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SINCE TIME BEGAN : salus populi suprema est lex - the right of the people is the supreme law : IN TRUTH WE TRUST
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SINCE TIME BEGAN : salus populi suprema est lex - the right of the people is the supreme law : IN TRUTH WE TRUST
CHARTER TERMS & CONDITIONS
(g) "Net Income" means all income derived from the Trust Fund
less the aggregate of:
(i. any and all expenses
incurred or payable in respect of or to protect the Trust Fund or incurred or
payable in connection with the management and administration of the Trust in
this Settlement as determined by the Trustee to be chargeable to income; (ii.) such further or other sums in each year as the Trustee in the
Trustee's discretion considers to be proper allowances, reserves, deductions,
disbursements and outgoings in accordance with generally accepted accounting
principles; and (iii.) without limiting the generality of the foregoing, such
sum in each year as the Trustee shall in the Trustee's discretion considers
necessary and advisable from time to time as being on account of depletion,
deterioration or obsolescence of any of the assets comprising the Trust Fund;
(h) “Patrick” means Patrick
David Lockhart Gordon;
(i) "Trust" or
"Trusts" means the trust or trusts established under this
Settlement;
(j) "Trustee" means
the trustee or trustees from time to time acting under this Settlement; and
(k) "Trust Fund" means the property
referred to in paragraph 2.1 hereof, all other Assets which may at any time
be substituted therefore, and all other Assets which are now or which at any
time during the continuance of the trusts hereof may be acquired by or
assigned, transferred or appointed to the Trustee and which the Trustee may
be willing to accept and hold upon the trusts hereof, and all capital
accretions to and all income from such Assets, but excluding all amounts
which have been paid or disbursed therefrom (whether out of capital or
income) in the normal course of administration or pursuant to the provisions
of this Settlement.
1.2 Number and Gender. In this Settlement and in
any instruments supplemental or ancillary hereto the singular includes the
plural and the masculine includes the feminine and vice versa.
ARTICLE 2
Settlement of the Trust
2.1 Settlement. The Settlor hereby
transfers to the Trustee and the Trustee hereby acknowledges the receipt from
the Settlor of One Hundred ($100.00) Canadian Dollars and agrees to hold the
property, together with all other Assets which may hereafter form the
Trust Fund in accordance with the terms of this Settlement.
2.2 Trust Irrevocable. This Settlement and the
Trust hereby made are irrevocable by the Settlor and, notwithstanding
anything herein expressed or implied, no part of the capital or income of the
Trust Fund:
(a) may be paid, lent or applied to or for the benefit of the Settlor;
(b) may
revert to the Settlor;
(a) may be paid, lent or applied to or for the benefit of any person determined
by the Settlor; or
(b) will require the Settlor's consent with respect to the distribution of
such capital or income.
2.1 Additions
to Trust Fund. The Settlor or, with the approval of the Trustee, any other person may
at any time and from time to time add to the Trust Fund. Any proposed
addition to the Trust Fund which if made would have an adverse impact on the
utilization of any election, may not be added to the Trust Fund but rather
will be held by the Trustee as a separate trust fund with the provisions of
this
Settlement
respecting the administration of the Trust Fund applying mutatis
mutandis to
such
property.
2.2 Legal Title
to Trust Assets. Any Assets from time to time constituting the Trust Fund will be held
by and registered in the name of the Trustee or in the name of the
Trustee's nominee or otherwise as the Trustee may decide. The Trustee is
not liable for any loss to the Trust resulting from any act of the nominee in
whose name an Asset is held.
ARTICLE 3
Distribution
of Trust Property
3.1 Application
of Trust Fund Prior to Distribution Date. The Trustee will hold the Trust Fund and until
the Distribution Date and will pay or transfer to or make payable to those
individuals who have been adversely affected by the said October, 2006 fire
or those others who reside on lands of the Cowichan tribes lands at Duncan,
British Columbia. The funds are to be awarded in the form of a bursary to
advance the education of a selected individual and are to include,
(a) any amount or amounts of the net income derived from the Trust Fund as
the Trustee in the Trustee's absolute and uncontrolled discretion from
time to time determines;
(b) any amount or amounts of the capital of the Trust Fund as the Trustee
in the Trustee's absolute and uncontrolled discretion from time to time
determines; The Trustee, when
exercising the Trustee’s discretion under this paragraph for the benefit of
the said individuals are to consider as especially worthy of favoritism,
those individuals who seek to pursue an education involving the engineering
profession. The Trustee will not be liable for any consequences arising from
the depletion or even exhaustion of the Trust Fund during the 75 years as a
result of advances of income and capital for the benefit of the individuals
mentioned aforesaid.
3.2 Undistributed
Income Becomes Capital. Any net income from the Trust Fund which is not so paid, made payable
or applied in any year or within three months thereafter will be accumulated
by the Trustee and added to the capital of the Trust Fund and dealt with as a
part thereof.
3.3 Payment of
the Trust Fund on the Distribution Date. On the Distribution Date any accumulated income
and capital is to be distributed to an entity of similar objects as the trust
herein.
3.4 Payment to
Guardian. The Trustee is authorized to make any payment or distribution, whether
of income or of capital, for any beneficiary who is under the age of 19 years
or under some other disability to the parent, legal guardian, acting guardian
or committee of such beneficiary or to anyone to whom the Trustee in the
Trustee's discretion deems it advisable to make such payment, whose receipt
will be a sufficient discharge to the Trustee. The parent or guardian or
person acting as such of the beneficiary is expressly authorized to make any
election or elections on behalf of such beneficiary for the purposes of
the Income Tax
Act.
3.5 Transfer to
Another Trust. Notwithstanding any of the Trusts, powers and provisions herein, and subject
to paragraph 4.1 hereof, the Trustee may in the Trustee's absolute discretion
at any time and from time to time, transfer and convey the whole or any
share, portion, part or parts of the Trust Fund, to any other trust or
settlement (the "New Trust") whether established under or pursuant
to the laws of the Province of British Columbia, any other Province of
Canada, or any other jurisdiction whatsoever, to be held by the trustees of
the New Trust with and subject to the powers and provisions of the New Trust,
provided that the beneficiaries of the New Trust must be the beneficiaries of
this Trust and that the interests and rights of the beneficiaries with
respect to the share, portion, part or parts of the Trust Fund so transferred
and conveyed will under the New Trust be the same as or substantially the
same, insofar as is possible under the laws of the jurisdiction governing the
New Trust, as the interests and rights of the beneficiaries under this
Settlement. Upon such a transfer being made, the Trusts herein
declared concerning the property comprised in such transfer will cease and
determine and the said property will for all purposes be subject to the
trusts, powers and provisions contained in the New Trust.
ARTICLE 4
Trustee's
Powers
4.1 General. In addition
to all other powers conferred upon the Trustee by the other provisions of
this Settlement or by any statute or general rule of law, the Trustee has and
is hereby given the power and authority in the Trustee's absolute and
uncontrolled discretion at any time and from time to time to administer the
Trust Fund in whatever manner the Trustee may determine and will have the
right to take any action in connection with the Trust Fund and to exercise
any rights, powers and privileges which may exist or arise in connection
therewith to the same extent and as fully as an individual could if the
individual was the sole owner of the Trust Fund. It is the intention of the
Settlor to grant the widest powers possible to the Trustee.
4.2 Specific
Powers. Without
in any way limiting the generality of the foregoing, the Trustee will have the
following powers and authority which are exercisable in the discretion of the
Trustee:
Investment
Discretion
(a) to invest any money constituting part of the Trust Fund in any
investments which the Trustee considers advisable including shares of private
corporations of which the Trustee may be an officer, director and/or shareholder,
notwithstanding that such investments may not be investments authorized by
law for trustees and the Trustee will not be responsible for any loss which
may be occasioned by reason of making such investments or the retention of
them;
Disposal
of Assets of Trust Fund
(b) to sell, transfer, assign, exchange, convey, mortgage, lease or
otherwise dispose of any of the Assets from time to time constituting the
Trust Fund in any manner the Trustee deems proper and at a price, upon such
terms and for such consideration as the Trustee deems suitable; to give any option
with respect to any property in the Trust Fund and generally to perform all
acts of alienation and ownership with respect to the Trust Fund to the same
extent and with the same effect as if the Trustee was the absolute owner of
the Trust Fund;
Management
of Property
(c) to manage real or leasehold property entrusted to the Trustee or held
by the Trustee under the Settlement and to make ordinary and extraordinary
repairs and alterations and improvements thereon as the Trustee deems
advisable; to raze buildings and erect new buildings; to subdivide and plot
real property, to lay out and dedicate ways, roads and public places; to
grant or release easements; to enter into partition, party-wall and boundary
line agreements and agreements of any other kind with respect to real
property; and to make any payment for repairs, alterations and improvements
or services or in connection with such management out of the capital or
income of the Trust Fund as the Trustee deems proper;
Voting
of Shares
(d) to vote all shares or other securities, to exercise all rights
incidental to the ownership of shares, bonds, or other securities,
investments and property held as part of the Trust Fund, and to issue proxies
to others; to vote to elect the Trustee to any executive or other board or
committee of any company whose shares form part of the Trust Fund and to
serve in any office or on any board or committee and accept and receive
remuneration for the Trustee's services without diminution of the Trustee's compensation
under this Settlement; to sell or exercise any subscription rights and in
connection with the exercise of subscription rights to use Trust moneys for
such purpose; to consent to and join in any plan, reorganization,
readjustment, merger, amalgamation or consolidation with respect to any
company whose shares, bonds or other securities at any time form part of the
Trust Fund and to authorize the sale of the undertaking or assets or any portion
of the assets or undertaking of any such company; and generally to act in
respect of any securities forming part of the Trust Fund as fully and
effectively as if they were not Trust property but always in such manner as
the Trustee in the Trustee's uncontrolled discretion considers to be in the
best interests of the Beneficiary;
Bank
Accounts
(e) to open and operate any bank account as may be expedient in the
opinion of the Trustee and to deposit cash balances in the hands of the
Trustee at any time in any chartered bank, credit union or trust company and
for the purposes of the Trust, to draw, make, endorse, deposit or deal in cheques,
bills of exchange, promissory notes, drafts or any other mercantile,
commercial or security documents of any nature or kind; and to enter into
contracts, or agreements of any nature or kind with a bank, credit union or
trust company, and for such purposes the signature of the Trustee as Trustee,
and not in the Trustee's personal capacity, is valid and binding upon the Trust;
Partnership
(f) to enter into any partnership or limited
partnership agreement or agreements; Incorporation
(g) to incorporate any company under the laws of the Province of British
Columbia or any other jurisdiction in Canada or elsewhere, at the expense of
the Trust Fund for the purpose of investing the whole or any part of the
Trust Fund wholly or partly in shares or other security of such company;
Operate
a Business
(h) to operate a business acquired as part of the Trust Fund;
Life
Insurance Policy
(i) to retain any life insurance policy
entrusted to the Trustee or from time to time held by the Trustee as Trustee;
to accept as assignee for a consideration or as a donation to form part of
the Trust Fund, any life insurance policy or benefit under such policy; to purchase
insurance on the life of the Beneficiary; to purchase insurance on the life
of anyone in whom the Beneficiary has an insurable interest and to select
such type of policy and mode of premium payments as the Trustee deems
advisable; to pay premiums on the policy out of capital or income as the
Trustee deems proper, provided any insurance policy will be payable to the
Trustee and will be held as part of the Trust Fund, and the proceeds thereof,
when received by the Trustee, will form part of the Trust Fund; and for such
purposes the Trustee will have full power and authority to borrow money on the
security of any policy, to sell such policy or surrender the same and to
accept in exchange therefore, or in lieu thereof, any different policy and
all the powers of an absolute owner for the purpose of dealing with the
policy in such manner as the Trustee considers in the best interests of the
Beneficiary;
Annuities
(j) to purchase annuities for the Beneficiary
and to select such type of annuity and mode of payment as the Trustee deems
advisable;
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Insurance
Borrowing
(l) upon such terms and subject to such conditions
as the Trustee may consider appropriate, to borrow on behalf of the Trust
such amount or amounts as the Trustee deems necessary or advisable, and,
for the purpose of securing the repayment of any amount so borrowed, to
mortgage, pledge, hypothecate or otherwise charge all or any part of the
Trust Fund;
Lending
(m) to advance moneys out of the Trust Fund by way of loan to any
person or company, including the Beneficiary, such loans to be made with or
without interest, upon such terms as to payment and with or without security,
as the Trustee deems advisable;
Guarantee
(n) to guarantee, with or without security, the performance of
contracts and the performance of undertakings and obligations of any person,
company, partnership or association, including the payment of interest,
principal and premium, if any, on bonds, debentures, or other securities, mortgages
or liabilities of any such person, company, partnership or association,
provided such guarantee can reasonably be regarded as having been given for
the benefit or advantage of the Trust Fund and the Beneficiary;
Indemnification
(o) to enter into any agreement of indemnification for the benefit of any
Beneficiary, persons, company or partnership, with or without security,
provided that such indemnification can be reasonably regarded as having been
given for the benefit or advantage of the Trust Fund and the Beneficiary;
Releases
(p) to waive or
agree to waive, in whole or in part, unpaid accrued interest, or accumulated
dividends in respect of any investment which may be held by the Trustee at
any time, or to release any person, company or partnership from any
obligation to the Trust with or without compensation therefor;
Employees
and Agents
(q) to employ and compensate agents, accountants, solicitors, brokers or
other assistants and advisors deemed by the Trustee to be helpful for the
proper settlement or administration of the Trust, and to do so without
liability for any neglect, omission, misconduct or default of any employed
person,
provided the person was selected and retained with reasonable care;
Employment
of Trust Company
(r) to employ a trust company to act as agent
to retain custody of the securities, maintain books of account, receive and
disburse money and otherwise manage any part of the Trust Fund in accordance
with the instruction of the Trustee;
Documents
(s) execute and
deliver agreements, assignments, bills of sale, contracts, deeds, notes,
powers of attorney, receipts and any and all other instruments in writing
necessary or appropriate in the opinion of the Trustee for the settlement or
administration of the Trust, and to execute any instrument without warranty
by or without recourse to the Trustee; in executing the deed or other instrument,
the Trustee will not be bound to secure the consent or approval of any
person, official, authority, tribunal or court whomsoever or whatsoever;
Proceedings
Affecting the Trust Fund
(t) to institute, prosecute and defend any suit
or actions or other proceedings affecting the Trustee or the Trust Fund or
any part thereof, to compromise or settle any matter of difference or to
submit any such matter to arbitration, to compromise or compound any debts
owing to or by the Trust upon evidence that to the Trustee seems sufficient,
to make partition in whole or in part at public auction or private sale or
otherwise upon any terms the Trustee deems advisable with any co-owners or
joint owners having any interest in any properties comprised in the Trust
Fund and to
make
such partition either by sale or by setoff or by agreement or otherwise
(including where
deemed
desirable, provision for equality or exchange);
Distributions
(u) upon any distribution or division of the
Trust Fund or of any part thereof, to distribute or divide the same either
wholly or in part in money or in other Assets of the Trust Fund and for the
purpose of such distribution or division, and for any other purpose
hereunder, to place a value on the Assets or of any share therein as the
Trustee deems just and proper and any valuation is absolutely final and binding
upon all persons entitled hereunder;
Income Tax
Matters
(v) to make any designation, allocation or
apportionment and without restricting the generality thereof in respect of capital gains or losses,
capital dividends, stock dividends or taxable dividends to, among or between
the Beneficiary and the Trust itself as is required or permitted under the
relevant provisions of the Act or any other taxing statute affecting the
Trust;
(w) to make, or refrain from making, in the Trustee's absolute discretion,
any election, determination or designation permitted by the Act or any other
statute or regulation enacted by the parliament or government of Canada, by
the legislature or government of any Province of Canada, or by any other
legislative or governmental body of any other country, province, state or
territory, and such exercise of discretion by the Trustee is conclusive and
binding upon the Beneficiary;
(x) to pay out of the income or capital of the
Trust Fund, as the Trustee from time to time in the Trustee's absolute
discretion determines, any taxes or other imposts payable in connection with
the Trust Fund or payable by the Beneficiary in respect of the Trust Fund or
any part thereof;
(y) any taxable capital gains realized by the
Trust shall be treated as income and dealt with in accordance with the
discretionary power of the Trustee. The non-taxable portion of any capital
gain shall be treated as capital of the Trust and dealt with in accordance
with the discretionary power of the Trustee;
Amounts
Payable to Beneficiary
(z) to make amounts payable to the Beneficiary
by signing a trust minute which irrevocably declares an amount to be payable
to a Beneficiary at which time the Beneficiary will have a legally
enforceable right to payment of that amount;
Payments
to Beneficiary and Third Parties
(aa) to issue promissory notes as negotiable instruments as payment in full
of any amounts made irrevocably payable to a beneficiary or any other
outstanding debt;
Court
Orders
(bb) to exercise powers under this Settlement without giving prior notice to
any person or without first obtaining an order from a Court of competent
jurisdiction;
Non-arm's Length
Transactions
(cc) to engage in any transaction authorized or empowered whether express
or implied hereunder, with either the Trustee personally, the Beneficiary or
any persons related to them, including companies in which the Trustee,
Beneficiary or related persons are interested, provided that such
transactions are on the same basis as might reasonably be negotiated with any
stranger.
Rectification
and Amendments
(dd) provided any alteration, amendment, enlargement, change, correction or
modification does not, in the opinion of the Trustee, prejudice the
rights of the Beneficiary hereunder:
(i) the Trustee may without reference to or the
consent or concurrence of the Beneficiary, by supplemental indenture or
otherwise, make any changes or corrections in this Settlement or any indenture
supplemental hereto, which in the Trustee's opinion are corrections or
changes required for the purposes of curing or correcting any ambiguity or
defect or inconsistent provisions or clerical omissions or mistakes or
manifest errors contained herein or therein; and
(ii) the Trustee may, by supplemental indenture or otherwise, alter,
amend, enlarge or modify the provisions contained in this Settlement or any
indenture supplemental hereto if such alteration, amendment, enlargement or
modification is, in the opinion of the Trustee, beneficial to the Beneficiary
or required for the purpose of complying with any statute of Canada or any Province
thereof, or any order, rule or regulation made pursuant to such statute, or
for the purpose of overcoming difficulties in the administration of the
Trusts hereof.
4.3 Passing of
Accounts. The Trustee shall not be required to pass its accounts in a Court of
competent jurisdiction except pursuant to a Court Order on the application of
the Beneficiary. The Trustee shall keep and maintain accurate accounts of her
trusteeship and may, but is not obligated to, have them audited annually by a chartered account or a
certified general accountant and the expense thereof shall be an expense to
the Trust Fund.
4.4 Minor
Beneficiary. Any notice or report to a minor Beneficiary as required in this
Settlement shall be given to either parent of the minor Beneficiary or to the
guardian of the minor Beneficiary.
ARTICLE 5
Appointment
of Trustees
5.1 Appointment
of Trustee. The power of appointing trustees is exercisable by the Settlor during
the Settlor’s life and by will after the Settlor’s death.
ARTICLE 6
Trustee's
Decisions
6.1 Decisions
Made in Canada. All decisions of the Trustee must be made in Canada unless the Trustee by
supplemental indenture determines otherwise and any decision of the Trustee
made outside of Canada will have no
effect unless a supplemental indenture permits such decisions to be made
outside of Canada.
ARTICLE 7
Liability,
Indemnification and Compensation of Trustee
7.1 Fees. The Trustee
is entitled to a fee for acting as Trustee under the provisions of the
Settlement of such reasonable amount as is agreed upon between the Protector
and the Trustee but not in excess of the
maximum allowed by any rule of law or practice prevailing in the jurisdiction
in which the Trust is resident and situated, and such fees may be charged to
and paid out of either income or capital or both of the Trust Fund. The
Trustee shall be reimbursed for all reasonable expenses incurred in carrying
out the administration of the Trust Fund.
7.2 Trustee
Liability. The Trustee is not responsible for any act or omission or any error of
judgment not amounting to actual fraud in the management and administration
of the Trust Fund. The Trustee is not personally liable upon any moneys to
become due from or by any claims against the Trust Fund or upon any
investment executed by the Trustee under these provisions. The Trustee has the
power to
bind
the Trust without rendering the Trustee personally liable.
7.3 Trustee
Indemnity Re: Exercise of Discretion. The Trustee will be fully protected in
exercising any discretion granted to the Trustee in this Settlement and will
not be liable to the Settlor or the Settlor's estate or to the Beneficiary or
to any other person whatsoever by reason of the exercise of any such discretion.
The Trustee will exercise the powers and discretions given to the Trustee in
what the Trustee deems to be the best interests, whether monetary or
otherwise, of the Beneficiary, and all such exercise of the Trustee's powers
and discretions will be binding upon all the Beneficiary and will not be subject to any question by any person,
official, authority, court or tribunal.
7.4 Trustee
Indemnity Re: Taxes, Levies, Damages. The Trustee is not personally liable for
the payment of any taxes that may be subject to assessment or payment during
the currency of the Trust Fund which are the result of any failure by the
Trustee to withhold, report or pay any taxes relating to the administration of the Trust or Trust Fund
and in the event that the Trustee should be called upon to pay any taxes,
penalties or other charges, the Trustee will be reimbursed for any amounts
paid personally by the Trustee out of the capital or income of the Trust
Fund. This provision for indemnity and reimbursement will also extend and
apply to any other fines, levies, assessments or damages levied against the
Trustee, whether by a court or otherwise, in respect of or arising out of any
matter or thing done or omitted to be done in connection with the management,
operation or administration of the Trust Fund.
7.5 Indemnity
Continues. All indemnities, protections and liens granted to the Trustee under
this Settlement shall continue in favour of any Trustee who is no longer
holding office in respect of any claim, loss, expense or other liability that
arose when the former Trustee held office.
7.6 Obligations
of Successor Trustee. No successor Trustee will be required or be under any duty to examine,
question, verify or audit the books, records, or accounts of any predecessor
Trustee.
ARTICLE 8
Miscellaneous
Provisions
8.1 This
Settlement may be executed in any number of counterparts, each of which will
be deemed to be an original, but all of which together will constitute one
and the same document.
8.2 The
provisions of this Settlement are severable from one another and a finding of
a court that one provision is not enforceable shall not affect the
enforceability of the rest of the Settlement.
8.3 This
Settlement constitutes the entire agreement between the parties and
supersedes and replaces all prior or oral written communications between the
parties relating to the subject matter hereof.
8.4 This
Settlement shall enure to the benefit of and be binding on the heirs,
executors, administrators, successors and assigns of the Settlor and the
Trustee.
8.5 Headings in
this Settlement are inserted for convenience of reference only and shall not
affect the construction or interpretation of this Settlement.
8.6 This
Settlement shall be construed according to the laws of the Province of
British Columbia and, where applicable, the laws of Canada.
IN WITNESS WHEREOF the parties hereto have hereunder set their hands and
seals as of the date first herein mentioned.
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SINCE TIME BEGAN : salus populi suprema est lex - the right of the people is the supreme law : IN TRUTH WE TRUST
