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Week 6

Fundraising- Debt

Secured and unsecured lending

Debentures

Derivatives

Negative pledge lending Third party securities

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Debt - Equity

Raising funds:

distinction between raising funds by debt borrowing money,(Loan or Debt capital s.24 Corp Act)

or

equity finance (Share capital -dividends)

Note: shareholder vs creditor : Gearing Ratio

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Investment in Loan Capital Co can raise capital through borrowing rather than issuing

shares

Debenture is the document that evidences company debt, theholder of the debenture is a creditor of the company

As the debenture holder is a creditor, they are not members ofthe company and cannot participate in the affairs of thecompany.

The purpose of the debenture is to raise money for thecompany

The investor in debentures is entitled to a fixed rate of intereston the loan and

Investor has a priority as to repayment over the investor inshares

Loan to be repaid at a date in the future and interest is taxdeductible.

Debentures usually held by trustee on behalf of debenture

holders

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Victorian Finance & Leasing Limited ACN 080 524 689

PROSPECTUS NO. 7 FOR THE ISSUE OF DEBENTURES

his prospectus is issued by Victorian Finance & Leasing Ltd ACN 080 524 689

and dated 20 September 2005. This prospectus was lodged with the Australian

Securities & Investment Commission (ASIC) on 20 September 2005. ASICtakes no responsibility as to the contents of this prospectus. No Debentures

will be issued on the basis of this prospectus after expiry 19 October 2006.

he Company does not provide financial product advice in relation to

investments in Debentures. The Company recommends that applicants consult

with their financial adviser in determining how best to achieve their financialgoals and whether investing in Debentures is appropriate for them. Before

making an investment decision on the basis of this prospectus, applicants

should consider the appropriateness of the investment, having regard to their

objectives, financial situation and needs. This prospectus is not a statement of

advice and the information given in this document is of a general nature and

has been prepared without taking account of applicants individual investment

objectives, financial situation or particular investment needs. Permanent

Nominees (Aust.) Limited, as trustee for Debenture Holders, has not

authorised or caused the issue of this prospectus or any part of it and neither it

nor any person related to or associated with it takes any responsibility for any

part of this prospectus other than references to the Trustees name.

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3.1 Protection for Debenture Holders Purpose of Issue

The proceeds from the issue of Debentures pursuant to this prospectus will be

used to provide funds for the Companys lending activities. These funds will

be primarily on-lent to businesses in the form of equipment finance (by way

of leasing and hire purchase arrangements) and loans secured by chargesover residential, rural, industrial and commercial properties. The Companys

security for the majority of loans will be by way of a charge over plant,

machinery or real estate.

Security

Repayment of all money invested in Debentures issued by the Companypursuant to this prospectus and accrued interest in respect thereof, will be

secured by a first ranking floating charge in favour of the Trustee for

Debenture Holders over the whole of the assets and undertaking of the

Company. In order of priority, the charge granted in favour of the Trustee for

Debenture Holders ranks before other liabilities and shareholders funds.

Any future bank borrowing which are to be secured by the issue of

Debentures (Security Stock) will rank pari passuwith the Debentures

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Watchdog blocks $1bn in debenture issues Jan 7th 2004 Fairfax pressBy Gabrielle Costa

A swag of debenture prospectuses seeking to raise more than $1 billion havebeen blocked by the companies watchdog over the past six months afterproblems were identified in the offer documents.

The Australian Securities and Investments Commission yesterday said that since

July 1 it had taken action over 14 debenture offers - essentially debtinstruments - and in five cases told would-be capital raisers to scrap their offerdocuments and start again.

In 11 cases, an interim stop order was issued, forcing the company to revise some

of the information in the prospectus to meet legal requirements and ensure

that investors were properly informed.Final stop orders were later issued against some of those companies and in six

instances the interim stop order was later withdrawn. In one case, a companywas forced to have the prospectus in the marketplace for longer than it hadexpected after ASIC raised concerns.

Some of the Corporations Act breaches identified in the documents included a

failure to include a debenture trust deed or appoint a trustee.Some of the documents failed to properly disclose details on possible and actual

bad and doubtful debts, and some did not properly explain lending policiesand borrowing limitations. In one case the company did not provide up-to-datefinancial information on performance and profitability and others did notadequately explain how the money raised would be used.ASIC said that some companies had referred to unsecured notes as

debentures - which could encourage investors to believe the instruments aremore secure than

they in fact were.

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Debentures

S.9 Corporations Act debentureof a body means a chose in action that includes an

undertaking by the body to repay as a debt money deposited

with or lent to the body. The chose in action may (but need not)

include a charge over property of the body to secure repaymentof the money.

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Debentures text :7.10.30

Trustee must be appointed (Ch 2L Corp Act) to protect the

interests of the investors in situations where:

Co defaults in repayments

Co goes into liquidation

Receiver appointed to the company

( distinguish from ordinary shareholders)

Debentures are securities and therefore they are also financial

products in accordance with S.764A(1)(a)

Note that a disclosure document must be lodged with ASIC in

accordance with Ch 6D of Corp Act

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283AA Co Act Requirement for trust deed and trustee

(1) Before a body:

(a) makes an offer of debentures in this jurisdiction that needs

disclosure to investors under Chapter 6D, or does not needdisclosure to investors under Chapter 6D because ofsubsection 708(14) (disclosure document exclusion fordebenture roll overs) or section 708A (sale offers that do notneed disclosure); or

(b) makes an offer of debentures in this jurisdiction orelsewhere as consideration for the acquisition of securitiesunder an off-market takeover bid; or

(c)issues debentures in this jurisdiction or elsewhere under a

compromise or arrangement under Part 5.1 approved at ameeting held as a result of an order under subsection 411(1)

regardless of where any resulting issue, sale or transfer occurs,the body must enter into a trust deed that complies with

section 283AB and appoint a trustee that complies with

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283AB Trust deed

(1) The trust deed must provide that the following are held intrust by the trustee for the benefit of the debenture holders:

(a) the right to enforce the borrowers duty to repay;(b) any charge or security for repayment;

(c) the right to enforce any other duties that the borrower andany guarantor have under:

(i) the terms of the debentures; or

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283AC Who can be a trustee

(1) The trustee must be:

(a) the Public Trustee of any State or Territory; or

(b) a body corporate authorised by a law of any State or Territory to take inits own name a grant of probate of the will, or letters of administration of theestate, of a deceased person

(c) a body corporate registered under the Life Insurance Act 1995; or

(d) an Australian ADI; or

(e) a body corporate, all of whose shares are held beneficially by a bodycorporate or bodies corporate of the kind referred to in paragraph (b), (c) or(d) if that body or those bodies:

(i) are liable for all of the liabilities incurred, or to be incurred, by thetrustee as trustee; or

(ii) have subscribed for and beneficially hold shares in the trustee andthere is an uncalled liability of at least $500,000 in respect of those sharesthat can only be called up if the trustee becomes an externally-administeredbody corporate (see section 254N); or

(f) a body corporate approved by ASIC (see section 283GB).

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283BH How debentures may be described

(1) The borrower may describe or refer to thedebentures in:

(a) any disclosure in relation to the offer of the

debentures; or(b) any other document constituting or relating to the

offer of the debentures; or

(c) the debentures themselves;

only in accordance with the following table:How debentures may be described

Description When description may be used1)mortgage debenture only if the circumstances set out in

subsection (2) are satisfied

2) debenture only if the circumstances set out insubsection (2) or (3) are satisfied

3)unsecured note or in any other case

unsecured deposit note

283BH Wh d b t b ll d t d b t

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283BHWhen debentures can be called mortgage debentures ordebentures

(2) The borrower may describe or refer to thedebentures as:

(a) mortgage debentures; or(b) debentures;if:

(c) the repayment of all money that has been, or maybe, deposited or lent under the debentures is secured by a first

mortgage given to the trustee over land vested in the borrower orin any of the guarantors; and(d) the mortgage has been registered, or is a registrable

mortgage that has been lodged for registration, in accordance withthe law relating to the registration of mortgages of land in the

place where the land is situated; and(e) the total amount of that money and of all otherliabilities (if any) secured by the mortgage of that land rankingequally with the liability to repay that money does not exceed 60%of the value of the borrowers or guarantors interest in that landas shown in the valuation included in the disclosure document forthe debentures.

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283BHWhen debentures can be called debentures

(3)The borrower may describe or refer to the debentures asdebentures if:

(a) the repayment of all money that has been, or may be,deposited or lent under the debentures has been secured by acharge in favour of the trustee over the whole or any part of thetangible property of the borrower or of any of the guarantors; and

(b) the tangible property that constitutes the security for thecharge is sufficient and is reasonably likely to be sufficient to meetthe liability for the repayment of all such money and all otherliabilities that:

(i) have been or may be incurred; and

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

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Company charges

1. debenture may be secured by a charge over companyproperty-- these are secured loans

2. s.261 - 282 governs co charges, registration and priority

3. Co charges must be registered within 45 days

3. Company charges vs mortgages

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Company charges

Types of charges

1. Fixed charge: attaches to a specific item of propertyand company cannot dispose of the property w/o the

consent of the lender

2. Floating charge: floats over a categories of property

e.g. trading stock. Company is able to dispose of theseassets in the ordinary course of business and replacethem with other assets. Floating charge holders have

no legal or equitable interest in specific assets while it

is floating.

arges requ re o e reg s ere

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arges requ re o e reg s ere

Subject to this section, the provisions of this Chapter relating to the giving of notice inrelation to, the registration of, and the priorities of, charges apply in relation to thefollowing charges (whether legal or equitable) on property of a company and do not applyin relation to any other charges:

(a) a floating charge on the whole or a part of the property, business or undertaking of thecompany;

(b) a charge on uncalled share capital;

(c) a charge on a call on shares made but not paid;

(d) a charge on a personal chattel, including a personal chattel that is unascertained or is tobe acquired in the future, but not including a ship registered in an official register keptunder an Australian law relating to title to ships;

(e) a charge on goodwill, on a patent or licence under a patent, on a trade mark or servicemark or a licence to use a trade mark or service mark, on a copyright or a licence undea copyright or on a registered design or a licence to use a registered design;

(f) a charge on a book debt;

(g) a charge on a marketable security, not being:(i) a charge created in whole or in part by the deposit of a document of title to the

marketable security; or(ii) a mortgage under which the marketable security is registered in the name of thechargee or a person nominated by the chargee; or(iii) a charge where there is an agreement in force under which the chargee (or a personwho has agreed to act on the instructions of the chargee) controls the sending of some oall electronic messages or other electronic communications by which the marketablesecurity could be transferred;

(h) lien or charge on a crop, a lien or charge on wool or a stock mortgage;(i) a charge on a negotiable instrument other than a marketable security.

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Crystallisation

Floating charges crystallise (become fixed and attach

themselves to the assets over which they floated if theterms of the charge are breached)

(automatic crystallisation)

Crystallisation is likely to occur when there is:

1) A default in payment of interest2) A breach of restrictions on future borrowing (note negative

pledges)

3) Allows value of assets to drop below certain value

4) Company ceases to deal with charged assets in thenormal course of business

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Registration S. 263 provides for registration of company charges

within 45 days of their creation however if the charge

is not registered it is not invalid The reason for registration is to allow:

1) Potential creditors to check for existing chargesover company property,

2) It is notice to the world of the existence of thecharge,

3) priority of charges

registration of the company charge is conclusive

evidence of the charge s. 272 Failure to register the charge may lead topostponement of its priority in relation to later chargesthat ARE registered.

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Priority1. first fixed charge in time if registered

2. Fixed over floating ( unless there is notice of a prohibition

on future charges in the floating charge and that prohibitionis registered) (279(3))

3. A prior registered charge loses priority over a laterregistered charge if the later one was created first butregistered later and the other chargee was aware of

this.(280(1)(a))4. Registered over unregistered unless the unregisteredcharge created first and the holder of the registered chargehad actual or constructive notice of this(280(1)(b)).

5. Unregistered charges take priority according to their time of

creation(281)).

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charges that cover present and future debts.Charges generally only cover the liability at the time the

charge was registered for priority purposes(282(1)). unless

specified amount of future liability registered (282(3))

Charges created within 6 months of of a liquidator oradministrator being appointed are void s.266

Charges in favour of Officers

267 prohibits the enforcement by Officers(directors) of a Co

of charges they have taken over the company assets within

6 months of the creation of the charges without permission

of the court.

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Certain charges void against liquidator or administrator

SECT 266(1)

(a) an order is made, or a resolution is passed, for thewinding up of a company; or(b) an administrator of a company is appointed undersection 436A, 436B or 436C; or(ba) a company executes a deed of company arrangement;

a registrable charge on property of the company is void as asecurity on that property as against the liquidator, theadministrator of the company, or the deed's administrator, asthe case may be, unless:

(c) a notice in respect of the charge was lodged undersection 263 or 264, as the case requires:(i) within the relevant period; or(ii) at least 6 months before the critical day; or

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SECT 267

Charges in favour of certain persons void in certain cases

1)Where:

(a) a company creates a charge on property of the company

in favour of a person who is, or in favour of persons at leastone of whom is, arelevant personin relation to thecharge; and(b) within 6 months after the creation of the charge, thechargee purports to take a step in the enforcement of the

charge without the Court having, under subsection (3),given leave for the charge to be enforced;

the charge, and any powers purported to be conferred by aninstrument creating or evidencing the charge, are, and aretaken always to have been, void.

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Negative Pledge Lending

A negative pledge is

a )Negative pledge lending is an unsecured loan on the basisthat the assets of the company will not be offered as security.

b )contractual promise not to borrow more money using thesame company assets as security

C ) a promise by a borrower that he will not create any future

right in respect of any or all of his assets in favour of anothercreditor which would rank ahead of that of the lender to whomthe promise is given.

In unsecured lending the lender relies entirely on contract terms

to protect his loan rather than on proprietary rights by way ofsecurity in the assets of the borrower

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Negative Pledge

Negative Pledges are found in: Loan agreement

In a loan agreement which aims to control borrowing and to

prevent other creditors from being preferred.

Debentures creating fixed and/or floating chargesIn a debenture to prevent other creditors from obtaining

competing security interests or to preserve priority over

charged assets-should be noted on register

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The effects of the Negative Pledge

Breach of the Negative Pledge will amount to a breach of a

term of the contract and the remedies available for suchbreaches will apply to the breach of the negative pledge.

Most often a breach of the negative pledge is made an event of

default in the loan agreement and where there is breach, it will

entitle the lender to call for immediate repayment of the loan.

The negative pledgee can also obtain an injunction restraining

a breach of a negative pledge.

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When a negative pledge is created any subsequent lenderwhotakes security with notice of the clause may be sued in tortby the prior lender for interfering with the latters contractual

relationship. The modern thinking on this matter is that the tortextends to direct or indirect interference with contractual rights

even where there is no breach of contract, provided it seems if

the interference (which does not amount to a breach of

contract) has been brought about by unlawful means.

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It is important that the negative pledge clause is

drafted in such away that it would not be treated as a

security that would have to be registered under thelaw. In Australia under the corporations Act a security

has to be registered and is subjected to the payment

of stamp duty

In the case ofBond Brewing Holdings Ltd v NationalAustralia Bank Ltd(1990) 1 ACSR; (1990) 1 ACSR445 (Full Court) (1990) 65 ALJR 239 (High Court)

held that NAB was not entitled to appoint a receiver

as a remedy for breach of a negative pledge

covenant

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Third Party Security Guarantees

Not a security, but often supported by a third party security incircumstances where a company borrows money

Not an interest in property

Def: promise by which person (guarantor/ surety) undertakes to

answer for the present or future obligation of the principaldebtor. This gives rise to a secondary liability on the part of the

guarantor.

Compare with Indemnity: an unconditional promise by one

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Compare with Indemnity: an unconditional promise by one

person to another that the obligation of the third party will

be discharged; this is a primary liability which exists

independently of the liability of the primary debtor

Importance of the distinction between the terms- where

primary debtor has some defence negating or reducing the

liability, the validity of the guarantee depends upon the

principal debt being enforceable.

If the principal debt is unenforceable, then the guarantorescapes liability because liability cannot occur until the

debtor has failed to meet his obligations. With an indemnity

contract the surety remains liable.

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Bank documents often purport to be both guarantee and

indemnity.

A guarantee can be for a single credit transaction or forseveral: bankers usually prefer continuing guarantees.

Guarantees must be in writing and supported by

consideration.

Consideration can be a problem when the guarantee is onlyintended to cover existing advances and no other advances

are contemplated or covered by the guarantee.

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Many of the cases regarding guarantees concern situations

where the bank:

Remiss in adequately explaining the nature, scope andterms of the liability to the prospective guarantor

Misrepresented facts or concealed relevant information

from the guarantor

Failed to ensure that the guarantor receivedindependent legal advice as to the obligations

undertaken.

G f

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Grounds for avoiding liability under a

guarantee

Mistake

Misrepresentation

Duress

Undue influence

Unconscionable conduct

Deceptive, misleading, unconscionable and unjust

conduct under consumer protection legislation.( eg

Consumer Credit Code or TPA)

Guarantees and Disclosure

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Guarantees and Disclosure A guarantee is not a contract ofuberrimae fidei

(utmost good faith) only unusual or unexpected features must

be disclosed. Note Amadio: the obligation is to disclose any special

arrangements or transactions of the types which a surety would

not naturally expect, particularly if they effect the nature or

degree of the guarantor's responsibility. Commercial Bank of Australia v Amadio

Lack of real and genuine consent non disclosure,

misrepresentation, misleading and deceptive conduct

Undue influence and unconscionable conduct Lack of independent legal advice

Thi d P t S it & if it

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Third Party Security& wifes equity

2 Situations where the law applies to render the contract andsecurity void, an exception to indefeasibility of title

(1) Wife, aware of the obligations she is undertaking, is procuredto become her husbands surety by him exerting undue

influence over her,Governed by the law dealing with undueinfluence and unconscionability (Yerkey v Jones)

(2)Wife becomes her husbands surety butA) does not understand the effect or nature of the guarantee

B) transaction was voluntary (Guarantor was a volunteer i.e.obtained no benefit or gain), C) the lender knows that the

guarantor as wife of the debtor is in a relationship of trust andconfidence and thus may not have had full and accurateexplanation of the transaction BUT the lender did not explainthe transaction to the wife or ensure that a solicitor hadexplained it to her. (Garcia v NAB)

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Royal Bank of Scotland v Etridge H of L 2001

This case is a significant decision in the area of guarantees and

married women.

The claims by the plaintiff in this case were based on undueinfluence( 7 ) and negligent advice ( 1 )

Ld Nicholls said that: Banks should be put on inquiry in any non

commercial guarantee...creditor should take reasonable steps t

bring home to the individual guarantor the risks he is running bystanding as a surety creditor must take steps to protect its ow

position as much as that of the person acting as a surety.

furthermore Ld Nicholls said banks should 1) communicate

with the wife directly seeking the name of the solicitor 2) providethe solicitor with the relevant financial info needed to advise the

wife

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Royal Bank of Scotland v Etridge H of L 2001

3) if the bank believes the wife is being misled or not entering the

transaction of her own free will ,it must inform the wifes

solicitor, 4) the bank should obtain written confirmation from thesolicitor of the above.

TPA / ASIC UNCONSCIONABLE

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TPA / ASIC UNCONSCIONABLE

CONDUCT

ASIC-(Australian Securities & Investment Commission Act1989) S. 12D

A Corp shall not in trade or commerce engage in conduct that

misleading or deceptive or is likely to mislead ordeceive

S .52 TPA wording is identical but S.51 AF excludes this part from operating in the area of

financial services

Crisp v ANZ Bank 1994

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Crisp v ANZ Bank 1994Mr. Crisp gave the Bank a mortgage over his home as guarantee

to the bank for the moneys owed by his wife and daughter

resulting from a business the women owned. Mr Crisp had given

the guarantee after the bank manager said the business overdraftwould have to be stopped and cheques dishonoured unless the

guarantee was givenOn the day Mr Crisp went to the bank to

sign the documents the manager had already given instructions to

dishonour several cheques. The manager didnt mention this toMr Crisp.

The Business collapsed -Mr Crisp argued guarantee was invalid

under S.52 TPA (misleading/deceptive conduct)and that he

wouldnt have signed had he known that the cheques had beendishonoured.Federal Courtset aside Mortgage.

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LETTERS OF COMFORT Term used to describe a document that is

" a letter of intent, of awareness, of negotiation, of assurance,

responsibility.."

" it denotes a document under which comfort is given to the

lender by the assumption not of a legal responsibility but of a

moral responsibility only..

" a letter, written frequently by a parent company ( or govt)

and given to a lender for the purpose of inducing the lender

to advance a loan to a subsidiary of the parent company.."

The legal issue arising from these " letters" concerns their

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The legal issue arising from these letters concerns their

legal effect. Are they legally binding?

There is no legislation governing them and very little case law.

Generally three forms of comfort letters can be identified:

An undertaking by a parent company to maintain its

commitment in the subsidiary

An undertaking by the parent company to use its influence to

ensure that the subsidiary meets its obligations under the

primary contract.

'mere' confirmation that the parent company is aware of the

loan agreement, but without any express tem that the parent

company is prepared to take any responsibility for the

primary obligation of the subsid.

Why would the parent company use a letter of comfort

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Why would the parent company use a letter of comfort

rather than a guarantee?

The letter and wording may reflect the parent company's

intention not to commit itself to any legal liability. The

expression in

1)the letter may be used to enhance the parent company's

image by being associated with the subsidiary

2)the letter may clearly limit its responsibility for the loans

taken by the subsidiary.

3)The letter may be used to avoid a contingent liability on

the balance sheet ( some jurisdictions require

contingencies to be noted on parent co balance sheets)

4)The letter may be necessary because the parent

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) y y p

company's existing credit arrangements may prohibit

guarantees (or limit the amount.

5) The letter may be used to avoid taxes on guarantees

that exist in some jurisdictions

Case: Kleinwort Benson Ltd v Malaysian Mining Corp

Berhad