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HomeMy WebLinkAbout11-01-07 tJ ECKERT SEAMANS CHERIN & MELLOTT, LLC Thomas P. Gacki, Esquire 1.0. No. 44864 213 Market Street, Eighth Floor P. O. Box 1248 Harrisburg, PA 17101-1248 717.237.6093 tgacki@eckertseamans.com "'- , '-:> - J -:-,") , , , ~ ..'') . J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA c' In Re: Thomas Jaymes Freed Irrevocable Trust Under Agreement Dated September 27, 2001 No. ...J..I-Ql- cf1Q J PETITION FOR APPOINTMENT OF CORPORATE CO-TRUSTEE IN ACCORDANCE WITH 20 PA. CONS. STAT. SECTION 7740.1 AND 20 PA. CONS. STAT. SECTION 7740.2 TO THE HONORABLE, THE JUDGES OF SAID COURT: The Petition of Amy A. Freed, by her counsel in this matter, Eckert Seamans Cherin & Mellott, LLC, respectfully represents: 1. Settlor, LeRoy S. Zimmerman, Esquire, a resident of Dauphin County, Commonwealth of Pennsylvania, established the Thomas Jaymes Freed Irrevocable {L0337948.1 } SY Trust ("Trust") by Agreement dated September 27,2001 ("Trust Agreement"). A copy of the Trust Agreement is attached hereto and made a part hereof as Exhibit "A". 2. At the time the Trust was established, Petitioner, Amy A. Freed, was named as sole Trustee of the Trust under the Trust Agreement. 3. Petitioner, Amy A. Freed, is a resident of Cumberland County, Commonwealth of Pennsylvania. The beneficiary of the Trust is Thomas Jaymes Freed ("Beneficiary"), a resident of Cumberland County, Commonwealth of Pennsylvania. This Court has jurisdiction over this matter pursuant to 20 Pa.C.S. Section 7708(a)(1) & (3) of the Pennsylvania Decedents, Estates, and Fiduciaries Code, since both Petitioner and Beneficiary are residents of Cumberland County. 4. Petitioner Amy A. Freed desires to appoint Hershey Trust Company ("HTC") as Corporate Co-Trustee of the Trust. Petitioner desires to add HTC to allow the Trust to invest in HTC's common trust funds and other proprietary investments. HTC's Consent to serve as Corporate Co-Trustee is attached hereto and made a part hereof as Exhibit "B". -2- 5. Beneficiary is a minor and Petitioner is his parent and natural guardian. Under the circumstances, no notice needs to be provided to the minor Beneficiary since any such notice would be served on Petitioner in any event. 6. Petitioner believes it is in the best interest of the Beneficiary to allow Petitioner to remove and replace any corporate co-trustee without the necessity of seeking court approval in the future. Petitioner believes that this flexibility will allow her to work with a corporate co-trustee with full fiduciary duties to the Beneficiary, while allowing Petitioner to either remove or replace the corporate co-trustee in the event Petitioner is not satisfied with the performance of the corporate co-trustee. This will allow Petitioner to retain all of the control of a sole trustee while employing the professional services of a corporate co-trustee of her choosing. 7. Settlor has consented to this petition and his Consent is attached hereto and made a part hereof as Exhibit "e". WHEREFORE, Petitioner, Amy A. Freed, prays this Honorable Court to enter a Final Decree in the form attached appointing HTC as Corporate Co-Trustee of the Trust. Respectfully su~ 17~ - 4- Thomas P. Gacki, EsqUire ECKERT SEAMANS CHERIN & MELLOTT, LLC 1.0. No. 44864 213 Market Street, Eighth Floor P. O. Box 1248 Harrisburg, PA 17108-1248 717.237.6093 -3- Date: I () /fl ,2002 { Counsel for Petitioner Amy A. Freed -4- VERIFICATION I, Amy A. Freed, do hereby verify that the facts set forth in the foregoing Petition To Appoint HTC as Corporate Co-Trustee in Accordance with 20 Pa. Cons. Stat. ~ 7740.1 and 20 Pa. Cons. Stat. ~ 7740.2 are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~ 4904, relating to unsworn falsification to authorities. Date: 10 f ~O/()7 THE THOMAS JA YMES FREED TRUST AGREEMENT made this 27th day of September 2001, by and between LEROY S. ZIMMERMAN, of Susquehanna Township, Dauphin County, Pennsylvania, as Grantor, hereinafter referred to as "Grantor", and AMY A. FREED, of Cumberland County, Pennsylvania, as Trustee, hereinafter referred to as "Trustee". WITNESSETH: WHEREAS, Grantor desires irrevocably to assign the assets and properties listed on Schedule "A" to Trustee to manage and control for the benefit of Grantor' grandchild, THOMAS JA YMES FREED. NOW, THEREFORE, in consideration of the covenants contained in this Agreement, Grantor and Trustee agrees as follows: FIRST: DISPOSITNE PROVISIONS DURING BENEFICIARY'S LIFETIME Trustee agrees to hold and administer the assets of this Trust, hereinafter referred to as the "Trust", IN TRUST NEVERTHELESS, for the following uses and purposes: (a) Trustee shall pay to or apply for the benefit of Grantor's grandchild THOMAS JA YMES FREED, born July 9,2001, hereinafter referred to as "Beneficiary" at such times as the Trustee determines as much of the net income and, if income shall be insufficient therefor, as much of the principal, as the trustee, in its sole discretion both as to income and principal, shall deem necessary for the Beneficiary's health, maintenance, support and education (including vocational, secondary, undergraduate and graduate studies and professional training); provided, however, that before making any such payments of principal to the Beneficiary, the Trustee shall take into account other property and income available to the beneficiary, and in so doing the Exhibit" A" decision of the Trustee as to the amount of principal so used and the extent to which other resources are considered shall be conclusive as to all parties in interest. Any income not expended may be accumulated and added to principal. (b) When the Beneficiary attains the age of twenty-five (25) years, the Trustee shall distribute the trust funds (including any accumulated or distributed income) to the Beneficiary outright and free of trust. SECOND: DISPOSITNE PROVISIONS UPON BENEFICIARY'S DEATH In the event the Beneficiary dies before the entire principal of the Trust has been with- drawn or distributed, the then-remaining principal, together with any accumulated or undistribu- ted income of the Trust (as the case may be), shall be distributed to or for the benefit of such person or persons or entity or entities (including the Beneficiary's estate, the Beneficiary's creditors or the creditors of the Beneficiary's estate) in such amounts or proportions and in such lawful interests or estates, whether absolute or in trust, as the Beneficiary may direct by the Beneficiary's Last Will, provided such Last Will contains a specific reference to this general power of appointment, or in default of such appointment, or to the extent it is not effectively exercised, then, to the Beneficiary's executor or administrator. THIRD: TERMINATION OF TRUST Notwithstanding any other provisions hereof, the Trustee may, in its sole discretion, at any time terminate the trust created herein if the amount thereof would make the continuation of any such trust impractical. Upon such termination, the Trustee shall pay the principal and any accumulated or undistributed income to the Beneficiary. -2- FOURTH: MINORITY AND DISABILITY PROVISIONS Unless otherwise provided for herein, any income or principal payable to any beneficiary who may be then a minor (for all purposes ofthis Trust, a minor shall be deemed to be a person who has not attained twenty-one (21) years) or, who may then be, in the opinion of the Trustee, mentally or physically disabled, shall be held in this Trust by the Trustee during such minority or disability unless the Trust share is sooner terminated as otherwise provided herein; said net income and/or principal may be accumulated or expended for the health, maintenance, support and education (including vocational, secondary, undergraduate and graduate studies and professional training) of such beneficiary, as the Trustee, in its sole discretion, may determine. In distributing income and/or principal for such purposes, the Trustee may, in its discretion, apply the same directly without intervention of a guardian, or pay the same to any person having care or control of the beneficiary, or with whom the beneficiary resides. A receipt for such payment shall constitute a full and complete release of the Trustee for such distributions. FIFTH: PROTECTIVE PROVISION All principal and income shall, until actual distribution to a beneficiary, be free of the debts, contracts, alienations, torts and anticipations of any beneficiary, and the same shall not be liable to any levy, attachment, execution or sequestration while in the possession of the Trustee. SIXTH: INSURANCE POLICIES (a) The Trustee shall not be under any obligation to pay premiums on insurance policies held hereunder, if any, and shall have no responsibility to see that such policies are kept in force. -3- (b) No life insurance company shall be responsible to see to the execution or performance of any trust created herein or to the application of any insurance proceeds paid to any such trust. (c) The Trustee may, without incurring liability, compromise and settle any questions relating to any insurance policy upon such terms as it deems wise. The Trustee need not institute litigation to collect the proceeds of any policy unless it is reasonably indemnified for costs, counsel fees and other expenses of such litigation. SEVENTH: POWERS OF TRUSTEE In addition to the powers hereinbefore provided and those given by law, the Trustee, and any additional or successor Trustee, without any order of court and in its sole discretion, may: (a) Hold and retain the property now or hereafter comprising a part of this Trust, for such length of time as in its sole discretion it may deem wise, or sell any part thereof, without liability of any kind by reason of such retention or sale and invest and reinvest, alter, vary and change investments from time to time, in such manner and in such property, real, personal or otherwise, including any common or diversified trust funds maintained by, or stock of, any bank or trust company or any holding company or affiliate thereof, as the Trustee may deem prudent, without being confined to what are known as legal investments under the laws of any state or jurisdiction and without regard to whether such property does or does not represent an overconcentration in one investment; (b) Repair, alter, improve or lease, for any period of time (even for more than five (5) years) any property and give options for leases; -4- (c) Make distribution hereunder either in cash or in kind or partly in each, and cause any share to be composed of property different in kind from any other shares, without regard to the basis of such property; (d) Purchase investments at a premium; (e) Vote in person, or by proxy, all stocks or other securities held; (f) Exercise any rights or warrants to subscribe for stocks or bonds or other allotments received by reason of securities held, or sell them for such prices as it may deem best; (g) Deposit, surrender or exchange stocks or pay any assessments in connection with any reorganization or merger or similar proceedings as it may deem best; (h) Exercise any option, right or privilege granted in any insurance policy; (i) Sell any real or personal property at public or private sale to any person or entity, or give options therefor for cash or credit, without liability on the part of the purchaser to see to the application of the purchase money; provided, however, that no sale hereunder shall be made at a price less than that which the Trustee acting in good faith shall consider to represent adequate and full consideration; CD Borrow money from any source, including any Trustee, mortgage or pledge any property; (k) To merge any trust created hereunder with any other trust or trusts created by the Grantor or by other person( s) under Will or Trust Agreement, if the terms of such trusts are then substantially similar and held for the primary benefit ofthe same person(s); (1) Compromise claims; -5- (m) Register securities in the name of a nominee in such manner that title shall pass by delivery; (n) Employ attorneys, investment counsel, accountants and agents in connection with the discharge of its duties, and determine and pay to them reasonable compensation; (0) To disclaim any interest, in whole or in part, of which my Trustee, may be the beneficiary, devisee, or legatee, by executing an appropriate instrument (in accordance with section 2518 of the Internal Revenue Code of 1986, as amended and supplemented, or such similar section as may then be in effect); (P) Add to the principal of any trust created hereunder any property received from any person by Deed, Will or in any other manner; (q) In the exercise of its discretion with respect to the use of principal for any beneficiary, the Trustee may take into account other property and income available to such beneficiary; in so doing, the Trustee may conclusively rely on written representations made to it by such beneficiary, and the judgment of the Trustee as to the amount of principal so used and the extent to which other resources are considered shall be conclusive as to all parties in interest; (r) Anything herein to the contrary not withstanding, no individual Trustee hereunder shall make or participate in any decision required for the discretionary termination of any trust hereunder or to authorize the discretionary payment of income or principal in cases where such terminated trust or such principal or income (as the case may be) would be distributable to or for the benefit of himself or herself; (s) Exercise all power, authority and discretion given by this Trust after termination of any trust created herein until the same is fully distributed; -6- (t) Accept property or not, in the Trustee's sole discretion, by bequest or lifetime transfer from any person, estate or trust, subject to the payment of, or liability for, state and/or federal gift, estate, transfer, succession, inheritance or other death taxes, including any interest or penalties thereon, and sign any required consent or acknowledgment ofliability for such taxes and/or lien against such property; (u) Anything hereinbefore to the contrary notwithstanding, the Trustee shall not exercise any power, authority or discretion if the exercise of such power, authority or discretion would cause the assets of this trust to be included in the "gross estate" of Grantor and/or Trustee, as such term is defmed in the Code. EIGHTH: APPOINTMENT OF SUCCESSOR TRUSTEES (a) If, during the term of this Trust, the Trustee shall be unable or unwilling to serve, then, and in that event, David J. Freed, currently of Cumberland County, Pennsylvania, shall serve as Trustee. (b) Any Trustee acting hereunder may resign in writing at any time without court approval. NINTH: BENEFICIARY'S RIGHT TO WITHDRAW 1. In each year in which a transfer to this Trust is made, Beneficiary shall have the noncumulative right to withdraw the lesser of: (i) the market value ofthe transfer; (ii) the largest amount as to which the withdrawal right, if not exercised, will not be deemed the release of a general power of appointment under Section 2041 (b)(2) or 25 I 4(e) of the Internal Revenue Code, or such other governing federal estate or gift tax laws in effect from time to time and applicable to this Trust; or (iii) the largest amount under Section 2503(b) of the Internal Revenue Code -7- which Grantor (and Grantor's wife, if Grantor is married) could give to a person without causing any part of the gift to be a "taxable gift" within the meaning of Section 2503( a) of the Internal Revenue Code, or such other governing federal gift tax laws in effect from time to time and applicable to this Trust. (b) This power of withdrawal shall be noncumulative from year to year. If the Beneficiary or guardian does not fully exercise his power to withdraw from this Trust, then the Beneficiary's power for that calendar year shall expire, and the contribution shall be held and administered in accordance with the terms ofthis Agreement. In creating this power of withdrawal, Grantor intends to create an annual noncumulative power of invasion which will qualify any transfer of property to this trust as a transfer of a present interest under Section 2503(b) of the Internal Revenue Code, the nonexercise of which will not be treated as a release of that power as defined in Section 2514(e) of that Code. (c) While the Beneficiary is a minor, his guardian or parent (other than Grantor) may after receiving notice at least once waive further annual notice by an instrument in writing delivered to Trustee. In addition, after the Beneficiary has attained the age of eighteen (18) years, the Beneficiary may, after receiving notice at least once, waive further annual notice by an instrument in writing delivered to Trustee. (d) If the Beneficiary has not attained the legal age of majority, or ifhe is otherwise under a legal disability, his right of withdrawal may be exercised by his parent or by the legal or natural guardian of his estate (other than Grantor). The Trustee shall make payment of amounts required in writing by or on behalf of the Beneficiary pursuant to this power of withdrawal within thirty (30) days after Trustee receives a request for withdrawal. The Trustee -8- shall, in satisfaction of the exercise of a right of withdrawal, make distributions first from the actual or deemed gifts made to the Trust in that calendar year. If property gifted during that year is unavailable or insufficient, the Trustee shall make distributions from other available principal. The Trustee may, in the sole discretion of the Trustee, satisfy the right of withdrawal by distributing cash or other property, including insurance policies. The determination of the Trustee shall be final and binding on the Beneficiary. (e) The Trustee shall notify the Beneficiary of the availability of his right of withdrawal within thirty (30) days of each transfer to this Trust. This power of withdrawal may be exercised only by submitting to Trustee a written request for withdrawal. TENTH: WANEROFBOND Grantor directs that the Trustee and any alternates or successors thereto shall not be required to file a bond to secure the faithful performance of the duties of their office in any juris- diction. ELEVENTH: IRREVOCABILITY This Trust shall be irrevocable, and the Grantor hereby expressly waives all rights and powers to alter, amend, revoke or terminate the Trust or any of its terms in whole or in part. Grantor hereby renounces any interest, either vested or contingent, including any reversionary interest or possibility of reverter, in the income or principal of this Trust. TWELFTH: MISCELLANEOUS (a) Wherever the words "child," "children" or "issue" are used in this instrument, they shall include those both naturally born and legally adopted. -9- (b) Throughout this Agreement of Trust, nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular or plural, whichever shall be applicable. (c) The Trustee, and any successors, shall receive reasonable compensation for services rendered in such capacity and shall be reimbursed for reasonable and necessary expenses incurred in fulfilling duties as Trustee. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. WITNESS: i/~ ik ~~ . ~EAL) LERO S ./ ERMAN, Grantor L.- Trustee acknowledges receipt of the property transferred to her as described on Schedule A to this Agreement, and covenants that she will faithfully discharge her duties as Trustee under this Agreement. Mcv;y:n,;t; 4 !it--,.".Q ~ ./ a ~() 17 i a.-J;J?<; AMY . FREED, Trustee (SEAL) -10- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On the 27th day of September 2001, before me, the subscriber, a notary public in and for the Commonwealth of Pennsylvania, personally appeared the above-named LEROY S. ZIMMERMAN, and in due form of law acknowledged the foregoing Agreement of Trust to be his voluntary act and deed for the purposes expressed therein. WITNESS my hand and notarial seal the day and year aforesaid. 'k~~ ff\. ~\)'~Q~ Not P Notarial Seal Judy M. Ca~ead, No~ PUblic CIty" of I-!ar!'sburg, Dauphin County My Comrrnsslon EXPires June 18, 2005 Member, ~Assocl8f1onofNofNii. -11- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss. ;-1'\ On the 2.1 day of September 2001, before me, the subscriber, a notary public in and for the Commonwealth of Pennsylvania, personally appeared the above-named AMY A. FREED, and in due form oflaw acknowledged the foregoing Agreement of Trust to be her voluntary act and deed for the purposes expressed therein. WITNESS my hand and notarial seal the day and year aforesaid. ~~ 1'). Q.Q~Q~ Not Pu i Notarial Seal J~ M. Ca~nhead. No~ Public lAy~ ~!:..T.~rg.. Dauphin County "'T ml9OfUl1 EXPIres June 18, 2005 Member. Pennsylvanja Assoc;alionOfNotaries -12- SCHEDULE A Item Description Value 1. Common capital stock of Select Medical Corporation IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA In Re: Thomas Jaymes Freed No. Irrevocable Trust Under Agreement Dated September 27, 2001 ACCEPTANCE OF CORPORATE CO-TRUSTEE I, MICHAEL D. LUTZ, Vice President of Hershey Trust Company, do hereby consent on behalf of the Hershey Trust Company to the appointment of Hershey Trust Company as Corporate Co-Trustee of the above-captioned Trust. ()~o~a. ~,J.ol\l) , Date ~\.~ Micha I D. Lutz, Vi~resident Exhibit "B" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA In Re: Thomas Jaymes Freed No. Irrevocable Trust Under Agreement Dated September 27, 2001 CONSENT AND JOINDER I, LEROY S. ZIMMERMAN, Esquire, as Settlor, have read the within Petition and hereby consent and join in the prayer thereof. a~*, ~~ ;)em.? Date I ~~ LeRoy i rman, Esquire Exhibit "C"