THIS DEED OF APPOINTMENT is made the 20th day of February 1989 BETWEEN XXXXXX
XXXX and RHEINHOLD VOHLWEND both of X.X. Xxx 000 Xxxxxxxxx 0000 Xxxxx
Xxxxxxxxxxxxx (hereinafter together called "the Appointors') of the one part and
XXXXXX XXXXXX of 00 Xxxxxx Xxxx Xxxxxx XX0 (hereinafter called "the Settlor") of
the other part AND IS SUPPLEMENTAL to a settlement (hereinafter called "the
Settlement') dated 28th March 1969 and made between the Settlor of the one part
and Xxxxxx Xxxxxxxx Xxxxxxxxx and Xxxxxxx Xxxxx Xxxxxxx Xxxxx of the other part.
WHEREAS:
A. The Appointors are the present trustees of the Settlement
B. The Appointors wish to exercise the power of appointment hereinafter
mentioned in the manner hereinafter appearing
C. The Settlor has joined in this deed in order to signify her
acceptance of office as the Nominated person as from the execution
of this deed
NOW THIS DEED WITNESSES as follows:
1. DEFINITIONS
In this deed where the context admits:
a. "the Trustees" means the Appointors and any other the
trustees or trustee for the time being of the Settlement
b. "Guy" means Xxx Xxxxxx (the husband of the Settlor)
c. "Nominated Person" means:
(1) the Settlor for so long as she is living and has
not resigned as the Nominated Person and subject
thereto
(2) Guy for so long as he is living and has not
resigned as the Nominated Person and subject thereto
(3) person (or persons in succession) as the Settlor and
Guy or the survivor of them may be deed or deeds (to
which the person then nominated is also a party and
executed during the Discretionary Period) revocably
or irrevocably appoint to be the Nominated Person for
the purposes of the Settlement (whether or not in
priority to the individual mentioned in paragraph (iv
of this sub-clause so long as such person (if an
individual) is living or (if a corporation) is in
being and not in the course of liquidation and (if an
individual or a corporation) has not resigned as the
Nominated Person and subject thereto
(4) Xxxxx Xxxxxxx (the nephew of Guy) for so long as he
is living and has not resigned as the Nominated
Person
(and provisions concerning the office of the Nominated Person
are contained in clauses 10 to 12 (inclusive) below)
d. "Xxxxxx xxxxx the Settlor's son Xxxxxx Xxxxxx who was born on
the 15th July 1967
e. "Xxxxx" means the Settlor's daughter Xxxxx xxxxxx who was born
on 11th May 1969
f. "Xxxxxxxx" means the Settlor's son Xxxxxxxx Xxxxxx who was
born on 24th January 1971
g. the expression "the Trust Fund" has the meaning ascribed to
that term by clause 1(a) of the Settlement
h. "the First Share" means Albert's expectant or presumptive
share of the Trust Fund under clause 3 of the Settlement (and
includes any accretions thereto) and the money investments and
property from time to time representing the First Share
i. "the Second Share" means Diane's expectant or presumptive
share of the Trust Fund under clause 3 of the Settlement (and
includes any accretions thereto) and the money investments and
property from time to time representing the Second Share
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j. "the Third Share" means Jonathan's expectant or presumptive
share of the Trust Fund under clause 3 of the Settlement (and
includes any accretions thereto) and the money investments and
property from time to time representing the Third Share
k. "the Trust Period" means the period expiring on 26th
March 2049
l. the Discretionary Period" means the period ending on the
first to occur of:
(1) the date on which there shall be no person who is the
Nominated Person in office and
(2) the date of expiration of the Trust Period
m. "the Accumulation Period" means the period ending on the first
to occur of:
(1) the date of death of the Settlor and
(2) the date of expiration of the Trust Period
n. "the Specified Vesting Date" means the first to occur of:
(1) the third anniversary of the expiration of the
Discretionary Period and
(2) the date of expiration of the Trust Period
o. "the Default Trust" means the trust in favour of such
charitable purposes as the Trustees may select declared by
clause 6 of the Settlement
p. expressions descriptive of relationship shall be construed in
accordance with the law in force at the date of the Settlement
q. the headings and sub-headings in this deed are inserted for
ease of reference only and shall not affect its construction
2. EXERCISE OF OVERRIDING POWER OF APPOINTMENT
In the exercise of the power conferred on them by clause 5 of the
Settlement and all other powers enabling them in this behalf the
Appointors as the trustees of the Settlement HEREBY IRREVOCABLY APPOINT
AND DECLARE that the First Share the Second Share and the Third Share
shall henceforth be held as to both capital and income upon the trusts
and with subject to the
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powers and provisions hereinafter declared and contained (and the
trusts of clause 3 of the Settlement shall henceforth be extinguished
accordingly)
THE FIRST SHARE
3. TRUSTS OF THE FIRST SHARE DURING THE DISCRETIONARY PERIOD
The Nominated Person's Power of Appointment
a. The Nominated Person may at any time or times during the
Discretionary Period by any deed or deeds revocable (during
the Discretionary Period) or irrevocable appoint the First
Share and the income thereof (or any share or part thereof)
upon such trusts for the benefit of all or any one or more of
Xxxxxx and any spouse or widow or children or remoter issue of
Xxxxxx exclusive of the other or others of them and if more
than one in such shares and proportions and with and subject
to such powers and provisions for their respective maintenance
education advancement or other benefit and in such manner
generally as the Nominated Person thinks fit and without
prejudice to the generality of the foregoing the Nominated
Person may in any exercise of this power provide for:
(1) the accumulation of income during the Accumulation
Period
(2) the immediate falling into possession of the Default
Trust
(3) powers and provisions of an administrative nature
(whether or not the beneficial provisions affecting
the first Share are affected by any such appointment)
(4) the transfer of the First Share (or any share or part
thereof) to the trustees of another settlement the
trustees of which are resident in any part of the
world to be held by such trustees as an accretion to
the trust property subject to that settlement and
as one fund therewith for all purposes Provided
That the trusts powers and provisions of that
settlement could have been provided for within the
Settlement by the Nominated Person in exercise of
the power of appointment contained in this sub-clause
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b. (1) No appointment in exercise of the above power
shall be made and no such appointment previously made
shall be revoked so as to affect any capital or
income of the First Share previously paid transferred
or applied to or for the benefit of any beneficiary
under the trusts and power hereinafter declared and
contained and
(2) The Trustees shall act in accordance with the trusts
powers and provisions hereinafter declared and
contained until supplied with any deed of appointment
made by the Nominated Person in exercise of the above
power.
Trusts taking effect subject to and in default of any exercise of the
Nominated Person's Power of Appointment
c. Subject to and in default of any appointment or appointments
made in exercise of the power contained in sub-clause (a) of
this clause the Trustees shall during the Discretionary
Period hold the First Share and the income thereof on the
following trusts:
(1) the Trustees shall pay the income of the First Share
to Xxxxxx during his lifetime
(2) the Trustees shall have power at anytime or times
during the Discretionary Period whilst the income
interest under paragraph (i) of this sub-clause (c)
is subsisting in Xxxxxx to pay appropriate or apply
all or any part of the capital of the First Share in
which such interest for the time being subsists to or
(in such manner as they think fit) for the benefit of
Xxxxxx and
(3) subject as aforesaid the First Share and the income
thereof shall be held on the trusts and with and
subject to the powers and provisions declared and
contained in clause 5 below
4. TRUSTS OF THE FIRST SHARE UPON THE EXPIRATION OF THE
DISCRETIONARY PERIOD
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Subject to and in default of any appointment or appointments made in
exercise of the power contained in sub-clause (a) of clause 3 above the
Trustees shall as from the expiration of the Discretionary Period hold
the First Share and the income thereof on the following trusts:
Trusts taking effect during Albert's lifetime
a. if Xxxxxx is living at the expiration of the Discretionary
Period the Trustees shall divide the First Share or treat the
First Share as divided into two halves and shall hold each of
such halves upon the following trusts:
(1) as to one such half for Xxxxxx absolutely if he is
living on the late to occur of his twenty-fifth
birthday and the Specified Vesting Date
(2) as to the other such half for Xxxxxx absolutely if he
is living on the later to occur of his thirty-fifth
birthday and the specified Vesting Date
b. whilst Xxxxxx is living and his interests under sub-clause
(a) of this clause have not absolutely vested
(1) the Trustees shall pay the income of the first Share
(or that half of the First Share which has not
absolutely vested as the case may be) to Xxxxxx and
(2) the Trustees shall have power at any time or times
whilst the income interest under paragraph (i) of
this sub--clause (b) is subsisting in Xxxxxx to pay
appropriate or apply all or any part of the capital
of the First Share in which such interest for the
time being subsists to or (in such manner as they
think fit) for the benefit of Xxxxxx
Trusts taking effect as of Albert's death
c. subject as aforesaid the First Share and the income thereof
shall be held on the trusts and with and subject to the powers
and provisions declared and contained in clause 5 below
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5. TRUSTS REFERRED TO IN CLAUSES 3(c)(iii) AND 4(c) ABOVE
a. The Trustees shall hold the First Share:
(1) for all or any one or more of the children of Xxxxxx
(hereinafter called "the Specified Beneficiaries')
who attain the age of twenty-five years before or on
the expiration of the Trust Period or are living and
are under that age on the expiration of the Trust
Period or die under that age and before or on the
expiration of the Trust Period leaving a child or
children in such shares (if more than one) as the
Trustees shall by deed or deeds executed before the
expiration of the Trust Period and either revocable
(during the Trust Period) or irrevocable appoint and
(2) subject to and in default of any such appointment for
such of the Specified Beneficiaries as attain the age
of twenty-five years before or on the expiration of
the Trust Period or are living and are under that age
on the expiration of the Trust Period or die under
that age and before or on the expiration of the Trust
Period leaving a child or children and if more than
one in equal shares
b. The provisions of sub-clauses (c) to (e) of this clause shall
apply to the share or entitlement or presumptive share or
entitlement in or to the First Share of any of the specified
Beneficiaries such share or entitlement or presumptive share
or entitlement being in those clauses called "the share" and
that one of the Specified Beneficiaries who is primarily
interested therein being called "the Beneficiary"
c. While the Beneficiary is living and under the age of
twenty-five years and the Trust Period has not expired:
(1) the Trustees may pay transfer or apply the whole or
any part or parts of the capital of the share for or
towards the maintenance education or otherwise (in
such manner as they think fit) for the benefit of the
Beneficiary or
(2) declare that the provision of sub-clause (d) of this
clause shall thenceforth regulate the
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Share notwithstanding that the Beneficiary is living
and under the age of twenty-five years
and subject as aforesaid
(3) during the Accumulation Period the Trustees may pay
or apply all or any part of the income of the Share
to or for the maintenance education or otherwise for
the benefit of the beneficiary and subject thereto
shall accumulate all (or the balance) of such income
as an accretion to the capital of the Share and
(4) upon the expiration of the Accumulation period
section 31 of the Trustee Act 1925 (as hereby
modified) shall apply to the income of the Share
d. On the Beneficiary attaining the age of twenty-five years
before or on the expiration of the Trust Period or dying under
that age and before or on the expiration of the Trust period
leaving a child or children the Share shall not vest
absolutely in the Beneficiary but shall be retained by the
Trustees upon the following trusts and with and subject to the
following powers and provisions (or such of the same as are
subsisting and capable of taking effect) that is to say:
(1) The income of the Share shall be paid to the
Beneficiary whilst he is living
(2) The Trustees shall have power exercisable at any time
or times while the Beneficiary is living and before
the expiration of the Trust Period to pay transfer or
apply the whole or any part or parts of the capital
of the Share to or (in such manner as they think fit)
for the benefit of the Beneficiary
(3) Subject as aforesaid the Share shall be held for the
Beneficiary absolutely if living on the expiration of
the Trust Period
(4) Subject as aforesaid the Share shall be held in trust
as to both capital and income for such of the
Beneficiary's children as attain the age of
twenty-five years before or on the expiration of
the Trust Period or are living and under that age on
the expiration of
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this Trust Period and if more than one in such
shares as the Trustees shall be deed or deeds
(executed during the Trust Period) appoint and
subject to and in default of any such appointment for
such of the Beneficiary's children as attain the age
of twenty-five years before or on the expiration of
the Trust Period or are living and under that age on
the expiration of the Trust Period and if more than
one in equal shares
e. Subject as aforesaid the Share (together with any accrual
thereto) shall accrue to the other share or shares of the
First Share the trusts whereof shall not previously have
failed or determined (otherwise than by absolute vesting) and
if more than one rateably between them and every such accrual
shall be held upon the same trusts and with and subject to the
same powers and provisions as the original share or shares to
which the same accrues.
TRUSTS TAKING EFFECT SUBJECT TO THE PRECEDING PROVISIONS
6. Subject as aforesaid the First Share (together with any accrual
thereto) shall accrue to the other share or shares of the Trust Fund
(that is the Second Share and the Third Share) the trusts whereof shall
not previously have failed or determined (otherwise than by absolute
vesting) and if more than one rateably between them and every such
accrual shall be held upon the same trusts and with and subject to the
same powers and provisions as the original share or shares to which the
same accrues.
THE SECOND SHARE
7. The Second share and the income thereof shall be half upon the same
trusts and with and subject to the same powers and provisions as are
declared in relation to the First Share by clauses 3 to 6 of this deed
but as if:
a. a reference to Xxxxx had been substituted for each reference
to Xxxxxx in those clauses
b. a reference to the Second Share had been substituted for each
reference to the First Share in those clauses
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c. a reference to the First Share had been substituted for the
reference to the Second Share in clause 6 and
d. all consequential amendments had been incorporated therein
THE THIRD SHARE
8. The Third Share and the income thereof shall be held upon the same
trusts and with and subject to the same powers and provisions as are
declared in relation to the First Share by clauses 3 to 6 of this deed
but as if:
a. a reference to Xxxxxxxx had been substituted for each
reference to Xxxxxx in those clauses
b. a reference to the Third Share had been substituted for each
reference to the First Share in those clauses
c. a reference to the First Share had been substituted for the
reference to the Third Share in clause 6 and
d. all consequential amendments had been incorporated therein
SECTIONS 31 AND 32 OF THE TRUSTEE ACT 1925
9. Save as hereinbefore expressly provided Sections 31 and 32 of the
Trustee Act 1925 shall apply hereto subject to the following
modifications:
a. In Section 31(l)(i) the words "the trustees in their absolute
discretion think fit" shall be deemed to have been substituted
for the words "may in all the circumstances be reasonable"
b. The proviso to Section 31(1) shall be deemed to have been
omitted therefrom
c. In paragraph (a) of the proviso to Section 32(1) the words
"one-half of" shall be deemed to have been omitted
ADMINISTRATIVE AND OTHER PROVISIONS
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10. The Nominated Person:
a. shall be entitled to receive from the Trustees copies of:
(1) the annual accounts of the Trust Fund
(2) the annual accounts of any company controlled
directly or indirectly by the Trustees as trustees of
the Settlement and
(3) any other documentation relating to the Settlement
which the Nominated Person may reasonably request in
writing
b. may be deed or deeds wholly or partially release or restrict
the future exercise of any of the powers conferred on him by
this deed (and any such release or restriction shall bind any
future Nominated Person unless the contrary is expressly
stated)
c. shall resign (if at all) by executing a deed to that effect
which deed may be executed in advance of such individual
assuming office as the Nominated Person
d. shall as soon as is practicable supply the Trustees with any
deed of appointment or any deed of releasor restriction of
powers or any deed of resignation executed by him
e. shall in the case of any prospective resignation as soon as is
practicable supply the Settlor and Guy (or the survivor of
them) with a copy of any deed of resignation executed by him
f. shall (if an individual) inform his personal representatives
(in the body of any will made by him or otherwise) and/or his
solicitor or any other responsible person or persons of the
necessity of informing the Trustees so soon as is practicable
of his death and
g. shall not in any circumstances be liable for or accountable in
respect of the exercise or omission to exercise the powers
conferred on him by this deed
11. The Settlor and Guy (or the survivor of them):
a. may be deed or deeds wholly or partially restrict the future
exercise of the power conferred on them by clause 1(c)(iii)
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b. shall as soon as is practicable supply the Trustees with any
deed appointing a person as the Nominated Person for the
purposes of the Settlement or revoking the appointment of any
such individual and
c. shall not in any circumstances be liable for or accountable in
respect of the exercise or omission to exercise the power of
appointing or of revoking the appointment of any such
individual
12. The Trustees:
a. may by deed or deeds wholly or partially release or restrict
the future exercise of any of the powers conferred on them by
this deed (including those incorporated from the Settlement by
clause 13 below) or by law (any such release or restriction
shall bind any future Trustees unless the contrary is
expressly stated) and
b. shall ensure that the Nominated Person and all other
individuals who are then prospectively appointed as Nominated
Person are informed of any appointment release restriction or
resignation communicated to the Trustees under clause 10(d) of
this deed
13. The administrative and other powers and provisions contained in clauses
7 to 10 (inclusive) and 12 to 15 (inclusive) of the Settlement shall
continue to apply hereto
14. The Trustees shall in addition have the following administrative
powers:
a. Power to lend any money forming the whole or any part of the
Trust Fund to any person anywhere in the world upon such terms
as to repayment and interest as the Trustees think fit
PROVIDED that it shall be a condition of this power being
exercised so as to make a loan at anything less than full
market interest than the loan should be in favour of a
beneficiary who would for the time being otherwise be entitled
to any income arising in respect of the money lent or who
would be so entitled if he had attained a specified age or
who could become so
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entitled by the exercise of a then subsisting power
b. (1) Power upon such terms and conditions as the Trustees
think fit to guarantee and/or make any assets subject
to any of the trusts of the Settlement available as
collateral security for the debts liabilities or any
other obligations of any beneficiary to or for the
benefit of whom the Trustees could under the
beneficial provisions of this deed at the date of
provision of such guarantee and/or collateral
security have paid transferred or applied the assets
providing such collateral security or earmarked by
the Trustees for meeting any liability under any such
guarantee.
(2) Power upon such terms and conditions as the Trustees
think fit to guarantee and/or make any assets subject
to any of the trusts of the Settlement available as
collateral security for the debts liabilities or any
other obligations of any corporate body the shares or
securities of which are wholly or partly owned by any
beneficiary to or for the benefit of whom the
Trustees could under the beneficial provisions of
this deed at the date of provision of such guarantee
and/or collateral security have paid transferred or
applied the assets providing such collateral security
or earmarked by the Trustees for meeting any
liability under any such guarantee and
(3) Power upon such terms and conditions as the Trustees
think fit to guarantee and/or make any assets subject
to any of the trusts of the Settlement available as
collateral security for the debts liabilities or an
other obligations of any corporate body the shares or
securities of which are wholly or partly owned by the
Trustees PROVIDED that the assets providing such
collateral security or earmarked by the Trustee for
meeting any liability under any such guarantee shall
at the date of provision of such guarantee and/or
collateral security be held upon the same trusts as
the shares or securities in question.
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15. Any costs and expenses and any fiscal liabilities occasioned anywhere
in the world by virtue of the execution of this deed shall be borne by
and paid out of the share of the Trust Fund in respect of which the
same arose and subject thereto rateably as between such shares.
IN WITNESS whereof the parties hereto have hereunto set their hands and
seals the day and year first before written
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SIGNED SEALED and DELIVERED )
by the said XXXXXX XXXX )
in the presence of: ).............................................
Witness signature...............................................................
Name............................................................................
Address.........................................................................
................................................................................
Occupation......................................................................
SIGNED SEALED and DELIVERED )
by the said RHEINHOLD VOHLWEND )
in the presence of: ).............................................
Witness signature...............................................................
Name............................................................................
Address.........................................................................
................................................................................
Occupation......................................................................
SIGNED SEALED and DELIVERED )
by the said XXXXXX XXXXXX )
in the presence of: ).............................................
Witness signature...............................................................
Name............................................................................
Address.........................................................................
................................................................................
Occupation......................................................................
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