CORPORATE DONOR ADVISED FUND AGREEMENT
This Agreement ("Agreement") is made this _____ day
of __________, 2003, between the Southern
Tier West Development Foundation (Foundation), a qualified
Internal Revenue Code public, non-profit Corporation, and ____________________
("Donor"), to create an endowed donor advised
fund ("Fund") of the
Foundation. All persons and organizations making contributions
to this Fund shall be bound by the terms of this Agreement.
1. NAME OF FUND: The name of
the fund created hereby is ____________.
2. PURPOSES: The Foundation
and Donor hereby agree to establish a fund to carry out the
general charitable purposes of the Foundation as set forth
in its governing instruments, as amended from time to time.
3. CONTRIBUTIONS ($10,000 minimum required):
The Donor hereby assigns, conveys, transfers and delivers
to the Foundation real property, cash or other assets to be
held in a separate component Fund of the Foundation. The Foundation,
Donor, and any person or organization may from time to time
make additional contributions to the Fund. All contributions
to the Fund shall be irrevocable and are subject to the terms
and conditions hereinafter set forth.
4. INVESTMENT OF FUND: The Foundation
shall invest the fund balance in accordance with its normal
investment guidelines or procedures. The fund balance shall
be adjusted for the results of the investment performance
in accordance with the procedures adopted by the Foundation.
5. DISTRIBUTIONS:
It is the general policy of the Foundation that a substantial
part of the Fund shall remain as a permanent endowment of the
Foundation and that only the net income, or an amount equal
to the annual spending rate (a percentage of market value),
is distributed in the form of grants each year. Acknowledging
these policies of the Foundation, the Donor requests that (check
one):
_____ the Fund be established as a permanent endowment with
distributions not to exceed annual income or the annual
spending rate and that all growth in the Fund, including
gains and undistributed income, be retained in the Fund
and added to the principal.
_____the Fund not be established as a permanent endowment
thereby allowing distributions to exceed annual income or
the annual spending rate and that all growth in the Fund,
including gains and undistributed income, be retained in
the Fund and added to the principal.
_____the Fund not be established as a permanent endowment
and that distributions be limited to the amount of principal
contributions.
The Donor reserves the right to consult with, advise, and
make recommendations to the Foundation with respect to any
distribution of income and/or principal from the Fund. The
advice and recommendations shall be solely advisory and shall
not limit the ultimate authority and control vested by law
in the Foundation.
6. COMPENSATION TO FOUNDATION:
As compensation for its services, the Foundation may receive
and charge against the fund balance those fees and/or reimbursement
for expenses attributable to the administration and management
of the Fund. Fees and expenses charged will be in accordance
with fee schedules and policies, which the Foundation sets
from time to time.
7. VARIANCE POWER: It is understood
and agreed that all assets held in the Fund will be subject
to the Articles of Incorporation and Bylaws of the Foundation,
including the powers contained therein for the Board of Directors
of the Foundation to (a) to modify any restriction or condition
on the distribution of funds for any specified charitable
purpose or purposes or to a specified charitable organization
or organizations if in the sole judgment of the Board (without
the necessity of the approval of any participating trustee,
custodian, or agent), such restriction or condition becomes,
in effect, unnecessary, incapable of fulfillment, or inconsistent
with the charitable needs of the community or area served;
(b) to replace any participating trustee, custodian, or agent
for breach of fiduciary duty under New York law; and (c) to
replace any participating trustee, custodian, or agent for
failure to produce a reasonable return of net income over
a reasonable period of time, as determined by the Board.
8. CONTINUITY: It is intended
that the Fund hereby established continue in perpetuity as
long as there is money or other property available in the
Fund or until such time as such charitable purpose, in the
reasonable judgment of the Board of Directors of the Foundation,
shall be unnecessary, incapable of fulfillment, or inconsistent
with the charitable needs of the region. In any of such events,
the Foundation shall provide (90) days advance written notice
to Donor of its determination to terminate the Fund and the
reasons for its determination. Following such notification,
the Fund shall cease to be a separate fund and shall thereafter
be commingled and administered as part of the general discretionary
endowment funds of the Foundation; provided, however, that
to the extent practicable and permitted under then existing
law, the Foundation shall endeavor to make distributions from
its general discretionary endowment funds to carry out those
charitable purposes most closely aligned with the purposes
for which this Fund was originally created. If the Donor becomes
a defunct organization or it is determined as stated above
that the purposes are not being met in some way, and the Corporate
Donor Advised Fund exceeds the sum of $10,000, the Fund will
continue as an identified fund in the name of the Donor (or
such other name as the Donor may request.)
9. FOUNDATION AS OWNER OF THE FUND:
Subject to the terms of the Agreement and the Foundation's
governing instruments, this Fund shall be the property of
the Foundation owned by it in its normal corporate capacity,
and shall have the ultimate authority and control of all property
in the Fund.
10. INCORPORATION OF GOVERNING INSTRUMENTS
OF THE FOUNDATION: The Governing Instruments of the
Foundation shall include its Articles of Incorporation, By-Laws
and the resolutions and procedures adopted by the Foundation
from time to time, including any amendments or modifications
thereto. The Donor agrees to be bound by the terms of the
Foundation's Governing Instruments, including any subsequent
amendments thereto.
11. NAME RESTRICTION: Under
no circumstances shall the name of the Foundation be used
in any pamphlet, newsletter, and brochure or in any other
way by the Donor for purposes of soliciting donations unless
approved in writing in advance by the Foundation.
This Agreement shall be construed and governed by the provisions
of New York law. In the event that anyone or more of the provisions
contained in this Agreement are held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision of
this Agreement. This Agreement may only be amended by a written
document executed by all parties hereto. In the event of any
dispute concerning this Agreement or the fund, the Foundation
may charge its legal fees and costs incurred in connection with
the dispute against the fund balance. This Agreement shall bind
the parties to this Agreement and their respective successors
and assigns.
The Donor and the Foundation have caused this Agreement to
be executed as of the day and year first above written.
DONOR: SOUTHERN TIER WEST DEVELOPMENT FOUNDATION:
Name: __________________________ Name: ________________________________
Title: ____________________________ Title: __________________________________
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