Execution version
Deed of Amendment and
Restatement (Capital Notes
Trust Deed)
relating to Fonterra Co-operative Group Limited
Dated 1 November 2016
1459502-4 – Deed of Amendment and Restatement (Capital Notes Trust Deed)
Parties
Fonterra Co-operative Group Limited (Fonterra)
The New Zealand Guardian Trust Company Limited, as supervisor appointed under the Trust Deed
(defined below) (Supervisor)
Background
Pursuant to clause 13.1(a) of the capital notes trust deed dated 22 March 2001 (Capital Notes Trust
Deed) as supplemented by the initial supplemental deed dated 24 October 2001 (Initial
Supplemental Deed) each as modified from time to time (together, the Trust Deed), the parties to this
deed have agreed to amend and restate the terms of the Trust Deed to comply with and to reflect the
Financial Markets Conduct Act 2013 and the Financial Markets Conduct Regulations 2014 on the
terms and conditions set out in this deed.
Covenants
1. Definitions
1.1 Unless otherwise defined in this deed, capitalised terms shall have the meaning given to
those terms in the Trust Deed.
1.2 In this deed Effective Date means 30 November 2016.
2. Amendment and restatement of Capital Notes Trust Deed
2.1 The Capital Notes Trust Deed shall, with effect on and from the Effective Date, be amended
and restated in the form set out in the schedule, so that the rights and obligations assumed
by the parties shall be governed by and construed in accordance with the terms set out in
the schedule.
3. Amendments to Initial Supplemental Deed
3.1 With effect on and from the Effective Date, the provisions of the Initial Supplemental Deed
shall be amended as follows:
(a) each reference to “the Trustee” or similar shall be deleted and replaced with “the
Supervisor”;
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(b) in clause 4.6, each reference to “the Securities Act 1978” shall be deleted and
replaced with “the FMCA”;
(c) in clause 5.2, the words “or Offer Document” shall be included after the words “any
Prospectus or Investment Statement”;
(d) in clause 8:
(i) the words “or in any case by email to the relevant specified email
address” shall be included in clause 8.2(a) after the words “principal
place of business”;
(ii) the addresses of the Company and the Supervisor in clause 8.2(b) shall
be deleted and replaced with the addresses set out in clause 17.1(c) and
17.1(d) of the Capital Notes Trust Deed (as amended and restated by this
deed);
(iii) the below shall be included as a new clause 8.3(d):
“(d) in the case of electronic mail, when actually received in
readable form,”;
(iv) the below shall be included in the last paragraph of clause 8.3 after the
words “provided that”:
“any notice given by mail or email to a Holder with no registered or
notified address in New Zealand shall be deemed to have been received
by that Holder 24 hours after that notice was posted or sent and”; and
(v) the words “or electronically” shall be included in clause 8.4(a) after the
words “telephonically or mechanically”; and
(e) in clause 9:
(i) the words “10 per centum” shall be deleted and replaced with “5 per
centum”; and
(ii) the words “(with such requisition signed by, or on behalf of, those
Holders)” added after the words “for the time being outstanding”.
4. Confirmation
4.1 Except to the extent set out in this deed, the provisions of the Capital Notes Trust Deed and
the Initial Supplemental Deed, and the various covenants and obligations of each of the
parties thereunder, are hereby ratified and confirmed and shall remain in full force and
effect.
1459502-4 – Deed of Amendment and Restatement (Capital Notes Trust Deed) 3
4.2 For the purposes of clause 13.1(a) of the Trust Deed, the parties are of the opinion that the
amendments contemplated by this deed are:
(a) of a formal or technical nature;
(b) necessary to ensure that the tenor or nature of the obligations imposed upon the
Company correspond with or do not conflict with the obligations imposed on the
Company under or pursuant to applicable statutory provisions;
(c) to comply with the requirements or modification of the requirements of applicable
law; and
(d) in respect of the provisions for reporting to the Supervisor under the Trust Deed.
5. General
5.1 This deed may be signed in any number of counterparts, all of which together shall
constitute one and the same instrument. Any party may enter into this deed by signing any
such counterpart.
5.2 This deed is governed by and must be construed in accordance with the laws of New
Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New
Zealand.
1459502-4 – Deed of Amendment and Restatement (Capital Notes Trust Deed) 6
Schedule – Amended and Restated Capital Notes Trust Deed
1413351-8 – Capital Notes Trust Deed
Date
22 March 2001 as amended and restated on 1 November 2016
Parties
FONTERRA CO-OPERATIVE GROUP LIMITED
(the “Company”)
THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED
(the “Supervisor”)
CAPITAL NOTES TRUST DEED
1413351-8 – Capital Notes Trust Deed
1 DEFINITIONS AND CONSTRUCTION ............................................................. 5
1.1 Location and Governing Law ................................................................................ 5
1.2 Currency ................................................................................................................. 5
1.3 Currency Conversion ............................................................................................. 5
1.4 Defined Terms ....................................................................................................... 6
1.5 Construction ......................................................................................................... 14
2 [INTENTIONALLY BLANK] ............................................................................ 15
3 APPOINTMENT OF SUPERVISOR .................................................................. 15
3.1 Appointment of Supervisor .................................................................................. 15
3.2 Enforcement of Holders’ rights ........................................................................... 15
4 CAPITAL NOTES ............................................................................................... 15
4.1 Issue of Capital Notes .......................................................................................... 15
4.2 Creation of Other Liabilities ................................................................................ 15
4.3 Additional Issues of Capital Notes ...................................................................... 15
4.4 Terms and Conditions .......................................................................................... 16
4.5 Privity ................................................................................................................... 16
4.6 Validity of Capital Notes ..................................................................................... 16
4.7 Certificates and Confirmations ............................................................................ 17
4.8 Replacement Certificates ..................................................................................... 17
4.9 Covenant to Pay ................................................................................................... 18
4.10 Covenant to Observe the Trust Deed and Conditions .......................................... 18
4.11 Satisfaction of Capital Notes ............................................................................... 18
4.12 Holders’ Right to Sue .......................................................................................... 18
4.13 Identity of Holders ............................................................................................... 18
4.14 Exclusion of Equities ........................................................................................... 19
4.15 Unclaimed Payments ........................................................................................... 19
4.16 Receipt By Holders .............................................................................................. 19
4.17 Purchase, Cancellation, Reissue .......................................................................... 20
4.18 Reissues ............................................................................................................... 20
4.19 Commissions........................................................................................................ 20
4.20 Issue at Discount or Premium .............................................................................. 20
4.21 Reinstatement ...................................................................................................... 20
4.22 Taxation Indemnity of Holder ............................................................................. 21
4.23 No Guarantee ....................................................................................................... 21
5 SUBORDINATION AND STATUS OF CAPITAL NOTES ............................. 21
5.1 Subordination ....................................................................................................... 21
5.2 Amounts Payable Prior to Commencement of Liquidation ................................. 22
5.3 No enforcement prior to Liquidation ................................................................... 22
5.4 Commencement of Liquidation ........................................................................... 22
5.5 Performance of Trust ........................................................................................... 24
5.6 Reliance on Liquidator ......................................................................................... 24
5.7 Right to Appoint Liquidator ................................................................................ 24
5.8 Production of Certificate ...................................................................................... 24
5.9 Termination of Trusts .......................................................................................... 25
5.10 No Set-Off............................................................................................................ 25
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5.11 Permitted Proceedings ......................................................................................... 25
5.12 Maintenance of Subordination ............................................................................. 27
5.13 No Subordination of Supervisor’s Entitlement .................................................... 27
5.14 Unclaimed money ................................................................................................ 27
5.15 Paramountcy ........................................................................................................ 27
5.16 Reinstatement ...................................................................................................... 28
5.17 Further Provisions ................................................................................................ 28
6 THE REGISTER .................................................................................................. 28
6.1 Obligation to Maintain Register .......................................................................... 28
6.2 Entries in Register ................................................................................................ 29
6.3 Disclosure and Inspection of Register ................................................................. 29
6.4 Closure of Register .............................................................................................. 29
6.5 Audit .................................................................................................................... 30
6.6 Register shall prevail: .......................................................................................... 30
7 TRANSFER OF CAPITAL NOTES ................................................................... 31
7.1 Transfer ................................................................................................................ 31
7.2 Death, Insanity or Bankruptcy of Holder ............................................................. 31
7.3 Terms of Capital Notes Prevail ............................................................................ 31
8 COMPANY’S REPRESENTATIONS, WARRANTIES AND
COVENANTS ..................................................................................................... 31
8.1 Company Representations and Warranties .......................................................... 31
8.2 Company Covenants ............................................................................................ 32
8.3 Reports of Directors and Financial Statements .................................................... 34
8.4 Auditors’ Report .................................................................................................. 35
8.5 Appointment of Auditors ..................................................................................... 36
9 POWERS, DUTIES AND DISCRETIONS OF SUPERVISOR ......................... 37
9.1 Powers .................................................................................................................. 37
9.2 Discretion to Consult Holders ............................................................................. 40
9.3 Supervisor’s Right to be Indemnified .................................................................. 41
9.4 Fiduciary Relationship ......................................................................................... 41
9.5 No duty to disclose .............................................................................................. 42
9.6 Restricted duties to the Company and its subsidiaries ......................................... 42
9.7 No duty in respect of Company rights under Constitution .................................. 42
9.8 Supervisor may attend meeting of shareholders of Company ............................. 42
9.9 Statutory duties of Supervisor .............................................................................. 42
9.10 Acting on Instructions .......................................................................................... 44
9.11 Representation and warranty ................................................................................ 44
10 INDEMNITY OF SUPERVISOR ....................................................................... 44
10.1 Indemnity ............................................................................................................. 44
10.2 Limitation on Indemnity ...................................................................................... 45
11 CHANGE OF SUPERVISOR ............................................................................. 45
11.1 Change of Supervisor ........................................................................................... 45
11.2 Appointment of Substitute Supervisor ................................................................. 45
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12 SUPERVISOR’S REMUNERATION................................................................. 46
12.1 Remuneration ....................................................................................................... 46
12.2 Expenses .............................................................................................................. 46
12.3 Payable on Demand ............................................................................................. 46
12.4 Additional Fees .................................................................................................... 46
13 MODIFICATIONS .............................................................................................. 47
(a) No Consent .......................................................................................................... 47
(b) Extraordinary Resolution ..................................................................................... 48
(c) All Holders ........................................................................................................... 48
13.2 Consent of Majority of Holders ........................................................................... 49
13.3 Modifications Binding ......................................................................................... 49
13.4 Notice of Modification or Amendment ............................................................... 49
14 WAIVER ............................................................................................................. 49
14.1 Temporary Variation ............................................................................................ 49
14.2 Waivers ................................................................................................................ 50
16 SUBSTITUTED OBLIGOR ................................................................................ 50
16.1 Substitution .......................................................................................................... 50
16.2 Release of Obligations ......................................................................................... 51
16.3 Amendments ........................................................................................................ 52
16.4 Solvency ............................................................................................................... 52
16.5 Interests of Holders .............................................................................................. 52
16.6 Supervisor’s Discretion........................................................................................ 52
16.7 Extraordinary Resolution Required ..................................................................... 53
17 NOTICES ............................................................................................................. 53
17.1 Notices ................................................................................................................. 53
17.2 Effectiveness ........................................................................................................ 54
17.3 Proof of Notice..................................................................................................... 54
18 MEETINGS OF HOLDERS ................................................................................ 55
18.1 Convened by the Company .................................................................................. 55
18.2 Convened by the Supervisor ................................................................................ 55
18.3 Other Rules .......................................................................................................... 55
19 DOCUMENTS .................................................................................................... 56
20 RELEASE UPON PAYMENT ............................................................................ 56
21 TERMINATION OF TRUSTS ............................................................................ 56
22 INVALIDITY ...................................................................................................... 56
23 GOVERNING LAW ............................................................................................ 57
24 COUNTERPARTS .............................................................................................. 57
SCHEDULE 1 ................................................................................................................. 58
1. Convening ............................................................................................................ 58
2. Place ..................................................................................................................... 59
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3. Notice ................................................................................................................... 59
4. Quorum ................................................................................................................ 60
5. Right to Attend and Speak ................................................................................... 61
6. Chairperson .......................................................................................................... 62
7. Adjournment ........................................................................................................ 62
8. Person on Register ............................................................................................... 62
9. Authority to Vote ................................................................................................. 62
10. Proxies ................................................................................................................. 63
11. Attorneys .............................................................................................................. 65
12. Corporate Representatives ................................................................................... 65
13. Voting .................................................................................................................. 65
14. Extraordinary Resolution ..................................................................................... 68
15. Extraordinary Resolution Binding ....................................................................... 69
16. Minutes ................................................................................................................ 70
17. Class ..................................................................................................................... 70
18. Resolutions in Writing ......................................................................................... 70
SCHEDULE 2 ................................................................................................................. 72
1413351-8 – Capital Notes Trust Deed
5
THIS TRUST DEED is made as of 22 March 2001 as amended and restated on 1
November 2016.
PARTIES
(1) FONTERRA CO-OPERATIVE GROUP LIMITED a duly incorporated company
having its registered office at Auckland (the “Company”)
(2) THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED a company
incorporated in New Zealand and having its registered office at Auckland (the
“Supervisor”)
BACKGROUND
A The Company has issued, and may continue to issue, Capital Notes under and as
provided in this Deed.
B The Capital Notes are unsecured subordinated indebtedness of the Company as
more particularly provided for in this Deed or any Supplemental Deed.
C The Supervisor acts as Supervisor on behalf of the Holders upon and subject to the
terms and conditions of, and with the powers and authorities contained in, this
Deed.
NOW THIS DEED WITNESSES AND IT IS HEREBY AGREED AND
DECLARED as follows:
PART I : INTERPRETATION AND APPOINTMENT OF SUPERVISOR
1 DEFINITIONS AND CONSTRUCTION
1.1 Location and Governing Law
This Deed shall be construed and take effect as a contract and declaration of trust
made in New Zealand and shall be governed by and construed in accordance with
the law of New Zealand.
1.2 Currency
All references to money in this Deed shall, unless the contrary is stated or
necessarily implied, be deemed to be references to New Zealand currency.
1.3 Currency Conversion
Where for the purposes of any Capital Notes or any provision of this Deed it is
necessary to determine the New Zealand currency equivalent of a sum expressed
in a foreign currency such sum shall for the purposes of this Deed, unless
1413351-8 – Capital Notes Trust Deed
6
otherwise agreed in writing by the Supervisor either generally or in any particular
case, be converted to New Zealand currency on the basis of conversion employed
in preparing the Latest Statement of Financial Position or such other basis as is
agreed from time to time with the Auditors, applied at or about the close of
business in New Zealand on the day on which such calculation falls to be made,
and any Capital Notes which are payable in a foreign currency shall for the
purposes of this Deed (but without affecting the nature or amount of the
indebtedness of the Company in respect of any such Capital Notes or the terms
and conditions of any Capital Notes prescribing an alternative method of
conversion) be treated as being of an amount equal to the New Zealand currency
equivalent determined as aforesaid, provided always that in determining the New
Zealand currency equivalent of any asset or liability in a foreign currency, account
may be taken of any contract or arrangement in force between the Company and
any other person for covering the risk of fluctuations between New Zealand
currency and the foreign currency of the asset or liability (as the case may be).
1.4 Defined Terms
In this Deed and the Schedules hereto unless the context otherwise requires:
Agency Agreement means the agency agreement or agency agreements, between
the Company and the person or persons the Company appoints as the initial
Paying Agent, Calculation Agent and Registrar for the Capital Notes, and includes
any other agreement at any time in force appointing any further or other Paying
Agent, Calculation Agent or Registrar for the Capital Notes or in connection with
their duties;
Agent means, depending on the context, any or all of the Paying Agent, the
Calculation Agent and the Registrar;
Amalgamation means an amalgamation under the Companies Act and
Amalgamate has a corresponding meaning;
Auditors means at any time the Person holding office as the Company’s auditor;
business day means any day on which banks are open for the transaction of
general banking business in Auckland, New Zealand and (but only as regards the
provisions of this Deed relating to the time or manner of payments required to be
made in respect of any Capital Notes) in the principal financial centre of any other
jurisdiction in which such payment is to be made pursuant to the terms of such
Capital Notes;
1413351-8 – Capital Notes Trust Deed
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Calculation Agent means:
(a) the institution initially appointed as calculation agent by the Company
pursuant to the Agency Agreement; and/or
(b) any other or further calculation agent in respect of the Capital Notes as may
from time to time be appointed by the Company, and notice of whose
appointment has been given to the Supervisor pursuant to Clause 8.2(c);
Capital Note means a Capital Note issued by the Company in accordance with
this Deed for the time being outstanding, and where the context permits or
requires, refers also to the Principal Amount represented by any such Capital
Notes;
Capital Note Obligations means all obligations of the Company to the Supervisor
on behalf of Holders, under the terms of the Capital Notes, including (without
limitation) the Principal Amount and interest thereon and the Liquidation Amount,
but does not include any liabilities of the Company to the Supervisor for the costs,
fees and expenses of the Supervisor in respect of its duties under this Deed;
Certificate means a certificate or other document (if any) issued by the Company,
recording that a Holder is entered in the Register as a Holder, generally in the
form set out in the Initial Supplemental Deed or such other form approved by the
Supervisor, and any Certificate issued in replacement thereof or substitution
therefor, in each case subject to the Conditions from time to time applicable to,
and evidencing the entitlement of the Holder of, the Capital Notes specified
therein;
Class means:
(a) in relation to Capital Notes:
(i) any Capital Notes which have attached to them identical rights,
privileges, limitations and conditions (but which may have a different
redemption date or interest rate or both); or
(ii) each category of Capital Notes which the Supervisor determines on a
reasonable basis should be treated as constituting a separate Class of
Capital Notes; and
(b) in relation to Holders, the Holders of each such separate Class of Capital
Notes;
1413351-8 – Capital Notes Trust Deed
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Commencement of Liquidation means the commencement of Liquidation of the
Company under section 241(5) of the Companies Act, or removal of the Company
from the register under Part XVII of the Companies Act or any similar legislation
in substitution thereof or as an alternative or addition thereto under which the
Company will cease to validly exist in New Zealand (including by way of
Amalgamation) and if a statutory manager of the Company is appointed under the
Corporations (Investigation and Management) Act 1989, Commencement of
Liquidation means the date of the appointment of the statutory manager;
Companies Act means the Companies Act 1993;
Co-operative Companies Act means the Co-operative Companies Act 1996;
Conditions means the terms and conditions from time to time applicable to the
Capital Notes being:
(a) in, or substantially in, the form set out in the Initial Supplemental Deed (as
modified from time to time in accordance with this Deed or those
Conditions); and
(b) as may otherwise be contained or referred to in the Prospectus, Investment
Statement or other Offer Document relating to the Capital Notes;
Constitution means the Company’s constitution as it may be amended from time
to time;
Co-operative Shares means co-operative shares issued by the Company, being
shares of the class on issue at the date of this Deed as such Co-operative Shares
may from time to time be subdivided, consolidated or reclassified after the date of
this Deed;
Director means a director of the Company for the time being, and includes an
alternate director acting as a director of the Company and Directors means the
directors (including any committee thereof) acting in accordance with the
constitution of the Company for the time being;
Distribution has the same meaning as in section 2 of the Companies Act;
Effective Date means 16 October 2001;
Election Date of a Capital Note means the date or dates referred to as such in the
Register and recorded on the face of the Certificate (if any) for the Capital Note or
any other date as may be provided in the Conditions and/or the Prospectus,
Investment Statement or Offer Document as being an Election Date;
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Extraordinary Resolution means an Extraordinary Resolution of the Holders or
any class of Holders (as the case may require) as defined in regulation 14 of
Schedule 1;
Financial Reporting Act means the Financial Reporting Act 2013;
Financial Statements has the same meaning as in section 7 of the Financial
Reporting Act;
FMA means the Financial Markets Authority;
FMCA means the Financial Markets Conduct Act 2013;
FMC Regulations means the Financial Markets Conduct Regulations 2014;
FMSA means the Financial Markets Supervisors Act 2011;
Holders means the several Persons for the time being entered in the Register as
the holders of the Capital Notes, and includes their personal representatives;
Initial Supplemental Deed means the Supplemental Deed dated 24 October 2001
between the Company and the Supervisor setting out the form of the Certificate
and the terms and conditions on which Capital Notes are to be offered by the
Company for subscription;
Interest Payment Date means any date for payment of interest on a Capital Note
as may be provided in the Conditions as recorded on the face of the Certificate (if
any) for the Capital Note;
Investment Statement means, in respect of any offer to the public of Capital Notes
under or in accordance with the Securities Act 1978, the investment statement
relating to the offer of those Capital Notes;
issuer obligations has the meaning set out in the FMCA, being an obligation
imposed on the Company under this Deed in respect of the Capital Notes, the
terms of the offer of the Capital Notes, the FMCA or any court order relating to
the Capital Notes;
in writing and written includes words written, printed, typewritten, lithographed,
telexed, cabled or otherwise represented or reproduced in visible form by any
other means;
Latest Financial Statements means, at any time and from time to time, the then
most recent periodic consolidated statement of financial position, statement of
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10
financial performance and statement of cash flows for the Company and its
subsidiaries as at and for the period ending on the relevant date, that has been
prepared and presented to the Directors, whether such comprises audited accounts
or unaudited management accounts;
Latest Statement of Financial Position means at any time the then most recent
consolidated statement of financial position which has been prepared in respect of
the Company and its subsidiaries;
Liquidation means the process of liquidation provided for in Part XVI of the
Companies Act, or removal of the Company from the register under Part XVII of
the Companies Act or any other process under which the Company will cease to
validly exist including by way of Amalgamation but does not include any
reconstruction or Amalgamation of the Company, which has been approved by the
Supervisor, and under which the obligations of the Company under this Deed and
under the terms of issue of Capital Notes are substantially assumed by a successor
to the Company;
Liquidation Amount means, in respect of a Capital Note:
(a) the Principal Amount of the Capital Note plus accrued interest (as that term
is defined in the Conditions) (less any withholdings or deductions required
by law) as at the Commencement of Liquidation of the Company; and
(b) interest on the amount determined in accordance with paragraph (a) in
accordance with the Conditions (as if the full amount thereof were included
in the Principal Amount) from the date of the Commencement of
Liquidation of the Company until the date on which the Capital Note is
redeemed by payment of the amount determined in accordance with
paragraphs (a) and this paragraph in accordance with the Conditions;
Liquidator means the liquidator for the time being of the Company and in the
event of the appointment of a statutory manager of the Company under the
Corporations (Investigations and Management) Act 1989 means the statutory
manager so appointed;
Milk has the same meaning as in the Constitution;
Milksolids has the same meaning as in the Constitution;
Offer Document means, in respect of any offer of Capital Notes made under and
in accordance with the FMCA, the product disclosure statement or other
disclosure document required under clause 26 of Schedule 1 of the FMCA (as
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applicable) or such other document required by law which may replace any of
those documents, relating to the offer of those Capital Notes;
outstanding means, in relation to Capital Notes, all the Capital Notes issued other
than:
(a) any Capital Notes which have been redeemed by the Company (including,
where permitted by the Conditions and the Constitution, by the issue of Co-
operative Shares) pursuant to their terms and conditions; or
(b) any Capital Notes in respect of which the date for redemption pursuant to
their terms and conditions has occurred and the redemption moneys for
which (including all interest accrued thereon to the date for such
redemption) have been duly paid to or to the order of the Supervisor or to
any relevant paying agent and remain available for payment against
presentation of Certificates; or
(c) any Capital Notes which have become void pursuant to their terms and
conditions; or
(d) any Capital Notes which have been purchased and cancelled pursuant to
their terms and conditions,
and (for certainty) it is declared that where any Certificate for Capital Notes has
been replaced in whole or in part by a new Certificate(s) issued in respect of such
Capital Notes then, to the extent so replaced and without prejudice to the Capital
Notes evidenced by such a new Certificate(s), the original Certificate shall not
represent outstanding Capital Notes;
Paying Agent means:
(a) the institution initially appointed as paying agent by the Company pursuant
to the Agency Agreement; and/or
(b) any other or further paying agent in respect of the Capital Notes as may from
time to time be appointed by the Company and notice of whose appointment
or nomination has been given to the Supervisor pursuant to Clause 8.2(c);
Permitted Supplier Payments means, as at any date during a Season and in
relation to Milk supplied to the Company by Shareholders to that date, amounts
paid or due and payable by the Company to Shareholders for that Milk up to a
maximum of $3.00 per kilogram of Milksolids contained in that Milk, provided
that:
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(a) prior to the start of a Season the maximum payment for Milk supplied
during such Season for the purposes of this definition may be varied so that
it is measured against a factor other than Milksolids (or any other factor)
provided that the Supervisor is satisfied that new level of maximum
payment is not materially different to the previous level of maximum
payment; and
(b) the dollar amount of the maximum payment for the purposes of this
definition shall be adjusted with effect from the end of each Season (in
relation to payments for Milk supplied in the following Season) to reflect
any movement in the Producer’s Price Index (Inputs) (or any replacement
for that index) during the 12 month period ending on the quarterly date
immediately preceding the end of the Season;
Person includes an individual, a corporation sole, a company or any other body
corporate, any association of Persons whether corporate or unincorporate, any
state or government or department or agency thereof, and any legislative body
authority or agency whether having separate legal personality or not;
Principal Amount of a Capital Note means one dollar ($1.00);
Prospectus means, in respect of any offer to the public of Capital Notes under or
in accordance with the Securities Act 1978, the prospectus relating to the offer of
those Capital Notes;
Register means the register (or registers) of Capital Notes to be kept pursuant to
this Deed;
Registrar means:
(a) the institution initially appointed as registrar by the Company pursuant to the
Agency Agreement; and/or
(b) any other or further registrar in respect of the Capital Notes as may from
time to time be appointed by the Company and notice of whose appointment
or nomination has been given to the Supervisor pursuant to Clause 8.2(c);
Season has the same meaning as in the Constitution;
Senior Creditor means a Person to whom Senior Debt is owing;
Senior Debt means all outstanding obligations of the Company existing at the
date of this Deed or which arise or are created at any time in the future and
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whether actual or contingent and whether liquidated or unliquidated but does not
include:
(a) any liabilities by the Company to Holders in respect of Capital Note
Obligations; and
(b) any liabilities of the Company in respect of Supply Redemption Rights;
(c) any obligations of the Company which the Company and a creditor of the
Company have agreed will rank pari passu with or subsequent in priority to
Capital Note Obligations; and
(d) any obligations to shareholders in their capacity as holders of shares in the
Company, whether such shares are Co-operative Shares, redeemable
preference shares or another class of share in the Company;
Stock Exchange means the debt market operated by NZX Limited or any
alternative or substitute market or exchange for Capital Notes or other
arrangement on or through which Capital Notes may be freely traded and which is
generally regarded as the principal exchange for Capital Notes in New Zealand,
and/or (as the case may require), but only if (and to the extent that) this Deed or
the Conditions applicable to a Capital Note expressly provides for it, any other
exchange or such other alternative or substitute market or exchange in any other
jurisdiction on or through which Capital Notes may be freely traded and which is
generally regarded as the principal market for the trading of Capital Notes in the
relevant jurisdiction;
Shareholder means a holder of Co-operative Shares in the Company;
Supervisor means The New Zealand Guardian Trust Company Limited or, if it
has retired from office or been removed from office in accordance with this Deed,
it means the Person from time to time who has been appointed Supervisor
pursuant to Clause 11.2 of this Deed;
Supplemental Deed means a Deed supplemental to this Deed;
the Trust Deed and this Deed means this Trust Deed (including the Schedules
hereto) as originally executed and as it may from time to time be supplemented,
modified or novated in accordance with the provisions of this Trust Deed, and
when the context so admits includes any Deed which is or is expressed to be
supplemental to or collateral with this Deed including, for the avoidance of doubt,
the Initial Supplemental Deed; and
working day has the meaning set out in the Interpretation Act 1999.
1413351-8 – Capital Notes Trust Deed
14
1.5 Construction
In the construction of this Deed:
(a) Headings: The headings and marginal notes appear as a matter of
convenience and shall not affect the construction of this Deed;
(b) Clauses: In the absence of an express indication to the contrary, references
to Parts, Clauses, paragraphs and Schedules are to the parts, clauses, and
paragraphs of, and schedules to, this Deed;
(c) Statutes: References to any statute, statutory regulations or other statutory
instrument shall be deemed to be references to the statute, statutory
regulations or instrument as from time to time amended or re-enacted or, as
the context permits, provisions substituted therefor for the time being in
force, and in addition reference to any statute includes any statutory
regulations or instruments from time to time made and in force under that
statute;
(d) Agreements: References to any Deed agreement or other instrument shall be
read as referring to such Deed agreement or other instrument as from time to
time modified supplemented or novated;
(e) Statutory Definitions: Except where inconsistent with specific definitions
thereof contained herein, words defined in the Companies Act, the Financial
Reporting Act, the Co-operative Companies Act or the FMCA shall have the
same meanings in this Deed; and in the case of conflict, the definitions in
the FMCA shall prevail over those in the Companies Act, the Co-operative
Companies Act and/or the Financial Reporting Act, and the definitions in
the Financial Reporting Act shall prevail over those in the Companies Act;
(f) Singular: The singular includes the plural and vice versa, and words
importing any gender include the other genders;
(g) Successors and Assigns: Each reference to a party to this Deed shall be read
as a reference to that party and its successors and assigns;
(h) Definitions in Conditions: Words and expressions defined in the Conditions
and not otherwise defined in this Deed shall, unless the context otherwise
requires, have the same meanings where used in this Deed;
(i) Non-Business Days: Anything which is required by this Deed or the
Conditions to be done on, or as of, a day which is not a business day shall be
done on, or as of, the next business day.
1413351-8 – Capital Notes Trust Deed
15
2 [INTENTIONALLY BLANK]
3 APPOINTMENT OF SUPERVISOR
3.1 Appointment of Supervisor
The Company appoints the Supervisor, and the Supervisor accepts appointment as
supervisor for the Holders in respect of the Capital Notes on the terms and subject
to the provisions of this Deed and applicable law, and with the rights, powers,
duties and obligations conferred by this Deed and in the Conditions or (save to the
extent that it is affected by the express provisions of this Deed or the Conditions)
by applicable law.
3.2 Enforcement of Holders’ rights
(a) The Supervisor shall hold in trust for the benefit of the Holders the right to
enforce any obligations or duties of the Company under this Deed, the
Conditions and the FMCA in relation to the Capital Notes, including the
right to enforce the Company’s obligation to repay or pay amounts
(including interest) owing to Holders in accordance with the terms of this
Deed and the Conditions.
(b) The Company acknowledges that this Deed is made for the benefit of, and
(subject to clause 4.12) is intended to be enforceable by, any Person who is
from time to time a Holder of any Capital Note and the Supervisor.
PART II : CONSTITUTION AND TERMS OF CAPITAL NOTES
4 CAPITAL NOTES
4.1 Issue of Capital Notes
The Company may from time to time issue Capital Notes in accordance with and
subject to this Deed. The Capital Notes may be issued to such Persons, in such
amounts, in such currencies and upon such terms and conditions (not being
inconsistent with the provisions contained in this Deed) as it may from time to
time determine.
4.2 Creation of Other Liabilities
Nothing in this Deed shall prevent or restrain the Company at any time incurring,
varying or otherwise dealing with any indebtedness or other obligations of any
nature, whether contingent secured or otherwise, and whether ranking as Senior
Debt, pari passu with Capital Notes or subordinate to Capital Notes.
4.3 Additional Issues of Capital Notes
Without limiting Clause 4.1 above, the Company may, from time to time in
accordance with the provisions of this Deed and without the consent of the
1413351-8 – Capital Notes Trust Deed
16
Holders or the Supervisor, create and issue additional Capital Notes ranking pari
passu with the initial issue of Capital Notes in all respects (or in all respects
except for the Election Dates, interest rates or payment dates) so as to form a
single issue with the initial issue of Capital Notes.
4.4 Terms and Conditions
Each Capital Note shall be held by the Holders with the benefit of and subject to
the provisions of this Deed, including the Conditions. The provisions of this
Deed, including the Conditions, shall be binding upon the Company, the
Supervisor, the Holders and all Persons claiming under or through them
respectively. The Holders and all Persons claiming by or through them will be
entitled to the benefit of, will be bound by and will be deemed to have notice of
the provisions of this Deed, including the Conditions.
4.5 Privity
The undertakings and provisions of Clause 5 and any Condition expressed to be
given for the benefit of the Senior Creditors are given by the Company, the
Holders and the Supervisor for the benefit of Senior Creditors and all Senior
Creditors and any Liquidator of the Company may rely upon and enforce each of
them. The Holders and the Supervisor acknowledge that section 313(3) of the
Companies Act (agreement to accept lower priority on liquidation) applies to all
Capital Note Obligations and the Company, the Supervisor and Holders further
acknowledge that the Contracts (Privity) Act 1982 will apply to all Senior
Creditors in regard to the subordination of Capital Note Obligations to Senior
Debt and Senior Creditors may enforce Clauses 5.1 to 5.17 of this Deed and any
Condition expressed to be given for the benefit of the Senior Creditors, provided
that the parties hereto are entitled at any time to vary or discharge any of the
provisions of this Deed (including Clause 5) or the Conditions, without requiring
the consent or agreement of any of the Senior Creditors.
4.6 Validity of Capital Notes
No Holder shall be concerned or obliged to enquire whether any Capital Note has
been issued in contravention of any provision of this Deed or the Conditions.
Each Capital Note issued for valuable consideration, the Certificate for which
indicates, or the entry on the Register for which indicates, or in respect of which
other evidence indicates, that it has ostensibly been issued or was intended to be
issued as a Capital Note pursuant to the provisions of this Deed shall be validly
issued and constituted by this Deed and entitled to the benefit of the provisions of
this Deed and the Conditions, notwithstanding that the issue of such Capital Note
was in breach of any provision of this Deed or the Conditions. This Clause shall
not, however, prejudice or affect the Supervisor’s rights under or pursuant to this
Deed against the Company in relation to such breach.
1413351-8 – Capital Notes Trust Deed
17
4.7 Certificates and Confirmations
Subject to the terms and conditions of the relevant Capital Notes or if required by
applicable law, the Company will issue to the relevant Holder a confirmation or
Certificate for each Capital Note evidencing the relevant Capital Note held by the
Holder which shall include all information required under the FMCA and the
FMC Regulations (if and to the extent applicable), be provided in the manner
required by the FMCA and the FMC Regulations (if and to the extent applicable)
and otherwise be in such denominations and in such form and manner (not being
inconsistent with the provisions of this Deed or any applicable law) as shall be
determined by the Company. Any confirmation or Certificate shall contain or
have attached to it, or refer to, the Conditions applying to the Capital Note. All
Certificates when issued shall be and remain at all times subject to the Conditions
(whether or not the Conditions are endorsed thereon) and shall be issued as
registered Certificates, transferable in accordance with the Conditions. Subject to
the Conditions, the Company may, upon such terms (if any) as it may determine,
issue to a Holder:
(a) a new Certificate in substitution for one issued in an incorrect form, or for
an incorrect number of Capital Notes, or otherwise containing incorrect
terms or conditions;
(b) several new Certificates in substitution for a single Certificate and vice
versa; and
(c) a new Certificate in part substitution for a Certificate where some (but not
all) of the Capital Notes represented by the latter Certificate are redeemed,
cancelled, or transferred in accordance with this Deed.
Certificates may be executed by or on behalf of the Company (including by the
Registrar or any issuing agent on behalf of the Company) in any manner permitted
by applicable law, and in compliance with any requirements of applicable law as
regards the mode of execution. Any Certificate bearing the facsimile or electronic
signature of a Person authorised to execute it at the date of printing will be valid
notwithstanding that the signatory may have ceased to be so authorised at the date
of issue or at any time thereafter.
4.8 Replacement Certificates
With the consent, in each case, of the Holder concerned the Company may issue
replacement Certificates in substitution for lost, stolen, damaged, defaced,
destroyed or incorrect Certificates and balance Certificates where the indebtedness
liabilities or obligation evidenced by a Certificate have been discharged in part,
subject, in each case, to satisfactory indemnification and security therefor and to
the relevant terms and conditions of the Capital Notes concerned.
1413351-8 – Capital Notes Trust Deed
18
4.9 Covenant to Pay
The Company covenants with the Supervisor that it will pay the amounts payable
in respect of the Capital Notes as and when due and payable (subject to any right
of the Company, specified in the Conditions, to issue Capital Notes in lieu of the
payment of interest in certain circumstances) in accordance with the Conditions to
or to the order of the Supervisor in the currency and manner in which the same is
payable.
4.10 Covenant to Observe the Trust Deed and Conditions
(a) The Company covenants with the Supervisor that it will comply with,
perform and observe all the provisions of this Deed, the Conditions and the
other terms and conditions of the relevant Capital Notes which are expressed
to be binding on it.
(b) The Supervisor shall take and hold the benefit of the covenants given to it by
the Company under this Deed (including the right to enforce the Company’s
obligations and duties under this Deed, the Conditions and the FMCA) in
respect of the Capital Notes in trust, and for the benefit of, the Holders
generally.
4.11 Satisfaction of Capital Notes
Every payment of Capital Note Obligations duly made to the Holders, or the
Supervisor and every redemption by the Company of Capital Notes duly made in
accordance with the Conditions, shall be in satisfaction pro tanto of the relevant
obligation of the Company to the Supervisor under this Deed.
4.12 Holders’ Right to Sue
No Holder shall be entitled to proceed:
(a) directly against the Company for the enforcement, observance or
performance of any term or condition of the Capital Notes held by such
Holder or of this Deed or the Conditions unless the Supervisor has failed,
within a reasonable time, having become bound so to proceed, to take such
proceedings (as are available to the Supervisor under this Deed) against the
Company and such failure is continuing; or
(b) either against the Company or the Supervisor, for the enforcement,
observance or performance of any provision of this Deed or the Conditions
that is solely for the benefit of the Supervisor.
4.13 Identity of Holders
The Holders are to be regarded as the beneficial owners of the Capital Notes
registered in their names respectively, and are to be regarded as exclusively
entitled thereto and the Company, the Supervisor and all other Persons may act
1413351-8 – Capital Notes Trust Deed
19
accordingly. The Company shall not enter in the Register any actual or
constructive notice of any trust (express, implied or constructive) except in the
prescribed circumstances or, save as provided in the relevant Certificate or except
as ordered by a Court of competent jurisdiction, to recognise any trust or equity
affecting the ownership of any Capital Notes or the money thereby represented.
4.14 Exclusion of Equities
Every Holder will be recognised by the Company as entitled to the Capital Notes
held by it and to the Capital Note Obligations payable thereon free from any
equity set-off or cross claim between the Company and any prior holder thereof.
4.15 Unclaimed Payments
Subject to the terms and conditions of the relevant Capital Notes, any payment of
any of the Capital Note Obligations:
(a) sent or made by or on behalf of the Company to a Holder at its last address
recorded in the Register that shall be returned unclaimed; or
(b) due to a Holder whose address is unknown,
shall be either retained by the Company for such Holder or (if held by or on behalf
of the Supervisor) paid by or on behalf of the Supervisor to the Company (without
prejudice to the rights of the Person entitled thereto in priority to the Company)
and, in either case, retained by the Company for such Holder until claimed without
liability to invest the same or pay interest thereon. Any such amount for which
payment is not claimed within five years from its due date shall be forfeited by the
Directors of the Company for its benefit. After forfeiture of any such amount the
Person who would otherwise have been entitled thereto shall become entitled to
payment of a sum equal to the amount forfeited upon adducing evidence sufficient
to satisfy the Directors that such Person would have been entitled thereto had the
same not been forfeited.
4.16 Receipt By Holders
The receipt of the Holder, or in the case of joint Holders the receipt of any one of
them, for the Capital Note Obligations from time to time accruing due in respect
of any Capital Notes shall be a good discharge to the Company notwithstanding
any notice (express or implied) the Company may have of the right, title, interest
or claim of any other Person to or in such Capital Notes or the Capital Note
Obligations payable in respect thereof.
1413351-8 – Capital Notes Trust Deed
20
4.17 Purchase, Cancellation, Reissue
Subject to any provisions to the contrary in the Conditions:
(a) Purchase: any subsidiary of the Company may subscribe for Capital Notes,
and the Company or any subsidiary of the Company may purchase Capital
Notes from any Person at any time on any market at any price;
(b) Cancel or Reissue: the Company may hold or cancel any Capital Notes so
subscribed for or purchased and/or may re-issue any such Capital Notes, but
shall not be obliged to do so; and
(c) Issue of Co-operative Shares, Other Shares or Other Instruments: the
Company may redeem Capital Notes for cash or by the issue of Co-operative
Shares, any other class of shares or any other instruments in accordance with
the Constitution and the Conditions and all Capital Notes which are
redeemed by the issue of Co-operative Shares any other class of shares or
any other instrument in accordance with the Conditions and the Constitution
shall thereupon be cancelled and neither the Company nor the Supervisor
shall have any further obligations or liabilities in respect thereof.
Notwithstanding Clause 4.17(a) (but subject to the Conditions), the Company
shall not issue or sell Capital Notes to, or purchase Capital Notes from, any related
company of the Company (as defined in section 2(3) of the Companies Act) other
than for what would reasonably be considered to be fair value.
4.18 Reissues
If the Company reissues any Capital Notes in accordance with Clause 4.17(b), the
provisions of this Deed shall apply to the reissue of any such Capital Notes as if
the reissue were the issue of the Capital Notes and the allottee of the reissued
Capital Notes were the original allottee.
4.19 Commissions
The Company shall be at liberty to pay commission fees or brokerage to any
Person for subscribing, underwriting the subscription of, or obtaining
subscriptions for, any Capital Notes.
4.20 Issue at Discount or Premium
Without limiting any other provision of this Deed, the Company shall be at liberty
to issue any Capital Notes at a discount or premium to their Principal Amount.
4.21 Reinstatement
If any payment in respect of Capital Note Obligations made to the Supervisor or to
any Holder by, or on behalf of, the Company is avoided by law such payment
shall, except to the extent that the Holder obtains and retains the benefit of such
1413351-8 – Capital Notes Trust Deed
21
payment, be deemed not to have discharged or affected the liability of the
Company in respect of which that payment was made. In that event the
Supervisor, the Holders and the Company shall be restored to the position in
which each would have been, and be entitled to exercise all the rights which each
would have had, if such payment in respect of Capital Note Obligations had not
been made (to the extent that payment is so avoided).
4.22 Taxation Indemnity of Holder
Whenever, in respect of any Capital Notes, there shall by law be imposed any
liability on the Supervisor or the Company to make any payment of or on account
of tax payable by or in respect of the Holder or the Capital Notes (except as
payable by the Company pursuant to Clause 8.2(f) or where primary liability for
such payment rests with the Company), the Supervisor and the Company
respectively shall in respect of such liability be indemnified by such Holder and
the legal personal representative or successor of such Holder and in the case of the
Supervisor by the Company (in respect of which the Company shall in turn be
indemnified as aforesaid) and any moneys paid by the Supervisor or the Company
in respect of any such liability may be recovered by action from such Holder or the
legal personal representative or successor of such Holder or the Company (as the
case may be) as a debt due to the Supervisor or the Company. Nothing herein
contained shall prejudice or affect any other right or remedy of the Supervisor or
the Company.
4.23 No Guarantee
The Capital Note Obligations and the Company’s other obligations under this
Deed and in respect of the Capital Notes are not guaranteed by any of the
Company’s subsidiaries or any other Person.
PART III : SUBORDINATION AND STATUS OF CAPITAL NOTES
5 SUBORDINATION AND STATUS OF CAPITAL NOTES
5.1 Subordination
In any distribution of assets by the Company in the Liquidation or (to the fullest
extent permissible) statutory management of the Company, the rights of the
Supervisor on behalf of the Holders (and the rights of each Holder) in respect of
the Capital Note Obligations (but no other amounts owing pursuant to the Trust
Deed) shall:
(a) in point or priority and right of payment, rank behind and be subordinated to
all Senior Debt so that in any such distribution no payment shall be made on
account of the Capital Note Obligations until the Senior Debt has been paid
in full; and
1413351-8 – Capital Notes Trust Deed
22
(b) be unsecured and limited to the Liquidation Amount in respect of the
relevant Capital Notes.
5.2 Amounts Payable Prior to Commencement of Liquidation
Nothing in this Clause 5 shall restrict the payment or performance of Capital Note
Obligations in accordance with this Deed and the terms and conditions applicable
to the Capital Notes (including the applicable Conditions), prior to the
Commencement of Liquidation of the Company and the Supervisor and the
Holders (as the case may be) shall be entitled to receive and retain such amounts
paid by the Company. The payment by the Company and receipt by the
Supervisor or a Holder of any such amount shall not constitute a breach of Clause
5.1 or be subject to the trust mentioned in Clause 5.4.
5.3 No enforcement prior to Liquidation
Prior to the Commencement of Liquidation of the Company neither the Supervisor
nor any Holders may claim, demand, plead, sue, prove for, compel or seek to
enforce, directly or indirectly, including by way of set off or counterclaim, or in
any other manner, the payment by the Company of any Capital Note Obligations
in respect of the Capital Notes. Nothing in this Clause applies to the rights of the
Supervisor under Clauses 5.10 and 5.11.
5.4 Commencement of Liquidation
Upon the Commencement of Liquidation of the Company:
(a) the Supervisor shall be entitled to claim, demand, sue or prove for the
payment by the Company of:
(i) the Liquidation Amount in respect of the Capital Notes to the extent,
but only to the extent, necessary to preserve the claim thereto of any
Holder(s) (but without limiting the Supervisor’s right to claim,
demand, sue or prove for the payment of such Liquidation Amount
following repayment in full of the Senior Debt); and
(ii) any amount owing to the Supervisor but unpaid,
in any Liquidation of the Company;
(b) subject to the succeeding provisions of this Clause each Capital Note will
upon the Commencement of Liquidation of the Company be due to be
redeemed for an amount equal to the Liquidation Amount of the Capital
Note;
(c) any proof of debt or other claim (including by way of set off) made by a
Holder or the Supervisor in relation to Capital Note Obligations in respect of
1413351-8 – Capital Notes Trust Deed
23
Capital Notes shall be made subject to the Holder or the Supervisor
acknowledging the priority for payment of all Senior Debt of the Company
and shall be limited to the Liquidation Amount;
(d) no Holder nor the Supervisor shall be entitled to take or receive payment
from the Liquidator of the Company whether directly or indirectly
(including by way of set off or counterclaim) of any Capital Note
Obligations in respect of the Capital Notes then outstanding unless and until
all Senior Debt of the Company has been paid or satisfied in full. If any
such payment or benefit by way of set off is received by, or on behalf of, a
Holder or the Supervisor, the amount or benefit received shall, except to the
extent otherwise provided for in the Conditions of the Capital Notes, be held
upon trust by the Holder or the Supervisor for the Liquidator and shall be
paid by the Holder or the Supervisor (as the case may be) to the Liquidator
upon trust for the purpose of being applied as provided in paragraph (e) of
this Clause;
(e) any amounts received by the Supervisor or a Holder from the Company
under paragraph (d) above and not paid to the Liquidator shall be received
by the Supervisor or the Holder on trust to be applied:
(i) first, in or towards payment or satisfaction of the costs, charges,
expenses and liabilities incurred by the Supervisor in the execution of
the trusts of this Deed (including any unpaid remuneration);
(ii) secondly, in or towards payment of the claims of those persons who
the Liquidator of the Company determines, as at the date of the
Commencement of Liquidation of the Company, were Senior
Creditors of the Company to the extent that those claims have been
admitted to proof in such Liquidation (and have not been satisfied out
of the other resources of the Company):
(A) first, to the Senior Creditor(s) of the Company from or in respect
of whom such amount was received, rateably according to their
respective entitlements to Senior Debt, until all such Senior Debt
has been paid or satisfied in full; and
(B) secondly, to the Senior Creditor(s) of the Company, rateably
according to their respective entitlements to such Senior Debt;
(iii) thirdly (and subject, at all times, to the Conditions applicable to each
Capital Note), subject to all the Senior Debt of the Company having
been paid or satisfied in full, in or towards payment pari passu and
rateably the Liquidation Amount of all Capital Notes remaining
1413351-8 – Capital Notes Trust Deed
24
unpaid and any other obligations of the Company which rank pari
passu with the Capital Note Obligations in respect of the Capital
Notes; and
(iv) fourthly, the balance, if any, in payment to the Company, or to such
other person (including a Liquidator of the Company) as may be
lawfully entitled thereto.
5.5 Performance of Trust
The Trust mentioned in Clause 5.4 may be performed by the Holder or the
Supervisor by paying or repaying the amount so received or recovered, or so much
thereof as shall be necessary to ensure that all of the Senior Creditors are fully
paid or repaid, on trust to the Liquidator of, or other person charged with or
responsible for the making of distributions on behalf of, the Company or, where
there is no such person, the Company, for distribution to the appropriate Senior
Creditors. The receipt of the Liquidator or other such person or the Company,
shall be a good discharge to the Holder or the Supervisor (as the case may be) for
the performance by it of the trust mentioned in Clause 5.4. Any amount which
becomes subject to the trust mentioned in Clause 5.4 and which is paid or repaid
by any Holder or the Supervisor (as the case may be) pursuant to this Clause 5.5
shall thereafter be treated as between the Company and the Supervisor or the
Holder as if it had never been received or recovered in the first place.
5.6 Reliance on Liquidator
Following the Commencement of Liquidation of the Company, the Supervisor and
every Holder will be entitled and is authorised to call for and to accept, as
conclusive evidence, a certificate from the Liquidator of the Company for the time
being regarding the amount of Senior Debt of the Company which has not been
satisfied or otherwise provided for and the Supervisor shall be entitled to rely
upon a statement in writing from such Liquidator to the effect that all Senior Debt
of the Company has been satisfied or discharged and upon receipt of such
statement by the Supervisor the recipient shall no longer be bound by Clause 5.4.
5.7 Right to Appoint Liquidator
If at any time after the Commencement of Liquidation of the Company and while
the Company remains in Liquidation there is no person who holds the office of
Liquidator of the Company, the Supervisor may (without requiring an
Extraordinary Resolution) appoint a person to that office for the purpose of
complying with the requirements of this Deed.
5.8 Production of Certificate
Upon any payment by the Supervisor to a Holder of any Capital Note Obligations
in respect of the Capital Notes, the Supervisor may (but shall not be obliged to)
1413351-8 – Capital Notes Trust Deed
25
require that the relevant Certificate be produced to the Supervisor who may
endorse it with details of the payment.
5.9 Termination of Trusts
The trusts contained in this Deed and the Conditions in favour of the Senior
Creditors shall terminate on the date which is 80 years less one day after the date
of this Deed subject to Clause 21 of this Deed.
5.10 No Set-Off
To the fullest extent permitted by law, neither the Supervisor nor any Holder shall
be entitled to set off against any amounts due in respect of any Capital Notes, any
amount held by the Supervisor or the Holder to the credit of the Company,
whether in an account, in cash or otherwise, nor any advances to, or debts of, the
Company, nor any other amount owing by the Supervisor or the Holder to the
Company on any account whatsoever, nor shall the Supervisor or any Holder be
entitled to effect any reduction of the amount due to the Supervisor or that Holder
in respect of a Capital Note by merger of accounts or lien on the exercise of any
other right, in all such cases the effect of which set-off, merger, lien or exercise of
such rights is or may be to reduce the amount due in respect of that Capital Note
in breach of the subordination provisions of this Clause 5 and the Conditions.
5.11 Permitted Proceedings
Nothing in this Deed or the Conditions shall exclude, limit, defer or otherwise
prejudicially affect:
(a) the right of the Supervisor or, in the circumstances permitted by this Deed, a
Holder to take such action as is expressly permitted by this Deed or the
Conditions;
(b) the right of the Supervisor to seek directions from a court pursuant to the
FMCA or to take any other proceedings seeking the directions of or
guidance by any court, tribunal or other authority as to the performance of
its functions and duties hereunder or otherwise in relation to this Deed or the
Capital Notes;
(c) any proceedings taken by the Supervisor and/or (but subject to Clause 4.12)
any Holder(s) at any time seeking a judgment or order declaratory of the
rights or obligations of any Holder or any of the parties to, or any person
having an interest in, this Deed (other than a judgment or order directing,
requiring or compelling the payment of Capital Note Obligations in respect
of the Capital Notes or otherwise impugning or challenging the provisions
of this Clause 5 or the Conditions);
1413351-8 – Capital Notes Trust Deed
26
(d) the right of the Supervisor or, in the circumstances permitted by this Deed,
any Holder to take proceedings in respect of any contravention or threatened
contravention of, or to compel or enforce performance of, any of the
covenants, undertakings and obligations of the Company under this Deed or
the Conditions, other than (except where expressly permitted) in relation to
the payment of Capital Note Obligations in respect of the Capital Notes
prior to Commencement of Liquidation of the Company;
(e) subject to the Conditions applicable to each Capital Note, the right of the
Supervisor (if and for so long as any breach referred to below is continuing
unremedied and the Conditions so provide) to make written demand upon
the Company for immediate payment of the Capital Note Obligations if:
(i) the Company contravenes any covenant in the Conditions to pay
interest due on the Interest Payment Dates other than in the
circumstances permitted by, and where the Company is complying
with, the Conditions; or
(ii) the Company contravenes any covenant in the Conditions to redeem
the Capital Notes it has elected to redeem, other than in the
circumstances permitted by the Conditions; or
(iii) the Company contravenes any covenant in the Conditions not to make
certain Distributions or make any payment in respect of indebtedness
of the Company ranking pari passu with, or subsequent in priority to
the Capital Notes,
and, if such demand is not satisfied for 30 days after such written demand is
made upon the Company, the right of the Supervisor to take proceedings to
compel payment by the Company of the Capital Note Obligations or for the
Liquidation of the Company (provided that, unless otherwise provided in the
Conditions, the Supervisor shall not issue such proceedings for the
Liquidation of the Company without first obtaining an Extraordinary
Resolution of the Holders of all outstanding Capital Notes issued under the
Trust Deed).
(f) the right of the Supervisor to take proceedings for the Liquidation of the
Company for failure to redeem a Capital Note in any circumstances where
this Deed or the Conditions specifically give that power to the Supervisor,
(provided that, where required by this Deed or the Conditions, the
Supervisor has first obtained an Extraordinary Resolution of the Holders of
all Outstanding Capital Notes under this Deed).
1413351-8 – Capital Notes Trust Deed
27
5.12 Maintenance of Subordination
If any modification to this Deed, including the Conditions or any other
documentation, consent or acknowledgement is necessary or expedient to permit,
facilitate or give effect to the subordination and ranking of any Capital Notes, the
Supervisor is authorised and directed to concur with the Company in executing the
same and any such concurrence shall be on behalf of, and shall bind, the Holders.
5.13 No Subordination of Supervisor’s Entitlement
Nothing in this Deed including the Conditions shall:
(a) subordinate, defer in priority or point of payment, or otherwise affect or
prejudice the payment or reimbursement of the costs, charges, expenses,
liabilities, remuneration, indemnities or other moneys payable to, the
Supervisor arising out of its duties as the Supervisor under this Deed, or the
rights and remedies of the Supervisor in respect thereof all of which shall be
payable to the Supervisor at the time and in the manner herein provided, and
the payment of which may be claimed and/or enforced by the Supervisor,
free of the restrictions contained in Clause 5.1 or the Conditions; or
(b) impose upon the Supervisor or oblige the Supervisor to acknowledge any
personal liability to pay any amount which has not first been received by the
Supervisor in its capacity as Supervisor under this Deed, and any such
liability shall cease in respect of any amount so received and disbursed by
the Supervisor in good faith in the reasonable belief that the disbursement is
authorised under this Deed and, in particular, but without limiting the
generality of the foregoing, the Supervisor shall not be obliged to pay, or to
account for or incur any other liability (whether as a constructive trustee or
otherwise) in respect of, any amount which it receives and disburses to any
Holders before the Supervisor has received actual notice of the
Commencement of Liquidation of the Company.
5.14 Unclaimed money
If for any reason the Company is not able to pay to a Holder the Principal Amount
or interest thereon (other than due to the fault of the Company) the Company may
set aside in any bank account the money so owing and the Company’s obligation
to pay interest thereon shall cease, but without prejudice to the Holder’s claim to
the money so set aside.
5.15 Paramountcy
The provisions contained in this Clause 5 shall apply to the Capital Notes
notwithstanding anything to the contrary contained or implied herein or in the
Capital Notes or the Conditions.
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5.16 Reinstatement
Notwithstanding anything elsewhere contained in this Deed or the Conditions, and
to the maximum extent permitted by law, if the Company ceases to be in
Liquidation (or in any similar process, including statutory management), then, to
the extent that all or any part of the Liquidation Amount remains outstanding and
unpaid, the Supervisor, the Holder and the Company shall be restored to the
position in which each would have been, and be entitled to exercise all the rights
which each would have had, if there had been no Commencement of Liquidation.
5.17 Further Provisions
The Capital Notes are issued on the basis that:
(a) the provisions of this Clause 5 shall apply notwithstanding any variation or
amendment to any agreement creating or evidencing any Senior Debt, and
nothing in these Conditions shall prevent the Company from increasing,
varying, or otherwise dealing with Senior Debt or creating new Senior Debt
in such manner as the Company and any Senior Creditor think fit;
(b) the provisions of the Contracts (Privity) Act 1982 shall apply to the benefits
conferred in this Clause 5 upon the Senior Creditors and each Senior
Creditor is to be considered a “beneficiary” for the purposes of such Act and
that such benefits are intended to be enforceable at the suit of any such
person; and
(c) notwithstanding Clause 5.17(b) above but subject to Clause 13, the
Company and the Supervisor shall be entitled at any time to vary or
discharge any provision of this Clause 5 without requiring the consent or
agreement of the Senior Creditors (or any of them).
PART IV : REGISTER AND TRANSFER OF CAPITAL NOTES
6 THE REGISTER
6.1 Obligation to Maintain Register
The Company shall appoint and maintain a Registrar (which may be the Company
itself (maintaining such Register among its general accounting records or
separately) or any other Person appointed by the Company as Registrar in respect
of the relevant Capital Notes) and cause the Registrar to establish and maintain the
Register in New Zealand. The Company shall comply with and shall use
reasonable endeavours to ensure that the Registrar complies with all legal
requirements and the requirements of this Deed and the Conditions relating to the
maintenance of registers of securities. Separate Registrars may be appointed in
respect of separate Classes or issues of Capital Notes.
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6.2 Entries in Register
There shall be entered in the Register the details required by any applicable law
and such other details as the Company thinks fit, including (without limitation):
(a) the number of Capital Notes and Certificates for the time being issued;
(b) the number of each Certificate;
(c) the Principal Amount, the rate of interest payable on the Principal Amount,
the Election Date(s), the payment dates and the currency of each Capital
Note;
(d) the names and addresses of the Holders;
(e) the date on which Capital Notes were issued or transferred to Holders;
(f) all transfers or changes of ownership of Capital Notes;
(g) particulars of any new or substitute Certificates issued; and
(h) all cancellations of Capital Notes.
6.3 Disclosure and Inspection of Register
The Supervisor, the Holders, the Company (and any other Person on payment of a
reasonable charge) shall, subject to applicable law, be at liberty at all reasonable
times during usual office hours:
(a) to inspect the Register; and
(b) to take copies (including electronic copies) of and extracts from the same
upon payment of a reasonable charge.
The Company shall ensure that the Registrar makes available for inspection, and
provides copies of or extracts from, the Register as required by, and in accordance
with, the FMCA.
6.4 Closure of Register
The Company may, from time to time, close the Register for the purpose of
establishing the Holders entitled to receive any payment by the Company or
Supervisor, or to vote at a meeting of Holders, or for the purpose of effecting an
election on an Election Date but any such closure shall (if the relevant Capital
Notes are quoted on any Stock Exchange) not exceed the times permitted by that
Stock Exchange for listed debt securities. The rights of the Supervisor under
Clause 6.6 shall not be prejudiced by such closure.
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6.5 Audit
The Register shall be audited annually in accordance with the FMCA and other
applicable law. Without limitation to the generality of the foregoing, the Register
must be audited (collectively or otherwise) in accordance with applicable auditing
and assurance standards by the Auditors annually within 4 months of the
Company’s balance date.
6.6 Register shall prevail:
The Supervisor and the Company shall:
(a) be entitled to rely upon the entries in the Register as constituting the sole
and conclusive record of all Capital Notes and Certificates and as to the
Persons entitled to the Capital Notes (being Holders);
(b) not be obliged or concerned to make further enquiry as to the status in
relation to this Deed, or ownership, of any claim, entitlement or interest not
so entered in the Register;
(c) not be deemed to have accepted:
(i) any liability for failure to make enquiry as is referred to in (b) above;
or
(ii) (in the case of the Supervisor only) any trusteeship for the Holders of,
or in respect of, any claim, entitlement or interest not entered in the
Register;
(d) have power, in their respective absolute discretion, to authorise the
correction of the Register upon being satisfied that the Register is incorrect,
and (in the case of the Supervisor only) to be deemed to have accepted
trusteeship in respect of Capital Notes and on behalf of the Holders thereof
as shown by the Register so corrected as from such date as the Supervisor
shall determine;
(e) in the case of the Supervisor, not be liable to the Company or any Holder or
former Holder for accepting in good faith as valid any Certificate or transfer
of a Capital Note, subsequently found to be forged, irregular or not
authentic; and
(f) in the case of the Company, not be liable to the Supervisor or any Holder or
former Holder for accepting in good faith as valid any Certificate or transfer
of a Capital Note, subsequently found to be forged, irregular or not
authentic.
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7 TRANSFER OF CAPITAL NOTES
7.1 Transfer
Capital Notes may be transferred by the Holders in accordance with such
procedures and on the production of such transfer and other documentation (if
any) as is determined by the Company to be appropriate either generally or for
particular Classes of Capital Notes. In any case, the transferor of Capital Notes
shall (notwithstanding any provisions to the contrary as contemplated in Clause
7.3) be deemed to remain the Holder until the name of the transferee has been
entered in the Register.
7.2 Death, Insanity or Bankruptcy of Holder
Any Person becoming entitled to any Capital Notes as a consequence of the death,
insanity or bankruptcy of a Holder may, upon producing such evidence as to its
right or title as the Directors shall require, be registered as the Holder or may
transfer such Capital Notes in accordance with the provisions of this Deed. The
executors or administrators of a deceased Holder (not being one of several joint
Holders) shall be the only Persons recognised by the Company and the Supervisor
as having any title to, or interest in, the Capital Notes so held by that Holder. In
the event of the death of any Holder who held any Capital Notes jointly, the
surviving joint Holder or Holders shall be the only Person or Persons recognised
by the Company and the Supervisor as having any title to or interest in such
Capital Notes. The Company may retain money which is payable upon any
Capital Notes to which this Clause 7.2 applies until a transmission or transfer of
the Capital Notes shall have been registered on such terms and conditions as it
considers reasonable.
7.3 Terms of Capital Notes Prevail
The above provisions of this Clause 7 shall (save as otherwise provided in the
second sentence in Clause 7.1) be subject to any terms and conditions of the
relevant Capital Notes which restrict or prescribe procedures for the transfer
thereof or which otherwise exclude or are inconsistent with such provisions.
PART V : REPRESENTATIONS, WARRANTIES,
COVENANTS AND REPORTS
8 COMPANY’S REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 Company Representations and Warranties
The Company represents and warrants to the Supervisor that:
(a) it is a company duly incorporated under the Companies Act and registered
under the Co-operative Companies Act;
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32
(b) it has power to enter into this Deed, issue the Capital Notes and perform its
obligations hereunder and thereunder;
(c) it has all necessary consents and has taken all necessary corporate and other
action to authorise the execution and performance of this Deed and the
Capital Notes;
(d) its obligations under this Deed and the Capital Notes are legally binding and
(subject to the limitations on enforcement of remedies expressly provided
for in this Deed) enforceable in accordance with their respective terms,
subject to generally applicable limitations on the enforcement of remedies at
law, general equitable principles and to bankruptcy, insolvency or other laws
affecting creditors’ rights generally; and
(e) the execution and performance by it of its obligations under this Deed and
the Capital Notes do not violate in any respect any applicable provision of
any law, decree or regulation of any governmental or other authority, agency
or Court to which it is subject, or any of its constitutional documents, or any
agreement, charge or other instrument to which it is a party or which is or
may be binding on it or any of its assets.
8.2 Company Covenants
Subject to the terms and conditions (including the Conditions) of any particular
Capital Note, the Company covenants with the Supervisor that it will at all times
while any Capital Notes are outstanding:
(a) use its best endeavours to cause the Registrar to keep the Register pursuant
to the Agency Agreement;
(b) at all times maintain a Paying Agent, Calculation Agent and Registrar of
each Capital Note and a Calculation Agent of each Capital Note pursuant to
an Agency Agreement;
(c) give or procure that there is given to the Supervisor not less than 30 days’
prior notice of the appointment, variation or termination of the appointment,
of any Paying Agent, Calculation Agent or Registrar other than the
appointment of the first Agents or of any change of any of the Agent’s
specified office;
(d) comply with and perform all its obligations under the Agency Agreement
and use all reasonable endeavours to ensure that each of the Agents also
does so;
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33
(e) obtain, effect and promptly renew from time to time all authorisations
required under any applicable law to enable it to perform and comply fully
with its obligations under this Deed and each Capital Note required on its
part for the validity or enforceability of this Deed and each Capital Note;
(f) duly and punctually comply with all laws (including all laws relating to the
environment and the payment of taxes) binding upon it the non-compliance
with which is likely to materially adversely affect the general interests of
Holders;
(g) if it has reasonable grounds to believe that it has contravened, may have
contravened, or is likely to contravene, any of its issuer obligations, as soon
as practicable, report the contravention, or possible contravention to the
Supervisor in writing and advise the Supervisor of the steps (if any) that it
has taken or intends to take in light of the contravention or possible
contravention, and the date by which the steps were taken or are to be taken;
(h) send copies to the Supervisor of all notices given by it to Holders generally;
(i) whenever so requested by written notice, make available or provide to the
Supervisor or any Person authorised by the Supervisor for these purposes,
all documents or records relating to the Company and any report or other
information (which may be about any matter relevant to the Supervisor’s
performance of its functions and include forward-looking reports) that the
Supervisor or its authorised person, by written notice, requires the Company
to make available or provide within the timeframe and in the manner
specified by the Supervisor or its authorised person in that notice provided
that such timeframe and manner are reasonable in the circumstances;
(j) if at any time the Capital Notes are entitled to be quoted on the Stock
Exchange, use reasonable endeavours to maintain such entitlement and
furnish to the Stock Exchange such information as it may require in
accordance with its normal requirements, or in accordance with any
arrangements for the time being made with the Stock Exchange;
(k) pay all duties, registration fees and other similar duties, or fees including
penalties (if any) payable on or in connection with the constitution and issue
of the Capital Notes, the execution and registration of this Deed and the
admissibility in evidence of each of them;
(l) carry on and conduct its business in a proper and efficient manner;
(m) within 14 days of the effective date of any amendments to, or the
replacement of, the constitutional documents of the Company, deliver to the
1413351-8 – Capital Notes Trust Deed
34
Supervisor copies of any documents amending or replacing such
constitutional documents (in each case, certified as true and up to date by an
officer of the Company);
(n) maintain its corporate existence and will not Amalgamate, merge or
consolidate with any person unless the resulting or surviving entity assumes,
to the satisfaction of the Supervisor, the obligations of the Company under
the Capital Notes;
(o) comply with the provisions of the FMCA and the FMC Regulations
applicable to the Capital Notes; and
(p) if the Company becomes aware of information on the basis of which it could
reasonably form the opinion that it is, or is likely to become, insolvent (as
defined in the FMCA), it will, as soon as practicable:
(i) disclose to the Supervisor all information relevant to that matter that is
in its possession or under its control and that was obtained in the
course of, or in connection with, the performance of its functions as
issuer; and
(ii) advise the Supervisor of the steps (if any) that it intends to take in
respect of that matter and the date by which the steps are to be taken.
8.3 Reports of Directors and Financial Statements
The Company covenants with the Supervisor that, for so long as any Capital Notes
are outstanding, the Company will deliver to the Supervisor:
(a) not later than four months after the end of the financial years and not later
than three months after the end of the financial half-years a copy of the
Latest Financial Statements for the preceding financial year or half-year (as
the case may be) audited in the case of the Latest Financial Statements for a
financial year, in each case, for the Company;
(b) not later than the times of delivery of the Latest Financial Statements for the
Company pursuant to paragraph (a) above, a report signed by two Directors
in the form set out in Schedule 2, or such other form as the Company and
the Supervisor may agree, stating the matters referred to therein as at the end
of and in respect of such year or half-year (as the case may be); and
(c) any report signed by at least 2 Directors on behalf of the board of the
Company that the Supervisor, by written notice, requires the Company to
provide within the timeframe specified by the Supervisor in that notice,
provided that such timeframe is reasonable in the circumstances.
1413351-8 – Capital Notes Trust Deed
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8.4 Auditors’ Report
The Company shall provide to the Supervisor, at the same time as the audited
Latest Financial Statements for the Company are provided in accordance with
Clause 8.3(a), a separate report by the Auditors addressed to the Supervisor
stating:
(a) whether, in the course of performing their duties as Auditors, they have
become aware of any non-payment by the Company of any interest under
Capital Notes and if so the amount of the interest so unpaid;
(b) the aggregate Principal Amount of Capital Notes on issue and outstanding;
(c) whether the Register has been maintained;
(d) whether in the performance of their duties as Auditors they have become
aware of any matter which, in their opinion, is relevant to the exercise or
performance of the powers or duties conferred or imposed on the Supervisor
by this Deed or the FMCA, and if so giving particulars thereof;
(e) whether in their opinion there is reasonable assurance that, in all material
respects, the Register has been duly maintained in accordance with the
FMCA and the FMC Regulations and correctly contains the information
required by the FMCA and the FMC Regulations;
(f) whether their audit has disclosed any matter, and if so giving particulars
thereof calling in their opinion for further investigation by the Supervisor in
the interests of the Holders;
(g) that they have perused as part of their normal requirements for the
completion of their audit the reports of the directors of the Company under
Clause 8.3(b) given since the last report by the Auditors and whether, so far
as matters which they have observed in the performance of their duties are
concerned, anything has come to their attention which would cause them to
believe that any of the statements made in those reports are incorrect; and
(h) any other matter required by the FMCA or the FMC Regulations to be set
out in that report.
Notwithstanding the above and without limiting the other provisions of this Deed,
the Auditors’ report may be provided in such other form as may be agreed
between the Company, the Supervisor and the Auditors from time to time.
1413351-8 – Capital Notes Trust Deed
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8.5 Appointment of Auditors
(a) For so long as any Capital Notes are outstanding, the Company must, before
recommending the appointment or reappointment of a Person as an auditor
of the Company:
(i) consult with the Supervisor on such appointment or reappointment and
the nature and scope of any assurance engagement in relation to the
Company’s compliance with this Deed;
(ii) ensure that any comments of the Supervisor concerning the proposed
Auditors are brought to the attention of the persons appointing or
reappointing the Auditors;
(iii) give the Supervisor an opportunity to be a party to the assurance
engagement for the purpose of the Supervisor obtaining assurance of
matters relevant to the exercise or performance of the Supervisor’s
powers or duties;
(iv) ensure that the terms of appointment of the Auditors, whether the
Auditors are conducting an audit, review or other engagement, include
that the Auditors will give the Supervisor an opportunity to meet with
the Auditors, without any representative of the Company being
present, to raise or discuss:
(A) at the beginning of such engagement, any issues or concerns
relevant to the exercise or performance of the Supervisor’s
powers or duties; and
(B) matters arising in the performance of such engagement and to
answer any questions the Supervisor may have concerning such
engagement.
(b) For so long as any Capital Notes are outstanding, the Company must notify
the Supervisor if the Auditors resign from appointment, or decline to accept
appointment or reappointment, and must pass on to the Supervisor any
explanation provided by the Auditors for resigning their appointment or
declining to accept appointment or reappointment. The Company must not
attempt to prevent any person who has resigned its appointment as an
auditor, or declined to accept an appointment or reappointment as an
auditor, from offering an explanation, or disclosing to the Supervisor the
reason, for resigning or declining appointment or reappointment.
1413351-8 – Capital Notes Trust Deed
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PART VI : SUPERVISOR PROVISIONS - POWERS, DUTIES,
INDEMNITIES, REMUNERATION AND SUBSTITUTION
9 POWERS, DUTIES AND DISCRETIONS OF SUPERVISOR
9.1 Powers
In addition to the provisions of the law relating to trustees and to facilitate the
discharge of its duties hereunder it is expressly declared that:
(a) the Supervisor may, subject to the provisions of this Deed and the FMCA
(but without limiting its powers under the FMCA), without liability for loss,
obtain, accept and act on, or decline and elect not to act on:
(i) the opinion or advice of, or any information obtained from, any
barrister, solicitor, valuer, stockbroker, surveyor, auctioneer, chartered
accountant or other expert whether obtained by the Company, the
Supervisor or otherwise;
(ii) a certificate signed by any two Directors on behalf of the Directors as
to any fact or matter prima facie within their knowledge upon which
the Supervisor may in the exercise of any of the trusts powers
authorities and discretions and provisions hereof require to be
satisfied, or that any particular dealing transaction step or thing is
expedient or commercially desirable and not detrimental to the
interests of the Holders or any Class of Holders, as sufficient evidence
of such fact or matter or the expediency or desirability of such dealing
transaction step or thing;
(iii) the statements contained in any certificate or certificates or in any
report or reports given pursuant to the provisions of this Deed, as
conclusive evidence of the facts stated therein;
(b) the Supervisor shall not be responsible for acting or relying upon any
resolution purporting to have been passed at any meeting of the Holders or
any Class thereof in respect whereof a proper record has been made and
which the Supervisor believes to have been properly and regularly passed,
even though it afterwards appears that such resolution is not binding or valid
by reason of a defect in the convening of the meeting or the proceedings
thereat or otherwise howsoever;
(c) the Supervisor shall not be responsible for the money subscribed by the
applicants for or subscribers of the Capital Notes or be bound to see to the
application thereof, or for the delivery of Certificates or letters of allotment
1413351-8 – Capital Notes Trust Deed
38
or certificates representing the Capital Notes (when issued) to the Persons
entitled to them;
(d) the Supervisor will not be under any liability to the Company or the Holders
whatsoever unless the Supervisor has failed to show the degree of care and
diligence required of it or having regard to the powers, authorities,
discretions or responsibilities conferred or imposed upon it by this Deed or
by law and the limitations thereon contained in and implied by this Deed
and the Conditions;
(e) save as herein otherwise expressly provided, the Supervisor shall, as regards
all trusts, powers, authorities and discretions vested in it by this Deed have
absolute and uncontrolled discretion as to the exercise or non-exercise
thereof and as to the commencement, prosecution, variation, discontinuance,
or compromise of any action proceeding or claim and provided it shall have
acted with reasonable care and diligence it shall not be responsible for any
loss, costs, damages or expenses or inconvenience that may result from the
exercise or non-exercise thereof;
(f) the Supervisor must not delegate any of its functions under Clauses 9.9(a)(i)
to (iii) unless such delegation is expressly permitted by the FMCA or,
permitted by, and then subject to, conditions imposed under the FMSA but
may, for the avoidance of doubt, delegate its other functions. Where the
Supervisor may delegate its functions, it may, whenever it thinks it
expedient in the interests of the Holders to do so:
(i) delegate at any time or times to any Person or Persons any of the
trusts, powers, or discretions vested in the Supervisor by this Deed
which cannot conveniently be exercised by it or through its employees
upon such terms and conditions and under such regulations (including
the giving of power to sub-delegate) as the Supervisor may in the
interests of the Holders think fit and (subject to Clause 10.2) the
Supervisor shall not be responsible for any loss incurred by any
misconduct or default on the part of any such delegate or sub-delegate;
(ii) instead of acting through its permanent employees in the carrying out
of any of the trusts powers or discretions hereby vested in it employ an
agent to transact all business and do all acts required to be done under
this Deed including the receipt and payment of money; and
(iii) delegate from time to time and at any time to any of its officers any of
the trusts, powers, authorities and discretions vested in the Supervisor
by this Deed which owing to the place in which they are to be or may
1413351-8 – Capital Notes Trust Deed
39
require to be exercised cannot conveniently be exercised by the
Supervisor;
(g) without limiting Clause 9.1(a)(i), engage from time to time an expert (for
example, an auditor, investigating accountant, valuer or actuary) if it
considers, on reasonable grounds, that it requires the assistance of the expert
to:
(i) determine the financial position of the Company; or
(ii) review the business, operation, management systems or the
governance of the Company.
Where the Supervisor engages an expert pursuant to this Clause 9.1(g) the
Company shall provide reasonable assistance to the expert to allow the
expert to provide the assistance, and (without limiting Clauses 10 or 12.2)
the fees and expenses of the expert, which must be reasonable in the
circumstances, shall be paid by the Company.
(h) the Supervisor’s powers to cause the remedying of any contravention of the
provisions of this Deed shall be subject to any other provision of this Deed
which is inconsistent with the exercise of such powers;
(i) any consent given by the Supervisor for the purposes of this Deed may be
given on such terms and conditions (if any) as the Supervisor reasonably
thinks fit;
(j) the Supervisor may determine whether or not a failure by the Company to
perform any obligation under the provisions of the Conditions or this Deed
is in its opinion capable of remedy and/or is materially prejudicial to the
interests of the Holders and any such determination shall be conclusive and
binding upon the Company and the Holders;
(k) any moneys held by the Supervisor and subject to the trusts contained in this
Deed may, at the Supervisor’s discretion, be invested in the name of the
Supervisor or its nominee in any investments permitted for the investment of
trust funds as determined by the Supervisor (including, if the Company so
requests, in the purchase or subscription for Capital Notes) with power to
vary such investments and from time to time to deal with or dispose of all
such investments or any part thereof. The income arising from the
investments made by the Supervisor shall, unless and until the
Commencement of Liquidation of the Company, belong to the Company;
1413351-8 – Capital Notes Trust Deed
40
(l) any representative of the Supervisor, being a person authorised to act for the
purposes of this Clause by any director, general manager or secretary of the
Supervisor, shall be entitled to attend any general meeting of the Company,
and to be heard at any such meeting which he or she attends on any part of
the business of the meeting which concerns the Supervisor as such or the
Holders; and
(m) the Supervisor may, whenever it thinks it expedient in the interests of the
Holders to do so, apply to a Court at any time for an order:
(i) under section 208 of the FMCA, if the Supervisor is satisfied that:
(A) the Company is unlikely to be able to pay all money owing in
respect of the Capital Notes as and when due;
(B) the Company is insolvent (as defined in the FMCA) or the
security of benefits or the financial position or management of
the Company is otherwise inadequate;
(C) there is a significant risk that the interests of Holders will be
materially prejudiced for any other reason;
(D) the provisions of this Deed are no longer adequate to give proper
protection to the interests of the Holders; or
(ii) under section 210 of the FMCA and within 20 working days (or, with
leave of the court, within any longer period) after the passing of an
Extraordinary Resolution of Holders, directing it not to comply with
an Extraordinary Resolution of Holders,
and it may consent to, approve or oppose any application to a Court by the
Company or by or at the instance of any Holder or the FMA.
9.2 Discretion to Consult Holders
In the event of any breach of the provisions of this Deed on the part of the
Company or the occurrence of any circumstances which may result in such a
breach which the Supervisor is reasonably satisfied may have a material adverse
effect on the Holders, the Supervisor may, in its absolute discretion:
(a) require the Company to report the circumstances and nature of such breach
and any other information concerning the Company which the Supervisor
has received under or in relation to this Deed or the Capital Notes and which
it reasonably considers to be material to the Holders or any of them; and
1413351-8 – Capital Notes Trust Deed
41
(b) require the Company to request the Holders to indicate to the Supervisor
their preferences as to any exercise or non-exercise of the Supervisor’s
powers under this Deed or the Capital Notes or as to any action or omission
to act by the Supervisor in relation to the breach or any other matter or thing.
If the Company fails to so communicate to Holders, the Supervisor may, subject to
Clause 9.5, itself do so. Any such report shall be given in such manner as is
considered by the Supervisor to be the most practicable and expedient in all the
circumstances.
9.3 Supervisor’s Right to be Indemnified
To the extent permitted by law and subject to Clause 10.2, the Supervisor may
decline to take any action or exercise any power or discretion or comply with or
implement any direction or request given pursuant to the provisions of this Deed
whether or not it is otherwise bound to so act if in its reasonable view it and each
of its officers, employees or agents is not adequately indemnified by the Company
under this Deed or otherwise against all actions, proceedings, claims and demands
to which any of them may be rendered liable and all costs, charges, losses,
damages and expenses which it or they may incur by so doing, including in respect
of any action taken or not taken in pursuance of a request or instruction to
represent or act on behalf of Holders collectively or any of them, whether or not in
pursuance of a role or an exercise of powers expressly set out in this Deed. The
Supervisor may not, however, so decline to take any action or exercise any power
or discretion or comply with or implement any direction or request where it and
each of its officers, employees or agents is so indemnified to its satisfaction by
such person or persons as are acceptable to the Supervisor.
9.4 Fiduciary Relationship
The Supervisor shall not be entitled to be a Holder on its own account. Nothing in
this Deed prohibits the Supervisor from being a Holder in any supervisor, agency,
nominee or other representative capacity or from being a creditor or shareholder
of, or having any other interest in, the Company or of any of its subsidiaries or
from acting in any other fiduciary, contractual, agency or representative capacity
for a Holder, the Company or any of its subsidiaries without breach of any
obligations established by this Deed or otherwise imposed or implied by law
arising out of any such relationship. The Supervisor may enter into any
transactions with the Company or any of its subsidiaries in the ordinary course of
business and will not be accountable to the Holders for any profits arising from
such transactions. Nothing in this Trust Deed prohibits any holding company or
subsidiary company of the Supervisor or any employees or directors of the
Supervisor or of any of its holding companies or subsidiary companies from
holding, either absolutely as owner or in any other capacity, any Capital Notes, or
dealing in or giving advice in respect of Capital Notes.
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9.5 No duty to disclose
The Supervisor is not (unless and to the extent ordered to do so by a court of
competent jurisdiction) required to disclose to any Holder any financial or other
information made available to the Supervisor by the Company or any adviser to
the Company, in connection with this Deed.
9.6 Restricted duties to the Company and its subsidiaries
The Supervisor has no duties under this Deed to the Company or any subsidiary or
holding company of the Company in their capacity as Holders, except the duties
arising under the Conditions.
9.7 No duty in respect of Company rights under Constitution
For the avoidance of doubt, and without limiting any provision of this Deed, the
Supervisor has no duty to make any enquiries in relation to, consent to, or exercise
any discretion in respect of, the exercise of any right or discretion of the Company
conferred by, or referred to in, the Constitution.
9.8 Supervisor may attend meeting of shareholders of Company
The Supervisor may attend, by a representative or a proxy, all meetings of
shareholders of the Company and at any such meeting may raise and speak on any
matter of concern to the Supervisor or any Holder.
9.9 Statutory duties of Supervisor
(a) In accordance with the FMCA, the Supervisor:
(i) is responsible for acting on behalf of the Holders in relation to the
Company, any matter connected with this Deed or the terms of the
offer of the Capital Notes and any contravention or alleged
contravention of the Company’s issuer obligations;
(ii) is responsible for supervising the Company’s performance:
(A) of its issuer obligations; and
(B) in order to ascertain whether or not the assets of the Company
that are or may be available, whether by way of security or
otherwise, are sufficient or likely to be sufficient to discharge the
Capital Note Obligations as they become due;
(iii) is responsible for performing and exercising any other functions,
duties and powers conferred or imposed on the Supervisor by this
Deed, the FMCA and the FMSA;
1413351-8 – Capital Notes Trust Deed
43
(iv) must:
(A) act honestly in acting as supervisor;
(B) in exercising its powers and performing its duties as supervisor,
act in the best interests of the Holders;
(C) exercise reasonable diligence in carrying out its functions as
supervisor;
(v) must do all the things it has the power to do to cause any
contravention or alleged contravention of the Company’s issuer
obligations to be remedied unless it is satisfied that the contravention
will not have a material adverse effect on the Holders of the Capital
Notes;
(vi) subject to any court order made under section 210 of the FMCA, must
act in accordance with any direction given by an Extraordinary
Resolution of Holders or an affected Class of Holders that is not
inconsistent with any enactment, rule of law or this Deed in relation
to:
(A) seeking a remedy to a contravention or alleged contravention of
the Company’s issuer obligations in respect of the Capital Notes;
and
(B) any other matter connected with the Supervisor’s functions; and
(vii) in exercising its powers and performing its duties as supervisor, must
exercise the care, diligence, and skill that a prudent person engaged in
the business of acting as a licensed supervisor (as those terms are
defined in the FMCA) would exercise in the same circumstances.
(b) The Supervisor has entered into this Deed on the basis that the duties of the
Supervisor as prescribed in the FMCA and as described in Clause 9.9(a)
shall be construed and interpreted to recognise and take into account the
following characteristics of the Capital Notes:
(i) they are debt securities which do not become due for payment, and in
relation to which no payment of interest can be compelled, except in
accordance with Clause 5.11(e) or upon the Liquidation of the
Company;
1413351-8 – Capital Notes Trust Deed
44
(ii) the Company may freely incur further indebtedness as referred to in
Clause 4.2;
(iii) the subordination and the postponement in priority of the Capital
Notes to the claims of Senior Creditors; and
(iv) the limitations on the rights of the Holders and the Supervisor on
behalf of the Holders to compel or enforce payment of any principal,
interest or other sums and the other limitations on the rights of the
Holders or the Supervisor (including in respect of any breach by the
Company) provided in this Deed (and/or the applicable Conditions),
and shall, to the maximum extent permitted by law, be limited accordingly.
All Holders shall be deemed to have knowledge of and to have accepted that the
duties and obligations of the Supervisor pursuant to the FMCA shall be construed,
interpreted and limited (to the extent permitted by law) as above provided.
9.10 Acting on Instructions
Whenever any authorisation or approval for or in respect of the taking of any
action or other matter, or any direction to take, or in respect of the taking of, any
action or other matter, may under the provisions of this Deed be given to the
Supervisor by Extraordinary Resolution, the Supervisor may act in reliance upon
such authorisation or approval or (as the case may be) shall act in accordance with
any such direction, and shall not be responsible for any loss, costs, damages,
expenses or inconvenience that may result from the actions so taken in reliance
thereon.
9.11 Representation and warranty
The Supervisor represents and warrants to the Company and the Holders that it is
licensed (as that term is defined in the FMCA) and that such licence covers the
supervision of all Capital Notes issued under this Deed. The representation and
warranty contained in this Clause 9.11 shall be deemed to be repeated for the
benefit of the Company and each Holder on each Issue Date and on each Interest
Payment Date for each Capital Note.
10 INDEMNITY OF SUPERVISOR
10.1 Indemnity
Without prejudice to the right of indemnity by law given to trustees and subject to
Clause 10.2, the Supervisor and every attorney, manager or agent or other person
appointed by the Supervisor hereunder or under any deed supplemental or
collateral hereto shall be entitled to be indemnified out of any funds held by it
pursuant to this Deed and in priority to the Holders:
1413351-8 – Capital Notes Trust Deed
45
(a) in respect of all liabilities and expenses incurred by it or any of them in the
execution or purported execution of the trusts hereof or of any powers,
authorities or discretions in it or any of them pursuant to this Deed; and
(b) against all actions, proceedings, costs, claims and demands in respect of any
matter or thing done or omitted or in any way relating to this Deed,
other than any of the foregoing which arise out of the Supervisor’s gross
negligence or wilful default or breach. The Supervisor may retain and pay out of
any moneys in its hands arising from the trusts of this Deed, all sums necessary to
effect such indemnity and also the remuneration and disbursements of the
Supervisor as herein provided.
10.2 Limitation on Indemnity
The Supervisor’s rights to be indemnified in relation to the performance of the
Supervisor’s licensee obligations (as that term is defined under section 4 of the
FMSA) under this Deed are available only in relation to the proper performance of
its duties under Clauses 9.9(a)(iv) and 9.9(a)(vii) and no other provision of this
Deed that is contrary to the foregoing shall have any effect.
11 CHANGE OF SUPERVISOR
11.1 Change of Supervisor
Subject to any limitation imposed by applicable statute and in the case of Clauses
11.1(a) to 11.1(c) to the appointment and acceptance of a successor Supervisor as
provided in Clause 11.2, the Supervisor having performed all its functions and
duties or a court consenting to such resignation or removal (as applicable):
(a) the Supervisor may retire at any time without assigning any reason therefor
upon giving ninety days’ notice in writing to the Company of its intention to
do so;
(b) the Company may, with consent of the FMA, remove the Supervisor from
office by giving not less than 30 days’ written notice to the Supervisor;
(c) the Holders may remove the Supervisor from office by passing of an
Extraordinary Resolution of each Class of Holders to that effect; or
(d) the FMA or the Company may remove the Supervisor from office in
accordance with Part 2 of the FMSA.
11.2 Appointment of Substitute Supervisor
The power of appointing a substitute supervisor in place of a supervisor which has
retired or has ceased to exist or to be qualified pursuant to applicable legislation
1413351-8 – Capital Notes Trust Deed
46
for appointment as supervisor hereunder, or which is removed from office, shall
be vested in the Company (subject to obtaining the approval of the Holders by
Extraordinary Resolution).
12 SUPERVISOR’S REMUNERATION
12.1 Remuneration
The Company shall pay to the Supervisor by way of remuneration for its services
hereunder:
(a) a periodic fee of such amount and at such times as may be agreed in writing
from time to time; and
(b) such additional fees as set out in Clause 12.4,
provided that:
(c) the Supervisor may elect payment of remuneration determined by and
commensurate with work actually required to be carried out by the
Supervisor hereunder in lieu of the above fees; and
(d) any failure to agree on any amounts payable to the Supervisor under Clauses
12.1(a) to 12.1(c) shall be referred to arbitration under the Arbitration Act
1996 or in such other manner as the Company and the Supervisor may
agree.
12.2 Expenses
The Company will also pay all expenses (including travelling expenses and
reasonable legal fees incurred on an own client basis) reasonably incurred by or on
behalf of the Supervisor in connection with the preparation and execution of this
Deed and of any deed collateral or supplemental hereto and the exercise of any
power or execution of any trust conferred on the Supervisor hereunder (including
without limitation the taking of any expert advice reasonably deemed necessary by
the Supervisor).
12.3 Payable on Demand
All expenses incurred or payments made in the lawful exercise of the powers
hereby conferred on the Supervisor shall be payable on demand.
12.4 Additional Fees
The Company will also pay on demand any reasonable charges on a full indemnity
basis made by the Supervisor for work done by it in connection with:
1413351-8 – Capital Notes Trust Deed
47
(a) any application under the trusts or provisions hereof for its consent to or
approval of any thing act or matter;
(b) the preparation, execution and variation (and release when applicable) of
this Deed (including any supplemental deed) and any registration cost in
connection with any of them;
(c) the exercise or attempted exercise by the Supervisor of any power or
discretion conferred on the Supervisor by this Deed in respect of the Capital
Notes, or the performance of its duties, including the taking of any expert
advice;
(d) any breach, default or non-compliance by the Company of or with any
obligation under this Deed or the Capital Notes;
(e) the convening and holding of any meeting of the Holders and carrying out of
any directions or resolutions of such a meeting; and
(f) any other matters dealt with in the arrangements referred to in Clause
12.1(a).
PART VII : MODIFICATION OF TRUST DEED AND SUBSTITUTION
13 MODIFICATIONS
13.1 The Supervisor may concur with the Company in making any modifications or
additions to this Deed or to the terms and conditions of any Capital Notes:
(a) No Consent
Without the consent of the Holders if the same:
(i) shall be made to correct a manifest error or is of a formal or technical
nature; or
(ii) is necessary to ensure that the tenor or nature of the obligations
imposed upon the Company hereunder correspond with or do not
conflict with the obligations imposed on the Company under or
pursuant to the FMCA, the Companies Act, the Co-operative
Companies Act, or the Financial Reporting Act or by any other
applicable statutory provision; or
(iii) shall be convenient for the purpose of obtaining or maintaining a
quotation of any Capital Notes on any Stock Exchange in New
Zealand or elsewhere; or
1413351-8 – Capital Notes Trust Deed
48
(iv) shall be made to comply with the requirements or any modification of
the requirements of any applicable law; or
(v) is in respect of any of the provisions for reporting to the Supervisor
under this Deed; or
(vi) is in respect of any modification required pursuant to Clause 5.12 or
5.17 of this Deed; or
(vii) is in the Supervisor’s reasonable opinion an appropriate and
reasonable modification in all the circumstances in so far as they relate
to this Deed and the Company (as to which modifications are
necessary or convenient for complying with any practice of the New
Zealand financial markets or for complying with banking practice, or
are necessary convenient or useful for the purpose of any financial
market, banking or business practice or technique or method adopted
by either the Company or Persons which carry on similar business to
the Company, shall be prima facie deemed reasonable and
appropriate), provided that, if Capital Notes have been issued, the
Supervisor is satisfied that any such modification or addition will not
have a material adverse effect on the ability of the Company to pay the
Capital Note Obligations due in the reasonably foreseeable future or
have a material adverse effect on the Holders,
and, in any such case, the Supervisor is satisfied that such amendment will
not have a material adverse effect on the Holders; or
(viii) the Supervisor is satisfied that such amendment will not have a
material adverse effect on the Holders.
(b) Extraordinary Resolution
If the same shall be approved by an Extraordinary Resolution of the Holders
or each class of Holders that is or may be adversely affected;
(c) All Holders
If the same shall be approved in writing by all the Holders (and such
authorisation may be given in one or more documents in similar form); or
(d) FMA
If the FMA is satisfied that the same is necessary to enable this Deed to
comply with the FMCA or any other enactment or any rule of law and
consents to the same,
1413351-8 – Capital Notes Trust Deed
49
provided that, in each case, the Supervisor must, where required by the FMCA,
provide or, where applicable, obtain the certificates required under section
108(2)(b) of the FMCA.
13.2 Consent of Majority of Holders
Where any consent, approval or direction (whether generally, in principle or
otherwise) has been given by the Holders by Extraordinary Resolution in respect
of any matter, then any further consent, approval, direction or other action by or
on behalf of the Holders and/or the Supervisor which may be necessary to give
effect to that matter, or which is otherwise permitted by the terms of such
Extraordinary Resolution, may be given or taken by or on behalf of the Holders
and/or the Supervisor by notice given (or other documentation signed) by a simple
majority of Holders.
13.3 Modifications Binding
Any such modification or addition shall be binding on all Holders.
13.4 Notice of Modification or Amendment
Notice of any modification or addition made pursuant to Clause 13.1(a), including
a description of the modification or addition, shall be provided by the Company to
the Holders within 10 working days of the modification or addition being made,
unless the Supervisor notifies the Company that such notification is not required
to be provided to the Holders or it would be appropriate to give notice of the
modification or addition in some other manner.
14 WAIVER
14.1 Temporary Variation
In addition to and not in abrogation of or substitution for Clause 13 (but subject to
any applicable law) the Supervisor may temporarily vary the provisions of this
Deed or the terms and conditions of any Capital Notes in each case for such period
and on such terms as:
(a) the Supervisor may deem appropriate provided that it is satisfied that such
variation will not have a material adverse effect on the Holders and the
Supervisor provides or, where applicable, obtains the certificates required
under section 108(2)(b) of the FMCA; or
(b) may be approved by Extraordinary Resolution of Holders, or Holders of the
relevant Class, as applicable, in accordance with section 108(3) of the
FMCA.
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14.2 Waivers
Subject to any applicable law by notice to the Company the Supervisor may waive
any breach or anticipated breach by the Company of this Deed or of the terms and
conditions of any Capital Notes either wholly or in part for a specified period or
indefinitely and on such other terms and conditions as:
(a) it deems expedient provided that it shall be satisfied that such waiver will
not have a material adverse effect on the Holders and provided further that
no such waiver shall prejudice the rights of the Supervisor or the Holders in
respect of any other breach; or
(b) may be approved by Extraordinary Resolution.
Any waiver given by the Supervisor shall bind all Holders.
15 CONSTRUCTION BY REFERENCE TO ANALOGOUS OBLIGATIONS
AND EXEMPTIONS
The Supervisor acknowledges and the parties hereto declare that notwithstanding
the provisions of this Deed any obligation of the Company hereunder that is
materially the same as or analogous to any obligation imposed upon the Company
by or pursuant to the FMCA shall be construed subject to any relevant exemption
granted or applicable to the Company pursuant to the FMCA and to any
modifications hereafter made to such Act and shall only be enforceable against the
Company to such extent.
16 SUBSTITUTED OBLIGOR
16.1 Substitution
The Supervisor may agree, without the consent of the Holders (except in the
circumstances referred to in Clause 16.7), to the substitution in place of the
Company in respect of all or any Capital Notes (“Relevant Capital Notes”) (or of
any previous Substituted Obligor under this Clause 16), as the principal debtor
under this Deed in respect of the Relevant Capital Notes, of any other body
corporate incorporated in any country in the world (in this Clause 16 called the
“Substituted Obligor”), provided that:
(a) Trust Deed: a trust deed is executed or some other form of undertaking is
given by the Substituted Obligor to the Supervisor, in form and manner
satisfactory to the Supervisor, agreeing to be bound by the terms of this
Deed and the Relevant Capital Notes with any consequential amendments
that may be appropriate as fully as if the Substituted Obligor had been
named in this Deed and on the Relevant Capital Notes as the principal
1413351-8 – Capital Notes Trust Deed
51
debtor in place of the Company (or of any such previous Substituted
Obligor);
(b) Maintain rights: arrangements are made satisfactory to the Supervisor for
the Holders of the Relevant Capital Notes to have or be able to have the
same rights mutatis mutandis against the Substituted Obligor as they have
against the Company (or any such previous Substituted Obligor);
(c) Other requirements: the Company (or any such previous Substituted
Obligor) and the Substituted Obligor comply with such other reasonable
requirements as the Supervisor may direct in the interests of the Holders of
the Relevant Capital Notes, which may include a requirement that the
Company remains bound by all or certain of the provisions of this Deed in
respect of the Relevant Capital Notes;
(d) Approvals: the Supervisor is satisfied that:
(i) the Substituted Obligor has obtained all necessary governmental
and regulatory approvals and consents necessary for its assumption
of the obligations and liability as principal debtor under this Deed
in respect of the Relevant Capital Notes in place of the Company
(or of any such previous Substituted Obligor); and
(ii) such approvals and consents are at the time of substitution in full
force and effect; and
(e) Guarantee: if the Substituted Obligor is a subsidiary of the Company, the
Company enters into a guarantee in favour of the Supervisor on behalf of the
Holders (which, for the avoidance of doubt, will rank behind the interests of
Senior Creditors and will be subject to the same subordination provisions as
are set out in Clause 5 and the Conditions), under which the Company
guarantees the performance of the Substituted Obligor’s obligations under
the trust deed executed in accordance with Clause 16.1(a) and under this
Deed;
(f) Clause 16.7: if applicable, the requirements of Clause 16.7 are satisfied.
16.2 Release of Obligations
Any such agreement by the Supervisor pursuant to Clause 16.1 shall to the extent
so expressed in such agreement operate to release the Company or previous
Substituted Obligor (as the case may be) from any or all of its obligations under
this Deed in respect of the Relevant Capital Notes. Not later than 14 days after the
execution of any such documents as aforesaid and after compliance with the
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52
Supervisor’s said requirements, the Supervisor shall give notice thereof to the
Holders in the manner provided in Clause 17.
16.3 Amendments
Upon the execution of such documents and compliance with the said requirements
the Substituted Obligor shall be deemed to be named in this Deed and on the
Relevant Capital Notes as the principal debtor in place of the Company or any
previous Substituted Obligor, and this Deed the Relevant Capital Notes shall
thereupon be deemed to be amended in such manner as shall be necessary to give
effect to the substitution and without prejudice to the generality of the foregoing
any references in this Deed, in the Relevant Capital Notes to the Company or any
previous Substituted Obligor shall be deemed to be references to the Substituted
Obligor.
16.4 Solvency
If any two directors or equivalent officers of the Substituted Obligor shall certify
to the Supervisor that the Substituted Obligor is solvent at the time at which the
said substitution is proposed to be effected the Supervisor shall not be bound to
have regard to the financial condition profits or prospects of the Substituted
Obligor or to compare the same with those of the Company or any previous
Substituted Obligor.
16.5 Interests of Holders
In connection with any substitution in accordance with this Clause 16, the
Supervisor shall not have regard and shall be released from any obligation or duty
it might otherwise have under this Deed or implied at law in relation to the
exercise of any of its discretions or powers under this Clause 16 or to advising
Holders in connection with any meeting of same, to have regard to the
consequences of such substitution for individual Holders resulting from their
being for any purpose domiciled or resident in or otherwise connected with or
subject to the jurisdiction of any particular territory and the Supervisor shall not be
entitled to require nor shall any Holder be entitled to claim from the Company or
any previous Substituted Obligor any indemnification or payment in respect of any
tax consequences of any such substitution upon individual Holders except to the
extent already provided for by the terms and conditions of the Relevant Capital
Notes, provided that the indemnity in favour of the Supervisor in Clause 9.3 shall
extend to any costs, claims, demands or losses actually suffered or incurred (as the
case may be) by the Supervisor arising out of its compliance with this Clause 16.5.
16.6 Supervisor’s Discretion
The exercise or non-exercise of the Supervisor’s rights and powers under this
Clause 16 and the terms of any such exercise, shall be at the discretion of the
Supervisor which may refuse to exercise the same without the approval of an
Extraordinary Resolution of the Holders of the Relevant Capital Notes provided
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53
that where the Substituted Obligor is a Subsidiary of the Company the Supervisor
shall not refuse to exercise its powers to agree to such substitution unless there is
reasonable evidence indicating the likelihood that the Holders of the Relevant
Capital Notes will be materially prejudiced thereby.
16.7 Extraordinary Resolution Required
Notwithstanding any other provision of this Clause 16, where the Substituted
Obligor is not a Subsidiary of the Company, the Company must obtain the
approval of the Holders of the Relevant Capital Notes to the exercise of the rights
and powers under this Clause 16 (which approval shall be given by way of
Extraordinary Resolution of the Holders of the Relevant Capital Notes).
PART VIII : MISCELLANEOUS PROVISIONS
17 NOTICES
17.1 Notices
Any notice demand consent or request under this Deed shall be in writing and may
be signed or given by or on behalf of the Company, the Supervisor, or any Holder
(whichever party is the giver thereof) by such Person or by an officer employee
agent attorney or solicitor thereof and may be given:
(a) To or By Holders: to Holders of Capital Notes by prepaid letter addressed to
their relevant addresses last recorded in the Register, or in the case of a
notice to a corporation or to the Supervisor at its registered office or
principal place of business, or in any case by email to the relevant specified
email address; or
(b) Parties to this Deed: by any party to this Deed to any other party (unless
that other party has by 15 days written notice specified another address) by
making or delivering it to that other party at the address shown below:
(c) if to the Company to:
Fonterra Co-operative Group Limited
109 Fanshawe Street
Auckland Central
Auckland 1010
Fax No: (09) 379 8221
Email address: [email protected]
Attention: Fonterra Treasury
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(d) if to the Supervisor to:
The New Zealand Guardian Trust Company Limited
Level 15
191 Queen Street
Auckland
Fax No: (09) 969 3732
Email address: [email protected]
Attention: General Manager – Corporate Trusts
17.2 Effectiveness
Notices given pursuant to this Deed shall be deemed to have been made or given:
(a) Delivery: in the case of delivery, when received;
(b) Telephone/Telex etc: in the case of facsimile and other telephone or
mechanical transmission, when despatched (and, in the case of notice by
facsimile, confirmation of transmission received);
(c) Mail: in the case of posting, on the second day following the date of
posting; and
(d) Electronic mail: in the case of electronic mail, when actually received in
readable form,
provided that:
(e) any notice given by mail or email to a Holder with no registered or notified
address in New Zealand shall be deemed to have been received by that
Holder 24 hours after that notice was posted or sent; and
(f) except in the case of notices to or by the Holders of Capital Notes, if any
notice would be deemed made or given after 4.00 pm on any business day in
the locality of the recipient (“local business day”) or on any day that is not a
local business day such notice shall be deemed made or given at 9.00 am on
the next succeeding local business day.
17.3 Proof of Notice
In proving the making or giving of any notice:
(a) Execution: it shall not be necessary to prove that any facsimile or
telephonically, mechanically or electronically transmitted notice was
manually or originally executed by the Person making or giving it;
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55
(b) Addresses etc: it shall be sufficient to prove that the notice was delivered or
sent properly addressed encoded numbered and stamped or (as the case shall
require) in the customary manner of the method of notification adopted;
(c) Joint Holders: a notice to joint Holders shall be deemed to have been
properly made or served on each Holder if made or given in accordance with
this Deed to the Holder whose name stands first in the Register.
18 MEETINGS OF HOLDERS
18.1 Convened by the Company
At the request in writing of the Supervisor or of any Holder(s) holding at least 5
per centum in Principal Amount of the Capital Notes (or class of Capital Notes)
for the time being outstanding (with such requisition signed by, or on behalf of,
those Holders) the Company shall summon a meeting of the Holders or the
Holders of any Class. The Company may, having first notified the Supervisor of
its intention to summon the meeting and the time and place thereof, summon a
meeting of the Holders or any Class thereof for such purpose as the Company
considers appropriate.
18.2 Convened by the Supervisor
At any time the Supervisor may summon a meeting of Holders or any Class of
Holders to consider such business as shall be placed before such meeting.
18.3 Other Rules
Subject to compliance with any applicable laws and the listing rules of any
applicable Stock Exchange, the Supervisor may without the consent of the
Holders agree with the Company to the adoption of supplemental rules or
procedures for meetings of Holders and/or variations to the rules and procedures
applying to such meetings set out in Schedule 1. Subject to the foregoing,
meetings of Holders shall be convened and conducted in accordance with the rules
and procedures set out in Schedule 1. Regulation 78 and schedule 11 of the FMC
Regulations (other than clauses 2 and 5 of schedule 11) do not apply except to the
extent incorporated into schedule 1. For the avoidance of doubt, in respect of any
meeting involving Holders to approve an Extraordinary Resolution, to the extent
of any inconsistency, clauses 2 and 5 of schedule 11 of the FMC Regulations shall
prevail over any regulation in Schedule 1 (except to the extent clauses 2 and 5 of
schedule 11 of the FMC Regulations are expressly subject to, or allow matters to
be set by, a trust deed).
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19 DOCUMENTS
The Company must retain, make available for inspection, provide and deliver
copies of or extracts from any document or information as required by, and in
accordance with, the FMCA for such fee as permitted by the FMCA.
20 RELEASE UPON PAYMENT
Upon being indemnified to its satisfaction pursuant to Clause 9.3 and upon proof
being given to the reasonable satisfaction of the Supervisor that all of the Capital
Note Obligations have been paid or satisfied or that provision for such payment or
satisfaction has been made in accordance with the provisions of this Deed and
upon payment or retention of all costs, charges and expenses incurred by, or
payable to, the Supervisor in relation to this Deed and the remuneration of the
Supervisor and all other money payable hereunder the Supervisor shall at the
request and cost of the Company execute a Deed of Release of this Deed and shall
thereupon retire.
21 TERMINATION OF TRUSTS
The trusts contained in this Deed and the Conditions terminate on the date which
is 80 years after the date of execution of this Deed, except to the extent that any
interests under such trusts have vested at that date and without affecting the
contractual rights and obligations of the Company and the Supervisor under this
Deed, and any amounts which would, but for this Clause, have been held on trust
for the Senior Creditors will be held on trust for the Company absolutely. Each
party to this Deed agrees that they will enter into such other deeds (in form and
substance similar to this Deed) as are necessary to ensure that the trusts intended
to be created under this Deed will continue for as long as there are Capital Note
Obligations outstanding. However, if is it not so possible to continue those trusts,
then the Company shall, on the date which is 80 years less one business day after
the date of execution of this Deed, redeem all of the Capital Notes in accordance
with the Conditions, as if that date were an Election Date. The parties to this
Deed agree that, unless such condition is contrary to any applicable rule of law,
redemption of the Capital Notes under this Clause will be made on the condition
that Noteholders will subscribe for, and reinvest in, Capital Notes on equivalent
terms to those set out in this Deed, immediately after such redemption.
22 INVALIDITY
A provision of this Deed has no effect to the extent that it contravenes, or is
inconsistent with, the FMCA, the FMC Regulations or any term implied into this
Deed by the FMCA or the FMC Regulations. If any provision of this Deed or the
Capital Notes shall be invalid, void, illegal or unenforceable, the validity,
1413351-8 – Capital Notes Trust Deed
57
existence, legality and enforceability of the remaining provisions shall not be
affected, prejudiced or impaired.
23 GOVERNING LAW
This Deed and the Conditions will be governed by and construed in accordance
with the laws of New Zealand and the Company irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of New Zealand.
24 COUNTERPARTS
This Deed may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument. Any party may enter into
this Deed by executing any such counterpart.
IN WITNESS WHEREOF this Deed is executed by the parties on the date first
written above.
1413351-8 – Capital Notes Trust Deed
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SCHEDULE 1
Meeting of Holders (Clause 18)
1. Convening
1.1 References in this Schedule 1 to “Holders” shall include only the Holders
comprising the Class or Classes for which any meeting is convened except
where the context indicates otherwise and “Capital Notes” shall be
construed accordingly. References in this Schedule 1 to “regulations” are
references to the provisions of this Schedule 1.
“Appointed Time” means the day and time at which any meeting (or
adjourned meeting) of Holders or the taking of a poll of Holders is due to be
held.
“Authorised Person” means, in respect of a meeting involving Holders, the
person authorised by the Supervisor to receive and count votes at that
meeting cast in accordance with regulation 13.9 or, if no such person is so
authorised, the Supervisor.
“Proxy Closing Time” means 48 hours before the Appointed Time of the
relevant meeting of Holders or taking of a poll of Holders.
1.2 The Supervisor or the Company may at any time convene a meeting of all or
any Class of Holders. The Company shall:
(a) whenever required to do so pursuant to Clause 18 of the Trust Deed or
by the FMCA;
(b) at the request in writing of the Supervisor; or
(c) at the request in writing of a person authorised by the FMC
Regulations to call a meeting of Holders,
convene a meeting of the Holders.
1.3 Notwithstanding the provisions of regulation 1.2 above the Supervisor shall
not be obliged to convene a meeting of Holders pursuant to such provisions
until, subject to Clause 10.2, it has been indemnified to its satisfaction
against all costs and expenses to be thereby incurred.
1.4 The Company shall, at least 10 working days (or any lesser period approved
by the Supervisor) before the Company gives notice of a meeting, advise the
Supervisor in writing of the intended place, day and hour of the meeting and
1413351-8 – Capital Notes Trust Deed
59
the nature of the business to be transacted, and it shall obtain the prior
approval of the Supervisor to the draft of the documents it proposes to send
to the Holders in respect of such meeting (such approval not to be
unreasonably withheld or delayed). If the Supervisor shall so require, the
documents shall include or be accompanied by any statement or comments
which the Supervisor requires to be made in relation to the meeting and the
matters to be dealt with at such meeting, provided that the Supervisor
provides such statement or comments in writing to the Company 5 working
days (or any lesser period approved by the Company) before the notice of
meeting is given under regulation 3.2.
2. Place
2.1 Meetings shall be held in the city or town at which the registered office of
the Company is situated or at such other place as the Supervisor approves.
3. Notice
3.1 Notice of every meeting shall be given in the manner provided in the Trust
Deed (namely in Clause 17) to the following:
(a) every person entered as a Holder in the Register as at the close of
business on a Business Day selected by the Company or the
Supervisor which is within the period of the fifteenth and tenth
Business Days prior to the date of despatch of the Notice;
(b) every personal representative or assignee in bankruptcy of any such
Holder who is deceased or insolvent;
(c) the Supervisor, if the Company has convened the relevant meeting and
vice versa; and
(d) the Auditors and every director of the Company.
3.2 Fifteen working days’ notice at least 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:
(a) the place and Appointed Time of the meeting;
(b) the nature of the business to be transacted in sufficient detail to enable
a Holder to form a reasoned judgment in relation to it;
(c) the right of a Holder to appoint a Representative; and
(d) the Authorised Person (if any) for the meeting.
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It shall not be necessary to specify in the notice the terms of the resolution to
be proposed, except in the case of a resolution proposed to be passed as an
Extraordinary Resolution).
3.3 The accidental omission to give notice to or non-receipt of notice by any
person entitled thereto shall not invalidate the proceedings at any meeting.
3.4 Notwithstanding any other provision of this regulation 3, a meeting may be
called by shorter notice than that specified in regulation 3.2, or by notice
without compliance with the other requirements regulation 3.2 or by notice
with any other irregularity or called without any formal notice, and any such
meeting shall be deemed to have been duly called and any such irregularity
or lack of formal notice shall be waived if:
(a) all Holders entitled to attend and vote at the meeting attend the
meeting without protest as to the irregularity or lack of formal notice
or if such waiver is so agreed by all such Holders before, at or after
that meeting; or
(b) the Supervisor indicates at the meeting that it is satisfied that the
irregularity or lack of formal notice has not resulted in and is unlikely
to result in any material prejudice to the Holders.
3.5 A meeting of Holders may be held by a quorum of Holders or their
Representatives:
(a) being assembled together at the time and place appointed for the
meeting;
(b) participating in the meeting by means of audio, audio and visual, or
electronic communication provided that the Supervisor approves such
means and each Holder or its Representative complies with any
conditions imposed by the Supervisor in relation to the use of such
means; or
(c) by a combination of both of the methods described in regulations
3.5(a) and 3.5(b) above.
4. Quorum
4.1 No business shall be transacted at any meeting unless the requisite quorum
is present at the commencement of business. A Holder is present at a
meeting for the purposes of this Schedule 1 and part of the quorum if that
Holder is present in person or by Representative or is participating in that
meeting by means of audio, audio and visual or electronic communication.
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4.2 The quorum for passing an Extraordinary Resolution of Holders shall be
Holders entitled to vote and present at the meeting or which have cast votes
under regulation 13.9 holding or representing at least 25% of the Principal
Amount of the Capital Notes for the time being outstanding or (in the case
of a meeting of any Class of Holders) of the Capital Notes of the relevant
Class.
4.3 The quorum for the transaction of any business at a meeting of Holders other
than the passing of an Extraordinary Resolution shall be at least two Holders
entitled to vote and present at the meeting holding or representing at least
10% in nominal amount of the Capital Notes or (in the case of a meeting of
any Class of Holders) of the Capital Notes of the relevant Class.
4.4 If within half an hour (or such shorter period as the chairperson of the
meeting may select and the Supervisor shall approve) from the appointed
time a quorum is not present the meeting, if convened upon the request of
Holders, shall be dissolved. In any other case, it shall stand adjourned to
such day and time that is 10 working days thereafter at the same time and
place or to such other date, time and place as may be appointed by the
chairperson or the Supervisor. At such adjourned meeting, if a quorum is not
present within 30 minutes after the Appointed Time, then the Holders
present at the adjourned meeting shall (regardless of their number or the
amount of Capital Notes held or represented by them) be a quorum for the
transaction of business including the passing of Extraordinary Resolutions.
4.5 Notice of such adjourned meeting shall be given to those Holders entitled to
receive notice of the original meeting and otherwise in the same manner as
of an original meeting and such notice shall state that, if a quorum is not
present 30 minutes after the Appointed Time, the Holders present at the
adjourned meeting whatever their number and whatever the amount of
Capital Notes held or represented by them shall form a quorum provided
that, if a meeting is adjourned for less than 30 days, it will not be necessary
to give notice of the time and place of the adjourned meeting other than by
announcement at the meeting that is adjourned.
5. Right to Attend and Speak
5.1 Any director, officer or solicitor of the Supervisor and any other person
authorised in that behalf by the Supervisor and any Director or the Secretary
or Auditors or solicitor of the Company or any other person authorised in
that behalf by the Company may attend any meeting and all such persons
shall have the right to speak at the meeting.
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6. Chairperson
6.1 A person nominated in writing by the Supervisor shall preside as
chairperson at every meeting and if no such person is nominated or if at any
meeting the person nominated is not present within fifteen minutes after the
time appointed for holding the meeting the Holders present and eligible to
vote thereat shall choose one of their number to be chairperson.
7. Adjournment
7.1 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.
7.2 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.
8. Person on Register
8.1 The persons registered as Holders in the Register at Proxy Closing Time and
no other person or persons shall be recognised and treated as the legal
holders of the Capital Notes specified in the Register whether such persons
are or are not in fact the beneficial owners of such Capital Notes.
9. Authority to Vote
9.1 The following persons shall, except as may be otherwise provided by this
Schedule 1, be exclusively entitled to vote in person or by Representative in
respect of the Capital Notes or Class thereof in respect of which the meeting
is convened, the persons registered as Holders in the Register at Proxy
Closing Time or the personal representative or assignee in bankruptcy of any
such Holder, or their respective Representatives.
9.2 For the purposes of this Schedule 1, a Representative need not be a Holder
and shall be entitled to attend and speak at meetings of Holders, be counted
in a quorum, vote, join in any demand for a poll and exercise all such other
powers in relation to the Capital Notes, in respect of which he or she has
been so appointed or nominated as though he or she were in relation thereto
the Holder present in person.
9.3 Closure of Register: For the purpose of establishing voting entitlements at a
meeting the Register shall be closed as of the close of business on the
business day immediately preceding the day on which the Proxy Closing
Time falls and shall remain closed until after the relevant meeting has been
closed or adjourned.
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63
9.4 Representative: For the purpose of this Schedule 1, a “Representative” shall
be a proxy or an attorney or a corporate representative appointed in the
manner referred to in regulations 10, 11 or 12 as the case may be. The
Supervisor or any officer of the Supervisor may be appointed a
Representative of a Holder.
10. Proxies
10.1 The Holders may appoint proxies and a Holder may appoint more than one
proxy, each such proxy being authorised to act on behalf of the Holder in
respect of a specified Principal Amount of Capital Notes, provided that only
one proxy is appointed to exercise the rights relating to a particular Capital
Note held by that Holder.
10.2 An instrument of proxy shall be in the following form or a form as near
thereto as circumstances admit or in such other form as the Supervisor shall
approve and need not be witnessed:
I/We, ......................................... of
............................................... being a Holder/s of $............. in nominal
amount of Capital Notes of FONTERRA CO-OPERATIVE GROUP
LIMITED hereby appoint
........................................... of ........................................... or failing him
............................... of ............................... or failing him the Chairperson of
the meeting as my/our proxy to vote for me/us and on my/our behalf at [the
meeting of Holders of Capital Notes of FONTERRA CO-OPERATIVE
GROUP LIMITED to be held on [year], and at any
adjournment thereof][any meeting held on or before [date]].
I/We authorise my/our proxy to vote
*in favour of/against the resolution(s).
Signed this day of [year].
Signature of Holder(s)........................
*Strike out whichever is not desired. If neither “in favour of” nor “against”
is struck out, the proxy will vote as he thinks fit.
1413351-8 – Capital Notes Trust Deed
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Note: This instrument must be deposited at the registered office of Fonterra Co-operative
Group Limited (or as otherwise directed in the notice convening the meeting) not later than
the Proxy Closing Time.
10.3 The instrument appointing a proxy shall be in writing signed, or in the case
of an electronic notice sent, by the appointer or of his attorney duly
authorised in writing or if the appointer is a company signed, or in the case
of an electronic notice sent, by an officer or attorney so authorised or by any
director, secretary, general manager, investment manager or other person
who appears to the Supervisor to have authority to sign or send (as
applicable) the instrument.
10.4 A person appointed to act as a proxy need not be a Holder and a holder of a
proxy shall have the right to attend and speak at the meeting.
10.5 The instrument appointing a proxy and the power of attorney or other
authority (if any) under which it is signed or a copy of such power or
authority certified by a Notary Public or in such other manner as the
Supervisor shall approve shall be deposited at such place as the Supervisor,
or the Company with the approval of the Supervisor, may in the notice
convening the meeting direct (or if no such place is appointed then at the
registered office of the Company) not later than Proxy Closing Time and in
default the instrument of proxy shall not be treated as valid provided that the
Supervisor or the Authorised Person for that meeting, may in its discretion
accept and treat as valid an instrument of proxy delivered late or received or
produced at a place other than that specified above.
10.6 A proxy shall unless the contrary is stated thereon be valid for the specified
term or for the meeting to which it relates as well for any adjournment of the
meeting. Notwithstanding any provision contained in an instrument of
proxy no instrument of proxy shall be valid after the expiration of twelve
months from the date of its execution but this provision shall not be
construed to apply to the appointment of an attorney or representative
otherwise than by an instrument of proxy.
10.7 An instrument of proxy in favour of the chairperson of the meeting
(howsoever expressed) shall be valid and effectual as though it were in
favour of a named person and shall constitute the person who chairs the
meeting for which the proxy is used (whether an adjournment of not) and
such person shall be the lawful proxy of the appointer.
10.8 A person appointed proxy shall have the right to demand or join in
demanding a poll and shall (except to the extent to which the proxy is
1413351-8 – Capital Notes Trust Deed
65
specially directed to vote for or against any proposal) have the power
generally to act at the meeting for the Holder concerned.
10.9 A vote made in accordance with the terms of an instrument of proxy or
power of attorney or authority as referred to in regulation 12.1 (or other form
approved by the Supervisor) shall be valid notwithstanding the previous
death or insanity or liquidation of the principal, or revocation of the proxy or
power of attorney or authority (or of the authority under which the proxy
power of attorney or authority was executed), or the transfer of the Capital
Notes in respect of which the vote is given, provided that no intimation in
writing of such death, insanity, revocation or transfer is received by the
Company or the Supervisor at its registered office before the
commencement of the meeting or adjourned meeting at which the proxy
power of attorney or authority is used.
11. Attorneys
11.1 Any holder may by power of attorney appoint an attorney (who need not be
a Holder) to vote and act on his behalf at any meeting. An attorney shall be
entitled to produce evidence of his appointment at any time before the
Appointed Time of the meeting or adjourned meeting or for the taking of a
poll at which he proposes to vote, or at such meeting or adjourned meeting.
Such Attorney as so empowered may appoint a proxy for the Holder
granting the power of attorney.
12. Corporate Representatives
12.1 A person authorised by the Holder being a company to act for it as its
representative at any meeting or any adjourned meeting shall be entitled to
exercise the same powers on behalf of that company as that company could
exercise if it were an individual Holder. A person so authorised shall be
entitled to produce evidence of his appointment at any time before the
Appointed Time of the meeting or adjourned meeting or for the taking of a
poll at which he proposes to vote, or at such meeting or adjourned meeting.
13. Voting
13.1 An Extraordinary Resolution put to the vote of a meeting will be decided by
poll. Any other resolution put to the vote of a meeting shall be decided on a
show of hands or by voice as determined by the chairperson or, in the case
of a meeting of Holders held under regulations 3.5(b) or 3.5(c), by any
method permitted by the chairperson of the meeting, unless in any case, a
poll is (before or after the vote is taken on the resolution) demanded by:
(a) the chairperson (who must in any event call for a poll on a resolution
on which the chairperson holds sufficient votes cast under regulation
1413351-8 – Capital Notes Trust Deed
66
13.9 if the chairperson believes that, if a poll is taken, the result may
differ from that obtained on a show of hands or by voice);
(b) the Supervisor or any representative of the Supervisor; or
(c) by one or more Holders present at the meeting holding or representing
not less than 5 per centum in Principal Amount of the Capital Notes
for the time being outstanding or (as the case may be) of the
appropriate Class of Capital Notes.
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.
13.2 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 deemed to be the
resolution of the meeting at which the poll was demanded.
13.3 In 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 be entitled to a casting vote in addition to
the votes (if any) to which he may be entitled as a Holder or on behalf of
Holders.
13.4 A poll demanded on the election of a chairperson or 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 thirty days from the date of the meeting) and place as the chairperson
may direct. The result of such poll shall be deemed to be the resolution of
the meeting at which the poll was demanded. No notice need be given of a
poll not taken immediately.
13.5 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.
13.6 On a poll votes may be given either personally or by Representative. On a
poll a person entitled to more than one vote need not use all his votes or cast
all the votes he uses in the same way.
13.7 On a show of hands each person present at the meeting or casting a vote
pursuant to regulation 13.9 and entitled to vote (whether personally or by
1413351-8 – Capital Notes Trust Deed
67
Representative) shall have one vote only. On a poll every Holder who is
present at the meeting or casting a vote pursuant to regulation 13.9 and
entitled to vote will have one vote for every $1.00 of Principal Amount of
Capital Notes of which he is the holder PROVIDED ALWAYS THAT any
Capital Notes for the time being held by the Company (or any related
company of the Company (as defined in section 2(3) of the Companies Act))
shall not whilst so held confer any right to vote.
13.8 In the case of joint Holders the vote of the senior who tenders a vote shall be
accepted to the exclusion of the votes of the other joint 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.
13.9 Voting by other means:
(a) A Holder may exercise the right to vote at any meeting by casting a
postal vote, a vote by email or a vote using any other electronic means
permitted by the Company or the Supervisor.
(b) A Holder may cast a vote using the above means on all or any of the
matters to be voted on at a meeting by sending a notice of the manner
in which that Holder's Capital Notes are to be voted on to the
Company or the Authorised Person for that meeting. Such notice must
reach that person before the Proxy Closing Time unless the Company
or the Authorised Person (as the case may be), in its absolute
discretion, elects to accept any notice notwithstanding that that notice
is received or produced at a place other than that specified above or
out of time.
(c) The Company or the Authorised Person for that meeting (as
applicable) must:
(i) collect together all of those votes received by it;
(ii) in relation to each resolution to be voted on at that meeting,
count the number of Holders voting for and against the
resolution and the number of votes cast for and against the
resolution by each Holder;
(iii) sign a certificate that it has carried out the duties set out in
regulations 13.9(c)(i) and 13.9(c)(ii) above and that sets out the
results of the counts required by regulation 13.9(c)(ii); and
1413351-8 – Capital Notes Trust Deed
68
(iv) ensure that the certificate required by regulation 13.9(c)(iii)
above is presented to the chairperson.
14. Extraordinary Resolution
14.1 The expression “Extraordinary Resolution” when used in this Deed means a
resolution passed at a meeting of Holders duly convened and held in
accordance with the provisions herein contained, at which at least three-
fourths of the votes given on such a poll by those who are entitled to vote,
voted in favour of the resolution and the expression “Extraordinary
Resolution” referring to any Class of Holders shall have a corresponding
meaning in relation to meetings of such Class.
14.2 Without limiting the rights powers and discretions conferred on the
Supervisor by the Trust Deed and subject to regulation 15 below and in
particular to the proviso to regulation 15.1 below, a meeting of Holders shall
in addition to all other powers which by the Trust Deed are specified as
exercisable by Extraordinary Resolution have the following powers
exercisable by Extraordinary Resolution namely:
(a) power to sanction the exchange of Capital Notes for or the conversion
of Capital Notes into shares, stock debentures, debenture stock or
other obligations or securities of the Company or any other company
formed or to be formed;
(b) power to sanction any alteration, release, modification, waiver,
variation or compromise or any arrangement in respect of the rights of
the Holders against the Company howsoever such rights shall arise;
(c) power to assent to any alteration or addition to the provisions
contained in the Trust Deed or the Conditions proposed or agreed to
by the Company and to authorise the Supervisor to concur in and
execute any supplemental trust deed embodying any such alteration or
addition;
(d) power to give any sanction, assent, release or waiver of any breach or
default by the Company under any of the provisions of the Trust Deed;
(e) power to discharge, release or exonerate the Supervisor from all
liability in respect of any act of commission or omission for which the
Supervisor has or may become responsible under the Trust Deed;
(f) power to sanction any scheme for the reconstruction of the Company
or for the amalgamation of any such person with any other company
where such sanction is necessary;
1413351-8 – Capital Notes Trust Deed
69
(g) subject to the provisions of the Trust Deed, power to remove any
Supervisor and to approve the appointment of or appoint a new
Supervisor;
(h) power to authorise the Supervisor to concur in and execute any
supplemental deed or other document embodying such sanction,
authority or approval, assent, release, waiver, direction or request;
(i) power to give any consent, approval, dispensation, authorisation or
waiver, or to take any other action, able to be given or taken by the
Supervisor or the Holders under the provisions of the Trust Deed;
(j) subject to the provisions of this Deed, power to direct the Supervisor
to apply for the appointment of a Liquidator of the Company; and
(k) power to consent to, approve, authorise and direct the Supervisor in
respect of any other matters referred to in any of the preceding
paragraphs, or as to any other matter which may be necessary to carry
out and give effect to any Extraordinary Resolution.
15. Extraordinary Resolution Binding
15.1 An Extraordinary Resolution passed at a meeting of Holders duly convened
and held in accordance with the regulations contained in this Schedule 1
shall be binding upon all the Holders whether present or not present at the
meeting and each of the Holders and the Supervisor (subject to the
provisions of its indemnity contained in the Trust Deed) shall be bound to
give effect thereto accordingly and the passing of any such resolution shall
as between the Supervisor and the Holders be conclusive evidence that the
circumstances justify the passing thereof 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 PROVIDED ALWAYS
THAT a resolution which affects either a particular Holder or a particular
Class of Holders only as opposed to the rights of the Holders generally shall
not be binding on such Holder or Class of Holders (as the case may be)
unless such Holder agrees, or such Class of Holders agree as provided in
regulation 17.1 below or otherwise, to be bound by the terms of any such
resolution.
15.2 A meeting of any Class of Holders shall (without limiting the other powers
exercisable by any such meeting) have power by Extraordinary Resolution:
(a) to sanction any compromise or arrangement proposed to be made
between the Company and the relevant Class of Holders affected;
1413351-8 – Capital Notes Trust Deed
70
(b) to sanction any alteration, abrogation, modification or waiver of the
rights of the relevant Class of Holders affected against the Company.
16. Minutes
16.1 Minutes of all resolutions and proceedings at every meeting shall be made
by the Supervisor or if the Supervisor shall not be 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 Supervisor at
the expense of the Company and any such minutes as aforesaid if purporting
to be signed by the chairperson of the meeting at which such resolutions
were passed or proceeding had or by any persons appointed by the said
chairperson of the meeting for the purpose or by the chairperson of the next
succeeding meeting of Holders shall be prima facie evidence of the matters
therein stated and 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
had thereat to be duly passed and had. Copies of such minutes shall be
furnished by the Supervisor to the Company as early as possible after the
holding of the meeting to which they refer. The chairperson must ensure
that a certificate of votes under regulation 13.9 held by the chairperson is
attached to the minutes.
17. Class
17.1 A resolution which in the opinion of the Supervisor affects one Class of
Holders only (and which does not affect any other Holders) shall be deemed
to have been duly passed if passed at a separate meeting of the Holders of
Capital Notes of that Class and all the preceding provisions of this Schedule
1 shall apply to such meetings mutatis mutandis as though references therein
to Capital Notes and Holders were references to the Capital Notes of the
Class in question and to the Holders of such Capital Notes respectively.
18. Resolutions in Writing
18.1 Anything that may be done by Holders by resolution or Extraordinary
Resolution passed at a meeting of Holders, may be done by a resolution in
writing signed by not less than 75 per cent of the Holders entitled to vote on
that resolution, holding in the aggregate Capital Notes conferring the right to
cast not less than 75 per cent of the votes which could be cast on that
resolution.
18.2 Any such resolution may consist of several documents in similar form
(including letters, electronic mail or other similar means of communication),
each signed by one or more Holders.
1413351-8 – Capital Notes Trust Deed
71
18.3 Any such resolution may be signed by a Holder or an agent or attorney of the
Holder duly authorised in writing or if the Holder is a company, either
signed by an officer or attorney so authorised or by any director, secretary,
general manager, investment manager or other person who appears to the
Supervisor to have authority to sign the resolution on behalf of the company.
1413351-8 – Capital Notes Trust Deed
72
SCHEDULE 2
Form of Directors’ Reporting Certificate
1 This report is given by the undersigned Directors of Fonterra Co-operative Group
Limited (“the Company”) pursuant to Clause 8.3 of the Trust Deed dated 22
March 2001 (as amended and restated on [ ] 2016) between the Company and
The New Zealand Guardian Trust Company Limited, as supervisor (“the Trust
Deed”).
2 We, the undersigned, hereby state that as at last day of the financial [year] [half
year] ending on [ ]:
2.1 To the best of our knowledge and belief having made all due inquiries, and,
during the immediate preceding financial [year] [half-year]:
(a) [here state any matter, or state if there is no matter, which has arisen
relating to the Company which would materially and adversely affect
the ability of the Company to perform its obligations under the Trust
Deed and the Capital Notes or which adversely affects the Holders];
(b) the Company [has] [has not] observed and complied with all
provisions expressed to be binding upon it under the Trust Deed:
[if the Company has not so complied and observed the provisions of
the Trust Deed set out the particulars of the contravention and
proposals to remedy the same]
(c) the Register [has] [has not] been duly maintained in accordance with
the Trust Deed and the requirements of the FMCA and the FMC
Regulations;
[if the Register has not been duly maintained set out the particulars of
the failure to maintain]
(d) the Principal Amount of Capital Notes (if any) which have been
redeemed by the issue of Co-operative Shares of the Company
(pursuant to the Company’s Constitution) is $[ ], details of
which are set out below:
[set out details of Capital Notes which have been redeemed for Co-
operative Shares in accordance with the Company’s Constitution in
the immediately preceding financial [year] [half-year]
1413351-8 – Capital Notes Trust Deed
73
(e) the Principal Amount of Capital Notes (if any) which have been
redeemed for cash by the Company is $[ ]
[set out details of Capital Notes which have been redeemed for cash in
the immediately preceding financial [year] [half-year]]
(f) all interest due on the Capital Notes has been paid;
(g) the Company is able to pay its debts from its own moneys as those
debts fall due in the ordinary course of the Company’s business, after
taking into account, for this purpose, the Capital Notes and other
subordinated indebtedness of the Company;
(h) nothing has arisen during the immediately preceding financial year]
half-year] which causes the Directors to believe that the Company will
be unable to pay its debts from its own moneys as those debts fall due
in the ordinary course of the Company’s business, during the
immediately succeeding financial year; and
(i) the Company is in compliance with all of its issuer obligations.
[If the Company is not in compliance with all of its issuer obligations,
set out the matters required by clause 8.2(g) of the Trust Deed in
respect of such non-compliance.]
3 The aggregate Principal Amount of the Capital Notes outstanding, and the amount
of any unpaid interest at the end of the financial [year] [half-year] is $[ ].
4 The Company [is] [is not] in material default in the payment of any Senior Debt.
5 Unless the context otherwise requires, terms defined in the Trust Deed have the
same meaning herein.
This report is given on the day of 20[ ].
Director Director
1413351-8 – Capital Notes Trust Deed
74
EXECUTION PAGE
[Signing block not applicable as this deed was amended and restated pursuant to a
deed of amendment and restatement.]