<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) APRIL 1, 1999
OMEGA WORLDWIDE, INC.
---------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 38-3382537
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(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION FILE NO.) IDENTIFICATION NO.)
900 VICTORS WAY, SUITE 345, ANN ARBOR, MI 48108
- --------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICERS) ZIP CODE
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (734) 887-0300
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT.)
<PAGE> 2
Item 2 Acquisition or Disposition of Assets
Omega Worldwide, Inc. (the "Company") announced on April 5, 1999 that AMP Life
Limited ("AMP"), a subsidiary of AMP Group, a major provider of life insurance,
superannuation, pensions and other financial services in Australia, New Zealand
and the UK, has acquired a 45% interest in the Company's Australian enterprise,
Principal Healthcare Finance Trust ("PHFT"), an Australian unit trust. AMP
acquired 5,625,000 units for A$11,250,000. At the same time, Omega Healthcare
Investors, Inc., a real estate investment trust, acquired 1,000,000 units,
representing an 8% interest in PHFT. The Company retained 5,875,000 units,
representing a 47% interest in PHFT. The acquisition of units by AMP and OHI,
together with the purchase of subordinated debt referred to in Item 5 below, is
referred to as the "Recapitalization."
PHFT owns 40 nursing homes and 475 assisted living units in New South Wales,
Victoria, Queensland and Western Australia. All properties owned by PHFT are
leased to and operated by Moran Health Care Group (Australia) Pty Limited, the
largest for-profit operator of aged care homes in Australia.
Item 5 Other Events
Concurrent with AMP's purchase of units, AMP purchased A$40,000,000 of 5-year,
subordinated debt bearing interest at 9.1% per annum. Of that amount,
A$20,000,000 has been advanced and has been used by PHFT to repay amounts loaned
by the Company to PHFT in connection with PHFT's acquisition of certain
Australian nursing homes. The balance may be drawn within 6 months. In
connection with the initial A$20,000,000 advance, AMP has been granted options
to purchase 2,500,000 units for A$4 per unit. When AMP funds the second
A$20,000,000 advance, AMP will be granted options to purchase an additional
2,500,000 units for A$4 per unit. The options expire in April 2004. If the
exercise of options by AMP would result in AMP acquiring more than a 49.9%
interest in PHFT, AMP has granted to the Company the options to purchase, for an
amount to be agreed or as determined by a valuer, the number of units that,
would result in AMP's ownership of more than a 49.9% interest in PHFT.
<PAGE> 3
Appendix A
The following tables set forth certain historical financial information for the
Company as adjusted to give effect to the recapitalization of its formerly
wholly owned subsidiary, PHFT on April 1, 1999. The recapitalization included
the issuance of new units in PHFT, resulting in a reduction of ownership
interest in PHFT by the Company, which retains 47% ownership. In addition, A$20
million (approximately $12 million) in subordinated debt was issued by PHFT at
an interest rate of 9.1%. The subordinated debt was used to repay advances made
by the Company which funded PHFT operations on a temporary basis. The remainder
of the proceeds will be used to fund the future growth of PHFT.
The historical income statement for the period ended September 30, 1998 is also
adjusted for the contribution to the Company of common stock and subordinated
loan of Principal Healthcare Finance Limited ("PHFL") by Omega Healthcare
Investors, Inc. on April 2, 1998, as if it has occurred on October 1, 1997.
The pro forma financial information is not necessarily indicative of what the
Company's financial position or results of operations would have been if the
above events actually had occurred as of the date indicated, nor do they purport
to project the Company's financial position or results of operations at any
future date or for any future period.
OMEGA WORLDWIDE, INC.
CONDENSED PRO FORMA BALANCE SHEET
December 31, 1998
Unaudited
(In Thousands)
<TABLE>
<CAPTION>
Adjustments to
Unconsolidate
Historical Interest in Pro Forma
Consolidated (A) PHFT (B) Adjustment Pro Forma
---------------- ------------- ---------- ---------
<S> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and short-term investments $ 610 $ (352) $ $ 258
Restricted cash 9,330 (3,110) 6,220
Temporary advances to Principal Healthcare Finance Limited 17,341 17,341
Temporary advances to Principal Healthcare Finance Trust 0 14,185 (14,185)(C) 0
Other current assets 3,023 (2,457) 566
--------- --------- --------- ---------
Total current assets 30,304 8,266 (14,185) 24,385
Land and buildings, subject to triple-net lease, net of
accumulated depreciation of $355 79,472 (79,472) 0
Investment in and advances to -
Principal Healthcare Finance Limited 38,124 38,124
Principal Healthcare Finance Trust 0 3,596 2,150 (D&E) 5,746
Other assets (net) 5,022 (77) 4,945
--------- --------- --------- ---------
122,618 (75,953) 2,150 48,815
========= ========= ========= =========
Total Assets $ 152,922 $ (67,687) $ (12,035) $ 73,200
========= ========= ========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable and accrued expenses $ 3,277 $ (1,693) $ $ 1,584
Accrued income taxes 745 (216) 311 (E) 840
Bank revolving credit facility 23,500 (12,949)(F) 10,551
Non-interest bearing deferred purchase obligations 30,405 (30,405) 0
--------- --------- --------- ---------
Total current liabilities 57,927 (32,314) (12,638) 12,975
Revolving warehouse facility 35,364 (35,364) 0
--------- --------- --------- ---------
Total liabilities 93,291 (67,678) (12,638) 12,975
Shareholders' Equity:
Preferred stock 2,600 2,600
Common stock 1,226 1,226
Additional paid-in capital 52,861 52,861
Retained earnings 3,246 603 (E) 3,849
Unrealized loss on Tamaris stock (311) (311)
Cumulative translation adjustment 9 (9) 0
--------- --------- --------- ---------
Total stockholders' equity 59,631 (9) 603 60,225
========= ========= ========= =========
Total Liabilities and Stockholders' Equity $ 152,922 $ (67,687) $ (12,035) $ 73,200
========= ========= ========= =========
</TABLE>
<PAGE> 4
(A) Represents the unaudited consolidated balance sheet of Omega Worldwide,
Inc. as of December 31, 1998. It includes the results of PHFT on a
consolidated basis.
(B) Represents the adjustments which must be made to the Company's unaudited
consolidated balance sheet as of December 31, 1998 in order to report the
Company's investment in PHFT as an unconsolidated 100% owned subsidiary,
accounted for under the equity method of accounting.
Adjustments (D) through (F) below arise from the dilution of ownership in PHFT
and use of recapitalization proceeds.
(C) Represents PHFT's repayment of all outstanding advances from proceeds
received in connection with the issuance of additional units in PHFT A$15
million (approximately $9.3 million), together with the funds PHFT
received from the subordinated debt issue.
(D) Represents the Company's purchase of 875,000 additional units in PHFT on
April 1, 1999, at a cost of A$2.00 per unit, or approximately $1,085,000.
(E) Represents the Company's gain from the dilution of ownership in PHFT
(Gross gain of $1,065,000, net of costs associated with the transaction
of $151,000 and taxes of $311,000).
(F) Represents the Company's repayment of borrowings of $12,849,000 under the
Company's revolving credit facility using net cash received by the
Company from the PHFT Recapitalization. Average interest rate of
borrowings at December 31, 1998 is 6.77%.
<PAGE> 5
OMEGA WORLDWIDE, INC.
CONDENSED PRO FORMA STATEMENT OF OPERATIONS
QUARTER ENDED DECEMBER 31, 1998
Unaudited
(In Thousands, Except Per Share Amounts)
<TABLE>
<CAPTION>
Adjustments to
Unconsolidate
Historical Interest in Pro Forma
Consolidated (A) PHFT (B) Adjustments Pro Forma
---------------- ------------- ----------- ---------
<S> <C> <C> <C> <C>
Revenues:
Fee income:
Principal Healthcare Finance Limited $ 1,143 $ $ $ 1,143
Principal Healthcare Finance Trust 0 150 150
Interest:
Principal Healthcare Finance Limited 1,089 1,089
Short-term investments 226 (103) 123
Rent income 1,315 (1,315) 0
Other income 85 85
-------- -------- -------- --------
3,858 (1,268) 0 2,590
Expenses:
Direct cost of services provided 657 657
Allocation expenses from Omega Healthcare Investors, Inc. 188 188
Imputed and other interest 853 (797) (40)(C) 16
Provision for depreciation 194 (183) 11
General and administrative 365 365
-------- -------- -------- --------
2,257 (980) (40) 1,237
-------- -------- -------- --------
Earnings before equity earnings, gain from dilution and taxes 1,601 (288) 40 1,353
Equity in earnings of Principal Healthcare Finance Limited 223 223
Equity in earnings of Principal Healthcare Finance Trust 0 288 (153)(D) 135
Gain on dilution of interest in Principal Healthcare Finance Trust 0 914 (E) 914
-------- -------- -------- --------
Net earnings before Federal and foreign income taxes 1,824 0 801 2,625
Provision for Federal and foreign income taxes (533) (272)(F) (805)
-------- -------- -------- --------
Earnings before preferred stock dividends 1,291 0 529 1,820
Preferred stock dividends (52) (52)
-------- -------- -------- --------
Net earnings available to common shareholders $ 1,239 $ 0 $ 529 $ 1,768
======== ======== ======== ========
Earnings per common share, Basic $ 0.10 $ 0.14
======== ========
Earnings per common share, Dilutive $ 0.10 $ 0.14
======== ========
Average shares outstanding, Basic 12,258 12,258
======== ========
Average shares outstanding, Dilutive 12,258 12,258
======== ========
Total comprehensive income, net of taxes $ 980 $ 1,509
======== ========
</TABLE>
<PAGE> 6
(A) Represents unaudited consolidated statement of operations of Omega
Worldwide, Inc. for the three months ended December 31, 1998. It includes
the results of PHFT on a consolidated basis.
(B) Represents the adjustments required to the Company's unaudited
consolidated statement of operations for the three months ended December
31, 1998 in order to report the Company's results in its investment from
PHFT as an unconsolidated 100% owned subsidiary, accounted for under the
equity method of accounting.
Adjustments (C) through (F) below arise from the dilution of ownership in PHFT
and use of recapitalization proceeds.
(C) Represents the reduction of interest expense from pro forma repayment of
$12,849,000 of borrowings under the Company's revolving credit facility
for the period that the borrowings were outstanding.
(D) Reduction in the equity in earnings of PHFT from the Company reducing its
ownership percentage to 47%.
(E) Represents the Company's gain from the dilution of ownership in PHFT
(Gross gain of $1,065,000, net of costs associated with the transaction
of $151,000).
(F) Represents U.S. Federal income taxes at a rate of 34% applied to earnings
before taxes.
<PAGE> 7
OMEGA WORLDWIDE, INC.
CONDENSED PRO FORMA STATEMENT OF OPERATIONS
YEAR ENDED SEPTEMBER 30, 1998
Unaudited
(In Thousands, Except Per Share Amounts)
<TABLE>
<CAPTION>
Historical Annualize Unconsolidate Pro Forma
Consolidated (A) Results(B) Interest in PHFT (I) Adjustments Pro Forma
---------------- ------------ -------------------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Revenues:
Fee income:
Principal Healthcare Finance Limited $ 1,920 $ 1,442 (C) $ $ $ 3,362
Principal Healthcare Finance Trust 0 0
Interest:
Principal Healthcare Finance Limited 1,784 1,179 (D) 2,963
Short-term investments 347 (4) 343
Rent income 1,014 (1,014) 0
Other income 62 62
----------- --------- -------- -------- ---------
5,127 2,621 (1,018) 0 6,730
Expenses:
Direct cost of services provided 1,113 837 (E) 1,950
Allocation expenses from Omega Healthcare Investors,
Inc. 303 338 (F) 641
Imputed and other interest 573 (573) 0
Provision for depreciation 192 (167) 25
General and administrative 485 485
----------- --------- -------- -------- ---------
2,666 1,175 (740) 0 3,101
----------- --------- -------- -------- ---------
Earnings before equity earnings, gain from dilution and
taxes 2,461 1,446 (278) 0 3,629
Equity in earnings of Principal Healthcare Finance
Limited 421 132 (G) 553
Equity in earnings of Principal Healthcare Finance
Trust 278 (147)(K) 131
Gain on dilution of interest in Principal Healthcare
Finance Trust 914 (L) 914
----------- --------- -------- -------- ---------
Net earnings before Federal and foreign income taxes 2,882 1,578 0 767 5,227
Provision for Federal and foreign income taxes (927) (537)(H) (261)(M) (1,188)
----------- --------- -------- -------- ---------
Earnings before preferred stock dividends 1,955 1,041 0 506 4,039
Preferred stock dividends (104) (104)
----------- --------- -------- -------- ---------
Net earnings available to common shareholders $ 1,851 $ 1,041 $ 0 $ 506 $ 3,935
=========== ========= ======== ======== =========
Earnings per common share, Basic $ 0.15 $ 0.32
=========== =========
Earnings per common share, Dilutive $ 0.15 $ 0.32
=========== =========
Average shares outstanding, Basic 12,255 12,255
=========== =========
Average shares outstanding, Dilutive 12,255 12,255
=========== =========
Total comprehensive income, net of taxes $ 1,964 $ 4,039
=========== =========
</TABLE>
<PAGE> 8
(A) Represents audited consolidated statement of operations of Omega
Worldwide, Inc. for the period from April 2, 1998 (Commencement of
Operations) to September 30, 1998. It includes the results of PHFT on a
consolidated basis.
(B) Represents adjustments to reflect results of PHFL for the full year ended
September 30, 1998, as if Omega Healthcare Investors, Inc. had
contributed PHFL's common stock and subordinated loan on October 1, 1997.
(C) Represents the Company's fees from PHFL pursuant to Management Agreement
equal to 90 basis points of the aggregate book value of invested assets.
(D) Represents interest income on the subordinated loan to PHFL that bears
interest at 11.8% and increases 3% each July.
(E) Represents historical costs of services provided by Omega (UK) Limited
for the period from October 1, 1997 through April 1, 1998. Omega (UK)
Limited is a service provider for activities related to PHFL. The
reported amount represents direct costs incurred in the delivery of the
services for which fee income has been recognized.
(F) Comprises allocated share of costs of Omega Healthcare Investors, Inc.
pursuant to the provisions of a Service Agreement between Omega
Healthcare Investors, Inc. and the Company. Indirect costs incurred by
Omega Healthcare Investors, Inc. for the period from October 1, 1997
through April 1, 1998 are allocated based on the relationship of assets
under the Company's management to the combined total of those assets of
the Company and Omega Healthcare Investors, Inc.
(G) Represents the Company's share (33.375%) of net income prior to
extraordinary losses of PHFL for the period October 1, 1997 through April
1, 1998.
(H) Represents U.S. Federal income tax rate of 34% to earnings before taxes.
(I) Represents the adjustments required to the Company's audited consolidated
statement of operations for the period from April 1, 1998 (Commencement
of Operations) to September 30, 1998 in order to report the Company's
result in its investment in PHFT as an unconsolidated 100% owned
subsidiary, accounted for under the equity method of accounting.
Adjustments (J) through (L) below arise from the dilution of ownership in PHFT
and use of recapitalization proceeds.
(J) Reduction in the equity in earnings of PHFT as a result of the Company
reducing its ownership percentage to 47%.
(K) Represents the Company's gain from the dilution of ownership in PHFT
(Gross gain of $1,065,000, net of costs associated with the transaction
of $151,000).
(L) Represents U.S. Federal income taxes at a rate of 34% applied to earnings
before taxes.
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
OMEGA WORLDWIDE, INC.
April 16, 1999 By /s/ Edward C. Noble
---------------------------------------
Edward C. Noble
Chief Financial Officer
<PAGE> 10
Exhibit Index
Exhibit 10 Form of Material Transaction Agreements comprising the
following: Subscription Deed Principal Healthcare Finance Unit
Trust No. 1 among PHF No. 1 Management Pty Limited, PHF No. 3
Management Pty Limited, Principal Healthcare Finance Pty
Limited (the "Trustee"), the Company and AMP; Subscription
Deed Principal Healthcare Finance Unit Trust No. 2 among PHF
No. 1 Pty Limited, PHF No. 2 Pty Limited, the Trustee, the
Company and AMP; Deed of Loan among PHF No. 1 Pty Limited, AMP
and the Company; Principal Healthcare Finance Unit Trust No. 1
Terms of 2004 Options; Principal Healthcare Finance Unit Trust
No. 2 Terms of 2004 Options; Deed among PHF No. 3 Management
Pty Limited, PHF No. 2 Pty Limited and AMP; Advisory Agreement
among PHF No. 1 Management Pty Limited, PHF No. 1 Pty Limited
and Omega (Australia) Pty Limited.
<PAGE> 1
EXHIBIT 10
----------------------------------------
SUBSCRIPTION DEED
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
----------------------------------------
- PHILLIPS FOX -
LAWYERS
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site:
http://www.PhillipsFox.com.au
Ref: RWT 959248 JIM
<PAGE> 2
DEED dated 1999
BETWEEN PHF NO. 1 MANAGEMENT PTY LIMITED (ACN 086 801 041) of Suite 1601,
227 Elizabeth Street Sydney NSW 2000 (`TRUSTEE')
PHF NO. 3 MANAGEMENT PTY LIMITED (ACN 086 081 023) of Suite 1601,
227 Elizabeth Street Sydney NSW 2000 (`UNITHOLDER')
PRINCIPAL HEALTHCARE FINANCE PTY LIMITED (ACN 069 875 476) of
Suite 1601, 227 Elizabeth Street Sydney NSW 2000 (`SUB-TRUST
TRUSTEE')
OMEGA WORLDWIDE, INC. of 900 Victors Way, Suite 345, Ann Arbor
Michigan 48108 United States of America (`OMEGA')
AND AMP LIFE LIMITED (ACN 079 300 379) of Level 24, AMP Building, 33
Alfred Street Sydney NSW 2000 (`AMP')
RECITALS
A. The Trustee is the trustee of the Trust.
B. The Unitholder holds all of the units in the Trust.
C. The Trust holds 50% of the units in the Sub-trust.
D. The Sub-trust Trustee is the trustee of the Sub-trust.
E. Omega is the ultimate holding company of the holder of all existing units in
the Trust.
F. AMP wishes to subscribe for new units in the Trust on the terms of this
deed.
THE PARTIES AGREE AS FOLLOWS:
1 DEFINITIONS
1.1 Unless the context requires otherwise, any term used in this deed which
is defined in the Trust Deed and not specifically defined in this deed
has the meaning specified in the Trust Deed.
<PAGE> 3
2
In this deed:
`ACCOUNTING STANDARDS' means the Australian Accounting Standards from
time to time and if and to the extent that any matter is not covered by
Australian Accounting Standards means generally accepted accounting
principles applied from time to time in Australia for an entity similar
to the Trust.
`ACCOUNTS' means the management accounts of the Sub-trust as at the
Accounts Date.
`ACCOUNTS DATE' means 30 November 1998.
`ADVANCES' has the same meaning as in the Deed of Loan.
`AMENDMENT OF THE TRUST DEED' means the variation of the Trust Deed in
the form of the Deed of Variation annexed and marked `A'.
`ASSOCIATE' means a Related Body Corporate of AMP and trusts and funds
managed by AMP or a Related Body Corporate of AMP.
`BUSINESS' means the business conducted by the Trust or the Sub-trust,
as the case may require.
`BUSINESS DAY' means a day on which banks (as defined in the Banking
Act 1959 (Cth)) are open for general banking business in Sydney,
Australia, excluding Saturdays and Sundays.
`CLAIMS' includes a claim, notice, demand, action, proceeding,
litigation, investigation, judgement, damage, loss, cost, expense or
liability however arising, whether present, unascertained, immediate,
future or contingent, whether based in contract, tort or statute and
whether involving a third party or party to this deed.
`CONSIDERATION' means $5,625,000.
`DEED OF LOAN' means the deed of loan made between PHF No. 1 Pty
Limited and AMP on the date of this deed.
`EXCESS AMOUNT' means the amount by which the amount paid to AMP in
respect of all and any Claims made pursuant to clause 4 of this deed,
clause 4 of the PHF No. 2 Subscription Deed and clauses 7.2 and 9 of
the Deed of Loan exceeds $11,250,000.
<PAGE> 4
3
`FAI REDEMPTION AND SUBSCRIPTION AGREEMENT' means the agreement dated
19 June 1998 between Tanoa Pty Limited, PHF No. 1 Pty Limited, FAI
Insurances Limited, Premier Care Australia (Holdings) Pty Limited and
the Sub-trust Trustee (then named Premier Care Australia Pty Limited).
`INTELLECTUAL PROPERTY RIGHTS' means all intellectual property and
proprietary rights (whether registered or unregistered) including:
(a) business names;
(b) trade or service marks (whether registered or unregistered);
(c) any right to have information kept confidential; and
(d) patents, patent applications, drawings, discoveries, inventions,
improvements, trade secrets, technical data, formulae, computer
programs, data bases, know-how, logos, registered and unregistered
designs, design rights, copyright and similar industrial or
intellectual property rights;
`OPTIONS' means any options to acquire stapled units in the Trust and
the PHF2 Trust granted to AMP in accordance with the Deed of Loan.
`PHF NO. 2 SUBSCRIPTION DEED means the subscription deed between PHF
No. 1 Pty Limited, PHF No. 3 Pty Limited, the Sub-trust Trustee, Omega
and AMP.
PHF2 TRUST means the Principal Healthcare Finance Unit Trust No.2
established by the deed of trust dated 27 May 1998 between PHF No.1 Pty
Limited and PHF No.2 Pty Limited, as amended on 29 January 1999.
`PROPERTY' means the real property listed in SCHEDULE 5;
`RECORDS' means all original and copy records, documents, books, files,
reports, accounts, plans, correspondence, letters and papers of every
description and other material belonging or relating to or used by the
Trust or the Sub-Trust, as the case may require, including
certificates of registration, minute books, statutory books and
registers, books of account, taxation returns, title deeds, customer
lists, price lists, computer programs and software, trading and
financial records.
`RELATED BODIES CORPORATE' has the meaning in the Corporations Law.
`SUB-TRUST' means Principal Healthcare Finance Trust established by the
Sub-trust Deed.
<PAGE> 5
4
`SUB-TRUST DEED' means the deed of trust dated 11 August 1995 between
Assisted Living Holdings Pty Limited, Metlife Australia (Holdings) Pty
Limited and FAI Deposit Co. Pty Limited and as varied by deeds of
amendment dated 29 September 1998 and 27 January 1999.
`SUB-TRUST WARRANTIES' means each of the covenants, representations and
warranties given by Trustee referred to in CLAUSE 4.2 and SCHEDULE 2.
`SUB-TRUST WARRANTORS' means the Sub-trust Trustee and Omega.
`SUBSCRIPTION' means the completion of the subscription for and issue
of Units to AMP contemplated by this deed.
`SUBSCRIPTION DATE' means the date of this deed.
`SUBSCRIPTION NUMBER' means 2,812,500.
`TAX', `TAXES' or `TAXATION' means all forms of taxes, duties, imposts,
charges, withholdings, rates, levies or other governmental impositions
of whatever nature whenever and by whatever authority imposed, assessed
or charged together with all costs, charges, interest, penalties,
fines, expenses and other additional statutory charges incidental or
related to the imposition.
`TRUST' means the Principal Healthcare Finance Unit Trust No.1
established by the Trust Deed.
`TRUST DEED' means the deed of trust dated 27 May 1998 between Mindra
Pty Limited and Tanoa Pty Limited, as amended on 27 January 1999.
`TRUST WARRANTIES' means each of the covenants, representations and
warranties given by Trustee referred to in CLAUSE 4.2 and SCHEDULE 3.
`TRUST WARRANTORS' means the Trustee and Omega.
`UNITS' means units in the Trust.
`WARRANTIES' means each of the Trust Warranties and the Sub-trust
Warranties.
`WARRANTORS' means the Trustee, Sub-trust Trustee and Omega.
2 SUBSCRIPTION FOR UNITS
<PAGE> 6
5
Subject to this deed, AMP must apply in writing to subscribe for, and
pay the requisite Consideration in cleared funds to the Trustee for the
Subscription Number of Units on the Subscription Date.
3 ISSUE OF UNITS
3.1 The Trustee must, on receipt from AMP of an application for the
Subscription Number of Units and the requisite Consideration in
accordance with CLAUSE 2, issue the Subscription Number of Units to AMP
and must enter AMP's name in the Register as the holder of those Units.
3.2 The Unitholder, being the holder of more than 75% of the Units,
consents to the issue of Units to AMP pursuant to this deed.
4 WARRANTIES
4.1 AMP warrants to the Warrantors, at the date of this deed, that:
(a) it has the power and authority to enter into and perform its
obligations under this deed;
(b) the execution, delivery and performance of this deed by it will
constitute legal, valid and binding obligations of it, enforceable
in accordance with its terms;
(c) no meeting has been convened, resolution proposed, petition
presented or order made for the winding up of it and no receiver,
receiver and manager, provisional liquidator, liquidator or other
officer of a court has been appointed in relation to any of its
assets and no mortgagee has taken or attempted or indicated in any
manner any intention to take possession of any of its assets;
(d) the execution, delivery and performance of this deed will not
violate:
(i) any legislation or rule of law or regulation, authorisation,
consent or any order or decree of any governmental
authority;
(ii) its constitution or any legislation, rules or other document
constituting that party or governing its activities; or
(iii) any instrument to which it is a party or which is binding on
it or any of its assets,
<PAGE> 7
6
and will not result in the creation or imposition of any
encumbrance or restriction of any nature on any of its assets; and
(e) it is a person to whom an excluded offer, excluded invitation or
excluded issue (as these terms are defined in Law) may be made.
4.2 In consideration of AMP agreeing to subscribe for the Subscription
Number of Units:
(a) the Trust Warrantors represent and warrant to AMP that each of the
Trust Warranties is true and accurate at the date of this deed;
and
(b) the Sub-trust Warrantors represent and warrant to AMP that each of
the Sub-trust Warranties is true and accurate at the date.
4.3 Each of the Warranties is separate and independent and subject to this
CLAUSE 4 and SCHEDULE 4 is not limited by reference to any other
Warranty or any other provision in this deed.
4.4 The Warranties are given subject to matters fully and fairly disclosed
in SCHEDULE 4.
4.5 The Warrantors must immediately notify AMP in writing of any facts or
circumstances which constitute or may constitute a breach of any
Warranty.
4.6 The rights and remedies of AMP in respect of any breach of the
Warranties or of the terms of this deed are not affected by
Subscription.
4.7 The Trust Warrantors indemnify AMP from all Claims which AMP suffers or
incurs by reason of any of the Trust Warranties being untrue or
inaccurate in any material respect.
4.8 The Sub-trust Warrantors indemnify AMP from all Claims which AMP
suffers or incurs by reason of any of the Sub-trust Warranties being
untrue or inaccurate in any material respect.
4.9 A payment by the Warrantors under this CLAUSE 4 is to be treated as a
pro rata reduction in the purchase price for each Unit.
4.10 The aggregate liability of the Warrantors under or in respect of the
Warranties is limited as follows:
<PAGE> 8
7
(a) there must be disregarded for all purposes any breach of the
Warranties in respect of which the amount of the damages to which
AMP would otherwise be entitled is less than $50,000;
(b) AMP is not entitled to recover any damages in respect of any
breach or breaches of the Warranties unless the amount of damages
in respect of such breach or breaches exceeds in aggregate the sum
of $150,000;
(c) the maximum aggregate liability of the Warrantors in respect of
all and any Claims made pursuant to clause 4 of this deed, clause
4 of the PHF No. 2 Subscription Agreement and clauses 7.2 and 9 of
the Deed of Loan must not exceed the aggregate of:
(i) $11,250,000; and
(ii) all Advances advanced pursuant to the Deed of Loan on or
before the day that is 20 months from the date of this deed
and not repaid.
(d) the Warrantors have no liability in respect of anything disclosed
in SCHEDULE 4 or arising directly or indirectly from any
transaction, matter or thing disclosed in writing to AMP or known
to AMP;
(e) the Warrantors have no liability if the Claim made pursuant to
clause 4 of this deed, clause 4 of the PHF No. 2 Subscription
Agreement and clauses 7.2 and 9 of the Deed of Loan would not have
arisen but for a change in legislation made after 19 June 1998
(whether relating to taxation, rates of taxation or otherwise) or
the withdrawal of any extra statutory concession previously made
by a taxing authority (whether or not the change purports to be
effective retrospectively in whole or in part);
(f) the Warrantors have no liability to the extent that the Claim made
pursuant to clause 4 of this deed, clause 4 of the PHF No. 2
Subscription Agreement and clauses 7.2 and 9 of the Deed of Loan
arises as a result only of any change after 19 June 1998 in the
accounting bases upon which the Trust or the Sub-trust values its
assets; and
(g) the Warrantors have no liability to the extent that a Claim made
in respect of any Sub-trust Warranty or the FAI Redemption and
Subscription Agreement arises out of an act, omission or state of
affairs which occurred or existed before 19 June 1998.
4.11 If AMP becomes aware of a matter which could give rise to a Claim
pursuant to clause 4 of this deed, clause 4 of the PHF No. 2
Subscription Agreement or clauses 7.2 or 9 of the Deed of Loan the
Warrantors are not liable in respect of it unless
<PAGE> 9
8
notice of the relevant facts is given by AMP to the Warrantors as soon
as reasonably practicable and in any event within 45 days of the AMP
becoming aware of those facts.
4.12 The Warrantors will cease to have any liability under or in respect of
any Claim made pursuant to clause 4 of this deed, clause 4 of the PHF
No. 2 Subscription Agreement or clauses 7.2 or 9 of the Deed of Loan in
respect of the breach of any Warranties of which AMP has not given
notice before the expiration of 20 months after the date of this deed.
4.13 In respect of a Claim of which AMP has given notice to the Warrantors
pursuant to CLAUSE 4.11 the liability of the Warrantors in respect of
that Claim will absolutely terminate if proceedings in respect of it
have not been commenced within 3 months of service of notice of that
Claim.
4.14 To the extent that the amount paid to AMP in respect of all and any
Claims made pursuant to clause 4 of this deed, clause 4 of the PHF No.
2 Subscription Agreement and clauses 7.2 and 9 of the Deed of Loan
exceeds $11,250,000 AMP must pay to the Warrantors, in proportion to
the payments made by the Warrantors to AMP, all payments made in
accordance with clause 3 of the Deed of Loan immediately they are
received until the Excess Amount has been paid to the Warrantors.
5 APPOINTMENT OF DIRECTORS
5.1 Omega undertakes to procure that:
(a) two persons nominated by AMP will be directors of each of the
Trustee and the Sub-trust Trustee;
(b) AMP may from time to time substitute those directors; and
(c) so long as a director nominated by AMP is a director of the
Trustee or the Sub-Trustee, a resolution of the directors of the
Trustee or the Sub-trust Trustee, as the case may be, must be
decided by a majority of votes of Directors present and voting
which majority must include one Director appointed by AMP and one
Director who has not been appointed by AMP.
5.2 The obligations under CLAUSE 5.1 will cease if:
(a) AMP; and
(b) AMP's Associates;
<PAGE> 10
9
together hold less than 35% of the issued Units in the Trust.
5.3 Omega indemnifies and will keep indemnified AMP against all losses,
damages, costs and expenses suffered or sustained by AMP at any time
arising from any breach by Omega of this clause 5.
5.4 The obligations under clause 5.1 (c) will be suspended if AMP or any
Related Body Corporate of AMP engages, directly or indirectly, in the
business of financing aged care facilities in Australia by the
acquisition of the facility using the same or similar techniques used
by Omega, where the business engaged in by AMP or any Related Body
Corporate of AMP:
(i) is in Direct Competition with the Trusts' aged care businesses in
Australia; and
(ii) has a Material Adverse Effect on the Trusts' aged care businesses
in Australia.
At the time that AMP or the Related Body Corporate of AMP which engages
in such competing business ceases to engage in that competing business,
the obligations under clause 5.1(c) will again bind Omega.
5.5 'MATERIAL ADVERSE EFFECT' in this clause 5 includes where the total
aged care real property assets in the competing business are in excess
of $30 million.
5.6 'DIRECT COMPETITION' in this clause 5 will be taken to be have occurred
where the competing business competes with the Trusts in any Australian
state or territories where the Trusts have more than 15% of their
Australian aged care real property assets.
5.7 'TRUSTS' in this clause 5 means the Trust and the PHF2 Trust and any
corporation or trust which the Trust and the PHF2 Trust together,
whether directly or indirectly, control.
6 STAMP DUTY
The Trustee is responsible for payment of any stamp duty or like tax
(including any penalties) (`DUTY') payable in respect of this deed and
the Trustee indemnifies and will keep indemnified AMP in respect of
that Duty.
7 CAPACITY OF TRUSTEE AND SUB-TRUST TRUSTEE
7.1 The Trustee and the Sub-trust Trustee enter into this deed only in
their capacity as trustee of the Trust and the Sub-trust respectively
and in no other capacity. A
<PAGE> 11
10
liability arising under or in connection with this deed is limited to
and can be enforced against the Trustee or the Sub-trust Trustee only
to the extent to which it can be satisfied out of property of the
relevant trust out of which the relevant trustee is actually
indemnified for the liability. This limitation of the Trustee's and
Sub-trust Trustee's liability applies despite any other provision of
this deed and extends to all liabilities and obligations of the Trustee
and Sub-trust Trustee in any way connected with any representation,
warranty, conduct, omission, deed or transaction related to this deed.
7.2 Despite anything in this CLAUSE 7, the Trustee and Sub-trust Trustee
are liable and are not released to the extent that a liability under
this deed arises out of the Trustee's or Sub-trust Trustee's own fraud,
negligence, wilful default, breach of trust or breach of duty which
disentitles it from an indemnity out of the assets of the Trust or
Sub-trust by subrogation or otherwise.
8 NOTICE
NOTICE IN WRITING
8.1 A party giving notice or notifying under this deed must do so in
writing:
(a) directed to the recipient's address set out in SCHEDULE 1, as
varied by any notice; and
(b) hand delivered or sent by prepaid post or facsimile to that
address.
RECEIPT OF NOTICE
8.2 A notice given in accordance with CLAUSE 8.1 is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, two business days after the date of
posting; or
(c) if sent by facsimile, when the sender's facsimile system generates
a message confirming successful transmission of the total number
of pages of the notice unless, within eight business hours after
that transmission, the recipient informs the sender that it has
not received the entire notice.
9 SEVERABILITY
Part or all of any provision of this deed that is illegal or
unenforceable may be severed from this deed and the remaining
provisions of this deed continue in
<PAGE> 12
11
force.
10 COUNTERPARTS
This deed may be executed in any number of counterparts.
11 ENTIRE AGREEMENT
This deed:
(a) constitutes the entire agreement between the parties as to its
subject matter; and
(b) in relation to that subject matter, supersedes any prior
understanding or agreement between the parties and any prior
condition, warranty, indemnity or representation imposed, given or
made by a party.
12 GOVERNING LAW AND JURISDICTION
12.1 This deed is governed by the law applicable in New South Wales.
12.2 Each party submits to the non-exclusive jurisdiction of the courts of
New South Wales.
13 INTERPRETATION
In this deed, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect the
meaning of this deed;
(b) the singular includes the plural and vice versa and words
importing a gender include other genders;
(c) other grammatical forms of defined words or expressions have
corresponding meanings;
(d) a reference to a clause, paragraph, schedule or annexure is a
reference to a clause or paragraph of or schedule or annexure to
this deed and a reference to this deed includes any schedules and
annexures;
(e) a reference to a document or agreement, including this deed,
includes a reference to that document or agreement as novated,
altered or replaced
<PAGE> 13
12
from time to time;
(f) a reference to a right or obligation of any two or more persons
confers that right or imposes that obligation as the case may be
jointly and severally;
(g) a reference to any party to this deed or any other agreement or
document or to any other body or person referred to in this deed
includes that party body or person's successors or permitted
assigns;
(h) a reference to `A$', `$A', `dollar' or `$' is a reference to
Australian currency;
(i) a reference to a specific time for the performance of an
obligation is a reference to that time in the State, Territory or
other place where that obligation is to be performed;
(j) words and expressions importing natural persons include
partnerships, bodies corporate, associations, governments and
governmental and local authorities and agencies; and
(k) a reference to any legislation or statutory instrument or
regulation is construed in accordance with the Acts Interpretation
Act 1901 (Cth) or the equivalent State legislation, as applicable.
<PAGE> 14
13
EXECUTED as an deed
Signed, sealed and delivered by the
attorney of PHF NO.1 MANAGEMENT PTY LIMITED
under power of attorney registered Book
No in the presence of:
- ------------------------------- ------------------------------------
Signature of witness Signature of attorney
- ------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the
attorney of PHF NO.3 MANAGEMENT PTY LIMITED
under power of attorney registered Book
No in the
presence of:
- ------------------------------- ------------------------------------
Signature of witness Signature of attorney
- ------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the
attorney of PRINCIPAL HEALTHCARE FINANCE PTY
LIMITED under power of attorney registered Book
No in
the presence of:
- ------------------------------- ------------------------------------
Signature of witness Signature of attorney
- ------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
<PAGE> 15
14
Signed, sealed and delivered by the
attorney of OMEGA WORLDWIDE, INC. under
power of attorney registered Book
No in the
presence of:
- ------------------------------- ------------------------------------
Signature of witness Signature of attorney
- ------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
SIGNED, SEALED AND DELIVERED by )
)
and )
as joint attorneys for AMP LIFE )
LIMITED )
under power of attorney )
dated )
registered book no. )
in the presence of: )
- ------------------------------- ------------------------------------
Witness Attorney
- ------------------------------- ------------------------------------
Witness Attorney
By executing this deed the attorneys state that they have not received notice of
revocation of the power of attorney
<PAGE> 16
15
SCHEDULE 1
NOTICES
(CLAUSE 5.1)
PHF NO.1 MANAGEMENT PTY LIMITED, PHF NO.3 MANAGEMENT PTY LIMITED, PRINCIPAL
HEALTHCARE FINANCE PTY LIMITED
Address: Suite 1601, 227 Elizabeth Street, Sydney, NSW, 2000
Facsimile: 61 2 9267 0955
Attention: K.W. Moss
CC: PHILLIPS FOX
Address: 255 Elizabeth Street, Sydney, NSW, 2000
Facsimile: 61 2 9283 4144
Attention: R.W. Tobias/W.G. Chapman
OMEGA WORLDWIDE, INC.
Address: 900 Victors Way, Suite 345, Ann Arbor, Michigan, 48108, United
States of America
Facsimile: 1 734 887 0301
CC: OMEGA (UK) LIMITED
Address: 145 Cannon Street, London, EC4N, 5BP
Facsimile: 44 171 929 3555
Attention: James P. Flaherty/John Storey
AMP LIFE LIMITED
Address: Property Asset Manager No.1 Fund
AMP Asset Management Australia Limited
<PAGE> 17
16
Level 21, 33 Alfred Street Sydney 2000
Facsimile: 61 2 9257 9367
<PAGE> 18
17
SCHEDULE 2
SUB-TRUST WARRANTIES
(CLAUSE 4.2)
WARRANTY 1
(Capacity of Warrantors)
1.1 The Sub-trust Trustee has the power to enter into and perform this deed
and the deed constitutes a legal, valid and binding obligation on the
Sub-trust Trustee enforceable in accordance with its terms.
WARRANTY 2
(The Sub-trust and Sub-trust Trustee)
2.1 The Sub-trust Trustee:
(a) has full corporate power to own its properties, assets and
business and to carry on its business as now conducted; and
(b) has good and marketable title to the Property.
2.2 No meeting has been convened, resolution proposed, petition presented
or order made for the winding up of the Sub-trust Trustee or the Trust
and no receiver, receiver and manager, provisional liquidator,
liquidator or other officer of the court has been appointed or
threatened to be appointed in relation to the Trustee or the Trust any
part of its undertaking or assets.
WARRANTY 3
(Units)
3.1 The units held by the Trustee prior to the issue of units contemplated
by this deed comprise 50% of the issued units in the Sub-trust, are
fully paid and were properly issued.
3.2 There are no:
(a) options or other entitlements:
(i) over any units in the Sub-trust; or
(ii) to have units in the Sub-trust issued; or
(b) securities convertible into units in the Sub-trust.
<PAGE> 19
18
WARRANTY 4
(Financial statements)
4. So far as the Sub-trust trustee is aware the Accounts:
(a) disclose a true and fair view of the assets and liabilities, which
have arisen since 19 June 1998 , of the Sub-trust as at the
Accounts Date and of the income, expenses and results of
operations of the Sub-trust for the financial year ended on the
Accounts Date;
(b) contain proper and adequate provision for and full disclosure of
all liabilities, whether actual, contingent or otherwise, of the
Sub-trust as at the Accounts Date which have arisen since 19 June
1998; and
(c) are not affected by any unusual, extraordinary, exceptional or
non-recurring items which have arisen since 19 June 1998.
WARRANTY 5
(Liabilities)
5.1 The Sub-trust Trustee has not given any guarantees, indemnities or
letters of comfort in respect of the obligations of any person since 19
June 1998.
5.2 The Sub-trust Trustee has not, since 19 June 1998 granted or created
any mortgage, charge, debenture, lien, finance lease or other
encumbrance except as disclosed in SCHEDULE 4.
5.3 The Trust does not have any material commitments or unusual or actual
or contingent liabilities which have arisen since 19 June 1998 except
as disclosed in SCHEDULE 4.
WARRANTY 6
(No changes since Accounts Date)
6. Since the Accounts Date:
(a) there has been no material adverse change in the assets,
liabilities, turnover, earnings, financial condition, trading
position or prospects of the Sub-trust;
<PAGE> 20
19
(b) no distribution of capital or income has been declared, made, paid
or determined to be payable in respect of units in the Sub-trust
whether of cash, specific assets or otherwise;
(c) the Sub-trust Trustee has carried on the Business in the ordinary
and usual course and has not entered into any contracts or
arrangements other than in the ordinary course of carrying on the
Business;
(d) the Sub-trust Trustee has not incurred or undertaken any actual or
contingent liabilities or taxation or obligations, including
Taxation, except in the ordinary course of business since 19 June
1998;
(e) the Sub-trust Trustee has not acquired or disposed of or dealt
with any assets nor has it entered into any agreement or option to
acquire or dispose of any assets other than in the normal course
of business for full market value since 19 June 1998;
(f) except in the ordinary course of business, the Sub-trust Trustee
has not borrowed money since 19 June 1998;
(g) no resolutions have been passed by the Unitholder or directors of
the Sub-trust Trustee as trustee of the Sub-trust except in the
ordinary course of business of the Sub-trust and those necessary
to give effect to this deed.
WARRANTY 7
(Records)
7. The Records of the Sub-trust:
(a) are in the possession of the Sub-trust Trustee or under its
control;
(b) have been fully, properly and accurately kept and maintained and
are up to date in all material respects;
(c) accurately record the material details of all of the material
transactions, finances, assets and liabilities of the Sub-trust;
and
(d) as far as necessary, have been prepared in accordance with the
requirements of the Corporations Law and the Accounting Standards.
WARRANTY 8
(Debts)
<PAGE> 21
20
8. So far as the Sub-trust Trustee is aware all debts owed to the
Sub-trust at Completion other than any debts owed to the Sub-trust as
at 19 June 1998, less the amount of any relevant provision for bad and
doubtful debts made on a basis consistent with the provision for bad
and doubtful debts in the Accounts, will be good and fully collectable
in the ordinary course of business within 3 months after the date on
which the relevant invoice was first rendered.
WARRANTY 9
(Taxation)
9.1 The Sub-trust and the Sub-trust Trustee have paid, or the Accounts
fully provide for, all Taxes which the Sub-trust or the Sub-trust
Trustee are or may become liable to pay for the period from 19 June
1998 up to and including the Accounts Date.
9.2 The only liabilities for Tax of the Sub-trust and the Sub-trust Trustee
arising in respect of the period after the Accounts Date and ending on
the Subscription Date will be liabilities arising out of the normal
business and trading activities of the Sub-trust.
9.3 All Tax information required by law (including but not limited to
records, returns, elections and notices) to be lodged or kept by the
Sub-trust and the Sub-trust Trustee in respect of any period after 19
June 1998 have been lodged with the appropriate authorities or kept as
required.
9.4 The Sub-trust and the Sub-trust Trustee are not involved in any audit
of any tax returns or any dispute with any Taxation authority
responsible for the assessment and collection of Tax and the Sub-trust
Trustee is not aware of any circumstances which may give rise to such
an audit or dispute.
9.5 The Sub-trust and the Sub-trust Trustee have maintained since 19 June
1998 sufficient and accurate records and all other information required
to support all Tax information which has been or may be lodged with any
Taxation authority
9.6 Any stamp duty or other taxes of a similar nature payable on all
documents and transactions to which the Sub-trust or the Sub-trust
Trustee became a party since 19 June 1998 or that the Sub-trust or the
Sub-trust Trustee has an interest in enforcing which was entered into
since 19 June 1998, has been paid to the full amount required in all
applicable jurisdictions.
9.7 Since 19 June 1998 the Sub-trust and the Sub-trust Trustee have lodged
or supplied all information regarding Taxes as and when requested by a
Taxation authority.
<PAGE> 22
21
WARRANTY 11
(Properties and property leases)
11.1 The Property described in SCHEDULE 5 comprises all the land and
buildings owned by the Sub-trust.
11.2 The Lessee of the Property has duly and punctually performed in all
material respects and is not in breach of any material covenants or
conditions of any lease, licence or other occupational arrangement
(`LEASE') granted to it by the Sub-trust Trustee and the Sub-trust
Trustee is not aware of any circumstances which exist which may cause
any Lease to be terminated.
11.3 There is no current dispute, litigation or threatened litigation of
which the Sub-trust Trustee is aware in respect of:
(a) the Lease;
(b) the Sub-trust Trustee's title to the Property;
(c) the use of the Property; or
(d) boundary walls or fences or with respect to any easement, right
and means of access to the Property.
WARRANTY 12
(Insurance)
12.1 Each contract under which the Sub-trust Trustee is an insured party
(`INSURANCE CONTRACTS') is in force and there is no fact or
circumstance known to the Sub-trust Trustee which would lead to any of
them being terminated or ceasing to have effect.
12.2 Under the Insurance Contracts:
(a) all of the property and assets of the Sub-trust of an insurable
nature are insured in amounts representing their full replacement
or reinstatement value against fire and other risks normally
insured against; and
(b) the Sub-trust Trustee is adequately insured for such amounts as
would be maintained in accordance with prudent business practice
in respect of all risks, whether in relation to damage to
property, personal injury, public liability, product liability,
workers' compensation, business interruption insurance or
otherwise.
<PAGE> 23
22
12.3 There are no outstanding claims under or insurance premiums payable
under the Insurance Contracts.
WARRANTY 13
(Intellectual property rights)
13.1 The Sub-trust does not use or require in the Business any material
Intellectual Property Rights other than those disclosed in writing to
AMP.
13.2 The Sub-trust Trustee has not infringed the Intellectual Property
Rights of any other person in the course of operating the Business.
13.3 The Sub-trust Trustee is not aware of any allegation or basis on which
an allegation could be made that the Sub-trust has infringed any
material Intellectual Property Rights of any person or on which the
validity or effectiveness of the Intellectual Property Rights owned by
the Sub-trust may be challenged.
WARRANTY 14
(Employees and superannuation)
14 The Sub-trust does not employ any employee.
WARRANTY 15
(Contracts)
15.1 The Sub-trust Trustee has disclosed all material contracts, agreements
and arrangements to which the Sub-trust Trustee is a party.
15.2 The Sub-trust Trustee has since 19 June 1998 duly performed and
observed all its obligations, and the other parties have duly performed
and observed all their obligations, under all material contracts,
arrangements or understandings to which the Sub-trust Trustee is a
party.
WARRANTY 16
(Compliance with applicable laws)
16.1 The Business is and has since 19 June 1998 been conducted in accordance
with all applicable laws, does not contravene any laws and no
allegation of any contravention of any applicable laws is known to any
of the Sub-trust Warrantors.
16.2 So far as the Sub-trust Trustee is aware the Sub-trust Trustee holds
all statutory licences, consents, registrations, approvals, permits and
authorisations necessary for the carrying on of the Business. So far as
the Sub-trust Trustee is aware, there
<PAGE> 24
23
is no fact or matter which might prejudice the continuance or renewal,
or result in the revocation or variation in any material respect, of
any such licences, consents, registrations, approvals, permits and
other authorisations.
WARRANTY 17
(Litigation)
17.1 The Sub-trust Trustee is not involved in, or has been threatened with,
any claim, litigation, prosecution or arbitration in any court,
tribunal or otherwise and there are no facts or circumstances known to
the Sub-trust Trustee likely to give rise to any such litigation or
arbitration in relation to an event occurring after 19 June 1998.
17.2 There are no unsatisfied judgments, awards, claims or demands against
the Sub-trust Trustee of which it is aware.
17.3 The Sub-trust Trustee is not aware that it is being investigated for
any breach or alleged breach of the law.
WARRANTY 19
(Subsidiaries and Sub-trusts)
19 The Sub-trust:
(a) neither holds nor beneficially owns shares, units, or other
securities in the capital of another company or trust;
(b) has not agreed to buy any securities in any other Australian or
overseas company or trust; or
(c) is not and has not agreed to become a member of any partnership,
unincorporated association, joint venture or consortium.
WARRANTY 20
(Accuracy of disclosed information)
20.1 So far as the Sub-trust Warrantors are aware, all information other
than any forecast which the Sub-trust Warrantors or their advisers have
given to AMP or its advisers relating to the Business, activities,
affairs, assets and liabilities of the Sub-trust, as well as the facts
in the recitals and schedules was when given and is now complete and
accurate in all material respects.
20.2 All information which is known to the Sub-trust Warrantors relating to
the units in the Sub-trust the business or otherwise the subject matter
of this deed and
<PAGE> 25
24
which is material to a subscriber for units in the Trust has been
disclosed in writing to AMP other than matters of an industry nature or
which are in the public domain.
WARRANTY 21
(Due Diligence Reports)
21.1 AMP has been provided with the reports of Phillips Fox, Ernst & Young
and the Warrantors' other professional advisers referred to in SCHEDULE
4 (`DUE DILIGENCE REPORTS').
21.2 The Sub-trust Warrantors have not received any notice of any material
adverse change to the matters referred to in the Due Diligence Reports
since the dates of the Due Diligence Reports.
<PAGE> 26
25
SCHEDULE 3
TRUST WARRANTIES
(CLAUSE 4.2)
WARRANTY 1
(Capacity of Warrantors)
1.1 The Trustee has the power to enter into and perform this deed and the
deed constitutes a legal, valid and binding obligation on the Trustee
enforceable in accordance with its terms.
WARRANTY 2
(The Trust and the Trustee)
2.1 The Trustee:
(a) has full corporate power to own its properties, assets and
business and to carry on its business as now conducted; and
(a) has good and marketable title to 2,937,500 units in the Sub-trust.
2.2 No meeting has been convened, resolution proposed, petition presented
or order made for the winding up of The Trustee or the Trust and no
receiver, receiver and manager, provisional liquidator, liquidator or
other officer of the court has been appointed or threatened to be
appointed in relation to the Trustee or the Trust any part of its
undertaking or assets.
WARRANTY 3
(Units)
3.1 Prior to the issue of units contemplated by this deed the units in the
Trust, are fully paid and were properly issued and are held as follows:
(a) Unitholder 2,937,500
(b) Omega Healthcare Investors, Inc. 500,000
3.2 There are no:
(a) options or other entitlements:
(i) over any units in the Trust; or
<PAGE> 27
26
(ii) to have units in the Trust issued; or
(b) securities convertible into units in the Trust.
WARRANTY 4
(Financial position)
4. The only activities carried on by the Trust since it was created are:
(a) the issue of 2,937,500 units to the Unitholder;
(b) the acquisition of 2,500,010 units in the Sub-trust by
subscription;
(c) the issue of 500,000 units to Omega Healthcare Investors, Inc.
WARRANTY 5
(Liabilities)
5.1 The Trustee has not, as trustee of the Trust, given any guarantees,
indemnities or letters of comfort in respect of the obligations of any
person.
5.2 The Trustee has not, as trustee of the Trust, granted or created any
mortgage, charge, debenture, lien, finance lease or other encumbrance
except as disclosed in SCHEDULE 4.
5.3 The Trust does not have any material commitments or unusual or actual
or contingent liabilities except as disclosed in SCHEDULE 4.
WARRANTY 6
(No changes)
6. Since the Trust was created:
(a) no distribution of capital or income has been declared, made, paid
or determined to be payable in respect of units in the Trust
whether of cash, specific assets or otherwise;
(b) the Trustee has carried on the Business in the ordinary and usual
course and has not entered into any contracts or arrangements
other than in the ordinary course of carrying on the Business;
(c) no resolutions have been passed by the Unitholder or directors of
the Trustee, as trustee of the Trust, except as listed in SCHEDULE
4 and those necessary to give effect to this deed.
<PAGE> 28
27
WARRANTY 7
(Records)
7. The Records of the Trust:
(a) are in the possession of the Trustee or under its control;
(b) have been fully, properly and accurately kept and maintained and
are up to date in all material respects;
(c) accurately record the material details of all of the material
transactions, finances, assets and liabilities of the Trust; and
(d) as far as necessary, have been prepared in accordance with the
requirements of the Corporations Law and the Accounting Standards.
WARRANTY 8
(Litigation)
8.1 The Trustee, as trustee of the Trust, is not involved in, or has been
threatened with, any claim, litigation, prosecution or arbitration in
any court, tribunal or otherwise and there are no facts or
circumstances of which the Trustee is aware likely to give rise to any
such litigation or arbitration.
8.2 There are no unsatisfied judgments, awards, claims or demands against
the Trustee as trustee of the Trust.
8.3 The Trustee is not being investigated for any breach or alleged breach
of the law in connection with the Trust.
WARRANTY 9
(Taxation)
9.1 The Trust and the Trustee have paid, or the accounts of the trust
provide for, all Taxes which the Trust or the Trustee are or may become
liable to pay for the period from the establishment of the Trust up to
and including the Subscription Date.
9.2 All Tax information required by law (including but not limited to
records, returns, elections and notices) to be lodged or kept by the
Trust and the Trustee in respect of any period after the establishment
of the Trust have been lodged with the appropriate authorities or kept
as required.
<PAGE> 29
28
9.3 The Trust and the Trustee are not involved in any audit of any tax
returns or any dispute with any Taxation authority responsible for the
assessment and collection of Tax and the Trustee is not aware of any
circumstances which may give rise to such an audit or dispute.
9.4 The Trust and the Trustee have maintained since the establishment of
the Trust sufficient and accurate records and all other information
required to support all Tax information which has been or may be lodged
with any Taxation authority
9.5 Any stamp duty or other taxes of a similar nature payable on all
documents and transactions to which the Trust or the Trustee is a party
or that the Trust or the Trustee has an interest in enforcing other
than the FAI Redemption and Subscription Agreement has been paid to the
full amount required in all applicable jurisdictions.
9.6 Since the establishment of the Trust, the Trust and the Trustee have
lodged or supplied all information regarding Taxes as and when
requested by a Taxation authority.
WARRANTY 10
(Employees and superannuation)
10 The Trust does not employ any employee.
WARRANTY 11
(Subsidiaries and Sub-trusts)
11 Except for the units held by it in the Sub-trust, the Trust:
(a) neither holds nor beneficially owns shares, units, or other
securities in the capital of another company or trust;
(b) has not agreed to buy any securities in any other Australian or
overseas company or trust; or
(c) is not and has not agreed to become a member of any partnership,
unincorporated association, joint venture or consortium.
WARRANTY 12
(Accuracy of disclosed information)
12.1 So far as the Warrantors are aware, all information other than any
forecast which the Warrantors or their advisers have given to AMP or
its advisers relating to the Business, activities, affairs, assets and
liabilities of the Trust, as well as the facts in
<PAGE> 30
29
the recitals and schedules was when given and is now complete and
accurate in all material respects.
12.2 All information which is known to the Warrantors relating to the units
in the Trust the business or otherwise the subject matter of this deed
and which is material to a subscriber for units in the Trust has been
disclosed in writing to AMP other than matters of an industry nature or
which are in the public domain.
WARRANTY 13
(Due Diligence Reports)
13.1 AMP has been provided with the reports of Phillips Fox, Ernst & Young
and the Warrantors' other professional advisers referred to in SCHEDULE
4 (`DUE DILIGENCE REPORTS').
13.2 The Sub-trust Warrantors have not received any notice of any material
adverse change to the matters referred to in the Due Diligence Reports
since the dates of the Due Diligence Reports.
<PAGE> 31
30
SCHEDULE 4
DISCLOSURES AGAINST WARRANTIES
(CLAUSES 4.3, 4.4 AND 4.10(D))
TRUST WARRANTIES AND SUB-TRUST WARRANTIES (SCHEDULES 2 AND 3) - GENERAL
DISCLOSURE
The agreements, liabilities and obligations assumed by the Trustee as trustee
of the Trust and Sub-trust Trustee as trustee of the Sub-trust pursuant
to the following documents which comprise the Principal Transaction
Documents from the Omega/Moran/FAI/Premier Care transaction closed on
19 June 1998 (PHASE 1) and the Omega/Moran transaction closed on 12
November 1998 (PHASE 2). They were delivered to AMP (attention: Greg
Fernance) on 22 March 1999:
PHASE 1
Volume 1
1. ACQUISITION STRUCTURE
2. OMEGA (AUSTRALIA) PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
3. PHF NO.1 PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
4. PHF NO.2 PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
5. PRINCIPAL HEALTHCARE FINANCE PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
6. TRUST DEEDS
- Principal Healthcare Finance Trust (Formerly Assisted Living Unit
Trust) Trust Deed and 19 June 1998 Trust Determination
- Principal Healthcare Finance Unit Trust No.1 Trust Deed
- Principal Healthcare Finance Unit Trust No.2 Trust Deed
- Principal Healthcare Finance Unit Trust No.3 Trust Deed
- Principal Healthcare Finance Unit Trust No.4 Trust Deed
7. DUTCH BV LOAN DOCUMENTS
<PAGE> 32
31
- Beheer en Beleggingsmaatschappij Dilava BV
- Beheer en Beleggingsmaatschappij Rocla BV
8. DUTCH BV SHAREHOLDERS RESOLUTIONS
- Beheer en Beleggingsmaatschappij Dilava BV
- Beheer en Beleggingsmaatschappij Rocla BV
9. ABN FACILITY CHEQUES
Volume 2
10. LEASE
Dated 19 June 1998
11. LEASE GUARANTEE
Dated 19 June 1998
12. MORTGAGE OF SHARES - MORAN
Dated 19 June 1998
13. MORTGAGE OF UNITS - MORAN
Dated 19 June 1998
14. DEED OF FIXED AND FLOATING CHARGE - MORAN
Dated 19 June 1998
15. RELATIONSHIP AGREEMENT
Dated 19 June 1998
16. ASSUMPTION AGREEMENT
Dated 19 June 1998
17. CAPITAL CONTRIBUTION AGREEMENT
Dated 19 June 1998
18. BILL FACILITY AGREEMENT
Dated 19 June 1998
19. TRIPARTITE AGREEMENT
Dated 19 June 1998
20. DEED OF GUARANTEE AND INDEMNITY
Dated 19 June 1998
21. MORTGAGE OF DEPOSIT - PREMIER CARE
Dated 19 June 1998
22. MORTGAGE OF DEPOSIT - OMEGA WORLDWIDE
Dated 19 June 1998
23. MORTGAGE - PREMIER CARE/ABN
Dated 19 June 1998
24. DEBENTURE STOCK TRUST DEED
Dated 17 June 1998
<PAGE> 33
32
25. STOCK CERTIFICATE
26. ACCEPTANCE OF APPLICATION FOR STOCK CERTIFICATE
27. BILL - $35,000,000.
Dated 19 June 1998
28. BILL - $15,000,000.
Dated 19 June 1998
Volume 3
29. REDEMPTION and SUBSCRIPTION AGREEMENT
Dated 19 June 1998
30. PROCUREMENT AGREEMENT
Dated 19 June 1998
31. DEED OF RELEASE -
Dated 19 June 1998
- HKBA & Premier Care
32. NURSING HOME LICENCES
- NSW
33. POWERS OF ATTORNEY
- Omega Worldwide Inc.
- Tanoa Pty Limited
- Mindra Pty Limited
- PHF No.1 Pty Limited
- PHF No.2 Pty Limited
- Dilava
- Rocla
- Premier Care Australia Pty Limited (Debenture Stock Documents)
- Premier Care Australia Pty Limited (ABN Documents)
- FAI/Premier Care/Premier Care Australia (Holdings) Pty Limited
(RSA/Procure Agreement)
- Premier Care Australia Pty Limited (Post Completion)
- Premier Care Australia Pty Limited (ALU Leases)
- Moran Health Care Pty Limited/Moran Health Care Australia Pty
Limited/Moran Family
34. MINUTES - Directors Meetings for Transaction Documents
- Premier Care Australia Pty Limited
- Tanoa Pty Limited
- Mindra Pty Limited
<PAGE> 34
33
PHASE 2
Volume 1
2 ACQUISITION STRUCTURE
3 LAND SALE CONTRACT - NSW/QLD/WA
Dated 12 November 1998
3 LAND SALE CONTRACT - VIC
Dated 12 November 1998
5 OFFER TO SELL AGED CARE PLACES - NSW/QLD/WA
Dated 12 November 1998
6 STATUTORY DECLARATIONS RE OFFER TO SELL - NSW/QLD/WA
7 OFFER TO SELL AGED CARE PLACES - VIC
Dated 12 November 1998
8 STATUTORY DECLARATIONS RE OFFER TO SELL - VIC
9 RELATIONSHIP AGREEMENT
Dated 12 November 1998
10 CAPITAL CONTRIBUTION AGREEMENT
Dated 12 November 1998
Volume 2
11 LEASE - NSW/QLD/WA
Dated 12 November 1998
12 LEASE COVER SHEETS - NSW/QLD/WA
13 AGREEMENT FOR LEASE - VIC (INCORPORATING LEASE-VIC TO BE SIGNED)
Dated 12 November 1998
14 LEASE GUARANTEE - NSW/QLD/WA
Dated 12 November 1998
15 LEASE GUARANTEE - VIC
Dated 12 November 1998
16 VARIATION OF MORTGAGE OF UNITS Dated 12 November 1998
17 IRREVOCABLE DIRECTION - MORTGAGE OF UNITS Dated 12 November 1998
18 MORAN UNIT TRUST - UNIT CERTIFICATE
19 VARIATION OF CHARGE
<PAGE> 35
34
Dated 12 November 1998
20 PENDER BROS. MORTGAGE
Dated 12 November 1998
21 PENDER BROS. CHARGE
Dated 12 November 1998
22 PENDER BROS. GUARANTEE AND INDEMNITY
Dated 12 November 1998
Volume 3
23 NURSING HOME LICENCES
NSW
WA
24 POWERS OF ATTORNEY
Principal Healthcare Finance Pty Limited (General)
Principal Healthcare Finance Pty Limited (Debenture Stock Documents)
Omega Worldwide Inc.
PHF No.1 Pty Limited
Tanoa Pty Limited
25 MINUTES - DIRECTORS MEETINGS FOR TRANSACTION DOCUMENTS
Principal Healthcare Finance Pty Limited
Tanoa Pty Limited
PHF No.1 Pty Limited
26 OMEGA INDEMNITY
29 BLAKE DAWSON WALDRON TAX ADVICE
30 WAREHOUSE FACILITY AGREEMENT
Dated 12 November 1998
31 TRIPARTITE AGREEMENT
Dated 12 November 1998
32 DEED OF GUARANTEE AND INDEMNITY Dated 12 November 1998
33 DEBENTURE STOCK TRUST DEED (ONGOING ASSETS)
Dated 11 November 1998
34 STOCK CERTIFICATE DOCUMENTS
Dated 12 November 1998
35 REAL PROPERTY MORTGAGE (NSW)
Dated 12 November 1998
<PAGE> 36
35
36 REAL PROPERTY MORTGAGE (QLD)
Dated 12 November 1998
37 REAL PROPERTY MORTGAGE (WA)
Dated 12 November 1998
38 FIXED & FLOATING CHARGE (QLD) Dated 12 November 1998
39 FIXED & FLOATING CHARGE (WA) Dated 12 November 1998
40 SYNDICATION SIDE LETTER
Dated 12 November 1998
41 FEES SIDE LETTER
Dated 12 November 1998
42 ABN AMRO SYNDICATION FEE LETTER Dated 12 November 1998
43 DRAWDOWN REQUEST
Dated 12 November 1998
The matters disclosed in the due diligence reports of Phillips Fox (including
supporting documentation held by Phillips Fox on which such reports were based),
Ernst & Young and the Warrantor's other professional advisers prepared in
relation to Phase 1 and Phase 2.
THE TRUSTEE OR THE SUB-TRUST TRUSTEE WILL HAVE A LIABILITY FOR STAMP DUTY IN
RESPECT OF THE ISSUE OF 500,000 UNITS IN THE TRUST TO OMEGA HEALTHCARE
INVESTORS, INC.
The assets acquired pursuant to the Phase 1 acquisition have been 100% financed
by loans from ABN AMRO.
The disposal of the underlying property assets forming part of the Phase 1
acquisition may be subject to a substantial capital gains tax liability. The
liability will depend upon the price for which the relevant properties are sold.
Based on the capital gains tax cost base of the assets and the valuation at the
time of Phase 1 acquisition the capital gains tax liability is estimated to be
in the region of $20,000,000.
SUB-TRUST WARRANTIES (SCHEDULE 2) -SPECIFIC DISCLOSURE
1 Warranty 5.3
1.1 THE SUB-TRUST TRUSTEE HAS AGREED TO CONSIDER A DISTRIBUTION OF INCOME
AND CAPITAL TO PREMIER CARE AUSTRALIA (HOLDINGS) PTY LIMITED AND FAI
INSURANCES LIMITED RELATING TO THE
<PAGE> 37
36
ACQUISITION OF UNITS IN THE SUB-TRUST BY THE TRUSTEE. THE AMOUNT WILL
NOT EXCEED THE AMOUNT OTHERWISE PAYABLE TO MORAN HEALTH CARE AUSTRALIA
PTY LIMITED PURSUANT TO THE MORAN PHASE 1 RELATIONSHIP AGREEMENT. THIS
WILL REQUIRE AN AMENDMENT TO THE SUB-TRUST DEED.
1.2 THE SUB-TRUST TRUSTEE IS THE RECIPIENT OF A LOAN OF A$24,000,000 ON 12
NOVEMBER 1998 FROM OMEGA HEALTHCARE INVESTORS, INC. ON 31 DECEMBER 1998
THIS LOAN WAS REPLACED BY A LOAN OF THE SAME AMOUNT FROM OMEGA
WORLDWIDE, INC. AN AMOUNT OF APPROXIMATELY A$400,000 REMAINS OWING TO
OMEGA WORLDWIDE, INC. AND OMEGA HEALTHCARE INVESTORS, INC. ALL LOANS TO
OMEGA HEALTHCARE INVESTORS, INC. ARE TO BE DISCHARGED FROM THE
CONSIDERATION AND ADVANCE OBTAINED FROM AMP.
2 Warranty 6(h)
2.1 THE DIRECTORS OF THE SUB-TRUST TRUSTEE HAVE PASSED THE FOLLOWING
RESOLUTIONS SINCE THE ACCOUNTS DATE (30 NOVEMBER 1998):
(I) 2 DECEMBER 1998 - APPOINTING ROBERT TOBIAS AND WILLIAM
CHAPMAN SIGNATORIES TO ACCOUNTS HELD BY THE SUB-TRUST
TRUSTEE WITH ST GEORGE BANK LIMITED;
(II) 27 JANUARY 1999 - AMENDING THE DEFINITION OF
"ACCOUNTING PERIOD" IN THE SUB-TRUST DEED;
(III) 24 FEBRUARY 1999 - AUTHORISING THE EXECUTION OF A
POWER OF ATTORNEY IN FAVOUR OF ROBERT TOBIAS, WILLIAM
CHAPMAN AND VIRGINIA BRIGGS FOR THE EXECUTION OF
LEASES AND PARTIAL SURRENDERS OF LEASE BETWEEN THE
SUB-TRUST TRUSTEE AS LESSOR AND MORAN HEALTH CARE
(AUSTRALIA) PTY LIMITED, ACN 082 466 457 AS LESSEE;
AND
(IV) (TO BE PASSED IMMEDIATELY PRIOR TO THE EXECUTION OF
THIS DEED) - APPOINTING AMP NOMINATED DIRECTORS TO THE
BOARD OF THE SUB-TRUST TRUSTEE FROM THE TIME OF
RECEIPT OF THE CONSIDERATION; RECEIVING LOANS FROM PHF
NO.1 PTY LIMITED IN THE AMOUNT OF $19,189,256.67;
REPAYING A LOAN FROM OMEGA WORLDWIDE, INC. IN THE
AMOUNT OF $19,189,256.67.
2.2 THE UNITHOLDERS OF THE SUB-TRUST HAVE PASSED THE FOLLOWING RESOLUTION
SINCE THE ACCOUNTS DATE (30 NOVEMBER 1998):
(I) 27 JANUARY 1999 - APPROVING THE AMENDMENT OF THE
DEFINITION OF "ACCOUNTING PERIOD" IN THE SUB-TRUST
DEED.
3 WARRANTY 9.3
<PAGE> 38
37
3.1 NO TAX RETURN FOR THE SUB-TRUST OR THE SUB-TRUST TRUSTEE FOR THE YEARS
ENDED 30 JUNE 1998 OR 31 AUGUST 1998 HAS BEEN LODGED WITH THE
AUSTRALIAN TAXATION OFFICE.
4 Warranty 15.1
4.1 SUB-TRUST TRUSTEE IS PARTY TO AN ADVISORY AGREEMENT DATED 30 NOVEMBER
1998 WITH OMEGA (AUSTRALIA) PTY LIMITED.
4.2 THE TRUSTEE IS A PARTY TO AN AGREEMENT DATED 29 MARCH 1999 WITH OMEGA
(AUSTRALIA) PTY LIMITED RELATING TO THE USE OF THE NAMES "PRINCIPAL
HEALTHCARE", "PRINCIPAL HEALTH CARE", "PRINCIPAL HEALTHCARE FINANCE",
"PRINCIPAL HEALTH CARE FINANCE" AND "PHF".
4.3 SEE DISCLOSURE REGARDING WARRANTY 5.3.
TRUST WARRANTIES (SCHEDULE 3)
<PAGE> 39
38
5 Warranty 4 and 5.3
5.1 THE TRUSTEE IS PARTY TO AN ADVISORY AGREEMENT DATED 29 MARCH 1999 WITH
OMEGA (AUSTRALIA) PTY LIMITED.
5.2 THE TRUSTEE IS A PARTY TO AN AGREEMENT DATED 29 MARCH 1999 WITH OMEGA
(AUSTRALIA) PTY LIMITED RELATING TO THE USE OF THE NAMES "PRINCIPAL
HEALTHCARE", "PRINCIPAL HEALTH CARE", "PRINCIPAL HEALTHCARE FINANCE",
"PRINCIPAL HEALTH CARE FINANCE" AND "PHF".
6 Warranty 6 (c)
6.1 THE UNITHOLDERS AND TRUSTEES OF THE TRUST HAVE PASSED RESOLUTIONS TO
THE FOLLOWING EFFECT:
(I) RESOLUTIONS REGARDING THE EXECUTION OF THE TRUST DEED
AND THE SUBSCRIPTION FOR UNITS IN THE TRUST.
(II) 27 JANUARY 1999 - APPROVING THE AMENDMENT OF THE
DEFINITION OF "ACCOUNTING PERIOD" IN THE TRUST DEED.
(III) THE PROVISIONS OF THE TRUST DEED HAVE BEEN AMENDED IN
ACCORDANCE WITH THE AMENDMENT OF THE TRUST DEED.
6.2 THE TRUSTEE INTENDS TO PASS IMMEDIATELY PRIOR TO THE EXECUTION OF THIS
DEED RESOLUTIONS TO APPROVE THE EXECUTION OF AN ADVISORY AGREEMENT WITH
OMEGA (AUSTRALIA) PTY LIMITED; APPROVE THE ISSUE OF UNITS TO AMP
PURSUANT TO THIS DEED; APPROVE THE MAKING OF A LOAN OF $7,499,980 TO
PHF NO.1 PTY LIMITED (IN ITS CAPACITY AS TRUSTEE OF THE PHF2 TRUST);
APPOINT AMP NOMINATED DIRECTORS TO THE BOARD OF THE TRUSTEE FROM THE
TIME OF RECEIPT OF THE CONSIDERATION.
7 Warranty 9.3
7.1 NO TAX RETURN FOR THE TRUST OR THE TRUSTEE FOR THE YEARS ENDED 30 JUNE
1998 OR 31 AUGUST 1998 HAS BEEN LODGED WITH THE AUSTRALIAN TAXATION
OFFICE.
NOTE: THE REFERENCE TO INDIVIDUAL WARRANTIES IN THIS SCHEDULE IS FOR CONVENIENCE
ONLY AND ANY DISCLOSURE IN RESPECT OF A PARTICULAR WARRANTY MUST BE READ AS A
DISCLOSURE IN RESPECT OF ANY OTHER WARRANTY WHICH IS RELEVANT TO THE SUBJECT
MATTER OF THAT WARRANTY.
<PAGE> 40
SCHEDULE 5
PROPERTIES
<TABLE>
<CAPTION>
- --------------------------------------- ------------------------------------- -------------------------------------
PROPERTY ADDRESS FOLIO IDENTIFIER
- --------------------------------------- ------------------------------------- -------------------------------------
<S> <C> <C>
Annandale Nursing Home 76 Johnstone Street, Annandale Auto Consol 9867-46
NSW 2038
- --------------------------------------- ------------------------------------- -------------------------------------
Armon Nursing Home 42 Croydon Street, Petersham NSW 1/110079
2049
- --------------------------------------- ------------------------------------- -------------------------------------
Bathurst Nursing Home 61 Boyd Street, Kelso NSW 2795 11/806355
- --------------------------------------- ------------------------------------- -------------------------------------
Berkeley Vale Retirement Village 8 Lorraine Avenue, Berkeley Vale, Vol 8624 Folio 130
NSW.
- --------------------------------------- ------------------------------------- -------------------------------------
Bossley Park Nursing Home 52-64 Quarry Street, Bossley Park 8/713734
NSW 2176
- --------------------------------------- ------------------------------------- -------------------------------------
Canterbury District Nursing Home 20 Albert Street, Campsie NSW 2194 1/549851
- --------------------------------------- ------------------------------------- -------------------------------------
Cherrywood Grove Nursing Home & 152-170 Sieben Drive, Orange, NSW 27/837884
Retirement Village
- --------------------------------------- ------------------------------------- -------------------------------------
Crest Nursing Home 11 Johnstone Street, Annandale 1/913045 and 1/913044
NSW 2038
- --------------------------------------- ------------------------------------- -------------------------------------
Dubbo Nursing Home 80 Muller Street, Dubbo NSW 2830 12/592842
- --------------------------------------- ------------------------------------- -------------------------------------
Edgewood Park Retirement Village & Beach Road, Batemans Bay, NSW Vol 8643 Folio 95
Nursing Home
- --------------------------------------- ------------------------------------- -------------------------------------
Endeavour Retirement Village & 79 Hawkesbury Road, Springwood, NSW Vol 8641 Folio 117
Nursing Home
- --------------------------------------- ------------------------------------- -------------------------------------
Fernleigh Nursing Home 8 Sherbrooke Road, West Ryde NSW 4/201/757 and 1/201757
2114
- --------------------------------------- ------------------------------------- -------------------------------------
Glenmere Retirement Village & Nursing Wahroonga Road, Kanwal, Wyong, NSW Vol 8644 Folio 38
Home
- --------------------------------------- ------------------------------------- -------------------------------------
Hillside Retirement Village 3 Violet Town Road, Mount Hutton, Vol 8638 Folio 198
NSW.
- --------------------------------------- ------------------------------------- -------------------------------------
Killarney Vale Retirement Village & Daniel Close, Killarney Vale, 22/794053; Vol 8641 Folio 95;
Nursing Home Wyong, NSW 13/732182
- --------------------------------------- ------------------------------------- -------------------------------------
Maitland Nursing Home Broughton Street, Rutherford NSW 5/733509
2320
- --------------------------------------- ------------------------------------- -------------------------------------
Mudgee Nursing Home Dennison Street, Mudgee NSW 2850 1/261314
- --------------------------------------- ------------------------------------- -------------------------------------
Murwillumbah Nursing Home Off North Arm Road, Murwillumbah 1/786640
NSW 2484
- --------------------------------------- ------------------------------------- -------------------------------------
Narrandera Nursing Home Chantilly Street, Narrendera NSW 2/582847 and
- --------------------------------------- ------------------------------------- -------------------------------------
</TABLE>
<PAGE> 41
<TABLE>
- --------------------------------------- ------------------------------------- -------------------------------------
<S> <C> <C>
2700 308/257212
- --------------------------------------- ------------------------------------- -------------------------------------
Norah Head Nursing Home 63 Palomar Parade, Toukley NSW 721/26247 and 509/26247
2263
- --------------------------------------- ------------------------------------- -------------------------------------
Oban Nursing Home 23 Kangaroo Street, Raymond 2/37509, 3/37509, 4/37509,
Terrace, NSW. 5/37509, 6/37509, 16/37509;
17/111509
- --------------------------------------- ------------------------------------- -------------------------------------
Quakers Hill Nursing Home 35 Hambledon Road, Quakers Hill 10/860042
NSW 2763
- --------------------------------------- ------------------------------------- -------------------------------------
Seaside Retirement Village & Nursing Garden Street, Warriewood, NSW. 51/SP22115
Home
- --------------------------------------- ------------------------------------- -------------------------------------
Shoalhaven Nursing Home Brinawarr Street, Bomaderry NSW 2541 5/614886
- --------------------------------------- ------------------------------------- -------------------------------------
Stanmore Nursing Home 66 Cambridge Street, Stanmore NSW 31/7/1
2048
- --------------------------------------- ------------------------------------- -------------------------------------
Terranora Valley Retirement Village & Carramar Drive, Tweed Heads, NSW Vol 8644 Folio 37; 11/736515
Nursing Home
- --------------------------------------- ------------------------------------- -------------------------------------
Caloundra Nursing Home Lyon Street, Caloundra QLD 4551 Title Reference 16565083
RP 177466
- --------------------------------------- ------------------------------------- -------------------------------------
Nambour Nursing Home 9 Princess Crescent, Nambour QLD Title Reference 16565083
4560 RP 183823
- --------------------------------------- ------------------------------------- -------------------------------------
Apple Cross Nursing Home Riverway, Apple Cross WA 6153 Vol. 1964, Fol. 640
- --------------------------------------- ------------------------------------- -------------------------------------
Bunbury Nursing Home 39 Hayes Street, Bunbury WA 6230 Vol. 1534, Fol. 995
- --------------------------------------- ------------------------------------- -------------------------------------
Geraldton Nursing Home 20 Milford Street, Geraldton WA Vol. 1539, Fol. 329;
6530 Vol. 1890, Fol. 506
- --------------------------------------- ------------------------------------- -------------------------------------
Kalgoorlie Nursing Home Dugan Street, Kalgoorlie WA 6430 Vol. 1597, Fol. 789
- --------------------------------------- ------------------------------------- -------------------------------------
Narrogin Nursing Home 52 Williams Road, Narrogin WA 6312 Vol. 1634, Fol. 809
- --------------------------------------- ------------------------------------- -------------------------------------
Murray River Nursing Home Cnr Coolabah & Boundary Roads, Vol. 1697, Fol. 190
Dudley Park, Mandurah WA 6210
- --------------------------------------- ------------------------------------- -------------------------------------
Armadale Nursing Centre 21 Angelo Street, Armadale WA 6112 Vol. 1951, Fol. 293
- --------------------------------------- ------------------------------------- -------------------------------------
</TABLE>
<PAGE> 42
ANNEXURE A
DEED OF AMENDMENT OF TRUST DEED
<PAGE> 43
----------------------------------------
SUBSCRIPTION DEED
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 2
----------------------------------------
- PHILLIPS FOX -
LAWYERS
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site:
http://www.PhillipsFox.com.au
Ref: RWT 959248 JIM
<PAGE> 44
1
DEED dated 1999
BETWEEN PHF NO. 1 PTY LIMITED (ACN 082 747 313) of Suite 1601, 227
Elizabeth Street Sydney NSW 2000 (`TRUSTEE')
PHF NO. 2 PTY LIMITED (ACN 082 747 288) of Suite 1601, 227
Elizabeth Street Sydney NSW 2000 (`UNITHOLDER')
PRINCIPAL HEALTHCARE FINANCE PTY LIMITED (ACN 069 875 476) of
Suite 1601, 227 Elizabeth Street Sydney NSW 2000 (`SUB-TRUST
TRUSTEE')
OMEGA WORLDWIDE, INC. of 900 Victors Way, Suite 345, Ann Arbor
Michigan 48108 United States of America (`OMEGA')
AND AMP LIFE LIMITED (ACN 079 300 379) of Level 24, AMP Building,
33 Alfred Street Sydney NSW 2000 (`AMP')
RECITALS
A. The Trustee is the trustee of the Trust.
B. The Unitholder holds all of the units in the Trust.
C. The Trust holds 50% of the units in the Sub-trust.
D. The Sub-trust Trustee is the trustee of the Sub-trust.
E. Omega is the ultimate holding company of the holder of all existing
units in the Trust.
F. AMP wishes to subscribe for new units in the Trust on the terms of this
deed.
THE PARTIES AGREE AS FOLLOWS:
1 DEFINITIONS
1.1 Unless the context requires otherwise, any term used in this deed which
is defined in the Trust Deed and not specifically defined in this deed
has the meaning specified in the Trust Deed.
In this deed:
`ACCOUNTING STANDARDS' means the Australian Accounting Standards from
time to time and if and to the extent that any matter is not covered by
Australian Accounting Standards means generally
<PAGE> 45
2
accepted accounting principles applied from time to time in Australia
for an entity similar to the Trust.
`ACCOUNTS' means the management accounts of the Sub-trust as at the
Accounts Date.
`ACCOUNTS DATE' means 30 November 1998.
`ADVANCES' has the same meaning as in the Deed of Loan.
`AMENDMENT OF THE TRUST DEED' means the variation of the Trust Deed in
the form of the Deed of Variation annexed and marked `A'.
`ASSOCIATE' means a Related Body Corporate of AMP and trusts and funds
managed by AMP or a Related Body Corporate of AMP.
`BUSINESS' means the business conducted by the Trust or the Sub-trust,
as the case may require.
`BUSINESS DAY' means a day on which banks (as defined in the Banking
Act 1959 (Cth)) are open for general banking business in Sydney,
Australia, excluding Saturdays and Sundays.
`CLAIMS' includes a claim, notice, demand, action, proceeding,
litigation, investigation, judgement, damage, loss, cost, expense or
liability however arising, whether present, unascertained, immediate,
future or contingent, whether based in contract, tort or statute and
whether involving a third party or party to this deed.
`CONSIDERATION' means $5,625,000.
`DEED OF LOAN' means the deed of loan made between the Trustee and AMP
on the date of this deed.
`EXCESS AMOUNT' means the amount by which the amount paid to AMP in
respect of all and any Claims made pursuant to clause 4 of this deed,
clause 4 of the PHF No. 1 Subscription Deed and clauses 7.2 and 9 of
the Deed of Loan exceeds $11,250,000.
`FAI REDEMPTION AND SUBSCRIPTION AGREEMENT' means the agreement dated
19 June 1998 between Tanoa Pty Limited, the Trustee, FAI Insurances
Limited, Premier Care Australia (Holdings) Pty Limited and the
Sub-trust Trustee (then named Premier Care Australia Pty Limited).
`INTELLECTUAL PROPERTY RIGHTS' means all intellectual property and
proprietary rights (whether registered or unregistered) including:
(a) business names;
(b) trade or service marks (whether registered or unregistered);
<PAGE> 46
3
(c) any right to have information kept confidential; and
(d) patents, patent applications, drawings, discoveries,
inventions, improvements, trade secrets, technical data, formulae,
computer programs, data bases, know-how, logos, registered and
unregistered designs, design rights, copyright and similar industrial
or intellectual property rights;
`OPTIONS' means any options to acquire stapled units in the Trust and
the PHF1 Trust granted to AMP in accordance with the Deed of Loan.
`PHF NO.1 SUBSCRIPTION DEED means the subscription deed between PHF No.
1 Management Pty Limited, PHF No. 3 Management Pty Limited the
Sub-trust Trustee, Omega and AMP.
PHF1 TRUST means the Principal Healthcare Finance Unit Trust No.1
established by the deed of trust dated 27 May 1998 between Tanoa Pty
Limited and Mindra Pty Limited, as amended on 27 January 1999.
`PROPERTY' means the real property listed in SCHEDULE 5;
`RECORDS' means all original and copy records, documents, books, files,
reports, accounts, plans, correspondence, letters and papers of every
description and other material belonging or relating to or used by the
Trust or the Sub- Trust, as the case may require, including
certificates of registration, minute books, statutory books and
registers, books of account, taxation returns, title deeds, customer
lists, price lists, computer programs and software, trading and
financial records.
`RELATED BODIES CORPORATE' has the meaning in the Corporations Law.
`SUB-TRUST' means Principal Healthcare Finance Trust established by the
Sub-trust Deed.
`SUB-TRUST DEED' means the deed of trust dated 11 August 1995 between
Assisted Living Holdings Pty Limited, Metlife Australia (Holdings) Pty
Limited and FAI Deposit Co. Pty Limited and as varied by deeds of
amendment dated 29 September 1998 and 27 January 1999.
`SUB-TRUST WARRANTIES' means each of the covenants, representations and
warranties given by Trustee referred to in CLAUSE 4.2 and SCHEDULE 2.
`SUB-TRUST WARRANTORS' means the Sub-trust Trustee and Omega.
`SUBSCRIPTION' means the completion of the subscription for and issue
of Units to AMP contemplated by this deed.
`SUBSCRIPTION DATE' means the date of this deed.
`SUBSCRIPTION NUMBER' means 2,812,500.
<PAGE> 47
4
`TAX', `TAXES' or `TAXATION' means all forms of taxes, duties, imposts,
charges, withholdings, rates, levies or other governmental impositions
of whatever nature whenever and by whatever authority imposed, assessed
or charged together with all costs, charges, interest, penalties,
fines, expenses and other additional statutory charges incidental or
related to the imposition.
`TRUST' means the Principal Healthcare Finance Unit Trust No.2
established by the Trust Deed.
`TRUST DEED' means the deed of trust dated 27 May 1998 between the
Trustee and the Unitholder, as amended on 29 January 1999.
`TRUST WARRANTIES' means each of the covenants, representations and
warranties given by Trustee referred to in CLAUSE 4.2 and SCHEDULE 3.
`TRUST WARRANTORS' means the Trustee and Omega.
`UNITS' means units in the Trust.
`WARRANTIES' means each of the Trust Warranties and the Sub-trust
Warranties.
`WARRANTORS' means the Trustee, Sub-trust Trustee and Omega.
2 SUBSCRIPTION FOR UNITS
Subject to this deed, AMP must apply in writing to subscribe for, and
pay the requisite Consideration in cleared funds to the Trustee for the
Subscription Number of Units on the Subscription Date.
3 ISSUE OF UNITS
3.1 The Trustee must, on receipt from AMP of an application for the
Subscription Number of Units and the requisite Consideration in
accordance with CLAUSE 2, issue the Subscription Number of Units to AMP
and must enter AMP's name in the Register as the holder of those Units.
3.2 The Unitholder, being the holder of more than 75% of the Units,
consents to the issue of Units to AMP pursuant to this deed.
4 WARRANTIES
4.1 AMP warrants to the Warrantors, at the date of this deed, that:
(a) it has the power and authority to enter into and perform its
obligations under this deed;
(b) the execution, delivery and performance of this deed by it
will constitute legal, valid and binding obligations of it,
enforceable in accordance with its terms;
<PAGE> 48
5
(c) no meeting has been convened, resolution proposed, petition
presented or order made for the winding up of it and no
receiver, receiver and manager, provisional liquidator,
liquidator or other officer of a court has been appointed in
relation to any of its assets and no mortgagee has taken or
attempted or indicated in any manner any intention to take
possession of any of its assets;
(d) the execution, delivery and performance of this deed will not
violate:
(i) any legislation or rule of law or regulation,
authorisation, consent or any order or decree of any
governmental authority;
(ii) its constitution or any legislation, rules or other
document constituting that party or governing its
activities; or
(iii) any instrument to which it is a party or which is
binding on it or any of its assets,
and will not result in the creation or imposition of
any encumbrance or restriction of any nature on any
of its assets; and
(e) it is a person to whom an excluded offer, excluded invitation
or excluded issue (as these terms are defined in Law) may be
made.
4.2 In consideration of AMP agreeing to subscribe for the Subscription
Number of Units:
(a) the Trust Warrantors represent and warrant to AMP that each of
the Trust Warranties is true and accurate at the date of this
deed; and
(b) the Sub-trust Warrantors represent and warrant to AMP that
each of the Sub-trust Warranties is true and accurate at the
date.
4.3 Each of the Warranties is separate and independent and subject to this
CLAUSE 4 and SCHEDULE 4 is not limited by reference to any other
Warranty or any other provision in this deed.
4.4 The Warranties are given subject to matters fully and fairly disclosed
in SCHEDULE 4.
4.5 The Warrantors must immediately notify AMP in writing of any facts or
circumstances which constitute or may constitute a breach of any
Warranty.
4.6 The rights and remedies of AMP in respect of any breach of the
Warranties or of the terms of this deed are not affected by
Subscription.
4.7 The Trust Warrantors indemnify AMP from all Claims which AMP suffers or
incurs by reason of any of the Trust Warranties being untrue or
inaccurate in any material respect.
<PAGE> 49
6
4.8 The Sub-trust Warrantors indemnify AMP from all Claims which AMP
suffers or incurs by reason of any of the Sub-trust Warranties being
untrue or inaccurate in any material respect.
4.9 A payment by the Warrantors under this CLAUSE 4 is to be treated as a
pro rata reduction in the purchase price for each Unit.
4.10 The aggregate liability of the Warrantors under or in respect of the
Warranties is limited as follows:
(a) there must be disregarded for all purposes any breach of the
Warranties in respect of which the amount of the damages to
which AMP would otherwise be entitled is less than $50,000;
(b) AMP is not entitled to recover any damages in respect of any
breach or breaches of the Warranties unless the amount of
damages in respect of such breach or breaches exceeds in
aggregate the sum of $150,000;
(c) the maximum aggregate liability of the Warrantors in respect
of all and any Claims made pursuant to clause 4 of this deed,
clause 4 of the PHF No. 1 Subscription Agreement and clauses
7.2 and 9 of the Deed of Loan must not exceed the aggregate
of:
(i) $11,250,000; and
(ii) all Advances advanced pursuant to the Deed of Loan on
or before the day that is 20 months from the date of
this deed and not repaid.
(d) the Warrantors have no liability in respect of anything
disclosed in SCHEDULE 4 or arising directly or indirectly from
any transaction, matter or thing disclosed in writing to AMP
or known to AMP;
(e) the Warrantors have no liability if the Claim made pursuant to
clause 4 of this deed, clause 4 of the PHF No. 1Subscription
Agreement and clauses 7.2 and 9 of the Deed of Loan would not
have arisen but for a change in legislation made after 19 June
1998 (whether relating to taxation, rates of taxation or
otherwise) or the withdrawal of any extra statutory concession
previously made by a taxing authority (whether or not the
change purports to be effective retrospectively in whole or in
part);
(f) the Warrantors have no liability to the extent that the Claim
made pursuant to clause 4 of this deed, clause 4 of the PHF
No. 1 Subscription Agreement and clauses 7.2 and 9 of the Deed
of Loan arises as a result only of any change after 19 June
1998 in the accounting bases upon which the Trust or the
Sub-trust values its assets; and
(g) the Warrantors have no liability to the extent that a Claim
made in respect of any Sub-trust Warranty or the FAI
Redemption and Subscription Agreement arises out of an act,
omission or state of affairs which occurred or existed before
19 June 1998.
<PAGE> 50
7
4.11 If AMP becomes aware of a matter which could give rise to a Claim
pursuant to clause 4 of this deed, clause 4 of the PHF No. 1
Subscription Agreement or clauses 7.2 or 9 of the Deed of Loan the
Warrantors are not liable in respect of it unless notice of the
relevant facts is given by AMP to the Warrantors as soon as reasonably
practicable and in any event within 45 days of the AMP becoming aware
of those facts.
4.12 The Warrantors will cease to have any liability under or in respect of
any Claim made pursuant to clause 4 of this deed, clause 4 of the PHF
No. 1 Subscription Agreement or clauses 7.2 or 9 of the Deed of Loan in
respect of the breach of any Warranties of which AMP has not given
notice before the expiration of 20 months after the date of this deed.
4.13 In respect of a Claim of which AMP has given notice to the Warrantors
pursuant to CLAUSE 4.11 the liability of the Warrantors in respect of
that Claim will absolutely terminate if proceedings in respect of it
have not been commenced within 3 months of service of notice of that
Claim.
4.14 To the extent that the amount paid to AMP in respect of all and any
Claims made pursuant to clause 4 of this deed, clause 4 of the PHF No.
1 Subscription Agreement and clauses 7.2 and 9 of the Deed of Loan
exceeds $11,250,000 AMP must pay to the Warrantors, in proportion to
the payments made by the Warrantors to AMP, all payments made in
accordance with clause 3 of the Deed of Loan immediately they are
received until the Excess Amount has been paid to the Warrantors.
5 APPOINTMENT OF DIRECTORS
5.1 Omega undertakes to procure that:
(a) two persons nominated by AMP will be directors of the Trustee;
(b) AMP may from time to time substitute those directors; and
(c) so long as a director nominated by AMP is a director of the
Trustee, a resolution of the directors of the Trustee must be
decided by a majority of votes of Directors present and voting
which majority must include one Director appointed by AMP and
one Director who has not been appointed by AMP.
5.2 The obligations under CLAUSE 5.1 will cease if:
(a) AMP; and
(b) AMP's Associates;
together hold less than 35% of the issued Units in the Trust.
<PAGE> 51
8
5.3 Omega indemnifies and will keep indemnified AMP against all losses,
damages, costs and expenses suffered or sustained by AMP at any time
arising from any breach by Omega of this clause 5.
5.4 The obligations under clause 5.1 (c) will be suspended if AMP or any
Related Body Corporate of AMP engages, directly or indirectly, in the
business of financing aged care facilities in Australia by the
acquisition of the facility using the same or similar techniques used
by Omega, where the business engaged in by AMP or any Related Body
Corporate of AMP:
(i) is in Direct Competition with the Trusts' aged care businesses
in Australia; and
(ii) has a Material Adverse Effect on the Trusts' aged care
businesses in Australia.
At the time that AMP or the Related Body Corporate of AMP which engages
in such competing business ceases to engage in that competing business,
the obligations under clause 5.1(c) will again bind Omega.
5.5 'MATERIAL ADVERSE EFFECT' in this clause 5 includes where the total
aged care real property assets in the competing business are in excess
of $30 million.
5.6 'DIRECT COMPETITION' in this clause 5 will be taken to be have occurred
where the competing business competes with the Trusts in any Australian
state or territories where the Trusts have more than 15% of their
Australian aged care real property assets.
5.7 'TRUSTS' in this clause 5 means the Trust and the PHF1 Trust and any
corporation or trust which the Trust and the PHF1 Trust together,
whether directly or indirectly, control.
6 STAMP DUTY
The Trustee is responsible for payment of any stamp duty or like tax
(including any penalties) (`DUTY') payable in respect of this deed and
the Trustee indemnifies and will keep indemnified AMP in respect of
that Duty.
7 CAPACITY OF TRUSTEE AND SUB-TRUST TRUSTEE
7.1 The Trustee and the Sub-trust Trustee enter into this deed only in
their capacity as trustee of the Trust and the Sub-trust respectively
and in no other capacity. A liability arising under or in connection
with this deed is limited to and can be enforced against the Trustee or
the Sub-trust Trustee only to the extent to which it can be satisfied
out of property of the relevant trust out of which the relevant trustee
is actually indemnified for the liability. This limitation of the
Trustee's and Sub-trust Trustee's liability applies despite any other
provision of this deed and extends to all liabilities and obligations
of the Trustee and Sub-trust Trustee in any way connected with any
representation, warranty, conduct, omission, deed or transaction
related to this deed.
7.2 Despite anything in this CLAUSE 7, the Trustee and Sub-trust Trustee
are liable and are not released to the extent that a liability under
this deed arises out of the Trustee's or Sub-trust Trustee's own
<PAGE> 52
9
fraud, negligence, wilful default, breach of trust or breach of duty
which disentitles it from an indemnity out of the assets of the Trust
or Sub-trust by subrogation or otherwise.
8 NOTICE
NOTICE IN WRITING
8.1 A party giving notice or notifying under this deed must do so in
writing:
(a) directed to the recipient's address set out in SCHEDULE 1, as
varied by any notice; and
(b) hand delivered or sent by prepaid post or facsimile to that
address.
RECEIPT OF NOTICE
8.2 A notice given in accordance with CLAUSE 8.1 is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, two business days after the date of
posting; or
(c) if sent by facsimile, when the sender's facsimile system
generates a message confirming successful transmission of the
total number of pages of the notice unless, within eight
business hours after that transmission, the recipient informs
the sender that it has not received the entire notice.
9 SEVERABILITY
Part or all of any provision of this deed that is illegal or
unenforceable may be severed from this deed and the remaining
provisions of this deed continue in force.
10 COUNTERPARTS
This deed may be executed in any number of counterparts.
11 ENTIRE AGREEMENT
This deed:
(a) constitutes the entire agreement between the parties as to its
subject matter; and
(b) in relation to that subject matter, supersedes any prior
understanding or agreement between the parties and any prior
condition, warranty, indemnity or representation imposed,
given or made by a party.
<PAGE> 53
10
12 GOVERNING LAW AND JURISDICTION
12.1 This deed is governed by the law applicable in New South Wales.
12.2 Each party submits to the non-exclusive jurisdiction of the courts of
New South Wales.
13 INTERPRETATION
In this deed, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect the
meaning of this deed;
(b) the singular includes the plural and vice versa and words
importing a gender include other genders;
(c) other grammatical forms of defined words or expressions have
corresponding meanings;
(d) a reference to a clause, paragraph, schedule or annexure is a
reference to a clause or paragraph of or schedule or annexure
to this deed and a reference to this deed includes any
schedules and annexures;
(e) a reference to a document or agreement, including this deed,
includes a reference to that document or agreement as novated,
altered or replaced from time to time;
(f) a reference to a right or obligation of any two or more
persons confers that right or imposes that obligation as the
case may be jointly and severally;
(g) a reference to any party to this deed or any other agreement
or document or to any other body or person referred to in this
deed includes that party body or person's successors or
permitted assigns;
(h) a reference to `A$', `$A', `dollar' or `$' is a reference to
Australian currency;
(i) a reference to a specific time for the performance of an
obligation is a reference to that time in the State, Territory
or other place where that obligation is to be performed;
(j) words and expressions importing natural persons include
partnerships, bodies corporate, associations, governments and
governmental and local authorities and agencies; and
(k) a reference to any legislation or statutory instrument or
regulation is construed in accordance with the Acts
Interpretation Act 1901 (Cth) or the equivalent State
legislation, as applicable.
<PAGE> 54
11
EXECUTED as an deed
Signed, sealed and delivered by the attorney of PHF NO.1 PTY LIMITED
under power of attorney registered Book _____________ No ____________ in the
presence of:
- --------------------------------------------------------------------------------
Signature of witness Signature of attorney
- --------------------------------------------------------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the attorney of PHF NO.2 PTY LIMITED
under power of attorney registered Book _____________ No ____________ in the
presence of:
- --------------------------------------------------------------------------------
Signature of witness Signature of attorney
- --------------------------------------------------------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the attorney of PRINCIPAL HEALTHCARE
FINANCE PTY LIMITED under power of attorney registered Book ____________
No ____________ in the presence of:
- --------------------------------------------------------------------------------
Signature of witness Signature of attorney
- --------------------------------------------------------------------------------
Name of witness (print) Name of attorney (print)
<PAGE> 55
12
Signed, sealed and delivered by the attorney of OMEGA WORLDWIDE, INC. under
power of attorney registered Book ____________ No ____________ in the
presence of:
- --------------------------------------------------------------------------------
Signature of witness Signature of attorney
- --------------------------------------------------------------------------------
Name of witness (print) Name of attorney (print)
SIGNED, SEALED AND DELIVERED by )
)
)
and )
as joint attorneys for AMP LIFE )
LIMITED )
under power of attorney dated )
registered book no. )
in the presence of: )
- ------------------------------------ -----------------------------------
Witness Attorney
- ------------------------------------ -----------------------------------
Witness Attorney
By executing this deed the attorneys state that they have not received notice of
revocation of the power of attorney
<PAGE> 56
13
SCHEDULE 1
NOTICES
(CLAUSE 5.1)
PHF NO.1 PTY LIMITED, PHF NO.2 PTY LIMITED, PRINCIPAL HEALTHCARE FINANCE PTY
LIMITED
Address: Suite 1601, 227 Elizabeth Street, Sydney, NSW, 2000
Facsimile: 61 2 9267 0955
Attention: K.W. Moss
CC: PHILLIPS FOX
Address: 255 Elizabeth Street, Sydney, NSW, 2000
Facsimile: 61 2 9283 4144
Attention: R.W. Tobias/W.G. Chapman
OMEGA WORLDWIDE, INC.
Address: 900 Victors Way, Suite 345, Ann Arbor, Michigan, 48108, United
States of America
Facsimile: 1 734 887 0301
CC: OMEGA (UK) LIMITED
Address: 145 Cannon Street, London, EC4N, 5BP
Facsimile: 44 171 929 3555
Attention: James P. Flaherty/John Storey
AMP LIFE LIMITED
Address: Property Asset Manager No.1 Fund
AMP Asset Management Australia Limited
Level 21, 33 Alfred Street Sydney 2000
Facsimile: 61 2 9257 9367
<PAGE> 57
14
SCHEDULE 2
SUB-TRUST WARRANTIES
(CLAUSE 4.2)
WARRANTY 1
(Capacity of Warrantors)
1.1 The Sub-trust Trustee has the power to enter into and perform this deed
and the deed constitutes a legal, valid and binding obligation on the
Sub-trust Trustee enforceable in accordance with its terms.
WARRANTY 2
(The Sub-trust and Sub-trust Trustee)
2.1 The Sub-trust Trustee:
(a) has full corporate power to own its properties, assets and
business and to carry on its business as now conducted; and
(b) has good and marketable title to the Property.
2.2 No meeting has been convened, resolution proposed, petition presented
or order made for the winding up of the Sub-trust Trustee or the Trust
and no receiver, receiver and manager, provisional liquidator,
liquidator or other officer of the court has been appointed or
threatened to be appointed in relation to the Trustee or the Trust any
part of its undertaking or assets.
WARRANTY 3
(Units)
3.1 The units held by the Trustee prior to the issue of units contemplated
by this deed comprise 50% of the issued units in the Sub-trust, are
fully paid and were properly issued.
3.2 There are no:
(a) options or other entitlements:
(i) over any units in the Sub-trust; or
(ii) to have units in the Sub-trust issued; or
(b) securities convertible into units in the Sub-trust.
WARRANTY 4
(Financial statements)
<PAGE> 58
15
4. So far as the Sub-trust trustee is aware the Accounts:
(a) disclose a true and fair view of the assets and liabilities,
which have arisen since 19 June 1998 , of the Sub-trust as at
the Accounts Date and of the income, expenses and results of
operations of the Sub-trust for the financial year ended on
the Accounts Date;
(b) contain proper and adequate provision for and full disclosure
of all liabilities, whether actual, contingent or otherwise,
of the Sub-trust as at the Accounts Date which have arisen
since 19 June 1998; and
(c) are not affected by any unusual, extraordinary, exceptional or
non-recurring items which have arisen since 19 June 1998.
WARRANTY 5
(Liabilities)
5.1 The Sub-trust Trustee has not given any guarantees, indemnities or
letters of comfort in respect of the obligations of any person since 19
June 1998.
5.2 The Sub-trust Trustee has not, since 19 June 1998 granted or created
any mortgage, charge, debenture, lien, finance lease or other
encumbrance except as disclosed in SCHEDULE 4.
5.3 The Trust does not have any material commitments or unusual or actual
or contingent liabilities which have arisen since 19 June 1998 except
as disclosed in SCHEDULE 4.
WARRANTY 6
(No changes since Accounts Date)
6. Since the Accounts Date:
(a) there has been no material adverse change in the assets,
liabilities, turnover, earnings, financial condition, trading
position or prospects of the Sub-trust;
(b) no distribution of capital or income has been declared, made,
paid or determined to be payable in respect of units in the
Sub-trust whether of cash, specific assets or otherwise;
(c) the Sub-trust Trustee has carried on the Business in the
ordinary and usual course and has not entered into any
contracts or arrangements other than in the ordinary course of
carrying on the Business;
(d) the Sub-trust Trustee has not incurred or undertaken any
actual or contingent liabilities or taxation or obligations,
including Taxation, except in the ordinary course of business
since 19 June 1998;
<PAGE> 59
16
(e) the Sub-trust Trustee has not acquired or disposed of or dealt
with any assets nor has it entered into any agreement or
option to acquire or dispose of any assets other than in the
normal course of business for full market value since 19 June
1998;
(f) except in the ordinary course of business, the Sub-trust
Trustee has not borrowed money since 19 June 1998;
(g) no resolutions have been passed by the Unitholder or directors
of the Sub-trust Trustee as trustee of the Sub-trust except in
the ordinary course of business of the Sub-trust and those
necessary to give effect to this deed.
WARRANTY 7
(Records)
7. The Records of the Sub-trust:
(a) are in the possession of the Sub-trust Trustee or under its
control;
(b) have been fully, properly and accurately kept and maintained
and are up to date in all material respects;
(c) accurately record the material details of all of the material
transactions, finances, assets and liabilities of the
Sub-trust; and
(d) as far as necessary, have been prepared in accordance with the
requirements of the Corporations Law and the Accounting
Standards.
WARRANTY 8
(Debts)
8. So far as the Sub-trust Trustee is aware all debts owed to the
Sub-trust at Completion other than any debts owed to the Sub-trust as
at 19 June 1998, less the amount of any relevant provision for bad and
doubtful debts made on a basis consistent with the provision for bad
and doubtful debts in the Accounts, will be good and fully collectable
in the ordinary course of business within 3 months after the date on
which the relevant invoice was first rendered.
WARRANTY 9
(Taxation)
9.1 The Sub-trust and the Sub-trust Trustee have paid, or the Accounts
fully provide for, all Taxes which the Sub-trust or the Sub-trust
Trustee are or may become liable to pay for the period from 19 June
1998 up to and including the Accounts Date.
9.2 The only liabilities for Tax of the Sub-trust and the Sub-trust Trustee
arising in respect of the period after the Accounts Date and ending on
the Subscription Date will be liabilities arising out of the normal
business and trading activities of the Sub-trust.
<PAGE> 60
17
9.3 All Tax information required by law (including but not limited to
records, returns, elections and notices) to be lodged or kept by the
Sub-trust and the Sub-trust Trustee in respect of any period after 19
June 1998 have been lodged with the appropriate authorities or kept as
required.
9.4 The Sub-trust and the Sub-trust Trustee are not involved in any audit
of any tax returns or any dispute with any Taxation authority
responsible for the assessment and collection of Tax and the Sub-trust
Trustee is not aware of any circumstances which may give rise to such
an audit or dispute.
9.5 The Sub-trust and the Sub-trust Trustee have maintained since 19 June
1998 sufficient and accurate records and all other information required
to support all Tax information which has been or may be lodged with any
Taxation authority
9.6 Any stamp duty or other taxes of a similar nature payable on all
documents and transactions to which the Sub-trust or the Sub-trust
Trustee became a party since 19 June 1998 or that the Sub-trust or the
Sub-trust Trustee has an interest in enforcing which was entered into
since 19 June 1998, has been paid to the full amount required in all
applicable jurisdictions.
9.7 Since 19 June 1998 the Sub-trust and the Sub-trust Trustee have lodged
or supplied all information regarding Taxes as and when requested by a
Taxation authority.
WARRANTY 11
(Properties and property leases)
11.1 The Property described in SCHEDULE 5 comprises all the land and
buildings owned by the Sub-trust.
11.2 The Lessee of the Property has duly and punctually performed in all
material respects and is not in breach of any material covenants or
conditions of any lease, licence or other occupational arrangement
(`LEASE') granted to it by the Sub-trust Trustee and the Sub-trust
Trustee is not aware of any circumstances which exist which may cause
any Lease to be terminated.
11.3 There is no current dispute, litigation or threatened litigation of
which the Sub-trust Trustee is aware in respect of:
(a) the Lease;
(b) the Sub-trust Trustee's title to the Property;
(c) the use of the Property; or
(d) boundary walls or fences or with respect to any easement,
right and means of access to the Property.
<PAGE> 61
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WARRANTY 12
(Insurance)
12.1 Each contract under which the Sub-trust Trustee is an insured party
(`INSURANCE CONTRACTS') is in force and there is no fact or
circumstance known to the Sub-trust Trustee which would lead to any of
them being terminated or ceasing to have effect.
12.2 Under the Insurance Contracts:
(a) all of the property and assets of the Sub-trust of an
insurable nature are insured in amounts representing their
full replacement or reinstatement value against fire and other
risks normally insured against; and
(b) the Sub-trust Trustee is adequately insured for such amounts
as would be maintained in accordance with prudent business
practice in respect of all risks, whether in relation to
damage to property, personal injury, public liability, product
liability, workers' compensation, business interruption
insurance or otherwise.
12.3 There are no outstanding claims under or insurance premiums payable
under the Insurance Contracts.
WARRANTY 13
(Intellectual property rights)
13.1 The Sub-trust does not use or require in the Business any material
Intellectual Property Rights other than those disclosed in writing to
AMP.
13.2 The Sub-trust Trustee has not infringed the Intellectual Property
Rights of any other person in the course of operating the Business.
13.3 The Sub-trust Trustee is not aware of any allegation or basis on which
an allegation could be made that the Sub-trust has infringed any
material Intellectual Property Rights of any person or on which the
validity or effectiveness of the Intellectual Property Rights owned by
the Sub-trust may be challenged.
WARRANTY 14
(Employees and superannuation)
14 The Sub-trust does not employ any employee.
WARRANTY 15
(Contracts)
15.1 The Sub-trust Trustee has disclosed all material contracts, agreements
and arrangements to which the Sub-trust Trustee is a party.
<PAGE> 62
19
15.2 The Sub-trust Trustee has since 19 June 1998 duly performed and
observed all its obligations, and the other parties have duly performed
and observed all their obligations, under all material contracts,
arrangements or understandings to which the Sub-trust Trustee is a
party.
WARRANTY 16
(Compliance with applicable laws)
16.1 The Business is and has since 19 June 1998 been conducted in accordance
with all applicable laws, does not contravene any laws and no
allegation of any contravention of any applicable laws is known to any
of the Sub-trust Warrantors.
16.2 So far as the Sub-trust Trustee is aware the Sub-trust Trustee holds
all statutory licences, consents, registrations, approvals, permits and
authorisations necessary for the carrying on of the Business. So far as
the Sub-trust Trustee is aware, there is no fact or matter which might
prejudice the continuance or renewal, or result in the revocation or
variation in any material respect, of any such licences, consents,
registrations, approvals, permits and other authorisations.
WARRANTY 17
(Litigation)
17.1 The Sub-trust Trustee is not involved in, or has been threatened with,
any claim, litigation, prosecution or arbitration in any court,
tribunal or otherwise and there are no facts or circumstances known to
the Sub-trust Trustee likely to give rise to any such litigation or
arbitration in relation to an event occurring after 19 June 1998.
17.2 There are no unsatisfied judgments, awards, claims or demands against
the Sub-trust Trustee of which it is aware.
17.3 The Sub-trust Trustee is not aware that it is being investigated for
any breach or alleged breach of the law.
WARRANTY 19
(Subsidiaries and Sub-trusts)
19 The Sub-trust:
(a) neither holds nor beneficially owns shares, units, or other
securities in the capital of another company or trust;
(b) has not agreed to buy any securities in any other Australian
or overseas company or trust; or
(c) is not and has not agreed to become a member of any
partnership, unincorporated association, joint venture or
consortium.
<PAGE> 63
20
WARRANTY 20
(Accuracy of disclosed information)
20.1 So far as the Sub-trust Warrantors are aware, all information other
than any forecast which the Sub-trust Warrantors or their advisers have
given to AMP or its advisers relating to the Business, activities,
affairs, assets and liabilities of the Sub-trust, as well as the facts
in the recitals and schedules was when given and is now complete and
accurate in all material respects.
20.2 All information which is known to the Sub-trust Warrantors relating to
the units in the Sub-trust the business or otherwise the subject matter
of this deed and which is material to a subscriber for units in the
Trust has been disclosed in writing to AMP other than matters of an
industry nature or which are in the public domain.
WARRANTY 21
(Due Diligence Reports)
21.1 AMP has been provided with the reports of Phillips Fox, Ernst &Young
and the Warrantors' other professional advisers referred to in SCHEDULE
4 (`DUE DILIGENCE REPORTS').
21.2 The Sub-trust Warrantors have not received any notice of any material
adverse change to the matters referred to in the Due Diligence Reports
since the dates of the Due Diligence Reports.
<PAGE> 64
21
SCHEDULE 3
TRUST WARRANTIES
(CLAUSE 4.2)
WARRANTY 1
(Capacity of Warrantors)
1.1 The Trustee has the power to enter into and perform this deed and the
deed constitutes a legal, valid and binding obligation on the Trustee
enforceable in accordance with its terms.
WARRANTY 2
(The Trust and the Trustee)
2.1 The Trustee:
(a) has full corporate power to own its properties, assets and
business an to carry on its business as now conducted; and
(a) has good and marketable title to 2,937,500 units in the
Sub-trust.
2.2 No meeting has been convened, resolution proposed, petition presented
or order made for the winding up of The Trustee or the Trust and no
receiver, receiver and manager, provisional liquidator, liquidator or
other officer of the court has been appointed or threatened to be
appointed in relation to the Trustee or the Trust any part of its
undertaking or assets.
WARRANTY 3
(Units)
3.1 Prior to the issue of units contemplated by this deed the units in the
Trust, are fully paid and were properly issued and are held as follows:
(a) Unitholder 2,937,500
(b) Omega Healthcare Investors, Inc. 500,000
3.2 There are no:
(a) options or other entitlements:
(i) over any units in the Trust; or
(ii) to have units in the Trust issued; or
(b) securities convertible into units in the Trust.
<PAGE> 65
22
WARRANTY 4
(Financial position)
4. The only activities carried on by the Trust since it was created are:
(a) the issue of 2,937,500 units to the Unitholder;
(b) the acquisition of 2,500,010 units in the Sub-trust by
subscription;
(c) the issue of 500,000 units to Omega Healthcare Investors, Inc.
WARRANTY 5
(Liabilities)
5.1 The Trustee has not, as trustee of the Trust, given any guarantees,
indemnities or letters of comfort in respect of the obligations of any
person.
5.2 The Trustee has not, as trustee of the Trust, granted or created any
mortgage, charge, debenture, lien, finance lease or other encumbrance
except as disclosed in SCHEDULE 4.
5.3 The Trust does not have any material commitments or unusual or actual
or contingent liabilities except as disclosed in SCHEDULE 4.
WARRANTY 6
(No changes)
6. Since the Trust was created:
(a) no distribution of capital or income has been declared, made,
paid or determined to be payable in respect of units in the
Trust whether of cash, specific assets or otherwise;
(b) the Trustee has carried on the Business in the ordinary and
usual course and has not entered into any contracts or
arrangements other than in the ordinary course of carrying on
the Business;
(c) no resolutions have been passed by the Unitholder or directors
of the Trustee, as trustee of the Trust, except as listed in
SCHEDULE 4 and those necessary to give effect to this deed.
WARRANTY 7
(Records)
7. The Records of the Trust:
(a) are in the possession of the Trustee or under its control;
<PAGE> 66
23
(b) have been fully, properly and accurately kept and maintained
and are up to date in all material respects;
(c) accurately record the material details of all of the material
transactions, finances, assets and liabilities of the Trust;
and
(d) as far as necessary, have been prepared in accordance with the
requirements of the Corporations Law and the Accounting
Standards.
WARRANTY 8
(Litigation)
8.1 The Trustee, as trustee of the Trust, is not involved in, or has been
threatened with, any claim, litigation, prosecution or arbitration in
any court, tribunal or otherwise and there are no facts or
circumstances of which the Trustee is aware likely to give rise to any
such litigation or arbitration.
8.2 There are no unsatisfied judgments, awards, claims or demands against
the Trustee as trustee of the Trust.
8.3 The Trustee is not being investigated for any breach or alleged breach
of the law in connection with the Trust.
WARRANTY 9
(Taxation)
9.1 The Trust and the Trustee have paid, or the accounts of the trust
provide for, all Taxes which the Trust or the Trustee are or may become
liable to pay for the period from the establishment of the Trust up to
and including the Subscription Date.
9.2 All Tax information required by law (including but not limited to
records, returns, elections and notices) to be lodged or kept by the
Trust and the Trustee in respect of any period after the establishment
of the Trust have been lodged with the appropriate authorities or kept
as required.
9.3 The Trust and the Trustee are not involved in any audit of any tax
returns or any dispute with any Taxation authority responsible for the
assessment and collection of Tax and the Trustee is not aware of any
circumstances which may give rise to such an audit or dispute.
9.4 The Trust and the Trustee have maintained since the establishment of
the Trust sufficient and accurate records and all other information
required to support all Tax information which has been or may be lodged
with any Taxation authority
9.5 Any stamp duty or other taxes of a similar nature payable on all
documents and transactions to which the Trust or the Trustee is a party
or that the Trust or the Trustee has an interest in enforcing other
than the FAI Redemption and Subscription Agreement has been paid to the
full amount required in all applicable jurisdictions.
<PAGE> 67
24
9.6 Since the establishment of the Trust, the Trust and the Trustee have
lodged or supplied all information regarding Taxes as and when
requested by a Taxation authority.
WARRANTY 10
(Employees and superannuation)
10 The Trust does not employ any employee.
WARRANTY 11
(Subsidiaries and Sub-trusts)
11 Except for the units held by it in the Sub-trust, the Trust:
(a) neither holds nor beneficially owns shares, units, or other
securities in the capital of another company or trust;
(b) has not agreed to buy any securities in any other Australian
or overseas company or trust; or
(c) is not and has not agreed to become a member of any
partnership, unincorporated association, joint venture or
consortium.
WARRANTY 12
(Accuracy of disclosed information)
12.1 So far as the Warrantors are aware, all information other than any
forecast which the Warrantors or their advisers have given to AMP or
its advisers relating to the Business, activities, affairs, assets and
liabilities of the Trust, as well as the facts in the recitals and
schedules was when given and is now complete and accurate in all
material respects.
12.2 All information which is known to the Warrantors relating to the units
in the Trust the business or otherwise the subject matter of this deed
and which is material to a subscriber for units in the Trust has been
disclosed in writing to AMP other than matters of an industry nature or
which are in the public domain.
WARRANTY 13
(Due Diligence Reports)
13.1 AMP has been provided with the reports of Phillips Fox, Ernst & Young
and the Warrantors' other professional advisers referred to in SCHEDULE
4 (`DUE DILIGENCE REPORTS').
13.2 The Sub-trust Warrantors have not received any notice of any material
adverse change to the matters referred to in the Due Diligence Reports
since the dates of the Due Diligence Reports.
<PAGE> 68
25
SCHEDULE 4
DISCLOSURES AGAINST WARRANTIES
(CLAUSES 4.3, 4.4 AND 4.10(D))
TRUST WARRANTIES AND SUB-TRUST WARRANTIES (SCHEDULES 2 AND 3) - GENERAL
DISCLOSURE
The agreements, liabilities and obligations assumed by the Trustee as
trustee of the Trust and Sub-trust Trustee as trustee of the Sub-trust
pursuant to the following documents which comprise the Principal
Transaction Documents from the Omega/Moran/FAI/Premier Care transaction
closed on 19 June 1998 (PHASE 1) and the Omega/Moran transaction closed
on 12 November 1998 (PHASE 2). They were delivered to AMP (attention:
Greg Fernance) on 22 March 1999:
PHASE 1
Volume 1
1. ACQUISITION STRUCTURE
2. OMEGA (AUSTRALIA) PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
3. PHF NO.1 PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
4. PHF NO.2 PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
5. PRINCIPAL HEALTHCARE FINANCE PTY LIMITED
- Certificate of Incorporation
- Memorandum and Articles of Association
- Minutes of Meeting Appointing Current Directors
6. TRUST DEEDS
- Principal Healthcare Finance Trust (Formerly Assisted Living Unit
Trust) Trust Deed and 19 June 1998 Trust Determination
- Principal Healthcare Finance Unit Trust No.1 Trust Deed
- Principal Healthcare Finance Unit Trust No.2 Trust Deed
- Principal Healthcare Finance Unit Trust No.3 Trust Deed
- Principal Healthcare Finance Unit Trust No.4 Trust Deed
7. DUTCH BV LOAN DOCUMENTS
- Beheer en Beleggingsmaatschappij Dilava BV
<PAGE> 69
26
- Beheer en Beleggingsmaatschappij Rocla BV
8. DUTCH BV SHAREHOLDERS RESOLUTIONS
- Beheer en Beleggingsmaatschappij Dilava BV
- Beheer en Beleggingsmaatschappij Rocla BV
9. ABN FACILITY CHEQUES
Volume 2
10. LEASE
Dated 19 June 1998
11. LEASE GUARANTEE
Dated 19 June 1998
12. MORTGAGE OF SHARES - MORAN
Dated 19 June 1998
13. MORTGAGE OF UNITS - MORAN
Dated 19 June 1998
14. DEED OF FIXED AND FLOATING CHARGE - MORAN
Dated 19 June 1998
15. RELATIONSHIP AGREEMENT
Dated 19 June 1998
16. ASSUMPTION AGREEMENT
Dated 19 June 1998
17. CAPITAL CONTRIBUTION AGREEMENT
Dated 19 June 1998
18. BILL FACILITY AGREEMENT
Dated 19 June 1998
19. TRIPARTITE AGREEMENT
Dated 19 June 1998
20. DEED OF GUARANTEE AND INDEMNITY
Dated 19 June 1998
21. MORTGAGE OF DEPOSIT - PREMIER CARE
Dated 19 June 1998
22. MORTGAGE OF DEPOSIT - OMEGA WORLDWIDE
Dated 19 June 1998
23. MORTGAGE - PREMIER CARE/ABN
Dated 19 June 1998
24. DEBENTURE STOCK TRUST DEED
Dated 17 June 1998
25. STOCK CERTIFICATE
<PAGE> 70
27
26. ACCEPTANCE OF APPLICATION FOR STOCK CERTIFICATE
27. BILL - $35,000,000.
Dated 19 June 1998
28. BILL - $15,000,000.
Dated 19 June 1998
Volume 3
29. REDEMPTION and SUBSCRIPTION AGREEMENT
Dated 19 June 1998
30. PROCUREMENT AGREEMENT
Dated 19 June 1998
31. DEED OF RELEASE - Dated 19 June 1998
- HKBA & Premier Care
32. NURSING HOME LICENCES
- NSW
33. POWERS OF ATTORNEY
- Omega Worldwide Inc.
- Tanoa Pty Limited
- Mindra Pty Limited
- PHF No.1 Pty Limited
- PHF No.2 Pty Limited
- Dilava
- Rocla
- Premier Care Australia Pty Limited (Debenture Stock Documents)
- Premier Care Australia Pty Limited (ABN Documents)
- FAI/Premier Care/Premier Care Australia (Holdings) Pty Limited
(RSA/Procure Agreement)
- Premier Care Australia Pty Limited (Post Completion)
- Premier Care Australia Pty Limited (ALU Leases)
- Moran Health Care Pty Limited/Moran Health Care Australia Pty
Limited/Moran Family
34. MINUTES - Directors Meetings for Transaction Documents
- Premier Care Australia Pty Limited
- Tanoa Pty Limited
- Mindra Pty Limited
<PAGE> 71
28
PHASE 2
Volume 1
2 ACQUISITION STRUCTURE
3 LAND SALE CONTRACT - NSW/QLD/WA
Dated 12 November 1998
4 LAND SALE CONTRACT - VIC
Dated 12 November 1998
5 OFFER TO SELL AGED CARE PLACES - NSW/QLD/WA
Dated 12 November 1998
6 STATUTORY DECLARATIONS RE OFFER TO SELL - NSW/QLD/WA
7 OFFER TO SELL AGED CARE PLACES - VIC
Dated 12 November 1998
8 STATUTORY DECLARATIONS RE OFFER TO SELL - VIC
9 RELATIONSHIP AGREEMENT
Dated 12 November 1998
10 CAPITAL CONTRIBUTION AGREEMENT
Dated 12 November 1998
Volume 2
11 LEASE - NSW/QLD/WA
Dated 12 November 1998
12 LEASE COVER SHEETS - NSW/QLD/WA
13 AGREEMENT FOR LEASE - VIC (INCORPORATING LEASE-VIC TO BE SIGNED)
Dated 12 November 1998
14 LEASE GUARANTEE - NSW/QLD/WA
Dated 12 November 1998
15 LEASE GUARANTEE - VIC
Dated 12 November 1998
16 VARIATION OF MORTGAGE OF UNITS
Dated 12 November 1998
17 IRREVOCABLE DIRECTION - MORTGAGE OF UNITS
Dated 12 November 1998
18 MORAN UNIT TRUST - UNIT CERTIFICATE
19 VARIATION OF CHARGE
Dated 12 November 1998
<PAGE> 72
29
20 PENDER BROS. MORTGAGE
Dated 12 November 1998
21 PENDER BROS. CHARGE
Dated 12 November 1998
22 PENDER BROS. GUARANTEE AND INDEMNITY
Dated 12 November 1998
Volume 3
23 NURSING HOME LICENCES
NSW
WA
24 POWERS OF ATTORNEY
Principal Healthcare Finance Pty Limited (General)
Principal Healthcare Finance Pty Limited (Debenture Stock Documents)
Omega Worldwide Inc.
PHF No.1 Pty Limited
Tanoa Pty Limited
25 MINUTES - DIRECTORS MEETINGS FOR TRANSACTION DOCUMENTS
Principal Healthcare Finance Pty Limited
Tanoa Pty Limited
PHF No.1 Pty Limited
26 OMEGA INDEMNITY
29 BLAKE DAWSON WALDRON TAX ADVICE
30 WAREHOUSE FACILITY AGREEMENT
Dated 12 November 1998
31 TRIPARTITE AGREEMENT
Dated 12 November 1998
32 DEED OF GUARANTEE AND INDEMNITY
Dated 12 November 1998
33 DEBENTURE STOCK TRUST DEED (ONGOING ASSETS)
Dated 11 November 1998
34 STOCK CERTIFICATE DOCUMENTS
Dated 12 November 1998
35 REAL PROPERTY MORTGAGE (NSW)
Dated 12 November 1998
<PAGE> 73
30
36 REAL PROPERTY MORTGAGE (QLD)
Dated 12 November 1998
37 REAL PROPERTY MORTGAGE (WA)
Dated 12 November 1998
38 FIXED & FLOATING CHARGE (QLD)
Dated 12 November 1998
39 FIXED & FLOATING CHARGE (WA)
Dated 12 November 1998
40 SYNDICATION SIDE LETTER
Dated 12 November 1998
41 FEES SIDE LETTER
Dated 12 November 1998
42 ABN AMRO SYNDICATION FEE LETTER
Dated 12 November 1998
43 DRAWDOWN REQUEST
Dated 12 November 1998
The matters disclosed in the due diligence reports of Phillips Fox (including
supporting documentation held by Phillips Fox on which such reports were
based), Ernst & Young and the Warrantor's other professional advisers
prepared in relation to Phase 1 and Phase 2.
THE TRUSTEE OR THE SUB-TRUST TRUSTEE WILL HAVE A LIABILITY FOR STAMP DUTY IN
RESPECT OF THE ISSUE OF 500,000 UNITS IN THE TRUST TO OMEGA HEALTHCARE
INVESTORS, INC.
The assets acquired pursuant to the Phase 1 acquisition have been 100% financed
by loans from ABN AMRO.
The disposal of the underlying property assets forming part of the Phase 1
acquisition may be subject to a substantial capital gains tax
liability. The liability will depend upon the price for which the
relevant properties are sold. Based on the capital gains tax cost base
of the assets and the valuation at the time of Phase 1 acquisition the
capital gains tax liability is estimated to be in the region of
$20,000,000.
SUB-TRUST WARRANTIES (SCHEDULE 2) -SPECIFIC DISCLOSURE
1 WARRANTY 5.3
1.1 THE SUB-TRUST TRUSTEE HAS AGREED TO CONSIDER A DISTRIBUTION OF INCOME
AND CAPITAL TO PREMIER CARE AUSTRALIA (HOLDINGS) PTY LIMITED AND FAI
INSURANCES LIMITED RELATING TO THE
<PAGE> 74
31
ACQUISITION OF UNITS IN THE SUB-TRUST BY THE TRUSTEE. THE AMOUNT WILL
NOT EXCEED THE AMOUNT OTHERWISE PAYABLE TO MORAN HEALTH CARE AUSTRALIA
PTY LIMITED PURSUANT TO THE MORAN PHASE 1 RELATIONSHIP AGREEMENT. THIS
WILL REQUIRE AN AMENDMENT TO THE SUB-TRUST DEED.
1.2 THE SUB-TRUST TRUSTEE IS THE RECIPIENT OF A LOAN OF A$24,000,000 ON 12
NOVEMBER 1998 FROM OMEGA HEALTHCARE INVESTORS, INC. ON 31 DECEMBER 1998
THIS LOAN WAS REPLACED BY A LOAN OF THE SAME AMOUNT FROM OMEGA
WORLDWIDE, INC. AN AMOUNT OF APPROXIMATELY A$400,000 REMAINS OWING TO
OMEGA WORLDWIDE, INC. AND OMEGA HEALTHCARE INVESTORS, INC. ALL LOANS TO
OMEGA HEALTHCARE INVESTORS, INC. ARE TO BE DISCHARGED FROM THE
CONSIDERATION AND ADVANCE OBTAINED FROM AMP.
2 WARRANTY 6(h)
2.1 THE DIRECTORS OF THE SUB-TRUST TRUSTEE HAVE PASSED THE FOLLOWING
RESOLUTIONS SINCE THE ACCOUNTS DATE (30 NOVEMBER 1998):
(i) 2 DECEMBER 1998 - APPOINTING ROBERT TOBIAS AND
WILLIAM CHAPMAN SIGNATORIES TO ACCOUNTS HELD BY THE
SUB-TRUST TRUSTEE WITH ST GEORGE BANK LIMITED;
27 JANUARY 1999 - AMENDING THE DEFINITION OF
"ACCOUNTING PERIOD" IN THE SUB-TRUST DEED;
24 FEBRUARY 1999 - AUTHORISING THE EXECUTION OF A
POWER OF ATTORNEY IN FAVOUR OF ROBERT TOBIAS,
WILLIAM CHAPMAN AND VIRGINIA BRIGGS FOR THE
EXECUTION OF LEASES AND PARTIAL SURRENDERS OF
LEASE BETWEEN THE SUB-TRUST TRUSTEE AS LESSOR
AND MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED,
ACN 082 466 457 AS LESSEE; AND
(TO BE PASSED IMMEDIATELY PRIOR TO COMPLETION OF THE
EXECUTION OF THIS DEED) - APPOINTING AMP
NOMINATED DIRECTORS TO THE BOARD OF THE
SUB-TRUST TRUSTEE FROM THE CLOSE OF THE MEETING;
RECEIVING LOANS FROM PHF NO.1 PTY LIMITED IN THE
AMOUNT OF $19,189,256.67; REPAYING A LOAN FROM
OMEGA WORLDWIDE, INC. IN THE AMOUNT OF
$19,189,256.67.
2.2 THE UNITHOLDERS OF THE SUB-TRUST HAVE PASSED THE FOLLOWING RESOLUTION
SINCE THE ACCOUNTS DATE (30 NOVEMBER 1998):
(i) 27 JANUARY 1999 - APPROVING THE AMENDMENT OF THE
DEFINITION OF "ACCOUNTING PERIOD" IN THE SUB-TRUST
DEED.
3 WARRANTY 9.3
<PAGE> 75
32
3.1 NO TAX RETURN FOR THE SUB-TRUST OR THE SUB-TRUST TRUSTEE FOR THE YEARS
ENDED 30 JUNE 1998 OR 31 AUGUST 1998 HAS BEEN LODGED WITH THE
AUSTRALIAN TAXATION OFFICE.
4 Warranty 15.1
4.1 SUB-TRUST TRUSTEE IS PARTY TO AN ADVISORY AGREEMENT DATED 30 NOVEMBER
1998 WITH OMEGA (AUSTRALIA) PTY LIMITED.
4.2 THE TRUSTEE IS A PARTY TO AN AGREEMENT DATED 29 MARCH 1999 WITH OMEGA
(AUSTRALIA) PTY LIMITED RELATING TO THE USE OF THE NAMES "PRINCIPAL
HEALTHCARE", "PRINCIPAL HEALTH CARE", "PRINCIPAL HEALTHCARE FINANCE",
"PRINCIPAL HEALTH CARE FINANCE" AND "PHF".
4.3 SEE DISCLOSURE REGARDING WARRANTY 5.3.
TRUST WARRANTIES (SCHEDULE 3)
<PAGE> 76
33
5 WARRANTY 4 and 5.3
5.1 THE TRUSTEE IS PARTY TO AN ADVISORY AGREEMENT DATED 29 MARCH 1999 WITH
OMEGA (AUSTRALIA) PTY LIMITED.
5.2 THE TRUSTEE IS A PARTY TO AN AGREEMENT DATED 29 MARCH 1999 WITH OMEGA
(AUSTRALIA) PTY LIMITED RELATING TO THE USE OF THE NAMES "PRINCIPAL
HEALTHCARE", "PRINCIPAL HEALTH CARE", "PRINCIPAL HEALTHCARE FINANCE",
"PRINCIPAL HEALTH CARE FINANCE" AND "PHF".
6 WARRANTY 6 (c)
6.1 THE UNITHOLDER AND THE TRUSTEE HAVE PASSED RESOLUTIONS TO THE FOLLOWING
EFFECT:
(i) RESOLUTIONS REGARDING THE EXECUTION OF THE TRUST DEED
AND THE SUBSCRIPTION FOR UNITS IN THE TRUST.
(ii) 29 JANUARY 1999 - APPROVING THE AMENDMENT OF THE
DEFINITION OF "ACCOUNTING PERIOD" IN THE TRUST DEED.
(iii) THE PROVISIONS OF THE TRUST DEED HAVE BEEN AMENDED IN
ACCORDANCE WITH THE AMENDMENT OF THE TRUST DEED.
6.2 THE TRUSTEE INTENDS TO PASS IMMEDIATELY PRIOR TO THE EXECUTION OF THIS
DEED RESOLUTIONS TO APPROVE THE EXECUTION OF AN ADVISORY AGREEMENT WITH
OMEGA (AUSTRALIA) PTY LIMITED; APPROVE THE ISSUE OF UNITS TO AMP
PURSUANT TO THIS DEED; APPROVE THE RECEIPT OF A LOAN OF $7,499,980 FROM
PHF NO.1 MANAGEMENT PTY LIMITED (IN ITS CAPACITY AS TRUSTEE OF THE PHF1
TRUST); APPROVE THE MAKING OF A LOAN OF $19,189,256.67 TO THE SUB-TRUST
TRUSTEE (IN ITS CAPACITY AS TRUSTEE OF THE SUB-TRUST); APPOINT AMP
NOMINATED DIRECTORS TO THE BOARD OF THE TRUSTEE FROM THE TIME OF
RECEIPT OF THE CONSIDERATION.
7 WARRANTY 9.3
7.1 NO TAX RETURN FOR THE TRUST OR THE TRUSTEE FOR THE YEARS ENDED 30 JUNE
1998 OR 31 AUGUST 1998 HAS BEEN LODGED WITH THE AUSTRALIAN TAXATION
OFFICE.
NOTE: THE REFERENCE TO INDIVIDUAL WARRANTIES IN THIS SCHEDULE IS FOR
CONVENIENCE ONLY AND ANY DISCLOSURE IN RESPECT OF A PARTICULAR WARRANTY
MUST BE READ AS A DISCLOSURE IN RESPECT OF ANY OTHER WARRANTY WHICH IS
RELEVANT TO THE SUBJECT MATTER OF THAT WARRANTY.
<PAGE> 77
SCHEDULE 5
PROPERTIES
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
PROPERTY ADDRESS FOLIO IDENTIFIER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Annandale Nursing Home 76 Johnstone Street, Annandale Auto Consol 9867-46
NSW 2038
- -------------------------------------------------------------------------------------------------------------------
Armon Nursing Home 42 Croydon Street, Petersham NSW 1/110079
2049
- -------------------------------------------------------------------------------------------------------------------
Bathurst Nursing Home 61 Boyd Street, Kelso NSW 2795 11/806355
- -------------------------------------------------------------------------------------------------------------------
Berkeley Vale Retirement Village 8 Lorraine Avenue, Berkeley Vale, Vol 8624 Folio 130
NSW.
- -------------------------------------------------------------------------------------------------------------------
Bossley Park Nursing Home 52-64 Quarry Street, Bossley Park 8/713734
NSW 2176
- -------------------------------------------------------------------------------------------------------------------
Canterbury District Nursing Home 20 Albert Street, Campsie NSW 2194 1/549851
- -------------------------------------------------------------------------------------------------------------------
Cherrywood Grove Nursing Home & 152-170 Sieben Drive, Orange, NSW 27/837884
Retirement Village
- -------------------------------------------------------------------------------------------------------------------
Crest Nursing Home 11 Johnstone Street, Annandale 1/913045 and 1/913044
NSW 2038
- -------------------------------------------------------------------------------------------------------------------
Dubbo Nursing Home 80 Muller Street, Dubbo NSW 2830 12/592842
- -------------------------------------------------------------------------------------------------------------------
Edgewood Park Retirement Village & Beach Road, Batemans Bay, NSW Vol 8643 Folio 95
Nursing Home
- -------------------------------------------------------------------------------------------------------------------
Endeavour Retirement Village & 79 Hawkesbury Road, Springwood, NSW Vol 8641 Folio 117
Nursing Home
- -------------------------------------------------------------------------------------------------------------------
Fernleigh Nursing Home 8 Sherbrooke Road, West Ryde NSW 4/201/757 and 1/201757
2114
- -------------------------------------------------------------------------------------------------------------------
Glenmere Retirement Village & Nursing Wahroonga Road, Kanwal, Wyong, NSW Vol 8644 Folio 38
Home
- -------------------------------------------------------------------------------------------------------------------
Hillside Retirement Village 3 Violet Town Road, Mount Hutton, Vol 8638 Folio 198
NSW.
- -------------------------------------------------------------------------------------------------------------------
Killarney Vale Retirement Village & Daniel Close, Killarney Vale, 22/794053; Vol 8641 Folio 95;
Nursing Home Wyong, NSW 13/732182
- -------------------------------------------------------------------------------------------------------------------
Maitland Nursing Home Broughton Street, Rutherford NSW 5/733509
2320
- -------------------------------------------------------------------------------------------------------------------
Mudgee Nursing Home Dennison Street, Mudgee NSW 2850 1/261314
- -------------------------------------------------------------------------------------------------------------------
Murwillumbah Nursing Home Off North Arm Road, Murwillumbah 1/786640
NSW 2484
- -------------------------------------------------------------------------------------------------------------------
Narrandera Nursing Home Chantilly Street, Narrendera NSW 2/582847 and
2700
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 78
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
308/257212
- -------------------------------------------------------------------------------------------------------------------
Norah Head Nursing Home 63 Palomar Parade, Toukley NSW 721/26247 and 509/26247
2263
- -------------------------------------------------------------------------------------------------------------------
Oban Nursing Home 23 Kangaroo Street, Raymond 2/37509, 3/37509, 4/37509,
Terrace, NSW. 5/37509, 6/37509, 16/37509;
17/111509
- -------------------------------------------------------------------------------------------------------------------
Quakers Hill Nursing Home 35 Hambledon Road, Quakers Hill 10/860042
NSW 2763
- -------------------------------------------------------------------------------------------------------------------
Seaside Retirement Village & Nursing Garden Street, Warriewood, NSW. 51/SP22115
Home
- -------------------------------------------------------------------------------------------------------------------
Shoalhaven Nursing Home Brinawarr Street, Bomaderry NSW 2541 5/614886
- -------------------------------------------------------------------------------------------------------------------
Stanmore Nursing Home 66 Cambridge Street, Stanmore NSW 31/7/1
2048
- -------------------------------------------------------------------------------------------------------------------
Terranora Valley Retirement Village & Carramar Drive, Tweed Heads, NSW Vol 8644 Folio 37; 11/736515
Nursing Home
- -------------------------------------------------------------------------------------------------------------------
Caloundra Nursing Home Lyon Street, Caloundra QLD 4551 Title Reference 16565083
RP 177466
- -------------------------------------------------------------------------------------------------------------------
Nambour Nursing Home 9 Princess Crescent, Nambour QLD Title Reference 16565083
4560 RP 183823
- -------------------------------------------------------------------------------------------------------------------
Apple Cross Nursing Home Riverway, Apple Cross WA 6153 Vol. 1964, Fol. 640
- -------------------------------------------------------------------------------------------------------------------
Bunbury Nursing Home 39 Hayes Street, Bunbury WA 6230 Vol. 1534, Fol. 995
- -------------------------------------------------------------------------------------------------------------------
Geraldton Nursing Home 20 Milford Street, Geraldton WA Vol. 1539, Fol. 329;
6530 Vol. 1890, Fol. 506
- -------------------------------------------------------------------------------------------------------------------
Kalgoorlie Nursing Home Dugan Street, Kalgoorlie WA 6430 Vol. 1597, Fol. 789
- -------------------------------------------------------------------------------------------------------------------
Narrogin Nursing Home 52 Williams Road, Narrogin WA 6312 Vol. 1634, Fol. 809
- -------------------------------------------------------------------------------------------------------------------
Murray River Nursing Home Cnr Coolabah & Boundary Roads, Vol. 1697, Fol. 190
Dudley Park, Mandurah WA 6210
- -------------------------------------------------------------------------------------------------------------------
Armadale Nursing Centre 21 Angelo Street, Armadale WA 6112 Vol. 1951, Fol. 293
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 79
ANNEXURE A
DEED OF AMENDMENT OF TRUST DEED
<PAGE> 80
- --------------------------------------------------------------------------------
DEED OF LOAN
PHF NO.1 PTY LIMITED
AMP LIFE LIMITED
OMEGA WORLDWIDE, INC.
- --------------------------------------------------------------------------------
-- PHILLIPS FOX --
LAWYERS
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site: http://www.PhillipsFox.
com.au
Ref: WGC959248JIM
<PAGE> 81
DEED OF LOAN
THIS DEED IS MADE ON 1999
PARTIES
PHF NO.1 PTY LIMITED, ACN 082 747 313, of c/- Phillips Fox, 255 Elizabeth
Street, Sydney, New South Wales (BORROWER)
AMP LIFE LIMITED, ACN 079 300 379, of Level 19, 33 Alfred Street, Sydney, NSW,
2000 (LENDER)
OMEGA WORLDWIDE, INC. of 900 Victors Way, Suite 345, Ann Arbor Michigan 48108,
United States of America (OMEGA)
RECITALS
A The Borrower has requested the Lender to advance the Principal Sum
to the Borrower.
B The Lender has agreed to that request upon the terms and
conditions set out in this deed.
AGREEMENTS BETWEEN THE PARTIES
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this deed:
ADVANCES means the First Advance, the Second Advance and any
Further Advance.
AMP ASSOCIATE means a Related Body Corporate of the Lender and
trusts and funds managed by the Lender or a Related Body Corporate
of the Lender.
APPLICABLE RATE means 9.1% per annum.
APPROVED PURPOSE means any one or more of:
(i) providing advances to PHF to allow it to repay advances
drawn by PHF from Omega Worldwide, Inc.; and
(ii) the funding of capital works in respect of the Moran
Facilities.
or such other purposes as the Lender may agree to in writing.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, agreement,
notarisation, certificate, permission, licence, approval or
exemption from, by or with a Public Authority; or
(b) in relation to anything which is prohibited or restricted by
law if a Public Authority takes certain action within a
specified period, the expiry of that period without the
Public Authority taking that action.
<PAGE> 82
-2-
BORROWER'S DEBT means at any time the aggregate of:
(a) the amount of the Advances made to the Borrower which have
not been repaid to the Lender;
(b) any other moneys advanced by the Lender to the Borrower upon
the terms of this deed which remains owing by the Borrower to
the Lender;
(c) interest (including capitalised interest) and fees owing at
any time by the Borrower to the Lender under this deed;
(d) money which the Borrower otherwise actually or contingently
owes to the Lender (including, without limitation, liquidated
and unliquidated damages and any judgment debt) or which the
Lender may charge to the account of the Borrower under or in
connection with this deed;
(e) money paid on account of or credited by the Lender against
any other money comprising the Borrower's Debt which the
Lender is required to disgorge pursuant to any law relating
to insolvency; and
(f) any charges, costs, expenses, duties or other imposts charged
to or paid by the Lender which are payable by the Borrower in
accordance with clause 13.
$ means Australian dollars.
EVENT OF DEFAULT means any of the events specified in clause 11.3.
FIRST ADVANCE means an amount of $20,000,000.
FURTHER ADVANCE means any amount advanced to the Borrower pursuant
to clause 2.3.
FURTHER ADVANCE CONDITIONS means the conditions set out in clause
2.3.3.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the effectiveness of, or the ability of the Borrower to
observe its obligations under this deed; or
(b) the financial condition or business of the Borrower.
MORAN FACILITIES means any aged care facilities owned by PHF and
leased to Moran Health Care (Australia) Pty Limited ACN 082 466
456, or any Related Entity of that company.
PHF means Principal Healthcare Finance Pty Limited, ACN 069 875
476.
OMEGA ASSOCIATE means:
(a) a Related Body Corporate of Omega;
(b) Omega Healthcare Investors, Inc.; and
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(c) a Related Body Corporate of Omega Healthcare Investors, Inc.
OPTION means an option to acquire a unit in the PHF 1 Trust and an
option to acquire a unit in the Trust.
OPTION TERMS means the terms of the Options set out in Schedules 5
and 6.
PHF 1 TRUST means Principal Healthcare Finance Unit Trust No.2
established by the deed dated 27 May 1998 between Tanoa Pty
Limited as trustee and Mindra Pty Limited as original unit holder
as amended on 27 January 1999.
PHF 1 UNITHOLDER means the holder of a unit in the PHF 1 Trust,
and includes all related entities (as that term is defined in the
Corporations Law) of such a person.
POTENTIAL EVENT OF DEFAULT means any event which with the giving
of notice, passage of time or fulfilment of any condition would
become an Event of Default.
PRINCIPAL SUM means $100,000,000 or, where the context requires,
the balance of that amount remaining outstanding.
PUBLIC AUTHORITY includes the Crown, any government and any
governmental, semi-governmental, public, administrative,
regulatory or judicial entity. It includes a Minister, a statutory
corporation, a self-regulatory organisation or supervisory
authority established by statute and any stock or futures
exchange.
RELATED BODY CORPORATE has the same meaning as is given to that
expression in the Corporations Law.
RELATED ENTITY means any body corporate or trust in respect of
which the Borrower can exercise at least 50% of the votes at any
general meeting of the entity in its capacity as trustee of the
Trust.
REPAYMENT DATE means the fifth anniversary of the date of this
deed or such other date as the Lender and the Borrower may agree
to in writing.
SECOND ADVANCE means an amount of $20,000,000.
SECURITY INTEREST includes a mortgage, charge, lien or pledge or
any other right by way of security (including a right of set-off
in respect of a deposit or a right to retain funds the subject of
a flawed deposit arrangement) of a creditor to have its claims
satisfied before other creditors with or from the proceeds of any
asset.
SENIOR DEBT means, at any time, the aggregate amount of all the
debt finance liabilities of the Trust and any corporation or trust
which the Trust and the PHF 1 Trust together, whether directly or
indirectly, control, on a consolidated basis but excluding any:
(a) amounts owing to any Unitholder or PHF 1 Unitholder, AMP
Associate or Omega Associate (unless such amounts are owed
pursuant to a person's participation in an
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issue of commercial paper or similar instruments in the debt
capital markets anywhere in the world by the Sub-trust);
(b) non-recourse debt, being debt without recourse to the
personal covenants of the Borrower;
(c) amount owing to any corporation or trust which the Trust and
the PHF 1 Trust together, whether directly or indirectly,
control;
(d) amount being liabilities incurred in the ordinary course of
carrying on business which is not characterised as a
borrowing;
(e) agreements in the nature of finance or operating leases; and
(f) liabilities which are the subject of a security interest over
cash, but only to the extent of the amount of cash actually
on deposit and the subject of such security interest from
time to time.
SUBSCRIPTION AGREEMENTS means:
(a) the subscription deed dated on or about the date of this
agreement between the Borrower, PHF, Omega Worldwide, Inc.
and the Lender; and
(b) the subscription deed dated on or about the date of this
agreement between the PHF No.1 Management Pty Limited, PHF,
Omega Worldwide, Inc. and the Lender.
TOTAL GROUP TANGIBLE ASSETS means, at any time, the aggregate book
values of all assets (other than intangible assets) of the Trust
and PHF 1 Trust and any corporation or trust which the Trust and
the PHF 1 Trust together, whether directly or indirectly, control,
on a consolidated basis, but does not include cash on deposit
which is the subject of a security interest.
TRUST means the Principal Healthcare Finance Unit Trust No.2
established by the Trust Deed.
TRUST DEED means the deed dated 27 May 1998 between the Borrower
as trustee and PHF No.2 Pty Limited as original unit holder as
amended on 29 January 1999.
UNITHOLDER means the holder of a unit in the Trust, and includes
all related entities (as that term is defined in the Corporations
Law) of such a person.
WARRANTORS means the Borrower and Omega.
1.2 INTERPRETATION
1.2.1 A reference to:
(a) a business day means a day other than Saturday or Sunday
during which banks are open for general banking business in
New South Wales;
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(b) this deed includes the recitals of and any schedules,
annexures or exhibits to this deed and where amended or
varied means this deed as so amended or varied;
(c) a receiver includes a manager and receiver and manager;
(d) a liquidator includes a provisional liquidator;
(e) a clause or a schedule means a clause of or schedule to this
deed;
(f) a group of persons includes any one or more of them; and
(g) any thing or amount is a reference to the whole and each part
of it.
1.2.2 Unless the context otherwise requires, a word which denotes:
(a) the singular includes the plural and vice versa;
(b) any gender includes the other genders; and
(c) a person includes an individual, a body corporate and a
government.
1.2.3 Unless the context otherwise requires, where any word or phrase is
given a defined meaning in this deed, any other part of speech or
other grammatical form in respect of such word or phrase has a
corresponding meaning.
1.3 JOINT AND SEVERAL
Any agreement, warranty, representation or obligation which binds
or benefits two or more persons under this deed binds or benefits
those persons jointly and severally.
1.4 SUCCESSORS AND ASSIGNS
A person includes the trustee, executor, administrator, successor
in title and assign of that person.
1.5 HEADINGS AND TABLE OF CONTENTS
Headings and the table of contents must be ignored in the
interpretation of this deed.
1.6 REFERENCES TO AND CALCULATIONS OF TIME
1.6.1 A reference to:
(a) a time of day means that time of day in the state or
territory whose laws apply in the construction of this deed;
(b) a day means a period of time commencing at midnight and
ending 24 hours later; and
(c) a month means a calendar month which is a period commencing
at the beginning of a day of one of the 12 months of the year
and ending immediately before the beginning of
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the corresponding day of the next month or, if there is no
such corresponding day, ending at the expiration of the next
month.
1.6.2 Where a period of time is specified, dates from a given day or the
day of an act or event must be calculated exclusive of that day.
1.6.3 Where something is done or received after 5.00pm on any day it
will be deemed to have been done on the following day.
1.6.4 A provision of this deed which has the effect of requiring
anything to be done on or by a date which is not a business day
must, unless the context otherwise requires, be interpreted as if
it required it to be done on or by the immediately following
business day.
1.7 CORPORATE RELATIONSHIPS
A reference to a person being associated with another person or a
company being related to or the subsidiary of another corporation
or being a holding company has the same meaning as in the
Corporations Law.
2. ADVANCE OF PRINCIPAL SUM
2.1 ADVANCES TO BORROWER
2.1.1 The aggregate amount of the Advances must not exceed the Principal
Sum.
2.1.2 The Lender will advance and the Borrower will accept the First
Advance on the date of this deed.
2.2 SECOND ADVANCE
2.2.1 The Borrower may request from the Lender the Second Advance by
delivering a drawdown notice to the Lender in the form of Schedule
1 (SECOND ADVANCE DRAWDOWN NOTICE).
2.2.2 The Borrower may deliver to the Lender a Second Advance Drawdown
Notice at any time on or before the date that is 6 months after
the date of this deed.
2.2.3 If the Borrower delivers to the Lender a Second Advance Drawdown
Notice, the Lender must advance to the Borrower the Second Advance
within three business days of the receipt of that Second Advance
Drawdown Notice unless:
(a) an Event of Default or Potential Event of Default has
occurred and has not been rectified or waived by the Lender;
or
(b) Senior Debt exceeds 70% of Total Group Tangible Assets and
this condition has not been waived by the Lender.
2.3 FURTHER ADVANCES
2.3.1 The Borrower may request a Further Advance by delivering a
drawdown notice to the Lender in the form of Schedule 2 (FURTHER
ADVANCE DRAWDOWN NOTICE).
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2.3.2 The Lender must advance to the Borrower each Further Advance
within three business days of determining that the Further Advance
Conditions have been met. The Lender may elect to waive any or all
of Further Advance Conditions (b), (c) and (d).
2.3.3 The Further Advance Conditions are:
(a) the parties have agreed the interest rate applicable to the
Further Advance which must be determined based on market
rates and lease yields at the time of funding;
(b) each further advance must be for a minimum of $1,000,000;
(c) no Event of Default or Potential Event of Default has
occurred which has not been rectified or waived by the Lender
; and
(d) Senior Debt does not exceed 70% of Total Group Tangible
Assets.
2.4 APPLICATION TO APPROVED PURPOSE
The Borrower must apply advances of the Principal Sum to an
Approved Purpose.
3. REPAYMENT OF BORROWER'S DEBT
3.1 REPAYMENT
Subject to the provisions of this deed, the Borrower must pay to
the Lender all money comprising the Borrower's Debt on the
Repayment Date.
3.2 PREPAYMENT
The Borrower may, with the approval of the Borrower's board of
directors, prepay all or part of the Principal Sum, without
penalty, on any business day provided that the Borrower gives the
Lender 3 days' written notice of its intention to make such
prepayment.
4. INTEREST
4.1 CALCULATION OF INTEREST
4.1.1 Interest on the unrepaid amount of the Advances advanced to the
Borrower will accrue from day to day and be computed on a daily
basis on a year of 365 days.
4.1.2 The rate of interest for the First and Second Advances will be the
Applicable Rate.
4.1.3 The rate of interest for any Further Advances will be the
determined by the parties prior to the making of each Further
Advance.
4.2 PAYMENT OF INTEREST
The Borrower must pay to the Lender:
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(a) the interest accrued in each 6 month period beginning on the
date of this agreement in accordance with clause 4.1 on the
first business day of the calendar month following the end of
that period; and
(b) on the Repayment Date, interest accrued in accordance with
clause 4.1 during the 6 month period ending on the Repayment
Date that has not been paid to the Lender in accordance with
paragraph (a).
4.3 PAYMENT OF INTEREST ON OVERDUE INTEREST
4.3.1 Interest not paid when due will as at the due date for its payment
be capitalised.
4.3.2 Payment of any amount of interest capitalised under clause 4.3.1
is not waived or postponed because of such capitalisation and the
Borrower will continue to be in default in respect of such
payment.
4.4 INTEREST ON OTHER MONEY
The Borrower must on demand pay interest calculated at the
Applicable Rate on daily balances of any money comprised in the
Borrower's Debt which does not otherwise bear interest under this
deed from the date it was outlaid or paid by the Lender or first
became due to the Lender to the date of its payment.
4.5 PLACE FOR PAYMENT OF INTEREST
The Borrower must pay all interest instalments directly into such
account as the Lender may nominate to the Borrower from time to
time or if no account is nominated then to the address set out in
Schedule 3.
5. GENERAL PAYMENT PROVISIONS
5.1 PAYMENT BY 2.00PM WITHOUT DEDUCTION OR SET OFF
5.1.1 All payments required to be made by the Borrower under this deed
must be made to the Lender in full in immediately available funds
prior to 2.00pm on the relevant due date (or any earlier time
specified) without any deduction.
5.1.2 The Borrower irrevocably and unconditionally waives any right of
set off, combination or counterclaim in relation to any such
payments.
5.2 CREDIT FOR PAYMENT
5.2.1 The Borrower will be given credit for a payment only upon its
actual receipt by the Lender in immediately available funds in the
currency in which it is due.
5.2.2 Subject to any obligation to make payment by an earlier time, if
payment is received by the Lender on a day which is not a business
day or after 2.00pm (at the place payment is due to be made) on
any business day, the Lender may refuse to credit receipt until
the next business day in which case the Borrower must pay interest
on that amount until the receipt is so credited.
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5.3 APPLICATION OF PAYMENTS
5.3.1 The Borrower irrevocably waives its right to determine the
appropriation of any money paid to the Lender. All payments will
be applied at the sole election of the Lender and any rule
determining application of payments does not apply. If the Lender
has not made an election it will be deemed to have applied
payments in the manner and against such money which is payable, as
is in its best interests.
5.3.2 Any money received by the Lender from the Borrower in excess of
money then presently or contingently payable under this deed must
be returned to the Borrower on written request. If the Borrower
does not make such a request, the Lender may place such money in
an interest bearing suspense account (determined in the sole
discretion of the Lender) and apply it against money owing under
this deed as it becomes presently payable. Money in the suspense
account belongs to the Lender. Upon payment in full of the
Borrower's Debt and the Lender being satisfied that no further
money will become owing by the Borrower, the Lender will pay to
the Borrower (as a debt due) an amount equal to the balance of the
suspense account (including any accrued interest, less any costs,
expenses and government taxes, duties or charges payable in
respect of that account).
5.4 SET OFF AGAINST OTHER ACCOUNTS
The Borrower irrevocably authorises the Lender at any time, after
the occurrence of an Event of Default (without notice to the
Borrower) to deduct from, set off against, or combine with any
amount in any currency standing to the credit of any account of
the Borrower with the Lender or any related corporation of the
Lender in or towards satisfaction of any sum at any time due and
payable by the Borrower under this deed. The Lender has no
obligation to exercise any rights under this clause. These rights
are in addition to any of the Lender's rights under general law.
5.5 PAYMENT IN WRONG CURRENCY
If the Lender receives a payment of money from the Borrower in a
currency other than that in which that payment is due, the
Borrower will be given credit:
(a) by reference to the spot rate or rates at which the Lender is
able to directly or indirectly purchase the currency in which
that payment is due;
(b) for the amount of the correct currency purchased after
deducting the costs of conversion; and
(c) on the date of settlement of the conversion into the currency
in which that payment is due.
5.6 PLACE FOR PAYMENT OF MONEY
Subject to any express written agreement to the contrary and
clause 4.5, all payments required to be made by the Borrower under
this deed must be paid to the Lender at the place notified to the
Borrower or, in the absence of such notice, at the Lender's
address as set out in Schedule 3.
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6. OPTIONS
6.1 FIRST ADVANCE
Upon the making of the First Advance, the Borrower must procure
that there is granted to the Lender 2, 500,000 Options on the
Option Terms.
6.2 SECOND ADVANCE
Upon the making of the Second Advance, the Borrower must procure
that there is granted to the Lender 2, 500,000 Options on the
Option Terms.
7. TRUST PROVISIONS
7.1 APPLICATION OF CLAUSE 7
This clause 7 applies where the Borrower has entered into this
deed as the trustee of a trust.
7.2 WARRANTIES RELATING TO THE TRUST
The Warrantors warrant to the Lender at the date of this
agreement:
(a) that a true and complete copy of the Trust Deed has been
supplied to the Lender;
(b) that the Trust is validly created and subsisting and no
circumstances exist pursuant to which it may be determined
and no date for the vesting of any of the trust fund has been
appointed other than as may be set out in the Trust Deed;
(c) that the Borrower is validly appointed the sole trustee of
the Trust, is not in breach of its obligations as trustee and
no circumstances exist pursuant to which it may be removed;
(d) that this deed is duly executed and granted pursuant to and
in proper exercise of the powers of the Borrower as trustee
of the Trust and all formalities required by the Trust Deed
in connection with this deed have been complied with;
(e) that the execution and performance of this deed and the
borrowing of an amount up to the Principal Sum is for a
proper purpose of and provides commercial benefit to the
Trust;
(f) that the Borrower is entitled to be fully indemnified out of
the assets of the Trust in respect of its liability for the
Borrower's Debt; and
(g) subject to the same limits in clause 4.4 to 4.15 of the
Subscription Agreements, each of the warranties in schedule 3
of the Subscription Agreements.
7.3 SPECIFIC PROHIBITIONS RELATING TO THE TRUST
The Borrower must not, without the Lender's consent:
(a) cause the Trust to be determined or a vesting date to be
appointed;
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(b) do anything which adversely affects the Borrower's right of
indemnity against the Trust assets;
(c) delegate any powers of the Borrower as trustee of the Trust
or exercise any power of appointment.
7.4 BORROWER'S RIGHT OF INDEMNITY
Without limiting any right of subrogation the Lender may have, the
Borrower must at the Lender's request exercise the Borrower's
right of indemnity against Trust assets to enable payment of the
Borrower's Debt to the Lender.
7.5 LENDER TO HAVE DIRECT ACCESS TO TRUST ASSETS
The Borrower grants the Lender direct access and recourse to the
Trust assets to satisfy its obligations under this deed. This
right is separate to and independent of the Lender's other rights
including, without limitation, its rights under clause 7.5.
7.6 NEW TRUSTEES
The Borrower must procure that any person who becomes a trustee of
the Trust (whether in replacement of or addition to the Borrower)
enters into a deed with the Lender whereby it agrees to perform
the obligations of the Borrower under this deed.
8. BORROWER'S LIABILITY LIMITED
8.1 The Borrower enters into this deed only in its capacity as trustee
of the Trust and in no other capacity. A liability arising under
or in connection with this deed is limited to and can be enforced
against the Borrower only to the extent to which it can be
satisfied out of property of the Trust out of which the Borrower
is actually indemnified for the liability. This limitation of the
Borrower's liability applies despite any other provision of this
deed and extends to all liabilities and obligations of the
Borrower in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this deed.
8.2 The Lender may not sue the Borrower in any capacity other than as
trustee of the Trust, including seek the appointment of a receiver
(except in relation to property of the Trust), a liquidator, an
administrator or any similar person to the Borrower or prove in
any liquidation, administration or arrangement of or affecting the
Borrower (except in relation to property of the Trust).
8.3 The provisions of this clause 8 shall not apply to any obligation
or liability of the Borrower to the extent that it is not
satisfied because under the trust deed establishing the Trust or
by operation of law there is a reduction in the extent of the
Borrower's indemnification out of the assets of the Trust, as a
result of the Borrower's fraud, negligence, wilful default or
breach of trust.
8.4 No act or omission of the Borrower will be considered fraud,
negligence, wilful default or breach of trust of the Borrower for
the purpose of clause 8.3 to the extent to which the act or
omission relates to any dealing or transaction whatsoever with or
in connection with a Related Entity.
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9. WARRANTIES AND INDEMNITIES
9.1 WARRANTIES
9.1.1 The Warrantors warrant to the Lender that as at the date of this
agreement:
(a) the Borrower has obtained all necessary consents and complied
with all internal procedures in relation to the execution and
performance of this deed;
(b) it has the power and the right to carry on its business, and
to enter into and exercise its rights and perform its
obligations under this deed; and
(c) its execution and performance of this deed does not and will
not:
(i) conflict with or violate any law, judgment, ruling,
order, document or agreement that binds it (including
its constituent documents); or
(ii) result in a Security Interest being created on, or
crystallising over, any of its assets.
9.1.2 The Warrantors warrant to the Lender that as at the date of this
agreement and at the date specified in each Second Advance
Drawdown Notice and Further Advance Drawdown Notice:
(a) no Event of Default or Potential Event of Default has
occurred or is likely to occur to the best of the Borrower's
knowledge;
(b) it is properly registered and validly exists;
(c) it has complied with all laws and Authorisations applicable
to it or its business where failure to do so would have or be
likely to have a Material Adverse Effect; and
(d) it is solvent.
9.2 INDEMNITIES
The Warrantors indemnify the Lender against all actions, claims,
demands, losses, damages, liabilities, costs and expenses of any
nature sustained or incurred at any time by the Lender arising
directly or indirectly from:
(a) a failure by the Borrower to pay the Borrower's Debt when
payable or comply with any other obligation owed to the
Lender under this deed;
(b) the Lender seeking to recover the Borrower's Debt from any
other person liable to pay it;
(c) a warranty in this deed being incorrect in any material
respect;
(d) judgment being given for the Borrower's Debt in a currency
other than that in which the Borrower's Debt is due;
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(e) the rate of interest applying to a judgment debt being less
than that applying to the original obligation to pay the
Borrower's Debt in respect of which judgment was obtained;
(f) a claim that a payment, obligation, settlement, transaction,
conveyance or transfer in connection with the Borrower's Debt
(or money which would be Borrower's Debt if the claim was
invalid) is void or voidable under any law relating to
insolvency, bankruptcy or the protection of creditors or for
any other reason being upheld conceded or compromised;
(g) the Lender acting as the Borrower's attorney or providing any
indemnity to any person so acting;
(h) the Lender paying (whether or not under a legal obligation)
any loss, cost or expense incurred by any officer, employee,
agent or consultant of the Lender in connection with this
deed; or
(i) the Lender acting on any notice, request, direction or
instruction given by or on behalf of the Borrower at any time
in connection with this deed.
10. UNDERTAKINGS
10.1 GENERAL UNDERTAKINGS
As long as any Borrower's Debt is outstanding, the Borrower
undertakes to the Lender that it will:
(a) (FINANCIAL INFORMATION): provide to the Lender, as soon as
practicable and, in any event, not later than 120 days after
the close of each of its financial years, a copy of its
audited (or unaudited if it is exempt from the requirement to
produce audited accounts) balance sheet and trading and
profit and loss account for that financial year in both cases
certified as correct by a properly qualified auditor approved
by the Borrower;
(b) (AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION): promptly
and, in any event, within 5 business days of giving such
documents or receiving such notifications, give the Lender
copies of all documents lodged by it with the Australian
Securities & Investments Commission (such as its annual
return and any notification of change to office holders) and
copies of any notification received by it from the Australian
Securities & Investments Commission relating to or alleging
an offence by the Borrower or any of its officers;
(c) (STOCK EXCHANGE): if the Borrower is listed on a stock
exchange, promptly and, in any event, within 5 business days
of giving such documents or receiving such notifications,
give the Lender copies of:
(i) any release made or notification given to that stock
exchange by the Borrower; and
(ii) any notification from that stock exchange relating to or
alleging an offence or breach of its rules;
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(d) (OTHER INFORMATION): provide the Lender with such other
financial and other information in relation to the Borrower
and any business carried on by the Borrower as the Lender may
from time to time require;
(e) notify the Lender, with reasonable details, as soon as it
becomes aware of an Event of Default or Potential Event of
Default and (if applicable) the steps taken or proposed to be
taken to remedy it.
10.2 FINANCIAL COVENANT
The Borrower undertakes that at all times Senior Debt will not
exceed 70% of Total Group Tangible Assets.
10.3 PROVISION OF INFORMATION
The Borrower will be deemed to have complied with any obligation
to provide information to the Lender if that information is
provided to the Lender or an AMP Associate in its capacity as a
Unitholder of the Trust.
11. EVENTS OF DEFAULT
11.1 LENDER'S RIGHT TO DEMAND PAYMENT OF BORROWER'S DEBT UPON EVENT OF
DEFAULT
Following the happening of an Event of Default, the Borrower must,
if the Lender (in its absolute discretion and at any time
irrespective of delay) so demands, immediately pay to the Lender
the whole of the Borrower's Debt.
11.2 NO NEED FOR NOTICE OF DEMAND OR TIME TO PAY
The Borrower is not entitled to any notice of any demand under
clause 11.1 or any period within which to pay under any such
demand.
11.3 EVENTS OF DEFAULT
An Event of Default occurs if:
(a) the Borrower fails to pay when payable any Borrower's Debt or
any other money which the Borrower is at any time liable to
pay to the Lender;
(b) [subject to paragraph (a), ]the Borrower defaults in a
material way in the performance or observance of any
obligation owed or undertaking given to the Lender which is
not payment of money and, to the extent that that default is
capable of remedy within 5 business days, it continues for 5
business days after written notice from the Lender requiring
its remedy;
(c) a warranty, representation, answer to requisition or
statutory declaration made or given by or on behalf of the
Borrower in connection with this deed is at any time found to
be materially incorrect or materially misleading;
(d) any of the following occurs in respect of the Borrower or
PHF:
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(i) an application is made, proceedings are initiated or a
meeting (whether of shareholders, creditors or
directors) is called with a view to winding it or any
part of its undertaking up or placing it or any part of
its undertaking under administration;
(ii) a receiver, liquidator or administrator is appointed;
(iii) a compromise or arrangement of the kind referred to in
part 5.1 of the Corporations Law is proposed;
(iv) an application is made or an action is initiated with a
view to cancelling its registration or appointing an
inspector or other officer to investigate any of its
affairs pursuant to any legislation;
(v) it is, or is or may be deemed within the meaning of any
applicable law to be, insolvent or unable to pay its
debts; or
(vi) circumstances exist which would enable a court upon
application to order its winding up pursuant to section
461 of the Corporations Law;
(e) distress is lawfully levied or a judgement or order is
enforced or executed on or against any asset of the Borrower
or any of those assets are attached to answer any judgement
debt and the relevant distress, judgment or order is not
satisfied within 28 days;
(f) a judgment for an amount in excess of 10% of the Principal
Sum is entered in any court against the Borrower and not
satisfied, appealed or set aside within 28 days;
(g) the Borrower fails to materially comply with a condition
attaching to a consent or approval issued by the Lender in
the context of this deed;
(h) in the Lender's opinion there is any change in the activities
of the Borrower which could have a Material Adverse Effect;
(i) the Borrower fails to comply with clause 10.2; or
(j) without limiting the operation of any other Event of Default,
any other event occurs or circumstance arises, financial or
otherwise, which is likely to have a Material Adverse Effect.
11.4 NOTIFICATION OF EVENTS OF DEFAULT
The Borrower must immediately notify the Lender of the occurrence
or likely occurrence of any Event of Default or Potential Event of
Default.
11.5 UNDERTAKING TO PREVENT EVENTS OF DEFAULT
The Borrower must prevent the occurrence of an Event of Default.
<PAGE> 96
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12. LENDER AS ATTORNEY FOR BORROWER
12.1 APPOINTMENT
For valuable consideration, the Borrower irrevocably appoints the
Lender, the directors and secretary of the Lender and any employee
whose title includes the word "manager" severally its attorneys
with full power in the name of the Borrower or the attorney to:
(a) do all acts, matters and things and execute all documents
which the attorney considers desirable or expedient:
(i) for the due performance of any obligation of the
Borrower under this deed; and
(ii) for more effectively securing to the Lender the due
performance of the Borrower's obligations under this
deed;
(b) complete any blanks and correct any manifest errors in this
deed and register this deed; and
(c) following the occurrence of an Event of Default, do anything
which the Lender or any receiver appointed by the Lender may
do by law.
12.2 ATTORNEY MAY ACT NOTWITHSTANDING CONFLICT
An attorney appointed under clause 12.1 may act notwithstanding
any conflict of interest.
13. COSTS AND DUTIES
13.1 BORROWER TO PAY ALL COSTS
The Borrower must pay to the Lender on demand all costs and
expenses (including legal costs on a full indemnity basis and out
of pocket expenses) properly and reasonably incurred by the Lender
and any officer of the Lender acting as attorney under this deed
in connection with:
(a) the occurrence of an Event of Default or Potential Event of
Default and the assessment of the Lender's rights and duties;
(b) the assessment of the Borrower's position following the
occurrence of an Event of Default or Potential Event of
Default.
13.2 BORROWER TO REIMBURSE FID AND OTHER TRANSACTION TAXES
The Borrower must reimburse the Lender all sums of financial
institutions duty and other duties, taxes or imposts incurred or
payable by the Lender in relation to the Principal Sum or receipt
of the Borrower's Debt and any other transaction pursuant to this
deed.
13.3 BORROWER TO PAY STAMP AND OTHER DUTIES
The Borrower must pay immediately upon demand by the Lender and in
any case by their due date all stamp, loan security and other
duties, imposts, taxes and levies arising directly or indirectly
in relation to this deed or any transaction contemplated or
evidenced by or variation
<PAGE> 97
-17-
of this deed. The Borrower must immediately reimburse the Lender
against any such duties, imposts, taxes and levies paid by the
Lender.
14. NOTICES
14.1 MODE OF GIVING DEMAND OR NOTICE
Any statement, demand or notice to the Borrower will be
effectively signed on behalf of the Lender if it is executed or
signed by the Lender, any director or secretary of the Lender, any
employee whose title includes the word "manager", the Lender's
solicitor or any person authorised by any of the above.
14.2 SERVICE OF DEMAND OR NOTICE
In addition to effecting service pursuant to any statute, any
statement, demand or notice to any party may be validly served for
the purposes of this deed by being delivered or sent by registered
post to the address of the addressee or sent by facsimile to the
facsimile number of the addressee. The address and facsimile
numbers of the parties for the purposes of this clause are those
set out in Schedule 3 or such others as are from time to time
notified in writing by one party to the other party. Service
pursuant to this clause is taken to be effected:
(a) where delivered, upon actual delivery;
(b) where sent by facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient,
except where actual delivery is made or the facsimile is sent
after 4.30pm or on a day which is not a business day. In such
cases service will be deemed to be effected at 9.00am on the
immediately following business day.
15. GENERAL
15.1 LENDER MAY DEAL WITH RIGHTS UNDER THIS DEED
15.1.1 The Lender may at any time sell, assign, transfer, negotiate,
grant participations in or otherwise dispose of or deal with all
or any part of its interest in this deed, or the Borrower's Debt
to an AMP Associate. The Borrower must at any time at the request
of the Lender execute and deliver to the Lender or to such person
as the Lender may specify all documents as the Lender may
reasonably require to effect such purpose.
15.1.2 The Lender may not sell, assign, transfer, negotiate, grant
participations in or otherwise dispose of or deal with all or any
part of its interest in this deed, or the Borrower's Debt other
than in accordance with clause 15.1.1 without the Borrower's
written consent.
15.1.3 The Lender may without notice to the Borrower disclose information
relating to the Borrower or the Borrower's Debt in connection with
a genuine proposal to assign any interest in the Borrower's Debt
or this deed.
<PAGE> 98
-18-
15.1.4 The Borrower may assign, novate or otherwise dispose of its rights
under this deed to an Omega Associate, but may not assign, novate
or otherwise dispose of its rights under this deed to any other
person without the Lender's written consent.
15.2 OBLIGATIONS NOT AFFECTED BY DELAY OR WAIVER
Unless expressly waived in writing by the Lender, any omission,
delay or waiver by the Lender does not affect the obligations of
the Borrower or the rights of the Lender under this deed.
15.3 NO MORATORIUM
The provisions of any legislation postponing payment of money,
reducing or fixing rates of interest or purporting to curtail or
restrict any rights of the Lender are to the extent that it is
lawful expressly excluded from application to this deed.
15.4 TIME OF THE ESSENCE
The Borrower and the Lender agree that time is of the essence in
relation to the performance of their obligations under this deed.
15.5 LENDER'S CONSENTS
15.5.1 Where the Lender's consent or approval is required pursuant to
this deed:
(a) unless otherwise expressed it may in the Lender's discretion
(and whether or not acting reasonably) be withheld or given
subject to terms or conditions; and
(b) it is not valid unless expressly given in writing by the
Lender.
15.5.2 Any consent given under this deed is not deemed to be consent in
the context of any other agreement. Nothing in this deed can
require the Lender to give its consent in the context of any other
agreement.
15.5.3 The Borrower must comply with the terms and conditions of any
consent.
15.5.4 The Borrower agrees that the Lender (and the Lender's employees
and consultants) owes no duty of care to the Borrower in issuing
any consent or approval and that in determining whether to proceed
with the thing consented to or approved the Borrower must rely
entirely on its own judgment and the advice of its own employees
and consultants.
15.6 SEVERABILITY OF PROVISIONS
Every provision of this deed is independent of the others. Any
provision which is prohibited or unenforceable in any jurisdiction
is to the extent of the prohibition or unenforceability deemed
removed without invalidating the remaining provisions.
15.7 APPLICABLE LAW
<PAGE> 99
-19-
This deed is governed by the laws from time to time in force in
New South Wales. The parties irrevocably and unconditionally
submit to the non-exclusive jurisdiction of the court system of
New South Wales.
<PAGE> 100
-20-
SCHEDULE 1
SECOND ADVANCE DRAWDOWN NOTICE
To: AMP Life Limited, ACN 079 300 379
From: PHF No.1 Pty Limited, ACN 082 747 313
Date: ##
DRAWDOWN NOTICE
DEED OF LOAN DATED ## 1999 BETWEEN PHF NO.1 PTY LIMITED IN ITS
CAPACITY AS TRUSTEE OF THE PRINCIPAL HEALTHCARE FINANCE UNIT TRUST
NO.2 AND AMP LIFE LIMITED ("DEED OF LOAN")
Dear Sirs
In accordance with clause 2.2.2 of the Deed of Loan we hereby request the Lender
to make the Second Advance.
Terms used in this Drawdown Notice and defined in the Deed of Loan have the same
meaning as in the Deed of Loan.
Details of the proposed Second Advance are as follows:
(a) Amount: $20,000,000.
(b) Drawdown Date: ## 1999
For and on behalf of
PHF No.1 Pty Limited
- -----------------------
Authorised signatory of PHF No.1 Pty Limited
<PAGE> 101
-21-
SCHEDULE 2
FURTHER ADVANCE DRAWDOWN NOTICE
To: AMP Life Limited, ACN 079 300 379
From: PHF No.1 Pty Limited, ACN 082 747 313
Date: ##
DRAWDOWN NOTICE
DEED OF LOAN DATED ## 1999 BETWEEN PHF NO.1 PTY LIMITED IN ITS
CAPACITY AS TRUSTEE OF THE PRINCIPAL HEALTHCARE FINANCE UNIT TRUST
NO.2 AND AMP LIFE LIMITED ("DEED OF LOAN")
Dear Sirs
In accordance with clause 2.3.1 of the Deed of Loan we hereby request the Lender
to make a Further Advance.
Terms used in this Drawdown Notice and defined in the Deed of Loan have the same
meaning as in the Deed of Loan.
Details of the proposed Further Advance are as follows:
(a) Amount: $##.
(b) Drawdown Date: ##
For and on behalf of
PHF No.1 Pty Limited
- -----------------------
Authorised signatory of PHF No.1 Pty Limited
<PAGE> 102
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SCHEDULE 3
SERVICE OF NOTICES
Borrower
Address: c/- Omega (Australia) Pty Limited, Suite 1601, 227 Elizabeth
Street, Sydney, NSW, 2000
Attention: Kevin Moss
Fax No: (02) 9267 0955
cc: Omega Worldwide, Inc., 900 Victors Way, Suite 345,
Ann Arbor, Michigan, 48108, USA
Attention: Essel W Bailey
Fax No: 0019 1 734 887 0301
cc: Omega (UK) Ltd 145 Cannon Street, London, EC4N 5BP
Attention: Jim Flaherty/ John Storey
Fax No: 0019 44 171 929 3555
cc: Phillips Fox, 255 Elizabeth Street, Sydney, NSW, 2000
Attention: Robert Tobias/Bill Chapman
Fax No: (02) 9283 4144
Lender
Address: AMP Life Limited
C/- AMP Asset Management Australia Pty Limited
Level 21, 33 Alfred Street Sydney 2000
Attention: Property Asset Manager No.1 Fund
Fax No: 9257 9367
<PAGE> 103
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EXECUTED AS A DEED
Signed, sealed and delivered by the attorney of PHF NO.1 PTY
LIMITED under power of attorney registered Book ------------ No
- ------------ in the presence of:
- ------------------------------- --------------------------------
Signature of witness Signature of attorney
- ------------------------------- --------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the attorney of OMEGA WORLDWIDE,
INC. under power of attorney registered Book ------------ No
- ------------ in the presence of:
- ------------------------------- --------------------------------
Signature of witness Signature of attorney
- ------------------------------- --------------------------------
Name of witness (print) Name of attorney (print)
Signed by the joint attorneys of AMP Life Limited under power
of attorney registered Book ------------- No ------------ in
the presence of:
- ------------------------------- --------------------------------
Signature of witness Signature of first attorney
- ------------------------------- --------------------------------
Name of witness (print) Name of first attorney (print)
- ---------------------------- --------------------------------
Signature of witness Signature of second attorney
<PAGE> 104
-24-
- ---------------------------- --------------------------------
Name of witness (print) Name of second attorney (print)
<PAGE> 105
-25-
SCHEDULE 5
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
TERMS OF 2004 OPTIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Where commencing with a capital letter:
ASSOCIATE means a Related Body Corporate of AMP and trusts and
funds managed by AMP or a Related Body Corporate of AMP.
BUSINESS DAY means any day that is not a Saturday, Sunday or a New
South Wales public holiday.
DIRECTORS means the directors for the time being of the Trustee.
EXERCISE NOTICE means a notice in the form of Schedule 1 to these
terms as varied from time to time by the Directors.
EXERCISE PRICE means, in respect of an Option, $4.00.
FAIR VALUE means the value of an Option determined in accordance
with clause 7.
LOAN AGREEMENT means the deed of loan dated on or about 1 April
1999 between PHF No.1 Pty Limited, AMP Life Limited and Omega
Worldwide, Inc.
OPTION means an option to acquire a Unit referred to on the front
of this certificate.
OPTION CERTIFICATE means this certificate.
OPTION EXERCISE PERIOD means, in respect of an Option, the period
from the date on which the Option is granted to 5pm on the
Repayment Date.
OPTION HOLDER means the holder of an Option.
PHF 2 OPTION means an option to acquire a unit in the PHF 2 Trust.
PHF 2 TRUST means the Principal Healthcare Finance Unit Trust No.2
established by the PHF 2 Trust Deed.
PHF 2 TRUST DEED means the deed dated 27 May 1998 between PHF No.1
Pty Limited as trustee and PHF No.2 Pty Limited as original unit
holder as amended on 29 January 1999.
<PAGE> 106
-26-
REGISTER means the register of options kept by the Trustee.
RELATED BODY CORPORATE has the same meaning as is given to that
expression in the Corporations Law
REPAYMENT DATE has the same meaning as in the Loan Agreement.
TRUST DEED means the deed dated 27 May 1998 between Tanoa Pty
Limited as trustee and Mindra Pty Limited as original unit holder,
as amended on 27 January 1999.
TRUST means the trust established by the Trust Deed.
TRUSTEE means the trustee for the time being of the Trust.
UNIT means a unit created under the provisions of the Trust Deed
which has not been redeemed.
UNIT HOLDERS means the persons registered as holders of Units
pursuant to the Trust Deed.
1.2 Where a word or phrase is given a defined meaning another part of
speech or other grammatical form in respect of that word or phrase
has a corresponding meaning.
1.3 Unless the context otherwise requires a word which denotes:
(a) the singular denotes the plural and vice versa;
(b) any gender denotes the other genders; and
(c) a person includes an individual, a body corporate, and a
government.
1.4 Unless the context otherwise requires a reference to:
(a) any legislation includes any regulation or instrument made
under it and where amended, re-enacted or replaced means that
amended, re-enacted or replacement legislation;
(b) any agreement or instrument where amended or replaced means
that agreement or instrument as amended or replaced;
(c) a rule or schedule is a reference to a rule of or schedule to
these terms;
(d) a group of persons includes any one or more of them; and
(e) a thing or amount is a reference to the whole and each part
of it.
1.5 A reference to these terms includes any schedules to these terms
and where amended means these terms as so amended.
1.6 Headings and the table of contents must be ignored in the
interpretation of these terms.
<PAGE> 107
-27-
2. LAPSE OF OPTIONS
Unless an Option has previously lapsed it lapses on and may not be
exercised by the Option Holder after the expiration of the Option
Exercise Period in respect of an Option.
3. EXERCISE OF OPTIONS
3.1 Subject to clause 3.2, an Option which has not lapsed may be
exercised at any time during an Option Exercise Period by the
Option Holder completing an Exercise Notice and lodging it with
the Trustee together with:
(a) payment for the Units in accordance with the Exercise Notice;
and
(b) the Option Certificate.
3.2 An Option must not be exercised unless a PHF 2 Option is exercised
at the same time. The Trustee will not issue any Unit pursuant to
the exercise of an Option unless a corresponding unit in the PHF 2
Trust is issued to the Option Holder at the same time.
3.3 The Trustee will, within 14 days of receipt of an Exercise Notice
in accordance with these terms, allot the number of Units referred
to in the Exercise Notice.
3.4 Upon allotment of Units in accordance with clause 3.3 the Trustee
must in respect of the Option Certificate lodged with the Trustee
in accordance with clause 3.1(b):
(a) if all the outstanding Options have been exercised, cancel
the Option Certificate;
(b) if part only of the outstanding Options have been exercised,
endorse the Option Certificate with the number of Options
that have been exercised and the number of outstanding
Options and return it to the Option Holder.
4. THE UNITS
4.1 Units issued pursuant to the exercise of an Option rank pari passu
in all respects with all other issued Units of the Trust.
4.2 An Option Holder has no interest in Units the subject of his
Options until those Options are exercised in accordance with these
terms and Units are allotted to the Option Holder pursuant to that
exercise.
5. TRANSFER OF OPTIONS
5.1 TRANSFER WITH CONSENT
5.1.1 Subject to the provisions of this clause 5 and clause 6 no Options
may be sold bought or otherwise transferred except with the
consent of the Trustee who has absolute and uncontrolled
discretion to give or refuse to give consent.
5.1.2 Any purported sale or transfer of Options in contravention of the
provisions of this clause is ineffective.
<PAGE> 108
-28-
5.2 TRANSFER OF OPTIONS
5.2.1 The Option Holder may not transfer an Option to any person other
than an Associate.
5.2.2 The transfer of an Option to an Associate does not require the
consent of the Trustee. The Option Holder must give the Trustee at
least 3 business days notice of such an intended transfer, and
must also notify the Trustee within 3 business days of such a
transfer being completed.
5.3 INSTRUMENT OF TRANSFER
5.3.1 A transfer of Options must be in the form set out in schedule 2 or
in such other form as the Trustee approves or by any other means
which the Trustee may from time to time approve.
5.3.2 Before registration of any transfer of Options pursuant to this
certificate the instrument of transfer (if any) will be executed
by or on behalf of both the transferor and transferee and will be
duly stamped.
5.4 FRACTIONAL OPTIONS PROHIBITED
Options may only be sold bought or otherwise disposed of or
transferred in integral number only.
6. TRANSMISSION OF OPTIONS
6.1 JOINT HOLDER
In the case of the death of an Option Holder, the survivors where
the deceased was a joint holder and the legal personal
representatives of the deceased in all other cases will be the
only persons recognised by the Trustee as having any title to the
Option.
6.2 TRANSMISSION
6.2.1 Subject to clause 5.5 any person becoming entitled to Options in
consequence of death lunacy or insolvency of any Option Holder may
upon obtaining the consent of the Trustee to the proposed election
and upon such evidence being produced as may from time to time be
required by the Trustee, elect either to be registered himself as
the holder of the Options or to have some person nominated by him
registered as the transferee thereof.
6.2.2 The Trustee will, in either case, have the same right to decline
or refuse registration as it would have had in the case of a
transfer of the Options of the holder prior to such death lunacy
or bankruptcy receivership liquidation official management or
other insolvency.
6.2.3 A person entitled to any Option by transmission will be entitled
to receive and may give a good discharge for all moneys payable in
respect of the Option but except as otherwise provided in this
certificate will not be entitled to any of the rights or
privileges of an Option Holder unless and until he will become
registered in respect of the Option.
<PAGE> 109
-29-
7. UNIT SPLITS, REVERSE UNIT SPLITS AND UNIT DISTRIBUTIONS BY THE
TRUST
If the Trustee gives effect to a subdivision or consolidation of
Units or makes a distribution payable in Units, then on exercise
of an Option, an Option Holder shall be entitled to receive a
proportionately greater or lesser number of Units, so that the
number of Units which it receives represents the same percentage
interest in the Trust as it would have obtained if it had
exercised the Option immediately prior to the consolidation or
subdivision or distribution.
8. MISCELLANEOUS
8.1 A notice which is given to a person under these terms may be
delivered to the person or posted by ordinary prepaid post to the
last known address of the person.
8.2 A notice is deemed to have been received:
(a) if delivered to the person, on receipt; and
(b) if posted by ordinary prepaid post to the person, 3 Business
Days after posting.
8.3 Any stamp duty payable on the issue and allotment of a Unit
acquired pursuant to the exercise of an Option must be borne by
the allottee of the Unit.
8.4 These terms are governed by and must be construed in accordance
with the laws of New South Wales.
* * *
<PAGE> 110
-30-
SCHEDULE 1
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
EXERCISE NOTICE
TO: PHF No.1 Management Pty Limited, ACN 086 801 041 (COMPANY)
I,
-----------------------------------------------------------------------------
(full name)
of
-----------------------------------------------------------------------------
(address)
wish to exercise [ ] 2004 Options (OPTIONS) held by me to acquire [ ] fully
paid Units in the Trust pursuant to the terms of the Options (TERMS).
I enclose:
(a) a cheque made payable to the Company in the amount of $[ ] being the
Exercise Price for [ ] Options (as defined in the Terms); and
(b) the Option Certificates (as defined in the Terms) in respect of the
Options.
Signature:
--------------------------------------------------------------------
Date:
-------------------------------------------------------------
<PAGE> 111
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SCHEDULE 2
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
TRANSFER OF OPTIONS
SELLER: ##
ADDRESS: ##
BUYER: ##
ADDRESS: ##
PARTICULARS OF THE OPTIONS:
TRUSTEE OF THE TRUST: PHF No.1 Management Pty Limited, ACN 086 801 041
NUMBER: ## DISTINGUISHING NUMBERS: ##
CLASS: ## OPTION EXPIRY DATE: 1 APRIL 2004
PURCHASE PRICE: $##
The Seller in consideration of the Purchase Price paid or agreed to be paid by
the Buyer transfers the Options to the Buyer, subject to the conditions on which
the Seller holds the Options at the date of this transfer.
The Buyer agrees to take the Options subject to those conditions.
DATED:
Executed by ## without a common seal acting by:
- --------------------------------- ---------------------------------
Signature of authorised person Signature of authorised person
- --------------------------------- ---------------------------------
Office held Office held
- --------------------------------- ---------------------------------
Name of authorised person (print) Name of authorised person (print)
<PAGE> 112
-32-
SCHEDULE 6
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 2
TERMS OF 2004 OPTIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Where commencing with a capital letter:
ASSOCIATE means a Related Body Corporate of AMP and trusts and
funds managed by AMP or a Related Body Corporate of AMP.
BUSINESS DAY means any day that is not a Saturday, Sunday or a New
South Wales public holiday.
DIRECTORS means the directors for the time being of the Trustee.
EXERCISE NOTICE means a notice in the form of Schedule 1 to these
terms as varied from time to time by the Directors.
EXERCISE PRICE means, in respect of an Option, $4.00.
FAIR VALUE means the value of an Option determined in accordance
with clause 7.
LOAN AGREEMENT means the deed of loan dated on or about 1 April
1999 between PHF No.1 Pty Limited, AMP Life Limited and Omega
Worldwide, Inc.
OPTION means an option to acquire a Unit referred to on the front
of this certificate.
OPTION CERTIFICATE means this certificate.
OPTION EXERCISE PERIOD means, in respect of an Option, the period
from the date on which the Option is granted to 5pm on the
Repayment Date.
OPTION HOLDER means the holder of an Option.
PHF 1 OPTION means an option to acquire a unit in the PHF 1 Trust.
PHF 1 TRUST means the Principal Healthcare Finance Unit Trust No.1
established by the PHF 1 Trust Deed.
PHF 1 TRUST DEED means the deed dated 27 May 1998 between Tanoa
Pty Limited as trustee and Mindra Pty Limited as original unit
holder as amended on 27 January 1999.
<PAGE> 113
-33-
REGISTER means the register of options kept by the Trustee.
RELATED BODY CORPORATE has the same meaning as is given to that
expression in the Corporations Law
REPAYMENT DATE has the same meaning as in the Loan Agreement.
TRUST DEED means the deed dated 27 May 1998 between PHF No.1 Pty
Limited as trustee and PHF No.2 Pty Limited as original unit
holder, as amended on 29 January 1999.
TRUST means the trust established by the Trust Deed.
TRUSTEE means the trustee for the time being of the Trust.
UNIT means a unit created under the provisions of the Trust Deed
which has not been redeemed.
UNIT HOLDERS means the persons registered as holders of Units
pursuant to the Trust Deed.
1.2 Where a word or phrase is given a defined meaning another part of
speech or other grammatical form in respect of that word or phrase
has a corresponding meaning.
1.3 Unless the context otherwise requires a word which denotes:
(a) the singular denotes the plural and vice versa;
(b) any gender denotes the other genders; and
(c) a person includes an individual, a body corporate, and a
government.
1.4 Unless the context otherwise requires a reference to:
(a) any legislation includes any regulation or instrument made
under it and where amended, re-enacted or replaced means that
amended, re-enacted or replacement legislation;
(b) any agreement or instrument where amended or replaced means
that agreement or instrument as amended or replaced;
(c) a rule or schedule is a reference to a rule of or schedule to
these terms;
(d) a group of persons includes any one or more of them; and
(e) a thing or amount is a reference to the whole and each part
of it.
1.5 A reference to these terms includes any schedules to these terms
and where amended means these terms as so amended.
1.6 Headings and the table of contents must be ignored in the
interpretation of these terms.
<PAGE> 114
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2. LAPSE OF OPTIONS
Unless an Option has previously lapsed it lapses on and may not be
exercised by the Option Holder after the expiration of the Option
Exercise Period in respect of an Option.
3. EXERCISE OF OPTIONS
3.1 Subject to clause 3.2, an Option which has not lapsed may be
exercised at any time during an Option Exercise Period by the
Option Holder completing an Exercise Notice and lodging it with
the Trustee together with:
(a) payment for the Units in accordance with the Exercise Notice;
and
(b) the Option Certificate.
3.2 An Option must not be exercised unless a PHF 1 Option is exercised
at the same time. The Trustee will not issue any Unit pursuant to
the exercise of an Option unless a corresponding unit in the PHF 1
Trust is issued to the Option Holder at the same time.
3.3 The Trustee will, within 14 days of receipt of an Exercise Notice
in accordance with these terms, allot the number of Units referred
to in the Exercise Notice.
3.4 Upon allotment of Units in accordance with clause 3.3 the Trustee
must in respect of the Option Certificate lodged with the Trustee
in accordance with clause 3.1(b):
(a) if all the outstanding Options have been exercised, cancel
the Option Certificate;
(b) if part only of the outstanding Options have been exercised,
endorse the Option Certificate with the number of Options
that have been exercised and the number of outstanding
Options and return it to the Option Holder.
4. THE UNITS
4.1 Units issued pursuant to the exercise of an Option rank pari passu
in all respects with all other issued Units of the Trust.
4.2 An Option Holder has no interest in Units the subject of his
Options until those Options are exercised in accordance with these
terms and Units are allotted to the Option Holder pursuant to that
exercise.
5. TRANSFER OF OPTIONS
5.1 TRANSFER WITH CONSENT
5.1.1 Subject to the provisions of this clause 5 and clause 6 no Options
may be sold bought or otherwise transferred except with the
consent of the Trustee who has absolute and uncontrolled
discretion to give or refuse to give consent.
5.1.2 Any purported sale or transfer of Options in contravention of the
provisions of this clause is ineffective.
<PAGE> 115
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5.2 TRANSFER OF OPTIONS
5.2.1 The Option Holder may not transfer an Option to any person other
than an Associate.
5.2.2 The transfer of an Option to an Associate does not require the
consent of the Trustee. The Option Holder must give the Trustee at
least 3 business days notice of such an intended transfer, and
must also notify the Trustee within 3 business days of such a
transfer being completed.
5.3 INSTRUMENT OF TRANSFER
5.3.1 A transfer of Options must be in the form set out in schedule 2 or
in such other form as the Trustee approves or by any other means
which the Trustee may from time to time approve.
5.3.2 Before registration of any transfer of Options pursuant to this
certificate the instrument of transfer (if any) will be executed
by or on behalf of both the transferor and transferee and will be
duly stamped.
5.4 FRACTIONAL OPTIONS PROHIBITED
Options may only be sold bought or otherwise disposed of or
transferred in integral number only.
6. TRANSMISSION OF OPTIONS
6.1 JOINT HOLDER
In the case of the death of an Option Holder, the survivors where
the deceased was a joint holder and the legal personal
representatives of the deceased in all other cases will be the
only persons recognised by the Trustee as having any title to the
Option.
6.2 TRANSMISSION
6.2.1 Subject to clause 5.5 any person becoming entitled to Options in
consequence of death lunacy or insolvency of any Option Holder may
upon obtaining the consent of the Trustee to the proposed election
and upon such evidence being produced as may from time to time be
required by the Trustee, elect either to be registered himself as
the holder of the Options or to have some person nominated by him
registered as the transferee thereof.
6.2.2 The Trustee will, in either case, have the same right to decline
or refuse registration as it would have had in the case of a
transfer of the Options of the holder prior to such death lunacy
or bankruptcy receivership liquidation official management or
other insolvency.
6.2.3 A person entitled to any Option by transmission will be entitled
to receive and may give a good discharge for all moneys payable in
respect of the Option but except as otherwise provided in this
certificate will not be entitled to any of the rights or
privileges of an Option Holder unless and until he will become
registered in respect of the Option.
<PAGE> 116
-36-
7. UNIT SPLITS, REVERSE UNIT SPLITS AND UNIT DISTRIBUTIONS BY THE
TRUST
If the Trustee gives effect to a subdivision or consolidation of
Units or makes a distribution payable in Units, then on exercise
of an Option, an Option Holder shall be entitled to receive a
proportionately greater or lesser number of Units, so that the
number of Units which it receives represents the same percentage
interest in the Trust as it would have obtained if it had
exercised the Option immediately prior to the consolidation or
subdivision or distribution.
8. MISCELLANEOUS
8.1 A notice which is given to a person under these terms may be
delivered to the person or posted by ordinary prepaid post to the
last known address of the person.
8.2 A notice is deemed to have been received:
(a) if delivered to the person, on receipt; and
(b) if posted by ordinary prepaid post to the person, 3 Business
Days after posting.
8.3 Any stamp duty payable on the issue and allotment of a Unit
acquired pursuant to the exercise of an Option must be borne by
the allottee of the Unit.
8.4 These terms are governed by and must be construed in accordance
with the laws of New South Wales.
* * *
<PAGE> 117
-37-
SCHEDULE 1
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
EXERCISE NOTICE
TO: PHF No.1 Pty Limited, ACN 082 747 313 (COMPANY)
I,
-----------------------------------------------------------------------------
(full name)
of
-----------------------------------------------------------------------------
(address)
wish to exercise [ ] 2004 Options (OPTIONS) held by me to acquire [ ] fully
paid Units in the Trust pursuant to the terms of the Options (TERMS).
I enclose:
(a) a cheque made payable to the Company in the amount of $[ ] being the
Exercise Price for [ ] Options (as defined in the Terms); and
(b) the Option Certificates (as defined in the Terms) in respect of the
Options.
Signature:
--------------------------------------------------------------------
Date:
-------------------------------------------------------------
<PAGE> 118
-38-
SCHEDULE 2
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
TRANSFER OF OPTIONS
SELLER: ##
ADDRESS: ##
BUYER: ##
ADDRESS: ##
PARTICULARS OF THE OPTIONS:
TRUSTEE OF THE TRUST: PHF No.1 Pty Limited, ACN 082 747 313
NUMBER: ## DISTINGUISHING NUMBERS: ##
CLASS: ## OPTION EXPIRY DATE: 1 APRIL 2004
PURCHASE PRICE: $##
The Seller in consideration of the Purchase Price paid or agreed to be paid by
the Buyer transfers the Options to the Buyer, subject to the conditions on which
the Seller holds the Options at the date of this transfer.
The Buyer agrees to take the Options subject to those conditions.
DATED:
Executed by ## without a common seal acting by:
- --------------------------------- ---------------------------------
Signature of authorised person Signature of authorised person
- --------------------------------- ---------------------------------
Office held Office held
- --------------------------------- ---------------------------------
Name of authorised person (print) Name of authorised person (print)
<PAGE> 119
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
TERMS OF 2004 OPTIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Where commencing with a capital letter:
ASSOCIATE means a Related Body Corporate of AMP and trusts and funds
managed by AMP or a Related Body Corporate of AMP.
BUSINESS DAY means any day that is not a Saturday, Sunday or a New
South Wales public holiday.
DIRECTORS means the directors for the time being of the Trustee.
EXERCISE NOTICE means a notice in the form of Schedule 1 to these terms
as varied from time to time by the Directors.
EXERCISE PRICE means, in respect of an Option, $4.00.
FAIR VALUE means the value of an Option determined in accordance with
clause 7.
LOAN AGREEMENT means the deed of loan dated on or about 1 April 1999
between PHF No.1 Pty Limited, AMP Life Limited and Omega Worldwide,
Inc.
OPTION means an option to acquire a Unit referred to on the front of
this certificate.
OPTION CERTIFICATE means this certificate.
OPTION EXERCISE PERIOD means, in respect of an Option, the period from
the date on which the Option is granted to 5pm on the Repayment Date.
OPTION HOLDER means the holder of an Option.
PHF 2 OPTION means an option to acquire a unit in the PHF 2 Trust.
PHF 2 TRUST means the Principal Healthcare Finance Unit Trust No.2
established by the PHF 2 Trust Deed.
PHF 2 TRUST DEED means the deed dated 27 May 1998 between PHF No.1 Pty
Limited as trustee and PHF No.2 Pty Limited as original unit holder as
amended on 29 January 1999.
REGISTER means the register of options kept by the Trustee.
RELATED BODY CORPORATE has the same meaning as is given to that
expression in the Corporations Law
REPAYMENT DATE has the same meaning as in the Loan Agreement.
<PAGE> 120
-2-
TRUST DEED means the deed dated 27 May 1998 between Tanoa Pty Limited
as trustee and Mindra Pty Limited as original unit holder, as amended
on 27 January 1999.
TRUST means the trust established by the Trust Deed.
TRUSTEE means the trustee for the time being of the Trust.
UNIT means a unit created under the provisions of the Trust Deed which
has not been redeemed.
UNIT HOLDERS means the persons registered as holders of Units pursuant
to the Trust Deed.
1.2 Where a word or phrase is given a defined meaning another part of
speech or other grammatical form in respect of that word or phrase has
a corresponding meaning.
1.3 Unless the context otherwise requires a word which denotes:
(a) the singular denotes the plural and vice versa;
(b) any gender denotes the other genders; and
(c) a person includes an individual, a body corporate, and a
government.
1.4 Unless the context otherwise requires a reference to:
(a) any legislation includes any regulation or instrument made under
it and where amended, re-enacted or replaced means that amended,
re-enacted or replacement legislation;
(b) any agreement or instrument where amended or replaced means that
agreement or instrument as amended or replaced;
(c) a rule or schedule is a reference to a rule of or schedule to
these terms;
(d) a group of persons includes any one or more of them; and
(e) a thing or amount is a reference to the whole and each part of it.
1.5 A reference to these terms includes any schedules to these terms and
where amended means these terms as so amended.
1.6 Headings and the table of contents must be ignored in the
interpretation of these terms.
2. LAPSE OF OPTIONS
Unless an Option has previously lapsed it lapses on and may not be
exercised by the Option Holder after the expiration of the Option
Exercise Period in respect of an Option.
<PAGE> 121
-3-
3. EXERCISE OF OPTIONS
3.1 Subject to clause 3.2, an Option which has not lapsed may be exercised
at any time during an Option Exercise Period by the Option Holder
completing an Exercise Notice and lodging it with the Trustee together
with:
(a) payment for the Units in accordance with the Exercise Notice; and
(b) the Option Certificate.
3.2 An Option must not be exercised unless a PHF 2 Option is exercised at
the same time. The Trustee will not issue any Unit pursuant to the
exercise of an Option unless a corresponding unit in the PHF 2 Trust is
issued to the Option Holder at the same time.
3.3 The Trustee will, within 14 days of receipt of an Exercise Notice in
accordance with these terms, allot the number of Units referred to in
the Exercise Notice.
3.4 Upon allotment of Units in accordance with clause 3.3 the Trustee must
in respect of the Option Certificate lodged with the Trustee in
accordance with clause 3.1(b):
(a) if all the outstanding Options have been exercised, cancel the
Option Certificate;
(b) if part only of the outstanding Options have been exercised,
endorse the Option Certificate with the number of Options that
have been exercised and the number of outstanding Options and
return it to the Option Holder.
4. THE UNITS
4.1 Units issued pursuant to the exercise of an Option rank pari passu in
all respects with all other issued Units of the Trust.
4.2 An Option Holder has no interest in Units the subject of his Options
until those Options are exercised in accordance with these terms and
Units are allotted to the Option Holder pursuant to that exercise.
5. TRANSFER OF OPTIONS
5.1 TRANSFER WITH CONSENT
5.1.1 Subject to the provisions of this clause 5 and clause 6 no Options may
be sold bought or otherwise transferred except with the consent of the
Trustee who has absolute and uncontrolled discretion to give or refuse
to give consent.
5.1.2 Any purported sale or transfer of Options in contravention of the
provisions of this clause is ineffective.
<PAGE> 122
-4-
5.2 TRANSFER OF OPTIONS
5.2.1 The Option Holder may not transfer an Option to any person other than
an Associate.
5.2.2 The transfer of an Option to an Associate does not require the consent
of the Trustee. The Option Holder must give the Trustee at least 3
business days notice of such an intended transfer, and must also notify
the Trustee within 3 business days of such a transfer being completed.
5.3 INSTRUMENT OF TRANSFER
5.3.1 A transfer of Options must be in the form set out in schedule 2 or in
such other form as the Trustee approves or by any other means which the
Trustee may from time to time approve.
5.3.2 Before registration of any transfer of Options pursuant to this
certificate the instrument of transfer (if any) will be executed by or
on behalf of both the transferor and transferee and will be duly
stamped.
5.4 FRACTIONAL OPTIONS PROHIBITED
Options may only be sold bought or otherwise disposed of or transferred
in integral number only.
6. TRANSMISSION OF OPTIONS
6.1 JOINT HOLDER
In the case of the death of an Option Holder, the survivors where the
deceased was a joint holder and the legal personal representatives of
the deceased in all other cases will be the only persons recognised by
the Trustee as having any title to the Option.
6.2 TRANSMISSION
6.2.1 Subject to clause 5.5 any person becoming entitled to Options in
consequence of death lunacy or insolvency of any Option Holder may upon
obtaining the consent of the Trustee to the proposed election and upon
such evidence being produced as may from time to time be required by
the Trustee, elect either to be registered himself as the holder of the
Options or to have some person nominated by him registered as the
transferee thereof.
6.2.2 The Trustee will, in either case, have the same right to decline or
refuse registration as it would have had in the case of a transfer of
the Options of the holder prior to such death lunacy or bankruptcy
receivership liquidation official management or other insolvency.
6.2.3 A person entitled to any Option by transmission will be entitled to
receive and may give a good discharge for all moneys payable in respect
of the Option but except as otherwise provided in this certificate will
not be entitled to any of the rights or privileges of an Option Holder
unless and until he will become registered in respect of the Option.
7. UNIT SPLITS, REVERSE UNIT SPLITS AND UNIT DISTRIBUTIONS BY THE TRUST
<PAGE> 123
-5-
If the Trustee gives effect to a subdivision or consolidation of Units
or makes a distribution payable in Units, then on exercise of an
Option, an Option Holder shall be entitled to receive a proportionately
greater or lesser number of Units, so that the number of Units which it
receives represents the same percentage interest in the Trust as it
would have obtained if it had exercised the Option immediately prior to
the consolidation or subdivision or distribution.
8. MISCELLANEOUS
8.1 A notice which is given to a person under these terms may be delivered
to the person or posted by ordinary prepaid post to the last known
address of the person.
8.2 A notice is deemed to have been received:
(a) if delivered to the person, on receipt; and
(b) if posted by ordinary prepaid post to the person, 3 Business Days
after posting.
8.3 Any stamp duty payable on the issue and allotment of a Unit acquired
pursuant to the exercise of an Option must be borne by the allottee of
the Unit.
8.4 These terms are governed by and must be construed in accordance with
the laws of New South Wales.
* * *
<PAGE> 124
-6-
SCHEDULE 1
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
EXERCISE NOTICE
TO: PHF No.1 Management Pty Limited, ACN 086 801 041 (COMPANY)
I,
------------------------------------------------------------------------------
(full name)
of
------------------------------------------------------------------------------
(address)
wish to exercise [ ] 2004 Options (OPTIONS) held by me to acquire [ ] fully paid
Units in the Trust pursuant to the terms of the Options (TERMS).
I enclose:
(a) a cheque made payable to the Company in the amount of $[ ] being the
Exercise Price for [ ] Options (as defined in the Terms); and
(b) the Option Certificates (as defined in the Terms) in respect of the
Options.
Signature:
----------------------------------------------------------------------
Date:
---------------------------------------------------------------------------
<PAGE> 125
-7-
SCHEDULE 2
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
TRANSFER OF OPTIONS
SELLER: ##
ADDRESS: ##
BUYER: ##
ADDRESS: ##
PARTICULARS OF THE OPTIONS:
TRUSTEE OF THE TRUST: PHF No.1 Management Pty Limited, ACN 086 801 041
NUMBER: ## DISTINGUISHING NUMBERS: ##
CLASS: ## OPTION EXPIRY DATE: 1 APRIL 2004
PURCHASE PRICE: $##
The Seller in consideration of the Purchase Price paid or agreed to be paid by
the Buyer transfers the Options to the Buyer, subject to the conditions on which
the Seller holds the Options at the date of this transfer.
The Buyer agrees to take the Options subject to those conditions.
DATED:
Executed by ## without a common seal acting by:
- --------------------------------- --------------------------------------------
Signature of authorised person Signature of authorised person
- --------------------------------- --------------------------------------------
Office held Office held
<PAGE> 126
-8-
- --------------------------------- --------------------------------------------
Name of authorised person (print) Name of authorised person (print)
<PAGE> 127
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 2
TERMS OF 2004 OPTIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Where commencing with a capital letter:
ASSOCIATE means a Related Body Corporate of AMP and trusts and funds
managed by AMP or a Related Body Corporate of AMP.
BUSINESS DAY means any day that is not a Saturday, Sunday or a New
South Wales public holiday.
DIRECTORS means the directors for the time being of the Trustee.
EXERCISE NOTICE means a notice in the form of Schedule 1 to these terms
as varied from time to time by the Directors.
EXERCISE PRICE means, in respect of an Option, $4.00.
FAIR VALUE means the value of an Option determined in accordance with
clause 7.
LOAN AGREEMENT means the deed of loan dated on or about 1 April 1999
between PHF No.1 Pty Limited, AMP Life Limited and Omega Worldwide,
Inc.
OPTION means an option to acquire a Unit referred to on the front of
this certificate.
OPTION CERTIFICATE means this certificate.
OPTION EXERCISE PERIOD means, in respect of an Option, the period from
the date on which the Option is granted to 5pm on the Repayment Date.
OPTION HOLDER means the holder of an Option.
PHF 1 OPTION means an option to acquire a unit in the PHF 1 Trust.
PHF 1 TRUST means the Principal Healthcare Finance Unit Trust No.1
established by the PHF 1 Trust Deed.
PHF 1 TRUST DEED means the deed dated 27 May 1998 between Tanoa Pty
Limited as trustee and Mindra Pty Limited as original unit holder as
amended on 27 January 1999.
REGISTER means the register of options kept by the Trustee.
RELATED BODY CORPORATE has the same meaning as is given to that
expression in the Corporations Law
<PAGE> 128
-2-
REPAYMENT DATE has the same meaning as in the Loan Agreement.
TRUST DEED means the deed dated 27 May 1998 between PHF No.1 Pty
Limited as trustee and PHF No.2 Pty Limited as original unit holder, as
amended on 29 January 1999.
TRUST means the trust established by the Trust Deed.
TRUSTEE means the trustee for the time being of the Trust.
UNIT means a unit created under the provisions of the Trust Deed which
has not been redeemed.
UNIT HOLDERS means the persons registered as holders of Units pursuant
to the Trust Deed.
1.2 Where a word or phrase is given a defined meaning another part of
speech or other grammatical form in respect of that word or phrase has
a corresponding meaning.
1.3 Unless the context otherwise requires a word which denotes:
(a) the singular denotes the plural and vice versa;
(b) any gender denotes the other genders; and
(c) a person includes an individual, a body corporate, and a
government.
1.4 Unless the context otherwise requires a reference to:
(a) any legislation includes any regulation or instrument made under
it and where amended, re-enacted or replaced means that amended,
re-enacted or replacement legislation;
(b) any agreement or instrument where amended or replaced means that
agreement or instrument as amended or replaced;
(c) a rule or schedule is a reference to a rule of or schedule to
these terms;
(d) a group of persons includes any one or more of them; and
(e) a thing or amount is a reference to the whole and each part of it.
1.5 A reference to these terms includes any schedules to these terms and
where amended means these terms as so amended.
1.6 Headings and the table of contents must be ignored in the
interpretation of these terms.
2. LAPSE OF OPTIONS
Unless an Option has previously lapsed it lapses on and may not be
exercised by the Option Holder after the expiration of the Option
Exercise Period in respect of an Option.
<PAGE> 129
-3-
3. EXERCISE OF OPTIONS
3.1 Subject to clause 3.2, an Option which has not lapsed may be exercised
at any time during an Option Exercise Period by the Option Holder
completing an Exercise Notice and lodging it with the Trustee together
with:
(a) payment for the Units in accordance with the Exercise Notice; and
(b) the Option Certificate.
3.2 An Option must not be exercised unless a PHF 1 Option is exercised at
the same time. The Trustee will not issue any Unit pursuant to the
exercise of an Option unless a corresponding unit in the PHF 1 Trust is
issued to the Option Holder at the same time.
3.3 The Trustee will, within 14 days of receipt of an Exercise Notice in
accordance with these terms, allot the number of Units referred to in
the Exercise Notice.
3.4 Upon allotment of Units in accordance with clause 3.3 the Trustee must
in respect of the Option Certificate lodged with the Trustee in
accordance with clause 3.1(b):
(a) if all the outstanding Options have been exercised, cancel the
Option Certificate;
(b) if part only of the outstanding Options have been exercised,
endorse the Option Certificate with the number of Options that
have been exercised and the number of outstanding Options and
return it to the Option Holder.
4. THE UNITS
4.1 Units issued pursuant to the exercise of an Option rank pari passu in
all respects with all other issued Units of the Trust.
4.2 An Option Holder has no interest in Units the subject of his Options
until those Options are exercised in accordance with these terms and
Units are allotted to the Option Holder pursuant to that exercise.
5. TRANSFER OF OPTIONS
5.1 TRANSFER WITH CONSENT
5.1.1 Subject to the provisions of this clause 5 and clause 6 no Options may
be sold bought or otherwise transferred except with the consent of the
Trustee who has absolute and uncontrolled discretion to give or refuse
to give consent.
5.1.2 Any purported sale or transfer of Options in contravention of the
provisions of this clause is ineffective.
<PAGE> 130
-4-
5.2 TRANSFER OF OPTIONS
5.2.1 The Option Holder may not transfer an Option to any person other than
an Associate.
5.2.2 The transfer of an Option to an Associate does not require the consent
of the Trustee. The Option Holder must give the Trustee at least 3
business days notice of such an intended transfer, and must also notify
the Trustee within 3 business days of such a transfer being completed.
5.3 INSTRUMENT OF TRANSFER
5.3.1 A transfer of Options must be in the form set out in schedule 2 or in
such other form as the Trustee approves or by any other means which the
Trustee may from time to time approve.
5.3.2 Before registration of any transfer of Options pursuant to this
certificate the instrument of transfer (if any) will be executed by or
on behalf of both the transferor and transferee and will be duly
stamped.
5.4 FRACTIONAL OPTIONS PROHIBITED
Options may only be sold bought or otherwise disposed of or transferred
in integral number only.
6. TRANSMISSION OF OPTIONS
6.1 JOINT HOLDER
In the case of the death of an Option Holder, the survivors where the
deceased was a joint holder and the legal personal representatives of
the deceased in all other cases will be the only persons recognised by
the Trustee as having any title to the Option.
6.2 TRANSMISSION
6.2.1 Subject to clause 5.5 any person becoming entitled to Options in
consequence of death lunacy or insolvency of any Option Holder may upon
obtaining the consent of the Trustee to the proposed election and upon
such evidence being produced as may from time to time be required by
the Trustee, elect either to be registered himself as the holder of the
Options or to have some person nominated by him registered as the
transferee thereof.
6.2.2 The Trustee will, in either case, have the same right to decline or
refuse registration as it would have had in the case of a transfer of
the Options of the holder prior to such death lunacy or bankruptcy
receivership liquidation official management or other insolvency.
6.2.3 A person entitled to any Option by transmission will be entitled to
receive and may give a good discharge for all moneys payable in respect
of the Option but except as otherwise provided in this certificate will
not be entitled to any of the rights or privileges of an Option Holder
unless and until he will become registered in respect of the Option.
7. UNIT SPLITS, REVERSE UNIT SPLITS AND UNIT DISTRIBUTIONS BY THE TRUST
<PAGE> 131
-5-
If the Trustee gives effect to a subdivision or consolidation of Units
or makes a distribution payable in Units, then on exercise of an
Option, an Option Holder shall be entitled to receive a proportionately
greater or lesser number of Units, so that the number of Units which it
receives represents the same percentage interest in the Trust as it
would have obtained if it had exercised the Option immediately prior to
the consolidation or subdivision or distribution.
8. MISCELLANEOUS
8.1 A notice which is given to a person under these terms may be delivered
to the person or posted by ordinary prepaid post to the last known
address of the person.
8.2 A notice is deemed to have been received:
(a) if delivered to the person, on receipt; and
(b) if posted by ordinary prepaid post to the person, 3 Business Days
after posting.
8.3 Any stamp duty payable on the issue and allotment of a Unit acquired
pursuant to the exercise of an Option must be borne by the allottee of
the Unit.
8.4 These terms are governed by and must be construed in accordance with
the laws of New South Wales.
* * *
<PAGE> 132
-6-
SCHEDULE 1
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
EXERCISE NOTICE
TO: PHF No.1 Pty Limited, ACN 082 747 313 (COMPANY)
I,
-----------------------------------------------------------------------------
(full name)
of
-----------------------------------------------------------------------------
(address)
wish to exercise [ ] 2004 Options (OPTIONS) held by me to acquire [ ] fully paid
Units in the Trust pursuant to the terms of the Options (TERMS).
I enclose:
(a) a cheque made payable to the Company in the amount of $[ ] being the
Exercise Price for [ ] Options (as defined in the Terms); and
(b) the Option Certificates (as defined in the Terms) in respect of the
Options.
Signature:
----------------------------------------------------------------------
Date:
--------------------------------------------------------------------------
<PAGE> 133
-7-
SCHEDULE 2
PRINCIPAL HEALTHCARE FINANCE UNIT TRUST NO. 1
2004 OPTIONS
TRANSFER OF OPTIONS
SELLER: ##
ADDRESS: ##
BUYER: ##
ADDRESS: ##
PARTICULARS OF THE OPTIONS:
TRUSTEE OF THE TRUST: PHF No.1 Pty Limited, ACN 082 747 313
NUMBER: ## DISTINGUISHING NUMBERS: ##
CLASS: ## OPTION EXPIRY DATE: 1 APRIL 2004
PURCHASE PRICE: $##
The Seller in consideration of the Purchase Price paid or agreed to be paid by
the Buyer transfers the Options to the Buyer, subject to the conditions on which
the Seller holds the Options at the date of this transfer.
The Buyer agrees to take the Options subject to those conditions.
DATED:
Executed by ## without a common seal acting by:
- -------------------------------- -------------------------------------------
Signature of authorised person Signature of authorised person
- -------------------------------- -------------------------------------------
Office held Office held
<PAGE> 134
-8-
- -------------------------------- -------------------------------------------
Name of authorised person (print) Name of authorised person (print)
<PAGE> 135
DEED dated 1999
PARTIES
PHF NO. 3 MANAGEMENT PTY LIMITED (ACN 086 081 023) of Suite 1601, 227 Elizabeth
Street Sydney NSW 2000 (PHF 3 TRUSTEE)
PHF NO. 2 PTY LIMITED (ACN 082 747 288) of Suite 1601, 227 Elizabeth Street
Sydney NSW 2000 (PHF 4 TRUSTEE)
AMP LIFE LIMITED (ACN 079 300 379) of Level 24, AMP Building, 33 Alfred Street
Sydney NSW 2000 (AMP)
RECITALS
A AMP is or will become entitled to Options.
B AMP has agreed to sell, or procure the sale, of certain Options to
PHF 3 Trustee and PHF 4 Trustee on the terms set out in this deed.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
In this deed:
ASSOCIATE means a Related Body Corporate of AMP and trusts and
funds managed by AMP or a Related Body Corporate of AMP.
DEED OF LOAN means the deed of loan made between PHF No. 1 Pty
Limited and AMP on the date of this deed.
OPTIONS means any options to acquire stapled units in the Trusts
granted to AMP in accordance with the Deed of Loan.
PHF1 TRUST means the Principal Healthcare Finance Unit Trust No.1
established by the deed of trust dated 27 May 1998 between Mindra
Pty Limited and Tanoa Pty Limited, as amended on 27 January 1999.
PHF2 TRUST means the Principal Healthcare Finance Unit Trust No.2
established by the deed of trust dated 27 May 1998 between PHF
No.1 Pty Limited and PHF No.2 Pty Limited, as amended on 29
January 1999.
<PAGE> 136
-2-
RELATED BODIES CORPORATE has the meaning in the Corporations Law.
TRUSTS means PHF1 Trust and PHF2 Trust.
UNITS means units in the Trusts.
2. OPTIONS
2.1 EFFECT OF EXERCISE OF OPTIONS
If by reason of the exercise of any Option:
(a) AMP;
(b) any Associate; or
(c) AMP and any Associate together,
would become the registered holder of more than 49.9% of the Units
AMP must, or must procure, subject to this deed, that no Option is
exercised which would result in that event.
2.2 EXERCISE NOTICE
AMP or an Associate (OFFEROR) may give a written notice (EXERCISE
NOTICE) to PHF3 Trustee and PHF4 Trustee which specifies a number
of Options equal to the number of Options which AMP or an
Associate wishes to exercise and which would, if exercised, cause
AMP to be in breach of clause 2.1 (SALE OPTIONS).
2.3 OFFER TO SELL
An exercise notice constitutes an offer to PHF3 Trustee to
purchase the sale options granted by PHF1 Trust and to PHF2
Trustee to purchase the sale options granted by PHF2 Trust in both
cases for the consideration determined pursuant to clause 2.4
(OFFER). An exercise notice may include several Options and in
such case will operate as if it were a separate notice in respect
of each sale option. An offer will not be revocable except with
the consent of PHF3 Trustee and PHF4 Trustee.
2.4 CONSIDERATION
2.4.1 The consideration payable for each sale option is:
(a) the amount agreed between offeror and PHF3 Trustee and PHF4
Trustee; or
(b) failing agreement within 14 days following the receipt of
the relevant exercise notice, the amount determined by a
valuer agreed upon by offeror and PHF3 Trustee and PHF4
Trustee or, failing agreement within 21 days following the
receipt of the relevant exercise notice, a valuer nominated
by the President for the time being of The Institute of
Chartered Accountants in Australia (EXPERT).
<PAGE> 137
-3-
2.4.2 The expert will be deemed to be acting as an expert and not an
arbitrator.
2.4.3 The costs of the expert will be shared equally between offeror, on
the one hand and PHF3 Trustee and PHF4 Trustee, on the other hand.
2.5 ACCEPTANCE OF OFFER
PHF3 Trustee and PHF4 Trustee or their nominee may accept an offer
for all or any of the sale options within 30 days after either:
(a) the consideration payable for each sale option is agreed
pursuant to clause 2.4.1 (a); or
(b) the consideration payable for each sale option is
determined pursuant to clause 2.4.1 (b),
whichever is the later, by notice in writing to offeror specifying
the number of sale options which are accepted (ACCEPTANCE NOTICE).
2.6 BINDING OBLIGATION
Upon receipt by offeror of an acceptance notice offeror will be
bound to sell and PHF3 Trustee will be bound to purchase the
number of sale options granted by PHF1 Trust specified in the
relevant acceptance notice and PHF4 Trustee will be bound to
purchase the number of sale options granted by PHF2 Trust
specified in the relevant acceptance notice for the consideration
agreed or determined pursuant to clause 2.4.1. Completion of the
sale and purchase will take place at the office of Omega
(Australia) Pty limited or at such other place as may be agreed by
the offeror and PHF3 Trustee and PHF4 Trustee and within 14 days
after the giving of the acceptance notice by:
(a) the offeror delivering to PHF3 Trustee and PHF4 Trustee a
proper transfer of the sale options and the relevant option
certificates; and
(b) PHF3 Trustee and PHF4 Trustee paying to the offeror the
consideration for the Options.
2.7 EXERCISE OF OPTIONS
If PHF3 Trustee and PHF4 Trustee does not accept an offer pursuant
to clause 2.5 in respect of all the sale options offeror may
exercise the remaining sale options at any time.
3. WARRANTIES
AMP represents and warrants to PHF3 Trustee and PHF4 Trustee that
on the completion of the sale of any sale options pursuant to this
deed offeror is entitled to sell and procure the transfer of the
full legal and beneficial ownership in the sale options to PHF3
Trustee and PHF4 Trustee on the terms set out in this deed free
from all encumbrances and third party rights.
<PAGE> 138
-4-
4. NOTICE
NOTICE IN WRITING
4.1 A party giving notice or notifying under this deed must do so in
writing:
4.1.1 directed to the recipient's address set out in SCHEDULE 1, as
varied by any notice; and
4.1.2 hand delivered or sent by prepaid post or facsimile to that
address.
RECEIPT OF NOTICE
4.2 A notice given in accordance with CLAUSE 8.1 is taken to be
received:
4.2.1 if hand delivered, on delivery;
4.2.2 if sent by prepaid post, two business days after the date of
posting; or
4.2.3 if sent by facsimile, when the sender's facsimile system generates
a message confirming successful transmission of the total number
of pages of the notice unless, within eight business hours after
that transmission, the recipient informs the sender that it has
not received the entire notice.
5. MISCEALLENOUS
5.1 JOINT AND SEVERAL
An agreement warranty representation or obligation which binds or
benefits two or more persons under this agreement binds or
benefits those persons jointly and separately.
5.2 SEVERABILITY
Part or all of any provision of this deed that is illegal or
unenforceable may be severed from this deed and the remaining
provisions of this deed continue in force.
5.3 COUNTERPARTS
This deed may be executed in any number of counterparts.
5.4 ENTIRE AGREEMENT
This deed:
(a) constitutes the entire agreement between the parties as to
its subject matter; and
(b) in relation to that subject matter, supersedes any prior
understanding or agreement between the parties and any
prior condition, warranty, indemnity or representation
imposed, given or made by a party.
<PAGE> 139
-5-
5.5 FURTHER ASSURANCE
Each party must promptly execute all documents and do all things
that another party from time to time reasonably requests to
effect, perfect or complete this agreement and all transactions
incidental to it.
5.6 EFFECT OF COMPLETION
Each of the obligations, warranties and undertakings set out in
this agreement which is not fully performed at completion will
continue in force after completion.
5.7 GOVERNING LAW AND JURISDICTION
5.7.1 This deed is governed by the law applicable in New South Wales.
5.7.2 Each party submits to the non-exclusive jurisdiction of the courts
of New South Wales.
6. INTERPRETATION
6.1 In this deed, unless the contrary intention appears:
6.1.1 headings are for ease of reference only and do not affect the
meaning of this deed;
6.1.2 the singular includes the plural and vice versa and words
importing a gender include other genders;
6.1.3 other grammatical forms of defined words or expressions have
corresponding meanings;
6.1.4 a reference to a clause, paragraph, schedule or annexure is a
reference to a clause or paragraph of or schedule or annexure to
this deed and a reference to this deed includes any schedules and
annexures;
6.1.5 a reference to a document or agreement, including this deed,
includes a reference to that document or agreement as novated,
altered or replaced from time to time;
6.1.6 a reference to a right or obligation of any two or more persons
confers that right or imposes that obligation as the case may be
jointly and severally;
6.1.7 a reference to any party to this deed or any other agreement or
document or to any other body or person referred to in this deed
includes that party body or person's successors or permitted
assigns;
6.1.8 a reference to a specific time for the performance of an
obligation is a reference to that time in the State, Territory or
other place where that obligation is to be performed;
6.1.9 words and expressions importing natural persons include
partnerships, bodies corporate, associations, governments and
governmental and local authorities and agencies.
<PAGE> 140
-6-
EXECUTED as a Deed
Signed, sealed and delivered by the
attorney of PHF NO. 1 MANAGEMENT PTY
Limited under power of attorney registered
Book ............ No ............ in the
presence of:
- --------------------------------- ---------------------------------
Signature of witness Signature of attorney
- --------------------------------- ---------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the
attorney of PHF NO. 3 MANAGEMENT PTY
Limited under power of attorney registered
Book ............ No ............ in the
presence of:
- --------------------------------- ---------------------------------
Signature of witness Signature of attorney
- --------------------------------- ---------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the
attorney of PRINCIPAL HEALTHCARE FINANCE
PTY LIMITED under power of attorney
registered Book ............ No
............ in the presence of:
<PAGE> 141
-7-
- --------------------------------- ---------------------------------
Signature of witness Signature of attorney
- --------------------------------- ---------------------------------
Name of witness (print) Name of attorney (print)
Signed, sealed and delivered by the
attorney of OMEGA WORLDWIDE, INC. under
power of attorney registered Book
............ No ............ in the
presence of:
- --------------------------------- ---------------------------------
Signature of witness Signature of attorney
- --------------------------------- ---------------------------------
Name of witness (print) Name of attorney (print)
SIGNED, SEALED AND DELIVERED by ## and as
joint attorneys for AMP LIFE LIMITED under
power of attorney dated ## registered book
no. ## in the presence of:
- --------------------------------- ---------------------------------
Witness
Attorney
- --------------------------------- ---------------------------------
Witness
<PAGE> 142
-8-
Attorney
By executing this deed the attorneys state that they have not received notice of
revocation of the power of attorney
<PAGE> 143
SCHEDULE 1
NOTICES
(CLAUSE 5.1)
PHF NO. 2 PTY LIMITED, PHF NO. 3 MANAGEMENT PTY LIMITED,
Address: Suite 1601, 227 Elizabeth Street, Sydney, NSW, 2000
Facsimile: 61 2 9267 0955
Attention: K.W. Moss
CC: PHILLIPS FOX
Address: 255 Elizabeth Street, Sydney, NSW, 2000
Facsimile: 61 2 9283 4144
Attention: R.W. Tobias/W.G. Chapman
OMEGA WORLDWIDE, INC.
Address: 900 Victors Way, Suite 345, Ann Arbor, Michigan,
48108, United States of America
Facsimile: 1 734 887 0301
CC: OMEGA (UK) LIMITED
Address: 145 Cannon Street, London, EC4N, 5BP
Facsimile: 44 171 929 3555
Attention: James P. Flaherty/John Storey
<PAGE> 144
AMP LIFE LIMITED
Address: Property Asset Manager No.1 Fund
AMP Asset Management Australia Limited
Level 21, 33 Alfred Street Sydney 2000
Facsimile: 61 2 9257 9367
<PAGE> 145
ADVISORY AGREEMENT
PHF NO.1 MANAGEMENT PTY LIMITED
PHF NO.1 PTY LIMITED
OMEGA (AUSTRALIA) PTY LIMITED
- PHILLIPS FOX -
LAWYERS
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site:
http://www.PhillipsFox.com.au
Ref:WGC:959248
<PAGE> 146
<TABLE>
<CAPTION>
CONTENTS
<S> <C> <C>
1. DUTIES OF THE ADVISOR...........................................................................1
2. NO PARTNERSHIP OR JOINT VENTURE.................................................................3
3. RECORDS.........................................................................................4
4. BANK ACCOUNTS...................................................................................4
5. BOND............................................................................................4
6. INFORMATION FURNISHED TO ADVISOR................................................................4
7. CONSULTATION AND ADVICE..........................................................................
8. ANNUAL BUSINESS PLAN AND BUDGET.................................................................5
9. DEFINITIONS.....................................................................................5
10. INVESTED ASSETS FEE, INCENTIVE FEE..............................................................8
11. STATEMENTS......................................................................................9
12. COMPENSATION FOR ADDITIONAL SERVICES............................................................9
13. EXPENSES OF THE ADVISOR.........................................................................9
14. EXPENSES OF THE TRUSTEES.......................................................................10
15. OTHER ACTIVITIES OF ADVISOR....................................................................11
16. TERM; TERMINATION OF AGREEMENT.................................................................12
17. AMENDMENTS.....................................................................................13
18. DEFAULT, BANKRUPTCY, ETC.......................................................................13
19. ASSIGNMENT.....................................................................................14
20. ACTION UPON TERMINATION........................................................................15
21. LIMITS OF ADVISOR RESPONSIBILITY...............................................................15
22. NOTICES........................................................................................15
23. HEADINGS.......................................................................................16
24. GOVERNING LAW; CONSENT TO JURISDICTION.........................................................17
25. JOINDER........................................................................................17
</TABLE>
<PAGE> 147
<TABLE>
<S> <C> <C>
26. ENTIRE AGREEMENT...............................................................................17
</TABLE>
<PAGE> 148
ADVISORY AGREEMENT
THIS AGREEMENT IS MADE ON 1999
PARTIES
PHF NO.1 MANAGEMENT PTY LIMITED ACN 086 801 041 in its capacity as trustee
of the Principal Healthcare Finance Unit Trust No.1 of C/- Phillips Fox, 255
Elizabeth Street, Sydney, New South Wales (MANAGEMENT)
PHF NO.1 PTY LIMITED ACN 082 747 313 in its capacity as trustee of the
Principal Healthcare Finance Unit Trust No.2 of C/- Phillips Fox, 255
Elizabeth Street, Sydney, New South Wales (PHF NO.1)
OMEGA (AUSTRALIA) PTY LIMITED ACN 082 747 331 of C/- Phillips Fox, 255
Elizabeth Street, Sydney, New South Wales (ADVISOR)
RECITALS
A. The Trustees, as trustees of the Trusts, are the unitholders in
PHFT which, through its trustee, Principal, is in the business
of, inter alia, acquiring real estate for the provision of
health care services, which real estate is to be leased to and
operated by Health Care Operators.
B. The Advisor, its Related Entities and its employees have
experience in the administration of real estate assets used to
provide health care services and the origination, structuring
and evaluation of real estate and mortgage investments and
leasing activities related to the health care industry.
C. The Advisor has agreed to provide certain management,
administration and advisory services to the Trustees and any
Related Body Corporate of the Trustees on the terms and
conditions set out in this agreement.
AGREEMENT
1. DUTIES OF THE ADVISOR
1.1 The Advisor will provide such services and activities relating to
the assets, operations and business plans of the Trustees and
Related Bodies Corporateof the Trustees as may be appropriate,
including:
(a) assisting in the preparation of annual budgets and business
plans for approval by the Board (the BUSINESS PLANS);
<PAGE> 149
2
(b) using its best efforts to present to the Trustees a
continuing investment program consistent with the
investment policies and objectives of the Trustees as set
out in the Business Plans;
(c) using its best efforts to present to the Trustees
investment opportunities consistent with the Business Plans
and such investment program as the Board may adopt from
time to time;
(d) furnishing or obtaining and supervising the performance of
the administration of the day-to-day operations of the
Trustees, including the investment of reserve funds and
surplus cash in short-term money market investments;
(e) serving as one of the Trustees' investment and financial
advisors and providing research, economic, and statistical
data in connection with the Trustees' investments and
investment and financial policies;
(f) assisting the Trustees in investigating, selecting and
negotiating with borrowers, lenders, mortgagors, brokers,
investors, builders, developers and others;
(g) consulting with the Board and providing the Board with
advice and recommendations with respect to the making,
acquiring (by purchase, investment, exchange, or
otherwise), holding, and disposition (through sale,
exchange, or otherwise) of investments consistent with the
Business Plans;
(h) advising the Board with respect to such services as may be
required in acquiring and disposing of investments,
disbursing and collecting the funds of the Trustees, paying
the debts and fulfilling the obligations of the Trustees,
and handling, prosecuting, and settling any claims of the
Trustees, including enforcing leases, guarantees, mortgages
and other encumbrances securing investments;
(i) assisting the Trustees in obtaining such services as may be
required for property management, loan disbursements, and
other activities relating to the investments of the
Trustees, so long as the compensation for such services is
to be agreed to by the Trustees and the service provider;
(j) advising the Trustees in connection with capital market
activities;
(k) quarterly, and at any time requested by the Board making
reports to the Board regarding the Trustees' performance to
date in relation to the Trustees' current approved Business
Plans and their various components, as well as the
Advisor's performance of its services under this agreement;
(l) making or providing appraisal reports, where appropriate,
on investments or contemplated investments of the Trustees;
(m) assisting in preparation of reports and other documents
necessary to satisfy the reporting and other requirements
of any governmental bodies or agencies and
<PAGE> 150
3
assisting in maintaining effective communications with
shareholders of the Trustees;
(n) doing all things necessary to ensure its ability to render
the services contemplated herein, including providing
office space and office furnishings, computing and
accounting equipment and personnel necessary for the
performance of the foregoing services as Advisor, all at
its own expense, except as otherwise expressly provided for
herein;
(o) advising the Trustees on the structuring of investments in
any Related Bodies Corporate of the Trustees or Unitholders
in the Trusts and the management of the activities of any
Related Bodies Corporate of the Trustees or Unitholders in
the Trusts; and
(p) semi-annually or otherwise as required by the Board,
liasing with independent experts to provide independent
market valuations of units and options over units in the
Trusts, which valuations will be at the cost of the Trusts
and not the Advisor.
1.2 In performing its services under this agreement, the Advisor
acknowledges that:
(a) it is doing so pursuant to a delegation of day to day
management by the Board, which delegation remains under the
supervision and control of the Board; and
(b) the Board and not the Advisor maintains ultimate authority
for the conduct of the business of the Trustees.
1.3 The Trustees acknowledge that the Advisor will perform its services
under this agreement through facilities, personnel and support
services located at its Australian, United States and United
Kingdom offices through personnel selected by the Advisor.
1.4 In performing its services under this agreement, the Advisor may
utilise facilities, personnel and support services of various of
its affiliates, whether located within or outside Australia. The
Advisor shall reimburse such affiliates for their services and
facilities out of the compensation provided for in Section 10.
Notwithstanding the above, the Trustees may request, and will pay
for the direct costs of, additional services (as described in
Section 12 of this agreement). The Advisor will engage in other
activities related to real estate and not related to the Trustees
or its assets, as contemplated in Section 15.
2. NO PARTNERSHIP OR JOINT VENTURE
The Trustees and the Advisor are not partners or joint venturers
with each other. Nothing in this agreement will be construed so as
to make them such partners or joint venturers or impose any
liability as such on either of them. Nothing contained in this
agreement authorises either party to act as agent or
representative of the other party or to authorise either party to
create any obligation on behalf of the other party.
<PAGE> 151
4
3. RECORDS
The Advisor must, at all times keep proper books of account and
records of the Trustees' affairs which shall be accessible for
inspection by the Trustees at the Advisor's principal office in
Australia or at the offices of it's Related Entities in the United
States and at any time during business hours on giving reasonable
notice.
4. BANK ACCOUNTS
The Advisor may establish and maintain one or more bank accounts
in its own name, and may collect and deposit into such account or
accounts, and disburse from any such account or accounts, any
money on behalf of the Trustees, under such terms and conditions
as the Board may approve. No funds in any such account shall be
commingled with funds of the Advisor or another party; and the
Advisor shall from time to time render appropriate accounting of
such collections and payments to the Board and to the auditors of
the Trustees.
5. BOND
5.1 The Advisor will maintain a fidelity bond with a responsible
surety company or a reputable bank in such amount as may be
required by the Board from time to time, covering all directors,
officers, employees, and agents of the Advisor handling funds of
the Trustees and any investment documents or records relating to
investments of the Trustees.
5.2 The bond is for the benefit of the Trustees in respect of losses
arising from acts of directors, officers, employees, and agents
through theft, embezzlement, fraud, negligence, error, or omission
or otherwise.
5.3 The premium for the bond is to be at the expense of the Trustees.
If any director of the Trustees is an Affiliate of the Advisor,
the approval of a majority of the Board who are not so affiliated
is required for the Trustees to require such a bond for the
Advisor.
6. INFORMATION FURNISHED TO ADVISOR
The Board has the right to change a Business Plan at any time. The
Board must promptly furnish a copy of any changes to any Business
Plan to the Advisor. The Trustees shall furnish the Advisor with a
certified copy of all financial statements, a signed copy of each
report prepared by independent certified chartered accountants,
and such other information with regard to the Trustees' affairs as
the Advisor may from time to time reasonably request.
7. CONSULTATION AND ADVICE
<PAGE> 152
5
7.1 In addition to the services described above, the Advisor shall
consult with the Board and at the request of the Board will
furnish advice and recommendations with respect to any aspect of
the business and affairs of the Trustees, including any factors
that in the Advisor's best judgment should influence the policies
of the Trustees.
7.2 The Advisor and the Trustees will confer as required concerning
the Advisor's staffing and personnel assigned to perform the
services of the Advisor hereunder, with the goal that the Advisor
will employ highly qualified professional staff, in whom both the
Advisor and the Trustees repose confidence and trust.
8. ANNUAL BUSINESS PLAN AND BUDGET
8.1 The Advisor will assist the Trustees in the preparation of a
Business Plan for each financial year of the Trustees for
submission to the Board. Such Business Plan must include: a
twelve-month projection of operations and cash flow with explicit
assumptions and a general plan for asset sales or acquisitions,
leasing, lending, enforcement and borrowing activity, other
investments or ventures and proposed securities offerings or
repurchases or any proposed restructuring of the Trustees.
8.2 To the extent possible, the Business Plan shall set out the
Advisor's recommendations and the basis therefor with respect to
all material investments of the Trustees. Upon approval by the
Board, the Advisor shall advise and assist in the conduct of the
business of the Trustees in accordance with the explicit
provisions of the Business Plan, specifically including the
borrowing, leasing, maintenance, capital improvements, renovations
and sale of investments set forth in the Business Plan.
8.3 Within forty five (45) days of the end of each calendar quarter,
the Advisor must provide the Boards of Directors of the Trustees
with a report comparing the Trustees' actual performance for such
quarter against the Business Plan.
9. DEFINITIONS
9.1 The following terms will have the meanings set out below:
(a) ACCESSION ENTITIES means any corporation (as that term is
defined in the Corporations Law) and any trust, whose
Invested Assets are the subject of this agreement as a
result of that body corporate entering into an accession
deed in the form of schedule 1 of this agreement.
(b) ADJUSTED CONSOLIDATED NET INCOME means for any fiscal
period the consolidated net income for the Trusts and their
consolidated subsidiaries, increased by firstly, the
amount of income allowable to such fiscal period from
zero-coupon investments or similar deferred payment
investments and secondly the amount of any increase in
appraisal write-up valuation of assets of the Trustees and
their consolidated subsidiaries as reported in annual
valuations for such fiscal period and decreased by the
amount of any reduction
<PAGE> 153
6
in appraisal of assets of the Trusts and their consolidated
subsidiaries as reported in annual valuations for such
fiscal period.
(c) AGGREGATE BOOK VALUE OF INVESTED ASSETS means the
consolidated Book Value of Invested Assets for all of the
following as a group:
(i) the Trusts s;
(ii) each Person that becomes an Accession Entity;
and
(iii) Securitisation Entity.
(d) BOARD means the board of directors of each Trustee as
constituted from time to time.
(e) BOOK VALUE of an asset or assets means the value of such
asset or assets as recorded on the books of any Person:
(i) before any appraisal write-up in accordance with
Australian GAAP;
(ii) before provision for amortisation, depreciation,
depletion or valuation reserves; and
(iii) before deducting any indebtedness or other
liability in respect thereof.
(f) BOOK VALUE OF INVESTED ASSETS means the Book Value of the
Invested Assets of any nature or description owned, leased,
managed or operated by any Person (without deduction of any
liabilities), but excluding:
(i) goodwill and other intangible assets;
(ii) cash; and
(iii) cash equivalent investments with terms which
mature in one year or less, and increased by the
amount of any increase in appraisal write-up of
assets of the Trusts Trustees and their
consolidated subsidiaries as reported in annual
valuations for such fiscal period and decreased
by the amount of any reduction in appraisal of
assets of the Trusts and their consolidated
subsidiaries as reported in annual valuations
for such fiscal period.
(g) BUSINESS PLAN means the investment policies of the Trusts
and objectives and the capital and operating budget based
thereon for the relevant fiscal year of the Trusts as
approved by the Board, as modified or amended.
(h) CHANGE OF CONTROL means, as to the Advisor, the election or
appointment to the board of director of the Advisor of a
majority of directors who are elected or appointed as a
director of the Advisor as a result of a change in control of
the Advisor (as contemplated by section 47 of the
Corporations Law), unless the
<PAGE> 154
7
change of control occurs as a result of corporate
reconstruction within the group of companies of which the
Advisor is a member at the date of this agreement.
(i) EARNINGS PER UNIT means the Adjusted Consolidated Net
Income of the Trusts for any fiscal period, divided by the
weighted average number of ordinary units outstanding for
such fiscal period.
(j) HEALTH CARE OPERATOR means an operator or manager of
healthcare facilities, (including aged care, nursing and/or
residential care for the aged, mentally infirm, chronically
ill, intellectually or physically disabled, hospitals and
medical surgeries)
(k) INVESTED ASSETS shall mean the assets of any Person which
are managed by the Advisor.
(l) LEASES means all leases and subleases from the Trustees and
any Accession Entities to third party lessees and
sublessees.
(m) MORTGAGE LOANS means mortgages, debentures, bonds, and
other evidence of indebtedness or obligations, whether
negotiable or non-negotiable, and which are secured or
collateralised by mortgages, including first, wraparound,
construction and development and second or subordinated
mortgages.
(n) PERSON means individuals, corporations, partnerships, joint
stock companies or associations, joint ventures,
associations, companies, trusts, banks, trust companies,
land trusts, business trusts, or other entities and
governments and agencies and political subdivisions
thereof.
(O) PHF TRUST 1 means the Principal Healthcare Finance Unit
Trust No.1 established by the deed dated 27 May 1998
between Management Pty Limited as trustee and Mindra Pty
Limited as original unit holder, as amended on 27 January
1999.
(p) PHF TRUST 2 means the Principal Healthcare Finance Unit
Trust No.2 established by deed dated 27 May 1998 between
PHF No.1 Pty Limited as trustee and PHF No.2 Pty Limited as
original unit holder, as amended on 31 March 1999.
(Q) PHFT means the Principal Healthcare Finance Trust
established by the deed dated 11 August 1995 between
Assisted Living Holdings Pty Limited as trustee and Metlife
Australia (Holdings) Pty Limited and FAI Deposit Co Pty
Limited as original unit holders, as amended on 29
September 1998 and 31 March 1999.
(R) PRINCIPAL means Principal Healthcare Finance Pty Limited,
ACN 069 875 476.
(s) PRINCIPAL ADVISORY AGREEMENT means the Advisory Agreement
between Principal and Advisor dated 30 November 1998.
<PAGE> 155
8
(t) REAL PROPERTY means land, interests in land, leasehold
interests (including but not limited to interests of a
lessor or lessee therein), and any buildings, structures,
improvements, fixtures, and equipment located on or used in
connection with land, leasehold interests, and rights in
land or interests therein.
(u) RELATED BODY CORPORATE has the same meaning as is given to
that expression in the Corporations Law and references to a
body corporate include a reference to a trust.
(v) RELATED ENTITY has the same meaning as is given to that
expression in the Corporations Law and references to a body
corporate include a reference to a trust.
(w) SECURITISATION ENTITY means any Person formed or availed of
for the purposes of financing and/or acquiring assets now
owned, leased, managed and/or operated by or to be owned,
leased, managed and/or operated by a Trustee or any Related
Entity of a Trustee.
(x) TRUSTEES means Management and PHF No.1.
(y) TRUSTS means PHF Trust 1 and PHF Trust 2.
9.2 All calculations made pursuant to this agreement shall be based on
statements (which may be unaudited, except as provided herein)
prepared on an accrual basis consistent with Australian generally
accepted accounting principals, regardless of whether the Trustees
may also prepare statements on a different basis.
10. INVESTED ASSETS FEE, INCENTIVE FEE
10.1.1 On or before the twenty-eighth day of each month during the term
of this agreement, the Trustees must pay to the Advisor, as
compensation for the management and advisory services rendered to
the Trustees and the Trusts, a fee at the rate of 0.075% per month
of the average of the Aggregate Book Value of the Invested Assets
(INVESTED ASSETS FEE) at the beginning and at the end of the next
preceding calendar month. The annual rate of the Invested Assets
Fee shall be 0.90% per annum.
10.1.2 The Invested Assets Fee, when paid, shall include a pro-rata
payment of interest and investment earnings earned by such
Securitisation Entity since the preceding payment date.
10.2 On or before the first day of the third calendar month following
receipt by the Trustees of the audited financial statements of the
Trusts for the prior year, the auditors of the Trusts (or other
third party acceptable to the Advisor and the Trustees) shall
determine whether the Earnings Per Unit for the financial year
then ended based on weighted units outstanding, exceeded by at
least fifteen percent (15%) the Earnings Per Unit for the
preceding financial year (the TARGET EARNINGS PER UNIT).
<PAGE> 156
9
10.3 In the event the Trusts shall have achieved Target Earnings Per
Unit for any financial year, then the Trustees shall pay to the
Advisor within fourteen days after each determination referred to
in clause 10.3, an incentive fee equal to two-tenths of one
percent (0.02%) of the average of Aggregate Book Value of Invested
Assets (INCENTIVE FEE). For purposes of the Incentive Fee, the
average of Aggregate Book Value of Invested Assets shall be
determined as the average of the Aggregate Book Value of Invested
Assets on the first day of the financial year and the Aggregate
Book Value of Invested Assets on the last day of the financial
year.
10.4 Certain expenses and reimbursements described in Sections 13 and
14 of this agreement may be allocated in part to the account of
the Advisor and in part to the account of the Trustees, as may
be agreed by the parties.
10.5 The Invested Assets Fee and the Incentive Fee will be reduced to
the extent that amounts for such fees are paid to the Advisor by
the trustee for the time being of PHFT in accordance with the
Principal Advisory Agreement, it being the intention that there
will be no double counting in the calculation of the entitlements
of the Advisor under this agreement and under the Principal
Advisory Agreement.
11. STATEMENTS
Upon request, the Advisor must furnish to the Trustees not later
than the 10th day of each calendar month, beginning with the 2nd
calendar month of the term of this agreement, a statement showing
the computation of the fees, if any, payable in respect to the
next preceding calendar month.
12. COMPENSATION FOR ADDITIONAL SERVICES
To the extent that the Trustees request the Advisor or any
director, officer, partner, or employee of the Advisor or Related
Entities of the Advisor to render services for the Trustees other
than those required to be rendered by the Advisor hereunder, such
additional services, if performed, will be compensated separately
on terms to be agreed upon between such party and the Trustees
from time to time.
13. EXPENSES OF THE ADVISOR
The Advisor will bear the following expenses, (subject to the
allocation provisions of Section 10):
(a) employment expenses of the personnel employed by the
Advisor including, but not limited to, fees, salaries,
wages, payroll taxes, travel expenses, and the cost of
employee benefit plans and temporary help expenses
(including fees, salaries, and expenses paid to directors,
officers, and employees of the Advisor who are also
directors, officers or employees of the Trustees, when
acting in such capacity as directors, officers or employees
of the Advisor);
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10
(b) advertising and promotional expenses incurred in seeking
investments for the Trustees;
(c) rent, telephone, utilities, office furniture and
furnishings, and other office expenses of the Advisor;
(d) the cost of any internal accounting, statistical,
bookkeeping or computer equipment or computer time
necessary for maintaining the books and records of the
Trustees; and
(e) miscellaneous administrative expenses relating to
performance by the Advisor of its functions under this
agreement.
14. EXPENSES OF THE TRUSTEES
The Trustees must pay all of their expenses not assumed by or
allocated to the Advisor, including without limitation, the
following expenses:
(a) the cost of money borrowed by the Trustees;
(b) income taxes, taxes and assessments on real property, and
all other taxes applicable to the Trustees;
(c) legal, auditing, accounting (other than internal
accounting), preparing all tax returns, underwriting,
brokerage, listing, registration and other fees, printing,
engraving and other expenses, and taxes incurred in
connection with the insurance, distribution, transfer,
registration, and stock exchange listing of the Trustees'
securities;
(d) fees, salaries and expenses paid to directors, officers,
and employees of the Trustees;
(e) fees and expenses paid to independent advisors, independent
contractors, mortgage services, consultants, managers,
local property managers or management firms, accountants,
attorneys and other agents employed by or on behalf of the
Trustees;
(f) expenses directly connected with the origination or
purchase of Mortgage Loans and with the acquisition,
disposition, and ownership of real estate equity interests,
Leases or other property, including the costs of
enforcement, insurance, legal, protective, brokerage,
maintenance, repair, and property improvement services;
(g) expenses of maintaining and managing real estate equity
interests;
(h) insurance, as required by the Board (including liability
insurance);
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11
(i) the expenses of organizing, revising, amending, converting,
modifying, or terminating the Trustees;
(j) expenses connected with payments of dividends or interest
or distributions in cash or any other form made or caused
to be made by the Board of Directors of the Trustees to
holders of securities of the Trustees;
(k) All expenses connected with communications to holders of
securities of the Trustees and the other bookkeeping and
clerical work necessary in maintaining relations with
holders of securities, including the cost of printing and
mailing certificates for securities and proxy solicitation
materials and reports to holders of the Trustees'
securities;
(l) the cost of any outside auditing necessary for maintaining
the books and records of the Trustees and the costs for
preparing and filing all required tax returns;
(m) transfer agent's, registrar's and trustee's fees and
charges;
(n) legal, accounting, investment banking, and auditing fees
and expenses charged by independent parties for services
provided to the Trustees;
(o) out of pocket expenses incurred by the Advisor, arising
from the sales of Trustees properties, including those
expenses related to carrying out foreclosure and lease
termination proceedings;
(p) costs and expenses associated with risk management (i.e.
insurance relating to the Trustees' assets);
(q) loan refinancing compensation; and
(r) expenses associated with special services requested by the
Board pursuant to Section 12 hereof.
15. OTHER ACTIVITIES OF ADVISOR
15.1 The Advisor must, subject to clause 15.5, submit to the Trustees
all proposals in connection with the business of owning Real
Property from which is conducted the business of caring for the
aged or operating from Real Property the business of caring for
the aged so long as those proposals are regarded as being in
accordance with the investment and credit criteria of the Advisor
from time to time.
15.2 Directors, officers or employees of the Advisor, or any Related
Entity (and such Related Entities officers, directors, or
employees) must not engage in any other business or render
services of any kind to any other Person where the business or
services are competitive with those carried on by the Trusts or
PHFT or any Related Body Corporate of the Trusts or PHFT who are
in the business of owning or operating
<PAGE> 159
12
Real Property from which is conducted the business of caring for
the aged. This prohibition does not include or refer to the
activities of the following persons:
(a) AMP Asset Management Limited (AMPAM);or
(b) any Related Body Corporate of AMPAM; or
(c) employees of AMPAM or its Related Bodies Corporate.
15.3 Subject to clause 15.5 neither the Trustees nor their Related
Bodies Corporate, nor their respective directors, officers, or
employees, shall act as an advisor to, or agree to act as an
advisor to, any other Person with respect to Real Property located
in Australia and used for aged care purposes, without the prior
written consent of the Board. This prohibition does not include or
refer to the activities of the following persons:
(a) AMP Asset Management Limited (AMPAM); or
(b) any Related Body Corporate of AMPAM; or
(c) employees of AMPAM or its Related Bodies Corporate,
15.4 Directors, officers, employees and agents of the Advisor of its
Related Entities may serve as directors, employees, agents,
nominees or signatories of the Trustees. When executing documents
or otherwise acting in such capacities for the Trustees, such
persons shall use their respective titles in the Trustees.
15.5 If either
(a) the Boards of the Trustees; and/or
(b) the board of Principal
either fails to adopt or rejects any investment proposal, business
opportunity or other proposals submitted by the Advisor to any of
them ("Rejected Proposal") then within 3 months after the Rejected
Proposal has been submitted by the Advisor to any of them the
Advisor will no longer be bound by the provisions of this clause
15 in relation to that Rejected Proposal.
16. TERM; TERMINATION OF AGREEMENT
16.1 This agreement shall commence on the date hereof (the EFFECTIVE
DATE) and, subject to the automatic extension and early
termination provisions of this agreement, shall continue for a
period of seven years (TERMINATION DATE) and continue thereafter
unless terminated by either party as set forth below.
<PAGE> 160
13
16.2 Beginning on the Termination Date and continuing as of each 1
January thereafter, the term of this agreement will automatically
be extended for one additional year unless either party exercises
the early termination rights described in the following sentence
referred to in subclause 16.3.
16.3 By written notice delivered to the other party not later than 15
November of any calendar year, either party may elect to avoid the
automatic extension of the term. For example, if a party gives
notice on or before 15 November 1999 of its election to avoid the
automatic extension provision of this agreement, the term of this
agreement would end on 31 December 2006.
16.4 During the ninety (90) day period following a Change of Control,
the Trustees shall have the right to elect to terminate this
agreement, by notice given to the Advisor. Such termination shall
be effective on the date specified in the notice (if any) or 90
days following the Advisor's receipt of notice of termination from
the Trustees, whichever is the later.
16.5 If any director of the Company is a Related Entity of the
Advisor, the approval of a majority of the members the Board who
are not a Related Entity of the Advisor shall be required for
the Trustees to make the election described in subclause 16.4.
16.6 If this agreement is terminated pursuant to this Section 16, such
termination shall be without further liability or obligation of
either party to the other as of the Termination Date, except as
provided in Section 20. In no event shall such termination limit
the Advisor's right to indemnification pursuant to Section 21
hereof with respect to any acts or omissions undertaken by Advisor
prior to such termination.
17. AMENDMENTS
This agreement shall not be changed, modified, terminated or
discharged in whole or in part except by an instrument in writing
signed by both parties hereto, or their respective successors or
assigns, or otherwise as provided herein. If any director of a
Trustee is a Related Entity of the Advisor, the approval of a
majority of the relevant Board who are not Related Entities shall
be required for the Trustee to amend this agreement.
18. DEFAULT, BANKRUPTCY, ETC
18.1 At the option solely of the Board, this agreement shall be
terminated immediately upon written notice of termination from the
Board to the Advisor if any of the following events shall occur:
(a) if the Advisor breaches any provision of this agreement,
and after notice of breach does not remedy such default
within thirty (30) days, or, such longer
<PAGE> 161
14
period as may be appropriate if not susceptible of being
remedied within the thirty (30) days; or
(b) if the Advisor shall be adjudged or insolvent by a court of
competent jurisdiction, or an order is made by a court of
competent jurisdiction for the appointment of a receiver,
liquidator, or trustee of the Advisor or of all or
substantially all of its property by reorganisation, and
such adjudication or order shall remain in force or
unstayed for a period of sixty (60) days; or
(c) if the Advisor is placed under administration or for relief
under any law for the relief of debtors, or shall consent
to the appointment of a receiver of itself or of all or
substantially all its property, or shall make a general
assignment for the benefit of its creditors, or shall admit
in writing its inability to pay its debts generally, as
they become due.
18.2 The Advisor agrees that if any of the events specified in
subsections (b) and (c) of this Section 18.1 occurs, it will give
written notice thereof to the Board within seven (7) days after
such occurrence. If any director of a Trustee is a Related Entity
of the Advisor, the approval of a majority of the relevant Board
who are not so Related Entities shall be required for the
Trustees to give any notice described in this Section.
19. ASSIGNMENT
19.1 The Advisor may assign this agreement to any Related Entity of the
Advisor, provided that at the time of the assignment the assignee
(a) assumes and agrees to be bound by this agreement; and (b) is
controlled by a board of directors, a majority of whom are members
of the Board of Directors of the Advisor and (c) has as its chief
executive officer the individual who is chief executive officer or
chairman of the Advisor. Such an assignment or any other
assignment of this agreement by the Advisor shall bind the
assignee thereunder in the same manner as the Advisor is bound
hereunder.
19.2 The Advisor may also assign this agreement to a corporation,
association, trust, or other successor organisation which may take
over the property and carry on the affairs of the Advisor,
provided that following such assignment the persons who controlled
the operations of the Advisor immediately prior to the assignment
shall control the operation of the successor organisation,
including the performance of its duties under this agreement and
they shall be bound by the same restrictions by which they were
bound to such assignment.
19.3 This agreement shall not otherwise be assignable by the Advisor
without the prior written consent of the Trustees. This agreement
shall not be assignable by the Trustees without the prior written
consent of the Advisor, except in the case of any assignment by
the Trustees to a corporation or other organisation which is the
successor to the Trustees, in which case such successor shall be
bound hereby and by the terms of said assignment in the same
manner and to the same extent as the Trustees is bound hereby.
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15
20. ACTION UPON TERMINATION
20.1 From the effective date of termination of this agreement, pursuant
to Sections 16, 18 and 19 the Advisor shall not be entitled to
compensation for further services but shall be paid all
compensation accruing to the date of termination. The Advisor
shall be deemed to have earned one-twelfth of the Incentive Fee of
each full calendar month during which it provides services to the
Trustees under this agreement. The Advisor shall forthwith upon
such termination:
(a) pay over to the Trustees all moneys collected and held for
the account of the Trustees pursuant to this agreement;
(b) deliver to the Board a full accounting, including a
statement showing all payments collected by it and a
statement of any moneys held by it, covering the period
following the date of the last accounting furnished to the
Board; and
(c) deliver to the Board all property and documents of the
Trustees then in the custody of the Advisor.
20.2 For a period of one year following the date of termination of
this agreement, neither the Trustees nor any Related Entity of
the Trustees shall, directly or indirectly, offer employment
(including, but not limited to consulting arrangements) to any
employee of the Advisor or any Related Entity of the Advisor
without the prior written consent of the Advisor, which consent
may be freely withheld.
21. LIMITS OF ADVISOR RESPONSIBILITY
21.1 The Advisor assumes no responsibility other than to render the
services described herein in good faith and shall not be
responsible for any action of the Trustees in following or
declining to follow any advice or recommendation of the Advisor.
The Advisor, its shareholders, directors, officers, agents,
employees and Related Entities will not be liable to the Trustees,
its shareholders, or others, except by reason of acts constituting
bad faith, wilful or wanton misconduct or gross negligence.
21.2 The Trustees shall reimburse, indemnify and hold harmless the
Advisor, its shareholders, directors, officers, agents and
employees and its Related Entities for and from any and all
expenses, losses, damages, liabilities, demands, charges and
claims of any nature whatsoever in respect to or arising from any
acts or omissions of the Advisor undertaken in good faith and in
accordance with the standard set forth above pursuant to the
authority granted to it by this agreement.
22. NOTICES
22.1 Any notice, report, or other communication required or permitted
to be given hereunder shall be in writing unless some other method
of giving such notice, report, or other communication is accepted
by the party to whom it is given, and shall be effectively when
transmitted by telecopier, delivered or, in the case of mailed
notice or
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16
notice sent by overnight courier, upon receipt thereof
as conclusively evidenced by the signed receipt thereafter by
being delivered at the end addresses of the parties thereto:
THE BOARD AND/OR THE TRUSTEES:
Principal Healthcare Finance Pty Limited
Suite 1601
227 Elizabeth Street
Sydney, New South Wales
Attention: Kevin Moss
Telephone: (02) 9261 4499
Fax: (02) 9267 0955
THE ADVISOR:
Omega (Australia) Pty Limited
Suite 1601
227 Elizabeth Street
Sydney, New South Wales
Attention: Kevin Moss
Facsimile: (612) 9267 0955
with a copy, in the case of both the Trustees and the Advisor,
to:
Omega Worldwide, Inc,
900 Victors Way, Suite 345
Ann Arbor, MI 48103
Attention: Essel W Bailey, Jr - President
Telephone: (313) 747-9790
Fax: (734) 887 0301
and to:
Omega (UK) Limited
145 Cannon Street, London, EC4N 5 BP
Attention: James P. Flaherty
Telephone: (171) 929 3444
Facsimile: (171) 929 3555
22.2 Each party may at any time give notice in writing to the other
party of a change of its address for the purpose of this Section
22.
23. HEADINGS
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17
The section headings hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning,
construction, or effect of this agreement.
24. GOVERNING LAW; CONSENT TO JURISDICTION
This agreement shall be governed and controlled as to validity,
enforcement, interpretation, construction, effect and in all other
respects by the statutes, laws and decisions of New South Wales.
The Trustees consents to in personam jurisdiction before the state
and federal courts in New South Wales and agrees that all disputes
concerning this agreement may be litigated, in Advisor's sole
discretion and at Advisor's sole election, only in courts located
in New South Wales. The Trustees agrees that service of process
may be effected upon in under any method permissible under the
laws of New South Wales and irrevocably waives any objection to
venue in the state or federal courts of New South Wales.
25. JOINDER
The Trustees shall cause each Related Entity and Securitisation
Entity to join in this agreement for purposes of determining the
Invested Assets Fees and Incentive Fees payable to the Advisor
under this agreement.
26. ENTIRE AGREEMENT
This agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes
and cancels any pre-existing agreements with respect to such
subject matter.
SCHEDULE 1
ACCESSION DEED
THIS DEED made on
BETWEEN [Insert name of new Entity] ("Accession Entity")
AND PHF No.1 Pty Limited
AND Omega (Australia) Pty Limited
AND PHF No.1 Management Pty Limited
<PAGE> 165
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RECITALS
A. The parties, other than the Accession Entity are parties to
an Advisory Agreement dated 1 April 1999 ("Master Advisory
Agreement").
B. The Master Advisory Agreement contemplates that entities,
defined in the Master Advisory Agreement as Accession
Entities, may become bound by the Master Advisory Agreement
by entering into an accession deed.
C. The Accession Entity has agreed that its Invested Assets
are to become the subject of the Master Advisory Agreement
and is entering into this deed accordingly.
AGREEMENTS
1. In this deed a term which is used but not defined in this
deed has the meaning given to it in the Master Advisory
Agreement, and:
"Effective Date" means the date of this Accession Deed.
2. With effect from the Effective Date the Accession Entity
agrees that its Invested Assets are to be taken into
account for the purposes of determining , on a consolidated
basis, the Aggregate Book Value of Invested Assets and the
parties agree that the fees of the Advisor under the Master
Advisory Agreement will, with effect from the Effective
Date, be adjusted accordingly.
EXECUTED AS A DEED
[to be executed by the parties]
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19
EXECUTED AS AN AGREEMENT
Signed by the attorney of PHF NO.1 MANAGEMENT
PTY LIMITED under power of attorney registered
Book .......No...... in the presence of:
............................ ...........................
Signature of witness Signature of attorney
............................ ...........................
Name of witness (print) Name of attorney (print)
Signed by the attorney of PHF NO.1 PTY LIMITED
under power of attorney registered Book ............
No............in the presence of:
............................ ............................
Signature of witness Signature of attorney
............................ ............................
Name of witness (print) Name of attorney (print)
Signed by the attorney of OMEGA (AUSTRALIA) PTY
LIMITED under power of attorney registered Book
............No.........in the presence of:
............................ ............................
Signature of witness Signature of attorney
............................ ............................
Name of witness (print) Name of attorney (print)
