Vital Internalisation Completed
VITAL HEALTHCARE PROPERTY TRUST vhpt.co.nz Page 1 of 1
NZX RELEASE
Vital Internalisation completed
31 December 2025
Further to the announcement on 22 December 2025, Vital Healthcare Properties Management Limited, as manager
of Vital Healthcare Property Trust (Vital), is pleased to announce that the internalisation of the management of Vital has
been completed.
From today, Vital Healthcare Properties Management Limited, an entity that is wholly-owned for the benefit of Vital,
has been appointed as manager. This represents the next key step in Vital’s evolution, enhancing governance and
providing a scalable platform positioned to capture the full benefit of future growth on behalf of Unit Holders.
Amendments to Vital’s Trust Deed made in connection with the internalisation have become effective today. A copy
of the updated Trust Deed accompanies this announcement and is also available on Vital’s website and will be
available on the Disclose Register.
– ENDS –
ENQUIRIES
Chris Adams
Chief Executive Officer, Vital Healthcare Properties Management Limited
Tel +61 408 665 332, Email chris.adams@vhpt.co.nz
Michael Groth
Chief Financial Officer, Vital Healthcare Properties Management Limited
Tel +61 409 936 104, Email michael.gr oth@vhpt.co.nz
About Vital (NZX code VHP):
Vital Healthcare Property Trust is an NZX-listed fund that invests in high-quality healthcare properties in New Zealand
and Australia including private hospitals (~80%* of portfolio value), ambulatory care facilities (~16%* of portfolio
value) and life science facilities (4%* of portfolio value).
Vital is the leading specialist listed landlord of healthcare property in Australasia.
For more information, please visit our website: www.vhpt.c o.nz
* All figures are as at 30 September 2025, NZD/AUD exchange rate of 0.8770.
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www.bellgully.com
D e e d o f A m e n d m e n t
Vital Healthcare Properties Management Limited
Manager
and
Trustees Executors Limited
Trustee
Date 31 December 2025
Docusign Envelope ID: A12721AA-E8E3-465E-AD28-8735E16655D6
50041422
Deed of Amendment
1
This Deed of Amendment is made on 31 December 2025
between (1) Vital Healthcare Properties Management Limited (Manager)
and (2)Trustees Executors Limited (Trustee)
Introduction
A.The Manager and the Trustee are party to a Trust Deed dated 11 February 1994, as
amended, restated and/or replaced by deeds dated 1 September 1999, 10 November 2003,
12 November 2007, 12 December 2007, 5 August 2008, 1 October 2010,1 November 2012,
29 November 2016, 7 November 2019, 17 October 2022, and 25 June 2024 (the Trust
Deed).
B.Clause 32 of the Trust Deed provides that the Trust Deed may be varied by a deed executed
by the Trustee and the Manager if the amendment is authorised pursuant to section 139 of
the Financial Markets Conduct Act 2013 (FMCA).
C.The Supervisor has, for the purposes of section 139(2)(a)(ii) of the FMCA, certified that the
amendment and restatement of the Trust Deed does not have a material adverse effect on
the Unit Holders (as that term is defined in the Trust Deed) and that the amended and
restated Trust Deed will comply with the requirements of the FMCA on the basis set out in
the certificate.
It is agreed
1.Amendment
With effect from the date of this deed, the Trust Deed is amended by the revocation of the Trust Deed
in its present form, and the substitution of a deed in the form attached to this deed.
Docusign Envelope ID: A12721AA-E8E3-465E-AD28-8735E16655D6
50041422
Deed of Amendment
2
Execution
Executed as a deed of amendment.
Vital Healthcare Properties Management
Limited by:
___________________________
Graham Stuart
Director
___________________________
Angela Bull
Director
Trustees Executors Limited by:
___________________________
Paul Cassidy
Authorised Signatory
___________________________
Shahazad Contractor
Authorised Signatory
___________________________
Witness to both signatures (if not
signed by two directors)
Name: Raveen Kaur
Address: Auckland
Occupation: Operational Risk Analyst
Docusign Envelope ID: A12721AA-E8E3-465E-AD28-8735E16655D6
50041422
Deed of Amendment
2
Execution
Executed as a deed of amendment.
___________________________
Angela Bull
Director
___________________________
Shahazad Contractor
Authorised Signatory
Vital Healthcare Properties Management
Limited by:
___________________________
Graham Stuart
Director
Trustees Executors Limited by:
___________________________
Stuart Howard
Authorised Signatory
___________________________
Witness to both signatures (if not
signed by two directors)
Name: Raveen Kaur
Address: Auckland
Occupation: Operational Risk Analyst
Docusign Envelope ID: 58ED9F89-6815-44D7-A38C-88B65F1B7AFA
50041422
Deed of Amendment
3
Schedule: Amended and Restated Trust Deed
Docusign Envelope ID: A12721AA-E8E3-465E-AD28-8735E16655D6
T r u s t D e e d
relating to
the Vital Healthcare Property Trust
Vital Healthcare Properties Management Limited
as Manager
and
Trustees Executors Limited
as Supervisor
Pg. 1
Contents
Interpretation .............................................................................................................. 1
Listing Rules - Compliance with NZX requirements ............................................... 11
Commencement of this Deed and Constitution of the Trust Fund ........................ 12
Units .......................................................................................................................... 13
Issue of Units ............................................................................................................ 13
Issue Price ................................................................................................................. 14
Purchase or Redemption of Units by the Manager ................................................ 14
Register ..................................................................................................................... 15
Certificates, Subdivision, Consolidation ................................................................. 16
Calls on Units ............................................................................................................ 17
Forfeiture and Lien ................................................................................................... 18
Investments ............................................................................................................... 21
Distributions ............................................................................................................. 24
Distribution Reinvestment Scheme ......................................................................... 27
Transfer and Transmission of Units ............................................................................
Takeover Restrictions .............................................................................................. 33
Enforcement of Takeover Restrictions ................................................................... 39
Compulsory Acquisition Provisions ....................................................................... 41
Takeovers Code and Holding by Bare Trustee ....................................................... 43
Remuneration of Supervisor .................................................................................... 44
Removal and Retirement of Supervisor .................................................................. 45
Remuneration of Manager ........................................................................................ 45
Removal and Retirement of Manager ...................................................................... 49
Borrowing, Guarantees and Security ...................................................................... 51
Supervisor’s and Manager’s Liabilities and Indemnities ....................................... 52
Supervisor’s Powers and Covenants ...................................................................... 57
Manager’s Powers, Duties and Covenants ............................................................. 59
Accounts and Auditor .............................................................................................. 62
Meetings of Unit Holders .......................................................................................... 64
Pg. 2
Directors of the Manager .......................................................................................... 66
Reporting to Supervisor ........................................................................................... 68
Amendments to Deed ............................................................................................... 68
Winding Up ................................................................................................................ 68
Notices ...................................................................................................................... 70
Governing Law .......................................................................................................... 72
Limitation of Liability ................................................................................................ 71
Taxation Liability ...................................................................................................... 72
Changes to Dates ..................................................................................................... 73
Contracts Privity ....................................................................................................... 73
Schedule 1: Additional Services ....................................................................................... 77
Schedule 2: Activity Services ........................................................................................... 80
Schedule 3: Property Management Services..........................................................85
Schedule 5: Meetings of Unit Holders .............................................................................. 87
Pg. 1
103078.18 - 724661-3
This Trust Deed is made on 1 September 1999
between (1) Vital Healthcare Properties Management Limited (the Manager)
and (2) Trustees Executors Limited (the Supervisor)
Introduction
A. The Trust was established as a unit trust under the Unit Trusts Act 1960 by a trust deed
dated 11 February 1994, amended, restated and/or replaced by deeds dated 1 September
1999, 10 November 2003, 12 November 2007, 12 December 2007, 5 August 2008,
1 October 2010, 1 November 2012, 29 November 2016, 7 November 2019, 17 October 2022
and 25 June 2024.
B. This deed was further amended by a deed of amendment dated 31 December 2025.
It is agreed
Interpretation
1.1 Definitions
Activity Services Costs means the Manager Group’s costs from operations attributable to,
or arising as a result of, the provision of Activity Services (excluding any costs of operations
reflected in Base Costs; Additional Services Costs or Third Party Services, or attributable to
Property Management Services), as determined by the Manager acting reasonably.
Activity Services Fee means the fee calculated in accordance with clause 22.4.
Activity Services means the services set out in Schedule 2.
Additional Services Costs means the Manager Group’s costs from operations attributable
to, or arising as a result of, the provision of Additional Services (excluding any costs of
operations reflected in Base Costs; Activity Services Costs or Third Party Services, or
attributable to Property Management Services), as determined by the Manager acting
reasonably.
Additional Services Fee means the fee calculated in accordance with clause 27.5.
Additional Services means the services set out in Schedule 1.
Associated Person has the meaning given to that term in the Listing Rules.
Auditor means the auditor of the Trust Fund for the time being appointed pursuant to clause
28.9.
Authorised Investments means at any time any investment authorised by the SIPO at that
time.
Pg. 2
Base Costs means the Manager Group’s costs from operations (excluding any costs of
operations reflected in Additional Services Costs; Activity Services Costs or Third Party
Services, or attributable to Property Management Services), as determined by the Manager
acting reasonably.
Base Fee means the fee calculated in accordance with clause 22.3.
Board means the board of Directors of the Manager.
Borrow means to borrow money, including to raise money by way of the drawing,
acceptance, discount or sale of bills of exchange or promissory notes or other financial
instruments that represent money borrowed, or otherwise howsoever, and Borrowing and
Borrowed have a corresponding meaning. For the avoidance of doubt, money raised from
the issue of Convertible Obligations that are mandatorily convertible (that is, they are issued
on the condition that they shall not be redeemed in cash, other than in default, but shall be
satisfied by the issue of Units) will not constitute Borrowing.
Business Day means a day on which NZX is open for trading.
Certificate means a certificate evidencing that the person named on the certificate is the
holder of the Units referred to on the certificate.
Class means a class of Units having identical rights, privileges, limitations and conditions,
and includes or excludes Units which NZX in its discretion deems to be of or not of that
Class.
Commencement Date means 7 September 1999.
Convertible Obligations means notes, options, debt instruments or other obligations and
Financial Products, whether secured or unsecured, which are issued on the condition that
they shall not be redeemed in cash (otherwise than on default) or may not be so redeemed,
but shall, or may, be satisfied by the issue of Units.
Custodian means a person contracted to hold any of the Investments who meets the
external custodianship requirements in section 156 of the FMC Act.
Director means a director of the Manager, from time to time.
Distribution means:
(a) the direct or indirect transfer of money or property, other than Units, to or for the
benefit of a Unit Holder; or
(b) the incurring of a debt to or for the benefit of a Unit Holder,
in relation to Units held by that Unit Holder, whether by means of a purchase of property, the
redemption or other acquisition of Units, a distribution of indebtedness or by some other
means.
Distribution Period means, subject to clause 38, each period of three months ending on a
Quarterly Date.
Financial Product has the meaning given to that term in the Listing Rules.
Pg. 3
Financial Reporting Act means the Financial Reporting Act 2013.
Financial Year in relation to the Trust means, subject to clause 38, the period of twelve
months ending on 30 June in each year.
FMA means the Financial Markets Authority.
FMC Act means the Financial Markets Conduct Act 2013.
FMC Regulations means the Financial Markets Conduct Regulations 2014.
Fund Security has the meaning given to that term in the Listing Rules and Fund Securities
has a corresponding meaning.
Gross Income in relation to a Financial Year means the gross income of the Trust Fund in
respect of that Financial Year, taking account of all income accrued or accruing due, but for
the avoidance of doubt excluding adjustments required under generally accepted accounting
practice requiring lease payments to be recognised on a straight-line basis over the term of
the lease.
Gross Value of the Trust Fund in respect of any Business Day means such sum as is
ascertained and fixed by the Manager in respect of that Business Day as being the greater
of:
the book value of the tangible assets of the Trust and its Subsidiaries as disclosed by
the most recently published consolidated annual financial statements of the Trust; and
the aggregate of:
(i) the Market Value of all of the Investments other than Cash;
(ii) any income accrued or payable but not included in such Market Value; and
(iii) the amount of Cash forming part of the Trust Fund,
(in both cases irrespective of and ignoring any liabilities attributable to the assets or of any
Subsidiaries or other entities through which the assets are held).
Independent in relation to an expert advisor or such advice as may be obtained from the
same means such an advisor who has no connection with or interest in either the Manager
or the Supervisor.
Interest Group, in relation to any action or proposal affecting rights attached to Units,
Convertible Obligations or other Financial Products issued by the Trust, means a group of
holders of Units, Convertible Obligations or other Financial Products issued by the Trust:
whose affected rights are identical; and
whose rights are affected by the action or proposal in the same way; and
who comprise holders of Units, Convertible Obligations or other Financial Products of
one or more classes, except where action is taken in relation to some holders of Units,
Convertible Obligations or other Financial Products in a class and not others, or a
Pg. 4
proposal expressly distinguishes between some holders of Units, Convertible
Obligations or other Financial Products in a class and other holders of Units,
Convertible Obligations or other Financial Products in that class, in which case the
holders of Units, Convertible Obligations or other Financial Products in that class may
fall into two or more interest groups.
Investment means any investment, asset, right, or property of any nature at any time
forming part of the Trust Fund.
Issuer has the meaning given to that term in the Listing Rules.
Land means land and real estate of every estate or description and every interest therein or
relating thereto and includes without limitation:
estates and interests in freehold and leasehold or other tenure;
estates and interest in any stratum estate created (in relation to New Zealand
pursuant to the Unit Titles Act 2010) or in relation to Australia or elsewhere in the
world pursuant to any similar legislation;
any purchase agreement, licence, easement, option, joint venture agreement, building
contract or other agreement or right of any type attaching to or relating to land, real
estate or any interest therein; and
all buildings, improvements, plant, machinery, fixtures and fittings erected or installed
on or relating to land, real estate or any interest therein.
Liabilities means all liabilities of every nature of the Trust (including liabilities accrued but
not yet paid and any unpaid amounts due and payable to Unit Holders, the Manager or the
Supervisor) and any provision which the Manager, having due regard to the most recent
audited financial statements available for the Trust, decides should be taken into account in
determining the liabilities of the Trust. The term Liabilities does not include contingent
liabilities.
Listed has the meaning given to that term in the Listing Rules.
Listing Rules means the NZX Listing Rules in force from time to time.
Manager Group means the Manager together with its Related Companies.
Manager Shares means the shares in the Manager from time to time.
Margin means, in respect of the total aggregate costs associated with the provision of
particular services provided by the Manager Group, a percentage of those costs determined
by the Manager, acting reasonably, of between 0% and 20%.
Market Value of any Investment as at any Business Day means:
where the Investment is Land that is not under development or construction, means
the value determined: (i) pursuant to clause 12.6 by a Qualified Advisor (which could
include an employee of the Manager who is a registered valuer with valuation
experience) at intervals of not more than 18 months; and (ii) quarterly at fair value by
the Manager, and with consideration to any valuations from Qualified Advisors (which
Pg. 5
could include an employee of the Manager who is a registered valuer with valuation
experience). Valuations by the Manager must be signed off by its board and, following
an audit, the auditors of the Trust; or
where the Investment is Land that is under development or construction, the value
determined in accordance with the requirements of New Zealand International
Accounting Standards (NZ IAS) 40 - Investment property or any replacement
standards which have equivalent application,
or in any case an amount agreed upon, or determined in a manner agreed upon, between
the Manager and the Supervisor, or failing such agreement an amount determined by a
Qualified Advisor in its most recent valuation of that Investment for the purposes of the Trust.
Minimum Number in relation to any class of Units means such number of Units of that class
as the Manager may from time to time designate as the minimum number which may be held
by a Unit Holder, provided that, for so long as the Trust is Listed, the Minimum Number shall
mean a Minimum Holding of those Units as that term is defined in the Listing Rules.
Net Income means the net income earned by the Trust Fund, determined in accordance
with clauses 13.6 and 13.7.
New Zealand Dollars means the lawful currency of New Zealand and references to dollars,
cents or $ shall have a corresponding meaning.
NZX means NZX Limited and includes its successors and assigns and, as the context
permits, includes any duly authorised delegate of NZX (including the NZ Markets Disciplinary
Tribunal).
NZX Main Board means the main board Financial Product market operated by NZX.
Office means the registered office from time to time of the Manager.
Ordinary Resolution means a resolution passed by a simple majority of Votes of Unit
Holders and those holders of Convertible Obligations (if any) which carry Votes, that are
entitled to vote and voting.
Person includes an individual, a trust, partnership, firm, association, company, government
or government agency or department, municipal or local authority and any body of persons
or entity (whether incorporated or unincorporated and whether or not having a separate legal
personality).
Personal Representative means:
in relation to a deceased individual Unit Holder, the executor, administrator or trustee
of the estate of that Unit Holder;
in relation to a bankrupt individual Unit Holder, the assignee in bankruptcy of that Unit
Holder; and
in relation to any other individual Unit Holder, a person appointed or deemed to have
been appointed to administer property under the Protection of Personal and Property
Rights Act 1988, a manager appointed or deemed to have been appointed thereunder,
or a donee of an enduring power of attorney complying with that Act.
Pg. 6
Property Management Services means the services set out in Schedule 3.
Property Management Services Fees means the remuneration for Property Management
Services described in Schedule 3.
Qualified Advisor means an appropriately qualified independent Person (who may be an
employee of the Supervisor or the Manager) appointed by the Supervisor (or appointed by
the Manager and approved by the Supervisor) for the purpose of determining the value of
any of the Investments of the Trust Fund.
Quarterly Date means the last days of September, December, March and June.
Quoted has the meaning given to that term in the Listing Rules, and Quote and Quotation
have corresponding meanings.
Register means the Register described in clause 8.
Registrar means the person appointed pursuant to clause 8.2.
Related Company has the meaning given in section 2(3) of the Companies Act 1993 and in
relation to the Trust, has the same meaning as if the Trust were a company, and includes an
associated person as defined in the FMC Act.
Representative means a person appointed as a proxy or representative under clause 11 of
Schedule 4 or a Personal Representative;
Ruling has the meaning given to that term in the Listing Rules.
Shareholder means at any time the person that holds the Manager Shares.
Shareholding Deed means the deed or other document entered into between the Manager,
the Supervisor and the Shareholder recording (amongst other things) the terms on which the
Manager Shares are held by the Shareholder for and on behalf of Unit Holders.
SIPO means a statement of investment policy and objectives prepared by the Manager
under the FMC Act and clause 12.2.
Special Resolution means a resolution approved by Unit Holders holding Units with a
combined value of not less than 75% of the value of Units held by those persons who are
entitled to vote and who vote on the question.
Statement has the meaning set out in clause 9.2.
Subsidiary means:
a company if, but only if,-
(i) the Trust:
(A) controls the composition of the board of the company;
Pg. 7
(B) is in a position to exercise, or control the exercise of, more than one-half
the maximum number of votes that can be exercised at a meeting of the
company;
(C) holds more than one-half of the issued shares of the company, other than
shares that carry no right to participate beyond a specified amount in a
distribution of either profits or capital; or
(D) is entitled to receive more than one-half of every dividend paid on shares
issued by the company, other than shares that carry no right to
participate beyond a specified amount in a distribution of either profits or
capital; or
(ii) the company is a subsidiary of a company that is the Trust's subsidiary; or
an entity treated as a subsidiary or in substance subsidiary within the meaning of any
financial reporting standard approved in terms of the Financial Reporting Act with such
necessary modifications to reflect the fact that the "Issuer" for the purposes of the
Financial Reporting Act is the Trust.
Third Party Costs means the Manager Group’s costs from operations attributable to, or
arising as a result of, the provision of Third Party Services (excluding any costs of operations
reflected in Base Costs; Activity Services Costs or Additional Services Costs, or attributable
to Property Management Services), as determined by the Manager acting reasonably;
Third Party Services means services provided by the Manager Group to a Person which is
not wholly owned by the Trust.
Trust means the Trust constituted by a Trust Deed dated 11 February 1994 known as Vital
Healthcare Property Trust.
Trust Fund means the trust fund described in clause 3.5.
Unit means an undivided part or share in the Trust Fund.
Unit Holder means the Person for the time being entered on the Register either alone or
jointly with others as the holder of a Unit.
Unit Holders’ Funds means the amount disclosed as equity (whether described as equity,
Unit Holders’ funds, or otherwise) by the most recently published annual financial statements
of the Trust, or if the Trust has Subsidiaries, the most recent published group financial
statements of the Trust and its Subsidiaries, provided that if at any time at which Unit
Holders’ Funds are required to be determined:
there has been a material decline in the equity of the Trust, or if the Trust has
Subsidiaries, of the consolidated equity of the Trust and its Subsidiaries, since the
date of the most recent published financial statements; or
the Trust has not published any financial statements,
then Unit Holders’ Funds at that time shall be determined by a reference to the position
which would be disclosed if financial statements were prepared at that time.
Vote means a right to vote at Unit Holders’ meetings other than:
Pg. 8
a right to vote solely upon matters of a nature immaterial or inconsequential to the
control of the Trust, or to the control of any material part of the business or operations
of the Trust;
a right to vote only when a payment in respect of the Unit in question is in arrears or
some other default exists, or on a proposal to change the rights attaching to that Unit,
or in other circumstances of a special or remote nature; or
a right to vote attaching to Units which are not Fund Securities, exercisable only at
meetings of holders of those Units.
1.2 Construction of certain references
In this deed, unless the context otherwise requires, any reference to:
Cash includes a cheque;
the table of contents and headings are inserted for convenience only and shall be
ignored in construing this deed;
the singular includes the plural and vice versa;
one gender includes the other genders;
reference to any legislation or to any provision of any legislation (including regulations
and orders) includes:
(i) that legislation or provision as from time to time amended, re-enacted or
substituted;
(ii) any statutory instruments, regulations, rules and orders issued under that
legislation or provision;
“written” and “in writing” include any means of reproducing words, figures and symbols
in a tangible and visible form, including by electronic means such as electronic mail;
references to clauses and sections are references to clauses and sections in this
deed, unless stated otherwise;
the expression “generally accepted accounting practice” has the same meaning as
that term in the Financial Reporting Act; and
words and expressions cognate with words or expressions defined in this deed have
meanings corresponding to those of the defined words and expressions.
1.3 Business days
Where under or pursuant to this deed or anything done under this deed the day on or by
which any act, matter or thing is to be done is not a Business Day such act, matter or thing
shall be done on the following Business Day.
Pg. 9
1.4 Conversion into dollars
If it shall be necessary for any of the purposes of this deed to determine the equivalent at
any date in New Zealand dollars of any amount denominated in any other currency, that
equivalent shall be determined by the Manager on the basis of the selling rate quoted for that
other currency on that day by any registered bank in New Zealand.
1.5 Supervisor’s approvals
Where this deed provides for the approval of the Supervisor to be obtained, in determining
whether or not to give its approval, the Supervisor shall have due regard to the best interests
of the Unit Holders.
1.6 Listing Rules – Definitions
Any terms that are used in this deed and which are defined in the Listing Rules shall be
given in this deed the meaning that the relevant term has under the Listing Rules, except
where otherwise indicated, and notwithstanding whether this deed expressly notes or not
that a Listing Rule definition applies.
1.7 Listing Rules – Amendments
A reference in this deed to a specific Listing Rule includes that Listing Rule as it may be
amended from time to time and any Listing Rule which may be substituted for that Listing
Rule.
1.8 FMC Act – Application
The provisions of this deed are subject to the FMC Act, and:
pursuant to section 16(1) of the FMC Act, the provisions of the FMC Act have effect
despite anything to the contrary in this deed; and
pursuant to section 138 of the FMC Act, this deed has no effect to the extent that it
contravenes, or is inconsistent with, the FMC Act or the FMC Regulations.
1.9 FMC Act – Definitions
Expressions defined in the FMC Act and not otherwise defined in this deed or the Listing
Rules have the same meaning as in the FMC Act.
1.10 Frameworks or methodologies
Where the FMA has published frameworks or methodologies that require certain matters to
be calculated, determined, fixed, or carried out in a particular way, the Manager and the
Supervisor (as applicable) shall comply with the requirements of those frameworks or
methodologies. Any such frameworks or methodologies shall apply notwithstanding, and
prevail over, anything to the contrary in this deed and the provisions of this deed shall be
construed accordingly.
Pg. 10
Listing Rules - Compliance with NZX requirements
2.1 Compliance with Rules
Subject to:
the terms of any Ruling from time to time given by NZX; and
the requirements of the FMC Act and any other applicable legislative or regulatory
requirement,
while the Trust is Listed, the Manager, the Supervisor (in its capacity as Supervisor of the
Trust) and the Trust shall comply with the Listing Rules where required of each of them as
and to the extent that the Listing Rules apply to an Issuer of Fund Securities. In particular, in
clauses of this deed which reflect or incorporate provisions of the Listing Rules, references to
"Units" shall be deemed to be references to "Financial Products", "Fund Securities",
"Quoted Fund Securities" or “Quoted Financial Products” as the case may be, to the extent
necessary to ensure that the relevant clause of this deed appropriately reflects or
incorporates the provisions of the relevant Listing Rule.
In determining the appropriateness of any particular reference, regard must be had to the
purpose and intent of the Listing Rules, and the scope of the Manager’s and Supervisor’s
roles as provided for in the FMC Act and FMC Regulations.
2.2 Incorporation by reference
While the Trust is Listed on the NZX Main Board, any provisions of the Listing Rules which
are required by the Listing Rules to be contained or incorporated by reference in this deed
(as they may be modified by any Ruling relevant to the Trust) will be deemed to be
incorporated in this deed and have the same effect as though they were set out in full in this
deed with any necessary modification.
2.3 Listing Rules prevail
While the Trust is Listed, but subject to compliance with the FMC Act and clause 2.4, if there
is any provision in this deed that is inconsistent with the Listing Rules applicable to the Trust,
the Listing Rules shall prevail.
2.4 Ruling
If NZX has granted a Ruling in relation to the Trust authorising any act or omission which, in
the absence of that Ruling, would be in breach of this deed, that act or omission shall,
subject to compliance with the FMC Act and unless a contrary intention appears in this deed,
be deemed to be authorised by this deed.
2.5 Failure to Comply with Listing Rules
Failure to comply with:
the Listing Rules; or
a provision of this deed corresponding with a provision of the Listing Rules (whether
such provision is set out in full in this deed or incorporated in it pursuant to clause 2.2),
Pg. 11
does not affect the validity or enforceability of any transaction, contract, action, decision or
vote taken at a meeting of Unit Holders or other matter entered into by, or affecting, the
Manager, the Supervisor or the Trust, except that a party to a transaction or contract who
knew of the non-compliance is not entitled to enforce that transaction or contract. This
clause does not limit the rights of Unit Holders against the Trust, the Supervisor, the
Manager or the directors of the Manager.
Commencement of this Deed and Constitution of the Trust
Fund
3.1 Commencement of this deed
This deed shall take effect and replace the Trust Deed dated 11 February 1994 on the
Commencement Date.
3.2 Appointment of Supervisor
The Supervisor has been appointed as the trustee of the Trust and agrees to continue to act
as trustee for the Unit Holders to hold the Trust Fund in trust for the Unit Holders, upon and
subject to the terms and conditions expressed or implied in this deed.
3.3 Appointment of manager
The Manager has been appointed as the Manager of the Trust and agrees to continue to act
as the Manager on the terms and conditions contained or implied in this deed.
3.4 Name of trust
The Trust is known as the “Vital Healthcare Property Trust”. The name of the Trust may be
changed to such other name as the Supervisor and the Manager may from time to time
agree.
3.5 Constitution of the Fund
The Trust Fund shall consist of all the Cash, Investments, assets, rights, and other property
for the time being held by the Supervisor upon the trusts of this deed including:
the proceeds of subscriptions for Units;
the proceeds of sale of any Investments;
all additions or accretions thereto; and
all income and gains held pending distribution or reinvestment.
3.6 Custodian
The Supervisor shall be entitled in accordance with section 156 of the FMC Act to contract to
another person who meets the external custodianship requirements (as defined in that
section) the holding of all or part of the Investments of the Trust.
Pg. 12
Units
4.1 Fund divided into Units
The beneficial interest in the Trust Fund shall be divided into Units. Subject to the rights
attaching to unpaid or partly paid Units and other Units with special rights, and to clause
13.13, each Unit shall confer an equal interest in the Trust Fund.
4.2 Units undivided share of the Fund
Subject always to the provisions of the FMC Act, no Unit shall confer any interest in any
particular part of the Trust Fund and no Unit Holder shall be entitled to require the transfer to
that Unit Holder of any of the Investments nor (subject to the rights of Unit Holders created
by this deed and by law) shall any Unit Holder be entitled to interfere with or question the
exercise or non-exercise by the Manager or the Supervisor of any of the trusts, powers,
authorities or discretions conferred upon them or either of them by this deed or in respect of
the Trust Fund or any part or parts thereof. Except where expressly provided to the contrary
in this deed or where the context does not so permit, all the benefits and provisions
(including but not limited to those expressed to enure for the benefit of and bind the Unit
Holders of any class or classes) contained in this deed enure for the benefit of and bind each
Unit Holder of the relevant class or classes.
4.3 Quotation of Units
The Manager may at its discretion at any time apply to NZX or any other stock exchange for
quotation of the Units of any class.
Issue of Units
5.1 Offers
The Manager may, subject to the Listing Rules and clause 5.2, invite offers, subscriptions or
applications for Units, may issue rights or options to subscribe for Units, Convertible
Obligations, and Units of any Class (including unpaid and partly paid Units) upon and subject
to the terms and conditions contained in this deed and otherwise in such manner and upon
such terms and conditions as the Manager shall determine.
5.2 Offers to comply with law
The Manager shall in inviting offers in terms of this clause 5 comply with all of the relevant
provisions of the FMC Act.
5.3 Underwritten offers
Any proposed issue of Units may (subject to the Listing Rules) in the Manager’s discretion
be underwritten. The Manager shall have power to:
appoint underwriters, organising brokers and brokers in respect of any issue of Units
and enter into agreements to give effect to such appointments on such terms and
conditions as the Manager may determine; and
Pg. 13
pay out of the Trust Fund such management fees, underwriting fees, brokerage, or
other similar fees as the Manager may agree with any such underwriters, organising
brokers, brokers or others.
5.4 Maximum number of units
There is no maximum number of Units which may be issued.
Issue Price
6.1 Price
The price at which Units may be offered and issued shall be determined by the Manager,
except as provided in any distribution reinvestment scheme established under clause 14.
6.2 Entry fees
The Manager may require any applicant for Units (excluding Units issued pursuant to clause
13.11 or clause 14) to pay, in addition to the basic issue price of those Units, such fee as the
Manager may fix as a condition of issue of those Units provided that, in respect of any
particular issue of Units, each applicant shall be required to pay the same fee as each other
applicant. The Manager may deduct and retain such fee from the subscription moneys
received by the Manager in respect of those Units. In this event, the number of Units issued
shall be that number which has an aggregate issue price equal to the subscription moneys
received or receivable by the Manager less the amount of such fees.
6.3 Subscription moneys
All subscription moneys received by the Manager upon an issue of Units (other than any
amounts deducted in accordance with clause 6.2) shall, pending payment to the Supervisor
pursuant to clause 27.10(a), be held in trust in accordance with section 87 of the FMC Act
and regulation 49 of the FMC Regulations.
Purchase or Redemption of Units by the Manager
7.1 Purchase or Redemption
The Manager may, subject to the Listing Rules, repurchase, or cause the Supervisor to
redeem, Units at a purchase or redemption price determined by the Manager.
7.2 Purchase on own account
The Manager may purchase Units on its own account out of its own funds and shall be at
liberty to deal with those Units as a Unit Holder as the Manager thinks fit. The Trust shall not
have the power to finance the purchase of Units other than in accordance with the provisions
of the Listing Rules.
Pg. 14
Register
8.1 Manager to maintain Register
The Manager shall keep and maintain, or cause to be kept and maintained, an up-to-date
register of Unit Holders and shall comply with all of the provisions of the FMC Act in respect
of that register.
8.2 Manager may appoint registrar
The Manager may, from time to time, appoint a registrar acceptable to the Supervisor to
keep and maintain the Register on the Manager’s behalf upon such terms and conditions as
the Manager thinks fit, and shall have the power to remove such Registrar at any time.
8.3 Joint holders
Joint Unit Holders shall be jointly and severally liable in respect of all payments required to
be made in respect of the relevant Units. Only the Person whose name stands first in the
Register as one of the joint Unit Holders of any Unit shall be entitled to delivery of any
Certificate, notice, cheque or other communication from the Manager or the Supervisor, and
any Certificate, notice, cheque or other communication given to any such Person shall be
deemed to have been given to all the joint Unit Holders. The Manager may amend the name
of the Person standing first in the Register with the consent of all joint Unit Holders of a
relevant Unit.
8.4 Register to be audited
The Manager shall cause the Register to be audited in accordance with section 218 of the
FMC Act and regulations 108 to 110 of the FMC Regulations.
8.5 Changes of address to be notified
Any change of name or address of a Unit Holder shall be notified by such Unit Holder in
writing to the Manager (including to the Registrar on the Manager’s behalf), who shall alter
the Register accordingly.
8.6 Inspection of the Register
The Manager shall make the Register available for inspection in accordance with sections
221, 222 and 223 of the FMC Act and regulations 111 and 112 of the FMC Regulations.
8.7 Reliance on Register
Each of the Manager and the Supervisor shall be entitled:
to rely absolutely on the Register as being correct except, in respect of the Manager,
in the case of an error in the Register which has been caused by the Manager;
for all purposes to treat a Person whom it believes to be the Person entered on the
Register as the holder of any Units as the legal and beneficial owner of those Units;
and
Pg. 15
to effect transfers or other dealings of any nature with Units on the basis of the
information recorded in the Register without requiring production or surrender of any
Certificate relating to those Units.
8.8 Evidence of ownership
Notwithstanding clause 8.7, the Manager shall be entitled, in its absolute discretion before
giving effect to any transfer, conversion or other dealing with any Units, to require the
production to the Manager, of evidence satisfactory to it that the Person seeking to effect
such dealing is the Person named in the Register as the holder of the Units in question or is
otherwise entitled to effect the dealing (for example, a Personal Representative).
8.9 No recognition of trusts
Except as required by law or provided by clause 15.7, neither the Manager nor the
Supervisor shall be bound to recognise or see to the performance of any trust (express,
implied or constructive) or any charge, pledge, or equity to which any of the Units or any
interest therein are or may be subject, or to recognise any Person as having any interest in
any Unit except for the Person recorded in the Register as the Unit Holder, and accordingly
no notice of any trust (whether express, implied or constructive), charge, pledge or equity
shall be entered upon the Register.
Certificates, Subdivision, Consolidation
9.1 No certificates
Subject to compliance with any requirements of the Listing Rules and law the issue of
Certificates by the Trust is not required, and no Unit Holder shall be entitled to a Certificate.
9.2 Statements
A Statement shall be a statement issued by the Registrar specifying the number of Units
held by a Unit Holder and the other matters required under Listing Rule 8.3.1 and, where
applicable, Listing Rule 8.3.4.
9.3 Issuing of confirmation information and statements
The Manager shall provide a Unit Holder with the confirmation information required by
the FMC Act and FMC Regulations following the issue, redemption, or purchase of a
Unit, or otherwise in the circumstances required by the FMC Act.
Except insofar as the information required in a Statement has already been provided
as confirmation information, a Statement shall be issued by the Registrar upon
request by the Unit Holder or otherwise in the circumstances required by the Listing
Rules.
9.4 Evidence of security
Except as may be required by law, a Statement shall not be a document of title nor
negotiable, nor shall it be prima facie evidence of a Unit Holder’s interest in the Trust Fund at
the date it is issued.
Pg. 16
9.5 No obligation to issue in respect of certain units
The Registrar shall not be obliged to issue a Statement in connection with Units redeemed or
transferred before the date of issue of the Statement.
9.6 Statement may form part of other document
Without limitation, a Statement may be issued with, or including, a form of transfer, a notice
of dividend or other distribution, a certificate evidencing ownership of any other Financial
Product and/or a form for varying any payment.
9.7 Consolidation and subdivision of units
The Manager may, at any time, by notice in writing to the Unit Holders and the Supervisor,
cause all of the Units in existence at the date of that notice to be consolidated or subdivided.
Each such notice shall:
specify the date on which such consolidation or subdivision is to take place
(“Operative Date”); and
specify the ratio (“Ratio”) which the number of Units in existence after the
consolidation or subdivision will bear to the number of Units in existence before the
consolidation or subdivision.
9.8 Number of Units
As from the Operative Date, each Unit Holder shall be deemed to hold a number of Units
equivalent to the number held by that Unit Holder before the Operative Date multiplied or
divided (as the case may be) by the Ratio. For this purpose parts of a Unit beyond 2 decimal
places shall be rounded down and ignored.
9.9 Cancellation of certificates
Subject to the Listing Rules, the Manager may make such arrangements as it deems
appropriate following a consolidation or subdivision for the cancellation of existing
Certificates and the issue of new Certificates.
Calls on Units
10.1 Manager may make calls
The Manager may make such calls as it thinks fit upon Unit Holders in respect of any money
unpaid on any Units held by them and not by the conditions of the allotment made payable at
fixed times. Each Unit Holder shall pay to the Manager at the times and places appointed by
the Manager the amount of every call so made on such Unit Holder. Fourteen days’ notice of
any call shall be given specifying the time and place of payment. A call may be revoked or
postponed as the Manager may determine.
10.2 Interest on unpaid calls
If a sum called in respect of a Unit is not paid on the due date for payment, the Person from
whom the sum is due shall pay interest on the sum from the due date for payment to the time
Pg. 17
of actual payment at such rate as the Manager may reasonably determine. The Manager
shall be at liberty to waive payment of that interest wholly or in part.
10.3 Proof of call
On the hearing of any action for the recovery of any money due for any call, it shall be
sufficient to prove that the name of the Unit Holder sued is entered in the Register as the
holder or one of the holders of the Units in respect of which such debt accrued and that the
call and notice of such call was duly given to that Unit Holder in terms of this deed. Proof of
the matters referred to above shall be conclusive evidence of the debt, and it shall not be
necessary to prove any other matter whatsoever.
10.4 Cancellation of unpaid amounts
The Manager may, in its discretion, cancel, reduce or defer any obligation to pay amounts
unpaid of the issue price of any Unit provided that the Manager shall not agree to do so
unless the cancellation, reduction or deferral is approved by Ordinary Resolution.
10.5 Deemed calls
Any sum which by the terms of issue of a Unit becomes payable on allotment or at any fixed
date, shall be deemed to be a call duly made and payable on the date on which, by the
terms of issue, the same becomes payable. In the case of non-payment, all the relevant
provisions of this deed as to payment of interest and expenses, forfeiture or otherwise shall
apply as if the sum had become payable by virtue of a call duly made and notified.
10.6 Subscriptions paid by instalments
If by the conditions of allotment of any Unit, the whole or part of the amount of the issue price
shall be payable by instalments, every such instalment shall, when due, be paid to the
Manager by the Unit Holder for the time being or, if applicable, the Personal Representatives
of the Unit Holder.
10.7 Differential calls
The Manager may, on the issue of Units, differentiate between the Unit Holders as to the
amounts to be paid in respect of the Units and the times of payment of such amounts.
10.8 Joint Unit Holders
Joint Unit Holders are joint and severally liable to pay all calls in respect of Units registered
in their names.
Forfeiture and Lien
11.1 Demand for payment
If a Unit Holder fails to pay any call or instalment on the due date for payment, the Manager
may, at any time during such time as any part of the call or instalment remains unpaid, serve
a notice on the Unit Holder requiring payment of so much of the call or instalment as is
unpaid, together with any interest which may have accrued and all expenses that may have
been incurred by the Manager or the Trust by reason of such non-payment.
Pg. 18
11.2 Notice of non-payment
The notice shall name a further day (not earlier than 10 Business Days from the date of
service of the notice) on or before which the payment required by the notice is to be made,
and shall state that in the event of non-payment at or before the time appointed the Units in
respect of which the call was made or instalment is payable will be liable to be forfeited.
11.3 Forfeiture
If the requirements of any such notice are not complied with, any Unit in respect of which the
notice has been given may at any time thereafter, before the payment required by the notice
has been made, be forfeited by the Manager. Such forfeiture shall include all Distributions in
respect of the forfeited Units not actually paid before the forfeiture.
11.4 Notice and entry of forfeiture in Register
When any Unit has been so forfeited, notice of the forfeiture shall be given to the Unit Holder
in whose name it stood immediately prior to the forfeiture or, if applicable, to the Personal
Representatives of that Unit Holder. An entry of the forfeiture, with the date thereof, shall be
made in the Register. At any time before a sale or disposition of the relevant Unit the
forfeiture may be cancelled on such terms as the Manager thinks fit.
11.5 Unit Holder remains liable to pay
Each Person whose Units have been forfeited shall cease to be a Unit Holder in respect of
the forfeited Units, but shall notwithstanding such forfeiture remain liable to pay all money
which, at the date of forfeiture, was payable by such Person in respect of the Units. Such
liability shall cease if and when the Manager receives payment in full of all such money in
respect of the Units.
11.6 Manager has a lien
The Manager shall have a first and paramount lien upon every Unit registered in the name of
any Unit Holder (whether solely or jointly with others) which is not a fully paid Unit and upon
the proceeds of sale for any unpaid calls, instalments, premiums or other amounts owing in
respect of such Unit, any interest payable on such amounts, and for such amounts (if any) as
the Supervisor or the Manager may be called upon to pay under any statute or legislative
enactment in respect of Units of a deceased or other Unit Holder, whether the period for the
payment, fulfilment or discharge shall have actually arrived or not. Such lien shall extend to
all Distributions from time to time in respect of the relevant Unit. Unless otherwise
determined by the Manager, the registration of a transfer of Units shall operate as a waiver
of the lien, if any, on such Units.
11.7 Manager may sell forfeited Units
The Manager may sell any forfeited Unit, or any Unit on which the Manager has a lien, but
shall not sell any Unit:
unless the amount in respect of which a lien exists is due and payable; and
unless the notice referred to in clause 11.2, or in the case of a lien at least 5 Business
Days written notice demanding payment of the amount in respect of which the lien
exists, has been given to the Unit Holder.
Pg. 19
11.8 Manager has absolute discretion to sell
Subject to clause 11.7, the Manager may sell any forfeited Unit, or any Unit on which the
Manager has a lien, in such manner, at such price, and to such Person, as the Manager in
its absolute discretion sees fit. All Unit Holders and former Unit Holders shall be bound
absolutely by the Manager’s decision as to the sale of any such Unit, and no Unit Holder or
former Unit Holder shall be entitled to claim or commence any action against the Manager,
the Supervisor, or any other Person, or to resist or contest payment of the unpaid balance of
any call, instalment, or other amount, on the grounds that the best price was not obtained for
any such Unit, or on the grounds that the sale or manner of sale of any such Unit was for any
other reason detrimental to the interests of that Unit Holder or former Unit Holder.
11.9 Manager may enter into arrangements for purchase of forfeited Units
Without limiting clause 11.8, the Manager may at any time, whether before or after any call
or instalment becomes due, and the powers of the Manager under this clause 11 become
exercisable, enter into an agreement with any Person or Persons to the effect that that
Person or those Persons will purchase Units which the Manager sells under this clause 11,
on such terms and at such price as may be recorded in that agreement, or otherwise agreed
between the Manager and that Person or those Persons, and none of the Manager, the
Supervisor or any other Person shall in any circumstances be liable for any loss caused to
any Unit Holder or former Unit Holder by reason of the performance of any such agreement.
11.10 Proceeds of sale
The net proceeds of the sale of any forfeited Unit or of Units sold for the purpose of enforcing
a lien shall be applied in or towards satisfaction of any unpaid calls, instalments, expenses or
other amounts and any interest on those amounts. Subject to clause 13.14, the residue, if
any, shall be paid to the former Unit Holder or, if applicable, the Personal Representatives or
assigns of the former Unit Holder.
11.11 Conclusive evidence
A certificate signed by the Manager that the power of sale has arisen and is exercisable by
the Manager under this deed, or that a Unit has been duly forfeited, shall be conclusive
evidence of those matters for all purposes.
11.12 Purchaser need not enquire
For giving effect to any sale after forfeiture of any Unit, or for enforcing a lien over any Unit,
the Manager may authorise any person to transfer any Unit to the purchaser. The purchaser
shall be registered as the holder of the Unit and shall not be concerned to see to the
application of the purchase money or as to whether or not the power of sale contained in this
clause 11 has been properly exercised, and the title of the purchaser shall not be affected by
any irregularity or invalidity in relation to the sale. The remedy of any person having a cause
of action in relation to the sale is in damages only and solely against the Manager.
11.13 Unit Holder remains liable
The forfeiture or sale of a Unit shall not relieve the former holder of that Unit, or any other
Person, from the obligation to pay all calls, instalments or interest payable in respect of that
Unit, so that, after credit has been given for the actual net proceeds of sale in accordance
with clause 11.10, the former holder of that Unit and every other Person who may be liable to
make payment in respect of that Unit shall remain liable to pay the balance of the calls,
Pg. 20
instalments and interest (whether falling due before or after the date of forfeiture or sale) in
respect of that Unit.
Investments
12.1 Manager’s power to invest
Subject to the following provisions of this clause 12, to the provisions of clause 27.2, and to
the Listing Rules, the Manager (or, if applicable, any attorney or subagent appointed
pursuant to clause 27.3) shall have absolute and uncontrolled discretion as to the investment
and expenditure of any sums forming part of the Trust Fund and as to the purchase, sale,
transfer, exchange or alteration of any Investments from time to time. The Manager alone
shall be entitled to effect any transactions which it may consider to be in the interests of Unit
Holders. The Supervisor shall to the extent of the Trust Fund held by it or by any person
contracted to hold Investments pursuant to clause 3.6, effect and pay for such Investments
and expenditures or purchases, sales, transfers, exchanges or alterations of Investments as
may be directed in writing by the Manager and shall do all things necessary on its part to
give effect to any such direction.
12.2 SIPO
The Manager shall develop, in consultation with the Supervisor, a SIPO which complies with
section 164 of the FMC Act, and shall in respect of that SIPO comply with sections 165 and
166 of the FMC Act. The Manager must provide a copy of the SIPO (or any alteration to the
SIPO) to the Supervisor at least 14 days prior to the SIPO (or alteration) taking effect. If the
Manager proposes to alter the definition of Authorised Investments in the SIPO, the Manager
must comply with the provisions of the SIPO in that respect. If the Manager proposes to alter
the SIPO in any other manner which materially affects existing Unit Holders (including
incremental alterations that together materially affect existing Unit Holders) the Manager
shall, prior to effecting any such alteration, give at least 30 days’ written notice to Unit
Holders. Notwithstanding any of the above, the Manager may not amend or supplement the
process for altering Authorised Investments as set out in the SIPO without the prior written
consent of the Supervisor.
12.3 Authorised investments
The Trust Fund shall be invested only in Authorised Investments, and in accordance with the
SIPO.
12.4 Refusal by Supervisor
The Supervisor shall refuse, and must direct any Custodian to refuse, to act on a direction of
the Manager that relates to the acquisition or disposal of Investments if the Supervisor
considers that the proposed acquisition or disposal would be:
in breach of this deed, any rule of law, or any enactment; or
manifestly not in the interests of Unit Holders.
The Supervisor and any Custodian are not liable to Unit Holders or the Manager for refusing,
or directing any Custodian to refuse, to act on direction of the Manager in accordance with
this clause. The Supervisor and Custodian must comply with section 160 of the FMC Act in
relation to any direction given in accordance with this clause.
Pg. 21
12.5 Notice to Supervisor
The Manager shall give the Supervisor at least two Business Days’ notice prior to directing
the Supervisor to purchase, sell, transfer, exchange or alter any Authorised Investment and
shall supply the Supervisor forthwith with such information as the Supervisor may request in
relation to such direction before entering into any contract or deed whereby the Supervisor
shall be required to enter into any such transaction.
12.6 Valuation by Qualified Advisor
The Manager shall ensure that all Investments (other than those in respect of which the
Manager and the Supervisor have agreed on the then Market Value) are valued by a
Qualified Advisor at intervals of not more than 18 months. Valuations of Land shall be carried
out in accordance with clause 12.9. If at any time the Manager shall be of the opinion that
the determination of the value of an Investment does not accurately reflect the current value
of that Investment, the Manager may, with the approval of the Supervisor, assess the current
value of that Investment as at any day and in such manner the Manager sees fit having
regard to the most recent determination of the value of that Investment, or the cost of that
Investment, as the case may be, and to the time which has elapsed since that determination
or the acquisition of that Investment. The value of any Investment determined by the
Manager pursuant to this clause 12.6 shall be deemed to be the Market Value of that
Investment for all purposes of this deed until such time as a new value is determined
pursuant to the definition of “Market Value” or pursuant to this clause 12.6. Notwithstanding
the foregoing, the Supervisor may at any time require that any Investment be valued, at the
expense of the Trust, by an independent appropriately qualified person appointed by the
Supervisor, and the Manager shall send a copy of the valuation report to the Auditor.
12.7 Investments registered in name of Supervisor
All Investments shall be held by the Supervisor or a Custodian in accordance with section
156 of the FMC Act. Where ownership documentation relating to Investments is relevant, as
soon as reasonably practicable after receipt of the necessary documents by the Supervisor
such Investments shall be registered (if registrable in nature) in the name of the Supervisor
or any person contracted to hold Investments pursuant to clause 3.6, and be held in safe
custody by the Supervisor or by some person selected by the Supervisor in accordance with
clause 25.5(g), and shall remain so registered and held until the same shall be sold or
disposed of pursuant to the provisions hereof.
12.8 Acquisition or disposal of Land
The Supervisor shall be under no obligation to acquire or dispose of any Land until the
Manager has delivered to the Supervisor a valuation report on the relevant Land carried out
by an Independent registered valuer.
12.9 Valuation of Land
The Manager will, in relation to each valuation of Land:
instruct a Person as a Qualified Advisor who:
(i) is suitably registered and qualified to carry out such valuations having at least
five (5) years’ relevant experience; and
Pg. 22
(ii) has no pecuniary or other interest that could reasonably be regarded as being
capable of affecting the Person’s ability to give an unbiased opinion;
ensure that such Person receives all necessary instructions and information for the
purpose of the valuation including particulars of leases and current rent receipts and
will send a copy of all such instructions and information as sent to such Person to the
Supervisor;
ensure that the valuation is prepared on the basis of market value subject to all
existing leases and occupancies, encumbrances and potential benefits. “Market value”
means the price at which an interest in a property might reasonably be expected to be
sold by private treaty at the date of valuation assuming:
(i) a willing seller;
(ii) a reasonable period within which to negotiate the sale taking into account the
nature of the property and the state of the market;
(iii) values will remain static throughout the period;
(iv) the property will be freely exposed to the market with reasonable publicity; and
(v) no account is taken of an additional bid by a special purchaser;
ensure that the same Valuer does not value any property for more than two
consecutive Financial Years. For this purpose, members or employees of the same
valuation firm or company are deemed to be the same valuer; and
it will incorporate the new valuation in the books of the Trust (with such adjustments
as are appropriate to comply with generally accepted accounting practice) as the
value of the property as soon as practicable after receipt of the report by the Manager.
12.10 Supervisor’s Right to Limit Liability
The Supervisor may, before entering into any transaction, security or liability of the Trust
require that its liability is restricted or limited to its satisfaction to the Investments for the time
being of the Trust.
12.11 Manager to Keep Records
The Manager must keep complete, accurate and separate records of all Investments.
12.12 Inspection by Supervisor
The records of Investments must be available for inspection by the Supervisor or its agents
without charge at any time on any Business Day.
12.13 Reliance on Records
The Supervisor is entitled to assume that the Manager’s records of Investments are
complete and accurate and may rely upon them accordingly.
Pg. 23
Distributions
13.1 Net income retained or distributed
All Net Income shall, at the discretion of the Manager, be either:
retained by the Supervisor and invested in accordance with the provisions of clause
12; or
distributed by the Supervisor to Unit Holders in accordance with the provisions of
clause 13.3.
13.2 Directions as to investment or distribution
The Manager may from time to time by notice in writing to the Supervisor direct the
Supervisor:
either to reinvest or distribute Net Income received; or
to distribute all or any part of the capital of the Trust Fund to Unit Holders and if
necessary to realise Investments in order to produce Cash to make any such
distribution.
The Supervisor shall (subject to clause 12.4 in respect of any direction to realise
Investments) act in accordance with any such direction.
13.3 Distributions in cash
All distributions pursuant to clauses 13.1 or 13.2 shall be distributed in Cash to the Unit
Holders in respect of each Distribution Period as soon as practical after the end of each
Distribution Period. All distributions shall (subject to clauses 13.4 and 13.12 and to the rights
attaching to unpaid or partly paid Units and other Units with special rights) be distributed
amongst the Unit Holders in proportion to the number of Units held by them and according to
the amounts paid or credited as paid on the Units in respect of which the distribution is paid
but no amount paid or credited and paid on a Unit in advance of calls shall be treated for the
purposes of this clause as paid on that Unit.
13.4 Deductions from distributions
The Supervisor or the Manager may deduct from any distribution payable to any Unit Holder
all sums of money, if any, presently payable by such Unit Holder on account of calls or
instalments on the Units in respect of which the distribution is payable, but subject thereto,
and save as expressly permitted by the terms of this deed, or as required by law, no
deduction or retention shall be made from any distribution.
13.5 Rights to distributions
The Manager may as a condition of issue of any Units provide that those Units shall not
participate in full in any distribution or distributions, or shall participate in distributions on a
basis calculated by reference to the period for which they have been held by a particular Unit
Holder or the amount of the issue price paid or payable thereon. The Supervisor shall take
all necessary steps to give effect to any such condition.
Pg. 24
13.6 Determination of Net Income
In determining Net Income of the Trust Fund for any Distribution Period there shall be
deducted from Gross Income for such period all costs, charges and expenses accrued or
accruing, including, without limiting the generality of the foregoing:
all fees, costs and disbursements payable to the Manager and the Supervisor (except
to the extent that the Manager determines, acting reasonably, that such fees, costs
and/or disbursements should be capitalised under generally accepted accounting
practice);
all costs and expenses incurred in respect of Investments (including, without limitation,
the costs and expenses incurred in connection with the insurance, valuation, repair,
maintenance, acquisition or sale of Investments);
all depreciation of Investments of an amount determined by the Manager;
all costs and disbursements incurred in connection with this deed or in connection with
the Trust Fund or the administration thereof (including the costs of valuations);
due allowance for prepayments, doubtful debts and bad debts;
all taxes (including without limitation income taxes) or duties paid or payable by or in
respect of the Trust Fund;
the fees and expenses of the Auditor in connection with the audit of the Trust Fund;
all contingencies which it may be necessary to bring to account in order that the net
income for the particular period may fairly represent the results of the Trust for that
period;
any amount considered necessary to provide for the amortisation of the cost of any
leasehold property forming part of the Investments;
interest and other costs and expenses incurred in borrowing or raising money;
valuation fees payable in respect of any valuation made pursuant to this deed;
unrealised development margins; and
such other provisions as the Manager deems necessary to bring to account in order
that the net income for the particular period may fairly represent the results of the
Trust for that period;
provided that the Manager may determine that any particular cost, charge or expense shall
be charged against capital rather than against Gross Income.
13.7 Manager to determine Net Income
If any question shall arise as to whether any money or property constitutes Net Income (or
Gross Income) such question shall be determined by the Manager in consultation with the
Auditor.
Pg. 25
13.8 Payments of distributions
A Unit Holder may elect to have any moneys payable to such Unit Holder pursuant to this
clause 13 or to any other provision of this deed made by:
post; or
payment to a nominated account with a bank.
Payment shall be effected when the Supervisor, or the Manager on behalf of the Supervisor,
deposits the payment either:
with the Trust’s bank; or
with a branch of the nominated bank
(the choice being the Manager’s) for transmission to the Unit Holder’s nominated account.
If the Manager does not have a valid nominated bank account in respect of a Unit Holder,
payment will be made to the Trust’s bank account where it will be retained until a bank
account has been nominated by the Unit Holder or an alternative method of payment has
been determined by the Manager.
13.9 Capital gains and losses
Unless taken into account in determining Net Income in accordance with clause 13.6, all
capital gains or losses whether on revaluation or realisation of Investments will be credited or
debited, as the case may be, to a capital reserve account in the accounts of the Trust. Such
capital reserve account shall be maintained in two parts:
a realisation account into which gains or losses on realisation shall be entered; and
a revaluation account which gains or losses on revaluation shall be entered.
13.10 Distributions of capital
The Supervisor may at the request of the Manager distribute in Cash to Unit Holders, as at a
date and on a basis determined by the Manager such of the net realised capital gains of the
Trust after provision for taxes on capital gains (if any) as the Manager may recommend.
Unless taken into account in determining Net Income in accordance with clause 13.6 all
amounts so distributed shall be debited to the capital reserve account referred to in clause
13.9. The amount of net realised capital gains available for distribution at any time in
accordance with this clause 13.10 is the amount of realised capital gains standing to the
credit of the relevant part of the capital reserve account referred to in clause 13.9 less:
all capital losses then realised; and
the amount (if any) by which all unrealised losses on revaluation at that time exceed
all unrealised gains on revaluation at that time.
Pg. 26
13.11 Capitalisation of reserves and undistributed profits
The Manager may resolve to capitalise any sum standing to the credit of the capital reserve
account referred to in clause 13.9, and any undistributed Net Income, to the extent that the
relevant sum be set free for distribution amongst the Unit Holders who would have been
entitled thereto if the relevant sum were distributed in Cash, and in the same proportions, on
condition that the same be not paid in Cash but be applied either in or towards paying up any
amounts unpaid on any Units held by those Unit Holders respectively or paying up in full
Units to be allotted and distributed, credited as fully paid up to and amongst those Unit
Holders in such proportion, or partly in one way and partly in the other. Such Units shall,
when issued, rank pari passu in all respects with all other fully paid Units with full
participation rights then on issue, and all amounts so capitalised shall be treated as funds
subscribed by Unit Holders.
13.12 Holders of Convertible Obligations
Where the holders of any Convertible Obligations are entitled to participate in any
Distribution, such Persons shall be entitled to participate in any such Distribution to the
extent, and in the manner, authorised by the terms of issue of the Convertible Obligations
held by them.
13.13 Supplementary distributions
Notwithstanding any other provision of this deed, the Manager may direct the Supervisor to
pay such supplementary distributions to Unit Holders resident outside New Zealand as may
be provided for by section LP2 of the Income Tax Act 2007 and as may be determined by
the Manager as being fair and equitable.
13.14 Unclaimed money
Subject to the provisions of the Unclaimed Money Act 1971, any distribution or any other
money payable to any Unit Holder or former Unit Holder remaining unclaimed for five years
from the date upon which the amount became payable, shall, at the expiry of such period of
five years, be forfeited to the Trust Fund. After forfeiture, the Person or Persons who would
have been entitled to payment of such amount if it had not been forfeited shall be entitled to
payment thereof upon producing to the satisfaction of the Manager sufficient evidence that
such Person or Persons would have been entitled to such amount had it not been forfeited.
13.15 Distribution statements
The Manager shall, upon the making of a distribution, send a distribution statement to each
Unit Holder in respect of the period to which the distribution relates (including by electronic
means). Each distribution statement shall contain such information as the Manager
considers appropriate.
Distribution Reinvestment Scheme
14.1 Election of Unit Holders
The Manager in its discretion may, in accordance with this clause 14, give to Unit Holders
the right to elect to receive, in lieu of distributions in Cash (such distributions being in this
clause 14 called Cash Distributions) an allotment of fully paid Units.
Pg. 27
14.2 Terms of scheme
The terms of any scheme by which Units may be allotted to Unit Holders under this clause
14 (“Scheme”) shall be such as the Manager determines subject to this clause 14 and the
Listing Rules.
14.3 Notice of scheme
The Manager may give written notice to the Unit Holders specifying the terms of a Scheme
and advising that any Unit Holder who wishes to elect to receive Units in lieu of Cash
Distributions may do so upon giving prior written notice to the Manager (Election Notice).
The Manager may change the terms of any Scheme by giving notice of such change to Unit
Holders (which may be given by way of an announcement to NZX). No such change shall be
made during the period commencing on the date seven days before the Record Date (as
described in the Listing Rules) and ending on the date of payment of that Cash Distribution.
14.4 Effectiveness of election notice
An Election Notice shall be effective in respect of any Cash Distribution so long as it is
received on or before the date and at the address set for that purpose in accordance with the
terms of the Scheme at the Office, or at such other address as the Manager may from time
to time determine, provided that Election Notices received whilst the Register is closed shall
not take effect until the day upon which the Register is re-opened.
14.5 Issue of new Units
Subject to the Manager having given notice pursuant to clause 14.3, the following provisions
shall apply in respect of each Cash Distribution made after the date of giving of that notice,
other than any Cash Distribution in respect of which the Manager has determined that this
clause shall not apply:
the amount of the Cash Distribution shall be limited to the aggregate amount actually
required to be paid to Unit Holders after taking into account the Unit Holders who have
elected to receive fully paid Units in accordance with this clause 14;
at the same time as the Cash Distribution is made, the Manager shall issue and allot
to the Unit Holders who have given and have not revoked an Election Notice (but to no
others) such number of fully paid Units as such Holders are entitled to receive
pursuant to the terms of the Scheme;
the Manager shall capitalise out of the amount for the time being standing to the credit
of the Trust’s reserve accounts or to the credit of the statement of financial
performance or otherwise available for distribution a sum equal to the aggregate issue
price of the additional Units to be so allotted and issued and such sum in paying up in
full the issue price of such Units; and
the additional Units to be so allotted shall rank pari passu in all respects with the then
existing fully paid Units with full participation rights, and shall have the right to
participate in full in all Distributions declared or made after the date of allotment.
14.6 Revocation of election notice
An Election Notice may be revoked by written notice from the Unit Holder concerned in
accordance with the terms of the Scheme. If such notice of revocation is not received on or
Pg. 28
before the date set for that purpose in respect of a Cash Distribution it shall not be effective
in respect of that Cash Distribution, but shall be effective in respect of all subsequent Cash
Distributions.
14.7 Transfers cancel existing election notices
An Election Notice shall not attach to the Units in respect of which it has been given but shall
be personal to the Unit Holder concerned and shall in respect of any Units transferred be
automatically revoked upon registration of the transfer of the Units. The Manager shall upon
registration of the transfer of any Units or the allotment of new Units to a new Unit Holder
advise such new Unit Holder in writing of such Unit Holder’s rights under any scheme then in
force.
14.8 Existing Election Notices
If any Unit Holder has given an Election Notice (Existing Election Notice) prior to the
Commencement Date in respect of the Trust’s Distribution reinvestment scheme in effect
immediately prior to the Commencement Date, the Existing Election Notice shall be deemed
to apply to the Scheme to take effect after the Commencement Date provided that the terms
of such Scheme have been notified to all Unit Holders and Unit Holders have been given not
less than 14 days to revoke their Existing Election Notice if they wish to do so.
Transfer and Transmission of Units
15.1 Units transferable
Subject to such of the restrictions in clauses 8.8 and 15.6 as may be applicable, any Unit
Holder may transfer all or any of the Units held by such Unit Holder in accordance with this
clause 15.
15.2 Transfers
Subject to any restrictions contained in this deed, Units may be transferred:
under a system of transfer approved under sections 376 to 378 of the FMC Act or in
accordance with the rules of a “designated settlement system” under the Reserve
Bank of New Zealand Act 1989 which is applicable to the Trust;
under any other securities transfer system which operates in relation to the trading of
securities on any stock exchange outside New Zealand on which Units are listed and
which is applicable to the Trust; or
by an instrument of transfer which complies with this deed.
15.3 Method of transfer
A Unit which is disposed of in a transaction which complies with the requirements of a
system of transfer referred to in clause 15.2(a) or 15.2(b) may be transferred in accordance
with the requirements of that system. Where an instrument of transfer would have complied
with the provisions of the FMC Act if it had been executed by the transferor in New Zealand,
the Manager may nevertheless procure that it be registered by the Registrar if it is executed
in a manner acceptable to the Manager or the Registrar.
Pg. 29
15.4 Forms of transfer
An instrument of transfer to which the provisions of clause 15.3 are not applicable shall
comply with the following provisions:
the form of the instrument of transfer shall comply with the requirements of the FMC
Act (and any other applicable laws), as well as any other reasonable requirements
prescribed by the Manager, the Supervisor or the Registrar;
the instrument of transfer must be signed or executed by or on behalf of the transferor;
and
where the Units being transferred are not fully paid up, the instrument of transfer must
also be signed or executed by or on behalf of the transferee.
15.5 Entry in register
The transferor of a Unit shall be deemed to remain the holder of the Unit until the name of
the transferee is entered in the Register in respect thereof.
15.6 Manager may decline to register
The Manager may decline to register any transfer of a Unit where:
the Manager has a lien on such Unit;
the instrument of transfer is not accompanied by the Certificate (if any) relating to such
Units, and/or such other evidence as the Manager or the Registrar may reasonably
require to show the right of the transferor to make the transfer;
the provisions of clauses 15.3 or 15.4 (as applicable), any other permitted restriction
on transfer or any applicable statutory provisions have not been complied with; or
the registration of the transfer (together with registration of any further transfers then
held by or on behalf of the Manager and awaiting registration) would result in the
proposed transferee or a transferor having a holding below a Minimum Number.
15.7 Separate registered parcels
The Manager, or the Registrar on behalf of the Manager, subject to section 217(2) of the
FMC Act:
may in its discretion, if so requested by a Unit Holder or a transferee of Units; and
shall, if so requested by a Unit Holder who produces satisfactory evidence that Units
held by that Unit Holder are held as a bare trustee or nominee and two or more other
persons are separate beneficial owners of parcels of those Units or have other
separate Relevant Interests in parcels of those Units,
register the Units held or acquired by that Unit Holder or transferee in two or more separately
identifiable parcels. The Manager may thereafter, so far as it considers convenient or
appropriate, communicate with that Unit Holder, make Distributions and otherwise act, as if
the separate registered parcels were each held by different Unit Holders.
Pg. 30
15.8 Manager may sell small holdings
The Manager may at any time give notice to a Unit Holder holding less than the
Minimum Number of Units that if, at the expiration of three months after the date the
notice is given, the Units then registered in the name of the Unit Holder are less than
the Minimum Number of Units, the Manager may sell those Units through NZX or in
some other manner approved by NZX.
If the power of sale under clause 15.8(a) is exercised:
(i) The Manager may authorise the transfer of the relevant Units to the purchaser
of the Units;
(ii) The Unit Holder shall be deemed to have authorised the Manager to act on
behalf of the Unit Holder in relation to the sale of the relevant Units, and to sign
all necessary documents relating to such sale;
(iii) The proceeds of sale of the Units must be applied as follows:
(A) first, in payment of any reasonable sale expenses;
(B) second, in satisfaction of any unpaid calls or any other amounts owing to
the Trust in respect of the Units (including any interest payable on such
amounts); and
(C) the balance, if any, must be paid to the Unit Holder (or his or her
executors, administrators and assigns);
(iv) The title of the purchaser of any Units sold pursuant to this clause shall not be
affected by any irregularity or invalidity in the exercise or purported exercise of
the power of sale or the sale itself; and
(v) the remedy of any person aggrieved by the sale shall be in damages only and
against the Trust only.
A certificate, signed by the Manager, that records that a power of sale under this
clause has arisen and is exercisable by the Manager is conclusive evidence of the
facts stated in that certificate.
15.9 Transfer documents
All instruments of transfer which have been registered may be retained by the Manager. If
the Manager, pursuant to the powers contained in this deed, refuses to register a transfer, it
shall promptly send to the transferor and proposed transferee notice of the refusal and shall
return the transfer to the transferor together with such documents of title which may have
been left with the transfer.
15.10 Suspension of transfers
Registration of transfers may be suspended at such times and for such periods as the
Manager may from time to time determine provided that the Manager may not suspend
registration of transfers for a period exceeding 30 Business Days in any calendar year
without the approval of the Supervisor.
Pg. 31
15.11 Transmission of Units
The Personal Representatives of a deceased Unit Holder (not being one of several joint Unit
Holders) and in the case of the death of one or more of several joint Unit Holders, the
survivor or survivors, shall be the only persons recognised by the Manager as having any
title or interest in the Units held by such Unit Holder or Unit Holders. Nothing contained in
this clause 15.11 shall release the estate of a deceased joint Unit Holder from any liability in
respect of any Unit which had been jointly held by that Unit Holder with other Persons.
15.12 Managers of incapable persons
Any Personal Representative of a mentally disordered Unit Holder or a bankrupt Unit Holder
shall, upon such evidence being produced as may from time to time be properly required by
the Manager, have the right either to be registered as a Unit Holder in respect of the Unit or,
instead of being so registered to make such transfer of the Unit as the mentally disordered,
deceased or bankrupt Unit Holder could have made. The Manager shall in either case have
the same right to decline or suspend registration as it would have had in the case of a
transfer of the Unit by the mentally disordered, deceased or bankrupt Unit Holder before
such event.
15.13 Registration by Personal Representative
If the Personal Representative so becoming entitled elects to be registered personally, the
Personal Representative shall deliver or send to the Manager a notice in writing signed by
the Personal Representative stating that they so elect. If the Personal Representative elects
to have another Person registered, the Personal Representative shall execute in favour of
such other Person a transfer of the relevant Unit. All the limitations, restrictions and
provisions of this deed relating to the right to transfer and the registration of transfers of Units
shall be applicable to any such notice or transfer as if the mental disorder, death or
bankruptcy of the Unit Holder had not occurred and the notice or transfer were a transfer
signed by that Unit Holder.
15.14 Rights of Personal Representatives
A Unit Holder’s Personal Representative:
is entitled to exercise all rights (including, without limitation, the rights to receive
distributions, to attend meetings and to vote in person or otherwise), and is subject to
all limitations, restrictions and provisions of this deed applicable to the Units held by
that Unit Holder; and
is entitled to be registered as the Unit Holder of the relevant Units, but such
registration shall not operate as a release of any rights (including any lien) to which
the Trust was entitled to prior to the registration of the Personal Representative
pursuant to this clause 15.14(b).
15.15 Joint Personal Representatives
Where a Unit is subject to the control of two or more persons as Personal Representatives,
they shall, for the purposes of this deed be deemed to be joint holders of the Unit.
Pg. 32
Takeover Restrictions
16.1 Definitions
In clauses 16 to 19, unless the context otherwise requires:
Acquisition Notice means a notice given pursuant to clause 18.1;
Affected Group means:
(a) in respect of a Restricted Transfer effected otherwise than by trades matched through
NZX’s order matching market each of:
(i) the group comprised of persons who are not recipients (disregarding
inadvertent non-receipt) of the offer or invitation which would implement the
proposed Transfers;
(ii) if the Transfers are not of an equal proportion of all holdings which are offered
for disposal, the groups comprised of Transferors whose Transfers represent
substantially identical proportionate parts of the holdings offered by them; and
(iii) the group comprised of persons who are not Unit Holders of the groups
described in (i) and (ii) and who are not the Transferees and other persons
whose Relevant Interests would be taken into account in determining whether
the Transfer is a Restricted Transfer, but disregarding the proviso to the
definition of Restricted Transfer;
in respect of a Restricted Transfer effected by trades matched through NZX’s order
matching market, the group comprised of those other than:
(i) the persons whose control of Votes would in aggregate determine whether the
Transfer is a Restricted Transfer; and
(ii) insiders;
Affected Units means those Units in a given Class of Units not held by a Majority Holder;
Appraisal Report has the meaning given to that term in the Listing Rules;
Compulsory Acquisition Provisions means provisions in clause 18;
Default means non-compliance with the requirements of clause 16;
Defaulter means a person who has a Relevant Interest in Quoted Units who has acquired
that Relevant Interest in breach of the requirements of clauses 16.3 to 16.5 (inclusive) (other
than a breach committed by the Supervisor);
Defaulter’s Units means in relation to a Defaulter, Units in which the Defaulter has a
Relevant Interest;
Pg. 33
Differential Offer means an offer, or invitation to agree on Transfers which:
is made to some but not all holders of a Class of Units or entitles any person other
than NZX to the benefit of, or to exercise, the rights and powers provided in Listing
Rule 9.12;
would result in different prices or other terms applying among holders of the same
Class of Units; or
would result in the Transfer of different proportions of those portions of holdings of
Units of the same Class which are offered for disposal.
Disinterested Directors means the directors of the Manager who are not involved as
prospective Transferors (in relation to a proposal for a Differential Offer) or as Transferees,
and who are not Associated Persons of any such Transferors or Transferees;
Enforcement Provisions means the provisions of clause 17 of this deed;
Expert means an independent, appropriately qualified person, who has been previously
approved by NZX for the purposes of clause 18.3(a) or (c) as the case may be;
Majority Holder means a person or group of Associated Persons who acquire beneficial
ownership of, 90% or more of a Class of Units or Options;
Notice and Pause Provisions means the provisions of clause 16.3;
Remaining Holders means the holders of the Affected Units;
Relevant Interest has the meaning given to that term in the FMC Act;
Restricted Transfer means:
the Transfer which would result in the Votes controlled by any person or group of
persons who are Associated Persons of each other, of any Class of Quoted Units of
an Issuer:
(i) exceeding 20% of the Votes attached to that Class; or
(ii) if the person or group of persons controls 20% or more of the Votes attached to
that Class, increasing by more than 5% in any period of 12 months excluding
increases as a result of Transfers pursuant to a Restricted Transfer notice
previously given by the person or group of persons; together with,
any other Transfer which is likely to be contemporaneous with, or subsequent to, the
Transfer in sub-paragraph (a) of this definition and comprises with that Transfer part of
a scheme or linked series of transactions:
provided that for the purposes of this definition acquisition of interests in Units of an Issuer
may be disregarded:
where it is determined by NZX that the acquisition was involuntary and occasioned by
the action of another party over which the acquiring party had no effective control or
influence in the matter; or
Pg. 34
where, and to the extent that, it is determined by NZX that the aggregation of holdings
among Associated Persons would include holdings of persons who have no practical
likelihood of acting in concert, or exercising Votes or otherwise acting in collusion, with
each other or any common party:
provided also that this definition shall not apply:
where the Transfer is between two entities, one of which is directly or indirectly wholly
owned beneficially by the other, or both of which are directly or indirectly wholly owned
beneficially by the same entity; or
where the Transfer is in performance of the obligations of an underwriter pursuant to
an underwriting agreement disclosed in a product disclosure statement or register
entry relating to an offering of the relevant Class of Quoted Units;
Right has the meaning given to that term in the Listing Rules;
Transfer in relation to a Unit includes sale of that Unit, and the grant of rights or interests,
whether conditional or not, which are intended to create for the recipient benefits which are
substantially equivalent to ownership of that Unit (or of an interest in that Unit). In particular it
includes:
(a) a transaction whereby one party disposes of, alienates or proposes to dispose of or
alienate (temporarily or permanently) any interest or right of title to any Unit or in the
Votes, dividends or income arising in respect of any Unit;
(b) any agreement arrangement or understanding in respect of Units under which the
Votes attaching to them may be exercised by a person other than the registered
holder, alone or jointly with the registered holder, or with other persons acting in
concert, other than by reason of a bona fide appointment of a proxy or other
representative for voting purposes under which the appointment may be terminated at
will, and the appointer is entitled, if the appointer so wishes, to direct the proxy as to
the manner in which Votes are to be cast;
(c) any transaction whereby the holder of the Unit enters into a commitment (whether
conditional or unconditional) to sell Units, or to grant an option over them or any part
thereof, or at any future time to grant any of the rights referred to above;
(d) the creation of a charge or other security interest enforceable by a right of possession
or a power of sale or other disposition which would fall within parts of this definition of
“Transfer”; or
(e) any transaction, agreement or arrangement that has substantially the same effect as
(a), (b), (c) or (d) above;
but excludes:
(f) the issue of Units, or the acquisition of Units by the Manager or Supervisor on behalf
of the Trust, in accordance with the Listing Rules; and
(g) the creation of a charge or other security interest enforceable by a right of possession
or a power of sale or other disposition for bona fide financing purposes, or the
enforcement of such an interest; and
Transferor and Transferee have corresponding meanings.
Pg. 35
16.2 Application of NZX Listing Rules
To the extent that clauses 16 to 19 of this deed refer to provisions of Appendix 3 of the
Listing Rules, those references are to assist in the interpretation of the provisions of those
clauses and will not be read as meaning that Appendix applies to the Trust.
16.3 Notice and Pause
Notice of Takeover: No Restricted Transfer of Units shall take place unless:
(i) a notice is given to the Manager and the NZX, not later than the time specified
in clause 16.3(b), containing the particulars specified in paragraphs 1.4.1(a) to
(h) of Appendix 3 to the Listing Rules; or
(ii) a notice of any change in, or addition to, the particulars notified under clause
16.3(a)(i) is given to the Manager and NZX not later than the time specified in
clause 16.3(c).
Time for Initial Notice: A notice under clause 16.3(a)(i) must be given:
(i) if any Transferee under the Transfer in question is an Insider, at least 15
Business Days before the Transfer; or
(ii) if no Transferee is an Insider, and subject to clause 16.3(d), at least three
Business Days before the Transfer.
Time for Notice of Change: A notice under clause 16.3(a)(ii) must be given:
(i) if any Transferee under the Transfer in question is an Insider, at least two
Business Days before the change takes effect in the case of a change to price
or amount of consideration, and at least 15 Business Days before the change
takes effect in the case of a change to any other particulars, including without
limitation the nature of the consideration; or
(ii) if no Transferee is an Insider:
(A) at least two hours during which NZX is open for business if the Restricted
Transfer complies with clause 16.3(d), and at least one Business Day in
any other case, before the change takes effect, in the case of a change to
price or amount of consideration; and
(B) at least one Business Day if the Restricted Transfer complies with clause
16.3(d), and at least three Business Days in any other case, before the
change takes effect, in the case of a change to any other particulars,
including without limitation the nature of the consideration.
Modification of Time for Initial Notice in some instances: If:
(i) a Restricted Transfer is effected solely by trades matched through NZX’s order
matching market;
(ii) no Transferee is an Insider; and
(iii) the conditions specified in the next sentence are satisfied,
Pg. 36
the period of notice referred to in clause 16.3(b)(ii) shall be one Business Day, and the
periods of notice referred to in clause 16.3(c)(ii)(A) shall be two hours during which
NZX is open for business, and one Business Day, respectively. The conditions
referred to above are:
(iv) before notice is given, the Trading Participant instructed to make the offers must
be satisfied that the entire offer in the notice has been the subject of instructions
accepted by Trading Participants;
(v) the consideration must be readily capable of settlement through the Settlement
System;
(vi) the Transferee must have previously undertaken to the Trading Participant
through whom its orders are placed, for the benefit of holders of the relevant
Units, to complete the transaction in accordance with the notice given, if offers
or acceptances are sufficient to enable it to do so;
(vii) the instructions must be in terms that orders will be matched and completed by
NZX's order matching system even if the entire offer is not accepted completely;
and
(viii) the period during which transactions will be effected does not end before one
Business Day after it begins or until Transfers have been agreed to complete
the maximum number of Units to which the Transfer proposal relates, whichever
is the earlier.
For the purposes of this clause, Trading Participant has the meaning given to it in
the Participant Rules issued by NZX (from time to time) and Settlement System has
the meaning given to it in the Listing Rules.
Response Requirements: If any Units are the subject of a notice given under clause
16.3(a)(i), or where the Manager becomes aware that a Restricted Transfer proposal
is more likely than not in the immediate future, the Manager must:
(i) give a notice, as soon as can be achieved, and before the expiry of the relevant
notice period referred to in clause 16.3(b), containing the particulars required by
paragraphs 1.4.3(a) to (d) of Appendix 3 to the Listing Rules; and
(ii) comply (so far as is applicable) with paragraphs 1.4.4(a) to (d) of Appendix 3 to
the Listing Rules,
as if that Appendix applied to the Trust.
Appraisal Report: If any Transferee under a Restricted Transfer is an Insider, the
Manager must (unless the requirements of clause 16.3(g) are met) forthwith upon a
notice being given under clause 16.3(a)(i) in respect of that Restricted Transfer or
notice being given under clause 16.3(a)(ii) in respect of that Restricted Transfer where
the change relates to a change in the nature of the consideration offered, commission
an Appraisal Report in the manner contemplated by paragraph 1.4.5 of Appendix 3 of
the Listing Rules.
The requirement for an Appraisal Report under clause 16.3(f) shall not apply if:
(i) all Transferors consent to waive that requirement; or
Pg. 37
(ii) a majority of the Disinterested Directors certify that in their opinion the cost and
difficulty of providing the Appraisal Report will outweigh the benefit, because
prospective Transferors are not at an information disadvantage in relation to
prospective Transferees and their Associated Persons or because the Appraisal
Report would not materially remedy any such information prejudice.
Notice to Comply: Any notice given under clauses 16.3(a)(i) and (a)(ii) must be
provided to the Supervisor in accordance with the time frames specified within those
clauses and additional market information must be provided as required by clause
16.3(i).
Restricted Transfer Status Report: If a Restricted Transfer is not completed within
three months of the date on which the required notice was given under clause
16.3(a)(i), or any status report given under this clause 16.3(i) then, before continuing
with the Restricted Transfer, additional market information on the status of the
Restricted Transfer must be provided to the Manager and NZX for release to the
market. The additional market information must include:
(i) when the Restricted Transfer is intended to be completed; and
(ii) details of the Transfer(s) that comprise the Restricted Transfer which has/have
not been completed.
Response to Restricted Transfer Status Report: On receipt of the information
provided under clause 16.3(i), the Manager shall promptly advise NZX:
(i) of any change in circumstances (and the implications of the change) which
would affect the continuing relevance and currency of any Appraisal Report or
the response initially provided under clause 16.3(d); and
(ii) that the Manager is complying with Listing Rule 3.1.
16.4 Additional requirements
Subject to clause 16.5, no Restricted Transfer of Quoted Units may take place unless:
all Transfers involved in that Restricted Transfer are pursuant to:
(i) an offer in writing to all holders of Units of the class or classes which are the
subject of the Restricted Transfer, on the same terms; or
(ii) orders placed through a Trading Participant for execution in and through NZX’s
order matching market and in accordance with any applicable Listing Rules; and
those Transfers do not result from Differential Offers, other than differences which
arise from a change in the price of an on-market offer authorised under paragraph
(a)(ii) of this clause.
16.5 Exception from additional requirements
Clause 16.4 shall not apply to the extent that any departure from the requirements of that
clause is authorised by a resolution of each Affected Group (passed by an Ordinary
Resolution).
Pg. 38
Enforcement of Takeover Restrictions
17.1 Breach of restricted takeover provisions
In the event of a Default, the Manager may determine that in respect of any or all of the
Defaulter’s Units:
no vote may be cast in respect of the Defaulter’s Units on a poll (and any vote cast
shall be disregarded) while the Default is un-remedied; and/or
the Defaulter’s Units may be sold by the Manager in accordance with clause 17.2 but
this power may not be exercised:
(i) until one month after the Manager has given notice to the Defaulter (and if the
Defaulter is not the registered holder of the Defaulter’s Units, to the registered
holder) of its intention to exercise this power; and
(ii) if, during that month the Defaulter has remedied the Default (if capable of being
remedied), or has transferred the Defaulter’s Relevant Interest in the Defaulter’s
Units to a person who is not a Defaulter.
17.2 Sale of Defaulter’s Units
If the power of sale specified in clause 17.1(b) becomes exercisable and is exercised:
the Manager shall arrange for the sale of the Defaulter’s Units through the NZX Main
Board or in some other manner approved by NZX;
each holder of Defaulter’s Units is deemed to have authorised the Manager to act on
behalf of that holder in relation to the sale of the relevant Units, and to sign all
documents relating to such sale which may be required to give effect thereto;
the net proceeds of sale shall be held on trust by the Manager for, and paid (after
deduction of amounts referred to in sub-clause (d)) to holders of the relevant Units on
surrender of the certificate (if any) relating to the relevant Units; and
the Manager shall have a lien on the Defaulter’s Units for, and may deduct from the
proceeds of sale any costs of sale, and any costs to the Manager of determining
whether a person is a Defaulter and exercising powers permitted by this clause 17,
and any amounts which the Manager may choose to pay to members of any Affected
Group acting pursuant to clause 17.4 in reimbursement of expenses incurred by those
members.
17.3 Purchaser need not enquire
No purchaser or other person dealing with the Manager shall be concerned to enquire
whether the power of sale specified in clause 17.1(b) has become properly exercisable, or as
to the propriety or regularity of a sale made in purported exercise of that power, or as to the
application of the proceeds of sale received by the Manager. The receipt of the Manager is a
good discharge to the purchaser for the purchase price, and no question may be raised as to
the title of the purchaser to Units sold in purported exercise of the power of sale specified in
clause 17.1(b).
Pg. 39
17.4 Powers of Affected Group
The Manager shall, if so directed by an Ordinary Resolution of an Affected Group, exercise
the power referred to in clause 17.1(b), if that power has become exercisable. The holders
of 5% or more of the Units of an Affected Group may by notice to the Manager require the
Manager to convene a meeting of the Affected Group for the purpose of considering such a
resolution.
17.5 No liability to Defaulter
None of the Manager, the Supervisor, or any officer of the Manager or the Supervisor shall
be under any liability whatsoever to any Defaulter, any holder of Defaulter’s Units, or any
person whom the Manager believes to be a Defaulter or holder of Defaulter’s Units, for or in
connection with the exercise or purported exercise of the powers specified in this clause 17.
17.6 Remedies limited
The sole remedy of the Manager, the Supervisor, a Unit Holder or any other person, in
respect of a breach or alleged breach of clauses 16, 17 or 18, shall be to exercise, or require
the Manager to exercise, the powers referred to in clause 17.1. Without limiting the
preceding sentence, no person is entitled to seek any injunction or other remedy to prevent a
transaction alleged to be in breach of 16, 17 or 18. Nothing in this clause affects the
remedies of a Unit Holder against the Manager in respect of a breach of clauses 16, 17 or 18
by the Manager.
17.7 Voting restrictions
The Manager shall use reasonable endeavours to ascertain for the purposes of clause
17.1(a) whether any Units are Defaulter’s Units and, accordingly, whether a holder of those
Units is entitled to vote. If any Unit Holder, or NZX, alleges that any Units are Defaulter’s
Units, the Manager shall properly consider and investigate that allegation. The ruling of the
chairperson of any meeting as to whether any person is or is not entitled to vote at that
meeting pursuant to clause 17.1(a) shall, for the purposes of proceedings at that meeting, be
conclusive, and the proceedings of, or any resolution passed at, any meeting shall not be
impugned by reason of a breach of clause 17.1(a), but this provision shall not prejudice any
action which any person may have against any Unit Holder by reason of that holder having
cast a vote at any meeting in breach of clause 17.1(a).
17.8 Special Provisions as to Rulings
NZX (in this clause 17.8 an “Arbiter”) may, for the purposes of making a Ruling as to whether
any person is a Defaulter, give notice to any person who the Arbiter believes may be a
Defaulter. That notice shall:
set out in general terms the grounds on which the Arbiter believes that person to be a
Defaulter; and
require that person, within a reasonable time specified in the notice, to produce
evidence to rebut the Arbiter’s belief that that person is a Defaulter.
If the person to whom the notice is given fails within the time specified in that notice to
produce to the Arbiter evidence satisfactory to the Arbiter that that person is not a Defaulter,
then the Arbiter shall be entitled to assume without further evidence that that person is a
Defaulter, and to make a Ruling to that effect.
Pg. 40
Compulsory Acquisition Provisions
18.1 Acquisition Notice
A Majority Holder must, within 20 Business Days after becoming a Majority Holder, give an
Acquisition Notice to the Remaining Holders and at the same time to the Manager, the
Supervisor and NZX, specifying:
that the Majority Holder has beneficial ownership of 90% or more of the Affected Units;
and
either:
(i) that the Majority Holder intends to acquire all Affected Units held by the
Remaining Holders; or
(ii) that any Remaining Holder may require the Majority Holder to acquire the
Affected Units held by that Remaining Holder by giving notice to that effect to
the Majority Holder within one month after the date of the Acquisition Notice;
and
the consideration which the Majority Holder is prepared to provide for Affected Units.
18.2 Majority holders’ obligations
Upon giving an Acquisition Notice, the Majority Holder shall be entitled and bound:
if the Acquisition Notice contains the statement in clause 18.1(b)(i), to acquire all
Affected Units held by the Remaining Holders; or
if the Acquisition Notice contains the statement in clause 18.1(b)(ii), to acquire all
Affected Units held by Remaining Holders in respect of which the holder, within one
month after the date of the Acquisition Notice, gives notice requiring the Majority
Holder to acquire.
18.3 Consideration
The consideration to be provided for Affected Units which the Majority Holder is entitled and
bound to acquire shall be determined as follows:
The Acquisition Notice shall specify the consideration which the Majority Holder is
prepared to provide. The Majority Holder shall, before giving the Acquisition Notice,
provide to NZX a report from an Expert, confirming that that consideration is fair to the
Remaining Holders using the same criteria set out in clause 18.3(c)(iv);
If, within 10 Business Days after the date of the Acquisition Notice, the Manager
receives written objections to the consideration specified in the Acquisition Notice from
the holders of 10% or more of the Affected Units held by the Remaining Holders then
the consideration shall be determined in accordance with sub-clauses (c) and (d). If
objections are received, the Manager shall forthwith notify the Majority Holder, the
Supervisor and NZX of that fact. If such objections are not received, the consideration
shall be as specified in the Acquisition Notice;
Pg. 41
If objections of the nature referred to in sub-clause (b) are received by the Manager,
the consideration shall be determined by an Expert (acting as an expert and not as an
arbitrator) and shall in the opinion of such Expert be fair to the Remaining Holders.
The Expert shall:
(i) be appointed by the Disinterested Directors (if any, and otherwise by all
directors of the Manager) after approval by NZX;
(ii) be a different Expert from the one referred to in sub-clause (a);
(iii) be directed to provide a decision within 20 Business Days after being
appointed; and
(iv) be directed to determine the consideration on the basis that it is fair to the
Remaining Holders and is the pro-rated value of the Affected Units based on
the value of the Trust Fund as a whole and the rights and obligations attached
to those Affected Units without taking into account any strategic or hold out
value of the Affected Units or any other factors relating to the Remaining
Holders, the Majority Holder, their respective holdings in the Issuer or the
relative extent of those holdings; and
If the consideration determined by the Expert appointed in accordance with sub-clause
(c):
(i) is less than, or the same as, the consideration specified in the Acquisition
Notice, the fee and expenses of the Expert shall be borne by the Remaining
Holders who made the objections referred to in sub-clause (b) and the Majority
Holder shall deduct that amount from the consideration payable by the Majority
Holder to the objectors, in proportion to their holdings (and may, if the
consideration is not cash, deduct and sell sufficient of that consideration to
produce sufficient cash); and
(ii) is more than the consideration specified in the Acquisition Notice, the fee and
expenses of the Expert shall be borne by the Majority Holder.
18.4 Payment of consideration
The Majority Holder shall pay or provide to each holder of Affected Units which are to be
acquired the consideration for those Affected Units as follows:
within 12 Business Days after the Majority Holder becomes bound to acquire the
Affected Units; or
if the consideration is required to be determined in terms of clause 18.3, it shall be
paid or provided within 2 Business Days after it has been determined.
18.5 Holders who cannot be located
If any holder of Affected Units which are to be acquired cannot be located by the Majority
Holder, the Majority Holder shall pay or provide the consideration due to that holder to the
Manager. The Manager shall hold that consideration upon trust for that holder for a period of
five years from the date of its receipt by the Manager. Any consideration which is not claimed
by that holder within that period shall be forfeited by the Manager and paid to the Supervisor
for the benefit of the Trust. The Manager shall, nevertheless, annul the forfeiture and pay
Pg. 42
any such holder who subsequently produces evidence of entitlement. Clause 13.14 does
not apply to any such consideration.
18.6 Execution of transfers
Upon payment or provision by the Majority Holder of the consideration for Affected Units in
accordance with clauses 18.4 and 18.5, the Manager shall forthwith execute on behalf of all
the holders of those Affected Units transfers of those Affected Units in favour of the Majority
Holder or its nominee, and shall cause the name of the Majority Holder or its nominee to be
entered in the relevant register in respect of those Affected Units. If the Manager fails to
execute any such transfer, the Majority Holder may do so.
18.7 Consequences of default
If a Majority Holder fails to give an Acquisition Notice when required to do so by this clause
18, or, after having become bound to acquire the Affected Units of Remaining Holders in
accordance with the provisions of this clause 18, fails to do so, then the provisions of clauses
17.1 to 17.5 and 17.7 shall apply with the following modifications:
the Affected Units held by the Majority Holder shall be deemed to be Defaulter’s
Securities;
the failure to comply with this clause 18 shall be deemed to be a Default; and
the Remaining Holders shall be deemed to be an Affected Group.
Takeovers Code and Holding by Bare Trustee
19.1 Takeovers code
If the Takeovers Code becomes applicable to managed investment schemes, then clauses
16, 17 and 18, shall cease to apply with effect from the date upon which the Takeovers Code
becomes applicable to managed investment schemes.
19.2 Holding by bare trustee
For all purposes of clauses 16 to 18, and notwithstanding anything in clauses 16 to 18
or the Listing Rules:
(i) the transfer of Units, or of any interest in Units, to a bare trustee shall be
deemed to be a transfer to the person or persons for whom that bare trustee
holds those Units or that interest as trustee (the “Beneficial Owners”);
(ii) Units, or any interest in Units, held by a bare trustee shall be deemed to be held
by the Beneficial Owners; and
(iii) a trustee may be a bare trustee notwithstanding that that trustee is entitled as a
trustee to be remunerated out of the income or property of the relevant trust.
Without limiting clause 19.2(a):
Pg. 43
(i) a bare trustee and a Beneficial Owner shall not, by reason solely of their
relationship as bare trustee and Beneficial Owner, be Associated Persons;
(ii) a bare trustee of Units shall not, solely by reason of its position as bare trustee
for the Beneficial Owner, have a Relevant Interest in those Units; and
(iii) a Beneficial Owner of Units shall not have a Relevant Interest in the Units of
another Beneficial Owner solely because the same bare trustee acts as trustee
for both of those Beneficial Owners.
In the event of a Default, if any Quoted Units held by a person as bare trustee on
behalf of different Beneficial Owners include any Defaulter’s Units:
(i) the bare trustee shall, on request by the Manager or NZX, provide to the
Manager and NZX details of the Beneficial Owners of those Defaulter’s Units;
and
(ii) the Manager may at any time, and shall upon request by the bare trustee or any
Beneficial Owner, take appropriate steps to ensure that those Defaulter’s Units
are separately designated in the Register.
Remuneration of Supervisor
20.1 Supervisor’s Fees
The Supervisor shall be entitled to receive and retain for its own use and benefit out of the
Trust Fund, by way of remuneration for its services as Supervisor, the following fees:
in respect of each year, a fee determined on the basis previously agreed between the
Supervisor and the Manager calculated daily and paid monthly; and
in addition to the fees stipulated above, such fee for convening and attending
meetings of Unit Holders and in respect of any other non-routine or abnormal matters
as shall from time to time be agreed between the Manager and the Supervisor.
20.2 Fee on termination
On the termination of the Trust, the Supervisor shall be entitled to receive and retain for its
own use and benefit out the Trust Fund a reasonable fee agreed by the Manager and the
Supervisor and based on time spent by the Supervisor on matters relating to the termination
of the Trust.
20.3 Arbitration
If the Manager and the Supervisor shall fail to reach agreement on any amounts payable to
the Supervisor under this clause such difference or dispute shall be referred to a single
arbitrator if the parties can agree on one and otherwise to two arbitrators, one to be
appointed by the Manager and one by the Supervisor in accordance with and subject to the
provisions of the Arbitration Act 1996 and its amendments.
Pg. 44
20.4 GST
The Supervisor shall be entitled, to the extent that it is applicable, to receive goods and
services tax (as that term is defined in the Goods and Services Tax Act 1985), in addition to
the fees under clause 20.1 and 20.2.
20.5 Custodian Fees
If a Custodian is appointed, that Custodian shall be paid out of the Trust Fund remuneration
agreed between the Custodian and the Manager, and approved by the Supervisor.
Removal and Retirement of Supervisor
21.1 Removal
The Supervisor may be removed from office:
in the manner provided for in section 193 of the FMC Act; or
subject to section 193(2) of the FMC Act, (including, for the avoidance of doubt, the
requirement for the Manager to obtain the FMA’s consent) by the Manager if the
Supervisor shall have a receiver appointed or if an order is made or resolution passed
for the liquidation of the Supervisor or if the Supervisor otherwise becomes insolvent.
21.2 Retirement
The Supervisor may retire at any time without assigning any reason upon giving 90 days’
notice in writing to the Manager of its intention to do so, subject to the due appointment of a
new Supervisor and the transfer to such new Supervisor of all of the Investments and all
other property or assets of any nature of the Trust Fund.
21.3 Appointment of new Supervisor
The power of appointing a new Supervisor (in place of a Supervisor which has retired
pursuant to clause 21.2 or been removed from office pursuant to clause 21.1) shall be
vested in the Manager. No person shall be appointed as a new Supervisor unless licensed
under the Financial Markets Supervisors Act 2011. If the Manager fails or refuses to appoint
a new Supervisor, the new Supervisor may be appointed by a Special Resolution.
Remuneration of Manager
22.1 Maximum fee
The Manager may charge and shall be paid out of the Trust Fund, in respect of its
management services, the Base Fee, Activity Services Fees and Property Management
Services Fees pursuant to this clause 22, which, in aggregate, shall not exceed an amount
equal to 1.50% per annum of the Gross Value of the Trust Fund (the Maximum Fee). The
Maximum Fee will be assessed each Financial Year:
as at the last day of that Financial Year;
Pg. 45
in respect of the Base Fees and any Activity Services Fees and Property Management
Services Fees attributable to that Financial Year (regardless of when or whether they
have been demanded or paid); and
with reference to the Gross Value of the Trust Fund as at the last day of that Financial
Year.
In the event that, notwithstanding this clause 22.1, the aggregate of the Base Fee Activity
Services Fees and Property Management Services Fees paid to the Manager for a Financial
Year exceeds the Maximum Fee, the amount of that excess (the Excess) will be carried
forward into the following Financial Year such that the aggregate of the Excess (from the
prior Financial Year), and the Base Fee, Activity Services Fees and Property Management
Services Fees (for that next Financial Year), will not exceed the Maximum Fee.
22.2 Composition of fee
The Manager’s fee for performing the functions of manager contemplated by section 142 of
the FMC Act shall be comprised of:
in respect of each Financial Year, the Base Fee;
in respect of each Financial Year during which Activity Services are provided, Activity
Services Fees in respect of those Activity Services; and
in respect of each Financial Year during which Property Management Services are
provided, Property Management Services Fees in respect of those Property
Management Services.
22.3 Base Fee
The Manager’s Base Fee for a Financial Year will be equal to the Base Costs plus a
Margin. The Manager may, acting in good faith, apply different Margins to different
Base Costs. For example, but without limitation, the Manager may apply a different
Margin to Base Costs incurred in Australia to those incurred in New Zealand.
The Manager will charge a portion of its Base Fee on a monthly basis based on its
reasonably prepared budgeted Base Costs for the applicable Financial Year divided
by 12 plus the applicable Margin(s). If, during a Financial Year, the Manager makes
reasonable revisions to its budgeted Base Costs, the monthly Base Fee will be
amended accordingly. At the end of a Financial Year there will be an adjustment to
reflect any differences between budgeted Base Costs and actual Base Costs, with the
intention being that the Base Fee is calculated with reference to actual Base Costs.
22.4 Activity Services Fees
The Manager’s Activity Services Fees for a Financial Year will be equal to the Activity
Services Costs plus a Margin. The Manager may, acting in good faith, apply different
Margins to different Activity Services Costs. For example, but without limitation, the
Manager may apply a different Margin to Activity Services Costs incurred in Australia to
those incurred in New Zealand.
Pg. 46
22.5 Property Management Services Fees
Property Management Services Fees in respect of Property Management Services will be
calculated on the basis set out in Schedule 3.
22.6 Payment
The Base Fee, Activity Services Fees and Property Management Services Fees shall
be paid before the fifteenth day of the calendar month immediately following the
calendar month to which it relates.
The Manager may, subject to compliance with sections 172 to 175 of the FMC Act,
direct that all or any part of any fee payable to the Manager be paid:
(i) to any Related Company of the Manager which provides services related to the
Trust; and/or
(ii) by any Subsidiary, which payment shall be deemed to be a payment out of the
Trust Fund.
For clarity, this sub-clause (b) does not authorise the payment of any greater amount
in aggregate than is otherwise payable to the Manager under this Deed.
22.7 Additional provisions regarding Manager’s fees
For clarity, the Manager will be entitled to provide Third Party Services, and charge
fees and seek reimbursement for its expenses, from the parties it provides Third Party
Services to, with the intention of making a profit.
If, at any time, the Manager holds money surplus to its requirements for operating its
business (including its estimated future requirements over the next 12 months) the
Manager will pay that surplus money to the Supervisor for the benefit of the Trust, by
way of refund of the amounts received by the Manager under clause 25.4 or as a
distribution of any profit made by the Manager through the provision of services to
third parties, as contemplated by clause 22.7(a) (as applicable).
The Manager and the Supervisor may, at any time, agree a process for the provision
of funding support from the Trust Fund to the Manager (in addition to reimbursement
under clause 25.4), if and only to the extent such funding support is reasonably
required by the Manager to ensure the Manager is able to carry on its business in a
solvent manner, in accordance with the requirements under the Companies Act 1993.
22.8 GST
The Manager shall be entitled to receive, in addition to any fees payable pursuant to
clause22.7, any value added tax or duty or similar tax or duty payable in respect of such fee.
Removal and Retirement of Manager
23.1 Removal
The Manager shall cease to hold office as Manager of the Trust if removed or substituted in
accordance with the provisions of section 185 of the FMC Act. Subject to the FMC Act
Pg. 47
(including the Supervisor’s duty to act in the best interests of the Unit Holders), the
Supervisor shall, when deciding whether to exercise its powers of removal pursuant to
section 185(1)(a) of the FMC Act:
give written notice to the Manager specifying the reasons why the Supervisor
considers that it is in the best interests of Unit Holders that the Manager be removed;
allow the Manager 10 Business Days to respond; and
give due consideration to the Manager’s response before taking any further action.
23.2 Default by manager
Without limiting anything in clause 23.1, the Supervisor may, by notice to the Manager,
remove the Manager from office if:
the Manager is in breach of its obligations under this deed, and fails to remedy that
breach within 10 Business Days after notice from the Supervisor requiring the
Manager to do so; or
the Manager fails to carry out its duties to the satisfaction of the Supervisor; or
the Manager or Shareholder is in material breach of its obligations under the
Shareholding Deed or agrees to amend the Shareholding Deed or waive any breach
of the Shareholding Deed, without the prior written approval of the Supervisor; or
the Manager is wound up (except for the purposes of an amalgamation or
reconstruction while solvent) or a receiver is appointed in respect of the Manager.
23.3 Cessation of activities
If the Manager ceases to hold office pursuant to clauses 23.1, 23.2 or 23.4, the Manager
shall immediately desist from all activities related to the Trust, unless the Supervisor agrees
to the contrary. The Manager shall be entitled to all fees accrued to the date upon which it
ceases to hold office. If the Manager ceases to hold office on a day other than the last day of
a Financial Year the Manager’s entitlement to remuneration under clause 22.1 for the then
current period shall be calculated by reference to the date upon which it ceased to hold
office.
23.4 Retirement
The Manager may retire at any time without assigning any reason upon giving 90 days’
notice in writing, or such shorter period as the Supervisor approves, to the Supervisor of its
intention to do so. No such retirement shall take effect until a new Manager has been
appointed and has executed the deed referred to in clause 23.7.
23.5 Temporary Manager
The Supervisor shall have power in accordance with section 186 of the FMC Act to appoint
a temporary Manager of the Trust in place of a Manager which has retired or been removed
from office. The temporary Manager will continue in office until replaced by the Supervisor
under this clause or a new Manager is appointed under clause 23.6.
Pg. 48
23.6 Appointment of replacement
The Supervisor shall, upon a vacancy in the office of Manager occurring, summon a meeting
of Unit Holders at which the Unit Holders may by Ordinary Resolution appoint as new
Manager of the Trust:
a temporary manager appointed by the Supervisor pursuant to clause 23.5 or the FMC
Act; or
some other person licensed pursuant to the FMC Act.
The Supervisor will be empowered to take such steps as that meeting or any subsequent
meeting of Unit Holders may by Ordinary Resolution require to give effect to the appointment
of the new Manager.
23.7 Execution of deed
A new or temporary Manager appointed pursuant to the FMC Act or clause 23.6 shall
forthwith upon such appointment execute a deed in such form as the Supervisor may require
whereby the new or temporary Manager undertakes to the Supervisor and the Unit Holders
to be bound by all the covenants on the part of the Manager under this deed from the date of
such appointment. On and from such date the retiring Manager shall be absolved and
released from all such covenants (except in respect of any prior breach of this deed) and the
new or temporary Manager shall exercise all the powers and enjoy and exercise all the rights
and shall be subject to all the duties and obligations of the Manager in all respects as if such
new or temporary Manager had been originally named as a party to this deed.
Borrowing, Guarantees and Security
24.1 Supervisor’s powers
The Supervisor shall have power, if so directed by the Manager pursuant to clause 24.2 to:
Borrow, subject to clause 24.3;
enter into or become liable under any guarantee, underwrite, indemnity or similar
arrangement with respect to the obligations of any Person, whether or not wholly
owned by the Trust (guarantee); and
enter into any arrangement in such manner as the Manager sees fit (security) which
has the effect of granting security to any Person over all or any part or parts of the
Trust Fund to secure any or all liabilities or obligations (including obligations under (b)
above) incurred or undertaken by the Supervisor for the purposes of the Trust.
24.2 Manager to direct Supervisor
The Manager may, subject to clause 24.3, by notice in writing to the Supervisor require the
Supervisor to Borrow, give a guarantee or security in such manner as the Manager thinks fit.
Any such notice shall specify such details concerning the Borrowing, guarantee or security
as the Supervisor may reasonably request.
Pg. 49
24.3 Limitation
The Supervisor shall on receipt of a direction by the Manager pursuant to clause 24.2 take
all necessary steps to give effect to that direction provided however that:
no Borrowing shall be made if the effect of that Borrowing would be that immediately
after that Borrowing the total of money Borrowed by the Supervisor on behalf of the
Trust Fund and outstanding would exceed 50% of the gross value of the Trust Fund at
that date (calculated in accordance with paragraph (b) of the definition of “Gross Value
of the Trust Fund” and taking into account the proceeds of the Borrowing); and
the Supervisor shall not be required to execute any agreement, or other document in
respect of any Borrowing, guarantee or security if the Supervisor considers it should
not comply with such direction, or, which, in the opinion of the Supervisor, would
render the Supervisor personally liable in respect of such Borrowing, guarantee or
security, and unless the liability of the Supervisor thereunder is to the satisfaction of
the Supervisor limited to the assets for the time being of the Trust
24.4 Lender need not enquire
No person lending money to or otherwise dealing with the Supervisor shall be bound to
inquire as to whether the limit in clause 24.3(a) has been exceeded, and no breach of such
limit shall affect the validity or enforceability of any loan or any other transaction.
Supervisor’s and Manager’s Liabilities and Indemnities
25.1 No personal liability for Trust’s debts
The Supervisor and the Manager, in incurring any debts, liabilities or obligations, or in taking
or omitting any other action for or in connection with the affairs of the Trust, are each, and
shall each be deemed to be, acting for and on behalf of the Trust and not in their own
respective capacities. Neither the Supervisor nor the Manager shall be under any personal
liability, nor shall resort be had to their private property, for the satisfaction of any obligation
or claim arising out of or in connection with any contract or other obligation of the Trust, but
the Trust Fund only shall be liable or subject to levy or execution.
25.2 Indemnity
If contrary to clause 25.1 either the Supervisor or the Manager is held personally liable to
any other Person in respect of any debt, liability or obligation incurred by or on behalf of the
Trust or any action taken or omitted in connection with the Trust, then (subject to clauses
25.3 and 25.6) the Supervisor or the Manager (as the case may be) shall be entitled to
indemnity and reimbursement out of the Trust Fund to the full extent of such liability and the
costs of any litigation or other proceedings in which such liability shall have been determined
including, without limitation, legal fees and disbursements. The Manager shall, in
consultation with the Auditor, determine whether any such amount should be charged
against Gross Income or capital.
25.3 Liability for breach of trust or default
The Supervisor and the Manager shall each be liable to the Trust Fund for any loss arising
out of wilful default or wilful breach of trust but subject thereto neither the Supervisor nor the
Manager shall be liable to the Trust Fund or to any Unit Holder for any act or omission or be
Pg. 50
subject to any liability whatsoever at law or in equity in connection with the affairs of the
Trust or as a result of acting as Supervisor or Manager (as the case may be) under this
deed.
25.4 Reimbursement of expenses
Subject to clause 25.6, the Supervisor and the Manager shall each be entitled to be
reimbursed, and may reimburse themselves, out of the Trust Fund for all expenses, costs or
liabilities incurred by them or their Related Companies respectively in or about acting as
Supervisor or Manager (as the case may be) under this deed. Without prejudice to the
generality of the foregoing, the Supervisor and the Manager shall be entitled to be
indemnified against:
all costs, charges, disbursements and expenses incurred in connection with the
investigation, negotiation, acquisition, registration, custody and the appointment and
remuneration of a Custodian, disposal of or other dealing with an Authorised
Investment, including, without limitation, commission, bank charges and stamp duty;
all income tax, capital gains tax, stamp duties, and all other duty, tax or impost
properly charged to or payable by the Supervisor or Manager (whether by any trading
authority or any other person) in connection with and for the account of the Trust;
interest on Borrowings, discounts and acceptance and other fees in respect of bill
facilities;
costs of postage in respect of all cheques, accounts, Certificates, distribution
statements, notices, reports and other documents sent to all or any Unit Holders in
accordance with the provisions of this deed;
costs of convening and holding any meeting of Unit Holders;
all costs, fees and expenses incurred in respect of the appointment and engagement
of the Directors, including (without limitation):
(i) director fees for the Directors;
(ii) associated insurance premiums for the Directors;
(iii) costs in connection with attendance at meetings (including associated travel
and accommodation costs); and
(iv) costs incurred in indemnifying the Directors in accordance with the constitution
of the Manager;
costs of preparing and printing cheques, accounts, Certificates, distribution
statements, notices, reports and other documents required to be prepared in
connection with the Trust, pursuant to this deed, the rules or requirements of any
stock exchange on which the Units are listed, or any relevant law;
all costs, charges and expenses of and incidental to the preparation, execution and
stamping of this deed and any supplemental deeds, the preparation and registration of
any product disclosure statement or register entry, the acquisition, registration,
custody and the appointment and remuneration of a Custodian, disposal or other
dealing with Investments, including bank charges and stamp duty, and the expenses
of any agents or nominated company of the Supervisor or the manager but excluding
Pg. 51
any incidental expense which is not an out-of-pocket expense or disbursement
incurred (by deduction or otherwise) by the Manager or the Supervisor;
fees and expenses of any valuer, auditor, solicitor, barrister, property manager, agent
or consultant, computer expert or other expert from time to time engaged by the
Manager or by the Supervisor in the discharge of their respective duties and exercise
of powers under this deed;
expenses in connection with the establishment and maintenance of accounting
systems and the keeping of accounting records and the Register;
all costs, charges and expenses incurred in the advertising and promotion of the Trust;
all costs, charges and expenses incurred in connection with or which are incidental to
the application for the listing of the Units on any stock exchange and the costs of the
maintenance of such listing,
any expense or liability which may be incurred by the Supervisor or the Manager (as
the case may be) in bringing or defending any action or suit in the Trust or the
provisions of this deed; and
all costs or expenses of any nature (including without limitation amounts payable to
contractors and professional consultants) in respect of the acquisition of any Land;
the cost of the preparation and lodgement of returns pursuant to any law;
all costs, fees, disbursements and expenses incurred by the Manager in connection
with the appointment and remuneration of the Shareholder (including, without
limitation, any costs associated with providing directions to the Shareholder in
accordance with the Shareholding Deed, and the costs of removing and replacing the
Shareholder);
any other costs, expenses and disbursements properly and reasonably incurred by a
member of the Manager Group in connection with carrying out its duties under this
deed and incidental to the management of the Trust, including (without limitation) in
relation to:
(i) the employment and remuneration of any employee or independent contractor
of a member of the Manager Group;
(ii) travel and accommodation; and
(iii) communications and administration; and
any other expenses properly and reasonably incurred by the Supervisor in connection
with carrying out its duties under this deed.
All such items (other than those referred to in sub-paragraph (m)) shall unless the Manager
determines otherwise, be chargeable against the Gross Income.
The Supervisor or the Manager may at any time elect not to seek reimbursement from the
Trust Fund for any expense, cost or liability without prejudicing the right of the Supervisor or
the Manager to be reimbursed for any other expense, cost or liability (whether or not of a
similar nature).
Pg. 52
25.5 Further provisions relating to liability
Without prejudice to the generality of clauses 25.1 to 25.4, and subject always to clauses
25.9 and 25.10:
the Supervisor shall not, subject to the provisions of the Trustee Act 1956, be
responsible for any loss incurred as a result of any act, omission, deceit, neglect,
mistake, or default of the Manager or any agent of the Manager nor shall the
Supervisor be responsible to check any information, document, form or list supplied to
it by the Manager except to the extent that the loss is attributable to the Supervisor’s
own gross negligence or wilful default;
the Manager shall not be responsible for any loss incurred as a result of any act,
deceit, neglect, mistake, or default of the Supervisor or any agent of the Supervisor
nor shall the Manager be responsible to check any information, document, form or list
supplied to it by the Supervisor;
the Supervisor and the Manager may each act upon the opinion or advice of, or upon
statements of or information in relation to the Trust obtained from, any solicitor,
barrister, banker, accountant, broker, valuer or other Person believed by the
Supervisor or the Manager to be expert in relation to the matters on which advice was
obtained, and neither the Supervisor nor the Manager shall be liable for anything done
or suffered by it in good faith in reliance upon such opinion, advice, statements or
information;
whenever pursuant to any provision of this deed any certificate, notice, direction or
other communication is to be given by the Manager to the Supervisor, the Supervisor
may accept as sufficient evidence thereof a document signed on behalf of the
Manager by any director, secretary, officer or responsible employee of the Manager or
by any other Person or Persons appearing to be authorised by the Manager;
except insofar as otherwise expressly provided, the Manager and the Supervisor as
regards all the trusts, powers authorities and discretions vested in each of them by this
deed have absolute and uncontrolled discretion as to their exercise whether in relation
to the manner or as to the mode of or time for their exercise;
subject to the provisions of this deed and to applicable law, nothing in this deed is
deemed to prohibit the Supervisor or any Related Company of the Supervisor or any
shareholder or officer of either (in this clause included in the expression “the
Supervisor”) from being a Unit Holder or from acting in any representative capacity for
a Unit Holder and in particular and without prejudice to the generality of the foregoing
from acting on its own account or as executor, administrator, Supervisor, receiver,
attorney or agent or in any other fiduciary, vicarious or other professional capacity. Nor
shall the acting in any such capacity be deemed a breach of any of the obligations
arising out of the fiduciary relationship between the Supervisor and the Manager on
the one hand or the Supervisor and the Unit Holders on the other established by this
deed or otherwise imposed or implied by law. The Supervisor shall not by reason of its
fiduciary capacity be in any way precluded from making any contract or entering into
any transaction with the Manager, or with itself as Supervisor, in the ordinary course of
the business of the Supervisor or from undertaking any banking, financial or agency
services for the Manager or for itself as Supervisor. Without prejudice to the generality
of these provisions such contracts and transactions include any contract or transaction
in relation to the subscription or placing of, or any dealing with, any stock, shares,
debenture stock, debentures or other security of the Manager or of any other company
in which any of them is interested and include the acceptance of any office of profit
from the Manager or any contract of loan or deposit or other contract or transaction
which any Person (not being the Supervisor) could or might have entered into with the
Pg. 53
Manager or any such other company or with itself as Supervisor including the
customary share of brokerage and usual banker’s profit. The Supervisor shall not be
accountable either to the Manager, any such other Person or the Unit Holders for any
profits arising from any such contracts, transactions or offices; and
the Supervisor shall be at liberty to deposit all documents evidencing any Investments,
or evidencing title to any Investments, with any Person considered by the Supervisor
to be of good repute and the Supervisor shall not be responsible for any loss incurred
by the Trust Fund as a result of any such documents being held by any such Person.
25.6 Limitation of indemnity
The indemnities in clause 25.2 and 25.4 are available to the Manager and the Supervisor
only in relation to the proper performance of the duties of the Manager and Supervisor under
sections 143(1), 144, 153(1) and 154 of the FMC Act.
25.7 Unit Holders recourse to Trust Fund
Notwithstanding anything contained in this deed, except in the case of fraud or of dishonesty
or unless the Supervisor has failed to show the degree of care and diligence required of a
Supervisor having regard to the powers, authorities and discretions conferred on the
Supervisor by this deed and by the Trusts Act 2019, in no event is the Supervisor bound to
make any payment to Unit Holders except out of the Trust or be liable to the Unit Holders to
any greater extent than the Investments vested in or received by the Supervisor in
accordance with this deed.
25.8 Reliance on documents
Neither the Manager nor the Supervisor is liable for any action taken or thing suffered by the
Manager or Supervisor in reliance upon any document or writing of any type reasonably
believed by the Manager or the Supervisor to be genuine.
25.9 Supervisor’s duty of care
Nothing in this deed limits the Supervisor’s duty of care, diligence and skill under section 154
of the FMC Act in carrying out its duties under this deed or prevents or restricts any
determination as to whether there has been a breach of trust or affects the operation of the
provisions of any statute prescribing the circumstances under which the Supervisor may
obtain relief from breach of trust.
25.10 No exemption for breach of trust
No provision of clauses 25.1 to 25.5 shall have the effect of exempting the Supervisor or
Manager or any director or officer of the Supervisor or Manager from, or indemnifying any
such Person against, any liability for breach of trust where the requisite degree of care,
diligence and skill has not been shown, having regard to the provisions of this deed and the
powers, authorities and discretions conferred hereby.
25.11 Investment Manager indemnity
If an investment manager is appointed in respect of the Trust, the Manager may, in the
contract between the investment manager and the Manager, provide for the investment
manager to be indemnified out of the Trust Fund for liabilities or expenses incurred in
relation to the performance of the investment manager’s contracted functions, but only in
Pg. 54
relation to the proper performance of the investment manager’s duty under section 144 of
the FMC Act.
25.12 Additional Manager entitlements
In addition to the entitlements to reimbursement and indemnity under clauses 25.2 and 25.4,
the Manager is entitled to:
seek and obtain, in accordance with a process from time to time agreed with the
Supervisor, including (without limitation), as to accounting, verification, receipting and
invoicing and in lieu of reimbursement under clauses 25.2 and 25.4, funds from the
property or assets of the Trust Fund to enable the Manager to meet the Manager
Group’s costs, charges, disbursements, expenses and liabilities as they fall due and to
ensure that each member of the Manager Group is able to carry on business in a
solvent manner;
pay and obtain reimbursement of, and shall take all responsibility for approving, such
amounts (whether in the nature of remuneration, reimbursement of expenses,
payments due on any indemnification or otherwise) as are from time to time payable
by the Manager to the Shareholder under the Shareholding Deed; and
in the event that the Manager ceases to hold office as manager of the Trust, all costs,
charges, disbursements and expenses incurred by the Manager Group in facilitating
an orderly wind-up or dissolution of its activities,
and the Supervisor shall be entitled to (but shall not be required to) enquire as to or verify or
approve, the payment of any such amounts.
25.13 Payments due to Shareholder under Shareholding Deed
If the Manager does not pay to the Shareholder any amount payable by the Manager to the
Shareholder under the Shareholding Deed, the Supervisor shall, on being satisfied that any
such amount is properly payable to the Shareholder under the Shareholding Deed, pay that
amount to the Shareholder from the Trust Fund.
Supervisor’s Powers and Covenants
26.1 Supervisor’s Powers
The Supervisor shall have the power to settle and complete all transactions in respect of the
Trust. Subject to the provisions in this deed and the powers, rights and discretions given to
the Manager by this deed, the Supervisor shall have all powers, authorities, and discretions
which it could exercise if it were the absolute and beneficial owner of the Trust Fund and all
the powers, authorities, and discretions necessary to enable it to carry out the purposes of
the Trust or otherwise to perform and comply with the obligations and duties under this deed.
26.2 Waivers and applications to court
The Supervisor may whenever it thinks expedient in the interest of the Unit Holders exercise
any of the following powers:
To waive at any time and on any terms or conditions any breach of the covenants or
obligations binding on the Manager under this deed where such waiver will not, in the
Pg. 55
opinion of the Supervisor, have a material adverse effect on the interests of the Unit
Holders; and
To apply to the Court for directions in relation to any question and assent to and
approve of or oppose any application to the Court made by or at the instance of the
Manager or any Unit Holder.
26.3 Supervisor’s covenants
The Supervisor covenants with the Manager (with the intent that the benefit of such covenant
shall enure not only to the Manager but to the Unit Holders jointly and to each of them
severally) that:
the Supervisor has power to act continuously as trustee under the trusts herein set
forth and will not do or cause to be done or omit to do any act, matter or thing which
would or might cause it to be disqualified from acting as trustee under this deed or
which might prevent it from so acting and will act continuously as trustee under the
trusts herein set forth until such trusts are determined as herein provided or until it has
retired or been removed from office;
the Supervisor will exercise due diligence in carrying out its functions and duties
hereunder;
the Supervisor will ensure that any documents of title relating to the Investments are
held in safe custody;
the Supervisor will keep the Trust Fund separate from all other assets, investments
and other property vested in or held by the Supervisor;
except as herein provided or as authorised by law the Supervisor will not sell,
mortgage, charge or otherwise part with the possession or ownership of any of the
Investments; and
the Supervisor without delay will forward to the Manager all notices and other
information relevant to the Manager and received by or on behalf of the Supervisor in
connection with the Trust Fund.
26.4 Supervisor’s right to appoint Valuer
The Supervisor shall be entitled at any time to appoint an independent valuer to value, at the
expense of the Trust, the Assets.
26.5 Supervisor’s power to remove Shareholder
The Supervisor shall have the power to remove the Shareholder if:
(i) the Shareholder or the Manager is in material breach of their respective
obligations under the Shareholding Deed; and
(ii) the Shareholder or the Manager (as the case may be) has failed to remedy that
breach in accordance with its obligations under the Shareholding Deed; and
(iii) the Manager has not removed the Shareholder (or communicated its intention
to do so to the Supervisor).
Pg. 56
If the Supervisor removes the Shareholder pursuant to clause 26.5(a), the Supervisor
must appoint a replacement shareholder, provided that the replacement shareholder
satisfies the requirements set out in clause 27.6(a).
26.6 Other
In addition to the matters recorded above, the Supervisor has the functions, duties, and
powers recorded in sections 152 to 155 of the FMC Act.
Manager’s Powers, Duties and Covenants
27.1 Manager’s powers of management
The Trust shall be managed by the Manager (with full power to delegate to its officers, and
employees all acts, matters and things whether or not requiring or involving the Manager’s
judgement or discretion) which hereby agrees to carry out and perform the duties and
obligations on its part contained in this deed during the period of the Trust. The Manager
shall have the functions recorded in section 142 of the FMC Act and this deed, and all
powers, authorities, and discretions set out in the FMC Act or necessary to enable it to carry
out the purposes of the Trust or otherwise to perform and comply with the obligations and
duties under this deed. Nothing contained in this deed shall be construed to prevent the
Manager and the Supervisor in conjunction or the Manager or the Supervisor separately
from establishing or acting as manager or trustee for trusts whether of a nature similar to or
different from the trusts of this deed.
27.2 Manager’s duty
The Manager shall have the duties set out in sections 143 to 151 of the FMC Act.
27.3 Appointment of agents
Without in any way affecting the generality of the foregoing, or without in any way releasing
the Manager from its obligations under this deed, but subject to section 146 of the FMC Act,
the Manager may in carrying out and performing its duties and obligations:
by Power of Attorney appoint any Person to be the attorney or agent of the Manager
for such purposes and with such powers, authorities and discretions (not exceeding
those vested in the Manager) as it thinks fit with power for the attorney or agent to
sub-delegate any such powers, authorities or discretions; and
appoint by writing or otherwise any Person to be an agent or sub-manager in respect
of the Trust or the investments or any part thereof, and confer upon and delegate to
such Person all or any of the powers, authorities or discretions of the Manager under
this deed or in respect of the Trust (including power for such Person to sub-delegate).
Any such appointment shall be upon such terms as the Manager may in its discretion
determine, and the Manager may enter into agreements or deeds on such terms as it
determines recording terms of any such appointment.
27.4 Manager may engage related persons
The Manager may, subject to the Listing Rules and sections 146 and 172 to 175 of the FMC
Act, on behalf of the Trust engage any Person who is a Related Company of the Manager, or
who is otherwise associated with the Manager, to provide services to the Trust (including,
Pg. 57
without limitation, as a property manager, agent or consultant) provided that the fees to be
charged do not exceed then prevailing market rates.
27.5 Additional Services
The Manager may be engaged on behalf of the Trust to provide Additional Services,
being services that are additional to those contemplated by section 142 of the FMC
Act as set out in Schedule 1. If it is engaged to provide an Additional Service, the
Manager will be paid an Additional Services Cost in respect of that service.
Additional Services Costs will be paid before the fifteenth day of the calendar month
immediately following the calendar month to which it relates.
27.6 Appointment of Shareholder
Without limiting the generality of clause 27.1, the Manager shall have the power to:
appoint, remove and replace a shareholder of the Manager, provided that no person
may be appointed as shareholder:
(i) unless that person holds all requisite licences and authorisations to act in such
capacity in accordance with applicable laws, and enters into a Shareholding
Deed; or
(ii) unless the Manager holds a relevant exemption from the relevant restrictions in
the FMC Act and the Supervisor consents in writing, if that appointment would
cause the Manager and the Supervisor to be “associated persons” (as that term
is defined in the FMC Act); or
(iii) unless the Manager holds a relevant exemption from the relevant restrictions in
the FMC Act and the Supervisor consents in writing, if that person is
“associated” (as that term is defined in the FMC Act) with the Manager; and
execute, on behalf of a retiring Shareholder, a share transfer form transferring the
Manager Shares from the retiring Shareholder to a replacement shareholder of the
Manager.
The Manager will provide the Supervisor with prior written notice of any change.
27.7 Information to Supervisor
The Manager shall:
make available or provide to the Supervisor the documents, records or reports which
the Manager is required to provide under sections 147 and 148 of the FMC Act
(including the quarterly report relating to related party transaction certificates required
by section 147 of the FMC Act); and
give to the Supervisor a copy of each report commissioned under clause 16.3(f).
Pg. 58
27.8 Maintaining listing
Subject to any resolution to the contrary passed at a meeting of Unit Holders, the Manager
shall use its best endeavours to maintain the Quotation of the Units on the NZX Main Board.
27.9 Voting rights
Except as otherwise expressly provided in this deed and subject to the provisions of the
Trustee Act 1956 all rights of voting conferred by the Investments shall be exercised in such
manner as the Manager may determine. The Supervisor shall from time to time execute and
deliver or cause to be executed or delivered to the Manager or its nominee such proxies or
powers of attorney as the Manager may request. Neither the Manager nor the Supervisor
shall be under any liability or responsibility in respect of the management of any company or
body nor in respect of any vote or action taken or consent given by the Supervisor or the
Manager. Neither the Supervisor nor the Manager nor the holder of any proxy or power of
attorney given by the Supervisor or the Manager shall incur any liability or responsibility by
reason of any error of law or mistake of fact or any matter or thing done or omitted or
approval given or withheld by the Supervisor or the Manager or by the holder of such proxy
or power of attorney and neither the Supervisor or the Manager shall be under no obligation
to anyone with respect to any action taken or caused to be taken or omitted by the Manager
or by any such holder of a proxy or power of attorney except to the extent that such
obligation may be attributable to the Supervisor’s or the Manager’s (as the case may be)
own negligent or wilful act or default.
27.10 Manager’s covenants
Without limiting any duty or obligation of the Manager elsewhere in this deed, the Manager
covenants with the Supervisor (with the intent that the benefit of such covenant shall enure
not only to the Supervisor but to the Unit Holders jointly and to each of them severally) that:
the Manager will pay to the Supervisor or a person contracted under clause 3.6, within
7 days after their receipt by the Manager, any moneys that under this deed, are
payable by the Manager to the Supervisor;
the Manager will prepare or cause to be prepared all distributions, cheques and
notices which are to be issued pursuant to this deed and stamp them as required by
law and produce them to the Supervisor or a person authorised by the Supervisor for
this purpose so as to afford the Supervisor or such authorised person reasonable time
to examine and check the same and to sign those cheques for despatch on the day on
which they ought to be despatched, and the Supervisor may rely on the report of the
Auditor or the Manager given in respect of the accuracy of the particulars of such
cheques if such reliance is based upon a reasonable belief that the report is genuine;
the Manager will pay all moneys belonging to the Trust coming to the hands of the
Manager to the Supervisor;
the Manager will retain in safe keeping all applications for Units and instruments of
transfer and transmission, or copies or reproductions thereof, and will make those
documents available for inspection by or on behalf of the Supervisor at any time
during normal business hours, but on the expiration of 7 years from the date of any
such document the Manager may in its discretion (subject to any law to the contrary
(including without limitation the FMC Act) and first obtaining the Supervisor’s approval)
destroy such documents;
Pg. 59
the Manager without delay will forward to the Supervisor all notices and other
information relevant to the Supervisor and received by or on behalf of the Manager in
connection with the Trust Fund;
the Manager will consult with the Supervisor in relation to the preparation of, or
amendment to, any product disclosure statement or register entry relating to offering
Units, provided that such consultation shall in no way affect the liability of the Manager
for any omissions or misstatements under the FMC Act;
unless the Supervisor in writing is satisfied with reference to particular part of the
Investments that insurance is unnecessary or commercially undesirable having regard
to the risk and cost involved, the Manager will at all times insure and keep insured
against loss or damage by fire, war, earthquake and such other risks as shall be
commercially desirable (including public risk and property damage) to insure against in
an office or offices to be nominated by the Manager and approved by the Supervisor
(such approval not to be unreasonably withheld) all of the Investments which are of an
insurable nature in such manner and to such extent as is prudent in accordance with
the best commercial practice having regard to the premium payable and the risk
involved and at all times duly and punctually pay all premiums and other sums (if any)
payable in respect thereof and when so required by the Supervisor produce to the
Supervisor all receipts for the same. All such insurances shall be effected in the name
of the Supervisor with the proceeds payable to the Supervisor. All moneys to be
received by virtue of any insurance as aforesaid shall be deemed to be part of the
Investments and shall be paid to the Supervisor;
the Manager will at the request of the Supervisor (which request shall only be made
when the Supervisor considers that special circumstances warrant such request and
so certifies in writing to the Manager) with all due expedition furnish (or cause to be
furnished directly by the Auditor) to the Supervisor a copy of the statements of
financial position and financial performance of the Trust Fund duly audited and made
up in the case of the statement of financial position at such date as may be required
by the Supervisor but being a date not less than twenty-one nor more than forty-two
days subsequent to the date of the request and in the case of the statement of
financial performance covering the period from the end of the immediately preceding
Financial Year or half year up to the date as at which audited statement of financial
position is made up together with all documents and reports required by the
Companies Act 1993 and/or the Financial Reporting Act to be annexed to or to
accompany such statements of financial position and financial performance as if the
Trust were a company (but with such adaptations as may be necessary) and duly
signed by the persons as would be required to sign the same by the Companies Act
1993 and/or the Financial Reporting Act (but with such adaptations as aforesaid)
together with a report of the Auditor stating whether or not the Manager has done or
omitted to do any act which in the opinion of the Auditor contravenes any of the
provisions of this deed;
the Manager will ensure that at all times the liability of the Supervisor in relation to any
contract or agreement or any Borrowing entered into by the Supervisor at the direction
of the Manager, is limited to the Investments; and
the Manager shall at all times comply with the FMC Act and other applicable law.
Pg. 60
Accounts and Auditor
28.1 Preparation of accounts
The Manager and the Supervisor shall, having regard to their separate functions and
obligations, keep or cause to be kept true and proper accounts of all sums of money
received and expended by or on behalf of the Trust and the matters in respect of
which such receipt and expenditure takes place and of the issue of Units and of all
other matters for which accounts should properly be kept.
The Manager shall, in particular, keep or cause to be kept such accounts and prepare
financial statements for the Trust as may be necessary to enable it to comply with its
obligations pursuant to the FMC Act and the Financial Reporting Act and such
accounts as may be necessary to ensure that moneys received, expended or
distributed by the Trust are credited or, as the case may be, debited to the appropriate
funds available for distribution to the Unit Holders and so as to ensure that the
entitlement of any Unit Holder to participate in the Trust Fund at any particular time
may readily be ascertained. The Manager and the Supervisor shall provide to each
other from time to time any information necessary for this purpose.
28.2 Semi-annual and annual accounts
The Manager shall cause to be prepared semi-annual accounts in respect of the Trust Fund
for each financial half-year and annual accounts in respect of the Trust Fund for each
Financial Year. The Manager shall in respect of the annual accounts comply with sections
460 to 461H of the FMC Act.
28.3 Records
The Manager shall keep or cause to be kept records of all sums of money paid in
accordance with clauses 25.2 and 25.4. The records kept by the Manager pursuant to this
clause shall contain such details as the Manager considers appropriate, having regard to its
obligations under this deed. The Supervisor may require the records to be audited by the
Auditor and reported on to the Supervisor on such terms as the Supervisor reasonably
requests.
28.4 Audit
The annual accounts prepared in accordance with clause 28.2 shall be audited by the
Auditor who shall report to the Manager and to the Supervisor in the terms set out in any
agreement referred to in clause 31.1.
28.5 Auditor’s rights to request information
The Auditor shall be entitled to require from the Manager and the Supervisor such
information, explanations, documents, certificates and accounts as the Auditor considers
necessary, and the Manager or the Supervisor (as the case may be) shall provide the same
to the Auditor.
28.6 Distribution of accounts
The Manager shall make available a copy of the annual accounts of the Trust Fund
together with the Auditor’s report, within three months after the end of the relevant
Pg. 61
Financial Year, to each Person who is a Unit Holder at the date upon which they are
made available, and also to each Person who was a Unit Holder on the date as at
which such accounts are made up, and shall send to the Supervisor a copy of those
annual accounts and the Auditor’s report within three months after the end of the
relevant Financial Year.
The Manager shall make available, by way of an announcement to NZX, a copy of the
semi-annual accounts of the Trust Fund, within three months after the end of the first
six months of each Financial Year, to each Person who is a Unit Holder at the date
upon which they are made available, and also to each Person who was a Unit Holder
on the date as at which such accounts are made up, and send to the Supervisor a
copy of the semi-annual accounts of the Trust Fund, within three months after the end
of the first six months of each Financial Year.
28.7 Announcements through NZX
The Manager shall cause an announcement to be made pursuant to the Listing Rules
through NZX:
before the release of each set of annual accounts and not later than 75 days after the
end of the Financial Year to which those accounts relate; and
before the release of each set of semi-annual accounts and not later than 75 days
after the end of the period to which those accounts relate.
28.8 Financial Reporting Act
The accounts to be prepared pursuant to this clause 28 shall be prepared in compliance with
the Financial Reporting Act.
28.9 Appointment of Auditor
The Manager shall after consultation with the Supervisor in accordance with clause 28.14
appoint an auditor or auditors of the Trust Fund and the Manager who shall be a person
qualified in terms of clause 28.12.
28.10 Removal and retirement of Auditor
The Auditor may at any time be removed from office by the Manager with the approval of the
Supervisor or by the Supervisor. The Auditor may retire upon the expiration of not less than
90 days’ notice in writing to the Supervisor.
28.11 Replacement Auditor
The power of appointing a new Auditor (in place of an Auditor which has been removed from
office or which has retired pursuant to clause 28.10) shall be vested in the Manager (with the
approval of the Supervisor, which will not be unreasonably withheld).
28.12 Qualification of Auditor
The Auditor must be a person qualified for appointment pursuant to section 461E of the FMC
Act.
Pg. 62
28.13 Remuneration of Auditor
The remuneration of the Auditor shall be fixed by the Manager and shall be paid out of the
Trust Fund.
28.14 Implied terms
The Manager shall to the extent relevant comply with the provisions implied in this deed by
regulation 84 and schedule 13 of the FMC Regulations.
Meetings of Unit Holders
29.1 Convening of meetings
The Manager shall summon a meeting of Unit Holders upon request made in accordance
with section 161(1) of the FMC Act.
29.2 Annual Meetings
The Manager shall convene an annual meeting of Unit Holders to be held no later than 6
months after the end of each Financial Year and no later than 15 months after the last
annual meeting for the purposes of tabling the annual financial statements for the most
recently completed Financial Year and considering any other business which may lawfully be
undertaken by the meeting.
29.3 Attendance
Unit Holders of all classes and holders of Convertible Obligations are entitled to attend
meetings of Unit Holders and to receive copies of all notices, reports and financial
statements issued generally to Unit Holders entitled to vote at meetings of Unit Holders but
are not entitled to vote at any such meeting unless the terms of the relevant Units or
Convertible Obligations so provide.
29.4 Meeting procedure
All meetings of Unit Holders shall be convened and held in accordance with the provisions
set out in Schedule 4. The provisions in Schedule 4 shall, subject to regulation 89(2) of the
FMC Regulations, prevail over schedule 11 of the FMC Regulations.
29.5 Interest Group meetings
A meeting of the Unit Holders in an Interest Group or an Affected Group (as that term is
defined in clause 16.1) may be called by the Manager at any time, and shall be called on the
written request of holders of Quoted Units carrying together not less than 5% of the votes
entitled to be exercised on any of the questions to be considered at the meeting of the group
in question. All the provisions of this deed relating to meetings of Unit Holders apply, with all
necessary modifications, to a meeting of an Interest Group or an Affected Group, except
that:
the necessary quorum is Unit Holders (or their Representatives) who hold no less than
25% of the value of the Units held by Unit Holders in the group or, if there is only one
Unit Holder in the group, that Unit Holder (or their Representative);
Pg. 63
if the Manager so elects, one meeting may be held of Unit Holders constituting more
than one group, so long as voting at that meeting is by way of a poll, and proper
arrangements are made to distinguish between the votes of members of each group;
and
any Unit Holder in the group, present in person or by Representative, may demand a
poll.
29.6 Unit Holder Participation
The chairperson of a meeting of Unit Holders must allow a reasonable opportunity for
Unit Holders at the meeting to question, discuss or comment on the management of
the Trust.
A resolution relating to the management of the Trust proposed by the Supervisor or
the Unit Holders at any meeting may be passed, but no such resolution shall be
binding on the Supervisor or the Manager.
Directors of the Manager
30.1 Principle
Unit Holders shall have the right to appoint and remove the directors of the Manager in
accordance with this clause 30.
30.2 Number of Directors
The number of Directors to hold office shall be fixed from time to time by the Board, provided
that the number of Directors must not at any time be less than three.
30.3 Shareholding Deed
The parties record that the Shareholding Deed provides that the Shareholder shall:
exercise its rights to appoint and remove Directors in accordance with the directions of
Unit Holders by Ordinary Resolution; and
not otherwise exercise a right to remove or appoint directors of the Manager.
30.4 Appointment by Board
The Board may appoint a person or persons as Director(s) (provided any such person is not
a person who sought election as a Director at the immediately preceding annual meeting and
at that meeting received more votes against than in favour of his or her election, or has
previously been removed as a Director under clause 30.10) to fill a causal vacancy or as an
addition to existing Directors.
30.5 Retirement by rotation
A Director must not hold office (without re-election) past the third annual meeting following
the Director’s appointment or three years, whichever is longer. However, a Director
Pg. 64
appointed by the Board pursuant to clause 30.4 must not hold office (without re-election)
past the next annual meeting following the Director’s appointment.
30.6 Persons eligible
No person shall be elected as a Director at an annual meeting other than:
a person appointed as a Director under clause 30.4;
a person retiring as a Director under clause 30.5; or
a person validly nominated as a Director under clause 30.8.
30.7 Independence
No person may be appointed by the Board under clause 30.4, or nominated under clause
30.8, unless the composition of the Board will, at all times, include at least two Directors who
can each be categorised as an “independent director” under the Listing Rules. The decision
of the Board in respect of that matter shall be final and conclusive.
30.8 Nominations
Any Unit Holder may nominate a person for election as a Director at an annual meeting.
Nominations must be accompanied by the consent of the person nominated, and be
received by the Manager before the closing date for nominations fixed by the Manager. The
Manager shall make an announcement to NZX, in respect of each annual meeting, of the
closing date for nominations and contact details for making nominations, not less than 10
Business Days before the closing date for nominations. The closing date for nominations
shall be fixed by the Manager, but shall be not more than two months before the date of the
annual meeting. Notice of every valid nomination received by the Manager before the
closing date shall be given by the Manager to Unit Holders together with, or as part of, the
notice of meeting.
30.9 Election procedure
If the number of persons eligible under clause 30.6 and seeking election at an annual
meeting is equal to or less than the number of Director vacancies available, any person who
receives more votes in favour than against shall be elected as a Director. If the number of
persons eligible under clause 30.6 and seeking election at an annual meeting is greater than
the number of Director vacancies available, the persons elected shall be those persons
corresponding to the number of vacancies available who receive the greatest number of
votes of Unit Holders in favour at the annual meeting.
30.10 Removal
Unit Holders may by Ordinary Resolution direct the removal from office of any Director.
30.11 Effect
If, in accordance with this clause 30, Unit Holders vote to elect any person as a Director, or
to remove any person from office as a Director, the Manager shall direct the Shareholder to
appoint or remove that person as a Director in accordance with the Shareholding Deed.
Pg. 65
30.12 Resolutions
The Manager will cause resolutions to be put to Unit Holders, to be considered as Ordinary
Resolutions, at each Annual Meeting:
to direct the Shareholder to reappoint as a Director any person who is required to
retire at the time of that Annual General Meting and who wishes to be re-appointed, in
accordance with clause 30.5; and
to direct the Shareholder to appoint as a Director any person who is nominated as a
Director in accordance with clause 30.8.
Reporting to Supervisor
31.1 Reporting
The Manager shall provide, or cause to be provided, to the Supervisor the reports provided
for in any agreement between the Manager and the Supervisor from time to time.
Amendments to Deed
32.1 Authority to amend
This deed may be amended by a deed signed by the Manager and the Supervisor if the
amendment is authorised pursuant to section 139 of the FMC Act, or by a deed signed by
the Manager if the amendment is authorised pursuant to section 140 of the FMC Act.
32.2 Notice of amendments
In addition to its requirements under section 141 of the FMC Act, the Manager shall, each
time it makes the annual accounts available to Unit Holders in accordance with clause 28.6,
also give notice to the Unit Holders of all amendments to this deed (if any) which have been
made since the date of the last such notification. The Manager may give that notice by
making the amendments available on a website of the Manager or the Trust, and by notifying
Unit Holders that amendments have been made, and may be viewed on that website.
Winding Up
33.1 Period of trust
The Trust shall determine and be wound up upon the occurrence of the earliest of the
following dates:
the date on which the Manager certifies in writing that in the opinion of the Manager it
is in the interests of Unit Holders that the Trust should be wound up;
the date on which a Special Resolution is passed resolving to wind up the Trust;
the date on which the Trust is wound up by operation of law; or
Pg. 66
two months after the date on which the office of Supervisor becomes vacant, if a new
Supervisor is not appointed in accordance with clause 21.3 within that period,
or if the High Court orders that the Trust be wound up under section 211 of the FMC Act.
33.2 Perpetuity period
The perpetuity period for the purposes of the Perpetuities Act 1964 is the period
commencing on the 10 February 1994 and ending on 10 February 2074. Notwithstanding
any other provision of this deed, no Units may be issued or redeemed after 10 February
2074, unless that issue or redemption would not offend the rule against perpetuities, or any
other rule or law of equity. The specification of a perpetuity period in this clause 33.2 does
not require the termination of the Trust on 10 February 2074 or limit its life to 80 years.
33.3 Notice of distribution
The Supervisor shall within 14 days after the occurrence of any event referred to in clause
33.1, give to each Unit Holder notice of the occurrence of that event and of the intention of
the Supervisor to distribute the Trust Fund.
33.4 Conversion to cash
The Supervisor shall as soon as practicable after the occurrence of an event referred to in
clause 33.1:
sell, call in and convert into Cash the whole of the Trust Fund;
pay out, discharge, or otherwise make proper provision for all liabilities of the Trust
Fund (including any contingent liabilities);
subject to clause 13.13, distribute all undistributed Net Income then existing to the Unit
Holders in accordance with their rights to such Net Income; and
subject to clause 13.13, distribute the remainder of the Trust Fund (less all costs and
expenses incurred by the Supervisor or the Manager in respect of the winding up of
the Trust) amongst the Unit Holders in proportion to the numbers of Units held by
them, subject to the particular rights of any Unit Holders to participate in any such
distribution including in particular the rights attaching to unpaid or partly paid Units and
other Units with special rights.
33.5 Compliance with FMC Act
The Supervisor shall in respect of any winding up of the Trust comply with sections 212 and
213 of the FMC Act.
Notices
34.1 Form and deemed delivery
Any notice, communication or other information (a “notice”) required by this deed to
be given to any Unit Holder by the Manager shall be in writing and, subject to any
election made by a Unit Holder pursuant to clause 34.1(b), shall be given:
Pg. 67
(i) in the case of the following notices, by electronic means to the electronic
address of the Unit Holder on the Register:
(A) the annual accounts of the Trust Fund, together with the Auditor’s report,
distributed by the Manager pursuant to clause 28.6(a);
(B) the semi-annual accounts of the Trust Fund distributed by the Manager
pursuant to clause 28.6(b); and
(C) the annual reports of the Trust Fund prepared by the Manager in
accordance with regulation 62(1)(a) of the FMC Regulations, provided
that where the Unit Holder has not provided an electronic address for the
giving of notices, the Manager will send this document by post to the
postal address of the Unit Holder instead; and
(ii) in all other cases, either by post to the postal address of the Unit Holder on the
Register or by electronic means to the electronic address of the Unit Holder on
the Register.
A Unit Holder may, at any time, notify the Manager, in writing, that the Unit Holder
elects to receive all notices by post. If a Unit Holder makes an election pursuant to this
clause 34.1(b), then the relevant notice(s) must be sent to the Unit Holder by post in
accordance with that election, whether or not the relevant notices are also sent by
electronic means.
Where a notice is sent:
(i) by post, service of the notice by properly addressing, prepaying and posting a
letter containing the notice shall be deemed to have been effected on the day
following the day of posting; and
(ii) by electronic means, service of the notice by sending it to the electronic address
of the Unit Holder shall be deemed to have been effected on the Business Day
on which it was despatched or, if despatched after 5.00pm on a Business Day,
on the next Business Day after the date of despatch, provided that the computer
system used to transmit the notice has not generated a record that the notice
has failed to be transmitted.
34.2 Overseas address
If any Unit Holder has no registered address within New Zealand and has not supplied to the
Manager a postal address within New Zealand or an electronic address for the giving of
notices, but has supplied an address outside New Zealand, then any notice to be given to
such Unit Holder shall be posted to such Unit Holder at such address and shall be deemed
to have been received by such Unit Holder three days following the day of posting.
34.3 Notices to managers and representatives of unit holders
A notice may be given by the Manager to a Personal Representative by sending it to the
address, if any, supplied for that purpose by the Personal Representative, or (until such an
address has been supplied) by giving the notice in any manner in which it might have been
given if the mental disorder, death or bankruptcy had not occurred.
Pg. 68
34.4 No address
If any Unit Holder has no registered address and has not supplied to the Manager a postal
address or electronic address for the giving of notices, or if any two notices posted or sent to
a Unit Holder are returned to the Manager on consecutive occasions, then, notwithstanding
anything contained elsewhere in this deed, until the Unit Holder shall give notice in writing to
the Manager of some other address, the address of the Unit Holder for all purposes of this
deed shall be deemed to be the Office.
34.5 Holders of Convertible Obligations
Any notices given to the holders of Convertible Obligations may be given to them in the
manner provided for in this clause 34 as if such persons were Unit Holders.
34.6 Determination of period of notice
Where a specified number of days’ notice is required to be given, the day on which it is
served or deemed to be served and, in the case of a notice of meeting, the day for which it is
given, shall be excluded in calculating such number of days.
34.7 Notice to be in writing
Any notice required by this deed to be given to the Supervisor by the Manager, or to the
Manager by the Supervisor, shall be in writing and be from a duly authorised officer or
signatory of the party giving the notice.
Governing Law
This deed shall be governed by and construed in accordance with the law of New Zealand.
Limitation of Liability
Notwithstanding anything contained in this deed (but subject to clause 37) or any rule of law:
no Unit Holder shall be or become personally liable in respect of any debt or liability of
the Trust;
no Unit Holder shall in any circumstances be liable to indemnify the Supervisor or the
Manager in respect of any debt or liability incurred in respect of the Trust Fund;
nothing in this deed or in the relationship between the Unit Holders shall be deemed to
create a partnership amongst Unit Holders; and
neither the Supervisor nor the Manager shall be or act as agent for the Unit Holders,
and neither shall have power to incur liabilities on behalf of any Unit Holder or pledge
the credit of any Unit Holder.
Pg. 69
Taxation Liability
37.1 Definitions
In this clause:
Relevant Person means a Unit Holder and the Personal Representatives or successors of a
Unit Holder;
Tax includes all taxes, duties, levies and other charges including penalties and interest;
Taxation Amount means, in relation to a Relevant Person:
any Tax payable by or on account of that Person or in respect of that Person’s Units;
or
any withholding tax or similar amounts required to be withheld or deducted by the
Manager or the Supervisor in respect of a Unit Holder.
37.2 Deduction of tax
The Supervisor or the Manager may deduct or require to be deducted from any amount
otherwise payable to or to be applied in respect of a Relevant Person, an amount equal to
the Taxation Amount of that Relevant Person where such amount is payable or anticipated
to become payable by the Supervisor or the Manager or from the Trust Fund.
37.3 Sale of units
If any Distribution (including a redemption of Units pursuant to clause 7) is to be effected by
way of the transfer or delivery to Unit Holders of Units or other Financial Products, the
Supervisor or the Manager may satisfy the Taxation Amount of any Relevant Person by
arranging for the sale (in such manner as the Supervisor or the Manager may determine) of
sufficient of those Units or other Financial Products to satisfy the Taxation Amount of that
Relevant Person, and shall transfer or deliver the balance of those Units or other Financial
Products to the Relevant Person.
37.4 Application of deductions
Amounts deducted under clause 37.2 or arising from a sale pursuant to clause 37.3 shall be
applied in:
payment of the Taxation Amount to the Person or authority entitled thereto; or
reimbursement of the Supervisor or the Manager for any corresponding amount paid
from their own funds;
and any balance shall be refunded to the Relevant Person.
Pg. 70
37.5 Indemnity
Each Relevant Person shall indemnify the Supervisor and the Manager in respect of any
Taxation Amount paid or payable by the Manager or the Supervisor in respect of that
Person.
37.6 Interest
Any Taxation Amounts paid on behalf of a Relevant Person shall carry interest calculated on
a daily basis at such rate as the Manager may determine and such interest shall be paid on
demand by the Relevant Person to the Supervisor or the Manager as the case requires.
Changes to Dates
Notwithstanding clause 32, the Manager may at any time, giving not less than 2 months’
notice to the Unit Holders and the Supervisor, alter the Distribution Periods (both as to length
and commencement and expiry dates), the closing date of the Financial Year and the
Quarterly Dates. In the event of any such alteration, any calculations required under this
deed that are based on a Distribution Period or Financial Year will be adjusted on a pro rata
basis to reflect the shorter or longer period so as to ensure that the alteration does not have
an unintended economic impact.
Contracts Privity
This deed is intended to confer a benefit on the Unit Holders (for the purposes of the
Contract and Commercial Law Act 2017 and, subject to the terms hereof, shall be legally
enforceable as between the Supervisor, the Manager and the Unit Holders.
Pg. 71
Execution
Executed as a trust deed.
Trustees Executors Limited
Director Director/Authorised Signatory
Print Name Print Name
Witness to both signatures
(if not signed by two directors)
Print Name
Occupation
Address
Address of Trustees Executors Limited
Address Level 11, 51 Shortland
Street
Auckland
Attention Telephone 09 308 7100
Pg. 72
Vital Healthcare Properties
Management Limited by
Director Director
Print Name Print Name
Address of Vital Healthcare Properties Management Limited
Address
Level 17, HSBC Tower
188 Quay Street
Auckland
Attention General Counsel Email enquiry@vhpt.co.nz
Pg. 73
Schedule 1: Additional Services
Description Additional Services
Acquisitions Services in respect of acquisitions of new Investments, including but not limited to due diligence, structuring, arrangement of financing,
negotiation of terms and other related services.
Disposals Services in respect of disposals of Investments, including but not limited to coordinating the sales process, engaging with potential
purchasers, negotiation of terms and other related services.
Development Services which may be in respect of any one or more of the following services in respect of a project:
(i) Managing procurement of statutory authority consents.
(ii) Negotiating principal agreements, such as building contracts and consultancy agreements.
(iii) Ensuring compliance with statutory requirements.
(iv) Keeping records in connection with the project.
(v) Managing insurances.
(vi) Managing legal disputes.
(vii) Coordination of design, procurement and contractors.
(viii) Managing construction process and timetable, commissioning of plant and equipment and rectification of defects.
(ix) Managing project budgets.
(x) Attending project control group meetings.
Pg. 74
(xi) Any other services which would usually be performed by a development or project manager.
Pg. 75
Schedule 2: Activity Services
Description Activity Services
New leases or
licences
Services in relation to the negotiation of new leases or licence (which is a lease or licence to a new tenant or where agreed with a sitting
tenant that a new lease or licence will be granted other than on substantially the same terms) over Investments that are real estate
properties, including coordinating the letting process, engaging with potential and sitting tenants, negotiation of terms and other related
services.
Lease or licence
renewals
Services in relation to the negotiation of lease or licence renewals (whether by exercise of option or separate agreement to renew the lease
or licence on substantially the same terms) in relation to Investments that are real estate properties, including engaging with tenants,
negotiation of terms and other related services.
Rent review fees Services in relation to the negotiation of rent reviews in relation to Investments that are real estate properties, including engaging with
tenants, negotiation of rent reviews and other related services.
Facilities
management
Services in relation to:
(i) inspecting the property regularly;
(ii) managing the following:
(A) car parking arrangements either directly or through a car park management company as required;
(B) storage management;
(C) presentation, cleaning, repairs and operations of a property;
(D) repairs and maintenance including preparing service specifications and tendering services contracts (as and when deemed
appropriate);
(E) consultants for repairs and maintenance including ensuring contractor compliance;
(F) procurement of annual certification statements (AESM, AFSS) and registrations (Cooling tower, Lift); and
Pg. 76
(G) insurances including putting in place the necessary policies and processing claims.
Project
management
Services in relation to:
(i) programming major expenditure of base building and capital replacement;
(ii) administering fit outs; and
(iii) oversight of major capital works.
Pg. 77
Schedule 3 – Property Management Services
Services Fee Payment terms
Property
management
Services in relation to the below and other
services generally accepted as, or relating to,
property management:
(i) invoicing tenants;
(i) managing bad debts;
(ii) managing collection of rental and
outgoings payments;
(iii) preparation of annual operating and
capital budgets;
(iv) managing year end audit of operating
expenses and issuing of annual
statements to tenants (including recharge
or reimbursement where applicable);
(v) preparation of monthly reports including
variance analysis against budgets;
(vi) management of trust account;
(vii) payments to creditors/suppliers;
(viii) assisting with conduct of property
valuations;
(ix) collecting and maintain security deposits,
bank guarantees and any other security;
A fee equal to between 1%-2% of gross income
depending on the number of tenants at the
property. The fee percentage between 1% and 2%
(each inclusive) will be determined based on the
following:
(i) 1% where the property has one principal
tenant;
(ii) 1.5% where the property has between two and
five tenants; and
(iii) 2% where the property has six or more tenants.
Where a single property operator manages multiple
sub-tenants at a property, it will be treated as a
single tenant for those purposes.
Where the property is comprised of a medical
centre and hospital, the fee will be based on the
number of tenants (excluding sub-tenants) in the
medical centre and hospital.
The Manager will deduct any amounts recovered by
it by way of outgoings from amounts payable to it as
a property management fee.
Payment to be due monthly in
advance.
Pg. 78
(x) documenting, negotiating and
administering tenancy agreements
(including obtaining any necessary
mortgagee’s or third party consents);
(xi) maintaining full leasing and tenancy
records;
(xii) supervising compliance with leases
including provision of tenant insurances;
(xiii) assisting with assignments and/or sub-
leasing;
(xiv) managing tenant defaults; and
(xv) managing tenant make-good
requirements.
Pg. 79
Schedule 4: Meetings of Unit Holders
Venue of Meetings
Meetings shall be held in such place in New Zealand, and at such time, as the Manager may
determine.
Notice of Meetings
(a) Notice of every meeting shall be given in the manner provided in this deed to:
(i) every Unit Holder; and
(ii) every Personal Representative of a Unit Holder where the Unit Holder would
otherwise be entitled to receive notice,
and all such Persons shall be entitled to attend meetings of Unit Holders.
(b) A copy of the notice shall be sent to the Supervisor and the Shareholder.
(c) Subject to clause 2(e), at least fourteen days’ notice of every meeting shall be given.
The notice shall be exclusive of the day on which it is served or deemed to be served
and of the day for which it is given. The notice shall specify the place, date and time of
the meeting and the general nature of the business to be transacted but it shall not be
necessary to specify in the notice the terms of the resolutions to be proposed, unless
required by the Listing Rules.
(d) The accidental omission to give notice to, or the failure to receive notice of a meeting
by, any person entitled to that notice, does not invalidate the proceedings at that
meeting.
(e) If the business of the meeting includes the approval of a Special Resolution, notice of
the meeting shall be given in accordance with clauses 2 and 3 of schedule 11 of the
FMC Regulations, which shall apply as if set out in full in this schedule.
Quorum
No business shall be transacted at any meeting unless the requisite quorum is
present.
Subject to clauses 3(d) and (f), the quorum for meetings is present if Unit Holders are
present who hold not less than 10% of the number of Units for the time being in
existence.
A Unit Holder is present at a meeting if the Unit Holder (or its Representative):
(i) in the case of a meeting held under clauses 4(a) or 4(b), attends the meeting in
person;
(ii) in the case of a meeting held under clauses 4(b) or 4(c), participates in the
meeting by the means of audio, audio and visual or electronic communication;
or
(iii) cast votes by electronic means pursuant to clause 8(d).
Pg. 80
If within fifteen minutes from the time appointed for the meeting a quorum is not
present, the meeting, if convened upon the request of Unit Holders, shall be dissolved.
In any other case, it shall stand adjourned to such day and time not being less than
fourteen (14) days thereafter, and to such place as may be appointed by the
chairperson and at such adjourned meeting the Unit Holders or their Representatives
present will constitute a quorum.
Notice of any such adjourned meeting shall be given in the same manner (except in
respect of the period of notice) as the notice for the original meeting and such notice
shall state that the Unit Holders present at the adjourned meeting, whatever their
number and whatever the number of Units held by them, shall form a quorum.
If the business of the meeting includes the approval of a Special Resolution, a quorum
shall be determined in accordance with clause 5 of schedule 11 of the FMC
Regulations, which shall apply as if set out in full in this schedule.
Method of holding meetings
A meeting of Unit Holders may be held by a number of Unit Holders who constitute a
quorum:
being assembled together at the time and place appointed for the meeting; or
by a combination of:
(i) being assembled together at the time and place appointed for the meeting; and
(ii) participating in the meeting by means of audio, audio and visual or electronic
communication; or
if approved by the Supervisor, participating in the meeting by means of audio, audio
and visual or electronic communication.
The Manager is not required to hold meetings of Unit Holders in the manner specified in
clauses 4(b) or (c). Meetings will be held in that manner only if the notice of meeting
specifies, or the Manager otherwise decides to do so. In the case of a meeting held by the
means specified in clause 4(c), Unit Holders and their Representatives must comply with any
conditions imposed by the Supervisor in providing its approval of such means.
Attendance by Supervisor, Manager and Shareholder
Any director, officer or solicitor of:
the Supervisor;
the Manager; and
the Shareholder,
and any other person authorised in that behalf by the Supervisor, the Manager or the
Shareholder (as applicable) may attend any meeting and all such persons shall have the
right to speak at the meeting.
Pg. 81
Chairperson
A person nominated in writing by the Supervisor (who may without limitation be a director of
the Manager) shall act as chairperson of each meeting.
Adjournment of Meetings
The chairperson may with the consent of any meeting at which a quorum is present,
and shall if so directed by the meeting, adjourn the meeting from time to time and from
place to place.
No business shall be transacted at any adjourned meeting except business which
might have been lawfully transacted at the meeting from which the adjournment took
place.
Voting Rights
The only Persons entitled to vote at a meeting of Unit Holders shall be the Unit
Holders registered in the Register at the date of the meeting (or if an adjourned
meeting at the date the first meeting was first due to be held) or, to the extent
applicable, their Representatives.
In the case of a meeting of Unit Holders held under clause 4(a), voting shall be by
whichever of the following methods is determined by the chairperson:
(i) voting by voice;
(ii) voting by show of hands; or
(iii) voting by poll,
unless a poll is demanded or required pursuant to clause 8 of Schedule 11 of the FMC
Regulations, in which case voting will be by poll.
In the case of a meeting of Unit Holders held under clauses 4(b) or 4(c), unless a poll
is demanded or required pursuant to clause 8 of Schedule 11 of the FMC Regulations,
voting at the meeting shall be by any method permitted by the chairperson of the
meeting.
The Manager may allow Unit Holders or their Representatives to vote by signifying
their assent or dissent by electronic means (including, for clarity, voting on a personal
computer or other electronic device, with such vote being transmitted to the meeting).
Unit Holders may exercise their right to vote at a meeting by casting a postal vote in
accordance with any procedures in relation to postal voting determined by the
Manager. For clarity, a postal vote may be cast using electronic means permitted by
the Manager.
Subject to the Listing Rules, section 163 of the FMC Act, and to any rights or
restrictions for the time being attached to any class or classes of Units:
(i) on a vote by voices or a show of hands, every Unit Holder present in person or
by Representative shall have one vote; and
(ii) on a poll, every Unit Holder present in person or by Representative shall have:
Pg. 82
(A) in respect of each fully paid Unit held by such Unit Holder, one vote; and
(B) in respect of each Unit which is not fully paid held by such Unit Holder, a
fraction of the Vote which would be exercisable if the Unit were fully paid.
That fraction must be proportionate to the payment which has been made
(excluding amounts credited and amounts paid in advance of a call).
Where two or more Persons are registered as the holder of a Unit, the vote of the
Person named first in the Register and voting on a matter will be accepted to the
exclusion of the votes of the other joint Unit Holders.
Proxies
Every notice convening a meeting of the Trust shall state that a Unit Holder entitled to
attend and vote at the meeting is entitled to appoint a proxy to attend and vote instead
of him, and that a proxy need not be a Unit Holder. The Manager shall send a form of
proxy to every Unit Holder entitled to attend and vote at a meeting of the Trust with the
notice convening the meeting.
Votes may be given either personally, by proxy, attorney and also in the case of a
corporation by an authorised representative.
An instrument of proxy shall be in such form as the Manager shall stipulate from time
to time and need not be witnessed, provided that, to the extent that the subject and
form of the resolutions reasonably permit, the instrument of proxy shall, as a minimum
so far as the subject matter and form of the resolutions reasonably permit, provide for
a binary voting choice (for and against) on all resolutions, enabling the Unit Holder to
instruct the proxy as to the casting of the vote on each resolution. So far as
reasonably practicable, the resolutions to be proposed at a meeting shall be framed in
a way which facilitates the giving of two way voting instructions to proxies.
No proxy form shall be issued with a proxy named therein, either by name or by
reference to an office, but the proxy form may indicate in a footnote that certain
persons are willing to act as a proxy if a Unit Holder desires to appoint them or any of
them. The proxy form must contain a statement outlining who is subject to voting
restrictions in relation to each resolution.
Except where section 163 of the FMC Act applies, whenever the chairperson of the
meeting or an officer of the Supervisor is appointed a proxy for a Unit Holder, and the
Unit Holder has not indicated in the instrument of proxy or in any other way prior to the
time for taking the poll the manner in which the Unit Holder’s proxy is to vote upon any
resolution coming before the meeting, the Unit Holder’s vote shall be used in such
manner as the proxy thinks fit.
A proxy must be appointed by notice in writing signed by, or, in the case of an
electronic notice, sent by the appointing Unit Holder or by the Unit Holder’s attorney
duly authorised in writing or, if the appointor is a corporation, signed, or, in the case of
an electronic notice, sent by an officer or attorney so authorised. The notice must
state whether the appointment is for a particular meeting or a specified term. A Unit
Holder may appoint more than one proxy for a particular meeting, provided that more
than one proxy is not appointed to exercise the votes relating to a particular Unit held
by the Unit Holder.
No proxy is effective in relation to a meeting unless the instrument of proxy is received
by or on behalf of the Manager at the address specified for that purpose in the notice
and by the time specified for that purpose.
Pg. 83
An instrument or proxy in favour of the chairperson of the meeting or the chairperson
(howsoever expressed) shall be valid and effective as though it were in favour of a
named person and shall constitute the person who chairs the meeting for which the
Instrument of proxy is used (whether on or not), the lawful proxy of the appointor.
A person appointed as a proxy shall have the right to attend and speak at a meeting
and to demand or join in demanding a poll and shall (except and to the extent to which
the proxy is specifically directed to vote for or against any proposal) have power
generally to act at the meeting for the Unit Holder concerned.
A vote given in accordance with the terms of an instrument of proxy or power of
attorney shall be valid notwithstanding the previous death or insanity of the principal or
revocation of the instrument of proxy or power of attorney or of the authority under
which the instrument of proxy was executed or the transfer of the Units in respect of
which the vote is given if no intimation in writing of such death, insanity, revocation or
transfer is received by the Manager at the Office before the commencement of the
meeting or adjourned meeting at which the instrument of proxy or power of attorney is
used.
Power of Attorney
Any Unit Holder may by power of attorney appoint an attorney (who need not be a Unit
Holder) to vote and act on behalf of the Unit Holder at any meeting and such power of
attorney or proof thereof to the satisfaction of the Manager shall (unless such power of
attorney or such proof has previously been produced to the Manager) before the time of
holding the meeting at which the attorney proposes to vote be produced for inspection at
such place as the Manager may in the notice convening the meeting direct or (if no such
place is appointed) then at the Office. Such attorney, if so empowered, may appoint a proxy
for the Unit Holder granting the power of attorney.
Representatives of a Company
A person authorised pursuant to a resolution of the directors or other governing body
of a corporation which is a Unit Holder to act for it as its representative at any meeting
shall be entitled to exercise the same powers on behalf of that corporation as that
corporation could exercise if it were an individual Unit Holder. A person so authorised
is in this schedule referred to as an “authorised representative.”
An authorised representative shall be entitled to produce evidence of such
representative’s appointment at any time before the time appointed for the holding of,
or at, the meeting or adjourned meeting, or for the taking of a poll, at which such
representative proposes to vote.
Procedure
A resolution put to the vote of a meeting shall be decided on a show of hands unless a
poll is (before or on the declaration of the result of the show of hands) demanded by
the chairperson or the Supervisor or any representative of the Supervisor or by one or
more Unit Holders holding or representing not less than 5% of the number of Units in
existence. Unless a poll is so demanded, a declaration by the chairperson that a
resolution has been carried or carried unanimously or by a particular majority or lost
shall be conclusive evidence of the fact without proof of the number or proportion of
the votes recorded in favour of or against such resolution.
The demand for a poll may be withdrawn. If a poll is duly demanded it shall be taken
in such manner as the chairperson may direct and the result of such poll shall be
Pg. 84
deemed to be the resolution of the meeting at which the poll was demanded. The
Auditor, or if the Auditor is unable or unwilling to act, then such persons as the
chairperson nominate, shall act as scrutineers for the purposes of the poll. The
chairperson shall be entitled to declare the result of the poll upon receipt of a
certificate from the Auditor setting out the number of votes which could be cast at the
meeting, and upon receipt of a notice from the scrutineers that, in the light of the
Auditor’s certificate, sufficient votes to determine the result of the resolution have been
counted.
In the case of an equality of votes, whether on a show of hands or on a poll, the
chairperson of the meeting at which the show of hands takes place or at which the poll
is demanded shall not be entitled to a casting vote in addition to the votes (if any) to
which the chairperson may be entitled as a Unit Holder or on behalf of Unit Holders.
A poll demanded on a question of adjournment shall be taken forthwith. A poll
demanded on any other question shall be taken either immediately or at such time
(not being more than 14 days from the date of the meeting) and place as the
chairperson may direct. No notice need be given of a poll not taken immediately.
The demand for a poll shall not prevent the continuance of a meeting for the
transaction of any business other than the question on which the poll has been
demanded.
On a poll votes may be given either personally or by proxy or by attorney or by an
authorised representative. On a poll a Person entitled to more than one vote need not
use all that Person’s votes or cast all the votes the Person uses in the same way.
In the case of joint Unit Holders, the vote of the senior who tenders a vote whether in
person by proxy, attorney or by authorised representative shall be accepted to the
exclusion of the votes of the other joint Unit Holders, and for this purpose seniority
shall be determined by the order in which the names stand in the Register in respect
of the joint holding.
Powers exercisable by Special Resolutions
Subject to the Listing Rules and the FMC Act, a meeting of Unit Holders shall have the
following powers exercisable by Special Resolution:
(i) power to sanction the exchange of Units for, or the conversion of units into
shares, stock, debentures, debenture stock or other obligations or Financial
Products of any company formed or to be formed;
(ii) power to sanction any alteration, release, modification, waiver, variation or
compromise or any arrangement in respect of the rights of the Unit Holders
howsoever such rights shall arise;
(iii) power to assent to any alteration, modification of, variation, or addition to the
provisions contained in this deed, or the conditions attaching to the Units and to
authorise the Manager and Supervisor to concur in and execute any
supplemental trust deed or other document embodying any such alteration or
addition;
(iv) power to give any sanction, assent, release or waiver of any breach or default
by the Manager or the Supervisor under any of the provisions of this deed;
(v) power to discharge, release or exonerate the Manager or the Supervisor from
all liability in respect of any act of commission or omission for which the
Manager or the Supervisor has or may become responsible under this deed;
Pg. 85
(vi) power to appoint a replacement Supervisor if the Manager fails to do so under
clause 21.3; and
(vii) power to sanction the exchange of Units for or the conversion of Units into, units
or interests in any other managed investment scheme or similar entity (whether
established in New Zealand or elsewhere) on such basis as may be approved
by the Special Resolution.
A meeting of the Unit Holders of any class of Units shall have power by Special
Resolution to vary the rights attaching to Units of that class provided that such
variation does not adversely affect the rights attaching to any other class of Units, and
provided further that any such meeting shall be convened and variation effected in
accordance with the applicable provisions of the Listing Rules and this deed.
Powers of Unit Holders relating to Shareholder
Subject to the Listing Rules, the FMC Act and clause 30, a meeting of Unit Holders
shall have the power, exercisable by Ordinary Resolution, to direct the Shareholder as
to:
(i) the individuals in respect of whom the Shareholder shall exercise its rights to
appoint and remove as Directors under the constitution of the Manager; and
(ii) any other matter required to be approved by Unit Holders as an Ordinary
Resolution pursuant to the NZX Listing Rules, FMC Act or this deed.
Subject to the Listing Rules and the FMC Act, a meeting of Unit Holders shall have the
following powers exercisable by Special Resolution:
(i) dispose of all or any of the Manager Shares (whether by sale, transfer or
otherwise), and, where applicable, effect the appointment of a replacement
shareholder of the Manager (provided such new shareholder holds the required
licence or authorisation to act in such capacity in compliance with any
applicable laws, including under the FMC Act);
(ii) enter into any reconstruction, reorganisation, amalgamation or liquidation of the
Manager;
(iii) authorise any amendment to, direct the termination of, and/or the entry into by
the Manager of a replacement or supplemental Shareholding Deed;
(iv) if not otherwise contemplated by this deed, direct how the Shareholder will vote
the Manager Shares; and/or
(v) give effect to any other matter relating to the Shareholder or the Manager
Shares on which direction from Unit Holders is sought by the Shareholder or
Directors,
in each case, on such terms and subject to such conditions as are stated in the
direction, provided that Unit Holders are not entitled to give any direction, and no
direction shall be effective which purports, to transfer the Manager Shares to or for the
benefit of the Supervisor or Unit Holders in their capacity as such or which would
result in a breach of any applicable laws, including the FMC Act. Nothing in this
paragraph 14 prevents the Shareholder voting or exercising its rights in respect of the
Manager Shares on procedural or administrative matters.
Pg. 86
Special Resolution binds all Unit Holders
A Special Resolution passed at a meeting of the Unit Holders duly convened and held in
accordance with this schedule shall be binding upon all Unit Holders whether present or not
at the meeting and each of the Unit Holders, Supervisor and the Manager shall be bound to
give effect to the Special Resolution accordingly. The passing of any such resolution shall
as between the Manager, the Supervisor and the Unit Holders be conclusive evidence that
the circumstances justify the passing of the Special Resolution, the intention being that it
shall rest with the meeting to determine without appeal whether or not the circumstances
justify the passing of such resolution. A resolution which affects a particular Unit Holder or a
class of Unit Holders only, as opposed to the rights of the Unit Holders generally, shall not be
binding on such Unit Holder or class of Unit Holders unless such Unit Holder agrees or (if
more than one) a majority in number representing 75% in value of such Unit Holders agree
to be bound by the terms of such Resolution.
Minutes to be kept
Minutes of all resolutions and proceedings at every meeting shall be made by the Manager,
or if the Manager is not present at any meeting by some person appointed by the
chairperson of such meeting, and duly entered in books from time to time provided for that
purpose by the Manager. Any such minutes, if purporting to be signed by the chairperson of
the meeting at which such resolutions were passed or proceedings had or by the
chairperson of the next meeting of Unit Holders, shall be prima facie evidence of the matters
therein stated. Until the contrary is proved every such meeting in respect of the proceedings
of which minutes have been made shall be deemed to have been duly held and convened
and all resolutions passed or proceedings to have been duly passed and had.
Unit Holder Proposals
A Unit Holder may give written notice to the Manager of a matter the Unit Holder proposes to
raise for discussion or resolution (but which shall not be binding) at the next meeting of Unit
Holders, at which the Unit Holder is entitled to vote on the following basis:
if the notice is received by the Manager not less than 20 Business Days before the last
day on which notice of the relevant meeting of Unit Holders is required to be given by
the Manager, the Manager must, at the expense of the Trust, give notice of the Unit
Holder proposal and the text of any proposed resolution to all Unit Holders entitled to
receive notice of the meeting;
if the notice is received by the Manager not less than 5 Business Days and not more
than 20 Business Days before the last day on which notice of the relevant meeting of
Unit Holders is required to be given by the Manager, the Manager must, at the
expense of the Unit Holder, give notice of the Unit Holder proposal and the text of any
proposed resolution to all Unit Holders entitled to receive notice of the meeting;
if the notice is received by the Manager less than 5 Business Days before the last day
on which notice of the relevant meeting of Unit Holders is required to be given by the
Manager, the Manager must if practicable, and at the expense of the Unit Holder, give
notice of the Unit Holder proposal and the text of any proposed resolution to all Unit
Holders entitled to receive notice of the meeting;
if the directors of the Manager intend that Unit Holders may vote on the proposal by
proxy or by a vote under clause 8(b) or 8(c), they must give the proposing Unit Holder
the right to include in or with the notice given by the Manager a statement of not more
than 1,000 words prepared by the proposing Unit Holder in support of the proposal,
Pg. 87
together with the name and address of the proposing Unit Holder. Such resolutions
shall not bind the Manager or the Trust;
the Manager is not required to include in or with the notice given by the Manager:
(i) any part of the statement prepared by a Unit Holder that a majority of the
directors of the Manager consider to be defamatory (within the meaning of the
Defamation Act 1992), frivolous, or vexatious; or
(ii) any part of a proposal or resolution prepared by a Unit Holder that a majority of
the directors of the Manager consider to be defamatory (within the meaning of
the Defamation Act 1992); and
where the costs of giving notice of the Unit Holder proposal and the text of any
proposed resolution are required to be met by the proposing Unit Holder, the
proposing Unit Holder must, on giving notice to the Manager, deposit with the Trust or
tender to the Trust a sum sufficient to meet those costs that will reasonably be
incurred in giving such notice.
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.