Non-bank Deposit Takers Act 2013

4 Interpretation

(1)

In this Act, unless the context otherwise requires,—

approved rating agency means a rating agency approved by the Bank under section 86

associated person, in relation to an NBDT, means—

(a)

a person that directly or indirectly controls the management of the NBDT; or

(b)

a person that has a direct or indirect qualifying interest in 20% or more of the voting securities issued by the NBDT; or

(c)

a person whose management is controlled, directly or indirectly, by the NBDT; or

(d)

a person in whose voting securities the NBDT has a direct or indirect qualifying interest of 20% or more

Bank means the Reserve Bank of New Zealand constituted under the Reserve Bank of New Zealand Act 1989

borrowing group, in relation to an NBDT, means the NBDT and all its guaranteeing subsidiaries

capital ratio, in relation to an NBDT or borrowing group, means the level of capital in relation to the credit exposures and other risks of the NBDT or borrowing group

debt security means—

(a)

a debt security within the meaning given in section 8 of the Financial Markets Conduct Act 2013; or

(b)

any other security declared by regulations to be a debt security for the purposes of this Act

director means—

(a)

a person occupying a position of director by whatever name called; or

(b)

in the case of an entity that does not have directors as such, any trustee, manager, or other person who acts in relation to that entity in the same or a similar fashion as a director would act were that entity a company incorporated in New Zealand under the Companies Act 1993

document means—

(a)

any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds or from which symbols, images, or sounds can be derived, and includes—

(i)

a label, marking, or other writing which identifies or describes a thing of which it forms part, or to which it is attached; and

(ii)

a book, map, plan, graph, or drawing; and

(iii)

a photograph, film, or negative; and

(b)

information electronically recorded or stored, and information derived from that information

governing body means,—

(a)

in relation to a body corporate, the board of directors (or other persons or body exercising powers of management, however described) of the body corporate:

(b)

in relation to a trust, the trustees:

(c)

in relation to a unit trust, the manager:

(d)

in relation to a partnership, unincorporated joint venture, or other unincorporated body of persons, either—

(i)

the board of directors (or other persons or body exercising powers of management, however described) of the partnership, unincorporated joint venture, or other unincorporated body of persons; or

(ii)

if there is no board or other persons or body as described in subparagraph (i), the partners of the partnership or members of the unincorporated joint venture or other unincorporated body of persons

governing document means the rules and instruments constituting, or defining the constitution of, an entity

Governor means the Governor of the Bank appointed under the Reserve Bank of New Zealand Act 1989

guaranteeing subsidiary, in relation to an NBDT, means a subsidiary of the NBDT that—

(a)

is unconditionally liable (whether or not jointly or severally with the NBDT or any other person) to repay all the debt securities issued by the NBDT; or

(b)

is liable to repay all the debt securities issued by the NBDT subject only to the condition that the NBDT or any other person has failed to do so

level 1 penalty means the penalty set out in section 64(4)

level 2 penalty means the penalty set out in section 64(3)

level 3 penalty means the penalty set out in section 64(2)

level 4 penalty means the penalty set out in section 64(1)

licence means an NBDT licence granted by the Bank under section 17

licensed NBDT means—

(a)

an NBDT that has been granted a licence and whose licence has not been cancelled; or

(b)

a person that has been granted a licence on the basis that it is not yet, but proposes to be, an NBDT, and whose licence has not been cancelled

Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

NBDT means a non-bank deposit taker, and is defined in section 5

NBDT regulated offer

(a)

means a regulated offer within the meaning of section 41 of the Financial Markets Conduct Act 2013; and

(b)

includes an offer of debt securities that would be a regulated offer within the meaning of that section if clause 3(2)(b) and (3)(a) of Schedule 1 of that Act were not in force; and

(c)

includes an offer of debt securities to the public in New Zealand to which the Securities Act 1978 applied before its repeal or to which that Act applies or applied under Schedule 4 of the Financial Markets Conduct Act 2013

overseas person means—

(a)

a body corporate incorporated outside New Zealand; or

(b)

an unincorporated body that has its head office or principal place of business outside New Zealand

qualifying interest, in relation to a security, means—

(a)

the legal or beneficial ownership of the security; or

(b)

the power to exercise, or control the exercise of, any voting rights attached to the security; or

(c)

the power to acquire or dispose of the security; or

(d)

the power to control the acquisition or disposition of the security by another person; or

(e)

the powers referred to in paragraphs (b) to (d) under, or by virtue of, any trust, agreement, arrangement, or understanding relating to the security

regulations means regulations made under this Act

related party, in relation to an NBDT, has the meaning set out in section 6

relative, in relation to any person, means—

(a)

the person’s spouse, civil union partner, or de facto partner; or

(b)

any parent, step-parent, brother, sister, child, or stepchild of the person; or

(c)

any parent, step-parent, brother, sister, child, or stepchild of the person’s spouse, civil union partner, or de facto partner

senior officer, in relation to an NBDT,—

(a)

means a person occupying a position that allows the person to exercise significant influence over the management or administration of the NBDT (for example, a chief executive or a chief financial officer); and

(b)

includes any class or classes of persons declared by regulations to be senior officers for the purposes of this Act; but

(c)

does not include any class or classes of persons declared by regulations not to be senior officers for the purposes of this Act

subsidiary means—

(a)

a subsidiary within the meaning of sections 5 to 8 of the Companies Act 1993; or

(b)

a company, or body corporate, or association of persons that is classified as a subsidiary in any applicable financial reporting standard (as that term is defined in section 5(1) of the Financial Reporting Act 2013)

suitability concerns means the matters, circumstances, or conditions, identified in regulations, that must be drawn to the attention of the Bank if any 1 or more of them apply to a director or senior officer, or proposed director or senior officer, of an NBDT or proposed NBDT

suitability notice is a notice, in relation to a director or senior officer, or proposed director or senior officer, of an NBDT or proposed NBDT, that is supplied to the Bank and meets the requirements of section 15

trust deed, in relation to an NBDT, means a trust deed that is required, by or under any of the following, in relation to debt securities (as defined in this Act) offered by or on behalf of the NBDT:

(a)

subpart 1 of Part 4 of the Financial Markets Conduct Act 2013 or an exemption granted under that Act:

(b)

a condition under section 19(1)(fa):

(c)

the Securities Act 1978 or an exemption granted under that Act

trustee, in relation to an NBDT,—

(a)

means a licensed supervisor (within the meaning of the Financial Markets Conduct Act 2013) who is designated or appointed, by or under any of the following, as the trustee for any debt security offered by or on behalf of the NBDT:

(i)

a trust deed:

(ii)

an exemption granted under the Financial Markets Conduct Act 2013:

(iii)

the Financial Markets Supervisors Act 2011:

(iv)

a condition under section 19(1)(fa):

(b)

includes a trustee (as defined in the Securities Act 1978) that is required, by or under that Act or an exemption granted under it, in relation to any debt security offered by or on behalf of the NBDT

voting right, in relation to any body,—

(a)

means a currently exercisable right to cast a vote at meetings of shareholders or members of that body; but

(b)

does not include a right to vote that is exercisable only in 1 or more of the following circumstances:

(i)

during a period in which a payment or distribution (or part of a payment or distribution) in respect of the security that confers the voting right is in arrears or some other default exists:

(ii)

on a proposal that affects rights attached to the security that confers the voting right:

(iii)

on a proposal to put the body into liquidation or voluntary administration:

(iv)

on a proposal for the disposal of the whole, or a material part, of the property, business, or undertaking of the body:

(v)

during the liquidation, receivership, voluntary administration, bankruptcy, or statutory management of the body; and

(c)

does not include a right to vote that is exercisable only for a special, immaterial, or remote matter that is inconsequential to the control of the body.

(2)

In this Act, offer of debt securities to the public must be construed in a manner consistent with the construction and use of offer of securities to the public as set out in section 3 of the Securities Act 1978, but with the modification that references to securities must be taken as being references to debt securities as defined in this Act.

Compare: 1989 No 157 ss 2(1), 157B

Section 4(1) debt security paragraph (a): amended, on 1 December 2014, by section 95(1).

Section 4(1) NBDT regulated offer: inserted, on 1 December 2014, by section 95(3).

Section 4(1) trust deed: replaced, on 1 December 2014, by section 95(3).

Section 4(1) trustee: replaced, on 1 December 2014, by section 95(3).