A Guide to the Law of Securitisation in Australia - Clayton Utz

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11 Listing of debt securities11.1 IntroductionThis section deals with the requirements for listing debtsecurities on the Australian Stock Exchange (ASX).To satisfy the requirements of some investors whose mandatesrequire securities to be listed, issuers often seek to list theirsecurities on an internationally recognised exchange. Issues ofdebt securities into the global or euro markets are typically listedon exchanges in offshore financial centres such as London,Ireland or Luxembourg. Listings on these exchanges are normallyeffected by offshore listing agents, and depending on thecomplexity of the listing rules for the relevant exchange, offshorelegal counsel may also be appointed.Issues of debt securities into the Australian market are morelikely to satisfy investor listing requirements by seeking aquotation of their debt securities on the ASX. Listing on theASX has been rare in the past, and is still not usual, but hasincreasingly occurred as “domestic” Australian dollar issues ofnotes are increasing sold offshore including to investors whorequire, or would prefer, that the notes be listed.11.2 ASX requirements for listing of debt securitiesBefore an issue of debt securities can be quoted on the ASX, thelisting entity must:(a) apply for admission to the official list of the ASX as an ASXDebt Listing by completing an application and providingcertain prescribed information;(b) be a public company limited by shares, a governmentborrowing authority, a public authority or an entity approvedby the ASX;(c) have net tangible assets at the time of admission of at leastA$10 million (or be irrevocably guaranteed by a parent whichmeets this asset test for the period of the quotation of thesecurities and agrees to provide certain undertakings);(d) be seeking a quotation of debt securities only (as opposed toequity securities or convertible notes) in an aggregate valueof at least A$10 million and for an issue price of at least 20cents (special rules also apply to partly paid securities);(e) be granted quotation of all the securities that are in the classfor which it seeks quotation;(f) satisfy any CHESS requirements relating to the settlement ofthe securities;(g) comply with the timetable prescribed by the ASX for interestpayments;(h) appoint a person to be responsible for communication withASX in relation to listing matters; and(i) agree to provide (and authenticate) documents electronicallyto the ASX and establish the facilities required for thispurpose.If the listing entity is a foreign entity, certain additional rulesapply. If the listing entity has already been admitted to theofficial list as an ASX Debt Listing, the quotation of additionalsecurities subsequently issued by that entity will be governed byanother similar set of rules.Where the listing entity is an issuer trustee, it is unlikely tosatisfy the requirements in (b) above unless it is approved by theASX. Additionally, because of the nature of securitisedtransactions and the debt securities, the subject of the listingapplication (which are usually settled through Austraclear),waivers of the requirements in (c), (f) and (g) above are typicallygranted by the ASX on application by the listing entity.The listing entity gives certain warranties and indemnities to theASX in the listing application including that the issue ofsecurities to be quoted complies with the law, and is not for anillegal purpose.Fees will be payable by the listing entity in respect of each listingapplication.Quotation of any entity’s securities is in the ASX’s absolutediscretion. If a listing entity is admitted to the official list as anASX Debt Listing, the application form, the informationmemorandum and the other transaction documents whichconstitute the issuer trust or are otherwise relevant to the termsof the issue may be made publicly available by the ASX.11.3 Listing rules form contract between ASX and trusteeThe admission of entities to the official list and the quotation onthe ASX of debt securities issued by that entity are governed bythe ASX listing rules. These rules, which are contractuallybinding on the listed entity, also govern the ongoing disclosureregime and reporting requirements applicable to listed entitiesand some aspects of a listed entity’s conduct.The key continuous disclosure rule is listing rule 3.1. Thisprovides that once an entity is or becomes aware of anyinformation concerning it that a reasonable person would expectto have a material effect on the price or value of the listedsecurities, the entity must immediately tell the ASX thatinformation. While there are exceptions in listing rule 3.1A,63
the ASX has discretion to ask the entity to provide theinformation, notwithstanding the exceptions if the information isnecessary to correct or prevent a false market.The ASX has recognised that certain listing rules are notappropriate for securitisation transactions and, on application bythe listing entity, will typically grant waivers of these rules, as itconsiders appropriate.11.4 Consequences of breach of the listing rulesIf an entity admitted to the official list does not comply with thelisting rules, its securities may be suspended from quotation or itmay be removed from the official list.The court may also make such orders as it thinks fit on theapplication of the Australian Securities & InvestmentsCommission, the ASX or a person aggrieved by the allegedcontravention of the listing rules. However, the court can onlymake such an order if the court is satisfied that the order wouldnot unfairly prejudice any person.Failure by a person to comply with the continuous disclosureobligations under the listing rules is a criminal offence under theCorporations Act if the information which is not disclosed is notgenerally available and is information that a reasonable personwould expect (if it were generally available) to have a materialeffect on the price or value of the listed securities.Contravention is also a civil penalty provision under theCorporations Act, as to which limited defences are available.A breach of the listing rules may also give rise to a marketoffence for the purposes of Part 7.10 of the Corporations Act.Examples of the types of conduct caught by Part 7.10 includemarket manipulation, making of false or misleading statements,inducing a person to deal or dishonest conduct.64
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12.7.3 Euroentitlements............
Page 9 and 10:
1 General overview of the nature of
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An interest in a managed investment
Page 15 and 16: 142.3.4 Provision of a financial se
Page 17 and 18: 3 The disclosure and civil liabilit
Page 19 and 20: 18The statutory source for this ste
Page 21 and 22: The implication of this approach in
Page 23 and 24: Interestingly, the majority then we
Page 25 and 26: 4 Stamp duty and securitisation244.
Page 27 and 28: 264.8 Relief for mortgage-backed se
Page 29 and 30: 4.10 ConclusionStamp duty is a very
Page 31 and 32: Despite the absence of an express a
Page 33 and 34: 32share of the profits of the compa
Page 35 and 36: (d) before the issue:(i) the compan
Page 37 and 38: 365.4 Debt/equity rulesDivision 974
Page 39 and 40: Entities that make GST-free supplie
Page 41 and 42: • “ enterprise” is defined in
Page 43 and 44: 6 The Consumer Credit Code andsecur
Page 45 and 46: 7 The regulation of the participati
Page 47 and 48: inclusion within the ELE depends on
Page 49 and 50: 8 Set-off and securitisation8.1 Int
Page 51 and 52: 50However, this result and the prin
Page 53 and 54: 9 Insolvency and securitisation529.
Page 55 and 56: 54• if the trustee has not limite
Page 57 and 58: Section 588FG provides a measure of
Page 59 and 60: 10 Issues relating to debt securiti
Page 61 and 62: 60indemnity existed) and had no han
Page 63: The effect of the decision has been
Page 67 and 68: • Public Trustee Members - for pr
Page 69 and 70: When Austraclear receives notificat
Page 71 and 72: have been completed in relation to
Page 73 and 74: Some CMBS transactions allow the is
Page 75 and 76: 14.3 GamingIn the past, another con
Page 77 and 78: 16 Clayton UtzOur securitisation te
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A Guide to the Law of Securitisation in Australia - Clayton Utz

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