Wendy's Supa Sundaes Pty Ltd (Subject to Deed of Company Arrangement) ACN ( the Company )

Transcription

1 30 November 2016 Circular to Creditors Dear Sir/Madam Wendy's Supa Sundaes Pty Ltd (Subject to Deed of Company Arrangement) ACN ( the Company ) We refer to our appointment as Voluntary Administrators of the Company on 2 July 2015, to our subsequent appointment as Deed Administrators on 1 September 2015 and to previous correspondence. As you are aware, it has been approximately fourteen months since our last Circular to Creditors. However, we note that we have contacted a large number of creditors by Circular to specific creditor groups, letter or by telephone during this period. We hereby provide an update on the Deed of Company Arrangement ( DOCA ) as follows: 1. Compliance with the DOCA / Balance of Deed Fund All terms of the DOCA have been complied with to date, however, we have had to delay the payment of the interim dividend in accordance with clause 41 of the DOCA for the reasons discussed in section 3 below. The current balance of the Deed Fund is approximately $442,000. We are pleased to advise that the payments from Supatreats Australia Pty Ltd ( Supatreats ) are up to date and that included in the Deed Fund balance is an amount of $62,609 which was recovered from our work in the first half of 2016 in respect of recovering the Company s outstanding bank guarantees. 2. Work undertaken during the past 14 months Since our appointment as Deed Administrators, we have undertaken the following tasks: Ongoing receipt and monitoring of the initial contribution and subsequent monthly contributions made by Supatreats; Corresponding with the Company s various banking institutions to facilitate the closure of the Company s pre-appointment bank accounts and payment of same to the Deed Fund; Corresponding with various landlords in relation to the return of bank guarantees and facilitating the release of the funds supporting the bank guarantees;

2 Circular to Creditors 30 November 2016 Page 2 Arranging payment of outstanding employee entitlements, including unpaid wages, leave entitlements and superannuation, owing as at commencement of the Voluntary Administration; Review of Proofs of Debt ( POD ) received to date, including seeking further substantiation from certain creditors as required; Corresponding with various landlords in relation to their claims and substantiation of same; Corresponding with statutory bodies and Members of Parliament in relation to their request for information regarding the affairs of the Company; Corresponding with Shahin Enterprises Pty Ltd as trustee for the Shahin Family Trust ( Shahin ) in relation to their claim in the administration (discussed below); Attending to creditor, employee and franchisee enquiries as required; and Attending to statutory lodgements. 3. Delay of Dividend The DOCA provides, at clauses 40 and 41, that we would use our reasonable endeavours to pay an initial dividend to unsecured creditors in the first quarter of the calendar year 2016, subject to delays or deferrals caused or contributed to by: 1. the need for the Deed Administrators to review and consider proofs of debt or claims submitted by Creditors and to await the determination of any appeal or other proceeding which arises in connection with any proof of debt or claim submitted by any Creditor; and 2. an event occurring or circumstance arising which, in the reasonable opinion of the Deed Administrators, would make it impractical or otherwise undesirable to make a payment to Creditors out of the Deed Fund at a time specified in that clause. We advise that both of the circumstances referred to in points numbered 1 and 2 above have arisen in the administration of the DOCA, and that these circumstances have caused or contributed to the delay of the payment of the initial dividend. As creditors may recall, just prior to reconvening the second meeting of creditors on 19 August 2015, Shahin lodged a POD detailing a claim against the Company in the amount of $28 million ( the Original POD ).

3 Circular to Creditors 30 November 2016 Page 3 We have since been corresponding with Shahin, via their solicitors, in relation to its claim. Shahin has since submitted a revised POD in the amount of $17.7 million on 7 April We have reviewed this claim and determined that it still requires further particulars and clarification which we have requested from Shahin s solicitors. In addition to the above, we consider that the Shahin claim against the Company is impacted by the ongoing proceedings between Shahin and Global Food Retail Group Pte Ltd ( GFRG ) which are currently being heard in the Supreme Court of South Australia ( the Proceedings ). Given the Proceedings are still before the Court and a number of matters in respect of Shahin s claim against the Company remain unresolved, we consider that the payment of the initial dividend will continue to be delayed. The Deed Administrators continue to seek a resolution to these issues promptly to enable the initial dividend to be paid as soon as possible. 4. Request for Formal Proof of Debt Whilst the Deed Administrators are not in a position to declare a dividend to unsecured creditors at this point in time for the reasons discussed in section 3 above, the Deed Administrators are formally calling for Proof of Debts in order to be in a position to declare a dividend as soon as possible. Accordingly, please find enclosed the following: 1. Notice to Creditors to submit a Formal Proof of Debt Form (Form 534). Please note that Proof of Debt Forms are required to be submitted to our office on or before 9 January Formal Proof of Debt Form (Form 535). Please note that if you have already submitted a Formal Proof of Debt Form, along with full supporting documentation, to our office, there is no requirement for you to complete another Formal Proof of Debt Form unless you wish to amend your claim (for example, due to a mitigation of loss issue that may not have been apparent at the time of lodging your claim). 5. Next steps The Deed Administrators will continue to maintain the Deed Fund in accordance with the terms of the DOCA and will contact the creditors once there has been a resolution to the matters referred to above.

4 Circular to Creditors 30 November 2016 Page 4 Should you have any queries, please contact Tara Martin of this office. Yours faithfully Wendy's Supa Sundaes Pty Ltd (Subject to Deed of Company Arrangement) MD Lewis & TD Mableson Deed Administrators

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6 Form 535 Formal Proof of Debt or Claim (General Form) Corporations Act 2001 Regulation (2) Wendy s Supa Sundaes Pty Ltd (Administrators Appointed) ACN ( the Company ) Instructions: Please complete Sections A, B and C and submit to: Wendy s Supa Sundaes Pty Ltd (Administrators Appointed) C/- Ferrier Hodgson GPO Box 2558, ADELAIDE SA 5001 Tel: (08) Fax: (08) adelaide@fh.com.au * Strike out if inapplicable. A. Name and Contact Details of Creditor (the Creditor) (if in a personal capacity, given name and surname; if a corporate entity, full name of company, etc) of (address) Tel: Fax: Tick this box to elect to receive electronic notification of notices or documents, in accordance with Section 600G of the Corporations Act 2001, at the address or fax number specified above. B. Details of Debt or Claim To the Administrators of the Company 1. This is to state that the Company was, on 2 July 2015, and still is justly and truly indebted to the Creditor for dollars (amount in words) and cents (inclusive of GST, if applicable).

7 Particulars of the debt are: Date Consideration 1 Net ($) GST ($) Total ($) Remarks 2 1. Under "Consideration" state how the debt arose, for example "goods sold and delivered to the company between the dates of...", "moneys advanced in respect of the Bill of Exchange". 2. Under "Remarks" include details of vouchers substantiating payment. 2. To my knowledge or belief the Creditor has not, nor has any person by the Creditor s order, had or received any satisfaction or security for the sum or any part of it, *except for: (insert particulars of all securities held. If the securities are on the property of the company, assess the value of those securities. If any bills or other negotiable securities are held, indicate refer attached above and show them in a schedule in the following form:) Date Drawer Acceptor Amount ($) Due Date 3. *I am employed by the Creditor / *I am the Creditor s agent *and authorised in writing by the Creditor to make this statement. I know that the debt was incurred for the consideration stated and that the debt, to the best of my knowledge and belief, remains unpaid and unsatisfied. C. Signature Dated: Signature: Name / Capacity # : # If the Creditor is an individual, insert full name If the Creditor is a sole trader, insert in accordance with the following example: full name, proprietor If the Creditor is a partnership, insert in accordance with the following example: full name, partner of the firm named in Section A above If the Creditor is a company, insert in accordance with the following example: full name, director / secretary / director/secretary of the company named in Section A above or under the hand of some officer duly authorised in that capacity, and the fact that the officer is so authorised must be stated in accordance with the following example: full name, for the company named in Section A above (duly authorised under the seal of the company). Where this form is completed by, for example, a solicitor or accountant of the Creditor, sign this form as the Creditor s authorised agent; where this form is completed by an authorised employee of the Creditor, indicate occupation (eg: credit manager, etc).