Commonwealth Numbered Acts

CORPORATIONS ACT 1989 No. 109 of 1989 - SECT 1058

1058. (1) Where there is a trustee for the holders of any debentures of a
borrowing corporation, the trustee shall, by written notice to the borrowing
corporation, specify for the purposes of this section a day, being not later
than 6 months after the date of the relevant prospectus, and the directors of
the borrowing corporation shall:

   (a)  at the end of a period not exceeding 3 months ending on the day so
        specified; and

   (b)  at the end of each following period, being a period of 3 months or
        such shorter period as the trustee, in any special circumstances,
        allows; prepare a report that relates to that period and complies with
        the requirements of subsection (2) and, within one month after the end
        of each such period, lodge the report relating to that period with the
        trustee and a copy of the report with the Commission.

(2) The report referred to in subsection (1) shall be signed by not fewer than
2 of the directors on behalf of all of them and shall set out in detail any
matters adversely affecting the security or the interests of the holders of
the debentures and, without affecting the generality of the foregoing, shall
state:

   (a)  whether or not the limitations on the amount that the borrowing
        corporation may borrow have been exceeded and, if they have been
        exceeded, particulars of borrowings exceeding those limitations;

   (b)  whether or not the borrowing corporation and each of its guarantor
        bodies have complied with all the covenants and provisions binding
        upon them respectively by or under the debentures or any trust deed;

   (c)  whether or not any event has happened that has caused or could cause
        the debentures or any provision of the relevant trust deed to become
        enforceable and, if so, particulars of that event;

   (d)  whether or not any circumstances affecting the borrowing corporation,
        its subsidiaries or its guarantor bodies or any of them have occurred
        that materially affect any security or charge included in or created
        by the debentures or any trust deed and, if so, particulars of those
        circumstances;

   (e)  whether or not there has been any substantial change in the nature of
        the business of the borrowing corporation or any of its subsidiaries
        or any of its guarantor bodies since the debentures were first issued
        that has not previously been reported upon as required by this section
        and, if so, particulars of that change; and

   (f)  where the borrowing corporation has deposited money with, lent money
        to, or assumed any liability of, a body corporate that is related to
        the borrowing corporation, particulars, with respect to each body
        corporate that is so related, of:

        (i)    the total of the amounts so deposited or lent and the extent of
               any liability so assumed during the period covered by the
               report; and

        (ii)   the total of the amounts owing to the borrowing corporation in
               respect of money so deposited or lent and the extent of any
               liability so assumed as at the end of the period covered by the
               report;
distinguishing between deposits, loans and assumptions of liability that are
secured and those that are unsecured, but excluding any deposit with, loan to,
or liability assumed on behalf of, a body corporate if that body corporate has
guaranteed the repayment of the debentures of the borrowing corporation and
has secured the guarantee by a charge over its property in favour of the
trustee for the holders of the debentures of the borrowing corporation.

(3) Where, during the period to which a report referred to in subsection (1)
relates:

   (a)  a body corporate has become a guarantor body;

   (b)  a guarantor body has ceased to be liable for the payment of the whole
        or part of the money for which it was liable under the guarantee; or

   (c)  a guarantor body has changed its name; the report shall so state and
        shall give particulars of the matters so stated.

(4) Where there is a trustee for the holders of any debentures issued by a
borrowing corporation and the borrowing corporation or any of its guarantor
bodies that has guaranteed the repayment of the money raised by the issue of
those debentures creates any charge, the borrowing corporation or the
guarantor body, as the case requires, shall, whether or not any demand for the
particulars has been made:

   (a)  give to the trustee, within 21 days after the creation of the charge,
        written particulars of the charge; and

   (b)  if the total amount to be advanced on the security of the charge is
        indeterminate:

        (i)    give to the trustee, within 7 days after an advance is made,
               written particulars of the amount of the advance; or

        (ii)   where the advances are merged in a current account with bankers
               or trade creditors-give to the trustee, at the end of every 3
               months, written particulars of the net amount outstanding in
               respect of the advances.

(5) The directors of a borrowing corporation that has issued debentures (other
than debentures of a kind that could be lawfully described under section 1045
as mortgage debentures or certificates of mortgage debenture stock) and of
every relevant guarantor body that has guaranteed the repayment of the money
raised by the issue of those debentures shall:

   (a)  at a date not later than 6 months, or, in the case of a particular
        body corporate, not later than the end of such other period as is for
        the time being fixed by the Commission with the consent of the trustee
        for the debenture holders of that body (if any), after the end of each
        financial year of the body, cause to be made out and lodged with the
        Commission and with the trustee for the holders of the debentures a
        profit and loss account for that financial year and a balance-sheet as
        at the end of that financial year; and

   (b)  at a date not later than 10 months, or, in the case of a particular
        body corporate, not later than the end of such other period as is for
        the time being fixed by the Commission with the consent of the trustee
        for the debenture holders of that body (if any), after the end of each
        financial year of the body, cause to be made out and lodged with the
        Commission and with the trustee for the holders of the debentures a
        profit and loss account for the period from the end of that financial
        year until the end of 6 months after the end of that financial year
        and a balance-sheet as at the end of the period to which the profit
        and loss account relates.

(6) The directors of a borrowing corporation that is a holding corporation
shall:

   (a)  at a date not later than 6 months, or, in the case of a particular
        borrowing corporation, not later than the end of such other period as
        is for the time being fixed by the Commission with the consent of the
        trustee for the debenture holders of that corporation, after the end
        of each financial year of the corporation, cause to be made out and
        lodged with the Commission and with the trustee for the holders of the
        debentures (if any) a set of consolidated accounts for the borrowing
        corporation and each guarantor body that is a subsidiary of the
        borrowing corporation for that financial year; and

   (b)  at a date not later than 10 months, or, in the case of a particular
        borrowing corporation, not later than the end of such other period as
        is for the time being fixed by the Commission with the consent of the
        trustee for the debenture holders of that corporation, after the end
        of each financial year of the corporation, cause to be made out and
        lodged with the Commission and with the trustee for the holders of the
        debentures (if any) a set of consolidated accounts for the borrowing
        corporation and each guarantor body that is a subsidiary of that
        borrowing corporation for the period from the end of that financial
        year until the end of 6 months after the end of that financial year.

(7) A trustee for debenture holders of a borrowing corporation may give to the
directors of a guarantor body that is a subsidiary of that borrowing
corporation a notice requiring them to comply with subsection (5) and, where a
notice is so given:

   (a)  the directors of the guarantor body shall comply with the requirements
        of subsection (5) in relation to the next financial year of that body
        that ends after the notice is so given and in relation to each
        subsequent financial year of that body; and

   (b)  where the notice is given within the 6 months after the end of a
        financial year of that guarantor body-the directors of the body shall
        comply with the requirements of paragraph (5) (b) in relation to the
        period beginning at the end of that financial year and ending at the
        end of those 6 months.

(8) A trustee for debenture holders shall, within 7 days after the trustee
gives a notice under subsection (7), lodge a copy of that notice with the
Commission.

(9) Nothing in subsection (5), (6) or (7) applies to the directors of a body
corporate that:

   (a)  is a pastoral company in respect of which an exemption granted under
        section 11 of the Banking Act 1959 is in force; and

   (b)  is declared by the Commission by notice published in the Gazette to be
        a body corporate to which those subsections do not apply.

(10) The Commission may, by notice published in the Gazette:

   (a)  specify terms and conditions subject to which subsection (9) has
        effect in relation to a body corporate; or

   (b)  vary or revoke any declaration made under subsection (9) or any terms
        or conditions specified under paragraph (a) of this subsection.

(11) Subsections (1), (4), (5), (6) and (7) do not apply in respect of a
borrowing corporation or a guarantor body if:

   (a)  the borrowing corporation or the guarantor body, as the case may be,
        is being wound up; or

   (b)  a receiver, or a receiver and manager, of property of the borrowing
        corporation or of the guarantor body, as the case may be, has been
        appointed and has not ceased to act under that appointment.

(12) The provisions of Divisions 4, 5 and 6 of Part 3.6 (other than sections 
307 , 308, 309 and 310), section 313, section 332 (other than subsection (8))
and section 409 apply, with such adaptations as are necessary, to every profit
and loss account and balance-sheet made out and lodged under subsection (5) of
this section by the directors of a borrowing corporation as if that profit and
loss account and balance-sheet were a profit and loss account and
balance-sheet referred to in those provisions.

(13) Notwithstanding anything in the preceding provisions of this section, the
directors of a borrowing corporation are not required to comply, in relation
to profit and loss accounts and balance-sheets required to be made out and
lodged under subsection (5), with section 295 or 305 or with section  332 (as
it relates to group accounts) if the trustee for debenture holders consents in
writing to the directors being exempt from those requirements.

(14) The provisions of Divisions 4, 5 and 6 of Part 3.6 (other than sections 
307 , 308, 309 and 310), section 313, section 332 (other than subsection (8))
and section 409 apply, with such adaptations as are necessary, to every profit
and loss account and balance-sheet made out and lodged under subsection (6) of
this section by directors of the borrowing corporation as if:

   (a)  that profit and loss account and balance-sheet were a profit and loss
        account and balance-sheet referred to in those provisions; and

   (b)  references in those provisions to group accounts were references to
        the consolidated accounts referred to in subsection (6) of this
        section.

(15) The provisions of Divisions 4, 5 and 6 of Part 3.6 (other than sections 
295 , 305, 307, 308, 309 and 310), section 332 (except so far as relating to
group accounts) and section 409 apply, with such adaptations as are necessary,
to every profit and loss account and balance-sheet made out and lodged under
subsection (5) of this section by the directors of a relevant guarantor body
as if that profit and loss account and balance-sheet were a profit and loss
account and balance-sheet referred to in those provisions.

(16) Notwithstanding the provisions of subsection (15), where a guarantor
body, being a body corporate that is incorporated in the United Kingdom or in
a State or Territory of the United States of America, has lodged with the
Department of Trade or other appropriate Government Department in the United
Kingdom or the Securities and Exchange Commission of the United States of
America a profit and loss account and balance-sheet for a period in respect of
which the body corporate is required to lodge a profit and loss account and
balance-sheet under subsection (5) of this section, it is sufficient
compliance with the requirements of that subsection if certified copies of the
profit and loss account and balance-sheet so lodged with the Department of
Trade or that other Department or the Securities and Exchange Commission are,
with the consent of the trustee for the debenture holders, lodged with the
Commission and the trustee for the debenture holders within the time
prescribed by that subsection.

(17) Where:

   (a)  the directors of a borrowing corporation do not lodge with the trustee
        for the holders of debentures a report as required by subsection (1);
        or

   (b)  the directors of a borrowing corporation or the directors of a
        guarantor body do not lodge with the trustee the balance-sheets,
        profit and loss accounts and reports as required by subsections (5) to
        (15), inclusive; within the period, or at the date, specified in the
        subsection concerned, the trustee shall as soon as practicable lodge
        notice of that fact with the Commission.

(18) Notwithstanding anything contained in subsections (12) to (15),
inclusive, the audit of a profit and loss account and balance-sheet of a
borrowing corporation or its guarantor body relating to a period of 6 months
immediately following a financial year of the borrowing corporation or
guarantor body, as the case may be, required to be made out and lodged in
accordance with subsection (5) or (6) may be dispensed with or may be of a
limited nature or extent if the trustee for the holders of the debentures of
the borrowing corporation has consented in writing to the audit being
dispensed with or being of such a limited nature or extent, as the case may
be.

(19) Where the trustee has so consented to the audit of a profit and loss
account and balance-sheet of a borrowing corporation or guarantor body being
dispensed with or being of a limited nature or extent, the directors of the
borrowing corporation or guarantor body, as the case may be, shall lodge with
the Commission a copy of the consent when the profit and loss account and
balance-sheet are so lodged.

(20) Where the trustee for debenture holders for a borrowing corporation has
consented to the directors of the borrowing corporation being exempt from
complying with the requirements relating to profit and loss accounts and
balance-sheet, referred to in subsection (13), the directors shall lodge with
the Commission a copy of the consent when the profit and loss account and
balance-sheet are so lodged.

(21) Notwithstanding anything in this section, a profit and loss account and
balance-sheet of a borrowing corporation or its guarantor body relating to a
period of 6 months immediately following a financial year of the corporation
or body required to be made out and lodged in accordance with subsection (5)
may, unless the trustee for the holders of the debentures of the borrowing
corporation otherwise requires in writing, be based upon the value of the
trading stock of the borrowing corporation or the guarantor body, as the case
may be, as:

   (a)  reasonably estimated by the directors of that corporation or body on
        the basis of the value of that trading stock as adopted for the
        purpose of the profit and loss account and balance-sheet of that
        corporation or body laid before the corporation or body at its last
        preceding annual general meeting; and (b) certified in writing as such
        by those directors.

(22) In this section:

"relevant guarantor body", in relation to a borrowing corporation, means:

   (a)  a guarantor body that is not a subsidiary of that borrowing
        corporation; and

   (b)  a guarantor body that is a subsidiary of that borrowing corporation
        and the directors of which have been given notice under subsection (7)
        by the trustee for debenture holders of that borrowing corporation.

(23) For the purposes of the application, by virtue of subsection (12) or
(14), of a provision of this Act, section 74 has effect as if paragraph 74 (b)
were omitted.