Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 (69 of 2023)
Schedule 3 Rationalisation of ending ASIC instruments
Part 4 Describing debentures as secured notes
Division 1 Amendments
Corporations Act 2001
33 At the end of section 283BH
Add:
When debentures can be called secured notes
(4) The borrower may describe or refer to the debentures as secured notes if:
(a) the repayment of all money that has been, or may be, deposited or lent under the debentures has been secured by a first ranking security interest in favour of the trustee over the whole or any part of the property of the borrower or of any of the guarantors; and
(b) the property that constitutes the security for the security interest is sufficient and is reasonably likely to be sufficient to meet the liability for the repayment of all such money and all other liabilities that:
(i) have been or may be incurred; and
(ii) rank in priority to, or equally with, that liability.
283BHA Additional requirements for describing debentures as secured notes
Advertisements and publications
(1) If the borrower proposes to describe or refer to the debentures as secured notes in an advertisement or publication in relation to the offer, or intended offer, of debentures that requires a disclosure document - the borrower must ensure that the advertisement or publication includes:
(a) a statement that the secured notes are not bank deposits; and
(b) a statement that there is a risk that investors could lose some or all of their money.
Disclosure documents and quarterly reports
(2) If the borrower proposes to describe or refer to the debentures as secured notes in a disclosure document or in a quarterly report prepared under section 283BF - the borrower must ensure that the disclosure document or quarterly report includes statements of the following:
(a) key features of the security interest, including:
(i) that the security interest is first ranking; and
(ii) the type of security interest; and
(iii) the identity of the person providing the security interest; and
(iv) the property constituting the security for the security interest;
(b) that, in the borrower's assessment, the property that constitutes the security for the security interest is sufficient and is reasonably likely to be sufficient to meet the liabilities referred to in paragraph 283BH(4)(b);
(c) if the value of the property that constitutes the security for the security interest may be affected by the financial position or performance of a related body corporate or related party of the borrower - that fact.
Borrower's website
(3) If the borrower describes or refers to the debentures as secured notes on its website - the borrower must ensure that the reports, documents and notices mentioned in an item of the following table are published on the borrower's website in the period specified in that item:
|
Publication requirements |
||
|---|---|---|
|
Item |
Document, report or notice |
Period for publication |
|
1 |
The most recent quarterly report prepared in relation to the borrower under section 283BF |
As soon as practicable after a copy of the report is required to be lodged with ASIC |
|
2 |
Each disclosure document (including any replacement or supplementary document) lodged with ASIC in relation to the borrower in the previous 13 months |
As soon as practicable after a copy of the document is lodged with ASIC |
|
3 |
Each continuous disclosure notice required to be lodged with ASIC under section 675 in relation to the borrower in the previous 12 months |
As soon as practicable after the notice is required to be lodged with ASIC |
(4) In this section:
advertisement or publication , in relation to an offer, or intended offer, of debentures that requires a disclosure document, means:
(a) an advertisement for the offer or intended offer; or
(b) a publication of a statement that:
(i) directly or indirectly refers to the offer or intended offer; or
(ii) is reasonably likely to induce people to apply for the debentures.
related party has the meaning given by section 228.
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