commitments (including occurrence of any default/non-performing asset in the past 3 years) including CIBIL score and if any group Company is under the CIR process under IBC or recovery litigation The group has no history of any debt defaults and enjoys more than sufficient liquidity to implement the Resolution Plan and the financial proposal contained herein. To complement and illustrate the aforesaid, a certificate of good standing from its bank is enclosed in Annexure 7. Also, proof of funds is also enclosed in Annexure 8. (E) The Resolution Applicant's External Credit rating/Creditworthiness The Resolution Applicant does not have a CIBIL Score as it is not incorporated in India but the Resolution Applicant has not defaulted on any of its indebtedness and currently does not have any debt from any bank or financial institution. To complement and illustrate the aforesaid, a certificate of good standing from its bank is enclosed in Annexure 7. Also, proof of funds is also enclosed in Annexure 8. (F) The Resolution Applicant's Financial Strength The Resolution Applicant has available funds in excess of USD 300 million (equivalent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge (for such NFB Limits) on current assets of the Corporate Debtor in favor of the lender(s) which shall be providing NFB Limits to the extent required. (A) Reasons for present position of the Company and the turnaround plan. The Corporate Debtor over the years has been facing a lot of challenges with respect to the following: Dependency on group projects with no external presence. Delays in collection which led to liquidity issues. Slowdown in the economy - infrastructure sector was majorly impacted due to economic slowdown. Inability of the company to bid for projects due to non-availability of funds and BG requirements. The Resolution Applicant has studied the issues faced by the Corporate Debtor and plans to turnaround the company as follows: In order to augment the working capital of the company, the Resolution Applicant would request the lenders to sanction fresh Non-Fund based working capital limits of INR 400 Crores as per the conditions already specified above. The Resolution applicant will focus on core sectors such as Hydrocarbons, Pipelines (Water as well as Oil & Gas), Offshore, Marine and Power, in which the Corporate Debtor has track record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement of the Corporate Debtor. (D) Operational efficiencies expected, synergies with the existing business, contribution to the operations of the proposed facilities The Resolution Applicant is strategically looking at further investments in the EPC and infrastructure sector in India. Consolidation of all the group interests that will be acquired in due course, will be with the objective to build synergies to further improve operational efficiencies across all businesses including that of the Corporate Debtor. (E) Action Plan to bid for future sale arrangements and raw material sourcing arrangements. The Resolution Applicant will focus on core sectors such as hydrocarbons, pipelines (water as well as oil & gas), offshore, marine and power and further develop capabilities in new areas such as nuclear power, irrigation and defence. The Resolution Applicant shall also use its strong connects in overseas markets to win new projects in other geographies to build international capabilities in addition to improving domestic capabilities. (F) Financial projections and assumptions Please refer to Annexure 10 (G) Plan for operation and maintenance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving Off which will be carried out as soon as practicable and when deemed appropriate by the Resolution Applicant). During this period, the operations of the Company would be monitored by the Monitoring Agency appointed under the Resolution Plan under the supervision and control of the Resolution Applicant. The time period prescribed in the Resolution Plan including (in this Section and in Annexure 2) is only an indicative estimate and the actual time of completion of approvals from authorities and regulators may be different (based on interaction with and facilitation by necessary Governmental Authorities, including ROC) and approval for additional time, if any will be sought, if needed from COC. 2. Upon approval of the Resolution Plan by the NCLT, necessary steps will be taken to file the Resolution Plan, if necessary with various Governmental Authorities, income tax authorities, various courts, tribunals and regulatory authorities where proceedings with respect to the Company are pending, for disposal, dismissal or withdrawal (as the case may be) of all such civil and criminal proceedings. The application for CCI approval (if applicable) shall be made prior to Approval Date ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Applicant has also identified significant pool of resources with vast experience. An indicative list of the senior management team of the Company is provided below: The Resolution Applicant reserves the right to change the list of proposed management team members as may be required. 7.6. Appointment of Auditors (Statutory and Internal) The Resolution Applicant shall have the right to replace the existing auditors (statutory and internal) of the Company and appoint new auditors as deemed fit by The Resolution Applicant upon acquisition of the control over the Company by the Resolution Applicant pursuant to the Resolution Plan. 7.7. Retention of employees The Resolution Applicant would assess employee retention and further hiring of employees, based on the business plan. The Resolution Applicant and the management team reserves the right to renegotiate the contract terms of existing employees/workmen/consultants. Further, the employees/workmen/consultants would have no claims against the Company or the Resolution Applicant for period before the Effective Date and this Resolution Plan, shall be binding on employees/workmen/consultants of the Company on and from the Eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Plan) for implementation of this Resolution Plan within the timelines set out herein. (iv) The payment to Persons contemplated in this Resolution Plan (including Section 3) shall be the full and final performance and satisfaction of all its obligations of the Company, the SPV and the Resolution Applicant to such Persons and all Claims (including, for the avoidance of doubt, any unverified portion of their Claims) of such Persons against the Company. Annexure 1: Definitions and Rules of Interpretation Part A: List of Defined Terms Defined Tcterm Meaning Admitted Debt shall have the meaning ascribed to such term in Section 2 of the Resolution Plan. Admitted Debt of Financial Creditors shall have the meaning ascribed to such term under Section 3.2. ii of the Resolution Plan. Applicable Law All applicable statutes, enactments or acts of any legislative body in India, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any Governmental Authority or any licenses, consents or approvals granted by any Governmental Authority, and any modifications or re-enactments of each thereof. Approval Date shall me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debt Collateral shall mean along with rights, title and interest in the related/underlying financing documents pertaining to the Loans assigned by the Financial Creditors in accordance with this Plan, all agreements, deeds and documents related thereto and all underlying collateral and underlying Encumbrances and/or pledges created to secure the Loans, and/or guarantees issued in respect of the Loans, which the Financial Creditors are entitled to, but excluding the Identified Excluded Collateral. Deferred Consideration Has the meaning given to it in paragraph F of Annexure 2. EBITDA The earnings of the Company, before exceptional and extra ordinary items, interest expense, taxes, depreciation and amortization, calculated as per Indian generally accepted accounting principles. Effective Date Such date as may be agreed between the Resolution Applicant and the COC, on which the Resolution Plan shall become operative or the date of (a) approval of the Resolution Plan by the NCLT; (b) receipt of CCI Approval (if applicable) for the implementation of the Resolution Plan, whichever is later. Reference in this Resolution Plan to the date of 'coming into effect of this Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor, which the Financial Creditors shall remain entitled to and will not be assigned to the SPV, and which are more particularly identified in Annexure 11 hereto. Identified Subsidiaries and Investments shall mean overseas subsidiaries and investments of the Corporate Debtor, which are directly held by the Corporate Debtor and are identified by the Resolution Applicant for hiving off/writing off any investment as envisaged in the relevant step in Annexure 2. IM or Information Memorandum Information memorandum dated July 2018 issued for the CIRP of the Company by the Resolution Professional, as amended or modified from time to time. Monitoring Agency shall mean the Monitoring Agency identified by CoC in consultation with the Resolution Applicant and appointed on such terms and conditions mutually agreed between the parties thereto. It is hereby clarified that the Monitoring Agency may also be the Resolution Professional and his team of experts. INR or Rs. Indian Rupee, the lawful currency of the Republic of India. Indian SPV shall mean a wholly owned subsidiary to be incorporated in India by the Resolution Applicant as a special purpose vehicle for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PV NCDs and/or the New NCDs (as applicable). NCLT or Adjudicating Authority The National Company Law Tribunal as constituted under Section 408 of the CA 2013 New NCDs shall mean the secured unlisted redeemable non-convertible debentures issued by the Company to the secured Financial Creditors, as more particularly set out in paragraph (G) of Annexure 2 of this Resolution Plan New Receivables shall mean all receivables which are booked on the balance sheets of the Corporate Debtor the date when Upfront Consideration is received and SPV NCDs are issued, whichever is later. Non-Compliance Any delay, default, non-compliance, breach, violation, contravention by the Company, any member or shareholder of the Company or any Person associated with the Company in any manner under the terms of Applicable Law or any agreement or arrangement binding on the Company along with all fines, penalties, default interest, damages, and any amounts of whatsoever nature in relation thereto Operational Creditors shall have the meaning ascribed to such term under Section 2 of this Resolution Plan. Permits All consents, licenses, permits, permissions, authorisations, rights, clarifications, appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Creditors mean collectively all Financial Creditors of the Corporate Debtor other than the Secured Financial Creditors Upfront Consideration Shall have the meaning given to it in paragraph 3.2 (vi) of this Resolution Plan. Workmen Workmen of the Company as defined under Section 2(s) of the Industrial Disputes Act, 1947 Part B: Rules of Interpretation of the Resolution Plan Unless a contrary intention appears and unless inconsistent with the subject or context thereof, any reference in this Resolution Plan to: (i) Words denoting singular number only shall include the plural number and vice-versa; (ii) Any agreement or instrument referred to in this Resolution Plan is a reference to that agreement or instrument as amended, novated, supplemented, restated (however fundamentally and whether or not more onerously) or replaced from time to time; (iii) Reference to any legislation or Applicable Law shall include references to any such legislation or Applicable Law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted and any successor legislation or Applicable Law, and any reference to a statutory provision shall inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce set out hereunder: Date of Resolution Plan 'taking effect' and 'becoming operative': The Resolution Plan as set out herein in its present form or with any modification(s), as may be approved or imposed or directed by the NCLT, shall become effective from the date of the approval of the Resolution Plan by NCLT, but shall be operative from the Effective Date. Subject to the terms and conditions provided under this Plan and as an integral part of this Plan, the Resolution Applicant proposes to implement the Plan in terms of this Schedule and within the indicative timelines set out here. All actions and deeds envisaged herein shall be deemed to have been undertaken in terms of this Schedule without any specific approval or permission for each such actions and deed as part of the approval of this Plan by the Adjudicating Authority/NCLT. ACTIONS FOR IMPLEMENTATION OF RESOLUTION PLAN I ACTIONS AFTER COC APPROVAL OF the RESOLUTION PLAN (A) Incorporation of the SPV On or prior to the approval of the Plan by the COC and issuance of the Letter of Intent by the COC, the Resolution Applicant shall incorporate the Indian SPV and if required a Mauritian SPV (to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;(e) It is clarified that the approval of this Resolution Plan by the NCLT shall be deemed compliance with all procedural requirements including in terms of Section 61, Section 64, Companies (Share Capital and Debenture) Rules, 2014, other applicable provisions of the 2013 Act and other Applicable Laws, for increase of authorised capital and other steps contemplated hereunder and accordingly, no approval or consent shall be necessary from any other Person/Governmental Authority in relation to either of these actions under any agreement, the constitution documents of the Company or under any Applicable Law. All disclosures will be made in accordance with Applicable Law. (C) Assignment of Debt for Upfront Consideration and Issuance of SPV NCDs as Deferred Consideration (i) Within 30 (thirty) Business Days of the Effective Date, but prior to the Merger, the entire Claims and Admitted Debt of the Financial Creditors shall stand sold, assigned, transferred and released to and unto the SPV as the Assignee, including the Debt Collateral, by virtue of this Resolution Plan and in exchange for the Total Consideration discharged in the manner specified below, provided, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of any third party creditors without requiring any further consent from the Financial Creditors. Security creation and perfection shall be completed within 7 days from the Deemed Date of Allotment. Monetisation or liquidation of assets charged to NCD holders, shall not require any approval from the lenders if the proceeds are utilized to prepay/pay the NCD lenders. Voluntary Redemption The Company shall have the right to redeem the NCDs partly or fully at any point of time along with any unpaid but accrued interest, without incurring any additional charges or redemption premium, provided that the NCD Holders receive an IRR of 8%. Trust and Retention Account (TRA) All Existing Receivables shall be deposited by the Corporate Debtor into a TRA designated by the COC prior to NCLT Approval Date. Mandatory Early Redemption Any recovery/realization from Existing Receivables in a calendar month after allotment of NCDs shall be utilized first towards the coupon payable that year and thereafter for mandatory early redemption of the SPV NCDs.. Any prepayment, voluntary or mandatory towards principal shall be adjusted in the order of maturity. Debenture Trustee T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (i.e. Upfront Consideration and issuance of NCDs for the Deferred Consideration) and agree that it shall when made constitute full, final and complete consideration for the Assignment. (iv) Immediately upon the Admitted Debt being assigned to the SPV and creation and perfection of SPV NCD Security, the SPV shall make necessary filings for issuance of NCDs, release of the Debt Collateral and make necessary filings in this regard. The Steering Committee and Monitoring Agency shall facilitate such filings unless a new board has been constituted by the Resolution Applicant. Upon this step the only encumbrance on the assets of the Corporate Debtor standing on such date shall be SPV NCD Security. (v) It is clarified that the approval of this Resolution Plan by the NCLT shall be deemed compliance with all procedural requirements including in terms of Section 186 and Section 185 the 2013 Act and the approval of the Resolution Plan by the NCLT shall be deemed to be the consent of the shareholders, for creation of SPV NCD Security and New NCD Security. (D) Selective Capital Reduction (i) Under this step equity shares of the Corporate Debtor held by the existing share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an shall be deemed to be the consent of the Financial Creditors to the Capital Reduction and that each of such Financial Creditors, if so required shall provide its consent in the form that is required by the NCLT under the Applicable Laws. Further, in terms of the IBC, approval of the shareholders of the Corporate Debtor to the transactions contemplated under the Plan including the reduction of share capital or merger shall be deemed to have been given on the Approval Date. (E) Hiving off Identified Subsidiaries (i) As an integral part of the Resolution Plan, the shares and other investments of the Company in its Identified Subsidiaries shall be sold/transferred to the Mauritian SPV or to any third party at its fair value ("Hiving Off"), which is expected to be lower than the cost of investment in the Identified Subsidiaries, as the present fair market value of the Identified Subsidiaries is negligible. This step shall take place prior to or simultaneously with the Merger as envisaged in Step F below. (F) Merger (i) Immediately upon implementation of the aforesaid steps and as an integral part of the Resolution Plan, the SPV (transferor company) wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be fair valued at NIL value. (ii) Upon the Merger becoming effective upon the Approval Date as part of the Merger, the Corporate Debtor (as the merged entity) in replacement of SPV NCDs, shall issue the New NCDs to the secured Financial Creditors on identical terms as the SPV NCDs (which will simultaneously stand extinguished), as more particularly set out in the table below. The Company shall execute a Debenture Trust Deed in favour of the Debenture Trustee which will contain the broad terms set out below and no additional restrictions. (iii) TERMS DESCRIPTION Principal Amount of NCDs (In Crores) INR 480 crores Deemed Date of Allotment Within 7 days of the Approval Date Coupon Rate 8% p.a. Coupon Payment Frequency Annual Day Count Basis "Actual/Actual" basis at the end of the year. Coupon will be computed on an actual basis. Where the period for which such amounts are to be calculated (start date to end date) includes February 29, coupon shall be computed on 366 days a year basis Tenor 5 years Redemption schedule Principal moratorium of 1 year from the date of allotment. At the end of 12 months 24 months 36 months 48 months 60 months Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Negotiable Instruments Act, 1881 or a bank holiday) on which banks are open for general business in Mumbai. If the Coupon Payment Date and/or Redemption Date falls on a non-Business Day, the payment shall be made by the Company on the immediately preceding Business Day, which becomes the Coupon Payment Date for that Coupon payment. Governing Law Indian law The New NCD issuance documents will be in the same format as agreed between the Steering Committee and the Resolution Applicant for SPV NCDs. (iv) The Debenture Trustee shall release the SPV NCD Security and file all necessary forms with the ROC for recording such release immediately upon creation of the New NCD Security. (v) Within 30 (thirty) days from the Merger becoming effective, the Financial Creditors and/or their security trustee/agents shall first file necessary filings/forms with such Governmental Authority as may be required to reflect the aforesaid assignment and record issuance of New NCDs, creation of new charge for New NCD Security and release of charge of SPV NCD Security, including with the Registrar of Companies. It is clarified that the charge created for SPV NCD Security shall be relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) pending at different levels and provide waiver from Tax dues (including those arising out of assessment claims) including interest and penalty on such litigations and proceedings. (e) The respective authorities to consider providing relief from applicability of and payment of Taxes including under the provisions of the Goods and Services Taxes Act, 2017 which may arise as a result of implementation of the Plan either on the Resolution Applicant or the Corporate Debtor or any other Person who is likely to be impacted due to implementation of the Plan. (f) All Governmental Authorities to waive the non-compliances of the Corporate Debtor prior to the Effective Date, including but not limited to the Companies Act, 2013, Foreign Exchange Management Act, 1999 and Income Tax Act 1961 and all proceedings pending before judicial/quasi-judicial/administrative authorities to be withdrawn. (g) Upon approval of the Plan by the NCLT, all claims and proceedings initiated by the Financial Creditors against the Corporate Debtor and its officers/directors (including the winding up petitions filed against the Corporate Debtor and recovery proceedings initiated under the SARFAESI Act) shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors, will be deemed to have been written off in full against a NIL value (n) Notwithstanding the terms of any relevant agreements with third parties, the prior approval of such counterparties shall not be required to be obtained for change in control/constitution of the Corporate Debtor pursuant to the terms of this Plan and such counterparties: (i) shall waive all objections/liabilities of the Corporate Debtor arising out of the initiation of corporate insolvency resolution/bankruptcy proceedings involving the Corporate Debtor, appointment of the Resolution Professional and in respect of the implementation of this Plan; (ii) shall waive the right to suspend these agreements due to any previous delays/failures by the Corporate Debtor to make payments under such agreements; and (iii) shall not terminate the relevant agreements or take any adverse actions against the Corporate Debtor. (o) All Permits and licenses of the Corporate Debtor which are due to expire before the Effective Date or within 5 months thereafter, shall be renewed without any further charges being payable by the Corporate Debtor or the Resolution Applicant. The Governmental Authorities shall provide reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere no default or liabilities accrued or to be accrued. In relation to the same, any procedural requirements required to be fulfilled solely by the Company (and not by any of its successors), shall be deemed to be fulfilled by the Company. The aforesaid is without prejudice to the right of termination available with each of the contracting parties under the respective contracts or Applicable Law. (r) Each asset (including properties, whether freehold, leasehold or license basis) of the Company shall be vested in the Company free and clear of all Encumbrances from the Effective Date. (s) With effect from the Effective Date, all the Permits held or availed of by, and all rights and benefits that have accrued to, the Company shall without any further act, instrument or deed be transferred to, and vest in, or be deemed to have been vested in, and be available to, the Company so as to become as and from the Effective Date, the Permits, estates, assets, rights, title, interests and authorities of the Company and shall remain valid, effective and enforceable on the same terms and conditions to the extent permissible in Applicable Laws. (t) From the date of NCLT according its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bidding of new orders a) EMD requirement 50% of these EMD's will get released in the same financial year and balance 50% will get released in the next financial year. Released EMDs will be further utilized for bidding for new order book. b) ABG requirement This ABG will be released over four years. (1st year - 20%, 2nd year - 35%, 3rd year - 30% and fourth year - 15%). All Advance Bank guarantees have been considered to be released and utilized for the new projects c) PBG requirement Performance Guarantee in the form of Bank Guarantee for an amount equivalent to 10% of the Contract Price. d) Mobilization Advance Mobilization Advance, not exceeding 10% of contract value shall be provided to the Contractor subject to furnishing the Performance 3. Other Profit and Loss and Balance Sheet Assumptions: a) The overall EBITDA margin of 12% between FY20 to FY24 b) Operating cost has been assumed at 79% c) Office Employee and Admin expenses has been assumed at 5% and 4% of revenue respectively. d) BG Commission cost - 1% p.a. e) Maintenance capex is assumed as 5% of net WDV value of Plant and Machinery FY21 onwards. 4. Working capital Assumptions 5. NCD Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reorganization of share capital of the Transferee Company; and PART IV deals with the general terms and conditions applicable to this Scheme and the dissolution of the Transferor Company. In terms of the effectiveness of the scheme it shall be deemed that Part II will be deemed to be effective prior to Part III of the scheme. Further, the aforesaid parts of the scheme are not to be treated as independent and severable. 4. OPERATION OF THE SCHEME The reduction of share capital of the Transferee Company, prior to the amalgamation will cancel the shareholding of the existing shareholders of Transferee Company and the subsequent amalgamation of the Transferor Company with Transferee Company will combine the business activities and operations of the Transferor Company and the Transferee Company into a single company with effect from the Scheme Appointed Date (defined hereinafter) and shall be in compliance with the provisions of the Income Tax Act, 1961, including Section 2(1B) or any amendments thereto. Pursuant to the amalgamation, Transferee Company shall issue and allot shares to the shareholders of Transferor Company in the manner provided in Clause 15 as consideration f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denoting singular shall include plural and vice versa; 6.1.2 headings and bold typeface are only for convenience and shall be ignored for the purposes of interpretation; 6.1.3 references to the word "include" or "including" shall be construed without limitation; 6.1.4 a reference to an article, clause, section, paragraph or schedule is, unless indicated to the contrary, a reference to an article, clause, section, paragraph or schedule of this Scheme; 6.1.5 unless otherwise defined, the reference to the word "days" shall mean calendar days; 6.1.6 references to dates and times shall be construed to be references to Indian dates and times; 6.1.7 reference to a document includes an amendment or supplement to, or replacement or novation of, that document; and 6.1.8 word(s) and expression(s) elsewhere defined in the Scheme will have the meaning(s) respectively ascribed to them. 7. SHARE CAPITAL 7.1 The authorised, issued, subscribed and paid-up share capital of the Transferee Company as on 31st March 2018 is as under: 7.2 The authorised, issued, subscribed and paid-up share capital of the Transferor Company as on 31st March 2018 is as under: There is no capital str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested. The title to such property shall be deemed to have been mutated and recognised as that of the Transferee Company; 9.1.2 all other movable properties of the Transferor Company, including investments in shares (including subsidiaries), mutual funds, bonds and any other securities, sundry debtors, outstanding loans and advances, if any, recoverable in cash or in kind or for value to be received, bank balances and deposits, if any, with Government, semi-Government, local and other authorities and bodies, customers and other persons, shall without any further act, instrument or deed, pursuant to the order of the NCLT and by operation of law become the property of the Transferee Company, and the title thereof together with all rights, interests or obligations therein shall be deemed to have been mutated and recorded as that of the Transferee Company. All investments of the Transferor Company shall be recorded in the name of the Transferee Company by operation of law as transmission in favour of the Transferee Company as a successor in interest and any documents of title in the name of the Transferor Company shall also be deemed to have been mutated and recorded in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eements") and all such Agreements and all interests therein shall remain in full force and effect against or in favour of the Transferee Company and shall be binding on and be enforceable by and against the Transferee Company as fully and effectually as if the Transferee Company had at all material times been a party thereto. The Transferee Company, if so required, shall provide certified copies of the order of NCLT sanctioning the Scheme to the counter parties to the Agreements for information purposes and such party or authority shall make and duly record the necessary substitution or endorsement in the name of the Transferee Company as successor, pursuant to such orders without any break in the validity and enforceability of such Agreement. However, till the time such substitution/endorsement is effected, the Transferee Company shall always be deemed to a party to all such Agreements and be allowed to operate in the name and style of the Transferor Company. It is hereby clarified that all rates, fees, etc. paid by the Transferor Company till the Scheme Appointed Date shall be considered paid by or for the Transferee Company and shall be considered part of total sum payable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Company shall stand dissolved in terms of clause 21 of the Scheme and that the Transferee Company shall for the limited purpose of this clause be authorised to execute any instruments or documents or do all the acts and deeds as may be required in the name of the Transferor Company. 9.5 Notwithstanding any provision to the contrary, until any property, asset, license, approval, permission, contract, agreement and rights and benefits arising therefrom are transferred, vested, recorded, effected and/or perfected, in the records of the Trade Marks Registry or with the relevant Government agencies, regulatory bodies or otherwise, in favour of the Transferee Company, the Transferee Company is deemed to be authorized to enjoy the property, asset or the rights and benefits arising from the license, approval, permission, contract or agreement as if it were the owner of the property or asset or as if it were the original party to the license, approval, permission, contract or agreement. 9.6 Notwithstanding any provision to the contrary, upon the Scheme Appointed Date and until the trademarks, copyright, owned property, leasehold property and related rights thereto, license/right to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the National Company Law Tribunal, shareholders and creditors of both the companies shall be deemed to have resolved and accorded all relevant consents under the Act or the Code or other applicable laws or otherwise to the same extent applicable in relation to this Scheme and all related matters set out hereto. 10. EMPLOYEES 10.1 On the Scheme becoming effective, all employees of the Transferor Company in service on the Scheme Appointed Date shall be deemed to have become employees of the Transferee Company without any break in their service and on the basis of continuity of service and the terms and conditions of their employment with the Transferee Company shall not be less favorable than those applicable to them with reference to the Transferor Company on the Scheme Appointed Date. It is hereby clarified that the accumulated balances, if any, standing to the credit of the employees in the existing provident fund, gratuity fund and superannuation fund of which the employees of the Transferor Company are members shall be transferred to such provident fund, gratuity fund and superannuation fund of the Transferee Company or to be established and caused to be recognized by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnmental, statutory or regulatory bodies) for the purpose of carrying on the business of the Transferor Company, and in relation thereto, and those relating to tenancies, privileges, powers, facilities of every kind and description of whatsoever nature in relation to the Transferor Company, or to the benefit of which the Transferor Company may be eligible and which are subsisting or having effect immediately before this Scheme coming into effect, shall by endorsement, delivery or recordal or by operation of law pursuant to the order of the NCLT sanctioning the Scheme, and on this Scheme becoming effective be deemed to be contracts, deeds, bonds, Agreements, indemnities, guarantees or other similar rights or entitlements whatsoever, schemes, arrangements and other instruments, permits, rights, entitlements, licenses (including the licenses granted by any Governmental, statutory or regulatory bodies) of the Transferee Company. Such properties and rights described hereinabove shall stand vested in the Transferee Company and shall be deemed to be the property and become the property by operation of law as an integral part of the Transferee Company. Such contracts and properties describ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the Transferee Company automatically without the requirement of any specific approval or permission as an integral part of the Scheme. 13.2 Income taxes of whatsoever nature including advance tax, self-assessment tax, regular assessment taxes, tax deducted at source, dividend distribution tax, minimum alternative tax, wealth tax, if any, paid by The Transferor Company shall be treated as paid by the Transferee Company and it shall be entitled to claim the credit, refund, adjustment for the same as may be applicable. Minimum alternative tax credit available to the Transferor Company under the Income-tax Act, 1961, if any, shall be available to the Transferee Company. 13.3 The Transferee Company is expressly permitted to revise and file its income tax returns and other statutory returns, including tax deducted/collected at source returns, service tax returns, excise tax returns, sales tax/goods and services tax returns, as may be applicable and has expressly reserved the right to make such provision in its returns and to claim refunds, advance income-tax credits, credit of tax deducted at source, credit of foreign taxes paid/withheld, etc., if any, as may be required for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically cancelled and be of no effect. Wherever applicable, the Transferee Company may, instead of requiring the surrender of the share certificates of the Transferor Company, directly issue and dispatch the new share certificates of the Transferee Company. 15. ACCOUNTING TREATMENT Upon the coming into effect of this Scheme, the amalgamation of the Transferor Company with the Transferee Company shall be accounted for by the Transferee Company with effect from the Scheme Appointed Date by applying the guidance for Reverse Acquisition as specified in Indian Accounting Standard 103: Business Combinations" notified under section 133 of the Companies Act 2013, read with Rule 7 of the Companies (Indian Accounting Standard) Rules, 2015. * For the purpose of reverse acquisitions, Transferor Company will be regarded as the acquirer ("Accounting Acquirer") and Transferee Company will be regarded as Accounting Acquirer. * All assets and liabilities of the Transferee Company shall be recorded in the books of account of Transferee Company at their fair values on the Scheme Appointed Date. * Purchase consideration in form of equity and preference share capital of Transferee Company, sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this aggregate amount of Admitted Debt, the Resolution Applicant has proposed to pay the following consideration to the Financial Creditors for full and final discharge of the Financial Creditors and for assignment of entire Claims and Admitted Debt of Financial Creditors to the Indian SPV: a. Upfront Consideration equivalent to INR 420 Crores (Indian Rupees Four Hundred Twenty Crores) (less payment towards (i) Balance CIRP Costs; and (ii) Potential Workmen's Dues, if any) within 30 Business Days; and. b. Deferred Consideration equivalent to INR 480 Crore (Indian Rupees Four Hundred Eighty Crores) in the form of unlisted NCDs." 16. It is further submitted that the Deferred Consideration of INR 480 Crores (Indian Rupees Four Hundred Eighty Crores) as secured and unlisted NCDs are to be paid over a period 5 years at a coupon of 8% p.a., as shown in Annexure 2 of the resolution plan which has been produced at page 54 of this order. 17. As far as the dues of Operational Creditors are concerned, the resolution plan provides that: "In addition, according to List of Creditors, total claims filed by the operational creditors of the Company amount to INR 3,696.87 Crores. Out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constructions Private Limited which is required to be created in terms of Resolution Plan. It states that in accordance with Annexure 2 (Structure of Acquisition of Control over the Company by the Resolution Applicant) and Annexure 12 (Scheme of Amalgamation), Roypar Constructions Private Limited has to be merged with the Corporate Debtor as contemplated. The details of the SPV are set out below: 23. The Resolution Applicant has sought extinguishment of all claims along with abatement of any related legal proceeding including criminal proceedings. Furthermore, the Resolution Applicant seeks waiver of outstanding statutory dues and other claims as on the date of approval of the Resolution Plan. The exemption is also sought from the statutory dues of the Central Board of Direct Taxes (CBDT) and under the Stamps Act, from the levy of stamp duty and fees applicable in relation to this plan and its implementation. 24. The relief sought is hereby allowed by this Bench in view of the judgment of the respected Coordinate Bench at Chandigarh and Chennai in the matter of State Bank of India V. MOR Farms Private Limited [CA No. 71/2018 & 171/2018 in CP (IB) No. 51/Chd/Hry/2017], order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Annexure A-25 stands approved granting waiver in respect of the past tax dues to the Government which may arise in future and exempt the Resolution Applicant from the export obligations, which the corporate debtor had entered." The relevant extract from the judgment of Chennai Bench is given below: "22. The Corporate Debtor shall be entitled to carry forward all accumulated business losses and unabsorbed depreciation as "set out" in the resolution Plan. All the statutory duties including taxes/cess/interest/penalty and other liabilities due to the operational creditors shall stand satisfied/waived off. The reason for these waivers and abatement is that the Operational Creditors and Financial creditors except those in whose favour the provision is made in the 'Resolution Plan' would not get anything in the event of liquidation of the Corporate Debtor, as per the waterfall mechanism provided under Section 53 of the I&B Code, 2016. Moreover, this is with a view to implement the Resolution Plan successfully as approved by the CoC." 25. On hearing the submissions made by the Ld. Counsel for the resolution Professional, the Resolution Plan in hand satisfies the minimum thr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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