17.1 Application of this clause
This clause 17 applies while the Notes are Officially Quoted.
17.2 RE’s right to sell Small Holdings
Subject to the provisions of this clause 17, RE may in its discretion from time to time sell or redeem any Notes held by a Noteholder that is a Small Holder without request by the Small Holder.
17.3 Divestment Notice
If RE determines that a Noteholder is a Small Holder RE may give the Noteholder a Divestment Notice to notify the Noteholder:
(a) that the Noteholder is a Small Holder, the number of Notes making up and the Market Value of the Small Holding and the date on which the Market Value was determined;
(b) that, unless the Small Holder tells RE that the Small Holder wishes to retain the Notes making up the Small Holding before the Small Holding Relevant Period lapses, RE intends to sell the Small Holding Relevant Notes in accordance with this clause after the end of the Small Holding Relevant Period specified in the Divestment Notice;
(c) after the end of the Small Holding Relevant Period, if the Small Holder has not informed RE that it wishes to retain the Notes making up the Small Holding, RE may for the purpose of selling the Small Holding Relevant Notes that are in a CS Facility holding initiate a holding adjustment to move those Notes from that CS Facility holding to an Issuer Sponsored Holding or Certificated Holding.
If the Operating Rules of a CS Facility apply to the Small Holding Relevant Notes, the Divestment Notice must comply with those Operating Rules.
17.4 Small Holding Relevant Period
The Small Holding Relevant Period must be at least six weeks from the date the Divestment Notice was given.
17.5 Limitation on RE's right to sell
RE will not sell or redeem the Small Holding Relevant Notes:
(a) before the expiry of 6 weeks from the date of the notice given under clause 17.3 (“Divestment Notice”); or
(b) if, within the 6 weeks allowed by clause 17.4 (“Small Holding Relevant Period”):
(i) the Small Holder advises RE that the Small Holder wishes to retain the Notes making up the Small Holding; or
(ii) the market value of the Small Holding held by the Small Holder increases to at least a marketable parcel as provided in the Listing Rules.
17.6 RE can sell Small Holding Relevant Notes
At the end of the Small Holding Relevant Period, if the Small Holder has not advised RE that the Small Holder wishes to retain the Notes making up the Small Holding, RE is entitled to sell on-market or in any other way determined by RE the Small Holding Relevant Notes of a Noteholder who is a Small Holder.
17.7 No obligation to sell
RE is not bound to sell any Small Holding Relevant Notes which it is entitled to sell under this clause 17, but unless the Small Holding Relevant Notes are sold within 10 weeks after the end of the Small Holding Relevant Period, RE’s right to sell the Small Holding Relevant Notes under the Divestment Notice relating to those Notes lapses and RE must notify the Noteholder to whom the Divestment Notice was given accordingly.
17.8 RE as Noteholder’s attorney
To effect the sale and transfer by RE of Small Holding Relevant Notes of a Noteholder, the Noteholder appoints RE and each Director and secretary of RE jointly and severally as the Noteholder’s attorney in the Noteholder’s name and on the Noteholder’s behalf to do all acts and things which RE considers
necessary, desirable, reasonably incidental or appropriate to effect the sale or transfer of the Small Holding Relevant Notes and, in particular:
(a) to initiate a holding adjustment to move the Small Holding Relevant Notes from a CS Facility holding to an Issuer Sponsored Holding or a Certificated Holding; and
(b) to execute on behalf of the Noteholder all deeds, instruments or other documents necessary to transfer the Small Holding Relevant Notes and to deliver any such deeds, instruments or other documents to the purchaser of those Notes.
17.9 Conclusive evidence
A statement in writing by or on behalf of RE under this clause 17 is binding on and conclusive against (in the absence of manifest error) a Noteholder. In particular, a statement that the Small Holding Relevant Notes specified in the statement have been sold in accordance with this clause 17 is conclusive against all persons claiming to be entitled to the Small Holding Relevant Notes and discharges the purchaser of those Notes from all liability in respect of the Small Holding Relevant Notes.
17.10 Registering the purchaser
RE must register the purchaser of Small Holding Relevant Notes as the holder of the Small Holding Relevant Notes transferred to the purchaser under this clause.
The purchaser is not bound to see to the application of any money paid as consideration. The title of the purchaser to the Small Holding Relevant Notes transferred to the purchaser is not affected by any irregularity or invalidity in connection with the actions of the RE under this clause 17.
17.11 Payment of proceeds
Subject to clause 17.12 (“Costs”), where:
(a) Small Holding Relevant Notes of a Noteholder are sold by RE on behalf of the Noteholder under this clause; and
(b) the certificate for the Small Holding Relevant Notes (unless RE is satisfied that the certificate has been lost or destroyed or the Small Holding Relevant Notes are uncertificated securities) has been received by RE,
RE must, within 60 days of the completion of the sale, send the proceeds of sale to the Noteholder entitled to those proceeds by:
(i) sending a cheque payable to the Noteholder through the post to the address of the Noteholder shown in the Register or in the case of joint holders, to the address shown in the Register as the address of the Noteholder whose name first appears in the Register; or
(ii) electronic funds transfer to any account notified to RE from time to time for a Noteholder.
Payment of any money under this clause is at the risk of the Noteholder to whom it is sent.
17.12 Costs
RE or the purchaser of the Notes making up the Small Holding must pay the costs of the sale or redemption as the RE decides.
17.13 Remedy limited to damages
The remedy of a Noteholder to whom this clause applies, in respect of the sale of the Small Holding Relevant Notes of that Noteholder is expressly limited to a right of action in damages against RE to the exclusion of any other right, remedy or relief against any other person.
17.14 Distributions and voting suspended
Unless RE determines otherwise, the rights to receive payment of distributions and to vote attached to the Small Holding Relevant Notes of that Noteholder are suspended until the Small Holding Relevant Notes are transferred to a new holder or that Noteholder ceases to be a Small Holder. Any distributions that would, but for this clause 17.14, have been paid to that Noteholder must be held by RE and paid to that Noteholder within 60 days after the earlier of the date the Small Holding Relevant Notes of that Noteholder are transferred and the date that the Small Holding Relevant Notes of that Noteholder cease to be subject to a Divestment Notice.
17.15 12 month limit
If it is a requirement of the Listing Rules (for any Stapled Security), RE must not give a Small Holder more than one Divestment Notice in any 12 month period (except as contemplated by clause 17.16).
17.16 Effect of takeover bid
From the date of the announcement of a takeover bid for the units in the Spark Infrastructure Trust until the close of the offers made under the takeover bid, RE’s powers under this clause 17 to sell Small Holding Relevant Notes of a Noteholder cease. After the close of the offers under the takeover bid, RE may give a Divestment Notice to a Noteholder who is a Small Holder, despite clause 17.15 (“12 month limit”) and the fact that it may be less than 12 months since the RE gave a Divestment Notice to that Noteholder.
18 Stapling
(a) The Stapling Provisions take effect if determined by RE and, if so determined, apply on and from the Stapling Commencement Date unless and until they cease to apply in accordance with this deed or those Stapling Provisions.
(b) On and from the Stapling Commencement Date:
(i) the Stapling Provisions apply and this deed is to be read subject to the Stapling Provisions;
(ii) subject to clause 19 (“Statutory Provisions”), the Stapling Provisions prevail over all other provisions of this deed including any that are expressed to prevail over others, except where this would result in a breach of the Corporations Act, the Listing Rules or any other law; and
(iii) without limiting (ii) above, those provisions of this deed, which by their meaning and context apply only while Notes are not Stapled, do not apply while Notes are Officially Quoted as part of a Stapled Security.
(c) The Note Trustee acknowledges that, if and for so long as the Stapling Provisions apply in accordance with this clause:
(i) the Note Trustee will not; and
(ii) notwithstanding any other provisions of this deed, the Noteholders may not direct the Note Trustee to, act, or refrain from acting, or otherwise do anything which is inconsistent with the Stapling Provisions.