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Trust for sale |
1. |
(1) |
The Trustees shall stand possessed of any real property from time to time
comprised in the Trust Fund Upon Trust to sell the same with power to
postpone the sale thereof or of any part thereof for such period as they
shall in their absolute discretion think fit and shall stand possessed of
all other investments comprised in the Trust Fund Upon Trust at such
discretion either to retain the same in the existing state thereof for such
period as they shall think fit or at any time or times to sell the same or
any part thereof. |
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(2) |
The Trustees shall hold the net proceeds of any sale of investments
comprised in the Trust Fund and all other monies held or received by them as
capital monies Upon Trust to invest the same at their discretion in or upon
any of the investments by this instrument authorised with power to vary or
transpose such investments for or into any others of a like nature. |
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Powers of Investment |
2. |
TRUST moneys to be invested under the trusts of this instrument may be
applied or invested in any currency and in any part of the world in the
purchase of or upon the security of such common or preferred stocks shares
mutual fund shares unit trust units or other securities or commodities
(including precious metals) bonds notes debentures certificates of deposit
or time deposits land or other investments or property of whatever nature
(and whether or not income-producing or paying dividends or interest) and
whether involving liabilities or not or upon such personal credit with or
without security as the Trustees in their absolute discretion think fit
without being restricted to trustee investments prescribed under the proper
law governing this instrument and to the intent that the Trustees shall have
the same powers in all respects as if they were absolute owners beneficially
entitled And in addition (but without prejudice to the generality of the
foregoing) the Trustees may invest the Trust Fund in the shares or
debentures of any company whatsoever and wheresoever incorporated without the need for diversification and without being
liable for any loss occasioned thereby. |
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Power with regard to mode of application of capital and
income |
3. |
ANY power by this instrument or by law conferred on the Trustees to pay
transfer appropriate or apply the Trust Fund or any income therefore for the
benefit of any beneficiary may at the discretion of the Trustees be validly
exercised (without prejudice to the generality of such power or to any other
mode of application) - |
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(a) |
by paying or transferring the same to the trustees of any settlement
(whether or not such trustees are resident in the British Virgin Islands and
whether or not the proper law of such settlement is the law of the British
Virgin Islands) the provisions of which are in the opinion of the Trustees
for the benefit of such beneficiary notwithstanding that such settlement may
also contain trusts powers or provisions (discretionary or otherwise) in
favour of other persons or objects Provided however that no such payment or
transfer shall be made so as to infringe the rule against perpetuities as
applicable to the trusts created by this instrument; or |
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(b) |
(in the case of any such person who is a minor) by paying or transferring
the same to such minor's parent or guardian or some other person for the
time being having the care or custody of such minor upon the recipient
undertaking to apply the same for the benefit of the minor; |
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And the Trustees shall not thereafter be under any
obligation to see to the further application of the capital or income so paid or
transferred and the receipt of such trustees parent guardian or other person
shall be a full sufficient and complete discharge to the Trustees. |
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Additional Powers |
4. |
THE Trustees shall have the following powers in addition to those conferred
by law: |
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(a) |
power to receive any property from any person as an addition to the Trust
Fund either by gift inter vivos or by will or under the provisions of any other settlement or trust or
otherwise; |
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(b) |
power
to borrow on the security of the Trust Fund and for such purpose to make any
outlay out of the Trust Fund or the income thereof and to enter into such
contracts mortgages charges or undertakings relating thereto as the Trustees
may in their absolute discretion think fit; |
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(c) |
power to lend any part of the Trust Fund to any person (whether or not a
beneficiary) upon such terms (if any) as to security repayment rate of
interest and otherwise as the Trustee in their absolute discretion may
determine; |
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(d) |
with respect to any property comprised in the Trust Fund power to exercise
all powers relating thereto as sif the Trustees were the absolute beneficial
owners thereof including (without
prejudice to the generality of the foregoing power) - |
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(i) |
power to vote upon or in respect of any shares securities bonds notes or
other evidence of interest in or obligations of any corporation trust
association or concern whether or not the exercise of such power affects the
security or the apparent security of the Trust Fund or the purchase or sale
or lease of the assets of any such corporation trust association or concern, |
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(ii) |
power to deposit any such shares securities or property in any voting trust
or with any depository designated thereby, |
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(iii) |
power to give proxies or powers of attorney with or without power of
substitution for voting or acting on behalf of the Trustees as the owners of
any such property, and |
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(iv) |
power to omit to register bonds or securities; |
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(e) |
power (at the expense of the Trust Fund) to incorporate or register or to
procure the incorporation or registration of any company (with limited or
unlimited liability) in any part of the world for any purpose including the
acquisition of the Trust Fund or any part thereof and so that (if thought
fit) the consideration on the sale of the Trust Fund to any such company may
consist wholly or partly of fully paid shares debentures debenture stock or
other securities of the company credited as fully paid which shall be
allotted to or otherwise vested in the Trustees and be capital moneys in the
Trustees' hands; |
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(f) |
power at any time to apply any part of the Trust Fund of the income thereof
in effecting or joining in effecting or otherwise acquiring any policy of
assurance on the life of any beneficiary or of any other person or any
endowment or other policy and to maintain surrender exchange exercise any
option thereunder or otherwise deal
with such policies as if the Trustees were absolutely entitled thereto; |
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(g) |
power to pay out at any time any part of the Trust Fund in purchasing or
acquiring or making improvements in or repairs to or on any land or building
(whether freehold leasehold or of any other tenure or interest and of
whatsoever description and situate in any part of the world) in the
occupation of or intended for occupation by any beneficiary And power to
permit any beneficiary to occupy until sale any land or building purchased
or acquired as aforesaid or otherwise comprised in the Trust Fund upon such
terms (as to payment or non-payment of rent outgoings repairs or otherwise)
as the Trustees may think fit; |
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(h) |
power at any time or times to lay out any part of the Trust Fund in the
purchase or other acquisition of any yachts boats motor vehicles works of
art household furniture plate linen china cutlery other articles of
household use ornament or equipment and other chattels for the use of any
beneficiary whether occupying a building purchased or acquired as aforesaid
or otherwise And power to hand over to any such beneficiary for his use any
property so purchased or acquired by the Trustees as aforesaid or otherwise
forming part of the Trust Fund upon and subject to such terms and conditions
(if any) as to insurance preservation maintaining inventories and otherwise
as the Trustees think fit; |
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(i) |
power to grant options for such consideration and exercisable at such time
or times or within such period as the Trustees think fit for the purchase of
any property subject to the trusts of this instrument or the acquisition of
any interest therein; |
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(j) |
power to keep the Trust Fund either in or out of the British Virgin Islands
and if the Trustees think fit to hold in any part of the world all or any
securities or other property in bearer form or registered in the name of the
Trustees or nominees without disclosing the fiduciary relationship; |
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(k) |
in the event of any duties fees or taxes whatsoever becoming payable in any
part of the world in respect of the Trust Fund or any part thereof in any
circumstances whatsoever power to pay all such duties fees or taxes out of
the Trust Fund or the income thereof with discretion as to the time and
manner in which the said duties fees or taxes shall be paid and the Trustees
may pay such duties fees or taxes notwithstanding that the same shall not be
recoverable from the Trustees or from any persons interested under the
trusts of this instrument or that the payment shall not be to the advantage
of such persons; |
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(l) |
power to make such reserves out of the Trust Fund or the income thereof as
the Trustees deem proper for expenses taxes and other liabilities and to pay
from capital or income or to apportion between capital and income any
expenses of making or changing investments and selling exchanging or leasing
(including brokers commissions and charges) and generally to determine what
part of the expenses of administering the trusts of this instrument shall be
charged to capital and what part to income; |
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(m) |
power to make execute and deliver deeds assignments transfers leases
mortgages instruments of pledge creating liens contracts and other
instruments sealed and unsealed; |
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(n) |
power to institute prosecute and defend any suits or actions or other
proceedings affecting the Trustees or the Trust Fund and to compromise any
matter of difference or to submit such matter for arbitration and to
compromise or compound any debt owing to the Trustees or any other claims
and to adjust any disputes in relation to debts or claims against them as
trustees upon evidence that the Trustees shall deem sufficient and to make
partition upon such terms (including if thought fit the payment or receipt
of equality money) as the Trustees shall deem desirable with co-owners or
joint tenants besides the Trustees having any interest in any property in
which the Trustees are interested and to make partition either by sale or by
set-off or by agreement or otherwise; |
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(o) |
power to make any distribution of the Trust Fund pursuant to the trusts of
this instrument in cash or in kind or partly in cash and partly in kind and
in the case of a distribution to more than one person not strictly rateably
but on the basis of equal or other proportionate value (as the case may
require) according to the judgement of the Trustees which shall be binding
on all persons interested under this instrument; |
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(p) |
power to take at the expense of the Trust Fund or the income thereof the
opinion of legal counsel concerning any question arising under this
instrument or on any matter in any way relating to the Trust Fund or the
duties of the Trustees in connection with this instrument And the Trustees
shall not be liable for any action taken in good faith pursuant to or
otherwise in accordance with the opinion or advice of such counsel; |
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(q) |
power - |
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(i) |
to engage the services of such investment counsel adviser or manager ( "the
Investment Adviser" ) as the Trustees may from time to time think fit
(including the settlor or any trustee of this instrument or any corporate
trustee or any parent subsidiary or affiliate of such corporate trustee) in
order to obtain advice on the investment and reinvestment of the Trust Fund
AND to delegate to the Investment Adviser without being liable for any
consequential loss discretion to manage the portfolio or any part thereof
within the limits and for the period stipulated by the Trustees and the
Trustees |
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(aa) |
shall settle the terms and conditions for the remuneration of the Investment
Adviser and the reimbursement of the Investment Adviser's expenses as in
their uncontrolled discretion they deem proper and such remuneration and
expenses may be paid by the Trustees from and out of the Trust Fund, and |
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(bb) |
shall not be liable for any action taken in good faith pursuant to or
otherwise in accordance with the advice of the Investment Adviser, |
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(ii) |
to employ and pay at the expense of the capital or income of the Trust Fund
any agent or agents in any part of the world whether solicitors bankers
accountants stockbrokers managers or other persons (including the settlor or
any trustee of this instrument or any corporate trustee or any parent
subsidiary or affiliate of such corporate trustee) to transact any business
or to do any act requiring to be transacted or done in execution of the
trusts of this instrument including the receipt and payment of money and the
execution of documents and in any such event the trustee, the corporate
trustee or the parent subsidiary or the affiliate of such corporate trustee
is entitled to charge and be paid and to retain for his or its own account
all usual professional and other fees and commissions normally paid for such
services including fees and commissions shared with other agents; |
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(r) |
power for all or any of the Trustees |
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(i) |
to exercise or join or concur in exercising all or any of the powers and
discretions by this instrument or by law given to the Trustees
notwithstanding that such trustee may have a personal interest in the mode
or result of exercising any such power or discretion or may be interested
therein in some other fiduciary capacity but any trustee may abstain from
acting except as a merely formal party in any matter in which he may be so
interested as aforesaid and may allow his co-trustees to act alone in the
exercise of such powers and discretions in relation to such matter, and |
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(ii) |
to purchase or sell any property notwithstanding that the vendor or
purchaser is the same as or includes the Trustees or any of them provided
that the price payable on any such purchase or sale is certified as fair and
reasonable by an independent valuer employed for the purpose by the Trustees; |
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(s) |
power to effect any transaction concerning or affecting the Trust Fund or
any other property whatsoever and to do all other acts and things which the
Trustees may in their absolute discretion think expedient in the interests
of the Trust Fund or any beneficiary and for the purpose of this
sub-paragraph "transaction" includes any sale exchange assurance conveyance
grant lease surrender reconveyance release
reservation or other disposition and any purchase or other acquisition and any
covenant contract licence option right or pre-emption and any compromise or
partition and any company reconstruction or amalgamation and any other dealing
or arrangement And "effect" has the meaning appropriate to the particular
transaction and references to property include references to restrictions and
burdens affecting the property; |
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(t) |
all the powers of sale (by public auction or private contract) exchange
mortgaging leasing or other disposition management repair building and
improvement and all other powers of an absolute beneficial owner in respect
of any property for the time being comprised in the Trust Fund including
(without prejudice to the generality of the foregoing) the power of
borrowing on the security of the Trust Fund and for such purpose to make any
outlay out of the income or capital of the Trust Fund and to make such
contracts and to enter into such undertakings relating thereto as the
Trustees in their absolute discretion shall think fit; |
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(u) |
power at any time in the Trustees’ discretion and on such terms as they deem
fit to appropriate or to apply the capital or income of the Trust Fund or
any part thereof in order to secure the payment of money owed by any
beneficiary or the performance of any obligations of any beneficiary and to
give any guarantee or to become surety for any beneficiary and for such
purposes to mortgage or charge any investments or property for the time
being forming part of the Trust Fund or to deposit or transfer any such
investments or property with or to any person by way of security; and |
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(v) |
power from time to time by deed revocable or irrevocable wholly or partially
to release extinguish or restrict any power by this instrument or by law
conferred on the Trustees notwithstanding the fiduciary nature of any such
power (but not so as to invalidate any prior exercise thereof). |
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Exclusion of appointments |
5. |
UNLESS the Trustees in their absolute discretion shall otherwise determine
all dividends and other income received shall be treated for all purposes as
income accruing at the due date of payment whether or not such dividends or
income may have been earned and accrued wholly or partially in respect of a
period prior to such date. |
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Protection of third parties in dealings with trustees |
6. |
(1) |
NO person or corporation dealing with the Trustees and no purchaser on any
sale made by the Trustees shall be concerned to enquire into the propriety
or validity of any act of the Trustees or to see to the application of any
money paid or property transferred to or upon the order of the Trustees. |
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(2) |
NO firm association or corporation any of whose securities are comprised in
the Trust Fund and no purchaser or person dealing with any trustee
purporting to act under any delegation of authority from any other trustee
shall be required to ascertain or enquire whether a case exists in which
such delegation is permitted or whether such delegated authority is still
subsisting. |
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(3) |
WHEN anything is dependent upon the value of any property or the existence
of any fact a certificate of the Trustees as to such value or fact shall be
conclusive in favour of anyone thereon in good faith. |
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Power in relation to underlying company |
7. |
ANY trustee of this instrument and director officer or employee of a
corporate trustee or of a parent subsidiary or affiliate of such corporate
trustee may act as a director officer manager or employee of any company
whose shares or debentures may be comprised in the Trust Fund or as a
director officer manager or employee of any subsidiary or holding company of
any such company and may retain for himself or itself any remuneration which
he or it may receive as such director officer manager or employee
notwithstanding that any votes or other rights attaching to such shares or
debentures may have been instrumental either alone or in conjunction with
other matters or by reason of their non-exercise in procuring or continuing
for him or it his or its position as such director officer manager or
employee or that his or its qualifications for any such position may be
constituted in part or in whole by any such shares or debenture. |
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Trustees not bound to interfere with company management |
8. |
THE Trustees shall not be bound or required to interfere in the management
or conduct of the affairs or business of any company in which the Trust Fund
may be invested (and whether or not the Trustees have the control of such
company) And so long as no trustee of this instrument has notice of any
wilful negligence wilful default or fraud or dishonesty on the part of the
directors having the management of such company they may leave the same
(including the payment or non-payment of dividends) wholly to such directors
And no beneficiary is entitled as such beneficiary in any way to compel
control or forbid the exercise (including in any particular manner) of any
voting or other rights at any time vested in the Trustees with regard to
such company including without prejudice to the generality of the foregoing
any powers the Trustees may have (even if also directors of such company) of
compelling such company to distribute any dividend. |
