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HomeMy WebLinkAbout11-20-09Ncil Warner Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN RE: ESTATE OF HERBERT ISAAC SOCCER, Deceased ~-, ~ -n - , -; --, ,. c ~> .~. IN THE COURT OF COMMON PLEA, -':° ~ ~ ' CUMBERLAND COUNTY, PENNSVLVANI~''~ ~ i ORPHANS' COURT DIVISION No. 2009-00928 DISCLAIMER AND RENUNCIATION OF CAROL RUDNICK SOCCER WHEREAS, Herbert Isaac Soller (herein the "Decedent") died on September 16, 2009 and is survived by his wife, Carol Rudnick Soller; WHEREAS, the Last Will and Testament of the Decedent dated August 17, 2007 (herein the "WiIP') was probated before the Register of Wills of Cumberland County, Pennsylvania on October 1, 2009 (a true and correct copy of the Will is attached hereto and marked as Exhibit «A»~. WHEREAS, the Decedent and Carol Rudnick Soller owned real estate located at 7 Saratoga Place, East Pennsboro Township, Cumberland County, Pennsylvania (herein the "Real Estate") as tenants by the entireties pursuant to a Deed dated January 14, 2004 and filed with the Office of the Recorder of Deeds for Cumberland County, Pennsylvania on January 16, 2004; WHEREAS, the value of the Real Estate is $478,737.00 based upon the tax assessed value of $379,950.00 times the current common level ratio of 1.26; WHEREAS, the Decedent's one-half interest in the Real Estate at the date of death is valued at $239,368.50; WHEREAS, the Real Estate was encumbered by a joint obligation with Carol Rudnick Soller in the amount of $235,000.00; WHEREAS, the Decedent's net interest in the Real Estate was $121,868.50; WHEREAS, Carol Rudnick Soller is desirous of disclaiming the net interest in the Real Estate (herein the "Disclaimed Asset"); WHEREAS, less than nine (9) months have elapsed since the date of Decedent's death and Carol Rudnick Soller has not accepted the benefit of the Disclaimed Asset consistent with Treas. Reg. § 25-2518-2(b), nor has she directed where the Disclaimed Asset is to pass consistent with Treas. Reg. § 25-2518-2(e); and WHEREAS, Carol Rudnick Soller acknowledges that the effect of the execution of this Disclaimer and Renunciation is that she would have enjoyed the benefit of the Real Estate pursuant to Pennsylvania statute as the surviving tenant by the entireties. NOW, THEREFORE, I, CAROL RUDNICK SOCCER, an adult individual residing at 7 Saratoga Place, Camp Hill, Cumberland County, Pennsylvania 17011, do hereby exercise the rights granted to me in the Pennsylvania Probate, Estates and Fiduciaries Code, 20 Pa. C.S.A. § b201 et seq. and Internal Revenue Code, 26 U.S.C.A. § 2518, to DISCLAIM AND RENOUNCE all rights, title and interest to and in the Disclaimed Asset. IN WITNESS WHEREOF, intending to be legally bound hereby, and intending that this Disclaimer and Renunciation shall be filed of record in the Office of the Clerk of the Orphans' Court Division of the Court of Common Pleas of Cumberland County, Pennsylvania, as provided in 20 Pa. C.S.A. § 6204(a), I have hereunto set my hand this ~ ~ day of November, 2009. WITNES,~ .~ r ~; ~~ CAROL RUDNICK SOCCER 2 COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF CUMBERLAND ) On this, the ~ day of November, 2009, before me, a Notary Public in and for the Commonwealth of Pennsylvania, the undersigned officer, personally appeared Carol Rudnick Soller, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that she executed the same for the purposes therein contained. ,~, ~`~ No Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Cheryl L. Baker, Notary Public Upper AIIen Twp., Cumberland CourKy ~ My Commission Expkea JaNt. 13, 2071 Member, Pennsylvania Association or Notaries 3 Last ~~11 alnd '~~sta»Yent ~f I~t~rl~ert Isaac Seller I,.:-Ierbert Isaac Soller, a resident of Camp Hill, Pennsylvania, revoke ama prior ~~~i11s and codicils made by me and declare this to be my Last Will and Testament ('`WFII"~. Article (one Family Information ~~,ection 1.01 Spouse I am married to Carol Rudnick Soller. Any reference in my Will to my wife is to Carol Rudnick Soller. Section 1.02 Children I have three children born before the date of this Will. 'Their names and dates of birth are as follows: Jeffrey Alan Soller, born on November ? 5. 1964; Jonathan Mark Soller, born on December 28, 1966; and Amy Lynne Soller, born on November 10, 1973. Section 1.03 Definition of children and Descendants and Exclusion All and any r.,~erences to my children and descendants are to my childrer, a~~d their descendants, provided however, I have elected to exclude any distributions t+~ descendants of my son Jonathan Mark Soller in this gill. This limitation is not intended to as a reflection of my undying love and affection for Jonathan as I loved aII of my children equally. My executor is authorized to defend vigorously and zealously the above decision, including any attempt to create an ambiguity that Jonathan Mark Solier's descendants are to inherit premised upon some fon~n of intestacy or lack or clarity ~.~~it~in the term descendants or children. ArticlQ ~w9 ~~ecific and general ~i#'t~ Section 2.01 Specific ~Cift of Residence Upon my death, I give any real property, including any buildings and improvements thereon, used by my wife, as her principal residence to my wife if not passim by right of E HIBIT survivorship. This gift shall include the insurance policies and claims under such policies on such property and shall be subject to all liens and encumbrances against such property existing at my death. Section 2.02 Specific Cash Legacies to my Children Irrespective of whether my wife has survived me, I leave the following unconditional cash legacies to my children in the following shares. I leave the sum of Twenty-Five Thousand Dollars ($25,000) to Jeffrey Alan Soller, per stirpes; I leave the sum of Twenty-Five Thousand Dollars ($25,000) to Amy Lynne Soller, per stirpes; l ]cave the sum of Twenty-Five Thousand Dollars ($25,000) to Jonathan Mark Soller and if he shall fait to survive this cash gift shall lapse. I Leave the sum of One Thousand Dollars ($1,000) to Hadassah for the sole purpose of reciting the Kaddish prayer annually. Section 2.03 Disposition of Tangible Personal Property I give all my tangible personal property, together with any insurance policies covering such property and claims under such policies in accordance with a "Memorandum for Distribution of Personal Property" or other similar writing directing the disposition of such property, which shall be dated and signed by me. It is my intent that the writing qualifies to distribute my tangible personal possessions under the Commonwealth of Pennsylvania. Section 2.04 Contingent Distribution of Tangible Personal Property Any tangible personal property not disposed of by a written memorandum as discussed immediately above, or if I choose not to leave a written memorandum, I give such property not disposed of to my wife, if she survives me. If she does not survive me, I give such property to my children excluding Jonathan Mark Soller, but not to their descendants, in shares of substantially equal value, to be divided among my children as they, and such other person as my Executor may select to represent any child believed by my Executor to be incapable of acting in his or her own best interests, shall agree. In case my children and such other person do not agree upon the division of such property within a reasonable time not to exceed six (6) months after my death, my Executor shall make the division. My Executor, whose decision shall be final and binding, may use a lottery or rotation system to determine tre order of selection and distribution of any such property, or may otherwise allocate and distribute the same. As an alternative, my Executor may sell any such property and distribute the net proceeds equally among my living children (excluding Jonathan Mark Soller). My Executor shall incur no liability to any party for any decision made by my Executor with respect to either the division or sale -2- of my tangible personal property, and any decision made by my Executor shall be final and binding on all of my beneficiaries. Section 2.05 Definition of Tangible Personal Property For purposes of this Article, my tangible personal property shall include but not be limited to my household furnishings, appliances and fixtures, works of art, rriotor vehicles, pictures, collectibles, personal wearing apparel and jewelry, books, sporting goods, and hobby paraphernalia. Tangible personal property shall not include any tangible property that my Executor, in its sole discretion, determines to be part of any business or business interest that I own at my death. Section 2.06 Encumbrances and Incidental Expenses of Tangible Personal Property Property being distributed under this Article shall be distributed subject to liens, security interests or other encumbrances on the property so distributed, provided however, my Executor shall pay, as an administration expense, the reasonable expenses of storing, insuring, packing, transporting and otherwise caring for my tangible personal property until actual delivery of each article of property to the appropriate beneficiary. Article Three My Residuary Estate Section 3.01 Definition of My Residuary Estate All the remainder of my estate, including property referred to above that is not effectively disposed of, shall be referred to in my Will as my "residuary estate." Section 3.02 Simultaneous Deaths and The Soller Family Trust If my wife and I die simultaneously or under such circumstances that the order of our deaths cannot be determined, or if my wife shall die within sixty (60) days of me, then I shall have been deemed to have survived my wife and/or she shall be deemed to have survived me 'for purposes of computing the optimum marital deduction to equalize our respective Federal estates in order that the amount allocated to the marital deduction as an outright gift, if any, shall be the minimal amount necessary to reduce my Federal estate to the lowest possible amount while likewise producing a taxable estate for my wife that will also produce the lowest possible amount of Federal Estate Tax considering in each case, all Federal estate tax rates applicable and all available credits, exclusion and deductions. My Executor shall file a disclaimer in the event my wife's executor fails to file a disclaimer as set forth in Section 3.04 in a fractional share equal to the Estate Tax -3- Exemption to fund the Soller Family Trust. It is my strong desire that the Family Trust be funded to assure the unique remainder distributions are effectuated thereunder and to maximize the Federal estate tax exemption. Section 3.03 Disposition of My Residuary Estate (a) If My Wife Survives Me. If my wife survives me, I give my residuary estate to my wife outright, provided however, if my Wife disclaims any such property pursuant to Section 3.04 below, such disclaimed property shall pass to the Soller Family Trust. This share may also be referred to as the Non-Marital Share in trust. (b) If My Wife Fails to Survive Me. If my wife does not survive me, my residuary estate shall pass pursuant to the terms of Article Five. Section 3.04 Disposition of Property Upon Disclaimer by My Wife Within the time and in the manner provided by law in the Commonwealth of Pennsylvania (or such applicable state) and the Internal Revenue Code of 1986 as amended, (the "Code"), my wife, her fiduciary, or her agent serving under a power of attorney may disclaim any fractional share of any interest in or power over property passing to or for her benefit under my Will not to exceed the Federal Estate Tax Exemption as per Code Section 2001. If my wife fractionally disclaims any portion of the property that would otherwise be allocated outright to her, the disclaimed property shall be allocated to the Non-Marital Share to be administered as provided in the Soller Family Trust as set forth in Article Four below. Article Four The Soller Family Trust Section 4.01 Soller Family Trust Beneficiary My wife shall be the only beneficiary of the Soller Family Trust during her lifetime. Section 4.02 Distribution of Income My Trustee shall distribute all of the net income of the Soller Family Trust to my wife at least annually during her lifetime (or such amounts to comply with the minimum distribution rules of Code Section 409 for purposes of any IRAs or Defined Contribution Plan). -4- Section 4.03 Distribution of Principal My Trustee shall distribute to my wife as much principal of the Soller Family Trust as my Trustee determines is necessary or advisable for her health, education, maintenance or support. Section 4.04 Guidelines to My Trustee In making discretionary distributions under this Article, my Trustee should bear in mind that my primary concern and objective is to provide for the well-being of my wife and the preservation of principal is not as important as the accomplishment of this objective. My Trustee shall have no duty to the remainderman. Section 4.05 Effect of My Wife's Remarriage on the Soller Family Trust Distributions Upon the remarriage of my wife, the Soller Family Trust shall terminate unless my wife and her new spouse execute a valid pre-nuptial agreement that complies with the terms set forth below. Remarriage, for purposes of this agreement, shall mean any marriage including a common law marriage entered into by my wife after my death that is valid in the jurisdiction where the marriage took place. If terminated my Trustee shall administer the balance or remainder of the Soller Family Trust as provided below in this Article. If my wife should choose to remarry after my death and executes a valid pre-nuptial agreement not less than thirty (30) days prior to her remarriage then, in my judgment, there will be sufficient protection for the other beneficiaries named in this trust agreement, and the distributions under this Article shall not be restricted by reason of the remarriage. The pre-nuptial agreement shall be in writing and signed by my wife and her new spouse with each having been represented by separate legal counsel. Prior to the execution. of the agreement each party shall have made full disclosure of their assets as their assets exist at that time. The pre-nuptial agreement shall provide that my wife's new spouse shall waive any right to any portion of my wife's share of my wife's premarital assets and my wife's interest in any trust created under this agreement in the event of dissolution of the marriage, or in the event of the death of my wife with the new spouse surviving my wife. Section 4.06 Termination of the Soller Family Trust Upon the death of my wife (or remarriage without a valid prenuptial agreement as set forth in Section 4.05 above), my Trustee shall administer and distribute the balance or remainder of the Soller Family Trust in the following shares in trust or outright to the charities: (a) Jeffery Alan Soller. Thirty Percent (30%) shall pass to Jeffrey Alan Soller, per stirpes; subject however, to the terms of the Jeffrey Alan Soller Life Trust set forth herein; -5- (b) Amy Lynne Soller. Thirty Percent (30%) shall pass to Amy Lynne Soller, per stippes; subject however, to the terms of the Amy Lynne Soller Lifetime Trust set forth herein; (c) Jonathan Mark Soller. Twenty Percent (20%) shall pass to Jonathan Mark Soller, subject however, to the terms of the Jonathan Mark Soller Lifetime Trust set forth herein, and if Jonathan Mark Soller fails to survive his share shall pass as set forth in his trust; {d) Cyrandchildren. Ten Percent { 10%) shall pass in equal but separate shares (5% to Jeffrey Alan Soller's descendants and 5% to Amy Lynne Soller's descendants), to the children of Jeffrey Alan Soller, per stirpes and Amy Lynne Soller, per stirpes, subject however, to the terms of the Education Separate Trusts; and (e) Charitable Share. Ten Percent (10%) shall pass to the below charities in the following shares: (l) Forty Percent (40%) to the American Kidney Fund; (2) Forty Percent (40%) to the Susan G. Komen Breast Cancer Foundation; (3) Ten Percent (10%) to the Chisuk Emuna Congregation; (4) Five Percent (5%) to the Oheb Zedeck Synagogue, Pottsville, Pennsylvania; and (5) Five Percent (5%) to the Centenary College, Hackettstown, New Jersey. Article Five Distribution of My Remaining Property Section 5.01 Division of Residual Remaining Property My residuary estate shall be divided into the following separate shares for my living descendants and charities as set forth below: (a) Jeffery Alan Soller. Thirty Percent (30%) shall pass to Jeffrey Alan Soller, per stitpes; subject however, to the terms of the Jeffrey Alan Soller Life Trust set forth herein; (b) Amy i.ynne Soller. Thirty Percent (30%) shall pass to Amy Lynne Soller, per stitpes; subject however, to tb.e terms of the Amy Lynne Soller Lifetime Trust se± forth herein; (c) Jonathan Mark Soller. Twenty Percent (20%) shall pass to Jonathan Mark Soller, subject however, to the terms of the Jonathan Mark Soller -6- Lifetime Trust set forth herein, and if Jonathan Mark Soller fails to survive his share shall pass as set forth in his trust. (d) Grandchildren. Ten Percent (10%) shall pass in equal (5% to Jeffrey Alan Soller's descendants and 5% to Amy Lynne Soller's descendants), but separate shares to the children of Jeffrey Alan Soller, per stirpes and Amy Lynne Soller, per stirpes, subject however, to the terms of the Education Separate Trusts; and (e) Charitable Share. Ten Percent (10%) shall pass to the below charities in the following shares: (1) Forty Percent (40%) to the American Kidney Fund; (Z} Forty Percent (40%) to the Susan G. Komen Breast Cancer Foundation; (3) Ten Percent (10%) to the Chisuk Emuna Congregation; (4) Five Percent (5%) to the Oheb Zedeck Synagogue, Pottsville, Pennsylvania; and (5} Five Percent (5%) to the Centenary College, Hackettstown, New Jersey. Article SiX The Jeffrey Alan Soller Lifetime Trust Section 6.01 Trust Share Property that is to be held in the Jeffrey Alan Soller Lifetime Trust shall be to this trust under this Article all references to the "Jeffrey Alan Soller Lifetime Trust" shall be to this trust held under this Article. Section 6.02 During Jeffrey's Life The following provisions shall apply during Jeffrey's life: (a) Trust Distribution Amount. In each taxable year of this trust, the Disinterested Trustee shall pay to the Jeffrey an amount equal to Four Percent (4%) of the average of the fair market values of the Separate Tnist on the last day of the trust's three previous tax years (or such lesser number of tax years as are available for the first three tax years of the trust) (hereinafter referred to as the "Trust Distribution Amount"). (b) Four Percent. I understand that the long-term balancing of risk and return is a challenge faced by every trustee that manages assets. Therefore, to maximize the probability of producing an increasing stream -7- of income over a long period of time (without encouraging the Trustees to incur excessive risk), I have set the Trust Distribution Amount at Four Percent (4%). This Trust Distribution Amount is based upon my belief that, over long periods of time, the Trust Distribution Amount can be maintained while the Trust's value increases sufficiently to offset inflation. (c) Ascertainable Standards. In addition to the Trust Distribution Amount, and after considering other resources available to Jeffrey and economics of taxation, the Disinterested Trustees may distribute in their sole and unfettered discretion the accounting income, net realized short terrr~A capital gains, net realized long term capital gains, and principal for the support, education and health care of Jeffrey. (d) Trust Distribution Provisions. Provisions Concerning the Trust Distribution Amount: (1) The Trust Distribution Amount shall be paid as follows: (i) first from net accounting income; (ii) next from net realized short term capital gains; (iii) then from net realized long term capital gains; and (iv) as necessary, from the principal of the trust. (2) In determining the Trust Distribution Amount, both accounting income and principal shall be included in determining the trust's fair market value, but no accruals shall be required or demanded. If the trust includes assets for which there is not a ready market, the Disinterested Trustees, in their sole and unfettered discretion, may adopt any method of valuation they deem reasonable ur_der the circumstances. (3) For any additional contributions which may be made to the trust, the Trust Distribution Amount for the taxable year of the addition shall have added to it a sum equal to Four Percent (4%) of the fair market value of the addition (at the time of the addition) multiplied by a fraction representing the portion of the year between the date of the contribution to the trust and the end of the taxable vear as a fraction of the entire year. (4) For a short taxable year, the Trust Distribution Amount shall be based upon a prorated portion of the Trust Distribution Amount set forth above, comparing the number of days in the short taxable year to the rnzmber of days in the calendar year in which the short taxable year is a part. -8- (e) Provisions Concerning Principal Withdrawal Rights: (1) With respect to Jeffrey's right (but not obligation) to withdraw principal from his Trust under this Article ("Principal Withdrawal Rights"), I strongly encourage Jeffrey to consider practicing discipline and restraint with regard to exercising such right, particularly prior to age forty-five (45) or fifty (50), and requests that Jeffrey seriously reflect upon the following preamble prior to invading the principal of his trust: (A) Jeffrey receives consistent annual distributions through his Trust Distribution Amount, which should increase in size over time the longer the corpus of his trust remains intact and grows. (B) Jeffrey will enjoy the opportunity to significantly increase his wealth by exponentially increasing the value of his trust's assets, achievable, however, only if Jeffrey exercises the requisite discipline to capture the inexorable power of long-term compounding of investment returns. (C) Jeffrey retains the ability to subsequently exercise, in whole or in part, a given withdrawal right (for example, those rights which vest upon turning age thirty (30) and thirty- five (35) maybe exercised at a later date or dates (say, at age forty-two (42) or forty-seven (47)) provided such withdrawal right or portion thereof has not yet been exercised and such withdrawal amount shall equal the fractionated portion at such time to include any growth from the date of which Jeffrey could have withdrawn such monies. (D) Regarding certain material goods or pursuits upon which I would have placed inestimable value at age thirty (30) or even thirty-five (35) (and upon which he would have spent considerable time and money), to such items or avenues at age forty-five (45) I would have ascribed far less significance, or even eschewed. In short, I confess that, while at age thirty (30) I was undoubtedly "younger and brighter," by the time I had turned forty-five (45), I was unequivocally "older and wiser." Odds favor that Jeffrey may share a similar experience as he matures over time. (2) Jeffrey may withdraw all principal of his Trust at any time after he attains age fifty-five (55). Prior to that, at any time after Jeffrey attains the following ages, he shall have the right to exercise his -9- Principal Withdrawal Rights (and must request such share or portion thereof in a written statement to, which must be received sixty (60) days in advance by, the Disinterested Trustees) of his trust as set forth immediately below: (A) At or after attaining age thirty-five (35), one-fifth (1/5) of the then fair market value of the remaining assets of the trust. (B) At or after attaining age forty (40), an additional one-fourth (1 /4) of the then fair market value of the remaining assets of the trust (again reduced by any portion of such trust assets then still subject to the prior rights of withdrawal not yet exercised). (C) At or after attaining age forty-five (45), an additional one- third (1/3) of the then fair market value of the remaining assets of the trust. (D) At or after attaining age fifty (50), an additional one-half (1/2) of the then fair market value of the remaining assets of the trust. (3) The Disinterested Trustees shall distribute to Jeffrey's the estate any principal of Jeffrey's trust that was subject to withdrawal by Jeffrey at the time of Jeffrey's death and which had not previously been withdrawn by Jeffrey. Section 6.03 Drug or Alcohol As a condition precedent to the payment of any Trust Distribution Amount to Jeffrey or the exercise of any Principal Withdrawal Right by Jeffrey, the Disinterested Trustees, in their sole and unfettered discretion, may request Jeffrey to submit to random testing for the use of narcotics or other similar substances, if the Disinterested Trustees reasonably believe that such facts exist that Jeffrey is engaging in the illegal use thereof or if Jeffrey has an alcohol dependency, as the Disinterested Trustees believe in their sole and unfettered discretion. If the use of such narcotics or other similar substances is detected. or if Jeffrey refuses to participate in such test, or if Jeffrey is alcohol dependent, then based upon and arising out my deep and abiding love for Jeffrey, payment of (i) the Trust Distribution Amount under this Article shall be suspended and shall not resume until twelve (12) months after the date of a test in which the narcotic tested for is absent or the use of alcohol thereof ceases for the same period; and (ii) any discretionary (i.e., standard of living) or any staggered Principal Withdrawal Right (i.e., after attaining age thirty (30), the right to withdraw one-tenth (1/10) of the principal) may be adjusted outward in the Disinterested Trustees' sole and unfettered discretion based upon whatever adjusted staggered age schedule the Disinterested Trustees deem appropriate given the - 10- circumstances of Jeffrey. However, during any period of suspension of any Trust Distribution Amount or any Principal Withdrawal Right, the Disinterested Trustees may, in their sole and unfettered discretion, make payments in such amounts as the Disinterested Trustees deem appropriate on behalf of Jeffrey to a drug or alcohol rehabilitation program for Jeffrey's treatment thereof. In the unlikely event that such circumstances described above occur, it is my intention to provide resources for the Disinterested Trustees to render assistance to enable Jeffrey to overcome any su;;h alcohol or narcotic dependency with my sincerest hope that Jeffrey may recover and return to a productive life filled with meaning and purpose. Section 6.04 Upon Jeffrey's Death Upon the death of Jeffrey, the Trustees shall distribute the property then held in such Jeffrey's trust as follows: (a) Power of Appointment. To such one or more persons of the Jeffrey's descendants on such terms as Jeffrey may appoint by a will or other signed writing specifically referring to this power of appointment. (b) Failure to Appoint. In default of appointment or insofar as an appointment is not effective, such property shall be distributed to Jeffrey's descendants then living in equal shares, per stirpes, pursuant to the same terms of the trust under this Article for each descendant or if there are no descendants of Jeffrey then living, to my daughter, Amy Lynne Soller, per stirpes, pursuant to the terms of her trust under this Agreement and, if Amy Lynne Soller or her descendants are not then living, such property shall pass pursuant to the terms of the Takers of Last Resort as set forth under this Agreement. Article Seven The Amy Lynne Soller Lifetime Trust Section 7.01 Trust Share Property that is to be held in the "Amy Lynne Soller Lifetime Trust" shall be held under this Article and all references to the "Amy Lynne Soller Lifetime Trust" shall be to this trust held under this Article. Section 7.02 During Amy's Life The following provisions shall apply during Amy's life: (a) Trust Distribution Amount. In each taxable year of this trust, the Disinterested Trustee shall pay to the Amy an amount equal to Four Percent (4%) of the average of the fair market values of the Separate Trust on the last day of the trust's three previous tax years (or such lesser number of tax years as are available for the first three tax years of the trust) (hereinafter refen-ed to as the "Trust Distribution Amount'). (b) Four Percent. I understand that the long-term balancing of risk and return is a challenge faced by every trustee that manages assets. Therefore, to maximize the probability of producing an increasing stream of income over a long period of time (without encouraging the Trustees to incur excessive risk), I have set the Trust Distribution Amount at Four Percent (4%). This Trust Distribution Amount is based upon my belief that, over long periods of time, the Trust Distribution Amount can be maintained while the Trust's value increases sufficiently to offset inflation. (c) Ascertainable Standards. In addition to the Trust Distribution Amount, and after considering other resources available to Amy and economics of taxation, the Disinterested Trustees may distribute in their sole and unfettered discretion the accounting income, net realized short term capital gains, net realized long term capital gains, and principal for the support, education and health care of Amy. (d) 'Trust Distribution Provisions. Provisions Concerning the Trust Distribution Amount: (1) The Trust Distribution Amount shall be paid as follows: (i) first from net accounting income; (ii) next from net realized short term capital gains; (iii) then from net realized long term capital gains; and (iv) as necessary, from the principal of the trust. (2) In determining the Trust Distribution Amount, both accounting income and principal shall be included in determining the trust's fair market value, but no accruals shall be required or demanded. If the trust includes assets for which there is not a ready market, the Disinterested Trustees, in their sole and unfettered discretion, may adopt any method of valuation they deem reasonable under the circumstances. (3) For any additional contributions which maybe made to the trust, the Trust Distribution Amount for the taxable year of the addition shall have added to it a sum equal to Four Percent (4%) of the fair market value of the addition (at the time of the addition) multiplied by a fraction representing the portion of the year between the date of the contribution to the trust and the end of the taxable year as a fraction of the entire year. -12- (4) For a short taxable year, the Trust Distribution Amount shall be based upon a prorated portion of the Trust Distribution Amount set forth above, comparing the number of days in the short taxable year to the number of days in the calendar year in which the short taxable year is a part. (e) Provisions Concerning Principal Withdrawal Rights: (1) With respect to Amy's right (but not obligation) to withdraw principal from her Trust under this Article ("Principal Withdrawal Rights"), I strongly encourage Amy to consider practicing discipline and restraint with regard to exercising such right, particularly prior to age forty-five (45) or fifty (50), and requests that Amy seriously reflect upon the following preamble prior to invading the principal of her trust: (A) Amy receives consistent annual distributions through her Trust Distribution Amount, which should increase in size over time the longer the corpus of her trust remains intact and grows. (B) Amy will enjoy the opportunity to significantly increase her wealth by exponentially increasing the value of her trust's assets, achievable, however, only if Amy exercises the requisite discipline to capture the inexorable power of long- term compounding of investment returns. (C) Amy retains the ability to subsequently exercise, in whole or in part, a given withdrawal right (for example, those rights which vest upon turning age thirty (30) and thirty- five (3~5) maybe exercised at a later date or dates (say, at age forty-two (42) or forty-seven (47)) provided such withdrawal right or portion thereof has not yet been exercised and such withdrawal amount shall equal the fractionated portion at such time to include any growth from the date of which Amy could have withdrawn such monies. (D) Regarding certain material goods or pursuits upon which I would have placed inestimable value at age thirty (30) or even thirty-five (35) (and upon which he would have spent considerable time and money), to such items or avenues at age forty-five (45) I would have ascribed far less significance, or even eschewed. In short, I confess that, while at age thirty (30) I was undoubtedly "younger and brighter," by the time I had turned forty-five (45), I was -13- unequivocally "older and wiser." Odds favor that Amy may share a similar experience as she matures over time. (2) Amy may withdraw all principal of his Trust at any time after she attains age fifty-five (55). Prior to that, at any time after Amy attains the following ages, she shall have the right to exercise her Principal Withdrawal Rights (and must request such share or portion thereof in a written statement to, which must be received sixty (60) days in advance by, the Disinterested Trustees) of her trust as set forth immediately below: (A) At or after attaining age thirty-five (35), one-fifth (1/5) of the then fair market value of the remaining assets of the trust. (B) At or after attaining age forty (40), an additional one-fourth (1/4) of the then fair market value of the remaining assets of the trust (again reduced by any portion of such trust assets then still subject to the prior rights of withdrawal not yet exercised). (C) At or after attaining age forty-five (45), an additional one- third (1/3) of the then fair market value of the remaining assets of the trust. (D) At or after attaining age fifty (50), an additional one-half (1/2) of the then fair market value of the remaining assets of the trust. (3) The Disinterested Trustees shall distribute to Amy's estate any principal of Amy's trust that was subject to withdrawal by Amy at the time of Amy's death and which had not previously been withdrawn by Amy. Section 7.03 Drug or Alcohol As a condition precedent to the payment of any Trust Distribution Amount to Amy or the exercise of any Principal Withdrawal Right by Amy, the Disinterested Trustees, in their sole and unfettered discretion, may request Amy to submit to random testing for the use of narcotics or other similar substances, if the Disinterested Trustees reasonably believe that such facts exist that Amy is engaging in the illegal use thereof or if Amy has an alcohol dependency, as the Disinterested Trustees believe in their sole and unfettered discretion. If the use of such narcotics or other similar substances is detected, or if Amy refuses to participate in such test, or if Amy is alcohol dependent, then based upon and arising out of the my deep and abiding love for Amy, payment of (i) the Trust Distribution Amount under this Article shall be suspended and shall not resume until -14- twelve (12) months after the date of a test in which the narcotic tested for is absent or the use of alcohol thereof ceases for the same period; and (ii) any discretionary (i.e., standard of living) or any staggered Principal Withdrawal Right (i.e., after attaining age thirty (30), the right to withdraw one-tenth (1 /10) of the principal) maybe adjusted outward in the Disinterested Trustees' sole and unfettered discretion based upon whatever adjusted staggered age schedule the Disinterested Trustees deem appropriate given the circumstances of Amy. However, during any period of suspension of any Trust Distribution Amount or any Principal Withdrawal Right, the Disinterested Trustees may, in their sole and unfettered discretion, make payments in such amounts as the Disinterested Trustees deem appropriate on behalf of Amy to a drug or alcohol rehabilitation program for Amy's treatment thereof. In the unlikely event that such circumstances described above occur, it is my intention to provide resources for the Disinterested Trustees to render assistance to enable Amy to overcome any such alcohol or narcotic dependency with my sincerest hope that Amy may recover and return to a productive life tilled with meaning and purpose. Section 7.04 Upon Amy's Death Upon the death of Amy, the Trustees shall distribute the property then held in such Amy's trust as follows: (a) Power of Appointment. To such one or more persons of the Amy's descendants on such terms as Amy may appoint by a will or other signed writing specifically referring to this power of appointment. (b) Failure to Appoint. In default of appointment or insofar as an appointment is not effective, such property shall be distributed to Amy's descendants then living in equal shares, per stirpes, pursuant to the same terms of the trust under this Article for each descendant or if there are no descendants of Amy then living, to my son, Jeffrey Alan Soller, per stirpes, pursuant to the terms of his trust under this Agreement and, if Jeffrey Alan Soller or his descendants are not then living, such property shall pass pursuant to the terms of the Takers of Last Resort as set forth under this Agreement. -IS- Article Eight The Jonathan Mark Soller Lifetime Trust Section 8.01 Trust Share Property that is to be held in the "Jonathan Mark Soller Lifetime Trust" shall beheld under this Article and all references to the "Jonathan Mark Soller Lifetime Trust" shall be to this trust held under this Article. Section 8.02 During Jonathan's Life The following provisions shall apply during Jonathan's life: (a) Trust Distribution Amount. In each taxable year of this trust, the Disinterested Trustee shall pay to the Jonathan an amount equal to Four Percent (4%) of the average of the fair market values of the Separate Trust on the last day of the trust's three previous tax years (or such lesser number of tax years as are available for the first three tax years of the trust) (hereinafter referred to as the "Trust Distribution Amount"). (b) Four Percent. I understand that the long-term balancing of risk and return is a challenge faced by every trustee that manages assets. Therefore, to maximize the probability of producing an increasing stream of income over a long period of time (without encouraging the Trustees to incur excessive risk), I have set the Trust Distribution Amount at Four Percent (4%). This Trust Distribution Amount is based upon my belief that, over long periods of time, the Trust Distribution Amount can be maintained while the Trust's value increases sufficiently to offset inflation. (c) Ascertainable Standards. In addition to the Trust Distribution Amount, and after considering other resources available to Jonathan and economics of taxation, the Disinterested Trustees may distribute in their sole and unfettered discretion the accounting income, net realized short term capital gains, net realized long term capital gains, and principal for the support, education and health care of Jonathan. (d) Trust Distribution Provisions. Provisions Concerning the Trust Distribution Amount'. (1) The Trust Distribution Amount shall be paid as follows: (i) first from net accounting income; (ii) next from net realized short teen capital gains; (iii) then from net realized long term capital gains; and (iv} as necessary, from the principal of the trust. - 16- (2) In determining the Trust Distribution Amount, both accounting income and principal shall be included in determining the trust's fair market value, but no accruals shall be required or demanded. If the trust includes assets for which there is not a ready market, the Disinterested Trustees, in their sole and unfettered discretion, may adopt any method of valuation they deem reasonable under the circumstances. (3) For any additional contributions which maybe made to the trust, the Trust Distribution Amount for the taxable year of the addition shall have added to it a sum equal to Four Percent (4%) of the fair market value of the addition (at the time of the addition) multiplied by a fraction representing the portion of the year between the date of the contribution to the trust and the end of the taxable year as a fraction of the entire year. (4) For a short taxable year, the Trust Distribution Amount shall be based upon a prorated portion of the Trust Distribution Amount set forth above, comparing the number of days in the short taxable year to the number of days in the calendar year in which the short taxable year is a part. S~:ction 8.03 Drug or Alcohol As a condition precedent to the payment of any Trust Distribution Amount to Jonathan, the Disinterested Trustees, in their sole and unfettered discretion, may request Jonathan to submit to random testing for the use of narcotics or other similar substances, if the Disinterested Trustees reasonably believe that such facts exist that Jonathan is engaging in the illegal use thereof or if Jonathan has an alcohol dependency, as the Disinterested Trustees believe in their sole and unfettered discretion. If the use of such narcotics or other similar substances is detected, or if Jonathan refuses to participate in such test, or if Jonathan is alcohol dependent, then based upon and arising out of my deep and abiding love for Jonathan, payment of (i) the Trust Distribution Amount under this Article shall be suspended and shall not resume until twelve (12) months after the date of a test in which the narcotic tested for is absent or the use of alcohol thereof ceases for the carne period; and (ii) any discretionary (i.e., standard of living) maybe adjusted outward in the Disinterested Trustees' sole and unfettered discretion as the Disinterested Trustees deem appropriate given the circumstances of Jonathan. However, during any period of suspension of any Trust Distribution Amount, the Disinterested Trustees may, in their sole and unfettered discretion, make payments in such amounts as the Disinterested Trustees deem appropriate on behalf of Jonathan to a drug or alcohol rehabilitation program for Jonathan's treatment thereof. In the unlikely event that such circumstances described above occur, it is my intention to provide resources for the Disinterested Trustees to render assistance to enable Jonathan to overcome any such alcohol or narcotic dependency with my sincerest hope that such Beneficiary may recover and return to a productive life tilled with meaning and purpose. -17- Section 8.04 Upon Jonathan's Death Upon the death of Jonathan, the Trustees shall distribute the property then held in Jonathan's trust equally to my daughter, Amy Lynne Soller, per stiipes, and my son, Jeffrey Alan Soller, per stripes, subject to the terms of their separate trusts hereinabove and if either should fail to survive without descendants, his or her share shall pass to the survivor of the two, if living or the survivor's descendants, subject however to the terms of the trust formed for Amy Lynne Soller and/or Jeffrey Alan Soller. If Amy Lynne Soller or her descendants and Jeffrey Alan Soller and his descendants are not then living, such property shall pass pursuant to the terms of the Takers of Last Resort as set forth under this Agreement. Article Nine Education Separate Trusts Section 9.01 Education Separate Trust Terms -Grandchildren's Education Separate Trusts Property that is to be held in the Grandchildren's Education Separate Trusts shall be held under this Article, and all references to the "Grandchildren's Education Separate Trusts" shall be to the separate trusts held under this Article. All property that is directed to be held subject to the terms of the Grandchildren's Education Separate Trusts shall be held as a separate trust ("Separate Trust") for each beneficiary thereof ("Beneficiary"), Section 9.02 During a Beneficiary's Life. The Disinterested Trustees may distribute in their sole and unfettered discretion the accounting income, net realized short term capital gains, net realized long term capital gains, and principal for the education (including room, board and books) of the Beneficiary, provided however, the Disinterested Trustee shall distribute only after the completion of one full academic year (i.e., 30 credits) to the college of which such Beneficiary elects to attend as the Disinterested Trustee determines is necessary or advisable for the education of the Beneficiary not limited to a Bachelor's degree in any major or such other post graduate studies (including doctorate). Distributions shall only be made after the first year of undergraduate if such Beneficiary is maintaining at least a "C" in the undergraduate level and throughout his or her schooling and in the event such Beneficiary is not obtaining a "C" or better grade point average during his or her education, or when such Beneficiary turns Forty (40) years of age (or upon death), the entire principal shall lapse and be distributed as set forth below. -IR- Section 9.03 Upon the BeneBciary's Death or Upon Turning Age Forty. Upon the earlier to occur, the Beneficiary's death, failure to maintain a "C" grade point average or the Beneficiary turning age Forty (40), the Disinterested Trustees shall distribute the balance of assets held herein the charities set forth in the Balance of Residue. Article Ten Takers of Last Resort As a last resort, the Disinterested Trustees shall distribute any property that is directed to be disposed of hereunder or property that is not otherwise disposed of under this Agreement under the various trusts as created herein to the Takers of Last Resort to the following Exempt Organizations as defined herein and if such organization should no longer qualify as an Exempt Organization, such share shall abate and be distributed in the same fractional distributions amongst such other qualifying Exempt Organizations as set forth immediately below: 1. Forty Percent (40%) to the American Kidney Fund; 2. Forty Percent (40%) to the Susan G. Komen Breast Cancer Foundation; 3. Ten Percent (10%) to the Chisuk Emuna Congregation; 4. Five Percent (5%) to the Oheb Zedeck Synagogue, Pottsville, Pennsylvania; and 5. Five Percent (5%) to the Centenary College, Hackettstown, New Jersey. Article Eleven Designation of Fiduciaries Section 11.01 Executor I nominate my wife as my Executor. If my wife fails or ceases to act as my Executor for any reason including voluntary resignation, I nominate Neil Warner Yahn, Esquire, as my Executor and if he is unable to serve for any reason, such attorney from the law firm of James, Smith, Dietterick and Connelly, LLP in Hershey, Pennsylvania. I nominate Neil Warner Yahn as my successor Executor on my own volition and unfettered discretion any insistence or request and do so after being advised of all conflicts. -19- Section 11.02 My Trustee I appoint my wife as my Interested Trustee to serve as the Interested Trustee of the Soller Family Trust to serve as Co-Trustee with such Disinterested Corporate Trustee as selected. I nominate such Disinterested Corporate Trustee as Neil Warner Yahn, Esquire may select for any trust cxeated under my Will including the Family Trust. In addition, my adult descendants shall select such Disinterested Corporate Trustee as they shall agree and deem appropriate for their own separate Trusts. Article Twelve Trusteeship Provisions Section 12.01 Resignation of a Trustee Any Trustee may resign by giving at least thirty days' prior notice to my Executor, if serving, to any Co-Trustees, to the income beneficiaries of the trust and to the successor Trustee. A Trustee's notice of resignation shall become effective upon the successor Trustee's acceptance of appointment. Notice shall be by a signed written instrument. Notice to a minor beneficiary or to a beneficiary who is legally incapacitated shall be given to that beneficiary's personal representative, if any, and if none, to that beneficiary's parent. Section 12.02 Removal of a Trustee A Trustee may be removed only for cause. A Trustee may be removed under this Subsection only if, on or before the effective date of removal, the person or persons having the right of removal appoint an individual or corporate fiduciary that simultaneously commences service as Trustee. The Trustee so appointed may not be related or subordinate to the person or persons having the right of removal within the meaning of Code Section 672(c). If a beneficiary is a minor or is incapacitated, the parent or legal representative of the beneficiary may act on behalf of the beneficiary. Section 12.03 Trustee Default of Designation If at any time the office of Trustee of a trust established under my Will is vacant and there is no named successor Trustee, my wife may name an individual or corporate fiduciary to serve as the successor Trustee. If my wife is deceased, a majority of the income beneficiaries of the trust may appoint an individual or corporate fiduciary as the successor Trustee. Any beneficiary may petition a court of competent jurisdiction to appoint a successor Trustee to fill any vacancy remaining unfilled after a period of 30 days. By making such -20- appointment, such court shall not thereby acquire any jurisdiction over the trust, except to the extent necessary for making such appointment. If a beneficiary is a minor or is incapacitated, the parent or legal representative of the beneficiary may act on behalf of the beneficiary. Section 12.04 Notice of Removal and Appointment Notice of removal shall be in writing and shall be delivered to the Trustee being removed and to any other Trustees then serving. The notice of removal shall be effective in accordance with its provisions. Notice of appointment shall be in writing and shall be delivered to the successor Trustee and any other Trustees then serving. The appointment shall become effective at the time of acceptance by the successor Trustee. A copy of the notice shall be attached to my Will. Section 12.05 Appointment of Independent Special Trustee If for any reason the Trustee of any trust created under my Will is unwilling or unable to act with respect to any trust property or any provision of this agreement, the Trustee shall appoint, in writing, a corporate fiduciary or an individual to serve as an Independent Special Trustee as to such property or with respect to such provision. The Independent Special Trustee appointed shall not be related or subordinate to any beneficiary of the Trust within the meaning of Code Section 672(c). The Trustee may revoke any such appointment at will. An Independent Special Trustee shall exercise all fiduciary powers granted by this agreement unless expressly limited elsewhere in my Will or by the Trustee in the instrument appointing the Independent Special Trustee. An Independent Special Trustee may resign at any time by delivering written notice of resignation to the Trustee. Notice of resignation shall be effective in accordance with the terms of the notice. Section 12.06 Corporate Fiduciaries Any corporate fiduciary serving my WiII as a Trustee must be a bank, trust company, or public charity that is qualified to act as a fiduciary under applicable federal and state taw and that is not related or subordinate to any beneficiary within the meaning of Code Section 672(c). Such corporate fiduciary shall: Have a combined capital and surplus of at least Five Million Dollars; of Maintain in force a policy of insurance with policy limits of not less than Five Million Dollars covering the errors and omissions of my Trustee with a solvent insurance carrier licensed to do business in the state in which my Trustee has its corporate headquarters; or Have at least Fifty Million Dollars in assets under management. -21- Section 12.07 Incapacity of a Trustee If any individual Trustee hall become incapacitated, it shall not be necessary for the incapacitated Trustee to resign as Trustee. A written declaration of incapacity by the Co- Trustee, if any, or, if none, by the party designated to succeed the incapacitated Trustee, if made in good faith and if supported by a written opinion of incapacity by a physician who has examined the incapacitated Trustee, shall terminate the trusteeship. Section 12.08 Exoneration of My Trustee No successor Trustee is obligated to examine the accounts, records or actions of any previous Trustee or of the executor of my estate. No successor Trustee shall be in any way or manner responsible for any act or omission to act on the part of any previous Trustee or the personal representative of my estate. Unless a Trustee has received notice of removal, the Trustee shall not be liable to me or to any beneficiary for the consequences of any action taken by the Trustee that would have been, but for the prior removal of the Trustee, a proper exercise by the Trustee of the authority granted to the Trustee under this agreement. Any Trustee may request and obtain from the beneficiaries or from their legal representatives, agreements in writing releasing the Trustee from any liability that may have arisen from the Trustee's acts or omissions to act and indemnifying the Trustee from liability for the acts or omissions. An agreement described in this paragraph, if acquired from all the living beneficiaries of the trust or from their legal representatives, shall be conclusive and binding upon all parties, born or unborn, who may have, or may in the future acquire, an interest in the trust. _NIy Trustee may require a refunding agreement before making any distribution or allocation of trust income or principal and may withhold distribution or allocation pending determination or release of a tax lien or other lien. This refunding agreement provision shall not apply to any distribution that qualifies for the federal estate tax unlimited marital deduction or the federal estate tax charitable deduction. Section 12.09 Rights of Successor Trustees Each successor Trustee serving under this agreement, whether corporate or individual, shall have all of the title, rights, powers and privileges granted to the originally named Trustee. In addition, each successor Trustee shall be subject to all of the restrictions imposed upon and obligations and duties, discretionary and ministerial, given to the originally named Trustee. -22- Article Thirteen Powers of My Fiduciaries Section 13.01 Grant of Powers My fiduciaries may perform every act reasonably necessary to administer my estate and any trust established under my Will. Specifically, my fiduciaries may exercise the following powers: They may hold, retain, invest, reinvest and manage real or personal property, including interests in any form of business entity including but not limited to, limited partnerships and limited liability companies, and policies of life, health and disability insurance, without diversification as to kind, amount or risk of non-productivity and without limitation by statute or rule of law. They may partition, sell, exchange, grant, convey, deliver, assign, transfer, lease, option, mortgage, pledge, abandon, borrow, loan, contract, distribute in cash or kind or partly in each at fair market value on the date of distribution, without requiring pro rata distribution of specific assets and without requiring pro rata allocation of the tax bases of such assets. They may hold in nominee form, continue businesses, carry out agreements, and deal with themselves, other fiduciaries and business organizations in which my fiduciaries may have an interest. They may establish reserves, release powers, and abandon, settle or contest claims. They may employ attorneys, accountants, custodians of the trust assets, and other agents or assistants as deemed advisable to act with or without discretionary powers and compensate them and pay their expenses from income or principal or both. Section 13.02 Fiduciaries' Powers Act In addition to all of the above powers, my fiduciaries may, without prior authority from any court, exercise all powers conferred by my Will or by common law or by any fiduciary powers act or other statute of the Commonwealth of Pennsylvania or any other jurisdiction whose law applies to my Will. My Executor shall have absolute discretion in exercising these powers. Except as specifically limited by my Will, these powers shall extend to all property held by my fiduciaries until the actual distribution of the property. Section 13.03 Alternative Distribution Methods My fiduciaries may make any payment provided for under my Will or under the terms of any trust established under my Will as follows: -23- Directly to the beneficiary; In any form allowed by applicable state law for gifts or transfers to minors or persons under a disability; To the beneficiary's guardian, conservator, agent under a durable power of attorney or caregiver for the benefit of the beneficiary; or By direct payment of the beneficiary's expenses, made in a manner consistent with the proper exercise of the fiduciary's duties hereunder. A receipt by the recipient for any such distribution shall fully discharge the fiduciary. Section 13.04 Limitation on My Trustee's Powers All powers granted to my Trustee under my Will or by applicable law shall be limited as set forth in this Section, unless explicitly excepted by reference to this Section. (a) An Interested Trustee Limited to Ascertainable Standards An Interested Trustee may not exercise or participate in the exercise of discretion with respect to the distribution of income or principal, or the termination of the trust to or for the benefit of a beneficiary, to the extent that the exercise of such discretion is other than for the health, education, maintenance or support of a beneficiary as described under Code Sections 2041 and 2514. (b) No Distributions in Discharge of Support Obligation of My Trustee My. Trustee may not exercise or participate in the exercise of discretion with respect to the distribution of income or principal to any person my Trustee is legally obligated to support, to the extent the distribution discharges the support obligation of my Trustee. If a beneficiary has the power to remove a Trustee, the Trustee may not exercise or participate in the exercise of discretion with respect to the distribution of income or principal to any person the beneficiary having the power to remove is legally obligated to support, to the extent such distribution discharges the support obligation of the beneficiary. (c) Insurance Policy on the Life of My Trustee If the trust holds a policy that insures the life of my Trustee, my Trustee shall have no right to exercise any powers or rights with respect to the policy. A Co-trustee serving under my Will shall exercise the powers and rights with respect to the policy. If the insured Trustee is the only Trustee, then an Independent Special Trustee designated under Section 12.05 shall exercise the powers and rights with respect to the policy. -24- if any rule of law or court decision construes the ability of the insured Trustee to name an Independent Special Trustee as an incident of ownership of the policy, then a majority of the then current mandatory and discretionary income beneficiaries (excluding the insured Trustee if he or she is a beneficiary) shall select the Independent Special Trustee. (d) Insurance Policy on a Beneficiary's Life If the trust holds a policy that insures the life of a beneficiary, the beneficiary (acting individually or as Trustee) shall have no power over the policy, the cash value of the policy, or the proceeds of the policy. The intent of this denial of power is to prevent an insured beneficiary from having a power that would constitute an incident of ownership of the policy. In addition, no distribution of income or principal to the insured beneficiary shall be satisfied out of the proceeds of the policy, the cash value of the policy or any other economic benefit of the policy. The limitations of this Subsection shall not apply if the proceeds of the policy would, upon the death of the beneficiary, otherwise be included in the gross estate of the beneficiary for federal estate tax purposes. Article Fourteen Administrative Provisions Section 14.01 No Court Proceedings Each trust established under my Will shall be administered expeditiously, consistent with the provisions of my Will, free of judicial intervention, and without order, approval or action of any court. The trust shall be subject to the jurisdiction of a court only if my Trustee or another interested party institutes a legal proceeding. A proceeding to seek instructions or a court determination shall be initiated in the court having original jurisdiction over matters relating to the construction and administration of trusts. Seeking instructions or a court determination shall not subject this trust to the continuing jurisdiction of the court. Section 14.02 No Bond I direct that no fiduciary be required to give any bond in any jurisdiction, and if, notwithstanding this direction, any law, statute, or rule of court requires any bond, no sureties be required. - 25 - Section 14.03 Fiduciary Compensation An individual serving as Trustee, including my wife, shall be entitled to fair and reasonable compensation for the services rendered as a fiduciary. A corporate fiduciary serving as my Trustee shall be compensated by agreement with an individual Trustee or, in the absence of an individual Trustee or in the absence of an agreement, in accordance with the corporate fiduciary's published schedule of fees in effect at the time the services are rendered. My Trustee may charge additional fees for services it provides that are not comprised within its duties as Trustee such as fees for legal services, tax return preparation and corporate finance or investment banking services. In addition to receiving compensation, my Trustee may be reimbursed for reasonable costs and expenses incurred in carrying out its duties under my Will. Section 14.04 Spendthrift Provision Neither the income nor the principal of any trust established under my Will shall be assigned, anticipated or alienated in any manner by any beneficiary, nor shall it he subject to attachment, bankruptcy proceedings or any other legal process, or to the interference or control of creditors or others. Nothing contained in this Section shall restrict in any way the exercise of any power of appointment granted in my Will. Section 14.05 Distributions to Incapacitated Persons and Persons Under Thirty (30)Years of Age If my Executor or the Trustee of a trust established under my Will is directed to distribute any share of my probate estate or trust principal to a beneficiary, other than my spouse, who is under the age of Thirty (30) years or is in the opinion of that fiduciary, under any form of incapacity that renders the beneficiary unable to administer distributions properly when the distribution is to be made, and if no other trust is then to be held under my Will for the beneficiary's primary benefit, the fiduciary may, as Trustee, in the fiduciary's discretion, continue to hold the beneficiary's share as a separate trust until the beneficiary reaches the age of Thirty (30) or overcomes the incapacity. When the beneficiary reaches the age of Thirty (30) or overcomes the incapacity, the fiduciary shall distribute the beneficiary's trust to him or her, outright free of trust. While any trust is being held under this Section, the Trustee, other than an interested Trustee, shall pay to the beneficiary for whom the trust is held such amounts of the net income and principal as the fiduciary determines to be necessary or advisable for any purpose. If the Trustee is an interested Trustee, the Trustee shall pay to the beneficiary for whom the trust is held such amounts of the net income and principal as the fiduciary determines to be necessary or advisable for the beneficiary's health, education, maintenance or support. Upon the death of the beneficiary before that time, the fiduciary shall distribute the trust, including any accrued and undistributed income, to such persons as such beneficiary may -26- appoint by his or her will. The will exercising this general power of appointment may be made either before or after my death, making specific reference to this power and shall be admitted to probate in a formal or informal proceeding. This general power may be exercised in favor of the beneficiary, the beneficiary's estate, the beneficiary's creditors, or the creditors of the beneficiary's estate. To the extent this general power of appointment is not exercised, on the death of the beneficiary, the trust property shall be distributed to the beneficiary's then living descendants, per stirpes, or, if none, per stirpes to the living descendants of the beneficiary's nearest lineal ancestor who was a descendant of mine, or if no such descendant is then living, to my then living descendants, per stirpes. If I have no then living descendants the property shall be distributed under the provisions of Article Ten. Section 14.06 Representative of a Beneficiary The guardian of the estate or, if none, the guardian of the person of a beneficiary may act for such beneficiary for all purposes under my Will or may receive information on behalf of such beneficiary. Section 14.07 Ancillary Administration In the event ancillary administration shall be required or desired and my domiciliary Executor is unable or unwilling to act as an ancillary fiduciary, my domiciliary Executor shall have the power to designate, compensate, and remove the ancillary fiduciary. The ancillary fiduciary may either be a natural person or a corporation. My domiciliary Executor may delegate to such ancillary fiduciary such powers granted to my original Executor as my Executor may deem proper, including the right to serve without bond or surety on bond. The net proceeds of the ancillary estate shall be paid over to the domiciliary Executor. Section 14.08 Exercise of Testamentary Power of Appointment A testamentary power of appointment granted in any trust under my Will may be exercised by valid will that specifically refers to this power of appointment. The holder of a testamentary power of appointment may exercise the power to appoint property among the permissible appointees in equal or unequal proportions, and on such terms and conditions, whether outright or in trust, as the holder of the power designates. The holder of a testamentary power of appointment may grant further powers of appointment to any person to whom principal may be appointed, including a presently exercisable limited or general power of appointment. My Trustee may conclusively presume that any power of appointment granted to any beneficiary of a trust created under my Will has not been exercised by the beneficiary if my Trustee has no knowledge of the existence of a valid will exercising the power within 3 months after the beneficiary's death. -27- Section 14.09 Benefits Payable to My Trustee The Trustee of any trust established under my Will may exercise any right to determine the manner and timing of payment (by lump sum or otherwise) or any benefits or assets payable to such trust by reason of my death. This includes, but is not limited to, such benefits under life insurance policies, employee benefit plans, retirement plans or other contracts, plans or arrangements providing for payment or transfer at death to such trust. A Trustee shall not be liable to any benef ciary for the death benefit election selected. A Trustee shall not be obligated to undertake litigation for collection of any benefits or assets payable to such trust unless it is indemnified to its satisfaction against any liability and expense of such litigation. Persons or entities dealing in good faith with the Trustee of a trust established under my Will shall not be required to see to the proper application of proceeds delivered to the Trustee, or to inquire into any provision of my Will. Payment to the Trustee and the receipt of or release by the Trustee shall fully discharge the person or entity making such payment. Notwithstanding anything in my Will to the contrary, no benefits or assets payable by reason of my death to the Trustee of any trust established under my Will shall be subject to the claims against my estate, nor shall such benefits be subject to the control of my Executor nor be included in the property. administered as a part of my probate estate. Section 14.10 Restrictions on Certain Payments from Retirement Plans The "designation date" shall mean September 30 of the calendar year following the calendar year in which my death occurs, or on or after such other date as shall be established by Treasury Regulations or other tax law authority as the final date for determining whether this trust meets the requirements for treatment of the trust's beneficiaries as if they had been named directly as beneficiary of any qualified retirement plan payable to this trust. Notwithstanding any other provision of my Will or state law to the contrary, my Trustee may not, on or after the "designation date", distribute to or for the benefit of my estate, any charity or any other non-individual beneficiary any qualified retirement benefit payable to a trust created under my Will It is my intent that all such qualified retirement benefits held by or payable to this trust on or after the designation date be distributed to or held for only individual beneficiaries, within the meaning of Code Section 401 (a)(9). Accordingly I direct that qualified retirement benefits not be used or applied on or after the designation date for payment of my debts, taxes, expenses of administration or other claims against my estate or for payment of estate, inheritance or similar transfer taxes due on account of my death. This Section shall not apply to any bequest or expense that is specifically directed to be funded with qualified retirement benefits. -28- Section 14.11 Distributions from Retirement Plans to Trusts Each year, beginning with the year of my death, if any trust created under my Will becomes the beneficiary of death benefits under any qualified retirement plan, my Trustee shall withdraw from the trust's share of the plan, in each year, the required minimum distribution required under Code Section 401(a)(9). My Trustee may withdraw such additional amounts from the trust's share of the plan as my Trustee deems advisable; but, only if the dispositive teens of the trust authorize my Trustee to immediately distribute the withdrawn amount as provided below. My Trustee shall immediately distribute all net amounts withdrawn to: My descendants, per stirpes, who are beneficiaries of such trust; and If no descendant of mine is a beneficiary of the trust, then to the income beneficiaries of such trust in equal shares. Amounts required to be withdrawn and distributed under this Section shall, to the extent they are withdrawn and distributed, reduce mandatory distribution amounts under other provisions of my Will that otherwise require distribution of all of the income of the trust. The purpose of this Section is to insure that the life expectancy of the beneficiaries of the trust may be used to calculate the minimum distributions required by the Internal Revenue Code. This Section shall be interpreted consistent with my intent despite any direction to the contrary in my Will. Section 14.12 Minimum Required Distribution In administering any trust created under my Will, the minimum required distribution for any year shall be, for each qualified retirement plan, the greater of (1) the value of the qualified retirement plan determined as of the preceding year-end, divided by the applicable distribution period; and (2) the amount that my Trustee shall be required to withdraw under the laws then applicable to the trust to avoid penalty. If my death occurs before my required beginning date with respect to a qualified retirement plan, the applicable distribution period means the life expectancy of the beneficiary. If my death occurs on or after my required beginning date with respect to a qualified retirement plan, the applicable distribution period means the life expectancy of the beneficiary, or (if longer) my remaining life expectancy. Notwithstanding the foregoing, if my death occurs on or after my required beginning date with respect to a qualified retirement plan, the minimum required distribution for the year of my death shall mean (a) the amount that was required to be distributed to me with respect to the qualified retirement plan during the year, minus (b) amounts actually distributed to me with respect to the qualified retirement plan during the year. Life expectancy, required beginning date and other similar terms used in this Subsection, shall be determined in accordance with Code Section 401(a)(9). -29- Section 14.13 Majority Action of Trustees If two Trustees are eligible to act with respect to a given matter, the concurrence of both shall be required for action to be taken; if more than two Trustees are eligible to act with respect to a given matter, the concurrence of a majority of my Trustees shall be required for action to be taken. A nonconcurring Trustee may dissent or abstain from a decision of the majority. A Trustee shall be absolved from personal liability by registering its dissent or abstention in the records of the trust. After doing so, the dissenting Trustee shall then act with my other Trustees in any way necessary or appropriate to effectuate the decision of the majority. Notwithstanding any provision of my Will to the contrary, a Trustee may disclaim or release, in whole or in part, by an instrument in writing, any power it holds as Trustee, irrevocably or for any period of time that the Trustee may specify. The Trustee may make the relinquishment of a power personal to the Trustee or may relinquish the power for all subsequent Trustees. Section 14.14 Disclaimer by Beneficiary Serving as Trustee Notwithstanding any provision of my Will to the contrary, any beneficiary serving as a Trustee may disclaim or release, by an instrument in writing, any power as Trustee in whole or in part, irrevocably or for such period of time as such Trustee may specify, without affecting the continuance of the power in any other Trustee. Section 14.15 Delegation of Authority; Power of Attorney Any fiduciary may, by an instrument in writing, delegate to any other fiduciary the right to exercise any power, including a discretionary power, granted the fiduciary in my Will. During the time a delegation under this Section is in effect, the fiduciary to whom the delegation was made may exercise the power to the same extent as if the delegating fiduciary had personally joined in the exercise of the power. The delegating fiduciary may revoke the delegation at any time by giving written notice to the fiduciary to whom the power was delegated. The fiduciary may execute and deliver a revocable or irrevocable power of attorney appointing any individual or corporation to transact any and all business on behalf of the trust. The power of attorney may grant to the attorney-in-fact all of the rights, powers, and discretion that the fiduciary could have exercised. Section 14.1b Additions to Separate Trusts If on the termination of any separate trust created under my Will a final distribution is to be made to a person for whom my Trustee then holds another separate trust created under my Will, my Trustee shall add the distribution to the other separate trust instead of being distributed outright. My Trustee shall treat the distribution for purposes of administration as though it had been an original part of the other separate trust. -30- Section 14.17 Beneficiary's Status Until a fiduciary receives notice of the incapacity, birth, marriage, death or other event upon which a beneficiary's right to receive payments may depend, the fiduciary shall not be liable for acting or failing to act with respect to the event or for disbursements made in good faith to persons whose interest may have been affected by such event. Unless otherwise provided in my Will, the parent or legal representative may act on behalf of a beneficiary who is a minor or is incapacitated. A fiduciary ma_y rely on any information provided by a beneficiary with respect to the beneficiary's assets and income. The fiduciary shall have no independent duty to investigate the status of any beneficiary and shall not incur any liability for failure to do SO. Section 1.4.18 Certificate by Trustee A written statement of the Trustee of any trust established under my Will at any time as to any facts relative to the trust may always be relied upon and shall always be conclusive evidence in favor of any transfer agent and any other person dealing in good faith with the Trustee in reliance upon such statement. Section 14.19 Determination of Principal and Income My Trustee may determine in a fair, equitable and practical manner how all Trustee's fees, disbursements, receipts, and wasting assets shall be credited, charged, and apportioned between principal and income. My Trustee may set aside from trust income reasonable reserves for taxes, assessments, insurance premiums, repairs, depreciation, obsolescence, depletion, and for the equalization of payments to or for the beneficiaries. My Trustee may select appropriate accounting periods with regard to the trust property. Section 14.20 Funeral and Other Expenses of Beneficiary Upon the death of an income beneficiary of a trust created under my Will, my Trustee may pay the funeral expenses, burial or cremation expenses, enforceable debts and other expenses incurred due to the death of the beneficiary from trust property. This Section shall only apply to the extent the income beneficiary has not exercised any testamentary power of appointment granted to him under my Will. My Trustee may rely upon any request by the personal representative or members of the family of the deceased beneficiary for payment without verifying the validity or the amounts without being required to see to the application of the amounts so paid.. My Trustee may make decisions under this Section without regard to any limitation on payment of expenses imposed by statute or rule of court and may be made without obtaining the approval of any court having jurisdiction over the administration of the deceased beneficiary's estate. -31 - Section 14.21 Trust Accounting The Trustee of a trust shall render an accounting at least annually to the income beneficiaries of the trust during the accounting period. The accounting shall include the receipts, disbursements, and distributions occurring during the accounting period and a balance sheet of the trust property. In the absence of fraud or manifest error, the assent by all income beneficiaries to an accounting of an Independent Trustee shall make the matters disclosed in the accounting binding and conclusive upon all persons, both those in existence on the date of my Will and those to be born in the future who have, or will in the future have, a vested or contingent interest in the trust property. In the case of a minor or incapacitated beneficiary, that beneficiary's natural guardian or legal representative shall give the assent required under this Section. The failure of any person to object to any accounting by giving written notice to my Trustee within 60 days of the person's receipt of a copy of the accounting shall be deemed to be an assent by such person. The trust's financial records and documentation shall be available at reasonable times and upon reasonable notice for inspection by trust beneficiaries and their representatives. My Trustee shall not be required to furnish trust information regarding my trust to any individual, corporation, or other entity that is not a beneficiary or the representative of a beneficiary, and is not requesting the information pursuant to a valid court order. Section 14.22 Power to Merge or Sever Trusts My Trustee may merge and consolidate a trust created under my Will with any other mist, if the two trusts contain substantially the same terms for the same beneficiaries and at least one Trustee in common. My Trustee may administer the merged and consolidated trust as a single trust or unit. If, however, a merger or consolidation does not appear feasible, my Trustee may consolidate the assets of the trusts for purposes of investment and trust administration while retaining separate records and accounts for each respective trust. My Trustee may sever any trust on a fractional basis into two or more separate and identical trusts or may segregate a specific amount or asset from the trust property by allocation to a separate account or trust. Income earned on a segregated amount or specific asset after the segregation passes with the amount or asset segregated. My Trustee shall hold and administer each separate trust upon terms and conditions substantially identical to those of the trust from which it was severed. Subject to the terms of the trust, my Trustee may consider differences in federal tax attributes and other pertinent factors in administering the trust property of any separate account or trust, in making applicable tax elections, and in making distributions. A separate trust created by severance must be treated as a separate trust for all purposes from the date on which the severance is effective; however, the effective date of severance may be retroactive to a date before the date on which my Trustee exercises the power. -32- Section 14.23 Power to Terminate Trusts If; at any time, my Trustee, other than an Interested Trustee, in its sole discretion, determines that a trust created under my Will is no longer economical or is otherwise inadvisable to administer as a trust, or if my Trustee, other than an Interested Trustee, deems it to be in the best interest of my beneficiaries, my Trustee, without further responsibility, may terminate the trust and distribute the trust property, including any undistributed net income, in the following order of priority: To my wife, if then a beneficiary of the trust; If my wife is not then a beneficiary of the trust, to the beneficiaries then entitled to mandatory distributions of net income of the trust and in the same proportions; and If none of the beneficiaries are entitled to mandatory distributions of net income, to the beneficiaries then eligible to receive discretionary distributions of net income of the trust, in such amounts and shares as my Trustee, other than an Interested Trustee, may determine. Section 14.24 Discretionary Distribution to Fully Utilize Basis Increase Upon Death of Beneficiary This Section shall apply during any time there is no federal estate tax in effect and Code Section 1022 is in effect. I±~ I have given my Trustee the authority to make distributions of principal to the beneficiary of a trust, my Trustee, other than an Interested Trustee, may, from time to time, distribute to the beneficiary as much of the principal of the trust as my Trustee may determine is advisable to permit the estate of the beneficiary to take full advantage of the aggregate basis increase allowed under Code Section 1022, excluding the additional basis increase for property acquired by a surviving spouse under Code Section 1022(c). Before making a distribution of property under this Section, I request, but do not require that my Trustee determine whether there is a good reason to retain the property in trust such as whether or not the asset may be sold in the near future, the need for creditor protection by the beneficiary, protection of the beneficiary from failed marriages and protection of the asset for future generations. My Trustee shall not be liable to any beneficiary for the exercising or failing to exercise its discretion to make a distribution under this Section. Section 14.25 Distribution Powers My fiduciaries may make any distribution or division of my estate or of the trust property or any trust established under my Will without the consent of any beneficiary. My fiduciaries may make distributions in cash or in kind, or partly in each, in such proportion. (and not necessarily pro rata) and at such values as they shall determine. - 33 - My fiduciaries may allocate undivided interests in specific assets to any beneficiary or trust share in such kind and proportion (and not necessarily pro rata) as they shall determine. Such determinations may be made by my fiduciaries without regard to the basis or other income tax attributes of the property. Article Fifteen Tax Provisions Section 15.01 Payment of Death Taxes All estate, inheritance and succession taxes payable by reason of my death, whether or not such property passes under my Will shall be paid as set forth in this Section. (a) Payment from Residue Except as otherwise provided in this Section or elsewhere in my Will, my Executor shall provide for payment of all such taxes from my residuary estate as an administrative expense without apportionment and shall not seek contribution toward or recovery of any such payments from any individual. For the purposes of this Section, however, such taxes shall not include any additional estate tax imposed by Code Section 2031(c)(5)(C), Code Section 2032A(c) or Code Section 2057(f) or any other comparable taxes imposed by any other taxing authority. Nor shall such taxes include any generation-skipping transfer tax, other than a direct skip. {b) Protection of Exempt Property In no event shall any such taxes be allocated to or paid from any assets that are not included in my gross estate for federal estate tax purposes. (c) Protection of the Marital Deduction Notwithstanding anything to the contrary in my Will, no such taxes shall be paid from or allocated to any property qualifying for the federal estate tax marital deduction under my Will unless there is no other property available to pay such taxes. My Executor shall not pay any administrative expenses from the net income of any property qualifying for the federal estate tax marital deduction under my Will if such payment would require a reduction in the estate tax marital deduction under Code Section 2056(b). (d) Charitable Distributions Notwithstanding anything in my Will to the contrary, no death taxes payable as a result of my death shall be allocated to or paid from any -34- assets passing to any organization qualifying for the federal estate tax charitable deduction, or split-interest charitable trusts unless my Executor has first used all other assets available to my Executor. (e) Property Passing Outside of My Will Except as to Qualified Retirement Benefits, all such taxes imposed with respect to property included in my gross estate for purposes of such taxes and passing other than by my Will shall be apportioned among the persons and entities benefited in the proportion that the taxable value of the property or interest bears to the total taxable value of the property and interests received by all persons benefited. The values as finally determined in the respective tax proceedings shall be the values used for the apportionment of the respective taxes. (~ No Apportionment Between Current and Future Interests No interest in income and no estate for years or for life or other temporary interest in any property or trust are subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder are chargeable against the corpus of the property or trust subject to the temporary interest and remainder. (g) No Apportionment to Retirement Plan Assets No such taxes shall be paid from or allocated to any retirement plan assets that become a part of my estate or a trust established under my Will or are otherwise required to be included in my gross estate for purposes of such taxes unless there is no other trust property available for payment of such taxes. Section 15.02 Tax Elections In exercising any permitted elections regarding taxes, my fiduciaries may make such decisions as they deem to be appropriate in all the circumstances and my fiduciaries shall be under no duty to make any compensatory adjustment as a consequence of any such election. My Executor may also execute such joint tax returns and pay such taxes or interest and deal with any tax refunds, interest, or credits as it shall deem necessary or advisable, whether in the interest of the other joint tax payer or in the interest of my estate. -35- Article Sixteen Definitions and General Provisions Section 16.01 Definitions For purposes of my Will and for the purposes of any trust established under my Will, the following definitions shall apply: (a) Adopted and Afterborn Persons A legally adopted person in any generation and his or her descendants, including adopted descendants, shall have the same rights and be treated in the same manner under my Will as natural children of the adopting parent, provided such person is legally adopted prior to attaining the age of 18 years. A person shall be deemed to be legally adopted if the adoption was legal in the jurisdiction in which it occurred at the time that it occurred. A fetus in utero that is later born alive shall be considered a person in being during the period of gestation. (b) Descendants The term "descendants" shall include a person's lineal descendants of all generations, with the exception of Jonathan Mark Soller (and his descendants) unless expressly included. (c) Education The teen "education" is intended to be an ascertainable standard in accordance with Code Sections 2041 and 2514 and shall include, but not be limited to: Enrollment at private elementary, junior and senior high school including boarding school; Undergraduate and graduate study in any field at a college or university; Specialized, vocational or professional training or instruction at any institution, including private instruction; and Any other curriculum or activity that my Trustee may deem useful for developing the abilities and interests of a beneficiary including, without limitation, athletic training, musical instruction, theatrical training, the arts and travel. The term "education" shall also include distributions made by my Trustee for expenses such as tuition, room and board, fees, books and supplies, tutoring and transportation and a reasonable allowance for living expenses. -36- (d) Incapacity Except as otherwise provided in my Will, a person shall be deemed incapacitated in any one of the following circumstances. (1) The Opinion of Two Licensed Physicians An individual shall be deemed incapacitated whenever, in the opinion of two licensed physicians, the individual is unable to effectively manage his or her property or financial affairs, whether as a result of age, illness, use of prescription medications, drugs or other substances, or any other cause. An individual shall be deemed restored to capacity whenever the individual's personal or attending physician provides a written opinion that the individual is able to effectively manage his or her property and financial affairs. (2) Court Determination An individual shall be deemed incapacitated if a court of competent jurisdiction has declared the individual to be disabled, incompetent or legally incapacitated. (3) Detention, Disappearance or Absence An individual shall be deemed incapacitated whenever he or she cannot effectively manage his or her property or financial affairs due to the individual's unexplained disappearance or absence for more than 30 days, or whenever he or she is detained under duress. An individual's disappearance or absence or detention under duress may be established by an affidavit of any fiduciary. The affidavit shall describe the circumstances of an individual's detention under duress, or disappearance or absence and may always be relied upon by any third party dealing in good faith with my fiduciary in reliance upon the affidavit. An individual's disappearance or absence or detention under duress may be established by an affidavit of my executor. (e) Income Beneficiary The term "income beneficiary" means any beneficiary who is then entitled to receive distributions of the net income of the trust, whether mandatory or discretionary. Unless otherwise provided in my Will, the phrase "majority of the income beneficiaries" means any combination of income beneficiaries who, if all accrued net income were distributed on the day of a vote by the -37- beneficiaries, would receive more than 50% of the accrued net income. For purposes of this calculation, beneficiaries who are eligible to receive discretionary distributions of net income shall be deemed to receive the income in equal shares. (f) Independent Trustee The term "Independent Trustee" means a Trustee who is not an Interested Trustee as defined in Subsection (g}. Only an Independent Trustee may exercise those powers granted exclusively to an Independent Trustee and when the phrase "other than an Interested Trustee". Whenever my Will specifically prohibits an Interested Trustee from exercising discretion or performing an act, then only an Independent Trustee may exercise that discretion or perform that act. An Independent trustee shall not be liable to any person for any good faith exercise or nonexercise of its discretion under my Will (g) Interested Trustee The term "Interested Trustee" means (1) a Trustee who is a transferor of property to the trust (including a person whose qualified disclaimer resulted in property passing to the trust); (2) a Trustee who is a beneficiary of the trust; or (3) a Trustee whom a beneficiary of the trust can remove and replace by appointing a Trustee that is related or subordinate to the beneficiary within the meaning of Code Section 672(c). For purposes of this Subsection "a beneficiary of the trust" means a person who is or in the future may be eligible to receive income or principal from the trust pursuant to the terms of the trust. A person shall be considered a beneficiary of a trust even if he or she has only a remote contingent remainder interest in the trust; however, a person shall not be considered a beneficiary of a trust if the person's only interest is as a potential appointee under a testamentary power of appointment. (h) Internal Revenue Code References to the "Internal Revenue Code" or "Code" or to provisions thereof shall refer to the Internal Revenue Code of 1986, as amended. References to the "Regulations" or "Regs" are to the Treasury Regulations under the Internal Revenue Code. Reference to any provision or section of that Code shall be deemed to refer to the provision or section of the federal tax law in effect on the date of my death that corresponds to the provision or section referred to that was in effect at the time of the execution of my Will. If there is no provision or section at the date of my death that corresponds to such provision or section and if the estate tax has been repealed, the reference to a provision or section of the federal tax law shall nevertheless be deemed to refer to the provision or section that was in effect at the time of the execution of this instrument or the provision that was in effect immediately before the tax law was repealed, solely for the purpose of -38- determining the amount of property that passes under a provision of this instrument if my Executor, in its sole discretion, determines that such result is more consistent with my intention. In no event shall my Executor under the powers granted under the preceding paragraph take any action that would cause any property passing under my Will that would otherwise qualify for a marital deduction, charitable deduction, special use valuation or QFOBI deduction to fail to qualify. My Executor shall bear no liability for any decision made in good faith pursuant to the power ,granted under the terms of this Section defining the term "Internal Revenue Code." (i) Legal Representative or Personal Representative As used in my Will, the term "legal representative" or "personal representative" means a person's guardian, conservator, executor, administrator, Trustee, or any other person or entity personally representing a person or the person's estate. (j) Per Stirpes Whenever a distribution is to be made to a person's descendants per stirpes, the distribution shall be divided into as many shares as there are then living children of such person and deceased children of such person who left then living descendants. Each then living child shall receive one share and the share of each deceased child shall be divided among such child's then living descendants in the same manner. (k) Qualified Retirement Plan The term "qualified retirement plan" means a plan qualified under Code Section 401, an individual retirement arrangement under Code Section 408 or Code Section 408A or atax-sheltered annuity under Code Section 403. The teen "qualified retirement benefits" means the amounts held in or distributed pursuant to a plan qualified under Code Section 401, an individual retirement arrangement under Code Section 408 or Code Section 408A, atax-sheltered annuity under Code Section 403 or any other benefit subject to the distribution rules of Code Section 401(a)(9). (1) Shall and May Unless otherwise specifically provided in my Will or by the context in which used, I use the word "shall" in my Will to command, direct or require, and the word "may" to allow or permit, but not require. In the context of my Trustee, when I use the word "may" I intend that my Trustee may act its sole and absolute discretion unless otherwise stated by in my Will. -39- (in) Trust The term "trust," shall refer to all trusts created under the terms of my Will. (n) Trustee The term "my Trustee" refers to the Trustees named in Article Eleven and to any successor, substitute, replacement or additional person or entity that is from time to time acting as the Trustee. The term "Trustee" refers to singular or plural as the context may require. (o) Trust Property The phrase "trust property" shall be construed to mean all property held by my Trustee under my Will, including all property that my Trustee may acquire from any source. (p) Other Definitions Except as otherwise provided in my Will, terms shall be as defined in the Pennsylvania Probate, Estates and Fiduciaries Code as amended after the date of my Will and after my death. Section 16.02 Contest Provision lf, after receiving a copy of this Section, any person shall, in any manner, directly or indirectly, attempt to contest or oppose the validity of my Will, (including any codicil to my Will), or commences, continues or prosecutes any legal proceedings to set my Will wide, then such person shall forfeit his or her share, cease to have any right or interest in my estate, and shall, for purposes of my Will be deemed to have predeceased me. This Section shall not apply so as to cause a forfeiture of any distribution otherwise qualifying for the federal estate tax marital deduction or charitable deduction. Section i<6.03 General Provisions The following general provisions and rules of construction shall apply to my Will: (a) Singular and Plural; Gender Unless the context requires otherwise, words denoting the singular may be construed as plural and words of the plural may be construed as denoting the singular. Words of one gender may be construed as denoting another gender as is appropriate within the context. The word "or" when used in a list of more than two items may function as both a conjunction and a disjunction as the contest requires or permits. (b) Headings of Articles, Sections, and Subsections The headings of Articles, Sections, and Subsections used within my Will are included solely for the convenience and reference of the reader. They shall have no significance in the interpretation or construction of my Will. -40- (c) Governing State Law My Will shall be governed, construed and administered according to the laws of the Commonwealth of Pennsylvania as from time to time amended. Questions of administration of any trust established under my Will shall be determined by the laws of the situs of administration of such trust. (d) Notices Unless otherwise stated, whenever my Will calls for notice, the notice shall be in writing and shall be personally delivered with proof of delivery, or mailed postage prepaid by certified mail, return receipt requested, to the last known address of the party requiring notice. Notice shall be effective on the date personally delivered or on the date of the return receipt. If a party giving notice does not receive the return receipt but has proof that he or she mailed the notice, notice shall be effective on the date it would normally have been received via certified mail. If notice is required to be given to a minor or incapacitated individual, notice shall be given to the parent or legal representative of the minor or incapacitated individual. (e) Severability The invalidity or unenforceability of any provision of my Will shall not affect the validity or enforceability of any other provision of my Will. If a court of competent jurisdiction determines that any provision is invalid, the remaining provisions of my Will shall be interpreted and construed as if any invalid provision had never been included in my Will. I, _ Herbert Isaac Soller, having signed this Will in the presence of ll~~, (_`°>c~_. L ~`°~-~¢ ~.;; ' and ~~t,z~~-~~ ~~y(.~'~~.~~~t?l~vho attested it at my request on this ~~day of August, 2007, at Hershey, Pennsylvania, declare this to be my Last Will and Testament. Y~ Herbert Isaac Soller, Testator -4I- The above and foregoing Will of Herbert Isaac Soller was declared by Herbert Isaac Soller in our view and presence to be his Will and was signed and subscribed by the said Herbert Isaac Soller in our view and presence and at his request and in the view and presence of Herbert Isaac Soller and in the view and presence of each other, we, the undersigned, witnessed and attested the due execution of the Will of Herbert Isaac Soller on this ~ '''` day of August, 2007. ~_ ~ i ~ ~ ~ '~- residing at ~~~ ~~ /'J ~~/ ~~ ,. ` ~ ' ~ 1'~~.e ~ ~;' °, ~ i.(,ti~.~~'"a~,i~` r~~'.:~__ residing at ,~,.a`~.F~ ~'' ~~~ v t'? ~_ ,,l„~ A~ e ~3 t~ r~~ ~~.'~..,~. ~.~~f. ~. { I -42- PENNSYLVANIA SELF AUTHENTICATING AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN I, Herbert Isaac Soller, the testator whose name is signed to the attached or foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last Will; and that I signed it willingly and as my free and voluntary act for the purposes therein expressed. Sworn o or affi ed and cknowledged before me by Herbert Isaac Soller, the testator, this ~~y of , 2007. z ~ `~o~e-~ Herbert Isaac Soller, Testator Sign ure of Notary Public ~~ ~ ! !i.'!"s~~~ 71 t __ _ _.._ ~ _-,- ~J~ ie`~ !y}f'11 ~~~ .._._ _.___ .... - 43 - COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF DAUPHIN ) L~~'G <~ We, 'ra ~ ~ and ~~,~,,.~ _ °~ c: ~.r. f 1' ~ ~ ~C~_~ f.,t~~~ca ~~ the witnesses whose names are signed o the attached or foregoing instrumen ,being duly qualified according to law, do depose and say that we were present and saw the testator sign and execute the instrument as his Last Will; that the testator signed willingly and executed it as his free and voluntary act for the purposes therein expressed; that each subscribing witness in the hearing and sight of the testator signed the Will as a witness; and that to the best of our knowledge the testator was at that time 18 or more years of age, of sound mind, and under no constraint or undue influence. /. ~. ~,M.___ ~ ~. JAL, Witness v Witness '-~ « ~. Signature of Notary Public .., ~~; __. _ ,~, r~: ~ ' _. r r ~ ~ _. -44-