Trustee’s Powers. In addition to the powers vested in them by law the Trustees shall, subject to the provisions of this Trust Deed and provided that it is done in achievement or advancement of the objectives of this Trust, have the widest powers and without prejudice to the generality of the aforegoing they may exercise the following powers: 12.1 To retain and allow the trust assets or any part or parts thereof to remain in the present state of investment thereof for so long as they may deem fit; 12.2 To invest or reinvest the proceeds of any assets or any monies of the trust in their hands from time to time in immovable and movable property and with regard to the latter, in Government or municipal securities, banking institutions, registered building society investments or first mortgage bonds, or in such shares, securities or other investments of whatever nature, as the Trustees in their sole and absolute discretion may deem fit; 12.3 To vary any investments made in terms of clause 12.2 to any other investments; 12.4 To exchange, sell, alienate, lease or otherwise deal with the trust assets, whether movable or immovable, whether corporeal or incorporeal trust assets and of whatsoever nature and wheresoever situate, as they in their sole and absolute discretion may deem fit, and in exercising any powers of sale, whether conferred in this subclause or otherwise, they shall be entitled to cause such sale to be effected by public auction or by private treaty and in such manner and on such terms and conditions as they in their sole and absolute discretion may deem fit and, in exercising any powers of lease, they shall be entitled to cause any property to be let at such rental, for such period and on such terms and conditions as they, in their sole and absolute discretion may deem fit; 12.5 To pay out of the capital or out of the income of the trust assets for any repairs, improvements or other works of whatsoever nature done on any property forming party of the trust assets or on any buildings or other structures situated thereon; 12.6 To exercise all the voting powers attached to any shares, debentures or other securities at any time forming part of the trust assets; 12.7 To compromise and settle for such consideration and upon such terms and conditions as they may deem advisable, all matters arising in relation to the Trust and all such compromises and settlements shall be final and binding; 12.8 To consent to any re-organisation, arrangement or reconstruction of any company the securities of which form , from time to time, the whole or any part of the trust assets and to consent to any reduction in capital or other dealings with such securities as they may consider advantageous or desirable; 12.9 To surrender and deliver any shares forming part of the trust assets for such consideration and upon such terms and conditions as they may approve to any company reducing its share capital and to receive such consideration in the form of cash, securities or other assets as may be agreed upon between them and such company; 12.10 In their sole and absolute discretion, to borrow money and arrange, obtain and utilise credit facilities for the purposes hereof at such time or times, at such rate of interest or other consideration for any such loan or credit facility and upon such terms and conditions as they may deem desirable. Such borrowings and credit facilities may be made from any suitable person or persons and, should they consider it advisable to do so, the Trustees may secure the payment of any such loan or credit facility by pledging or mortgaging the trust assets or any part thereof or by any other security device. Any such loan or credit facility may be extended, renewed or repaid from time to time as the Trustees may deem to be in the best interest of the Trust; 12.11 To pay out of the income or out of the capital of the trust assets all municipal and other taxes and other levies, lawfully levied or imposed on the trust assets or income of the trust assets or any part thereof or which may be imposed on the Trustees in respect of matters arising out of the Trust; 12.12 To make all apportionments in the accounts of the Trust which may be necessary; 12.13 To make secured or unsecured loans, with or without interest, to any person or persons, or to companies in which the Trustees in their representative capacities hold shares, directly or indirectly; 12.14 To employ accountants, attorneys, agents, brokers, or such professional or other assistants as they may consider necessary to transact all or any business of whatsoever nature required to be done pursuant to this Trust Deed, and to pay all such fees, charges and expenses so incurred as a first charge, and they shall not be responsible for the default of such accountants, attorneys, agents, brokers, professional or other assistants or for any loss occasioned by such employment; 12.15 To determine all problems and matters of doubt which may arise in the course of their management, administration, realisation, liquidation or utilisation of the trust assets; 12.16 To open and to operate upon (either themselves or by a person or persons authorised by them) a banking account or accounts in the name of the Trust; 12.17 To reimburse themselves out of the capital or out of the income for all expenses incurred by them personally in or about the execution of the Trust and powers conferred upon them by this Trust Deed; 12.18 To, at the Trust’s cost, appoint employees at such remuneration and on such conditions of employment as the Trustees may in their absolute discretion deem fit, and to amend such conditions of employment and terminate the services of employees; 12.19 To pay out of the capital or out of the income of the Trust, any costs and expenses relating to the Trust or to the administration of the Trust; 12.20 To institute or defend legal proceedings, attend meetings of creditors of a private individual, juristic person or body who is a debtor of the Trust, regardless of whether the meeting is concerned with insolvency, liquidation or judicial management or with any other law, to vote on any issue put before the meeting and, in general, exercise all rights becoming to a creditor in similar circumstances; 12.21 With regard to any immovable property or mortgage bond at any time forming part of the trust assets, to execute any act or deed relating to the alienation, partition, exchange, transfer, mortgage, hypothecation or otherwise, in any deeds registry, mining titles office or other public office dealing with servitudes, usufructs, limited interests or otherwise, and to make any applications, grant any consents and agree to any amendments, variations, cancellations, cessions, releases, reductions, substitutions or otherwise generally relating to any deed, bond or document for any purposes and generally to do or cause to be done any act whatsoever in any such office; 12.22 To, subject to the terms and conditions of this Trust Deed and subject to the terms and conditions accompanying such gift or bequest, accept and acquire for the purpose of the Trust any gifts, bequests or payments of whatsoever nature from any person, firm, company or association that may be given, bequeathed or paid to the Trust, and any additions so accepted and acquired shall be deemed to form part of the Trust administered in terms of this Trust Deed;
Appears in 2 contracts
Sources: Deed of Trust, Deed of Trust
Trustee’s Powers. 4.1 In addition to all other powers by this Agreement or by any statute or law conferred upon the powers vested Trustees, he shall have the powers, authority and discretion as follows:
(a) To retain any cash, securities and/or other property belonging to or forming part of the Trust Fund from time to time in them the actual state or condition in which the same shall be received by law the Trustees shall, subject to the provisions of this Trust Deed and provided that it is done in achievement or advancement of the objectives of this Trust, have the widest powers and without prejudice to the generality of the aforegoing they may exercise the following powers:
12.1 To retain and allow the trust assets or any part or parts thereof to remain in the present state of investment thereof for so long as they may deem fitthe Trustees shall think proper;
12.2 (b) To invest and reinvest any and all ca h, securities and/or other property belonging to or reinvest the proceeds of any assets or any monies forming part of the trust Trust Fund in their hands from time to time without limitation to investments in immovable which Trustees are for the time being authorized by statute to invest trust funds and movable property whether or not there is a liability attaching to any such investments, with the intent that the Trustees shall have the same full and with regard unrestricted powers of investing and reinvesting as a beneficial owner; and without limiting the generality of the foregoing, the Trustees may:
(i) invest in and hold property, real or personal, which is of a speculative, wasting or reversionary nature or is not revenue producing;
(ii) invest in and hold shares, bonds, debentures or other securities, issued by any corporation or company, public orprivate, established or newly incorporated, operating or holding, producing income or not producing income and whether or not the Settlor or Issue, a Beneficiary or the Trustees, their respective spouses or respective issue have any financial interest therein; and
(iii) purchase, at fair market value, any asset at any time belonging to the latterSettlor or forming part of the estate of the Settlor on such terms as the Trustees may in their absolute discretion consider advisable
(c) To sell, in Government either at public or municipal securitiesprivate sale, banking institutionsassign, registered building society investments transfer, exchange, convey, mortgage, lease, build upon, improve, repair or first mortgage bonds, or in such sharesotherwise deal with and exercise any and all rights pertaining to any of the cash, securities or other investments property for the time being held in connection with or forming part of whatever naturethe Trust Fund in the same manner, to the same extent and as fully as if he were in absolute ownership and possession of such cash, securities or other property; and without limiting the generality of the foregoing, the Trustees in their sole may:
(i) sell for cash or credit or partly for one and absolute discretion may deem fit;
12.3 To vary any investments made in terms of clause 12.2 to any other investments;
12.4 To exchangepartly for the other, sell, alienate, lease or otherwise deal with the trust assets, whether movable or immovable, whether corporeal or incorporeal trust assets and of whatsoever nature and wheresoever situate, as they in their sole and absolute discretion may deem fit, and in exercising any powers of sale, whether conferred in this subclause or otherwise, they shall be entitled to cause such sale to be effected by public auction or by private treaty and in such manner and on such terms and conditions as they deem advisable, and with or without security; an
(ii) sell, at fair market value, to the Settlor or to any Beneficiary any cash, securities or other property belonging to or forming part of the Trust Fund which the Trustees may desire to dispose of and in their sole so doing, the Trustees shall not be bound to secure the consent or approval of any person, official, authority, tribunal or court of competent jurisdiction whomsoever or whatsoever;
(d) To borrow at any time and absolute discretion may deem fit andfrom time to time such sum of money, in exercising any powers of lease, they shall be entitled upon such terms and subject to cause any property to be let at such rentalconditions, for such period length of time and on for such purposes connected with the Trust Fund or the administration thereof as the Trustees in their absolute discretion deem advisable. In order to secure the repayment of any sum so borrowed the Trustees may make, execute and deliver, under seal or otherwise, such notes, bond or other obligations as may be required, including mortgages, pledges, hypothecations and/or charges upon all or any part of the assets of the Trust Fund. No person from whom any sum is borrowed shall be obliged in any way to see to the application thereof
(e) To lend money at such rate and upon such security and such terms and conditions as theythe Trustees may, in their sole and his absolute discretion may deem fitdiscretion, consider advisable;
12.5 (f) To pay out make any payment, provision, division or distribution which may be required under the terms hereof in whole or in part in cash, securities or other property, and on every division or distribution the judgment and apportionment of the capital Trustees and valuation made by the Trustees shall be binding and conclusive on all persons;
(g) To place on deposit with any chartered bank or out trust company any cash balance from time to time in the hands of the income Trustees or any securities, title deeds or other documents belonging or relating to the Trust Fund;
(h) To determine whether any payments made or received by the Trustees in the due administration of the trust assets for any repairs, improvements Trust Fund shall be credited to or other works of whatsoever nature done on any property forming party charg d against the capital of the trust assets Trust Fund or on any buildings the income therefrom or other structures situated thereonpartly to or against the capital and partly to or against the income, and such determination shall be final and binding upon all persons concerned;
12.6 (i) To vote in person or by proxy all stocks, shares, bonds and other securities and to exercise all rights incidental to the voting powers attached ownership of stocks, shares, bonds and other securities held as part of the Trust Fund in such manner as the Trustees consider to be necessary or advisable in the circumstances; to sell or exercise any subscription rights and in connection with the exercise of subscription rights to use trust moneys that may at such time be comprised in the Trust Fund and for that purpose, to consent to and join in any plan or reorganization or readjustment, amalgamation, consolidation or merger with respect to any corporation whose stocks, shares, debentures bonds or other securities at any time form part of the Trust Fund and to authorize the sale of the undertaking or assets or a substantial portion of the assets or undertaking of any such corporation, and to vote for the election of any of the Trustees to any executive office or to membership on any board of directors or executive or other committee of any such corporation, and to serve in any such office or on any such board or committee and accept and receive remuneration for such services without diminution of their respective compensation a fiduciary hereunder;
(j) To retain any life insurance policy entrusted to the Trustees or from time to time heldby them hereunder; to purchase insurance on the life of any person who, in accordance with the provisions of the Insurance Act (Ontario) shall have given any necessary consent in writing and to select such type of policy and mode of premium payment as they may deem advisable; to exercise all rights with regard to such retained or purchased insurance as the policy contract grants to the owner thereof, to pay premiums on such policies either out of capital or out of income or partly out of principal and partly out of income as they shall deem proper; to name as beneficiary of any new policies either the trust or any Beneficiary; to purchase annuities for such Beneficiary and to select such type of annuity and mode of payment therefor as they may deem advisabe and to purchase and pay the premiums on policies of insurance against fire, other casualty or public liability or other insurance of a similar character; to retain any proceeds of such insurance and any amount payable as a result of the prepayment of premiums, but he shall not be liable for any omission to purchase any insurance or to purchase a particular amount of any type of insurance;
(k) To retain all voting rights and powers in connection with any securities or other assets at any time held in connection with or forming part of the trust assets;
12.7 To compromise Trust Fund notwithstanding that such securities or other assets or any of them may from time to time be set apart as a part of any share or interest, and settle if at any time the Trustees shall decide to sell any such securities or other assets they shall have absolute power and discretion notwithstanding that any such securities or other assets shall for the time being be set aside as part of any share or interest to sell such consideration securities or other assets or any part or parts thereof at such time or times and upon such terms and conditions and either for cash or credit or partl for cash and partly for credit and upon such conditions as they to credit and security and a to voting rights and transfer to a Trustee as the Trustees may deem think advisable;
(l) To incorporate any corporation under the laws of Ontario, all matters arising or any other jurisdiction in relation to Canada or elsewhere, at the expense of the Trust Fund or otherwise, having such objects (including the conduct of farming operations and all such compromises leasing of land owned by the corporation), powers and settlements shall be final and binding;
12.8 To consent to any re-organisationcapital as the Trustees may consider expedient and, arrangement or reconstruction without limiting the generality of any company the securities of which form , from time to timeforegoing, the whole Trustees shall have the power:
(i) to cause any such corporation to purchase any real or any part of the trust assets and to consent to any reduction in capital or other dealings with such securities as they may consider advantageous or desirable;
12.9 To surrender and deliver any shares forming part of the trust assets personal property for such consideration and on such terms as the Trustees may consider advisable
(ii) to purchase and hold, as authorized investments under this Agreement for the Trust Fund for such length of time as the Trustees may see fit, any shares, stocks, bonds, debentures, notes or other securities issued by any such corporation;
(iii) to lend money to any such corporation at such rate and upon such security and terms and conditions as they may approve the Trustees may, in their absolute discretion, consider advisable;
(iv) to manage or join in the management of any such corporation and to cause any such corporation to be wound up or surrender its charter if and when the Trustees shall consider it advisable so to do; provided nevertheless that in relation to any company reducing its share corporation incorporated as aforesaid all ofthe shares of the capital stock thereof shall be held by the Trustees as part of the Trust Fund;
(i) To do all acts and things either alone or together with any Beneficiary who may be receiving or being allocated a benefit from the Trust required by theIncome Tax Act (Canada) or any applicable provincial statute in respect of any accumulating income of the Trust, to ensure that such accumulating income shall be included in computing the income of such Beneficiary beneficially entitled thereto pursuant to the provisions of Section 2.2(a) hereof for the relevant taxation year and deducted from the income of the Trust for such taxation year. The Trustees are authorized, subject or pursuant to any specific provisions of any statute or regulation, to join with anyBeneficiary or a parent or guardian in law or in fact or committee of any Beneficiary under the age of majority or under any other disability or with any other person whom the Trustees consider competent to act on behalf of such Beneficiary under any taxing statute, with power to the Trustees to make such election on behalf of such Beneficiary, failing a parent, guardian in law or in fact, committee or other person, as aforesaid;
(ii) To encroach upon the capital of the Trust Fund and to receive such consideration pay, on behalf of the Beneficiary receiving or being allocated a benefit hereunder, any tax due and owing as a result of any actions taken by the Trustees pursuant to Section 4.1(m)(i) hereof;
(iii) Notwithstanding any of the foregoing provisions, the making and filing of an election for income tax purposes shall not in itself create a vested entitlement in any Beneficiary to any portion of accumulating income
(n) To take, institute, maintain, or defend any action or other proceeding which may be necessary or advisable in the form opinion of the Trustees for the preservation or protection of or realization in respect of any cash, securities or other assets property forming part of the Trust Deed and to compromise and/or settle the same
(o) To engage in any trade or venture in the nature of trade whether solely or jointly with any other person and whether or not by way of partnership under the jurisdiction of the Province of Ontario or elsewhere and make such arrangements in connection therewith as they see fit; and the Trustees may delegate any exercise of this power to a company or partnership formed for this purpose, provided that the persons carrying on any trade or venture in the nature of trade authorized by this Agreement shall have power to determine what are the distributable profits thereof and so much of the distributable profits as accrue to the Trustees (and no more) shall be agreed upon between them and such company;
12.10 In their sole and absolute discretion, to borrow money and arrange, obtain and utilise credit facilities income of the Trust Fund for the purposes hereof at such time or times, at such rate of interest or other consideration for this Agreement. Any power vested in the Trustees under this Agreement shall (where applicable) extend to any arrangementsn connection with any such loan power or credit facility partnership as aforesaid, and upon such terms and conditions as they may deem desirable. Such borrowings and credit facilities may be made from any suitable person or persons and, should they consider it advisable to do soin particular but without limiting the generality of the foregoing, the Trustees may secure Trustees’ powers of borrowing and charging shall extend to any borrowing arrangements made in connection with such venture or partnership as aforesaid and whether made severally or jointly with others or with unequal liability;
(p) To hold the payment of any such loan or credit facility by pledging or mortgaging the trust assets Trust Fund or any part or parts thereof at any place or by any other security device. Any such loan or credit facility may be extended, renewed or repaid places and to move the same from time to time as from place to place inside or outside Canada and notwithstanding any of the trusts, powers and provisions herein contained the Trustees may deem may, in their absolute discretion, at any time or times without infringing the rule against perpetuities applicable to be in this settlement, transfer and c nvey the best interest of the Trust;
12.11 To pay out of the income or out of the capital of the trust assets all municipal and other taxes and other levies, lawfully levied or imposed on the trust assets or income of the trust assets whole or any part thereof share or which may be imposed on the Trustees in respect of matters arising out of the Trust;
12.12 To make all apportionments in the accounts portion of the Trust which may be necessary;
12.13 To make secured or unsecured loans, with or without interest, to any person or persons, or to companies in which the Trustees in their representative capacities hold shares, directly or indirectly;
12.14 To employ accountants, attorneys, agents, brokers, or such professional or other assistants as they may consider necessary to transact all Fund or any business of whatsoever nature required to be done pursuant to this Trust Deed, and to pay all such fees, charges and expenses so incurred as a first charge, and they shall not be responsible for the default of such accountants, attorneys, agents, brokers, professional or other assistants or for any loss occasioned by such employment;
12.15 To determine all problems and matters of doubt which may arise in the course of their management, administration, realisation, liquidation or utilisation of the trust assets;
12.16 To open and property from time to operate upon (either themselves or by a person or persons authorised by them) a banking account or accounts in the name of the Trust;
12.17 To reimburse themselves out of the capital or out of the income for all expenses incurred by them personally in or about the execution of the Trust and powers conferred upon them by this Trust Deed;
12.18 To, at the Trust’s cost, appoint employees at such remuneration and on such conditions of employment as the Trustees may in their absolute discretion deem fit, and to amend such conditions of employment and terminate the services of employees;
12.19 To pay out of the capital or out of the income of the Trust, any costs and expenses relating to the Trust or to the administration of the Trust;
12.20 To institute or defend legal proceedings, attend meetings of creditors of a private individual, juristic person or body who is a debtor of the Trust, regardless of whether the meeting is concerned with insolvency, liquidation or judicial management or with any other law, to vote on any issue put before the meeting and, in general, exercise all rights becoming to a creditor in similar circumstances;
12.21 With regard to any immovable property or mortgage bond at any time forming part of the trust assetsTrust Fund, provided that such share or portion of the Trust Fund or such property has not vested in possession in a Beneficiary by irrevocable deed or deeds, to execute any act other trust or deed relating settlement whether established under or pursuant to the alienationlaws of Ontario, partitionany other province of Canada, exchangeor any other jurisdiction whatsoever, transfer, mortgage, hypothecation or otherwise, in any deeds registry, mining titles office or other public office dealing with servitudes, usufructs, limited interests or otherwise, and to make any applications, grant any consents and agree to any amendments, variations, cancellations, cessions, releases, reductions, substitutions or otherwise generally relating to any deed, bond or document for any purposes and generally to do or cause to be done any act whatsoever in any held by the Trustees of such office;
12.22 To, subject to the terms and conditions of this Trust Deed other trust or settlement with and subject to the terms powers and conditions accompanying provisions of such gift other trust or bequest, accept settlement provided such other trust or settlement shall not infringe the rule against perpetuities applicable to this settlement and acquire for that a Beneficiary of this settlement shall be the purpose Beneficiary of such other trusts or settlements and the interest and rights of the Beneficiary in and with respect to such share or portion of the Trust any giftsFund or such property so transferred and conveyed under such other trust or settlement shall be the same as or substantially the same as, bequests or payments where possible under the laws of whatsoever nature from any personsuch jurisdiction, firm, company or association that may be given, bequeathed or paid the interests and rights of such Beneficiary in and with respect to the Trust, and any additions so accepted and acquired shall be deemed to form part of the Trust administered in terms of Fund under this Trust Deed;settlement.
Appears in 1 contract
Sources: Family Trust Agreement
Trustee’s Powers. In The Trustees shall, in addition to the powers vested in otherwise conferred upon them by law the Trustees shall, subject to the provisions of this Trust Deed and provided that it is done in achievement or advancement of the objectives of this Trustlaw, have the widest powers and without prejudice to the generality of the aforegoing they may exercise the following powers:
12.1 To retain : - to apply and allow the trust assets or any part or parts thereof to remain in the present state of investment thereof for so long as they may deem fit;
12.2 To invest or reinvest the proceeds of any assets or any monies of the trust in their hands from time to time in immovable and movable property and with regard to the latter, in Government or municipal securities, banking institutions, registered building society investments or first mortgage bonds, or in such shares, securities or other investments of whatever nature, as the Trustees in their sole and absolute discretion may deem fit;
12.3 To vary any investments made in terms of clause 12.2 to any other investments;
12.4 To exchange, sell, alienate, lease or otherwise deal with the trust assets, whether movable or immovable, whether corporeal or incorporeal trust assets and of whatsoever nature and wheresoever situate, as they in their sole and absolute discretion may deem fit, and in exercising any powers of sale, whether conferred in this subclause or otherwise, they shall be entitled to cause such sale to be effected by public auction or by private treaty and in such manner and on such terms and conditions as they in their sole and absolute discretion may deem fit and, in exercising any powers of lease, they shall be entitled to cause any property to be let at such rental, for such period and on such terms and conditions as they, in their sole and absolute discretion may deem fit;
12.5 To pay out of the capital or out of the income of the trust assets for any repairs, improvements or other works of whatsoever nature done on any property forming party of the trust assets or on any buildings or other structures situated thereon;
12.6 To exercise all the voting powers attached to any shares, debentures or other securities moneys at any time forming part of the trust assets;
12.7 To compromise and settle for Trust Fund in any such consideration investments, whether involving liabilities or not, or upon person credit, with or without security, and upon such terms and conditions as they may deem advisable, all matters arising the Trustees shall in relation their absolute discretion think fit and to the Trust intent that the Trustees should have the same powers in all respects as if it were the absolute and all such compromises and settlements shall be final and binding;
12.8 To consent to any re-organisation, arrangement or reconstruction of any company the securities of which form , from time to time, the whole or any part beneficial owner of the trust assets and Trust Fund; to consent to make or purchase any reduction such investments for cash or in capital consideration of an annuity or other dealings with such securities as they may consider advantageous or desirable;
12.9 To surrender and deliver any shares forming part of the trust assets for such consideration otherwise and upon such terms and conditions as they the Trustees shall in their absolute discretion think fit and to make or purchase any such investment for as um greater than the amount of the Trust Fund for the time being and to agree to pay for any such investment wholly or in part from any future moneys which may approve come into the Trustees’ hands including dividends, profits, interest and other income paid or payable in respect of any such investment; to sell, call in, convert into money, grant options or rights to purchase, mortgage, charge, sub-charge, carry on business, or otherwise deal with, dispose of or transfer any item or asset comprising the whole or part of the Trust Fund or otherwise held by the Trustees under the terms of the Trust for such consideration and on such terms as in its discretion it may think fit as if the Trustees were the absolute and beneficial owner of the Trust Fund; to advance or lend moneys forming part of the Trust Fund, or give credit to any person or company reducing its share capital on such terms as the Trustees may decide, in particular without limiting the generality of the foregoing, to a beneficiary, or person having an interest in or the holder of an office in the Trustees and the lending or giving of credit may be made at call or for a period of time and may be made at a rate of interest or at no interest, and may involve taking of security in any form or without security; to raise or borrow moneys either alone or jointly with another or others, from any person including a firm or company, either bearing or free of interest and on terms and for purposes as the Trustees may decide, and to receive secure the repayment of any moneys or other indebtedness by mortgage, charge or other security or encumbrance over the whole or part of the Trust Fund as the Trustees may decide or to have the repayment secured over property of a third party which may include property of the Trustees or a beneficiary, whether the third party collateral security is given alone or jointly with property of the Trust Fund and no lender is required to inquire as to whether the necessity for the borrowing has arisen or as to the purpose for which it is required, or as to the application of moneys borrowed; to draw, endorse, accept, guarantee or be a party in any way to a commercial ▇▇▇▇ or other ▇▇▇▇ of exchange, promissory note, letter of credit, hypothecation or other facility involving the raising, borrowing or lending of moneys by or to the Trustees; to pay out of the Trust Fund or the income thereof all costs, charges and expenses incidental to the management of the Trust Fund or to the exercise of any power, authority or discretion herein contained or in carrying out or performing the trusts hereof which the Trustees may at any time incur including all income tax or other taxes payable in respect of the Trust Fund, costs in any way connected with the preparation and execution of these presents, and all moneys which the Trustees may be required to pay as settlement, gift, probate estate stamp or revenue duties in respect of the Trust Fund or this Deed; to exercise all rights and privileges, perform all duties and to do all such consideration acts, matters and things pertaining to any shares, stock or debentures in any corporation as if the Trustees were the absolute and beneficial owner of the shares, stock or debentures or was personally interested or concerned in the form corporation and, in particular without limiting the generality of cashthe foregoing: - pay calls on any shares or to permit any shares of the company to be forfeited and sold; purchase any further shares, securities stock, debentures or investments and to take up any shares, stock debentures or investments of a new issue of the company; lend money to the company whether secured by debentures or in any other assets as may be agreed upon between them way or not secured and such company;
12.10 In their sole and absolute discretion, to borrow money and arrange, obtain and utilise credit facilities for the purposes hereof at such time or times, at such rate of interest and upon such terms as the Trustees think fit; hold any shares, stock or other consideration for debentures or investments held by the Trustees at such price as the Trustees think fit (whether or not the price is less than the sum that appears from the accounts of the company to be the value of the shares, stock, debentures or investments) and upon such terms, with or without security, as the Trustees think fit; to procure the issue by any banker of: - letters of credit; or performance guarantees; to assist the Trustees in the course of any trade or business carried on by the Trustees at such loan or credit facility rate of interest and upon such terms and conditions as they may deem desirablethe Trustees thinks fit; to establish, promote or acquire any company or companies or join in the promotion, establishment or acquisition of any company or companies; to appoint any person as the representative or attorney of the Trustees for the purpose of executing any document which the Trustees are permitted or authorised to execute by this Deed or by law and to revoke any appointment; to authorise any person to act as its agent or delegate to hold any investment being part of the Trust Fund as custodian and to perform any act or exercise any discretion within the Trustees’ power including the power to appoint in turn its own agent or delegate. Such borrowings and credit facilities The appointment may be made from in respect of more than one delegate or severally and may include provisions to protect those dealing with the agent or delegate; to open any suitable account or accounts with any bank or banks credit union building society and other financial institutions and to operate by, and in all usual ways, any such account or accounts and if thought fit to delegate to any person the authority to sign cheques and operate upon the account without the person being liable or persons andresponsible for any loss resulting therefrom; to give effectual receipts and discharges for any moneys received by or on behalf of the Trustees or otherwise relating to any of the acts, should they consider it advisable matters and things provided for in this Deed; to take such action as the Trustees shall think fit for the adequate protection of any part or parts of the Trust Fund and to do soall such other things as may be incidental to the exercise of the powers and authorities conferred on the Trustees by this Deed; power, whether with or without security and whether alone or jointly or severally or both jointly and severally with any other person, to guarantee, indemnify, secure by way of mortgage, charge or otherwise over the whole or part of the Trust Fund or undertake in any way the payment or repayment of money or debts (including any interest whether existing or to accrue) previously or then lent or to be advanced or any existing or future duties, undertakings, liabilities or obligations incurred or which may at any future time be incurred by any person whether a beneficiary or not and to guarantee, indemnify or secure, with or without security, the Trustees may secure the payment due performance of any such loan contract, agreement, covenant or credit facility by pledging obligation of any person whether a beneficiary or mortgaging not; to mix the trust assets or any part thereof or by Trust Fund including its income and any other security device. Any such loan or credit facility may be extended, renewed or repaid moneys held from time to time by the Trustees pursuant to these trusts with other moneys held by the Trustees pursuant to any provision of this deed or under any other trust and: - to invest the moneys so mixed in any investment, property, interest, arrangement or business or in any other mode or manner in which the Trustee may by law or by this deed be empowered to invest the Trust Fund; to exercise all powers, authorities and discretions with respect to the mixed fund which the Trustees are by this Deed or by law authorised to exercise with respect to the Trust Fund; and to make arrangements with respect to the moneys and their investment with any other person as the Trustees may deem Trustee would be authorised or empowered by law or by this Deed to be in make or enter into; notwithstanding any rule of law to the best interest of the Trust;
12.11 To pay out of the income or out of the capital of the trust assets all municipal and other taxes and other leviescontrary, lawfully levied or imposed on the trust assets or income of the trust assets or any part thereof or which may be imposed on the Trustees in respect of matters arising out of the Trust;
12.12 To make all apportionments in the accounts to acquire as property of the Trust which may be necessary;
12.13 To make secured Fund real or unsecured loans, with or without interest, to any person or persons, or to companies personal property the beneficial interest in which is at the date of acquisition the absolute property of the Trustees in their representative capacities hold shares, directly own right or indirectly;
12.14 To employ accountants, attorneys, agents, brokersas trustee of another fund provided that any property so acquired is acquired for a consideration being not greater than the current market value of the property and upon acquisition the beneficial interest in the property will be held by the Trustees upon the trusts contained in this Deed; to determine whether real or personal property, or such professional any increase or other assistants as they may consider necessary to transact all decrease in value of any property, or any business of whatsoever nature required receipts or payments from, for or in connection with real or personal property, is to be done pursuant treated as and credited or debited to this capital or to income of the Trust Deed, Fund and generally to pay all such fees, charges and expenses so incurred as a first charge, and they shall not be responsible for the default of such accountants, attorneys, agents, brokers, professional or other assistants or for any loss occasioned by such employment;
12.15 To determine all problems and matters of as to which any doubt which may arise in the course of their management, administration, realisation, liquidation or utilisation of the trust assets;
12.16 To open and relation to operate upon (either themselves or by a person or persons authorised by them) a banking account or accounts in the name of the Trust;
12.17 To reimburse themselves out of the capital or out of the income for all expenses incurred by them personally in or about the execution of the Trust and powers conferred of the Trust and every determination of the Trustees in relation to any of these matters, whether upon them a question formally or actually raised or implied in any of the acts or proceedings of the Trustees in relation to the Trust Fund, binds all interested parties and may not be objected to on any ground; to appropriate in specie any portion of the Trust Fund, or any investment to or towards the share or entitlement of a beneficiary and to charge the share or entitlement with a sum of money by this Trust Deed;
12.18 To, at way of equality as the Trust’s cost, appoint employees at such remuneration Trustee may think fit and on such conditions of employment as for these purposes the Trustees may in their absolute discretion deem fit, and to amend such conditions fix the value of employment and terminate the services of employees;
12.19 To pay out of the capital any real or out of the income of the Trust, any costs and expenses relating to the Trust or to the administration of the Trust;
12.20 To institute or defend legal proceedings, attend meetings of creditors of a private individual, juristic person or body who is a debtor of the Trust, regardless of whether the meeting is concerned with insolvency, liquidation or judicial management or with any other law, to vote on any issue put before the meeting and, in general, exercise all rights becoming to a creditor in similar circumstances;
12.21 With regard to any immovable personal property or mortgage bond at any time forming part of the trust assetsTrust Fund and the appropriation, to execute charge and valuation will be binding on all persons who may at any act or deed relating to the alienation, partition, exchange, transfer, mortgage, hypothecation or otherwise, in any deeds registry, mining titles office or other public office dealing with servitudes, usufructs, limited interests or otherwise, and to make any applications, grant any consents and agree time be entitled to any amendments, variations, cancellations, cessions, releases, reductions, substitutions or otherwise generally relating interest in the Trust Fund; and by irrevocable deed to renounce and release any deed, bond or document for any purposes and generally to do or cause to be done any act whatsoever power conferred on the Trustees under the Trust in any such office;
12.22 To, subject to the terms and conditions of this Trust Deed and subject to the terms and conditions accompanying such gift or bequest, accept and acquire for the purpose respect of the Trust any gifts, bequests whole or payments of whatsoever nature from any person, firm, company or association that may be given, bequeathed or paid to the Trust, and any additions so accepted and acquired shall be deemed to form part of the Trust administered Fund or the income and upon the renunciation and release coming into effect, the power is to be taken to be at an end and no longer exercisable by the Trustees to the extent of the renunciation and release; take and act on the opinion of a barrister practising in terms Australia in relation to the interpretation or effect of this Deed or any of the trusts or powers of this Deed without responsibility for any loss or error resulting from doing so, but this provision does not stop the Trustee from applying to a court of competent jurisdiction; employ and pay or provide any benefit for any employee without being responsible for the default of the employee or for any loss occasioned by the employment; engage and pay any agent, contractor or professional person without being responsible for the default of the agent, contractor or employee or for any loss occasioned by the engagement; to receive property or any further settlement sums by gift inter vivos or by will or under the provisions of any other trust or trusts otherwise and either from the Settlor 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 of this Deed and for the benefit of persons gifting further settlement sums to the Trust Fund the Trustees confirm in consideration of such gift to hold the settlement sum upon trusts herein set forth and to administer the addition under the provisions of this Deed;; decline or otherwise refuse to accept as part of the Trust Fund any gift (by will or otherwise), donation, settlement or other disposition in money, moneys worth or property; do all other things incidental to the exercise of the Trustees’ powers under this Deed.”
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Sources: Supplemental Deed of Trust
Trustee’s Powers. In addition to and not by way of limitation upon the fiduciary powers vested in granted to them by law law, the Trustees shallshall have the following specific powers, subject to the provisions of this limitations set forth in Section 2.1:
2.3.1 to receive, hold, manage, invest and reinvest the money or other property which constitutes the Trust Deed Fund, without distinction between principal and provided that it is done income;
2.3.2 to hold funds uninvested temporarily without liability for interest thereon, and to deposit funds in achievement one or advancement more savings or similar accounts with any banks and savings and loan associations which are insured by an instrumentality of the objectives of this Trust, have the widest powers and without prejudice to the generality of the aforegoing they may exercise the following powers:
12.1 To retain and allow the trust assets or any part or parts thereof to remain in the present state of investment thereof for so long as they may deem fitfederal government;
12.2 To 2.3.3 to invest or reinvest the proceeds of any assets whole or any monies portion of the money or other property which constitutes the Trust Fund in such common or preferred stocks, investment trust in their hands from time to time in immovable and movable property and with regard to the lattershares, in Government or municipal securitiesmutual funds, banking institutionscommingled trust funds, registered building society investments or first mortgage partnership interests, bonds, or in such sharesnotes, securities or other investments evidences of whatever natureindebtedness, and real and personal property as the Trustees in their sole absolute judgment and absolute discretion may deem fitto be for the best interests of the Trust Fund, regardless of nondiversification to the extent that such nondiversification is clearly prudent, and regardless of whether any such investment or property is authorized by law regarding the investment of trust funds, of a wasting asset nature, temporarily nonincome producing, or within or without the United States;
12.3 To vary 2.3.4 to invest in common and preferred stocks, bonds, notes, or other obligations of any investments made corporation or business enterprise in terms of clause 12.2 to any other investmentswhich an Employer or its owners may own an interest;
12.4 To exchange2.3.5 to exchange any investment or property, real or personal, for other investments or properties at such time and upon such terms as the Trustees shall deem proper;
2.3.6 to sell, alienatetransfer, lease convey or otherwise deal with the trust assetsdispose of any investment or property, whether movable real or immovablepersonal, whether corporeal for cash or incorporeal trust assets and of whatsoever nature and wheresoever situateon credit, as they in their sole and absolute discretion may deem fit, and in exercising any powers of sale, whether conferred in this subclause or otherwise, they shall be entitled to cause such sale to be effected by public auction or by private treaty and in such manner and on such terms and conditions as they in their sole and absolute discretion may deem fit and, in exercising any powers of lease, they shall be entitled to cause any property to be let at such rental, for such period and on such terms and conditions as they, in their sole and absolute discretion may deem fit;
12.5 To pay out of the capital or out of the income of the trust assets for any repairs, improvements or other works of whatsoever nature done on any property forming party of the trust assets or on any buildings or other structures situated thereon;
12.6 To exercise all the voting powers attached to any shares, debentures or other securities at any time forming part of the trust assets;
12.7 To compromise and settle for such consideration and upon such terms and conditions as they may the Trustees shall deem advisable, all matters arising and no person dealing with the Trustees shall be under any duty to inquire as to the validity, expediency, or propriety of any such sale or as to the application of the purchase money paid to the Trustees;
2.3.7 to hold any investment or property in relation the name of the Trustees, with or without the designation of any fiduciary capacity, or in name of a nominee, or unregistered, or in such other form that title may pass by delivery; provided, however, that the Trustees' records always show that such investment or property belongs to the Trust Fund and all such compromises and settlements the Trustees shall not be final and bindingrelieved hereby of their responsibility to maintain safe custody of the Trust Fund;
12.8 To consent 2.3.8 to organize one or more corporations to hold, manage, or liquidate any re-organisationproperty, arrangement including real estate, owned or reconstruction of any company acquired by the securities of which form , from time to time, Trust Fund if in the whole or any part sole discretion of the trust assets and to consent to any reduction in capital Trustees the organization of such corporation or other dealings with such securities as they may consider advantageous or desirable;
12.9 To surrender and deliver any shares forming part of the trust assets corporations is for such consideration and upon such terms and conditions as they may approve to any company reducing its share capital and to receive such consideration in the form of cash, securities or other assets as may be agreed upon between them and such company;
12.10 In their sole and absolute discretion, to borrow money and arrange, obtain and utilise credit facilities for the purposes hereof at such time or times, at such rate of interest or other consideration for any such loan or credit facility and upon such terms and conditions as they may deem desirable. Such borrowings and credit facilities may be made from any suitable person or persons and, should they consider it advisable to do so, the Trustees may secure the payment of any such loan or credit facility by pledging or mortgaging the trust assets or any part thereof or by any other security device. Any such loan or credit facility may be extended, renewed or repaid from time to time as the Trustees may deem to be in the best interest of the Trust;
12.11 To pay out 2.3.9 to extend the time for payment of, to modify, to renew, or to release security from any mortgage, note or other evidence of indebtedness, or to take advantage of or waive any default; to foreclose mortgages and bid in property under foreclosure or to take title to property by conveyance in lieu of foreclosure, either with or without the income payment of additional consideration;
2.3.10 to vote in person or out of the capital of the trust assets by proxy all municipal stocks and other taxes securities having voting privileges; to exercise or refrain from exercising any option or privilege with respect to stocks and other leviessecurities, lawfully levied including any right or imposed on privilege to subscribe for or otherwise to acquire stocks and other securities; or to sell any such right or privilege; to assent to and join in any plan of refinance, merger, consolidation, reorganization or liquidation of any corporation or other enterprise in which this Trust may have an interest, to deposit stocks and other securities with any committee formed to effectuate the trust assets or income of the trust assets or same, to pay any part thereof or expense incidental thereto, to exchange stocks and other securities for those which may be imposed issued pursuant to any such plan, and to retain as an investment the stocks and other securities received by the Trustees; and to deposit any investment in a voting trust; notwithstanding the preceding, Participants and Beneficiaries shall be entitled to direct the manner in which Stock allocated to their respective accounts are to be voted on all matters. All Stock which has been allocated to Participant's accounts for which the Trustees have received no written direction and all unallocated Employer securities will be voted by the Trustees in respect of matters arising out a manner determined by the Trustees to be solely in the interests of the TrustParticipants and Beneficiaries. Whenever such voting rights are to be exercised, the Employer and the Trustees shall see that all Participants and Beneficiaries are provided with adequate opportunity to deliver their instructions to the Trustees regarding voting of Stock allocated to their accounts. The instructions of the Participants and Beneficiaries with respect to the voting of allocated shares hereunder shall be confidential;
12.12 To make all apportionments in the accounts of the Trust which may be necessary;
12.13 To make secured 2.3.11 to abandon any property, real or unsecured loanspersonal, with or without interest, to any person or persons, or to companies in which the Trustees in their representative capacities hold sharesshall consider to be worthless or not of sufficient value to warrant its keeping or protecting; to abstain from the payment of taxes, directly or indirectly;
12.14 To employ accountantswater rents, attorneysassessments, agentsrepairs, brokersmaintenance, or and upkeep of any such professional property; to permit any such property to be lost by tax sale or other assistants as they may consider necessary to transact all or any business of whatsoever nature required to be done pursuant to this Trust Deedproceedings, and to pay all convey any such feesproperty for a nominal consideration or without consideration;
2.3.12 to borrow money from an Employer or from others and to enter into installment contracts, charges and expenses so incurred as a first charge, and they shall not be responsible for the default purchase of Stock upon such accountants, attorneys, agents, brokers, professional or other assistants or for any loss occasioned by such employment;
12.15 To determine all problems terms and matters of doubt which may arise in the course of their management, administration, realisation, liquidation or utilisation of the trust assets;
12.16 To open conditions and to operate upon (either themselves or by a person or persons authorised by them) a banking account or accounts in the name of the Trust;
12.17 To reimburse themselves out of the capital or out of the income for all expenses incurred by them personally in or about the execution of the Trust and powers conferred upon them by this Trust Deed;
12.18 To, at the Trust’s cost, appoint employees at such remuneration and on such conditions reasonable rates of employment interest as the Trustees may in their absolute discretion deem fitto be advisable, to issue promissory notes as Trustees to evidence such debt, to secure the payment of such notes by pledging any property of the Trust Fund, and to amend authorize the holders of any such conditions of employment and terminate the services of employees;
12.19 To pay out notes to pledge them to secure obligations of the capital or out holders and in connection therewith to repledge any assets of the income Trust as security therefor; provided that, with respect to any extension of the Trust, any costs and expenses relating credit to the Trust involving, as a lender or to guarantor, an Employer or another "disqualified person" within the administration meaning of Section 4975(e)(2) of the TrustCode as follows:
(a) each loan or installment contract is primarily for the benefit of Participants and Beneficiaries of the Plan;
12.20 To institute (b) any interest on a loan or defend legal proceedings, attend meetings of creditors of installment contract does not exceed a private individual, juristic person or body who is a debtor of the Trust, regardless of whether the meeting is concerned with insolvency, liquidation or judicial management or with any other law, to vote on any issue put before the meeting and, in general, exercise all rights becoming to a creditor in similar circumstancesreasonable rate;
12.21 With regard to any immovable property or mortgage bond at any time forming part of the trust assets, to execute any act or deed relating to the alienation, partition, exchange, transfer, mortgage, hypothecation or otherwise, in any deeds registry, mining titles office or other public office dealing with servitudes, usufructs, limited interests or otherwise, and to make any applications, grant any consents and agree to any amendments, variations, cancellations, cessions, releases, reductions, substitutions or otherwise generally relating to any deed, bond or document for any purposes and generally to do or cause to be done any act whatsoever in any such office;
12.22 To, subject to the terms and conditions of this Trust Deed and subject to the terms and conditions accompanying such gift or bequest, accept and acquire for the purpose of the Trust any gifts, bequests or payments of whatsoever nature from any person, firm, company or association that may be given, bequeathed or paid to the Trust, and any additions so accepted and acquired shall be deemed to form part of the Trust administered in terms of this Trust Deed;
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