Superannuation Industry (Supervision) (approved guarantee) determination No. 1 of 2008 (Cth)
Superannuation Industry (Supervision) (approved guarantee) determination No. 1 of 2008
Superannuation Industry (Supervision) Act 1993
I, Brandon Kong Leong Khoo , a delegate of APRA, under paragraph 11E(1)(a) of the Superannuation Industry (Supervision) Act 1993 (the Act) and for the purposes of subsections 29DA(3) and 29DA(4) of the Act and for the purposes of subsections 93(3) and (4) of the First Home Saver Accounts Act 2008 (the FHSA Act) DETERMINE that the requirements relating to an approved guarantee given by an ADI in favour of a trustee in circumstances where the trustee is or proposes to be the trustee of registrable superannuation entities and FHSA trusts, are:
an approved guarantee must contain solely the terms set out in the Schedule attached to this Determination.
This Determination comes into force upon registration of this instrument on the Federal Register of Legislative Instruments.
Dated 19 September 2008
[Signed]
Brandon Khoo
Executive General Manager
Specialised Institutions Division
Interpretation
In this Determination
APRA means the Australian Prudential Regulation Authority.
ADI has the meaning given in section 10 of the Act.
approved guarantee has the meaning given in section 11E of the Act.
FHSA trust has the meaning given in the FHSA Act
Federal Register of Legislative Instruments means the register established under section 20 of the Legislative Instruments Act 2003.
registrable superannuation entity has the meaning given in section 10 of the Act.
Schedule- approved guarantee
DEED OF GUARANTEE
THIS DEED POLL is made by [NAME AND ABN OF THE GUARANTOR], which has its registered office at [address] (the Guarantor).
THE COVENANTS IN THIS DEED are given for the benefit jointly and severally of [NAME OF TRUSTEE] ABN [ABN of Trustee], which has its registered office at [address] (the Trustee) in respect of all superannuation entities and FHSA trusts of which the Trustee is or becomes the trustee during the term of this Guarantee, and any acting trustee or other trustee appointed in place of the Trustee.
WHEREAS:
A. The Guarantor is an authorised deposit taking institution as defined in section 10 of the Superannuation Industry (Supervision) Act 1993 (the Act).
B. The Trustee is a constitutional corporation and holds or has made application to the Australian Prudential Regulation Authority (APRA) for, an RSE licence of a class that enables a trustee that holds a licence of that class to be a trustee of a public offer entity subject to any condition under subsection 29EA(1) of the Act on the basis that the Trustee meets the capital requirements under subsection <<29DA(3)>><<29DA(4)>> of the Act.
C. The Trustee has made application to APRA for authorisation as an FHSA provider under section 92 of the First Home Saver Accounts Act 2008 (the FHSA Act).
D. This Guarantee is in the form of the approved guarantee in accordance with section 11E of the Act, for the purposes of the Act and the FHSA Act.
E. The Guarantor accordingly undertakes the obligations specified in this Guarantee.
NOW THIS DEED WITNESSES:
Interpretation
1. In this Guarantee:
(i) all terms defined in the Act include the corresponding definition of that term as it applies to the FHSA Act, by virtue of Division 2 of Part 7 of the FHSA Act; and
(ii) references to sections of the Act include references to the sections of the Act as they apply to the FHSA Act, by virtue of Division 2 of Part 7 of the FHSA Act; and
(a) agreed amount means <<five million dollars>> Australian currency.<<insert amount where approval is applied for under subsection 29DA(4) of the Act.>>
(b) Authorisation means authorisation as an FHSA provider under section 92 of the FHSA Act.
(c) beneficiary has the meaning given in section 10 of the Act.
(d) default means
(i) any failure by the Trustee to perform any duty or obligation imposed on the Trustee under Superannuation Law or FHSA law which results in any financial loss to any superannuation entity or FHSA trust of which the Trustee is trustee, or
(ii) the breach by the Trustee of an enforceable undertaking under section 262A of the Act, to the effect that the Trustee shall make a payment of money to any superannuation entity or FHSA trust of which the Trustee is trustee.
(e) FHSA holder has the meaning given in section 9 of the FHSA Act.
(f) FHSA Law means any provision of the governing rules of any FHSA trust, or the FHSA Act, or FHSA Regulations or the provisions of the Act as they apply to the FHSA Act by virtue of Division 2 of Part 7 of the FHSA Act.
(g) FHSA Regulations means the regulations made under section 131 of the FHSA Act.
(h) FHSA trust has the meaning given in the FHSA Act.
(i) liability means any debt, obligation or liability of whatsoever nature.
(j) principal contract means any security, agreement or arrangement provided to the Guarantor which secures or is intended to secure the performance of the Guarantor’s obligations under this Guarantee.
(k) RSE licencehas the meaning given in section 10 of the Act.
(l)security means any mortgage, charge, assignment, title retention arrangement, or other interest, agreement or arrangement of whatsoever nature the purpose of which is to secure the meeting of a liability, and includes a guarantee or indemnity given in relation to a liability.
(m) superannuation entity means a registrable superannuation entity as respectively defined in section 10 of the Act.
(n) superannuation fund has the meaning given in section 10 of the Act.
(o) Superannuation Law means any provision of the governing rules of any superannuation entity, or of the Act, or of the Superannuation Industry (Supervision) Regulations 1994 (the Regulations) or of the Trustee Acts of any State or Territory of Australia, or any requirement of any other law governing superannuation entities or superannuation funds, or the law of equity, or any common law rules applying to trusts or any requirement imposed by APRA or any other government authority responsible for administering the laws or rules governing superannuation entities or superannuation funds.
Guarantee
2. The Guarantor unconditionally guarantees all liabilities (up to the agreed amount) of the Trustee in respect of the Trustee’s duties as trustee of all superannuation entities and FHSA trusts of which the Trustee is, or becomes the trustee of during the term of this Guarantee and shall pay upon demand made in accordance with Clause 5 of this Guarantee.
No requirement to proceed
3. Neither the acting trustee nor the Trustee is required to exhaust any remedies it may have (whether under Superannuation Law, or FHSA Law or otherwise) against any other person in relation to the default of the Trustee, but is entitled to demand and receive payment from the Guarantor immediately any payment is due under this Guarantee.
Term of the Guarantee
4. Except as provided in Clause 10 below, this Guarantee shall be for a period of five years commencing on the date an RSE licence issued by APRA to the Trustee comes into effect or on the date this Guarantee is signed by the Guarantor, whichever is later.
Written demand and time for payment
5. Written demand under this Guarantee may be made during the term of this Guarantee upon default by the Trustee (whether or not the default occurs during the term of this Guarantee) and the Guarantor shall make cash payment under this Guarantee without set-off, whether legal or equitable, counter claims, conditions, deductions or withholdings (and this requirement shall prevail over any provision to the contrary in any other agreement), no later than 30 days after such demand is made:
(a) by the Trustee; or
(b) by any acting trustee or other trustee appointed in place of the Trustee pursuant to the general law or to the provisions of the Act or the Regulations, or the FHSA Act or FHSA Regulations or of any law of the Commonwealth or of any State or Territory; or
(c) by any receiver or receiver and manager or administrator or liquidator or provisional liquidator of the Trustee or of any superannuation entity or FHSA trust of which the Trustee was trustee during the term of this Guarantee, appointed pursuant to any law of the Commonwealth or of any State or Territory; and
(d) such written demand shall contain, or be accompanied by particulars of the default by the Trustee upon which the demand is based, including a quantification of the amount of the liability (provided that neither bona fide errors or omissions in the particulars nor an inaccurate quantification of the liability shall invalidate the demand); and
(e) ‘particulars of the default’ may include an auditor’s certificate or an order of a court or tribunal; and
(f) nothing in this clause shall be interpreted as requiring the Trustee or any other person referred to in subparagraph (b)or (c) of this clause to defend any claim or otherwise determine in a court or tribunal the amount of any liability prior to making demand upon the Guarantor; and
(g) nothing in this clause shall be interpreted as requiring the Guarantor to guarantee under this Guarantee any liability whatsoever of any acting or other trustee or receiver or receiver and manager or administrator or liquidator or provisional liquidator referred to in this clause.
Demand to be conclusive
6. (a) The particulars provided under clause 5(d) of this Guarantee shall be conclusive evidence of default by the Trustee and the Guarantor shall not be obliged to make any enquiry; and
(b) The Trustee’s determination (or the determination of any other person referred to in Clause 5 of this Guarantee) of any calculation required under this Guarantee, or which may be done for the purposes of this Guarantee (including, without limitation, the quantification of the amount of any liability) is, in the absence of manifest error, conclusive evidence of that matter or thing.
Interest on money due
7. The Guarantor shall pay interest on money payable but unpaid under clause 5 of this Guarantee, until the date of payment, at the rate of interest specified from time to time to be payable in respect of unpaid judgments in the rules of the Supreme Court of the Australian State or Territory in which the registered office of the Guarantor is situated.
Guarantor's obligations not to be prejudiced or diminished by certain matters
8. The Guarantor's obligations under this Guarantee are absolute and unconditional in any and all circumstances, and shall not be prejudiced, released, discharged, reduced or otherwise affected by anything (whether done by or on behalf of, or occurring with or without the consent of or notice to, the Guarantor, the Trustee, any beneficiary, FHSA holder or any other person) including:
(a) any variation or novation of any agreement or arrangement between the Trustee and any other person;
(b) any act or omission by a beneficiary, FHSA holder or any other person which prejudices, releases, waives, varies or delays its rights in respect of the Trustee or any security;
(c) any security becoming void, unenforceable or diminished;
(d) any principal contract between the Trustee and the Guarantor being illegal or void or becoming wholly or partially voidable or otherwise unenforceable;
(e) any beneficiary, FHSA holder or other person becoming a party to or bound by a compromise, assignment, scheme of arrangement or reconstruction in relation to any superannuation entity or FHSA trust of which the Trustee is trustee, or accepting any sum of money in relation thereto;
(f) any failure by any person to make any claim or exercise any of its rights in relation to the Trustee, the Guarantor or a security (whether such rights arise under this Guarantee or otherwise), and any delay or forbearance in relation to the exercise of such rights;
(g) the revocation, cancellation or variation under the Act of the RSE licence held by the Trustee;
(h) the breach by the Trustee of any condition of the RSE licence held by the Trustee or of any other requirement imposed by or under law;
(i) the revocation, cancellation or variation of the Authorisation held by a Trustee;
(j) the breach by a Trustee of any condition of the Authorisation held by that Trustee or of any other requirement imposed by or under law;
(k) the appointment of an investigator, an acting trustee, or other trustee in place of the Trustee pursuant to the general law or the provisions of any law of the Commonwealth or of any State or Territory;
(l) the appointment of any receiver, or receiver and manager or administrator or liquidator or provisional liquidator of the Trustee or of any superannuation entity or FHSA trust of which the Trustee is trustee during the term of this Guarantee, appointed pursuant to any law of the Commonwealth or of any State or Territory;
(m) the winding up of the Trustee or the Guarantor;
(n) any reorganisation or reconstitution of or change in the Trustee or the business of the Trustee including the entry by the Trustee into a partnership, joint venture or other joint enterprise or commercial relationship with any person;
(m) any material change in circumstances affecting the Trustee or any transaction, agreement, arrangement or matter which is the subject of the guarantee or of any other covenant in this Guarantee;
(n) the suspension or removal of the Trustee under Part 17 of the Act;
(o) the winding up or dissolution or both of any superannuation entity or FHSA trust of which the Trustee is trustee, under section 142 of the Act or otherwise;
(p) any other fact, matter, circumstance or thing whatsoever which, but for this paragraph, would or might operate to prejudice, release, discharge, reduce or otherwise affect the Guarantor's obligations under this Guarantee (the preceding paragraphs of this clause not limiting by implication the scope of this paragraph);
(q) any relief granted by a court under Part 17 of the Act or under any other relevant legislation or any term in the governing rules of a superannuation entity or FHSA trust exempting or excusing the Trustee from breach of trust.
Indemnity
9. The Guarantor acknowledges that any liability of the Trustee to the Guarantor is incurred by the Trustee in its personal capacity only, and that the Guarantor will not be entitled to any right of indemnity out of the assets of a superannuation entity or FHSA trust whether by way of subrogation or otherwise in relation to any rights that it has against the Trustee arising out of or in connection with this Guarantee or from any payment made under or pursuant to this Guarantee and will secure its rights against the Trustee over assets of the trustee or its related entities other than assets of a superannuation entity or FHSA trust.
Termination and Revocation
10. This Guarantee shall terminate on the expiration of the term provided for in clause 4 and this Guarantee shall not otherwise be revoked except with the written consent of APRA, and only in such manner and subject to such conditions as APRA in writing allows, provided always that the Guarantor shall remain liable in respect of any rights that have fully or contingently accrued during the term of this Guarantee.
Warranty of capacity to enter into and comply with Deed
11. The Guarantor warrants to the Trustee that it has all requisite authorities, rights and powers to enter into this Guarantee and to comply with the covenants in it.
Warranty that representations and promises have not been relied on
12. The Guarantor warrants that it has not entered into this Guarantee in reliance on or as a result of any representations or promises by the Trustee and that it has relied wholly on its own investigations and enquiries in deciding whether it would enter into this Guarantee.
Jurisdiction
13. This Guarantee shall be deemed to be made in the Australian State or Territory where the Trustee has its registered office.
Notices
14. Written communications to the Guarantor contemplated by this Deed may be validly made by delivering or posting the communication to the registered office in Australia of the Guarantor or to such other address as the Guarantor shall nominate in writing.
Dated ................................
SIGNED
<<The common seal of [Name of Guarantor] was affixed hereto
in accordance with its Articles of Association in the presence of
............................................... ...............................................
Director Director/Secretary
OR
<<In accordance with section 127 of the Corporations Act 2001 by:
……………………………… ……………………………………
Director Director/ Secretary
OR
By authority of the Board of the Guarantor under registered power of attorney number <<insert number>>
>………………………………..
<<signatory>>
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