New Zealand Legislation: Regulations

(1) The trustee shall exercise reasonable diligence to ascertain whether or not any breach of the terms of the deed or of the terms of the offer of the debt securities has occurred and, except where it is satisfied that the breach will not materially prejudice the security (if any) of the debt securities or the interests of the holders thereof, shall do all such things as it is empowered to do to cause any breach of those terms to be remedied.

(2) The trustee shall exercise reasonable diligence to ascertain whether or not the assets of the borrowing group that are or may be available, whether by way of security or otherwise, are sufficient or likely to be sufficient to discharge the amounts of the debt securities as they become due.

(1) The trustee shall be entitled to receive all notices of and other communications relating to any general meeting of the issuer which any member of the issuer is entitled to receive.

(2) Any representative of the trustee, being a person authorised to act for the purposes of this clause by resolution of the directors or other governing body of the trustee, shall be entitled to attend any general meeting of the issuer, and to be heard at any such meeting which he attends on any part of the business of the meeting which concerns the trustee as such or the holders of debt securities for whom it is trustee.

(3) The issuer shall from time to time—

• (a) At the request in writing of the trustee, make available for its inspection the whole of the accounting and other records of the issuer:

• (b) Give to the trustee such information as it requires with respect to all matters relating to such records.

(1) At the request in writing of the trustee or of persons holding not less than one-tenth in nominal value of the issued debt securities to which the deed relates, the issuer shall summon a meeting of the holders of those securities for the purpose of considering the financial statements of the issuer for its last preceding financial year, or of giving directions to the trustee in relation to the exercise of its powers.

(2) Every meeting summoned pursuant to subclause (1) of this clause shall be summoned by sending by post a notice, specifying the time and place of the meeting, to every holder of such securities at his last known address not later than 14 days before the date of the proposed meeting. The meeting shall be held under the chairmanship of a person nominated by the trustee or such other person as may be appointed in that behalf by the holders of the securities present at the meeting.

(1) The issuer is obliged to provide to the trustee, within 30 days of the end of each month, the monthly management report prepared for the directors of the issuer.

(2) The issuer is obliged to provide a monthly report to the trustee, in a form required by the trustee and within 30 days of the end of each month, on—

• (a) the liquidity of the issuer; and

• (b) the asset quality of the issuer (including arrears reports, and restructured, impaired, past due, and bad debts); and

• (c) reinvestment rates; and

• (d) any breaches by members of the borrowing group of financial covenants in financing arrangements with third parties.

(3) The issuer is obliged to provide a certificate to the trustee, at least once in every 3 months, certifying that at all times during the period covered by the report—

• (a) the current prospectus of the issuer has been up to date and not false or misleading in a material particular; and

• (b) the issuer has complied with all provisions of the trust deed.

(4) Both the report referred to in subclause (2) and the certificate referred to in subclause (3) must be signed by at least 2 directors on behalf of the board of the issuer or, if the issuer has only 1 director, by that director.

(1) The issuer is obliged to advise the trustee, in advance or as soon as it is known, of—

• (a) every change in ownership of the shares in the issuer that results in a change to the effective control of the issuer; and

• (b) every change of directors of the issuer; and

• (c) significant changes in the senior management of the issuer.

(2) The issuer is obliged to notify the trustee, in advance, of any major transaction (as defined in the Companies Act 1993), or any related series of transactions that have the effect of a major transaction, entered into by the issuer.

(3) The issuer is obliged to provide any other reports that the trustee, by written notice, requires the issuer to provide, within the time (which must be reasonable in the circumstances) specified by the trustee.

(4) Reports required under subclause (3) may be about any of the matters referred to in clause 4 or this clause, or any other matter relevant to the performance of the trustee's duties, and may include forward-looking reports.

(1) The issuer is obliged to have the half-yearly financial statements of the borrowing group audited, unless the trustee expressly waives this requirement.

(2) If the trustee waives the requirement for half-yearly audits, the issuer is obliged instead to have the half-yearly financial statements of the borrowing group reviewed by its auditor.

(1) The issuer is obliged to provide the trustee with copies of the annual financial statements and half-yearly financial statements of the borrowing group within 3 months of the end of the relevant financial year or half-year.

(2) The financial statements given to the trustee must be signed by at least 2 directors on behalf of the board of the issuer or, if there is only 1 director, by that director.

(1) The issuer is obliged to consult with the trustee before recommending the appointment or reappointment of a person as an auditor, and must ensure that any comments of the trustee concerning the proposed auditor are brought to the attention of the person or persons appointing or reappointing the auditor.

(2) The issuer is obliged to notify the trustee if an auditor resigns from appointment, or declines to accept appointment or reappointment, and must also pass on to the trustee any explanation provided by the auditor for resigning from appointment or declining to accept appointment or reappointment.

(3) The issuer is obliged to refrain from attempting to prevent a person who has resigned from appointment as an auditor, or declined to accept appointment or reappointment as an auditor, from offering an explanation, or disclosing to the trustee the reason, for resigning or declining appointment or reappointment.

(1) The issuer is obliged to ensure that the terms set out in subclause (2) are included in the terms of appointment of its auditor, whether the auditor is conducting an audit or a review.

(2) The terms are as follows:

• (a) that the auditor will report separately to the trustee on any matter, immediately upon becoming aware of it, that is (in the opinion of the auditor)—

  • (i) relevant to the exercise of the powers or performance of the duties of the trustee; or

  • (ii) likely to call for further investigation by the trustee in the interests of security holders:

• (b) that the auditor will report separately to the trustee on whether, during the period covered by the audit or review, and so far as matters observed in the conduct of the audit or review are concerned,—

  • (i) all reports and certificates given by the issuer to the trustee give a true and fair view of the matters to which they relate; and

  • (ii) any directors' opinions expressed to the trustee are reasonable:

• (c) that the auditor will confirm its audit opinion for the benefit of the trustee:

• (d) that the auditor will provide the trustee with a copy of the management letter, setting out the material findings of the audit or review, that is provided to the board of the issuer:

• (e) that the auditor will meet with the trustee, without any representative of the issuer being present, to discuss matters arising in the performance of the audit or review and to answer any questions the trustee may have concerning the audit or review.

(1) The trustee is entitled to appoint an independent auditor to audit the financial statements of the borrowing group if—

• (a) the auditor appointed by the issuer is not, or is not a partner of, an audit firm that—

  • (i) has at least 5 partners; and

  • (ii) receives at least 20% of its revenue from audit or audit-related work; or

• (b) in the reasonable opinion of the trustee, the auditor appointed by the issuer does not have sufficient experience or capacity to undertake the audit of the issuer.

(2) The fees and expenses of the independent auditor, which must be reasonable in the circumstances, must be determined by the trustee and paid by the issuer.

(3) If an independent auditor is appointed, the issuer is obliged to cooperate in permitting the auditor to carry out the audit.

(4) The trustee must ensure that the terms of the appointment of the auditor include the terms set out in clause 9(2).

(1) The trustee is entitled to engage an expert (such as an auditor, investigating accountant, valuer, or actuary) to assist the trustee to determine the true financial position of the issuer if the trustee considers, on reasonable grounds, that it requires the assistance of the expert.

(2) If the trustee engages an expert under this clause, the fees and expenses of the expert, which must be reasonable in the circumstances, must be paid by the issuer.