UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA

Transcription

1 Leib M. Lerner (CA State Bar No. ) Jeffrey E. Tsai (CA State Bar No. 1) ALSTON & BIRD LLP 0 University Avenue, th Floor East Palo Alto, CA 0- Telephone: (0) -00 leib.lerner@alston.com jeff.tsai@alston.com AND Aaron Javian (Pro hac vice to be requested) Adam S. Lurie (Pro hac vice to be requested) LINKLATERS LLP Avenue of the Americas New York, NY Telephone: () -000 aaron.javian@linklaters.com adam.lurie@linklaters.com Attorneys for the Petitioner In re: Forge Group Power Pty Ltd. (in liquidation) (receivers and managers appointed), UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA Debtor in a Foreign Proceeding Case No.: Chapter -000 DECLARATION OF PRZEMYSLAW KUCHARSKI AS TO MATTERS OF AUSTRALIAN LAW IN SUPPORT OF (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND RELATED RELIEF AND (II) FOREIGN REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page 1 of 1

2 Przemyslaw Kucharski, pursuant to U.S.C., hereby declares under penalty of perjury as follows: 1. I am a Senior Associate employed by the Australian law firm Allens, that has been retained by Messrs. Mark Mentha and Scott Langdon of KordaMentha in their capacity as joint and several receivers and managers (the Receivers ) of Forge Power Pty Ltd. (in liquidation) (receivers and managers appointed) ( Forge Power ). I am duly authorised to make this declaration on behalf of Martin Jones of Ferrier Hodgson, as liquidator of Forge Power (the Liquidator ).. I was admitted as a solicitor of the Supreme Court of New South Wales in 0. I am also admitted as a legal practitioner of the High Court of Australia which admission entitles me to appear in the Federal Court of Australia. I have specialised in commercial litigation, and corporate restructuring and insolvency law since 0. I hold a Master of Laws from the University of Sydney.. I submit this declaration in support of (i) Verified Petition Under Chapter for Recognition of Foreign Proceeding and Related Relief and (ii) Emergency Motion for Entry of Provisional Relief Under U S.C. (a), 1 and 1 in Aid of Australian Foreign Proceeding.. This declaration is comprised of matters that are statements of legal opinion and/or statements of fact. Where the matters stated in this declaration are statements of legal opinion, such statements represent my view of Australian law as a practicing lawyer.. Where the matters stated in this declaration are statements of fact that are within my personal knowledge, they are true. Where the matters stated in this declaration are statements of fact that are not within my personal knowledge, they are derived from documents and/or information supplied to me by or on behalf of the Receivers and/or the Liquidator and are true to the best of my knowledge, information and belief. (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

3 A. Current Forms of Corporate Insolvency under Australian Law. In Australia, the formation, operation and dissolution of companies is primarily regulated by the AUSTRALIAN CORPORATIONS ACT 01 (Cth) (the Corporations Act ). 1 Unless stated otherwise, where I refer below to provisions of legislation I am referring to sections of the Corporations Act.. In general, the Corporations Act applies to companies that are either registered or registrable. Locally formed companies, such as Forge Power, are registered on incorporation.. The Corporations Act provides for five principal formal procedures to address the insolvency of, or the restructuring of the business affairs if approaching insolvency, of a company: (a) administration; (b) deed of company arrangement; (c) liquidation; (d) receivership; and (e) scheme of arrangement.. As administration, liquidation and receivership are the forms of formal insolvency procedures relevant to the circumstances of Forge Power, I have addressed only those formal procedures in the paragraphs below. 1. Administration. The object of the administration process is stated in section A as being to provide for the business, property and affairs of an insolvent company to be administered in a way that: 1 The Corporations Act in its entirety is publicly available on the Internet. Corporations Act (Cth) 01, available at (last visited Jan., ). (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

4 (a) maximizes the chances of the company, or as much as possible of its business, continuing in existence; or (b) 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.. The administration process commences with the appointment of an administrator. A voluntary administration is commenced by a company when its board resolves that the company is insolvent or is likely to become insolvent at some future time, provided that the company has not already been wound up (section A).. While a company is under administration, subject to certain limitations on the administrator's rights stemming from any concurrent appointment of any receiver, section A provides that the administrator: (a) has control of the company s business, property and affairs; (b) may carry on that business and manage the company s property and affairs; and (c) may perform any function, and exercise any power, that the company or any of its officers could perform or exercise if the company were not under administration.. The administrator acts as the company s agent with the full powers of its officers (sections A and B). The powers of the company s officers are suspended (section C(l)). Subject to the rights of a receiver (section 1A()), only the administrator may deal with the company s property during the administration. Any dealing with the company s property by anyone else (other than a receiver) will be void (unless the administrator consented to it or it was pursuant to a court order (section D)). (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

5 The administration procedure automatically imposes a general moratorium on the rights of most creditors during the period of the administration. Amongst other things, the moratorium prevents, subject to certain exceptions (that are not material in relation to this application), commencement or continuation of court proceeding against the company without the administrator s written consent or leave of the court (section 0D).. In essence, the administration procedure provides the company with a statutory moratorium to allow an independent administrator to investigate the company s affairs and form an opinion, to be conveyed to creditors, about the alternatives for the future of the company. At the meeting of the company s creditors convened to decide the company s future, creditors are presented with the administrator s report, which sets out the available options and provides a recommendation in relation to those alternatives. At this meeting, creditors choose among the following three alternatives: (a) that the company execute a deed of company arrangement (DOCA) if any is proposed (section C(A)); or (b) that the administration should end (i.e. that the company should be handed back to the control of the directors) (section C(b)); or (c) that the company be wound up (section C(c)). 1. A resolution of creditors is only passed if a majority of creditors in both number and value vote in favour of it. If a majority of creditors in either value or number, but not both, vote in favour of a resolution then the resolution is decided by the casting vote of the chairman of the meeting. It is usual for the administrator to chair the meeting of creditors. (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

6 In the case of Forge Power, the majority of creditors resolved that the company be wound up in liquidation in accordance, thereby commencing a creditors voluntary liquidation in accordance with section B of the Corporations Act.. Liquidation 1. Liquidation (or a winding-up ) is the process of collecting and realising the assets of a company, discharging its debts and liabilities and distributing the balance, if any, among the stakeholders according to their entitlements. The liquidator ascertains the liabilities of the company, realises the assets of the company, terminates its contracts, disposes of its business, distributes the net assets to creditors and any surplus to the shareholders, and extinguishes the company as a legal entity by formal dissolution (i.e., deregistration). Liquidation may be voluntary or imposed by court order. 1. A winding-up is classified according to the way it is commenced. A winding- up by the court (sometimes referred to as compulsory winding-up ) is generally commenced in the Federal Court, or in a Supreme Court of a state or territory. A winding-up may also be commenced voluntarily by a company s members (referred to as a members winding up) or by its creditors (referred to as a creditors winding-up). In the case of Forge Power, the liquidation is a creditors voluntary winding-up.. Putting to one side for the moment the relevance of a secured creditor and any receivers appointed by it, the main effects of a company going into a compulsory or voluntary winding-up are as follows: (a) the directors may not perform or exercise their functions or powers except in specific circumstances (section 1A); (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

7 (b) the company is to cease carrying on its business except so far as is, in the opinion of the liquidator, required for the beneficial winding-up of the company (section ); (c) no court proceeding against the company may be commenced or continued, nor may any enforcement process be validly taken against its property (except, with leave of the court) (section 1B); (d) the liquidator takes custody of all property of the company (section ); (e) transfers of shares after the commencement of the winding-up are void unless consented to by the liquidator or a court (section A); and (f) every invoice, order for goods or business letter must bear the words in liquidation after the company s name (section 1). 1. Numerous provisions in the Corporations Act confer jurisdiction on both the Federal Court and the Supreme Court of each of the states and territories of Australia to in effect exercise a general supervisory jurisdiction in relation to any winding up. This substantial judicial oversight can be invoked by interested persons, including a creditor, the Australian Securities and Investment Commission ( ASIC ), Australia s corporate regulator, and any person aggrieved by any act, omission or decision of the liquidator (section 1). In particular, the following provisions of the Corporations Act enable the stated Australian superior courts to exercise a general supervisory jurisdiction in relation to the liquidation in general, and the conduct of the liquidator in particular: Section 0 0 The Court may, on cause show, remove a liquidator and appoint another liquidator. Section (1) (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

8 (1) The liquidator or any contributory or creditor, may apply to the Court: (a) (b) to determine any question arising in the winding up of a company; or to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court. Section () () The Court, if satisfied that the determination of the question or exercise of power will be just and beneficial, may accede wholly or partially to any such application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just. Section (1) Where; (a) it appears to the Court or to ASIC that a liquidator has not faithfully performed or is not faithfully performing his or her duties or has not observed or is not observing: (b) (i) (ii) a requirement of the Court; or a requirement of this Act, of the regulations or the rules; or a complaint is made to the Court or to ASIC by any person with respect to the conduct of a liquidator in connection with the performance of his or her duties; the Court or ASIC, as the case may be, may enquire into the matter and, where the Court or ASIC so enquires, the Court may take such action as it thinks fit. () The Court may at any time require a liquidator to answer any enquiry in relation to the winding up and may examine the liquidator or any other person on oath concerning the winding up and may direct an investigation to be made of the books of the (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

9 liquidator.. Upon appointment, a liquidator will assume control of the company and its property. While the directors do not lose their office, they can act only with the written approval of the liquidator or the approval of the court (section 1A). A liquidator s functions include (a) winding-up the affairs of the company; (b) distributing equitably the company s assets among its creditors; and (c) examining the circumstances which precipitated the liquidation and which may reveal improper dispositions of property and criminal offences.. Liquidators owe a fiduciary duty to the company, as an embodiment of the interests of the company s creditors and members as a whole. In addition, by virtue of the Corporations Act, liquidators are officers of the company who owe statutory duties to the company, including: (a) to act honestly, in good faith, for proper purposes and in the best interests of the company (section ); (b) to avoid a conflict of the liquidator s personal interests with the interests of the company, its members and its creditors, including not profiting from their position as liquidators (section ); and (c) ). to not make improper use of inside information to gain an advantage (section. The liquidators are also bound by duties that include the following: (a) to complete the administration of the affairs of the company within a reasonable time and without protracting the liquidation where there is no reason to do so (section 0); (b) to seek the advice of professionals in the areas in which they are not qualified (City & Suburban v Smith as liquidator of Conpac [1] ACSR (Austl.)); (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

10 (c) to act with a reasonable degree of care and skill (Gray v Bridgestone Aust Ltd [1] ACLC 0 (Austl.)); and (d) to keep proper books containing entries or minutes of proceedings at meeting and other such matters as prescribed (sections 1, ).. The court has oversight in respect of these fiduciary and statutory duties.. The powers of the liquidators are also set out in the Corporations Act, and include: (a) All the powers conferred on a liquidator in an insolvent or compulsory winding up (section 0(1)), including: (b) (i) carrying on the business of the company; (ii) making any compromise or arrangement with creditors or persons claiming to be creditors or alleging that they have a claim against the company; and (iii) compromising any calls, liabilities to calls, debts, liabilities capable of resulting in debts and any claims against the company. In addition to these general powers, the liquidators have the power to do all such things as are necessary for the winding up of the affairs of the company and distributing company property (section ()(m)), including: (i) the power to bring or defend legal proceedings in the name of the company (section ()(a)); (ii) the power to do all acts and execute in the company s name and on behalf of the company all deeds, receipts and other documents, and when necessary, use the company seal (section ()(d)); and (iii) the power to fix a time within which debts and claims must be proved (section 0(1)(e)). (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

11 After collecting the assets and after the time fixed for the adjudication of claims, a liquidator can make distributions to creditors. With respect to an insolvent company, there is a prescribed order of payment of debts. In general, and subject to the exceptions outlined below (including receivership and the existence of a secured creditor), the starting point is that, unless otherwise provided, all debts proved in a winding-up rank equally and, if the property of the company is insufficient to meet them in full, they are to be paid ratably.. A statutory order of priority debts payable ahead of any other debts owed to other creditors of the company is set forth in section of the Corporations Act, and is summarised as follows: (a) expenses (except for remuneration and fees) properly incurred by the liquidator or any voluntary administrator or deed administrator in preserving, realising or getting in property of the company, or in carrying on the company s business; (b) (c) (d) if the court ordered the winding-up, the costs in respect of the application for the order, certain prescribed debts incurred by an administrator of the company; administrator; (e) (f) (g) (h) certain other expenses incurred in the insolvent administration of the company; remuneration and fees of the liquidator and of any voluntary administrator or deed wages and superannuation payments to employees; amounts due in respect of injury compensation; amounts due in respect of leave entitlements; and retrenchment payments.. If there is not enough property of a company to meet all the priority debts and a category of priority debts cannot be paid in full, debts in that category are to be paid proportionately. (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

12 If all priority debts have been paid, the liquidator may then pay the remaining unsecured debts which have been proved. Subject to the exceptions outlined below, if there is a deficiency of property, the debts are to be paid proportionately. 1. Any surplus remaining after payment of all debts will normally be distributable among the equity holders.. Receivership. In Australia, the concept of receivership generally refers to the process in which a receiver (or receiver and manager) is appointed to a company by a secured creditor to collect or protect property for the benefit of that secured creditor.. A receiver may be appointed by a court or a receiver may be appointed out of court.. Appointments out of court can be made: (a) by way of power contained in a statute of the Commonwealth of Australia or each of the Australian states; or (b) by an express power in a debenture.. By far the most common form of appointment out of court is by an express power set out in a debenture. This is what has happened in relation to the appointment of the Receivers to Forge Power.. In general terms, the primary goal of a receiver who has been appointed out of court is to recover and realise the assets the subject of his or her appointment, repay the debenture holder who appointed him or her, and return any surplus to the company. Section of the Corporations Act identifies a small number of exceptions to this general principle. Those exceptions primarily relate to particular groups of creditors (such as creditors with particular insurance claims and certain entitlements of employees of the company). (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

13 The effects of the appointment of a receiver out of court on a company are numerous. Amongst other things, an appointment has the following effect: (a) The receiver who is appointed will usually act as the agent of the company. This agency relationship will continue between the receiver and the company up until the receivership is terminated or the company goes into liquidation. Upon liquidation, the continuation of the receiver s agency on behalf of the company will be subject to the will of the liquidator. However, in any event, the receiver will continue to carry out the functions described in paragraph above. (b) The appointment of a receiver has a significant effect on the management of the company. As Street J said in Hawkesbury Development Co Limited v Landmark Finance Pty Ltd [ 0] WN (NSW) 1, (Austl.): Receivership and management may well dominate exclusively a company s affairs in its dealings and relations with the outside world. But it does not permeate the company s internal domestic structure. The structure continues to exist notwithstanding that the directors no longer have authority to exercise their ordinary business-management functions. A valid receivership and management will ordinarily supersede, but not destroy, the company s own organs through which it conducts if affairs. The capacity of those organs to function bears a direct inverse relationship to the validity and scope of the receivership and management. As a result, directors will have no power over the assets in the possession (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

14 (c) and control of a receiver during a receivership (section ). The receiver can recover any property of the company by bringing proceedings in the name of the company and, once possession of any property has been taken by the receiver on behalf of the company, the receiver may liquidate it in order to repay the secured creditor. The receiver is obliged on his or her retirement to return any surplus property to the company (or its administrator or liquidator if applicable). (d) Generally speaking, a creditor who has obtained a judgment against the company for a liquidated sum will not take priority over the rights of the secured creditor appointing the receiver. (e) Finally, pursuant to ss, 1A and 1D of the Corporations Act the holder of a charge (debenture holder) that covers all or substantially all of the assets of the company has within business days from the date of the appointment of an administrator of a corporation, to enforce a debenture if the debenture holder decides to do so. Sometimes debenture holders decide not to exercise this option and allow an administrator to deal with the assets and property of a company subject to the rights of the debenture holder. On other occasions the debenture holder will proceed to enforce its security by the appointment of a receiver within the business day period. Should a receiver be appointed pursuant to such a debenture, then the appointment of the receiver overrides the power of the administrator to take the control and possession of the property of the company in administration (section 1A()).. The receiver is also liable for certain debts that he or she incurs in the course of the receivership when the receiver enters into possession of or assumes control of the property of the corporation for the purposes of enforcing a debenture. This will be the case (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

15 notwithstanding any agreement to the contrary (section 1(1)). Most receivers will be entitled to an indemnity from the company, secured by a lien over the assets of the company for all debts legitimately incurred during the course of the receivership by virtue of the terms and conditions of the debenture itself.. A receiver who has been appointed out of court will derive their powers from two sources. The first is from the terms of the debenture under which the receiver has been appointed, and the second source of power is section of the Corporations Act. Without limiting any powers that may be contained in the particular debenture, the powers set out in the Corporations Act are wide reaching, including the power to enter into possession and take control of property of the corporation in accordance with the terms of the debenture, to carry on any business of the corporation, and to enforce payment of any call that is due and unpaid, whether the calls were made by the receiver or otherwise. 0. In addition to the primary duty of a receiver to gather in, manage and realize the assets the subject of the debenture with a view to repaying the secured creditor s debt, a receiver who has been appointed to the company has many other duties and liabilities. These duties and liabilities arise under general law and under statute. These duties and liabilities are also wide ranging. Some of the duties are administrative in nature (such as duties of reporting and filing documents with ASIC along with duties concerning compliance with notifications to the Australian Taxation Office), while other duties and liabilities deal with the general conduct of the receiver (such as the receiver's duty of care in exercising their power of sale under section A). 1. Upon the conclusion of a receivership, the company will continue to exist, and the control of all of the property of the company will be returned to the company s board of directors. This is unless another receiver or an administrator, deed administrator or liquidator has taken office (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

16 in relation to the company, in which case they will take control of any remaining property of the company. B. Role of the Court in Receiverships. Courts in Australia have general supervisory jurisdiction over receiverships, which may be invoked by interested persons, including creditors, the receiver or ASIC.. Pursuant to sections (1) and () of the Corporations Act, a receiver may apply to the court for directions in relation to any matter arising in connection with the performance or exercise of any of the receiver s functions and powers. This is a procedure stipulated by statute that is intended to give a receiver direct access to the court. a receiver:. Further, the court may act in the following ways concerning the conduct and action of (a) if it appears to the court or to ASIC that a receiver has not faithfully performed its functions then the court may inquire into the matter and the court may take such action as it thinks fit (section (1)). Any person has the power to complain to the court under this provision about any act or omission of the receivers; (b) the court may require or examine a receiver to answer questions about the performance or exercise of any of its functions or powers (section ()(a) and (b)). The court may also direct an investigation to be made into the books of a receiver (section ()(c)); (c) upon the request of a liquidator, administrator, the administrator of a deed of company arrangement or ASIC, the court may fix the amount to be paid by way of remuneration to any person who has been appointed as receiver (section ); (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page 1 of 1 1

17 (d) upon application of the company, the court may remove the receiver where it is satisfied that the receiver has been guilty of misconduct (section A); (e) where upon the application of a liquidator, the court may order that the receiver cease to act or that the receiver act only for a specified period (section B); and (f) any person aggrieved by any act, omission or decision of a receiver may appeal to the court in relation to the matter, and the court may confirm, reverse or remedy the decision and make such orders as it thinks necessary (section 1). C. Effect of the Receivership on Liquidation. A receivership and a liquidation can operate in relation to the one company at the same time. In general terms, the appointment of a liquidator will not affect a receiver possessing and controlling the assets of a company and realising them for the benefit of the debenture holder who appointed the receiver.. It should be noted however that the appointment of a liquidator where a company is already in receivership does not relieve the liquidator from carrying out the liquidator s statutory functions and duties. A liquidator may therefore investigate matters such as unfair preferences and any potential challenges to the validity of the debenture (and in turn the appointment of any receiver pursuant to any such debenture).. In circumstances where the receiver has been operating or managing the company as a going concern, the appointment of a liquidator will require the receiver to obtain the liquidator's written approval to continue to carry on the company s business (section C). This does not prevent the receiver from continuing to realise the assets for the benefit of the debenture holder. (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

18 The appointment of a liquidator does not require the receiver to return the books and records of the company to the liquidator. However, the liquidator is entitled to inspect and make copies of any such documents.. Finally, if receivers have been appointed prior to any liquidation then they are obliged to pay certain preferen tial debts out of the assets subject to the charge in priority to any claim for principal and interest under the debenture (section ). D. Application to the Circumstance of Forge Group 0. On February, Forge Power s board of directors resolved (the Board Resolutions ) to place Forge Power into voluntary administration and to appoint Messrs. Martin Jones, Andrew Saker and Ben Johnson of Ferrier Hodgson as administrators pursuant to section A of the Corporations Act. A moratorium staying certain creditor action against Forge Power went into effect under section 0D of the Corporations Act upon the commencement of Forge Power s voluntary administration. 1. When Forge Power was placed into voluntary administration by its directors, pursuant to section 1A and 1D of the Corporations Act, ANZ Fiduciary Services Pty Ltd in its capacity as trustee of the Forge Group Security Trust (the Security Trustee ) exercised its rights pursuant to the terms and conditions of the debenture granted by Forge Power (among others in the Forge Group) and appointed the Receivers to Forge Power on February. Accordingly, the Receivers have been empowered to deal with Forge Power s property since the commencement of the voluntary administration.. On 1 March the majority creditors of Forge Power resolved that the company should be would up and immediately placed into liquidation. By virtue of the resolution of creditors, and the Corporations Act, Messrs. Martin Jones, Andrew Saker and Ben Johnson were appointed as (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page 1 of 1 1

19 liquidators, having previously acted as administrators. Amongst other things, liquidators have authority under Australian law to bring or defend legal proceedings in the name of the company and to do all such other things as are necessary for winding up the affairs of the company and distributing its property. The Liquidator s authority under Australian law includes the power to commence a case to recognize Forge Power s liquidation proceeding in a foreign jurisdiction.. The Receivers continued to be empowered to deal with Forge Power s property upon the appointment of liquidators. As mentioned above, a moratorium staying certain creditor action against Forge Power, including the initiation or continuation of legal proceedings, remains in effect in a liquidation.. Both the Liquidator and Receivers remain subject to the general supervisory jurisdiction of the Courts and, as mentioned above, a number of parties may invoke that jurisdiction to review particular matters.. Both the liquidation and receivership of Forge Power will continue to operate concurrently. This means that a number of matters relating to Forge Power will be conducted by either the Liquidator or the Receivers. In particular: (a) the Receivers will primarily deal with and determine all issues relating to the assets and property of Forge Power. The Receivers will also be responsible for, and deal with, the on-going trading operations (if any) of Forge Power; and (b) the Liquidator will deal with the claims of unsecured creditors of Forge Power. The Liquidator will also deal with, and be responsible for, the winding up process in accordance with the Corporations Act.. As both the liquidation and receivership of Forge Power will continue to operate concurrently, the Receivers will remain in place until such time as the Security Trustee has been paid (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page 1 of 1 1

20 in full or the Receivers appointment has been terminated. The Liquidator will remain in place until the winding-up concludes with Forge Power s de-registration. If the Security Trustee is paid out in full, and there is a surplus of funds available for ratable distribution to unsecured creditors, the Liquidator will call for those unsecured creditors to provide proofs of debt. Once all funds available for distribution have been dealt with, by the Receivers or the Liquidator depending on the funds ultimately available, the Liquidator will take steps to conclude the winding up process in accordance with his power identified above. [Remainder of page intentionally left in blank] (I) VERIFIED PETITION UNDER CHAPTER FOR RECOGNITION OF FOREIGN AND PROVISIONAL RELIEF UNDER U.S.C., 1 AND 1 IN AID OF AUSTRALIAN FOREIGN Case: -000 Doc# Filed: 01/0/ Entered: 01/0/ 1:0: Page of 1

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