Kingsley Hall 's
PROPOSED DRAFT
We are still operating as KS Hall/dba Elma Theater Building
home of the non-profit Elma Children's Theater Assn
Until if and when this document is made official
hopefully by May 1st 2011
which will be the 20th anniversary of the purchase of the theater building by K. S. Hall
This Agreement made as of the first day of May, 2011 by and between Kingsley Hall Jr., (hereafter referred to as the "Donor") and _________ Bank, (hereafter referred to as the "Financial Trustee") and Connie Bevington (hereafter referred to as the next ,after Donor's death, Artistic Director/Theater & Properties Managing Trustee).
WITNESSETH:
Whereas, the Donor intends to hereby create and establish a charitable trust for the exclusive purposes hereinafter set forth; and
Whereas, the Donor intends to hereby provide that such charitable trust shall always exist and be operated for the exclusive purposes hereinafter set forth; and
Whereas, the Donor intends to provide hereby that all donations to and all income of such charitable trust shall always be received, held and administered for the exclusive purposes hereinafter set forth;
Now, therefore, for the purpose of carrying out and giving effect to the above-stated intentions of the Donor, and also for the purpose of prescribing the terms and conditions upon which all donations to and all income of the charitable trust are to be held and administered and distributed for the exclusive purposes for which the charitable trust is created and for which the charitable trust is to be operated, and also for the purpose of defining the powers and duties of the Trustees, and also for such other purposes as may be required by law, the Donor and the Trustees do hereby covenant and agree as follows:
1. Creation of the Trust. The Donor hereby creates and establishes a charitable trust (hereinafter referred to as the "trust") for the exclusive purposes hereinafter set forth; and the Financial Trustee hereby accepts the trust and agrees to act as trustee of and under the trust in accordance with the terms and conditions hereinafter set forth.
2. Name of the Trust. The trust hereby created and established shall be known and designated as The Elma Theater Building's Friends Foundation.
3. The Committee. It is the intent of the Donor to provide herein for a self-perpetuating Committee which shall consist at all times of not less than three individuals.
The original members of the Committee shall be the Donor, and Rex Valentine, and Tom Rose, and William Bilsland.
Assuming they might accept their appointment
At any time and times during his lifetime the Donor shall have the right, without the consent of the other then members of the Committee, (1) to appoint a new member in addition to the other then members of the Committee, and (2) to appoint a new member to fill any vacancy in the Committee, and (3) to discharge any member of the Committee and (4) to discharge and appoint a new next (after the Donor's death) Artistic Director/Theater & Properties Managing Trustee.
At any time and times a majority of the then members of the Committee shall have the right (1) to appoint a new member in addition to the other then members of the Committee, and (2) to appoint a new member to fill any vacancy in the Committee, and (3) to discharge any member of the Committee. and (4) appoint or discharge a new Artistic Director/Theater & Properties Managing Trustee if and when the next (after the Donor's death) resigns and thereafter. However, the Donor must consent to any such appointments or discharges made during the lifetime of the Donor.
Regardless of the existence of any vacancy, the Committee may act so long as there shall be in office at least three members. If at any time and for any reason or no reason the Committee consists of less than three members for a period of thirty days, the Financial Trustee shall appoint a new member or members to fill the vacancy or vacancies so that the Committee shall consist of three members, and such appointment or appointments by the Financial Trustee may be made without the consent of either the Donor or any other then member of the Committee.
If a member of the Committee is discharged, he or she shall not be entitled to ask for or receive any reason for his or her discharge or any prior notice of his or her discharge.
The Committee shall have the specific powers hereinafter granted and shall also have all other powers necessary or advisable to carry out the purposes of the trust.
On all matters and questions a decision of the majority of the then members of the Committee shall govern and control, except as otherwise expressly provided herein to the contrary.
If any written instrument is required to be signed or if any action is required to be taken by the Committee, such written instrument may be signed and such action may be taken on behalf of the Committee by any person or persons authorized by all members of the Committee to sign such written instrument or to take such action on its behalf. Any such authorized person need not be a member of the Committee.
No bond or other security shall be required of any member of the Committee. No fee or other compensation shall be paid to any member of the Committee for his services as such member.
The Committee may use the name of Elma Theater Building's Friends Foundation Committee, or any other name which the Committee may elect to use at any time or times.
4. Donations to the Trust. Donations to the trust may be made by the Donor. It is the expressed intention of The Donor to make such donations from time to time or by his last will & testament.
Donations to the trust may also be made by any person or party other than the Donor, but expressly subject to the condition that either the Committee, Financial Trustee or Artistic Director/Theater & Property Managing Trustee may refuse to accept as a donation from any such other person or party any item of property of a type which they, in either of their individual sole and uncontrolled discretion, deem inadvisable or improper to accept.
Each donation to the trust shall be made by paying or transferring or otherwise delivering to the Trustees the item or items of property representing such donation.
Any donation to the trust may be in the form of cash, or in the form of any type of check or any type of other instrument for the payment of money, or may be in the form of any type of securities or other property.
5. Trust Fund. The Trustees shall receive each donation paid or transferred or otherwise delivered to the Trustees by the Donor and by any person or party other than the Donor, subject only to the condition expressed in the second full paragraph of Article 4 above.
All such donations so received by the Trustees, together with all income there from and thereon, is hereinafter referred to as the "trust fund".
The Trustees shall receive, hold, manage and administer the trust fund for the exclusive purposes hereinafter set forth and in accordance with the terms and conditions hereinafter prescribed.
THE FOLLOWING PARAGRAPHS IN #6 & # 14 ARE STILL VERY MUCH UNDER CONSTRUCTION
6. Exclusive Purposes of Trust and Trust Fund. The trust fund (other than such part as may be required to pay taxes and administration expenses) shall exist and shall be held, administered and distributed exclusively for the operation, maintenance and improvement of the Elma Theater Building (113 N. 4th Street, Elma, Washington USA) and other properties owned, leased, or borrowed by the trust including some to or from funds as budgeted by The Committee after the Donor's death for or from venues (some profitable and some not) as directed by or booked in by the Donor/Artistic Director/Theater & Property Managing Trustee during his lifetime or by the singular subsequent Artistic Director/Theater & Property Managing Trustee appointed by The Committee after the Donors death. Except that Connie Bevington shall serve as the first (after the death of the Donor) Artistic Director/Theater & Properties Managing Trustee as long as she desires. As such she may or may not elect to continue to reside in whatever buildings or parts of buildings she chooses that are owned by the trust as long as she chooses to serve in this capacity as a part of her compensation.
The Elma Children's Theater Assn (A non-profit organization originally incorporated by The Donor in 1991 or as the same organization requiring reinstatement with The Washington State Secretary of State) may petition The Committee for funds for the continuation of the granting of their traditional financial scholarships or awards to students upon graduation from any high school in The United States but, only to those students that have performed in or assisted with venues produced by any entities in The Elma Theater Building. The Board of Directors of The Elma Children's Theater Assn. will determine the recipients after advise of either their Artistic Director from their funds or if they don't The Committee may make the determinations and issue such grants directly from the trust as advised by The Elma Theater Artistic Director/Theater & Properties Manager Trustee.
Should the Elma Theater Building be determined no longer functional or repairable enough to be still functional as a performing arts or other media facility or should the Committee and trustees under similar circumstances determine the trust could better serve preservation of Southwest Washington performing arts by assistance to an effort by either Washington State, Grays Harbor County or City of Elma to build a new facility for the same purpose the Exclusive Purposes of this Trust may be diverted to so allow.
No part of the net earnings of the trust fund shall inure to the benefit of any private shareholder or individual; and no part of the activities of the trust fund shall consist of carrying on propaganda, or otherwise attempting to influence legislation or the election of public officials.
It is the expressed intention of the Donor that at all times the trust and the trust fund shall be tax exempt, and that at all times all donations to the trust and trust fund shall be deductible from taxable income of the donating party to the extent allowed by law.
7. Payments from the Trust Fund. Except only as herein expressly provided to the contrary, the Trustees shall make payments of and from the trust fund only upon and in accordance with the written directions of the Committee, and only in such manner and at such times and in such amounts and to such persons or parties as may be specified in such written directions of the Committee.
Allocated budget descriptions and amounts approved by The Committee should be general enough so as to not micro-manage the artistic efforts of The Artistic Director/Theater& Properties Manager. Particularly all those individual related efforts to attempt to or not to; produce shows, direct shows, or rent performing spaces to performers, book in shows for fees, retain individuals or groups for all or parts of venues (which often may or may not eventually happen, or may or may not be profitable) are solely at The Artistic Director/Theater & Properties Manager's discretion without regard to any other person or entities censorship unless legally directed by the government or any insurance risk manager appointed by The Committee for public safety concerns.
8. Administrative Powers. The Financial Trustee shall have the following powers and authorities in the administration of the trust fund, to wit;
(a) To invest and reinvest the trust fund by way of purchase or subscription or exchange or otherwise in any securities or other property, without regard to the proportion that any one item or any one type of such securities or other property may bear to the total principal of the trust fund at any time.
(b) To sell for cash or on credit, convert, redeem, exchange, or otherwise dispose of any securities or other property at any time held by the Trustee.
(c) To exercise any conversion privilege and/or subscription right available in connection with any securities or other property held by it at any time.
(d) To consent to the reorganization, consolidation, merger or readjustment of the finances of any corporation, company or association any of the securities of which may be held by it; and to consent to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities of which may be held by it; and to do any act with reference to or in connection with any of the foregoing which it may deem to be necessary or advisable, including the exercise of options, the making of agreements or subscriptions, and to hold and retain any securities or other property which it may acquire as a result of any of the foregoing.
(e) To settle, compromise or submit to arbitration any claims, debts or damages due and owing to or from the trust fund, and to commence or defend suits or legal proceedings and to represent the trust in all suits and legal proceedings.
(f) To vote personally or by general or limited proxy any securities or other property held by it at any time; and to exercise personally or by general or limited power of attorney any right appurtenant to any securities or other property held by it at any time.
(g) To keep cash at any time and times any part of the trust fund, without payment of any interest thereon.
(h) To employ suitable agents and counsel and to pay their reasonable expenses and compensation from the trust fund. To pay both the reasonable expenses and compensation for The Artistic Director/Theater & Properties Managing Trustee and their own fees for acting as Financial Trustee.
(i) To register any securities or other property held by it at any time in its own name or in the name of a nominee with or without the addition of word indicating that such securities or other property are held in a fiduciary capacity; and to hold in bearer form any securities or other property held by it at any time so that the same will pass by delivery.
(j) To make and execute and deliver, as Financial Trustee, any and all instruments in writing necessary or proper for the accomplishment of any of the foregoing powers. To advise The Committee & The Artistic Director/Theater & Properties Manager Trustee on financial matters. To provide monthly bank statements of all of the some of the trust bank accounts to The Artistic Director/ Theater & Properties Manager against which he or she may withdraw Committee budgeted itemized funds by check or other instrument.
The Artistic Director/Theater and Properties Managing Trustee shall have the following powers and authorities in the administration of the trust fund to wit.
(a) THIS PARAGRAPH STILL UNDER CONSTRUCTION Collect rents, deposits, pay utilities, make purchases to maintain and continue operations etc. Some of this depends on the simplification of financial affairs dependent on the ability of KS Hall to mitigate all financial loan obligations and liabilities on all properties before May 1st 2011
9. Definition of Securities or Other Property. Wherever used in this Agreement, the words "securities or other property" are hereby defined to mean and refer to all types or classes of any real property, personal property, common stocks, preferred stocks, capital stocks, notes, bonds, debentures, mortgages, evidences of indebtedness, evidences of ownership, life insurance policies, endowment policies, and annuity policies, regardless whether or not any of the same are of the character authorized as legal investments for a trustee under any laws applicable to the trust of the trust fund or the Trustee.
10. Accountings of Trustees. From time to time the Financial Trustee shall render accounts of its transactions to the Committee, but the Financial Trustee shall not be required to account more than once a year. The Committee may approve such accounts by an instrument in writing delivered to the Financial Trustee. In the absence of the filing in writing with the Financial Trustee by the Committee of exceptions or objections to any such account within 60 days after the date the same was rendered, the Committee shall be deemed to have approved such account. Upon the approval of any such account by the Committee, whether such approval be in writing or as set forth in such account with the same force and effect as though such account had been settled by the decree of a court of competent jurisdiction. No person or party other than the Committee may require any such accounting by the Financial Trustee.
From time to time The Artistic Director/Theater and Properties Managing Trustee shall render whatever approximate Project, Income, Budget, Volunteer, Contracted & Employee Labor Cost or Hours, and Other Expenditure Distribution within Activities Reports sufficiently accurate and as often as he or she might deem necessary to satisfy or advise The Financial Trustee, The Committee and the public including government & private granting parties and agencies.
11. Trust and Trust Fund Irrevocable. This agreement and the trust and the trust fund shall be and shall remain irrevocable; and the Donor shall not have the right at any time to revoke this Agreement or the trust fund.
12. Amendments to Trust. This Agreement may be amended at any time and times only (a) by the Donor during his lifetime and (b) by the Committee after the death of the Donor. However, no such amendment shall permit any part of the trust fund to be held or administered or distributed for any purposes other than the exclusive purposes set forth in a revocation or termination of this Agreement or of the trust or of the trust fund.
An amendment shall be by written instrument delivered to the Trustees and signed by the Donor during his lifetime or by the Committee after the death of the Donor. The signature of the Trustees shall not be required unless the amendment increases their duties or obligations or changes their compensation.
13. Governing Law. This Agreement and the trust and the trust fund shall be construed and regulated and administered under the laws of the State of Washington_,. All donations to the trust shall be deemed to take place in the State of Washington. The Trustee shall be liable to account only in the courts of the State of Washington.
14. Additional and Successor Trustees. At any time and times after the death or disappearance for over 90 days of The Donor and resignation, death or disappearance for over 90 days of Connie Bevington or after the death or disappearance for any amount of time of subsequent Artistic Director/Theater and Properties Manager Trustees The Committee may appoint one or more individuals and/or corporations to act as trustee or trustees hereunder with and in addition to the then acting trustee or trustees.
At any subsequent time and times any trustee then acting hereunder may resign or may be removed by the Committee, and any individual acting as trustee hereunder shall automatically cease to be a trustee upon the event of his or her death. If the resigning or removed or deceased trustee is the sole trustee then acting hereunder, the Committee shall appoint one or more individuals and/or corporations to act as successor trustee or trustees hereunder.
Any trustee which has resigned or which has been removed by the Committee shall transfer and deliver the trust fund or any part thereof in its possession to the then remaining trustee or trustees, or if none to its successor trustee or trustees.
The appointment of any additional trustee or any successor trustee and the resignation or removal of any trustee shall be by an instrument in writing satisfactory to both such trustee and the Committee.
When more than one trustee is acting hereunder, all such trustees shall jointly have the same powers and duties as those conferred upon the original trustee named in this Agreement; and on all matters and questions the decision of a majority of the then trustees shall govern and control.
When more than one trustee is acting hereunder, the words "Trustee" and "trustee" shall be read and interpreted in the plural so as to refer to all such trustees.
15. Waiver of Bond. No bond or other security shall be required of any trustee hereunder, whether original or additional or successor, for the faithful performance of its or his or her or their duties in any jurisdiction.
16. Compensation of Trustee. The Trustee shall be paid such reasonable compensation as shall be agreed upon from time to time by the Committee and the Trustee. Such compensation, and all expenses of administration including counsel fees, shall be paid to and withdrawn by the Trustee from out of the trust fund. Except that Connie Bevington may elect to continue to live in whatever parts of whatever buildings held by the trust she chooses as long as she continues to serve as The Artistic Director/Theater & Properties Managing Trustee as a part of her compensation.
17. Payment of Taxes. The Trustee shall charge against and withdraw and pay from the trust fund all real and personal property taxes, income taxes and other taxes of any and all kinds levied or assessed under existing or future laws of the United States of America or any State upon or in respect to the trust fund or any securities or other property forming a part of the trust fund.
18. Liability of Trustee. The Trustee shall not be liable hereunder for any matter or thing, except only for its own negligence or willful misconduct.
19. Counterparts. This Agreement shall be executed in three counterparts, each one of which shall be deemed to be the original regardless whether or not the others are produced.
In Witness Whereof, the Donor has affixed his hand and seal on or as of the day and year first above written, and the Trustees have caused these presents to be executed by its duly authorized officer or officers and its corporate seal to be hereunto affixed on or as of the day and year first above written.
____________________________________L.S. Donor
____________________________________Financial Trustee (Bank)
____________________________________Bank Officer/Title
____________________________________next after Donor's death Artistic Director/Theater & Property Managing Trustee
By______________________________________
Attest:
________________________________________
ACKNOWLEDGEMENTS
On this________ day of ____________________2011, before me personally came _________________________________to me known and known to be the individual described in and who executed the foregoing instrument and acknowledged to me that ________________ executed the same.
Witness my hand and seal, on the day, year and place first written above.
________________________________________________________Notary
Approved as to Form Forrest Wagner Donor's Choice of Trust's Atty.
If Mr.Wagner is willing to be or appoint same
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This draft Last Revised November 03, 2007 07:07 PM