Corporations Act - Australia

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and all other liabilities that:

      (i) have been or may be incurred; and

      (ii) rank in priority to, or equally with, that liability.

      283BI Offences for failure to comply with statutory duties

      The borrower commits an offence if it intentionally or recklessly contravenes section 283BB, 283BC, 283BD, 283BE, 283BF or 283EA.

      Part 2L.3 — Duties of guarantor

      283CA Duties of guarantor

      If a borrower is required to enter into a trust deed under section 283AA in relation to debentures, a guarantor in respect of the debentures has the duties imposed by this Part.

      283CB General duties

      The guarantor must:

      (a) carry on and conduct its business in a proper and efficient manner; and

      (b) make all of its financial and other records available for inspection by:

      (i) the trustee; or

      (ii) an officer or employee of the trustee authorised by the trustee to carry out the inspection; or

      (iii) a registered company auditor appointed by the trustee to carry out the inspection;

      and give them any information, explanations or other assistance that they require about matters relating to those records.

      283CC Duty to inform trustee about security interests

      If the guarantor creates a security interest, it must:

      (a) give the trustee written details of the security interest within 21 days after it is created; and

      (b) if the total amount to be advanced on the security of the security interest is indeterminate, give the trustee written details of:

      (i) the amount of each advance made within 7 days after it is made; or

      (ii) where the advances are merged in a current account with bankers, trade creditors or anyone else — the net amount outstanding on the advances at the end of every 3 months.

      283CD Exceptions to guarantor’s duty to inform trustee

      Section 283CC does not apply in respect of:

      (a) the guarantor, while:

      (i) it is under external administration; or

      (ii) a receiver, or a receiver and manager, of property of the guarantor has been appointed and has not ceased to act under that appointment; or

      (b) a security interest in PPSA retention of title property.

      283CE Offences for failure to comply with statutory duties

      The guarantor commits an offence if it intentionally or recklessly contravenes paragraph 283CB(b) or section 283CC.

      Part 2L.4 — Trustee

      283DA Trustee’s duties

      The trustee of a trust deed entered into under section 283AA must:

      (a) exercise reasonable diligence to ascertain whether the property of the borrower and of each guarantor that is or should be available (whether by way of security or otherwise) will be sufficient to repay the amount deposited or lent when it becomes due; and

      (b) exercise reasonable diligence to ascertain whether the borrower or any guarantor has committed any breach of:

      (i) the terms of the debentures; or

      (ii) the provisions of the trust deed or this Chapter; and

      (c) do everything in its power to ensure that the borrower or a guarantor remedies any breach known to the trustee of:

      (i) any term of the debentures; or

      (ii) any provision of the trust deed or this Chapter;

      unless the trustee is satisfied that the breach will not materially prejudice the debenture holders’ interests or any security for the debentures; and

      (e) notify ASIC as soon as practicable if:

      (i) the borrower has not complied with section 283BE, 283BF or subsection 318(1) or (4); or

      (ii) a guarantor has not complied with section 283CC; and

      (f) notify ASIC and the borrower as soon as practicable if the trustee discovers that it cannot be a trustee under section 283AC; and

      (g) give the debenture holders a statement explaining the effect of any proposal that the borrower submits to the debenture holders before any meeting that:

      (i) the Court calls in relation to a scheme under subsection 411(1) or (1A); or

      (ii) the trustee calls under subsection 283EB(1); and

      (h) comply with any directions given to it at a debenture holders’ meeting referred to in section 283EA, 283EB or 283EC unless:

      (i) the trustee is of the opinion that the direction is inconsistent with the terms of the debentures or the provisions of the trust deed or this Act or is otherwise objectionable; and

      (ii) has either obtained, or is in the process of obtaining, an order from the Court under section 283HA setting aside or varying the direction; and

      (i) apply to the Court for an order under section 283HB if the borrower requests it to do so.

      Note: 1: Paragraph (g) — Section 411 relates to compromises and arrangements.

      Note: 2: Section 283DC deals with indemnification in respect of a trustee’s liability to the debenture holders.

      283DB Exemptions and indemnifications of trustee from liability

      (1) A term of a debenture, provision of a trust deed or a term of a contract with holders of debentures secured by a trust deed, is void in so far as the term or provision would have the effect of:

      (a) exempting a trustee from liability for breach of section 283DA for failure to show the degree of care and diligence required of it as trustee; or

      (b) indemnifying the trustee against that liability;

      unless the term or provision:

      (c) releases the trustee from liability for something done or omitted to be done before the release is given; or

      (d) enables a meeting of debenture holders to approve the release of the trustee from liability for something done or omitted to be done before the release is given.

      (2) For the purposes of paragraph (1)(d):

      (a) a release is approved if the debenture holders who vote for the resolution hold 75 % of the nominal value of the debentures held by all the debenture holders who attend the meeting and vote on the resolution; and

      (b) a debenture holder attends the meeting and votes on the resolution if:

      (i) they attend the meeting in person and vote on the resolution; or

      (ii) if proxies are permitted — they are represented at the meeting by a proxy and the proxy votes on the resolution.

      283DC Indemnity

      The trustee is not liable for anything done or omitted to be done in accordance with a direction given to it by the debenture holders at any meeting called under section 283EA, 283EB or 283EC.

      Part 2L.5 — Meetings of debenture holders

      283EA Borrower’s duty to call meeting

      Duty to call meeting

      (1)

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