Clause 28

At any time when a judicial management order is in force, the Court may, on an application by the judicial manager, make one or more of the following orders:

an order that if the company is wound up, the debt arising from any rescue financing obtained, or to be obtained, by the company is to be treated as if it were part of the costs and expenses of the winding up mentioned in section 328(1)(a);

an order that if the company is wound up, the debt arising from any rescue financing obtained, or to be obtained, by the company is to have priority over all the preferential debts specified in section 328(1)(a) to (g) and all other unsecured debts, if the company would not have been able to obtain the rescue financing from any person unless the debt arising from the rescue financing is given the priority mentioned in this paragraph;

an order that the debt arising from any rescue financing to be obtained by the company is to be secured by —

a security interest on property of the company that is not otherwise subject to any security interest; or

a subordinate security interest on property of the company that is subject to an existing security interest,if the company would not have been able to obtain the rescue financing from any person unless the debt arising from the rescue financing is secured in the manner mentioned in this paragraph;

an order that the debt arising from any rescue financing to be obtained by the company is to be secured by a security interest, on property of the company that is subject to an existing security interest, of the same priority as or a higher priority than that existing security interest, if —

the company would not have been able to obtain the rescue financing from any person unless the debt arising from the rescue financing is secured in the manner mentioned in this paragraph; and (ii)there is adequate protection for the interests of the holder of that existing security interest.(2) A judicial manager that makes an application under subsection (1) must send a notice of the application to each creditor of the company.(3) Any creditor of the company may oppose an application under subsection (1).(4) Where a company that has 2 or more super priority debts is wound up, the super priority debts —

rank equally in priority between themselves; and

are to be paid in full or, if the company has insufficient property to meet them, are to abate in equal proportions between themselves.(5) Where a company that has 2 or more super priority debts is wound up, the super priority debts constitute one class of debts and, despite section 328 —

the super priority debts are to be paid in priority to all the preferential debts specified in section 328(1)(a) to (g) and all other unsecured debts; and

if the property of the company available for the payment of the super priority debts is insufficient to meet the super priority debts, the super priority debts —

have priority over the claims of the holders of any debentures of the company secured by a floating charge (which, as created, was a floating charge); and (ii)are to be paid out of any property comprised in or subject to that floating charge.(6) The reversal or modification on appeal of an order under subsection (1)(c) or (d) does not affect the validity of any debt so incurred, or any security interest that was granted pursuant to the order, or the priority of that security interest, if the rescue financing (from which arose the debt intended to be secured by that security interest) was provided in good faith, whether or not with knowledge of the appeal, unless the order was stayed pending the appeal before the rescue financing was provided.(7) For the purposes of subsection (1)(d)(ii), there is adequate protection for the interests of the holder of an existing security interest on the property of a company, if —

the Court orders the company to make one or more cash payments to the holder, the total amount of which is sufficient to compensate the holder for any decrease in the value of the holder’s existing security interest that may result from the making of the order under subsection (1)(d);

the Court orders the company to provide to the holder additional or replacement security of a value sufficient to compensate the holder for any decrease in the value of the holder’s existing security interest that may result from the making of the order under subsection (1)(d); or

the Court grants any relief (other than compensation) that will result in the realisation by the holder of the indubitable equivalent of the holder’s existing security interest.(8) Section 329 does not affect any priority conferred, any security interest or relief granted, or any payment made, pursuant to and in accordance with an order made by the Court under subsection (1).(9) The judicial manager must, within 14 days after the date of an order under subsection (1), lodge a copy of the order with the Registrar.(10) In this section —“rescue financing” means any financing that satisfies one or more of the following conditions:

the financing is necessary for the survival of a company that obtains the financing, or of the whole or any part of the undertaking of that company, as a going concern;

the financing is necessary for the Court’s approval under section 210(4) or 211I(6) of a compromise or an arrangement mentioned in section 210(1) or 211I(1) (as the case may be) involving a company that obtains the financing;

the financing is necessary to achieve a more advantageous realisation of the assets of a company that obtains the financing, than on a winding up of that company;“security interest” means any mortgage, charge, pledge, lien or other type of security interest recognised by law;“super priority debt” means a debt, arising from any rescue financing obtained or to be obtained by a company, that is to have priority, pursuant to an order under subsection (1)(b), over all the preferential debts specified in section 328(1)(a) to (g) and all other unsecured debts, if the company is wound up.”.