Deed of company arrangement

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1 Dated Deed of company arrangement Parties Martin Bruce Jones and Darren Gordon Weaver S&N Civil Constructions Pty Ltd (Administrators Appointed) ACN Central Systems Pty Ltd ACN Stephen John Batchelor Chris McLeod Norton Rose Australia Level 39, BankWest Tower 108 St Georges Terrace PERTH WA 6000 Tel: +61 (0) Our ref:

2 Contents 1 Definitions and interpretation Object of this Deed and Trust Deed Conditions for operation and continued operation Appointment of Deed Administrator Available Property and Fund First Equity Investment Assignment of Company Claims Non-Business Assets Moratorium Non-Participating Creditors Secured Creditor Admissibility of debts or claims Application of Fund Meeting to consider variation or termination Termination Release of Participating Creditors Claims Machinery provisions to give effect to release Ability to access insurance Abandonment by Creditors who do not prove Argyle and Groote Remuneration of Deed Administrator Deed Administrator s indemnity Company to carry on business Officers to assist Member s rights exercisable by Deed Administrator Committee of inspection Exclusion of Prescribed Provisions Further assurance Severability Costs and outlays Governing law and jurisdiction Company s execution APAC-# v1 Norton Rose Australia

3 Deed dated Parties Martin Bruce Jones and Darren Gordon Weaver of C/- Ferrier Hodgson, Level 26, Bankwest Tower, 108 St Georges Terrace, Perth, Western Australia (Deed Administrator) S&N Civil Constructions Pty Ltd (Administrators Appointed) ACN of C/- Ferrier Hodgson, Level 26, Bankwest Tower, 108 St Georges Terrace, Perth, Western Australia (Company) Central Systems Pty Ltd ACN of 46 Edward Street, Osborne Park, Western Australia (CSPL) Stephen John Batchelor of Unit 10, 132 Terrace Road, East Perth, Western Australia (Director) Introduction A B C D E F G On 11 April 2012 the Director as sole director of the Company resolved that, in his opinion, the Company was insolvent, or was likely to become insolvent at some future time, and that an administrator of the Company should be appointed pursuant to section 436A of the Corporations Act On 11 April 2012, the Administrator having consented in writing to an appointment as administrator of the Company and the Administrator s consent not having been withdrawn, pursuant to section 436A of the Corporations Act 2001 the Company, by writing, appointed the Administrator as administrator of the Company. The first meeting of the Company s Creditors pursuant to section 436E of the Corporations Act 2001 was held on 23 April On 8 May 2012 the Supreme Court of Western Australia ordered that the time for convening the second meeting of the Company s Creditors be extended from 10 May 2012 to 17 July The Administrator convened the second meeting of the Company s Creditors pursuant to section 439A of the Corporations Act 2001 on 5 June 2012, giving notice to the Company s Creditors that the second meeting of the Company s Creditors was to be held on 13 June The second meeting of the Company s Creditors pursuant to section 439A of the Corporations Act 2001 was held on 13 June 2012 but adjourned to 26 June On 26 June 2012, and prior to the meeting referred to in Introduction I, at a meeting of eligible employee creditors of the Company convened in accordance with section 444DA of the Corporations Act 2001, the eligible employee creditors of the Company resolved for the purposes of section 444DA(2) that this Deed not include a provision which would otherwise have been required under section 444DA(1) of the Corporations Act APAC-# v1 1 Norton Rose Australia

4 H I J K L M The second meeting of the Company s Creditors pursuant to section 439A of the Corporations Act 2001 was reconvened on 26 June At the second meeting of the Company s creditors reconvened on 26 June 2012, the Company s Creditors resolved pursuant to section 439C of the Corporations Act 2001 that the Company execute a deed of company arrangement consistent with the proposal outlined in the report accompanying the notice of that meeting. By section 444A(2) of the Corporations Act 2001 the Administrator is to be administrator of this Deed insofar as the Company s Creditors did not, by resolution passed at the second meeting, appoint someone else to be administrator of the deed of company arrangement. Pursuant to clause 4.1 of this Deed, the Deed Administrator consents in writing to an appointment as administrator of this Deed. This Deed has been prepared by the Deed Administrator in accordance with section 444A(3) of the Corporations Act 2001 as the instrument setting out the terms of the deed of company arrangement which the Company s Creditors resolved that the Company execute. The purpose of this Deed is to provide for the business, property and affairs of the Company to be administered in a way that maximises the chances of the Company, or as much as possible of its business, continuing in existence, or, if it is not possible for the Company or its business to continue in existence, results in a better return for the Company s Creditors and members than would result from an immediate winding up of the Company. It is agreed 1 Definitions and interpretation 1.1 Definitions In this Deed: (1) Administrator means Martin Bruce Jones and Darren Gordon Weaver both of Level 26, Bankwest Tower, 108 St Georges Terrace, Perth, WA in their capacities as joint and several administrators of the Company pursuant to Part 5.3A of the Corporations Act 2001 for the period commencing on the Relevant Date and concluding on the date which this Deed becomes a deed of company arrangement under section 444B(6) of the Corporations Act 2001; (2) ANZ Plant and Equipment Leases means those Plant and Equipment Leases referred to in Annexure A between the Company and the Secured Creditor and the subject of the Security; (3) Argyle means Argyle Diamonds Ltd ACN ; (4) Argyle Claim means the Claim made by Argyle; (5) Available Property means the property that is to be available to pay Creditors Claims under this Deed as set out in clause 5; (6) Business means the concreting and civil construction contracting business carried on by the Company; APAC-# v1 2 Norton Rose Australia

5 (7) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made; (8) Cash at Bank means the actual positive cash figure as represents the amount of money held by the Company or the Administrator for the purposes of the administration of the Company in any and all bank accounts from time to time; (9) Claim includes a claim, demand, debt, action, proceeding, suit, cost, charge, expense, damage, loss and other liability; (10) Completion Date means 29 June 2012 (or such other date as agreed in writing between the Deed Administrator and CSPL); (11) Court has the meaning set out in section 58AA of the Corporations Act 2001 (for the avoidance of doubt being the definition attributed to the capitalised word Court in that section); (12) Creditor means a person who has a debt payable by or claim against the Company whether present or future, certain or contingent, ascertained or sounding only in damages, the circumstances giving rise to which occurred on or before the Relevant Date; (13) Creditor s Claim means, in relation to a Creditor, the Creditor s debt payable by or claim against the Company whether present or future, certain or contingent, ascertained or sounding only in damages, the circumstances giving rise to which occurred on or before the Relevant Date; (14) Deed means this document, including any schedule or annexure to it; (15) First Equity Investment means the amount of $12.5 million payable by CSPL to the Deed Administrator in accordance with clause 6; (16) Fund means the bank account or accounts established by the Deed Administrator in accordance with clause 5.2 and includes the proceeds for the time being of the account or accounts; (17) Groote means Groote Eylandt Mining Company Pty Ltd ACN ; (18) Groote Claim means the Claim made by Groote; (19) GST means the tax imposed by the GST Law; (20) GST Law means A New Tax System (Goods and Services Tax) Act 1999, all written laws associated with that Act and all rulings associated with that Act which are binding upon the Federal Commissioner of Taxation; (21) Leased Plant and Equipment means the items which are subject to a Plant and Equipment Lease as listed in Annexure A; (22) Non-Business Assets means the items listed in Annexure D which are registered in the Company s name or were purchased using Company funds; (23) Non-participating Creditor means: the employees listed in Annexure B; and APAC-# v1 3 Norton Rose Australia

6 Assetinsure Pty Ltd ACN in respect of the insurance bonds set out in Annexure C; (24) Participating Creditor means a Creditor other than: (c) a Non-participating Creditor; the Secured Creditor; or a Creditor which is party to a Plant and Equipment Lease in respect of Leased Plant and Equipment other than the ANZ Leased Plant and Equipment. (25) Participating Creditor s Claim means, in relation to a Participating Creditor, the Participating Creditor s debt payable by or claim against the Company whether present or future, certain or contingent, ascertained or sounding only in damages, the circumstances giving rise to which occurred on or before the Relevant Date, but, for the purpose of distribution of dividends to Participating Creditors, excludes any part of that debt or claim that constitutes a Priority Creditor s Claim; (26) Plant and Equipment means all plant, equipment, machinery, tools, furniture, removable fixtures, fittings and motor vehicles which are owned by the Company and used in the Business as listed in Annexure E; (27) Plant and Equipment Leases means the hiring arrangements, including leases, hire purchase agreements and conditional purchase agreements, entered into by the Company or S&N Plant as listed in Annexure A; (28) Prescribed Provisions means those provisions which are prescribed for the purposes of section 444A(5) of the Corporations Act 2001, namely, the provisions set out in Schedule 8A of the Corporations Regulations 2001; (29) Priority Creditor means: a Participating Creditor with a debt payable by or claim against the Company as at the Relevant Date which, had the Company been wound up with the Relevant Date being the day on which the winding up was taken to have begun, would have been a debt or claim which must be paid in priority to all other unsecured debts or claims in accordance with section 556 or section 560 of the Corporations Act 2001; and the Administrator, the Deed Administrator and any person who is not already a person falling within clause 1.1(29) with a debt payable by or claim against the Company properly incurred by the Administrator or the Deed Administrator; (30) Priority Creditor s Claim means: in relation to a Priority Creditor within clause 1.1(29) the Priority Creditor s debt payable by or claim against the Company as at the Relevant Date which, had the Company been wound up with the Relevant Date being the day on which the winding up was taken to have begun, would have been a debt or claim which must be paid in priority to all other unsecured debts or claims in accordance with section 556 or section 560 of the Corporations Act 2001; in relation to a Priority Creditor within clause 1.1(29) the Priority Creditor s debt payable by or claim against the Company which, had the Company been wound up with the Relevant Date being the day on which APAC-# v1 4 Norton Rose Australia

7 the winding up was taken to have begun, would have been a debt or claim within section 556(1), (c), (dd) or (de) of the Corporations Act 2001 which must be paid in priority to all other unsecured debts or claims in accordance with section 556 of the Corporations Act 2001; (31) Receivables means the trade debts owing to the Company in respect of anything done up to and including 25 May 2012, whether or not they have been invoiced at the date of this Deed and whenever those trade debts have been approved for payment, provided that if the Completion Date is a date other than 29 June 2012 (by agreement between the Deed Administrator and CSPL in accordance with the definition of Completion Date), the Deed Administrator and CSPL may agree that the Receivables include trade debts owing to the Company in respect of work done up to and including a date to be agreed after 25 May 2012; (32) Relevant Date means 11 April 2012; (33) S&N Plant means S&N Plant & Equipment Pty Ltd ACN ; (34) S&N Plant and Equipment Leases means those Plant and Equipment Leases referred to in Annexure A entered into by S&N Plant; (35) Second Equity Investment means the amount payable by the Director to the Deed Administrator in accordance with clause 3 of the Side Deed; (36) Secured Creditor means Australia and New Zealand Banking Group Ltd ACN (including in its capacity trading as Esanda) and Esanda Finance Corporation Limited ACN (as applicable prior to the merger of Australia and New Zealand Banking Group Ltd and Esanda Finance Corporation Limited in August 2009); (37) Secured Creditor s Claim means, in relation to the Secured Creditor, the Secured Creditor s debt payable by or claim against the Company; (38) Security means any one or more of the mortgage debenture dated 4 January 2006, the mortgage debenture dated 22 June 2009 granted by the Company in favour of what was then Esanda Finance Corporation Limited ACN and the ANZ Plant and Equipment Leases granted by the Company, as grantor, in favour of the Secured Creditor, as the secured party, being registration numbers , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , and on the Personal Property Securities Register; (39) Security Interest means any interest held as security for the payment of a monetary obligation or the performance of any other obligation, including: a mortgage, charge, encumbrance, lien, pledge or hypothecation; and a bill of sale, assignment, title retention arrangement, trust or power held as security; (40) Settlor means Jamie George Michael Ogilvie, being the settlor of the Trust; APAC-# v1 5 Norton Rose Australia

8 (41) Side Deed means the deed of that name between the Trustee, the Company and the Director substantially in the form annexed to this Deed as Annexure I; (42) Stadawn means Stadawn Pty Ltd ACN ; (43) Trust means the trust established by the Trust Deed; (44) Trust Deed means the deed entitled Creditors Trust Deed between the Trustee and the Settlor substantially in the form annexed to this Deed as Annexure F to be executed on or about the date of this Deed; (45) Trust Property means the fund created pursuant to clause 2 of the Trust Deed; (46) Trustee means Martin Bruce Jones and Darren Gordon Weaver both of Level 26, Bankwest Tower, 108 St Georges Terrace, Perth, WA in their capacities as trustees of the Trust; (47) Wedge means Wedge Street Investments Pty Ltd ACN ; (48) Wedge Claim means the Company s Claim against Wedge; and (49) Wedge Property means the property at Wedge Street, Port Hedland, Western Australia, being the whole of the land contained in Certificate of title Volume 2014 Folio 790 registered in the name of Wedge. 1.2 Interpretation (1) Reference to: (c) (d) (e) one gender includes the others; the singular includes the plural and the plural includes the singular; a person includes a body corporate; a party includes the party s executors, administrators, successors and permitted assigns; a statute, regulation or provision of a statute or regulation (Statutory Provision) includes: (i) (ii) (iii) that Statutory Provision as amended or re-enacted from time to time; a statute, regulation or provision enacted in replacement of that Statutory Provision; and another regulation or other statutory instrument made or issued under that Statutory Provision; (f) (g) money is to Australian dollars, unless otherwise stated; and the Administrator, the Deed Administrator or the Trustee, if the Administrator, the Deed Administrator or the Trustee (respectively) consists of more than 1 person, is to each of them separately and any 2 or more of them jointly. (2) Including and similar expressions are not words of limitation. APAC-# v1 6 Norton Rose Australia

9 1.3 Parties (3) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning. (4) Headings and any table of contents or index are for convenience only and do not form part of this Deed or affect its interpretation. (5) A provision of this Deed must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Deed or the inclusion of the provision in the Deed. (6) If an act must be done on a specified day, which is not a Business Day, it must be done instead on the next Business Day. (1) If a party consists of more than 1 person, this Deed binds each of them separately and any 2 or more of them jointly. (2) An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly. (3) A party that is a trustee is bound both personally and in its capacity as a trustee. 1.4 Incorporation of definitions Unless the contrary intention appears, where a word or expression is defined or given meaning in the Corporations Act 2001 or the Corporations Regulations 2001, the word or expression has the same meaning when used in this Deed. 1.5 Application of Corporations Act 2001 and Corporations Regulations 2001 provisions Where any provision of the Corporations Act 2001 or the Corporations Regulations 2001 is incorporated into or is said to apply to this Deed, that provision is incorporated into or applies to this Deed with all modifications as are necessary to give effect to Part 5.3A of the Corporations Act 2001 and this Deed, and as if references to the liquidator were references to the Deed Administrator, references to the relevant date were references to the Relevant Date, and references to winding up were references to the arrangement effected by this Deed. 1.6 Goods and services tax Unless the contrary intention appears, except in relation to a dividend to be distributed under this Deed, where for the purposes of the GST Law an amount payable under this Deed is consideration for a taxable supply made after the Relevant Date in respect of which GST will be payable, the amount payable under this Deed is adjusted to the amount calculated in accordance with the following formula: where: Adjusted Amount = Original Amount x GST Uplift (1) Original Amount is the amount that would be payable under this Deed but for this clause 1.6; and (2) GST Uplift is the proportion that the price of a taxable supply bears to the value of the taxable supply as provided under the GST Law (at present 11/10). APAC-# v1 7 Norton Rose Australia

10 2 Object of this Deed and Trust Deed 2.1 The object of this Deed and the Trust Deed is that upon execution of the Trust Deed and termination of this Deed in accordance with clause 15.1(1): (1) Participating Creditors are to obtain entitlements under the Trust Deed equivalent to the Participating Creditors previous entitlements under this Deed prior to termination of this Deed in accordance with clause 15.1(1); (2) the Trustee under the Trust Deed is to have duties and obligations in relation to the Trust Property and the Participating Creditors and the Secured Creditor which are set out in the Trust Deed and not inconsistent with the terms of clause 2.1(1) above. 2.2 The Creditors consent to and agree to be bound by the arrangement effected by this Deed and the Trust Deed. 3 Conditions for operation and continued operation 3.1 There are no conditions that affect the coming into operation of this Deed or any aspect of it. 3.2 The operation of this Deed commences from the time when this Deed becomes a deed of company arrangement pursuant to section 444B(6) of the Corporations Act The continued operation of this Deed is subject to all of the following conditions being satisfied or waived in accordance with this clause 3 on or before the Completion Date: (1) all and any documents being negotiated, agreed and executed between the Secured Creditor, CSPL, the Director, the Company and any other persons necessary to effect the following arrangements: (c) (d) (e) the ANZ Plant and Equipment Leases remaining in effect; the liability of the Secured Creditor in respect of the bank guarantees set out in Annexure G remaining in effect and being the subject of facilities with the Company; reduction of the Company s liability to the Secured Creditor to the extent of the First Equity Investment; the Secured Creditor waiving any defaults caused by or in relation to the Company s insolvency and the DOCA, against the Company, Stadawn, Wedge and the Director; the retention by the Secured Creditor of the existing, or grant to the Secured Creditor of new: (i) (ii) registered general security agreement over all of the Company s assets; specific security agreements over those of the Leased Plant and Equipment which are presently financed under the ANZ Plant and Equipment Leases; APAC-# v1 8 Norton Rose Australia

11 (iii) (iv) guarantee by CSPL for unpaid facilities already provided by the Secured Creditor and any new facilities to be provided by the Secured Creditor to the Company; and a limited guarantee from Wedge in the amount of the Second Equity Investment, and a registered real property mortgage and/or general security agreement over all of Wedge s assets in favour of the Secured Creditor (both to be released and discharged upon payment of the Second Equity Investment); (f) (g) (h) (i) (j) the continued provision by the Secured Creditor of debt finance facilities to Stadawn and the Director on terms consistent with those entities current facilities with the Secured Creditor (estimated at $5.5m) subject to an asset realisation agreement to be agreed between the Secured Creditor and the Director; the Secured Creditor continuing to hold existing registered real property mortgages listed in Annexure H as security for the facilities referred to in clause 3.3(1)(f), and the ongoing facilities made available by the Secured Creditor to the Company; the consent by the Secured Creditor to the grant by the Company of, and the entry into a priority deed on terms acceptable to CSPL and the Secured Creditor in respect of, the general security agreement referred to in clause 6.2(2); to the extent any assets forming the Fund and the Available Property are encumbered by the Security held by the Secured Creditor, the release by the Secured Creditor of those assets from that Security; and subject to clause 3.3(1)(f), the release by the Secured Creditor of unlimited guarantees of the Company s liability held by the Secured Creditor, granted by Stadawn and the Director; (2) the Secured Creditor otherwise agreeing the necessary amendments to the Company s facilities and the Security on terms satisfactory to CSPL to give effect to the terms of this Deed; (3) no further calls being made by any of the Company s clients on any outstanding bank guarantees; (4) all the Company s finance commitments in respect of the Plant and Equipment Leases due in or before June 2012 being paid by the Administrator or Deed Administrator as the case may be; (5) the Director providing the Deed Administrator and the Trustee with a sworn valuation or offer to purchase the Wedge Property in an amount of no less than $6.0 million; (6) Wedge providing the Trustee with a guarantee and second ranking general security agreement and/or registered real property mortgage over all of Wedge s present and after acquired assets and undertaking as security for the Second Equity Investment ; (7) CSPL being reasonably satisfied that the value of: the Claims held by employees being Non-Participating Creditors; the Plant and Equipment Leases; APAC-# v1 9 Norton Rose Australia

12 (c) (d) the Plant and Equipment; and receivables of the Company other than the Receivables, are not substantially different from (or are sufficiently proximate to) the amounts attributed to them in the table in Annexure J; (8) the novation by S&N Plant of the S&N Plant and Equipment Leases to the Company (or CSPL if agreed in writing between S&N Plant and CSPL) for nominal consideration; (9) the Deed Administrator: continuing to operate the Business as a going concern in the ordinary and usual course in a manner reasonably satisfactory to CSPL; subject to clause 23, authorising any one or more persons nominated in writing by CSPL to participate in the management of the Company; (10) CSPL being reasonably satisfied that no significant adverse effects have occurred in respect of the Company s business between 1 June 2012 and the execution of this Deed; (11) all of the respective parties execute the Trust Deed and the Side Deed; (12) upon the written request of CSPL, the Deed Administrator on behalf of the Company terminating any Company contract specified by CSPL; and (13) any event of default under a Contract which the Company intends to perform after the Completion Date entitling the other party to terminate that contract being waived by that party and otherwise not relied upon. 3.4 Each condition in clause 3.3, other than those set out in paragraphs 3.3(5) and 3.3(6) is for the sole benefit of CSPL which may waive it by giving notice in writing to the Deed Administrator. 3.5 The conditions in clauses 3.3(5) and 3.3(6) are for the sole benefit of the Deed Administrator, who may waive them by giving notice in writing to CSPL. 3.6 If any condition is not satisfied or waived within the time specified in clause 3.3, then the Deed Administrator must follow the procedure in clause Each party must at its own cost do everything reasonably necessary on its part to procure satisfaction of the conditions as quickly as possible. 4 Appointment of Deed Administrator 4.1 The Company appoints the Deed Administrator, and the Deed Administrator accepts an appointment, as the administrator of this Deed. 4.2 The Deed Administrator is and acts as the agent of the Company. 4.3 Save for the Argyle Claim and the Groote Claim, despite clause 4.2: (1) where under this Deed there is any obligation owed to the Company the Deed Administrator may enforce the obligation: in the Deed Administrator s name; and APAC-# v1 10 Norton Rose Australia

13 as a separate and distinct obligation owed to the Deed Administrator to which any defences or Claims that would have been available had the Company or any other person been pursuing the Claim (including any claim of reimbursement, indemnity, contribution or set off) will not be available, save to say that this clause 4.3(1) will not affect, compromise or otherwise prejudice the ability of any Participating Creditor to: (i) (ii) exercise, and assert as against the Company or the Deed Administrator (as the case may be) and whether by way of set-off, defence or counterclaim, any such right of set off, defence or counterclaim that the Participating Creditor would have been entitled to exercise and assert had the Company been wound up with the Relevant Date being the day on which the winding up was taken to have begun; and exercise and assert any right of set off, defence or counterclaim otherwise provided for by this Deed or the Trust Deed; and (2) where under this Deed there is any guarantee or indemnity in respect of any obligation (including, for the avoidance of doubt, a guarantee or indemnity in respect of a principal obligation owed by the Company) the Deed Administrator may nevertheless enforce the guarantee or indemnity: in the Deed Administrator s name; as a separate and distinct obligation owed to the Deed Administrator to which any defences or Claims that would have been available had the Company or any other person been pursuing the Claim (including any claim of reimbursement, indemnity, contribution or set off) will not be available, save to say that this clause 4.3(2) will not affect, compromise or otherwise prejudice the ability of any Participating Creditor to: (i) (ii) exercise, and assert as against the Company or the Deed Administrator (as the case may be) and whether by way of set-off, defence or counterclaim, any such right of set off, defence or counterclaim that the Participating Creditor would have been entitled to exercise and assert had the Company been wound up with the Relevant Date being the day on which the winding up was taken to have begun; and exercise and assert any right of set off, defence or counterclaim otherwise provided for by this Deed or the Trust Deed; and (c) to the extent that the guarantee or indemnity is not in respect of a principal obligation owed to the Deed Administrator, the Deed Administrator may enforce the guarantee and indemnity on behalf of the principal obligee as if the Deed Administrator was the principal obligee. 4.4 For the purpose of administering this Deed the Deed Administrator has all the powers specified in clause 2 of the Prescribed Provisions, and also (without limitation) the following powers: (1) to sell assets in the ordinary course of business; (2) to realise and administer assets available for the payment of Creditors Claims in accordance with the provisions of this Deed; APAC-# v1 11 Norton Rose Australia

14 (3) to assist in the capital raising by the Company, including convening shareholders' meetings and issuing new shares (subject to shareholders' approval), removing directors and appointing directors; (4) to remove from office a director of the Company and appoint a person as a director of the Company, whether to fill a vacancy or not; (5) to bring, prosecute and defend in the name and on behalf of the Company, or in the name of the Deed Administrator any action, suits or proceedings relevant to the obligations under this Deed; (6) to convene and hold meetings of the Creditors and members of the Company for any purpose authorised by the Deed Administrator; (7) to make interim or other distributions of property available for the payment of Creditors Claims as provided in this Deed; (8) to appoint a solicitor, accountant or other professionally qualified person to assist the Deed Administrator; (9) to permit any person authorised by the Deed Administrator to operate any account in the name of the Company; (10) to liaise with any government or regulatory body (including the Australian Securities and Investments Commission) for any purpose associated with the business or affairs of the Company; (11) to do all things or execute all documents or deeds in the name of and on behalf of the Company; (12) to execute and do all things reasonably necessary or convenient to be done to give effect to this Deed; and (13) to do anything that is incidental to exercising a power set out in this Deed or the Corporations Act Any debts payable by or Claims against the Company the circumstances giving rise to which occur after the execution of this Deed are not liabilities of the Deed Administrator. 5 Available Property and Fund 5.1 The property that is available to pay Creditors Claims under this Deed and the Trust Deed, and forms the Available Property, is the following: (1) the First Equity Investment in accordance with clause 6; (2) the benefit of the Second Equity Investment once made under the Side Deed, and until then, the Wedge Claim in accordance with clause 7; (3) those of the Company s Claims and the proceeds of realising the Company s Claims dealt with in accordance with clause 7, and the benefit of a portion of the proceeds of the Company s Claims referred to in clause 4.1 of the Side Deed; (4) the Non-Business Assets and the proceeds of realising the Non-Business Assets in accordance with clause 8; (5) the Cash at Bank; and APAC-# v1 12 Norton Rose Australia

15 (6) the Receivables, and includes, for the avoidance of doubt, the Fund. 5.2 The Deed Administrator is to open and conduct one or more bank accounts in the name of the Company. This forms the Fund. 5.3 Subject to this Deed, all amounts received from realisation of the Available Property, and any other amount received by the Deed Administrator in connection with the Company, must be paid into the Fund. 5.4 The Fund is not an asset of the Company and may only be applied in accordance with this Deed. However, subject to clause 5.5, if the termination of this Deed is followed by the winding up of the Company the Fund is to be applied in payment of debts and claims against the Company observing the priorities provided for in Subdivision D of Division 6 of Part 5.6 of the Corporations Act Despite clause 5.4, if this Deed terminated otherwise than in accordance with clause 15.1(1), any part of the First Equity Investment that has not been paid or distributed in accordance with this Deed: (1) does not form part of the Fund; (2) is not an asset of the Company; (3) is not to be applied in payment of debts and claims against the Company observing the priorities provided for in Subdivision D of Division 6 of Part 5.6 of the Corporations Act 2001; and (4) is held on trust by the Deed Administrator for the benefit of CSPL 6 First Equity Investment 6.1 Subject to clause 3, on or before the Completion Date CSPL on behalf of the Company must pay the First Equity Investment to the Secured Creditor without deduction for the purpose of part payment of the Company s liability to the Secured Creditor. 6.2 In consideration for CSPL paying the First Equity Investment to the Secured Creditor on the Company s behalf: (1) the Deed Administrator must procure the transfer of all of the issued capital in the Company (being 2 ordinary shares and 2 B class shares) from the Director to CSPL for nominal consideration; (2) the Company must and the Deed Administrator must cause the Company to grant CSPL a second ranking general security agreement over all of the Company s present and after acquired assets and undertaking to secure repayment of the loan described in clause 6.4; and (3) CSPL may in CSPL s absolute discretion convert the First Equity Investment into shares in the Company by way of convertible note or such other mechanism as it may advise the Deed Administrator upon satisfaction of the conditions in clause Without limiting clauses 25.1 and 25.2, and in addition to the Deed Administrator s rights under those clauses, for the purposes of section 444GA of the Corporations Act 2001, the Director in his capacity as a shareholder of the Company consents by his execution of this Deed to the transfer contemplated in clause 6.2(1). APAC-# v1 13 Norton Rose Australia

16 6.4 Subject to clause 5.5 notwithstanding the description of the First Equity Investment as such, the parties acknowledge that unless and until any conversion in accordance with clause 6.2, the First Equity Investment constitutes a loan by CSPL to the Company (which will not accrue interest unless otherwise agreed between the Company and CSPL) which is repayable on reasonable commercial terms to be agreed, and otherwise: (1) while this Deed is in operation, only if there is a breach by the Company or the Deed Administrator of this Deed or if there is a failure of one or more of the conditions in clause 3.3; and (2) after termination of this Deed in accordance with clause 15.1(1), not for a period of three (3) months, but thereafter upon demand. 7 Assignment of Company Claims 7.1 Subject to satisfaction of the conditions in clause 3.3, on or before the Completion Date, save for the Company's Claims against Argyle and Groote, the Company must and the Deed Administrator must cause the Company to assign to the Trustee, and the Trustee must accept the assignment from the Company of all of the Company s right, title and interest in, and benefit arising from all the Company s Claims: (1) including the Company's Claims against: (c) Wedge; Kestrel Coal Pty Ltd ACN or any other person in respect of works performed and completed by the Company under contracts numbered KME-AC02-CN-PR-6100 Surface Civil Works and KME-E001- CN-PR-6100 CHPP-Civils ; and TTA Accounting Pty Ltd ACN in respect of accounting services rendered to the Company on or before the Relevant Date; but (2) excluding any Claims the Company has in relation to continuing contract which the Company intends to perform after termination of this Deed. 7.2 Immediately upon, and to effect, the assignment of the Company s Claims to the Trustee in accordance with clause 7.1 the Company must and the Deed Administrator must cause the Company to deliver a duly executed notice of assignment of debt to each of the relevant entities in clause 7.1 in a form necessary to effect a legal assignment of debt under section 20 of the Property Law Act 1969 (WA). 7.3 The assignment the subject of clause 7.1 takes place subject to the requirements of clause 16.4 and particularly paragraph 16.4(4), so that the Company s Claim assigned to the Trustee is reduced by any amount set off in accordance with clause Non-Business Assets 8.1 Subject to satisfaction of the conditions in clause 3.3, on or before the Completion Date and subject to this clause 8, the Deed Administrator must transfer the Non-Business Assets to the Trustee to be dealt with under the terms of the Trust Deed. 8.2 The Deed Administrator may sell the 2006 Haines Hunter Cruiser referred to in Annexure D for an amount of $100,000, in which case the proceeds of that sale will be considered to be part of the Non-Business Assets for the purposes of this Deed. APAC-# v1 14 Norton Rose Australia

17 8.3 If the Administrator has sold the 2006 Haines Hunter Cruiser referred to in Annexure D prior to the coming into effect of this Deed, the proceeds of that sale will be considered to be part of the Non-Business Assets for the purposes of this Deed. 9 Moratorium 9.1 Until this Deed terminates, a Creditor must not: (1) begin or proceed with any application for an order to wind up the Company; (2) subject to clause 18, without the leave of the Court, and then, only in accordance with such terms as the Court imposes: begin or proceed with a proceeding against the Company or in relation to any of the Company s property or property used or occupied by, or in the possession of, the Company, either in a court or in an arbitration; or begin or proceed with any enforcement process in relation to the Company s property, or property used or occupied by, or in the possession of, the Company; or (3) exercise any right of set off that the Creditor would not have been entitled to exercise had the Company been wound up with the Relevant Date being the day on which the winding up was taken to have begun. For the avoidance of doubt, nothing in this Deed (including, without limitation, clause 4.3(1) and 4.3(2) of this Deed) prevents any person or Creditor from exercising and asserting any right of set off, defence or counterclaim against the Company to which the person or Creditor would have been entitled had the Company been wound up with the Relevant Date being the day on which the winding up was taken to have begun. 9.2 Until this Deed terminates, the Company may plead this Deed in bar to any action, proceeding or suit brought by a Creditor in respect of that Creditor s Claim. 9.3 Until this Deed terminates, the Company, the Company s members and the Company s officers must not begin or proceed with any application for an order to wind up the Company. 9.4 Nothing in this clause 9 limits the operation of section 444D(2) or section 444D(3) of the Corporations Act This clause 9 has effect in addition to, and not in derogation of, section 444E of the Corporations Act Non-Participating Creditors 10.1 This Deed binds the Non-participating Creditors The Creditors Claims of Non-participating Creditors are not admissible to proof under this Deed or the Trust Deed Non-participating Creditors are not entitled to participate in any dividends declared and distributed under this Deed or the Trust Deed In accordance with section 563C of the Corporations Act 2001 each Non-participating Creditor s Creditor s Claim: APAC-# v1 15 Norton Rose Australia

18 (1) is subordinated such that its Creditor s Claim is not repayable until all Participating Creditors Claims are paid in full or otherwise released under this DOCA; and (2) survive termination of this DOCA. 11 Secured Creditor 11.1 This Deed does not bind the Secured Creditor except insofar as section 444D of the Corporations Act 2001 requires If the Secured Creditor did not vote in favour of the resolution of the Company s creditors because of which the Company executed this Deed, then the Deed Administrator may at the Deed Administrator s absolute discretion make an application to the Court for an order pursuant to section 444F(2) of the Corporations Act 2001 that the Secured Creditor must not enforce, realise or otherwise deal with the Secured Creditor s Security This Deed does not release or extinguish the Secured Creditor s Claim Notwithstanding clause 11.3, to any extent that the Secured Creditor: (1) receives payment of the First Equity Investment in accordance with Clause 6; and (2) the Trust Deed provides for payment of some of the Trust Property to the Secured Creditor, and the Trustee actually makes a payment to the Secured Creditor, the Secured Creditor s Claim is reduced by the amount of that payment and the Company s indebtedness to the Secured Creditor will be reduced in that same amount. 12 Admissibility of debts or claims 12.1 A debt payable by or claim against the Company is not admissible to proof under this Deed or the Trust Deed unless it is a debt payable by or claim against the Company whether present or future, certain or contingent, ascertained or sounding only in damages, the circumstances giving rise to which occurred on or before the Relevant Date Save for the Argyle Claim and the Groote Claim, the Deed Administrator may, in the case of this Deed, and the Trustee must, in the case of the Trust Deed, determine: (1) the Priority Creditors Claims; (2) the Participating Creditors Claims; and (3) the Creditors Claims; which are admissible to proof under this Deed For the purpose of the Deed Administrator determining the Priority Creditors Claims, the Participating Creditors Claims and the Creditors Claims which are admissible to proof, the following provisions apply: (1) section 560, Subdivisions A, B, C and E of Division 6 of Part 5.6 and (in respect of appeals), section 1321 of the Corporations Act 2001; (2) regulation , regulations to inclusive and regulation A of the Corporations Regulations 2001; and APAC-# v1 16 Norton Rose Australia

19 (3) so far as practicable, the remainder of the Corporations Act 2001 and the Corporations Regulations 2001, and for the avoidance of doubt, the right of a Creditor to appeal any determination is to be identical in substance, and to the extent possible in form, to a right that a Creditor would have under the provisions of the Corporations Act 2001 and the Corporations Regulations 2001 or otherwise if the determination was by a liquidator and the Company were being wound up with the Relevant Date being the day on which the winding up was taken to have begun Pursuant to s444db of the Corporations Act 2001 the Deed Administrator must determine that the whole, or any particular part, of a debt by way of superannuation contribution is not admissible to proof against the Company if: (1) a debt by way of superannuation guarantee charge; has been paid; or is, or is to be, admissible to proof against the Company; and (2) the Deed Administrator is satisfied that the superannuation guarantee charge is attributable to the whole, or that part, of the first-mentioned debt. 13 Application of Fund 13.1 Subject to satisfaction of the conditions in clause 3.3, the Deed Administrator is to apply the Fund and the Available Property other than the First Equity Investment in payment to the Trustee to be administered and distributed by the Trustee in accordance with, and in the order of priority provided for, in the Trust Deed Subject to satisfaction of the conditions in clause 3.3, the Deed Administrator is to apply the Fund as soon as practicable and unless CSPL otherwise agrees, by the Completion Date. 14 Meeting to consider variation or termination 14.1 Without limiting the operation of section 445C, section 445E or section 445F of the Corporations Act 2001, if the Deed Administrator considers that it is no longer practicable or desirable to implement the administration of this Deed, the Deed Administrator: (1) may convene a meeting of the Company s Creditors to consider a resolution under section 445C of the Corporations Act 2001 varying or terminating the Deed; and (2) at the same time as giving the Company s Creditors notice in writing of that meeting, must give the Company s Creditors: a current report of the position of the Company accompanied by such financial statements as the Deed Administrator considers fit; and a statement that the Deed Administrator considers that it is no longer practicable or desirable to carry on the business of the Company or to continue this Deed and that the Deed will be varied or terminated if the Company s Creditors so resolve Without limiting the operation of section 445C, section 445E or section 445F of the Corporations Act 2001, in the circumstances set out in clause 3.6, the Deed Administrator must: APAC-# v1 17 Norton Rose Australia

20 (1) convene a meeting of the Company s Creditors to consider any resolutions under: section 445C of the Corporations Act 2001 terminating the Deed; further and alternatively section 445A of the Corporations Act 2001 varying the Deed; and (2) at the same time as giving the Company s Creditors notice in writing of that meeting, give the Company s Creditors: a current report of the position of the Company accompanied by such financial statements as the Deed Administrator considers fit; and a statement setting our the Deed Administrator s opinion on whether it is any longer practicable or desirable to continue this Deed and that the Deed will be terminated or varied if the Company s Creditors so resolve. 15 Termination 15.1 This Deed automatically terminates when any 1 of the following conditions are met: (1) the following events occur: (c) (d) satisfaction or waiver of all of the conditions set out in clause 3 in accordance with that clause; the Deed Administrator applies all of the Fund in accordance with clause 13; the parties fulfil all of their obligations under this Deed; and the Deed Administrator lodges the written notice with the Australian Securities and Investments Commission contemplated by clause 15.2; or (2) the Court makes an order terminating this Deed; or (3) the Company s Creditors pass a resolution terminating this Deed at a meeting that was convened under clause 14 or otherwise under section 445F of the Corporations Act 2001 by a notice setting out the proposed resolution If the parties have otherwise fulfilled all of their obligations under this Deed, the Deed Administrator must, within one (1) Business Day after the Deed Administrator applies all of the Fund in accordance with clause 13, lodge a written notice with the Australian Securities and Investments Commission in the following form: S&N Civil Constructions Pty Ltd (Subject to Deed of Company Arrangement) ACN We, Martin Bruce Jones and Darren Gordon Weaver of Ferrier Hodgson, Level 26, Bankwest Tower, 108 St Georges Terrace, Perth, deed administrators of the deed of company arrangement executed by S&N Civil Constructions Pty Ltd (Administrators Appointed) ACN on [insert date] hereby certify that the deed has been wholly effectuated and is terminated upon lodgement of this notice with the Australian Securities and Investments Commission On termination of this Deed in accordance with clause 15.1(1) the Deed Administrator must deliver to the Company all of the Company s books and records in the possession of the APAC-# v1 18 Norton Rose Australia

21 Deed Administrator other than those books and records created after the Relevant Date which the Deed Administrator wishes to retain The termination of this Deed does not affect: (1) the previous operation of this Deed; or (2) the enforceability of any accrued obligations under this Deed. For that purpose where the termination of this Deed is followed by the winding up of the Company: the liquidator may enforce any obligation under this Deed owed to the Deed Administrator; and may do so as if the liquidator had been a party to the Deed at the execution of the Deed in the place of the Deed Administrator. 16 Release of Participating Creditors Claims 16.1 Subject to clauses 16.4 and 18, on termination of this Deed in accordance with clause 15.1(1) the Company is released from all Participating Creditors Claims except for the Argyle Claim and the Groote Claim It is agreed that there is no consideration payable in respect of the releases provided in clause Subject to clauses 16.4 and 18, on termination of this Deed in accordance with clause 15.1(1) the Company may plead this Deed in bar to any action, proceeding or suit brought by a Participating Creditor in respect of that Participating Creditor s Claim Subject to clause 16.5, where there have been mutual credits, mutual debts or other mutual dealings between the Company and a Participating Creditor: (1) an account must be taken of what is due from the one party to the other in respect of those mutual dealings; (2) the sum due from one party is to be set off against any sum due from the other party; (3) only the balance of the account (if any) in favour of the Participating Creditor as against the Company is to be released under clause 16.1; and (4) only the balance of the account (if any) in favour of the Company as against the Participating Creditor, is payable by the Participating Creditor to the Company A Participating Creditor is not entitled under clause 16.4 to claim the benefit of any set-off if, at the time of giving credit to the Company, or at the time of receiving credit from the Company, it had notice of the fact that the Company was insolvent For the avoidance of doubt, the procedure set out in clause 16.4 is intended to entitle a Participating Creditor to claim a set-off (if any) as may be available pursuant to section 553C of the Corporations Act 2001 as against any liability to the Company as if the Company was subject to a winding up so that the balance of the account (if any): (1) in favour of the Participating Creditor is admissible to proof under the Trust Deed without giving rise to any obligation on the Company following the termination of this Deed to pay any monies to the Participating Creditor; and (2) in favour of the Company is payable by the Participating Creditor to the Company. APAC-# v1 19 Norton Rose Australia

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