Declaration
The Applicant:
(a) represents and warrants that it has received a copy of:
(i) the Information Memorandum dated 29 November, 2022
(ii) the Partnership Deed;
(iii) the Trust Deed
and confirms that it has read and understood each of the above documents and has been afforded an opportunity to ask such questions or request such further information relating to the Fund as it deems appropriate;
(b) acknowledges that:
(i) to the extent of any conflict between the Partnership Deed and the IM, the terms of the Partnership Deed prevails; and
(ii) to the extent of any conflict between the Trust Deed and the Partnership Deed, the terms of the Partnership Deed prevail;
(c) acknowledges that it has had the opportunity to read and to understand the part titled “Risk Factors” in the IM and acknowledges that in respect of any investment in the Fund, among other things:
(i) the investment is illiquid;
(ii) the investments of the Fund are speculative and subject to a significant degree of risk; and
(iii) there can be no assurance that the Applicant will receive any part of its investment back or that returns will be generated;
(d) acknowledges that an investment in the Fund will depend upon the allocation of the Applicant’s Fund Capital Commitment by the Manager to either the Partnership or the Trusts;
(e) acknowledges that any investment in the Fund is governed by the Fund Documents and agrees from the date of admission to be bound by and comply with the terms and conditions of those documents to the extent that each such document applies to the Applicant as an investor in the Fund vehicle to which the relevant document relates;
(f) acknowledges that an investment:
(i) in the Partnership is not a deposit with, or any other type of liability of, the General Partner or the Manager, any related body corporate of the General Partner or the Manager, or any of their respective officers, advisers, agents, employees or affiliates; and
(ii) in the Trusts are not a deposit with, or any other type of liability of, the Trustee or the Manager, any related body corporate of the Trustee or the Manager, or any of their respective officers, advisers, agents, employees or affiliates,
1. (each of the foregoing entities and persons being a Relevant Person for the purposes of this section 7 only);
(g) acknowledges that no Relevant Person guarantees the payment of distributions or repayment of capital by the Fund or any particular rate of return or the performance of the Fund;
(h) acknowledges that there can be no assurance that the rates of return historically achieved by any other fund managed by a Relevant Person will be achieved by the Fund;
(i) acknowledges and understands that it will be required to contribute its Fund Capital Commitment in instalments when determined and requested by:
(i) the General Partner or the Manager in accordance with the Partnership Deed and confirms that it has the financial capacity to be a Limited Partner of the Partnership, bear the associated risks and obligations and meet all requirements to pay Capital Contributions under the Partnership Deed; and/or
(ii) the Trustee or the Manager in accordance with the Trust Deed, and confirms that it has the financial capacity to be an Ordinary Unitholder of the Trusts, bear the associated risks and obligations and meet all requirements to pay Capital Contributions under the Trust Deed;
(j) acknowledges that if it fails to pay a Capital Contribution when requested by:
(i) the General Partner or Manager in accordance with the Partnership Deed, then interest on the unpaid instalment at the Default Interest Rate determined under the Partnership Deed, an amount to compensate the Partnership for its default and other costs associated with collection or attempted collection of the unpaid instalment may be charged and the General Partner may suspend its rights, or forfeit or sell all or a portion of the Applicant’s Partnership Interest, in accordance with the Partnership Deed; and/or
(ii) the Trustee or Manager in accordance with the Trust Deed, then interest on the unpaid instalment at the Default Interest Rate determined under the Trust Deed, an amount to compensate the Trust for its default and other costs associated with collection or attempted collection of the unpaid instalment may be charged and the Trustee may suspend its rights, or forfeit or sell all or a portion of the Applicant’s Ordinary Units, in accordance with the Trust Deed;
(k) acknowledges that the Fund is not required to be registered by the Australian Securities and Investment Commission under Part 5C of the Corporations Act 2001 (Cth) (Corporations Act) as a managed investment scheme and that none of the Trustee, the General Partner or the Manager are required to prepare or lodge with the Australian Securities and Investments Commission a constitution or compliance plan;
(l) acknowledges that:
(i) it has had adequate opportunity to obtain, and has obtained prior to executing this deed, whatever independent advice it considers necessary or appropriate in relation to the legal, financial, commercial and/or taxation aspects associated with an investment in the Fund and the terms and conditions of the IM and the Fund Documents;
(ii) it has relied in every respect on its own independent investigation, enquiries and appraisals in connection with the IM and the Fund before deciding to invest in the Fund; and
(iii) it has not relied on the contents of any statement, representation, warranty, promise, undertaking or agreement other than those contained in the IM (but subject to the qualifications, disclaimers and exclusions contained in IM), whether made expressly or implied by any Relevant Person in deciding to invest in the Fund;
(m) acknowledges that:
(i) any Partnership Interest held by it may not be transferred, secured or otherwise disposed of except in accordance with the Partnership Deed; and
(ii) any Ordinary Units held by it may not be transferred, secured, realised or otherwise disposed of except in accordance with the Trust Deed;
(n) is not aware and has no reason to suspect that the monies used or to be used to fund its investment in the Fund have been or may or will be derived from or related to conduct that is prohibited by the AML/CTF Law, nor do or will such amounts constitute the proceed of crime as contemplated by the Proceeds of Crimes Act 1987 (Cth) or Proceeds of Crime Act 2002 (Cth);
(o) is not aware and has no reason to suspect the amounts to be invested in the Fund will be used to finance any illegal activities;
(p) will provide all additional information and assistance that any Relevant Person may request in order for the General Partner, the Trustee or the Manager to comply with any AML/CTF Law;
(q) if the Applicant is not a natural person, represents and warrants that either:
(i) each Beneficial Owner of it has signed this Subscription Deed; or
(ii) it has no Beneficial Owner;
(r) acknowledges that the General Partner or Trustee may decide to delay or refuse the Applicant’s application for an interest in the Partnership or Trusts for any reason, including if:
(i) it is not satisfied that (1) there is an applicable exemption under relevant securities laws to enable the interests in the Partnership or Trusts to be issued without a regulated disclosure document (such as a prospectus) and (2) the Trustee, the General Partner, the Manager and the Partnership are exempt from financial services regulation under the laws of any jurisdiction other than Australia;
(ii) the Applicant does not provide information requested by the General Partner or Trustee;
(iii) the General Partner, the Trustee is concerned that the subscription may result in a breach of any obligation, or cause the General Partner or the Trustee to commit or participate in an offence under, any law including an AML/CTF Law; or
(iv) the Applicant has Beneficial Owners and such Beneficial Owners do not sign this Subscription Deed;
(s) represents and warrants that:
(i) the details, statements, declarations and undertakings made or given by it in this Subscription Deed (including the schedules and attachments thereto) or in response to any request for additional information by the General Partner or Trustee contemplated by this deed, the Partnership Deed or the Trust Deed or under law are complete and correct;
(ii) if it is a natural person or persons, it is over the age of 18 and not under any legal disability;
(iii) if it is a company or body corporate, it is duly registered and validly existing under the laws of its place of incorporation;
(iv) it has the power to enter into and perform its obligations in connection with the Fund;
(v) it has taken all action which is necessary to authorise the entry into and performance of its obligations in connection with the Fund;
(vi) this Subscription Deed constitutes legal, valid and binding obligations of it in accordance with its terms;
(vii) the execution and performance by it of this Subscription Deed comply with, and do not conflict with or breach or constitute a default under any applicable law; its constitution or other constituent documents (if applicable); or any document, agreement, obligation or arrangement binding on it;
(viii) it is not and has not been the subject of an insolvency or bankruptcy or other similar event;
(ix) it agrees to contribute the amount specified in the Capital Commitment section of this Subscription Deed as a capital contribution to the Fund;
(i) if it is an Australian person, it is:
(A) a professional investor within the meaning of the Corporations Act; or
(B) it has provided the Manager with an accountant certificate which is no more than 6 months old indicating that the Applicant has 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; or
(C) the amount payable by it for the interests applied for under this Subscription Deed is not less than $500,000; and
1. the person is acquiring the Partnership Interest and/or Units for its own account and not with a view to, or for resale in connection with, any distribution of such interest;
(x) if it is a New Zealand person:
(A) it is a “wholesale investor” within the meaning of clause 3(2) of Schedule 1 of the Financial Markets Conduct Act 2013 of New Zealand; or
(B) an exclusion to the disclosure requirements of the Financial Markets Conduct Act 2013 of New Zealand otherwise applies in relation to its execution of this deed; and
2. the person is acquiring the Partnership Interest and/or Units for its own account and not with a view to, or for resale in connection with, any distribution of such interest;
(xi) if it is a UK person, the Applicant is not a person to whom the Information Memorandum (and any ancillary information relating thereto) and the Fund Document may be circulated without contravention of Section 21 and Section 238 of the United Kingdom Financial Services and Markets Act 2000 (the FSMA). This confirmation is being made because the Applicant is one of the following:
(A) a person resident and operating outside the United Kingdom; or
(B) a person authorised to carry out one or more regulated activities; or
(C) a person whose ordinary activities involve him participating in unregulated schemes for the purposes of a business carried on by him; or
(D) a person who is otherwise exempt from the prohibitions on financial promotion and/or the promotion of collective investment schemes contained in Section 21 and Section 238 of FSMA, respectively, including by virtue of The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 and The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001, respectively;
(xii) if it is the trustee of a trust (Trust Investor), further represents and warrants that:
(A) the Trust Investor is duly constituted and has not terminated, nor has the date or any event occurred for the vesting of the Trust Investor assets (except for the vesting of member benefits in the ordinary course);
(B) the Trust Deed relating to the Trust Investor was properly executed and appropriately stamped;
(C) nothing in the Trust Deed relating to the Trust Investor affects the representations and warranties made in this deed or the ability of the Applicant to perform its obligations under this deed;
(D) the Applicant was validly appointed trustee of the Trust Investor in accordance with the terms of the Trust Deed relating to the Trust Investor;
(E) the Applicant is the sole trustee of the Trust Investor;
(F) the Applicant is not in default under the terms of the Trust Deed relating to the Trust Investor and it has no notice of any circumstances which will or are reasonably likely to lead to the removal of the Applicant as trustee of the Trust Investor;
(G) the Applicant has the right to be fully indemnified out of the assets of the Trust Investor in respect of all its obligations and liabilities under this deed, other than to the extent that any obligation or liability is not satisfied because there is a reduction in the extent of the Applicant's indemnification out of the assets of the Trust Investor by operation of law or otherwise as a result of the Applicant's breach of trust where the Applicant fails to act honestly in a matter concerning the Trust Investor or intentionally or recklessly fails to exercise in relation to a matter affecting the Trust Investor, the degree of care and diligence that the Applicant was required to exercise;
(H) the Applicant has full legal capacity and power under the Trust Deed relating to the Trust Investor, as trustee of the Trust Investor, to own the Trust Investor assets and carry on the business of the Trust Investor as it is now being conducted; enter into this deed; and perform its obligations under this deed;
(I) all action has been taken that is necessary or desirable under the Trust Deed relating to the Trust Investor or at law to authorise the Applicant entering into this deed and carrying out the transactions contemplated by it; ensure that this document is legal, valid and binding on the Applicant as trustee of the Trust Investor and admissible in evidence against it in that capacity; and enable the Applicant to properly carry on the business of the Trust Investor.
Use of Personal Information
This section applies to each Applicant that is a natural person, and to each Beneficial Owner (each, a Relevant Person for the purposes of this section 8 only).
Each Relevant Person acknowledges that:
(a) the Manager may disclose the Relevant Person’s name, residential address and/or date of birth (Personal Information) to a credit reporting body (CRB) for the purpose of electronically verifying the Relevant Person’s identity, as required by the AML/CTF Law;
(b) the Manager may request the CRB to provide an assessment of whether the Personal Information disclosed matches (in whole or in part) the information held by the body;
(c) the CRB may use information held about the Relevant Person, and information held about other individuals, for the purpose of making such an assessment;
(d) the assessment will consist of an overall assessment of the extent of the match between the Personal Information disclosed by the Manager and the information held by the CRB and will not include separate assessments of the match between particular categories of that information;
(e) the assessment will be provided to the Manager for the sole purpose of verifying the Relevant Person’s identity. If the Manager is unable to verify the Relevant Person’s identity using information held by a CRB, the Manager will provide the Relevant Person with a notice to this effect and the name of the CRB and give the Relevant Person the opportunity to contact the CRB to update its information;
(f) records of the verification request will be made by the Manager and the CRB and retained for 7 years from the date of the request and for 7 years after the Manager ceases to provide services to the Relevant Person. The records can be accessed by the Relevant Person at the Relevant Person’s request;
(g) by signing this Subscription Deed, the Relevant Person is providing its express consent to the Manager making such a request and disclosing the Relevant Person’s Personal Information to a CRB;
(h) if a Relevant Person does not wish to consent, alternative means of verifying the Relevant Person’s identity, not reliant upon credit reporting information, are available at the Relevant Person’s request.
Special Investment Conditions for Non-US Applicants
(a) The Applicant represents and warrants that:
(i) the Applicant was not in the United States at the time that Units and Partnership Interest were offered to the Applicant, and the Applicant was not in the United States at the time such offer was accepted;
(ii) the Applicant understands and confirms that none of the Trustee, the General Partner, the Manager or any other person acting on the Trustee’s, the General Partner’s or the Manager’s behalf, has offered to sell a Unit or Partnership Interest to the Applicant by means of any form of general solicitation or advertising such as media advertising or public seminars and that Units or a Partnership Interest have not been and will not be registered under the Securities Act or the securities laws of any State and accordingly may not be offered, sold, transferred or pledged in the United States or to a US Person except pursuant to an effective registration statement under the Securities Act (the Trustee, the General Partner and the Manager having no intention of effecting a registration under such Act) or pursuant to an available exemption therefrom and any applicable State securities laws, and in a manner that will not subject the Fund to the registration requirements of the Investment Company Act or cause it to be in violation of any provisions thereof or give rise to a breach of applicable securities laws of any other jurisdiction. The Applicant further understands that the sale or transfer of Units or a Partnership Interest is further restricted by the provisions of the Fund Documents (as applicable); and
(iii) the Applicant is not a US Person and the Applicant is not acquiring Units or a Partnership Interest for the account or benefit of any US Person nor with a view to the offer, sale or delivery, directly or indirectly of any such Units or Partnership Interest within the United States or to a US Person.
(b) If required at any time, the Applicant will provide to the Trustee, the General Partner and the Manager with the relevant and properly completed U.S. Internal Revenue Service (IRS) Form W-8, available at www.irs.gov alongside instructions. The Applicant agrees that, upon the occurrence of any change in circumstances that causes any information on its Form W-8 to be incorrect (or if such form becomes obsolete), the Applicant will promptly notify the Trustee, the General Partner and the Manager and provide to the Trustee, the General Partner and the Manager a properly completed new Form W-8 (or successor form thereto), as applicable. The Applicant should consult its own tax advisor with respect to these obligations.
(c) The Applicant agrees to provide any additional representations, documents and information as are reasonably required (including, if required, pursuant to (i) Section 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or similar or successor provisions, and in each case any regulations promulgated thereunder or administrative or judicial interpretations thereunder, (ii) the Organisation for Economic Co-operation and Development’s Common Reporting Standard, (iii) any similar legislation, regulations or guidance enacted in any jurisdiction that seeks to implement similar tax reporting and/or withholding tax regimes, and (iv) any treaty, agreement with any governmental authority or other intergovernmental agreement related to (i)-(iii) above) that the Manager, the Trustee or the General Partner in their discretion requests concerning any tax return or filing, any tax compliance documentation, tax exemption (or reduction) applications or any similar tax documentation that the Manager, the Trustee or the General Partner determines should be made in respect of the Trusts or on behalf of any Ordinary Unitholders of the Trusts (as applicable) or in respect of the Partnership or on behalf of any Limited Partners in the Partnership. The Applicant agrees that any such representations, documentation and information will be true, correct, and complete in all material respects and understands that the Manager, the Trustee and the General Partner may disclose information provided by the Applicant to the IRS or other parties as necessary to comply with any tax laws (including to obtain an exemption or reduction in any tax).
(d) If, at any time during the term of the Fund, any of the representations and warranties contained in this Schedule 2 ceases to be true, the Applicant shall promptly notify the Trustee, the General Partner and the Manager that this is the case.
CERTAIN DEFINITIONS
Certain Definitions
Set forth below are the definitions of “United States” and “US person” contained in Regulation S promulgated under the US Securities Act.
“United States” or “US” means the United States of America, its territories and possessions, any state of the United States, and the District of Columbia.
“US person” means:
(a) Any natural person resident in the United States;
(b) Any partnership, limited liability company or corporation organised or incorporated under the laws of the United States;
(c) Any estate of which any executor or administrator is a US person;
(d) Any trust of which any trustee is a US person;
(e) Any agency or branch of a non-United States entity located in the United States;
(f) Any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit of a US person;
(g) Any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organised, incorporated, or (if an individual) resident in the United States; and
(h) Any partnership or corporation if: (A) organised or incorporated under the laws of any jurisdiction other than the United States and (B) formed by a US person principally for the purpose of investing in securities not registered under the US Securities Act, unless it is organised or incorporated, and owned, by “accredited investors” (as defined in Rule 501 (a) under the US Securities Act) who are not natural persons, estates or trusts.
Notwithstanding the foregoing clauses (a) through (h):
(a) any discretionary account or similar account (other than an estate or trust) held for the benefit or account of a non-US person by a dealer or other professional fiduciary organised, incorporated, or (if an individual) resident in the United States shall not be deemed to be a “US person”;
(b) any estate of which any professional fiduciary acting as executor or administrator is a US person shall not be deemed to be a “US person” if: (i) an executor or administrator of the estate who is not a US person has sole or shared investment discretion with respect to the assets of the estate; and (ii) the estate is governed by laws other than those of the United States;
(c) any trust of which any professional fiduciary acting as trustee is a US person shall not be deemed to be a “US person” if a trustee who is not a US person has sole or shared investment discretion with respect to the trust assets, and no beneficiary of the trust (and no settlor if the trust is revocable) is a US person;
(d) an employee benefit plan established and administered in accordance with (i) the laws of a country other than the United States and (ii) the customary practices and documentation of such country, shall not be deemed to be a “US person”; and
(e) any agency or branch of a US person located outside the United States shall not be deemed a “US, person” if: the agency or branch (i) operates for valid business reasons, (ii) is engaged in the business or insurance or banking, and (iii) is subject to substantive insurance or banking regulation, in the jurisdiction where located.
Furthermore, none of the International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, or their agencies, affiliates and pension plans, or any other similar international organisation, or its agencies, affiliates and pension plans, shall be deemed to be a “US person
