Commonwealth Consolidated Regulations

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Meaning of traditional trustee company services and estate management functions

             (1)  For paragraph 601RAC(3)(f) of the Act, acting in any of the following capacities is prescribed:

                     (a)  as trustee for the holders of debt securities of a body;

                     (b)  as trustee of a trust established for purposes that include issuing debt securities (including loan-backed securities and mortgage-backed securities) or managing or servicing the assets of the trust;

                     (c)  as trustee for the benefit of present or future creditors of another person when holding:

                              (i)  mortgages, charges, guarantees, indemnities or other rights or benefits that have been given to secure debts owing to the creditors; and

                             (ii)  the proceeds from the enforcement of any of those things that have been given in subparagraph (i);

                     (d)  as custodian for another trustee or for the responsible entity of a registered scheme or other commercial entity;

                     (e)  as trustee of a managed investment scheme the main assets of which consist of land and improvements on the land where the trustee is not responsible for the daily management of the land or any business conducted on the land;

                      (f)  as trustee for employee share or benefit schemes;

                     (g)  as trustee for trusts the main activities of which consist of making loans to, or otherwise investing in, companies or other commercial entities;

                     (h)  as an escrow agent;

                      (i)  as a person named in a will as an executor when not actively providing a service or function;

                      (j)  as a person named in a power of attorney as an attorney when not actively providing a service or function;

                     (k)  preparing a power of attorney for a person's medical treatment or for guardianship of a person's affairs;

                      (l)  preparing a living will or advance health directive of any kind.

          (1A)  Paragraph (1)(d) does not apply to a custodian that is a trustee establishing and operating a common fund.

             (2)  In this regulation:

"debt security " means:

                     (a)  any debenture, debenture stock, bond, note or other security of a corporation or body; or

                     (b)  any convertible note issued by a company or any convertible note in a unit trust scheme issued by the trustee of a unit trust scheme; or

                     (c)  any right to a security mentioned in paragraph (a) or (b);

whether or not it is a charge on the assets of the corporation, company, society or unit trust scheme.

"employee share or benefit scheme " means a scheme under which a company offers for issue or sale shares (or options over issued shares) in the company, or some other benefit in the company, only to a director or employee of the company, or of an associated body corporate, when the offer is made.

"escrow agent " means a person with whom is deposited a contract, deed, bond or other written agreement or property for delivery to the grantee, promisee or some other person on resolution of a dispute or fulfilment of some condition.

"loan-backed security " means:

                     (a)  an instrument or property:

                              (i)  creating a right or interest (whether described as a unit, bond or otherwise) for a beneficiary; or

                             (ii)  conferring a right or interest (whether described as a unit, bond or otherwise) on a beneficiary; or

                            (iii)  consisting of a right or interest (whether described as a unit, bond or otherwise) of a beneficiary;

                            in a scheme under which the profits, distributions of capital or income in which beneficiaries share arise or arises from the acquisition, holding, management or disposal of a loan or pool of loans; or

                     (b)  an instrument which evidences a right or interest mentioned in paragraph (a); or

                     (c)  a debt security:

                              (i)  the payments under which by the person that issues or makes the instrument are derived mainly from the acquisition, holding, management or disposal of a loan or pool of loans; and

                             (ii)  that is secured by a mortgage or charge over a loan or pool of loans.

"mortgage-backed security " has the meaning given in regulation 5D.1.03.

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