1 Administrator deemed agent of company
In exercising the powers conferred by this deed and carrying out the duties arising under this deed, the administrator is taken to act as agent for and on behalf of the company.
2 Powers of administrator
For the purpose only of administering this deed, the administrator has the following powers:
(a) to enter upon or take possession of the property of the company;
(b) to lease or let on hire property of the company;
(c) to grant options over property of the company on such conditions as the administrator thinks fit;
(d) to insure property of the company;
(e) to repair, renew or enlarge property of the company;
(f) to call in, collect or convert into money the property of the company;
(g) to administer the assets available for the payment of claims of creditors in accordance with the provisions of this deed;
(h) to purchase, hire, lease or otherwise acquire any property or interest in property from any person or corporation;
(i) to borrow or raise money, whether secured upon any or all of the assets of the company or unsecured, for any period on such terms as the administrator thinks fit and whether in substitution for any existing security or otherwise;
(j) to bring, prosecute and defend in the name and on behalf of the company or in the name of the administrator any actions, suits or proceedings;
(k) to refer to arbitration any question affecting the company;
(l) to make payments to any secured creditor of the company and any person who is the owner or lessor of property possessed used or occupied by the company;
(m) to convene and hold meetings of the members or creditors of the company for any purpose the administrator thinks fit;
(n) to make interim or other distributions of the proceeds of the realisation of the assets available for the payment of claims of creditors as provided in this deed;
(o) to appoint agents to do any business or to attend to any matter or affairs of the company that the administrator is unable to do, or that it is unreasonable to expect the administrator to do, in person;
(p) to engage or discharge employees on behalf of the company;
(q) to appoint a solicitor, accountant or other professionally qualified person to assist the administrator;
(r) to permit any person authorised by the administrator to operate any account in the name of the company;
(s) to sell, call in or convert into money any of the property of the company, to apply the money in accordance with this deed and otherwise effectively and properly to carry out his or her duties as administrator;
(t) to do all acts and execute in the name and on behalf of the company all deeds, receipts and other documents, using the company's common or official seal when necessary;
(u) subject to the Bankruptcy Act 1966 , to prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act;
(v) subject to the Act, to prove in the winding up of any contributory or debtor of the company or under any scheme of arrangement entered into, or deed of company arrangement executed, under the Act;
(w) to draw, accept, make or endorse any bill of exchange or promissory note in the name and on behalf of the company;
(x) to take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or the estate of a contributory or debtor, that cannot be conveniently done in the name of the company;
(y) to bring or defend an application for the winding up of the company;
(z) to carry on the business of the company on such terms and conditions and for such purposes and times and in such manner as the administrator thinks fit subject only to the limitations imposed by this deed;
(za) to sell any or all of the property of the company including the whole of the business or undertaking of the company at any time the administrator thinks fit, either by public auction or by private contract and either for a lump sum or for a sum payable by instalments or for a sum on account and to obtain a mortgage charge or encumbrance for the balance or otherwise;
(zb) to close down the whole or any part of any business of the company;
(zc) to enter into and complete any contract for the sale of shares in the company;
(zd) to compromise any debts or claims brought by or against the company on such terms as the administrator thinks fit and to take security for the discharge of any debt forming part of the property of the company;
(ze) to pay any class of creditors in full, subject to Subdivision D of Division 6 of Part 5.6 of the Act;
(zf) to do anything that is incidental to exercising a power set out in this clause;
(zg) to do anything else that is necessary or convenient for the purpose of administering this deed.
3 Termination of deed where arrangement fails
If the administrator or the committee of inspection determines that it is no longer practicable or desirable either to continue to carry on the business of the company or to implement this deed, the administrator:
(a) may cease to carry on the business of the company except so far as is necessary for the beneficial winding up of the company;
(b) must summon a meeting of creditors for the purpose of passing a resolution under section 445C(b) of the Act; and
(c) must forward to each creditor not less than 14 days prior to the meeting an up-to-date report as to the position of the company accompanied by such financial statements as the administrator thinks fit, together with a statement that he or she does not think it practicable or desirable to carry on the business of the company or to continue this deed and that this deed will be terminated if the company's creditors resolve.
The administrator must apply the property of the company coming under his or her control under this deed in the order of priority specified in section 556, 560 or 561 of the Act.
5 Discharge of debts
The creditors must accept their entitlements under this deed in full satisfaction and complete discharge of all debts or claims which they have or claim to have against the company as at the day when the administration began and each of them will, if called upon to do so, execute and deliver to the company such forms of release of any such claim as the administrator requires.
6 Claims extinguished
If the administrator has paid to the creditors their full entitlements under this deed, all debts or claims, present or future, actual or contingent, due or which may become due by the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began and each claim against the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began is extinguished.
7 Bar to creditors' claims
Subject to section 444D of the Act this deed may be pleaded by the company against any creditor in bar of any debt or claim that is admissible under this deed and a creditor (whether the creditor's debt or claim is or is not admitted or established under this deed) must not, before the termination of this deed:
(a) take or concur in the taking of any step to wind up the company; or
(b) except for the purpose and to the extent provided in this deed, institute or prosecute any legal proceedings in relation to any debt incurred or alleged to have been incurred by the company before the day when the administration began; or
(c) take any further step (including any step by way of legal or equitable execution) in any proceedings pending against or in relation to the company at the day when the administration began; or
(d) exercise any right of set-off or cross-action to which the creditor would not have been entitled had the company been wound up at the day when the administration began; or
(e) commence or take any further step in any arbitration against the company or to which the company is a party.
8 Making claims
(1) Subdivisions A, B, C and E of Division 6 of Part 5.6 of the Corporations Act 2001 apply to claims made under this deed as if the references to the liquidator were references to the administrator of this deed.
(2) For subclause (1), the remainder of that Act, and the Corporations Regulations 2001 , are taken to apply, as far as practicable, as if:
(a) a reference that is relevant to the liquidator were a reference in a form that is applicable to the administrator; and
(b) a reference that is relevant to any other matter relating to liquidation were a reference in a form that is applicable to the administration of this deed; and
(c) a reference to a relevant date were a reference to the date of the administrator's appointment .
10 Lodging of accounts
Section 434 of the Act applies to the administrator as if the reference to a controller were a reference to the administrator of this deed.
11 Committee of inspection
For the purpose of advising and assisting the administrator of this deed, there may be a committee of inspection (the committee ) to which the following rules apply:
(a) the committee must consist of at least 3 and not more than 5 members;
(b) the creditors must appoint the members in a general meeting;
(c) a creditor is not entitled to have more than one representative (including the creditor himself or herself, if a natural person) on the committee;
(d) minutes of all resolutions and proceedings of each meeting of the committee must be made and duly entered in books to be provided from time to time for that purpose by the administrator under this deed;
(e) if the minutes of a meeting purport to be signed by the chairperson of the meeting at which the resolutions were passed or proceedings taken or by the chairperson of the next meeting of the committee, the minutes are prima facie evidence of the matters contained in them;
(f) unless the contrary is proved, the meeting is taken to have been duly had and convened and all resolutions passed and proceedings taken at the meeting are taken to have been duly passed and taken;
(g) a corporation (being otherwise qualified for membership of the committee) is not entitled to be a member of the committee but may appoint a person to represent it on the committee;
(h) subsection 548(3) and sections 549, 550 and 551 of the Act apply, with such modifications as are necessary, to a committee of inspection established under this deed as if the references to the liquidator were references to the administrator of this deed and the references to contributories were deleted.
12 Termination of deed where arrangement achieves purpose
If the administrator has applied all of the proceeds of the realisation of the assets available for the payment of creditors or has paid to the creditors the sum of 100 cents in the dollar or any lesser sum determined by the creditors at a general meeting, the administrator must certify to that effect in writing and must within 28 days lodge with ASIC a notice of termination of this deed in the following form:
'X PTY LIMITED
I, ( insert name and address ) as administrator of the deed of company arrangement executed on ( insert date ), CERTIFY that the deed has been wholly effectuated.',
and the execution of the notice terminates this deed, but nothing in this clause relieves the administrator of his or her obligations under clause 10 of this deed.