Exhibit B
-------------------------------------------------------------------------------
CONSOLIDATED TRUST DEED
CONSTITUTING
WESTFIELD AMERICA TRUST
-------------------------------------------------------------------------------
CONSOLIDATED TRUST DEED
CONSTITUTING WESTFIELD AMERICA TRUST
COMPRISING:
Deed dated 28 March 1996 between Westfield America Management Limited
("MANAGER") and Perpetual Trustee Company Limited ("PERPETUAL") as amended by:
1. Deed of Variation dated 9 May 1996 between Perpetual and the Manager
2. Deed of Variation No 2 dated 24 June 1996 between Perpetual and the
Manager
3. Deed of Variation No. 3 dated 13 June 1997 between Perpetual and the
Manager
4. Deed of Variation No. 4 dated 29 May 1998 between Perpetual and the
Manager
5. Deed of Variation No. 5 dated 11 August 1998 between Perpetual and the
Manager
6. Deed of Variation No. 6 dated 23 June 1999 between Perpetual and the
Manager
7. Draft Deed of Variation No. 7 dated 17 March 2000 between Perpetual
and the Manager
-------------------------------------------------------------------------------
CONSTITUTION OF
WESTFIELD AMERICA TRUST
Date: 28 March 1996
1 INTERPRETATION
-------------------------------------------------------------------------------
DEFINITIONS 1.1 In this deed, these words and phrases have this
meaning unless the contrary intention appears:
ACCRUAL PERIOD: the six monthly periods commencing on 1
January and 1 July, or such other period as the Manager
determines, provided that, if the Manager determines
that Accrual Periods will be quarterly, then Accrual
Period means the three month periods ending 31 March,
30 June, 30 September and 31 December of each year.
AGREEMENT AND PLAN OF REORGANISATION: an agreement
between WEA, Westfield U.S. Investments Pty. Limited,
Westfield Corporation Inc., Annatar Pty. Limited, the
Trustee and Westfield America Management relating to
various transactions connected with the restructuring
of the ownership of WEA.
APPLICATION PRICE: the price calculated for the issue
of a Unit under this deed.
ASIC: the Australian Securities & Investments
Commission. ASSETS: all the property, rights and income
of the Trust.
ASX: Australian Stock Exchange Limited and its
successors.
AUDITOR: the auditor for the time being of the Trust.
BUY RATE: the highest of the buy rates for Australian
Dollars quoted in United States Dollars by the Panel
Banks at 11.00 a.m. (Sydney time) on the Buy Rate
Determination Day.
BUY RATE DETERMINATION DAY: any date falling between
and including the Closing Date and the 28th June, 1996
as selected by the Manager.
CENTERMARK OPTION DEED: any deed entered into by
the Trustee, Westfield America Management and other
parties including WEA which provides for the issue
of Options to the holders of WEA Stock on terms
which enable such holders to acquire Units for an
Application Price determined in accordance with
CLAUSE 8 whether or not such Application Price is
satisfied by the exchange of WEA Stock.
CENTERMARK OPTION UNITS: Units that may be issued from
time to time as a consequence of the exercise of
Options granted under the CenterMark Option Deed.
CENTERMARK OPTION UNITS ISSUE DATE: a date when
CenterMark Option Units are issued.
CENTERMARK STOCKHOLDERS AGREEMENT: any agreement
entered into by the Trustee, Westfield America
Management, WEA and the other holders of WEA Stock
which, amongst other things, regulates the composition
of the board of WEA.
CLASS: a class of Units.
CLOSING DATE: the date of closing of the offer made
pursuant to the Initial Prospectus.
COMPLIANCE COMMITTEE MEMBER: a member of a compliance
committee established by the Manager in connection with
the Trust.
CORDERA SUBSCRIPTION AGREEMENT: an agreement between
Cordera Holdings Pty Limited, the Trustee and Westfield
America Management pursuant to which Cordera is to
subscribe for Units.
CURRENT APPRAISAL VALUE:
(a) the most recently determined valuation of the
entity's assets as determined by a qualified
valuer who is independent of the Manager and
its associates and recorded in the entity's
accounting records;
(b) the valuation given to the entity's assets by
the directors of the entity, provided that
the valuation is supported by a qualified
valuer who is independent of the Manager and
its associates and recorded in the entity's
accounting records; or
(c) if required by the Manager, the value of the
entity's assets as determined by a Valuer.
CUSTODIAN: a corporation appointed by the Manager, for
the purposes of CLAUSE 3.4.
DISTRIBUTABLE INCOME: the amount determined by the
Manager under CLAUSE 11.1 as being the distributable
income of the Trust for an Accrual Period.
DISTRIBUTION REINVESTMENT PLAN: a plan operated and
administered by the Manager which enables Members to
reinvest distributions of Distributable Income in
taking up new Units being a plan which is governed by
the Rules.
ENTITY INTEREST: an Asset comprising a shareholding or
other equity interest in a corporation or other entity
other than such a shareholding or equity interest which
the Manager determines should not be regarded as an
Entity Interest.
ENTITY'S LIABILITIES: all borrowings, unpaid costs,
charges, expenses, outgoings and fees and any provision
which the directors of the entity decide in
consultation with the auditor of the entity should be
taken into account in determining the liabilities of
the entity, each determined in accordance with the
accounting standards applicable to the entity and
generally accepted accounting principles consistently
applied.
EXCHANGE RATE: the spot rate for the exchange of
Australian Dollars to US Dollars determined for the
date upon which the exchange of currencies is to
take place as quoted on the Reuters Screen "HSRA"
or any equivalent replacement reference page at
4.00 p.m. on that date provided that if no such
rate is available then the "EXCHANGE RATE" means
the average of mid-rates as quoted by any two of
National Australia Bank, Commonwealth Bank of
Australia, Westpac Banking Corporation and
Australia and New Zealand Banking Group Limited at
4.00 p.m. on that date.
EXPERT: an expert selected by the Manager for the
purposes of PARAGRAPH (C) of the definition of "MARKET
PRICE" being a member of the following panel:
SBC Australia Equities Limited, ABN Amro Australia
Hoare Govett, XxXxxxxx & Company Limited, BT
Securities (Australia) Limited, Xxxxx Xxxxx
Australia Limited and ANZ XxXxxxxxx Limited and/or
such other members as the Manager determines from
time to time.
FEE ASSETS: the amount determined by adding the
following amounts:
(a) where the Assets include an Entity Interest,
the Manager's proportionate interest in the
assets of the relevant entity based upon the
Current Appraisal Value of those assets net
of the Entity's Liabilities at the time of
such determination; and
(b) the value of all other Assets,
and deducting therefrom the Liabilities (excluding
any portion of the Liabilities represented by the
Entity Liabilities). For the purposes of this
definition, the Manager's proportionate interest in
the assets of an entity shall be that proportion of
the assets of the entity available to be
distributed to the holders of equity interests in
the entity that the Manager would be entitled to
receive by virtue of its Entity Interest in the
relevant entity on a winding up or dissolution of
the entity in circumstances where the assets of the
entity exceeded the Entity's Liabilities at the
time of such winding up or dissolution.
FINANCIAL YEAR: a year ending on 31 December, or that
part of such a year occurring at the commencement or
termination of the Trust.
HOME EXCHANGE: that state branch of the ASX designated
as such for the Trust to the Manager by the ASX.
INITIAL PROSPECTUS: the first Prospectus issued by the
Manager after the date of this deed offering Units for
subscription by investors.
LAND: land under the Trustee Xxx 0000 (NSW) or land
located anywhere in the world.
LIABILITIES: includes all borrowings, unpaid costs,
charges, expenses, outgoings and fees, any provision
which the Manager decides in consultation with the
Auditor should be taken into account in determining the
liabilities of the Trust and all other liabilities
determined in accordance with accounting standards and
generally accepted accounting principles (including
liabilities accrued but not yet paid).
LIQUID: has the same meaning as in the Corporations
Law.
LISTING RULES: the listing rules of the ASX and any
other rules of the ASX which are applicable while the
Trust is admitted to the Official List of the ASX, each
as amended or replaced from time to time, except to the
extent of any express written waiver by the ASX (which
has not been revoked).
MANAGER: the company which is registered with ASIC as
the single responsible entity for the Trust under the
Corporations Law.
MARKET PRICE: in respect of any business day means:-
(a) the last sale price per Unit for the applicable
Class ("ASX SALE PRICE") recorded on the ASX on
that business day or if no Units were traded on
the ASX on that business day the last ASX sale
price recorded on the ASX; or
(b) if the Manager believes that the calculation in
PARAGRAPH (A) does not provide a fair reflection
of the market price of a Unit on that business
day, the mid-point of the bid and offer prices per
Unit recorded on the ASX at the close of trading
on that business day (whether or not a sale is
recorded on that business day); or
(c) if the Manager wishes to have the calculation
referred to in PARAGRAPH (B) reviewed by an
Expert and has given written instructions to
that Expert for that purpose, the price
determined by that Expert having considered
all representations made in relation to the
matter by the Manager.
MARKET RATE: the average mid rate for bills of
exchange which have a tenor of 3 months which
average is displayed on the "BBSW" page of the
Reuters Monitor System on the first day of the
period for which the rate is to be determined, or
if there is a manifest error in the calculation of
that average rate or it is not displayed by 10.30am
Sydney time on that day then the rate specified in
good faith by the Manager as the average rate for
bills of that tenor bid and offered by at least 4
leading financial institutions in Sydney on that
date (whether such bids and offers are displayed on
the "BBSW" page or otherwise evidenced).
MEMBER: the person registered as the holder of a Unit
(including persons jointly registered).
MONTH: calendar month.
NET ACCOUNTING INCOME: subject to the Manager (in
conjunction with the Auditor) being able to decide
the classification of any item as being on income
or capital account and the extent to which reserves
or provisions need to be made, the Net Accounting
Income of the Trust for an Accrual Period is the
income of the Trust net of expenses determined in
accordance with generally accepted Australian
accounting standards.
NET ASSETS: the Assets of the Trust less its
Liabilities.
NET ASSET VALUE: the value of the Net Assets of the
Trust.
NET INCOME: the Net Income for an Accrual Period is the
"net income" of the Trust determined in accordance with
subsection 95(1) of the Tax Act on the assumption that
the Accrual Period is a year of income but reduced by
any amount that would, on the assumption that an
Accrual Period were a year of income, be included in
the assessable income of the Trust in accordance with
Sections 6AC or 160AQT of the Act.
OPTION: an option to subscribe for a Unit or Units.
OPTION HOLDER: a person registered as the holder of an
Option (including persons registered jointly).
PANEL BANKS: the Commonwealth Bank of Australia,
Westpac Banking Corporation, Australian and New Zealand
Banking Group Limited, National Australia Bank Limited,
Bankers Trust Australia Limited, SBC Warburg Australia
Limited, Xxxxxxx Sachs (Australia) Limited and
Macquarie Bank Limited.
QUARTER: a period of 3 calendar months ending on 31
March, 30 June, 30 September and 31 December in each
year.
QUARTERLY PERIOD: a calendar quarter commencing on 1
January, 1 April, 1 July or 1 September.
RECORD DATE: the date for lodgment of transfers for the
purpose of identifying the Members, or if applicable,
Option Holders who are to have relevant entitlements.
RELIEF: any declaration or modification made or
exemption granted by the ASIC at any time, and
continuing in force and applicable to the Trust.
RESOLUTION:
(a) a resolution passed at a meeting of Members of the
Trust:-
(i) on a show of hands, by the required majority
of Members present in person or by proxy or
representative; or
(ii) if a poll is duly demanded, by the required
majority of the number of Units held by
Members present and voting on the poll, in
person or by proxy or representative; or
(b) where the law allows, a resolution in writing
signed by Members holding the required
majority of the Units in the Trust.
Except where this deed or any applicable law
provides otherwise, the "required majority" is a
simple majority.
RULES: the rules governing any Distribution
Reinvestment Plan administered or operated by the
Manager from time to time being rules in the form or to
the effect of the form specified in the First Schedule.
SHARE SALE AND UNIT SUBSCRIPTION AGREEMENT: an
agreement entered into between Annatar Pty. Limited,
Westfield Holdings Limited, the Trustee and Westfield
America Management which relates to the purchase by the
Trustee of WEA Stock from Annatar and the issue by
Westfield America Management to Annatar of Units.
SPECIAL OPTION: a special option issued under a
Special Option Deed.
SPECIAL OPTION DEED: a deed between the Trustee,
Westfield America Management and WEA 14 May 1996, as
varied by a deed of variation between the same parties
dated 24 June 1996.
SPECIAL OPTION HOLDER: the holders from time to time of
Special Options.
SPECIAL RESOLUTION: a Resolution where the required
majority is 75%.
SUBSCRIPTION AMOUNT: in respect of an application for a
Unit, the Application Price less the Uncalled Amount.
TAX: all kinds of taxes, duties, deductions and charges
imposed by any government or other authority, together
with interest and penalties thereon.
TAX ACT: the Income Tax Xxxxxxxxxx Xxx 0000 ("1936
ACT"), the Income Tax Assessment Xxx 0000 ("1997 ACT")
or both the 1936 Act and the 1997 Act as appropriate,
and any provisions of any succeeding legislation
replacing sections of the 1936 Act and the 1997 Act
referred to in this deed.
TRANSACTION COSTS:
(a) when calculating the Application Price of a Unit
in accordance with CLAUSE 8:
The Manager's estimate of the total transaction
costs,(or a portion of total transaction costs, if
appropriate, having regard to actual transaction
costs which would be incurred because of the
issue or sale of the Units taking into account
contemporaneous redemptions) which would be
incurred in acquiring afresh the Assets of the
Trust.
(b) when calculating the redemption price of a Unit in
accordance with CLAUSE 8.10:
The Manager's estimate of the total transaction
costs (or a portion of the total transaction
costs, if appropriate, having regard to the
actual transaction costs which would be incurred
because of the redemption or the buy-back, as the
case may be, taking into account contemporaneous
issues and sales of Units) which would be
incurred in selling the Assets of the Trust.
TRUST: the trust hereby constituted and to be known as
the "WESTFIELD AMERICA TRUST", (subject to CLAUSE
9.10).
TRUSTEE: the trustee of the Trust from time to time,
and includes the Manager when acting as the trustee.
UNCALLED AMOUNT: in respect of a Unit, the Application
Price less the amount remaining unpaid and which has
not been called.
UNIT: an undivided share in the beneficial interest in
the Trust as provided in this deed
"UNITS ARE OFFICIALLY QUOTED" or "UNITS ARE OFFICIALLY
QUOTED" means the admission of the Trust to the
Official List of the ASX.
US DOLLAR EQUIVALENT: in relation to Australian
Dollars, the equivalent at any time of that amount in
US Dollars determined by multiplying the Australian
Dollar amount by the Exchange Rate at that time.
VALUATION TIME: a time at which the Manager calculates
Net Asset Value.
VALUER: an independent qualified valuer selected by the
Manager.
WEA means Westfield America, Inc. (formerly called
CenterMark Properties, Inc.), a United States
corporation incorporated in Missouri.
WEA DIVIDEND DATE: a date when the entitlement of
holders of WEA Stock to receive dividends payable
in respect of a Quarterly Period is determined by
WEA.
WEA DIVIDEND REINVESTMENT PLAN: any plan or arrangement
in operation from time to time which enables the
holders of WEA Stock to reinvest dividends to which
they are entitled in respect of such WEA Stock in the
acquisition of new WEA Stock.
WEA STOCK: shares of common or preference stock in WEA
outstanding from time to time.
WESTFIELD AMERICA MANAGEMENT: Westfield America
Management Limited ACN 072 780 619.
-------------------------------------------------------------------------------
INTERPRETATION 1.2 Unless the contrary intention appears, in this deed
(including its schedules and appendices):
(a) terms defined in the Corporations Law are used
with their defined meaning;
(b) a reference to a statute, ordinance, code or other
law includes regulations and other instruments
under it and consolidations, amendments,
re-enactments or replacements;
(c) the singular includes the plural and vice versa;
(d) the words "including" and "for example" when
introducing a list of items does not exclude a
reference to other items, whether of the same
class or genus or not;
(e) amend includes delete or replace;
(f) person includes a firm, a body corporate, an
unincorporated association or an authority;
(g) headings and marginal notes are for convenience
only and do not affect interpretation of this
deed;
(h) a reference to a "business day" is to a day other
than a Saturday or Sunday on which banks are open
for general banking business in Sydney and
Melbourne;
(i) a reference to a "foreign person" has the same
meaning as in the Foreign Acquisitions and
Takeovers Xxx 0000 (Commonwealth); and
(j) a reference to this deed or another instrument
includes any variation or replacement of any of
them.
PARTIES BOUND 1.3 This deed as amended binds the Manager and the Members
of the Trust and any person claiming through any of
them as if each of them had been a party to this deed.
2 CORPORATIONS LAW
-------------------------------------------------------------------------------
CORPORATIONS LAW 2.1 If:
(a) the Corporations Law requires that this deed
contain certain provisions; or
(b) any relevant Relief from the provisions of
the Corporations Law directly or indirectly
requires that this deed contain certain
provisions,
then those provisions are deemed to be incorporated
into this deed and prevail over the provisions of
this deed to the extent of any inconsistency.
This CLAUSE 2.1 prevails over all other provisions
of this deed (including any which purport to
prevail).
ASX LISTING RULES 2.2 This CLAUSE 2.2 applies while the Trust is listed.
If the Listing Rules prohibit an act being done, the
act shall not be done. Nothing contained in this deed
prevents an act being done that the Listing Rules
require to be done. If the Listing Rules require an act
to be done or not to be done, authority is given for
that act to be done or not to be done (as the case may
be). If the Listing Rules require this deed to contain
a provision and it does not contain such a provision,
this deed is deemed to contain that provision. If the
Listing Rules require this deed not to contain a
provision and it contains such a provision, this deed
is deemed not to contain that provision. If any
provision of this deed is or becomes inconsistent with
the Listing Rules, this deed is deemed not to contain
that provision to the extent of the inconsistency. The
obligations imposed by this CLAUSE 2.2 are additional
to those imposed by any other clause of this deed.
2.3 In accordance with ASIC Class Order 98/1808 or its
equivalent and for so long as it applies to the
Trust, a change in the text of this deed because of
the operation of CLAUSE 2.2 is not a modification
of, or the repeal and replacement of, the
constitution of the Trust for the purposes of
subsections 601GC(1) and (2) of the Corporations
Law.
SUPREMACY 2.4 If any provision incorporated or deemed to be
incorporated in this deed by the Corporations Law or
Corporations Regulations or Listing Rules is
inconsistent with any other provision contained or
deemed to be contained in this deed, the covenants or
provisions will prevail in the following order of
priority:-
(a) provisions incorporated or deemed to be
incorporated in this deed by the Corporations Law;
(b) provisions incorporated or deemed to be
incorporated in this deed by the Corporations
Regulations;
(c) provisions required to be contained in this deed
by the Listing Rules; and
(d) the other provisions contained in this deed.
3 THE TRUST
-------------------------------------------------------------------------------
THE TRUST 3.1 There is constituted by this deed the
Trust under which property shall be vested in and
held by the Trustee upon trust for the Members,
subject to the terms and conditions of this deed.
MANAGER 3.2 Westfield America Management agrees to act as Manager
of the Trust.
ASSETS VEST IN 3.3 The Trustee must hold the Assets of the Trust on trust
TRUSTEE for the Members. The Assets of the Trust vest in the
Trustee, but must be held as a separate fund which is
not available to meet liabilities of any other trust.
APPOINTMENT OF 3.4 The Manager, subject to law, may from time to time
CUSTODIAN appoint in relation to the Trust any one or more
corporations (whether or not related to or associated
with the Manager) to perform the following actions in
the name of the Manager or in the name of the
Custodian:
(a) purchase or sell Assets at the direction of the
Manager and execute all transfers and assurances
necessary for that purpose;
(b) receive and hold on behalf of the Manager Assets
and any document of title relating to the Trust in
safe custody;
(c) receive all income on behalf of the Manager
arising from any of the Assets referred to in
PARAGRAPH (B) of this CLAUSE 3.4;
(d) procure registration of those Assets;
(e) hold and disburse monies in the name of the
Manager at the direction of the Manager; and
(f) perform all actions incidental to any of the above
powers.
The Manager, by the terms of an appointment under
this CLAUSE 3.4 may insert provisions for the
protection and convenience of others dealing with
the Custodian as it thinks fit. If the Manager
appoints a Custodian, the Manager remains liable
for any act or omission of the Custodian as if the
act or omission was an act or omission of the
Manager.
-------------------------------------------------------------------------------
The Manager is responsible for payment of the fees
and expenses of the Custodian but is entitled to be
reimbursed out of the Trust in respect of those
fees and expenses subject to a maximum in any
Financial Year of 1% of the Assets under the
control of the Custodian. If the aggregate of the
fees and expenses of the Custodian exceeds the
above maximum in any Financial Year, the excess is
to be paid from the Manager's own funds.
MAXIMUM NUMBER 3.5 The maximum number of issued Units in the Trust at any
OF UNITS time must not exceed 100,000,000,000.
4 DURATION OF TRUST
-------------------------------------------------------------------------------
INITIAL SETTLEMENT4.1 The Trust commenced on 28 March 1996.
TERMINATION 4.2 The Trust terminates if:-
(a) the Trust terminates in accordance with another
provision of this deed or by law; or
(b) the Members so resolve by a Special Resolution
passed at a meeting of Members convened by the
Manager.
TERMINATION DATE 4.3 The Trust terminates on the earlier of:-
(a) the 80th anniversary of the day the Trust
commenced; or
(b) the date on which the Trust is terminated under
this deed or by law.
NO DISSOLUTION 4.4 Notwithstanding any other provision of this deed the
death, insanity, bankruptcy, retirement, resignation or
expulsion of a Member or of the Manager will not of
itself cause or result in the dissolution or
termination of the Trust.
5 INTERESTS OF UNIT HOLDERS
-------------------------------------------------------------------------------
UNITS 5.1 Subject to the other provisions of this deed and the
terms of issue of a Unit, each Unit confers an equal
undivided interest in the Assets, and does not confer
any interest in a particular Asset, but only an
interest in the Assets of the Trust as a whole, subject
to the Liabilities of the Trust.
FRACTIONS 5.2 Fractions of a Unit may be issued calculated to such
number of decimal places as the Manager determines. In
spite of any other provision of this deed but subject
to the rights, obligations and restrictions attaching
to any Units or any Classes, any right or interest
conferred by a fraction of a Unit will be calculated in
accordance with that fraction. If the Manager
determines not to issue fractional Units or if under
any provision of this deed or the Rules a fraction is
to be disregarded, any application moneys that would
otherwise result in a fraction of a Unit becomes an
Asset of the Trust.
CLASSES OF UNITS 5.3 Without in any way limiting the Manager's power to
issue Units on the terms of this deed, the Manager may
issue Series A Class Units, Series B Class Units and
Series C Class Units on the terms set out in the Second
Schedule. Such issue is subject to, and must be in
accordance with the Trust Deed, the Corporations Law
and, if relevant, the Listing Rules. The Manager must
enter on the register established and maintained under
CLAUSE 13 the Class of Units held by a Member.
PARTLY PAID UNITS 5.4 Units may be issued on the basis that the Application
Price is payable at such time or times as the Manager
may determine including without limitation on the terms
set out in the SECOND SCHEDULE of this deed. In spite
of any other provision of this deed, if Units are
issued on that basis and until such time as the
Application Price has been paid in full, the interest
conferred by those Units, and the rights attaching to
them will be reduced by the same proportion as the
Uncalled Amount for the time being bears to the
Application Price at which those Units were issued.
CONSOLIDATION 5.5 Subject to the Listing Rules and Corporations Law,
AND DIVISION Units may be consolidated, divided, reclassified or
converted to a different Class as determined by the
Manager provided that any such reclassification or
conversion is:
(a) not adverse to the rights or interests of all
affected Members; or
(b) if the reclassification or conversion is or may be
adverse to the interests of some or all of
affected Members, the reclassification or
conversion is in accordance with the terms of
issue of the affected Units.
RESTRICTIONS 5.6 A Member must not:-
(a) interfere with any rights or powers of the Manager
under this deed;
(b) exercise a right in respect of an Asset or
lodge a caveat or other notice affecting an
Asset or otherwise claim any interest in an
Asset; or
(c) require an Asset to be transferred to the Member.
ADDITIONAL UNITS 5.7 The Manager may from time to time issue additional
Units in accordance with the procedure set out in
CLAUSE 6 and the other provisions of this deed.
STOCK EXCHANGE 5.8 The Manager must use its best endeavours to ensure that
LISTING the Units are Officially Quoted and that subject to the
rights, obligations and restrictions attaching to
any Units or Classes, such official quotation is
maintained.
QUOTATION 5.9 To the extent permitted by the Listing Rules
and the ASX, Units may be listed for quotation on
the ASX in Australian dollars, United States
dollars and any other currency whatsoever.
RIGHTS ATTACHING 5.10 A Member holds a Unit subject to the rights,
TO UNITS restrictions and obligations attaching to that Unit.
6 APPLICATIONS FOR UNITS AND OPTIONS
-------------------------------------------------------------------------------
PROCEDURE 6.1 An applicant for Units must complete a form approved by
the Manager if the Manager requires this. The form must
be accompanied by the Application Price or, where the
Application Price is to be partly paid, the
Subscription Amount, for each Unit applied for either
by payment in a form that the Manager approves, or by
the transfer of property of a kind able to be vested in
the Manager or any other person nominated by the
Manager for that purpose, and must be payable in
accordance with CLAUSE 6.3.
NON-CASH 6.2 If the Manager intends to accept property rather than
CONTRIBUTIONS as a contribution to the Trust, the Manager must
obtain:
(a) an effective transfer to the Manager or any other
person nominated by the Manager for that purpose
of title to the property; and
(b) except where the Manager acquires WEA Stock as a
consequence of the exercise of Options granted
under the CenterMark Option Deed a valuation
acceptable to the Manager stating the market value
of that property.
-------------------------------------------------------------------------------
PAYMENT TO 6.3 The payment or transfer of property under CLAUSE 6.1
MANAGER must be paid or transferred by the applicant directly
to the Manager or any other person nominated by the
Manager for that purpose to be placed in a special
trust account until such time as the minimum
subscription (under any prospectus or offering
memorandum) or minimum application (in the case of an
excluded issue, offer or invitation) has been reached,
and the Manager proceeds with the allotment of Units.
Until such time as the Manager proceeds with the
allotment of Units, the Manager will arrange for such
money or property as the case may be to be held for the
applicant. The Manager may invest or cause the
investment of any such money in accordance with the
power to invest set out in CLAUSE 9.1(N). Any interest
received in respect of such money shall form part of
the Assets. The Manager will comply with all
obligations imposed on it by law, the Listing Rules or
this deed, in the same manner as it would be required
to do if it were a company offering shares for
subscription or purchase.
UNCLEARED FUNDS 6.4 The issue of Units against application money paid
other than as cleared funds is void if the funds are
not subsequently cleared.
MANAGER MAY 6.5 The Manager may in its absolute discretion reject an
REJECT application for Units in whole or part without reason.
MINIMUM 6.6 The Manager may set a minimum application amount for
APPLICATION the Trust, and alter that amount at any time.
ISSUE DATE 6.7 Units are taken to be issued when the Manager allots
the Units.
NOMINATION OF 6.8 The Manager alone may nominate the person to be
HOLDER registered as the holder of a Unit, and the Manager
may treat the registered holder as the absolute owner
of the Unit. The Manager's power of nomination ceases
once a person has been registered as the holder of a
Unit. The Manager need not recognise any claim or
interest in a Unit by any person other than the
registered holder or holders of the Unit, even if they
have notice of such interest.
OPTION 6.9 The Manager may from time to time create and issue
Options.
OPTION TERMS 6.10 Options may be issued:-
(a) for no consideration or at a consideration, as
determined by the Manager;
-------------------------------------------------------------------------------
(b) on the basis that the Application Price for a Unit
or Units to be issued on exercise of the Option is
a price determined in accordance with CLAUSE 8 and
(except where such price is determined pursuant to
PARAGRAPH 8.2(B) of this deed) is a price not less
than 50% of the Application Price of Units as
otherwise determined in accordance with CLAUSE 8
provided that any relevant ASIC instrument is
complied with;
(c) only on terms that the Option does not confer:
(i) any right to vote at Member meetings; or
(ii) any right to require the Manager to
redeem or repurchase the Option; or
(iii) except as expressly provided in this
deed or the terms and conditions of
issue of the Option, any other
entitlement under this deed, consequent
upon holding the Option; and
(d) otherwise on terms and conditions determined
by the Manager.
OPTION EXERCISE 6.11 On exercise of an Option in accordance with its terms
and conditions of issue, the Option Holder is entitled
to subscribe for and be allotted the number of Units to
which the Option relates, credited as fully paid.
CALLS BY MANAGER 6.12 Subject to the rights, obligations and restrictions
attaching to any Units or Classes, the Manager may call
on each Member to pay all or any part of the Uncalled
Amount of the Application Price of Units to the Manager
at any time. The Manager may only make a call in
respect of Units of a Member if the Manager also makes
the same call on all other Members who hold Units of
that Class which are similarly partly paid.
EXCLUDED OFFERS 6.13 If the Manager is requested to issue Units pursuant
to an excluded issue or make an offer or invitation for
units as an excluded offer, the Manager may rely on
information provided by other persons to determine if
the issue is an excluded issue or the offer or
invitation is an excluded offer or invitation. Each
Member indemnifies the Manager for any loss, damage or
other consequence which may arise if such issue, offer
or invitation of Units to that Member is not an
excluded issue, offer or invitation.
7 REDEMPTION, REPURCHASE AND FORFEITURE OF UNITS
-------------------------------------------------------------------------------
REDEMPTION NOTICE 7.1 A Member may give the Manager a redemption notice in
such form as may be approved by the Manager from time
to time specifying the name of the Trust and the number
of Units to be redeemed or (with the Manager's
approval) the amount of the proceeds which the Member
wishes to receive from the redemption. A redemption
notice shall be accompanied by any Unit certificates
the Member may hold in respect of the Units which are
the subject of the redemption notice.
SUSPENSION WHILE 7.2 Notwithstanding anything else in this CLAUSE 7, the
UNITS QUOTED Manager is not obliged to repurchase or redeem Units
under this CLAUSE 7 while the Units are Officially
Quoted.
TRUST LIQUID 7.3 CLAUSES 7.4, 7.5, AND 7.7 apply only while the
Trust is Liquid.
REPURCHASE AND 7.4 Subject to the other provisions of this deed, on
REDEMPTION - receipt of a redemption notice pursuant to CLAUSE 7.1,
TRUST LIQUID the Manager shall redeem (or at the option of the
Manager, repurchase) all of the Units required by the
Member to be redeemed at a price calculated in
accordance with CLAUSE 8.10.
MINIMUM HOLDING 7.5 If compliance with a redemption notice would result in
- TRUST LIQUID the Member holding Units having a value less than the
then current minimum application amount, the Manager
may treat the redemption notice as relating to the
Member's entire holding of Units.
SMALL PARCELS 7.6 Subject to the Corporations Law, the Manager may in
its discretion redeem or sell any Units held by a
Member without request by the Member, provided that the
Units are Officially Quoted and the total number of
Units held by the Member is less than a minimum parcel
as provided in the Listing Rules. The Manager must give
the Member not less than 6 weeks notice of its
intention to cause the redemption or sale of the Units
and the Manager may only so proceed if the Manager has
not received from the Member a written notice of
objection and the Member has not increased his holding
so that he holds at least a minimum parcel of Units. If
a holding of Units is redeemed under this CLAUSE 7.6,
the redemption price is to be the price calculated
under CLAUSE 8.10. The proceeds of the redemption or
sale shall not be remitted until such time as the
Manager is in receipt of the certificate (if any)
relating to the redeemed or sold Units.
MINIMUM 7.7 If a Member gives a redemption notice under CLAUSE 7.1,
REDEMPTION OR the Manager need not cause the redemption or repurchase
REPURCHASE - TRUST of Units having a value less than the minimum
LIQUID application amount (if any) for Units of that class,
unless the redemption notice relates to all of the
Member's holding.
NOTICE IRREVOCABLE 7.8 A Member may not withdraw or revoke a redemption
notice unless the Manager agrees.
ORDER 7.9 Unless the Manager decides otherwise, the first Units
issued to a Member are the first to be redeemed or
(at the option of the Manager) repurchased.
SUMS OWED TO 7.10 The Manager may deduct from the proceeds of redemption
MANAGER any unpaid moneys due by the Member to the Manager.
TRANSFER OF
ASSETS 7.11 The Manager may if the Member agrees transfer Assets
to a Member rather than pay cash on redemption of
Units. These Assets must be of equal value to the total
proceeds of redemption actually due to the Member
(based on a valuation done within 2 months before
the date of the proposed transfer). CLAUSE 8.7
applies to the valuation.
TRUST NOT LIQUID 7.12 CLAUSES 7.13, 7.14 AND 7.15, apply only while the
Trust is not Liquid.
7.13 A Member may withdraw from the Trust in accordance
with the terms of any current withdrawal offer made
by the Manager in accordance with the provisions of
the Corporations Law regulating offers of that
kind. If there is no withdrawal offer currently
open for acceptance by Members, a Member has no
right to withdraw from the Trust.
7.14 The Manager is not at any time obliged to make a
withdrawal offer. If it does, it may do so by:
(a) publishing it by any means (for example in a
newspaper or on the internet); or
(b) giving a copy to all Members or Members of a Class
(as relevant).
7.15 If the Manager receives a redemption request before
it makes a withdrawal offer, it may treat the
request as an acceptance of the offer effective as
at the time the offer is made.
FORFEITURE OF 7.16 Subject to the rights, obligations and
UNIT restrictions attaching to any Units or Classes, if
a Member fails to pay any call on a Unit made in
accordance with CLAUSE 6.12, the Manager may, at
any time during such time as any call or part
thereof remains unpaid, serve a notice on that
Member requiring payment of so much as is unpaid
together with interest at the Market Rate for each
3 monthly period (determined at 3 monthly intervals
commencing on the date the call becomes payable)
such interest to be calculated on and accrue due
and payable on the daily balance from the date the
call becomes payable to the date of payment or
forfeiture of the Units pursuant to CLAUSE 7.17
whichever is the earlier. The notice must state a
further day (not earlier than the expiration of 14
days from the date of service of the notice) on or
by which the payment as required by the notice is
to be made, and must state that in the event of
non-payment on or before the time appointed the
Units in respect of which the call is then due and
owing will be liable to be forfeited.
7.17 If the requirements of a notice under CLAUSE 7.16
are not complied with, any Unit in respect of which
the notice has been given may at any time
thereafter before the required payment has been
made, be forfeited at the discretion of the
Manager, effective at such time as the Manager
determines. Such forfeiture shall include all
entitlements to income accrued in respect of the
forfeited Unit and not paid before the forfeiture.
SALE OF FORFEITED 7.18 (a) Subject to the terms of this deed, a forfeited
UNIT Unit may be sold or otherwise disposed of by private
sale at a price per Unit calculated in accordance
with any Relief or equal to the prevailing
Application Price of Units at the date of the sale
less the then Uncalled Amount (if any) in respect
of that Unit, and such Unit will be:
(i) credited as paid up to the sum of the
amount paid up on the Unit on the day
of the forfeiture and the amount of the
call and the amount of any other calls
becoming payable on or before the day
of the sale; and
(ii) continue to be subject to a liability
to pay an amount equal to the Uncalled
Amount (if any) in accordance with this
deed.
(b) At any time before a sale or disposition
under PARAGRAPH (A), forfeiture may be
cancelled on such terms as the Manager thinks
fit and shall be cancelled where the Member
pays to the Manager the full amount owing in
respect of such Units.
(c) On a sale or other disposition under PARAGRAPH
(A), the Manager or any other person nominated
by the Manager for that purpose shall receive the
proceeds of such sale or disposition and may
execute a transfer of the forfeited Unit in
favour of the purchaser of the Unit, and such
purchaser shall thereupon be registered as the
Member and shall not be bound to see to the
application of the proceeds of such sale or
disposition nor shall his title to the Unit be
affected by any irregularity or invalidity in the
proceedings in relation to the forfeiture or sale
or disposition of the Units. The defaulting
holder of the Unit will remain liable to pay the
amount of the unpaid call.
-------------------------------------------------------------------------------
(d) The proceeds of sale or disposition of any
forfeited Unit shall be applied first towards the
payment of all costs and expenses incidental to
the forfeiture and sale or disposition, secondly
toward the payment of any interest, thirdly on
account of the amount in respect of which the
notice referred to in CLAUSE 7.16 was given and
fourthly in payment of the balance (if any)
remaining to the Member whose Units have been
forfeited and sold or otherwise disposed of.
CESSATION OF 7.19 A Member whose Units have been forfeited shall cease
STATUS to be a Member from the date of the forfeiture as
OF MEMBER determined by the Manager in accordance with
CLAUSE 7.17 but shall notwithstanding remain liable
to pay to the Manager all unpaid calls and interest
in respect of the Units and the costs and expenses of
and incidental to the forfeiture and sale or
disposition.
8 UNIT PRICE AND VALUATION
-------------------------------------------------------------------------------
APPLICATION PRICE 8.1 Subject to CLAUSE 6.10 except in the case
of Units offered pursuant to or in connection with
transactions referred to in the Initial Prospectus
which will have an issue price of One Australian
Dollar ($A1.00) per Unit, while Units are not
Officially Quoted, a Unit must only be issued at an
application price calculated as:
Net Asset Value + Transaction Costs
-----------------------------------
number of Units in issue
The application price must be determined as at the
last Valuation Time before the Manager received (or
is taken to have received) the application for
Units.
-------------------------------------------------------------------------------
APPLICATION PRICE 8.2 Whilst Units are officially quoted, subject to
WHERE UNITS CLAUSES 8.3, 8.4, 8.5, 8.6 and the SECOND SCHEDULE
OFFICIALLY QUOTED a Unit must only be issued at an Application Price
equal to:
(a) except where PARAGRAPH (B) applies, the
weighted average market price of Units during
the ten (l0) ASX business days immediately
prior to the date upon which the Application
Price is to be calculated;
(b) where the Unit is issued as the consequence
of the exercise of Options under a CenterMark
Option Deed which provides for an issue price
per Unit equal to the amount of United States
Dollars required to buy One Australian Dollar
determined by reference to the Buy Rate, such
issue price.
The price of Units or Options issued to an
underwriter may be reduced by such lawful fee,
brokerage or commission as the Manager determines.
RIGHTS ISSUES 8.3 The Manager may offer further Units for
subscription at a price determined by the Manager
to those persons who are Members on a date
determined by the Manager not being more than 30
days immediately prior to the date of the offer,
provided that:
(a) all Member are offered Units at the same
application price on a pari passu basis (whether
or not the right of entitlement is renounceable);
and
(b) where it is proposed to issue Units at an
application price less than the Market Price not
more than 5 ASX business days prior to the date on
which a prospectus pursuant to which the offer is
made is lodged with the ASIC, the relevant
application price is not less than 50% of the
Market Price as at a date not more than 5 ASX
business days prior to the date on which the
prospectus is lodged.
AND FURTHER PROVIDED THAT, subject to the Listing
Rules, the reference to all Members in PARAGRAPH
(A) excludes Members who are not resident in
Australia ("OVERSEAS MEMBERS"). Where the right of
entitlement is renounceable, the Manager is, as the
agent of each Overseas Member, to sell the Overseas
Member's entitlement and account to the Overseas
Member for the proceeds of the sale, after
deducting any costs or Taxes incurred in connection
with the sale. Where the right of entitlement is
not renounceable, the Manager is to pay to each
Overseas Member an amount, determined by the
Manager in consultation with the Auditor, out of
the Assets being the fair value (if any) of the
Overseas Member's entitlement.
-------------------------------------------------------------------------------
The Manager may adjust any entitlement to accord with
the Listing Rules and, in the case of fractions, CLAUSE
5.2 shall apply. Any Member may, unless the terms of
issue provide otherwise, renounce its entitlement in
favour of some other person.
RE-OFFER 8.4 Any Units offered under CLAUSE 8.3 which are not
subscribed for within the period during which the offer
is capable of acceptance may be offered for
subscription by the Manager to any person, provided
that the application price is not less than that at
which the Units were originally offered to Members. If
an underwriter has underwritten any offer for
subscription under CLAUSE 8.3, the underwriter may take
up any Units not subscribed for by the Member.
PLACEMENT 8.5 The Manager may at any time issue Units to any
person at any price and on any terms it thinks fit,
provided that the Corporations Law, the Listing
Rules and any Relief are complied with.
REINVESTMENT 8.6 The Manager may from time to time issue Units pursuant
to a Distribution Reinvestment Plan and while Units are
Officially Quoted, the application price payable for
each additional Unit upon reinvestment of
distributions, shall be the weighted average Market
Price during the 5 ASX business days after the date on
which trading of the Units becomes ex-entitlement to
distributions, less such discount, if any, not
exceeding 10% as the Manager may determine. If the
amount to be reinvested in additional Units results in
a fraction of a Unit, the money representing the
fraction is to be dealt with in accordance with CLAUSE
5.2.
PERIODIC 8.7 The Manager is not to be regarded as having any special
VALUATIONS expertise in valuation. Except where an Asset comprises
an Entity Interest the Manager may cause an Asset to be
valued at any time (and must do so if required by the
Corporations Law) by a Valuer using the valuation
method set out in CLAUSE 8.8. A copy of any such
valuation must be given to the Auditor. Where an Asset
comprises an Entity Interest the value of such Entity
Interest shall be the Manager's proportionate interest
in the then Current Appraisal Value of the entity's
assets net of the Entity's Liabilities. The Manager may
determine Net Asset Value at any time in its absolute
discretion, including more than once on each day, but
unless Units are Officially Quoted must do so at least
once every Quarter.
VALUATION METHODS 8.8 Subject to CLAUSE 8.7, the valuation method or the
manner of valuation of an Asset is to be determined by
the Valuer and approved by the Manager.
ROUNDING 8.9 The Manager may round the application price and
redemption price of a Unit calculated under this CLAUSE
8 respectively to the nearest fraction of a cent as
determined by the Manager.
REDEMPTION OR 8.10 (a) Subject to PARAGRAPH (B)and the terms of issue of
REPURCHASE PRICE any Units and the SECOND SCHEDULE, a Unit must
only be redeemed or (at the option of the
Manager) repurchased at a price calculated as:-
Net Asset Value - Transaction Costs
-----------------------------------
number of Units on issue
provided that, in the case of a partly paid
Unit, the Uncalled Amount in respect of that
Unit is to be deducted from the price
calculated in accordance with this formula.
(b) If a Unit is to be redeemed or repurchased
out of the proceeds of an application for a
Unit made at the same time as the redemption
notice, the Unit may be redeemed at the
Application Price. A certificate from the
Manager will be conclusive evidence as to
whether or not this PARAGRAPH (B) applies to
the redemption of a Unit.
(c) The prices in PARAGRAPHS (A) AND (B) must be
determined as at the last Valuation Time
before the Units the subject of the
redemption notice are redeemed or
repurchased.
9 MANAGER
-------------------------------------------------------------------------------
POWERS 9.1 Subject to this deed, the Manager shall have all the
powers over and in respect of the Assets and
Liabilities of the Trust that it is legally possible
for a natural person or a corporation to have as if it
were the absolute owner of the Assets. Without in any
way affecting the generality of the foregoing, the
Manager shall be deemed to have the full and absolute
and beneficial powers of:-
(a) purchase and sale of any real or personal property
of any nature or investments for cash or upon
terms;
(b) leasing and acceptance of surrender of leases with
power to compromise the lessees and others and
execute and pay for repairs and improvements;
(c) instituting and compromising legal proceedings;
(d) attending and voting at meetings;
(e) paying all outgoings connected with this deed
which are not otherwise payable by the Manager;
(f) lending money with or without security;
(g) raising or borrowing money with or without
security and incurring all types of obligations
and liabilities;
(h) building, altering, repairing, extending,
replacing and re-building any real or personal
property;
(i) drawing, endorsing, discounting, selling,
purchasing and otherwise dealing with bills of
exchange either alone or jointly;
(j) entering into any financial facility or agreement
of any kind whatsoever;
(k) obtaining or providing guarantees, indemnities or
sureties on such terms and conditions as the
Manager thinks fit, with or without security;
(l) entering into, purchasing or becoming a party
by any means (including without limitation
assignment or novation) to any contracts or
arrangements solely for the purpose of or
incidental to liability or debt management or
currency exchange management including
(without limitation):-
(i) the management of actual or contingent
interest rate or foreign exchange exposures
of the Trust in respect of any existing or
proposed borrowing or obligation of the
Trust:-
(ii) futures contracts traded on a futures
market;
(iii) options contracts;
(iv) currency swap, interest rate swap, forward
exchange rate contracts, forward interest
rate contracts or combinations or variations
of any of the foregoing;
(m) any scheme or undertaking, common enterprise or
investment contract (as defined in the
Corporations Law), or any equivalent or
substantially similar scheme or undertaking,
enterprise or investment contract in any other
jurisdiction, including, without limitation,
units in a unit trust or other prescribed
interest schemes, provided such scheme or
undertaking, enterprise or investment contract,
unit trust or prescribed interest scheme complies
with the Corporations Law (subject to any Relief)
or the corresponding law of any relevant
jurisdiction;
(n) investing (whether by way of purchase, lease,
acquisition of options or other rights, or
otherwise) in all or any of the following:-
(i) real estate of every description including
(without limitation) Land and buildings,
fixtures and fittings and other
improvements erected or installed on Land;
(ii) plant, equipment, furnishings and
fittings whether used in association
with buildings or Land forming part of
the Assets or otherwise;
(iii) monies on deposit at any bank or
building society or with any company
listed on any stock exchange and
debentures of any company so listed;
(iv) negotiable instruments of every type and
description, including (without limitation)
promissory notes and bills of exchange;
(v) monies deposited with authorised short term
money market dealers;
(vi) investment of money on security
(whether by way of mortgage taken
severally or otherwise) of any property
of the type referred to in PARAGRAPH
(I) for a term not exceeding 30 years
and an amount which when added to
monies owing on any charge ranking
prior to or pari passu with a security
to be taken by the Manager does not
exceed:-
(A) two-thirds; or
(B) if repayment of the whole of the
principal and interest under any
mortgages is insured under a mortgage
insurance policy acceptable to the
Manager, then nine-tenths,
of the value of the property as determined
by a Valuer.
(vii) preference or ordinary shares or stock,
debentures, options, convertible notes
and other securities of any corporation.
POWERS 9.2 The Manager must manage the Trust until it retires
or is removed. This power extends to the management of
the Assets and Liabilities of the Trust.
-------------------------------------------------------------------------------
LIABILITIES OF 9.3 Notwithstanding CLAUSES 9.1 AND 9.2 or any other
TRUST provision of this deed:-
& MEMBER
APPROVAL
(a) the total Liabilities of the Trust must not, at
the time the relevant Liability is incurred,
create a situation whereby the Liabilities of the
Trust equal or exceed 60% of the total tangible
Assets of the Trust. If the Manager becomes aware
that the limit has been exceeded, it must take
steps to rectify the default as soon as possible;
and
(b) except on termination of the Trust, any sale or
disposal by the Manager of the main undertaking of
the Trust shall be subject to the prior approval
of Members in general meeting. At the meeting held
to approve any sale or disposal, any person who
may benefit (in the capacity other than only as a
Member of the Trust) from the sale or disposal and
any person who for the purposes of Part 1.2
Division 2 of the Corporations Law would be
regarded as a person associated with that person,
shall not vote on the Resolution.
DELEGATION 9.4 The Manager may authorise, by power of attorney or
otherwise, one or more persons (whether or not related
to or associated with the Manager) to act as its
delegate or agent (in the case of a joint appointment,
jointly and severally) to hold title to any Asset,
perform any act or exercise any discretion within the
Manager's powers.
The authorisation must be written. The Manager remains
liable for the acts or omissions of a delegate or
agent. However, the Manager may include provisions in
the authorisation to protect and assist those dealing
with the delegate or agent as the Manager thinks fit.
AGENTS AND 9.5 The Manager has the power to appoint the solicitor,
ADVISORS licensed land broker or conveyancer to act on the
purchase of any real estate on behalf of the Trust.
The Manager may engage any agent, adviser, valuer,
broker, underwriter or other contractor to assist
the Manager in managing the Trust or dealing with
any Asset.
RETIREMENT 9.6 The Manager must retire as Manager of the Trust
when required to retire by law. Subject to the
Corporations Law, the Manager may retire at any
time.
NEW MANAGER 9.7 A replacement Manager must execute a deed by
which it covenants to be bound by this deed
as if it had originally been a party to it.
REMOVAL 9.8 The Manager may not be removed, except in accordance
with CLAUSE 9.6.
RELEASE 9.9 When it retires or is removed, the former Manager is
released from all obligations in relation to the Trust
arising after the date it retires except that the
former Manager is still obliged at the cost of the
Trust to vest the Assets in the new Manager and to
deliver all books and records relating to the Trust to
the new Manager. On the retirement or removal of a
Manager, the former Manager is indemnified out of the
Assets against any claims arising out of its conduct as
Manager except claims arising in respect of negligence,
fraud, breach of trust or breach of duty.
NAME OF TRUST 9.10 On retirement of a Manager, that former Manager
may require the name of the Trust to be changed
to a name which does not include the current
(or any former) name of the former Manager
and which is not substantially or deceptively
similar to those names. In addition, the Manager
may change the name of the Trust at any time.
FUTURES CONTRACTS 9.11 Notwithstanding CLAUSES 9.1 AND 9.2
or any other provision of this deed, the Manager
must not enter into or become a party to any
futures contract unless the following conditions
are fulfilled:
(a) where the futures contract is entered into
for any speculative purpose the total actual
and contingent liability of the Manager
pursuant to such contract is limited to an
amount not greater than 10% of the Assets;
(b) the Manager's liability in respect of such
futures contract is limited in a manner which
the Manager in its sole discretion considers
satisfactory; and
(c) the Manager ensures that at all times the
Assets include sufficient cash available to
the Manager to make any deposits and/or pay
any margin calls in respect of any futures
contracts as same become due for payment.
-------------------------------------------------------------------------------
WEA ARRANGEMENTS 9.12 The Manager has full power to enter into:
(a) the CenterMark Stockholders Agreement;
(b) a CenterMark Option Deed;
(c) the Share Sale and Unit Subscription Agreement;
(d) the Cordera Subscription Agreement;
(e) the Agreement and Plan of Reorganisation; and
(g) any other agreement to which it is a party which
is described in the Initial Prospectus,
and to perform all of its obligations and to
discharge all of its duties under those documents
(including, without limitation, the acquisition of
WEA Stock on the terms set out in those agreements)
without the need to make any enquiries or conduct
any investigations (whether legal or factual) with
respect to WEA or the WEA Stock. The Manager is not
liable to the Members in any manner whatsoever for
entering into those documents and performing its
obligations and discharging its duties under them.
10 INVESTMENT
-------------------------------------------------------------------------------
MANAGER'S ROLE 10.1 Except where provided otherwise in this
deed the Manager has absolute discretion as to how
Assets are invested or otherwise dealt with.
INVESTMENT POLICY 10.2 The Manager must specify its principal
investment policy in the first prospectus or
offering memorandum for the Trust but may vary that
policy from time to time.
VOTING 10.3 Subject to CLAUSE 10.4, the Corporations Law and any
Relief applicable from time to time, the Manager may
exercise all voting rights conferred by the Assets of
the Trust as it determines.
NOMINATION OF 10.4 In exercising its right to designate or nominate four
WEA DIRECTORS directors for election as directors of WEA pursuant
to the CenterMark Stockholders Agreement and in
exercising its right to vote in respect of the election
of such directors, the Manager may act in its absolute
discretion.
INSURANCE 10.5 The Manager must insure and keep insured in the name of
the Manager for such amounts as the Manager believes
prudent (having regard to normal commercial practice)
all the real property and personal property investments
forming part of the Assets against fire, loss of rent
and other usual risks. If the Manager believes prudent
(having regard to normal commercial practice) the
Manager shall ensure that the property comprised in
every security constituting a mortgage investment
comprised in the Assets (other than intangible
property) is insured and kept insured in the names of
the Manager and the mortgagors and other persons (if
any) for the respective interests, against fire, loss
of rent and other usual risks.
11 INCOME AND DISTRIBUTIONS
-------------------------------------------------------------------------------
DISTRIBUTABLE 11.1 The Manager must determine the Distributable Income
INCOME of the Trust for each Accrual Period. Unless, in its
sole and absolute discretion, the Manager determines
that the Distributable Income shall be some other
amount, the Distributable Income must equal the
greater of (i) Net Income for the Accrual Period,
and (ii) Net Accounting Income of the Trust for the
Accrual Period.
ENTITLEMENT AND 11.2 The Manager must distribute all Distributable Income
DISTRIBUTION DATES of the Trust for each Accrual Period within two months
of the end of that Accrual Period.
-------------------------------------------------------------------------------
DISTRIBUTION 11.3 Except for CenterMark Option Units, Units shall,
RANKING subject to the rights, obligations and restrictions
attaching to any particular Units or Classes, rank for
distributions of Distributable Income from the
first day immediately following their creation so
that where Units are created during an Accrual
Period, such Units shall participate in the
Distributable Income in respect of that Accrual
Period in the proportion that the part of the
Accrual Period (calculated in days) for which such
Units rank for distribution of Distributable Income
bears to the total number of days in such Accrual
Period and in the case where such Units are partly
paid for the whole or part of an Accrual Period
("PARTLY PAID UNITS"), such Partly Paid Units shall
participate in the Distributable Income in respect
of that Accrual Period according to the proportion
or different proportions of the issue price that
has been paid up thereon. For the purposes of such
calculation where an instalment of the issue price
of a Partly Paid Unit is paid into the Trust, the
Partly Paid Unit in respect of which such payment
is made shall thereby be entitled to rank for an
increased participation in Distributable Income
from the first day immediately following the date
of such payment. CenterMark Option Units issued
during a Quarterly Period shall rank for
distributions of Distributable Income from the
first day of that Quarterly Period unless the
CenterMark Option Units Issue Date in respect of
such CenterMark Option Units occurs prior to the
WEA Dividend Date in respect of a previous
Quarterly Period in which event such CenterMark
Option units shall rank for distributions of
Distributable Income from the first day of that
previous Quarterly Period.
MEMBERS' 11.4 Subject to CLAUSE 11.3 and the rights, restrictions and
ENTITLEMENTS obligations attaching to any particular Units or
Classes each person registered as a Member at the end
of the last day of an Accrual Period, shall be
presently entitled to the Distributable Income for
the Accrual Period in proportion to the number of
Units held by such Member to the total number of
Units then on issue but excluding from this
calculation Units which do not rank for
distributions.
RECORD 11.5 The Manager must determine the Record Date for the
DATE purpose of determining the persons who are entitled to
the distribution. The total amount to be distributed in
respect of a distribution period is to be
transferred to a distribution account as soon as
practicable after the Record Date. The payment by
the Manager of a Member's entitlement to
Distributable Income to the Member registered in
respect of those Units as at the Record Date shall
be a good and sufficient discharge to the Manager
in respect of any liability that they may have to
any person in respect of such entitlement.
DISTRIBUTION OF 11.6 The Manager may transfer capital to the distribution
CAPITAL TO account, to enable distribution to Members of the
DISTRIBUTION minimum amount necessary to avoid the Manager becoming
ACCOUNT assessable for tax under section 99A of the Tax Act.
SEPARATE ACCOUNTS 11.7 The Manager may keep separate accounts of different
categories or sources of income and may allocate
income from a particular category or source to
particular Members. The Manager must notify the
Members concerned of that allocation.
OTHER 11.8 Subject to the rights, obligations and restrictions
DISTRIBUTIONS attaching to any Units or Classes, the Manager may
distribute any amount of capital or income to
Members pro rata according to the number of Units
in the Trust held as at a time decided by the
Manager. The distribution may be in cash or by way
of bonus Units.
REINVESTMENT 11.9 If the Manager offers a facility under CLAUSE 8.6
whereby Members may receive distributions by way of
additional Units, then by prior notice a Member may
elect to reinvest some or all of any distribution by
acquiring such additional Units in the Trust. In those
cases, the Manager is treated as having received an
application by the Member to reinvest distributions at
the time that the distribution is paid. The procedure
for reinvestment of distributions is to be determined
by the Manager and notified to Members from time to
time as and when the facility is offered. The Manager
may at any time withdraw, amend or re-establish such a
facility.
A request to participate in such a facility or
cancellation of any such request is effective with
respect to a particular distribution if received in
a form acceptable to the Manager prior to the
Record Date for that distribution.
PAYMENT 11.10 The Manager must prepare distribution cheques or
arrange for distributions to be paid. Cheques not
presented within 6 months may be cancelled and
reinvested in Units in the Trust on behalf of the
recipient Members at the application price prevailing
at the time the cheque is cancelled.
WITHHOLDING TAX 11.11 Where the Net Income is reduced by taxes
attributable to the ownership of Units by certain
Members the entitlement to Distributable Income of
such Members may be adjusted by the Manager so that
the entitlement to Distributable Income of all
other Members is equivalent to the amount they
would receive in the absence of such taxes.
-------------------------------------------------------------------------------
DISTRIBUTIONS 11.12 The Manager may provide a facility whereby Members
PAID IN DIFFERENT may receive their entitlement to the Distributable
CURRENCIES Income of the Trust from time to time in such currency
or currencies as they may request by notice to the
Manager in writing and which the Manager in its
absolute discretion may approve and in such event the
Manager may arrange to convert a Member's
entitlement to Distributable Income into the
currency in which it is to be paid on a date being
the date that the Distributable Income in respect
of an Accrual Period is determined, the Closing
Date in respect of an Accrual Period, the date of
payment of distribution entitlements in respect of
an Accrual Period or such other date as the Manager
may determine and the Manager may maintain bank
accounts in such currencies as may be appropriate
for this purpose.
CLASSES 11.13 Under this CLAUSE 11, the rights of a Member are
subject to the rights, obligations and restrictions
attaching to the Units which they hold.
12 ACCOUNTS AND AUDIT
-------------------------------------------------------------------------------
ACCOUNTS The financial reports and directors reports of the
Trust must be prepared, audited, lodged with ASIC
and distributed to Members by the Manager in
accordance with the Corporations Law and the
Listing Rules.
13 ADMINISTRATION AND REPORTING
-------------------------------------------------------------------------------
REGISTER 13.1 The Manager must establish and maintain a register of
Members and Option Holders (if any) in accordance with
the Corporations Law and Listing Rules. The Manager
need not enter notice of any trust on any register. The
Manager may treat the registered Member as the absolute
owner of Units registered in that Member's name and not
be bound to take notice of any trust or equity
affecting any Unit.
CERTIFICATES 13.2 Certificates may be issued by or on behalf of the
Manager for Options. Such certificates shall contain
such information as may be prescribed by the law, the
Listing Rules or any Relief as applicable. No
certificates will be issued for Units. The Manager at
any time may send any Member details of Units held by,
Unit transactions of, or distributions to, the Member.
UNCERTIFIED 13.3 The Trust is permitted to participate in any system or
TRADING scheme approved by the ASX which allows for
simultaneous settlement of transfers of Units and
uncertificated holdings, including (without
limitation) the CHESS system.
-------------------------------------------------------------------------------
TRANSFERS 13.4 Members may transfer Units. Option Holders may
transfer Options (subject to their terms of issue).
Transfers must be in a form approved by the Manager and
the ASX and be presented for registration duly stamped.
A transfer is not effective until registered. Except
while the Trust is included in the Official List of the
ASX, the Manager may refuse to register any transfer of
a Unit or Option but such refusal shall not be
unreasonable. In all other respects, the Manager must
deal with a transfer of a Unit or Option in accordance
with the Listing Rules.
DEATH, LEGAL 13.5 If a Member or Option Holder dies or becomes subject
DISABILITY to a legal disability such as bankruptcy or insanity,
only the survivor (in the case of joint holders) or
legal personal representative (in any other case) will
be recognised as having any claim to Units or Options
registered in the Member's or Option Holder's name.
PAYMENTS 13.6 Money payable by the Manager to a Member or Option
Holder may be paid in any manner approved by the
Manager. Only whole cents are to be paid. Any remaining
fraction of a cent becomes an Asset of the Trust.
DEDUCTIONS 13.7 The Manager may deduct from any amount to be
paid to a Member or an Option Holder any amount of
Tax (or an estimate of it) which it is required or
authorised to deduct in respect of that payment by
law or by this deed or which the Manager considers
should be deducted.
REPORTS 13.8 The form and content of any report sent by the
Manager to Members or Option Holders is (subject to the
law) at its discretion.
14 MEETINGS OF UNIT HOLDERS
-------------------------------------------------------------------------------
CORPORATIONS LAW 14.1 The Manager may at any time convene a
meeting of Members, or a Class of Members and must
do so if required by the Corporations Law.
NOTICE PERIOD 14.2 The Manager must give notice of any
meeting in accordance with the Corporations Law
and, if applicable, the Listing Rules.
NON-RECEIPT 14.3 If a Member does not receive a notice
(including if notice was accidentally omitted to be
given to them) the meeting is not invalidated.
QUORUM 14.4 The quorum for a meeting of Members is 5 Members
present in person or by proxy together holding between
them at least 10% of all issued Units unless the Trust
has only one Member who may vote on a Resolution, in
which case that one Member constitutes a quorum.
NO QUORUM 14.5 If a quorum is not present within 30 minutes after the
scheduled time for the meeting, the meeting is:
(a) if convened on the requisition of Members -
dissolved; or
(b) otherwise - adjourned to such place and time as
the Manager decides.
At any adjourned meeting, those Members present in
person or by proxy constitute a quorum. No new
notice of the adjourned meeting need be given
unless required by the Corporations Law. Notice of
any adjourned meeting which may become necessary
may be included in the notice convening the
original meeting.
CHAIRMAN 14.6 Subject to and to the extent permitted by the
Corporations Law, the Chairman of a meeting of Members
shall be a person nominated by the Manager but need not
be a Member, provided that if any such person nominated
is not present within 30 minutes after the time
appointed for the holding of the meeting, the Members
present may choose one of their number to preside as
the Chairman. The decision of the chairman on any
matter is final.
ADJOURNMENT 14.7 The Chairman has power to adjourn a meeting
for any reason to such place and time as the
Chairman thinks fit.
VOTING 14.8 Subject to the law and this deed, a resolution
is passed if a simple majority of votes are cast in
favour.
POLL 14.9 Every question arising at a general meeting of Members
shall be decided in the first instance by a show of
hands, provided that a poll shall be taken in any case
where:-
(a) it is required by this deed or by law that the
question be decided by a majority which is to be
measured by a percentage of the votes of those
present; or
(b) it is demanded either before or immediately
after any question is put to a show of hands
by Members present, personally or by proxy,
not being less than 10 in number and holding
(or representing by proxy) between them not
less than 20,000 Units; or
(c) it is demanded by the Chairman either before or
immediately after any question is put to a show
of hands.
CASTING VOTE 14.10 If votes are equal, whether on a show of
hands or on a poll, the Chairman has a casting vote
in addition to the vote or votes (if any) to which
the Chairman is otherwise entitled.
PROXIES 14.11 A Member may be represented at a meeting by proxy.
Proxies are governed by the Corporations Law. A proxy
shall have the same rights as its appointing Member to
vote whether on a poll or a show of hands, to speak and
to be reckoned in a quorum. The Manager is not
obligated to enquire whether a proxy has been validly
given. A proxy expires after 12 months. A proxy is
still valid after it is revoked or after the Member who
gave it dies or becomes under a legal disability,
unless the Manager has received written notice of that
fact before the meeting at which the proxy is used.
REPRESENTATIVES 14.12 A body corporate may be represented at a meeting by a
person appointed in the manner provided by the
Corporations Law. The Manager may accept a certificate
executed by the body corporate as evidence of the
person's appointment. The person may exercise on the
body's behalf the same powers as the body could if it
were a natural person and the body is taken to be
present at the meeting in person.
OTHER ATTENDEES 14.13 The Manager and its advisors and the Auditor may
attend and speak at any meeting, or invite any other
person to attend and speak.
RESOLUTIONS 14.14 A Resolution binds all Members of the Trust, whether or
BINDING not they are present at the meeting. No objection
may be made to any vote cast unless the objection is
made at the meeting.
MINUTES 14.15 The minutes of a meeting of Members signed by the
Chairman of the meeting are evidence of the matters
stated in them unless the contrary is proved.
OPTION HOLDERS 14.16 The Manager may convene a meeting of
Option Holders or a Class of Option Holders and
must do so if required by the Corporations Law. If
it does so, CLAUSES 14.2 TO 14.15 inclusive apply
as if they referred to Option Holders rather than
Members.
15 RIGHTS AND LIABILITIES OF MANAGER
-------------------------------------------------------------------------------
HOLDING UNITS 15.1 The Manager and its associates may hold Units and
Options in the Trust.
OTHER CAPACITIES 15.2 Subject to their acting at all times with good faith
to all Members and Option Holders nothing in this deed
restricts the Manager or its associates from:
(a) dealing with the Trust or any Member or Option
Holder; or
(b) being interested in any contract or transaction
with the Trust or any Member or Option Holder or
retaining for its own benefit any profits or
benefits derived from any such contract or
transaction; or
(c) acting in the same or a similar capacity in
relation to any other scheme,
and neither the Manager nor its associates shall be
liable to account to any Member in relation to any
act, matter, transaction or dealing of a kind
described in this CLAUSE 15.2.
LIMITATION ON 15.3 Subject to the Corporations Law, if the Manager acts in
LIABILITY good faith and without default or negligence, it is not
responsible to Members or Option Holders for any
loss suffered in respect of the Trust. The
liability of the Manager in relation to the Trust
is in any case limited to the Assets of the Trust.
SPECIFIC 15.4 Without limiting CLAUSE 15.3, when acting in good
LIMITATIONS- faith, without negligence, fraud, breach of trust or
MANAGER breach of - duty, the Manager will not be liable to
any Member or any future Manager or any other person
for loss caused by:-
(a) the Manager's acts or omissions in reliance on:-
(i) provided it has been maintained in good
faith by the Manager, the register;
(ii) the authenticity of any document;
(iii) opinion, advice or information of any
barrister, solicitor, accountant, valuer or
other expert instructed by the Manager; or
(iv) information from any banker or the
Auditor;
provided the Manager has no reason
to believe the relevant material not to be
authentic or the expert not to have the
relevant expertise;
(b) any act, omission, neglect or default of any
person;
(c) any act or omission required by law or by any
court of competent jurisdiction;
(d) any particular price or reserve not having been
realised;
(e) any unnecessary payment having been made to any
fiscal authority; or
(f) any act or omission of an operator of any
securities title, transfer or holding system;
to any greater extent than the amount which the
Manager is entitled to and does recover through its
right of indemnity from the Assets of the Trust
actually vested in the Manager in accordance with
this deed.
EXERCISE OF 15.5 The Manager may decide how and when to exercise its
DISCRETION powers in its absolute discretion.
INDEMNITY 15.6 The Manager is entitled to be indemnified out of the
Assets of the Trust for any liability incurred by
the Manager in properly performing or exercising
any of its powers or duties in relation to the
Trust. This indemnity is in addition to any
indemnity allowed by law, but does not extend to
liabilities arising:
(a) from a breach of trust; or
(b) where the Manager fails to show the degree of
care and diligence required of a Manager
having regard to its powers, authorities and
discretions under this deed,
unless the Members decide otherwise by Special
Resolution with respect to specific acts or
omissions or on the Manager ceasing to act.
LIMITATION OF 15.7 Any contract or agreement entered into by the Manager
LIABILITY TO in its capacity as Manager may incorporate a term
CONTRACTING whereby the extent of the Manager's liability with
PARTIES respect to obligations that it incurs under such
contract or agreement is limited to the Assets of the
Trust except for any liability which the Manager may
have as a result of its fraud, negligence, default or
breach of duty.
16 LIABILITY OF UNIT HOLDERS
-------------------------------------------------------------------------------
LIABILITY LIMITED 16.1 The liability of a Member is limited to the
Application Price paid or agreed to be paid
for a Unit. A Member need not indemnify the Manager
if there is a deficiency in the Net Assets of the
Trust or meet the claim of any creditor of the
Manager in respect of the Trust.
RECOURSE LIMITED 16.2 The recourse of the Manager and any creditor is
limited to the Assets of the Trust.
17 EXCLUSION OF PARTNERSHIP OR AGENCY
-------------------------------------------------------------------------------
NO PARTNERSHIP OR Nothing in this deed gives rise to any relationship of
AGENCY partnership or agency between the Manager and/or any
Member.
18 REMUNERATION AND EXPENSES
-------------------------------------------------------------------------------
MANAGER 18.1 The Manager is entitled to a quarterly management fee
which shall not exceed the amount determined by the
following formula ("Manager's Fee Formula"):
F = .0055N - M
------
4
Where:
F = the Manager's quarterly fee expressed in US
Dollars which, if a negative amount, shall be
deemed to be zero;
N = the US Dollar equivalent of the Fee Assets
determined as at the last day of the quarter
for which the Manager's Fee is calculated
("Relevant Quarter");
M = the relevant proportion of all other fees
received by the Manager or its related bodies
corporate in respect of the Relevant Quarter
for funds management or advisory services (but
not property management, development or other
operations or administrative services including
without limitation leasing, architectural,
engineering, accounting, auditing, legal and
data processing services) provided in relation
to any corporation or other entity in which an
interest held directly or indirectly by the
Manager comprises an Asset. Such fees
shall be converted to their US Dollar equivalent
as at the date of receipt by the Manager
(except where received in US Dollars). The
relevant proportion of such fees shall be the
proportion that the ownership interest held by
the Manager bears to the total of all
ownership interests in such corporation or
entity at the end of the Relevant Quarter.
The Manager's quarterly fee shall be paid in US
Dollars in arrears on a provisional basis within 3
business days of the end of each quarter and shall
be subject to final adjustment as soon as the Fee
Assets as at the last day of the Relevant Quarter
can be definitively ascertained based upon the next
available accounts of the Trust or of entities
comprising Assets which are Entity Interests (as
applicable) which are audited or which contain an
audit review opinion and which cover a period which
includes the quarter in respect of which the fee
has been provisionally paid. The amount of any
overpayment shall be carried forward and deducted
from the Manager's quarterly fee to be paid in
respect of the immediately succeeding quarter. The
amount of any underpayment shall be immediately
paid to the Manager. That period, being less than a
quarter, occurring at the commencement or
immediately prior to the termination of the Trust
shall be deemed to be a quarter for the purposes of
the Manager's Fee Formula. If at any time the
income of the Trust is not sufficient to pay any
part of the quarterly management fee then due, the
Manager's entitlement to the shortfall will be
carried forward until the following quarter and so
on until the income of the Trust is sufficient to
allow it to be paid.
If the Corporations Law requires this fee only to
be available in respect of the proper performance
of the Manager's duties, then if it is finally and
conclusively established that the Manager has not
properly performed its duties in any respect, an
appropriate pro-rata adjustment will be made to the
Manager's fee for the appropriate period.
WAIVER OF FEES 18.2 The Manager may accept a lower fee than it is entitled
to receive under this deed, and may defer payment of
its fee for any period. Where payment is deferred, the
fee still accrues daily until paid.
EXPENSES 18.3 All expenses reasonably and properly incurred by the
Manager in connection with the Trust or in properly
performing its obligations under this deed are payable
or reimburseable out of the Assets of the Trust. This
includes (without limitation) expenses or overheads
connected with:
(a) this deed and the formation of the Trust, any
supplemental deed and the approval of this deed
and of any supplemental deed by the ASIC and ASX;
(b) preparation, review, lodgement, registration,
distribution and promotion of any prospectus or
offering memorandum in respect of Units or
Options;
(c) the sale, purchase, insurance and/or custody of
and any other dealing with Assets;
(d) investigating and evaluating any proposed
purchase, sale or other dealing with an
investment;
(e) the acts of the Manager or its agents in
connection with the administration, management and
promotion of the Trust, its Assets and Liabilities
and property and project management fees and
expenses;
(f) the issue of Units, Options or any interests in,
or rights associated with Units or Options or any
other obligation (including any securities or debt
instruments of any kind) issued by the Trust;
(g) any underwriting arrangement including, without
limitation, underwriting fees, handling fees,
costs and expenses, amounts payable under
indemnity or reimbursement provisions in the
underwriting agreement and any amounts becoming
payable in respect of any breach (other than for
negligence, fraud or breach of duty) by the
Manager of its obligations, representations or
warranties under any such underwriting agreement;
(h) convening and holding meetings of Members and
Option Holders, the implementation of any
Resolutions and communications with Members and
Option Holders;
(i) Tax (including any amount charged by a supplier
of goods or services or both to the Manager by
way of or as a reimbursement for GST) and
financial institution fees;
(j) the engagement of underwriters, agents, valuers,
legal (on a full indemnity basis) and other
advisers and contractors of all kinds;
(k) preparation and audit of the Taxation returns and
accounts of the Trust;
(l) termination of the Trust and the retirement or
removal of the Manager and the appointment of a
new Manager;
(m) institution, prosecution, defence and compromise
any court proceedings, arbitration or other
dispute concerning the Trust or any Asset or
Liability, including proceedings against the
Manager (except to the extent that the person
incurring the expenses is found by a court to be
in breach of trust, in default or to have been
negligent); and
(n) the compliance committee established by the
Manager in connection with the Trust (if
any), including any fees paid to or insurance
premiums paid in respect of compliance
committee members;
(o) while there is no compliance committee, any costs
and expenses associated with the board of
directors of the Manager carrying out the
functions which would otherwise be carried out by
a compliance committee, including any fees paid
to, or insurance premiums paid in respect of,
external directors appointed to satisfy the
requirements of Chapter 5C of the Corporations
Law;
(p) the preparation, implementation, operation,
amendment and audit of the compliance plan;
(q) any costs incurred in connection with or as a
result of any agreement in connection with
the Trust to which any Member is a party and
any costs which such agreement provides are
to be borne by the Trust;
(r) interest, discount and acceptance fees for xxxx
facilities, all borrowing, hedging or facility
costs and like amounts;
(s) any actual or proposed investment, acquisition,
realisation, disposal, valuation, maintenance,
alteration, improvement, enhancement, receipt,
collection or distribution of any Assets;
(t) fees payable to any person (not associated with
the Manager) authorised by the Manager to hold the
Assets;
(u) establishing and maintaining the register of
Members and of Option Holders, the Trust
accounting system and records and the
investment register (including operation and
development of computer facilities, both
software and hardware, salaries and on
costs);
(v) fees payable to the ASIC or any other regulatory
authority;
(w) ASX and share registry fees (including listing
and quotation fees);
(x) preparing, printing and posting accounts, cheques
and documents, or making payments, to Members and
Option Holders;
(y) amounts payable to advisers, agents, brokers,
contractors, underwriters or other persons engaged
by the Manager under the Deed (including legal
costs on a full indemnity basis);
(z) entering the Trust in any survey;
(aa)fees payable to any ratings organisation;
(bb)performance of the Manager's duties, exercise of
the Manager's rights or powers, compliance with
the law and the Listing Rules, and any request or
requirement of the ASIC;
(cc)fees payable to Austraclear Limited or any other
securities system authorised by the Manager to
hold Assets;
(dd)dealing with applications for and redemption of,
and determining the Issue Price and Redemption
Price of, Units; and
(ee)the transition of the Trust under the Managed
Investments Xxx 0000,
but does not include the amount of any credit or
refund of GST to which the Manager is entitled as a
result of incurring such expenses.
DEFERRAL 18.4 The Manager may defer reimbursement of any or
all expenses under CLAUSE 18.3 for any period it
determines.
GST 18.5 The fees payable to the Manager under this deed
do not include any amount referable to GST. If the
Manager is or becomes liable to pay GST in respect of
any supply under or in connection with this deed
(including, without limitation, the supply of any
goods, services, rights, benefits or things) then, in
addition to any fee or other amount or consideration
payable to the Manager in respect of the supply, the
Manager is entitled to be paid an additional amount on
account of GST, such amount to be calculated by
multiplying the fee, amount or consideration for the
part of the supply which is a taxable supply for GST
purposes by the prevailing rate of GST, and the Manager
shall be entitled to be reimbursed or indemnified for
such amount of GST out of the Assets.
18.6 If as a result of the imposition or introduction of
GST and any reduction or abolition of any other Tax
in conjunction with the imposition or introduction
of GST, the Manager determines that:
(a) there is any direct or indirect increase in
the cost to the Manager of performing its
duties under this deed (including, without
limitation, any increase in the amount
charged by any supplier to the Manager of
goods, services, rights benefits or any other
thing); or
(b) there is any direct or indirect reduction in any
amount received or receivable by the Manager or
in the effective financial return to the Manager
in connection with the proper performance of the
Manager's duties under this deed (including,
without limitation, the return on the Manager's
overall capital which could have been achieved
but for the imposition or introduction of GST);
and such increased cost or reduction is not
compensated for by any other provision of this
deed, then the Manager may recover from the Assets
such amount as, in its sole opinion but acting
reasonably, will compensate the Manager for such
increased cost or reduction.
19 TERMINATION
-------------------------------------------------------------------------------
PROCEDURE 19.1 On termination of the Trust, the Manager must
realise the Assets of the Trust. This must be
completed in 180 days if practical and in any event
as soon as reasonably possible after that. The
Manager may make partial distributions.
FINAL 19.2 Subject to the rights, obligations and restrictions
DISTRIBUTION attaching to any particular Units or Classes, any net
proceeds of realisation, after discharging or providing
for all Liabilities of the Trust and meeting the
expenses of termination, must be distributed pro rata
to Members according to the number of Units they hold
(but excluding from this calculation Units which do not
have any rights to participate in the net proceeds of
realisation).
AUDIT OF WINDING 19.3 If and to the extent that ASIC policy so requires,
UP the Manager must arrange for independent review or
audit of the final accounts of the Trust by a
registered company auditor.
20 AMENDMENTS TO TRUST DEED
-------------------------------------------------------------------------------
The Manager may by supplemental deed alter this
deed in accordance with and subject to the
Corporations Law.
21 BENEFICIAL OWNERSHIP OF UNITS
-------------------------------------------------------------------------------
DEFINITIONS 21.1 For the purposes of this CLAUSE 21:-
(a) a person has a "RELEVANT INTEREST" in a Unit if
that person has power to exercise or to control
the exercise of, the right to vote attached to
that Unit or to dispose of or to exercise control
over the disposal of that Unit and the provisions
of sections 30 to 43 inclusive of the Corporations
Law apply to this clause except that in the
application of those provisions to this clause,
reference to a "SHARE" or "VOTING SHARE" means
"UNIT", "BODY CORPORATE" means "TRUST" and
"DIRECTORS" means "DIRECTORS OF THE MANAGER";
(b) "RELEVANT INSTRUCTIONS" means instructions or
directions:
(i) in relation to the acquisition or disposal
of a Unit;
(ii) in relation to the exercise of any voting
or other rights attached to a Unit; or
(iii) in connection with any other matter
relating to a Unit.
PRIMARY NOTICE 21.2 The Manager, by notice in writing given
to a Member, may require the Member, within 14 days
after receiving the notice, to furnish to the
Manager a statement in writing setting out:-
(a) full particulars of the Member's relevant interest
in Units specified in the notice (the "SPECIFIED
UNITS") and of the circumstances by reason of
which the Member has that interest; and
(b) so far as it is known to the Member:-
(i) full particulars of the name and address of
every other person (if any) who has a
relevant interest in any of the specified
Units;
(ii) full particulars of each such interest and
of the circumstances in which the other
person has that interest; and
(iii)full particulars of the name and address of
each person (if any) who has given to the
Member relevant instructions in relation to
any of the specified Units, full particulars
of those relevant instructions, and the date
or dates on which those relevant instructions
were given.
SECONDARY NOTICE 21.3 The Manager, by notice in writing given
to a Member, may require that Member to procure the
person nominated in the notice or alternatively may
require the Member, within 14 days after receiving
the notice, to give to the Manager a statement in
writing setting out:-
(a) full particulars of any relevant interest that the
person nominated in the notice has in any
specified Units and of the circumstances by reason
of which the person nominated has that interest;
and
(b) so far as it is known to the Member or the person
nominated:
(i) full particulars of the name and address of
every other person (if any) who has a
relevant interest in any of the specified
Units;
(ii) full particulars of each such interest and
of the circumstances in which the other
person has that interest; and
(iii) full particulars of the name and
address of each person (if any) who has
given to the person to whom the notice
is addressed relevant instructions in
relation to any of the specified Units,
details of those relevant instructions,
and the date or dates on which those
relevant instructions were given.
SEPARATE REGISTER 21.4 Where the Manager, pursuant to a notice given to a
person under CLAUSES 21.2 OR 21.3, receives information
that a person other than the Member has a relevant
interest in Units, the Manager must enter in a separate
part of the register, in relation to that Member, the
name and address of each other person who, according to
the information received by the Manager, has a relevant
interest in those Units, together with particulars of
that interest and of the circumstances by reason of
which the person has the interest and the date of entry
in the register.
INFORMATION 21.5 Where the Manager, pursuant to a notice given to a
person under CLAUSES 21.2 OR 21.3, receives information
that a person other than the Member has given relevant
instructions in relation to any Units, the Manager must
enter in a separate part of the register in relation to
that Member, the name and address of each other person
who, according to information received by the Manager,
has given relevant instructions in relation to any of
the Units, together with particulars of the relevant
instructions and the date of entry in the register.
INSPECTION 21.6 The separate part of the register kept under
CLAUSES 21.4 AND 21.5 is open to inspection by the
Manager, the Auditor and Members only and the
Manager must not furnish a copy of that part of the
register to any other person unless required to do
so by law.
DISPOSAL 21.7 Where the Manager is satisfied that a Member has
failed to comply with any request made by the Manager
under CLAUSES 21.2 OR 21.3, the Manager may require, by
notice in writing to that Member, the disposal (but not
the redemption) of the specified Units or any part of
them within the time specified in the notice. In the
absence of any such requirement by the Manager, the
Member concerned is not entitled in any way to set
aside or cancel any transaction whereby the Member
acquired a relevant interest in any Units, nor to claim
any refund or to otherwise recover any money paid in
respect of the Units.
NON-COMPLIANCE 21.8 If the requirements of the notice referred to
in CLAUSE 21.7 are not complied with by the Member
within the time specified in the notice, the
Manager may cause the specified Units to be sold in
a manner determined by the Manager.
BRANCH REGISTER 21.9 If the Units sold in accordance with
the provisions of CLAUSE 21.7 are registered on a
branch register the Manager may cause those Units
to be transmitted to the principal register of the
Trust.
EFFECTING 21.10 The Manager may:-
TRANSFER
(a) appoint a person to effect as transferor a
transfer in respect of any Units sold in
accordance with the provisions of CLAUSE 21.8
and to receive and give good discharge of the
purchase money for the Units; and
(b) register the transfer notwithstanding that
the certificate (if any) for the Units has
not been delivered to the Manager and may
issue a certificate (if required) to the
transferee.
SALE PROCEEDS 21.11 The purchase money less the expenses of any sale
made in accordance with the provisions of CLAUSE 21.8
must be paid to the Member whose Units were sold
provided the Member has delivered to the Manager for
cancellation the relevant certificate (if any). Failing
delivery, the Manager may xxx the Member in detinue for
recovery of the certificate (if any) and the Member is
not entitled to deny or dispute the Manager's ownership
and right to possession of the certificate in any legal
action.
OPERATION OF 21.12 Subject to CLAUSE 21.13, CLAUSES 21.7 TO 21.11 shall
PROVISIONS have no effect.
SANCTION OR 21.13 CLAUSE 21.12 shall have no force and effect on and
PENALTY from any date on which it is permissible under
the Listing Rules and the Corporations Law to include
within this deed a sanction or penalty which entitles
the Manager or any other person (or any of them) to
enforce or give effect to any provisions in this deed
relating to takeover offers or substantial Unit
holdings.
APPLICATION 21.14 In circumstances where CLAUSES 21.7 TO 21.11 have
effect they shall:
(a) apply only at times when Units are Officially
Quoted; and
(b) create a personal right of action in each
Member and the Manager and may be enforced by
action of any one or more of the Members, or
the Manager.
NO LIABILITY 21.15 Nothing in this CLAUSE 21 renders
the Manager liable or responsible by reason of any
person acquiring Units in the Trust in
contravention of this CLAUSE 21 or failing to
comply with the obligations imposed by this CLAUSE
21.
22 LIMITATION ON UNIT HOLDINGS AND NOTIFICATION OF SUBSTANTIAL
UNIT HOLDINGS
-------------------------------------------------------------------------------
CHANGES IN 22.1 The provisions of this CLAUSE 22 do not operate:
CORPORATIONS LAW
(a) after the Corporate Law Economic Reform Xxxx 1998
takes effect as law; and
(b) to the extent that this clause is inconsistent
with the Corporations Law.
INTERPRETATION 22.2 In this CLAUSE 22 unless the context indicates a
contrary intention:
(a) In the application of the relevant provisions
of the Corporations Law to this CLAUSE 22 a
reference in the Corporations Law to:
(i) "TAKE-OVER OFFER" and "OFFER" means
an offer to acquire Units which is made
substantially in accordance with the
provisions of Part 6.3 of the Corporations
Law;
(ii) "OFFEROR" means a person who makes a
take-over offer or an offer;
(iii) "TAKE-OVER ANNOUNCEMENT" or "ON-MARKET
OFFER" means an offer to acquire Units
which is made substantially in
accordance with the provisions of Part
6.4 of the Corporations Law;
(iv) "ON-MARKET OFFEROR" means a person who
makes a take-over announcement or on-market
offer;
(v) "COMPANY" means Trust;
(vi) "SHARE" means Unit and "SHARE IN A
corporation" and "SHARES IN A BODY
CORPORATE" means units in a trust;
(vii) "MEMBER" or "SHAREHOLDER" means Member; and
(viii) "ACQUISITION", "ACQUIRE" or "ACQUIRING"
shall exclude acquisition, acquire, or
acquiring by way of an allotment or
issue of Units.
(b) References in Part 1.2 Division 2 of the
Corporations Law to "THE BODY'S BOARD" and in
section 621 of the Corporations Law to "THE
DIRECTORS OF THE COMPANY" mean the board of
directors of the Manager.
(c) References in Part 1.2 Division 5 of the
Corporations Law to "A SHARE" or "THE SHARE"
means a unit in a trust or a share in a body
corporate, as the circumstances require.
(d) Subject to the provisions of this CLAUSE
22.2, section 609, Part 1.2 Division 2 and
Part 1.2 Division 5 of the Corporations Law
applies mutatis mutandis to this CLAUSE 22 as
if specifically incorporated therein.
(e) Reference in CLAUSE 22.3 to "THE PRESCRIBED
PERCENTAGE" has the meaning referred to in
section 615 of the Corporations Law.
(f) The provisions of Chapter 6 of the
Corporations Law requiring notices,
statements and other documents to be given to
the company or the target company shall be
deemed to require such notices, statements or
other documents to be given to the Manager.
(g) Reference in Chapter 6 of the Corporations
Law to the appointment of an expert shall be
deemed to be a reference to an expert
appointed by the Manager.
(h) Reference in CLAUSE 1 of each of Part B and
Part D of section 750 of the Corporations Law
to "EACH DIRECTOR OF THE TARGET COMPANY"
shall be deemed to be a reference to each
director of the Manager.
(i) Reference in the relevant provisions of
Chapter 6 of the Corporations Law to the
approval or requirement or consent of the
Commission shall be deemed to mean the
approval or requirement of consent of the
Manager.
(j) A person who proposes to make an offer to
which this CLAUSE 22 relates shall not serve
a statement that purports to be a Part A
statement on the Trust or make an offer
unless:
(i) a copy of the statement and a copy of
the proposed offer to which the
statement relates have been served on
the Manager not less than 10 business
days before the day on which the
statement is proposed to be served; and
(ii) the Manager has either given the person
who proposes to make the offer notice
in writing of its acceptance of the
statement and the offer, or the Manager
is deemed to have accepted the
statement and the offer under CLAUSE
22.2(1).
(k) The Manager must not give its acceptance in
respect of a statement or an offer under
CLAUSE 22.11 unless it is of the opinion upon
any information presented to it by the person
who proposes to make the offer that:-
(i) the statement and the proposed offer are
in such a form that, if they were a Part
A statement or a proposed offer required
to be lodged with the Commission under
section 644 of the Corporations Law,
both the statement and the proposed offer
would comply with the requirements of the
Corporations Law; and
(ii) to the knowledge of the Manager based
on that information neither the
statement or the proposed offer
contains any matter that is false in a
material particular or that is
materially misleading.
(1) Subject to CLAUSE 22.2(K) the Manager will
give written notice of its acceptance of any
statement and proposed offer served on it
under CLAUSE 22.11 within 10 business days of
the date of service of the statement and
proposed offer failing which the statement
and proposed offer will be deemed to have
been accepted by the Manager as at 5:00pm on
the day being 10 business days after the date
of service of the statement and proposed
offer on the Manager.
(m) A statement or an offer served in
contravention of CLAUSE 22.2(J) will have no
force or effect.
ACQUISITIONS 22.3 Except as provided in this CLAUSE 22, a person shall
EXCEEDING 20% not, either alone or together with another person or
other persons, be eligible to acquire Units in the
Trust if:-
(a) any person who is not entitled to any Units or is
entitled to less than the prescribed percentage of
the Units on issue would immediately after the
acquisition, he entitled to more than the
prescribed percentage of the Units on issue; or
(b) any person (hereinafter referred to as the
"RELEVANT PERSON") who is entitled to not less
than the prescribed percentage, but less than 90%
of the Units on issue would immediately after the
acquisition, be entitled to a greater percentage
of the number of Units on issue than the
percentage to which that relevant person was
entitled immediately before the acquisition.
EXEMPTIONS 22.4 The restrictions contained in CLAUSE 22.3
shall not apply to or in relation to an acquisition
of Units made substantially in accordance with and
in the manner laid down by any of sections 616 to
633 (inclusive) of the Corporations Law, which
shall apply mutatis mutandis.
COMPULSORY 22.5 The provisions of the sub-sections 701(l) to (11)
ACQUISITION inclusive and sub-sections 703(l), (2) and (3) of the
Corporations Law shall apply to this CLAUSE 22 as
if specifically incorporated herein, provided that
for such purpose:
(a) the consideration referred to in sub-section
701(11) of the Corporations Law shall be paid or
made available to the Manager; and
(b) all sums received by the Manager under this CLAUSE
22.5 shall be paid into a separate bank account
and those sums, and any other consideration so
received, shall be held on bare trust by the
Manager for the several persons who were the
persons who were the holders of the Units in
respect of which they were respectively registered
and (less expenses of the Manager properly
relating thereto) shall be forwarded by post to
the registered address of those persons by the
Manager within 60 days of receipt. If any cheque
representing moneys forwarded to a person pursuant
to this CLAUSE 22.5 is not presented and cleared
within a reasonable time such money will be dealt
with in accordance with the governing legislation
relating to treatment of unclaimed moneys held by
Managers.
SUBSTANTIAL UNIT 22.6 The provisions of sections 708 to 713 inclusive and
HOLDINGS 715 of the Corporations Law shall apply with such
adaptations as are necessary under this deed and with
respect to those sections and any regulations made, or
any forms prescribed, in relation thereto, and:-
(a) any reference to share, shareholder and
shareholding shall be construed to mean Unit,
Member and Unit holding respectively; and
(b) any reference to company shall be construed
to mean either the Trust or the Manager as
the context may require.
REGISTER 22.7 The Manager shall keep a register for the Trust in
which it shall forthwith enter:-
(a) the names of persons from whom it has received
notices under CLAUSE 22.6; and
(b) against each name so entered, the information
given in the notices.
INSPECTION OF 22.8 The register shall be open for inspection:-
REGISTER
(a) by any Member of the Trust, without charge; and
(b) at the discretion of the Manager by any other
person upon payment for each inspection of such
amount as the Manager requires up to but not
exceeding the amount prescribed under section
715(2)(b) of the Corporations Law, or, where
the Manager does not require the payment of
an amount, without charge.
VOTING RESTRICTION 22.9 Where a person has acquired Units
in a Trust in contravention of CLAUSE 22.3, then
any Units so acquired will not be counted in voting
by a poll on any resolution at a meeting of
Members.
REGISTRATION AND 22.10 Subject to the Listing Rules, no Unit may be allotted
DIVESTURE if the allotment would result in or have the effect of
causing a contravention of CLAUSE 22.3.
INFRINGEMENT 22.11 Where:-
(a) a person has acquired Units in a Trust in such
circumstances as would result in or have the
effect of causing an infringement or contravention
of this CLAUSE 22.3 the Manager may require, by
notice in writing to such person, the disposal of
the Units so acquired, or any part thereof, (in
this CLAUSE 22.11(A) and CLAUSE 22.12 referred to
as the "SPECIFIED UNITS") within such time as is
specified in the notice, provided that in the
absence of any such requirement by the Manager,
the Member concerned shall not be entitled in any
way to set aside or cancel any transaction whereby
they acquired the Specified Units, nor to claim
any refund or to otherwise recover any money paid
in respect thereof; or
(b) a Member has failed to comply with the obligations
imposed on him by CLAUSE 22.6, the Manager may
require, by notice in writing to such Member, the
disposal of the Units in the Trust to which he is
entitled, or any part thereof, (in this CLAUSE
22.11(B) and CLAUSE 22.12 referred to as the
"SPECIFIED UNITS") within such time as is
specified in the notice, provided that in the
absence of any such requirement by the Manager,
the Member concerned shall not be entitled in any
way to set aside or cancel any transaction whereby
he acquired the Specified Units, nor to claim any
refund or to otherwise recover any money paid in
respect thereof.
SALE OF UNITS 22.12 If the requirements of any such notice are not compiled
with by the person to whom the notice is addressed
within the time specified in the notice, the Manager
may cause the Specified Units to be sold on any stock
exchange on which they are quoted, or, if they are not
so quoted, in a manner determined by the Manager.
TRANSFER TO 22.13 If the Units sold in accordance with the provisions of
PRINCIPAL REGISTER CLAUSE 22.12 are registered on a branch register of the
Trust, the Manager may cause such Units to be
transmitted to the principal Register of the Trust.
EFFECTING SALE 22.14 The Manager may:-
(a) appoint a person to effect as transferor a
transfer in respect of any Units sold in
accordance with the provisions of CLAUSE
22.12 and to receive and give good discharge
of the purchase money therefor; and
(b) register the transfer notwithstanding that
the certificate (if any) for such Units may
not have been delivered to the Manager and
issue a new certificate (if required) to the
transferee, in which event the previous
certificate (if any) shall be deemed to have
been cancelled.
PROCEEDS OF SALE 22.15 The purchase moneys less the expenses of any
sale made in accordance with the provisions
of CLAUSE 22.12 shall be paid to the Member whose
Units were sold provided he has delivered to the
Manager for cancellation the certificate for the
Units concerned (if any). Failing such delivery,
the Manager may xxx such person in detinue for
recovery of such certificate (if any) and the
Member shall not deny or dispute the Manager's
ownership and right to possession of such
certificate (if any) in any such action.
NO LIABILITY 22.16 Nothing in CLAUSES 22.10 TO 22.15 shall render the
Manager liable or responsible by reason of any person
acquiring Units in the Trust in contravention of
CLAUSE 22.3 or failing to comply with the obligations
imposed by CLAUSE 22.6.
INFORMATION 22.17 The Manager may at any time require, by notice in
REQUIREMENTS writing, any person to furnish to the Manager such
information or evidence (on oath or otherwise verified
if the Manager should so require) as the Manager may
consider likely to be of assistance in determining
whether or not such person is eligible to remain a
Member.
NO EFFECT 22.18 Subject to CLAUSE 22.19, CLAUSES 22.2 TO 22.17 shall
have no effect.
CONFORMITY WITH 22.19 CLAUSE 22.18 shall have no force and effect on and
LISTING RULES from any date on which it is permissible under the
Listing Rules and the Corporations Law to include
within this deed a sanction or penalty which entitles
the Manager or any other person (or any of them) to
enforce or give effect to any provisions in this
deed relating to takeover offers or substantial
Unit holdings.
APPLICATION 22.20 In circumstances where CLAUSES 22.2 TO 22.17 have
effect, this CLAUSE 22:
(a) applies only at times when Units are Officially
Quoted; and
(b) creates a personal right of action in each
Member and the Manager and may be enforced by
action of any one or more of the Members or
the Manager.
23 SCHEMES OF ARRANGEMENT
-------------------------------------------------------------------------------
DEFINITIONS 23.1 A compromise or arrangement (collectively
referred to in this clause 23 as "A COMPROMISE")
may be proposed by the Manager or by not less than
50 or 10% in number, whichever is the less, of the
Members. The proposal must be in writing (in this
CLAUSE 23 referred to as "THE NOTICE").
DETAILS OF NOTICE 23.2 (a) The Manager shall, upon preparing or receiving the
Notice, within twenty one (21) days summon a meeting
of all Members
PROVIDED THAT:-
(i) the Notice must state the objects of the
meeting and the terms of any resolution
proposed to be submitted to the meeting;
(ii) the Notice must be signed by the
proposing party or requisitionists (as
applicable) and deposited at the
registered office of the Manager in New
South Wales;
(iii) if the Manager does not within fourteen
(14) days from the date of the Notice
duly proceed to convene a meeting of
Members the requisitionists may convene
the meeting within two (2) months from
the date of the Notice. Any meeting so
convened shall be convened in the same
manner as nearly as possible as that in
which meetings are to be convened by
the Manager;
(b) For the purposes of the meeting referred to
in CLAUSE 23.2(A) above, all Members (whether
of partly paid or fully paid Units) shall be
treated as one class of Members.
BINDING 23.3 A compromise shall be binding on all Members and the
COMPRISE Manager where it is approved by Members, being a
majority in number of all Members (whether or not
attending the meeting) holding Units which carry three
quarters of the votes of all Units Holders whose
Units carry the right to vote at the meeting
present and voting either in person or by proxy at
the meeting (or any adjournment thereof), convened
in accordance with CLAUSE 23.2 above.
COPY TO UNIT 23.4 A copy of every compromise approved in accordance with
HOLDERS theforegoing provisions shall be sent by the Manager
within seven (7) days of approval thereof to all
Members.
FURTHER ASSURANCES 23.5 Each Member irrevocably authorises and empowers the
Manager or any officer of the Manager to execute all
such transfer forms and other documents, and do all
such things as may be necessary for the full and
complete implementation of the provisions of any
compromise approved in terms of CLAUSE 23.3 above, to
receive on such Member's behalf any moneys payable to
him in terms thereof, such Member undertaking to ratify
anything lawfully done by the Manager in accordance
with these presents.
24 PRESERVATION OF REIT STATUS
-------------------------------------------------------------------------------
REIT STATUS 24.1 Where the Assets comprise shares or stock in a
corporation ("RELEVANT CORPORATION") which qualifies as
a real estate investment trust ("REIT") for the
purposes of the Internal Revenue Code of 1986 of the
United States of America ("Code") and the preservation
of the status of the relevant corporation as a REIT is
advantageous to the Trust or to the Members then
subject to the requirements of and to the extent
permitted by the law, the Listing Rules, the terms of
any waiver of the Listing Rules and any Relief
(collectively "REQUIREMENTS"), the Manager will take
such measures as it is able to ensure that the relevant
corporation continues to qualify as a REIT and will
refrain from taking any action that would impair the
status of the relevant corporation as a REIT and shall
take or refrain from taking any action necessary to
prevent any other material adverse change to the Trust
in connection with the ownership by the Manager of WEA
Stock including, but not limited to the exchange of any
WEA Stock owned by the Manager for excess shares or
stock in WEA. Except while the Trust is included in the
Official List of the ASX, without limiting the
generality of the foregoing, but subject to and to the
extent permitted by the Requirements the Manager may:
(a) refuse to register any transfer, which, if
registered, may result in the relevant
corporation being "closely held" within the
meaning of Section 856(h) of the Code;
(b) cause an appropriate number of Units in
respect of which such notice has been given
to be forfeited in order to ensure that the
relevant corporation is not "closely held"
within the meaning of Section 856(h) of the
Code and in such event:
(i) subject to the terms of this deed a
forfeited Unit may be sold or otherwise
disposed of by private sale at a price
per Unit calculated in accordance
with any Relief or equal to the prevailing
application price of Units at the date of
the sale;
(ii) at any time before a sale or
disposition under SUB-PARAGRAPH (I),
forfeiture may be cancelled on such
terms as the Manager thinks fit;
(iii) on a sale or other disposition under
SUB-PARAGRAPH (I) the Manager shall
receive the proceeds of such sale or
disposition and may execute a transfer
of the forfeited unit in favour of the
purchaser of the Unit and such
purchaser shall thereupon be registered
as the Member and shall not be bound to
see to the application of the proceeds
of such sale or disposition nor shall
his title to the Unit be affected by
any irregularity or invalidity in the
proceedings in relation to the
forfeiture or sale or disposition of
the Units;
(iv) the proceeds of sale or disposition of
any forfeited Unit shall be applied
first towards the payment of all costs
and expenses incidental to the
forfeiture and sale or disposition and
the balance, if any, remaining shall be
paid to the Member whose Units have
been forfeited and sold or otherwise
disposed of.
25 GENERAL
-------------------------------------------------------------------------------
RELEVANT LAW 25.1 This deed is governed by the laws from
time to time in force in the State of New South
Wales.
SUBMISSION TO 25.2 Each party irrevocably and unconditionally submits to
JURISDICTION the non-exclusive jurisdiction of the Courts of New
South Wales.
NOTICES TO 25.3 A notice required under this deed to be given to a
MEMBERS AND Member or Option Holder must be given in writing
OPTION (which includes a fax) and be delivered or sent to the
Member or Option HOLDERS Holder at the Member's or
Option Holder registered address or the facsimile
number (if any) last advised to the Manager for
delivery of notices. For joint Members or Option
Holders, this means the registered address or the
facsimile number of the Member or Option Holder first
named in the register. A notice sent by post is taken
to be received on the day after it is posted and a
facsimile is taken to be received one hour after
receipt by the transmittor of confirmation of
transmission from the receiving facsimile machine, and
proof of actual receipt is not required.
26 COMPLAINTS
-------------------------------------------------------------------------------
26.1 If and for so long as the Corporations Law or ASIC
policy requires, if a Member submits to the Manager
a complaint alleging that the Member has been
adversely affected by the Manager's conduct in its
management or administration of the Trust, the
Manager:
(a) must, if the complaint is in writing,
acknowledge in writing receipt of the
complaint as soon as practicable and in any
event within 14 days from receipt;
(b) must ensure that the complaint receives
proper consideration resulting in a
determination by a person or body designated
by the Manager as appropriate to handle
complaints;
(c) must act in good faith to deal with the
complaint by endeavouring to correct any
error which is capable of being corrected
without affecting the rights of third
parties;
(d) may in its discretion give any of the following
remedies to the complainant:
(i) information and explanation regarding the
circumstances giving rise to the complaint;
(ii) an apology; or
(iii) compensation for loss incurred by the
Member as a direct result of the breach
(if any); and
(e) must communicate to the complainant as soon as
practicable and in any event not more than 45
days after receipt by the Manager of the
complaint:
(i) the determination in relation to the
complaint;
(ii) the remedies (if any) available to the
Member; and
(iii) information regarding any further avenue
for complaint.
27 COMPLIANCE COMMITTEE
-------------------------------------------------------------------------------
COMPLIANCE If any Compliance Committee Member incurs a
COMMITTEE liability in that capacity in good faith, the
Compliance Committee Member is entitled to be
indemnified out of the Assets in respect of
that liability to the extent permitted by
law.
-------------------------------------------------------------------------------
FIRST SCHEDULE
(Clause 1.1)
WESTFIELD AMERICA TRUST
RULES FOR DISTRIBUTION REINVESTMENT PLAN
1. DEFINITIONS
In these Rules, the following words and phrases have the following
meaning unless the contrary intention appears:
(a) Words and expressions used in the Trust Deed shall have the same
meanings when used in these Rules.
(b) "BUSINESS DAY" has the same meaning as it has in the Listing
Rules.
(c) "CURRENT ACCRUAL PERIOD" means the Accrual Period during which
Units are to be issued under the Plan.
(d) "DISTRIBUTION PER UNIT" means the total distribution paid to
Members of Units (that ranked in full for the distribution)
divided by the total number of Units on issue (that ranked in
full for the distribution) at the end of the Record Date for that
distribution.
(e) "IMMEDIATELY PRECEDING ACCRUAL PERIOD" means the Accrual Period
immediately preceding the Current Accrual Period.
(f) "PARTICIPANT" means each Member who is participating in the Plan.
(g) "PLAN" means the distribution reinvestment plan established by
these Rules.
(h) "RECORD DATE" has the same meaning as it has in the Listing
Rules.
(i) "TERMINATION DATE" means the day on which the participation of a
Participant in the Plan is terminated pursuant to these Rules.
(j) "UNITS" means ordinary fully paid Units which do not have any
special rights, obligations or restrictions and include Units
issued under the Plan.
2. PARTICIPATION IN THE PLAN
(a) Subject to the rights, obligations and restrictions attaching to
any Units or classes, each Member may apply for participation in
the Plan.
(b) A Member having a registered address in a country other than
Australia and New Zealand may not be eligible to participate in
the Plan because of legal requirements applying in that country.
The issue of Units to Members who at the time of issue are not
resident in Australia will be subject to all necessary statutory
approvals. It will be the responsibility of each Member to obtain
any such approvals.
(c) An application must be in writing in a form acceptable to the
Manager and must authorise the Manager to withhold the whole or
such part as the Member may nominate of all cash distributions
payable on the Units of the Participant following the date of
acceptance of the application of the Participant by the Manager.
On acceptance of the application, the Manager must enter in the
register of Members such details in relation to the Participants
participating in the Plan as the Manager considers necessary.
(d) An application form for participation in the Plan may be lodged
at any time up until the Record Date for a distribution in order
to enable the Participant to participate in the Plan with respect
to that distribution.
3. MANAGER
The Manager will act as agent and nominee for each Participant, but
only for the purpose of the Plan.
4. SUBSCRIPTION FOR UNITS
(a) Subject to RULE 4(B), the Manager will apply all cash
distributions withheld on behalf of a Participant under the Plan
in subscribing for further Units to be issued in the name of that
Participant. Subscriptions will be made on any day in February
and August in each year and Units so created will rank for all
distributions from the first day of the month immediately
following their creation so that such Units participate in income
distributed in respect of the Accrual Period in which they were
created in proportion to the part of that Accrual Period
(calculated in days) for which such Units ranked for distribution
of income.
(b) The Manager must hold any fraction remaining after subscribing
for Units at the issue price for future reinvestment in Units
under the Plan on behalf of the Participant.
(c) Following each issue, a Participant will receive a statement
listing the amount of the total cash distribution withheld, the
number of Units issued, the issue price per Unit and the amount
of any remaining fraction.
5. ISSUE PRICE OF UNITS
The issue price for each Unit to be issued at a particular date to
Participants pursuant to the Plan is the weighted average Market Price
during the five Business Days after the date on which trading of the
Units becomes ex entitlement to the relevant distribution with the
following adjustments:
(a) less an amount equal to:
(i) the distribution per Unit for the distribution in
respect of the immediately preceding Accrual
Period;
(ii) multiplied by the fraction where:
(A) the numerator is the number of days in the period
from the first day of the Current Accrual Period up
to and including the last day of the month during
which the relevant distribution is to be paid; and
(B) the denominator is the number of days in the
Current Accrual Period.
(b) less any amount determined by the Manager.
(c) the issue price calculated under this Rule will be rounded to
the nearest whole cent (0.50 of one cent being rounded down).
6. STOCK EXCHANGE QUOTATION
The Manager will apply for quotation on the ASX of Units issued
pursuant to the Plan.
7. ALTERATION TO PARTICIPATION
At any time up until the Record Date for a distribution, a Participant
may, by notice in writing to the Manager, alter the proportion of the
distribution to be withheld by the Manager pursuant to the Plan.
8. TERMINATION
(a) BY NOTICE
At any time up until the Record Date for a distribution, a
Participant may terminate participation in the Plan by notice
in writing to the Manager in a form acceptable to the Manager.
(b) ON TRANSFER
A Participant will cease to participate in the Plan in respect
of all or so many of the Units of the Participant as may be
transferred to a third party on registration of such transfer
in the register of Members kept by the Manager in accordance
with the Trust Deed.
(c) ON DEATH
If the Manager receives written notice of the death of a
Participant, such notice will terminate the participation in
the Plan of that Participant and of all the other Participants
(if any) with whom that deceased Participant was a joint
Participant.
9. DISTRIBUTION OF FRACTIONS ON TERMINATION OF PARTICIPATION IN THE PLAN
On termination of participation in the Plan, any fraction held by the
Manager on account of a Participant pursuant to Rule 4(b) will be
forwarded by cheque to the last registered address of that
Participant.
10. TERMINATION OF PLAN OR OF PARTICIPATION BY MANAGER
The Manager may terminate or suspend the participation in the Plan of
any Participant by not less than 7 days' written notice to the
Participant and may terminate or suspend the Plan by not less than 30
days' written notice to all Participants. In either case termination
or suspension will take effect on the date specified by the Manager in
the notice. The Manager may reinstate the Plan following a suspension
by not less than 30 days' written notice to all Members.
11. LIABILITY OF MANAGER
Subject to the Corporations Law, if the Manager acts in good faith and
without gross negligence, it is not liable in contract, tort or
otherwise to any Member for any loss suffered in any way relating to
the Plan, including, without limitation any claim:
(a) arising out of a failure to terminate a Participant's
participation in the Plan on the Participant's death prior to
receipt of a notice in writing of such death; or
(b) with respect to the prices at which Units are subscribed for.
12. NOTICES
Any notice or other communication given by any Participant to the
Manager in connection with the Plan must be in writing addressed to
the Manager at such address as notified in writing by the Manager to
the Participant from time to time.
13. NOTICE TO PARTICIPANTS
Any notice or other communication given by the Manager to any
Participant must be in writing and will be deemed to have been
sufficiently given for all purposes by being sent by prepaid post to
the Participant at the address which last appears in the register of
Members kept in accordance with the Trust Deed.
14. ALTERATIONS TO THE RULES
These Rules may be altered, amended, deleted or added to as provided
for in the Trust Deed. The Manager must ensure that these Rules are
in no way inconsistent with the provisions of the Trust Deed as
amended from time to time.
15. PROPER LAW
The terms and conditions of the Plan and its operations shall be
governed by the laws of the State of New South Wales.
-------------------------------------------------------------------------------
SCHEDULE 2
TERMS OF ISSUE OF SERIES A CLASS UNITS, SERIES B CLASS UNITS
AND SERIES C CLASS UNITS
-------------------------------------------------------------------------------
SECOND SCHEDULE
SERIES A CLASS UNITS, SERIES B CLASS UNITS AND SERIES C CLASS UNITS
1. DEFINITIONS AND INTERPRETATION
1.1 Terms defined in the Westfield America Trust Deed (as amended by
Deeds of Variation including Deed of Variation No 4 and as further
amended from time to time) (`TRUST DEED') have the same meanings in
this Schedule unless the context otherwise requires.
1.2 In this Schedule,
`BANKRUPTCY EVENT': means any one of the following events
with respect to a body corporate:
(a) a court of appropriate jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the body corporate in an involuntary
case;
(ii) appoints a Receiver of the body corporate for all or
substantially all of its property; or
(iii) orders the liquidation of the body corporate; or
(b) pursuant to or within the meaning of any Bankruptcy Law, the body
corporate:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief in an
involuntary case;
(iii) consents to the appointment of a Receiver of it or for all
or substantially all of its property; or
(iv) makes a general assignment for the benefit of its creditors.
`BANKRUPTCY LAW': Title 11, U.S. Code, or any similar federal
or state law of the United States of America for relief of
debtors.
`BUSINESS DAY': a day other than: Saturday, Sunday, New Years
Day, Good Friday, Easter Monday, Christmas Day, Boxing Day
and any other day which the ASX shall declare and publish is
not a business day.
`CONVERSION': the variation of rights attaching to a Series A
Class Unit, a Series B Class Unit or a Series C Class Unit
under CLAUSE 8 of this Schedule.
`CONVERSION DATE': for Series A Class Units means 29 June 2001, for
Series B Class Units means 28 June 2002 and for Series C Class Units
means 30 June 2003.
`CONVERSION NUMBER': the number of fully paid Ordinary Units
determined by the following formula:
CN = AP
-------------
MV x (1 - D)
Where:
CN = Conversion Number
AP = Application Price of $50.20
D = 0.05
MV = the meaning defined in this CLAUSE 1 of this Schedule.
provided that if CLAUSE 6 applies, then the Conversion Number will be
determined in accordance with that clause.
'DESIGNATED ENTITY': means any one of the following entities:
(a) Westpac Banking Corporation;
(b) Commonwealth Bank of Australia;
(c) Australia and New Zealand Banking Group Limited;
(d) National Australia Bank;
(e) WEA; and
(f) any such entity which the Manager determines will be a Designated
Entity.
'DISCOUNT ELEMENT': is $2.64.
'DISCOUNT ELEMENT NUMBER OF ORDINARY UNITS': is the number of
fully paid Ordinary Units determined by the following formula:
(Discount Element)
----------------
MV
'EXCHANGE RATE: the spot rate for the exchange of Australian Dollars
to US Dollars determined for the date upon which the exchange of
currencies is to take place as quoted on the Reuters Screen `HSRA' or
any equivalent replacement reference page at 4.00pm on that date
provided that if no such rate is available then the `Exchange Rate'
means the average of mid-rates as quoted by any two of National
Australia Bank, Commonwealth Bank of Australia, Westpac Banking
Corporation and Australia and New Zealand Banking Group Limited at
4.00pm on that date.
'INSTALLMENT': means $50.00.
'MV': the average of the daily weighted average of the prices at
which fully paid Ordinary Units were sold on the ASX for the 20
consecutive Business Days (but excluding from this calculation any
Business Days on which no Ordinary Units were sold on the ASX) prior
to the Conversion Date (or, if CLAUSE 5 applies, the Redemption
Record Date) (`VWAP') provided that if:
(i) on some or all of those 20 Business Days referred to, fully paid
Ordinary Units have been quoted as:
(A) cum distribution; or
(B) cum entitlement (including, without limitation, any
rights or options in whatever form issued in respect of
a fully paid Ordinary Unit or to which a Member holding
fully paid Ordinary Units has, or will, become entitled
by virtue of being such a holder whether or not they
are issued or made available by the Manager or by any
other person, any bonus units or other issues of
securities and any distribution of a capital nature
whether in cash or in specie and whether on reduction
of capital or otherwise); and
(ii) the fully paid Ordinary Units to be issued on the Conversion Date
would not rank for participation in the relevant distribution or
entitlement;
then the VWAP of an Ordinary Unit on the Business Days on which the
Units have been quoted cum distribution or cum entitlement will be
deemed to be the amount thereof reduced by:
(a) in the case of a distribution, an amount equal to the amount of
such distribution (being the cash amount of the distribution)
or if the amount of the distribution is not known at that time,
then the amount equal to the Previous Accrual Period
Distribution per Unit; or
(b) in the case of an entitlement which is traded on ASX on any of
those Business Days, the weighted average sale price of the
entitlement sold on ASX on the Business Days on which the
entitlement traded; or
(c) in the case of an entitlement not traded on ASX on any of those
Business Days, the value of the entitlement as determined by a
member of ASX nominated by the chairman for the time being of
ASX.
'ORDINARY UNITS': means fully paid Units but does not include fully
paid Series A Class Units, Series B Class Units or Series C Class
Units.
'PAID UP AMOUNT': means in respect of a PP Unit, the amount of the
Application Price which has been paid (excluding amounts credited or
paid in advance of when due and payable under this Schedule).
'PAYMENT ACKNOWLEDGEMENT': is an acknowledgement by a Designated
Entity that it will pay to the Manager a specified amount on or before
the Conversion Date specified in the acknowledgement.
'PREVIOUS ACCRUAL PERIOD DISTRIBUTION PER UNIT': means the amount
determined by the following formula:
PREVIOUS ACCRUAL Distribution per Exchange Rate applied
PERIOD DISTRIBUTION Ordinary Unit for the for the distribution
PER UNIT = Accrual Period paid in respect of the
immediately preceding Accrual
the Conversion Period immediately
Date x preceding the Conversion
Date
--------------------------
Exchange Rate at 12.00
pm Sydney time on the
last Business Day prior
to the Conversion Date
'PP UNIT': a Series A Class Unit, a Series B Class Unit or a Series C
Class Unit, or any of them as the context requires.
'PP UNIT PAYMENT DATE': the date being 23 Business Days before the
Conversion Date.
'SERIES A CLASS UNIT': a Unit with an Application Price of $50.20 with
a Conversion Date of 29 June 2001.
'SERIES B CLASS UNIT': a Unit with an Application Price of $50.20 with
a Conversion Date of 28 June 2002.
'SERIES C CLASS UNIT': a Unit with an Application Price of $50.20 with
a Conversion Date of 30 June 2003.
'RECEIVER': means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
'WEA COMPENSATION PAYMENT': a payment by WEA to the Manager under the
WEA Subscription Agreement in connection with WEA not issuing either:
(a) any WEA common stock to the Manager; or
(b) the full amount of WEA common stock it would have been obliged to
issue under the WEA Subscription Agreement if not for the WEA New
Issues Limit.
'WEA SUBSCRIPTION AGREEMENT': the agreement dated on or about the date
of Deed of Variation No. 4 to the Trust Deed among Perpetual, the
Manager and WEA under which the Manager agrees, amongst other things,
to subscribe for common stock of WEA.
1.3 This Schedule forms part of the Trust Deed.
1.4 Clause references in this Schedule are references to clauses in this
Schedule unless expressly indicated to the contrary.
2. ISSUE
The Manager may issue Series A Class Units, Series B Class Units and
Series C Class Units with an Application Price of $50.20, each partly
paid to $0.20 and with an Uncalled Amount of $50.
3. ENTITLEMENTS
3.1 No PP Unit carries any entitlement to:
(a) any distribution (whether of income or capital) of the Trust;
(b) subject to the Corporations Law and any relevant Relief, require
the Manager to repurchase, buy back or cause the redemption of
the PP Unit; and
(c) except as provided for in CLAUSE 3.2 of this Schedule, a right to
vote at meetings of Members.
3.2 Where either or both the Corporations Law and the Listing Rules
require that a PP Unit carry an entitlement to vote at a meeting of
Members, then that entitlement will be determined by the following
formula:
Voting Entitlement = Paid Up Amount of the PP Unit
---------------------------------
MV x (1 - D)
where:
D = 0.05
and in calculating MV for the purpose of determining voting
entitlements, the reference to Conversion Date in the definition of MV
is deemed to be a reference to the date being 2 Business Days before
the relevant meeting of Members or such other date as is required by
the Listing Rules or Corporations Law.
At a meeting of a Class of Members of PP Units, each Member present in
person or by proxy has one vote on a show of hands and on a poll, one
vote for each PP Unit held.
4. PAYMENT OF THE INSTALLMENT
4.1 Except as otherwise provided in CLAUSE 5 of this Schedule, a Member
holding a PP Unit on the PP Unit Payment Date for that Class of Unit
must pay, or cause to be paid, to the Manager the Installment on that
PP Unit on or before that date.
4.2 A Member holding a PP Unit will be deemed to have caused to be paid
the Instalment on the PP Unit under CLAUSE 4.1 on or before the
relevant PP Unit Payment Date if in respect of that PP Unit:
(a) a Designated Entity issues to the Manager a Payment
Acknowledgement for the amount of the Installment; and
(b) any such Designated Entity pays on or before the Conversion Date
an amount equal to the Instalment.
4.3 Until the Conversion Date, any amounts paid up on each PP Unit (other
than the initial $0.20 paid up on a PP Unit) are to be held by the
Manager in a separate applications money account and do not form part
of the Assets of the Trust and do not confer any additional
entitlements under the Trust Deed, other than to reduce the Instalment
payable by a holder on a PP Unit. Any interest derived by the Manager
on amounts paid up on PP Units will become an asset of the Trust.
5. REDEMPTION OF PP UNITS
5.1 On or before 2 Business Days prior to the PP Unit Payment Date for a
PP Unit, the Manager may notify each Member holding those PP Units:
(a) of a record date on or before the relevant Conversion Date
('REDEMPTION RECORD DATE') being the date on which holders of the
relevant class of PP Units registered at the end of that date
will be presently entitled to receive the Discount Element;
(b) that they are not required to pay up the Instalment on those PP
Units and on issue of such a notice, the Members holding those PP
Units will be under no obligation to do so; and
(c) that the Manager will redeem each PP Unit at a redemption price
equal to the Discount Element. The redemption price in respect of
a Member's PP Units is to be sourced firstly out of any
entitlement of the Member to a share of the WEA Compensation
Payment arising under CLAUSE 10 of this Schedule and then out of
Trust capital.
5.2 If the Manager issues a notice under CLAUSE 5.1, then the Manager
must, in respect of each PP Unit of the relevant Class held by a
Member at the end of the Redemption Record Date, either:
(a) pay to the Member the redemption price of the PP Unit; or
(b) apply the amount referred to in CLAUSE 5.1(C) by way of
subscription on behalf of the Member for the Discount Element
Number of Ordinary Units and issue that number of Ordinary Units
to the Member.
5.3 If CLAUSE 5.2 (B) applies so as to produce for a Member a total
entitlement to a number of Ordinary Units which includes a fraction of
a Unit, the fraction will be eliminated by rounding downwards where
the fraction is one half or less and by rounding upwards in any other
case.
5.4 If CLAUSE 5.1 applies, then the Manager must repay to a Member holding
PP Units of the relevant Class, the amount of any Instalment referable
to those PP Units paid by the Member and held by the Manager under
CLAUSE 4.3.
6. ADJUSTMENT TO THE CONVERSION NUMBER AND PAYMENT OF ADJUSTMENT AMOUNT
6.1 In this CLAUSE 6,
'ADJUSTMENT AMOUNT': means the dollar amount determined by the
following formula:
(1 - FUSA) x (Discount Element + Paid Up Amount of the PP Unit).
'ADJUSTMENT NUMBER OF UNITS': means that number of Units determined by
the following formula:
Adjustment Amount
---------------------
MV
'WEA NEW ISSUES LIMIT': means a limit, arising by way of the
applicable rules of the New York Stock Exchange, on the amount of new
common stock WEA may issue without stockholders' approval.
6.2 If WEA notifies the Manager on or before the Conversion Date for a PP
Unit that, because of the WEA New Issues Limit the common stock which
WEA may lawfully issue to the Manager under the WEA Subscription
Agreement must be reduced then:
(i) the Conversion Number for each PP Unit for the purposes of CLAUSE
8, will be determined by the following formula:
CN = FUSA x AP
-------------
MV x (1 - D)
where:
MV, AP and D have the same meaning as in the definition for
Conversion Number set out in CLAUSE 1 of this Schedule
CN = Conversion Number
FUSA = that number of shares of common stock WEA is
permitted to issue under the WEA Subscription
Agreement without stock holder approval given the
WEA New Issues Limit
that number of shares of common stock WEA would be
obliged to issue under the WEA Subscription
Agreement if the WEA New Issues Limit did not apply
and
(ii) the Manager must either:
(A) pay to each Member who holds a PP Unit of the relevant
Class, an Adjustment Amount. The Adjustment Amount in
respect of a Member's PP Units is to be sourced firstly
out of any entitlement of the Member to a share of the
WEA Compensation Payment under CLAUSE 10 and then out of
Trust capital; or
(B) issue to each Member who holds a PP Unit of the relevant
Class, an Adjustment Number of Units for each PP Unit of
the relevant Class held by the Member.
6.3 If the issue of an Adjustment Number of Units under CLAUSE 6.2(II)(B)
produces an entitlement for a Member to a number of Ordinary Units
which includes a fraction of a Unit, the fraction will be eliminated
by rounding downwards where the fraction is one-half or less and by
rounding upwards in any other case.
6.4 The Manager may rely on a certificate signed by an authorised officer
of WEA as to matters stated therein relating to this clause.
7. NON-SATISFACTION OF CONDITIONS PRECEDENT OF WEA SUBSCRIPTION AGREEMENT
7.1 If on or before the PP Unit Payment Date for a Class of PP Units the
Manager becomes aware that a condition precedent (`CONDITION
PRECEDENT') to the Manager's obligation to subscribe for WEA common
stock under the WEA Subscription Agreement is incapable of being
fulfilled and the Manager determines that it will not waive such
Condition Precedent, then:
(a) the Manager must notify Members holding PP Units of that Class
that they are not required to pay up the Instalment on any PP
Unit of that Class and on the issue of such a notice, Members
holding those PP Units will be under no obligation to do so (and
such PP Units will no longer have an Uncalled Amount);
(b) the Manager must repay to Members any Instalments which have been
paid up on PP Units of that Class;
(c) the Manager may, in its absolute discretion redeem PP Units of
that Class at a redemption price determined in accordance with
CLAUSE 8.10 of the Trust Deed but excluding from the amount paid
up any amounts repaid under paragraph (b); and
(d) if a Bankruptcy Event with respect to WEA:
(i) has not occurred, then the Manager must, in respect of each
PP Unit of the relevant Class held by a Member, to pay to
the Member an amount equal to the Discount Element which is
to be sourced firstly out of any entitlement of the Member
to a share of the WEA Compensation Payment arising under
CLAUSE 10.1 of this Schedule and then out of Trust Capital;
or
(ii) has occurred, then Members holding PP Units of that Class
will be entitled to be paid a share of any WEA Compensation
Payment paid to the Manager determined in accordance with
CLAUSE 10.1 of this Schedule.
7.2 Without in any way limiting the Manager's ability to waive a Condition
Precedent, where the Condition Precedent relates to the acceleration
of indebtedness of WEA, the Manager must waive that Condition
Precedent if the Manager is satisfied that either:
(a) WEA will be able to remedy or cure the relevant default; or
(b) the holders of such indebtedness will waive the relevant default.
7.3 In CLAUSE 7.2, Officer's Certificate means a certificate signed by a
person who holds any one of the following offices of WEA:
Co-President; Chief Financial Officer or Secretary.
8. CONVERSION INTO ORDINARY UNITS
8.1 Subject to CLAUSE 8.3, on a PP Unit becoming fully paid, then on the
Conversion Date for that PP Unit, the PP Unit will convert into the
Conversion Number of Ordinary Units which will rank equally in all
respects with existing Ordinary Units, except that they will not be
entitled to receive any Distributable Income for the Accrual Period in
which they are created.
8.2 If the Conversion of a person's holding to Ordinary Units issued under
this clause produces an entitlement to a number of Ordinary Units
which includes a fraction of a Unit, the fraction will be eliminated
by rounding downwards where the fraction is one half or less and by
rounding upwards in any other case.
8.3 CLAUSE 8.1 does not apply to a PP Unit where the Manager has issued a
notice under CLAUSE 5 of this Schedule in respect of the PP Unit.
9. TAKEOVERS AND REMOVAL OF MANAGER
9.1 The Manager must issue a notice (`EVENT NOTICE') to Members holding PP
Units within 7 Business Days after the occurrence of any of the
following events at any time prior to the Conversion Date for a Class
of PP Units:
(a) a take-over offer for Ordinary Units in the Trust is made by an
Offeror and the Offeror becomes entitled to at least 50% of the
Ordinary Units; or
(b) at a meeting requisitioned by Members in accordance with the
Trust Deed, a Resolution calling for the retirement or removal as
management company of the Trust (or as single responsible entity
of the Trust, as the case may be) of Westfield America Management
Limited (or if an associate of Westfield America Management
Limited is the management company or single responsible entity,
such a Resolution in relation to that associate) is passed by at
least the required majority;
and, on the issue of an Event Notice:
(i) a Member holding the relevant Class of PP Units may, within the
period commencing on the date of issue of the Event Notice and
ending 10 Business Days after that date (`ELECTION PERIOD'), pay
up the Instalment on its PP Units of that Class to the Manager
and cause the Manager to convert the fully paid PP Units into
Ordinary Units in accordance with CLAUSE 8, with the Conversion
Date being 12 Business Days after the expiration of the Election
Period, provided that:
(A) in calculating MV the reference to the Previous Accrual
Period Distribution per Unit in the definition of MV is to
be read as a reference to the Adjusted Previous Accrual
Period Distribution per Unit determined in accordance with
the following formula:
Adjusted Previous Previous Number of days in the period
Accrual Period Accrual Period commencing at the beginning of the
Distribution Distribution Current Accrual Period and ending
per Unit per Unit on the day immediately prior to
= x the Conversion Date
------------------------------------
Number of days in the Accrual
Period in which the Conversion
Date occurs
and
(B) the Ordinary Units created on conversion shall participate
in the Distributable Income in respect of the Accrual Period
in which they are created in the proportion that part of the
Accrual Period (calculated in days) for which such Units
rank for distribution of Distributable Income bears to the
total number of days in such Accrual Period; and
(ii) if the Manager receives an Election Notice from a Member, then
the Manager may within 12 Business Days after the expiration of
the Election Period, redeem the PP Unit at a redemption price
equal to the Discount Element and will pay the amount of any
Instalment paid up by the Member in respect of those PP Units,
together with the redemption price, to the Member.
9.2 Terms used in paragraph (a) of CLAUSE 9.1 have the same meaning as in
CLAUSE 22.2 of the Trust Deed. In paragraph (b) of CLAUSE 9.1 the
reference to `required majority' is a reference to the specified
majority for such a Resolution required by the Listing Rules, or if
the Listing Rules at the relevant time do not specify a majority, then
it is a reference to the specified majority in the Corporations Law.
9.3 The Manager may shorten any of the time periods referred to in this
CLAUSE 9.
10. PRESENT ENTITLEMENT TO WEA COMPENSATION PAYMENT
10.1 If WEA pays to the Manager a WEA Compensation Payment in respect of a
Class of PP Units, then the Manager must:
(a) nominate a record date being the PP Unit Payment Date or, if
CLAUSE 5 of this Schedule applies the Redemption Record Date,
(`COMPENSATION RECORD DATE') on which each Member holding the
relevant Class of PP Units registered at the end of that date
will become presently entitled to receive a share of the WEA
Compensation Payment in the proportion of the number of PP Units
of that Class held by the Member at that time to the total number
of PP Units of that Class on issue; and
(b) record the receipt of the WEA Compensation Payment in a separate
account and allocate the WEA Compensation Payment to the holders
of the relevant class of PP Units as at the end of the
Compensation Record Date.
10.2 Each Member which becomes presently entitled to a share of the WEA
Compensation Payment is deemed to irrevocably direct the Manager:
(a) where CLAUSE 5.1(C) applies, to apply its entitlement in payment
of the redemption price in accordance with CLAUSE 5.2; or
(b) where CLAUSE 6.2(II)(A) applies, to apply its entitlement in
payment of the Adjustment Amount;
(c) where CLAUSE 6.2(II)(B) applies, to apply its entitlement by way
of subscription for the Adjustment Number of Units; or
(d) where CLAUSE 7.1(D) applies, to pay its entitlement in accordance
with that clause.
The Manager must act in accordance with a direction under this clause.
11. STAPLING
11.1 The Manager may only issue a Series A Class Unit if at the same time
it issues a corresponding Series B Class Unit and Series C Class Unit.
11.2 Each:
(a) Series A Class Unit is stapled to a corresponding Series B Class
Unit and Series C Class Unit; and
(b) Series B Class Unit is stapled to the corresponding Series C
Class Unit referred to in paragraph (a),
and will remain so until they are unstapled in accordance with CLAUSE
11.4.
11.3 Subject to the Listing Rules and the SCH business rules, any transfer
of a PP Unit is effective only if there is a simultaneous transfer of
any PP Unit to which the PP Unit is stapled, to the same transferee.
This clause also applies, mutatis mutandis, to transmission of PP
Units.
11.4 Series A Class Units will become unstapled from the Series B Class
Units and the Series C Class Units to which they are stapled at the
end of the Unstapling Date for the Series A Class Units and Series B
Class Units will become unstapled from Series C Class Units at the end
of the Unstapling Date for the Series B Class Units.
11.5 In this CLAUSE 11:
(a) 'STAPLING' refers to the linkage between a Series A Class Unit, a
Series B Class Unit and a Series C Class Unit applying by virtue
of the restrictions on issue, transfer and transmission of these
Units set out in this clause;
(b) 'UNSTAPLING DATE' in relation to a PP Unit means the date on
which a PP Unit will cease to be stapled to another PP Unit in
accordance with the Listing Rules or such other date as the
Manager determines in accordance with the Listing Rules.
12. UNDERWRITING OF INSTALLMENTS
12.1 The Manager may appoint any person (`UNDERWRITER') to underwrite
payment of the Uncalled Amount of PP Units.
12.2 If a Member fails to pay the Instalment of a PP Unit on the date when
such payment is due and payable in accordance with this SCHEDULE
('DEFAULTING MEMBER'), then:
(a) the Manager may immediately forfeit the PP Unit;
(b) the Manager may issue to the Underwriter (or persons nominated by
the Underwriter, including any sub-underwriter) Ordinary Units at
an Application Price equal to a price determined by the following
formula:
Application Price = (1 - D) x MV
where:
D = 0.0538
12.3 Where:
(i) the Manager has appointed an Underwriter to underwrite the
payment of the Uncalled Amount in respect of the PP Units; and
(ii) the Market Price of the Ordinary Units in a period (`PERIOD') of
10 consecutive Business Days commencing on the Business Day (if
any), occurring within 10 Business Days after the Conversion
Date, upon which the Market Price falls to a level which is less
than the Application Price for Ordinary Units issued pursuant to
paragraph (b) of CLAUSE 12.2,
then the Defaulting Member is liable to the Manager in respect of each
PP Unit in respect of which there is a default for the lesser of the
Instalment and the Conversion Number multiplied by the difference
between the Application Price for Ordinary Units issued pursuant to
paragraph (b) of CLAUSE 12.2 and Market Price (`DIFFERENCE'), and may
be sued for:
(iii) the amount of the Instalment or Difference (as the case may be)
('LIABLE AMOUNT'); and
(iv) all costs incurred by the Manager in procuring payment from the
Defaulting Member of the Liable Amount.
The Manager must ensure that where the Defaulting Member is liable to
the Manager for the amounts contemplated by paragraphs (iii) and (iv)
above, the Manager must (if requested by the Underwriter):
(A) assign to the Underwriter its rights to recover
from a Member the Liable Amount provided that any
legal proceedings assigned to the Underwriter must,
unless the Manager in its absolute discretion
otherwise determines, be brought in the name of the
Underwriter; or
(B) irrevocably and unconditionally subrogate to the
Underwriter its right against the Member to recover
from a Member the Liable Amount,
provided that the Manager receives an indemnity from the Underwriter
in a form reasonably acceptable to the Manager in respect of any loss,
costs (including legal fees on a full indemnity basis and whether
incurred by or awarded against the Manager and any stamp duty payable)
expense or damage the Manager may sustain or incur in discharging its
obligations and in exercising its powers under this paragraph.
Further, unless the Manager in its absolute discretion otherwise
determines, any liability of the Manager to the Underwriter and to
former Members ceases on an assignment or a subrogation of its rights
to 'the Underwriter under this paragraph.
For purposes of this clause, 'MARKET PRICE' means the weighted average
price at which Ordinary Units are traded on the ASX over the Period,
or, if there is no such price, then the last sale price of a Unit on
the ASX immediately prior to the commencement of the Period.
12.4 This clause does not limit in any way the powers of the Manager under
CLAUSES 7.18 and 7.19 of the Trust Deed.
13. POWERS
Subject to CLAUSE 2 of the Trust Deed and CLAUSE 14 of this Schedule,
but despite any other clause in the Trust Deed (including this
Schedule), the Manager has all power to implement and give effect to
the matters stated in this Schedule.
14. APPROVAL FROM MEMBERS HOLDING PP UNITS
While there are any PP Units on issue, if the Manager proposes to
modify any rights under the Trust Deed of Members holding Ordinary
Units and the modification would have a material adverse effect on the
rights under the Trust Deed of Members holding PP Units, then an
Ordinary Resolution of a Class meeting of Members holding PP Units
approving the proposed modification must first be passed before the
modification may be implemented.
-------------------------------------------------------------------------------
EXECUTED as a deed.
THE COMMON SEAL of WESTFIELD )
AMERICA MANAGEMENT LIMITED )
is affixed in accordance with its articles of ) (seal appears)
association in the presence of: )
/s/ XXXXXXX XXXXX /s/ XXXXXXX X. XXXXX
................................................. ...............................................
Signature of authorised person Signature of authorised person
SECRETARY DIRECTOR
................................................. ...............................................
Office held Office held
XXXXXXX XXXXX XXXXXXX X XXXXX
................................................. ...............................................
Name of authorised person (block letters) Name of authorised person (block letters)
THE COMMON SEAL of PERPETUAL )
TRUSTEE COMPANY LIMITED is )
affixed in accordance with its articles of ) (seal appears)
association in the presence of: )
/s/ XXXXX XXXXXXXX /s/ XXXXX XXXXX WHITE
................................................. ...............................................
Signature of authorised person Signature of authorised person
SECRETARY DIRECTOR
................................................. ...............................................
Office held Office held
XXXXX XXXXXXXX XXXXX XXXXX WHITE
................................................. ...............................................
Name of authorised person (block letters) Name of authorised person (block letters)
