Deed of Company Arrangement

Transcription

1 Deed of Company Arrangement Matthew James Donnelly Deed Administrator David Mark Hodgson Deed Administrator Riverline Enterprises Pty Ltd ACN (Administrators Appointed) trading as Matera Construction Company Phillip William Matera Proponent

2 Deed of company arrangement Date 2015 Parties Matthew James Donnelly [insert address] Deed Administrator David Mark Hodgson [insert address] Deed Administrator Riverline Enterprises Pty Ltd (Administrator Appointed) trading as Matera Construction ACN [insert address] Company Phillip William Matera [insert address] Proponent Recitals A. On 13 March 2015 the Deed Administrator was appointed joint and several Administrator of the Company under Corporations Act, s 436A. B. At a meeting of the Creditors of the Company, held on 29 April 2015, the Creditors resolved that the Company enter into a deed of company arrangement on terms substantially set out in this deed. C. The Deed Administrator has consented to be the administrator of this deed. 1. Definitions and interpretation 1.1 Definitions Administrator means any of the following people, who acted jointly and severally in the capacity of an administrator of the Company under the Corporations Act, ss 436A, 436B or 436: Matthew James Donnelly; and David Mark Hodgson; Administrator s Costs means: the remuneration payable to an Administrator; and Printed: 0/00/0000 0:00 AM page 1

3 the costs, expenses, liabilities and disbursements that an Administrator has incurred as administrator; Admitted Claim means a Claim that the Deed Administrator has admitted to proof under this deed; Appointment Date means 13 March 2015, which is the date that the Administrator was appointed to the Company, under Corporations Act, s 436A; Arrangement Period means the period from the Execution Date to the date that this deed terminates; Available Property means the assets described in clause 8; Business Day means a day, which is not a Saturday, Sunday, public holiday or bank holiday in the city of Perth, Western Australia; Claim means: a debt against the Company, which arose before the Appointment Date; or a claim subsisting against, the Company in favour of a person as at the Appointment Date; and this definition applies irrespective of how the debt or claim arose, including whether: under contract, at law or in equity; the claim is present or future, certain or contingent, ascertained or sounding only in damages; or a debt or claim arises under a guarantee; Corporations Act means the Corporations Act 2001 (Cth); Corporations Regulations means the Corporations Regulations 2001 (Cth); Creditor means a person, who has a Claim; Deed Administrator means a person appointed under this deed, to jointly and severally administer this deed under Corporations Act Part 5,3A Division 10; Deed Administrator's Costs the remuneration payable to a Deed Administrator; and the costs, expenses, liabilities and disbursements that a Deed Administrator duly incurs as administrator of this deed; Eligible Employee Creditor has the meaning given to that phrase in Corporations Act s 9; Printed: 0/00/0000 0:00 AM page 2

4 Execution Date means the date that this instrument becomes a deed of company arrangement under the Corporations Act s 444B(6); GST means the tax imposed by the GST Act; GST Act means: A New Tax System (Goods and Services Tax) Act 1999; associated legislation; and GST related ATO rulings, that are binding upon the Federal Commissioner of Taxation; Initial Costs Amount means the $220,000 required by the Deed Administrator to pay for Administrator s Costs, Deed Administrator s Costs, Trustee s Costs and any employee entitlements. Leighton Litigation means the claim filed by the Company in the Western Australia Supreme Court on 24 February 2015 against Leighton Contractors Pty Ltd ACN , as well as any other court proceedings or arbitration in respect of the contract entered into between the parties for the performance of works on the Barrack Square Early Works package at Elizabeth Quay. Leighton Net Proceeds means the proceeds from the Leighton Litigation less: $220,000 to the initial funder of the Leighton Litigation; in the event that the legal costs and disbursements of the Leighton Litigation exceed $200,000, then such additional amount of outstanding legal costs and disbursements, including an uplift of 10% of the legal costs outstanding (if any); and payment to the Secured Creditor to obtain a discharge of its Security Interest. Ningaloo Project means the contract with the Shire of Exmouth to design and construct a community centre in Ningaloo. Non-Participating Creditor means: Phillip Matera; Susan Matera; and Matera Electrical Pty Ltd. PPSA means the Personal Properties Securities Act 2009 (Cth); Schedule 8A means the Corporations Regulations, Schedule 8A; Secured Creditor means a Creditor, having a Claim that is secured by a Security Interest, which the Company has granted, to the extent that the Claim is secured. Security Interest has the meaning given to that term under the PPSA; Printed: 0/00/0000 0:00 AM page 3

5 Superannuation Contribution has the meaning given to that phrase under Corporations Act, s 556. Side Deed means the deed of that name between the Trustee, the Company and the Proponent substantially in the form annexed to this deed as Annexure A. Trust Creditor means a person, who has a trust claim under the Trust Fund Trust Deed means the creditors trust settled by Robert Leslie McKenzie, Matthew James Donnelly and David Mark Hodgson on or about [date]. Trust Fund means the Riverline Creditors Trust Fund established under the Trust Deed. Trustee means the trustee of the Trust Fund. Trustee's Costs mean: the remuneration payable to a Trustee; and the costs, expenses, liabilities and disbursements that a Trustee duly incurs as Trustee. Zimbilus Claim means the right to retention funds from the Zimbilus Project. Zimbilus Proceeds means the proceeds from the Zimbilus Claim. Zimbilus Project means the contract with Fyfield One Pty Ltd to construct a food processing plant in Forrestdale. 1.2 Interpretation In this deed, unless inconsistent with the context: (d) (e) (f) (g) if a word or phrase is defined, then its other grammatical forms have a corresponding meaning; the singular includes the plural and vice versa; a reference to a gender includes any gender; the word includes is not a word of limitation and does not restrict the interpretation of a word or phrase in this deed; a reference to a document, includes a variation or replacement of it; a reference to a statute includes its subordinate legislation and a modification or re-enactment of either; a reference to person includes a reference to: an individual, a body corporate, a trust, a partnership, a joint venture an, unincorporated body or other entity, whether or not it is a separate legal entity; Printed: 0/00/0000 0:00 AM page 4

6 that person s successors and permitted assigns and a person, who novates this deed; (h) (j) (k) (l) (m) a reference to a thing, including but not limited to a right, is a reference to either the whole thing or a part of the thing; an agreement, representation or warranty in favour of or on the part of two or more people, benefits or binds them jointly and severally; a reference to time is to Perth, Western Australia time; if the date on which a thing must be done is not a Business Day, then that thing must be done on the next Business Day; a reference to a day is a reference to the period, which starts at midnight and ends 24 hours later; and if a period of time runs from a given date, act or event, then the time is calculated exclusive of the date, act or event. 1.3 Heading A heading is for convenience only and does not affect interpretation; 1.4 Inconsistency in this deed To the extent of an inconsistency between this deed and the constitution of the Company or any other obligations binding on the Company, this deed prevails. 1.5 Effect of this deed This deed binds: each Creditor in relation to a Claim under Corporations Act s 444D; and each Deed Administrator, the Company and its officers and members under Corporations Act s 444G. 1.6 Application of the Corporations Act and the Corporations Regulations If a provision of the Corporations Act or the Corporations Regulations applies to this deed, then a reference in that provision to: claim is a reference to Claim in this deed; liquidator, is a reference to a Deed Administrator; and a reference that is relevant to any other matter relating to liquidation is taken to apply, as far as is practicable, in a form that is applicable to the administration of this deed. 1.7 Application of Schedule 8A Subject to an express inclusion in this deed of a Schedule 8A provision, each Schedule 8A provision is excluded from this deed. Printed: 0/00/0000 0:00 AM page 5

7 If a Schedule 8A provision is expressly included in this deed, then a reference in the provision to: company is a reference to the Company; and administrator is a reference to a Deed Administrator. 2. Commencement and operation of deed This deed commences on the Execution Date. The conditions that affect the commencement of this deed are: the Secured Creditor agreeing to release or waive its entitlement under Security #[insert] in respect of the Available Property. The continued operation of this Deed is subject to all of the following conditions being satisfied: all of the respective parties executing the Trust Deed and the Side Deed; and the Proponent causing the Initial Costs Amount to be paid into the Deed Administrator s trust account by 31 May In the event that the Initial Costs Amount is not paid to the Deed Administrator s trust account by 31 May 2015, the Deed Administrator may call a meeting of the Creditors to terminate this Deed. 3. Zimbilus Claim Upon commencement of the Trust Deed, the Initial Costs Amount will be transferred to the Trust Fund. The Zimbilus Claim is assigned to the Trust Fund. Upon the Trustee receiving the Zimbilus Proceeds: if the Zimbilus Proceeds are less than the Initial Costs Amount, the Deed Administrator will transfer the amount of the Zimbilus Proceeds to the Proponent; or if the Zimbilus Proceeds are equal to or exceed the Initial Costs Amount, the Deed Administrator will transfer the amount of the Initial Costs Amount to the Proponent. 4. Appointment of Deed Administrator Matthew James Donnelly and David Mark Hodgson are appointed jointly and severally to administer this deed with the powers, functions and duties conferred by this deed and the Corporations Act. Printed: 0/00/0000 0:00 AM page 6

8 A Deed Administrator is an agent of the Company. 5. Powers of Deed Administrator To assist in the administration of this deed, a Deed Administrator may: engage the services of the Deed Administrator s partners; employ the Deed Administrator s staff; and engage a consultant, who works for the Deed Administrator s firm. The Deed Administrator has the powers set out in Schedule 8A, clause 2. The Deed Administrator: has the rights and powers of a Company director under the Company s constitution; and has the rights and powers of the Company s members in general meeting, to the exclusion of the Company s members. (d) A Deed Administrator may: (iv) (v) (vi) (vii) register a transfer of shares in the Company s share register; complete and lodge a document to effect or record a share sale; remove a Company director; appoint a Company director, whether to fill a vacancy or not; allow a third party, to fund and administer an action in the name of the Company or the Deed Administrator; distribute the proceeds of an action, including a portion of damages awarded, to a third party litigation funder; and assign the benefit of a cause of action in consideration for a promise to pay a portion of the damages awarded. (e) The Deed Administrator s rights and powers under this clause 5 are in addition to the Deed Administrator s: powers under Schedule 8A, clause 2; and other rights and powers under this deed. (f) To give the Deed Administrator the rights and powers of the Company s members in general meeting, each member of the Company irrevocably appoints each Deed Administrator, severally as the member s attorney. Printed: 0/00/0000 0:00 AM page 7

9 (g) The attorney has full power to do anything necessary before during and after a meeting of members to enable the Deed Administrator to act as that member at a Company meeting, including: (iv) to appoint the Deed Administrator as the member s proxy; to attend and vote instead of the member, at a meeting of the Company; to pass a circulating resolution under Corporations Act, s 249A; or if the Company has only one member, to pass a resolution under Corporations Act s 249B. 6. Directors During the Arrangement Period, a Company director must: on request, co operate with the Deed Administrator to enable the Deed Administrator to perform the Deed Administrator s obligations; and exercise only the powers, which: A. this deed vests in a Company director; or B. a Deed Administrator delegates in writing to a Company director. On the Execution Date: the Company and its business operations return to the control of the directors; the Company may continue to trade; and the Company director will not incur any liabilities without the written consent of the Deed Administrator until the Trust Deed commences. (d) (e) The Company must meet a debt accruing or incurred on or after the Execution Date, as and when it falls due. The Company director must comply with a Deed Administrator s request to insure the Company, its business and its property, in the manner that the Deed Administrator requires. During the Arrangement Period, via its Company directors, the Company must: duly comply with the lodgement requirements of the Australian Taxation Office; and pay to the Australian Taxation Office the amounts that it owes under the tax legislation. Printed: 0/00/0000 0:00 AM page 8

10 (f) (g) The Company must pay any amount to the Australian Taxation Office on or before the due date for payment of that amount. A Company director must immediately notify a Deed Administrator in writing: if a winding up application is brought against the Company during the Arrangement Period; or if a Company director is concerned about the solvency of the Company for a debt incurred after the Execution Date. (h) Subject to an express clause of this deed, a Deed Administrator: must not take any part in the Company s management, supervision, control, administration or trading operations; and is not responsible for the Company s management, supervision, control, administration or trading operations. The Company must obtain the written consent of the Deed Administrator before it: further encumbers a Company asset; enters into or varies a finance arrangement; or sells a Company asset outside the ordinary course of the Company s trading operations. (j) (k) The Deed Administrator may enter property that the Company occupies or uses. The Deed Administrator may inspect the records of the Company, regardless of where the records are kept. 7. Admissibility and Determining of Claims The Deed Administrator, using absolute discretion may: adjudicate upon and admit Claims; and pay a Claim. A Non-Participating Creditor will be deemed to be an unsecured creditor and must not lodge a proof of debt with a Deed Administrator for a Claim which but for this clause, would have been admissible to proof by the Deed Administrator, for the purposes of distribution until any dividend payable on Admitted Claims is $0.40 on the dollar. Once the dividend paid is $0.40 on the dollar, the Non-Participating Creditors are entitled to participate in any dividend paid from the balance of the Trust Fund. Subject to clause 7, only Claims are admissible to proof against the Company under this deed. Printed: 0/00/0000 0:00 AM page 9

11 (d) If a Creditor is seeking to formally prove a Claim and a Deed Administrator is determining a Claim that is admissible to proof under this deed, then these provisions apply: Corporations Act, Part 5.6, Division 6 subdivisions A, B, C, [D] and E; Corporations Regulations to , inclusive; and Corporations Regulations and A. (e) (f) If this deed expressly or by implication excludes or varies legislation referred to in clause 7(d), including any priorities, then this deed prevails and for the avoidance of doubt the priorities in this deed prevail. The Deed Administrator must determine that the whole of a debt, by way of a Superannuation Contribution, is not admissible to proof against the Company if: a debt by way of superannuation guarantee charge: A. has been paid; or B. is or is to be admissible to proof against the Company; and the Deed Administrator is satisfied that the superannuation guarantee charge is attributable to the whole of the first-mentioned debt. (g) The Deed Administrator must determine that a particular part of a debt, by way of a Superannuation Contribution, is not admissible to proof against the Company if: a debt by way of superannuation guarantee charge: A. has been paid; or B. is or is to be, admissible to proof against the Company; and the Deed Administrator is satisfied that the superannuation guarantee charge is attributable to that part of the first-mentioned debt. 8. Available Property The property that is available to pay Admitted Claims, Administrator s Costs, Deed Administrator s Costs and Trustee s Costs is the Available Property as follows: (iv) any real and personal property held by the Deed Administrator as at 29 April 2015; the Initial Costs Amount; the Zimbilus Proceeds; the Leighton Net Proceeds; Printed: 0/00/0000 0:00 AM page 10

12 but excluding: (v) the retention funds held by the Company on the Ningaloo Project; For the avoidance of doubt, the Trust Fund is the amount determined pursuant to clause 8 above. 9. Payment to Trustee and application of Fund The Deed Administrator must as soon as reasonably practical after the execution of the Trust Deed apply the Available Property to the Trustee for the purposes of the Trust Deed. 10. Rights of Secured Creditors Subject to clause 8, nothing in this deed affects the rights of a Secured Creditor to realise and have the full benefit of its security and the Secured Creditor is entitled to vote at any meeting of Creditors. 11. Release of Claims 11.1 Claims released If this deed terminates under clause 12 then: a Creditor other than the Non-Participating Creditor must accept its entitlements under this deed in full satisfaction of its Claims. At the Company s or the Deed Administrator s request, a Creditor must execute each document necessary to give effect to the releases referred to in this deed Abandonment of Claims A Creditor abandons a Claim and any other entitlement to the Available Property: which is not the subject of a proof lodged with the Deed Administrator, in the form that the Deed Administrator requires, prior to the declaration of a final dividend; or which the Deed Administrator rejects and which is not the subject of an application to the court within 14 days after service of the notice of the rejection to the Creditor. 12. Termination of deed The appointment of the Deed Administrator ends at the time that the deed terminates. This deed terminates on the earlier of the following: Printed: 0/00/0000 0:00 AM page 11

13 the parties fulfilling the terms of the deed and the Deed Administrator lodging with ASIC a notice of performance of the deed under: A. Corporations Act, s 445FA; or B. Schedule 8A clause 12, the terms of which are expressly included in this deed; (iv) (v) under the Corporations Act, other than under Corporations Act s 445FA; by order of a court; the responsible person failing to fulfil a condition precedent; the Creditors resolve to terminate for the Proponent s breach; or (vi) under Schedule 8A, clause 3. (d) (e) (f) (g) (h) Schedule 8A, clause 3, is expressly included in this deed with an amendment to both clauses 3 and 3 to replace the word must with the word may. On termination of this deed under clause 12, control of the Company returns to the then directors of the Company. If, upon termination of this deed, there is a surplus Available Property and the Deed Administrator s Costs and Administrator s Costs have been satisfied, then the surplus is to be paid to the Company, whether the Company is in liquidation or not. Following termination of this deed, upon giving reasonable notice, the Company must allow the Deed Administrator access to the Company s records. This clause 12 survives termination of this deed. The termination or avoidance, in whole or in part of this deed does not affect the previous operation of this deed. 13. Entitlement under the Trust Deed Upon termination of this deed under clause 12: a person, who has an entitlement under this deed, obtains an entitlement under the Trust Deed in substitution for that person s previous Claims and entitlements, as at the date of termination: against the Company; and under this deed; and the Deed Administrator as Trustee has the duties and obligations substantially equivalent to those applicable under this deed as at the date of termination in relation to: Printed: 0/00/0000 0:00 AM page 12

14 the Trust Creditors; and the Trust Fund. 14. Proponent s breach of deed If the Deed Administrator believes that the Proponent has breached this deed, then at the Deed Administrator s discretion, the Deed Administrator may take any steps necessary to do any of the following: enforce an obligation under this deed; exercise a right under a security; or convene a Creditors meeting to: A. vary this deed; or B. terminate this deed and wind up the Company. If the Deed Administrator commences proceedings against the Proponent, then the Proponent must pay the Deed Administrator for the costs and expenses that the Deed Administrator incurs in relation to the proceedings on a solicitor-own client basis. 15. Moratorium period and statutory bar Subject to the Corporations Act, s 444D, the Company or the Deed Administrator may plead this deed against a Creditor as an absolute bar and defence to legal proceedings brought or made at any time in relation to a Claim. Despite the definition in Corporations Act s 9, the prohibitions in this clause do not apply to a Deed Administrator. Before the termination of this Deed, a Creditor, a member and an officer, as that term is defined in the Corporations Act s 9, must not: (iv) (v) take a step to wind up the Company; except for the purpose and to the extent provided in this deed, institute or prosecute legal proceedings in relation to a Claim; take a further step, in proceedings pending against or in relation to the Company at the Appointment Date; exercise a right of set-off or cross-action to which the Creditor would not have been entitled had the Company been wound up at the Appointment Date; take a step in an enforcement process, as that term is defined in the Corporations Act; or Printed: 0/00/0000 0:00 AM page 13

15 (vi) commence or proceed in an arbitration against the Company or in which the Company is a party. (d) (e) This bar and defence applies whether or not the Claim is admitted or established under this deed. A reference to taking a step, includes concurring with another person to act in that manner. 16. Deed Administrator s liability, remuneration and indemnity 16.1 Extent of Deed Administrator s liability The Deed Administrator is not personally liable for: (iv) an obligation, including a debt or liability, which the Deed Administrator incurs; an actual, contingent or prospective liability incurred, directly or indirectly, after the Execution Date; loss or damage relating to the Deed Administrator s act, default or omission under this deed; or loss or damage relating to the act, default or omission of someone acting on the Deed Administrator s behalf under this deed. This clause prevails over any clause to the contrary in this deed Remuneration of Deed Administrator The Deed Administrator is remunerated at the standard hourly rate that the Deed Administrator s firm charges at the time the work is done for: the negotiation and preparation of this deed; and the administration of this deed. The Deed Administrator is reimbursed for the costs, fees and expenses, including a duty or capital gains tax, incurred in relation to: the negotiation and preparation of this deed; and the administration of this deed Indemnity The Administrator is indemnified out of the Company s property and the Trust Fund for: the Administrator s Costs; a liability that the Administrator incurs during the administration of the Company; and Printed: 0/00/0000 0:00 AM page 14

16 an action, account, claim, demand or liability arising after the Appointment Date, which relates to an Administrator. The Deed Administrator is indemnified out of the Company s property and the Trust Fund for: the Deed Administrator s Costs; a liability that the Deed Administrator incurs during the Arrangement Period; and an action, account, claim, demand or liability arising after the Execution Date, against a Deed Administrator. (d) (e) The Administrator and the Deed Administrator are indemnified against all costs, charges and expenses that either person incurs in relation to this indemnity. The Administrator and Deed Administrator indemnity is valid to the extent permitted under Corporations Act, s 199A. This indemnity: (iv) (v) takes effect on and from the Execution Date; survives the termination of this deed; survives the termination of an Administrator s appointment. survives the termination of a Deed Administrator s appointment. applies to a Deed Administrator appointed after the Execution Date; (f) (g) (h) The Administrator s and Deed Administrator s right of indemnity has priority over a Claim. The Administrator and the Deed Administrator may exercise a lien on the Company property to secure the indemnity. The indemnity applies even if the appointment of an Administrator or a Deed Administrator is defective or invalid. The indemnity covers an action, account, liability, claim or demand relating to: a defective appointment of the Administrator or the Deed Administrator; and a defect in the approval or the execution of this deed. (j) (k) This indemnity is in addition to a right that the Administrator or the Deed Administrator has against any person, including the Company. Nothing in this deed affects or limits the operation of Corporations Act, Part 5.3A Division 9 subdivision B. Printed: 0/00/0000 0:00 AM page 15

17 17. Creditors may vary deed The Creditors may vary this deed by a resolution passed at a Creditors meeting convened under Corporations Act, s 445F. The resolution must be materially the same as the resolution proposed in the notice of meeting. 18. Application to court This clause does not limit the rights or powers of the Administrator or Deed Administrator under the Corporations Act. During the Arrangement Period, the Deed Administrator may apply to the court: to void or validate the deed, under Corporations Act, s 445G; or for general orders under Corporations Act, s 447A. (d) During the Arrangement Period, the Deed Administrator may apply to the court for directions in relation to this deed. If the court determines that this deed does not comply with Corporations Act Part 5.3A, then the parties consent to the court varying this deed. 19. Meetings The Deed Administrator may at any time convene a Creditors meeting. Corporations Regulations to A apply to the convening and the running of a Creditors meeting, to the extent that the Corporations Regulations are consistent with this deed. 20. Governing clauses 20.1 Governing law The law of Western Australia governs this deed Jurisdiction The parties submit to the exclusive jurisdiction of the courts of Western Australia, the Federal Circuit Court and the Federal Court of Australia Rights are Cumulative A party's rights under this deed are in addition to its rights at law. Printed: 0/00/0000 0:00 AM page 16

18 20.4 Severance If a provision of this deed is invalid, illegal or unenforceable, then to the extent of the invalidity, illegality or unenforceability, that provision must be ignored in the interpretation of this deed. The remaining provisions of this deed remain in full force and effect Further assurance A party must do everything necessary to give full effect to this deed Costs Subject to the written approval of a Deed Administrator, a party other than the Deed Administrator acts under this deed at that party s expense GST (d) (e) (f) (g) If an expression is used in this clause and in the GST Act, then the expression has the meaning given to it under the GST Act. An amount that a party must pay under this deed is a GST exclusive amount. The party liable to pay for a taxable supply under this deed must also pay the GST payable for the taxable supply. The party must pay the amount on the date on which the consideration, to which the GST is referable, is due. A party is obliged to pay an amount for GST for a taxable supply, only after it receives a valid tax invoice for the supply. The party responsible for a penalty or interest under the GST Act must pay that amount. This clause does not merge on the termination or completion of this deed Counterparts The parties may execute this deed in any number of counterparts, which taken together constitute one instrument. The parties may exchange counterparts by scanning the entire duly executed counterpart and ing it to the other party. Executed as a deed [insert execution clause] Printed: 0/00/0000 0:00 AM page 17