WHS
08/05/2015 08:54
WAV/RULE
NOT PRICE SENSITIVE
REL: 0854 HRS The Warehouse Group Limited
WAV/RULE: WHS: WHS - waiver from NZX Debt Market Listing Rule 3.2.1(d)
NZX Regulation Decision
The Warehouse Group Limited (WHS)
Application for a waiver from - NZX Debt Market Listing
Rule 3.2.1(d)
5 May 2015
Waiver from NZX Debt Market Listing Rule 3.2.1(d)
Decision
1. On the condition set out in paragraph 2 below, and on the basis that the
information provided by WHS is complete and accurate in all material
respects, NZX Regulation ("NZXR") grants WHS a waiver from NZX Debt Market
Listing Rule ("Rule") 3.2.1(d) to the extent that this Rule requires that the
Trust Deed issued by WHS shall provide that a meeting of Security holders
shall be called on a requisition in writing signed by holders of not less
than 10% of the amount of the Securities for the time being outstanding.
2. The waiver in paragraph 1 above is provided on the condition that the
Trust Deed shall provide that a meeting of Security holders shall be called
on a requisition in writing signed by holders of not less than 5% of the
nominal value of the Securities for the time being outstanding.
3.The material information on which this decision is based is set out in
Appendix One to this decision. This waiver will not apply if that information
is not, or ceases to be, full and accurate in all material respects.
4.Rule 3.2.1(d), to which this decision relates, is set out in Appendix Two.
Reasons
5.In coming to the decision to provide the waiver set out in paragraph 1
above, NZXR has considered that:
a.the Threshold in Rule 3.2.1(d) aligns with the Threshold prescribed under
clause 3(1) of Schedule 15 to the Securities Regulations. However, the
Securities Regulations were revoked on 1 December 2014, by section
5(o) of the Financial Markets (Repeals and Amendments) Act 2013. Section
120(1)(b) of the FMCA now requires that a meeting of a class of debt security
holders must be called by an Issuer on the written request of holders of no
less than 5% of the nominal value of the debt securities on issue in that
class;
b.as at 1 December 2014, new regulated offers can be made under the FMCA
regime;
c.under the Rules, and but for a waiver, Issuers who offer securities under
the FMC Regime would need to provide in their trust deed a greater Threshold
than the Threshold permitted by the legislation; and
d.the legislative change to the Threshold affords a greater level of
protection to investors. As WHS is offering the Bonds under the FMC Regime,
NZXR considers that it is appropriate that WHS should be able to align the
Trust Deed for the Bonds with the Threshold in the FMC Regime, without
breaching the Rules.
Confidentiality
6.WHS has requested that the application for a waiver from Rule 3.2.1(d) and
NZXR's decision be
kept confidential until the Master Trust Deed is executed and lodged with the
registrar.
7.In accordance with Footnote 1 to Rule 1.11.2, NZXR grants WHS's request.
Appendix One
1.Warehouse Group Limited ("WHS") is a Listed Issuer with the Securities
Quoted on the NZX Debt Market ("NZDX") and the NZX Main Board.
2.WHS is intending to offer and issue Fixed Rate Bonds ("Bonds") to existing
bondholders and to New Zealand retail investors ("Offer"), to be listed on
the NZX Debt Market. The issue date of the Bonds is 15 June 2015.
3.The Offer will be made under the Financial Markets Conduct Act 2013
("FMCA").
4.The terms and conditions of the Bonds will be contained in the master trust
deed between WHS and New Zealand Guardian Trust Company Limited (the
"Trustee") dated 7 May 2015 ("Master Trust Deed") as modified and
supplemented by a supplemental trust deed (no. 1) dated 7 May
2015 (together the "Trust Deed").
5.Clause 2.2 of Schedule 1 of the Master Trust Deed will set the percentage
of Security holders able to requisition, in writing, a meeting of Security
holders (the "Threshold") at not less than
5% of the nominal value of the debt securities on issue in that class.
6.Clause 2.2 reflects the change to the Threshold prescribed under the FMCA
and Financial Markets Conduct Regulations 2014 (together the "FMC Regime").
Section 120(1)(b) of the FMCA requires that a meeting of a class of holders
of a debt security must be called by the issuer on the written request of
holders of the debt securities that have a combined nominal value of no less
than 5% of the nominal value of the debt securities on issue in that class.
This provision replaces clause 3(1) Schedule 15 of the Securities Regulations
2009 ("Securities Regulations"), which deemed trust deeds to contain a clause
that persons holding not less than one-tenth in nominal value of the issued
debt securities to which the deed relates.
Appendix Two
Rule 3.2.1 Every Trust Deed governing Debt Securities shall provide that:
...
(d) a meeting of Security holders shall be called on a requisition in writing
signed by holders of not less than 10% of the amount of the Securities for
the time being outstanding.
End CA:00264103 For:WHS Type:WAV/RULE Time:2015-05-08 08:54:13
