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Deed of gift for DCSF

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Deed of gift for DCSF Powered By Docstoc
					                              DRAFT DEED

              DATED                                   200[ ]




               (1)        THE SECRETARY OF STATE FOR
                          CHILDREN SCHOOLS AND FAMILIES

               (2)        THE XYZ ACADEMY

               (3)        THE [SPONSOR]




               DEED OF GIFT AND DECLARATION OF TRUST

                     TO ESTABLISH AN ENDOWMENT FUND

                                Called [ ]




685541

Version 2.0

December 2008
THIS DEED OF GIFT AND DECLARATION OF TRUST is made the                                day of
[200?]

BETWEEN:

1.    THE SECRETARY OF STATE FOR CHILDREN SCHOOLS AND FAMILIES, of
      Sanctuary Buildings, Great Smith Street, London SW1P 3BT or such other successor
      body ("the Secretary of State");

2.    THE [XYZ] ACADEMY of [address] (Company Number [ ]) Charity Number ([                 ])
      (the "Academy"); and

3.    THE [insert name of sponsor] of [address] [(Charity Number ( )] (the "Sponsor").

WHEREAS:

(A)       The Academy is a charitable company limited by guarantee whose objects are,
          inter alia, "[to advance for the public benefit education in the United Kingdom, in
          particular but without prejudice to the generality of the foregoing by establishing,
          maintaining, carrying on, managing and developing a school offering a broad
          curriculum].";

(B)       The Sponsor wishes to donate certain monies to the Academy to be held by the
          Academy on the trusts declared in this Deed;

(C)       The Academy wishes to accept the Sponsor’s donation on the terms of this Deed
          and subject to the trusts declared in this Deed.

NOW THIS DEED WITNESSES as follows:

1.        DEFINITIONS AND INTERPRETATION

1.1       The following words shall, unless the context requires otherwise, have the
          following meanings:

          “Principal Sum”          means the capital sum of [£ ] to be donated by the
                                   Sponsor to the Academy under this Deed

          “Endowment Fund”         means the Principal Sum and assets from time to time
                                   representing the same and the income thereof

          “Funding Agreement”      means the agreement between the Secretary of State
                                   and the Academy made pursuant to section 482 of the
                                   Education Act 1996 for the establishment of the
                                   Academy.

          “Insolvency Event”       means


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                               1.1.1      a proposal for a company voluntary
                                          arrangement or a proposal for a scheme of
                                          arrangement being presented to the
                                          Academy's members and creditors;

                               1.1.2      an application being made for the
                                          appointment of an administrator of the
                                          Academy;

                               1.1.3      a winding-up order being made or (except for
                                          the purposes of amalgamation or re-
                                          construction) a resolution for voluntary
                                          winding up being passed or a petition for
                                          winding up being presented and not be
                                          dismissed or withdrawn within 30 days from
                                          the date of presentation in respect of the
                                          Academy;

                               1.1.4      a liquidator, receiver or manager or
                                          professional liquidator being appointed over
                                          all or any material part of the Academy's
                                          assets or business;

                               1.1.5      an administrative receiver being appointed or
                                          a moratorium being imposed on the payments
                                          of the Academy's debts or an enforcement
                                          action by creditors; or

                               1.1.6      the Academy being unable to pay its debts as
                                          they fall due.



        “Relative”               shall include any child, stepchild, parent, grandchild,
                                 grandparent, brother, sister or spouse of the
                                 Sponsor/any Trustee/Director of the Sponsor or any
                                 Director of the Academy, or any person living with the
                                 Sponsor/any Trustee/Director of the Sponsor or any
                                 Director of the Academy as his or her partner.

        “School”                 means the XYZ Academy operated by the Trustee in
                                 accordance with the Education Acts and subject to the
                                 Funding Agreement.

        “Trustee”                means The Academy appointed under clause 4.1 of
                                 this deed.



1.2       The headings in this Deed are for convenience only and shall not affect its
          construction.




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1.3       Words denoting the singular shall include the plural and vice versa.       Words
          denoting any gender include all genders.

1.4       References to any statute shall be deemed to include any statutory modification
          or re-enactment thereof for the time being in force and any statutory instruments
          made thereunder.

2.        GIFT OF PRINCIPAL SUM

2.1       Subject to the terms of this Deed, the Sponsor agrees to donate the Principal
          Sum to the Trustee.

2.2       The Principal Sum shall be payable after the execution of this Deed as follows:

2.2.1     the sum of [insert] within 10 working days of charitable status for this Endowment
          Fund being obtained, and

2.2.2     the balance of the Principal Sum (namely [insert]) within 5 years of the date of
          this Deed.

2.3       For the avoidance of doubt, no changes may be made to the proposed payment
          without the prior written consent of the Secretary of State which have the effect
          of:

2.3.1     reducing the amount of the Principal Sum;

2.3.2     extending the length of the payment period beyond that outlined in clause 2.2.

3.        DECLARED TRUSTS

3.1       The Trustee will hold the Endowment Fund on the following declared trusts:

                The income of the Principal Sum arising during each Year (being twelve
                months from the date of this Deed and each twelve month period
                thereafter) shall be applied by the Trustee to advance education for the
                benefit of the community of [insert name of local area served by the
                Academy] [ the Town/Parish/Cit/ county/ diocese of ] [IF A DIOCESAN
                SPONSOR INSERT THE FOLLOWING WORDING – “in accordance with
                the principles of the Church of England in particular”] by :

                   (i)     [assisting and supporting the education of students at the
                School including the provision of awards, prizes or other rewards;]

                   (ii)    [relieving the financial hardship of pupils and ex-pupils of the
                School by the provision of bursaries, scholarships, equipment or in any
                other way the Trustee thinks fit to enable them to pursue their education;]




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                     (iii)   [providing grants or other financial assistance to assist pupils
                in financial need to undertake extra-curricular activities (including
                educational travel in the United Kingdom or overseas);]

                    (iv)   [providing or assisting in the provision of services or facilities at
                the School not provided for under the Funding Agreement;]

                    (v)    [fostering closer ties between the School and community,
                including promoting education in the community served by the School.]


                Provided that in carrying out the foregoing declared trusts the Trustee
                must (where applicable) have regard to any relevant guidance issued by
                the Secretary of State from time to time on the expenditure of income
                arising on endowment funds.

                [then EITHER INSERT:]

3.1.1     [If the School closes permanently, the Endowment Fund shall assist and support
          the education of people under the age of 25 with a preference for those who had
          been pupils at the School.]

                [OR – IF APPLICABLE INSERT:]

          [If the School closes permanently, the Endowment Fund’s objects will be to
          assist and support the education of students in accordance with the principles of
          the Church of England in the [area of benefit].]

3.1.2     Subject to Clause 3.1.4.the Trustee may not exercise any power which it may
          have to expend the Principal Sum other than with the express prior written
          consent of the Secretary of State and in accordance with such directions as he
          may give.

3.1.3     The Trustee shall, at its absolute discretion, be permitted to treat as income for
          the purposes of Clause 3.1 all forms of capital gain resulting on, or from, the
          disposal, redemption or revaluation of investment assets (including the issue or
          repayment of share or loan capital).

3.1.4     The Trustee shall invest the Endowment Fund in a prudent manner, having taken
          appropriate professional advice and having regard to any Charity Commission
          guidance in relation to investments issued from time to time.

3.1.5     The Trustee shall not enter into any commitments in respect of any of the
          Principal Sum payable under this Deed but not yet received or in respect of any
          income anticipated to be generated from the Endowment Fund or from any of the
          Principal Sum payable under this Deed but not yet received.




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4.        APPOINTMENT OF TRUSTEE

4.1       The Academy, acting in accordance with its usual procedures, shall be the
          Trustee of the Endowment Fund.

4.2       The Trustee will hold the Endowment Fund as a fund separate from all other
          funds held by the Academy under the name, ["The " ] and shall seek to secure
          charitable registration for the Endowment Fund at the earliest opportunity after
          the execution of this Deed.

4.3       In the event of:

4.3.1     the Trustee being subject to an Insolvency Event or, in the Trustee's reasonable
          belief, an Insolvency Event being likely to occur; or

4.3.2     the Trustee otherwise ceasing to exist; or

4.3.3     the Trustee ceasing to be capable of acting, or willing to act, as trustee; or

4.3.4     the Funding Agreement between the Secretary of State and the Academy (if any
          such agreement shall be in place at that time) terminating,

          the Sponsor shall be appointed trustee in place of the Academy to hold the
          Endowment Fund on the declared trusts set out above in clause 3.

5.        POWERS OF THE ACADEMY (AS TRUSTEE OF THE ENDOWMENT FUND)

5.1       The Academy, as trustee of the Endowment Fund, shall, without prejudice to all
          powers conferred upon it, whether by statute or general law or this Deed, have
          the same powers in relation to the trusts hereby declared as are set out in the
          Academy’s own memorandum and articles of association as the same are in
          effect at the date hereof as if such powers were set out in full herein provided
          that such powers may only be used in furtherance of the object of the
          Endowment Fund and not further or otherwise. The powers referred to in this
          clause are set out in the Schedule.

5.2       Nothing in this Deed excludes the exercise by the Academy, as trustee of the
          Endowment Fund of the powers given by the Trustee Act 2000 as regards
          investment, the acquisition or disposal of land and the employment of agents,
          nominees and custodians which shall, subject to the terms of this Deed, be
          available to the trustee of the Endowment Fund.

5.3       The Academy, as trustee of the Endowment Fund, shall not invest all or any part
          of the Endowment Fund in any firm or company of which the Sponsor, any
          Director of the Academy or any Relative from time to time is:

5.3.1     a partner;




Version 2.0 December 2008
5.3.2     an employee;

5.3.3     a consultant;

5.3.4     a director; or

5.3.5     a shareholder, unless the shares of the company are listed on a recognised
          stock exchange and the Sponsor, any Director of the Academy or any Relative
          holds less than 1% of the issued capital.

6.        AMENDMENTS TO THIS DEED

6.1       The provisions of this Deed may only be amended by a resolution of the Trustee
          with the prior written agreement of the Sponsor and the Secretary of State
          provided that:

6.1.1     no amendment may be made which would have the effect of causing the
          Endowment Fund to cease to be a charity;

6.1.2     a resolution to amend the declared trusts (clause 3) requires the prior written
          consent of the Charity Commission; and

6.1.3     no amendment shall have the effect of removing the restriction at clause 6.1.1 or
          amending this clause 6.1.3.



7.        MONITORING AND REVIEW

7.1       The Trustee shall provide the Sponsor and the Secretary of State with a report at
          the end of each financial year showing how the Endowment Fund has been used
          over that financial year. This shall be for information purposes only.

7.2       The Trustee shall provide to the Secretary of State written confirmation of the
          Sponsor having paid the sums referred to at clauses 2.2.1 and 2.2.2 above,
          within 28 days of the Sponsor having made such payments.

7.3       The Trustee shall notify the Sponsor and the Secretary of State as soon as
          reasonably possible if it becomes aware of any improper application or use of the
          Endowment Fund or any fraud or if, in the reasonable opinion of the Trustee, the
          Endowment Fund is jeopardised in any way.

7.4       The Trustee shall send the Sponsor and the Secretary of State a copy of the
          Endowment Fund’s accounts within ten (10) months of its financial year end.




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8.        SUCCESSOR TRUSTEES

8.1       All rights, powers obligations and other provisions of this Deed in respect of the
          trustee of the Endowment Fund shall be exercisable by and are binding on any
          successor trustee(s) of the Endowment Fund.

9.        THIRD PARTIES

9.1       It is declared that none of the terms of this Deed shall be enforceable by virtue of
          section 1 of the Contracts (Rights of Third Parties) Act 1999 by any person who
          is not a party to this deed.

10.       GOVERNING LAW AND JURISDICTION

10.1      The trusts hereby declared are governed by, and shall be construed in
          accordance with, English law and the parties hereto submit to the exclusive
          jurisdiction of the English Courts.




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IN WITNESS WHEREBY the parties hereto have executed and delivered this document as a
deed the day and year first before written:

The Corporate Seal of THE SECRETARY
OF STATE FOR CHILDREN SCHOOLS
AND FAMILIES hereunto affixed is ……………………………………………………..
authenticated by:
                                            Authorised Signatory

                                            Print name………………………………………...




Executed as a deed by

THE [XYZ] ACADEMY                           ……………………………………………………..

acting by two directors or a director and a Director
secretary
                                            Print name………………………………………...




                                            ……………………………………………………..

                                            Director/Secretary

                                            Print name………………………………………...




EXECUTED AS A DEED BY THE
TRUSTEES OF THE           ……………………………………………………..

Sponsor                             Print



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in the presence of:         name………………………………………...
        }




                            ……………………………………………………..




                            Print
                            name………………………………………...

                            ……………………………………………………..




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                                   SCHEDULE

                                    POWERS

   The Powers outlined in clause 4 of the Memorandum of Association of The XYZ
        Academy incorporated on [date] Charity no [ ] Company number [ ]




Version 2.0 December 2008
Version 2.0 December 2008

				
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