Chapter Three Real Estate Asset Trust
To publicly offer or privately place REAT beneficiary securities, the trustee shall submit the following documents to the competent authority for approval or effective registration. The regulations governing the review process, requirements for approval or effective registration, and other matters of compliance shall be prescribed by the competent authority:
1. The REAT plan;
2. The REAT contract;
3. A comparison table of the REAT contract and the standard contract specimen;
4. The prospectus or investment memorandum;
5. Documentation evidencing that the operating and managerial personnel of the REAT fund are in compliance with the regulations prescribed by the competent authority;
6. Namelist, and documentation of qualifications, and consent letter (to the appointment) of the trust supervisor, if any;
7. Minutes of the resolution adopted by the trustee’s board of directors for public offering or private placement of REAT beneficiary securities;
8. Explanations regarding the methods of managing and disposing the trust property. Where a real estate management institution is appointed to manage or dispose trust property, the appointment agreement or other documentary proofs are required;
9. Appraisal reports of the trust property;
10. Documents prescribed in Paragraphs 2 and 3 of Article 30 herein;
11. Case checklist filled out by the trustee and reviewed by a certified public account (CPA) or lawyer;
12. Legal opinions of a lawyer; and
13. Other documents as required by the competent authority.
The competent authority shall consult with the central competent authority in charge of the target enterprise concerned for written opinions when examining the documents as prescribed in the preceding paragraph.
The trustor shall provide the trustee with related documents and information on the trust property without any misrepresentation or concealment.
The trustor of a REAT fund that violates the preceding paragraph shall be held liable for damages sustained by the purchasers or transferees of the beneficiary securities therefrom.
The property rights transferred pursuant to a REAT contract shall be limited to those prescribed in Subparagraphs 1 and 2, Paragraph 1 of Article 17 herein. The trust property of publicly offered REAT beneficiary securities shall be limited to real estate or related rights of real estate with stable income.
The trustor shall cancel the lien registration on the property rights referred to in the preceding paragraph and submit related documentations to the trustee; in case the trustor is unable to cancel the registration for any reasons, the trustor shall submit a letter of consent notarized by a notary public stating that the mortgagee will not exercise the lien during the duration of the trust contract.
The trustor shall provide the trustee with written documents of debt details and shall specify a period of more than one (1) month to notify the creditors for any objection during such period and submit the documents of such objection to the trustee.
A REAT plan shall contain the following particulars:
1. Names and addresses of the trustee and trustor; where a real estate management institution is appointed to manage or dispose the trust property, the name and address of the appointed institution; and name and address of the arranger, if applicable;
2. Name and duration of the REAT fund;
3. Matters concerning the REAT beneficiary securities as follows:
(1) The total amount of the REAT fund to be publicly offered or privately placed and the total units of beneficial interests;
(2) The agreement, the seniority of payment and duration of beneficial interests, when publicly offering or privately placing beneficiary securities of different kinds or durations;
(3) Methods and dates of issuance or delivery, amount of purchasing each unit of beneficial interests, expenses, and transfer restrictions of REAT beneficiary securities;
(4) Conditions under which the publicly offered or private placed REAT fund is established or not established, and method of handling in case the REAT fund is not established;
4. Matters concerning the trust property as follows:
(1) Content of trust property and the value of trust property appraised by the professional appraisers;
(2) Encumbrance of trust property and the methods of disposing of such encumbrance;
(3) Methods for managing and disposing the trust property; and
(4) Valuation method, valuation bases, and expert opinions regarding the expected income of the trust property;
5. Methods for utilizing quid pro quo received by the trustee from the subscribers or purchasers for the public offering or private placement of beneficiary securities;
6. Real estate development plan: including the types and locations of real estate or related rights of real estate planned for development, and related market analysis, feasibility study, title search report, appraisal report, planned development schedule and projects, phase plans and control modules for acquisition, development, sale or operation management, sources of funds, fund utilization and control modules, cost recovery, financial projections and estimated rate of return, expert opinions, and self-evaluation plan;
7. In case the real estate development project is delayed or not completed , the method of handling, impact on the interests of the beneficiaries, and agreement on rights and obligations among the trustee, the real estate management institution, and the beneficiaries;
8. In case that the trustor is the related party to the trustee, explanations of the transaction procedures and internal control methods; and
9. Other matters as required by the competent authority.
The experts that offer opinions as prescribed in Item 4 of Subparagraph 4 and Subparagraph 6 of the preceding paragraph shall not be a related party or substantive related party as defined in The Statement Financial Accounting Standards No. 6 to the trustor or the trustee.
The Trustee shall operate the REAT businesses pursuant to the REAT plan approved by or effectively registered with the competent authority.
The Trustee, with the completion of the public offering or private placement of REAT Beneficial Securities, shall not alter the REAT plan without the resolution of the beneficiaries’ meeting and the approval of or effective registration with the competent authority; provided, that the alteration without any substantial impact on the rights and interests of the beneficiaries may be made with the approval of or effective registration with the competent authority.
The application or registration as referred to in the preceding paragraph shall be made in an application form or registration form, which shall expressly state the contents and reasons of the alteration, along with the following documents:
1. REAT plan with and without alteration as well as the corresponding comparison tables;
2. minutes of the b eneficiaries’ meeting. Where the alterations fall within those prescribed in the proviso of the preceding paragraph, the minutes may be exempted;
3. evaluation and expert opinions on whether or not the alteration has any significant impact on the rights and interests of the beneficiaries; and
4. other documents as required by the competent authority.
The competent authority shall consult with the central competent authority for written opinions prior to the examination of the documents as prescribed in the preceding paragraph.
The REAT Contract shall be made in written form and contain the following matters:
1. purpose of the trust;
2. duration of the trust contract;
3. type, content and price amount of the trust property appraised pursuant to Article 34 hereof;
4. obligations of the trustor and the matters that shall be informed to the Trustee;
5. management and disposal methods of the t rust property: where a real estate management institution is appointed to manage or dispose of the trust property, the name, obligations and duties of theinstitution are needed;
6. distribution methods of the trust property principal or profits, interests and other proceeds accrued therefrom;
7. content, the order of priority of payment and duration of Beneficial Securities with different types or durations;
8. methods of issuance or delivery and transfer restrictions of Beneficial Securities;
9. matters regarding reimbursement of expenses and damage compensation to the Trustee;
10. matters regarding borrowed money and the corresponding upper limit as well as idle funds when the Trustee engages in the trust business;
11. the Trustee’s remuneration and its variety, calculation method, and payment timing and method;
12. reasons for convening a beneficiaries’ meeting by the Trustee;
13. reasons for the appointment of a Trust Supervisor by the Trustee as well as the special knowledge or experience of such Trust Supervisor; and
14. other matters prescribed in Article 19, Paragraph 1 of the Trust Enterprise Act and by the competent authority.
The Trustee shall request the Professional Appraiser to provide an appraisal report regarding the trust property of the REAT pursuant to the provisions of the Real Estate Appraiser Act prior to filing an approval application to or an effective registration with the competent authority in accordance with Article 29 hereof.
With the agreement in the trust contract, the rent therefrom is not subject to provisions in Paragraph 1, Article 97 of The Land Act, whereas the term of the lease is not subject to the limitation of twenty (20) years set forth in Paragraph 1, Article 449 of the Civil Code.
Where the trust property agreed in a REAT contract must be returned to the trustor at the end of the trust, the consent of the trustor shall be acquired in advance, provided the term of the lease on the trust property surpasses the duration of the trust contract. The preceding paragraph does not apply if the lessee is the trustor.
In case that the trustor of the REAT is the related party to the Trustee, the Trustee shall not issue Beneficial Securities of such REAT in accordance with this Act. However, in the situation where there are several trustors and the percentage of related trustor’s total trust property and security interests is less than20%, it shall not be subject to this article.
Article 7, Articles 11 to 15, Article 18, Article 19, Article 21, Paragraphs 2 and 3 of Article 22, Articles 23, Article 25 to 28 hereof shall apply mutatis mutandis to REAT.