Amendments to Master Trust Deed
Summerset Group Holdings Limited
Level 27 Majestic Centre, 100 Willis St, Wellington
PO Box 5187, Wellington 6140
Phone: 04 894 7320 | Fax: 04 894 7319
Website: www.summerset.co.nz
NZX & ASX RELEASE
14 December 2018
AMENDMENTS TO MASTER TRUST DEED
Summerset Group Holdings Limited (Summerset) amended the master trust deed dated 30 May
2017 (Master Trust Deed) under which Summerset may issue debt securities from time to time.
Summerset currently has two series of fixed rate bonds issued under the Master Trust Deed (and a
supplemental trust deed dated 30 May 2017 and a supplemental trust deed dated 10 September
2018 (as amended by deed dated 14 September 2018)), quoted on the NZX Debt Market with NZX
ticker codes SUM010 and SUM020.
The amendments to the Master Trust Deed have been made to contemplate Australian
subsidiaries of Summerset joining the Guaranteeing Group (as defined in the Master Trust Deed
(as amended)).
A copy of the Master Trust Deed (as amended) is attached to this announcement and can be
found, free of charge, on Summerset’s website at https://www.summerset.co.nz/investor-
centre/bonds/.
ENDS
Leanne Walker
Company Secretary
leanne.walker@summerset.co.nz
04 894 7361 or 029 770 8189
ABOUT SUMMERSET
Summerset is one of the leading operators and developers of retirement villages in New
Zealand, with 24 villages completed or in development across the country. In addition,
Summerset has eight sites for development in Parnell (Auckland), St Johns (Auckland), Te
Awa (Napier), Pohutukawa Place (New Plymouth), Richmond (Tasman), Papamoa
(Tauranga), Kenepuru (Wellington) and Lower Hutt (Wellington), bringing the total number
of sites to 32.
It provides a range of living options and care services to more than 5,000 residents.
Four-time winner of Retirement Village of the Year and Silver Award winner in the Reader’s
Digest Quality Service Awards 2019.
The Summerset Group has villages in Aotea, Avonhead, Casebrook, Dunedin, Ellerslie,
Hamilton, Hastings, Havelock North, Hobsonville, Karaka, Katikati, Levin, Manukau, Napier,
Nelson, New Plymouth, Palmerston North, Paraparaumu, Rototuna, Taupo, Trentham,
Wanganui, Warkworth and Wigram.
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Amendment and
Restatement Deed
relating to a Master
Trust Deed
Summerset Group Holdings Limited (Issuer)
The New Zealand Guardian Trust Company
Limited (Supervisor)
100346133/3735730.3 1
AMENDMENT AND RESTATEMENT DEED RELATING TO A MASTER TRUST DEED
Date:
PARTIES
BACKGROUND
A The Issuer and the Supervisor are parties to a Master Trust Deed dated 30 May
2017 (the Master Trust Deed).
B The parties to this deed have agreed to amend and restate the terms of the Master
Trust Deed to contemplate Australian subsidiaries of the Issuer joining the
Guaranteeing Group.
C Clause 19.2(b)(i) permits amendments to the Master Trust Deed without the
consent of Holders if the Supervisor is satisfied that such amendment does not have
a material adverse effect on Retail Holders.
D The Supervisor is of the opinion that the amendments to the Master Trust Deed
effected by this deed do not have a material adverse effect on Retail Holders.
THE PARTIES AGREE as follows:
1 DEFINITIONS
In this deed, unless the context requires otherwise, words and expressions defined,
and references construed, in the Master Trust Deed (as amended by this deed) and
not otherwise defined or construed in this deed have the same meanings and
constructions when used in this deed. In addition, unless the context requires
otherwise:
Effective Date means the date of this deed; and
Existing Master Trust Deed means the Master Trust Deed immediately prior to it
being amended and restated by this deed.
2 AMENDMENT AND RESTATEMENT
With effect on and from the Effective Date the Master Trust Deed is amended and
restated in the form set out in the schedule to this deed.
3 CONTINUATION
Each of the parties to this deed agrees that on and from the Effective Date:
(a) the Master Trust Deed as amended and restated by clause 2 of this deed will
continue in full force and effect; and
Summerset Group Holdings Limited (Issuer)
The New Zealand Guardian Trust Company Limited (Supervisor)
AMENDMENT AND RESTATEMENT DEED RELATING TO A MASTER TRUST DEED
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(b) all references in each other agreement between them to the Master Trust
Deed will be a reference to the Master Trust Deed as amended and restated
by this deed.
4 NOTICE OF AMENDMENTS
For the purposes of clauses 19.2 and 23.1 of the Master Trust Deed, the Supervisor
and the Issuer agree that the Issuer shall give notice of the amendments made by
this deed by way of announcement to NZX Limited, and such notice will be effective
upon public release by NZX.
5 COUNTERPARTS
This deed may be signed in any number of counterparts all of which, when taken
together, will constitute one and the same instrument. Once the parties have signed
the counterparts, each counterpart shall be deemed to be as valid and binding on
the party executing it as if it had been executed by all the parties.
6 GOVERNING LAW
This deed will be governed by New Zealand law.
7 DELIVERY
For the purposes of section 9 of the Property Law Act 2007, and without limiting any
other mode of delivery, this deed will be delivered by each of the parties to this deed
immediately on the earlier of:
(a) physical delivery of an original of this deed, executed by that party, into the
custody of each of the other parties or its solicitors; or
(b) transmission by that party or its solicitors (or any other person authorised in
writing by that party) of a facsimile, photocopied or scanned copy of an
original of this deed, executed by that party, to each of the other parties or its
solicitors.
AMENDMENT AND RESTATEMENT DEED RELATING TO A MASTER TRUST DEED
100346133/3735730.3 5
SCHEDULE – AMENDED AND RESTATED MASTER TRUST DEED
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Summerset Group Holdings Limited (as Issuer)
The New Zealand Guardian Trust Company
Limited
(as Supervisor)
Master Trust Deed
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CONTENTS
INTRODUCTION 1
1 INTERPRETATION 1
1.1 Definitions 1
1.2 References 17
1.3 Cross references and Statutory definitions 19
1.4 Construction 20
2 ISSUE AND FORM OF BONDS 20
2.1 Power to issue Bonds 20
2.2 Form of Bonds 20
2.3 Creation and issue 21
2.4 Listing 21
2.5 Supplemental Deed 21
2.6 Enforcement of Holders’ rights 21
2.7 Form of Bonds 22
2.8 Minimum Principal Amount 22
3 STATUS OF BONDS 22
3.1 Status of Bonds generally 22
3.2 Status of Bonds 22
3.3 Purchase or cancellation 23
4 TITLE AND TRANSFER 23
4.1 Certificates 23
4.2 Form of transfer 23
4.3 Bonds separate 23
4.4 Partial transfers 23
4.5 Fees 24
4.6 Selling restrictions 24
4.7 Indemnity for breach of selling restrictions 24
5 REGISTER 25
5.1 Register 25
5.2 Disclosure and Inspection 25
5.3 Register conclusive 25
5.4 Correction of errors 25
5.5 Co-ownership Bonds 25
5.6 Acquisition of Bonds by operation of law 26
5.7 Notification by Holders 26
5.8 Register compliance 26
5.9 Reliance on documents 26
5.10 No liability 27
6 PAYMENT OF PRINCIPAL AMOUNT AND INTEREST 27
6.1 Determination of Principal Amount 27
6.2 Principal Amount of Retail Bonds 27
6.3 Interest and other amounts on Retail Bonds 27
6.4 Payments to Retail Holders 27
6.5 Payments to Wholesale Holders 27
6.6 Non-standard Interest Period 28
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6.7 Non-payment 28
6.8 Default Interest 28
6.9 Payments through Registrar as Paying Agent 28
7 PAYMENTS 28
7.1 Payment to Holder 28
7.2 Method of payment 29
7.3 Receipt of Payments 29
7.4 Business day 29
7.5 Unclaimed payments 30
7.6 Reinstatement 30
8 TAXES 30
8.1 Deductions or withholdings 30
8.2 Non-resident withholding tax 31
8.3 Resident withholding tax 31
8.4 No gross-up; indemnity 32
8.5 Maximum rate 32
8.6 Tax status 32
8.7 Tax details 32
9 REPRESENTATIONS AND WARRANTIES 33
9.1 Issuer representations and warranties 33
9.2 Supplemental Deed 33
9.3 Repetition 33
10 UNDERTAKINGS 34
10.1 General undertakings 34
10.2 Financial Undertaking 35
10.3 Supplemental Undertakings 35
10.4 Reports and information 36
10.5 Negative Undertakings 37
10.6 Appointment of Auditor 38
10.7 Resignation 39
11 DEFAULT 39
11.1 Events of Default 39
11.2 Event of Review 41
11.3 Distribution of funds in respect of Bonds 42
12 APPOINTMENT OF SUPERVISOR 42
12.1 Appointment 42
12.2 Warranty 42
13 SUPERVISOR'S FEES, EXPENSES AND INDEMNITIES 43
13.1 Fees 43
13.2 Expenses 43
13.3 Enforcement 43
13.4 Indemnity by Issuer 43
13.5 Indemnity by Holders 43
13.6 Payments 44
13.7 Primary Obligations 44
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14 SUPERVISOR’S POWERS 44
14.1 General powers 44
14.2 Retail Series 44
15 EXERCISE OF SUPERVISOR’S POWERS 47
15.1 Discretion 47
15.2 Reliance 47
15.3 Subscribers' Moneys 48
15.4 Delegation 48
15.5 Supervisor’s consent 48
15.6 Fiduciary relationship 48
15.7 Confidentiality 49
15.8 Binding on all Holders 49
15.9 No obligation to consult 49
15.10 Knowledge of default 49
15.11 Wholesale Issues 50
16 REPLACEMENT OF SUPERVISOR 50
16.1 Resignation or removal of Supervisor 50
16.2 Requirements for retirement and removal 50
16.3 Appointment of a new Supervisor 51
16.4 Approval by Extraordinary Resolution 51
16.5 Failure to Appoint Supervisor 51
16.6 Successor Supervisor 51
16.7 Notice 51
17 LIABILITY OF SUPERVISOR 52
17.1 Supervisor not Indemnified 52
17.2 Duty of Care 52
18 BENEFIT OF DEED 52
19 AMENDMENTS 52
19.1 Limited right to amend 52
19.2 Amendment of Master Trust Deed and Supplemental Deed without consent of
Holders 52
19.3 Amendment of Master Trust Deed and Supplemental Deed with consent of Holders53
19.4 Amendment of Security Documents without consent of Holders 54
19.5 Amendment of Security Documents with consent of Holders 54
19.6 Single meeting 55
19.7 Notice 55
20 WAIVER 55
20.1 Waivers 55
20.2 Temporary Variation 55
20.3 Statutory Exemptions 56
21 SUBSTITUTION 56
21.1 Substitution 56
21.2 Release of substituted issuer 58
21.3 Completion of Substitution 58
22 MEETINGS OF HOLDERS 58
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22.1 Meetings 58
22.2 Resolutions of Holders 58
22.3 No voting by Issuer 59
23 NOTICES 59
23.1 Writing 59
23.2 Initial address and numbers 60
23.3 Joint Holders 60
24 MISCELLANEOUS 60
24.1 Registration of deed 60
24.2 Waivers and remedies 60
24.3 Partial Invalidity 60
24.4 Further issues 61
24.5 Documents 61
24.6 Survival 61
24.7 Remedies Cumulative 61
24.8 Counterparts 61
25 RELEASE 61
26 GOVERNING LAW AND JURISDICTION 62
26.1 Governing law 62
26.2 Submission to jurisdiction 62
27 DELIVERY 62
28 CONTRACTS (PRIVITY) ACT 1982 62
SCHEDULE 1: MEETINGS OF RETAIL HOLDERS OR ALL HOLDERS 65
SCHEDULE 2: MEETINGS OF WHOLESALE HOLDERS ONLY 78
SCHEDULE 3: FORM OF DIRECTORS’ REPORT 89
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1
MASTER TRUST DEED
Date:
PARTIES
Summerset Group Holdings Limited (company number 1564271) (the Issuer)
The New Zealand Guardian Trust Company Limited (company number 115240) (the
Supervisor)
INTRODUCTION
A The Issuer is incorporated under the Companies Act 1993. The Issuer proposes to
establish a bond programme under which it may from time to time issue Bonds.
B Each issue of Bonds will be constituted by, and issued on terms set out in, this deed
as supplemented by the relevant Supplemental Deed.
C The Supervisor has agreed, at the request of the Issuer, to act as Supervisor for the
Holders of each Retail Series and, to the limited extent provided for in this deed, for
the benefit of the Holders of each Wholesale Series, on the terms and conditions of
this deed.
IT IS AGREED:
1 INTERPRETATION
1.1 Definitions
In this deed, unless the context otherwise requires:
Agent means ANZ Bank New Zealand Limited and such other agent as may be
appointed from time to time under any Bank Facility Agreement.
Agency Agreement means, in respect of a Series, the registrar and agency
agreement (however described) between the Issuer and the persons appointed as
registrar, paying agent and, if applicable, Calculation Agent for that Series.
Approved Issuer Levy means, in relation to any payment of interest (as defined in
section 86F of the Stamp and Cheque Duties Act 1971) under any Bond, the levy
payable by the Issuer in accordance with Part 6B of that Act.
Auditor means a qualified auditor for the time being of the Issuer.
Australian GSD means the ‘General Security Deed (Composite)’ dated on or about
__ December 2018 (as amended and as amended and restated from time to time)
granted by a Grantor (as defined therein) incorporated in Australia in favour of the
Security Trustee.
Australian PPSA means the Personal Property Securities Act 2009 (Cth).
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Australian SSD means the specific security deed (marketable securities) dated on or
about __ December 2018 granted by Summerset Holdings Limited in favour of the
Security Trustee.
Authorised Officers means a Director, a chief executive officer, chief financial
officer, or treasurer of the Issuer (or such officer of the Issuer howsoever designated
as may from time to time replace or succeed such officer), and any other officer
appointed by the Directors or their duly authorised delegates as an Authorised
Officer for the purposes of this deed and notified in writing to the Supervisor.
Bank Facility Agreement means each of:
(a) the Syndicated Facility Agreement; and
(b) any other loan or credit facility between the Issuer (and/or any one or more
of the Guarantors) and one or more banks and/or financial institutions under
which the Issuer (and/or any one or more of the Guarantors) have incurred,
or may incur, indebtedness for borrowed money with a maximum principal
amount of more than NZ$100,000,000 (or the NZ Dollar Equivalent),
to the extent they constitute an "Approved Loan Facility" under the Security Trust
Deed and Bank Facility Agreements means all of them.
Bond means a bond, note or other debt security in any form and however described
constituted by, and subject to the terms and conditions set out in, this deed as
supplemented by the relevant Supplemental Deed.
Bond Moneys means, in relation to a Bond at any time, the Principal Amount,
interest and other moneys payable on, or in relation to, that Bond to the Holder of
that Bond or (in relation to a Retail Series) at the direction of the Supervisor at that
time under or pursuant to this deed, or (in relation to a Retail Series) to the
Supervisor pursuant to clause 13.6 (Payments), and a reference to Bond Moneys
includes any part of them.
Calculation Agent means, in relation to any Series, the person appointed by the
Issuer from time to time to calculate Interest Rates or other amounts due on the
Bonds of that Series and, if none is appointed, means the Registrar.
Class means a category of Bonds which constitutes a separate class of Bonds being:
(a) all Retail Bonds;
(b) all Wholesale Bonds;
(c) in relation to matters affecting a Series only, that Series;
(d) all Retail Bonds which have attached to them identical rights, privileges,
limitations and conditions (but which may have a different Issue Date,
Maturity Date, Interest Rate and/or Interest Payment Dates); or
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(e) any category of Bonds having substantially the same rights, privileges,
limitations and conditions, which in the reasonable opinion of the Issuer (in
consultation with the Supervisor in relation to a Retail Series) at any
particular time, for any particular purpose, constitutes a separate class of
Bonds either within Wholesale Bonds or Retail Bonds, or both, as the case
may be.
Class of Holders means the Holders of Bonds of a particular Class.
Companies Act means the Companies Act 1993.
Complex means the care facilities and/or Units at a particular Summerset Location.
Conditions means, in relation to a Series or a Tranche, the terms and conditions
applicable to that Series or Tranche set out in the Supplemental Deed for that Series
or Tranche and (as modified and supplemented by that Supplemental Deed) this
deed.
Date of Enforcement means the date on which a Wholesale Holder or the Supervisor
makes a declaration pursuant to clause 11.1 (Events of Default).
this deed means:
(a) this deed; and
(b) where used or to be interpreted in relation to a particular Series, includes the
Supplemental Deed for that Series and means this deed as modified and
supplemented by that Supplemental Deed.
Default Interest has the meaning given to such term in clause 6.8 (Default
Interest).
Deferred Management Fee means, in relation to a resident of a Unit at a Complex,
the portion of the purchase price for Occupation Rights payable by that resident for
the use of any communal facilities at a Complex (which portion is amortised over a
period determined by the relevant Village Registered Company), as set out in the
Occupation Rights Agreement entered into by that resident.
Development means the construction of care facilities and/or Units at a Summerset
Location to be owned or leased by any Guarantor.
Development Budget means the project feasibility summary for a Development
setting out, among other things, the monthly breakdown of budgeted cashflows and
costs relating to the Development (including projected interest costs over the build
and sell-down period).
Development Facility means the development facility described in Part II of the
Syndicated Facility Agreement.
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Director means a director of the Issuer for the time being, and includes an alternate
director acting as a director of the Issuer.
Directors’ Report means a report signed by two Directors substantially in the form
set out in Schedule 3, or such other form as the Issuer and the Supervisor may
agree in writing.
Distribution has the meaning given to such term in the Companies Act, and includes
any reduction of capital, any acquisition by a company of any share in itself or in its
holding company, and any financial assistance provided by a company to enable
another person to acquire any such share.
Dollars and NZ$ means the lawful currency of New Zealand.
EBIT means, in respect of a person or group for a period ending on a particular
date, the net operating profit or loss (which shall be expressed as a negative
amount) of that person or group from ordinary operations before deducting
transaction costs, Interest Expense, income tax and any abnormal or extraordinary
items as determined in accordance with NZ GAAP, adjusted by:
(a) subtracting an amount equal to the aggregate of:
(i) fair value movement of investment property as calculated under NZ
GAAP;
(ii) any impairment on land and buildings as calculated under NZ GAAP;
(iii) Deferred Management Fee income as calculated under NZ GAAP;
(iv) any one-off profits of capital nature; and
(v) any unrealised capital gains, and
(b) adding an amount equal to the aggregate of:
(i) in the case of the Village Registered Companies, Net Cash from Re-
sales;
(ii) Net Development Margin;
(iii) any one-off losses of capital nature;
(iv) any unrealised exchange losses,
in each case relating to such person or group for the relevant period.
EBITDA means, in respect of a person or group for a period ending on a particular
date, the sum of:
(a) EBIT relating to that period; and
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(b) amortisation and depreciation relating to that period,
in each case relating to such person or group and as determined in accordance with
NZ GAAP.
Event of Default means any of the events or circumstances set out in clause 11.1
(Events of Default).
Event of Review means any of the events or circumstances set out in clause 11.2
(Event of Review).
Extraordinary Resolution has the meaning set out in Schedule 1 or Schedule 2 (as
applicable).
Finance Lease means a lease where a Guarantor is the lessee and which is:
(a) in respect of equipment used by that Guarantor in the ordinary course of day
to day business; and
(b) on terms that the only recourse granted by the Guarantor in relation to such
lease is to the asset or assets the subject of the relevant lease.
Financial Reporting Act means the Financial Reporting Act 2013.
Financial Statements means, with respect to a person or group of persons, financial
statements of that person or group of persons within the meaning of section 6 or 7
(as appropriate) of the Financial Reporting Act.
FMA means the Financial Markets Authority.
FMC Regulations means the Financial Markets Conduct Regulations 2014.
FMCA means the Financial Markets Conduct Act 2013.
General Security Deed means the Composite General Security Deed and Cross
Guarantee dated 27 January 2011 between the Issuer, the other Debtors (defined
therein) incorporated in New Zealand and ANZ Bank New Zealand Limited as
Security Trustee, as amended and restated from time to time.
Group means, at any date, the Issuer and its Subsidiaries at that date.
Guaranteeing Group means the group of companies comprising the Issuer and each
other Guarantor.
Guarantor means each of the parties to the General Security Deed or Australian
GSD from time to time, other than the Security Trustee, and includes any party that
accedes thereto from time to time.
Holder means in relation to any Bond at any time, the person whose name is
recorded in the relevant Register as the holder of that Bond at that time.
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Initial Sale means, in respect of a Unit in a Complex, the first sale of Occupation
Rights to that Unit.
Interest Expense means, in relation to a period, the sum of the amount of interest
and line fee accrued under each Bank Facility Agreement, in respect of any Bonds
and any other Approved Loan Facility (as defined in the Security Trust Deed) during
that period (including the aggregate of the Unbudgeted Interest) plus any accrued
amounts payable by a Guarantor under any Treasury Transactions entered into for
the purposes of interest rate hedging during that period minus any accrued amounts
payable to a Guarantor under the Treasury Transactions entered into for the
purposes of interest rate hedging during that period.
Insolvency Event has the meaning given to that term in the Security Trust Deed.
Intangible Assets means assets which in accordance with NZ GAAP, are classified as
intangible assets in financial statements.
Interest Payment Date means in relation to a Bond:
(a) each date that is an integral multiple of three (3) Months (or such other
period as set out the relevant Supplemental Deed) preceding the Maturity
Date, with the first Interest Payment Date being after the relevant Issue
Date; and
(b) the relevant Maturity Date,
as recorded in the Register as being the interest payment dates in respect of the
Bond.
Interest Period means, in relation to a Bond and an Interest Payment Date, each
period from (and including) the preceding Interest Payment Date (or in the case of
the first period, the Issue Date) to (but excluding) that Interest Payment Date
(which in the case of the last period, is the Maturity Date or any earlier redemption
date of that Bond).
Interest Rate means, in relation to a Bond, the rate of interest (if any) payable in
respect of that Bond specified in or determined in accordance with the relevant
Supplemental Deed and recorded as such in the Register in respect of that Bond.
Issue Date means, in relation to a Bond, the date on which that Bond is issued,
being the date recorded as such in the relevant Register.
Issue Price means, in relation to a Bond, the amount specified as such in the
relevant Supplemental Deed or, if no such amount is specified, means the face value
of that Bond.
Listed means listed and quoted on the NZX Debt Market or any alternative or
successor recognised stock exchange, and Listing has a corresponding meaning.
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Listing Rules means the NZX Main Board/Debt Market Listing Rules or, if the
relevant Bonds are listed on an alternative or successor exchange, the listing rules
of that exchange, in each case as in force from time to time and applicable to the
Issuer and the relevant Bonds.
Material Adverse Change means a material adverse change in the Issuer’s and all of
the Guarantors’ ability (taken together) to repay the Bond Moneys in accordance
with this deed.
Maturity Date means, in relation to a Bond, the date for the repayment of that
Bond, being the date specified or determined in accordance with the relevant
Supplemental Deed and recorded as such in the relevant Register.
Minimum Principal Amount means, in relation to a Series, the minimum Principal
Amount for that Series for subscription and/or holding and transfer specified in the
relevant Supplemental Deed.
Month means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month, except that if there is no
numerically corresponding day in the next calendar month in which that period is to
end, that period shall end on the last day in that calendar month.
Mortgage means a registered mortgage granted by a Guarantor to the Security
Trustee over land and improvements thereon at a Summerset Location.
Net Cash from Re-sales means, in relation to any period:
(a) the aggregate of all amounts (including amounts received from resident loans
and Deferred Management Fees received in cash) received by the Group in
relation to re-sales (being any sale (or economic equivalent to a sale) other
than the Initial Sale) of the Occupation Rights for any Units, provided that the
sale (or economic equivalent to a sale) is no longer subject to cancellation by
the buyer in accordance with:
(i) for a Unit in New Zealand, the “cooling-off period” provisions of the
Occupation Rights Agreements contemplated by section 28 of the
Retirement Villages Act; or
(ii) for a Unit in Australia, any cooling-off rights under the Occupation
Rights Agreement or contemplated by section 24 of the Retirement
Villages Act 1986 (Vic),
less
(iii) expenses associated with the resales, including the repayment of
resident loans made by the Group in respect of any previous
Occupation Rights for the relevant Units; and
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(iv) any distribution required to be made to the outgoing resident of any
previous Occupation Right for the relevant Unit for part of the capital
gains made on resales.
Net Development Margin means, in respect of a person or group for a period ending
on a particular date, the amount that represents the gross proceeds of Initial Sales
of Units in any Development less, in respect of those Units:
(a) an allocation of direct construction costs associated with that Development;
(b) an allocation of Interest Expense incurred for that Development;
(c) an allocation of infrastructure and internal costs incurred for that
Development; and
(d) an allocation of the costs of acquiring the land on which the Development is
constructed,
excluding, in each case, any such costs, incurred in relation to a Development which
is a care facility or any part of a Development which constitutes a common facility
(the Care and Common Facility Costs) and provided that the relevant allocation of
costs referred to in (a) – (d) (including in respect of the allocation of Care and
Common Facility Costs) above shall be calculated by reference to one or more
methodologies agreed between the Issuer and the Agent (or if there is no Agent, the
Security Trustee) from time to time.
Non-Resident Holder means:
(a) a Holder; or
(b) (where applicable) any person beneficially deriving the interest under the
Bond,
who is not Tax resident in New Zealand and is a person to whom the payment of
interest (or payments deemed by law to be interest) is subject to New Zealand non-
resident withholding tax in respect of the Bond.
NZ Dollar Equivalent means, in respect of an amount denominated in Dollars, that
amount, and in respect of an amount denominated in a currency other than Dollars,
the amount of Dollars with which the Agent would be able to purchase that amount
for delivery on the day in question calculated at the Agent's spot rate of exchange
for the purchase of that currency with Dollars.
NZ GAAP means generally accepted accounting practice in New Zealand as defined
in section 8 of the Financial Reporting Act.
NZClear means the securities clearing and settlement facility known as the NZClear
system and includes any securities clearing and/or settlement facility which replaces
or supersedes it from time to time.
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NZX means NZX Limited.
NZX Debt Market means the debt security market operated by NZX.
Occupation Rights means the contractual right of a resident to occupy a Unit.
Occupation Rights Agreement means an agreement between a Village Registered
Company and a resident or residents, setting out the terms of a resident’s rights to
occupy a Unit.
Offer Document means, in relation to any Series, any information memorandum,
product disclosure statement, offering circular or other offering document relating to
that Series which has been prepared by, or on behalf and with the approval of, the
Issuer in relation to the relevant Series and shall include all supplements or
amendments to, the relevant document.
Permitted Disposal means a disposal:
(a) in respect of which the Supervisor has given its prior written consent;
(b) which is permitted under the terms of any Bank Facility Agreement or the
General Security Deed from time to time;
(c) of inventory made in the ordinary course of business of the disposing entity;
(d) pursuant to an Occupation Rights Agreement;
(e) of obsolete assets no longer required for the purpose of the Group’s business
or operations;
(f) of property from one Guarantor to another Guarantor;
(g) of property, other than inventory, in the ordinary course of ordinary business
on an arm’s length basis;
(h) which involves the payment of cash, or any Distribution, not prohibited by the
terms of this deed;
(i) which involves the allotment or issue of share capital;
(j) of property required by law;
(k) which is the creation of a Permitted Security;
(l) by way of sale and leaseback in respect of any asset for fair value and on
arm’s length commercial terms, provided the aggregate book value of all such
property subject to the sale and lease back arrangements does not exceed
five per cent (5%) of Total Tangible Assets of the Group; or
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(m) of assets where the book value of all assets disposed under this subparagraph
(m) does not exceed ten per cent (10%) of the Total Tangible Assets of the
Group in any financial year of the Group.
Permitted Security means a Security Interest:
(a) arising by operation of law or statute in the ordinary course of business, or
securing Taxes or other governmental or regulatory levies, duties or imposts,
or any Security Interest in the nature of a contractor's, supplier's or vendor's
lien, so long as (in each of the foregoing cases) the payment of the money
secured thereby is not in default or the liability therefor of the Issuer or the
relevant Guarantor is being contested by appropriate proceedings; or
(b) arising in connection with the Security Sharing and Priority Deeds or
indebtedness owed by a Guarantor to residents pursuant to an Occupation
Rights Agreement, or created in favour of the Statutory Supervisor in
connection with its duties under the Retirement Villages Act, or under any
statutory charge imposed under the Retirement Villages Act 1986 (Vic); or
(c) created over any asset acquired, constructed, repaired, maintained or
improved, for the sole purpose of financing or refinancing the cost of such
acquisition, construction, repair, maintenance or improvement, or over the
land upon which such asset is situated, provided that any Security Interest
created pursuant to this paragraph secures no more than the fair value of the
asset (as acquired, constructed, maintained or improved) as at the time such
Security Interest is created; or
(d) that is a purchase money security interest in any goods (which may extend to
any proceeds of those goods), and that is:
(i) created in the ordinary course of business on normal arms-length
commercial terms for fair market value; and
(ii) in respect of obligations that are not overdue and which are, in any
event, satisfied within 60 days of being incurred,
on the condition that, at the request of the Supervisor, the Issuer or the
relevant Guarantor provides the Supervisor with written details of any goods
(including any proceeds) held by the Issuer or relevant Guarantor subject to
purchase money security interests and the amounts involved; or
(e) over any assets of a person that becomes a Guarantor after the date of this
deed, which existed, or which such person was contractually bound to enter
into, at the date it became a Guarantor and which was not created in
anticipation of, such company becoming a Guarantor; or
(f) over any assets acquired by the Issuer or the relevant Guarantor after the
date of this deed, which existed at the date of, and was not created in
anticipation of, the acquisition thereof by the Issuer or the relevant Guarantor
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concerned, provided that that security interest is released as soon as possible
but in any case within 60 days of such acquisition; or
(g) in relation to personal property that is created or provided in the ordinary
course of business on normal commercial terms by:
(i) a transfer of an account receivable or chattel paper;
(ii) a lease for a term of more than one year; or
(iii) a commercial consignment,
in each case that does not secure payment or performance of an obligation;
or
(h) arising as a result of any trust created in relation to retention money for the
purposes of the Construction Contracts Act 2002; or
(i) created or permitted to subsist over the whole or any part of its right, title or
interest (whether by way of shareholding, partnership share or otherwise) in,
or in the assets of, any joint venture, partnership or similar venture (whether
or not incorporated) the sole purpose of which is the development or
exploitation of a project (a Project Venture), to secure indebtedness incurred
by the Issuer or the relevant Guarantor in connection with its interest in such
Project Venture and created or permitted to exist only in favour of a
participant or participants therein; or
(j) over assets of the Issuer or the relevant Guarantor comprising cash, deposits,
financial instruments or other monetary assets, where such Security Interest
does not extend to other assets of the Issuer or the relevant Guarantor and is
created to secure borrowed money or indebtedness undertaken or incurred to
raise or acquire or otherwise in connection with such cash, deposits,
instruments or other monetary assets and the giving of such Security Interest
is consistent with ordinary banking or business principles or practices then
current and applicable in the relevant market and/or jurisdiction in relation to
borrowed money or indebtedness of that nature; or
(k) arising under any Finance Lease, where such Security Interest only extends to
the asset or assets financed by the relevant lease and the principal amount of
such Finance Lease (when aggregated with the principal amount of all other
Finance Leases permitted to subsist by this paragraph (k)) does not exceed
NZ$500,000 (or the NZ Dollar Equivalent); or
(l) created in substitution for any Security Interest otherwise permitted
hereunder; or
(m) in favour of the Issuer or the relevant Guarantor provided that the Issuer or
the relevant Guarantor, as the case may be, in whose favour it is created
retains at all times the sole beneficial ownership of and all rights, powers and
benefits in relation to such Security Interest; or
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(n) which the Supervisor agrees in writing will be a Permitted Security for the
purpose of this deed; or
(o) created under the General Security Deed, Australian GSD or Australian SSD;
or
(p) in addition to and separately from the Security Interests permitted above, any
Security Interest of any nature over any assets to secure any indebtedness if
and to the extent that the aggregate principal amount of the indebtedness so
secured by all such Security Interests created or permitted to subsist by this
paragraph (p) (but other than any Security Interests attaching only to assets
which are not included in the Total Tangible Assets of the Group) does not
exceed 5 per cent (5%) of the Total Tangible Assets of the Group.
Portfolio means all of the Units, aged care facilities and all other Property held by
any Guarantor subject to the Security.
PPSA means the Personal Property Securities Act 1999.
Principal Amount means, in relation to a Bond, the amount (other than interest)
payable on redemption or repayment of that Bond set out in the relevant Conditions,
being the amount recorded as such, or determined by reference to a formula set
out, in the relevant Register in respect of that Bond.
Property means each of the properties the subject of a Mortgage listed in
schedule 6 of the Security Trust Deed and any additional interests in real property
acquired by a Guarantor after the date of this deed which is subject to a Mortgage.
Property Value means, at any time, the value of the Portfolio (without double
counting) determined as:
(a) the value for mortgage lending purposes of all Properties for which a
Valuation has been received by the Security Trustee, determined by
reference to the most up-to-date Valuation for each Property received by the
Security Trustee;
(b) the land acquisition cost of all Property acquired by any Guarantor and
subject to a Mortgage but in respect of which no Valuation has been received
by the Security Trustee;
(c) the costs incurred (other than land acquisition cost) in respect of any
completed Development for which no Valuation has been received by the
Security Trustee; and
(d) an amount equal to 50% of the costs incurred to date (other than land
acquisition cost) in relation to any Development that has not been
completed,
net of all residents' loans.
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Record Date means, in relation to a payment, 5.00pm on the tenth calendar day
before the due date for that payment or, if that day is not a Business Day, the
immediately preceding Business Day.
Register means, in relation to a Series, the register of Bonds maintained by the
relevant Registrar in accordance with the provisions of this deed and any applicable
Agency Agreement.
Registrar means, in respect of any Series, the person or persons named in the
relevant Supplemental Deed for that Series as being the person which maintains the
Register in respect of that Series and undertakes any other functions specified in its
terms of appointment, or any successor agent appointed.
Retail Series means a Series which is offered under a regulated offer (as defined in
the FMCA) or offered in reliance on clause 19 of Schedule 1 to the FMCA or is
expressed in the relevant Supplemental Deed to be a “Retail Series”, and Retail
Bond means a Bond which is part of a Retail Series and Retail Holder means a
Holder of a Retail Bond.
Retirement Villages Act means the Retirement Villages Act 2003.
RWT Exemption Certificate means a certificate issued by the Commissioner of
Inland Revenue in accordance with section RE 27 of the Income Tax Act 2007.
Security means the documents listed in Schedule 6 of the Security Trust Deed and
any agreements or documents at any time entered into, delivered or intended to
secure (directly or indirectly) the Issuer's obligations under this deed and any
Supplemental Trust Deed, in each case granted in favour of or entered into by the
Security Trustee or held by the Security Trustee pursuant to the Security Trust
Deed.
Security Documents means:
(a) the General Security Deed;
(b) the Australian GSD;
(c) the Australian SSD;
(d) the Security Trust Deed;
(e) each Security Sharing and Priority Deed;
(f) the Specific Security Agreement dated 19 January 2005 granted by
Summerset Holdings Limited to the Security Trustee over all the shares held
by Summerset Holdings Limited in each Village Registered Company
incorporated in New Zealand, as amended on 25 August 2008;
(g) each Mortgage; and
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(h) each other agreement or document which the Issuer and the Supervisor agree
shall be a Security Document.
Security Interest means a mortgage, charge, pledge, lien, hypothecation, title
retention arrangement or any security interest as defined in section 17(1)(a) of the
PPSA, or within the meaning of section 12(1) of the Australian PPSA. It includes
retention of title, a flawed asset arrangement and a deposit of money by way of
security or credit support or any other arrangement which, in each case, is intended
to give one creditor priority over another or other creditors with respect to an asset,
but does not include an interest in any asset or property that is created or provided
for by:
(a) (i) a transfer of an account receivable or chattel paper;
(ii) a lease for a term of more than one year; or
(iii) a commercial consignment,
that does not secure payment or performance of an obligation; or
(b) the rights of resumption conferred by sections 27 to 27D of the State-Owned
Enterprises Act 1986 (as inserted by the Treaty of Waitangi (State Enterprises
Act 1988) or any memorial recording such rights; or
(c) any rights or obligations (whether arising by the operation of law, by contract
or otherwise) of, or in the nature of, set-off, netting, combination,
consolidation or retention of accounts, banker’s lien or analogous rights or
obligations in relation to or affecting any credit balances or other financial
obligations owing to the Issuer or any Guarantor; or
(d) a security interest taken in collateral by a seller to the extent that it secures
the obligation to pay all or part of the purchase price of that collateral, where
that collateral is purchased in the ordinary course of business of the buyer; or
(e) any arrangement that is, or in the nature of, an outright or absolute
assignment or transfer (however described) of cash, deposits, financial
instruments, securities or other monetary assets to a person as collateral for,
or to secure payment or performance of an obligation under, any derivative or
hedging arrangement entered into between the Issuer or any Guarantor and
any such person.
Security Sharing and Priority Deed means a deed between a Village Registered
Company incorporated in New Zealand, the Security Trustee and the Statutory
Supervisor, under which the Statutory Supervisor’s mortgage over land takes
priority over the Security Trustee’s securities over that land.
Security Trust Deed means the security trust deed dated 27 January 2011 between
the Debtors (as defined therein) and ANZ Bank New Zealand Limited as agent and
security trustee (as amended from time to time).
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Security Trustee means ANZ Bank New Zealand Limited in its capacity as Security
Trustee under the Security Trust Deed or such other security trustee as may be
appointed from time to time in accordance with the Security Trust Deed.
Series means the Bonds issued pursuant to a particular Supplemental Deed (which
may be issued in one or more Tranches).
Statement means a holding statement issued by the Issuer (or the Registrar on its
behalf) to a Holder in relation to the Listed Bonds held by that Holder, in compliance
with the Listing Rules.
Statutory Supervisor means Public Trust or such other statutory supervisor as may
be appointed from time to time as statutory supervisor in respect of a “retirement
village” located in New Zealand pursuant to the Retirement Villages Act owned and
operated by a Village Registered Company incorporated in New Zealand.
Subsidiary means:
(a) a subsidiary within the meaning of section 5 of the Companies Act; and
(b) any “in substance subsidiary” of that person determined in accordance with
NZ GAAP.
Supervisor means The New Zealand Guardian Trust Company Limited or any
replacement Supervisor appointed under this deed.
Summerset Location means each parcel of land which is owned or leased by any
Guarantor and from which any one or more Guarantors operate, or intend to
operate, any combination of aged care facilities and Units.
Supplemental Deed means a deed supplemental to this deed entered into by the
Issuer and the Supervisor pursuant to clause 2.5 (Supplemental Deed) constituting
and setting out the conditions of a particular Series or Tranche.
Syndicated Facility Agreement means the Syndicated Facility Agreement dated 27
January 2011, as amended and restated from time to time between, amongst
others, Summerset Holdings Limited as borrower, the Issuer as guarantor, the other
guarantors (as defined therein), ANZ Bank New Zealand Limited as agent, security
trustee and arranger and the lenders (as defined therein).
Tax includes any present or future tax, levy, impost, duty, rate, charge, fee,
deduction or withholding of any nature and whatever called (including Approved
Issuer Levy), imposed or levied by any governmental agency, in each case together
with any interest, penalty, charge, fee or other amount imposed or made on or in
relation to any of the foregoing.
Test Date means 30 June and 31 December in each calendar year.
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Total Assets means, at any date, the aggregate value on a consolidated basis of all
property of the Group or the Guaranteeing Group (as applicable) on that date,
calculated on a consolidated basis in accordance with NZ GAAP.
Total Debt means, at any time, the aggregate of the NZ Dollar Equivalent of the
principal amounts outstanding:
(a) under the Syndicated Facility Agreement;
(b) in respect of Bonds; and
(c) under any other Approved Loan Facility (as defined in the Security Trust
Deed),
at that time.
Total Tangible Assets means, at any date, the aggregate value on a consolidated
basis of all property of the Group or the Guaranteeing Group (as applicable) other
than Intangible Assets, calculated on a consolidated basis in accordance with NZ
GAAP.
Tranche means Bonds of the same Series in respect of which all terms are identical
except as to some or all of the Issue Date, Maturity Date, Interest Rate and/or
frequency of payment of interest.
Transaction Documents means, in relation to a Tranche or Series, this deed, the
relevant Supplemental Deed, the relevant Agency Agreement, each Security
Document and each other document specified as such in the relevant Supplemental
Deed.
Treasury Transaction means any foreign exchange agreement, currency or interest
purchase, interest rate swap, cap or collar agreement, currency swap agreement,
currency and interest rate future or option contract, commodity swap, option, cap,
collar, floor or swaption or other similar agreement (whether entered into before,
on, or after the date of this deed) entered into under or pursuant to an ISDA
Agreement (as defined in the Security Trust Deed).
Trust Powers means, in relation to a Bond, the trusts, powers, authorities and
discretions vested in the Supervisor by this deed, the relevant Supplemental Deed in
relation to that Bond, the Transaction Documents, and, where relevant, by law.
Unbudgeted Interest means, in relation to any period and a Development, the
amount of interest and line fee accrued under the Development Facility which
exceeds the projected interest and line fee costs set out in the Development Budget
for that Development.
Unit means any villa, apartment (including an independent living apartment,
serviced apartment and memory care apartment) or unit comprised in that part of a
Complex which is a retirement village for the purposes of the:
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(a) Retirement Villages Act 2003, if the Complex is in New Zealand; or
(b) Retirement Villages Act 1986 (Vic), if the Complex is in Australia.
Valuation means a valuation of the Portfolio (or any part thereof) prepared by a
Valuer and addressed to the Security Trustee detailing the value of each of the
Properties or other properties referred to therein.
Valuer means any valuer approved by the Agent in accordance with the Syndicated
Facility Agreement (or, if there is no Agent, the Security Trustee).
Village Registered Company means any Guarantor which has entered into, or
acceded to, the deed of supervision with the Statutory Supervisor in respect of a
retirement village owned and operated by that Guarantor and which is registered
under the Retirement Villages Act as a retirement village on the Register of
Retirement Villages
or, in respect of a retirement village in Australia owned or owned
and operated by a Guarantor, for which a retirement village notice has been lodged
under section 9 of the Retirement Villages Act 1986 (Vic).
Wholesale Series means a Series which is expressed in the relevant Supplemental
Deed to be a “Wholesale Series” or is not permitted, in accordance with the relevant
Conditions, to be offered or sold to any retail investor, and Wholesale Bond means a
Bond which is part of a Wholesale Series and Wholesale Holder means a Holder of a
Wholesale Bond.
1.2 References
Except to the extent that the context otherwise requires, any reference in this deed
to:
authorisation means:
(a) an authorisation, consent, approval, agreement, notarisation, certificate,
permission, authority, licence, exemption, filing, lodgement or registration; or
(b) in relation to anything which will be fully or partly prohibited or restricted by
law if a governmental agency intervenes or acts in any way within a specified
period after lodgement, filing, registration or notification, the expiry of that
period without intervention or action.
borrowed money means all indebtedness for or in respect of money borrowed or
raised (whether or not for cash consideration) by whatever means (including
acceptances, deposits, discounting, factoring, finance leasing, hire purchase, sale
and repurchase/leaseback and any form of “off-balance sheet” financing) or for the
deferred purchase price of assets or services (other than for goods and services
obtained on normal commercial terms in the ordinary course of trading) and
includes:
(a) all amounts raised by the issuance of redeemable preference shares; and
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(b) any amounts actually or contingently payable under or in respect of any swap,
foreign exchange contract, hedging or other derivative or risk management
transaction or product if such transaction or product is or was to be
terminated or a settlement amount is or was to become payable at the
relevant time.
business day means a day (other than a Saturday or Sunday) on which registered
banks are generally open for business in Auckland and Wellington except that in the
context of the Listing Rules it means a day on which the NZX Debt Market is open
for trading.
debt security has the meaning given to it in the FMCA.
dissolution means, in relation to a person:
(a) the bankruptcy, winding-up or liquidation of that person;
(b) the removal from any relevant register applicable to that person;
(c) any amalgamation under the Companies Act where that person is not the
surviving entity; and
(d) any equivalent or analogous procedure under the law of any jurisdiction in
which that person is incorporated, domiciled or resident or carries on
business.
expenses includes all expenses, losses, claims, costs (including legal costs on a
solicitor and own client basis), disbursements, Taxes, travel, expenses, out of pocket
expenses, and audit, investigative or administrative costs.
governmental agency means any government or any governmental,
semi-governmental, regulatory or judicial entity, agency or authority (including a
local authority), or legislative body, or any person or body charged with the
administration of any law and also includes any stock exchange or self-regulatory
organisation established under statute.
indebtedness includes any obligation (whether present or future, actual or
contingent, secured or unsecured, joint, several or joint and several, and as
principal, surety or otherwise) relating to the payment or repayment of money.
issuer obligation has the same meaning set out in the FMCA, being an obligation
imposed on the Issuer under this deed in respect of the relevant Retail Series, the
terms of the offer of that Retail Series, the FMCA or any court order relating to that
Retail Series.
law includes common or customary law and any constitution, decree, judgment,
legislation, order, ordinance, regulation, by-law, statute or other legislative
measure, in each case of any jurisdiction whatever, and lawful and unlawful shall be
construed accordingly.
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outstanding means all Bonds other than:
(a) those which have been repaid or redeemed in full in accordance with the
Conditions relevant to those Bonds;
(b) any Bonds:
(i) for which the date for repayment or redemption pursuant to the
relevant Conditions has occurred; and
(ii) the repayment or redemption moneys (including any interest accrued
on those moneys to the date for such repayment or redemption) for
which have been duly paid to or to the order of the Supervisor or to
any relevant paying agent and remain available for payment; and
(c) those which have been purchased and cancelled in accordance with the
Conditions relevant to those Bonds.
payment includes satisfaction of a monetary obligation.
person includes an individual, firm, organisation, a body corporate, any association
of persons (whether corporate or not), a trust and a state and any governmental
agency (in each case whether or not having separate legal personality).
qualified auditor shall be construed in accordance with the FMCA.
regulated offer shall be construed in accordance with the FMCA.
retail investor shall be construed in accordance with the FMCA.
written and in writing includes all means of reproducing words, figures and symbols
in a tangible and permanently visible form including by facsimile transmission.
1.3 Cross references and Statutory definitions
(a) In relation to any Series, a cross-reference to any clause of this deed shall, where
that clause is amended or substituted by the Supplemental Deed in relation to that
Series, be deemed to be a cross-reference to that clause as so amended or
substituted.
(b) Unless inconsistent with specific definitions contained in this deed, words defined in
the Companies Act, the FMCA or the Financial Reporting Act have the same
meanings in this deed. In the case of conflict, the definitions in the FMCA prevail
over those in the Companies Act and the Financial Reporting Act, and the definitions
in the Financial Reporting Act prevail over those in the Companies Act.
(c) Expressions that are utilised in connection with accounting functions or reporting or
in the description of either thereof in this deed shall bear the respective meanings
accepted in respect of or ascribed to them in the preparation of the latest financial
statements of the Issuer.
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1.4 Construction
In this deed, unless the context requires otherwise:
(a) Headings: headings are inserted for convenience only, and do not affect
interpretation;
(b) Singular and plural: the singular includes the plural and vice versa;
(c) Clauses: references to clauses, sub-clauses, paragraphs and Schedules are to
the clauses, sub-clauses and paragraphs of, and schedules to, this deed;
(d) Legislation: a reference to legislation or to a provision of legislation includes
any amendments, and re-enactments of it, a legislative provision substituted
for it and a statutory regulation, a rule, order or instrument made under or
issued pursuant to it;
(e) Agreements or document: reference to any deed (including this deed),
agreement or other instrument are to be read as referring to that deed,
agreement or other instrument as from time to time modified, supplemented,
novated or replaced from time to time;
(f) Listing Rules: reference to a requirement of the Listing Rules means such
requirement as modified, novated, supplemented, varied or replaced from
time to time;
(g) Time: a reference to a time of day is a reference to New Zealand time unless
otherwise stated; and
(h) Successors and assigns: a reference to a particular party or person includes
that party’s or person’s executors, administrators, successors, substitutes and
permitted assigns.
2 ISSUE AND FORM OF BONDS
2.1 Power to issue Bonds
The Issuer may issue Bonds under this deed at the times, in the amounts, to the
persons, on the terms and conditions, and at the prices from time to time
determined by the Issuer and specified in the relevant Supplemental Deed.
2.2 Form of Bonds
Without limiting clause 2.1 (Power to issue Bonds), Bonds may be issued on terms
such that the Principal Amount is a fixed amount, a reducing amount or an amount
to be calculated by reference to an index and/or that interest will be calculated by
reference to a specific interest rate or by reference to an index or both. Bonds may
be Retail Bonds or Wholesale Bonds, in each case as specified in the relevant
Conditions.
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2.3 Creation and issue
(a) Bonds of a Series are constituted when the Supplemental Deed for that Series has
been executed by the Issuer and the Supervisor and any conditions to the
constitution of such Bonds have been satisfied or waived.
(b) Bonds of a Series are issued by the Issuer (or the Registrar on its behalf) entering in
the relevant Register the particulars of those Bonds.
(c) Bonds shall be issued and held subject to the applicable Conditions, all of which will
be binding upon the Issuer, the Supervisor and the Holders and all persons claiming
through and under them respectively. The Holders and all persons claiming by or
through them shall be deemed to have notice of the applicable Conditions, the
provisions of this deed and each other Transaction Document in relation to the
relevant Series.
2.4 Listing
Bonds may be Listed or unlisted as specified in the relevant Supplemental Deed. If
the Supplemental Deed relating to a Bond specifies that the Bond is to be Listed, the
Issuer must issue, or cause to be issued, to each Holder, a Statement in relation to
the Bond in accordance with, and in the time required by, the Listing Rules.
2.5 Supplemental Deed
(a) Bonds shall be constituted by this deed as supplemented by the relevant
Supplemental Deed and issued in a Series which may be separated into Tranches.
Each Tranche which forms part of a Series shall be subject to the terms and
conditions set out in the relevant Supplemental Deed and (as modified by that
Supplemental Deed) this deed.
(b) To the extent that the Supplemental Deed for a Series modifies this deed, or in the
event of any conflict between the provisions of that Supplemental Deed and those of
this deed, that Supplemental Deed shall prevail over this deed in relation to that
Series.
(c) The provisions of the relevant Supplemental Deed and this deed, read together in
accordance with this clause 2.5 (Supplemental Deed), shall constitute the Conditions
for the Bonds of the relevant Series.
(d) For the avoidance of doubt, the Holders of a Series will not receive any benefit in
respect of the Bonds of that Series from the obligations of the Issuer or any other
person in respect of Bonds issued pursuant to another Series.
2.6 Enforcement of Holders’ rights
(a) The Supervisor holds its rights and benefits under this deed, the relevant
Supplemental Deed and any relevant law in trust for the benefit of, the Retail
Holders and (only to the extent expressly set out in this deed and the relevant
Conditions) the Wholesale Holders, including in the case of Retail Holders (without
limitation):
(i) the right to enforce the Issuer’s duty to repay the Principal Amount, or to pay
interest, under the terms of the Bonds;
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(ii) any rights it holds as a “Beneficiary Representative” and a “Beneficiary” under
the Security Trust Deed; and
(iii) the right to enforce any other duties that the Issuer, any Guarantor, and any
other person have under the Conditions of any Retail Bonds, or the provisions
of this deed or the FMCA, when applicable, in relation to the Retail Bonds.
(b) No Retail Holder shall be entitled to enforce any of its rights or remedies under the
applicable Transaction Documents directly against the Issuer unless the Supervisor
fails to enforce such rights or remedies within a reasonable period after having
become bound to do so in accordance with this deed, and otherwise in accordance
with the Security Trust Deed.
(c) Wholesale Holders may enforce any of their rights or remedies under this deed or
the relevant Supplemental Deed directly against the Issuer.
2.7 Form of Bonds
Each Bond shall:
(a) be in uncertificated book entry form;
(b) be denominated in Dollars (unless otherwise specified in the relevant
Supplemental Deed); and
(c) have a face value of NZ$1.00 or such other amount as may be specified in the
relevant Supplemental Deed.
2.8 Minimum Principal Amount
Each Series may have a Minimum Principal Amount for holdings and/or transfers of
Bonds of that Series and also may have a minimum multiple for any holdings and/or
transfers, in each case as specified in the relevant Supplemental Deed.
3 STATUS OF BONDS
3.1 Status of Bonds generally
(a) The Bonds are and will at all times be direct, secured, unsubordinated and
unconditional (unless specified otherwise in the relevant Supplemental Deed)
indebtedness of the Issuer.
(b) The Bonds will have the benefit of the guarantee and security interests granted
under, and are subject to the security arrangements provided for in, the Security
Documents, unless otherwise specified in the relevant Supplemental Deed. Bonds
may be unsecured if so specified in the relevant Supplemental Deed.
3.2 Status of Bonds
Unless specified otherwise in the relevant Supplemental Deed, the Bonds rank, and
will at all times rank, equally without any preference or priority among themselves
and will have the ranking provided for in the relevant Supplemental Deed (as such
ranking may be affected by general laws in relation to security relating to priority
and preferential creditors).
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3.3 Purchase or cancellation
Except as provided in the Conditions in relation to a Series:
(a) the Issuer or any other member of the Group may, but is not obliged to,
purchase Bonds from any person, at any time, on any market or by private
treaty and at any price; and
(b) in the case of Bonds purchased by the Issuer, any Bonds so purchased shall
be cancelled or re-issued.
4 TITLE AND TRANSFER
4.1 Certificates
At the request of a Holder, or otherwise as required by the FMCA, the Listing Rules or
any applicable law, the Issuer shall procure the relevant Registrar of the relevant
Bonds to issue to that Holder a confirmation, certificate, Statement or notice of
registration in relation to the Bonds held by that Holder, such confirmation, certificate,
Statement or notice to be provided in the manner required by the FMCA (if applicable)
and to be in the form agreed between the Issuer and the relevant Registrar and to
comply with the law and, in respect of any Listed Bonds, the Listing Rules. A
confirmation, Statement, certificate or notice of registration issued in respect of a
Bond will not constitute a document of title. Entitlement will be determined solely by
entry in the relevant Register and, in the case of the beneficial interest in Bonds
lodged in NZClear, the records of NZClear.
4.2 Form of transfer
A Holder may transfer any Bond held by it by:
(a) delivery to the Registrar of a written instrument of transfer in any commonly
used form that complies with the standard form and procedures of the
Registrar and, if applicable, FMCA or the Listing Rules; or
(b) any other method of transfer of marketable securities that is not contrary to
any law and that may be operated in accordance with any Listing Rules (if
applicable) and that is approved by the Issuer; or
(c) instructing the Registrar to transfer the Bond into the name(s) of the
transferee(s) through NZClear.
The entry of the name of a transferee of a Bond in the relevant Register at the
relevant time will constitute the passing of title in that Bond.
4.3 Bonds separate
Each Bond is a separate debt of the Issuer and may be transferred separately from
any other Bond held by a Holder.
4.4 Partial transfers
A Holder may transfer part of its interest in a Bond. However, no transfer of any
part of its interest may be effected if such transfer would result in the transferor or
the transferee holding or continuing to hold Bonds with an aggregate Principal
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Amount other than an amount equal to the applicable Minimum Principal Amount (or
minimum multiple above that).
4.5 Fees
(a) The Issuer shall, and shall procure that each Registrar will, make no service charge
to the Holders for the registration of any holding of Bonds or the transfer of
registered title to any Bonds.
(b) The Issuer and each Registrar may, however, require the payment of any Taxes and
other governmental charges payable as a result of any transfer.
4.6 Selling restrictions
(a) Each Holder shall only offer for sale or sell any Bond in conformity with all applicable
laws and regulations in any jurisdiction in which it is offered, sold or delivered.
(b) Without limiting the generality of clause 4.6(a), Bonds which are expressed in the
relevant Supplemental Deed to be part of a Wholesale Series shall not be offered or
sold by the Issuer or any Holder to any investors where the offer to at least one of
those investors would require disclosure under Part 3 of the FMCA.
(c) No Offer Document or any advertisement or other offering material in respect of any
Bond may be published, delivered or distributed in or from any country or
jurisdiction except under circumstances which will result in compliance with all
applicable laws.
(d) In respect of a Series, the Issuer may specify any further selling restrictions it
considers necessary or appropriate in an Offer Document (including any document
or information lodged on the Disclose Register) for that Series, and no Bonds may
be offered or sold by the Issuer or any Holder in breach of any such further selling
restrictions.
4.7 Indemnity for breach of selling restrictions
Subject to clause 17.1 (Supervisor not Indemnified), each Holder, by subscribing for
or otherwise acquiring a Bond, agrees to indemnify the Issuer, the Supervisor and
any arranger, lead manager, manager, co-manager, dealer, organising participant or
other primary market participant invited by the lead manager and/or lead arranger
to participate in the offer as part of the selling syndicate (other than in respect of
itself), and their respective directors, officers, employees and agents, in respect of
any Tranche, for any liability, cost, loss or damages suffered by any one or more of
them by reason of any breach of the selling restrictions referred to in clause 4.6
(Selling restrictions). Any moneys paid by any of the Issuer, the Supervisor and any
arranger, lead manager, dealer, organising participant or other primary market
participant invited by the lead manager and/or lead arranger in respect of such
liability, cost, loss or damage may be recovered from the Holder as a debt due and
may be withheld from any further payments to that Holder. Nothing in this
clause 4.7 (Indemnity for breach of selling restrictions) limits or affects any other
right or remedy.
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5 REGISTER
5.1 Register
The Issuer shall, at all times while Bonds are outstanding, cause the Registrar for
each Series to maintain the Register for that Series in New Zealand, which must
record in respect of each Bond the information required by law (including
information required under section 217(1) of the FMCA) and any other information
agreed between the Issuer and the Registrar for the relevant Bonds.
5.2 Disclosure and Inspection
(a) The Issuer shall ensure that the Registrar of the relevant Bonds discloses to a Holder
who so requests any information held on the Register which relates to the Bond(s)
registered in the name of that Holder and all other information and matters required
by applicable law.
(b) The Issuer and the Supervisor may, at all reasonable times during the office hours of
the relevant Registrar and subject to any applicable law, inspect and take extracts
(including electronic copies) from each Register. Such an extract does not evidence
title to any Bond.
(c) The Issuer will procure that the Registrar will make available for inspection and
provide copies of or extracts from, the Register to the extent required by, and in
accordance with, the FMCA, the FMC Regulations and any other applicable law.
5.3 Register conclusive
(a) Except as ordered by a court of competent jurisdiction, the Issuer, the Supervisor
and each Registrar are each entitled to recognise the Holder of a Bond as the
absolute owner of the Bond and shall not be:
(i) bound by any actual or constructive notice of any trust (express, implied or
constructive), encumbrance, Security Interest or other adverse interest to
which any Bond may be subject; or
(ii) required to enter on any Register any recognition of any trust (express,
implied or constructive), encumbrance, Security Interest or order adverse
interest in which any Bond may be subject.
(b) In the event of any conflict between any confirmation, certificate, Statement or
notice of registration issued in respect of a Bond and a Register, the Register shall
prevail.
5.4 Correction of errors
Each Registrar may, on such evidence as appears to it to be sufficient, correct errors
and remedy omissions in the relevant Register, including due to any fraud.
5.5 Co-ownership Bonds
(a) Where two or more persons are registered as Holders of the same Bond(s) by virtue
of any application for Bonds, memorandum of transfer or other instrument, then,
unless the contrary is expressed in the application, memorandum or other
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instrument, those persons will be deemed to hold the Bond(s) as joint tenants with
right of survivorship.
(b) If two or more persons apply (on an application for any Bonds or by memorandum
of transfer or other instrument) to be registered as Holders as tenants in common,
the relevant Registrar may, after notifying the persons of its intention to do so,
divide the Bonds into parcels which represent each such person’s share. If the
Bonds cannot be divided into shares each of which share would comply with the
applicable Minimum Principal Amount (and any minimum multiples thereof), the
relevant Registrar may refuse to accept the application, memorandum of transfer or
other instrument (as the case may be).
5.6 Acquisition of Bonds by operation of law
When the right to any Bond is acquired by any person in any manner other than by
way of a transfer under this deed or the relevant Supplemental Deed (whether on
the dissolution, death or bankruptcy of the relevant Holder, or under a writ of
execution, or otherwise) the Registrar of the relevant Bonds, on application by or on
behalf of that person and on being satisfied that such person is legally entitled to be
registered as the Holder of that Bond, will enter that person’s name in the Register
as the Holder of that Bond accordingly.
5.7 Notification by Holders
Any change of name or address of any Holder or any change in any other
information required to be inserted in any Register in respect of any Holder shall
immediately be notified to the relevant Registrar in writing by the Holder, or if a
joint holding by all the joint Holders (and, for the avoidance of doubt, this clause 5.7
(Notification by Holders) does not place any obligation on the Issuer).
5.8 Register compliance
The Issuer shall comply with, and shall use all reasonable endeavours to ensure that
each Registrar complies with, all statutory requirements (including the Listing Rules
where applicable) and the requirements of this deed and the relevant Supplemental
Deed relating to each Register. Without limiting the generality of the foregoing, the
Register in respect of any Retail Series shall be audited in accordance with the
requirements of the FMCA and FMC Regulations from time to time, including the
applicable auditing and assurance standards (as defined by reference to section 6 of
the FMCA) by the Auditor (or such other qualified auditor that is acceptable to the
Supervisor) or by any auditor that undertakes a collective audit in respect of the
Registrar from time to time (as contemplated by regulation 110 of the FMC
Regulations).
5.9 Reliance on documents
The Issuer and the Registrar shall be entitled to accept and assume the authenticity
and genuineness of any instrument of transfer or other document and will not incur
any liability for registering any instrument of transfer or other document which is
subsequently discovered to be a forgery or otherwise defective, unless the Issuer or
the Registrar had actual notice of such forgery or defect at the time of registration of
such instrument of transfer or other document.
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5.10 No liability
No Registrar will be liable for any breach by the Issuer of any representation,
obligation or undertaking, including the non-payment of any money due, nor will any
Registrar be liable for any negligent act, error or omission on the part of the Issuer,
nor for acting in accordance with any instruction or direction of the Issuer or with
the consent or approval of the Issuer.
6 PAYMENT OF PRINCIPAL AMOUNT AND INTEREST
6.1 Determination of Principal Amount
The Principal Amount of each Bond shall be the amount recorded as such in the
Register in respect of that Bond, which may be par or face value or the amount
calculated by the relevant Registrar by reference to a formula specified in the
relevant Supplemental Deed.
6.2 Principal Amount of Retail Bonds
Subject to clause 6.4 (Payments to Retail Holders), the Issuer shall, on the Maturity
Date of each Retail Bond, pay or cause to be paid to, or to the order of, the
Supervisor the Principal Amount of that Retail Bond in accordance with this deed and
the relevant Conditions.
6.3 Interest and other amounts on Retail Bonds
Subject to clause 6.4 (Payments to Retail Holders), the Issuer shall, as and when
due and payable in accordance with this deed and the relevant Conditions,
unconditionally pay or cause to be paid to, or to the order of, the Supervisor all
interest and other amounts payable in respect of that Retail Bond in accordance with
this deed and the relevant Conditions.
6.4 Payments to Retail Holders
Notwithstanding clause 6.2 (Principal Amount of Retail Bonds) and clause 6.3
(Interest and other amounts on Retail Bonds), the Issuer shall, as and when due and
payable in accordance with this deed and the relevant Conditions applicable to each
Bond, unless and until otherwise requested by the Supervisor and without the need
for any Retail Holder or the Supervisor to give notice that payment is required, pay
or cause to be paid to, or to the order of, the relevant Retail Holder the Principal
Amount, interest and other amounts payable in respect of that Bond in accordance
with this deed and the relevant Conditions applicable to that Bond. Such payment
shall operate as a payment to the Supervisor in satisfaction (to the extent of the
amount paid) of the Issuer’s obligations under clause 6.2 (Principal Amount of Retail
Bonds) and clause 6.3 (Interest and other amounts on Retail Bonds).
6.5 Payments to Wholesale Holders
The Issuer shall:
(a) on the Maturity Date of each Wholesale Bond, pay or cause to be paid to, or
to the order of, the relevant Wholesale Holder the Principal Amount of that
Wholesale Bond in accordance with this deed and the relevant Conditions; and
(b) as and when due and payable in accordance with the Conditions applicable to
each Wholesale Bond, unconditionally pay or cause to be paid to, or to the
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order of, the relevant Wholesale Holder all interest and other amounts
payable in respect of that Wholesale Bond in accordance with this deed and
the relevant Conditions.
6.6 Non-standard Interest Period
If an Interest Period in relation to a Bond is shorter or longer than other Interest
Periods because it starts or ends on the Issue Date or Maturity Date or any other
date that does not correspond with other Interest Payment Dates for the Bond,
interest shall be calculated on the basis of the number of days in the relevant
Interest Period and the actual/actual day count convention. Interest will accrue
daily and shall be payable in arrear on the Interest Payment Date falling
immediately after that Interest Period.
6.7 Non-payment
Each Bond will cease to bear interest from its Maturity Date unless payment of the
Principal Amount is not made in full on that date. In such event, interest will
continue to accrue (after, as well as before, any judgment) on the unpaid portion in
accordance with clause 6.8 (Default Interest) up to but excluding the date on which
payment in full of the Principal Amount is made.
6.8 Default Interest
If any amount payable in respect of a Bond is not paid on its due date, Default
Interest shall accrue on the unpaid amount (net of any interim or progress
payments made including by way of deduction for withholding tax) (after, as well as
before, judgment) at the rate specified in the relevant Supplemental Deed or, if no
rate is specified, the rate determined by the Calculation Agent to be the aggregate
of the applicable Interest Rate and two per cent (2%) per annum. Default Interest
shall be compounded monthly until paid. For the avoidance of doubt, this clause 6.8
(Default Interest) shall not apply in relation to payments of interest on any Bonds
which have been suspended in accordance with the Conditions of those Bonds.
6.9 Payments through Registrar as Paying Agent
Unless the Supervisor notifies the Issuer otherwise, or except as otherwise specified
in the relevant Conditions, all payments from the Issuer to Holders in relation to the
Bonds shall be effected by the Registrar on its behalf as paying agent of the Issuer,
and the Issuer shall ensure that the Registrar is directly placed in funds in sufficient
time to enable it to make such payments.
7 PAYMENTS
7.1 Payment to Holder
Payment of the Principal Amount of, and interest (if any) on, a Bond (less any
amount required to be deducted in accordance with clause 8 (Taxes)) shall be made
to the person whose name appears in the Register for the relevant Series as the
Holder of the Bond on the relevant Record Date, unless the relevant Conditions
require otherwise. If more than one person is so named in the Register, payment
will be made to the first person so named, unless specified otherwise in the
Conditions of the Bond.
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7.2 Method of payment
(a) If the Issuer pays an amount in relation to a Bond in accordance with clause 6.4
(Payments to Retail Holders) or clause 6.5 (Payments to Wholesale Holders), all
payments in respect of that Bond shall be paid by the Registrar by direct credit to a
bank account specified by that Holder by written notice from time to time or, in the
absence of such specification, by cheque sent to the address of the Holder as
recorded in the relevant Register.
(b) No notice or amendment of a notice given under clause 7.2(a) will have effect in
respect of any payment unless received by the Registrar on or before the Record
Date for that payment. A notice from one of several Holders of the same Bonds
shall be deemed to be given by all such Holders.
(c) If, for whatever reason, at any time a Holder has provided neither a current address
nor current details of a bank account to the Registrar, any payments in respect of
any Bond to that Holder shall be deemed to be unclaimed money for the purpose of
clause 7.5 (Unclaimed payments).
7.3 Receipt of Payments
(a) If payment is made to a bank account of a Holder, that payment shall be deemed to
have been received by that Holder on the due date for payment if an irrevocable
instruction for the making of that payment by electronic transfer is given, being an
instruction which would reasonably be expected to result, in the ordinary course of
banking business, in the funds the subject of the transfer reaching the bank account
of the Holder on or before the due date, even if the funds the subject of the transfer
do not actually reach that bank account on that date.
(b) No further amount will be payable in respect of the relevant Bond as a result of
funds the subject of such electronic transfer not reaching the bank account of the
Holder on the due date.
(c) Nothing in paragraphs (a) or (b) above shall in any way limit or prejudice the
Issuer’s obligation to pay any amount to a Holder under or pursuant to this deed, a
Supplemental Deed or a Bond.
7.4 Business day
If any due date (Original Due Date) for a payment in relation to a Bond is not a
business day, the due date for the payment to be made on that date will, subject to
the terms of the relevant Supplemental Deed, be:
(a) in relation to a fixed rate Bond (being a Bond bearing a fixed rate of interest),
the next following business day; and
(b) in relation to a floating rate Bond (being a Bond bearing interest at a margin
over a base rate), the next following business day unless that following
business day falls in the next calendar month, in which case the due date for
payment to be made will be the first business day preceding the relevant
Original Due Date,
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and all other provisions of this deed and each Agency Agreement will be read and
construed accordingly.
7.5 Unclaimed payments
(a) Retail Bonds: In respect of any Retail Bond, if any payment made by the Issuer to
any Retail Holder of that Retail Bond to the address, or into the bank account, last
specified by that Retail Holder to the Issuer or the Registrar is returned unclaimed
(or address or bank account details are not provided as set out in clause 7.2(c)), the
amount concerned will (unless the Registrar or the Issuer has in the meantime
received notice of a change of address or bank account to be entered in the relevant
Register) be retained by the relevant Registrar to be held by it for the Retail Holder
concerned without any liability to invest or pay interest on that amount. Any money
not claimed within a period of six months from the original date of payment must be
returned to the Issuer. The Issuer will have no liability in respect of the unclaimed
amount if it remains unclaimed six years after the original date of payment.
(b) Wholesale Bonds: In respect of any Wholesale Bonds, if any payment made by the
Issuer to any Wholesale Holder of that Wholesale Bond to the address, or into the
bank account, last specified by that Wholesale Holder to the Issuer or the Registrar
is returned unclaimed (or address or bank account details are not provided as set
out in clause 7.2(c)), the amount concerned will (unless the Registrar or the Issuer
has in the meantime received notice of a change of address or bank account to be
entered in the relevant Register) be returned to the Issuer unless it is otherwise
agreed between the Issuer and the Registrar for the relevant Wholesale Bonds that
such unclaimed monies are to be retained by the Registrar. The Issuer will have no
liability in respect of the unclaimed amount if it remains unclaimed six years after
the original date of payment.
7.6 Reinstatement
If any payment made to a Holder by, or on behalf of, the Issuer is subsequently
rescinded, avoided or otherwise restored to the Issuer, that payment will be deemed
not to have discharged or affected the liability of the Issuer in respect of which that
payment was made. In that event the relevant Holder and Issuer will be restored to
the position in which each would have been, and be entitled to exercise all the rights
which each would have had, if such payment had not been made.
8 TAXES
8.1 Deductions or withholdings
(a) All sums payable under a Bond or under this deed or any relevant Supplemental
Deed must be paid without set-off or counterclaim and free and clear of, and without
deduction of or withholding on account of any Tax unless such a withholding or
deduction is required by law or permitted by this clause 8 (Taxes).
(b) If any such deduction has been made and the amount of the deduction has been
accounted for by the Issuer and the balance of the interest has been paid to the
relevant Holder, the full amount payable to such Holder shall be deemed to have
been duly paid and satisfied.
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8.2 Non-resident withholding tax
(a) In respect of any Series, unless:
(i) otherwise stated in the relevant Offer Document; or
(ii) the relevant Non-Resident Holder notifies the Issuer that it elects that non-
resident withholding tax be deducted from payments to it instead of the
Approved Issuer Levy (and has not, at least 10 business days prior to the
relevant payment, revoked such notice); or
(iii) the Issuer is not lawfully able to do so,
the Issuer may elect to apply a 0% rate of non-resident withholding tax to any
payment of interest (or payments deemed by law to be interest) to a Non-Resident
Holder. If so elected, the Issuer, or the relevant Registrar on its behalf, shall take
such steps as are necessary to apply the 0% rate, including applying the Approved
Issuer Levy regime or providing the required information to the appropriate
governmental agency.
(b) If the Issuer applies the Approved Issuer Levy regime it will:
(i) to the extent it is able to do so, apply the zero rate under the Approved Issuer
Levy regime; and
(ii) otherwise, pay the Approved Issuer Levy to the appropriate governmental
agency.
(c) The Issuer may, if it elects to do so in respect of any Series, deduct and retain for its
own benefit an amount equal to any amount of Approved Issuer Levy so paid from
the interest (or deemed interest) payable to the Holder in lieu of deducting non-
resident withholding tax from that payment at the rate otherwise applicable.
(d) If the Approved Issuer Levy regime does not apply or the Non-Resident Holder has
so elected, then non-resident withholding tax will be deducted at
the applicable rate
from payments of interest (or payments deemed by law to be interest) to that
Non-Resident Holder.
(e) If a Non-Resident Holder derives interest jointly with one or more New Zealand tax
resident Holders, non-resident withholding tax will be deducted from payments of
interest (or payments deemed by law to be interest) at the applicable rate of
resident withholding tax.
8.3 Resident withholding tax
New Zealand resident withholding tax will be deducted by the Registrar from
payments of interest (or payments deemed by law to be interest) to any Holder
other than a Non-Resident Holder, unless the Holder is able to establish to the
satisfaction of the Issuer, or the relevant Registrar on its behalf, either by means of
a copy of an RWT Exemption Certificate or otherwise before the Record Date for the
relevant payment, that no such Tax need be deducted.
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8.4 No gross-up; indemnity
(a) The Issuer will not be required to and will not make any additional payment by way
of gross-up or otherwise with respect to the deduction or withholding from any
payment made in respect of the Bonds under clauses 8.2 (Non-resident withholding
tax) or 8.3 (Resident withholding tax).
(b) If, in respect of any Bond, the Registrar, the Issuer or the Supervisor becomes liable
to make any payment of, or on account of, Tax payable by any Holder (including, if
applicable, any other person who beneficially derives interest under the relevant
Bond), then the relevant Holder shall indemnify the Registrar, the Issuer or the
Supervisor (as appropriate) in respect of such liability. Any moneys paid by the
relevant Registrar, the Issuer or the Supervisor in respect of such liability may be
recovered from the Holder as a debt due to the relevant Registrar or the Issuer or
the Supervisor and may be withheld from any further payments to that Holder.
(c) Nothing in this clause 8.4 (No gross-up; indemnity) will prejudice or affect any other
right or remedy of the Registrar for the relevant Series, the Issuer or the
Supervisor.
8.5 Maximum rate
Deductions or withholdings of non-resident or resident withholding tax will be made,
at the Issuer’s election, either at the rate specified by a Holder or at the maximum
rates from time to time applicable unless a Holder (or, if applicable, any person who
beneficially derives interest under the relevant Bond) provides evidence to the
Issuer or the relevant Registrar (acceptable to it) that a lesser rate or an exemption
is applicable.
8.6 Tax status
(a) The Issuer and the Registrar shall be entitled for the purposes of this clause 8
(Taxes) to rely, without further enquiry, upon any evidence produced or statement
made by, or on behalf of, a Holder in relation to that Holder’s Tax status or Tax
residency, and to regard the Holders entered in the Register as the only beneficial
owners of, or the only persons who beneficially derive interest under, the relevant
Bonds.
(b) If the Holder notifies the Registrar in writing that another person beneficially derives
interest under a Bond, the Holder shall confirm whether it should be treated as a
Non-Resident Holder for the purpose of this clause 8 (Taxes) due to the Tax
residency of that other person, and the Issuer and the Registrar shall proceed
accordingly.
8.7 Tax details
Each Holder shall give written notice to the Registrar for the relevant Series of any
information requested by the Registrar for the relevant Series in order to determine
the payment or withholding obligations of the Issuer. A Holder must also notify the
Registrar for the relevant Series prior to the Record Date in respect of any Interest
Payment Date of any change in circumstances from those previously notified that
could affect the payment or withholding obligations of the Issuer.
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9 REPRESENTATIONS AND WARRANTIES
9.1 Issuer representations and warranties
The Issuer for itself and in respect of each Guarantor represents and warrants to the
Supervisor and the Holders that:
(a) Status: it is a company duly incorporated and validly existing under the laws
of its jurisdiction of incorporation;
(b) Power: it has power to enter into and perform its obligations under the
relevant Transaction Documents to which it is a party and the Bonds when
issued;
(c) Authorisations: it has all necessary authorisations and has taken all
necessary corporate and other action to authorise the entry into, execution
and delivery of the relevant Transaction Documents to which it is a party and
the Bonds when issued, and the performance of all the obligations expressed
to be binding on it;
(d) Binding obligations: its obligations under the Transaction Documents to which
it is a party and the Bonds (once issued) are legal, valid, binding and
enforceable against it, in each case in accordance with its terms, subject to
applicable laws affecting creditors’ rights generally and subject also (as to
enforceability) to equitable principles of general application;
(e) No violation: to the best of its knowledge, the execution, delivery and
performance by it of its obligations under the Transaction Documents to which
it is a party do not (and the Bonds when issued will not) violate any law
applicable to it or its constitutive documents nor cause any limit on its powers
or the powers of its directors to be exceeded nor violate any agreement or
other instrument binding upon it or any material part of its assets which
would reasonably be expected to cause a Material Adverse Change; and
(f) No Event of Default: No Event of Default has occurred and is continuing.
9.2 Supplemental Deed
In respect of a Series, the Issuer shall make such further representations and
warranties, if any, as are set out in the Supplemental Deed for that Series.
9.3 Repetition
(a) The representations and warranties contained in clause 9.1 (Issuer representations
and warranties) shall be deemed to be repeated by the Issuer for the benefit of the
Supervisor and the Holders on the Issue Date and each Interest Payment Date of
each Bond.
(b) In respect of a Series, subject to the terms of the relevant Supplemental Deed, the
representations and warranties referred to in clause 9.2 (Supplemental Deed) (if
any) shall be deemed to be repeated by the Issuer for the benefit of the Supervisor
and the Holders of that Series on the Issue Date and each Interest Payment Date for
the relevant Bonds only.
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10 UNDERTAKINGS
10.1 General undertakings
The Issuer undertakes to the Holders of each Series and the Supervisor (in respect
of Retail Series only) that it will, for so long as any Bonds are outstanding:
(a) Notify Event of Default: promptly, and in no event later than 2 business days
after it becomes known to the Chief Executive Officer or Chief Financial Officer
of the Issuer, notify the Supervisor and any Wholesale Holders of the
occurrence of any Event of Default or Event of Review;
(b) Status: do all things necessary to maintain its corporate existence in New
Zealand and will ensure that each Guarantor does all things necessary to
maintain its corporate existence in the jurisdiction in which it is incorporated;
(c) Financial Statements: ensure that all financial statements delivered to the
Supervisor under clause 10.4(a) and 10.4(b) (Reports and information):
(i) are prepared in accordance with NZ GAAP; and
(ii) are signed by two Directors; and
(iii) are accompanied by all documents and reports required by law to be
annexed to them;
(d) FMCA and other laws: comply with the applicable provisions of the FMCA, the
FMC Regulations and any other applicable regulations made under the FMCA
and (except where failure to do so would not be a Material Adverse Change)
with all other applicable laws in relation to the Bonds;
(e) Authorisations: obtain, effect and promptly renew from time to time all
material authorisations required under New Zealand law to enable it to
perform and comply fully with the Conditions for that Series or required on its
part for the validity or enforceability of this deed or any Transaction
Document to which it is party;
(f) Notices: send to the Holders such statements or notices as may be required
pursuant to applicable law or the Listing Rules;
(g) Quotation: if the Offer Document for any Series of Bonds indicates that those
Bonds are intended to be Listed, use its best endeavours to ensure that those
Bonds are, promptly after issue, quoted on the NZX Debt Market or any
alternative or successor recognised stock exchange and that such quotation is
maintained;
(h) Contravention or Possible Contravention of Issuer Obligations: if it has
reasonable grounds to believe that it has contravened, may have
contravened, or is likely to contravene any of its issuer obligations in a
material respect, as soon as practicable:
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(i) report the contravention or possible contravention to the Supervisor;
and
(ii) advise the Supervisor of the steps (if any) that the Issuer has taken or
intends to take in light of the contravention or possible contravention
and the date by which the steps were taken or are to be taken;
(i) Serious Financial Problems: if it becomes aware of information on the basis of
which it could reasonably form the opinion that it is, or is likely to become,
insolvent (as defined in the FMCA), as soon as practicable:
(i) disclose to the Supervisor all information relevant to that matter that is
in the possession or under the control of the Issuer and that was
obtained in the course of, or in connection with, the performance of it
functions as Issuer; and
(ii) advise the Supervisor of the steps (if any) that the Issuer intends to
take in respect of that matter and the date by which the steps are to be
taken; and
(j) Guaranteeing Group coverage ratio: ensure that at all times:
(i) Total Assets of the Guaranteeing Group are not less than 90% of Total
Assets of the Group; and
(ii) EBITDA of the Guaranteeing Group for the preceding 12 month period
is not less than 90% of the EBITDA of the Group for the preceding 12
month period.
10.2 Financial Undertaking
The Issuer undertakes to the Holders of each Series and the Supervisor (in respect
of Retail Series only) that on each Test Date, for so long as any Bonds are
outstanding, the ratio of Total Debt to the Property Value shall be less than or equal
to 50%.
10.3 Supplemental Undertakings
In respect of each Series, the Issuer undertakes to the Holders of that Series and, in
respect of Retail Bonds, the Supervisor that it will, for so long as any Bonds of that
Series are outstanding:
(a) Transaction Documents: comply in all material respects with, and perform all
material obligations under, each Transaction Document for that Series to
which it is a party;
(b) Agency Agreement: comply, and use reasonable endeavours to ensure the
Registrar complies, in all material respects with, and perform all material
obligations under, each Agency Agreement for that Series;
(c) Registrar: give, or procure that the relevant Registrar gives, notice to the
Supervisor and the relevant Holders of any resignation or removal of the
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Registrar for that Series and the appointment of any replacement Registrar
promptly following such event, provided that so long as any Bond under that
Series is outstanding, any resignation or removal of the Registrar shall not be
effective until a new Registrar is duly appointed;
(d) Register: use all reasonable endeavours to cause the relevant Registrar to
keep the relevant Register pursuant to the relevant Agency Agreement; and
(e) Compliance with Listing Rules: where and for so long as any Series of Bonds
is Listed, comply with all material obligations imposed by the Listing Rules
applicable to debt securities, and without limiting the foregoing shall supply to
Holders of the relevant Bonds such annual and/or half yearly reports and/or
Statements by such times and in such manner as may be prescribed.
10.4 Reports and information
The Issuer covenants with the Supervisor that, so long as any Retail Bonds are
outstanding, the Issuer will deliver or cause to be delivered to the Supervisor:
(a) Annual Report and Financial Statements: not later than 120 days (or by such
other time as is prescribed under the Listing Rules) after the end of each of its
financial years, a copy of the latest annual report, including the Financial
Statements of the Group for the preceding financial year, prepared as at the
last day of that financial year and duly audited;
(b) Financial Statements: not later than 90 days (or by such other time as is
prescribed under the Listing Rules) after the end of each of its financial half-
years, a copy of the latest Financial Statements of the Group, in each case for
the preceding half-year and prepared as at the last day of that financial half-
year;
(c) Directors’ Report: at the times of delivery of the latest annual report and
Financial Statements pursuant to clauses 10.4(a) or 10.4(b) a Directors’
Report in relation to each Series signed by two Directors, stating the matters
referred to therein as at the end of and in respect of such year or half-year as
the case may be;
(d) Notices to Holders: in respect of each Series, copies of all notices or other
information given by it to Holders of that Series generally or, where any of the
Bonds are Listed to NZX;
(e) Material Litigation: upon becoming aware of same, notice of any litigation
that is likely to be adversely determined and, if so determined, would be a
Material Adverse Change;
(f) Other information: (to the extent lawfully entitled to do so) any other
information which the Supervisor may reasonably request with respect to the
business, assets or financial condition of the Issuer or the Group or which the
Supervisor may request under section 115 of the FMCA;
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(g) Auditors report: at the same time as the audited latest Financial Statements
are provided in accordance with clause 10.4(a), a report by the Auditor
stating:
(i) whether, in the course of performing their duties as Auditor, they have
become aware of:
(A) any non-payment of Principal Amount or interest (including any
suspension of interest) or any breach of the provisions of this
deed, and if so giving particulars thereof; or
(B) any matter which, in their opinion, is relevant to the exercise or
performance of the powers or duties conferred or imposed on the
Supervisor by this deed or by the FMCA (if applicable) or any
other law, and if so giving particulars thereof;
(ii) whether they have audited the Register for each Series for whom they
act as auditors, and to the extent that they have audited a Register,
whether that Register has been duly maintained in accordance with the
requirements of clause 5 (Register);
(iii) whether their audit has disclosed any matter, and if so giving
particulars thereof, calling in their opinion for further investigation by
the Supervisor in the interests of the Holders;
(iv) that they have perused each of the Directors’ Reports given since the
last report by the Auditor (or the date of this deed, whichever is the
later), and that, so far as matters which they have observed in the
performance of their duties as auditors are concerned, nothing has
come to their attention to show that the statements made in the
Directors’ Reports are not correct; and
(v) the aggregate Principal Amount of Bonds in each Series on issue and
outstanding.
The report provided by the Auditor must be provided in such form as agreed
between the Issuer and the Supervisor from time to time;
(h) Register Audit: if the Auditor has not audited the Register for a Series for
whom they act as auditor, a report from another qualified auditor acceptable
to the Supervisor confirming whether or not the Register for that Series has
been duly maintained in accordance with the requirements of clause 5
(Register).
10.5 Negative Undertakings
The Issuer undertakes to the Holders and, in respect of Retail Bonds, the Supervisor
that, for so long as any Bonds of the Issuer are outstanding, it shall not, and it shall
procure that each Guarantor shall not, without prior written consent of the
Supervisor:
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(a) Negative Pledge: create or permit to subsist any Security Interest over the
whole or any part of its assets other than a Permitted Security;
(b) Provide accommodation: lend or otherwise provide any other financial
accommodation in excess of NZ$5,000,000 (or the NZD Dollar Equivalent) in
aggregate in each financial year (not including financial accommodation
provided to another Guarantor or any current or future resident of any
Development through a vendor financing arrangement), or give any
guarantees or like instruments in respect of, or otherwise assume any
indebtedness of, any persons (other than another Guarantor) in excess of
NZ$5,000,000 (or the NZD Dollar Equivalent) in aggregate in each financial
year;
(c) Distributions: make any Distribution to any person outside the Guaranteeing
Group if an Event of Default or Event of Review has occurred and is continuing
or if the making of the Distribution would result in the occurrence of an Event
of Default or Event of Review;
(d) Offer Document: issue an Offer Document in respect of a Retail Series
without prior written notice to the Supervisor, and not include any statement
in any Offer Document in respect of a Retail Series, referring to the
Supervisor without the prior written consent of the Supervisor (such consent
is not to be unreasonably withheld or delayed);
(e) Business: make or permit any material change to the nature or scope of the
core business of the Group from that being carried on by the Group at the
date of this deed;
(f) Disposals: either by a single transaction or a series of transactions, whether
related or not and whether voluntary or involuntary, dispose of any part of its
property other than a Permitted Disposal; or
(g) Incorporation: in the case of the Issuer, change its place of incorporation,
domicile or residence to any place other than New Zealand, and, in the case
of each Guarantor, change any of the places in which that Guarantor had its
place of incorporation, domicile and residence on the date on which that
Guarantor became a Guarantor.
10.6 Appointment of Auditor
For so long as any Retail Bonds are outstanding, the Issuer must, before
recommending the appointment or reappointment of a person as an auditor of the
Issuer:
(a) consult with the Supervisor on such appointment or reappointment and the
nature and scope of any assurance engagement in relation to the Issuer’s
compliance with this deed;
(b) ensure that any comments of the Supervisor concerning the proposed Auditor
are brought to the attention of the persons appointing or reappointing the
Auditor;
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(c) give the Supervisor an opportunity to be a party to the assurance
engagement for the purpose of the Supervisor obtaining assurance of matters
relevant to the exercise or performance of the Supervisor’s powers or duties;
(d) ensure that the terms of appointment of the Auditor, whether the Auditor is
conducting an audit, review or other engagement, include that the Auditor will
give the Supervisor an opportunity to meet with the Auditor, without any
representative of the Issuer being present, to raise or discuss:
(i) at the beginning of such engagement, any issues or concerns relevant
to the exercise or performance of the Supervisor’s powers or duties;
and
(ii) matters arising in the performance of such engagement and to answer
any questions the Supervisor may have concerning such engagement.
10.7 Resignation
For so long as any Retail Bonds are outstanding, the Issuer must notify the
Supervisor if the Auditor resigns from appointment, or declines to accept
appointment or reappointment, and must pass on to the Supervisor any explanation
provided by the Auditor for resigning its appointment or declining to accept
appointment or reappointment. The Issuer must not attempt to prevent any person
who has resigned its appointment as an auditor, or declined to accept an
appointment or reappointment as an auditor, from offering an explanation, or
disclosing to the Supervisor the reason, for resigning or declining appointment or
reappointment.
11 DEFAULT
11.1 Events of Default
If any of the following occurs in respect of the Issuer or, as applicable, a Guarantor,
whether or not within the control of the Issuer or that Guarantor:
(a) Non-payment: subject to any provision in the Conditions applicable to any
Bond relating to suspension of payments, default is made by the Issuer in the
payment of:
(i) the Principal Amount of any Bonds on the Maturity Date or other
scheduled date for repayment and the default continues for a period of
10 business days after the date when due; or
(ii) any interest on the relevant Interest Payment Date and the default
continues for a period of 3 business days after the date when due; or
(iii) any other amount due in respect of any Bond and the default continues
for a period of 10 business days after the date when due; or
(b) Other breach: default is made by:
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(i) the Issuer in the performance or observance of any material
undertaking contained in this deed applicable to any Bond (other than
those referred to in clause 10.2 (Financial Undertaking) or
clause 11.1(a)); or
(ii) a Guarantor in the performance or observance of any undertaking
contained in a Security Document,
and:
(A) in respect of any such default which is capable of being remedied, is
not performed or observed within the period of 30 days after the Issuer
or, as applicable, such Guarantor becoming aware of that default; and
(B) such default is, or is likely to be, in the reasonable opinion of the
Supervisor, materially prejudicial to the Retail Holders; or
(c) Cross acceleration: indebtedness for or in respect of any borrowed money of
any Guarantor (other than in respect of the Bonds) in excess in aggregate of
NZ$10,000,000 (or the NZD Dollar Equivalent) is declared to be due and
payable, or otherwise becomes due and payable, in either case prior to its
stated maturity by reason of an event of default or similar event (howsoever
described); or
(d) Misrepresentation: any representation, warranty or statement made or
deemed to be repeated by a Guarantor in a Transaction Document is not
correct in all material respects when made or deemed to be repeated and in
respect of any such misrepresentation which is capable of being remedied,
such misrepresentation is not remedied within 60 days after the earlier of:
(i) the Supervisor notifying the Issuer of the relevant breach; and
(ii) the date on which the Issuer, or as applicable, such Guarantor becomes
aware of that misrepresentation; or
(e) an Insolvency Event occurs in relation to any Guarantor; or
(f) Cease business: (except with the prior written consent of the Supervisor) any
Guarantor ceases or threatens to cease to carry on all or any material part of
its business except, in each case for the purpose of, and followed by, an
amalgamation or solvent reconstruction on terms previously approved in
writing by the Supervisor; or
(g) Avoidance or repudiation:
(i) a Transaction Document ceases to be in full force and effect or its
validity or enforceability is contested by the Issuer or a Guarantor; or
(ii) the Issuer or a Guarantor repudiates, or does anything evidencing an
intention to repudiate a Transaction Document; or
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(h) Supplemental Deed: (in relation to any Bond) any event occurs which is
specified in the Conditions for that Bond as an Event of Default,
then at any time thereafter, and for so long as that Event of Default is continuing
unremedied:
(a) Retail Series: the Supervisor may in its discretion, and shall immediately
upon being directed to do so by an Extraordinary Resolution passed by
Holders of a Retail Series by notice in writing to the Issuer, declare the
Principal Amount of the Bonds of that Retail Series together with interest
(calculated in accordance with the actual/actual day count convention for any
incomplete Interest Period) and any other amounts payable thereon to be
immediately due and payable, whereupon such amounts shall be immediately
due and payable;
(b) Wholesale Series: a Wholesale Holder may by notice in writing to the Issuer,
without prejudice to any other remedies which that Holder may have:
(i) where that Event of Default occurs under clause 11.1(a) in relation to a
Bond held by that Holder; or
(ii) where that Event of Default occurs under clauses 11.1(b) to (h)
(inclusive) and the Holders of Wholesale Bonds resolve by
Extraordinary Resolution to do so,
declare the Principal Amount of all (but not some only) of the Wholesale
Bonds held by that Holder together with interest (calculated in accordance
with the actual/actual day count convention for any incomplete Interest
Period) to be immediately due and payable, whereupon such amounts shall be
immediately due and payable; and
(c) Enforcement: following any declaration under (a) or (b) above, the
Supervisor may (and shall, if so directed) take such steps as it is entitled to
under the Security Trust Deed to instruct the Security Trustee to exercise all
or any of its rights under any Security Document.
11.2 Event of Review
(a) In relation to any Series of Bonds, if there is a breach of the loan-to-value ratio in
clause 10.2 (Financial Undertaking) in respect of a Test Date by reference to any
Directors’ Report delivered on any date (LVR Breach), an Event of Review occurs on
the date on which that Directors’ Report was delivered or was required to be
delivered (whichever is earlier).
(b) Within 90 days after the date on which the Event of Review occurs, the Issuer shall
give notice to the Supervisor and to all Wholesale Holders (LVR Notice) of the LVR
Breach including a plan by the Issuer to remedy the breach (by selling assets,
effecting a capital restructuring and/or other action).
(c) If the LVR Breach is not remedied within 180 days of the date the LVR Notice was
required to be delivered, this shall constitute an Event of Default pursuant to clause
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11.1(b) provided the grace period in clause 11.1(b)(ii)(A) shall not apply and it shall
not be necessary for the Supervisor to determine that the LVR Breach is, or is likely
to be, materially prejudicial to the Holders under clause 11.1(b)(ii)(B).
11.3 Distribution of funds in respect of Bonds
All moneys received by the Supervisor in respect of Bonds from or on behalf of the
Issuer on or after the Date of Enforcement shall (subject to payment of any debts or
liabilities having priority to the moneys due to Holders pursuant to those Bonds and
to the provisions of the Security Trust Deed and the Security Sharing and Priority
Deeds) be held and applied:
(a) first, subject to any direction made by any court, in payment of all amounts
due to the Supervisor under this deed and the relevant Supplemental Deed
(including all expenses, losses and liabilities sustained or incurred by the
Supervisor under this deed, all fees payable to the Supervisor under this deed
and any Default Interest on each such amount);
(b) secondly, in or towards payment to the Holders of those Bonds, rateably in
proportion to the Bond Moneys owing to them in respect of the Bonds held by
them; and
(c) thirdly, the surplus (if any) of such moneys, in payment to the Issuer or to
such other persons (including a liquidator of the Issuer) as may be lawfully
entitled thereto.
12 APPOINTMENT OF SUPERVISOR
12.1 Appointment
The Issuer appoints the Supervisor, and the Supervisor accepts appointment, as
supervisor and trustee for the Holders on the terms and conditions contained in this
deed (including, in respect of Wholesale Holders, clause 15.11(a)). The Supervisor
shall hold in trust for the benefit of all Retail Holders the right to enforce any
obligations or duties that the Issuer, any guarantor and any other person has under
a Retail Bond, this deed and the FMCA, including the right to enforce the Issuer’s
obligation to repay a Holder the Principal Amount of the Retail Bonds held by that
Holder, together with interest thereon, in accordance with the terms of this deed
and, if applicable, any charge or security for repayment of the Retail Bonds. For the
avoidance of doubt, the Supervisor is the licensed supervisor for the debt securities
for the purposes of the FMCA.
12.2 Warranty
The Supervisor represents and warrants to the Issuer and the Retail Holders that it
is licensed (as that term is defined in the FMCA) and that licence covers the
supervision of all Retail Bonds issued under this deed. The representation and
warranty contained in this clause 12.2 (Warranty) shall be deemed to be repeated
for the benefit of the Issuer and each Retail Holder on the Issue Date and each
Interest Payment Date of each Retail Bond.
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13 SUPERVISOR'S FEES, EXPENSES AND INDEMNITIES
13.1 Fees
The Issuer shall pay, or shall procure that another member of the Group shall pay,
to the Supervisor such fees (plus goods and services tax (if any)) as may be from
time to time agreed by the Issuer and the Supervisor in writing.
13.2 Expenses
The Issuer shall pay, or shall procure that another member of the Group shall pay,
all out of pocket expenses (including legal fees on a full indemnity basis and
travelling expenses) reasonably and properly incurred by or on behalf of the
Supervisor in connection with:
(a) the preparation, execution and (if applicable) registration of this deed, each
Supplemental Deed and each Offer Document in respect of a Retail Bond;
(b) the exercise of any Trust Power, including the taking of any expert advice
deemed reasonably necessary or expedient by the Supervisor in connection
with the exercise of such Trust Power;
(c) the convening and holding, and carrying out of any directions or resolutions,
of any meeting of Holders in accordance with the terms and conditions of this
deed and any Supplemental Deed; and
(d) any waiver, consent or other action requested by the Issuer.
13.3 Enforcement
The Issuer shall pay, or shall procure that another member of the Group shall pay,
all expenses (including legal fees on a full indemnity basis) properly incurred by the
Supervisor in connection with the enforcement or preservation of, or attempted
enforcement or preservation of, any right under a Transaction Document or
otherwise in the exercise of any Trust Power, including taking of any expert advice
deemed reasonably necessary or expedient by the Supervisor in connection with the
above matters.
13.4 Indemnity by Issuer
Subject to clause 17.1 (Supervisor not Indemnified), and without prejudice to the
right of indemnity by law given to supervisors or trustees, but subject to any
limitations placed on such rights of indemnity by law, the Issuer shall indemnify or
shall procure that another member of the Group acceptable to the Supervisor shall
indemnify, the Supervisor (and each of its officers, directors, employees and agents)
for all expenses and liabilities (and for the avoidance of doubt excluding income tax
on the Supervisor’s remuneration) reasonably sustained or incurred in carrying out
the Trust Powers or otherwise for any action taken, or omitted to be taken, in
accordance with the provisions of this deed, other than a claim arising out of a wilful
default, fraud, gross negligence or wilful breach of trust.
13.5 Indemnity by Holders
The Supervisor is not required to take any action or exercise any Trust Power or
comply with any request or direction pursuant to this deed or any relevant
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Supplemental Deed (whether or not it is expressed to be bound to do so) unless it
has first been indemnified by the Retail Holders and/or, in the case of taking any
action or exercising any Trust Power in connection with any Wholesale Series, by the
Wholesale Holders in accordance with clause 15.11(b), to its satisfaction against all
reasonable expenses, losses and liabilities it may reasonably sustain or incur by so
doing.
13.6 Payments
The fees, expenses, indemnities and other amounts payable under this deed and any
relevant Supplemental Deed to the Supervisor (excluding for the avoidance of doubt
amounts payable in respect of the Bonds) form part of the Bond Moneys and shall be
payable by the Issuer and the Holders (as the case may be):
(a) at the times agreed; or
(b) in the absence of agreement, on demand; and
(c) if not paid when due shall carry Default Interest under clause 6.8 (Default
Interest) until paid.
13.7 Primary Obligations
The fact that the Issuer is entitled to procure that another member of the Group
shall satisfy the payments referred to in this clause 13 (Supervisor's Fees, Expenses
And Indemnities) shall not relieve the Issuer of its primary obligation to ensure that
such payments are duly made.
14 SUPERVISOR’S POWERS
14.1 General powers
The powers, authorities and discretions conferred on the Supervisor by this deed
and each Supplemental Deed shall be in addition to any powers, authorities and
discretions which may from time to time be vested in supervisors or trustees by law
in relation to Bonds and to any powers, authorities and discretions which may from
time to time be vested in the Supervisor as the Holder of any Bond.
14.2 Retail Series
In relation to each Retail Series the Supervisor shall, in addition to any powers
provided by law, have the following powers and duties, subject to the terms of the
relevant Supplemental Deed:
(a) General Duties: the Supervisor:
(i) is responsible for acting on behalf of the Retail Holders in relation to the
Issuer, any matter connected with this deed or the terms of the offer of
a Retail Series and any contravention or alleged contravention of the
issuer obligations (as defined in the FMCA) in respect of a Retail Series;
(ii) is responsible for supervising the Issuer’s performance of its issuer
obligations (as defined in the FMCA) and in order to ascertain whether
or not the assets of the Issuer that are or may be available, are
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sufficient or likely to be sufficient to discharge the payment obligations
of the Issuer in respect of Retail Bonds as they become due; and
(iii) is responsible for performing and exercising any other functions, duties
and powers conferred or imposed on the Supervisor by this deed, the
FMCA and the Financial Markets Supervisors Act 2011.
(b) Monitoring role: the Supervisor must:
(i) act honestly in acting as a supervisor;
(ii) in exercising its powers and performing its duties as a supervisor, act in
the best interests of the Retail Holders;
(iii) exercise reasonable diligence in carrying out its functions as a
supervisor;
(iv) in exercising its powers and performing its duties as a supervisor,
exercise the care, diligence and skill that a prudent person engaged in
the business of acting as a licensed supervisor (as those terms are
defined in the FMCA) would exercise in the same circumstances;
(v) do all the things it has the power to do to cause any contravention
referred to in section 111(1)(a)(iii) of the FMCA to be remedied (unless
it is satisfied that the contravention will not have a material adverse
effect on any Class of Retail Holders); and
(vi) subject to any court order made under section 210 of the FMCA, act in
accordance with any direction given by an Extraordinary Resolution of
Retail Holders that is not inconsistent with any enactment, rule of law,
or this deed in relation to:
(A) seeking a remedy to a contravention referred to in section
111(1)(a)(iii) of the FMCA; and
(B) any other matter connected with the Supervisor’s functions.
(c) Applications to court: If, after due inquiry and after consultation with the
Issuer, the Supervisor is of the reasonable opinion that:
(i) the Issuer is unlikely to be able to pay any amounts payable in relation
to one or more Series of Retail Bonds as and when due; or
(ii) that the provisions of this deed or the relevant Supplemental Deed are
no longer adequate to give protection to the interests of any of the
Retail Holders,
then, and whenever the Supervisor, acting reasonably, considers it in the best
interests of the Retail Holders having regard to any other powers or remedies
available to it under this deed or the relevant Supplemental Deed or at law for
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the protection of the interests of such Retail Holders and to all other
circumstances relevant to the general interests of such Retail Holders, the
Supervisor may apply to the court pursuant to section 207 of the FMCA:
(iii) for an order that the Trust Powers be exercised under the direction of
the court; or
(iv) for directions or any other order in relation to the extent of or, the
carrying out of, the Trust Powers; or
(v) for any other order under section 207, 208 or 210 of the FMCA.
The Supervisor may support or oppose any application to the court made by
or at the instance of any Retail Holder. Subject to clause 17.1 (Supervisor not
Indemnified), the Supervisor shall be indemnified by the Issuer against all
expenses incurred in relation to any such application or proceedings, but only
if the Supervisor has consulted with the Issuer prior to making any such
application before the Date of Enforcement.
(d) Material breach: If any breach of this deed or any relevant Supplemental
Deed occurs, then unless the Supervisor is satisfied that the breach will not
have a material adverse effect on any Class of Retail Holders, the Supervisor
shall be entitled in its absolute discretion to require the Issuer to report to the
Retail Holders the circumstances and the nature of such breach and any other
relevant information concerning the Issuer which the Supervisor has received
in relation to this deed and which it reasonably considers to be material to
those Retail Holders, and invite those Retail Holders to indicate to the
Supervisor their preferences as to any exercise or non-exercise of the Trust
Powers under this deed. If the Issuer fails to give that report within 30 days
the Supervisor shall be entitled to do so itself.
(e) Represent Retail Holders: The Supervisor may, either of its own volition or
pursuant to any directions or in accordance with any policy given or indicated
by any meeting of Retail Holders, represent and act on behalf of those Retail
Holders in any manner concerning them generally.
(f) Investment: Any moneys held by the Supervisor which are subject to the
trusts created by this deed or any relevant Supplemental Deed may, at the
Supervisor's discretion, be invested in the name of the Supervisor or its
nominee in any investments whatsoever, with power to vary those
investments for others of a similar nature and from time to time to deal with
or dispose of them or any part of them. The income arising from all such
investments made by the Supervisor will belong to the person on behalf of
whom such money is held by the Supervisor.
(g) Power to Remedy Breach: The Supervisor’s powers to remedy any breach of
this deed are subject to any other provision of this deed which is inconsistent
with the exercise of such powers.
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(h) Power to engage expert: The Supervisor may engage an expert (for example,
an auditor, investigating accountant, valuer or actuary) if the Supervisor
considers, on reasonable grounds, that it requires the assistance of the
expert:
(i) to determine the financial position of the Issuer; or
(ii) to review the business, operation, management systems or the
governance of the Issuer.
Where the Supervisor engages an expert pursuant to this clause 16.2(h), the
Issuer shall provide reasonable assistance to the expert to provide the
assistance and (without limiting clause 15.2(b)) the fees and expenses of the
expert, which must be reasonable in the circumstances, shall be paid by the
Issuer.
15 EXERCISE OF SUPERVISOR’S POWERS
15.1 Discretion
Except as otherwise expressly provided in this deed (including clause 13.5
(Indemnity by Holders)) and subject to the proper performance of its duties in
accordance with clauses 14.2(b)(i) to 14.2(b)(vi), the Supervisor:
(a) has absolute discretion as to the exercise or non-exercise of the Trust Powers
and as to the conduct of any action, proceeding or claim (provided it has
acted with reasonable care and diligence);
(b) may refrain from exercising any Trust Power until directed by Extraordinary
Resolution of Retail Holders or of the affected Class of Retail Holders to do so;
and
(c) will not be responsible for any loss, costs, damages, expenses or
inconvenience that may result from the exercise or non-exercise of any Trust
Power.
15.2 Reliance
The Supervisor shall be entitled, without liability for loss, to obtain, accept and act
on, or (other than as provided for by clause 15.1 (Discretion)) to decline and elect
not to act on:
(a) any communication or document (including any email) reasonably believed by
it to be genuine and correct;
(b) any resolution which the Supervisor believes to have been properly passed at
any meeting of Retail Holders or the affected Class of Retail Holders;
(c) advice and statements of lawyers, accountants and other experts reasonably
selected by it or the Issuer;
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(d) a certificate signed by or on behalf of the Issuer by at least two Authorised
Officers, as to any matters of fact which might reasonably be expected to be
within the knowledge of the Issuer or that any particular transaction, step or
thing is expedient or commercially desirable and not detrimental to the
interests of the Retail Holders generally or of any Class of Retail Holders, as
sufficient evidence of such fact or the expediency or desirability of such
transaction, step or thing; and
(e) the statements contained in any certificate or certificates or in any report or
reports given pursuant to the provisions of this deed or any Supplemental
Deed, as conclusive evidence of the facts stated therein.
15.3 Subscribers' Moneys
The Supervisor shall not be responsible for monitoring the application by the Issuer
of the money paid by the subscribers of the Bonds.
15.4 Delegation
The Supervisor, whenever it thinks it expedient in the interests of the relevant Retail
Holders to do so, may:
(a) where permitted to do so by the FMCA or as permitted by, and then subject
to, conditions imposed under the Financial Markets Supervisors Act 2011,
delegate at any time to any person any of the Trust Powers which cannot
conveniently be exercised by it or through its employees, upon such terms
and conditions it thinks fit provided any such delegation shall not relieve the
Supervisor of its responsibilities under this deed; and
(b) authorise any person as it thinks fit to act as its representative at any
meeting.
15.5 Supervisor’s consent
Any consent given by the Supervisor for the purposes of this deed may be given on
such terms and conditions (if any) as the Supervisor acting reasonably thinks fit.
15.6 Fiduciary relationship
(a) Nothing in this deed prohibits the Supervisor, its holding company, any of its
subsidiaries or any of the subsidiaries or its holding company (each a Relevant
Company) or the directors or officers of each Relevant Company from:
(i) being a Holder or a holder of shares or other securities of the Issuer or any
associated company of the Issuer; or
(ii) acting in any representative capacity for a Holder or any such holder of shares
or other securities.
(b) Without limitation, the Relevant Company may so act on its own account or as
executor, administrator, receiver, committee, guardian, attorney or agent or in any
other fiduciary, vicarious or professional capacity. In doing so, it will not be deemed
to be a breach of this deed, any Supplemental Deed or obligations imposed or
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implied by law arising out of the fiduciary relationship between the Supervisor and
the Holders.
(c) The Relevant Company will not by reason of its fiduciary capacity be prevented
from:
(i) making any contracts or entering into any transactions with the Issuer or any
associated company of the Issuer in the ordinary course of the business of the
Relevant Company; or
(ii) undertaking any insurance, financial or agency service for any of them; or
(iii) accepting or holding the office of trustee for the holders of any securities
(whether secured or unsecured) issued by the Issuer or by any other entity.
(d) The Relevant Company will not be accountable to the Issuer or to any other
company or the Holders for any profits arising from any such contracts, transactions
or offices.
15.7 Confidentiality
The Supervisor shall not (except to the extent required by the Conditions or law or
by court order) be required to disclose to any Holder any confidential financial or
other information made available to the Supervisor by the Issuer.
15.8 Binding on all Holders
Any action taken by the Supervisor in accordance with this deed is binding on all of
the Holders or all of the relevant Holders (as the case may be).
15.9 No obligation to consult
Except where expressly required otherwise in this deed, the Supervisor is not
obliged to consult with the Holders before giving any consent, approval or
agreement or making any determination under this deed.
15.10 Knowledge of default
(a) The Supervisor:
(i) may assume that the Issuer is complying with this deed, the Transaction
Documents, and any Supplemental Deed; and
(ii) is not taken to have knowledge of the occurrence of an Event of Default or
Event of Review in relation to a Series,
unless any of its officers having responsibility for the transaction actually become
aware of the relevant non-compliance, Event of Default or Event of Review or the
Supervisor has received written notice from a Holder or the Issuer or NZX stating
that the non-compliance, Event of Default or Event of Review has occurred and
describing it.
(b) In the event of non-compliance with the Listing Rules, the Supervisor, in
determining the action to be taken or not taken by it, shall be entitled to have
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regard to the actions of NZX, as relevant, in relation to that non-compliance by the
Issuer.
15.11 Wholesale Issues
(a) The Supervisor shall have no powers or duties in relation to any Wholesale Series
except the powers and duties explicitly set out in the Conditions for any series of
Wholesale Bonds.
(b) Where the Supervisor takes any action or exercises any Trust Power or complies
with any authorisation or direction in respect of the taking of any action or other
matter under the provisions of this deed or any Supplemental Deed (whether or not
it is expressed to be bound to do so), the Supervisor shall not be responsible for any
costs, damages, expenses, liabilities or inconvenience that may result from the
actions so taken in reliance thereon, provided that the Supervisor shall not be so
bound to act unless first indemnified by the Wholesale Holders to its satisfaction
against all actions, proceedings, claims and demands to which it may render itself
liable and all costs, damages, expenses and liabilities which it may incur by so
doing.
16 REPLACEMENT OF SUPERVISOR
16.1 Resignation or removal of Supervisor
Subject, in the case of resignation or removal under clause 16.1(a), 16.1(b) or
16.1(d) below, to clause 16.2 (Requirements for retirement and removal):
(a) the Supervisor may resign at any time by giving not less than 90 days’ written
notice (or such lesser period of notice as the Issuer may agree in writing) to
the Issuer;
(b) the Issuer may remove the Supervisor from office by giving not less than
90 days’ written notice (or such lesser period of notice as the Supervisor may
agree in writing) to the Supervisor;
(c) the Supervisor may be removed by the FMA or the Issuer under Part 2 of the
Financial Markets Supervisors Act 2011; or
(d) the Retail Holders may remove the Supervisor from office by giving not less
than 90 days’ written notice to the Issuer and Supervisor upon the passing of
an Extraordinary Resolution of Retail Holders to that effect.
16.2 Requirements for retirement and removal
The Supervisor may not:
(a) be removed or resign under clause 16.1(a), 16.1(b) or 16.1(d) unless:
(i) all functions and duties of the position have been performed; or
(ii) another licensed supervisor has been appointed, and accepted the
appointment, in its place; or
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(iii) the court consents; or
(b) be removed by the Issuer under clause 16.1(b) without the FMA’s consent.
16.3 Appointment of a new Supervisor
Upon such a notice of resignation or removal being given, the Issuer will, subject to
clause 16.4 (Approval by Extraordinary Resolution), have the right to appoint a
successor Supervisor, which must be a person who is authorised to act as a
supervisor under section 103(1)(b) of the FMCA.
16.4 Approval by Extraordinary Resolution
Where the successor Supervisor is to be appointed pursuant to clause 16.3
(Appointment of a new Supervisor) and at such time there are Retail Bonds
outstanding under this deed and any Supplemental Deed, then the removal of the
Supervisor pursuant to clause 16.1(b) and the appointment of the successor
Supervisor pursuant to clause 16.2 (Requirements for retirement and removal), shall
be subject to approval by an Extraordinary Resolution of Retail Holders.
16.5 Failure to Appoint Supervisor
Other than where the successor Supervisor requires approval pursuant to
clause 16.4 (Approval by Extraordinary Resolution), if a successor Supervisor has
not been appointed by the Issuer or has not accepted an appointment within
60 days after any such notice, then the retiring Supervisor may, on behalf of the
Issuer, appoint a successor Supervisor. In circumstances where the successor
Supervisor requires approval by an Extraordinary Resolution of Retail Holders, any
failure of the Issuer to appoint or have approved a successor Supervisor will entitle
the Retail Holders, by an Extraordinary Resolution of Retail Holders, to appoint a
new Supervisor.
16.6 Successor Supervisor
Where an appointment under this clause 16 (Replacement of Supervisor) is accepted
by a successor Supervisor:
(a) the successor Supervisor will succeed to, and become vested with, all the
rights, powers and obligations of the retiring Supervisor under the Transaction
Documents and, as from that time, the retiring Supervisor shall be discharged
from its rights, powers and obligations;
(b) the retiring Supervisor must transfer to the successor Supervisor all moneys,
investments, property and books held by the Supervisor under this deed; and
(c) the successor and retiring Supervisors shall execute all such documents which
are necessary or appropriate and in such form as may be reasonably required
by the other parties to the Transaction Documents, such that the successor
Supervisor is bound by all the covenants on the part of the Supervisor under
the Transaction Documents from the date of such appointment.
16.7 Notice
The Issuer agrees to notify all Retail Holders of the appointment of any new
supervisor as soon as reasonably practicable following such appointment.
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17 LIABILITY OF SUPERVISOR
17.1 Supervisor not Indemnified
The Supervisor’s rights to be indemnified in relation to the performance of the
Supervisor’s licensee obligations (as defined in section 4 of the Financial Markets
Supervisors Act 2011) under this deed in respect of Retail Bonds are available only
in relation to the proper performance of its duties in accordance with clauses
14.2(b)(i) to 14.2(b)(iv) (inclusive) and no other provision of this deed that is
contrary to the foregoing shall have any effect.
17.2 Duty of Care
Notwithstanding any other provision of this deed, but subject to the provisions of
any Supplemental Deed and any applicable law, the Supervisor shall not be liable to
any person (including the Issuer and any Holders) in any way except for wilful
default, fraud, gross negligence or wilful breach of trust where the Supervisor has
failed to show the degree of care and diligence required of it having regard to the
provisions of this deed. The Supervisor is not liable for anything done or omitted to
be done, in good faith, in giving effect to a direction given to it by Holders.
18 BENEFIT OF DEED
The Issuer acknowledges, in relation to each Series and the Holders of the Bonds of
that Series, that this deed (including, for the avoidance of doubt, the Supplemental
Deed for that Series) is made for the benefit of, and (subject to clause 2.6
(Enforcement of Holders’ rights)) is intended to be enforceable by, any person who
is from time to time a Holder of the Bonds of that Series, the Registrar for that
Series, and the Supervisor.
19 AMENDMENTS
19.1 Limited right to amend
In relation to each Series of Bonds, except as expressly permitted by this deed or
any Supplemental Deed and except as provided in this clause 19 (Amendments) the
Issuer may not cancel, vary or amend any provision of this deed or any
Supplemental Deed while any Bonds are outstanding. Any amendment to this deed
or any Supplemental Deed must be:
(a) in writing signed by the Issuer and the Supervisor (and the Supervisor must,
where required by the FMCA, provide or, where applicable, obtain the
certificates required under section 108(2)(b) of the FMCA); or
(b) made under section 109 of the FMCA or 22(7) or 37(6) of the Financial
Markets Supervisors Act 2011 or under any other power to amend this deed
under any other applicable law.
19.2 Amendment of Master Trust Deed and Supplemental Deed without consent
of Holders
Subject to clause 19.1, in relation to each Series, the provisions of this deed and the
relevant Supplemental Deed may be amended without the consent of the Holders of
that Series where:
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(a) in relation to a Wholesale Series, such amendment, in the opinion of the
Issuer is:
(i) of a minor, formal, administrative or technical nature;
(ii) to correct a manifest error;
(iii) to comply with the requirements or a modification of the requirements
of any applicable law or any rules of any stock exchange in New
Zealand or elsewhere;
(iv) necessary or desirable for the purposes of obtaining or maintaining a
quotation on any stock exchange in New Zealand or elsewhere;
(v) in respect of any of the provisions of reporting to the Supervisor under
this deed or a Supplemental Deed or in respect of clause 13
(Supervisors fees, expenses and indemnities) or clause 15 (Exercise of
Supervisor’s powers); or
(vi) not materially prejudicial to the interests of Holders of that Series; and
(b) in relation to a Retail Series:
(i) the Supervisor is satisfied that such amendment does not have a
material adverse effect on Holders of that Retail Series; or
(ii) such amendment is agreed to by the Supervisor pursuant to clause
20.3 (Statutory Exemptions).
Notice of any such amendment shall be provided to the Holders of the relevant
Series within 10 business days of the amendment being made.
For the avoidance of doubt, the Supervisor must act in accordance with any direction
given by Extraordinary Resolution of Retail Holders, if a direction is given, subject to
section 111(2)(b) of the FMCA (which is further subject to any order of the court
directing the Supervisor made under section 210 of the FMCA).
19.3 Amendment of Master Trust Deed and Supplemental Deed with consent of
Holders
Subject to clause 19.1 and without limiting clause 19.2 (Amendment of Master Trust
Deed and Supplemental Deed without consent of Holders), the provisions of this
deed or any Supplemental Deed may be amended in relation to each Class of Bonds
if the amendment has been approved, or is contingent upon approval by an
Extraordinary Resolution of:
(a) the Holders; or
(b) each Class of Holders that is or may be adversely affected by the amendment.
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19.4 Amendment of Security Documents without consent of Holders
In relation to each Series, the Supervisor (in its capacity as Bond Supervisor under
the Security Trust Deed) may consent to the provisions of a Security Document
being amended or replaced (temporarily or permanently) where, in the opinion of
the Supervisor, the amendment or replacement is:
(a) of a minor, formal, administrative or technical nature;
(b) necessary to ensure that the tenor or nature of the obligations imposed on
the Issuer correspond with or do not conflict with the obligations imposed on
the Issuer under or pursuant to any applicable statutory provision;
(c) to correct a manifest error, to cure any ambiguity or to correct or supplement
any defective or inconsistent provision;
(d) an appropriate and reasonable modification or addition in all the
circumstances insofar as they relate to the Security Documents or the Issuer
(as to which modifications or additions which are necessary or convenient for
complying with banking practice, or are necessary, convenient or useful for
the purpose of any financial market, banking or business practice or technique
or method adopted by the Issuer or persons which carry on similar business
to the Issuer, shall be prima facie deemed reasonable and appropriate),
provided that any such modification or addition is in the Supervisor's opinion
(which opinion shall be final and conclusive) not likely to have a material
adverse effect on the Issuer or have a material adverse effect on the relevant
Holders;
(e) necessary or desirable to comply with the provisions of any law (including any
exemptions granted or applicable to the Issuer or any applicable regulations
made under the FMCA or the Listing Rules) or the requirements of any
statutory authority;
(f) necessary or desirable for the purposes of obtaining or managing a quotation
of Listed Bonds on the NZX Debt Market or any other market operated by NZX
or another stock exchange in New Zealand or elsewhere;
(g) not materially prejudicial to the interests of Holders; or
(h) otherwise necessary or desirable in the interests of the Holders or the
relevant Class of Holders.
19.5 Amendment of Security Documents with consent of Holders
Without limiting clause 19.4 (Amendment of Security Documents without consent of
Holders), the Supervisor (in its capacity as Bond Supervisor under the Security Trust
Deed) may consent to the provisions of any Security Document being amended if
the amendment has been approved, or is contingent upon approval, by an
Extraordinary Resolution of:
(a) the Holders; or
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(b) each Class of Holders that is or may be adversely affected by the amendment.
19.6 Single meeting
Where an amendment requiring approval of the Holders pursuant to clause 19.1
(Limited right to amend), clause 19.3 (Amendment of Master Trust Deed and
Supplemental Deed with consent of Holders) or clause 19.5 (Amendment of Security
Documents with consent of Holders) relates to or arises from any general change in
the affairs or business of the Issuer, the approval of any Retail Holder may be
obtained at a meeting of all Retail Holders and will not be required to be dealt with
by way of separate meetings of each Class of Holders unless the Supervisor
determines that there is a material difference in the effect of such resolution on
those Classes. For the avoidance of doubt, where such approval is dealt with by way
of a single meeting, the meeting shall be convened and held in accordance with the
provisions of Schedule 1.
19.7 Notice
Notice of any proposed amendment under clause 19.3 (Amendment of Master Trust
Deed and Supplemental Deed with consent of Holders) and clause 19.5 (Amendment
of Security Documents with consent of Holders) must be given by the Issuer to each
Holder not less than 14 days before the date on which it is intended that such
amendment will take effect. The non-receipt of notice by any such Holder will not
affect the validity of any such amendment.
20 WAIVER
20.1 Waivers
Subject to clauses 19.1 and 19.2 (if applicable) and any applicable law and except to
the extent expressly provided otherwise in the Conditions for any Series, by notice
to the Issuer, the Supervisor may, in respect of any Retail Series, waive any breach
or anticipated breach by the Issuer or any Guarantor of this deed or the relevant
Supplemental Deed applicable to any Series either wholly or in part for a specified
period or indefinitely and on such other terms and conditions as:
(a) it deems expedient provided that it shall be satisfied that the waiver will not
have a material adverse effect on Retail Holders of that Series, and provided
further that no such waiver shall prejudice the rights of the Supervisor or the
Retail Holders in respect of any such breach; or
(b) may be agreed by the Supervisor pursuant to clause 20.3 (Statutory
Exemptions).
20.2 Temporary Variation
In addition to, and not in abrogation of or substitution for, clause 19 (Amendments)
(but subject to any applicable law and except to the extent expressly provided
otherwise in the Conditions for any Bonds) the Supervisor may, in respect of any
Retail Series, temporarily vary the provisions of this deed or any Supplemental Deed
applicable to any Retail Bonds in each case for such period and on such terms as:
(a) the Supervisor may deem appropriate; or
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(b) may be agreed by the Supervisor pursuant to clause 20.3 (Statutory
Exemptions),
provided that, in either case, the Supervisor shall be satisfied that the temporary
variation will not have a material adverse effect on Retail Holders of that Series and
the Supervisor must provide, or where applicable, obtain the certificates required
under section 108(2)(b) of the FMCA.
20.3 Statutory Exemptions
In relation to each Retail Series, subject to any applicable law (including, but not
limited to, section 108 of the FMCA), and except to the extent expressly provided
otherwise in the Conditions for that Retail Series, if the Issuer is granted an
exemption, or an exemption is applicable to the Issuer, in relation to any obligation
imposed upon the Issuer by or pursuant to the Financial Reporting Act, the FMCA or
the FMC Regulations or the Listing Rules which is materially the same as or
analogous to any obligation of the Issuer under this deed or any Supplemental Deed
or any Bonds, then provided two Authorised Officers of the Issuer certify that such
amendment, temporary variation or waiver will not have a Material Adverse Change,
the Supervisor may in respect of that Retail Series agree to amend or temporarily
vary this deed or any Supplemental Deed or the Bonds of that Retail Series or waive
any breach or anticipated breach of such obligation in a manner which is consistent
with the relevant exemption.
21 SUBSTITUTION
21.1 Substitution
The Issuer may, with the consent of the Supervisor but without the consent of the
Holders of any Series, substitute any person incorporated in New Zealand
(Substituted Obligor) in place of the Issuer (or of any previous substitute under this
clause) as the principal debtor under this deed and the Bonds either generally or in
relation to one or more Series if:
(a) the Substituted Obligor succeeds to and becomes bound by all the terms and
conditions of this deed and the Supplemental Deed for the relevant Series and
the other Transaction Documents (as applicable) by entering into such
agreements and documents (Substitution Documents), each in form and
substance satisfactory to the Supervisor, as the Supervisor may reasonably
deem appropriate;
(b) (where the relevant series is a Retail Series) such amendments are made to
any other documents (including any Offer Document in respect of the relevant
Bonds) as the Supervisor may reasonably deem appropriate;
(c) any two Authorised Officers of the Substituted Obligor certify that the
Substituted Obligor will be solvent immediately after the substitution;
(d) (if the relevant Bonds, or any of them, are publically rated by a rating agency
as a result of a contract between the Issuer and that rating agency) that
rating agency confirms in writing that following the substitution the rating
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assigned to the relevant Bonds in force immediately prior to the substitution
taking effect will be maintained or increased;
(e) (if, at the relevant time, the relevant Bonds, or any of them, are not publically
rated by a rating agency as a result of a contract between the Issuer and that
rating agency, but the Issuer is publically rated by a rating agency as a result
of a contract between the Issuer and that rating agency) that rating agency
confirms in writing that following such substitution the rating assigned to the
Substituted Obligor or any person guaranteeing the obligations of the
Substituted Obligor under this deed immediately prior to the substitution
taking effect shall be maintained at or increased above the Issuer’s then
public rating;
(f) prior to the substitution being effected, the Substituted Obligor warrants and
represents to the Supervisor for the benefit of Holders that:
(i) it has obtained all necessary authorisations for the substitution;
(ii) it has obtained all necessary authorisations for the performance by it of
its obligations under this deed, any relevant Supplemental Deed for the
Series, any other relevant Transaction Document, the Substitution
Documents and the relevant Bonds and that they are in full force and
effect; and
(iii) the obligations assumed by it are legal, valid and binding obligations,
enforceable against it in accordance with their terms, subject to laws
affecting creditors’ rights generally and equitable principles of general
application;
(g) legal opinions (in form and substance reasonably satisfactory to the
Supervisor in respect of the relevant Retail Series or the Holders of the
relevant Wholesale Series, as the case may be and, if the Conditions relating
to that Wholesale Series explicitly sets out powers and duties of the
Supervisor, as the Supervisor may deem appropriate) have been delivered to
the Supervisor confirming that, following the substitution:
(i) the Transaction Documents and the Bonds will constitute legal, valid
and binding obligations of the Substituted Obligor, enforceable against
it in accordance with their terms, subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors’ rights generally and equitable principles of general
application;
(ii) the Substituted Obligor is validly incorporated in its jurisdiction of
incorporation;
(iii) all necessary authorisations are in full force and effect; and
(iv) the Substituted Obligor will not be required by law to withhold or
deduct an amount on account of Tax from any payment under the
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relevant Bond, other than an amount equal to the amount that would
have been withheld or deducted by the Issuer if the substitution had
not occurred, or such other withholding or deduction in respect of which
the Substituted Obligor has agreed to compensate the Holders of that
Series; and
(h) the Issuer (or such previous Substituted Obligor) and the Substituted Obligor
comply with such other reasonable requirements as the Supervisor may direct
in writing in the interests of the Holders of the relevant Bonds, which may
include a requirement that the members of the Guaranteeing Group or any of
them remain bound by all or certain of the provisions of this deed in respect
of the relevant Bonds (provided that, for the avoidance of doubt, such
direction shall not extend to the Issuer (or such previous Substituted Obligor)
remaining the issuer of the relevant Bonds).
21.2 Release of substituted issuer
Any Substitution Document will, if so expressed, release the Issuer from any or all of
its obligations under the relevant Transaction Documents and the Bonds for the
relevant Series. Notice of the substitution must be given to the Holders of the
Series within 14 days after the execution of the Substitution Document and
compliance with the other requirements of clause 21.1 (Substitution).
21.3 Completion of Substitution
After notice has been given in accordance with clause 21.1 (Substitution):
(a) the Substituted Obligor is taken to be the principal debtor and to have all the
rights, powers and obligations of the Issuer under the Transaction Documents
as if the Substituted Obligor were originally named in the Transaction
Documents in place of the Issuer in respect of the relevant Series; and
(b) this deed and the terms of the relevant Bonds are taken to be amended as
necessary to give effect to the substitution.
22 MEETINGS OF HOLDERS
22.1 Meetings
Meetings of Holders and any Class of Holders are to be convened and held in
accordance with the provisions of Schedule 1 (unless a meeting only relates to
Wholesale Holders, in which case the meeting is to be convened and held in
accordance with the provisions of Schedule 2).
22.2 Resolutions of Holders
Regulation 78 and Schedule 11 of the FMC Regulations (other than clauses 2 and 5
of Schedule 11) do not apply except to the extent incorporated into Schedule 1. For
the avoidance of doubt, in respect of any meeting involving Retail Holders to
approve an Extraordinary Resolution, to the extent of any inconsistency, clause 2
and 5 of Schedule 11 of the FMC Regulations shall prevail over any section in
Schedule 1 (except to the extent that clauses 2 and 5 of Schedule 11 of the FMC
Regulations are expressly subject to, or allow matters to be set out by, a trust
deed). None of the provisions of regulation 78 and Schedule 11 of the FMC
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Regulations will apply to a meeting convened and held in accordance with
Schedule 2. Any matter relating to this deed or the Bonds may be agreed or
approved by the relevant Class of Holders by signing (in any number of
counterparts) a memorandum in writing, recording the matter so agreed or
approved in accordance with regulation 16 of Schedule 1 or regulation 16 of
Schedule 2.
22.3 No voting by Issuer
Notwithstanding any other provision of this deed, where the Issuer or any Subsidiary
of the Issuer is a Holder, neither the Issuer nor any of its Subsidiaries may vote on
any matter relating to the Bonds held by the Issuer or any of its Subsidiaries.
23 NOTICES
23.1 Writing
Each notice or other communication to be given or made under this deed or a
Supplemental Deed to any person must:
(a) be given or made in writing by email, letter or by public notice (including, but
not limited to, a leading daily newspaper of general circulation in
New Zealand) and be signed by the sender or an authorised officer of the
sender;
(b) be given or made to the recipient at the address or email address (if not via
public notice), and marked for the attention of the person (if any), from time
to time designated by the recipient to the other for the purposes of this deed
or the Bonds;
(c) not be effective until received by the recipient, and any such notice or
communication shall be deemed to be received:
(i) (if given or made by letter) when left at the address of the recipient or
3 business days after being put in the post (by airmail if to another
country), postage prepaid, and addressed to the recipient at that
address;
(ii) (if given or made by email) when dispatched in tangible, readable form
by the sender to the email address advised by the recipient from time
to time; or
(iii) (if given or made by public notice) upon the release, circulation or
publishing of that notice,
provided that any notice or communication received or deemed received after
5.00pm on a business day in the place to which it is sent, or on a day which is
not a business day in that place, shall be deemed not to have been received
until the next business day in that place.
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23.2 Initial address and numbers
The initial address and person (if any) designated for the purposes of this deed are
set out below:
(a) The Issuer:
Summerset Group Holdings Limited
Level 27
100 Willis Street
Wellington
Telephone: +64 4 894 7320
Email: Leanne.Walker@summerset.co.nz
Attention: Leanne Walker
The Supervisor:
The New Zealand Guardian Trust Company Limited
Level 2
99-105 Customhouse Quay
Wellington
Telephone: +64 4 901 5406
Email: ct-wellington@nzgt.co.nz
Attention: Manager, Corporate Trusts
(b) The Holders: The address of each Holder last entered in the Register.
23.3 Joint Holders
In the case of joint holders of Bonds a notice given to the Holder whose name
stands first in the Register in respect of such holding shall be sufficient notice to all
the joint holders.
24 MISCELLANEOUS
24.1 Registration of deed
If the Issuer proposes to issue a Series, it shall promptly, at its own cost, register
this deed, the relevant Supplemental Deed in respect of that Series and any
amendment to this deed or such Supplemental Deed as required by the FMCA
and/or any applicable law and shall pay all costs and expenses incidental to doing
so.
24.2 Waivers and remedies
Time shall be of the essence of this deed and any relevant Supplemental Deed but
no delay in acting, or failure to act, by a Holder is a waiver of any of that Holder’s
rights, nor will any single or partial exercise of any right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power or
remedy. The rights provided in this deed and any relevant Supplemental Deed do
not exclude any rights provided by law.
24.3 Partial Invalidity
A provision of this deed or any Supplemental Deed has no effect to the extent that it
contravenes, or is inconsistent with, the FMCA, the FMC Regulations or any term
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implied into this deed by the FMCA or the FMC Regulations (other than where such
contravention, or inconsistency, is permitted by the FMCA or the FMC Regulations).
An invalid provision in this deed and any relevant Supplemental Deed shall not affect
the enforceability of the remaining provisions of this deed and any relevant
Supplemental Deed.
24.4 Further issues
Subject to the terms of this deed, the Issuer may from time to time, without the
consent of the Holders, issue Bonds or issue or guarantee other debt obligations on
such other terms and conditions as the Issuer may think fit.
24.5 Documents
The Issuer must:
(a) make copies of this deed, the relevant Supplemental Deed, the Offer
Documents relating to Bonds held by the relevant Holder and the Agency
Agreement in relation to the relevant Series and any other Transaction
Document in relation to the relevant Series available for inspection during
usual business hours by any Holder at the registered office of the Issuer (or
such other office as the Issuer may notify the Holders from time to time)
which, at the date of this deed, is as specified at clause 23.2 (Initial address
and numbers); and
(b) in relation to a Retail Series, retain, make available for inspection, provide
and deliver copies of any document or information as required by, and in
accordance with, the FMCA for such fee as permitted by the FMCA.
Each Holder will be deemed to have notice of the provisions of this deed and each
other Transaction Document in relation to the relevant Series.
24.6 Survival
Clause 7.5 (Unclaimed payments) of this deed and the indemnities given in this deed
and any relevant Supplemental Deed will survive the repayment of all the Bonds and
the termination of this deed and any relevant Supplemental Deed.
24.7 Remedies Cumulative
The rights, powers and remedies provided in this deed and any relevant
Supplemental Deed are cumulative and not exclusive of any rights powers or
remedies provided by law.
24.8 Counterparts
This deed may be executed in any number of counterparts, all of which together
constitute one and the same instrument. Any party may execute this deed by
executing any such counterpart.
25 RELEASE
Upon being indemnified to its reasonable satisfaction pursuant to clause 13.4
(Indemnity by Issuer) and upon proof being given to the reasonable satisfaction of
the Supervisor that all sums owing or outstanding in respect of the Bonds or
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otherwise under this deed and any relevant Supplemental Deed have been paid or
satisfied or that provision for such payment or satisfaction has been made and upon
payment or retention of all costs, charges and expenses incurred by, or payable to,
the Supervisor in relation to this deed and any relevant Supplemental Deed and the
remuneration of the Supervisor and all other money payable hereunder the
Supervisor shall, at the request and cost of the Issuer, execute a deed of release of
this deed and any relevant Supplemental Deed and shall thereupon retire as
Supervisor.
26 GOVERNING LAW AND JURISDICTION
26.1 Governing law
This deed shall be governed by and construed in accordance with New Zealand law.
26.2 Submission to jurisdiction
The Issuer and the Supervisor submit to the non-exclusive jurisdiction of the
New Zealand courts for the purpose of any legal proceedings arising out of this
deed.
27 DELIVERY
For the purposes of section 9 of the Property Law Act 2007, and without limiting any
other mode of delivery, this deed will be delivered by a party (the delivering party),
immediately on the earlier of:
(a) physical delivery of an original of this deed, executed by the delivering party,
into the custody of the other parties or the solicitors of the other parties; or
(b) transmission by the delivering party or its solicitors (or any other person
authorised in writing by the delivering party) of a facsimile, photocopied or
scanned copy of an original of this deed, executed by the delivering party, to
the other parties or the solicitors of the other parties.
28 CONTRACTS (PRIVITY) ACT 1982
Subject to clause 2.6(b), this deed is legally enforceable as between the Issuer, the
Supervisor and the Holders and shall take effect as a contract (as well as a deed) to
the extent provided in this deed and shall be enforceable for the benefit of every
Holder. The benefit so extended to Holders is intended to be limited by, and
enforceable subject to, the rights of parties to this deed to vary or discharge benefits
or obligations as provided in this deed without the consent of any Holder, other than
as so provided.
IN WITNESS WHEREOF this deed is executed and delivered by the parties as of the date
first written above.
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EXECUTED AND DELIVERED AS A DEED
The Issuer
SUMMERSET GROUP HOLDINGS
LIMITED by its attorneys:
___________________________
___________________________
in the presence of:
___________________________
Name:
Occupation:
Address:
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The Supervisor
Executed under the name of THE
NEW ZEALAND GUARDIAN TRUST
COMPANY LIMITED by:
_______________________________
Authorised Signatory
_______________________________
Authorised Signatory
in the presence of:
_______________________________
Signature
_______________________________
Name
_______________________________
Address
_______________________________
Occupation
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SCHEDULE 1: MEETINGS OF RETAIL HOLDERS OR ALL HOLDERS
1 DEFINITIONS
1.1 In these provisions:
Appointed Time means the day and time at which any meeting of Holders or the
taking of a poll of Holders (not at a meeting of Holders) is due to be held.
Authorised Person means the person authorised by the Supervisor to receive and
count votes at that meeting cast in accordance with regulation 11 or, if no such
person is authorised, the Supervisor.
Extraordinary Resolution means a resolution passed at a meeting of Holders,
properly convened and held in accordance with the provisions of this Schedule, by
Holders holding Bonds with a Principal Amount of no less than 75% of the aggregate
Principal Amount of the Bonds held by persons who are entitled to vote and do vote
on the resolution.
the Principal Amount of a Bond that is issued at a discount is to be taken as at any
time to equal the lesser of:
(a) its face value; and
(b) if specified in the Conditions in respect of that Bond, its Amortised Face
Amount at that time,
where the Amortised Face Amount means, in relation to a Bond, an amount equal to
the sum of:
(a) the Issue Price; and
(b) the amount resulting from the application of the amortisation yield specified in
the Conditions in respect of that Bond (compounded annually) to the Issue
Price from (and including) the Issue Date specified in the relevant Conditions
to (but excluding) the date fixed for redemption or (as the case may be) the
date the Bond becomes due and repayable.
If the calculation of the Amortised Face Amount is to be made for a period which is
not a whole number of years, the calculation in respect of the period of less than a
full year must be made on the basis of the actual number of days in the period
divided by 365, unless the relevant Conditions provide otherwise.
Proxy Closing Time means 48 hours before the Appointed Time of the relevant
meeting of Holders or taking of a poll of Holders or such other time approved by the
Supervisor.
regulation means a clause of this Schedule.
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Representative means:
(a) in the case of an individual Holder, a person appointed by an instrument of
proxy or by power of attorney or, in the event of the death of a Holder, the
personal representative of that Holder or, in the event of bankruptcy, the
assignee in bankruptcy of that Holder;
(b) in the case of a Holder which is a body corporate either:
(i) a person appointed by an instrument of proxy or by power of attorney;
or
(ii) a person authorised by the directors or governing body, or pursuant to
the constitution, of the body corporate.
working days has the meaning given to it in the Interpretation Act 1999.
1.2 Classes
In this Schedule, references to Bonds and Holders are references to the Bonds of the
relevant Class of Bonds only and the Holders of the relevant Class of Bonds only.
1.3 Meetings of Wholesale Holders Only
In relation to a meeting which relates only to Wholesale Holders, the meeting shall
be convened and held in accordance with the provisions of Schedule 2 and the
provisions of this Schedule, other than this regulation 1.3, shall be of no effect. For
the avoidance of doubt, if a meeting relates to both Wholesale Holders and Retail
Holders, the meeting shall be convened and held in accordance with the provisions
of this Schedule.
2 CONVENING
2.1 Meeting required by law
The Issuer shall, whenever required to do so pursuant to the Companies Act 1993,
the FMCA or any other applicable law, convene a meeting of the Holders.
2.2 By written request of Holders or the Supervisor
The Issuer shall, at the request in writing of:
(a) Holders holding not less than five per cent (5)% of the aggregate Principal
Amount of the Bonds then outstanding; or
(b) the Supervisor,
convene a meeting of the Holders. Any such request must state the nature of the
business proposed to be dealt with at the meeting concerned.
2.3 By Issuer
The Issuer may at any time of its own volition convene a meeting of the Holders and
shall, at the request in writing of a person authorised by the FMCA or the FMC
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Regulations to call a meeting of a Class of Retail Holders, convene a meeting of that
Class of Retail Holders.
2.4 By Supervisor
The Supervisor may at any time of its own volition (after such consultation with the
Issuer which is reasonable in the circumstances as to the nature of the business the
subject of the proposed meeting), or the Issuer shall, at the request in writing of the
Supervisor, convene a meeting of Retail Holders. The Supervisor shall not be
obliged to convene a meeting of Retail Holders pursuant to this regulation 2.4 (By
Supervisor) until it has been indemnified to its reasonable satisfaction, subject to
clause 17.1 (Supervisor not Indemnified), against all costs and expenses to be
incurred in relation that meeting.
2.5 Place and manner of meeting
Each meeting will be held in Wellington or at such other place designated by the
Issuer and a quorate meeting will comprise participation of the requisite number of
Holders or their Representatives either:
(a) by attendance in person; or
(b) by means of audio, or audio and video conferencing technology or electronic
communication; or
(c) by a combination of both of the methods of participation at paragraphs (a)
and (b) above.
2.6 Regulations
Meetings of Holders shall be convened and held in accordance with the provisions of
this Schedule or such supplemental rules or procedures for meetings, and/or
variations to the rules and procedures applying to such meeting set out in this
Schedule, as the Supervisor and the Issuer may agree from time to time.
3 NOTICE OF MEETINGS
3.1 Persons to be notified
Notice of every meeting shall be given in the manner provided in clause 23 (Notices)
of this deed to:
(a) every Holder entered in the Register as at the close of business five business
days prior to the date of despatch of the notice;
(b) each director of the Issuer;
(c) the auditor for the time being of the Issuer;
(d) the Issuer, if the meeting is convened by the Supervisor;
(e) the Supervisor, if the meeting is convened by the Issuer; and
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(f) if the relevant Bonds are listed, by the Issuer to any stock exchange on which
those Bonds are listed.
3.2 Time for notification
Subject to regulations 3.4 (Short or irregular notice) and 5.3 (Notice of adjourned
meeting), at least 15 working days’ notice of every meeting will be given. The notice
will be exclusive of the day on which it is served or deemed to be served and of the
day for which it is given.
3.3 Contents of notice
A notice of a meeting of Holders must specify the following:
(a) the place and Appointed Time of the meeting;
(b) the general nature of the business to be transacted at that meeting in
sufficient detail to enable a Holder to form a reasoned judgment in relation to
it;
(c) in the case of a resolution proposed to be passed as an Extraordinary
Resolution only, the text of such resolution;
(d) the right of each Holder to appoint a Representative; and
(e) the Authorised Person (if any) for the meeting.
In addition, if an Extraordinary Resolution is to be submitted to the meeting:
(f) a draft of the notice to be issued for that meeting shall be provided to the
Supervisor at least ten working days (or any lesser period as agreed with the
Supervisor) in advance of the notice period provided for under regulation 3.2
(Time for notification); and
(g) where the Supervisor has provided its comments on the text of the
Extraordinary Resolution at least five working days in advance of the notice
period provided for under regulation 3.2 (Time for notification), the notice
must include a copy of the Supervisor’s comments.
3.4 Short or irregular notice
Notwithstanding any other provision of this regulation 3, a meeting may be called by
shorter notice than that specified in regulation 3.2 (Time for notification), by notice
without compliance with regulation 3.3 (Contents of notice), or by notice with any
other irregularity or called without any formal notice, and any such meeting shall be
deemed to have been duly called and any such meeting shall be deemed to have
been duly called and any such irregularity or lack of formal notice shall be waived if:
(a) all Holders entitled to attend and vote at the meeting attend the meeting
without protest as to the irregularity or lack of formal notice or if all such
Holders agree to the waiver before, at or after that meeting; or
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(b) the Supervisor indicates at the meeting that it is satisfied that the irregularity
has not resulted, and is unlikely to result, in any material prejudice to the
Retail Holders.
3.5 Accidental omission
The accidental omission to give notice to, or the non-receipt of notice by, any Holder
entitled to receive such notice will not invalidate the proceedings at any meeting.
3.6 Notice of meetings to approve related party benefit
Clause 3 of Schedule 11 to the FMC Regulations does not apply.
4 QUORUM
4.1 Quorum required
No business will be transacted at any meeting unless the requisite quorum is
participating or present at the commencement of business. A Holder is present at a
meeting for the purposes of this Schedule and part of the quorum if that Holder is
present in person or by Representative or is participating in that meeting by means
of audio, audio and visual or electronic communication.
4.2 Quorum for Extraordinary Resolution
Subject to regulation 5.1 (Quorum not present), the quorum for a meeting at which
an Extraordinary Resolution is proposed to be submitted will be the Holders
(participating or present in person or by Representative) holding or representing (in
aggregate) no less than 25% of the Principal Amount of the Bonds held by persons
entitled to vote on the Extraordinary Resolution.
4.3 Quorum for other business
Subject to regulation 5.1 (Quorum not present), the quorum for the transaction of
any business other than the passing of an Extraordinary Resolution will be two or
more Holders participating or present in person or by Representative holding
together at least ten per cent (10%) in Principal Amount of the Bonds.
5 ADJOURNMENT
5.1 Quorum not present
If, within 30 minutes after the Appointed Time, a quorum is not present at the
meeting, if convened under regulations 2.2(a), the meeting will be dissolved. In any
other case, it will be adjourned to:
(a) a day that is 10 working days from the Appointed Time provided that the time
and place of the adjourned meeting remain the same; or
(b) such other time, date and place as the Supervisor may appoint,
and in any event, if a quorum is not present 30 minutes after the time appointed for
the adjourned meeting, all the Holders present in person or by Representative at the
adjourned meeting will comprise a quorum for the transaction of business including
the passing of Extraordinary Resolutions.
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5.2 Chairperson may adjourn
The chairperson of the meeting may, with the consent of the meeting at which a
quorum is present, and will, if so directed by the meeting, adjourn the meeting from
time to time and from place to place.
5.3 Notice of adjourned meeting
Notice of an adjourned meeting of Holders relating to an adjourned meeting at which
an Extraordinary Resolution is to be submitted, notwithstanding regulation 3.1
(Persons to be notified), shall be given in the same manner as for an original
meeting (except that only seven clear days' notice will be required) and such notice
will state that if a quorum is not present 30 minutes after the Appointed Time, the
Holders present in person or by Representative at the adjourned meeting will form a
quorum notwithstanding the Principal Amount of Bonds held by them provided that if
a meeting is adjourned for less than 30 days, it will not be required to give notice of
the time and place of the adjourned meeting other than by announcement at the
meeting originally adjourned.
5.4 Business at adjourned meeting
No business will be transacted at any adjourned meeting except business which
might have been lawfully transacted at the meeting from which the adjournment
took place.
6 CHAIRPERSON
A person nominated by the Supervisor shall preside as chairperson at every meeting
convened in accordance with this Schedule. If no such person is nominated or if at
any meeting the person nominated is not present within 15 minutes after the time
appointed for holding the meeting, the Holders present shall appoint a person to be
chairman.
7 RIGHT TO ATTEND AND SPEAK
Any director, officer or solicitor, auditor or accountant of the Issuer, or any person
appropriately authorised by the Issuer, and any director, officer or solicitor of the
Supervisor, or any person appropriately authorised by the Supervisor, may attend
any meeting and all such persons will have the right to speak at the meeting (in the
case of any director, officer or solicitor of the Supervisor, or any person
appropriately authorised by the Supervisor, only on any part of the business of the
meeting that concerns the Supervisor’s functions or the Holders).
8 ONLY PERSONS ON REGISTER RECOGNISED BY ISSUER
The persons named as Holders in the Register at Proxy Closing Time will be
recognised and treated as the legal owners of the Bonds whether those persons are
or are not in fact the beneficial owners of the Bonds.
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9 AUTHORITY TO VOTE
9.1 Entitlement
(a) The person named in the Register as Holder at the Proxy Closing Time, or the
Representative(s) of any such Holder will be exclusively entitled to vote in person or
by Representative in respect of the Bonds recorded as owned by them in the
Register (whether or not such person is in fact the beneficial owner of those Bonds).
(b) Subject to the Conditions of any Bond, where an amount is owed and remains
unpaid by a Holder to the Issuer in respect of Bonds owned by it, that Holder will be
deemed to have lost its entitlement to vote in respect of those Bonds.
9.2 Voting
An individual Holder may vote personally or by his Representative and a Holder
which is a body corporate may vote by its Representative. A Holder may appoint
more than one Representative, each such Representative being authorised to act on
behalf of the Holder in respect of a specified Principal Amount of Bonds, provided
that only one proxy is appointed to exercise the rights relating to a particular Bond
held by that Holder.
10 VOTING PROCEDURE AND POLLS
10.1 Show of hands
The manner of voting on an Extraordinary Resolution by the Holders must be by
poll. The manner of voting on any business at a meeting of Holders other than the
passing of an Extraordinary Resolution will be determined by the Chairman or, in the
case of a meeting of Holders held where:
(a) the Holders or their Representatives are in attendance in person the manner
of voting must be by one of two methods as determined by the chairperson,
being:
(i) voting by voice; or
(ii) voting by show of hands; and
(b) the Holders or their Representatives are in attendance in person or by way of
use of audio, or audio and video conferencing technology or electronic
communication the manner of voting may be by any method permitted by the
chairperson,
unless in either case, a poll is demanded (before or after the vote is taken on a
resolution) by:
(c) the chairperson of the meeting;
(d) the Supervisor;
(e) the Issuer or any representative of the Issuer; or
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(f) one or more Holders entitled to request a meeting under regulation 2.2 (By
written request of Holders or the Supervisor).
10.2 Chairperson’s declaration
A declaration by the chairperson of the meeting that a resolution has been carried
by the requisite majority or lost will be conclusive evidence of that fact unless a poll
is demanded in accordance with regulation 9.3 (Manner of Voting)
10.3 Number of votes
(a) On a show of hands each person present at the meeting and entitled to vote
(whether personally or as a representative) will have one vote only. On a poll every
Holder who is entitled to vote and is present in person or by a Representative at the
meeting will have one vote for every NZ$1 of Principal Amount of the Bonds of which
that person is the Holder at the date of the meeting.
(b) On a poll votes may be given either personally or by Representative and a person
entitled to more than one vote need not use all their votes or cast all the votes they
use in the same way.
10.4 Poll
If a poll is demanded it will be taken in the manner directed by the chairperson of
the meeting and the result of the poll will be deemed to be the resolution of the
meeting at which the poll was demanded.
10.5 Chairperson has no casting vote
The chairperson of any meeting will not have a casting vote in addition to the votes
(if any) to which the chairperson may be entitled as a Holder or on behalf of any
Holder.
10.6 Time of poll
A poll demanded on the election of a chairperson of the meeting or on a question of
adjournment will be taken immediately. A poll demanded on any other question will
be taken either immediately or at a time within 30 days from the date of the
meeting and in a place appointed by the chairperson. The result of the poll will be
deemed to be the resolution of the meeting at which the poll was demanded. No
notice need be given of a poll not taken immediately.
10.7 No disturbance
The demand for a poll will not prevent the continuance of a meeting for the
transaction of business other than the question in relation to which the poll has been
demanded.
10.8 Joint Holders
In the case of joint Holders, the vote of the person named first in the Register who
tenders a vote whether in person or by Representative will be accepted to the
exclusion of the vote of the other joint Holders.
10.9 Disqualification
A vote given in accordance with the terms of an instrument of proxy or power of
attorney or other authority will be valid notwithstanding the previous death, insanity
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or (in the case of a body corporate) liquidation of the principal or revocation of the
proxy or power of attorney or authority or the transfer of the Bonds in respect of
which the vote is given, provided that no written notice of such death, insanity,
liquidation, revocation or transfer is received by the Issuer at its registered office
before the commencement of the meeting or adjourned meeting at which the proxy,
attorney or authority is used.
11 VOTING BY POST, EMAIL OR OTHER ELECTRONIC MEANS
11.1 General
Any Holder may exercise the right to vote on each resolution the subject of that
meeting by delivering a postal vote, a vote by email correspondence or by using any
other electronic means expressly authorised by the Issuer or the Supervisor.
11.2 Delivery of votes
A Holder may deliver its vote(s) on all or any of the matters to be voted on at a
meeting by sending a notice of the manner in which that Holder’s Bonds are to be
voted on to the Issuer or the Authorised Person for that meeting. This notice must
be received by that person no later than the Proxy Closing Time, unless the Issuer
or the Authorised Person (as the case may be), in its absolute discretion, elects to
accept any notice notwithstanding that that notice is received or produced at a place
other than that specified above or out of time.
11.3 Issuer and Authorised Persons duties
The duties of the Issuer or the Authorised Person for that meeting (as applicable)
are as follows:
(a) to collect all votes received by it or the Issuer and to reconcile the Holder
casting the vote against the Holder recorded in the Register;
(b) with respect to each resolution to be voted on at the meeting, to count:
(i) the number of Holders voting in favour of that resolution and the
number of votes cast by, or on behalf of, each such Holder in
favour of the resolution; and
(ii) the number of Holders voting against that resolution and the
number of votes cast by, or on behalf of, each such Holder
against the resolution; and
(c) to sign a certificate that each of the duties contained in paragraphs (a) and
(b) above have been fulfilled and the result of the vote; and
(d) to present, or ensure that the certificate referred to under paragraph (c)
above is presented, to the chairperson of the meeting.
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11.4 Chairperson’s duties
Where votes have been cast under this regulation 11, the duties of the chairperson
for that meeting are as follows:
(a) irrespective of whether votes are cast by a show of hands or by poll, include
those votes in the overall result; and
(b) call for a vote by poll on a resolution, where the chairperson is of the view
that the result of a vote taken by way of poll may differ from that taken by
show of hands.
12 PROXIES
12.1 In writing
The instrument appointing a proxy must be in writing signed by, or in the case of an
electronic communication, delivered by the appointer or his attorney or, if the
appointer is a body corporate, either by an authorised officer or attorney or by any
director, general manager, investment manager or other person who appears to
have authority to appoint a proxy on behalf of the body corporate. The instrument
must clearly state the duration of such appointment, where applicable, or identify
the particular meeting to which it relates.
12.2 Proxy need not be Holder
A person appointed to act as a proxy need not be a Holder. A Holder of a proxy will
have the right to speak at the meeting.
13 HOLDER MAY APPOINT ATTORNEY
Any Holder entitled to vote may by power of attorney appoint an attorney (who need
not be a Holder) to vote and act on his behalf at any meeting. An attorney will be
entitled to produce evidence of his appointment at any time before the Appointed
Time. An attorney who is so empowered may exercise the Holder's right to appoint a
proxy.
14 CORPORATE REPRESENTATIVES
14.1 Authority
A Representative of a Holder which is a body corporate will, until his authority is
revoked, be entitled to exercise the same powers on behalf of the body corporate as
that body corporate could exercise if it were an individual Holder and will be entitled
to produce evidence of his authority to act at any time before the Appointed Time of,
or at, the meeting or adjourned meeting or for the taking of a poll at which the
Representative proposes to vote.
14.2 Right to act
A Representative will have the right to demand or join in demanding a poll and will
(except and to the extent to which the Representative is specially directed to vote
for or against any proposal) have power generally to act at the meeting for the
Holder concerned.
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15 MINUTES TO BE KEPT
Minutes of all resolutions and proceedings at every meeting will be made by the
Issuer or, if the Issuer is not present at the meeting, by a person appointed by the
chairperson of the meeting. Minutes must be entered in books from time to time
provided for that purpose by the Issuer. Any such minutes, if signed or apparently
signed by the chairperson of the meeting at which a resolution was passed or
proceedings had or by the chairperson of the next meeting of Holders, will be prima
facie evidence of the matters recorded in those minutes. Until the contrary is proved
every meeting in respect of which minutes have been made will be deemed to have
been properly held and convened and all resolutions passed or proceedings had at
that meeting to have been properly passed and had.
16 EXTRAORDINARY RESOLUTIONS
16.1 Powers
Without limiting the rights, powers and discretions conferred on the Supervisor by
this deed, a meeting of Holders will, in addition to all other powers which by this
deed are specified as exercisable by Extraordinary Resolution, have the following
powers exercisable by Extraordinary Resolution namely power to:
(a) sanction either unconditionally or upon any conditions the release of the
Issuer from the payment of all or any part of the moneys payable pursuant to
this deed or the Bonds;
(b) sanction any request from the Issuer for the exchange of the Bonds for, or the
conversion of the Bonds into, shares, stock, debentures, debenture stock or
other obligations or securities of the Issuer or any other company formed or
to be formed;
(c) postpone or, with the concurrence of the Issuer, to accelerate the day when
the Principal Amount of any Bonds becomes payable and to suspend or
postpone for a time the payment of interest on any Bonds;
(d) sanction any alteration, release, modification, waiver, variation, or
compromise or any arrangement relating to the rights of the Holders against
the Issuer or its assets however those rights arise;
(e) assent to any amendment to the terms of this deed or the relevant
Supplemental Deed proposed or agreed to by the Issuer (and, where
required, the Supervisor) and to authorise the Issuer and the Supervisor to
execute any Supplemental Deed embodying any such amendment;
(f) give any sanction, assent, release or waiver of any breach or default by the
Issuer or the Supervisor under any of the provisions of this deed or the
relevant Supplemental Deed;
(g) sanction any scheme for the reconstruction of the Issuer or for the
amalgamation of the Issuer with any other body corporate where such
sanction is necessary;
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(h) discharge, release or exonerate the Supervisor from all liability in respect of
any act of commission or omission for which the Supervisor has or may
become responsible under this deed or any Supplemental Deed;
(i) subject to the provisions of this deed, remove any Supervisor and to approve
the appointment of or appoint a new Supervisor;
(j) consent to, approve, authorise and direct the Supervisor in respect of any of
the matters referred to in any of the foregoing paragraphs of this
regulation 16.1 (Powers), or as to any other matter which may be necessary
to carry out and give effect to any Extraordinary Resolution; and
(k) authorise or direct the Supervisor and the Issuer to execute any supplemental
deed or other document embodying such sanction, authority or approval,
assent, release, waiver, direction or request.
16.2 Binding on Holders
An Extraordinary Resolution passed by Holders in accordance with this Schedule will
be binding upon all the Holders whether or not they were present or entitled to be
present at the relevant meeting, or signed the relevant resolution pursuant to
regulation 17 (Resolutions in writing), as the case may be, and all Holders will be
bound to give effect to that resolution. The passing of any such resolution will, as
between the Issuer and the Holders, be conclusive evidence that the circumstances
justify the passing thereof. Notwithstanding the foregoing:
(a) any meeting of both Wholesale Holders and Retail Holders being held in
accordance with this Schedule 1 (Meetings of Retail Holders or all Holders)
whereby any resolution to that is required to be done by way of special
resolution (as defined in the FMC Regulations) (including any amendment of
this deed in accordance with clause 19 (Amendments)), must be voted on by
the Retail Holders and the Wholesale Holders separately;
(b) a resolution which affects a particular Holder only, rather than the rights of all
Holders generally, or of a particular Class of Holders generally, will not be
binding on such Holder unless such Holder agrees to be bound by the terms of
such resolution;
(c) a resolution which affects one Class only of Bonds is deemed to have been
duly passed if passed at a properly convened and held meeting of the Holders
of that Class or pursuant to regulation 17 (Resolutions in Writing);
(d) a resolution which affects more than one Class of Bonds, but does not give
rise to a conflict of interest between the Holders of any of the Classes so
affected, is deemed to have been duly passed if passed at a single properly
convened and held meeting of the Holders of all Classes so affected or
pursuant to regulation 17 (Resolutions in Writing); and
(e) a resolution which affects more than one Class of Bonds and gives or may
give rise to a conflict of interest between the Holders of any of the Classes so
affected is deemed to have been duly passed if passed at separate properly
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convened and held meetings of the Holders of each Class so affected or
pursuant to regulation 17 (Resolutions in Writing).
16.3 Reliance on advice
The Issuer and the Supervisor may rely on, and the Holders and the Registrar for
the relevant Class shall be bound by, a legal opinion from a law firm in New Zealand
to the effect that a resolution affects one Class only or, if it affects more than one
Class of Bonds, does not give rise to a conflict of interest, for the purposes of
determining the meeting or meetings which need to be held for the purposes of
regulation 16.2 (Binding on Holders).
17 RESOLUTIONS IN WRITING
17.1 Extraordinary Resolution
Anything that may be done by Holders by a resolution or Extraordinary Resolution
passed at a meeting of Holders may be done by a resolution in writing signed by not
less than 75% of the Holders entitled to vote on that resolution, holding in
aggregate Bonds conferring the right to cast not less than 75% of the votes which
could be cast on that resolution.
17.2 Counterparts
Any such resolution may consist of several documents in similar form (including
letters, electronic mail or other similar means of communication), each signed by
one or more Holders.
17.3 Execution
Any such resolution may be signed by a Holder, or an agent or attorney of the
Holder duly authorised in writing, or if the Holder is a company, by a director, or by
an attorney so authorised by the company.
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SCHEDULE 2: MEETINGS OF WHOLESALE HOLDERS ONLY
1 DEFINITIONS
1.1 In these provisions:
Appointed Time means the day and time at which any meeting of Holders or the
taking of a poll of Holders (not at a meeting of Holders) is due to be held.
Extraordinary Resolution means a resolution passed at a meeting of Holders,
properly convened and held in accordance with the provisions of this Schedule, by
Holders holding Bonds with a Principal Amount of no less than 66% of the aggregate
Principal Amount of the Bonds held by persons who are entitled to vote and do vote
on the resolution.
the Principal Amount of a Bond that is issued at a discount is to be taken as at any
time to equal the lesser of:
(a) its face value; and
(b) if specified in the Conditions in respect of that Bond, its Amortised Face
Amount at that time,
where the Amortised Face Amount means, in relation to a Bond, an amount equal to
the sum of:
(a) the Issue Price; and
(b) the amount resulting from the application of the amortisation yield specified in
the Conditions in respect of that Bond (compounded annually) to the Issue
Price from (and including) the Issue Date specified in the relevant Conditions
to (but excluding) the date fixed for redemption or (as the case may be) the
date the Bond becomes due and repayable.
If the calculation of the Amortised Face Amount is to be made for a period which is
not a whole number of years, the calculation in respect of the period of less than a
full year must be made on the basis of the actual number of days in the period
divided by 365, unless the relevant Conditions provide otherwise.
Proxy Closing Time means 48 hours before the Appointed Time of the relevant
meeting of Holders or taking of a poll of Holders.
regulation means a clause of this Schedule.
Representative means:
(a) in the case of an individual Holder, a person appointed by an instrument of
proxy or by power of attorney or, in the event of the death of a Holder, the
personal representative of that Holder or, in the event of bankruptcy, the
assignee in bankruptcy of that Holder;
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(b) in the case of a Holder which is a body corporate or corporation sole either:
(i) a person appointed by an instrument of proxy or by power of attorney;
or
(ii) a person authorised by the directors or governing body, or pursuant to
the constitution, of the body corporate.
1.2 Classes
In this Schedule, references to Bonds and Holders are references to:
(a) the Bonds of the relevant Class of Bonds only and the Holders of the relevant
Class of Bonds only; and
(b) Wholesale Bonds only and Wholesale Holders only.
2 CONVENING
2.1 Meeting required by law
The Issuer shall, whenever required to do so pursuant to the Companies Act 1993,
the FMCA or any other applicable law, convene a meeting of the Holders.
2.2 By written request of Holders
The Issuer shall, at the request in writing of Holders holding not less than ten per
cent (10%) of the aggregate Principal Amount of the Bonds then outstanding,
convene a meeting of the Holders. Any such request must state the nature of the
business proposed to be dealt with at the meeting concerned.
2.3 By Issuer
The Issuer may at any time of its own volition convene a meeting of the Holders.
2.4 Place and manner of meeting
Each meeting will be held in Wellington or at such other place designated by the
Issuer and a quorate meeting will comprise participation of the requisite number of
Holders or their Representatives either:
(a) by attendance in person; or
(b) by means of audio, or audio and video conferencing technology or electronic
communication; or
(c) by a combination of both of the methods of participation at paragraphs (a) and
(b) above.
2.5 Regulations
Meetings of Holders shall be convened and held in accordance with the provisions of
this Schedule or such supplemental rules or procedures for meetings, and/or
variations to the rules and procedures applying to such meeting set out in this
Schedule as agreed between the Issuer and Holders pursuant to an Extraordinary
Resolution of Holders.
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3 NOTICE OF MEETINGS
3.1 Persons to be notified
Notice of every meeting shall be given in the manner provided in clause 23 (Notices)
of this deed to:
(a) every Holder entered in the Register as at the close of business five business
days prior to the date of despatch of the notice;
(b) the Supervisor, if the meeting is convened by the Issuer; and
(c) if the relevant Bonds are listed, by the Issuer to any stock exchange on which
those Bonds are listed.
3.2 Time for notification
Subject to regulations 3.4 (Short or irregular notice) and 5.3 (Notice of adjourned
meeting), at least 10 business days’ notice of every meeting will be given. The
notice will be exclusive of the day on which it is served or deemed to be served and
of the day for which it is given.
3.3 Contents of notice
A notice must specify the following:
(a) the place and Appointed Time of the meeting; and
(b) in the case of a resolution proposed to be passed as an Extraordinary
Resolution only, the text of such resolution.
3.4 Short or irregular notice
Notwithstanding any other provision of this regulation 3, a meeting may be called by
shorter notice than that specified in regulation 3.2 (Time for notification), without
any formal notice and without compliance with regulation 3.3 (Contents of notice),
and shall be deemed to have been duly called if it is so agreed by all Holders before,
at or after that meeting.
3.5 Accidental omission
The accidental omission to give notice to, or the non-receipt of notice by, any Holder
entitled to receive such notice will not invalidate the proceedings at any meeting.
3.6 Notice of meetings to approve related party benefit
Clause 3 of Schedule 11 to the FMC Regulations does not apply.
4 QUORUM
4.1 Quorum required
No business will be transacted at any meeting unless the requisite quorum is
participating or present at the commencement of business.
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4.2 Quorum for Extraordinary Resolution
Subject to regulation 5.1 (Quorum not present), the quorum for a meeting at which
an Extraordinary Resolution is proposed to be submitted will be the Holders
(participating or present in person or by Representative) holding or representing (in
aggregate) no less than 25% of the Principal Amount of the Bonds.
4.3 Quorum for other business
Subject to regulation 5.1 (Quorum not present), the quorum for the transaction of
any business other than the passing of an Extraordinary Resolution will be two or
more Holders participating or present in person or by Representative holding
together at least ten per cent (10%) in Principal Amount of the Bonds.
5 ADJOURNMENT
5.1 Quorum not present
(a) If, within 15 minutes (or any longer time not exceeding 45 minutes as the chairman
of the meeting may decide) after the Appointed Time, a quorum is not present at
the meeting, if convened at the request of the Holders, the meeting will be
dissolved. In any other case, it will be adjourned to a day and time (not being less
than 5 business days later) and to a place as may be appointed by the chairman.
(b) At such adjourned meeting all the Holders present in person or by Representative at
the adjourned meeting will comprise a quorum for the transaction of business
including the passing of Extraordinary Resolutions.
5.2 Chairperson may adjourn
The chairperson of the meeting may, with the consent of the meeting at which a
quorum is present, and will, if so directed by the meeting, adjourn the meeting from
time to time and from place to place.
5.3 Notice of adjourned meeting
Notice of an adjourned meeting of Holders relating to an adjourned meeting at which
an Extraordinary Resolution is to be submitted, notwithstanding regulation 3.1
(Persons to be notified), shall be given to the same persons as those who were
given notice of the original meeting, Holders recorded in the Register as at the day
before the notice of adjourned meeting is given and otherwise will be given in the
same manner as for an original meeting (except that only 7 clear days' notice will be
required) and such notice will state that if a quorum is not present 30 minutes after
the Appointed Time the Holders present in person or by Representative at the
adjourned meeting will form a quorum notwithstanding the Principal Amount of
Bonds held by them, provided that, if a meeting is adjourned for less than 30 days,
it will not be necessary to give notice of the time and place of the adjourned meeting
other than by announcement at the meeting originally adjourned.
5.4 Business at adjourned meeting
No business will be transacted at any adjourned meeting except business which
might have been lawfully transacted at the meeting from which the adjournment
took place.
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6 CHAIRPERSON
A person nominated by the Issuer shall preside as chairperson at every meeting
convened in accordance with this Schedule. If no such person is nominated or it at
any meeting the person nominated is not present within 15 minutes after the
appointed time for holding the meeting, the Holders present shall appoint a person
to be chairman.
7 RIGHT TO ATTEND AND SPEAK
The following may attend any meeting and will have the right to speak at the
meeting:
(a) any director, officer or solicitor, auditor or accountant of the Issuer;
(b) any person appropriately authorised by the Issuer;
(c) any director, officer or solicitor of the Supervisor; and
(d) any person appropriately authorised by the Supervisor.
8 ONLY PERSONS ON REGISTER RECOGNISED BY ISSUER
The persons named as Holders in the Register at Proxy Closing Time will be
recognised and treated as the legal owners of the Bonds whether those persons are
or are not in fact the beneficial owners of the Bonds.
9 AUTHORITY TO VOTE
9.1 Entitlement
(a) The person named in the Register as Holder at the Proxy Closing Time, or the
Representative(s) of any such Holder will be exclusively entitled to vote in person or
by Representative in respect of the Bonds recorded as owned by them in the
Register (whether or not such person is in fact the beneficial owner of those Bonds).
(b) Subject to the Conditions of any Bond, where an amount is owed and remains
unpaid by a Holder to the Issuer in respect of Bonds owned by it, that Holder will be
deemed to have lost its entitlement to vote in respect of those Bonds.
9.2 Voting
An individual Holder may vote personally or by his Representative and a Holder
which is a body corporate may vote by its Representative. A Holder may appoint
more than one Representative, each such Representative being authorised to act on
behalf of the Holder in respect of a specified Principal Amount of Bonds.
10 VOTING PROCEDURE AND POLLS
10.1 Show of hands
The manner of voting on an Extraordinary Resolution by the Holders must be by
poll. The manner of voting on any business at a meeting of Holders other than the
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passing of an Extraordinary Resolution will be determined by the Chairman or, in the
case of a meeting of Holders held where:
(a) the Holders or their Representatives are in attendance in person the manner
of voting must be by one of two methods as determined by the chairperson,
being:
(i) voting by voice; or
(ii) voting by show of hands; and
(b) the Holders or their Representatives are in attendance in person or by way of
use of audio, or audio and video conferencing technology or electronic
communication the manner of voting may be by any method permitted by the
chairperson,
unless in either case, a poll is demanded (before or after the vote is taken on a
resolution) by:
(c) the chairperson of the meeting;
(d) the Supervisor;
(e) the Issuer or any representative of the Issuer; or
(f) one or more Holders entitled to request a meeting under regulation 2.2 (By
written request of Holders).
10.2 Chairperson’s declaration
A declaration by the chairperson of the meeting that a resolution has been carried
by the requisite majority or lost will be conclusive evidence of that fact unless a poll
is demanded, in accordance with regulation 9.3 (Manner of Voting).
10.3 Number of votes
(a) On a show of hands each person present at the meeting and entitled to vote
(whether personally or as a representative) will have one vote only. On a poll every
Holder who is present in person or by a Representative will have one vote for every
NZ$1 of Principal Amount of the Bonds of which that person is the Holder at the date
of the meeting.
(b) On a poll votes may be given either personally or by Representative and a person
entitled to more than one vote need not use all their votes or cast all the votes they
use in the same way.
10.4 Poll
If a poll is demanded it will be taken in the manner directed by the chairperson of
the meeting and the result of the poll will be deemed to be the resolution of the
meeting at which the poll was demanded.
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10.5 Chairperson has no casting vote
The chairperson of any meeting will not have a casting vote in addition to the votes
(if any) to which the chairperson may be entitled as a Holder or on behalf of any
Holder.
10.6 Election of chairperson
A poll demanded on the election of a chairperson of the meeting or on a question of
adjournment will be taken immediately. A poll demanded on any other question will
be taken either immediately or at a time within 30 days from the date of the
meeting and in a place appointed by the chairperson. The result of the poll will be
deemed to be the resolution of the meeting at which the poll was demanded. No
notice need be given of a poll not taken immediately.
10.7 No disturbance
The demand for a poll will not prevent the continuance of a meeting for the
transaction of business other than the question in relation to which the poll has been
demanded.
10.8 Joint Holders
In the case of joint Holders, the vote of the person named first in the Register who
tenders a vote whether in person or by Representative will be accepted to the
exclusion of the vote of the other joint Holders.
10.9 Disqualification
A vote given in accordance with the terms of an instrument of proxy or power of
attorney or other authority will be valid notwithstanding the previous death, insanity
or (in the case of a body corporate) liquidation of the principal or revocation of the
proxy or power of attorney or authority or the transfer of the Bonds in respect of
which the vote is given, provided that no written notice of such death, insanity,
liquidation, revocation or transfer is received by the Issuer at its registered office
before the commencement of the meeting or adjourned meeting at which the proxy,
attorney or authority is used.
11 VOTING BY POST, EMAIL OR OTHER ELECTRONIC MEANS
11.1 General
Any Holder may exercise the right to vote on each resolution the subject of that
meeting by delivering a postal vote, a vote by email correspondence or by using any
other electronic means expressly authorised by the Issuer.
11.2 Delivery of votes
A Holder may deliver its vote(s) by sending a notice to the Issuer indicating the
manner in which that Holder’s Bonds are to be voted on to the Issuer, vote(s) in a
manner authorised under this regulation 11. This notice must be received by the
Issuer no later than the Proxy Closing Time, unless the Issuer, in its absolute
discretion, elects to accept any notice notwithstanding that that notice is received or
produced at a place other than that specified above.
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12 PROXIES
12.1 In writing
The instrument appointing a proxy must be in writing signed by, or in the case of an
electronic communication, delivered by the appointer or his attorney or, if the
appointer is a body corporate, either by an authorised officer or attorney or by any
director, general manager, investment manager or other person who appears to
have authority to appoint a proxy on behalf of the body corporate.
12.2 Proxy need not be Holder
A person appointed to act as a proxy need not be a Holder. A holder of a proxy will
have the right to speak at a meeting.
13 HOLDER MAY APPOINT ATTORNEY
Any Holder entitled to vote may by power of attorney appoint an attorney (who need
not be a Holder) to vote and act on his behalf at any meeting. An attorney will be
entitled to produce evidence of his appointment at any time before the Appointed
Time. An attorney who is so empowered may exercise the Holder's right to appoint
a proxy.
14 CORPORATE REPRESENTATIVES
14.1 Authority
A Representative of a Holder which is a body corporate will, until his authority is
revoked, be entitled to exercise the same powers on behalf of the body corporate as
that body corporate could exercise if it were an individual Holder and will be entitled
to produce evidence of his authority to act at any time before the Appointed Time of,
or at, the meeting or adjourned meeting or for the taking of a poll at which the
Representative proposes to vote.
14.2 Right to act
A Representative will have the right to demand or join in demanding a poll and will
(except and to the extent to which the Representative is specially directed to vote
for or against any proposal) have power generally to act at the meeting for the
Holder concerned.
15 MINUTES TO BE KEPT
Minutes of all resolutions and proceedings at every meeting will be made by the
Issuer or, if the Issuer is not present at the meeting, by a person appointed by the
chairperson of the meeting. Minutes must be entered in books from time to time
provided for that purpose by the Issuer. Any such minutes, if signed or apparently
signed by the chairperson of the meeting at which a resolution was passed or
proceedings had or by the chairperson of the next meeting of Holders, will be prima
facie evidence of the matters recorded in those minutes. Until the contrary is
proved every meeting in respect of which minutes have been made will be deemed
to have been properly held and convened and all resolutions passed or proceedings
had at that meeting to have been properly passed and had.
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16 EXTRAORDINARY RESOLUTIONS
16.1 Powers
A meeting of Holders will, in addition to all other powers which by this deed are
specified as exercisable by Extraordinary Resolution, have the following powers
exercisable by Extraordinary Resolution namely power to:
(a) sanction either unconditionally or upon any conditions the release of the
Issuer from the payment of all or any part of the moneys payable pursuant to
this deed or the Bonds;
(b) sanction any request from the Issuer for the exchange of the Bonds for, or the
conversion of the Bonds into, shares, stock, debentures, debenture stock or
other obligations or securities of the Issuer or any other company formed or
to be formed;
(c) postpone or, with the concurrence of the Issuer, to accelerate the day when
the Principal Amount of any Bonds becomes payable and to suspend or
postpone for a time the payment of interest on any Bonds;
(d) sanction any alteration, release, modification, waiver, variation, or
compromise or any arrangement relating to the rights of the Holders against
the Issuer or its assets however those rights arise;
(e) assent to any amendment to the terms of this deed or the relevant
Supplemental Deed proposed or agreed to by the Issuer (and, where
required, the Supervisor) and to authorise the Issuer and the Supervisor to
execute any Supplemental Deed embodying any such amendment;
(f) give any sanction, assent, release or waiver of any breach or default by the
Issuer or the Supervisor under any of the provisions of this deed or the
relevant Supplemental Deed;
(g) sanction any scheme for the reconstruction of the Issuer or for the
amalgamation of the Issuer with any other body corporate where such
sanction is necessary;
(h) discharge, release or exonerate the Supervisor from all liability in respect of
any act of commission or omission for which the Supervisor has or may
become responsible under this deed or any Supplemental Deed;
(i) subject to the provisions of this deed, remove any Supervisor and to approve
the appointment of or appoint a new Supervisor;
(j) consent to, approve, authorise and direct the Supervisor in respect of any of
the matters referred to in any of the foregoing paragraphs of this
regulation 16.1 (Powers), or as to any other matter which may be necessary
to carry out and give effect to any Extraordinary Resolution; and
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(k) authorise or direct the Issuer to execute any supplemental deed or other
document embodying such sanction, authority or approval, assent, release,
waiver, direction or request.
16.2 Binding on Holders
An Extraordinary Resolution passed by Holders in accordance with this Schedule will
be binding upon all the Holders whether or not they were present or entitled to be
present at the relevant meeting, or signed the relevant resolution pursuant to
regulation 17 (Resolutions in writing), as the case may be, and all Holders will be
bound to give effect to that resolution. The passing of any such resolution will, as
between the Issuer and the Holders, be conclusive evidence that the circumstances
justify the passing thereof. Notwithstanding the foregoing:
(a) a resolution which affects a particular Holder only, rather than the rights of all
Holders generally, or of a particular Class of Holders generally, will not be
binding on such Holder unless such Holder agrees to be bound by the terms of
such resolution;
(b) a resolution which affects one Class only of Bonds is deemed to have been
duly passed if passed at a properly convened and held meeting of the Holders
of that Class or pursuant to regulation 17 (Resolutions in Writing);
(c) a resolution which affects more than one Class of Bonds, but does not give
rise to a conflict of interest between the Holders of any of the Classes so
affected, is deemed to have been duly passed if passed at a single properly
convened and held meeting of the Holders of all Classes so affected or
pursuant to regulation 17 (Resolutions in Writing); and
(d) a resolution which affects more than one Class of Bonds and gives or may
give rise to a conflict of interest between the Holders of any of the Classes so
affected is deemed to have been duly passed if passed at separate properly
convened and held meetings of the Holders of each Class so affected or
pursuant to regulation 17 (Resolutions in Writing).
16.3 Reliance on advice
The Issuer and the Supervisor may rely on, and the Holders and the Registrar for
the relevant Class shall be bound by, a legal opinion from a law firm in New Zealand
to the effect that a resolution affects one Class only or, if it affects more than one
Class of Bonds, does not give rise to a conflict of interest, for the purposes of
determining the meeting or meetings which need to be held for the purposes of
regulation 16.2 (Binding on Holders).
17 RESOLUTIONS IN WRITING
17.1 Extraordinary Resolution
Anything that may be done by Holders by a resolution or Extraordinary Resolution
passed at a meeting of Holders may be done by a resolution in writing signed by not
less than 66% of the Holders having the right to vote on that resolution, holding in
aggregate Bonds conferring the right to cast not less than 66% of the votes which
could be cast on that resolution.
MASTER TRUST DEED (SCHEDULE 2: MEETINGS OF WHOLESALE HOLDERS ONLY)
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17.2 Counterparts
Any such resolution may consist of several documents in similar form, each signed
by one or more Holders.
17.3 Execution
Any such resolution may be signed by a Holder, or an agent or attorney of the
Holder duly authorised in writing, or if the Holder is a company, by a director, or by
an attorney so authorised by the company.
MASTER TRUST DEED (SCHEDULE 3: FORM OF DIRECTORS’ REPORT)
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SCHEDULE 3: FORM OF DIRECTORS’ REPORT
1 This report is given by the undersigned Directors of Summerset Group Holdings
Limited (the Issuer) pursuant to clause 10.4(c) of the Master Trust Deed dated
[ ] (the Trust Deed) between the Issuer and [] as Supervisor in connection with
[specify relevant Series].
2 Unless the context otherwise requires, terms defined in the Trust Deed have the
same meaning herein.
3 We, the undersigned, hereby state that as at the last day of the financial [year/half
year] ending on [ ] (Reporting Date), to the best of our knowledge and belief
having made all due inquiries, and, during the immediately preceding financial
[year/half year]:
3.1 [Here, state any matter, or state if there is no matter, which has
arisen relating to the Issuer which would materially and adversely
affect the ability of the Issuer to perform its obligations under the
Master Trust Deed and any relevant Supplemental Trust Deed in
respect of the Retail Notes or which adversely affects the Retail
Holders];
3.2 the Issuer has observed and complied with its issuer obligations (as defined in
the Financial Markets Conduct Act 2013) and all material provisions expressed
to be binding upon it under the Trust Deed and the relevant Supplemental
Deed in respect of Bonds including the payment of all interest on, and the
Principal Amount (if any) in respect of, the Bonds;
[If the Issuer has not so complied and observed the provisions of the Trust
Deed or any Supplemental Deed set out the particulars of the contravention
and proposal to remedy the same]
3.3 no Event of Default or Event of Review has occurred;
[If any Event of Default or Event of Review has occurred, set out the
particulars of the Event of Default or Event of Review and, if appropriate,
details of how it has been, or is proposed to be, remedied.]
3.4 the Principal Amount of Bonds (if any) which have been repaid on maturity is
NZ$[], details of which are set out below:
[ ]
3.5 all interest due on the Bonds has been paid;
3.6 each Register in respect of a Series has been duly maintained in accordance
with the Trust Deed;
3.7 the Guarantors of Bonds issued under the Trust Deed are [] and [];
MASTER TRUST DEED (SCHEDULE 3: FORM OF DIRECTORS’ REPORT)
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3.8 the following changes have occurred since the last reporting certificate in
respect of the membership of the Guaranteeing Group;
[Set out any changes to the membership of the Guaranteeing Group since last
reporting certificate]
3.9 The ratios in clause 10.1(j)(i) is [ ]% and in clause 10.1(j)(ii) is [ ]%.
[Provide details showing how these ratios have been calculated]
3.10 the financial undertaking in clause 10.2 has been complied with in accordance
with its terms:
[set out details, including all financial information and calculations necessary
to demonstrate compliance with the financial covenant]
4 As at the date of this certificate, to the best of our knowledge and belief:
4.1 the assets of the Issuer and of each Guarantor that are or may be available,
are sufficient or likely to be sufficient to discharge the amounts payable in
respect of the Bonds as they become due; and
4.2 the Issuer satisfies the solvency test in accordance with section 4 of the
Companies Act 1993.
5 As at the Reporting Date the aggregate Principal Amount of the Bonds outstanding is
NZ$[ ].
This report is given on the day of 20[ ]
__________________________ __________________________
Director of Issuer Director of Issuer
Data sourced from publicly available filings. Our datasets may not be complete. Automated analysis can produce errors. If you believe any data on this page is incorrect, please contact us at hello@nzxplorer.co.nz. For informational purposes only. Not investment advice.
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