Exhibit 3.33
INDENTURE
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ESTABLISHING
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THE AUSTRALIAN HELICOPTERS TRUST
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BETWEEN
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XXXXX XXXXXX XXXXX
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Founder
AND
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XXXXX HELICOPTERS INTERNATIONAL PTY. LTD.
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A.C.N. 008 204 982
Trustee
DATED THE 6TH DAY OF APRIL 1993
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THOMSONS
Barrister & Solicitors
I certify that this photocopied
document is a true and correct copy
of the original
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I N D E X
UNIT TRUST INDENTURE
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CLAUSE MATTER
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1. Name of Trust
2. Interpretation
2.1 Terms and Expressions
2.2 General Principles of Construction
2.3 Severance and Reading Down
3. Constitution of Trust Fund
4. Units
5. Initial Units
6. Additional Units
7. Calls on Units
8. Lien
9. Forfeiture of Xxxxx
00. Xxxxxxxx xx Xxxx Xxxxxxx
00. Unit Certificates
12. Variation of Units
13. Transfer of Units
14. Transmission of Xxxxx
00. Xxxxxxxxxx xx Xxxxx
00. Surrender of Units
17. Annual Distribution of Income
17.1 Gross Income
17.2 Source and Character of Income
17.3 Net Income
17.4 Distribution
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CLAUSE MATTER
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17.5 Joint Holders
18. Interim Distributions of Income
19. Accumulation of Income
20. Infant Unit Holder's Income
21. Separate Trusts
22. Winding Up
22.1 Vesting Day
22.2 No Dealings with Units
22.3 Procedure and Powers
22.4 Discharge
23. Early Distribution of Capital
23.1 Early Vesting Day
23.2 Appoint Property
23.3 Advancement
24. Benefits Additional to Other Benefits
25. Powers of the Trustee
25.1 Investment
25.2 Vary Investments
25.3 Business
25.4 Partnership
25.5 Deal with Property
25.6 Securities
25.7 Intellectual Property
25.8 Dwelling House
25.9 Custody of Property
25.10 Bank Accounts
25.11 Borrowing
25.12 Guarantees and Indemnities
25.13 Lending
25.14 Agents
25.15 Attorneys
25.16 Feasibility Studies
25.17 Advertising
25.18 Insurance
25.19 Receipts
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CLAUSE MATTER
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25.20 Benefit Employees
25.21 Business Associations
25.22 Promote New Laws
25.23 Agreements
25.24 Legal Advice
25.25 Deposit Documents
25.26 Nominees
25.27 Government Concessions
25.28 Licences
25.29 Additions to the Trust Fund
25.30 Sinking Fund
25.31 Valuations
25.32 Appropriations
25.33 Characterize Income and Capital
25.34 Disputes
25.35 Debts
25.36 Expenses
25.37 Foreign Trustees
25.38 Sale and Conversion
26. Trustee Interested in Dealings
27. Powers Independent
28. Exercise of Powers
29. Validity of Dealings and Securities
30. Accounting Records
31. Auditor
32. Trustee's Remuneration
33. Indemnity
34. Trustee Not Liable For Loss
35. No Agency
36. Appointment and Removal of Trustees
37. Consent and Direction of Unit Holders
38. Meetings of Unit Holders
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CLAUSE MATTER
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39. Notices
40. Access to Trust Papers
41. Unit Holders of Minority Age
42. Failure of Trust
43. Exclusion of Founder
44. Variation of Trust Indenture
45. Proper Law
46. Parties
THIS INDENTURE is made this 6th day of April 1993
BETWEEN:
XXXXX XXXXXX XXXXX of Xxxxxxx Road Oakbank in the State of South Australia 5243
Chartered Accountant (hereinafter with his heirs executors administrators and
assigns called "the Founder") of the one part
AND
LLOYDS HELICOPTERS INTERNATIONAL PTY. LTD. A.C.N. 008 204 982 whose registered
office is situated at 00 Xxxxxxxxx Xxxx Xxxxxxxx in the said State 5034
(hereinafter with its successors and assigns called "the Trustee") of the other
part;
WHEREAS:
A. The Founder desires to establish a Trust of the Initial Sum hereinafter
described and all accretions and additions thereto and over the
property and moneys hereinafter referred to as the Trust Fund.
B. The Founder has transferred or is about to transfer to the Trustee the
sum of One Hundred Dollars ($100.00) (hereinafter called "the Initial
Sum") to be held by the Trustee upon the trusts and subject to the
conditions and provisions hereinafter appearing.
C. The Trustee has consented to act as Trustee of the said Trust Fund.
D. The Founder desires that not only the Founder and the Trustee but also
the Unit Holders and subsequent Unit Holders shall be bound hereby and
shall be entitled to the benefits and subject to the provisions
hereinafter contained.
NOW THIS INDENTURE WITNESSES as follows:
1. Name of Trust
The Trust hereby established shall be known as "THE AUSTRALIAN
HELICOPTERS TRUST".
2. Interpretation
2.1 Terms and Expressions
In the interpretation of this Indenture unless the contrary
intention appears or the context otherwise requires the
following expressions shall have the following meanings:
2.1.1 "Certificate" means a certificate issued or to be
issued under the provisions of this Indenture in
respect of Units;
2.1.2 "child" and "children" include any adopted child or
children;
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2.1.3 "corporation" means a body corporate wheresoever and
whenever incorporated;
2.1.4 "fair value" in relation to a Unit in the Trust Fund
means the value of that Unit calculated by dividing the
total value of the assets of the Trust Fund less the
total liabilities of the Trust Fund by the number of
Units issued in the Trust Fund;
2.1.5 "Family Trust" means a trust created wholly or
principally for the benefit of a Unit Holder or
specified relatives of such Unit Holder;
2.1.6 "financial year" means each period of twelve calendar
months ending on the 30th day of June in each year or
the period from establishment of this Trust until the
30th day of June next following or the period
commencing on the 1st day of July immediately prior to
the Vesting Day and ending on the Vesting Day;
2.1.7 "Holder" in relation to a Unit means the person who for
the time being is recorded or deemed to be recorded in
the Register as the Holder of the Unit and includes
persons jointly so recorded;
2.1.8 "net income" means the net income of the Trust as
defined in Section 95(1) of the Income Tax Assessment
Act 1936 or such other sum as the Trustee may in its
absolute discretion determine from time to time to
constitute the net income of the Trust;
2.1.9 "pay" includes transfer assign and convey;
2.1.10 "Register" means the Register of Unit Holders
established and maintained under this Indenture and
includes every Register (if any) in respect of any
State or Territory of the Commonwealth of Australia;
2.1.11 "set aside" in relation to a Unit Holder includes
placing sums to the credit of such Unit Holder in the
books of the Trust Fund;
2.1.12 "specified relative" in relation to a Unit Holder
means:
(i) The spouse of such Unit Holder;
(ii) A child grandchild or remoter descendant of such
Unit Holder or of the spouse of such Unit
Holder;
(iii) The spouse of a child grandchild or remoter
descendant of such Unit Holder or of the
spouse of such Unit Holder;
(iv) A brother or sister or half-brother or
half-sister or step-brother or step-sister of
such Unit Holder;
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(v) A parent or grandparent or step-parent or
step-grandparent of such Unit Holder;
AND shall include persons who now or subsequent to the
date of this Indenture come within such descriptions
respectively notwithstanding that such persons may not
now be so qualified at the date of this Indenture but
shall in all cases exclude the Founder;
2.1.13 "spouse" in relation to a Unit Holder means:
(i) The wife or husband (as the case may be) for the
time being of such Unit Holder;
(ii) A putative spouse of such Unit Holder as defined
in Part III of the Family Relationships Xxx
0000;
(iii) The previous wife or husband (as the case may
be) of such Unit Holder;
(iv) A person whom the Trustee may determine from
time to time to be a de facto wife or husband
(as the case may be) of such Unit Holder;
(v) The widow or widower (as the case may be) of
such deceased Unit Holder whether such person
has remarried or not;
(vi) A person whom the Trustee may determine after
the death of such Unit Holder to have been a de
facto or putative wife or husband (as the case
may be) of such Unit Holder during the life of
such Unit Holder;
2.1.14 "this Indenture" means this Trust Indenture as amended
from time to time and a reference to a provision of
this Indenture shall be construed as a reference to the
provision as amended from time to time;
2.1.15 "transfer" includes assign convey or otherwise assure;
2.1.16 "Trust" means the Trusts established by this Indenture;
2.1.17 "Trustee" means the person or persons herein so
described and any trustee for the time being hereof
whether original additional or substituted;
2.1.18 "Trust Fund" means:
(i) The Initial Sum;
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(ii) Any moneys and other property paid or
transferred from time to time by the Founder or
any other person to the Trustee and accepted by
the Trustee as additions to the Trust Fund;
(iii) The accumulations of income herein directed or
empowered to be made;
(iv) Moneys lent or advanced to the Trustee in its
capacity as trustee hereof;
(v) All accretions to the Trust Fund and the
investments and property from time to time
representing the Initial Sum additions to the
Trust Fund accumulations and accretions and
moneys lent or advanced to the Trustee in its
capacity as trustee hereof or any part or parts
thereof respectively;
(vi) All income profits and gains and proceeds of the
sale redemption or repayment of any of the
investments and profits for the time being in
the hands of the Trustee.
2.1.19 "Unit" means an undivided part of the Trust Fund
created and issued under this Indenture;
2.1.20 "Unit Holder" means a person who is at the time the
Holder of a Unit and includes the joint Holders of a
Unit.
2.1.21 "Vesting Day" means the earliest of the following days:
(i) The 30th day of June 2060;
(ii) The date of the twenty first anniversary of the
death of the last survivor of the lineal
descendants living on 29th November 1989 of his
late Majesty King Xxxxxx VI;
(iii) Such earlier date as the Trustee of a certain
Indenture made the 29th day of November 1989
between Xxxxxx Xxxxxxxx Xxxxxx as Founder and
XXxxx Helicopters Pty, Ltd. as Trustee
establishing Trusts to be known as "Xxxxx
Helicopters Trust" may hereafter appoint to be
the Vesting Day of that Trust provided however
that such appointment shall be made on or before
the day of April 1993; or
(iv) Such earlier day as the Trustee may by Deed
determine to be the Vesting Day.
2.2 General Principles of Construction
Unless the contrary intention appears:
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2.2.1 The index and headings are for convenience of reference
only and shall not affect the construction or
interpretation of the provisions of this Indenture;
2.2.2 References to any statutory enactment shall mean and be
construed as references to the said enactment as
amended consolidated and re-enacted from time to time
and any legislation substantially in substitution
therefor;
2.2.3 Any expression contained herein which denotes a
relationship of consanguinity or affinity shall be
construed in accordance with Section 6(1) of the Family
Relationships Xxx 0000;
2.2.4 Words importing the singular shall embrace the plural
and vice versa and words importing one gender shall
include all other genders;
2.2.5 Words importing persons shall include corporations;
2.2.6 General words following or preceding specific words
shall not be limited to things ejusdem generis with the
specific things enumerated;
2.2.7 Where a word or phrase is given a particular meaning
other grammatical forms of that word or phrase have
corresponding meanings.
2.3 Severance and Reading Down
Unless the contrary intention appears:
2.3.1 If any provision of this Indenture or any part thereof
shall be void or otherwise unenforceable for any reason
whatsoever then such provision or part thereof shall be
valid binding and enforceable to the full extent
permitted by law and shall be read down or severed
accordingly;
2.3.2 Each and every provision of this Indenture and each and
every part thereof shall unless the context otherwise
necessarily requires be read and construed as a
separate and severable provision and as separate and
severable parts thereof so that if any provision or
part thereof shall be void or otherwise unenforceable
for any reason whatsoever then such provision or part
thereof as the case may be shall not only be severed
but the remainder shall be read and construed as if the
severed provision or part thereof aforesaid had not
been contained herein notwithstanding any consequential
alteration to the meaning or construction of that
provision or these presents that may result from the
severance.
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3. Constitution of Trust Fund
The Founder and the Trustee hereby declare that the Trustee shall
henceforth stand possessed of the Trust Fund UPON TRUST for the Unit
Holders and with the powers and subject to the provisions herein.
4. Units
4.1 The whole of the beneficial interest in the Trust Fund shall be
divided into Units.
4.2 A Unit shall entitle the Holder thereof:
4.2.1 Equally with the Holders of all other Units to an
undivided beneficial interest in the whole of the Trust
Fund;
4.2.2 To be registered in the Register as the Holder of the
Unit as provided in Clause 10;
4.2.3 To be issued a Certificate in respect of such Unit as
provided in Clause 11;
4.2.4 To transfer such Unit as provided in Clause 13;
4.2.5 To redeem such Unit as provided in Clause 15;
4.2.6 To surrender such Unit as provided in Clause 16;
4.2.7 To receive and be paid a share of the net income of the
Trust Fund as provided in Clause 17;
4.2.8 To receive and be paid a share of the surplus net
assets of the Trust Fund upon winding up as provided in
Clause 22;
4.2.9 To receive a copy of the accounts of the Trust Fund as
provided in Clause 30;
4.2.10 To join with the Holders of all other Units to appoint
and remove Trustees as provided in Clause 36;
4.2.11 To receive notices of meetings of Unit Holders and to
attend and to speak at such meetings in person or by
proxy or representative as provided in Clause 38;
4.2.12 To receive circulars for resolutions of Unit Holders as
provided in Clause 38.23;
4.2.13 To inspect and obtain copies of this Indenture and of
the other records documents and papers of the Trust
Fund as provided in Clause 40; and
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4.2.14 To the benefit of the covenants of the Trustee as
provided in this Indenture;
PROVIDED ALWAYS THAT no Unit Holder shall be entitled to require
the transfer to him of any of the property comprised in the
Trust Fund nor be entitled to interfere with or question the
exercise or non-exercise by the Trustee of any of the powers
authorities or discretions conferred upon the Trustee by this
Indenture or in respect of such property.
4.3 A Unit shall be held by the Holder thereof subject to the
provisions of this Indenture.
4.4 Unit Holders shall hold their interests in the Trust Fund as
tenants in common.
4.5 Except as required by law no person shall be recognized by the
Trustee as holding a Unit upon any trust or equity and the
Trustee shall not be bound by or be compelled in any way to
recognize (even when having actual notice thereof) any equitable
contingent future or partial interest in a Unit or any other
rights in respect of a Unit except an absolute right of
ownership in the Holder thereof PROVIDED ALWAYS the Trustee may
in its absolute discretion recognize a certain trust or equity
of a Unit and a certain beneficiary thereof whereupon such
beneficiary shall be deemed to be recorded in the Register in
the manner herein provided as the Holder of such Unit.
5. Initial Units
The first Unit Holders shall be the persons named and described below
and who shall be entitled to and be issued the number and class of
Units opposite their respective names:
Name Address & Occupation Units
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XXXXX XXXX XXXXXX 00 Xxxxxxxxx Xxxx One Hundred and Ninety Nine
HELICOPTERS PTY. LTD. Wayville 5034 Thousand Nine Hundred and Ninety
A.C.N. 007 975 304 Six (199,996) Ordinary Units
XXXXX HELICOPTERS 00 Xxxxxxxxx Xxxx One (1) Ordinary Units
PTY. LTD. Wayville 5034
A.C.N. 000 000 000
In its capacity as Trustee of a certain Deed of Trust dated the 29th
day of November 1989 known as the XXxxx Helicopter Trust
XXXXX HELICOPTERS 00 Xxxxxxxxx Xxxx One (1) Ordinary Units
PTY. LTD. Wayville 5034
A.C.N. 000 000 000
GUY XXXXXXX XXXXX 00 Xxxxxxxxx Xxxxxx One (1) Ordinary Xxxx
Xxxxx Xxxx 0000
Company Director
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XXXXX XXXXX 00 Xxxxxxxxx Xxxxxx One (1) Ordinary Unit
Unley Park 5061
Company Director
AND such persons shall be deemed to be recorded in the Register in the
manner herein provided as the Holders of such Units respectively.
6. Additional Units
Where at any time:
6.1 The Unit Holders agree to pay or to transfer in proportion to
the number of Units already held by them any sum of money or any
rights property or things to the Trustee as an addition to the
Trust Fund and each of those persons:
6.1.1 Tenders to the Trustee an application in writing for
additional Units signed by or on behalf of that person
stating that the person agrees to accept additional
Units to be issued pursuant and subject to the
provisions of this Indenture and authorizes the Trustee
to enter in the Register the person's name and the
other particulars required hereunder;
6.1.2 Pays his proportion of the sum of money to the Trustee
or executes and delivers a transfer in favour of the
Trustee of his proportion of the rights property or
things; and
6.1.3 The Trustee determines to accept that sum of money or
those rights property or things as an addition to the
Trust Fund;
additional Units shall be created on the basis of one additional
Unit for such amount of money or value of the rights property or
things transferred to the Trustee as the Trustee and the Unit
Holders shall agree (or in default of agreement for each $1.00
or such money or value of property) and shall be issued to those
persons in proportion to the number of Units already held by
them.
6.2 For the purposes of Clause 6.1 the value of any rights property
or things to be acquired by the Trustee as an addition to the
Trust Fund shall be as agreed by the Trustee and the Unit
Holders.
6.3 Save where Clause 6.1 applies or the Unit Holders otherwise
consent where at any time any person (including a Unit Holder):
6.3.1 Tenders to the Trustee an application in writing for
additional Units signed by or on behalf of that person
stating that the person agrees to accept the additional
Units to be issued pursuant and subject to the
provisions of this Indenture and to be bound thereby
and authorizes the Trustee to enter in the Register the
person's name and the other particulars required
hereunder;
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6.3.2 Pays a sum of money to the Trustee or executes and
delivers a transfer in favour of the Trustee of rights
property or things;
6.3.3 The Trustee determines to accept that sum of money or
those rights property or things as an addition to the
Trust Fund; and
6.3.4 The Unit Holders consent to the creation and issue of
additional Units under this sub-clause;
additional Units shall be created on the basis of one additional
Unit for each such amount as is agreed, including at a premium
or a discount, or in default of agreement at the prescribed
amount in consideration of the sum of money or of the value of
the rights property or things paid or transferred to the Trustee
and shall be issued to that person.
6.4 For the purposes of Clause 6.3:
6.4.1 The prescribed amount shall be the quotient given by
dividing:
The net value of the Trust Fund immediately before
the creation of the additional Units under Clause
6.3; by
The number of Units in existence at that time;
6.4.2 The net value of the Trust Fund at any time and of any
rights property and things to be accepted by the
Trustee as an addition to the Trust Fund shall be as
agreed by the Trustee the Unit Holders and the person
from whom the Trustee determines to accept the rights
property or things as an addition to the Trust Fund.
6.5 The Trustee may capitalize:
6.5.1 Any accretions in value arising from revaluation of the
property or things comprised in the Trust Fund;
6.5.2 Any profits arising from the sale of any property or
things on capital account comprised in the Trust Fund;
6.5.3 Accumulations of income herein directed or empowered to
be made; and/or
6.5.4 Any other accretions to the capital of the Trust Fund;
and such capital funds may be distributed amongst the Unit
Holders in proportion to the number of Units held by each Unit
Holder respectively by issuing Bonus Units provided always that
no fractional Unit Certificate shall be issued.
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7. Calls on Units
7.1 The Trustee with the consent of the Unit Holders may from time
to time make calls upon the Unit Holders of an amount of capital
to be contributed by the Unit Holders in respect of their Units
and each Unit Holder shall pay to the Trustee at the time or
times and place specified the amount called on that Unit
Holder's Units. A call may be revoked or postponed as the
Trustee may determine.
7.2 A call shall be deemed to have been made at the time when the
resolution of the Trustee authorizing the call is passed and may
be required to be paid by instalments.
7.3 The joint holders of a Unit shall be jointly and severally
liable to pay all calls in respect thereof.
7.4 If a sum called in respect of a Unit is not paid on or before
the day appointed for payment thereof the person from whom the
sum is due shall pay interest on the sum from the day appointed
for payment thereof to the time of actual payment at such rate
not exceeding fifteen per cent (15%) per annum as the Trustee
may determine provided that the Trustee shall be at liberty to
waive payment of that interest wholly or in part.
8. Lien
The Trustee shall have a first and paramount lien on every Unit for all
money (whether presently payable or not) called or payable at a fixed
time in respect of that Unit and the Trustee shall also have a first
and paramount lien on all Units registered in the name of a single
person for all moneys presently payable by him or his estate to the
Trustee but the Trustee may at any time declare any Units to be wholly
or in part exempt from the provisions of this Clause. The Trustee's
lien on a Unit shall extend to all distributions whether of income or
capital payable in respect of the Unit.
9. Forfeiture of Units
9.1 If a Unit Holder fails to pay any call or instalment of a call
on the day appointed for payment thereof the Trustee may at any
time thereafter during such time as any part of the call or
instalment remains unpaid serve a notice on that Unit Holder
requiring payment of so much of the call or instalment as is
unpaid together with any interest which may have accrued.
9.2 The notice shall specify a further day (not earlier than the
expiration of fourteen (14) days from the date of service of the
notice) on or before which the payment required by the notice is
to be made and shall state that in the event of a non-payment at
or before the time appointed the Unit in respect of which the
call was made will be liable to be forfeited.
9.3 If the requirements of any such notice as aforesaid are not
complied with any Unit in respect of which the notice has been
given may at any time thereafter before
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the payment required by the notice has been made be forfeited by
a resolution of the Trustee to that effect. Such forfeiture
shall include all distributions payable in respect of the
forfeited Unit and not actually paid before the forfeiture.
9.4 A forfeited Unit may be sold or otherwise disposed of on such
terms and in such manner as the Trustee thinks fit and at any
time before a sale or disposition the forfeiture may be
cancelled on such terms as the Trustee thinks fit.
9.5 A person whose Unit has been forfeited shall cease to be a Unit
Holder in respect of the forfeited Unit but shall
notwithstanding remain liable to pay to the Trustee all money
which at the date of forfeiture was payable by him to the
Trustee in respect of the Unit (together with interest at the
rate of fifteen per centum (15%) per annum from the date of
forfeiture on the money for the time being unpaid if the Trustee
thinks fit to enforce payment of such interest) but his
liability shall cease if and when the Trustee receives payment
in full of all such money in respect of the Unit.
9.6 A statutory declaration in writing that the declarant is the
Trustee or where the Trustee is a corporation is a Director or
the Secretary of the Trustee and that a Unit in the Trust has
been duly forfeited on a date stated in the declaration shall be
conclusive evidence of the facts therein stated as against all
persons claiming to be entitled to the Unit.
9.7 The Trustee may receive the consideration (if any) given for a
forfeited Unit on any sale or disposition thereof and the
Trustee may authorize a person to execute a transfer of the Unit
in favour of the person to whom the Unit is sold or disposed of
and he shall thereupon be registered as the holder of the Unit
and shall not be bound to see to the application of the
consideration (if any) nor shall his title to the Unit be
affected by any irregularity or invalidity in the proceedings in
reference to the forfeiture sale or disposition of the Unit. The
proceeds of any sale or disposition of a forfeited Unit shall be
applied firstly in satisfaction of all expenses of and
incidental to the sale or disposition and secondly in
satisfaction of all money at that time payable in respect of the
Unit and the residue (if any) shall be paid to the person
forfeiting the Unit.
9.8 This Clause shall apply in the case of non-payment of any sum
which by the terms of issue of a Unit becomes payable at a fixed
time whether on account of the nominal value of the Unit or by
way of premium as if the same had been payable by virtue of a
call duly made and notified.
10. Register of Unit Holders
10.1 The Trustee shall establish and maintain a Register of Unit
Holders and shall record in the Register particulars of:
10.1.1 The name of each Unit Holder;
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10.1.2 The address and the telex number (if any) including
particulars of any change of address or telex number
(if any) of each Unit Holder;
10.1.3 The number and the distinctive class (if any) and the
distinctive numbers (if any) of Units from time to time
held by each Unit Holder and the distinctive number of
the Certificate for the Units issued to each Unit
Holder;
10.1.4 The number of Units acquired or disposed of by each
Unit Holder;
10.1.5 The date of each acquisition or disposal of Units by
each Unit Holder; and
10.1.6 Such other particulars as the Trustee deems fit.
10.2 The Register shall be kept at the registered office of the
Trustee being a corporation and in any other case at such place
or places in Australia as the Trustee shall inform the Unit
Holders in writing.
10.3 The Trustee may at any time and from time to time establish and
maintain a separate Register in respect of any State or
Territory of the Commonwealth of Australia and designated the
Register for the capital city of the State or Territory in
respect of which it is established (for example "Canberra
Register") and on which there shall be entered the particulars
specified in Clause 10.1 in respect of a Unit Holder who
requests that a Unit held by such Unit Holder be entered on such
separate Register and the Trustee may at the request of a Unit
Holder move the name of such Unit Holder and a Unit held by such
Unit Holder from one Register to another Register.
11. Unit Certificates
11.1 Every person whose name is recorded as a Unit Holder in the
Register shall be entitled to receive free of charge one
Certificate for the Units held by such Unit Holder.
11.2 A Certificate shall be conclusive evidence of the right of a
Unit Holder to the Unit specified in the Certificate.
11.3 A Certificate shall be in the form or the effect of the form set
out in the Schedule hereto and shall specify:
11.3.1 The name of the Trust;
11.3.2 The name and address of the Unit Holder;
11.3.3 The date of issue of the Certificate;
11.3.4 The distinctive number of the Certificate; and
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11.3.5 The number and the distinctive class (if any) of Units
to which the Certificate relates;
AND shall be executed by the Trustee.
11.4 The Trustee may issue to a Unit Holder separate Certificates for
such number or multiples of Units or distinctive classes of
Units as the Trustee deems fit.
11.5 In respect of a Unit held jointly by several persons the Trustee
shall not be bound to issue more than one Certificate and
delivery of a Certificate for a Unit to one of several joint
holders shall be sufficient delivery to all such joint holders.
11.6 If the Trustee is satisfied that a Certificate for a Unit has
been worn out defaced lost or destroyed and has received from
the Holder of the Unit to which the Certificate relates an
Indemnity in a form and on and subject to conditions
satisfactory to the Trustee the Trustee shall make out and issue
to the Holder a duplicate Certificate in substitution thereof.
12. Variation of Units
The Trustee may with the consent of the Unit Holders:
12.1 Divide Units into a greater number of Units or consolidate Units
into a lesser number of Units and in each case issue new
Certificates therefor.
12.2 Divide Units into classes with such preferred deferred or other
special rights or such restrictions whether in regard to capital
income profits or gains or otherwise as the Trustee may deem
fit.
12.3 Vary the class of a Unit to a new class.
12.4 Vary the rights or restrictions attached to a Unit or class of
Units.
PROVIDED ALWAYS that the Trustee shall have obtained the prior consent
of a Unit Holder whose Unit is to be so divided consolidated classified
re-classified or varied as the case may be.
13. Transfer of Units
13.1 A Holder of a Unit may transfer such Unit:
13.1.1 To a person who is already a Unit Holder;
13.1.2 To a specified relative of such Unit Holder;
13.1.3 To a trustee (whether corporate or otherwise) to be
held upon a Family Trust of such Unit Holder;
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13.1.4 To a corporation all of the shares in which are
beneficially owned by the Unit Holder or specified
relatives of such Unit Holder or the trustee of a
Family Trust of such Unit Holder or by any one or more
of them;
13.1.5 By operation of law in consequence of the death lunacy
incapacity infirmity winding up insolvency or
bankruptcy of the Unit Holder;
13.1.6 In the case of a Unit Holder being a trustee of an
inter vivos trust, to a beneficiary under the trust;
13.1.7 In the case of a Unit Holder being an executor or
administrator of a deceased estate, to the person
entitled thereto under the Will of the deceased or by
operation of the law of intestacy;
13.1.8 In the case of a Unit Holder being a trustee of any
trust, to any new or continuing trustee of such trust;
13.1.9 In the case of a Unit Holder being a corporation, to a
corporation which by virtue of Section 50 of the
Corporations Law is deemed to be related to such Unit
Holder or to a corporation which has acquired or agreed
to acquire the whole or the main part of the
undertaking and assets of such Unit Holder in
connection with a scheme of amalgamation or
reconstruction;
13.1.10 To any person with the consent of all other Unit
Holders first had and obtained; or
13.1.11 Pursuant to the provisions of Clause 13.2 hereof;
but not otherwise and any purported transfer otherwise than
in accordance with this Clause 13.1 shall be null and void.
13.2 Save where any of paragraphs 13.1.1 to 13.1.10 (inclusive)
apply:
13.2.1 A Unit Holder desiring to transfer a Unit shall give a
Transfer Notice to the Trustee specifying the number of
Units such Unit Holder desires to transfer;
13.2.2 The Trustee shall as soon as practicable after receipt
of a Transfer Notice give notice to each Unit Holder
specifying:
(i) The number of Units the subject of the Transfer
Notice ("the available Units");
(ii) The fair value of each of the available Units;
and
(iii) The entitlement of the Unit Holder to whom the
notice is given to purchase available Units;
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13.2.3 The number of available Units which each Unit Holder
shall be entitled to purchase shall be that proportion
of the available Units as the number of Units held by
such Unit Holder bears to the total number of issued
Units in the Trust (excluding the available Units);
13.2.4 A Unit Holder desiring to purchase all or part of his
entitlement of available Units shall notify the Trustee
and upon payment of the fair value thereof to the
proposing transferor the said Unit Holder shall be
entitled to be recorded as the Holder of the Units
acquired by him;
13.2.5 A Unit Holder who does not desire to purchase the whole
or part of his entitlement of available Units shall
notify the Trustee in writing which notice shall be
deemed to be a Transfer Notice and the Trustee shall
proceed to offer those Units to the other Unit Holders
in the manner hereinbefore provided;
13.2.6 Available Units which are not purchased by any Unit
Holder shall if the Unit Holders so direct be redeemed
by the Trustee by payment out of the Trust Fund to the
intending transferor of the fair value thereof;
13.2.7 If upon the expiration of a period of three calendar
months from the giving of the Transfer Notice first
mentioned the Trustee has not either redeemed or found
a purchaser among the Unit Holders for all the
available Units the proposing transferor may within
three calendar months thereafter sell and transfer the
said available Units (or balance thereof) to any person
at the fair value thereof.
13.3 A transfer of a Unit shall be in a form approved by the Trustee
and executed by or on behalf of both the transferor and
transferee and deposited with the Trustee accompanied by the
Certificate for the Unit to which it relates and such other
information as the Trustee may deem fit and thereupon and
subject to the provisions of this Indenture the Trustee shall
record in the Register the transferee as the Holder of that
Unit.
13.4 A transferor of a Unit shall remain the Holder of the Unit
transferred until the transfer and the name and other
particulars required by this Indenture of the transferee are
recorded in the Register in respect of that Unit and upon such
registration all future rights and liabilities accruing to such
transferred Unit shall vest in the transferee.
13.5 Upon registration of a transfer of a Unit the Trustee shall
cancel the Certificate in relation to such Unit and issue a new
Certificate to the transferee provided that if the whole of the
Units of the transferor have not been transferred a new
Certificate for the balance of the Units of the transferor shall
be issued to the transferor.
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14. Transmission of Units
14.1 A person becoming entitled to a Unit by operation of law in
consequence of the death lunacy incapacity infirmity winding up
insolvency or bankruptcy of a Unit Holder may upon such evidence
being produced as may be required by the Trustee elect either to
be registered himself as the Holder of the Unit or to have some
person nominated by him registered as the holder thereof.
14.2 A person becoming entitled to Unit by operation of law as
aforesaid shall be entitled to receive and may give a good
discharge for all moneys and benefits receivable in respect of
that Unit whether or not registered as the Holder of that Unit.
15. Redemption of Units
The Trustee may upon the oral or written application of a Unit Holder
and with the oral or written consent of the other Unit Holders redeem
from the Trust Fund a Unit held by a Unit Holder and pay to that Unit
Holder the fair value of such Unit to be redeemed.
16. Surrender of Units
A Unit Holder and any person who may by succession become a Unit Holder
may with the oral or written consent of the other Unit Holders
surrender or renounce a Unit held by him or to which he may by
succession become entitled.
17. Annual Distribution of Income
17.1 Gross Income
The Trustee shall collect receive and get in all dividends
interest rent and other gross income of the Trust Fund.
17.2 Source and Character of Income
The Trustee may make:
17.2.1 A determination or determinations as to the source or
sources of any income of the Trust Fund and to identify
particular income as being from a particular source or
sources and in exercise of the powers hereinbefore
contained to pay apply or appropriate any income so
identified to any of the Unit Holders including any one
or more of them to the exclusion of the other or others
in such proportions and manner as the Trustee in the
absolute discretion of the Trustee may deem fit from
time to time;
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17.2.2 For the purposes of 17.2.1 "income of the Trust Fund"
shall include:
17.2.2.1 Dividends or receipts in the nature of or
deemed to be dividends or dividend income;
17.2.2.2 Rent;
17.2.2.3 Royalties;
17.2.2.4 Capital gains deemed to be income by the
operation of the Income Tax Assessment Xxx
0000;
17.2.2.5 Interest;
17.2.2.6 Any other class or source of income
determined by the Trustee to be a class of
income.
17.3 Net Income
The Trustee shall pay out of the gross income of the Trust Fund
all costs and disbursements commissions fees taxes management
charges and other proper outgoings in respect of the gaining or
production of the gross income and the administration of the
Trust Fund.
17.4 Distribution
Subject to such preferred deferred or other special rights or
restrictions (if any) attaching to a Unit or class of Units a
Unit shall confer on a Unit Holder an absolute and present
entitlement to and the right to receive and be paid on the last
day of each financial year a share of the net income of that
financial year arising from the Trust Fund in accordance with
the formula
b
-
a x c = d,
where -
"a" is the net income of the Trust Fund of that financial
year;
"b" is the total number of Units held by a Unit Holder on
the last day of that financial year;
"c" is the total number of Units on issue on the last day
of that financial year; and
"d" is the share of the net income of that Unit Holder.
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17.5 Joint Holders
For the purposes of Clause 17.4 joint holders of a Unit shall be
taken to be a single Holder of such Unit.
18. Interim Distributions of Income
The Trustee may from time to time with the consent of the Unit Holders
make an interim distribution of the whole or any part of the net income
of the Trust Fund reasonably anticipated by the Trustee during any
financial year to or for the benefit of the Unit Holders or any one or
more of them to the exclusion of the others in such shares and
proportions and in such manner as the Trustee shall deem fit and in the
event of any such interim distribution the appropriate adjustments
shall be made to the amounts payable to the Unit Holders under Clause
17 hereof.
19. Accumulation of Income
19.1 The Trustee may accumulate the amount (if any) by which the net
income of a financial year calculated according to proper trust
accounting principles exceeds the net income of that financial
year as defined in clause 2.1.8 hereof.
19.2 The Trustee may with the consent of the Unit Holders accumulate
the whole or any portion of the net income arising from the
Trust Fund for any period or periods prior to the Vesting Day by
investing the same as an accretion to the capital of the Trust
Fund.
PROVIDED HOWEVER that the discretion of the Trustee to accumulate the
income gains or profits arising from the Trust Fund shall not in any
circumstances extend beyond the maximum period permitted by law
therefor and that before the expiry of the said period for accumulation
the Trustee may and that upon the expiry of the said period for
accumulation the Trustee shall pay apply or set aside the whole of the
accumulated income of the Trust Fund as if it were income of the then
current financial year.
20. Infant Unit Holder's Income
While a Unit Holder is an infant or otherwise under any legal
disability the Trustee may on behalf of such Unit Holder until he or
she is free of the legal disability invest transpose and re-invest any
money or property to which such Unit Holder is entitled and the
resulting income gains and profits thereof in any of the investments
businesses matters or things authorized by this Indenture as if it were
a portion of the Trust Fund.
21. Separate Trusts
Any amounts set aside for any Unit Holder pursuant to Clause 17 or
Clause 18 hereof and any amounts held under Clause 20 hereof shall not
form part of the Trust Fund but shall upon such application be
thenceforth held by the Trustee as a separate trust fund UPON TRUST for
such Unit Holder absolutely with power to the Trustee pending payment
thereof to such Unit Holder to invest apply or deal with such trust
fund or any resulting
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income gains and profits therefrom or any part thereof in any of the
investments businesses matters or things authorized by this Indenture
as if it were a portion of the Trust Fund.
22. Winding Up
22.1 Vesting Day
The Trust shall terminate on the Vesting Day and as and from the
Vesting Day the Trustee shall hold the Trust Fund UPON TRUST for
the Unit Holders absolutely in proportion to the number of Units
respectively held by each of them on the Vesting Day any
resulting trust to the Founder being hereby negatived.
22.2 No Dealings with Units
As and from the Vesting Day no Unit shall be applied for issued
divided consolidated varied or transferred.
22.3 Procedure and Powers
The Trustee shall as soon as practicable after the Vesting Day
give notice of the termination of the Trust to each Unit Holder
and shall thereupon or as soon as practicable thereafter subject
to such preferred deferred or other special rights or
restrictions (if any) attaching to a Unit or class of Units
transfer divide and distribute the property money and things
comprised in or belonging to the Trust Fund among the Unit
Holders in proportion to the number of Units respectively held
by each Unit Holding on the Vesting Day PROVIDED THAT:
22.3.1 The Trustee may with the consent of the Unit Holders
transfer assign and convey to a Unit Holder rather than
between all Unit Holders any particular item or items
of any property or thing comprised in the Trust Fund in
specie in satisfaction or part satisfaction of the
entitlement of such Unit Holder under this Clause 22;
22.3.2 The Trustee may retain out of and from the Trust Fund
such property and moneys necessary to pay satisfy and
discharge all liabilities actual or contingent of the
Trustee in its capacity as Trustee for any probate
succession estate or other duties fees imposts levies
taxes or other debts demands or claims of a like nature
or not incurred made or apprehended by the Trustee in
the establishing managing administering or winding up
of the Trust but no part of the Trust Fund shall be
retained under this Clause 22.3.2 longer than the
limitation period applicable to debts or claims
aforesaid and any part of the Trust Fund retained under
this Clause 22.3.2 that is subsequently proved not to
be required shall be distributed among the Unit Holders
in accordance with this Clause;
22.3.3 The Trustee may before making a distribution require a
Unit Holder to deliver to the Trustee the Certificate
relating to the Unit in respect of
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which a distribution is to be made (and the Trustee
shall cancel such Certificate) together with such form
of receipt and discharge as the Trustee may require.
22.4 Discharge
The distribution of the Trust Fund in the manner hereinbefore
provided shall in the absence of personal conscious fraudulent
bad faith of the Trustee with or without execution of any
receipt constitute a full irrevocable and final discharge and
release of and to the Trustee in respect to the Trust by the
Unit Holders and by each of them jointly and severally.
23. Early Distribution of Capital
The Trustee may with the consent of the Unit Holders and before the
Vesting Day:
23.1 Early Vesting Day
By Deed appoint any earlier date to be the Vesting Day for all
or any part of the Trust Fund and the provisions of Clause 22
shall apply mutatis mutandis to same.
23.2 Appoint Property
Appoint any property comprised in the Trust Fund and for that
purpose divest the Unitholders or some of them of their interest
in such property.
23.3 Advancement
Pay or apply the whole or any part of the capital or the whole
or any part of any income or accrued or accumulated income to
which any infant Unit Holder is entitled in such manner as the
Trustee deems fit for the benefit of such infant and without
limiting the generality thereof for the maintenance education or
advancement of such infant.
24. Benefits Additional to Other Benefits
Any benefits conferred upon a Unit Holder hereunder shall be in
addition to and not in substitution for any other provision which has
been or may be made by the Founder for such Unit Holder whether by
settlement or Will or otherwise.
25. Powers of the Trustee
The Trustee shall have the following powers namely:
25.1 Investment
To apply all moneys and property at any time forming part of the
Trust Fund in such proportions as the Trustee may deem fit:
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25.1.1 In land including all tenements and hereditaments
corporeal and incorporeal of every kind and description
and every estate and interest in land;
25.1.2 In personal property including choses in possession
choses in action rights or privileges of every kind and
description including the assets liabilities and
goodwill of any business or undertaking; and/or
25.1.3 In money including currency of any country;
anywhere in the world and whether of a hazardous wasting or
speculative nature or tangible or intangible present or future
expectant or in reversion or contingent including property and
things currently owned or held by a Trustee in its personal
capacity or as trustee of any other trust fund or by a Unit
Holder or the Founder and as if the Trustee were the sole
absolute beneficial owner of the Trust Fund.
25.2 Vary Investments
To reinvest and transpose in such proportions as the Trustee may
from time to time deem fit all moneys or other property in which
the Trust Fund may from time to time be invested or applied.
25.3 Business
To apply the whole or any part of the Trust Fund in carrying on
anywhere in the world for such period or periods and under such
name as the Trustee shall deem fit any business scheme
undertaking or transaction which the Trustee deems capable of
being conveniently or profitably carried on in connection or in
conjunction with any business scheme undertaking or transaction
for the time being forming part of the Trust Fund or which in
the Trustee's opinion is calculated directly or indirectly to
enhance the value of or render profitable any business property
or rights for the time being comprised in the Trust Fund with
power to do all things which may be required and which are
incidental to the carrying on of any such business scheme
undertaking or transaction.
25.4 Partnership
To amalgamate or enter into partnership or into any arrangement
for sharing of profits union of interest co-operation joint
venture reciprocal concession or otherwise with any person firm
or corporation (including a Trustee hereof and a Unit Holder)
carrying on or engaged in or about to carry on or engage in any
business scheme undertaking or transaction which in the
Trustee's opinion is capable of being conducted so as to
directly or indirectly benefit the Trust Fund.
25.5 Deal with Property
To purchase take on lease tenancy hire or licence subscribe for
or otherwise acquire exchange hold use work build construct
reconstruct demolish maintain
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repair renovate replace alter extend add to develop decorate
furnish equip improve manage partition (including pay moneys by
way of equality of partition) subdivide transfer convey reconvey
assign surrender let lease hire licence take and grant options
or rights in pay premiums for deal in divide consolidate sell
dispose alienate mortgage charge pledge release discharge turn
to account or otherwise deal with any real or personal property
or any rights privileges or things wherever situate which may
from time to time be comprised in the Trust Fund or in which the
Trust Fund or part thereof may or could be invested or applied
at such times and upon such terms and conditions as the Trustee
shall deem fit.
25.6 Securities
To subscribe tender for purchase and otherwise acquire hold vote
upon grant options or rights in charge surrender redeem exchange
forfeit pay calls on and premiums for and assent to any
agreement scheme or arrangement affecting shares stock notes
debentures prescribed interests units options bonds or
obligations of any corporation trust association concern or
government authority or instrumentality at such times and upon
such terms and conditions as the Trustee deems fit AND the
Trustee may attend any meeting of the said corporation trust
association or concern at any time and from time to time and
either by proxy representative or attorney or otherwise
howsoever and may vote for or against any resolution (or may
abstain from voting) as the Trustee in the Trustee's absolute
discretion deems fit and notwithstanding that the Trustee or any
person claiming by through or under the Trustee either directly
or indirectly may have some material personal interest in the
subject matter of such resolution PROVIDED THAT:
25.6.1 The Trustee is hereby expressly excused from attending
any and all general and other meetings of any
corporation trust association or concern any shares
stock notes debentures prescribed interests units
options bonds or obligations of which comprise part or
all of the Trust Fund and is further excused from the
obligation of giving a proxy or proxies to any person
or appointing any person the representative of the
Trustee for the purposes of allowing or authorising
such person to represent the Trustee at any such
meeting;
25.6.2 The Trustee shall be responsible only for so much of
the shares stock notes debentures prescribed interests
units options bonds or obligations and the dividends
income and benefits therefrom as shall be actually
transferred or paid to the Trustee;
25.6.3 The Trustee shall not be obliged to enquire into or
investigate the accounts management dealings or control
of such corporation trust association or concern.
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25.7 Intellectual Property
To apply for purchase or otherwise acquire any patent right
copyright trademark design formula licence concession and the
like conferring any exclusive or non-exclusive or limited right
to use or any secret or other information as to any invention
that seems capable of being used for any of the businesses
matters or things the Trustee is authorized to do or the
acquisition of which may seem to the Trustee directly or
indirectly to benefit the Trust Fund and to use exercise develop
and grant licenses in respect of or otherwise turn to account
the property rights or information so acquired.
25.8 Dwelling House
To acquire any dwelling house or like premises suitable for a
private residence and permit a Unit Holder being a natural
person to occupy or have custody of or use of such property upon
such terms and conditions as to rent (if any) waste and other
matters as the Trustee deems fit and without obtaining any
valuations or other reports in relation thereto.
25.9 Custody of Property
To permit any Unit Holder to occupy or have custody of or use of
any real or personal property forming part of the Trust Fund on
such terms and conditions as the Trustee deems fit.
25.10 Bank Accounts
To solely or jointly with any person open an account or accounts
in the name of the Trustee or of the Trust Fund at any bank
authorized short term money market dealer building society
credit union or other financial corporation trust or institution
(herein called "the Institution") chosen by the Trustee and
conduct and operate such account as the Trustee deems fit in
accordance with the customs usages and practices of the
Institution and in particular to:
25.10.1 Draw make accept endorse or discount cheques drafts
bills of exchange promissory notes bills of lading and
other financial or negotiable instruments and
documents;
25.10.2 Overdraw any account to any extent permitted by the
Institution;
25.10.3 Authorize the Institution to make any periodical
payments to the debit of any account and to debit such
account with all charges and other costs connected with
such payments;
25.10.4 Deposit money on interest bearing deposit or deposit
account and receive payment of the same and any other
moneys at any time from such interest bearing deposit
or deposit account and interest thereon;
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25.10.5 Give instructions to the Institution regarding the
disposal renewal conversion or breaking of the period
of any interest bearing deposit or deposit account or
as to any other matter relating thereto;
25.10.6 Have access to demand of and receive from the
Institution and give the Institution any instructions
regarding any boxes packets deeds Commonwealth Treasury
Bonds savings certificates debentures share or stock
certificates certificates of deposit or other documents
or property of any kind whatsoever at any time held by
the Institution on behalf of the Trustee or of the
Trust Fund;
25.10.7 Make arrangements with the Institution regarding the
issue of letters of credit (including documentary
letters of credit and authorities to negotiate);
25.10.8 Give assign or execute any guarantees indemnities or
other documents for the protection of the Institution
in relation to missing documents or in relation to
guarantees or undertakings given or to be given by the
Institution in favour of or on behalf of the Trustee or
of the Trust Fund or in relation to letters of credit
(including documentary letters of credit and
authorities to negotiate) issued or to be issued by the
Institution on behalf of the Trustee or of the Trust
Fund or in favour of any employee officer director or
agent of the Trustee or of the Trust Fund;
25.10.9 Pledge hypothecate assign give the Institution security
over or make arrangements with the Institution
regarding bills of exchange promissory notes drafts
bills of lading warehouse certificates insurance
policies deeds bonds debentures share or stock
certificates certificates of deposit or other documents
or property of any kind whatsoever belonging to the
Trust Fund and to receive any such documents or
property from the Institution.
25.11 Borrowing
To solely or jointly with any person borrow or raise money from
any person (including a Trustee in its personal capacity and any
Unit Holder) whether or not the Trust Fund may already be wholly
invested or applied or that the moneys to be borrowed or raised
may exceed the sum or value of the Trust Fund upon such terms as
to the repayment of moneys so borrowed or raised and payment of
interest (if any) and generally as the Trustee shall deem fit
and to solely or jointly secure the repayment of moneys so
borrowed or raised and payment of interest (if any) thereon by
granting a mortgage xxxx of sale lien pledge or charge (fixed
floating legal equitable or otherwise) over all or any part of
the assets (both present and future) of the Trust Fund and with
or without granting any other form of security acknowledgment or
collateral agreement as the Trustee shall deem fit and to apply
such moneys borrowed or raised to any or all of the purposes for
which the income or capital of the Trust Fund is for the time
being applicable
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hereunder and to vary purchase redeem or discharge any such
mortgage xxxx of sale lien pledge or charge AND no person
lending or advancing money or giving credit or accommodation to
the Trustee need be concerned to enquire as to whether the
necessity for any borrowing or raising of money has arisen or
exists or as to the purpose or purposes for which it is required
or as to the application or use of the money borrowed or raised
AND IT IS DECLARED that if the Trustee is a company it may grant
a charge (fixed floating legal equitable or otherwise) over all
or any part of the assets (both present and future) of the
company and all or any part of the assets (both present and
future) of the Trust Fund held by it as Trustee and grant any
other charge or security registrable under the Corporations Law.
25.12 Guarantees and Indemnities
To solely or jointly with any other person guarantee indemnify
and become liable (whether contingently or otherwise) upon such
terms with or without remuneration or security as the Trustee
shall deem fit in respect of the performance and discharge of
contracts debts obligations and undertakings of all kinds by any
person (including a Unit Holder) and to grant a mortgage xxxx of
sale lien pledge or charge (fixed floating legal equitable or
otherwise) over all or any part of the assets (both present and
future) of the Trust Fund or otherwise grant security in support
of any such guarantee or indemnity AND IT IS DECLARED that if
the Trustee is a company it may grant a charge (fixed floating
legal equitable or otherwise) over all or any part of the assets
(both present and future) of the company and all or any part of
the assets (both present and future) of the Trust Fund held by
it as Trustee and grant any other charge or security registrable
under the Corporations Law.
25.13 Lending
To solely or jointly with any person lend advance money and give
credit to any person (including a Trustee in its personal
capacity and any Unit Holder but excluding the Founder) for any
purpose and upon such terms and conditions as to repayment of
principal and payment of interest (if any) and generally and
with or without security guarantee or collateral agreement as
the Trustee shall deem fit and without limiting the generality
of the foregoing to take or hold mortgages liens and charges to
secure payment of the purchase price or any unpaid balance of
the purchase price of any part of the Trust Fund of whatsoever
kind sold by the Trustee or any money due to the Trustee from
purchasers and others.
25.14 Agents
To employ appoint or engage or instead of acting personally
delegate as the Trustee shall deem fit the performance or
exercise of any of its trusts powers authorities and discretions
(including the receipt and payment of money) to directors
officers or employees of the Trustee managers agents attorneys
proxies representatives contractors consultants experts and
professional advisers including
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solicitors auditors accountants valuers surveyors architects
stock brokers banks or other person or persons (including a Unit
Holder or Trustee under this Indenture) and to pay them such
wages salaries fees commissions and other remuneration and
expenses as the Trustee shall deem fit AND all payments made by
the Trustee to a Unit Holder in the form of remuneration for
services rendered or to be rendered or on account of wages
salaries fees commissions and other remuneration or expenses in
connection with such services shall not be deemed to be payment
to the Unit Holder of or on account of the share of such Unit
Holder in the Trust Fund or the income thereof.
25.15 Attorneys
To appoint any person or persons to be an Attorney or Attorneys
of the Trustee and if more than one either separately or jointly
to exercise all or any of the trusts powers authorities or
discretions of the Trustee upon such terms and subject to such
conditions as the Trustee shall deem fit.
25.16 Feasibility Studies
To investigate and carry out feasibility studies of any
investment business matter property or thing in which the Trust
Fund or any part thereof is or may be invested or applied.
25.17 Advertising
To adopt such means of making known and advertising all or any
of the services assets products businesses operations and
activities of the Trust Fund as the Trustee deems fit.
25.18 Insurance
To take up acquire (including purchase by way of sale or accept
by way of gift inter vivos or by Will) keep on foot renew amend
vary mortgage pledge borrow against exchange forfeit surrender
redeem or sell:
25.18.1 Any endowment or whole of life or other policy of
assurance on the health or life of any person or
persons and may permit or nominate any person or
persons (excluding the Founder) to be the absolute
Beneficiary thereof;
25.18.2 Any policy of insurance of whatever nature against any
risk or liability in respect of the property (both
present and future) and administration of the Trust
Fund;
upon such terms and conditions the Trustee deems fit AND at or
subject to any premium or premiums whether single or payable
periodically and with or subject to any options rights benefits
conditions or provisions whatsoever and to pay out of the income
or capital of the Trust Fund as the Trustee may deem fit all
sums
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payable from time to time for premiums or otherwise for the
effecting or maintenance of any policy (whether owned by the
Trustee or otherwise) or for the exercise or enjoyment of any
option right or benefit thereunder.
25.19 Receipts
To give valid and effectual receipts and discharges for any
money or property received by or on behalf of the Trust Fund or
otherwise relating to the administration of the Trust.
25.20 Benefit Employees
To establish and support and aid in the establishment and
support of associations institutions funds trusts and
organizations calculated to benefit employees or past employees
of the Trustee or the dependents or connection of any such
persons and to grant pensions and allowances and to make
payments towards superannuation and insurance for such purposes.
25.21 Business Associations
To solely or jointly with any person establish promote join or
acquire any corporation partnership joint venture association or
unit or other trust for any purpose that may seem to the Trustee
directly or indirectly calculated to benefit the Trust Fund.
25.22 Promote New Laws
To apply for promote and obtain any statute order regulation or
other authorization or enactment that the Trustee deems
calculated directly or indirectly to benefit the Trust Fund and
to oppose any bills proceedings or applications that the Trustee
deems calculated directly or indirectly to prejudice the Trust
Fund.
25.23 Agreements
To make enter into execute and deliver such deeds agreements
contracts memoranda instruments notes understandings or
undertakings as the Trustee shall deem necessary or expedient to
carry out any trust authority power privilege right or
discretion herein or by law equity or statute given to the
Trustee.
25.24 Legal Advice
25.24.1 To appoint any duly qualified legal practitioner or
firm of legal practitioners as legal adviser to the
Trust Fund;
25.24.2 To procure take act and rely upon the advice or opinion
of a solicitor barrister counsel or attorney at law in
relation to the interpretation or effect of this
Indenture or any other document instrument or any law
as to the administration of the trusts herein PROVIDED
THAT nothing in
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this provision shall prohibit or impede the Trustee or
a Unit Holder from applying to any court for directions
or concerning any matter of and incidental to the Trust
Fund; and
25.24.3 To institute carry on prosecute defend join appeal
settle compromise abandon discontinue and enforce
judgment of any suits motions actions proceedings or
arbitrations which affect or may affect the Trustee as
trustee of the Trust or the Trust Fund or any part
(present or future) thereof.
25.25 Deposit Documents
To deposit as security or for safe custody any document
instrument or writing belonging to or relating to the Trust Fund
or any part thereof with any person including any bank.
25.26 Nominees
To permit any property or thing comprised in the Trust Fund to
be held or registered in the name of some other person or of a
nominee.
25.27 Government Concessions
To tender for and enter into any arrangements with any
government or authority supreme municipal local or otherwise
that the Trustee may deem conducive to the Trust Fund and to
obtain from any such government or authority any rights
privileges and concessions that the Trustee deems it desirable
to obtain and to carry out exercise and comply with any such
arrangements rights privileges and concessions.
25.28 Licences
To apply for secure or acquire by grant legislative enactment
assignment transfer purchase or otherwise and to exercise carry
out and enjoy and to pay for aid in and contribute towards
carrying into effect any charter licence power permit approval
consent authority franchise concession right or privilege that
any Court government authority tribunal or any corporation or
other public body is empowered to grant.
25.29 Additions to the Trust Fund
To receive money or property by gift inter vivos or by Will or
under the provisions of any other trust or trusts or otherwise
and either from the Founder or from any other person or persons
as additions to the Trust Fund and to hold the same upon the
Trusts herein set forth and to administer such additions under
the provisions hereof.
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25.30 Sinking Fund
To set aside and accumulate out of the capital or income gains
or profits of the Trust Fund such sum or sums of money as the
Trustee may deem expedient for depreciation or amortization or
to meet any future debt or obligation actual or contingent
incurred in relation to the management of the Trust Fund.
25.31 Valuations
To estimate and fix the value of any property or thing forming
part of the Trust Fund or to employ such persons to make such
valuation at such times and in such manner as the Trustee deems
fit and any valuations so made shall subject to any express
provision herein to the contrary be binding upon all persons
interested in or under the Trust Fund.
25.32 Appropriations
To appropriate any part or parts of the Trust Fund in the actual
condition or state thereof in or towards the satisfaction or
part satisfaction of the right of a Unit Holder to any of the
income or capital of the Trust Fund as the Trustee deems fit.
25.33 Characterize Income and Capital
To determine whether any real or personal property or any
increase or decrease in the amount number or value of any
property or holdings of property or any receipts or payments
from or in connection with any real or personal property shall
be treated as and credited or debited to capital or to income
and to determine as between separate funds and separate parts or
shares the allocation of receipts expenses losses and
distributions.
25.34 Disputes
To determine all matters as to which any doubt difficulty or
question may arise under or in relation to the execution of the
trusts powers authorities and discretions of the Trustee and
every determination of the Trustee in relation to any of the
matters aforesaid whether made upon a question formally or
actually raised or implied in any of the acts or proceedings of
the Trustee in relation to the Trust Fund shall bind all parties
interested therein.
25.35 Debts
25.35.1 To pay or allow any debt or claim on any evidence that
the Trustee deems sufficient;
25.35.2 To accept any composition or any security real or
personal for any debt or any property claimed;
25.35.3 To allow any time for payment of any debt;
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25.35.4 To compromise compound abandon surrender submit to
arbitration or settle any debt account claim or thing
whatever relating to the Trust Fund; and
25.35.5 To waive any right under any term of any agreement
contract or deed.
25.36 Expenses
To pay out of the Trust Fund:
25.36.1 In the event of any probate succession estate or other
duties fees or taxes becoming payable in any part of
the world in respect of the Trust Fund or any part
thereof on the death of the Founder or on the death of
a Unit Holder being an individual or any other person
to pay all or any part of such duties fees and taxes
out of the Trust Fund notwithstanding that such duties
fees or taxes or some part thereof are not or may not
be recoverable from the Trustee or from the Trust Fund
by legal process in the place where the same became
payable;
25.36.2 Any stamp gift financial institutions duty income tax
or other tax or any other duty fee levy tax or impost
of like nature or not and the legal accounting and
other professional fees payable in respect of the
preparation engrossment and execution of this indenture
the establishment of the Trusts herein the payment or
transfer of any money rights property or things to the
Trustee as an addition to the Trust Fund; and
25.36.3 All costs charges fees levies rates duties taxes
imposts and other expenses of every description of or
incidental to the administration or management of the
Trust Fund and the exercise or purported or attempted
exercise of any trust power authority or discretion
herein or by law equity or statute given and any income
profits or capital gains tax payable in respect of any
income gain or profit of the Trust Fund and which no
Unit Holder is liable to pay.
25.37 Foreign Trustees
To with the consent of the Unit Holders in any conditions or
circumstances which the Trustee deems expedient appoint either
in respect of the whole of the Trust Fund or any part thereof a
new Trustee in any country in the world and to transfer assign
and set over the assets and property for the time being
representing the Trust Fund or any part thereof to any such new
Trustee upon similar trusts and subject to similar terms and
conditions to those declared in this indenture and either
subject to the control of the Trustee of this Indenture or to
the entire exclusion of such control.
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25.38 Sale and Conversion
To sell call in and convert into money or cause to be sold
called in and converted into money the property and things
comprised in or belonging to the Trust Fund and in respect of
any such property or things which the Trustee shall determine to
exercise its power to sell call in and convert into money to
postpone such sale calling in and conversion for such time or
times as the Trustee deems fit in the interests of the Unit
Holders and shall not in the absence of personal conscious
fraudulent bad faith of the Trustee be liable to the Unit
Holders or any of them for any wasting loss or depreciation
attributable to such or any postponement;
26. Trustee Interested in Dealings
26.1 A Trustee the partner of a Trustee and any director officer or
shareholder of a Trustee being a corporation may be or become a
director officer shareholder partner member or participant of or
otherwise be directly or indirectly personally interested in any
corporation firm trust association business undertaking or thing
in which any moneys forming part of the Trust Fund may be or are
from time to time invested or applied AND no deed agreement
contract memorandum instrument note understanding or undertaking
engaged in or entered into by or on behalf of the Trustee or the
Trust Fund in which a Trustee the partner of a Trustee or any
director officer or shareholder of a Trustee being a corporation
is directly or indirectly personally interested shall be avoided
or affected thereby NOR shall the Trustee the partner of a
Trustee or any director officer or shareholder of a Trustee
being a corporation be liable to account to the Trust Fund or to
the Unit Holders or any of them for any benefit profit advantage
remuneration or reward received by him from or on account of his
interest as aforesaid.
26.2 A Trustee may acquire and dispose property borrow and lend or
otherwise deal with itself in its personal capacity or as
trustee of any other trust fund in all respects as if there were
two separate persons to such dealing.
27. Powers Independent
Subject always to any express provision to the contrary herein
contained or unless the context so requires each power authority and
discretion herein conferred on the Trustee shall not be limited or read
down by reference to any other power authority or discretion and each
such power authority or discretion may be exercised as the Trustee
deems fit in the absolute and uncontrolled discretion of the Trustee as
if the Trustee was the sole absolute beneficial owner of the Trust Fund
and the Trustee shall have such power to do all things incidental to
the effective exercise of any such power authority or discretion
conferred on the Trustee AND in addition the Trustee shall have all
powers authorities and discretions conferred on trustees by law equity
or statute.
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28. Exercise of Powers
The exercise of any trust authority power or discretion vested granted
conferred or imposed by this Indenture law equity or statute in or upon
the Trustee or the making of any decision or determination by the
Trustee:
28.1 Where the Trustee is a corporation may be exercised or made by a
resolution of its Board of Directors for the time being in the
manner provided in the Memorandum and Articles of Association of
such corporation for the exercise of the powers of the Board of
Directors.
28.2 Where there are two or more Trustees may be exercised by a
determination in writing signed or executed by a majority of the
Trustees or by a resolution passed by majority at a meeting of
the Trustees.
28.3 Whether or not the Trustee is a corporation shall be
sufficiently evidenced if noted in minutes kept by the Trustee
of its proceedings as Trustee and signed as a true record by the
Trustee or a Director of the Trustee AND the Board of Directors
of a Trustee being a corporation may resolve that the minute
book of meetings of the Board of Directors of that corporation
shall unless otherwise specified constitute the Trustee's minute
book or may otherwise arrange for the recording of the business
of the corporation in its capacity as Trustee as the Board of
Directors deems fit.
28.4 If not expressed to be revocable shall be irrevocable and
binding upon the Trustee and the Unit Holders.
AND the Trustee and any director officer or shareholder of a Trustee
being a corporation may exercise or concur in exercising any of the
trusts authorities powers and discretions of the Trustee
notwithstanding that he or any one or more of the Unit Holders may be
either directly or indirectly personally interested in the mode or
result of an exercise of any such trust authority power or discretion.
29. Validity of Dealings and Securities
No person dealing with the Trustee need be concerned to enquire as to
the adequacy of the powers of the Trustee in relation to such dealing
or as to the proper exercise by the Trustee of any of the trusts powers
authorities and discretions vested in the Trustee by this Indenture or
by law equity or statute or as to the propriety or regularity of any
transaction affecting the Trust Fund or any of the assets thereof or to
see to the application of any money or other property paid or
transferred to the Trustee or to any person at the Trustee's direction
and in the absence of fraud on the part of any such person dealing with
the Trustee such dealing shall be deemed so far as the safety and
protection of such person is concerned to be within the powers of the
Trustee and to be valid and effectual accordingly and the receipt of
the Trustee or the receipt of any person paid or receiving a transfer
as aforesaid at the direction of the Trustee shall effectually
discharge any such person dealing with the Trustee from all liability
in respect thereof and in particular and without limiting the
generality of the foregoing no mortgage pledge
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charge or other security given or created by the Trustee to or in
favour of any person over or in respect of the Trust Fund or any part
thereof shall be invalid by reason of any error or omission whether of
law or fact on the part of the Trustee or its legal or other advisers
or by reason of any breach of duty or trust whatsoever unless it shall
be proved to have been committed made or omitted in personal conscious
fraudulent bad faith by the Trustee and all persons claiming any
beneficial interest in over or to the Trust Fund shall be deemed to
have had notice of the provisions of this Clause.
30. Accounting Records
The Trustee shall:
30.1 Keep such full and complete accounting records as correctly
record and explain the transactions of the Trustee as Trustee
and the financial position of the Trust Fund.
30.2 Retain the accounting records for a period of not less than
seven calendar years after the completion of the transactions to
which they relate and shall keep the accounting records at such
place or places as the Trustee deems fit.
30.3 Not more than five calendar months after the end of each
financial year cause to be made out and be furnished to every
Unit Holder:
30.3.1 A profit and loss account for such financial year being
a profit and loss account that gives a true and fair
view of the profit or loss of the Trust Fund for such
financial year;
30.3.2 A balance sheet as at the end of such financial year
being a balance sheet that gives a true and fair view
of the state of affairs of the Trust Fund as at the end
of such financial year; and
30.3.3 Particulars of assets held as at the end of such
financial year.
30.4 The accounting records of the Trust Fund shall be kept and the
profit and loss account and balance sheet shall be made out in
accordance with generally accepted accounting principles
consistently applied.
31. Auditor
With the Unit Holders consent:
31.1 The Trustee may within one calendar month after the execution of
this Indenture appoint a properly qualified person or firm as
Auditor of the Trust Fund;
31.2 The Trustee may after giving one calendar month's notice in
writing to the Unit Holders from time to time remove from office
or accept the resignation from office of the Auditor of the
Trust Fund for the time being; and
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31.3 The Trustee shall forthwith upon the removal or retirement of an
Auditor of the Trust Fund appoint a properly qualified person or
firm as Auditor of the Trust Fund.
32. Trustee's Remuneration
A Trustee hereunder may from time to time charge and retain out of the
income of the Trust Fund such Trustee's commission as shall be agreed
between the Trustee and the Unit Holders and if there is more than one
Trustee such commission shall be divided between the Trustees as they
determine AND IN ADDITION any Trustee or any firm of which a Trustee is
a member and any director officer or shareholder of a Trustee being a
corporation being an accountant solicitor or other person engaged in
any profession trade or calling shall be entitled to make and be paid
from time to time all usual and proper charges for both professional
and other services in the administration of the Trust Fund done by the
Trustee a firm of which the Trustee is a member or any director officer
or shareholder of the Trustee being a corporation including any
services which a Trustee not being in any profession trade or calling
could have done personally.
33. Indemnity
The Trustee shall be indemnified and be entitled to be reimbursed out
of the Trust Fund against debts fees costs taxes disbursements duties
expenses liabilities and obligations incurred or paid by the Trustee in
its capacity as Trustee in the execution or purported or attempted
execution or failure or neglect to execute the Trustee's trusts powers
authorities and discretions by this Indenture law equity or statute
vested in or upon the Trustee including without limiting the generality
of the foregoing debts fees costs taxes disbursements duties expenses
liabilities and obligations incurred or paid or undertaken by the
Trustee in carrying on a business or undertaking by this Indenture or
otherwise by law equity or statute authorized PROVIDED THAT:
33.1 Neither the Founder nor any Unit Holder (as such) shall be
liable personally to indemnify contribute to or reimburse the
Trustee or any creditor of the Trustee or other person claiming
against or through the Trustee notwithstanding any rule of law
or equity to the contrary.
33.2 The liability of the Unit Holders is limited to the amount (if
any) unpaid on the units respectively held by them.
34. Trustee Not Liable For Loss
A Trustee and any director officer or servant of a Trustee being a
corporation shall not be liable to compensate the Trust Fund or any
Unit Holders (as such) for any loss or damage incurred in the execution
or exercise purported or attempted execution or exercise or failure or
neglect to execute or exercise any of the trusts authorities powers or
discretions by this Indenture or by law equity or statute vested in or
upon the Trustee unless it shall be proved to have been committed or
omitted in personal conscious fraudulent bad faith by the Trustee
charged to be so liable AND a Trustee shall not be bound to take
proceedings against any former Trustee or any Co-Trustee for any breach
or alleged
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breach of trust committed by such former Trustee or any Co-Trustee AND
all persons at any time claiming any beneficial interest in over or
upon the Trust Fund shall be deemed to take with notice of and subject
to the protection hereby conferred on a Trustee.
35. No Agency
This Indenture shall not operate or have effect to constitute the
relationship of principal and agent or of partners between the Trustee
and any Unit Holder (as such) or between the Unit Holders inter se and
all income payable in accordance with the provisions hereof to Unit
Holders shall be payable to them separately and income received by the
Trustee shall not be received or be construed as received by or on
behalf of the Unit Holders jointly.
36. Appointment and Removal of Trustees
36.1 The Unit Holders may at any time or times by Deed appoint a new
or additional Trustee or Trustees or remove any Trustee or
Trustees for the time being PROVIDED THAT the new or additional
Trustee or Trustees shall by the same or other Deed undertake to
be bound by and perform the obligations of a Trustee under this
Indenture and accept liability for the proper obligations of any
outgoing Trustee in its capacity as such AND PROVIDED ALWAYS
that the Founder shall not at any time be eligible for
appointment as a Trustee hereof.
36.2 The Trustee declares that it shall act continuously as Trustee
of the Trust until the Trust is determined as herein provided or
the Trustee has retired or been removed from office as herein
provided.
36.3 A Trustee shall vacate the office of Trustee:
36.3.1 Upon removal by the Unit Holders as hereinbefore
provided;
36.3.2 Upon giving one calendar month's notice in writing to
the Unit Holders of the intention of the Trustee to
retire, forthwith upon the expiration of the said
notice period; or
36.3.3 If the Trustee being an individual becomes bankrupt or
being a corporation enters into liquidation whether
voluntary or otherwise (except for the purpose of
amalgamation or reconstruction) or if a Receiver or
Receiver and Manager shall be appointed of the
undertaking of the Trustee;
whereupon the Unit Holders shall if necessary appoint a new
Trustee in lieu of the outgoing Trustee.
36.4 An outgoing Trustee shall forthwith deliver such books documents
records moneys and property and execute all such transfers
instruments documents and authorities and do all such other acts
and things necessary or expedient for vesting the Trust Fund in
the new or continuing Trustee or Trustees.
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36.5 The costs charges and expenses including stamp duty (if any) of
and incidental to the retirement removal and appointment of
Trustees shall be borne by the Trust Fund.
37. Consent and Direction of Unit Holders
Wherever herein a trust power authority or discretion of the Trustee is
expressed to be subject to the consent or direction of the Unit Holders
then such consent or direction shall be conclusively deemed to have
been given or made on production of:
37.1 A minute signed by the Chairman of a meeting of Unit Holders
stating that at a duly convened meeting of Unit Holders a
resolution was duly passed in favour of such consent or
direction by a majority of Unit Holders alone or together
holding not less than seventy five per centum of the votes of
those Unit Holders present at the meeting and voting; or
37.2 A document containing a statement that the Unit Holders consent
or direct in terms set out in the document executed by those
Unit Holders who alone or together hold not less than seventy
five per centum in value of the Units, and for the purposes of
this sub-clause two or more separate documents containing
statements in similar terms shall together be deemed to
constitute one document containing a statement in those terms.
AND save where herein a trust power authority or discretion of the
Trustee is expressed to be subject to the consent or direction of the
Unit Holders neither the Unit Holders or any of them shall have any
power or right to direct or interfere with the performance exercise or
non-performance or non-exercise by the Trustee of any trusts powers
authorities and discretions herein or by law equity or statute vested
in or upon the Trustee.
38. Meetings of Unit Holders
38.1 The Trustee may at any time and shall on receipt of a
requisition in writing signed by a Unit Holder or Unit Holders
holding not less than ten per centum in value of the Units call
a meeting of the Unit Holders.
38.2 If the Trustee shall not within twenty one days from receipt of
a requisition of Unit Holders duly proceed to convene a meeting
the requisitionists or a majority of them in value may
themselves convene the meeting but any meeting so convened shall
not be held after three calendar months from the date of such
receipt by the Trustee and a meeting convened under this
sub-clause by the requisitionists shall be convened in the same
manner as nearly as practicable as that in which meetings are to
be convened by the Trustee.
38.3 Unless the Unit Holders otherwise consent or otherwise direct a
meeting of the Unit Holders shall be called by the Trustee at
least once in every calendar year and not more than eighteen
calendar months after the previous meeting of Unit Holders.
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38.4 A meeting of the unit Holders shall be called by the Trustee
giving not less than twenty one days' notice to all the Unit
Holders and the Auditor (if any) for the time being of the Trust
Fund specifying the date time and place of and general nature of
the business to be transacted at the proposed meeting PROVIDED
THAT a matter requiring the consent of the Unit Holders or
concerning which it is proposed the Unit Holders should direct
the Trustee shall be specified in the notice convening the
meeting at which it is proposed the consent or direction shall
be given or made.
38.5 Notwithstanding Clause 38.4 if it is so agreed by a Unit Holder
or Unit Holders holding not less than ninety-five per centum in
value of the Units a meeting of the Unit Holders may be called
and held of which less than twenty one days' notice has been
given.
38.6 The accidental omission to give notice of a meeting to or the
non-receipt of a notice of a meeting by any person entitled to
receive a notice of such meeting shall not invalidate the
proceedings at and of such meeting.
38.7 Unit Holders present in person or by Proxy or Attorney or
Representative and holding not less than twenty per centum in
value of all the Units at the date of such meeting shall be a
quorum for a meeting of Unit Holders and no business shall be
transacted at any meeting of Unit Holders unless the requisite
quorum is present at the commencement of the meeting and if
within fifteen minutes from the time appointed for the meeting a
quorum is not present the meeting if convened upon the
requisition of Unit Holders shall be dissolved and in any other
case it shall stand adjourned to the same day in the next week
at the same time and place.
38.8 The Trustee or the Trustee's nominee shall be entitled to take
the chair at any meeting of Unit Holders.
38.9 The Chairman may with the consent of a meeting at which a quorum
is present and shall if so directed by the meeting adjourn the
meeting from time to time and from place to place.
38.10 No business shall be transacted at any adjourned meeting other
than the business left unfinished at the meeting from which the
adjournment took place.
38.11 If any meeting of Unit Holders except a meeting adjourned for
want of a quorum shall be adjourned for more than seven days
then notice of such adjournment shall be given to all the unit
Holders in the same manner as notice was given of the original
meeting.
38.12 Subject to such special rights or restrictions (if any)
attaching to a Unit or class of Units on a show of hands each
Unit Holder present in person or being a corporation by a duly
authorized Representative shall each have one vote and on a poll
each Unit Holder present in person or by Proxy Attorney
Representative Committee Curator or Manager shall have one vote
for each Unit he holds.
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38.13 In the case of joint holders of a Unit the vote of the joint
holder first named in the Register shall be accepted to the
exclusion of the votes of the other joint holders.
38.14 A Unit Holder may be represented at a meeting of the Unit
Holders by a Proxy Attorney Representative Committee Curator or
Manager PROVIDED THAT:
38.14.1 A person appointed as a Proxy Attorney or
Representative Committee Curator or Manager need not be
a Unit Holder;
38.14.2 An instrument appointing a Proxy or a Representative
shall be in writing executed by the Unit Holder;
38.14.3 An instrument appointing a Proxy or a Representative
may specify the manner in which the Proxy or the
Representative is to vote in respect of a particular
resolution and where the instrument so provides the
Proxy or the Representative is not entitled to vote on
the resolution except as specified in the instrument
PROVIDED ALWAYS an instrument appointing a Proxy or a
Representative shall empower a Proxy or Representative
to vote in such manner that the Proxy or Representative
deems fit unless otherwise specified;
38.14.4 An instrument appointing a Proxy or a Representative
shall be deemed to confer authority to speak and to
demand or join in demanding a poll;
38.14.5 An instrument appointing a Proxy shall be in the
following form or in a form that is as similar to the
following as the circumstances admit:
[Name of Trust]
I of
being a Unit Holder of the above named Trust
hereby appoint of
or, in his absence
of as my Proxy to vote for me on my behalf at the
meeting of the Unit Holders to be held on the
day of 19 and at any adjournment of that
meeting.
My Proxy is to vote in favour of/against the resolution
that:
Signed this day of 19 .
38.14.6 An instrument appointing a Proxy shall not be treated
as valid unless the instrument and the power of
attorney or other authority (if any) under which the
instrument is signed or a certified copy of that power
or authority is or are deposited with the Trustee
before the time for holding
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the meeting or adjourned meeting at which the person
named in the instrument proposes to vote;
38.14.7 A vote given in accordance with the terms of an
instrument of proxy or of a power of attorney is valid
notwithstanding the previous death or unsoundness of
mind of the principal the revocation of the instrument
(or of the authority under which the instrument was
executed) or of the power or the transfer of the Unit
in respect of which the instrument or power is given if
no notice in writing of the death unsoundness of mind
revocation or transfer has been received by the Trustee
before the commencement of the meeting or the adjourned
meeting at which the instrument is used or the power is
exercised;
38.14.8 If a Unit Holder is of unsound mind or is a person
whose person or estate is liable to be dealt with in
any way under the law relating to mental health age or
infirmity or prisoners then his Committee Manager or
Curator or such other person as properly has the
management of his estate may exercise any rights of the
Unit Holder in relation to a meeting as if the
Committee Manager or Curator or other person were the
Unit Holder personally present at the meeting PROVIDED
THAT before the time of holding the meeting or
adjourned meeting at which he proposes to vote the
Committee Manager Curator or other person as aforesaid
shall have satisfied the Trustee of his right to
represent the Unit Holder and vote in his stead.
38.15 At a meeting of the Unit Holders a motion put to the vote of the
meeting shall be decided on a show of hands unless before or on
the declaration of the result of the show of hands a poll is
demanded by:
38.15.1 The Chairman; or
38.15.2 A Unit Holder or Unit Holders present in person or by
proxy attorney or other duly authorized representative
and representing not less than ten per centum in value
of the Units.
38.16 Unless a poll is demanded a declaration by the Chairman that a
resolution has on a show of hands been carried or carried
unanimously or by a particular majority or lost and an entry to
that effect in the minutes of the proceedings is conclusive
evidence of the fact without proof of the number or proportion
of the votes recorded in favour of or against the resolution.
38.17 The demand for a poll may be withdrawn.
38.18 If a poll is duly demanded it shall be taken in such manner and
either at once or after an interval or adjournment or otherwise
as the Chairman directs and the result of the poll shall be the
resolution of the meeting at which the poll was demanded.
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38.19 An objection may be raised to the qualification of a voter only
at the meeting or adjourned meeting at which the vote objected
to is given or tendered and any such objection shall be referred
to the Chairman of the meeting whose decision is final and a
vote not disallowed pursuant to such an objection is valid for
all purposes.
38.20 In case of an equality of votes whether on a show hands or on a
poll the Chairman shall not have a casting vote and the motion
put to the vote shall fail.
38.21 The Chairman shall cause minutes of all resolutions passed and
proceedings had at every meeting of Unit Holders to be made in
writing and any such minute as aforesaid if purporting to be
signed by the Chairman of the meeting at which such resolutions
were passed or proceedings had or by the Chairman of the next
succeeding meeting (if any) of the Unit Holders shall be prima
facie evidence of the matters therein stated and until the
contrary is proved every such meeting in respect of the
proceedings of which minutes have been made shall be deemed to
have been duly held and convened and all resolutions passed
thereat or proceedings had to have been duly passed and had.
38.22 A resolution passed at a meeting of the Unit Holders duly
convened and held in accordance with this Indenture shall be
binding upon all the Unit Holders whether present or not present
at such meeting and each of the Unit Holders and the Trustee
shall be bound to give effect thereto accordingly.
38.23 Notwithstanding any other provision herein contained if a
document containing a statement that the Unit Holders are in
favour of a resolution in terms set out in the document is
executed by or on behalf of each and every Unit Holder a
resolution in those terms shall be deemed to have been passed at
a meeting of the Unit Holders held on the day and at the time at
which the document was last executed by or on behalf of a Unit
Holder and for the purposes of this sub-clause two or more
separate documents containing statements in similar terms each
of which is executed by or on behalf of one or more Unit Holders
shall together be deemed to constitute one document containing a
statement in those terms.
39. Notices
39.1 A notice required to be given under this Indenture by the
Trustee to a Unit Holder or by a Unit Holder to the Trustee or
to another Unit Holder shall be in writing and may be delivered
or sent by registered or certified post or by telex:
39.1.1 To the Trustee at the address or the telex number (if
any) appearing in the Register;
39.1.2 To a Unit Holder at the address or the telex number (if
any) appearing in the Register;
as the case may be.
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39.2 The Trustee may by notice given to the Unit Holders and each
Unit Holder may by notice given to the Trustee from time to time
change its registered address or telex number for notices.
39.3 A notice may be given by the Trustee or by another Unit Holder
to the joint holders of a Unit by giving the notice to the joint
holder first named in the Register in respect of the Unit and a
notice so given shall be sufficient notice to all joint holders
of such Unit.
39.4 A notice shall be deemed to have been served:
39.4.1 Where delivered when left at the registered address for
notices of the recipient;
39.4.2 Where posted when the envelope or letter containing a
notice would have been delivered to the registered
address for notices of the addressee in the ordinary
course of post;
39.4.3 Where sent by telex when the sender receives the
answerback code of the recipient on completion of
transmission of the telex;
AND a certificate by the Trustee that a notice was delivered by
leaving the same at the registered address for notices of the
Unit Holder or that the envelope or letter containing a notice
was properly addressed and lodged with the Post Office or put in
such other public postal receptacle shall be conclusive evidence
thereof.
39.5 Every person who by operation of law transfer or other means
whatsoever shall become entitled to any Unit shall be bound by
every notice in respect of such Unit which previously to his
name and address being entered on the Register shall have been
duly given to the person from whom he derived his title to such
Unit.
39.6 Where a given number of days' notice or notice extending over
any other period is required to be given the day of service
shall unless it is otherwise provided be counted in such manner
of days or other period.
40. Access to Trust Papers
The Trustee shall make the accounting records and other records
documents and papers of the Trust Fund including without limiting the
generality of the foregoing the Register and this Indenture available
for inspection and copying by a Unit Holder without charge.
41. Unit Holders of Minority Age
Minors shall be eligible to apply for hold transfer and exercise all
rights attaching to Units and the Trustee shall be entitled to accept
an application or transfer signed and the exercise of any rights by the
parent or guardian for the time being of a minor in the same manner as
if such application transfer or exercise had been signed or made by a
Unit Holder who is an adult and in particular but without limiting the
effect thereof the receipt
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of the parent or guardian of a minor for moneys or other property
whether on account of capital or income shall be a sufficient discharge
to the Trustee to the extent thereof.
42. Failure of Trust
In the event of the failure of the Trust Fund in whole or in part and
whether of the capital or income to vest absolutely under the
provisions of this Indenture the Trustee shall hold the same and the
future income thereof or so much of the same as shall have not been
absolutely vested applied or distributed under the provisions herein
contained or under any statutory power UPON TRUST for the persons for
the time being referred to in the Register as Unit Holders hereof and
if more than one then in equal shares any resulting trust to the
Founder being hereby negatived.
43. Exclusion of Founder
Notwithstanding anything herein expressed or implied the Trust Fund
shall henceforth be possessed and enjoyed to the entire exclusion of
the Founder and in particular but without limiting the generality of
the foregoing no part of the capital or income of the Trust Fund shall
be paid lent to or applied for the benefit either directly or
indirectly of the Founder in any manner or in any circumstances
whatsoever AND no trust authority power or discretion hereby or by law
equity or statute conferred in or upon the Trustee shall be capable of
being exercised in such manner that the Founder will or may become
entitled either directly or indirectly to any benefit in any manner or
in any circumstances whatsoever.
44. Variation of Trust Indenture
The Trustee may at any time or times before the Vesting Day by Deed
revoke alter add to or vary the provisions of this Indenture and by the
same or any other Deed or Deeds declare any new or other trusts powers
authorities or discretions concerning the Trust Fund or any part or
parts thereof PROVIDED ALWAYS:
44.1 The Unit Holders shall first consent to any such revocation
alteration addition or variation.
44.2 The law against perpetuities and the law against accumulations
is not thereby infringed.
44.3 No benefit shall or may result to the Founder.
44.4 The beneficial entitlement to any amount paid or set aside for a
Unit Holder prior to the revocation alteration addition or
variation shall not be affected.
45. Proper Law
This Indenture shall be governed by the laws of or applicable in the
State of South Australia and the rights of the Founder the Trustee and
the Unit Holders and each of them and the construction and effect of
each and every provision hereof and thereof shall be
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subject to the jurisdiction of and construed only according to the laws
of or applicable in the State of South Australia which shall be the
forum for the administration hereof notwithstanding that one or more of
the Founder the Trustee or Unit Holders hereof may from time to time be
resident or domiciled or incorporated elsewhere than in the State of
South Australia and each and all of the Founder the Trustee and the
Unit Holders irrevocably submit to the jurisdiction of the relevant
court of the State of South Australia in respect of all disputes which
may arise in respect of this Indenture and the Trusts hereby created.
46. Parties
Every person who is or becomes a Unit Holder shall be deemed to have
agreed to become a party to this Indenture and shall be entitled to the
benefit of and shall be bound by the provisions of this Indenture.
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IN WITNESS whereof the parties hereto have hereunto set their hands and seals
respectively the day month and year hereinbefore first mentioned.
SIGNED SEALED AND DELIVERED )
--------------------------- )
by the said )
XXXXX XXXXXX XXXXX ) /s/ XXXXX XXXXXX XXXXX
------------------ ) ---------------------------------
in the presence of: ) XXXXX XXXXXX XXXXX
/s/ Founder
-------------------------------------
THE COMMON SEAL of )
------------------ )
XXXXX HELICOPTERS )
----------------- )
INTERNATIONAL PTY. LTD. )
----------------------- )
was hereunto affixed in the )
presence of: )
XXXXX HELICOPTERS PTY. LTD.
/s/ A.C.H. 008 284 982
------------------------------------- COMMON SEAL
Director
/s/ Trustee
-------------------------------------
Secretary
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SCHEDULE
--------
UNIT CERTIFICATE
----------------
THE AUSTRALIAN HELICOPTERS TRUST
--------------------------------
THIS IS TO CERTIFY that (Name) of (Address) (Occupation) is the registered
holder of the Units shown in the following Schedule subject to and with the
benefit of the terms and conditions of the Trust Indenture described hereunder.
SCHEDULE
--------
-----------------------------------------------------------------
DATE
----
OF CERTIFICATE NUMBER OF UNITS
-- ----------- ---------------
ISSUE NO. WORDS FIGURES CLASS
----- --- ----- ------- -----
-----------------------------------------------------------------
-----------------------------------------------------------------
This Certificate is issued by XXXXX HELICOPTERS INTERNATIONAL PTY. LTD. A.C.N.
008 204 982 pursuant to the Indenture dated the day of
19 and made between XXXXX XXXXXX XXXXX of Xxxxxxx Road Oakbank in the State
of South Australia 5243 Chartered Accountant as Founder and XXXXX HELICOPTERS
INTERNATIONAL PTY. LTD. of 00 Xxxxxxxxx Xxxx Xxxxxxxx in the said State 5034 as
Trustee establishing the abovementioned Trust.
THE COMMON SEAL of )
------------------ ) XXXXX HELICOPTERS PTY. LTD.
XXXXX HELICOPTERS ) A.C.H. 008 284 982
----------------- ) COMMON SEAL
INTERNATIONAL PTY. LTD. )
----------------------- )
was hereunto affixed in the )
presence of: )
/s/
-------------------------------------
Director
/s/
-------------------------------------
Secretary
This Certificate must be delivered to the Trustee on application to transfer or
redeem any of the Units comprised herein.
