Trust Deed

 

 

DECLARATION OF TRUST

THIS DECLARATION OF TRUST is made on the             day of  20        by the persons listed at the end of this deed (“the Trustees”).

 

INTRODUCTION

A.     The Trustees intend to establish a trust for the religious purposes set out in this deed.

B.     The Trustees have consented to become the Trustees of such a trust upon the trusts and with and subject to the powers and discretions set out in this deed.

C.     The Trustees shall hold the Trust Fund in the joint names of the Trustees upon the trusts and with the powers and discretions set out in this deed.

D.    It is anticipated that further money, property, or investments may from time to time be paid or transferred into, or vested in, the joint names or control of the Trustees.

 

NOW THIS DEED WITNESSES as follows:

 

1.     NAME OF TRUST

The trust created by this deed shall be known as the “CBSM Trust.”

 

2.     DEFINITIONS AND INTERPRETATION

In this deed, unless the context otherwise requires:

(a)    “Trust” means the trust established by this deed.

(b)    “Trustees” means the trustees for the time being of the Trust whether original, additional or substituted.

(c)    “Board of Trustees” shall mean the Trustees collectively.

(d)    “Trust Fund” means whatever sums of money, the property and investments from time to time representing that sum, any further property which may in the future be acquired by the Trustees from any source whatever, (whether by way of gift, legacy, purchase, exchange or otherwise however for the purposes of the Trust), the moneys and investments from time to time representing such property, and the income received from such property.

(e)    “CBSM” shall refer collectively to the committee known as “Christian Brethren Secretariat Malaysia” which shall comprise the Trustees.  

(f)     “Assembly” shall refer to a church accepted as belonging to the group of Christian churches in Malaysia commonly known as the “Christian Brethren” or the “Plymouth Brethren” or the “Brethren Assemblies” or the “Open Brethren” or such similar names that particularly subscribe to the Articles of Faith described in the Annexure hereto which shall collectively be referred to herein as “the Assemblies” provided that in cases of doubt or dispute, the certification by the Trustees that a particular assembly falls within this definition shall be conclusive evidence of the same.  

(g)    “Oversight” shall collectively refer to the leaders commonly known as “elders” in an assembly.

(h)    “The Leaders’ Conference” shall refer to the biennial meeting of the elders of the Assemblies and commonly known as “the Pan-Malaysian Assembly Leaders’ Conference” or such other similar name.

 

3.     DECLARATION OF TRUST

The Trustees declare and acknowledge that the Trustees shall stand possessed of the Trust Fund upon the trusts and with and subject to the powers and discretions set out in this deed.

 

4.     RELIGIOUS PURPOSES

The Trustees shall hold the Trust Fund upon trust to pay or apply in Malaysia the income and the capital of the Trust Fund in such amounts at such times and subject to such terms and conditions as the Trustees may decide to:

(i)       promote the growth, advance and development of the Assemblies;

(ii)   assist and facilitate the work and activities of the Assemblies by providing the services of a secretarial and administrative centre known as “Christian Brethren Secretariat Malaysia” or its abbreviated form “CBSM”; and

(iii)    accomplish such other purposes for the benefit of the Assemblies as the Trustees may decide.

AND to achieve these purposes the Trustees may:

(a)        seek, accept, and receive subscriptions, donations, subsidies, grants, endowments, gifts, legacies, loans, and bequests in money, in kind or partly in both;

(b)        establish, promote, and foster religious education facilities, community programmes, workshops, public classes, and other activities;

(c)         publish, distribute, or sell books, tapes, recordings, videos, and any other means of disseminating information relating to the Trust and its       purposes;

(d)        make known and advertise the Trust and its purposes by such use of any of the media as the Trustees may decide;

(e)        acquire, hold, convert, lay out, improve, establish, and maintain any premises of whatever nature or tenure;

(f)          acquire, modify, improve, lease, distribute, or use in any way plant, equipment, goods, and material of any nature;

(g)        subsidise, encourage, and co-operate with any other person, organisation, or group (whether incorporated or not) sharing similar objects to the Trust;

(h)        undertake such other activities and enterprises to further the purposes of the Trust as the Trustees may decide.

     

5.     APPLICATION OF TRUST FUND

The Trustees may in any year in the absolute and uncontrolled discretion of the Trustees:

(a)   use or apply capital of the Trust Fund for all or any of the purposes of the Trust without first using or applying the whole or any portion of the income of the Trust Fund for that year;

(b)    decide not to use or apply all or any of the income or capital of the Trust Fund for the purposes of the Trust;

(c)    set aside reserves or accumulations for future use or application.

      

6.     TRUSTEES

(a)        All the signatories to this deed shall be the first Trustees of the Trust.

(b)        All Trustees including the first Trustees shall be elected by the Leaders’ Conference and shall hold office for a period not exceeding two (2) years from the respective dates of their appointments.

(c)         Every trustee appointed under this Trust shall be an elder of good standing and shall be nominated by the Oversight of his assembly by submitting to the Chairman a nomination in the form approved by the Trustees at least two (2) months before a Leaders’ Conference.

(d)        The number of Trustees shall be not less than eight and not more than sixteen. The Leaders’ Conference shall endeavour to appoint Trustees from at least five (5) of the states of Malaysia. Should a vacancy reduce the number of Trustees below eight, the Trustees shall appoint new Trustees to fill the vacancy as soon as may be practicable but such new Trustees so appointed shall hold office only up to the next Leaders’ Conference.

(e)        Notwithstanding clause 6(b) above, any person shall cease to be a Trustee if he:

(i)     resigns as a Trustee of the Trust in accordance with the provisions of this paragraph; or

(ii)         fails or neglects to attend any meeting of the Trustees without leave of absence for three (3) consecutive meetings, unless it appears to the other Trustees before or after such absence that there is a proper reason for his non-attendance; or

(iii)        reaches the age of seventy (70) years PROVIDED ALWAYS that the Leaders’ Conference may in their absolute discretion appoint such retiring Trustee to continue to be a Trustee for a further term or thereafter such further terms not exceeding two (2) years; or

(iv)       becomes of unsound mind, or otherwise becomes unfit to act as a Trustee;

(v)        becomes insolvent or commits an act of bankruptcy; or dies; or is removed from office in accordance with the provisions of this paragraph; or

(vi)       resigns or is removed from office as an elder of an assembly or is or has been subject to disciplinary action by an assembly provided always that whether a trustee is disqualified under this clause shall be at the discretion of the Oversight of the assembly to which the trustee belongs to at the time such resignation, removal or disciplinary action took place.

(f)          A Trustee may resign by giving notice in writing to the Chairman of the Trust. Upon giving such notice the Trustee so doing shall cease to be a Trustee of the Trust, except as to the acts and deeds necessary for the proper vesting of the Trust Fund in the continuing or new Trustees, which acts and deeds shall be done and executed at the expense of the Trust Fund.

(g)        Notwithstanding anything contained or implied in this deed, a Trustee may at any time be removed as a Trustee by the Board of Trustees if they are of the opinion that the continuation in office of the Trustee so removed shall not be in the best interests of the Trust and such removal shall be reported at the next following Leaders’ Conference.

(h)        Upon the removal of a Trustee from office, the individual so removed shall cease to be a Trustee of the Trust, except as to the acts and deeds necessary for the proper vesting of the trust fund in the remaining Trustees, which acts and deeds shall be done and executed at the    expense of the trust fund.

(i)          Subject to Clause 6(d), the power of appointment of a new or additional Trustee shall be vested in the Leaders’ Conference.

 

7.     MANAGEMENT OF THE TRUST

(a)    General

(i)     The Trustees shall have the absolute management and entire control of the Trust Fund.

(ii)    The Trustees may from time to time appoint, remunerate and dismiss officers or employees of the Trust.

(iii)   Any individual, whether or not he is a Trustee, may be appointed as an officer or employee of the Trust provided that such Trustee shall not take part in any deliberations or proceedings relating to such appointment as an officer or employee by which any benefit or income to such Trustee is to be determined.

(b)    Meetings

(i)     The Trustees shall meet to conduct business at such intervals as the Trustees decide but not less frequently than three times in each year. In respect of any such meeting the Trustees may invite such other person or persons as the Trustees may decide to assist the Trustees with their deliberations.

(ii)    Except as expressly provided otherwise by this deed any matter requiring decision at a meeting of the Trustees shall be decided by a simple majority of the Trustees personally present and voting on the matter.

(iii)    In the event of an equality of votes the Chairman shall have a second or casting vote.

(iv)   Except as expressly provided otherwise by this deed a resolution in writing signed by all the Trustees shall be as valid and effectual as if it had been passed at a meeting of the Trustees duly called and constituted.

(v)    Any Trustee may at any time give notice to the Chairman convening a meeting of the Trustees. Such notice shall be given by letter posted to each Trustee at least fourteen days before such meeting. The notice shall state the time and place of the meeting and, in sufficient terms, the nature of the business to be transacted.

(vi)   A quorum of any meeting of the Trustees shall be six of the Trustees provided that those present shall include Trustees from at least three different states in Malaysia.

(vii)  The contemporaneous linking together of the Trustees by telephone or other electronic means of communication (“phone”) shall constitute a meeting of the Trustees and the provisions of this paragraph as to meetings of the Trustees shall apply to such meetings provided the following conditions are met:

(1)        All the Trustees for the time being entitled to receive a notice of a meeting of Trustees shall be entitled to notice of such a meeting by phone or any other means and to be linked by phone for the purposes of the meeting.

(2)        Each of the Trustees taking part in the meeting by phone must be able to hear each of the other Trustees taking part during the whole of the meeting.

(3)       At the commencement and conclusion of such meeting each Trustee must acknowledge his presence for the purpose of a meeting of the Trustees being held.

(4)        A Trustee may not withdraw from such a meeting unless he has previously obtained the express consent of the Chairman.

(5)        A Trustee shall be conclusively presumed to have been present and to have formed part of the quorum of such a meeting at all times during the meeting by phone unless he has previously obtained the express consent of the Chairman to withdraw from such a meeting. A minute of the proceedings in any such meeting by phone shall be sufficient evidence of such proceedings and of the observance of all necessary formalities if certified to be a correct minute by the Chairman.

 

c)    Chairman

The Chairman shall be elected from among the Trustees by the Leaders’ Conference for a term of two (2) years. Such trustee so appointed shall not serve as Chairman for more than two (2) consecutive terms.  The Trustees may also elect one Trustee to act as Deputy Chairman either as the need arises or from year to year or for such term of years as the Leaders’ Conference may decide. In the absence of the Chairman the Deputy Chairman shall have and may exercise all the powers of and shall perform all the duties of the Chairman. The Chairman or his deputy, in addition to the powers and duties invested in that office by this deed, shall have all the powers and duties usually attributed to chairmen.

 

(d)            Administrator

The Trustees may appoint an administrator who may be honorary or may be a full-time or part-time employee of the Trust. The Administrator, in addition to any powers or functions given to him from time to time by the Trustees, shall perform the functions usually carried out by a secretary. A Trustee may be appointed as the Administrator.

 

(e)            Minutes

Minutes of the proceedings of all meetings of the Trustees shall be recorded in a book to be kept for that purpose by the Administrator and shall be signed by any two of the Trustees present at the meeting which the minutes record. Every such minute purporting to be so signed shall be prima facie evidence of the matters recorded.

 

(f)             Delegation of Powers

(i)     The Trustees may delegate to any person or committee such of their powers as the Trustees may decide;

(ii)    Any person or committee acting under delegated power shall act in accordance with the terms of this deed and, in the absence of proof to the contrary, shall also be presumed to be acting within the terms of the delegation;

(iii)   The Trustees may revoke wholly or partly any delegation of their powers at any time;

(vi)   Any person or committee to which powers of the Trustees have been delegated may conduct his or its affairs as he or it may decide;

(vii)   The Trustees may, in delegating the powers of the Trustees, provide restrictions or rules by or within which such delegated powers are to be exercised.

 

(g)            Bank Accounts

The Trustees shall keep an account or accounts at such bank or banks as the Trustees may decide. Cheques, withdrawals and authorities shall be signed or endorsed, as the case may be, by such person or persons (including in all instances at least one Trustee) as the Trustees may decide.

 

(h)            Accounts and Audit

The Trustees shall cause true accounts for each year to be kept in such manner as the Trustees may decide of all receipts, credits, payments, assets and liabilities of the Trust Fund and all such other matters necessary for showing the true state and condition of the Trust. Such accounts shall be audited at least once in each year by a chartered accountant (not being a Trustee) appointed in that capacity by the Trustees.

 

8.     LIABILITY AND INDEMNITY OF TRUSTEES

(a)            No Trustee shall be liable for any loss to the Trust Fund not attributable to his own dishonesty, or to the willful commission or omission by him of an act known to him to be a breach of trust. No Trustee shall be bound to take any proceedings against a co-Trustee for any breach or alleged breach of trust committed by such co-Trustee.

(b)    Each Trustee shall be entitled to a full and complete indemnity from the Trust Fund for any personal liability he may incur in any way arising from or in connection with his acting or purporting to act as a Trustee of the Trust, provided such liability is not attributable to his own dishonesty, or to the willful commission or omission by him of an act known by him to be a breach of trust.

 

9.     INTERESTED TRUSTEE

Any Trustee who is or may be in any other capacity whatever interested or concerned directly or indirectly in any property or undertaking in which the Trust is or may be in any way concerned or involved shall disclose the nature and extent of his interest to the other Trustees, and shall not take any part whatever in any deliberations of the Trustees concerning any matter in which he is or may be interested other than as a Trustee of the Trust.

 

10.   NO PRIVATE PECUNIARY PROFIT FOR ANY INDIVIDUAL, AND EXCEPTIONS

No private pecuniary profit may be made by any person from the Trust, except that:

(a)        any Trustee may receive full reimbursement for all expenses properly incurred by him in connection with the affairs of the Trust;

(b)        the Trust may pay reasonable remuneration to any officer or servant of the Trust (whether a Trustee or not) in return for services actually rendered by him to the Trust;

(c)         any Trustee may be paid all usual professional, business or trade charges for services rendered, time expended and all acts done by him or by any partner or employee of his in connection with the affairs of the Trust;

(d)        any Trustee may retain for himself any remuneration properly payable to him by any company or undertaking with which the Trust may be in any way concerned or involved for which he has acted in any capacity   whatever, notwithstanding that his connection with that company or     undertaking is in any way attributable to his connection with the Trust. The Trustees in determining all reimbursements, remuneration and charges payable in the terms of this paragraph of this deed shall ensure that the restrictions imposed by the following paragraph of this deed are strictly observed.

 

11.   APPORTIONMENT OF RECEIPTS

(a)        If any dividend or distribution is received in respect of any portion of the Trust Fund which in the opinion of the Trustees has been paid or made out of profits other than trading profits of the financial year in respect of which such dividend or distribution has been paid or made, the Trustees shall decide how much of that dividend or distribution ought to be treated as capital and how much as income of the Trust Fund. Such decision shall be made by the Trustees after considering the nature of the profit used to pay or make the dividend or distribution, and the account to which the dividend or distribution has been debited in the books of the person making such payment or distribution. The Trustees shall not be liable to any person in respect of the payment of any monies in accordance with any decision made by the Trustees under this paragraph of this deed.

(b)        As between capital and income of the Trust Fund there shall be no apportionment of rents, interest, dividends, or other periodic payments for the period current to the date of commencement of the Trust or for any other period current at the date upon which any interest hereby created       under the terms of this deed shall commence or determine.

 

12.   ALTERATION OF TERMS OF DEED

The Trustees may, by a unanimous resolution at a duly constituted meeting of the Trustees to which notice has been given in accordance with paragraph 7(b)(v), revoke, vary, or add to any of the provisions of this deed, PROVIDED such revocation, variation, or addition is not inconsistent with the religious purposes of this deed and shall not come into operation until it has been unanimously approved by the next Leaders’ Conference.

 

14.   GENERAL POWERS OF THE TRUSTEES

The Trustees, as well as exercising all statutory and other powers vested in trustees, may also in the absolute and uncontrolled discretion of the Trustees, and upon such terms and conditions and in such manner as the Trustees may decide:

(a)        RECEIVE grants or donations and otherwise acquire or accept on loan or lease any property;

(b)       EXPEND any part of the Trust Fund in the acquisition of, or for investment in, any property or interest in property, or in such other investments, notwithstanding that the property or investment may not be such as is for the time being authorised by law in Malaysia for the investment of trust funds;

(c)       LET, lease, or bail any property of the Trust Fund and take on lease or under bailment any property for such term, at such rent and subject to such terms and conditions, and surrender and accept surrenders of tenancies, leases and bailments, and generally manage the same;

(d)        ERECT, repair, restore, reconstruct, and add to any buildings and       structures, and do any act in connection with any freehold or leasehold property, whether or not the Trustees would apart from this deed be empowered to do such act, including, but not by way of limitation, the       power to grant easements and other rights, and to enter into party wall agreements and other easements;

(e)        EXCHANGE property, with or without payment or receipt of moneys for equality of exchange;

(f)          SELL, call in, and convert into money the whole or any part of the Trust Fund;

(g)        RETAIN for any period any property of the Trust Fund;

(h)        LEND any property of the Trust Fund to any person who is not:

(i)     a settlor or Trustee of the Trust; or

(ii)    a shareholder or director of any company carrying on any business of the Trust; or

(iii)    a settlor or trustee of any trust which is a shareholder of any company carrying on any business of the Trust; or

(iv)   an associated person as defined by the income tax laws and regulations of Malaysia of any such settlor, trustee,, shareholder or director;

 

(i)          ENGAGE in or carry on for any period, either alone or in partnership with any person or persons (whether acting in a fiduciary capacity or otherwise), any business or undertaking, with all the powers of an absolute owner, and withdraw from or concur in or cause the winding up of the affairs of any such business or undertaking;

(j)          SUBSCRIBE for or otherwise acquire shares, securities or other rights of any company, whether or not issued with any deferred, limited or special rights, and whether fully paid up or not;

(k)        IN RESPECT OF any undertaking, business or other property, or any interest therein, which forms part of the Trust Fund, or any undertaking, business or other property of any company in which the Trustees hold shares, securities or other rights, or any shares, securities or other       rights which the Trustees hold in any company:

(i)     promote, form, or concur in the formation of any company or companies to purchase the same;

(ii)    sell or transfer the same to any person or company, or to a trustee for any company proposed to be formed;

(iii)   carry out and complete any scheme of arrangement for the amalgamation of the same with the undertaking, business or other property of any company or companies, on such terms as to price or consideration being received in:

aa)    cash; or

bb)    shares, securities, or other rights of the purchasing company (whether fully paid up or not); or

cc)    partly in one form and partly in another,

and generally upon such terms and conditions as the Trustees may decide, with power to allow time for payment of the whole or any part of any cash consideration, whether with or without security, and whether with or without interest thereon. The Trustees may take shares, securities or other rights in any company as the consideration or part of the consideration for any such sale, transfer or amalgamation, having such rights and privileges and being subject to such conditions as the Trustees may decide. The Trustees have the widest authority and discretion to effect any sale, transfer, or amalgamation on such terms and such conditions in every respect as the Trustees would have as absolute and beneficial owners of the Trust Fund;

(l)     PROVIDE out of the Trust Fund further capital for any undertaking or business carried on by the Trustees, or for any company in which the Trustees hold shares, securities or other rights, or which the Trustees have acquired or may propose to acquire, or for any undertaking, business       or other property which, or an interest in which, forms part of the Trust Fund, and do so either by way of advances, loans or guarantees, with or without interest or other payment, or taking up shares, securities or other rights, in such undertaking, business or company or in such other       manner as the Trustees may decide, and withdraw such capital in whole or in part from time to time;

(m)   TAKE up further shares, securities or other rights, whether fully paid up or not, in any company in which the Trustees hold shares, securities or other rights if such company is reconstructed or re-arranged or issues further shares, securities or other rights, or carries into effect any scheme for capitalisation of its profits or for merger with any other company, or take up shares, securities or other rights, whether fully paid up or not, in any new company which may be formed in connection with any such reconstruction, re-arrangement or merger;

(n)    PURCHASE or otherwise acquire life insurance policies, and pay the premiums thereon out of income or capital, with power to surrender any such policy or policies or convert the same into fully paid up policies, and accept a new policy or policies in lieu of any policy, and agree with       the insurer on any variation of the terms of any policy;

(o)   JOIN with any other person or persons in exercising any of the powers of the Trustees under this deed, invest in contributory mortgages, and acquire and retain undivided interests less than the whole in any property with any other person or persons, and permit any interest in a contributory mortgage or any other property or investments of the Trust Fund to be held in the name of a nominee or nominees;

(p)    BORROW or raise money for the purpose of investment, or for the purpose of exercising any of the powers of the Trustees under this deed, and give security for repayment over all or any part of the Trust Fund, whether or not the part over which the security is given benefits by such       borrowing or raising of money, and no person lending or otherwise providing money or other financial accommodation to the Trustees shall be bound to enquire as to the purpose of such borrowing or raising, or see to the application of such money;

(q)    EMPLOY, remunerate and discharge such managers, agents, employees, valuers, surveyors, engineers, solicitors, accountants and other persons and generally instead of acting personally employ and pay any person to do any act relating to the purposes of the Trust, including the receipt and payment of money, without being liable for any loss incurred, and any Trustee may be so employed to act;

(r)    APPOINT from time to time any person to act as attorney for the Trustees for all or any of the purposes of the Trust, whether in Malaysia or elsewhere, and whether for any specified period or purpose or generally;

(s)     AGREE and settle accounts with any person liable to account to the Trustees, compromise all questions relating to the Trust Fund and grant all necessary receipts, discharges, and releases;

(t)     ENTER into, or join in entering into any guarantee by the Trustees, alone or together with any other person, the giving of which the Trustees may decide to be in the interests of the Trust, and authorise any company in which the Trustees hold shares, securities or other rights to enter into such a guarantee or enter into any other arrangement whatever which the Trustees may decide to be in the interests of the Trust, and in support of, or in lieu of, any such guarantee give security over the whole or any part of the Trust Fund;

(u)   SUBSCRIBE to, or enrol the Trust as a member of, or affiliate with, any association, council, institution, society, organisation, trust or body, corporate or unincorporate (whether in Malaysia or elsewhere) having purposes similar to the purposes of the Trust, or establish,       promote or assist in the establishment or promotion of any such body, if any connection with or the establishment or promotion of any such body may be beneficial to the Trust or may facilitate the achievement of any of the objects of the Trust within Malaysia;

(v)        DO such other lawful acts and things as are incidental to or conducive to the attainment of the purposes of the Trust.

 

IN WITNESS WHEREOF the parties hereto have hereunto set their hand the day and year first above written.

 

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