Deed of Appointment CORPORATE TRUST LIMITED (AS NEW TRUSTEE) THAMES-COROMANDEL DISTRICT COUNCIL (THE COUNCIL)
THIS DEED made the day of 2013 PARTIES CORPORATE TRUST LIMITED TRADING AS FOUNDATION CORPORATE TRUST (the New Trustee ) THAMES-COROMANDEL DISTRICT COUNCIL a Council duly constituted as a territorial authority under the Local Government Act 2002 (the Council ) BACKGROUND A B C D E Perpetual Trust Limited was appointed as the trustee for the benefit of Stockholders by and pursuant to the provisions of the Trust Deed. On 28 September 2012 the FMA removed Perpetual Trust Limited as trustee and appointed the New Trustee as trustee for a period of six months from that date. The Stockholders have approved the appointment of the New Trustee as trustee by extraordinary resolution dated [ ]. The Council has determined to appoint the New Trustee as trustee on a continuing basis with effect from the date of this deed and subject to the provisions of this deed. The New Trustee has agreed to accept such appointment and consents to be trustee. DEED 1. Definitions 1.1 In this deed unless the context requires otherwise: Act means the Securities Trustees and Statutory Supervisors Act 2011; Date of Appointment means the date of this deed; FMA means the Financial Markets Authority; and Trust Deed means the debenture trust deed between Perpetual Trust Limited and the Council dated 12 March 2007 (as amended from time to time). 2. Construction 2.1 In this deed where the context requires or admits: 2.1.1 terms defined in the Trust Deed shall have the same meaning when used in this deed; 2249958_4 1
2.1.2 references to any party include the successors and permitted assigns of that party; 2.1.3 headings and sub-headings appear as a matter of convenience and shall not affect the construction of this deed; 2.1.4 references to clauses and schedules are to clauses of and schedules to this deed, unless otherwise stated; 2.1.5 the plural includes the singular and vice versa; and 2.1.6 references to any legislation or to any provision of any legislation includes that legislation or provision as from time to time amended, reenacted or replaced, and unless the context otherwise requires also includes any statutory regulations, rules, codes, orders or instruments made or issued under any such legislation or provision. 3. Removal of Perpetual Trust Limited 3.1 The parties agree and acknowledge that as at 28 September 2012, Perpetual Trust Limited was removed as trustee by the FMA pursuant to section 22(2)(a) of the Act. 3.2 The parties further agree and acknowledge that as at 28 September 2012 Perpetual Trust Limited s appointment under the Trust Deed was automatically terminated. 4. Accession to Trust Deed 4.1 As and from the Date of Appointment, the Council appoints the New Trustee to be the trustee, in accordance with the Trust Deed. 4.2 With effect from the Date of Appointment: 4.2.1 the New Trustee agrees to be bound by, and covenants that it will fully comply with, all the obligations and responsibilities which arise, as a result of, or pursuant to, its appointment as trustee under the terms of the Trust Deed as if the New Trustee had been an original party to that deed; and 4.2.2 all assets previously held by Perpetual Trust Limited pursuant to the Trust Deed will vest in the New Trustee upon the trusts and subject to the powers and conditions expressed and implied in the Trust Deed. 5. No breach 5.1 The Council warrants to the New Trustee that, except as expressly disclosed in writing to the New Trustee prior to the date of this deed, up to and including the Date of Appointment the Council is not in default of any of its duties, responsibilities or covenants under the Trust Deed. 2249958_4 2
6. No variation, modification or alteration 6.1 The Trust Deed is in no way varied, modified or altered and shall continue by and between the Council and the New Trustee for the benefit of all Stockholders. 6.2 This deed does not affect any right, remedy, obligation or liability of the parties for anything occurring before or on the Date of Appointment. 7. Further assurances 7.1 Each party shall execute and deliver any and all such instruments and take any and all such actions as any party may reasonably request from time to time in order better to confirm or give effect to the provisions of this deed. 7.2 Each party agrees to execute and deliver all instruments and/or authority and instruction forms to transfer and/or novate all assets previously held by Perpetual Trust Limited pursuant to the Trust Deed to the New Trustee. 8. Waiver 8.1 No right under this deed shall be deemed to be waived unless recorded in writing by the party waiving such right. A waiver by a party will not prejudice the rights of that party in respect of any subsequent breach of the obligations contained in this deed. 9. Illegality 9.1 If any one or more of the provisions of this deed shall be declared or adjudged to be illegal, invalid or unenforceable under any applicable law, such illegality, invalidity or unenforceability shall not vitiate any other provisions hereof and this deed shall be read and construed as if such illegal, invalid or unenforceable provision were not contained in this deed. 10. Counterpart execution 10.1 This deed may be executed in counterpart form and providing that each party has signed such a counterpart, all such signed counterparts shall together be deemed to form a single deed binding on all the parties. Each party agrees if required to re-sign a single version of the deed when called upon. 11. Costs 11.1 The New Trustee shall be responsible for its own and the Council s reasonable legal costs in connection with the appointment of the New Trustee, the preparation and signing of this deed and any further documents or instruments required under this deed. 2249958_4 3
12. Governing Law and Jurisdiction 12.1 This deed will be governed by, and construed in accordance with, the laws of New Zealand. SIGNATURES SIGNED by ) CORPORATE TRUST LIMITED ) Authorised Person as New Trustee ) in the presence of: ) Authorised Person Witness signature Witness name Witness Occupation Witness Town of Residence The COMMON SEAL of ) THAMES-COROMANDEL DISTRICT COUNCIL ) as Council ) was affixed in the presence of: ) Mayor Authorised officer 2249958_4 4