I/we acknowledge that:
- Neither the Manager or its related bodies corporate or associates nor any other person guarantees the repayment of capital or the performance of the Funds or any particular rate of return from the Funds;
- Unit holdings are subject to investment risks, including loss of income and principal invested and possible delays in repayment;
- The Manager is authorised to apply the TFN or ABN provided and it will be applied to all future applications for Unit including reinvestments unless I/we advise the Manager otherwise;
- The Manager reserves the right to not accept any Application Form in its absolute discretion;
- If my/our Application Form is incomplete or monies are dishonoured the Manager will not process my/our Application Form and will notify me/us. I acknowledge that a completed Application Form comprises a valid Application Form, Investor Identification Documentation and cleared funds in the Manager’s bank account;
- I/we have read the information on privacy and personal information contained in the IM and consent to my/our personal information being collected, used and disclosed in accordance with the IM and the Manager’s Privacy Policy;
- Investments in the funds are subject to investment risk including the possible delay in repayment and loss of income and capital invested. The Manager nor its related bodies corporates, affiliates associates or officers of any of the above entities guarantee any particular rate of return or the performance of the Funds, nor do they guarantee repayment of capital from the Fund; and
- Investments in the Funds are not deposits with or other liability of the Manager or related bodies corporate, affiliates, associates or officer s of any of the above entities.
I/we warrant that:
- I/we will comply and will continue to comply with applicable anti-money laundering and counter-terrorism financing laws and regulations, including but not limited to the law and regulations of Australia in force from time to time (AML/CTF Law);
- I/we am/are not aware and have no reason to suspect that the moneys used to fund my/our investment have been or will be derived from or related to any money laundering, terrorism financing or similar activities illegal under applicable laws or regulations (“illegal activity”) or that the proceeds of my/our investment in a Fund will be used to finance any illegal activities;
- I/we will provide the Manager with all additional information and assistance the Manager may require in order for it to comply with any AML/CTF Law; and
- I/we am/are not a politically exposed person or organisation for the purposes of any AML/CTF Law; and
- In the instance that we hold units on behalf of a US taxpayer I/we understand the US tax consequences of such an investment. I/we agree to provide the Manager with such additional tax information as it may from time to time request
I/we declare and agree that:
- All details in this Application Form are true and correct;
- I/we have received, read and understood the IM for the Fund to which my/our application relates (as may be updated from time to time) and agree to be bound by the terms of the IM and by the Trust Deed of the Fund (as amended from time to time);
- I/we understand that this Application Form does not form part of the IM;
- I/we am/are an individual over 18 years of age or I am a duly incorporated body;
- If this Application Form is signed under Power of Attorney, the Attorney declares that he/she has not received notice of revocation of that power (a certified copy of the power of attorney should be submitted with this Application Form);
- If signing on behalf of a company as a sole signatory, that I am signing as a sole director and sole secretary of the company; and
- If investing as a trustee on behalf of superannuation fund or trust that I/we am/are acting in accordance with my/our designated powers and authority under the application trust deed. In the case of a superannuation fund, I/we also confirm that it is a complying fund under the Superannuation Industry (Superannuation) Act 1993.
Electronic Execution
To: Pacific Equity Partners Investors Administration Pty Limited (ACN 161 245 263) (Intermediary) in response to an offer made by that entity to arrange for the issue of units by PEP Gateway Co-investment Investors Administration Pty Limited (ACN 655 543 105) as trustee of the Pacific Equity Partners Gateway Co-investment Trust (Trustee):
Investor or Applicant acknowledges and agrees that the Trustee has the right to accept or reject this application (in whole or in part) in its absolute discretion and that upon the Trustee accepting this application in whole or in part the Investor will be bound by this application and will be bound by, and will have the rights granted to the Investor under, the trust deed for the Pacific Equity Partners Gateway Co-investment Trust (Trust) dated on or about 12 August 2022, as amended from time to time (Trust Deed), including the indemnity provisions contained therein, including but not limited to clause 9.10 (Liability and indemnification). Capitalised terms not otherwise defined in this application have the meaning given in the Trust Deed.
The Investor acknowledges and agrees that upon the Trustee accepting this application in whole or in part but subject to the terms of the Trust Deed (including clause 6.3 (Series End Dates) thereof), the Investor is bound to subscribe for the number of Ordinary Units determined in accordance with terms of the Trust Deed in respect of that portion of the Investor's prospective Commitment to the Trust that is accepted by the Trustee, rounded down to the nearest whole number.
The Investor represents and warrants to each of the Intermediary, the Trustee and PEP Gateway Management Pty Limited (ACN 655 960 795) (Manager) that each of the statements set out below are true and accurate on the date of this application and on each day up to and including the date on which (if this application is accepted) Ordinary Units are last issued to the Investor:
1. it has the power to enter into this application, to perform its obligations under the Trust Deed and to carry out the transactions contemplated by the Trust Deed;
2. it has taken all necessary action to authorise its entry into this application and it becoming bound by the Trust Deed;
3. if it is a corporate entity, it is validly existing under the laws of its place of incorporation;
4. in respect of any financial product or financial service provided to it under or in connection with this application or the Trust Deed, the Investor is and at all times will remain a wholesale client for the purposes of sections 761G or 761GA of the Corporations Act;
5. it is an investor to whom the offer of securities, financial products or other interests may be lawfully made on the terms and conditions of this application in the jurisdiction in which the Investor resides or the jurisdiction in which the Investor receives the offer without any requirement by the Intermediary, the Manager or the Trustee to produce a disclosure document under the applicable securities laws of that place and the offer and issue of the applicable units to the Investor without such disclosure document does and will not contravene any such laws;
6. it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks (including legal, financial and tax risks) of investing in the Trust and entering into the transactions contemplated by the Trust Deed, it has completed that evaluation prior to execution of this application and it is able to bear the economic risk of such investment;
7. in applying for Ordinary Units, it has relied exclusively on its own investigations of the arrangements contemplated by the Trust Deed and has not relied on any representations or statements made by the Intermediary, the Manager, the Trustee or their respective affiliates, associates, agents, officers or employees nor on the contents of the “Pacific Equity Partners Gateway Co-investment Trust – Confidential Information Memorandum”, published in September 2022, as amended from time to time or any related or supplemental information memoranda; and
8. in connection with any borrowing or financial accommodation (including as referred to in clause 9.1(c)(x) of the Trust Deed) (Relevant Borrowing), it irrevocably agrees:
(i) that its obligations in respect of its Undrawn Commitment are not (subject to applicable law) subject to any counterclaim or rights of setoff;
(ii) that the Trustee may in its discretion determine not to exercise certain rights under the Trust Deed without the prior written consent of any third party lender under the Relevant Borrowing;
(iii) that any claim that an Investor may have against the Trustee is subordinated to all payments due to any third-party lender under the Relevant Borrowing;
(iv) to make such other representations and execute and/or deliver such documents as the Trustee may reasonably request (and the Investor agrees to comply promptly with any such requests) including, without limitation, evidence of the Investor's net assets and copies of the Investor's most recent audited financial statements; and
(v) that the Trustee has the right, at its option, to assign, or otherwise grant any Security Interest over all or part of the Undrawn Commitment of the Investor and all or any rights relating to that Undrawn Commitment and any third-party lender under the Relevant borrowing may call such Undrawn Commitment of the Investor. The Trustee may notify the Investor that such assignment or grant of Security Interest has occurred in writing, including in the manner contemplated by clause 27.4 (Notices) of the Trust Deed.
The Investor also agrees:
9. to provide any information and documents reasonably required by the Trustee or the Manager to comply with any applicable anti-money laundering or counter-terrorism financing laws including, without limitation, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Rules and any other applicable laws imposing “know your customer” or other identification checks or procedures on the Trustee or the Manager (AML/CTF Laws), provided that (except to the extent overridden by the relevant AML/CTF Laws) the Investor’s obligations under this paragraph apply only to the extent that such information is in the possession of, or otherwise readily available to, the Investor and is not subject to any confidentiality, privacy or general trust law obligations owed by the Investor to any person in relation to whom the information or documents requested relate (except to the extent that the foregoing may be overridden by the relevant AML/CTF Laws);
10. that the Trustee may decline to perform any obligation under or in connection with the Trust, the Trust Deed or any other related documents to the extent that it forms the view, in good faith and based on competent legal advice, that despite the fact that it has taken all action to comply with any applicable AML/CTF Laws, it is required or permitted to decline to perform those obligations under any such AML/CTF Laws; and
11. that to the maximum extent permitted by law, the Investor releases the Trustee, the Intermediary, the Manager and their respective officers, employees and affiliates (Released Parties) from any confidentiality, privacy or general trust law obligations that a Released Party would otherwise owe to the Investor in connection with its investment in the Trust, and to the extent to which it is able, any other applicable confidentiality and privacy laws, to the extent that the existence of these obligations or laws would otherwise prevent the Released Party from providing any information or documents requested in accordance with paragraph 9 above, or from complying with its obligations under any AML/CTF Laws.
The Investor acknowledges and agrees that:
12. the Trustee accepts this application only in its capacity as trustee of the Trust and in no other capacity. This applies in respect of past and future conduct (including omissions) relating to this application or the transactions contemplated in connection with this application;
13. the Trustee's liability (including for negligence) is limited to the extent it can be satisfied out of the Trust Property. The Trustee need not pay any such liability out of other assets or property;
14. the Investor may only do the following (but any resulting liability remains subject to paragraphs 12 to 16):
(i) prove and participate in, and otherwise benefit from, any form of insolvency administration of the Trustee but only with respect to the Trust Property;
(ii) exercise rights and remedies with respect to the Trust Property, including set-off;
(iii) enforce its security (if any) and exercise contractual rights against the Trustee in its capacity as trustee of the Trust; and
(iv) bring any other proceedings against the Trustee, seeking relief or orders that are not inconsistent with the limitations of paragraphs 12 to 16,
and may not otherwise:
(v) bring proceedings against the Trustee;
(vi) take any steps to have the Trustee placed in any form of insolvency administration (but this does not prevent the appointment of a receiver, or a receiver and manager, in respect of the Trust Property); or
(vii) seek by any means (including set-off) to have a liability of the Trustee to the Investor(including for negligence) satisfied out of any assets of the Trustee other than the Trust Property;
15. paragraphs 12, 13 and 14 apply despite any other provision in this application but do not apply with respect to any liability of the Trustee to the Investor (including for negligence) to the extent that the Trustee has no right or power to have the Trust Property applied towards satisfaction of that liability, or its right or power to do so is subject to a deduction, reduction, limit or requirement to make good, in any case as a result of the Trustee's fraud, Gross Negligence, recklessness, wilful misconduct, wilful violation of law or a material breach of the Trust Deed;
16. nothing in paragraph 15 shall make the Trustee liable to any claim for an amount greater than the amount which the Investor would have been able to claim and recover from the Trust Property in relation to the relevant liability if the:
(i) Trustee's right of indemnification out of the Trust Property has not been lost or reduced; and
(ii) the Trust Property had not been reduced,
as a result of the Trustee's fraud, Gross Negligence, recklessness, wilful misconduct, wilful violation of law or a material breach of the Trust Deed; and
17. the Trustee is not obliged to do anything or refrain from doing anything under this application (including incur any liability) if its liability is not limited in the same manner as set out in paragraphs 12 to 16.
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Electronic execution of the application is authorised under the Commonwealth Electronic Transactions Act 1999.
