By signing this Application Form, you are making the following representations, warranties and declarations to the Responsible Entity and the Manager (together, 'we' or 'us') and you agree with the Responsible Entity and Manager to be bound by this Application Form. Terms not defined in this Application Form have the same meaning as in the PDS and the Constitution (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, understood and agree to be bound by this Application Form, the Target Market Determination and the Constituent Documents as amended from time to time.
(b) You have carefully considered the features of the Unit Class and the Trust as described in the Target Market Determination and PDS (including its investment objectives, minimum suggested holding time, risk level, withdrawal arrangements and investor suitability) and, after obtaining any financial and/or tax advice, determined that the investment in the Unit Class and the Trust is deemed appropriate given your investment objectives, financial circumstances and needs.
(c) You have the power and authority to execute, deliver and perform your obligations under the Constituent Documents, and to apply for the Units hereunder.
(d) 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.
(e) If you are signing this Application Form 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 Application Form).
(f) 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.
(g) The Constituent Documents are your legal, valid and binding obligations, enforceable against you in accordance with their respective terms.
(h) You confirm that you have the financial and legal capacity to hold the Units for the term of the Unit Class and the Trust, and bear associated risks and obligations and meet all further calls on unpaid Application Monies.
(i) You confirm that all details in this Application Form are true and correct as of the date hereof.
(j) Where applicable, you consent to receive ongoing investor information (including PDS information, confirmations of transactions and additional information) via email or the investor portal.
(k) You acknowledge that this application is only available to investors who have received 'personal advice' (as defined in the Corporations Act 2001 (Cth)). By signing this Application Form, you confirm that you have received personal advice in respect of an investment in the Trust .
1.2 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 Responsible Entity or Manager 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 Unit Class and the Trust or the performance of the Unit Class and the Trust other than those contained in the Constituent Documents.
1.3 Default
You acknowledge and understand that if you fail to pay calls on your Application Monies when determined and requested by the Responsible Entity, interest on the unpaid instalment will be charged to you and the Responsible Entity 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.
2. Confidentiality
You agree that you shall not disclose or cause to be disclosed any confidential proprietary information concerning the Trust 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.
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 Unit Class and the Trust 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 Application Form 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 us 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 Responsible Entity or Manager (as applicable) 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 Responsible Entity, Manager or the Trust.
4. Covenants and declarations
(a) You agree that the obligation under the Constituent Documents to pay or indemnify any amounts that the Responsible Entity is required to withhold or pay with respect to you or on your behalf will survive your withdrawal from the Trust or the termination or dissolution of the Trust.
(b) You acknowledge and agree that the Responsible Entity 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) 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 Trust, the Constitution shall prevail.
(d) You acknowledge and agree that application monies will be held in an account which may be interest bearing until invested in the Trust (or returned to you). Interest (if any) will be paid to the Trust.
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. Apex, the Responsible Entity and the Manager reserve 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 Unit Class and the Trust 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 Unit Class and the Trust will not be used to finance any illegal activities.
6. Additional contributions
You agree that:
(a) all of the representations and warranties contained in this Application Form are deemed repeated and reaffirmed by you on each date that you make an additional application;
(b) all of your covenants and agreements contained in this Application Form apply with respect to such additional application; and
(c) you must notify the Responsible Entity and 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.
7. Amendments and waivers
(a) This Application Form 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, the Responsible Entity and the Manager.
(b) Despite paragraph (a) of this clause or anything else in this Application Form, the Manager may, without your consent or any other person, amend this Application Form to facilitate the formation and operation of, and investments by, a New Entity, pursuant to the Constituent Documents.
8. Survival of representations and warranties; Indemnity
(a) You indemnify, keep indemnified and hold harmless the Trust 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 Application Form or in any other document provided by you to the Responsible Entity or Manager 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 Responsible Entity or Manager (as applicable) 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 Trust or the termination or dissolution of the Trust.
9. 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 Application Form, 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.
10. Notices
All notices, requests, demands, approvals and other communications provided for in this Application Form must be given in accordance with the Trust Deed to the address provided in this Application Form.
11. Applicable Law
This Application Form 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.
12. Entire Agreement
Unless the Responsible Entity and the Manager specifically in writing agrees otherwise, the Constituent Documents 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.
13. Termination
You agree that, except as permitted by applicable law or as otherwise provided herein, you may not cancel, terminate or revoke this Application Form or any agreement made hereunder, and that this Application Form (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.
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