FIRST AMENDMENT TO
TRUST INDENTURE OF
THE XXXXXXX X. XXXXXXX FOUNDATION
This Agreement is entered into this 2nd day of March, 2000, by XXXXXXX X.
XXXXXX, XX. and XXXXXXX X. XXXX, XX., as Trustees of THE XXXXXXX X. XXXXXXX
FOUNDATION under Trust Indenture dated April 27, 1999, (hereinafter "Trustees")
and THE GREATER KANSAS CITY COMMUNITY FOUNDATION, a Missouri not-for-profit
corporation, as sole Beneficiary of THE XXXXXXX X. XXXXXXX FOUNDATION
(hereinafter "Beneficiary").
WHEREAS, Xxxxxxx X. Xxxxxxx, as Grantor, established THE XXXXXXX X. XXXXXXX
FOUNDATION (hereinafter "Xxxxxxx Foundation") under Trust Indenture dated April
27, 1999, and named himself, XXXXXXX X. XXXXXX, XX. and XXXXXXX X. XXXX, XX. as
Trustees,
WHEREAS, Xxxxxxx X. Xxxxxxx died on July 14, 1999, leaving XXXXXXX X.
XXXXXX, XX. and XXXXXXX X. XXXX, XX. as the sole surviving and currently acting
Trustees of the Xxxxxxx Foundation,
WHEREAS, the sole beneficiary of Xxxxxxx Foundation is the Beneficiary, THE
GREATER KANSAS CITY COMMUNITY FOUNDATION,
WHEREAS, the Grantor's intent was to qualify the Xxxxxxx Foundation as a
charitable supporting organization within the meaning of Section 509(a)(3) of
the Internal Revenue Code of 1986, as amended,
WHEREAS, Paragraph 9(b) of the Xxxxxxx Foundation Trust Indenture
authorizes the Trustees to amend the Trust Indenture in order to qualify the
Xxxxxxx Foundation as an organization described in Section 509(a)(3) of the
Internal Revenue Code of 1986, as amended, and the Trustees desire to qualify
the Xxxxxxx Foundation as a "Type I" supporting organization, by vesting control
of the Xxxxxxx Foundation in the Beneficiary, The Greater Kansas City Community
Foundation,
WHEREAS, Paragraph 5(a) of the Xxxxxxx Foundation Trust Indenture
authorizes the Trustees to delegate to the Beneficiary the power to appoint
Trustees and the Trustees wish to exercise said power,
WHEREAS, the Trustees wish to amend the Trust Indenture to vest control of
the Xxxxxxx Foundation in the Beneficiary, The Greater Kansas City Community
Foundation, by delegating irrevocably the power to appoint a majority of the
Trustees of the Xxxxxxx Foundation and to make other changes in the Trust
Indenture consistent with the delegation of said power, and
WHEREAS, the Beneficiary is willing to accept delegation of the power and
to exercise said power to appoint a majority of the Trustees according to the
terms of this Agreement.
NOW, THEREFORE, in consideration of the premises the Trustees and
Beneficiary hereby agree as follows:
ITEM 1
The Trustees hereby amend Paragraph 3 to delete in their entirety
subparagraphs (e), (f) and (g) and to modify and amend subparagraph (a) to read
in its entirety as follows:
3. PURPOSES OF THE FOUNDATION.
(a) This Trust is and at all times shall be an organization which is
controlled by and operated exclusively for the benefit of the
Beneficiary or a substituted charitable organization (as defined
below) within the meaning of Section 509(a)(3) of the Internal Revenue
Code of 1986, as amended. The Grantor intends and hereby directs the
Trustees to use the net income of the Trust and so much of the
principal of the Trust as they deem appropriate to establish, support
and fund specific programs operated, funded or sponsored by the
Beneficiary or such substituted charitable organization as more fully
descried below. The Trustees shall fund and support any one or more of
the programs, activities or services funded or sponsored by (i) the
Beneficiary to aid or support public charities served by said
Beneficiary, or (ii) such substituted charitable organization. The
Trustees shall be free to select such programs, activities or services
from time to time as the Trustees deem appropriate, without
limitation, and to recommend to the Beneficiary or substituted
charitable organization any program, activity or service to aid or
support such public charity or charities they deem worthy of support
or funding by them. The Trustees may establish donor-advised funds at
and under the control of the Beneficiary or substituted charitable
organization and may retain and exercise advisory privileges or may
delegate advisory privileges to identified representatives of the
public charity or charities who are the beneficiaries of said
donor-advised funds. If the Beneficiary (or any other charitable
organization which is a beneficiary of this Trust) becomes a
disqualified charitable organization, the Trustees may substitute one
or more charitable organizations (collectively, the "substituted
charitable organization") for any such disqualified charitable
organization as a beneficiary of the Trust as the Trustees determine
in their sole and absolute discretion, provided, however, the
activities of any such substituted charitable organization must
further the charitable or other qualified purposes of the Trust.
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ITEM II
Paragraph 5 shall be amended to read in its entirety as follows:
5. RULES GOVERNING TRUSTEES. The following rules shall govern the number,
selection, compensation, liability and succession of Trustees:
(a) CONTROL VESTED IN BENEFICIARY. This Trust shall at all times be
controlled by the Beneficiary or substituted charitable organization
as defined in Paragraph 3(a) (hereinafter in this paragraph referred
to as the "Beneficiary") within the meaning of Section 509(a)(3)(B) of
the Internal Revenue Code of 1986, as amended.
(b) NUMBER AND APPOINTMENT OF TRUSTEES. The Beneficiary shall have the
sole and exclusive power to appoint a majority of the Trustees. A
minimum of two (2) Trustees shall be appointed. The number of Trustees
may be increased or decreased (but not below two (2)) by the
Beneficiary with the consent of the Trustees who are then serving. The
Trustees may appoint additional or successor Trustees not required as
a part of the majority of the Trustees appointed by the Beneficiary.
(c) QUALIFICATIONS AND NOMINATION OF TRUSTEES. The Beneficiary or
Trustees, as the case may be, may appoint any qualified individual or
any corporate fiduciary as Trustee or as successor Trustee, or a
combination of individuals and a corporate fiduciary as Co-Trustees or
successor Co-Trustees. This trust shall at all times meet the
definition of an organization described in Section 509(a)(3) of the
Internal Revenue Code of 1986, as amended, and shall not be
controlled, directly or indirectly, by disqualified persons within the
meaning of Section 509(a)(3)(C). Therefore, the Beneficiary or
Trustees, as the case may be, shall appoint Trustees who meet the
requirements of said statute in order to assure compliance with
applicable law. The Trustees may nominate one or more individuals as
candidates for the office of any Trustee who is required to be
appointed by the Beneficiary. The Beneficiary shall give due
consideration to such nominees in its selection of Trustees, but shall
not be required to appoint a Trustee or successor Trustee from such
nominees.
(d) TERM OF OFFICE OF TRUSTEES. The Beneficiary shall establish the term
of office for a Trustee at the time of appointment of the Trustee,
whether such appointment is made by the Beneficiary or by the
Trustees. The term of office of a Trustee shall not be less than three
(3) years and may be for such period as the Beneficiary deems
appropriate. Different Trustees may be appointed for different terms
of office and may be reappointed to succeed
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themselves. A Trustee shall serve until the expiration of the
Trustee's term of office or until his or her resignation, removal or
disability, and until his or her successors have been duly appointed
and qualified.
(e) RESIGNATION AND REMOVAL OF TRUSTEES. Any Trustee may resign at any
time by giving at least sixty (60) days written notice of such
resignation to the other Trustee or Trustees and the Beneficiary. An
individual Trustee may be removed from office by the Beneficiary
acting alone and without the consent of the Trustees, but may be
removed only for reasonable cause based on a determination of (i)
mental or physical incapacity which in the opinion of two medical
doctors prevents the Trustee from performing his or her fiduciary duty
and responsibilities as Trustee, or (ii) gross negligence or
intentional disregard of fiduciary duty in the performance of his or
her responsibilities as Trustee. A corporate trustee may be removed by
the Beneficiary with or without cause and without the consent of the
Trustees by giving 30 days notice in writing.
(f) PROCEDURE FOR APPOINTMENT OF TRUSTEES. Any successor or additional
Trustee shall be appointed by the Beneficiary or Trustees, as the case
may be, and designated by an instrument in writing. Copies of the
appointment shall be delivered by the Beneficiary to any former
Trustee and all other Trustees if the Beneficiary is making the
appointment, or by the Trustees to the Beneficiary if the Trustees are
making the appointment. Any successor or additional Trustee duly
appointed by the Beneficiary or Trustees, as the case may be, shall
qualify as Trustee by executing an instrument in writing wherein such
successor or additional Trustee shall agree to accept the Trust and to
be bound by all of the terms and provisions of this Trust Agreement.
The successor or additional Trustee shall have all rights, powers,
privileges, liabilities, duties and immunities of the other Trustees
of the Trust, but shall not be obligated to inquire into prior acts of
the Trustees, nor be liable for acts or omissions of the Trustees
prior to acceptance of appointment.
(g) COMPENSATION OF TRUSTEES. Any individual Trustee shall be entitled to
reasonable compensation for services rendered in the administration of
this Trust. Any corporate fiduciary appointed either as Trustee or as
successor Trustee shall receive as compensation for its services in
the administration of this Trust such fees as are stipulated in its
regular adopted schedules of compensation as published from time to
time, unless other compensation is agreed upon. Such reasonable and
necessary expenses shall be a charge upon the Trust Estate and shall
be paid out of the Trust Estate.
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(h) ACCOUNTINGS.
(i) The Trustees shall render accounts of their transactions to the
Beneficiary at least annually. The Beneficiary may approve such
accounts by an instrument in writing delivered to the Trustees.
If no written exception or objection is filed by the Beneficiary
with the Trustees within sixty (60) days after any such account
is so rendered, it shall be deemed to have been approved; and in
such case or upon the written approval of the Beneficiary of any
such account, the Trustees shall be released, relieved and
discharged with respect to all matters and things set forth in
such account as though such account had been settled by the
decree of a court of competent jurisdiction.
(ii) Upon the acceptance of appointment by a successor Trustee or
Co-Trustees, the former Trustee or Trustees shall prepare and
deliver a final accounting of the administration of the Trust
Estate to the Beneficiary and successor Trustees for the period
of time elapsed since the preceding accounting and shall deliver
and transfer the Trust Estate to such successor Trustees. Upon
approval by such successor Trustees and by the Beneficiary, or
upon the failure of the successor Trustees and the Beneficiary to
object to such final accounting within sixty (60) days after it
is delivered, the former Trustee or Trustees shall thereupon be
finally released and discharged, all as provided herein with
respect to annual accountings.
(i) RELIANCE OF TRUSTEES ON WRITTEN STATEMENTS. The Trustees shall be
fully protected in acting upon any instrument, certificate or paper
believed by them to be genuine and to be signed or presented by the
proper person or persons, and the Trustees shall be under no duty to
make any investigation or inquiry as to any statement contained in
such writing but may accept the same as conclusive evidence of the
accuracy of the statements therein contained.
(j) Custody of Assets by Corporate Trustee. If a corporate fiduciary is
appointed as Trustee, it shall have sole custody of all assts of the
Trust Estate.
ITEM III
Paragraph 9(b), pertaining to amendment of the Trust Indenture, shall be
amended to read in its entirety as follows:
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9. Amendment of Trust Indenture.
(b) This Agreement may be amended or modified by the unanimous agreement
of the Trustees, with the written consent of the Beneficiary, whenever
and as often and in such respects, but only to such extent as the
Trustees deem necessary or advisable in the administration of the
Trust, (i) to enable the Trust to qualify at all times during its
existence as an organization described in Section 509(a)(3) of the
Internal Revenue Code and the regulations thereunder and as one which
is tax exempt and to which donations can be made which are deductible
from taxable income to the extent allowed by the provisions of the
Internal Revenue Code of the United States and other laws and
regulations in force and applicable from time to time; or (ii) so long
as such amendment or modification will not result in preventing the
trust from continuing to so qualify, to clarify any of the provisions
contained herein or to remove any doubts as to the proper construction
of this Trust Agreement. Any such amendment or modification shall be
by instrument in writing, executed and acknowledged by the Trustees
and the Beneficiary. Notwithstanding anything to the contrary in this
paragraph, no amendment shall abrogate the absolute and unconditional
right and power of the Beneficiary to appoint a majority of the
Trustees.
ITEM IV
THE GREATER KANSAS CITY COMMUNITY FOUNDATION, the Beneficiary, hereby
accepts the irrevocable delegation by the current Trustees of the Xxxxxxx
Foundation of the power to appoint a majority of the Trustees of said Xxxxxxx
Foundation according to the terms of this Agreement, and hereby further agrees
to accept and perform all of the duties and responsibilities applicable to it
under the terms of this Agreement and the Trust Indenture.
ITEM V
XXXXXXX X. XXXXXX, XX. and XXXXXXX X. XXXX, XX. are hereby designated and
appointed by the Beneficiary as Trustees of THE XXXXXXX X. XXXXXXX FOUNDATION,
and they hereby accept such appointment. Each of them shall serve until his
resignation, removal, or disability, and until his successor has been duly
appointed and qualified, at which time their respective terms of office shall
expire under the terms of the Trust Indenture as amended by this Agreement.
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ITEM VI
The Trustees and Beneficiary hereby ratify and confirm all other provisions
of the Trust Indenture except as they may be modified by this Amendment.
IN WITNESS WHEREOF, the Trustees and Beneficiary hereby enter into this
Agreement the day and year first above written.
/s/ Xxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, Xx., Trustee
/s/ Xxxxxxx X. Xxxx, Xx.
Xxxxxxx X. Xxxx, Xx., Trustee
The Greater Kansas City Community
Foundation
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Secretary
STATE OF Missouri )
) ss.
COUNTY OF Xxxxxxx )
On the 2 day of March, 2000, at my office in said County and State, before
me, the undersigned, a notary public, personally appeared XXXXXXX X. XXXXXX,
XX., to me personally known and known to me to be the same person described in
and who executed the foregoing instrument, and acknowledged the execution of the
same as said person's free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written.
/s/ Xxxxx X. Xxxx
Notary Public
My Commission Expires:
April 14, 2003
STATE OF Missouri )
) ss.
COUNTY OF Xxxxxxx )
On the 3 day of March, 2000, at my office in said County and State, before
me, the undersigned, a notary public, personally appeared XXXXXXX X. XXXX, XX.,
to me personally known and known to me to be the same person described in and
who executed the foregoing instrument, and acknowledged the execution of the
same as said person's free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written.
/s/ Xxxxx X. Xxxx
Notary Public
My Commission Expires:
April 14, 2003
STATE OF Missouri )
) ss.
COUNTY OF Xxxxxxx )
On the 9 day of March, 2000, before me, the undersigned, a Notary Public
within and for said County and State, personally appeared XXXXXX X. XXXXXXX, to
me personally known, who being by me duly sworn, did say that she is the
President of THE GREATER KANSAS CITY COMMUNITY FOUNDATION, a Missouri
not-for-profit corporation, that the seal affixed to the foregoing instrument is
the corporate seal of said corporation, that said instrument was signed and
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sealed on behalf of said corporation by authority of its Board of Directors, and
said officer acknowledged said instrument to be the free act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written.
/s/ Xxxxxxx X. Xxxxxxx
Notary Public
My Commission Expires:
December 29, 2002
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