By signing this Agreement you are making the following representations, warranties and declarations to The TrustCompany (RE Services) Limited (ACN 003 278 831) as trustee of the Fund (Trustee) together with the Manager(Trustee and Manager together ‘Issuer’, ‘We’ or ‘Us’) and you agree with the Issuer to be bound by this Agreement.Terms not defined in this Agreement have the same meaning as in the Information Memorandum and Trust Deed (together the Constituent Documents) unless otherwise specified or the context requires otherwise.
1. Representations and warranties
1.1 Capacity, power and terms
(a) You have read and agree to be bound by the Constituent Documents as amended from time to time.
(b) You have the power and authority to execute, deliver and perform your obligations under the Constituent Documents, and to subscribe for the Units hereunder.
(c) The execution and delivery of the Constituent Documents will not conflict with, or result in any default under, any provision of any agreement or instrument to which you are bound.
(d) If you are signing this Agreement under power of attorney, you declare that you have not received notice of revocation of that power (a certified copy of the power of attorney should be submitted with this Agreement).
(e) If you are the sole signatory signing on behalf of a company, you declare that you are signing as a sole director and secretary of the company.
(f) The Constituent Documents are your legal, valid and binding obligations, enforceable against you in accordance with their respective terms.
(g) You and any person that subscribes for or acquires Units in the Fund on your behalf under this Agreement is a wholesale client (as defined in the Corporations Act 2001 (Cth)) and the Units are being acquired for your own account for investment purposes unless otherwise disclosed to the Manager in writing.
(h) You confirm that you have the financial capacity to hold the Units for the term of the Fund, and bear associated risks and obligations and meet all further calls on unpaid Application Monies.
(i) You confirm that all details in this Agreement are true and correct as of the date hereof.
1.2 Sophisticated investor with understanding
(a) You are a sophisticated investor and acknowledge that:
(i) an investment in the Fund is speculative and subject to material risk including loss of all invested capital and an obligation to pay uncalled Application Monies;
(ii) an investment in the Fund is illiquid; and
(iii) there can be no expectation of returns other than through the distribution of proceeds from the realisation of portfolio investments, and you have taken this into account in deciding to invest.
1.3 Reliance
You acknowledge and understand that you have relied in every respect on your own independent investigation, enquiries and appraisals in deciding to subscribe for Units and you have not relied on any representations or warranties made by the Issuer or any of their officers, directors, advisers, associates, affiliates or representatives (including placement agents and legal counsel) (each a Relevant Person) in connection with the Fund or the performance of the Fund other than those contained in the Constituent Documents.
1.4 Default
You acknowledge and understand that if you fail to pay calls on your Application Monies when determined and requested by the Manager, interest on the unpaid instalment will be charged to you and the Manager may, pursuant to the Constituent Documents, sell, redeem or forfeit your Units in which event monies paid up previously by you in respect of the Units may be entirely forfeited.
1.5 Accountant’s certificate
If applicable, you have provided the Manager with an Accountant's certificate in the form under this Agreement which is true and correct and is less than 2 years old indicating that you have either net assets of at least $2.5 million or a gross income for each of the last 2 financial years of at least $250,000 a year.
2. Confidentiality
You agree that you shall not disclose or cause to be disclosed any confidential proprietary information concerning the Fund or Relevant Persons to any person or use any such confidential information for your own purposes or your own account, except as permitted under the Constituent Documents or any side letter entered into between you and the Issuer (Side Letter).
3. Personal Information
(a) You agree to us collecting, holding and using your personal information and consent to it being used for:
(i) administration purposes and in relation to your holding and all transactions relating to the holding and for providing or marketing products and services to you;
(ii) ensuring compliance with all applicable regulatory or legal requirements including the requirements of regulatory bodies or relevant exchanges including the requirements of the superannuation law; and
(iii) any other purpose prescribed in the Constituent Documents.
We may not be able to process or accept your application or you may be compulsorily redeemed from the Fund in accordance with the Constituent Documents if you do not provide this and other information required under the Constituent Documents or to comply with applicable laws.
(b) You agree that Relevant Persons and their service providers may disclose any of the information contained in this Agreement and any other information you furnish to any of them to their agents, contractors or third party service providers to the extent required by law or permitted under the Constituent Documents.
(c) If you decide not to provide to the Manager your tax file number or Australian Business Number or your reason for exemption, tax at the highest marginal tax rate plus Medicare levy (where applicable) may be deducted from your income as required by the tax legislation.
(d) You agree to provide the Manager with any information it reasonably requests to assist it in fulfilling its tax or legal obligations and in connection with obtaining any exemption, reduction or refund of any withholding or other taxes imposed upon the Manager or the Fund.
4. Covenants and declarations
(a) You agree that the obligation under the Constituent Documents to pay or indemnify any amounts that the Manager is required to withhold or pay with respect to you or on your behalf will survive your withdrawal from the Fund or the termination or dissolution of the Fund.
(b) You acknowledge and agree that the Manager reserves the right in its absolute discretion to allocate Units or to not accept or to scale back an application for Units in its absolute discretion and to cancel the offer of Units.
(c) For the avoidance of doubt, the Constituent Documents are supplemented by any Side Letter. You acknowledge and agree that to the extent there is any variance or inconsistency between any of the Constituent Documents or any other document or agreement relating to the Fund (including the Side Letter), the Trust Deed shall prevail.
(d) You acknowledge and agree that subscription monies will be held in an account which may be interest bearing until invested in the Fund (or returned to you). Interest (if any) will be paid to the Fund.
5. Prevention of money laundering
(a) In order to comply with the Anti-Money Laundering and Counter-Terrorism Financing Act and related laws and regulations (AML/CTF Law), you agree to provide us with all true and correct information and assistance that we may request in order for us to comply with any AML/CTF Law. The Issuer reserves the right to request or re-verify such information as is necessary to meet this obligation and may, without liability to you, decide to delay or refuse any request or transaction if it is concerned that the request or transaction may breach any obligation of AML/CTF Law.
(b) You represent that the Units are or will be purchased with funds that are from legitimate sources. You are not aware and have no reason to suspect:
(i) that the monies used to fund your investment in the Fund have been or will be derived from or related to proceeds of crime, money laundering, terrorism financing or similar activities illegal under applicable laws or regulations or otherwise prohibited under any international convention or agreement; and
(ii) the proceeds of your investment in the Fund will not be used to finance any illegal activities.
6. Alternative entities
Despite any other provision of this Agreement, the Manager may establish one or more entities, which may be unit trusts, companies, partnerships or similar entities (New Entity) pursuant to the Constituent Documents. The Investor may be required to pay Application Monies to the New Entity pursuant to the Constituent Documents.
7. Additional contributions
You agree that:
(a) all of the representations and warranties contained in this Agreement are deemed repeated and reaffirmed by you on each date that you make an additional Capital Contribution;
(b) all of your covenants and agreements contained in this Agreement apply with respect to such additional Capital Contribution; and
(c) you must notify the Manager if you are not able to repeat and reaffirm the representations and warranties in the Constituent Documents or such representations and warranties cease to be true.
8. Amendments and waivers
(a) This Agreement may be amended and any provision may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of you and the Issuer.
(b) Despite paragraph (a) of this clause or anything else in this Agreement, the Manager may, without the consent of the Investor or any other person, amend this Agreement to facilitate the formation and operation of, and investments by, a New Entity, pursuant to the Constituent Documents.
9. Survival of representations and warranties; Indemnity
(a) You indemnify, keep indemnified and hold harmless the Fund and each Relevant Person from and against any and all claims, liabilities and losses relating to or arising out of any breach of any representation, warranty or declaration made by you in this Agreement or in any other document provided by you to the Issuer in connection with your investment, or any failure to fulfil any covenants or agreements contained in the Constituent Documents.
(b) You confirm your obligation under the Constituent Documents to pay or indemnify any amounts that the Issuer is required to withhold or pay with respect to you or on your behalf. You agree that this obligation will survive your withdrawal from the Fund or the termination or dissolution of the Fund.
10. Transfer and assignments
(a) You understand and acknowledge that Units can only be transferred and redeemed subject to the Constituent Documents.
(b) You agree that neither this Agreement, nor any of your rights or interests contained in any Constituent Document, are transferable or assignable except in a manner permitted under the Constituent Documents.
11. Subscribing for Units on behalf of another
(a) If you are subscribing for Units as trustee, agent, representative, custodian, sub-custodian or nominee, you understand and acknowledge that the representations, warranties and agreements made herein are made by you:
(i) with respect to youl; and
(ii) with respect to such underlying applicant (this subclause does not apply to a trust which has two or more members.
(b) You have all requisite power and authority from such underlying applicant(s) to apply for the Units and perform the obligations under this application. If you are not subscribing for Units on your own account, you agree to provide any additional documents and information that the Issuer may reasonably request.
12. Limitation of liability
(a) If you are entering into this Agreement as trustee, responsible entity, custodian, subcustodian or nominee on behalf of a fund or other person and that capacity is specified in the Investment Details (Trustee Unitholder), you enter into this Agreement only in that capacity. Your liability in respect of this Agreement is limited pursuant to clause 32 of the Trust Deed as though that clause were part of this Agreement and pertain to you as a Trustee Unitholder.
(b) The Issuer enters into this Agreement only in their capacity as manager, general partner or trustee of the Fund. You agree not to bring proceedings against the Issuer in their personal capacity or seek to wind up, dissolve or appoint an administrator, manager, receiver, liquidator or similar to the Issuer or its assets except to the extent allowed under the Constituent Documents. You agree that any liability of the Issuer is several and not joint.
13. Notices
All notices, requests, demands, approvals and other communications provided for in this Agreement must be given in accordance with the Trust Deed to the address provided in this Agreement.
14. Applicable Law
This Agreement and the rights and obligations of the parties hereto shall be interpreted and enforced in accordance with and governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia and its appellate courts.
15. Entire Agreement
Unless the Issuer specifically in writing agrees otherwise, the Constituent Documents and the Side Letter contain the entire agreement of the parties with respect to the Investor’s Units, and there are no representations, covenants or other agreements except as stated or referred to herein.
16. Termination
You agree that, except as permitted by applicable law or as otherwise provided herein, you may not cancel, terminate or revoke this Agreement or any agreement made hereunder, and that this Agreement (including the representations, warranties and covenants made in it) shall survive your death or legal disability and shall be binding upon your heirs, executors, administrators, successors and assigns.