EQUATOR INVESTMENT PROGRAMMES AMENDED AND RESTATED TRUST DEED
Dated 16 September 2009
RBS ASSET MANAGEMENT (DUBLIN) LIMITED
as Manager
and
BNY MELLON TRUST COMPANY (IRELAND) LIMITED
as Trustee
AMENDED AND RESTATED TRUST DEED
constituting Equator Investment Programmes an Umbrella Fund
A & L Goodbody
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TABLE OF CONTENTS (This Table of Contents does not form part of the Trust Deed)
Clause No: Page No:
1. Interpretation 12
1(A) Definitions 12
1(B) References to "this Deed" 20
1(C) References to Clauses, Appendices etc. 20
1(D) Headings 20
2. Constitution of the Trust 20
2(A) Umbrella Fund and Constitution of Fund 20
2(B) Provisions relating to each Sub-Fund 21
2(C) Declaration of Trust 22
2(D) Binding nature of terms and conditions 22
2(E) Copies of Trust Deed 22
2(F) Additional liability of Holder 22
2(G) Regulations 22
3. Units and Holders 22
3(A) Interest of Holder 22
3(B) Issue of Units by Manager 22
3(C) Registers of Holders 23
3(D) Power to issue Certificates, bearer securities or Registration Numbers 23
3(E) Issue of Certificates 23
3(F) Recognition of Interest 23
3(G) Realisation of Units by Holder 24
3(H) Receipt for moneys payable 24
3(I) Sub-division of Units 24
3(J) Manager deemed Holder of Units 24
3(K) Qualified Holders and compulsory transfer or realisation 24
3(L) Distributions 26
4. Cancellation of Units by Manager 26
4(A) Power of Manager to effect reductions of the Trust 26
4(B) Payment to the Manager 26
4(C) Suspension of power to require cancellation 26
4(D) Verification of amount payable to Manager 26
5. Borrowings 26
5. Power of Trustee to Borrow 26
5(A) Permitted lenders/rate of interest 26
5(B) Deposits with lenders in connection with borrowings 27
5(C) Deposits in connection with borrowings 27
5(D) Borrowings repayable on termination of the relevant Sub-Fund or of the Trust 27
5(E) Expenses of borrowing 27
5(F) Security for borrowings 27
5(G) Trustee not liable for borrowing related losses 28
5(H) Borrowings from Trustee, Manager or any Connected Person of either 29
5(I) Extension of Credit by Trustee 29
6. Auditors, Accounts and Reports 29
6(A) Manager's power to appoint/remove auditor 29
6(B) Manager's duty as to Reports 29
6(C) Trustee's Report 29
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6(E) Power of Manager to fix new Accounting Date 29
7. Fees and Expenses 29
7(A) Trustee Fee and Management Fee 29
7(B) Charges against Fund 31
7(C) Charge of Trustee Fee and Management Fee against income or capital 32
7(D) Amortisation of charges and expenses 32
7(E) Common expenses 32
8. Termination 33
8(A) Continuation of Trust 33
8(B) Termination on one year's notice by Trustee or Manager 33
8(C) Events entitling Trustee to terminate 33
8(D) Events entitling Manager to terminate 33
8(E) Notice to Holders of termination 34
8(F) Termination by Trustee and Manager 34
with approval of Extraordinary Resolution 34
8(G) Final Termination 34
9. Proceedings upon Termination 34
9.1(A) Prohibition on issue of Units 34
9.1(B) Realisation of assets 34
9.1(C) Distribution of net cash proceeds to Holders 34
9.1(D) Prohibition on sale cancellation and realisation of Units 35
9.1(E) Continuing powers 35
10. Modification of this Deed 35
10(A) Modification and need for Extraordinary Resolution 35
10(B) Notice of modification to Holders
36
10(C) Prior approval of Authority 36
11. Reconstruction and Amalgamation 36
11 Conditions 36
12. Notices 37
12(A) Notification by post 37
12(B) Notification of Joint Holders 37
12(C) Notification of dead or bankrupt Holders 37
12(D) Notifications between Trustee and Manager 37
12(E) Postal risks on notification 37
13. Appendices 37
13 Nature of Appendices 37
14. Governing Law and Jurisdiction 37
14(A) Irish law to govern 37
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A P P E N D I C E S APPENDIX A
VALUATION RULES
Clause No: Page No:
1. Calculation of Net Asset Value of each Sub-Fund by the Manager. 38
2(A) Valuation of Investments quoted, listed or normally dealt in on a Market. 38 2(B) Valuation of Investments not quoted, listed or normally dealt in on a Market. 38
2(C) Valuation of derivative contracts dealt in on a Market 38
2(D) Valuation of foreign exchange contracts 39
2(E) Valuation of cash, deposits and similar property. 39
2(F) Valuation of demand notes, promissory notes and accounts receivable 39 2(G) Valuation of certificates of deposit, treasury bills or other receivable instruments 39
2(H) Valuation of units in collective investment schemes 39
2(I) Value of off exchange derivative contracts 39
2(J) Adjustment of valuation by Manager. 40
2(K) The amortised cost valuation method 40
2(L) Valuation of a specific asset 40
3. Calculation of Net Asset Value of a Sub-Fund. 40
3(A) Treatment of Units issued and not cancelled. 40
3(B) Treatment of cancelled Units. 41
3(C) Treatment of property agreed to be purchased or sold. 41
3(D) Treatment of amounts to be amortised. 41
3(E) Liabilities of Sub-Fund. 41
3(F) Estimated taxation. 42
3(G) Conversion of currencies. 42
3(H) Treatment of dividends or interest not yet received. 43
3(I) Accrual of liabilities. 43
4. Allowance for fiscal and purchase charges 43
APPENDIX B ISSUE OF UNITS
Clause No: Page No:
1(A) Minimum Holding and Minimum Initial Subscription of Units. 44
1(B) Dates on which Units may be issued. 44
1(C) Issue Price of Units. 44
1(D) Payment for Units. 44
1(E) Sale of Units by Manager. 45
1(F) Issue upon reconstruction. 45
2. Exchange of Investments for Units. 45
2(A) Vesting in Trustee before issue. 45
2(B) Charges and expenses of vesting. 45
2(C) Number of Units to be issued. 45
2(D) Valuation of Investments exchanged. 46
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3(A) Preliminary Charge. 46
3(B) Payment out of Preliminary Charge of any commission, remuneration or 46 other sum payable by Manager.
4. Limitations on Manager during suspension of Holders' rights 46
5. Charge in respect of delivery of Certificates. 46
6. No Certificate or written confirmation of ownership until payment received. 46
7. Statements of all issues of Units. 46
8. Dilution Levy 47
APPENDIX C
REGISTER OF HOLDERS AND TRANSFER OF UNITS
Clause No: Page No:
1(A) Register for each Sub-Fund. 48
1(B) Entries on Register. 48
1(C) Body Corporate. 48
1(D) Change of name/address. 48
1(E) Inspection of Register. 48
1(F) Closing of Register. 48
1(G) Conclusive Evidence as to Persons entitled to the Units. 49
2(A) Entitlement of Holder to transfer Units. 49
2(B) Signature of instruments of transfer. 49
2(C) Stamping of instruments of transfer. 49
2(D) Retention of instruments of transfer. 49
2(E) Registration fee. 49
2(F) Transfer in favour of Manager. 49
3(A) Death of a joint Holder. 49
3(B) Title to deceased Holder's Units.
50
3(C) Registration of successor to deceased Holder. 50
3(D) Entitlements of successor. 50
3(E) Retention by Trustee of moneys payable until registration. 50
4. Fees in respect of registration of various documents. 50
5. Payment of taxation upon transfer. 50
APPENDIX D
CERTIFICATES
Clause No: Page No:
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1(B) Denomination of Certificates. 51
1(C) Information to be entered on Certificates. 51
2(A) Signature of Certificates. 51
2(B) Delivery of Certificates. 51
3(A) Exchange of Certificates. 51
3(B) New Certificates. 51
3(C) Fee for issue of Certificates. 52
3(D) Name on new Certificates. 52
3(E) Dispensing with production of Certificates. 52
3(F) Cancellation of mutilated or defaced Certificates. 52
APPENDIX E CONVERSION OF UNITS
Clause No: Page No:
1. Conversion procedures. 53
2. Prohibition on conversion 54
APPENDIX F
REALISATION OF UNITS
Clause No: Page No:
1(A) Delivery of realisation request. 55
1(B) Contents of realisation request. 55
1(C) Calculation of realisation price. 55
1(D) Verification of realisation price by Trustee. 56
1(E) Payment in respect of realisation. 56
1(F) Handling Fee. 56
2(A) Partial realisation. 56
2(B) Balance Certificate. 56
3. Dispensing with production of Certificate 56
4. Realisation by cancellation. 56
5. Realisation by purchase by Manager. 56
6. Suspension of realisation or delay in payment of moneys.
57
6(A) When relevant Market closed. 57
6(B) When dealings on Market restricted or suspended. 57
6(C) When disposal cannot be effected normally or without
seriously prejudicing the Holders' interests. 57
6(D) When Net Asset Value cannot be ascertained. 57
6(E) When realisation cannot be effected at
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7. Restriction on number of Units realised on a Dealing Day. 58
8. Restriction on individual realisations. 58
8(A) Realisation of Investments. 58
8(B) In specie Distribution. 59
8(C) Notice Transfer. 59
8(D) Election by Holder. 59
8(E) Notice to Trustee. 59
8(F) Cancellation. 60
APPENDIX G
DISTRIBUTIONS
Clause No: Page No:
1(A) Distributions. 61
1(B) Interim and further distributions. 61
2(A) Reinvestment of distributions. 61
2(B) Trustee agent for Reinvesting Holder. 62
2(C) Certificates for additional Units. 62
3(A) Notice requesting payment in cash of distribution. 62
3(B) Nature of notice. 62
3(C) Notice to relate to all distributions. 62
4(A) Payment of distribution. 62
4(B) Deductions from distributions. 63
4(C) No interest on distribution. 63
5(A) Interest on monies standing to the credit of Distribution Account. 63
5(B) Income Equalisation Account 63
5(C) Equalisation. 63
6. Distribution and Series 64
APPENDIX H
INVESTMENT OF THE FUND
Clause No: Page No:
1. Acquisition of Investments. 65
1(A) Retention of cash. 65
1(B) Specific Investments. 65
2. Investment in other collective investment schemes. 65
3. Investment in index tracking funds 65
4. Changes of Investments due to exceeding limits. 65
4(A) Receipt of rights, bonuses etc. by Trustee. 65
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4(C) Payment out of Sub-Fund. 65
4(D) Realisation. 65
5. Interest on deposits with certain entities. 66
6. Realisation of Investments. 66
7(A) Purchase and sale of Investments as agent. 66
7(B) Selling or dealing in Investments as principal. 66
8(A) Efficient Portfolio Management. 67
8(B) Margin and cover. 67
8(C) Stock lending/Repurchase/Reverse Repurchase.
67
8(D) Closing-Out. 68
8(E) Liability for hedging transactions. management transactions. 68
9. Currency dealings. 68
10. Selection of Investments. 68
11. Acceptance of property by Trustee. 68
12(A) Partly paid Investments. 68
12(B) Acquisition of Investments likely to involve Trustee in liability. 68
APPENDIX I
SAFE CUSTODY AND VOTING RIGHTS ON INVESTMENTS
Clause No: Page No:
1 The Regulations. 70
2(A) Trustee responsible for safe-keeping of Investments. 70
2(B) Appointment of Sub-custodians etc. 71
3(A) Voting rights on Investments. 71
3(B) Meaning of "rights of voting"/"vote". 71
4 Limitations on liability of the Trustee. 71
APPENDIX J
CONCERNING THE TRUSTEE AND/OR THE MANAGER
Clause No: Page No:
1. Liability of Trustee and Manager. 73
1(A) Genuine reliance. 73
1(B) Legal obligation. 73
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1(D) Verification of signatures. 73
1(E) Acting upon resolutions. 73
1(F) Conduct of agents. 73
2(A) Advice from agents. 73
2(B) Discretion of Trustee and Manager. 73
2(C) Valuation of assets. 74
3. Dealings of Manager and Trustee. 74
3(A) Holdings of/dealings with Units. 74
3(B) Investments in property similar to property of Fund. 74
3(C) Transactions with certain entities. 74
3(D) Acting in relation to separate trusts. 74
3(E) Charging Fees and Commissions etc. 74
4(A) Reliance by Trustee on Manager. 74
4(B) Liability to make payments of Trustee. 75
4(C) Legal proceedings. 75
4(D) Indemnification. 75
4(E) Verification of valuation of Fund. 75
5(A) Manager to prepare cheques and warrants. 75
5(B) Liability of Manager. 75
5(C) Reliance by Manager on Trustee. 75
5(D) Books . 75
5(E) Investment advisors/Administrative Manager. 75
5(F) Reliance by Manager on pricing service. 76
6. Destruction of documents. 76
7. Indemnity of Manager. 76
8(A) Approval of Trustee regarding advertisements, circulars, etc.
8(B) Reference to Trustee in letters, circulars, etc. 77
9. Liability of Trustee. 77
APPENDIX K
RETIREMENT OR REMOVAL OF THE TRUSTEE OR THE MANAGER
Clause No: Page No:
1(A) Entitlement of Trustee to retire. 78
1(B) New Trustee. 78
1(C) Notice to Holders. 78
2(A) Removal of Manager by Trustee. 78
2(B) Retirement of Manager. 78
2(D) Notice to Holders. 79
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APPENDIX L
MEETINGS OF HOLDERS
Clause No: Page No:
1. Convening meeting. 80
2. Powers of meeting. 80
2(A) Change Deed. 80
2(B) Alter fees. 80
2(C) Termination of Trust or any Fund. 80
2(D) Approve Scheme of Reconstruction and Amalgamation.
80
3. Notice of meeting. 80
4. Quorum. 80
5. Adjournment of meeting. 81
6. Chairman. 81
7. Business at adjourned meeting. 81
8. Voting procedure for Extraordinary Resolution. 81
9. Poll. 81
10. Taking of poll. 81
11. Demand for a poll. 81
12. Voting rights. 81
13. No voting right in respect of a fraction of a Unit. 81
14. Joint Holders. 81
15. Voting by Holder. 81
16. Voting by a corporation. 81
17. Requirements for instrument of proxy. 82
18. Validity of instrument of proxy. 82
19. Form of instrument of proxy. 83
20. Vote given by proxy. 82
21. Voting by Trustee and Manager. 82
22. Minutes. 82
23. Meetings of Holders of different series. 82
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APPENDIX M FORM OF CERTIFICATE
APPENDIX N MARKET
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Equator Investment Programmes was constituted by a trust deed dated 1 July 2001. THIS AMENDED AND RESTATED TRUST DEED constituting Equator Investment Programmes replaces in its entirety the Trust Deed dated 14 September 2007 as amended by a First Supplemental Trust Deed dated 16 October 2008, a Second Supplemental Trust Deed dated 27 April 2009 and is made this 16 September 2009 BETWEEN:-
(1) RBS ASSET MANAGEMENT (DUBLIN) LIMITED whose registered office is at Guild House, Guild Street, International Financial Services Centre, Dublin 1 as Manager;
(2) BNY MELLON TRUST COMPANY (IRELAND) LIMITED having its registered office at Guild House, Guild Street, International Financial Services Centre, Dublin 1 as Trustee.
WITNESSETH as follows:-
INTERPRETATION
1. (A) Definitions EXCEPT where the context otherwise requires words and expressions used in this Deed shall have the respective meanings ascribed to them in, or (as the case may be) shall be construed in accordance with, the provisions of this clause.
"Accounting Date" means the date by reference to which the annual accounts of each of the Sub-Funds of the Trust shall be prepared and shall be such date (subject to Clause 6(E) hereof) in each year as set out in the Prospectus of the Trust or (in the case of the termination of the Trust or any Sub-Fund) the date on which the moneys required for the final distribution shall have been paid to the Holder in the relevant Sub-Fund or Sub-Funds.
"Accounting Period" means in relation to each Sub-Fund a period commencing on the Commencement Date for the relevant Sub-Fund or on the day following the expiry of the preceding Accounting Period (as the case may require) and ending on the next succeeding Accounting Date.
"Administrative Manager" means any person or company appointed by the Manager in accordance with the requirements of the Authority to carry out the day to day administration of the Trust and each Sub-Fund on its behalf.
"Auditors" means the accountant or accountants for the time being appointed as auditor or auditors of the Trust by the Manager pursuant to the provisions of Clause 6(A) hereof.
“Authority” means the Irish Financial Services Regulatory Authority.
"Base Currency" means in relation to each Sub-Fund such currency as the Manager may determine and set out in the Prospectus.
"Business Day" means in relation to each Sub-Fund, any day normally treated as a business day in Ireland or such other day as the Manager may, with the approval of the Trustee, specified in Prospectus.
"Certificate" means a certificate issued or to be issued in accordance with the provisions of this Deed;
"Close-Out" in relation to a transaction for a Sub-Fund, means the entry into a further transaction under which the obligation to deliver or receive which arises or may, at the option of the other party to the transaction, arise under the original transaction is offset by an equivalent and opposite obligation or right to receive or deliver.
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(a) any arrangement made for the purpose, or having the effect, of providing facilities for the participation by persons, as beneficiaries under a trust, in profits or income arising from the acquisition, holding, management or disposal of Investments or any other property whatsoever; and
(b) any other investment vehicle of a similar nature to that described in paragraph (a) of this definition (including, without limitation, any open-ended investment company, mutual fund or fonds commun de placement)
and, in relation to any such collective investment scheme, "unit" means any unit, share or other interest (however described) of similar nature in such collective investment scheme.
"Commencement Date" means in respect of each series of Units in a Sub-Fund the Business Day immediately following the last day of the Initial Period.
"Connected Person" in relation to any person ("the relevant person") means:-
(a) any person beneficially owning, directly or indirectly, twenty per cent, or more of the ordinary share capital of the relevant person or able to exercise, directly or indirectly, twenty per cent, or more of the total voting rights attributable to the voting share capital of the relevant person;
(b) any company controlled by any such person as is described in paragraph (a) above and for this purpose "control" of a company means:-
(i) control (either direct or indirect) of the composition of the board of directors of that company; or
(ii) control (either direct or indirect) of more than half the voting rights attributable to the voting share capital of that company; or
(iii) the holding (either directly or indirectly) of more than half of the issued share capital (excluding any part of it which confers no right to participate beyond a specified amount in a distribution of either profits or capital),
(c) any company twenty per cent or more in aggregate of whose ordinary share capital is beneficially owned, directly or indirectly, by the relevant person and any company twenty per cent or more in aggregate of the total votes attributable to the voting share capital of which can be exercised, directly or indirectly, by the relevant person; and (d) any director or other officer of the relevant person or of any company which is a
Connected Person of the relevant person pursuant to paragraph (a), (b) or (c) above.
"contract for differences" means a contract the purpose of which is to secure a profit or avoid a loss by reference to fluctuations in the value or price of property of any description or in an index or other factor designated for that purpose in the contract.
“Currency Unit Series” means a series of Units denominated in a currency other than the Base Currency of the relevant Sub-Fund.
"Dealing Day" means in respect of each Sub-Fund such Business Day or Business Days as the Manager may from time to time determine and specify in the Prospectus for the relevant Sub-Fund provided that there shall be at least two Dealing Days a month.
"Dealing Deadline" in relation to applications for subscription, realisation or conversion of Units in a Sub-Fund such day and time in such place as the Manager may (after consultation
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with the Trustee) from time to time determine and specify in the Prospectus for the relevant Sub-Fund.
“Dilution Levy” means in respect of a Sub-Fund, such percentage of the Net Asset Value per Unit as the Manager may determine to be retained by the relevant Sub-Fund on the issue, repurchase or conversion of Units to cover Fiscal and purchase charges and Fiscal and sales charges as the case may be as specified in the Prospectus for the relevant Sub-Fund.
“Directors” means the directors of the Manager for the time being and any duly constituted committee thereof.
"Distribution Account" means the Distribution Account referred to in paragraph 1(A) of Appendix G.
"Distribution Date" means in respect of each series of Units of a Sub-Fund where the Manager has determined to make a distribution, such date(s) (if any) as may be determined by the Manager, with the approval of the Trustee and specified in the Prospectus in respect of each Accounting Period during the continuance of the relevant series of Units of the relevant Sub-Fund but so that such date shall not be later than two months after the Accounting Date in respect of such Accounting Period.
"Efficient Portfolio Management Transaction" means any transaction permitted by paragraph 8(A) of Appendix H.
"Equalisation Payment" means the capital sum deemed by the Manager to represent the amount included in the Issue Price of any Unit issued by the Manager of net undistributed income of the relevant Sub-Fund accrued up to the date upon which such Unit is issued and in relation to a Unit of the same series sold by the Manager, a sum equivalent to the Equalisation Payment which would relate to a Unit issued by the Manager on the same date.
“Existing Programme” means the United Kingdom Equity Index Programme, the US Equity Index Programme, the Continental European Equity Index Programme, the Pacific Basin Equity Programme, the Swiss Equity Programme, the UK Sovereign Bond Index Programme, the Continental European Sovereign Bond Index Programme, the US Sovereign Bond Index Programme and the Swiss Franc Bond Programme.
"Extraordinary Resolution" means a resolution proposed as such at a meeting of Holders or, as the case may require Holders of Units in a Sub-Fund or a particular series of Units convened and held in accordance with the provisions of Appendix L and passed as such at such meeting by a majority consisting of 75 per cent. or more of the total number of votes cast for and against such resolution.
"Fiscal and purchase charges" or "Fiscal and sale charges" means all stamp and other duties, taxes, governmental charges, brokerage, bank charges, transfer fees, registration fees and other duties and charges whether in connection with the constitution of the relevant Sub-Fund or the increase of the relevant Sub-Fund or the creation, issue, sale, exchange or purchase of Units of the relevant Sub-Fund or the sale or purchase of Investments or otherwise which may have become or may be payable in respect of or prior to or upon the occasion of the transaction or dealing in respect of which such duties and charges are payable.
“Foreign Person” means a person who is neither resident nor ordinary resident in Ireland for tax purposes who has provided the Manager with the appropriate declaration under Schedule 2B TCA and the Manager is not in possession of any information that would reasonably suggest that the declaration is incorrect or has at any time been incorrect.
"Fund" means all (or if the context so requires that part referable to a Sub-Fund) of the assets for the time being and from time to time held or deemed to be held upon the trusts of
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this Deed but excluding any amount for the time being standing to the credit of the Distribution Account.
"futures contract" means any financial futures contract (including a share price index futures contract) or forward contract whether or not traded on an organised exchange.
“Hedged Currency Unit Series” means a Currency Unit Series in respect of which the relevant Sub-Fund will conduct currency hedging transactions the benefits and costs of which will accrue solely to Holders of Units of that series.
"Holder" means the person for the time being entered on the Register as the holder of a Unit including (where the context so admits) persons jointly so registered;
"Initial Period" means a period in respect of each series of Units in a Sub-Fund during which such Units are initially offered commencing on such date and ending on such date as the Manager may determine and specify in the Prospectus.
"Investment" means any share, stock, debenture, loan stock, warrant, bond, security, commercial paper, acceptance, trade bill, treasury bill, futures contract, contract for differences, certificate of deposit, when issued securities, instrument or note of, or issued by or under the guarantee of, any body, whether incorporated or unincorporated, or of any government or local government authority or supranational body, whether paying interest or dividends or not and whether involving liability or not, share or sub-unit of a share of a share trust scheme or collective investment scheme or similar scheme which is permitted under the Regulations and includes (notwithstanding and without prejudice to the generality of the foregoing):-
(a) any right, option (whether put or call) or other derivative instrument or other interest (howsoever described) in or in respect of any of the foregoing;
(b) any certificate of interest or participation in, temporary or interim certificate for, receipt for or warrant to subscribe or purchase any of the foregoing;
(c) any instrument commonly known or recognised as a security;
(d) any receipt or other certificate or document evidencing the deposit of a sum of money or any rights or interests arising under any such receipt, certificate or document; (e) any bill of exchange and any promissory note; and
(f) any participation as a partner or participant (in each case with limited liability) in any partnership or firm or other unincorporated association
Provided always that any such investment shall be permitted under the Regulations.
"Issue Price" means the price (excluding any Preliminary Charge or further amount which may be charged pursuant to the provisions of this Deed) per Unit at which Units are from time to time issued or to be issued, which price shall be ascertained in accordance with the provisions of paragraph 1(C) of Appendix B.
“Irish Person” means any person other than:-
(i) any non-Irish resident person who was a Holder on 1st April, 2000 or became a Holder on or before 30th September, 2000;
(ii) a Foreign Person;
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(iv) the Manager/Administrative Manager for so long as the Manager/Administrative Manager is a qualifying management company within the meaning of section 734 TCA;
(v) a specified company within the meaning of section 734 TCA;
(vi) an investment undertaking within the meaning of section 739(B)of the TCA;
(vii) an exempt approved scheme or a retirement annuity contract or trust scheme within the provisions of 774, 784 or 785 TCA;
(viii) a company carrying on life business within the meaning of section 706 TCA;
(ix) a special investment scheme within the meaning of section 737 TCA; (x) a unit trust to which section 731(5)(a) TCA applies;
(xi) a charity entitled to an exemption from income tax or corporation tax under section 207(1)(b) TCA;
(xii) a person entitled to exemption from income tax and capital gains tax under section 784A(2), Section 787I TCA or section 848E TCA and the units held are assets of an approved retirement fund, an approved minimum retirement fund, a special savings incentive account or a personal retirement savings account (as defined in Section 787A TCA);
(xiii) the Courts Service; (xiv) a Credit Union;
(xv) a company within the charge to corporation tax under Section 739G(2) TCA, but only where the fund is a money market fund; (xvi) a company within the charge to corporation tax under Section 110(2)
TCA;
(xvii) the National Pensions Reserve Fund Commission; and
(xviii) any other person as may be approved by the Manager from time to time provided such person does not result in a potential liability to tax arising to the Trust in respect of that Holder under Section 739 TCA; in respect of each of which the required declaration or return set out in Schedule 2B TCA evidencing such status is in the possession of the Manager or in the case of (i) above has been made to the Collector General, in each case on or before the appropriate date.
"Management Fee" means any sum to which the Manager may become entitled pursuant to the provisions of Clause 7(A) hereof and specified in the Prospectus for each Sub-Fund.
"Manager" means RBS Asset Management (Dublin) Limited or any other person or persons for the time being duly appointed manager of the Trust and each Sub-Fund in succession to the said RBS Asset Management (Dublin) Limited under the provisions of Appendix K.
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"Margin" means cash or other property paid, transferred or deposited under the terms of a margined contract.
"margined contract" means a contract rights under which constitute options, futures, contracts for differences or any other interest in Investments including other derivative instruments, being a contract the terms of which are such that property of a Sub-Fund will or may be required to be paid, transferred or deposited as security for the performance of an obligation to deliver or receive property which will or may arise under the contract whether at the option of the Manager or of the other party to the contract or otherwise and includes an option purchased for a Sub-Fund under which the total amount of premium which may be payable for the option is not payable on purchase but may be demanded before expiry of the option.
"Market" means the stock exchanges and other regulated markets listed in Appendix N as amended by supplemental deed from time to time (with the prior approval of the Authority).
"may" shall be construed as permissive.
"Minimum Holding" means such number of Units or Units having such value as the Manager in any particular case or generally may from time to time prescribe and specify in the relevant Sub-Fund and the Prospectus as the minimum holding of any Holder in any particular series of Units.
“Minimum Initial Subscription” means such number of Units or Units having such value as the Manager in any particular case or generally may from time to time prescribe and specify in the Prospectus as the minimum initial subscription of any Holder in any particular series of Units.
“Minimum Net Asset Value” means in respect of the Fund or the Fund of any Sub-Fund as the case may be, such value(s) as the Manager may determine and specify in each Sub-Fund and the Prospectus by reference to which the Manager may, in the circumstances described in Clause 8(D)(1), terminate the Trust or a Sub-Fund as the case may be.
"month" means calendar month.
"Net Asset Value" means the net asset value of the Fund or (as the context may require) of a Sub-Fund or of a Unit ascertained in accordance with the provisions of Appendix A.
“New Programmes” means the United Kingdom Specialist Equity Programme, the US Specialist Equity Programme, the Continental European Specialist Equity Programme, the United Kingdom Specialist Equity Income Programme, the US Dollar Liquidity (Distributing) Programme, the Sterling Liquidity (Distributing) Programme, the Euro Liquidity (Distributing) Programme, the Global Emerging Markets Equity Programme, the US Dollar High Yield Bond Programme, the Global Investment Grade Bond Programme, Global Specialist Equity Programme and the Japan Specialist Equity Programme and includes any additional Sub-Funds designated by the Manager from time to time with the consent of the Trustee.
"option" means any right to buy from or sell to the person who granted or created that right a specified quantity of the property the subject of such right at an agreed price on or before a specified date and includes an option linked to a securities index.
"Preliminary Charge" means the Preliminary Charge (or an amount equivalent thereto) referred to in paragraph 3 of Appendix B and specified in the Prospectus.
"premium" means in relation to an option the total amount which the purchaser of the option is or may be required to pay in consideration for the right to exercise the option.
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“Proper Instructions” means instructions given by the Manager to the Trustee in accordance with the provisions of paragraph 4(A) of Appendix J of this Trust Deed;
“Prospectus” means the prospectus issued from time to time by the Trust as may be amended, supplemented, consolidated, substituted or otherwise modified from time to time;
"qualified corporation" means a body corporate acceptable to the Authority as the trustee or (as the case may be) the manager of a unit trust authorised under the Regulations.
“Realisation Fee” means the Realisation Fee (or an amount equivalent thereto) referred to in paragraph 1(C) of Appendix F and specified in the Prospectus.
"Realisation Price" means the price per Unit at which Units are from time to time realised or to be realised, which price shall be ascertained in accordance with the provisions of paragraph 1(C) of Appendix F.
"Register" or Registers" means the register or registers of holders of Units referred to in Clause 3(D).
"Registration Number" means a number given to each Holder in respect of all of the Units registered in his name;
"Registrar" means the person or firm appointed by the Manager by whom the Register or Registers is for the time being and from time to time kept.
“Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 2003 (S.I. No 211 of 2003) as amended by the European Communities (Undertakings for Collective Investment in Transferable Securities) (Amendment) Regulations, 2003 (S.I. No 212 of 2003), the European Communities (Undertakings for Collective Investment in Transferable Securities) (Amendment) No. 2 Regulations, 2003 (S.I. No. 497 of 2003) and the European Communities (Undertakings for Collective Investment in Transferable Securities) (Amendment No. 3) Regulations, 2003 (S.I. No. 623 of 2003) as may be amended or supplemented from time to time.
"shall" shall be construed as obligatory.
“Specific Investment” means (a) any Investment in different investment grade transferable securities and/or liquid financial assets and money market instruments issued or guaranteed by any Member State, its local authorities, non-Member States or public international body of which one or more Member States are members; and (b) any Investment issued or guaranteed by any of the following:
OECD Governments European Investment Bank
European Bank of Reconstruction and Development International Finance Corporation
International Monetary Fund Euratom
The Asian Development Bank European Central Bank Council of Europe Eurofima
The European Coal & Steel Community African Development Bank
International Bank for Reconstruction and Development (The World Bank) The Inter American Development Bank
European Union
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Federal Home Loan Mortgage Corporation (Freddie Mac) Government National Mortgage Association (Ginnie Mae) Student Loan Marketing Association (Sallie Mae)
Federal Home Loan Bank Federal Farm Credit Bank Tennessee Valley Authority Export-Import Bank
Or such other entity as may be agreed by the Authority from time to time
provided that a Sub-Fund must hold securities from at least 6 different issues, with securities from any one issue not exceeding 30% of the net assets of the Sub-Fund.
“Settlement Date” in respect of a Sub-Fund the latest date by which monies for the issue of Units or realisation of Units must be received or paid as is specified in the Prospectus.
"Sub-Fund" means the sub-funds named in Clause 3 or any additional sub-funds designated by the Manager from time to time with the consent of the Trustee constituting that part of the Fund referable to any particular series or series of Units.
"Trust" means the trusts constituted by this Deed and called Equator Investment Programmes or, subject to paragraph 2(C) of Appendix K, such other name as the Trustee and the Manager may with the approval of the Authority from time to time determine.
"Trustee" means BNY Mellon Trust Company (Ireland) Limited or any other person or persons for the time being duly appointed trustee or trustees hereof in succession to the said Trustee under the provisions of Appendix K.
"Trustee Fee" means any sum to which the Trustee may become entitled pursuant to the provisions of Clause 7(A) and specified in the Prospectus.
“Unhedged Currency Unit Series” means a series of Units where typically, Units may be subscribed for and dividends calculated and paid and realisation proceeds paid in a currency other than the Base Currency of the relevant Sub-Fund on the basis of a currency conversion at the prevailing spot currency exchange rate of the relevant Base Currency of the relevant series of Unit.
"Unit or Units" means one undivided share in the property of a Sub-Fund and includes, where the context so permits, series of Units and Units of any series and includes any fraction of a Unit, which shall represent the corresponding fraction of an undivided share in the assets of a Sub-Fund.
"United States” means the United States of America, its territories, possessions and all areas subject to its jurisdiction (including the Commonwealth of Puerto Rico);
"United States Person" has the meaning given in Regulation S under the United States Securities Act of 1933, as amended.
"Valuation Point" means in respect of each Sub-Fund such point in time or times as the Manager may determine and specify in the relevant Sub-Fund and the Prospectus by reference to which the Net Asset Value is calculated for a Dealing Day.
"Value" in relation to any asset or liability means the value thereof determined in accordance with Appendix A.
"VAT" means value added tax.
"warrant" means any right to acquire any Investment at a pre-determined or ascertainable price on or before a future date by way of subscription of a fixed sum of money.
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"year" means calendar year.
References herein to "dollar", "cent" and the sign "$" refer to the currency of the United States of America, "Sterling", "pence" and the sign "£" refer to the currency of the United Kingdom of Great Britain and Northern Ireland, “Swiss Franc" and "SFr" refer to the currency of Switzerland, “Euro” refers to the currency of Ireland introduced at the start of the third stage of economic and monetary union pursuant to the Treaty establishing the European Union and "Yen" refers to the currency of Japan.
Words importing the singular number only shall include the plural and vice versa. Words importing any particular gender shall include any other gender.
Words importing persons shall include corporations.
The words "written" or "in writing" shall include printing, engraving, lithography, electronic writing or other means of visible reproduction or partly one and partly another.
Words and expressions defined in the Regulations shall have the same meanings in this Deed.
References to any statute or part thereof shall be deemed to be references to that statute as from time to time amended or re-enacted.
(B) References to "this Deed" References herein to "this Deed" and words of similar import shall mean this Deed and the appendices as from time to time amended by deed expressed to be supplemental to, and made pursuant to the provisions of, this Deed.
(C) References to Clauses, Appendices etc. Except where the context otherwise requires:- (1) references to Clauses and Appendices shall be construed as references to the
Clauses of, and the Appendices to, this Deed; and
(2) references to sub-clauses, paragraphs and sub-paragraphs shall be construed as references to the relevant sub-clause of the Clause, the relevant paragraph of the sub-clause or Appendix or (as the case may be) the relevant sub-paragraph of the paragraph in which such references appear.
(D) Headings The headings in this Deed are for convenience only and shall not affect the construction of this Deed.
CONSTITUTION OF THE TRUST
2. (A)
(i)Umbrella Fund The Trust is an umbrella unit trust comprising separate trusts known as Sub-Funds.
(ii) Constitution of Fund The Fund of each Sub-Fund (including those listed in clause 3(B) below) shall initially be constituted out of either (i) the proceeds of the issue of the first Units of the series to which the Sub-Fund relates or (ii) assets transferred to the relevant Sub-Fund pursuant to a circular approved by the Manager and the Trustee in respect of a reconstruction and amalgamation and shall thereafter be constituted out of the Investments, cash and other property held or received by or on behalf of the Trustee for the account of the relevant Sub-Fund but less any amount standing to the credit of the Distribution Account.
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(iii) The Fund of the Trust shall belong exclusively to the Trust. The Fund shall be segregated from the assets of either the Trustee or its agents or both and shall not be used to discharge directly or indirectly liabilities or claims against any other undertaking or entity and shall not be available for any such purpose;
(iv)The Fund shall belong exclusively to the relevant Sub-Fund and shall not be used to discharge directly or indirectly the liabilities of or claims against any other Sub-Fund and shall not be available for any such purpose;
(v) The liabilities of a Holder shall be limited to the amount agreed to be contributed by him or her for the subscription of Units. The provisions of the Trust Deed shall be binding on the Holders and all persons claiming through the Holders as if such persons had been party to the Trust Deed.
(B) Provisions relating to each Sub-Fund The Trustee shall establish a Sub-Fund for each series or series of Units as the case may be in issue from time to time and the following provisions shall apply thereto:-
(1) the records and accounts of each Sub-Fund shall be maintained separately in the Base Currency;
(2) the proceeds from the issue of each series of Units (excluding the Preliminary Charge, shall be applied in the records and accounts of the Sub-Fund established for that series of Unit and the assets and liabilities and income and expenditure attributable thereto shall be applied to such Sub-Fund subject to the provisions of this Deed;
(3) where any asset is derived from any other asset (whether cash or otherwise), such derivative asset shall be applied in the records and accounts of the same Sub-Fund as the asset from which it was derived and on each re-valuation of an Investment the increase or diminution in value shall be applied to the relevant Sub-Fund;
(4) in the case of any asset of the Trust (or amount treated as a notional asset) which the Trustee does not consider as attributable to a particular Sub-Fund or Sub-Funds, the Trustee shall have discretion, subject to the approval of the Manager, to determine the basis upon which any such asset shall be allocated between Sub-Funds (including conditions as to the subsequent re-allocation thereof if circumstances so permit) and the Trustee shall have the power at any time and from time to time, subject to the approval of the Manager, to vary such basis provided that the approval of the Manager shall not be required in any case where the asset is allocated between all Sub-Funds pro rata to their Net Asset Values at the time when the allocation is made;
(5) each Sub-Fund shall be charged with the liabilities, expenses, costs, charges or reserves in respect of or attributable to that Sub-Fund. In the case of any liability of the Trust (or amount treated as a notional liability) which the Trustee does not consider as attributable to a particular Sub-Fund or Sub-Funds, the Trustee shall have discretion, subject to the approval of the Manager to determine the basis upon which any liability shall be allocated between Sub-Funds (including conditions as to the subsequent re-allocation thereof if circumstances so permit) and shall have power at any time and from time to time, subject to the approval of the Manager, to vary such basis, provided that the approval of the Manager shall not be required in any case where a liability is allocated between all the underlying Sub-Funds pro rata to their Net Asset Values at the time when the allocation is made;
(6) subject to the approval of the Manager, the Trustee may transfer any assets (or amounts treated as notional assets) to and from Sub-Funds if, as a result of a creditor
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proceeding against certain of the assets of the Trust or otherwise, a liability would be borne in a different manner from that in which it would have been borne under paragraph (5) above or in any similar circumstances; and
(7) subject to paragraph (6) above, the assets of each Sub-Fund shall belong exclusively to that Sub-Fund, shall be segregated from the assets of other Sub-Funds, shall not be used to discharge directly or indirectly the liabilities of or claims against any other Sub-Fund and shall not be available for any such purpose.
(C) Declaration of Trust The Trustee shall be responsible for the safe keeping of the Fund in accordance with the provisions of this Deed and shall stand possessed of the Fund of each Sub-Fund upon trust exclusively for the Holders of the Units of the series or series as the case may be to which such Sub-Fund relates pari passu and, with effect from the Commencement Date of a Sub-Fund any moneys forming part of the Fund of the relevant Sub-Fund shall from time to time be invested at the direction of the Manager (which shall act exclusively in the interests of Holders) in accordance with the provisions of this Deed.
(D) Binding nature of terms and conditions The terms and conditions of this Deed shall be binding on each Holder and all persons claiming through him as if he had been a party thereto.
(E) Copies of Trust Deed A copy of this Deed shall be made available for inspection at the principal offices in Dublin of the Trustee and of the Manager at all times during usual business hours and shall be supplied by the Manager and the Trustee to any person on application at such charge as the Manager or (as the case may be) the Trustee may from time to time determine.
(F) Additional liability of Holder Except to the extent expressly provided in this Deed or in the terms of application for any Units, no Holder shall incur or assume any liability or be required to make any payment to the Trustee or the Manager in respect of the Units held by him.
(G) Regul ations The Regulations are binding on the Manager and the Trustee and each shall observe them in carrying out its obligations under this Deed.
UNITS AND HOLDERS
3. (A) Interest of Holder The interest in any Sub-Fund of each Holder shall be represented by the Units of the series referable to that Sub-Fund for the time being held by such Holder and no Holder shall be entitled to any interest or share in any particular part of any Sub-Fund. (B) Issue of Units by Manager The Manager and/or any person appointed by the Manager for such purpose shall have the exclusive right to effect for the account of the relevant Sub-Fund the issue of Units (including fractions of not less than one-thousandth of a Unit) in the following Sub-Funds:
Continental European Equity Index Programme
Continental European Sovereign Bond Index Programme Continental European Specialist Equity Programme Euro Liquidity (Distributing) Programme
Global Emerging Markets Equity Programme Global Investment Grade Bond Programme Global Specialist Equity Programme
Japan Specialist Equity Programme Pacific Basin Equity Programme
Sterling Liquidity (Distributing) Programme Swiss Equity Programme
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UK Sovereign Bond Index Programme United Kingdom Equity Index Programme
United Kingdom Specialist Equity Income Programme United Kingdom Specialist Equity Programme
US Dollar High Yield Bond Programme US Dollar Liquidity (Distributing) Programme US Equity Index Programme
US Sovereign Bond Index Programme US Specialist Equity Programme
and such other series or series of Units in any of the existing Funds or such other Sub-Funds as the Manager with the approval of the Trustee and the approval of the Authority may determine to be appropriate, subject to and in accordance with the provisions of Appendix B and for such purpose to accept subscription moneys and/or Investments for the account of the relevant Sub-Fund PROVIDED THAT the Manager shall before the initial issue of Units in a Fund, in consultation with the Trustee, have published a supplement for that Sub-Fund. Each Sub-Fund shall be given a name by the Manager and all Units in such Sub-Fund shall be identified by such name. The Manager shall have an absolute discretion to accept or reject in whole or in part any application for Units. The Manager may at its absolute discretion at any time within a Sub-Fund designate Units as Units of two or more series which may have different Management Fees and other features. Where the Manager so designates the Net Asset Value of the series of Units and the distributions payable in respect of such series may be adjusted to reflect the different features. Where a series of Units is denominated in a currency other than the Base Currency of the relevant Sub-Fund the Directors shall at the time of creation of such series determine if such series of Units shall be constituted as a Hedged Currency Unit Series or an Unhedged Currency Unit Series. Notwithstanding anything contained in this Deed, the costs and gains/losses of any hedging transactions relating to a Hedged Currency Unit Series shall accrue solely to the Holders of Units in such series and shall not form part of the assets of the relevant Sub-Fund or constitute a liability of the relevant Sub-Fund. Any currency hedging transaction relating to a Hedged Currency Unit Series shall be valued in accordance with the provisions of paragraph (2)(B) and (C) of Appendix A. The different features of each such series will be set out for each Sub-Fund in the Prospectus.
(C) Register of Holders A register of holders of Units of each Sub-Fund shall be kept by or under the supervision of the Manager in a form and manner approved by the Trustee and otherwise in accordance with the provisions of Appendix C.
(D) Power to issue Certificates, bearer securities or Registration Numbers The Manager and the Trustee may issue Certificates or bearer securities in respect of Units, or alternatively, the Manager may issue written confirmations of entries in the Register. A Registration Number shall be assigned to each Holder in respect of any Units for which he has received a written confirmation as aforesaid. The issue of bearer securities may be limited by the Manager to certain countries or categories of Holders.
(E) Issue of Certificates No Certificate shall be issued in respect of any Unit unless and until the Manager or its agents has received from the relevant Holder a request in writing for the issue of one or more Certificates in respect of his Units. Special procedures may apply in connection with purchases effected through banks or financial institutions as from time to time agreed between the Manager and such bank or institution. Certificates shall be prepared, issued, exchanged and/or replaced subject to and in accordance with the provisions of Appendix D, but so that in the event of Units being held jointly by several persons delivery of a Certificate to one of such persons shall be sufficient delivery to all and, subject to such provisions, none of such persons shall be entitled to a second Certificate in respect of any such Units.
(F) Recognition of Interest The Holder shall be the only person to be recognised by the Trustee or by the Manager as having any right, title or interest in or to Units registered in his
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name and the Trustee and the Manager may recognise such Holder as the absolute owner thereof and shall not be bound by any notice to the contrary and shall not be bound to take notice of or to see to the execution of any trust or, same as herein expressly provided or save as by some court of competent jurisdiction ordered, or recognise any trust or equity or other interest effecting the title to any Units.
(G) Realisation of Units by Holder Each Holder (other than the Manager) shall, subject to and in accordance with the provisions of Appendix F, be entitled on a Dealing Day of the relevant Sub-Fund to realise all or some of the Units held by him in the relevant Sub-Fund and any such realisation shall (subject as aforesaid) be effected (at the absolute discretion of the Manager) on the relevant Dealing Day:-
(1) by the purchase by the Manager of the relevant Units at a price not lower than the Realisation Price less any sum charged pursuant to the provisions of Appendix F, applicable to Units of the relevant series on such Dealing Day; or
(2) by the cancellation of the relevant Units and the payment out of the relevant Sub-Fund of the Realisation Price less any sum charged pursuant to the provisions of Appendix F, applicable on such Dealing Day; or
(3) partly in one manner and partly in the other.
(H) Receipt for moneys payable A receipt signed or purporting to be signed by the Holder for any moneys payable in respect of Units shall be a good discharge to the Trustee and the Manager and, if several persons are registered as joint Holders (or in consequence of the death of a Holder are entitled to be registered as joint Holders), any one of them may give an effectual receipt for any such moneys.
(I) Sub-division of Units The Manager may at any time or times with the approval of the Trustee and upon the Manager or the Trustee giving to each Holder not less than twenty-one days' previous notice determine that each Unit in any one or more series in a Sub-Fund shall be sub-divided into two or more Units, whereupon each Unit shall stand sub-divided accordingly. The Trustee shall thereupon either require each Holder concerned (who shall be bound accordingly) to deliver up his Certificate (if any) for endorsement or enfacement with the number of Units thereby represented as a result of such sub-division or (but only where the Units which have been sub-divided are Units in respect of which a Certificate is then in issue) send or cause to be sent to each such Holder at his risk a Certificate or Certificates representing the number of additional Units to which he is entitled by reason of the sub-division.
(J) Manager deemed Holder of Units The Manager shall be treated for all the purposes of this Deed as the Holder of each Unit during such times as there shall be no other person registered or entitled to be registered as the Holder and shall be entitled to receive any distribution in respect of Units to which it is entitled or deemed to be entitled.
(K) Qualified Holders and compulsory transfer or realisation The Manager shall have power (but shall be under no obligation) to impose such restrictions and/or require the production of such evidence (including the giving of appropriate undertakings) as it may think necessary for the purpose of ensuring that no Units are acquired or held directly or beneficially by:-
(a) any individual under the age of majority under the legislation of his country of usual residence (or such other age as the Manager may think fit);
(b) any person or persons in circumstances (whether directly or indirectly affecting such person or persons and whether taken alone or in conjunction with any other persons, connected or not, or any other circumstances appearing to the Manager to be relevant) which, in the opinion of the Manager, might result in the Manager, the Trustee, the Trust or any Sub-Fund incurring any liability to taxation or suffering any
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other pecuniary disadvantage which the Manager, the Trustee, the Trust or any Sub-Fund might not otherwise have incurred, suffered or suffered;
(c) any person who appears to be in breach of any law or requirement of any country or governmental authority or by virtue of which such person is not qualified to hold Units; (d) to the extent not approved by the Manager, any United States Person,
(e) in respect of a Sub-Fund denominated in Yen a resident of Japan including any corporation or other entity organised under the laws of Japan, who has not been approved by the Manager;
and the following provisions shall apply:-
(1) if it shall come to the notice of the Manager that any Units are owned directly or beneficially by any person in contravention of any such restrictions as are referred to above in this sub-clause ("the Restrictions") or if any evidence or undertaking requested by the Manager is not produced in a form which is, in the absolute discretion of the Manager, satisfactory within 30 days of such request, the Manager may give notice to such person requiring him to transfer such Units to a person who would not thereby be in contravention of any of the Restrictions or may give a request in writing for the realisation of such Units in accordance with the provisions of Appendix F. If any person upon whom such a notice is served pursuant to this sub-clause does not within 30 days after such notice transfer his Units as aforesaid or establish to the satisfaction of the Manager (whose judgement shall be final and binding) that the Units are not held in contravention of any of the Restrictions, he shall be deemed upon the expiration of 30 days to have given a request in writing for the realisation of all his Units pursuant to the provisions of Appendix F, whereupon he shall be bound forthwith to deliver to the Manager or its duly authorised agent the Certificate or Certificates for his Units (if a Certificate or Certificates has been issued in respect of such Units) and the Manager shall be entitled to appoint any person to sign on his behalf such documents as may be required for the purpose of the realisation of the said Units;
(2) a person who becomes aware that he is holding or owning Units in contravention of any of the Restrictions shall forthwith, unless he has already received a notice pursuant to paragraph (1), either transfer all his Units to a person who would not thereby be in contravention of any of the Restrictions or give a request in writing for the realisation of all his Units pursuant to the provisions of Appendix F. If a Certificate has been issued in respect of any of such Units, such request shall be accompanied by such Certificate;
(3) payment of the realisation moneys payable in respect of the realisation of any such Units will (subject to any requisite exchange control or other governmental consents first having been obtained by the Manager and subject to the provisions of paragraph(5) below) be made in the Base Currency of the relevant Sub-Fund or such other currency as the Manager may determine and will be held by the Trustee for payment to the person who was the Holder of such Units against surrender of the Certificate or Certificates representing the Units previously held by such person (if any such Certificate or Certificates has been issued) and such person shall have no further interest in such Units or any of them or any claim against the Manager or the Trustee in respect thereof except the right to receive the moneys so held (without interest) from the Trustee upon surrender of the said Certificate or Certificates; (4) the exercise by the Manager of the powers conferred by this sub-clause shall not be
questioned or invalidated in any case on the ground that there was insufficient evidence of ownership of Units by any person or that the true ownership of any Units
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was otherwise than appeared to the Manager at the relevant date, provided that the said powers shall have been exercised in good faith.
(5) notwithstanding any other provisions of this Deed, where the Manager on behalf of a Sub-Fund is required to pay tax on the transfer of Units of the Sub-Fund by a Holder who is or is deemed to be an Irish Person or is acting on behalf of such a person, the Manager shall be entitled to repurchase and cancel a sufficient portion of the Holder’s Units in the Sub-Fund and to appropriate the proceeds thereof as necessary to discharge the amount of taxation payable in respect of the transfer or the relevant chargeable event.
(L) Distributions Subject to the provisions contained in the Prospectus, the amount available for distribution shall be such amount as appears to the Manager to be justified by the profits of the relevant Sub-Fund being: (i) the accumulated revenue (consisting of all revenue accrued including interest and dividends); and/or (ii) realised and unrealised capital gains on the disposal/valuation of Investments and other funds less realised and unrealised accumulated capital losses of the relevant Sub-Fund and the provisions of Appendix G shall apply.
CANCELLATION OF UNITS BY MANAGER
4. (A) Power of Manager to effect reductions of the Trust SUBJECT as mentioned in sub-clause (C), the Manager shall have the right on a Dealing Day of the relevant Sub-Fund, by notice in writing delivered to the Trustee, to effect reductions of a Sub-Fund by the surrender of Certificates to the Trustee for cancellation of some or all of the Units of the Sub-Fund represented thereby or by requiring the Trustee to cancel Units of which it is or is treated as the Holder and in respect of which no Certificate is outstanding. Such notice shall state the number of Units to be cancelled and the Dealing Day on which such calculations are to be effected. Before exercising such right it shall be the duty of the Manager to ensure that the Fund or the relevant Sub-Fund includes (or will upon the completion of the sale of Investments or other property agreed to be sold include) cash sufficient to pay the amount payable to the Manager upon such reduction. In respect of each Unit so cancelled the Manager shall be entitled to receive out of the Fund of the relevant Sub-Fund the Realisation Price per Unit applicable to the realisation of Units of the relevant series on the Dealing Day specified by the Manager in the notice referred to above.
(B) Payment to the Manager Any amount payable to the Manager under sub-clause (A) shall be payable as soon as practicable against surrender to the Trustee of the Certificates (if any) to be cancelled or against delivery to the Trustee of particulars of the Units to be cancelled in respect of which no Certificate is outstanding. Upon such payment and surrender the Units in question shall be deemed to have been cancelled and withdrawn from issue.
(C) Suspension of power to require cancellation The right of the Manager to require the cancellation of any Unit shall be suspended during any period when the right of Holders to require the realisation of Units is suspended pursuant to paragraph 6 of Appendix F or when the number of Units that can be realised by any Holder is limited pursuant to paragraph 7 of Appendix F.
(D) Verification of amount payable to Manager Subject to paragraph 1 of Appendix I, the Trustee shall be under no obligation to check the calculation of the amount payable to the Manager in respect of the cancellation of Units on any Dealing Day but shall be entitled if it so desires to require the Manager to justify the same at any time before audited accounts of the Trust or the relevant Sub-Fund have been prepared for any period which includes such Dealing Day.
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5. Power of Trustee to borrow SUBJECT to the Regulations and any additional restrictions contained in a Prospectus (as from time to time in effect) the Trustee may at any time at the request of the Manager concur with the Manager in making and varying arrangements for the borrowing by the Trustee for the account of any Sub-Fund in any currency. For the purposes of or in connection with any such borrowing the following provisions shall apply:-
(A) Permitted lenders/rate of interest The borrowing may be effected subject to the provisions of the Central Bank Acts, 1942 to 1998 as amended by the Central Bank and Financial Services Authority Act 2003, as amended from any person approved by the Manager including, if a banker, the Manager, the Trustee, the Administrative Manager, any investment adviser appointed by the Manager or any Connected Person of any of them, provided that, in the case of any borrowing effected from the Manager, the Trustee, the Administrative Manager, any investment adviser appointed by the Manager or any Connected Person of any of them (a "relevant lender") the rate of interest on that borrowing and any fee or premium payable to the relevant lender in relation to the arrangement, repayment or termination of the borrowing are not higher than the relevant lender would, in accordance with normal banking practice, charge on an arm's length basis for a loan of a similar size and duration in circumstances similar to those then prevailing in relation to the relevant Sub-Fund. (B) Deposits with lenders in connection with borrowings The Trustee may in pursuance
of any borrowing arrangements place on deposit with the lender or any nominee of the lender an amount out of the relevant Sub-Fund which the Trustee considers to be equivalent to the amount borrowed upon terms providing for the repayment of the deposit at the same time or times (and, if more than once, so that on each occasion the proportion which the deposit bears to the loan is maintained) as the borrowing is repayable. In the event of fluctuations in the rates of exchange whereby the said deposit falls below the amount borrowed the Trustee shall not be bound immediately to effect an increase in the amount maintained on deposit as aforesaid but shall effect the requisite increase as expeditiously as seems to the Trustee to be reasonable. For the purposes of determining for the purpose of any provision of this Deed the principal amount of all borrowings for the account of any Sub-Fund, (i) what would otherwise constitute borrowings for the account of the relevant Sub-Fund shall be reduced by any amount for the time being so deposited with any lender or its nominee and (ii) any amount borrowed from any particular lender shall be reduced by any balance standing to the credit of any account of the relevant Sub-Fund (or the Trustee for the account of the Sub-Fund) with such lender.
(C) Deposits in connection with borrowings Whilst any borrowings subsist the Trustee may from time to time and at any time in its absolute discretion require such amount as it may determine to be maintained either on short-term deposit in any manner authorised by this Deed or on deposit as hereinbefore provided or partly one and partly the other, provided that the Trustee may not require there to be so maintained on deposit an amount exceeding the aggregate amount of all borrowings for the account of the relevant Sub-Fund for the time being outstanding.
(D) Borrowings repayable on termination of the relevant Sub-Fund or of the Trust Every borrowing shall be made upon the terms that the borrowing shall become repayable in the event of the termination of the Trust or the relevant Sub-Fund.
(E) Expenses of borrowing Any interest on any borrowing effected under this Clause, any expenses incurred in negotiating, entering into, varying and carrying into effect with or without variation and in terminating the borrowing arrangements shall be payable out of the Fund of the relevant Sub-Fund.
(F) Security for borrowings For the purposes of securing any borrowing and interest and expenses thereon the Trustee shall be entitled with the concurrence of the Manager
