TRIMAINE TRUST SETTLEMENT
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THIS SETTLEMENT is made as of the 3rd day of December, 2001,
BETWEEN:
TRIMAINE HOLDINGS, INC., a corporation organized under the
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laws of the State of Washington, having an address care of
Xxxxx 0000, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(hereinafter called the "Settlor")
OF THE FIRST PART
AND:
NEW IMAGE INVESTMENTS CO. LTD., a corporation organized under
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the laws of the British Virgin Islands, having an address at
000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxx Building 2nd Floor, Wickhams
Cay, Road Town, Tortola, British Virgin Islands
(hereinafter called the "Original Trustee")
OF THE SECOND PART
WHEREAS:
A. The Settlor being desirous of making such irrevocable settlement as is
hereinafter contained has paid to the Original Trustee or otherwise
placed under its control the sum of US $100.00 (One Hundred US
Dollars);
B. It is contemplated that further sums of money, investments or other
property may hereafter be paid or transferred or otherwise placed under
the control of the Trustees (as hereinafter defined) to be held by them
upon the trusts of this Settlement (as hereinafter defined);
NOW THIS INSTRUMENT WITNESSETH as follows:
1. In this Settlement, the following expressions shall have the following
meanings:
(a) "MFC" means MFC Bancorp Ltd., a body corporate organized under the
laws of the Yukon Territory;
(b) "Beneficiary" means TriMaine Holdings, Inc., a body corporate
organized under the laws of the State of Washington;
(c) "Settlement" means the settlement created by this instrument dated
December 3, 2001;
(d) "Shares" means 1,870,000 common shares of MFC;
(e) "Trust Fund" means and includes:
(i) the said sum of US $100.00 (One Hundred US Dollars) under
reference in recital A to this Instrument or Settlement;
(ii) the Shares;
(iii) all cash investments and property, real or personal, paid or
transferred to, and accepted by the Trustees as additions to
the Trust Fund and held by them upon the trusts hereof;
(iv) the investments, securities, property and cash, from time
to time, representing the said sum, the Shares and the said
additions to the Trust Fund or any part or parts thereof
respectively and any accumulations make or made under the
trust in that behalf contained in clause 6 hereof;
(f) "Trustees" means the Original Trustee or other trustee or trustees,
for the time being, thereof;
(g) "Vesting Date" means the first to occur of:
(i) the expiry of the period of 21 years from the date of this
Settlement;
(ii) such date being earlier than the day specified in paragraph
(i) of this subclause as the Trustees may at any time by
writing under their hands or by instrument executed before
the Vesting Date appoint.
2. (a) This Settlement is established under the laws of British
Columbia, Canada and the rights of all parties and the construction
and effect of each and every provision hereof shall be subject
to the exclusive jurisdiction of and construed and regulated only
according to the laws of British Columbia and the laws of Canada
applicable therein notwithstanding that any one or more of the
Trustees may, from time to time, be resident or domiciled elsewhere
than in British Columbia, Canada.
(b) Provided always that the Trustees may at any time, and from time
to time, by writing under their hands or by deed declare that
the trusts, powers, and provisions hereof shall from the date of
such declaration take effect in accordance with the law of any
other place in any part of the world and as from the date of such
declaration the law of the state or country named therein shall be
the law applicable to this Settlement and the courts of that state
or country shall be the
forum for the administration thereof but subject to the power
conferred by this subclause and until any further declaration
is made hereunder.
(c) So often as any such declaration as aforesaid shall be made the
Trustees may at any time or times thereafter by writing under their
hands or by deed make such consequential alterations in the trusts,
powers, and provisions of this Settlement as they, in their
absolute discretion, consider necessary or desirable to secure
that so far as may be possible such trusts, powers and provisions
shall be as valid and effective under the laws of the country named
in such declaration as they are under the laws of British Columbia,
Canada.
(d) In the alternative, the Trustees may at any time, and from time to
time, by writing under their hands or by deed instead of making
such declaration as aforesaid wholly revoke the settlement hereby
made for the purpose only of declaring the same and they shall
immediately, on such revocation, declare such new or other trusts
as shall be required to carry out the purposes of this
Settlement under the law of some other country and any such new
settlement shall contain the same powers as are conferred
by this subclause.
3. The Trustees shall stand possessed of the Trust Fund, upon trust,
at their discretion, to retain the same in its existing form of
investment or to sell, call in or convert the same or any part or
parts thereof which shall not consist of money, including, without
limitation, the Shares, and to invest or apply the net proceeds of
any sale calling in or conversion together with the sum of US $100.00
(One Hundred US Dollars) under reference and any other sum or sums of
money paid to the Trustees and forming the whole or part of the Trust
Fund in or upon any kind of investments or for any of the purposes
hereinafter authorized with power at any time, and from time to time,
to vary and transpose any such investments or purposes for or into
others of any nature hereby authorized.
4. The Trustees shall stand possessed of the Trust Fund and the income
thereof including all dividends declared and payable on or after the
date hereof upon the trusts and with and subject to the powers and
provisions hereinafter declared and contained concerning the same.
5. The Trustees shall hold the capital and income of the Trust Fund
upon trust for the Beneficiary.
6. The Trustees shall until the Vesting Date accumulate the entire
income of the Trust Fund arising between the date hereof and the
said date by investing the same and the resulting income thereof
in any investments hereinafter authorized and the accumulation so
made shall be held as an accretion to the capital of the Trust Fund,
provided always that the Trustees shall have power to pay or apply
such part or parts of the annual income of the Trust Fund as it
arises, by way of distribution of cash only, to or for the
benefit of the Beneficiary in such manner as the Trustees shall,
in their absolute discretion, and without being liable to account for
the exercise of such discretion think fit, such that the Trustees
may at any time or times apply at their discretion, the whole or
any part or parts of the said accumulations as if the same were
income arising in the then current year or for any
of the purposes for which monies arising under this Settlement
are authorized to be applied, provided that under no circumstances
shall such payments be made by way of distribution of any assets in
a form other than cash.
7. It is hereby declared (without prejudice to the generality of the
foregoing) that any income or capital which the Trustees shall have
determined to pay or apply for the benefit of the Beneficiary may be
paid or transferred to the trustees of any settlement, trust
disposition, or other instrument under which the Beneficiary is
beneficially interested or which in the opinion of the Trustees is
for the benefit of the Beneficiary and such payment shall be deemed
to be an application of income or capital for the benefit of such
person provided that nothing in this clause 7 contained shall be
construed so as to authorize the Trustees to make any payment, in
such a manner as to infringe under any relevant law any rule
against perpetuities or excessive accumulations, or to make any
distribution of any assets of the Trust Fund other than by way of
cash payment.
8. Subject to the trusts hereinbefore contained, the Trustees shall stand
possessed of the Trust Fund on the Vesting Date upon trust for the
Beneficiary.
9. On or before the Vesting Date, or upon the failure of the trust
established by this Settlement, for any reason, prior to the Vesting
Date, the Trustees shall sell all assets comprising the Trust Fund not
Comprised of cash, including, without limitation, the Shares, or any
remaining Shares constituting a portion of the Trust Fund, or shall
convert all such assets, including, without limitation, such Shares or
remaining Shares, into cash, and such proceeds shall stand in the
place of the assets so sold or converted. For greater certainty, the
parties hereto acknowledge and agree that no assets, other than cash
proceeds, may, under any circumstances, revert to the Settlor or vest
in the Beneficiary (provided that nothing in this Section 9 will serve
to limit the Beneficiary's interest in the Trust Fund other than to
limit any right to receive assets in a form other than cash, upon
vesting or dissolution of the Trust).
10. (a) Any monies arising under this Settlement may be invested or
otherwise applied by the Trustees on the security of or in the
purchase or acquisition of real or personal property (including
chattels) and leasehold property of any tenure, rights or interests
of whatsoever kind and wheresoever situate including, in particular
but without prejudice to the generality of the foregoing, any
company, any stock, funds, shares, securities, or other
investments or property of whatsoever nature and wheresoever situate
and whether involving liability for waste or not or on loan with
or without interest and with or without security to any person or
any firm or company anywhere in the world including loans to the
Beneficiary and the Trustees may grant indulgence to or release any
debtor, give and take guarantees with or without consideration,
enter into profit sharing agreements or give and take options
with or without consideration, accept substitution of any security
for other security or of one debtor for another debtor to the
intent that the Trustees shall have the same unrestricted powers
of investing, holding and using monies and transposing investments
and altering the uses of monies arising under these presents as if
they were absolutely entitled thereto beneficially.
(b) It is hereby expressly declared, but without prejudice to the
generality of the foregoing subclause, that the Trustees may, at any
time, and from time to time, before the Vesting Date, exercise the
powers hereinafter contained, and, without limitation:
(i) the Trustees may:
(A) retain or hold the whole or any part of the Trust Fund
in its actual state of investment, for the time being,
(without being under any duty to diversify the
investments, from time to time, comprised in the Trust
Fund) or otherwise such as, in their absolute discretion,
they shall think fit, and without responsibility for any
loss occasioned by an exercise of the powers in this
present paragraph contained;
(B) with respect to any freehold, leasehold, or other
immovable property which or the proceeds of which is
or are, for the time being, subject to the trusts
hereof, exercise all powers of management which an
individual and/or beneficial owner might exercise
including power to apply any money subject to the trusts
hereof (including income of the Trust Fund) in
repairing, cleaning, decorating, altering, or improving
such property and in paying taxes, rates, insurance
premiums, expenses, servants, wages, and all other
payments and outgoings whatsoever, due and payable
to or on account of, such property;
(C) in relation to any leasehold property of other wasting
assets, effect and maintain sinking fund policies and
pay all expenses of keeping up the same out of the
income of the Trust Fund;
(ii) (A) any land purchased by the Trustees shall be assured
to the Trustees either with or without any trust for sale
as the Trustees shall think fit but nevertheless with
power to sell the same and with power to postpone sale;
(B) until the sale of any land purchased as aforesaid
the Trustees may permit the Beneficiary to occupy the
same upon such terms (if any) as to payment or
nonpayment of rent, taxes, rates, and other expenses and
outgoings and as to repair and decoration and for such
period as the Trustees may think fit;
(C) the Trustees shall be indemnified out of the Trust
Fund against all costs, rents, covenants, obligations,
and outgoings relating to any land purchased as
aforesaid or for which the Trustees may be liable in
respect of the said premises or the said purchase;
(iii) the Trustees shall be at liberty to borrow money to
give effect to any appointment authorized hereunder or for the
purpose of purchasing or subscribing for any shares or stocks,
securities, properties, options, rights, or interest, or other
property of whatsoever description upon such terms as to
repayment of principal and payment of interest as they shall,
in their absolute discretion, think fit and they may pledge
or mortgage the whole or any part of the capital or income of
the Trust Fund by way of security for any such loans. No
lender shall be bound to enquire as to the propriety
of any such loan pledge or mortgage or as to the application
of the proceeds thereof;
(iv) the Trustees shall have power at any time, at their
absolute discretion, and on such terms as they deem fit, to
appropriate or to apply the capital or income of the Trust
Fund or any part thereof in securing the payment of money owed
by or the performance of any obligations of and to give any
guarantee or to become surety for the Beneficiary or for any
company in which the Beneficiary may have an interest as a
shareholder, partner, joint venture interest holder or lender
and for these purposes to mortgage or charge any investments
or property, for the time being, forming part of the Trust
Fund or to deposit or transfer any such investments or
property by way of security with or to any such person,
firm, or company, provided that under no circumstances shall
any assets, other than in the form of cash, be transferred
directly or indirectly from the Trust Fund to the Beneficiary;
(v) the Trustees may (subject to the limitation on the Trustees'
ability to vote the Shares as set out in Section 11(a) hereof)
at any time or times enter into any compromise or arrangement
with respect to or may release all or any of their rights as
creditors of any individual or as shareholders, stockholders,
or debenture stockholders or creditors of any company and
whether in connection with a scheme of reconstruction or
amalgamation or otherwise and may accept in or towards
satisfaction of all or any of such rights, such consideration
as they shall, in their discretion, think fit, whether in
the form of shares stock, debenture stock, cash obligations,
or securities of the same or of any other company or companies
or in any other form whatsoever;
(vi) the Trustees further, and without prejudice to the generality
of the foregoing powers, shall have power, in their
discretion, to apply or direct the application of any part or
parts of the income or capital, for the time being, arising
out of or comprised in the Trust Fund, in or towards payment
of the premiums on any policy or policies of assurance in
which the Beneficiary (whether under this Settlement or any
other settlement or otherwise) has any beneficial interest
whether vested or contingent and whether defeasible or
indefeasible, provided always that the Beneficiary shall
have no right to receive any income or capital paid from the
Trust Fund other than by way of cash distributions;
(vii) the Trustees shall further have power, if they think fit, to
apply or direct the application of any part of the
capital or income of the Trust Fund:
(A) in the purchase or acquisition of or in effecting any
term or other policy or policies on the life of any
person or any endowment or sinking fund or other
policy or policies, of whatsoever nature, and at or
subject to any premium or premiums whether single
or payable periodically and with and subject to any
options, rights, benefits, conditions, or provisions
whatsoever;
(B) in paying any sums payable, from time to time, for
premiums in respect of such policy or policies;
(C) in repaying any loan (together with any interest thereon)
taken by them for the purpose of purchasing, acquiring,
or effecting any such policy or policies, or paying any
such premium or premiums, and so that the Trustees shall
have all such powers of surrendering, exchanging, or
otherwise dealing with, any such policy or policies, and
any bonuses payable in respect thereof as if they were
absolutely and beneficially entitled thereto and any
such policy or policies and all monies assured thereby
or received on the sale, surrender, or exchange thereof,
shall be treated as forming part of the capital of the
Trust Fund,
provided always that the Beneficiary shall have no
right to receive any income or capital paid from the
Trust Fund other than by way of cash distributions;
(viii) the Trustees may institute and defend proceedings at law and
proceed to the determination thereof or compromise the
same as the Trustees shall consider advisable;
(ix) the Trustees may, at any time or times, incorporate or
acquire any company or companies in any place in the world at
the expense of the income or capital of the Trust Fund with
limited or unlimited liability and may pay or transfer
hereto, all or any part or parts of the investments then
constituting or forming part of the Trust Fund in
consideration of the issue of shares or debentures or
other securities to the Trustees or upon deferred purchase
terms or on any terms which the Trustees shall consider
appropriate and the Trustees shall have full power to make
such loans (including interest free loans) to any such
company, as they may think fit, and any such company may
be incorporated or acquired either as an investment
holding company or for the purpose of carrying
on any trade or business, as the Trustees may think fit,
and to pay out of the Trust Fund all or any part of the
expenses of the incorporation or acquisition of such
company and the transfer thereto of any part of the Trust
Fund, provided
always that the Beneficiary shall have no right to receive
any income or capital paid from the Trust Fund other than
by way of cash distributions;
(x) the Trustees may pay out of the Trust Fund, or out of the
income of the Trust Fund, or partly out of the Trust Fund
and partly out of the said income, at such time or times,
and in such manner as, in their discretion, they may deem
fit, any estate or other duty, taxes, fees, or levies of
whatsoever nature, and whether in respect of income,
capital, profits, or gains, capital, or otherwise imposed
by or under the laws of the British Virgin Islands or of
any country whatsoever for which they are liable or
accountable as trustees to the revenue authorities of such
country whether or not the said revenue authorities are
able to enforce the liability or accountability aforesaid
against the Trustees in the forum for the administration
of this Settlement or elsewhere;
(xi) the Trustees shall have power to pay out of the income or
capital of the Trust Fund, all the costs and expenses
relating to or arising from the management or termination
of this Settlement and the amount of any remuneration
payable to the Trustees under clause 15 hereof;
(xii) the Trustees may give all such undertakings and enter
into such contracts and incur all such obligations
relating to the Trust Fund, or any part or parts thereof,
as they, in their absolute discretion, think fit, whether
or not such undertakings, contracts, or obligations extend
or may extend until after the Vesting Date;
(xiii) the Trustees may take the opinion of legal counsel
concerning any difference arising under this Settlement
or on any matter, in any way, relating to the Trust Fund
or to their duties in connection with the settlement and
in all such matters they may act in accordance with the
opinion of counsel or not, at their complete discretion,
and without being responsible for any loss occasioned
by reason of their having acted or failed to act
upon any such opinion;
(xiv) the Trustees may receive property by gift, inter vivos,
or by will or under the provisions of any trust or
trusts, or otherwise and from any person or persons,
corporation or corporations, as additions to the Trust
Fund and hold the same upon the trusts herein set forth
and administer and appoint such additions according to the
definition of the Trust Fund under the provisions hereof;
(xv) the Trustees may keep the whole, or any part, of the trust
property within or without the jurisdiction of British
Columbia or other forum for the administration of this
Settlement.
11. (a) For so long as the Beneficiary is a subsidiary of MFC (as such
term is defined and interpreted pursuant to the laws of the
jurisdiction of organization of MFC, from time to time), the
Trustees shall not, under any circumstances, exercise any voting
rights appertaining to the Shares or any additional MFC shares
or any other securities acquired by the Trustees, from time
to time, by way of a dividend or distribution in kind or
specie from MFC (collectively the "Non-voting Securities").
other than in respect of the Non-voting Securities, the Trustees
shall be at liberty to exercise all voting rights appertaining
to any other securities or investments, from time to time,
forming part of the Trust Fund in as full, free, and absolute,
a manner as if they were absolute owners of such investments,
and in particular, but without prejudice to the generality of
the foregoing provisions, the Trustees being individual persons
shall be at liberty to exercise such voting rights, either
by voting or by abstaining from voting, so as to ensure or
further the appointment or reappointment of any one or more of
their number to be directors, secretaries or employees of any
company in which any part of the Trust Fund may, from time to
time, or for the time being, be invested, or in any
subsidiary of any such company and any Trustee receiving from
any such company or subsidiary, any fees, salary bonuses, or
commissions for services rendered to such company or subsidiary
shall be entitled to retain the same for his own benefit and
shall not be required to account therefore to any person
interested hereunder.
(b) Notwithstanding and without prejudice to the preceding subclause
(a) of this clause, it is specifically agreed and understood
that where the Trustees hold the controlling shares of or
interest in any company, the Trustees shall have no duty to
become a member of the board of directors of such a company and
shall not be deemed to be a member of such board of directors
by virtue of holding such controlling shares or interest nor shall
the Trustees have any duty to procure the appointment of their
nominee as director or directors of such a company and it shall
be no part of the duty of the Trustees to keep themselves informed
concerning any such company or intervene in the management or
administration thereof by its directors, officers, agents, or
employees and in no event, and under no circumstances (and
notwithstanding any rule of law or equity to the contrary),
shall the Trustees incur any liability for any act or omission of
any director, officer, agent, or employee of any such company.
Further, declaring for the avoidance of doubt:
(i) the Trustees shall be entitled to assume that the directors
and officers of such a company are honest and competent
until such time as the Trustees have actual notice to the
contrary and the Trustees in reliance upon such assumption
shall not be required to supervise or verify the honesty
or competency of the directors and officers at any time
until the Trustees have actual notice to the contrary;
(ii) the Trustees shall not be liable for any consequences
arising from a decision to retain all or a large portion
of the Trust Fund invested in such a company nor for the
failure to diversify the investment thereof.
12. The Trustees may determine as they shall, in their absolute discretion,
consider just, whether any monies are to be considered as capital or
income and whether any expense ought to be paid out of capital or
income and all other questions and matters of doubt of whatsoever
description arising in the execution of the trusts of these presents
and none of the Trustees and no person having formerly been the
Trustees or one of the Trustees and no estate of any deceased Trustee
shall be liable for or for the consequences of any act done or omitted
to be done, or for any payment made or omitted to be made in the
pursuance of any such determination, notwithstanding that such
determination shall subsequently be held to have been wrongly
made.
13. (a) The Trustees may employ any agent or agents (being a person,
firm or corporation) to transact all or any business of
whatsoever nature required to be done in the premises (including
the receipt and payment of money but not including the
distribution of the capital or income of the Trust Fund) and
the Trustees shall be entitled to be allowed and paid all
charges and expenses so incurred and shall not be responsible
for the default of any such agent or agents or any loss
occasioned by the employment of such agent or agents.
(b) The Trustees may, from time to time, delegate to any person or
persons, the execution or exercise of such of the powers and
discretions hereby or by law vested in the Trustees in
relation to the management or administration of any property
wherever situate, as they may consider expedient, so to delegate
and they shall not be responsible for any loss occasioned by
reason of any such delegation.
(c) (i) The Trustees may, from time to time, employ and, if they
see fit, act upon the advice of an investment adviser and
the Trustees shall not be responsible for any loss occasioned
by reason of their having acted or failed to act upon advice
received from any such adviser.
(ii) The Trustees shall pay to any such investment adviser
such fees, commission, or other remuneration and such
compensation for expenses as the Trustees may, in their
reasonable discretion, think fit, and any such investment
adviser shall be entitled to retain, for its or his own
use and benefit, any commissions or shares of commission
customarily or by usage payable to such investment adviser
in relation to any dealing or transaction with or concerning
the Trust Fund.
(d) Any Trustee hereof may exercise or concur in exercising all
powers and discretions hereby or by law given to him
notwithstanding that he may have a direct or other personal
interest in the mode or result of exercising any such power or
discretion but any Trustee may nevertheless, if he so wishes, but
shall be under no obligation to, abstain from acting, except as
a merely formal party in any matter in which he may be so
personally interested and may allow his co-trustee or
co-trustees to act alone in the exercise of the powers and
discretions aforesaid in relation to such matter.
14. The Trustees may without being liable for any consequential loss,
deposit any monies, deeds, securities, or investments (including
shares and securities to bearer) held by them as trustees with any
banker or any person or firm or company in any part of the
world for safe custody or receipt of dividends and may pay out
of the income or capital of such part of the Trust Fund, as they
shall think proper, any sum payable for such deposit and custody,
provided always that the Beneficiary shall have no right to receive
any income or capital paid from the Trust Fund other than by way
of cash distributions.
15. Any Trustees hereof being a bank or a trust company or trust corporation
may transact on behalf of this Settlement, or of the Beneficiary any
business, which by its constitution, it is authorized to undertake upon
the same terms as would, for the time being, be made with an ordinary
customer and may return on current account or deposit account or
advance at interest all monies necessary or convenient to be retained
or advanced in connection with the trust premises without accounting
for any profit made thereby and it is hereby agreed and declared that
any such Trustee, as aforesaid, shall be entitled to charge and be paid
out of the Trust Fund and the income thereof, remuneration at such
standard scale of fees for individual services rendered as may, from
time to time, be in force.
16. The Trustees shall keep accurate accounts of their trusteeship and may
have them audited annually at the expense of the Trust Fund or
the income thereof, as the Trustees shall determine, by a chartered
accountant or a firm of chartered accountants selected by the Trustees.
17. Assets of the settlement may be held in the names of a single Trustee,
being a corporation, or any two or more Trustees where there are not
less than two individuals who are the Trustees and the Trustees shall
have the right to vest any assets forming part of the Trust Fund in a
stakeholder or in an agent or nominee or nominees, manager or managers
anywhere in the world on behalf of the Trustees and to entrust or
concur in entrusting the realization of and reinvestment of such
assets to such stakeholder, agent, nominee or nominees, manager or
managers, upon such terms as the Trustees may deem reasonable without
being liable for any loss incurred in consequence of any such action,
provided that no such assets will be vested or entrusted to
MFC or the Settlor.
18. (a) The Trustees hereof shall consist either of a bank, or a trust
company or trust corporation, or a company acting alone or
jointly with one or more individuals or of not less than
two individuals and any vacancy in the trusteeship hereof shall
be filled as soon as conveniently may be but so nevertheless
that a sole individual Trustee, for the time being, of this
Settlement shall (subject as herein provided) during any vacancy
have the same powers, authorities, and discretions and may act
in all respects as if there were two individuals as trustees.
(b) Subject to the provisions of clause 13(d) hereof, and subject
to consultation between the Trustees, as hereinafter provided in
this clause, all or any of the powers, discretions, and authorities
hereby or by law, given to or vested in the Trustees may, at any
time or times be exercised by a majority in point of number of
the Trustees without the concurrence of the other or others of
them and so that every exercise of such powers, discretions, or
authorities as aforesaid, by a majority of the Trustees, for the
time being hereof, shall be valid and binding upon all persons
interested hereunder in all respects as if all the Trustees had
concurred therein but so that no Trustee shall be liable for any
act or thing done or omitted in the execution of the trusts of
this Settlement without his knowledge and actual
concurrence.
Provided always that:
(i) prior to the execution by a majority of the Trustees
of any powers, discretions, or authorities hereunder,
there shall be consultation between all the Trustees
either personally or in writing by letter, facsimile,
or cable;
(ii) such prior consultation shall not be necessary with
regard to any Trustee with whom the other Trustees
shall declare in writing that, in their opinion, it is
impossible or inexpedient to communicate;
(iii) consultation with any attorney duly appointed by a Trustee
shall, as far as the donor of the power of attorney
is concerned, be deemed for all purposes to be consultation
with that Trustee;
19. (a) If any Trustee hereof, whether original, additional, or
substituted, shall die or being a corporation shall be dissolved
(otherwise than for the purpose of amalgamation or reconstruction)
or shall give notice of his, or her, or its desire to withdraw and
be discharged from the trusts hereof under the provisions of
subclause (b) of this clause or shall refuse or become unfit to act
then the Settlor, failing whom the surviving or continuing Trustees
or if there are no such, then the Trustee or Trustees desiring to
be discharged and failing them the personal representatives of
the last surviving individual trustee (if any) may, by document
in writing or by instrument, appoint one or more other persons
or corporations (whether resident or domiciled within or without
the British Virgin Islands) to be a Trustee or Trustees hereof in
place of the Trustee or Trustees deceased, dissolved, desiring
to withdraw, and be discharged, refusing, or becoming unfit to
act, provided that the number of the Trustees shall not in
any event be increased to beyond four.
(b) If any Trustee hereof other than a sole Trustee shall at any time
desire to withdraw and be discharged from the trusts hereof,
he or it may do so by notice in writing, signed personally by
himself, or in the case of a corporate Trustee, by any of its
officers given to the persons named in subclause (a) of this
clause and upon the posting or personal delivery of such
notice, the Trustee so doing shall cease to be a Trustee
hereof to all intents and purposes except as to acts and
deeds necessary for the proper vesting of the trust property
in the continuing or new Trustee or Trustees or otherwise, as
the case may require, and a sole Trustee may withdraw and be
discharged as aforesaid but only so as to take effect on the
appointment of a new Trustee or Trustees under the provisions
of the previous subclause.
(c) The persons in subclause (a) of this clause, mentioned in like
order of priority, may, by document in writing or by
instrument, appoint one or more other persons or corporations
(whether resident within or without the British Virgin Islands)
to be an additional or new Trustee or Trustees hereof, subject
however to the proviso contained in the said subclause (a).
(d) Acts and deeds done or executed for the proper vesting of the
trust property in new or additional Trustees, shall be done
and executed by the continuing or retiring Trustee or Trustees,
at the expense of the income or capital of the Trust Fund.
(e) Any person dealing with the Trustees of this Settlement may rely
upon a copy of these presents certified before a notary public
by the Trustees or by their attorney-at-law, advocates or
solicitors, as the case may be, to the extent as he might
rely upon the original.
(f) Upon any Trustees ceasing to be a trustee of this Settlement, he
or his heirs or executors, or administrators, or other persons
acting in his place, as the case may be, shall at the request
of the continuing Trustees or Trustee or at the request of
any other person having a beneficial interest in the Trust Fund
and at the expense of the income or the capital of the Trust
Fund, do all acts and things required for the purpose of
effectively vesting all property and assets, the subject
matter of the trusts hereby declared in the continuing or new
Trustees or other persons entitled to have the Trust Fund
vested in them, provided that an outgoing Trustee, who is liable
as a trustee hereof, or may, on the death of any person, become
liable as a former trustee hereof for any taxes, duties, fees,
or levies of whatsoever nature and whether in respect of income
capital profits or gains capital, or otherwise imposed in any
part of the world, shall not be bound to transfer all or any
part of the Trust Fund, as aforesaid, unless reasonable
security is provided for indemnifying such outgoing Trustee
against any such liability.
(g) No firm, association, or corporation, any of whose
securities are included in the Trust Fund, and no purchaser
of other person dealing with the Trustees, shall be concerned
to enquire into the propriety or validity of any act of the
Trustees or to see to the application of any money paid or property
transferred to or upon the order of the Trustees nor in the case of
any Trustees hereof purporting to act under any delegation of
authority from any other Trustee hereof, to ascertain or
enquire whether a case exists in which such delegation is permitted
or whether such delegated authority is still subsisting.
(h) Any new or additional Trustee appointment under the provisions
hereof or by any court of competent jurisdiction shall have
the powers, rights, and benefits, as to remuneration or
otherwise, as at or prior to his or its appointment, may be
agreed in writing in the case of a Trustee appointed, as
hereinbefore provided, between
such new or additional Trustee and the person or persons making such
appointment or in the case of a Trustee appointed by a court as the
order appointing such Trustee may direct.
20. (a) Any Trustee, for the time being hereof, which shall be a trust
company or corporation, shall be entitled in addition to
reimbursement of its proper expenses to remuneration for its
services in accordance with such corporation's published terms
and conditions for trust business in force, from time to time.
(b) Any Trustee, for the time being hereof, being an individual engaged
in any profession or business shall be entitled to charge and be
paid all usual professional or other charges for business done
and time spent and services rendered by him or his firm in the
execution of the trusts and powers hereof, whether in the ordinary
course of his profession of business or not, and even if the
activity undertaken by him or his firm may not be of a nature
specifically requiring the employment of such professional person.
(c) No Trustee hereof, or director, or other officer of any
corporation which is a Trustee hereof, shall be liable to
account for any remuneration or other profit received by him in
consequence of his acting as or being appointed to be a director
or other officer or servant of any company even though his
appointment was procured by exercise by him or by the Trustees
of voting rights attached to securities in the Trust Fund or
by an abstention from exercising such voting rights.
21. (a) The Trustees shall not be concerned to see to the insurance,
preservation, repair, or renewal of any freehold or leasehold
property or other chattels occupied, used, or enjoyed by the
Beneficiary and in the professed execution of the trusts hereof,
no Trustee shall be liable for any loss to the Trust Fund arising
by reason of any improper investments or application of the Trust
Fund or any part thereof made in good faith or for the negligence
or fraud of any agent or investment advisor employed by him
or by any other Trustee hereof (although the employment of
such agent was not strictly necessary or expedient) or by reason
of any mistake or omission made in good faith by any Trustee hereof
or by reason of any other matter or thing whatsoever, except
willful and individual fraud or wrongdoing on the part of the
Trustee who is sought to be made liable.
(b) Every discretion hereby conferred upon the Trustees shall be an
absolute and unfettered discretion and the Trustees shall not
be required to furnish to any beneficiary hereunder any reason
or justification for the manner in which any such discretion
may be exercised.
22. In the execution of the trusts and powers hereof, no Trustee shall be
liable for any loss to the Trust Fund arising in consequence of the
failure, depreciation, or loss of any investments made in good faith or
by reason of any mistake or omission made in good faith or any
other matter or thing except willful and individual fraud or
wrongdoing on
the part of the trustee who is sought to be made liable or (in the
case of a corporation) of any of its officers.
23. Every Trustee who is a corporation or company may exercise or concur in
exercising any discretion or power hereby conferred on the
Trustees by a resolution of such corporation or company or by a
resolution of its board of directors or governing body or it may
delegate the right and power to exercise or concur in exercising any
such discretion or power to one or more members of its board of
directors or governing body or one or more of its officers or
employees duly authorized for that purpose.
24. Notwithstanding anything hereinbefore contained, nothing herein shall be
construed as permitting the exercise of any power or discretion
hereunder after the Vesting Date.
25. This Settlement shall be known as the "TriMaine Trust Xxxxxxxxxx".
00. This Settlement and the dispositions hereby made are intended to be and
are irrevocable.
IN WITNESS WHEREOF the Settlor and the Original Trustee have each executed this
Settlement as of the day and year first written above.
TRIMAINE HOLDINGS, INC.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title: Director
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NEW IMAGE INVESTMENTS CO. LTD.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Director
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