13 Key Documents and Material Contracts

13

Section 13 Key Documents and Material Contracts

Section 13 Key Documents and Material Contracts

13.1 CONSTITUTIONS OF 360 CEIT AND 360 CEAT

360 CEIT and 360 CEAT are each governed by a constitution and applicable laws. A summary of the key rights and obligations attaching to the Stapled Units and a description of the material provisions of the Constitutions are set out below.

This summary is not exhaustive nor does it constitute a definitive statement of the terms of the Constitutions. The rights and obligations attaching to ownership of Stapled Units are also governed by the Corporations Act and general law which are not discussed in full. If you invest in the Fund, you will be bound by the terms of the Constitutions. Copies of the Constitutions are available, free of charge, on request from the Responsible Entity. Please consider the Constitutions and this PDS before investing in the Fund.

Units The beneficial interests in each Trust are divided into units. A unit confers on the unitholder an undivided beneficial interest in the assets of the Trust as a whole, subject to Trust liabilities and not in parts or single assets. A unitholder holds a unit subject to the rights, restrictions and obligations attaching to that unit.

Stapled Unit Pricing The Constitutions make provision for the issue price for Stapled Units.

No Redemption of Rights Unitholders have no redemption rights. A buy-back may be implemented at the discretion of the Responsible Entity and must satisfy the Corporations Act.

Amendments to Constitution Subject to the Corporations Act, each Constitution may be amended by a special resolution (as defined in the Corporations Act). Alternatively, the Responsible Entity can amend a Constitution by executing a deed if the Responsible Entity reasonably considers that the amendment will not adversely affect Unitholder’s rights.

Liability of Unitholder Subject to any separate agreement of acknowledgement by the Unitholder or any tax amount arising in connection with the Unitholder as set out in the Constitutions, the liability of each Unitholder is stated in the Constitutions to be limited to the amount unpaid (if any) in relation to the Unitholder’s subscription for their Stapled Units.

Responsible Entity’s powers and duties

The Responsible Entity may appoint agents or delegates

The Responsible Entity has discretion in deciding how and when to exercise its powers

Entitlement to fees/ expense reimbursement The Responsible Entity has all the legal capacity and powers both inside and outside Australia in respect of the Fund, that it is possible under the law to confer on a trustee and as though the Responsible Entity were an individual, who is the absolute owner of the assets of the Fund and acting in their personal capacity.

The Responsible Entity may authorise any person to act as its agent or delegate, to assist with its duties and functions. The Responsible Entity may include in the authorisation, provisions to protect and assist those dealing with the agent or delegate as the Responsible Entity thinks fit.

Subject to the law, the Responsible Entity may determine whether to exercise and, if so, the manner, mode and time of exercise of its duties, powers and discretions in its absolute discretion.

The Responsible Entity is entitled to be paid a fee as provided for in the Constitutions (see Section 10.3.2) and to recover expenses from Fund assets, that are incurred by it in performing its role in connection with the Fund, subject in each case to the proper performance of its duties.

Responsible Entity’s indemnity The Responsible Entity is indemnified out of the assets of the Fund and can be reimbursed for any liability incurred by it, in its own capacity or through a delegate in relation to the proper performance of any of its duties in relation to the operation, administration and management of the Fund or otherwise in connection with the Fund.

Small holdings

Meetings

Distributions/ reinvestment In certain circumstances the Responsible Entity may sell any Stapled Units held by a Unitholder that is a less than marketable parcel, as provided in the Constitution.

Meetings may be convened and conducted in accordance with the Corporations Act and the Constitutions. A resolution by a Unitholder will bind all Unitholders whether or not they voted or were present at the meeting, or whether or not they signed the resolution.

The Constitutions provide for the Responsible Entity to make distributions and the Responsible Entity may decide whether to permit the Unitholder to reinvest some or all of any distribution, to acquire Stapled Units.

Removal and retirement of the Responsible Entity The Responsible Entity may voluntarily or compulsorily retire as permitted by law, which includes by calling a meeting of Unitholder to pass a resolution with respect to appointing a new responsible entity. Unitholders may also call a meeting to vote on a resolution to remove the Responsible Entity.

Termination of the Fund The Unitholders may terminate each Trust through an extraordinary resolution (as defined in the Corporations Act). Alternatively, each Trust terminates at the earliest of a date determined by the Responsible Entity acting on a recommendation from the Investment Manager (or where no Investment Manager is appointed, the date determined by the Responsible Entity in its discretion) and advised to Unitholders by notice in writing or the date on which the Trust otherwise terminates in accordance with the applicable Constitution.

ASX Listing Rules If the decision is made to list the Fund and it is subsequently admitted to the Official List of the ASX, then, despite anything in the Constitutions, if the ASX Listing Rules prohibit an act being done, that act must not be done. Nothing in the Constitutions prevent an act being done that the ASX Listing Rules requires to be done. If the ASX 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 ASX Listing Rules require the Constitutions to contain a provision or not to contain a provision, the Constitutions are deemed to contain that provision or not to contain that provision (as the case may be). If any provision of the Constitutions are or become inconsistent with the Listing Rules, the Constitutions are deemed not to contain that provision to the extent of the inconsistency.

Allocation of proceeds of issue The Responsible Entity may apply money received for the issue of Stapled Units to the stapled entities or pay money for the redemption of buy back of Stapled Units from the stapled entities in proportion to the NAV of the Fund assets and the NAV of, or the value of the units, shares or other securities in the stapled entities worked out under their constitutions, or may apportion the receipts or payments between the stapled entities as the RE thinks fit.

Issue price of a 360 CEAT Unit or a 360 CEIT Unit as part of the Fund The allocation of the issue price of a Stapled Unit between a unit in 360 CEIT and a unit in 360 CEAT or other stapled entity will be determined as follows: (a) the responsible entity of 360 CEIT or the responsible entity of 360 CEAT may determine what part of the issue price of the Stapled Unit is to be allocated to the unit in 360 CEIT and to the unit in 360 CEAT or security in each other stapled entity; and (b) unless otherwise determined by the Responsible Entity and the Fund or the responsible entity of the stapled entities, the issue price must be allocated in proportion to the net assets (adjusted for the net market value of its investments) of the 360 CEIT and 360 CEAT or other stapled entity at the relevant date.

Stapling

Section 13 Key Documents and Material Contracts

The RE may declare by written notice that units in 360 CEIT or units in 360 CEAT are stapled to any securities in one or more other stapled entities.

While stapling applies, a unit in 360 CEIT is stapled to a unit in 360 CEAT (together comprising a Stapled Unit) and there must be no dealing or disposition of any kind in relation to a unit in 360 CEIT unless there is also an identical dealing or disposition by the same parties with the unit in 360 CEAT to which the unit in 360 CEIT is stapled.

The Responsible Entity must not consolidate, subdivide, cancel or reorganise a unit in 360 CEIT or implement a reorganisation proposal unless at the same time there is a corresponding consolidation, subdivision, cancellation or reorganisation of the unit in 360 CEAT.

In exercising its powers or discretions or performing its functions under the Constitutions or in relation to each Trust, the RE may as it sees fit: (a) take into account the interests of holders of units, share or other securities in stapled entities other than in the applicable Trust; and (b) exercise its powers and discretions or perform its functions even though to do so would be for the benefit of those persons and not for the direct benefit of applicable Trust unitholders.

The RE may in connection with the Stapling or the relationship created by the Stapling give any guarantee or indemnity or become liable for the payment of money or the performance of any contract or other obligation by any person including any stapled entity or the responsible entity of any stapled entity.

To the extent permitted by law, the Responsible Entity must cooperate with each stapled entity or the responsible entity of each stapled entity in everything relating to the Stapled Units. This includes, for example, the Responsible Entity ensuring 360 CEIT and 360 CEAT: (i) comply with the ASX Listing Rules; (ii) adopt consistent accounting, investment and valuation policies; (iii) hold Unitholders’ meetings concurrently or where necessary consecutively; (iv) agree on the terms and timing of all new issues, buy backs, bonus and rights issues, placements and redemptions; (v) coordinate the announcement and payment of distributions; (vi) coordinate all distribution or dividend reinvestment plans; and (vii) report to Unitholders consistently and at the same times.

Unstapling The Responsible Entity may by written notice declare that stapling ceases to apply to some or all of the Stapled Units. Unitholders may, by special resolution (as defined in the Corporations Act), determine that stapling will cease to apply to some or all of the Stapled Units. In addition, Stapling will automatically cease to apply to all Stapled Units if: (a) 360 CEIT or 360 CEAT is terminated by winding up; (b) the units in 360 CEIT to which the units in 360 CEAT are stapled cease for any reason to be transferable only with Units in 360 CEIT; or (c) the law prohibits the Stapling. If Stapling ceases to apply, the clauses in the Constitution which provide the consequences of stapling cease to operate in respect of that Stapled Unit. If Stapling ceases to apply to all Stapled Units, the Responsible Entity must do everything reasonably necessary to give effect to the cessation of Stapling, including: (a) amending any records of the 360 CEIT and 360 CEAT; (b) transferring any property or paying any tax; and (c) giving directions or consents to the Fund.

13.2 FUND INVESTMENT MANAGEMENT AGREEMENT

The Responsible Entity has appointed the Investment Manager on an exclusive basis, to be the Investment Manager of the Fund and has entered into the IMA.

A summary only of the material terms of the IMA are set out below.

Parties

Services

Term The Responsible Entity and the Investment Manager

The services include: • Overseeing the Fund’s investment strategy; • Actively managing and supervising the Fund’s investments; • Developing acquisition divestment strategies; and • Investment evaluation and implementation.

The initial term of the IMA is ten years. The Unitholders in the Fund may, by Special Resolution, remove the Investment Manager by written notice in any of the following circumstances: • gross negligence that has a material adverse effect on the Fund or which constitutes willful misconduct, fraud or bad faith of the relevant entity in connection with its obligations under the IMA; • insolvency of the Manager; • the Manager ceases to carry on business in relation to its activities as an investment manager; or • unremedied material breach of a provision of the IMA, by the Manager, which is not remedied that causes a material adverse effect on the Fund, (each a Cause Event) provided the Unitholders have, by Special Resolution, approved a replacement. The

Manager may terminate the IMA immediately if a Cause Event occurs in respect of the

Responsible Entity (or otherwise by giving 60 days written notice). In all other circumstances, following the expiry of the 10th anniversary of the commencement of the IMA the Responsible Entity may remove the Investment Manager on eighteen months’ notice where directed to do so by Special Resolution.

Section 13 Key Documents and Material Contracts

Fees Management Fee The Investment Manager will not be paid a base Management Fee. Performance Fee The Investment Manager is entitled to a Performance Fee from the Fund, which is calculated and on 30 June every year (commencing on 30 June 2020), and in certain other circumstances such as where the Fund is wound up or subject to a takeover. The Performance Fee is based on the total realised and unrealised returns of the Fund on Fund equity grossed up for withholding and other taxes having regard to the NAV on the Performance Fee calculation date. The Performance Fee is equal to: • to the extent that the Fund Total Return is more than 6% but not more than 8%, the amount which if deducted from the Fund Total Return on the calculation date would reduce the Fund Total Return to 6%; • where the Fund has achieved a Fund Total Return of more than 8%:

– an amount which if deducted from the Fund Total Return on the calculation date, represents the difference between a 6% Fund Total Return and a 8% Fund Total

Return; plus – 20% of the amount, which if deducted from the Fund Total Return on the calculation date would reduce the Fund Total Return to 8%.

The Investment Manager may (subject to any applicable laws) elect to take part or all of the Performance Fee in Stapled Units. The Performance Fee may be paid out of income or capital.

Expense Recovery The Investment Manager is entitled to recover all taxes, costs charges and expenses properly incurred in connection with it carrying out its functions under the IMA, including in connection with the investment and management of the assets of the Fund.

Powers and discretions In carrying out its functions under the IMA, the Investment Manager has the powers of a natural person to deal with the assets of the Fund.

Effect of Termination In circumstances where the Investment Manager has been removed other than for a Cause Event, or the Responsible Entity has terminated the IMA, the following must be paid: • any accrued (as at the date of removal) and unpaid fees and other monies payable to the Responsible Entity or the Investment Manager (as the case may be); • all charges and expenses incurred in enacting a handover to a replacement; • an amount equal to twice the Performance Fee as if it were a Performance Fee payment date; and • all Offer Costs not already reimbursed. In circumstances where the Investment Manager has been removed for a Cause Event, the following must be paid: • any accrued (as at the date of removal) and unpaid fees and other monies payable to the Responsible Entity or the Investment Manager (as the case may be); • all charges and expenses incurred in enacting a handover to a replacement; • an amount equal to one and a half times the Performance Fee as if it were a Performance Fee payment date; and • all Offer Costs not already reimbursed.

Indemnity

Conflicts

Amendment The Responsible Entity will indemnify the Investment Manager for any loss it suffers in connection with the proper performance by it under the IMA. The Investment Manager will indemnify the Fund for any loss arising as a result of its default.

The Investment Manager may provide services to other entities in conflict with its obligations under the IMA. However, the Investment Manager must maintain policies and procedures for the purposes of managing any such potential conflicts.

Subject to any relevant laws, the IMA may be amended by the written agreement between the Responsible Entity and the Investment Manager.

13.3 STAPLING DEED

Each of the constitutions of 360 CEIT and 360 CEAT contain stapling provisions which bind the unitholders of each trust and the Responsible Entity and apply whenever units in the relevant trust are stapled. Similar provisions are included in a Stapling Deed which binds 360 Capital FM Limited in its capacity as responsible entity of the 360 CEIT and in its capacity as responsible entity of 360 CEAT.

The stapling provisions principally co-ordinate dealings in Stapled Units including re-organisation, issue, disposal, redemption, buy back, unstapling and operation of a single register for Stapled Units. The Stapling Deed also includes an agreement between the responsible entities to co-operate and co-ordinate, including in relation to governance, disclosures to ASIC and Unitholders, accounting and valuation policies, valuations, meetings, announcement and payment of dividends, any distribution re-investment plans and corporate acts such as issues, placement, redemptions and buy backs.

The Stapling Deed includes “group” cost incurring and reimbursement and contemplates cross-lending between trusts. Each responsible entity must give notice to and consult with the other in relation to their intention to buy or sell assets valued at or above 5% of NTA of the acquiring/disposing fund. Similarly, neither trust will borrow or raise money except following consultation. A borrowing may be undertaken jointly even though one fund receives the proceeds. In such case, the trust receiving the proceeds indemnifies the joint borrower in respect of repayment of the loan.

The Responsible Entity agrees that while stapling continues, subject to the Corporations Act and any applicable relief, to exercise its powers and discretions in the interests of the Unitholders of the stapled trusts as a whole and not only in the interests of the holders of units in their relevant trust.

Unstapling of the Stapled Units may only occur if all of the following occur: • the Responsible Entity determines it is not contrary to the rights of Unitholders; and • the unstapling is approved by ordinary resolution of the Unitholders. Upon unstapling, the Responsible Entity will operate each of 360 CEIT and 360 CEAT as separate entities in accordance with their investment objectives and in the best interests of their respective members.