THIS DEED is made the 11th day of December 2001
BETWEEN
(1) BERKELEY INTERNATIONAL CAPITAL LIMITED a company incorporated in Guernsey
and whose registered office is Coutts House, Le Truchot, St Peter Port
Guernsey (formerly "BG Services Limited") (the "Settlor"); and
(2) A.L.O.T TRUSTEE LIMITED a company incorporated in Jersey whose registered
office is at Whiteley Chambers, Don Street, St Helier, Jersey, JE4 9WG
(the "Trustee").
SUPPLEMENTAL to a settlement made between the Settlor and the Trustee dated 23
May 1997 (the "Settlement").
WHEREAS:
(A) The Trustee is the present Trustee of the Settlement.
(B) By clause 22.1 of the Settlement the Settlor has power from time to time
during the Trust Period with the written consent of the Trustee and by
instrument or instruments in writing to revoke alter or amend all or any
of the trust powers or provisions of the Settlement.
(C) The Settlor is desirous of exercising the power referred to in B above in
such manner as hereinafter appears.
(D) The Trustee has consented to the exercise of the Settlor's power as set
out in B above and has evidenced such consent by signing as a party
hereto.
(E) Clause 22.3 of the Settlement permits amendments to the Settlement
providing the Trust Fund cannot be used other than for the benefit of the
Beneficiaries or a subsidiary of the Company.
(F) Due to an increase in the value of the Shares in the Company held by the
Trustee on behalf of the Settlement, in the exercise of its power under
the Settlement the Trustee after repayment to the Settlor of US$
1,778,012.50 outstanding under a loan from the
Settlor, is desirous of appointing the sum of US$ 1,000,000 to the Settlor
(which is a subsidiary of the Company) in consideration for the covenants
and indemnity below and on the basis the Settlor shall in future
contribute additional funds to the Settlement.
(G) Where the context permits words and phrases used herein should bear the
same meaning as in the Settlement.
NOW THIS DEED WITNESSETH as follows:-
1. That in exercise of the power conferred upon it by clause 22.1 of the
Settlement the Settlor with the consent of the Trustee HEREBY DECLARES
that the Settlement should henceforth be read and construed as if the
provisions specified in the Schedule hereto were expressly incorporated
into the Settlement.
2. That pursuant to Clause 27 of the Settlement (incorporated by virtue of
Clause 1 above) the Trustee hereby appoints out of the Trust Fund the sum
of US$ 1,000,000 absolutely to the Settlor.
3. Pursuant to the appointment at Clause 2 above, the Settlor hereby
releases, covenants and undertakes on the behalf of itself and its
Successors to indemnify keep indemnified and hold harmless the Trustee its
Successors Assigns and Officers Employees and their respective heirs
assigns personal representatives and estates from and against all actions
claims cost demands loss damage or other liability of any kind whatsoever
and wheresoever arising directly or indirectly out of or in connection
with such appointment.
4. The indemnity referred at Clause 3 above shall be governed by the laws of
Jersey and the Settlor hereby irrevocably submits to the non exclusive
jurisdiction of the courts of Jersey.
IN WITNESS WHEREOF this Deed has been executed by the parties the day and year
first above written.
THE SCHEDULE
1. Clause 2.1 of the Settlement shall be deleted in its entirety and the
following new clause 2.1 substituted in its place:-
"the Trustee shall during the Trust Period stand possessed of the Trust
Fund upon the trusts hereof for all or any one or more exclusively of the
Beneficiaries and subject to such power and provisions as the Trustee may
in its absolute discretion during the Trust Period by deed or deeds
revocable or irrevocable appoint PROVIDED ALWAYS that no exercise of this
power shall invalidate any prior payment or application of all or any part
or parts of the capital or income of the Trust Fund made under any other
power or powers conferred by this Settlement or by law."
2. The following clause be added as a new Clause 27 to the Settlement and the
existing Clauses 27 and 28 be renumbered 28 and 29 respectively:-
"The Trustee shall during the Trust Period have power to appoint as it
shall in its absolute discretion think fit all or any part or parts of the
capital or income of the Trust Fund to a subsidiary of the Company (as
defined in Article 2 of the Companies (Jersey) Law 1991 as amended),
including the Settlor."
The COMMON SEAL of )
BERKELEY INTERNATIONAL
CAPITAL LIMITED )
was hereunto affixed in the presence of:-
/s/ R W GREEN
Director
For LONDON PACIFIC SECRETARIES LIMITED
/s/ R W GREEN
Secretary
The COMMON SEAL of )
A.L.O.T TRUSTEE LIMITED )
was hereunto affixed in the presence of:-
/s/ C A C CHAPLIN
Director
/s/ R W GREEN
Director