THIS DEED OF CALL OPTION is made on 2013.

Transcription

1 THIS DEED OF CALL OPTION is made on BETWEEN: (1) HILDA CHIMING CHEONG, JOSEPH FOOK YAN CHEONG AND WINDESEA BUILD PTY LIMITED ACN all of Suite 124, Level 1, 8 Quay Street, Haymarket NSW 2000 ("Vendor") (2) [PURCHASER] of [Purchaser address] ("Purchaser") (3) QUANTUM FUNDS MANAGEMENT LIMITED ACN of Level 5, Fairfax House Pitt Street Sydney NSW 2000 ("Quantum"). IT IS AGREED: 1. DEFINITIONS AND INTERPRETATION Definitions 1.1 In this deed the following definitions apply: "Call Option" means the option for the Purchaser to purchase the Property from the Vendor; "Call Option Exercise Period" means the period commencing 43 days after the date of this Deed and ending at the Call Option Expiry Time; "Call Option Expiry Time" means 5pm 50 days from the date of this deed or if that day is not a business day 5pm on the next business day, unless extended by Quantum; "Call Option Fee" means $10; "Call Option Notice" means an option notice substantially in the form of the notice annexed to this deed as Schedule 1; "Closure Date" means the date (being no later than 30 June 2014) determined by Quantum by which the Minimum Subscription must occur; "Contract" means the contract for the sale of land annexed to this deed as Schedule 3; "Deposit" means the deposit payable under the Contract which is 10% of the Price; "Deposit Holder" means the deposit holder as defined in the Contract; "Development" means the development of units at 1 Wharf Road Gladesville, NSW being the property in the unregistered strata plan being part of lot A in DP85916 and Additional Land, as provided for in the Contract, Folio Identifier A/85916; "Eligible Nominee" means a person who is an associate as defined in Section 318 of the Income Tax Assessment Act 1936 of the Purchaser and nominated in writing by the Purchaser to the Vendor by way of the Nomination Notice; "Minimum Subscription" means the accepting by Quantum of $5,200,000 worth of QReal Trust Investments; "Nomination Notice" means a notice substantially in the form of the nomination notice annexed to this deed as Schedule 2; "Price" means the price calculated in accordance with special conditions in the Contract; "Property" means Unit number at 1 Wharf Road Gladesville, NSW being Lot in the unregistered strata plan being part of lot A in DP85916 and Additional Land, as provided for in the Contract, Folio Identifier A/85916; PHC/LMH/ /518306/AUM/

2 "Quantum Residential Property Trust" means the Quantum Residential Property Trust (ARSN ); and "QReal Trust Investment" means the application for GL class of units in the Quantum Residential Property Trust by the Purchaser. 2. GRANT OF CALL OPTION 2.1 In consideration of the Call Option Fee paid by the Purchaser to the Vendor (receipt of which is hereby acknowledged) the Vendor grants the Call Option to the Purchaser. 3. EXERCISE OF CALL OPTION 3.1 The Call Option may be exercised by the Purchaser (or the Eligible Nominee, as the case may be) in the manner provided in this deed at any time during the Call Option Exercise Period. 3.2 If the Call Option is not exercised by the Call Option Expiry Date the rights of the Purchaser under this deed immediately end. 3.3 To be effectively and validly exercised, the Call Option must be exercised by service on Quantum of all of the following: Call Option Notice properly executed by the following person: if the Purchaser exercises the Call Option, the Purchaser; or if the Eligible Nominee exercises the Call Option, the Eligible Nominee; if the Eligible Nominee exercises the Call Option, a Nomination Notice properly executed by the Purchaser and evidence that the nominee is an Eligible Nominee; the Deposit in favour of the Deposit Holder; and Contract executed by the Purchaser (or the Eligible Nominee, as the case may be). 4. EFFECT OF EXERCISE OF CALL OPTION 4.1 On the date of effective and valid exercise of the Call Option by the Purchaser (or the Eligible Nominee, as the case may be) the Purchaser (or the Eligible Nominee, as the case may be) shall be irrevocably bound to enter into the Contract. 4.2 The Contract will only become binding on the Vendor if Quantum provides the Purchaser (or the Eligible Nominee, as the case may be) with a copy of the Contract executed by the Vendor. 4.3 On the Call Option becoming binding on both the Vendor and the Purchaser (or the Eligible Nominee, as the case may be) the parties will for all purposes be deemed to have entered into a binding and enforceable agreement for the respective sale and purchase of the Property subject to and upon the terms and conditions of the Contract. 5. PROHIBITION AGAINST ASSIGNMENT 5.1 The Purchaser must not sell transfer or otherwise alienate any of its interest, obligations, powers or rights contained in this deed during the currency of this deed unless permitted under clause 6. PHC/LMH/ /518306/AUM/

3 5.2 If the Purchaser commits any breach of clause 5.1 by doing or attempting to do any of the acts referred to in clause 5.1 then both the following apply: The Vendor will be entitled (but not obliged) by notice in writing served on the Purchaser to terminate this deed and the Purchaser will forfeit the Call Option Fee to the Vendor The Vendor will be entitled to disregard and treat as null and void any purported exercise of the Call Option by the Purchaser (or any transferee or person claiming under or through the Purchaser). 6. NOMINEE 6.1 The Call Option may only be exercised by an Eligible Nominee of the Purchaser if (and as a condition precedent to an effective and valid exercise of the Call Option) at the same time as the Call Option Notice is served on Quantum the Nomination Notice executed by the Purchaser is also served on Quantum. 6.2 Any exercise of the Call Option by a nominee of the Purchaser will not be effective and complete unless the conditions set out in clause 3.3 have been satisfied. 6.3 If the Nominee exercises the Call Option and the Nominee is the custodian of a managed investment scheme, or a trustee of a trust, the Contract will be deemed to include the custodian's or trustee's standard limitation of liability clause. 7. CANCELLATION 7.1 This Call Option (the exercise of call rights under this deed and any Contract) is cancelled and is of no force or effect if: the subscription moneys for the QReal Trust Investment are not paid in full or any payment of subscription money for the QReal Trust Investment has not cleared within 5 business days of the delivering the application form for the QReal Trust Investment to Quantum; or if the Quantum deems that the Minimum Subscription is not met by the Closure Date. 7.2 Quantum will determine the Minimum Subscription and the Closure Date and if this Call Option is cancelled will give notice to the Purchaser and Vendor of cancellation of this Call Option after cancellation occurs. 7.3 If this Call Option is cancelled Quantum will give notice to the Purchaser and Vendor of cancellation of this Call Option after cancellation occurs. 8. NOTICES Giving notices 8.1 Any notice or communication given to a party under this deed is only given if it is in writing and sent in one of the following ways: delivered or posted to that party at its address and marked for the attention of the relevant department or officer (if any) set out below PHC/LMH/ /518306/AUM/

4 8.1.2 faxed to that party at its fax number and marked for the attention of the relevant department or officer (if any) set out below. Vendor Name: WINDESEA BUILD PTY LIMITED Address: Suite 124, Level 1, 8 Quay Street, Haymarket NSW 2000 Fax number: [Fax number] Attention: Hilda Chong Purchaser Name: Address: Fax number: Attention: Peter Gribble Time notice is given [Name] C/ Quantum Funds Management Limited, GPO Box 2593, Sydney NSW Any notice or communication is to be treated as given at the following time: If it is delivered, when it is left at the relevant address If it is sent by post, two business days after it is posted If it is sent by fax, as soon as the sender receives from the sender's fax machine a report of an error free transmission to the correct fax number. 8.3 However, if any notice or communication is given, on a day that is not a business day or after 5pm on a business day, in the place of the party to whom it is sent it is to be treated as having been given at the beginning of the next business day. 9. MISCELLANEOUS Entire agreement 9.1 This deed contains everything the parties have agreed in relation to the subject matter it deals with. Further acts 9.2 Each party must at its own expense promptly execute all documents and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete this deed and all transactions incidental to it. Joint and individual liability and benefits 9.3 Except as otherwise set out in this deed, any covenant, agreement, representation or warranty under this deed by two or more persons binds them jointly and each of them individually, and any benefit in favour of two or more persons is for the benefit of them jointly and each of them individually. PHC/LMH/ /518306/AUM/

5 EXECUTED AS A DEED: DATED: Executed by HILDA CHIMING CHEONG, JOSEPH FOOK YAN CHEONG AND WINDESEA BUILD PTY LIMITED ACN by its attorney One Wharf Investments Pty Ltd ACN duly authorised attorney and witnessed by the following persons of the attorney in accordance with S127 of the Corporations Act: Signature of director of attorney Signature of director/company secretary of attorney Executed by [ ] in the presence of: Signature of witness Signature of [ ] Name of witness (print) Executed by [ ] ACN [ ] the following persons in accordance with S127 of the Corporations Act: Signature of director Signature of director/company secretary PHC/LMH/ /518306/AUM/

6 Executed by QUANTUM FUNDS MANAGEMENT LIMITED ACN the following persons of the attorney in accordance with S127 of the Corporations Act: Signature of director Signature of director/company secretary PHC/LMH/ /518306/AUM/

7 Certificate under S66ZF Conveyancing Act 1919 Waiving Cooling Off Period I, Solicitor Of certify as follows: 1. I am a solicitor admitted to practice in New South Wales. 2. I am giving this Certificate in accordance with Section 66ZF of the Conveyancing Act 1919 with reference to a call option for the sale of a property known as Unit, 1 Whard Road, Gladesville (Call Option) from (Purchaser) from Hilda Chiming Cheong, Joseph Fook Yan Cheong and Windesea Build Pty Limited ACN (Vendor) in order that there is no cooling off period in relation to the Call Option. 3. I do not act for the Vendor in relation to this matter and am not employed in the legal practice of a solicitor acting for the Vendor in this matter nor am I a member or employee of a firm of which a solicitor acting for the Vendor in this matter is a member or employee. 4. I have explained to the Purchaser: (a) (b) (c) the effect of the Call Option and the proposed contract attached to the Call Option for the purchase of that property; the nature of this Certificate; and the effect of giving this Certificate to the Vendor, i.e. that there is no cooling off period in relation to the Call Option. Dated: / / 201 Solicitor for the Purchaser Name:. PHC/LMH/ /518306/AUM/

8 SCHEDULE 1: CALL OPTION NOTICE To: HILDA CHIMING CHEONG, JOSEPH FOOK YAN CHEONG AND WINDESEA BUILD PTY LIMITED ACN [Purchaser (or Eligible Nominee)] hereby exercises the Call Option granted pursuant to the Deed of Call Option dated [ ] made between HILDA CHIMING CHEONG, JOSEPH FOOK YAN CHEONG AND WINDESEA BUILD PTY LIMITED ACN ("Vendor") and [Purchaser (or Eligible Nominee)] ("Purchaser") in relation to the Property defined in the Deed of Call Option. Executed by [ ] ACN [ ] by the following persons of the attorney in accordance with S127 of the Corporations Act: Signature of director Signature of director/company secretary Executed by [ ] in the presence of: Signature of witness Signature of [ ] Name of witness (print) PHC/LMH/ /518306/AUM/

9 SCHEDULE 2: NOMINATION NOTICE To: HILDA CHIMING CHEONG, JOSEPH FOOK YAN CHEONG AND WINDESEA BUILD PTY LIMITED ACN [Purchaser] hereby nominates [ ] of [ ] as its nominee to exercise the Call Option granted pursuant to the Deed of Call Option dated [ ] made between HILDA CHIMING CHEONG, JOSEPH FOOK YAN CHEONG AND WINDESEA BUILD PTY LIMITED ACN ("Vendor") and [Purchaser] ("Purchaser") in relation to the Property defined in the Deed of Call Option. Executed by [ ] ACN [ ] by the following persons of the attorney in accordance with S127 of the Corporations Act: Signature of director Signature of director/company secretary Executed by [ ] in the presence of: Signature of witness Signature of [ ] Name of witness (print) PHC/LMH/ /518306/AUM/

10 SCHEDULE 3: CONTRACT PHC/LMH/ /518306/AUM/