Administrator may re-negotiate contracts or prepare proposal or both
(1) The Administrator may, in the administration of the Administered Companies, at his sole discretion, take any one or both of the following actions:
(a) re-negotiate the terms and conditions of any contracts or agreements of the Administered Companies with the counterparties;
(b) prepare a proposal with respect to the Administered Companies or any claims and liabilities against or of the Administered Companies.
(2) The proposal referred to in subsection (1)(b) may include any provision as the Administrator thinks fit.
(3) Without prejudice to the generality of subsection (2), the proposal may provide for the transfer of any property, business or liability of the Administered Companies to a person named in the proposal—
(a) by means of vesting under Part V; or
(b) in accordance with the relevant law applicable to effect the transfer of such property, business or liability.
(4) The Administrator shall, upon the completion of the proposal under subsection (1), submit the proposal to the Independent Advisor and the appointer.
Appointment and qualifications of Independent Advisor
(1) Upon being notified by the Administrator that a proposal will be prepared under section 17, the appointer shall appoint an Independent Advisor.
(2) No person shall be appointed as an Independent Advisor unless—
(a) the person has consented in writing to the appointment;
(b) the person is independent of the appointer, management and board of directors of the Administered Companies and the Malaysia Airlines Berhad, and has no interest whatsoever in the Administered Companies and the Malaysia Airlines Berhad; and
(c) the person is—
(i) an investment bank;
(ii) a firm of accountants; or
(iii) a person (other than a natural person) who is permitted to carry on the activity of advising on corporate finance which is a regulated activity under the Capital Markets and Services Act 2007 [Act 671] and who, in the opinion of the appointer, has the requisite experience or is capable of performing the duties of an Independent Advisor.
Review of proposal by Independent Advisor
(1) The Independent Advisor shall carry out a review of the proposal prepared by the Administrator under section 17.
(2) In reviewing the proposal, the Independent Advisor may take into consideration—
(a) the interests of all persons affected by the proposal, including the creditors, the Administered Companies and the Malaysia Airlines Berhad, if applicable, giving each category of persons affected by the proposal such weightage as he thinks fit; or
(b) such other matters or consideration as the Independent Advisor may consider relevant or appropriate under the circumstances.
(3) Upon the completion of the review, the Independent Advisor shall prepare a report on his review and submit the report to the Administrator and the appointer.
Decision of the appointer
(1) The appointer shall consider the proposal of the Administrator together with the report of the Independent Advisor submitted to the appointer under subsection 19(3).
(2) Where the appointer approves the proposal, the Administrator shall implement the proposal in accordance with its terms.
(3) Where the appointer rejects the proposal, the appointer may—
(a) direct the Administrator to revise the proposal;
(b) direct the Administrator to prepare a new proposal; or
(c) terminate the administration of the Administered Companies.
Implementation of proposal
(1) Where the approval of a regulatory body is required to implement the proposal and conditions are imposed by the regulatory body, the Administrator shall refer the conditions imposed to the appointer.
(2) If the appointer thinks that the conditions are not in the interest of the Administered Companies, the appointer may—
(a) direct the Administrator to revise the proposal;
(b) direct the Administrator to prepare a new proposal; or
(c) terminate the administration of the Administered Companies.
(3) Prior to the implementation of the proposal, the Administrator shall send a copy of the proposal and the report of the Independent Advisor by registered post to the last-known address of or through electronic medium to each of the creditors of the Administered Companies affected by the proposal and any other persons affected by the terms of the proposal.
(4) Notwithstanding the provisions of any law or contract, the Administrator shall have the power to implement and do all things necessary to fully and effectively carry out and give effect to the proposal or any part of the proposal without the need for any notice to or approval or consent of any member or creditor of the Administered Companies or any other person affected by the proposal and the proposal shall be binding on the Administered Companies, the creditors of the Administered Companies and all persons affected by the terms of the proposal, including the Malaysia Airlines Berhad, if applicable.
(5) Notwithstanding anything to the contrary in any law of guarantee—
(a) the implementation of a proposal under this section shall not release or discharge any security provided by any person to secure any duty or liability owed by the Administered Companies to any of its creditor; and
(b) each such security and any such duty or liability of the person providing the security shall remain valid and enforceable against that person notwithstanding the implementation of the proposal, or any compromise, arrangement, reconstruction or amalgamation in connection with the Administered Companies.
(6) Notwithstanding the failure to notify any creditors of the Administered Companies and persons affected by the terms of the proposal in accordance with the requirements of subsection (3), such failure shall not affect the validity of the proposal.
Transfer of property or liabilities
(1) If the proposal directs that property or liabilities are to be transferred, the Administrator shall transfer the property or liabilities to the transferee in accordance with the vesting provisions under Part V and the terms and conditions set out in the proposal.
(2) For the purpose of this section, a reference to “Malaysia Airlines Berhad” in Part V shall be construed as a reference to the proposed transferee named in the proposal.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
