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HomeMy WebLinkAbout04-0954IN RE: IN THE COURT OF COMYlON PLEAS OF THE ELI~ANORA ANGELA BURDG-E CUMBERLAND COUNTY, PENNSYLVANIA TR{ rSTS UNDER AGREEMENTS ORPHANS~ COLRT DIVISION DATED DECEMBER 26. 1991 AND AL;GL;ST 6, RECEIPT. RELEASE, REFENDING AND INDEMNIFICATION AGREEMENT CONCERNING FINAL DISTRIBU~FION OF TRUST THIS AGREEMENT. made this ~,5 day of (: ,C~'C }:~-: ~ .2004 WITNESSETll: THE CIRCL MSTANCES leadmB up to the execution of this Agreement ar~ as JeflYey J BurdBe and Ma~}' Elizabeth Burd~e (th~ ;~gettlors'~), by a ~fitt¢~ Trust Agreement. dated December 26. 199]. created a lrusL naming Dauphin Deposit Bank and Irust Compan> (lamr kno~n as Allfirst Trust Company of Pennsylvania and nox~, kno~xn as Manufacturers and Traders Trust Co ~pany) o['Ctlmbel'Jalld CoLiilt~, Pennsylvania. as Tl-tls~~ and Jet~ey J BurdBe and Jeremy J. Burdge as ~qndividual Trustees" A copy of the Trust Agreement is attached hereto as Exhibit ~ and h~corporat~d herein by rd~rence. All subsequent r~J~renc~s to ~'the 1991 Trus~" in this A~reement shall rd~r to this trust. Tho SettJors, bx a xwitten Irust A~reement dated Ausust 6, 1993. created a trnst. naming Dauphin Deposit Bank and Trust Compan5 {later knox~n as Allfirst Trust Company of Pennsylvania and now knox~n as Manu~cmrers and Traders Trust Company), of Cumberland ('ounty, Penns~lxania. and Jeremy John Burdge as ['rustees A cop5 of the Trust Agreement is attached hereto as Exhibit B and incorporated herein bs ~e~rence All subsequent rel~rences to "the 1993 Trust" in this Agreement shall refer to this trust. 3. By instrument dated August 6, 1993, Jeffrey J. Burdge resigned as individual Co- Trustee of thc 1991 Trust, and Mary Elizabeth Burdge resigned as alternate individual Co- Trustee of the 1991 Trust. Thereafter, Jeremy J. Burdge, also known as Jeremy John Burdge, served as the sole individual Co-Trustee of the 1991 Trust. 4. The Settlor's granddaughter, Eleanora Angela Burdge (now known as Eleanora Phillips Burdge) (the "Beneficiary"), is the sole beneficiary of the 1991 Trust and the 1993 Trust. 5. Under Article IIi, Paragraph (j) of the 1991 Trust Agreement and under Article FIRST, Paragraph 7 of the 1993 Trust Agreement, when the Beneficiary attains the age of thirty (30) years, the Trustees are to terminate both Trusts and distribute the remaining principal and any accumulated income to her. 6. The Bencficiary's birth date is October 1, 1974, and she has now attained the age of thirty (30) years. Both Trusts may now be terminated, and it is the desire of the Beneficiary that the termination of both Trusts be done without the formality of an accounting and without the approval of a Petition for Adjudication by a court of competent jurisdiction. 7. In consideration of the indemnifications and such other terms that are hereinafter provided, the Trustees are willing to terminate both Trusts by agreement. NOW THEREFORE, in consideration of the foregoing and intending to be legally bound hereby, the Beneficiary, for herself, her heirs, personal representatives, successors and assigns, does hcreby: .4. Represent and warrant that she [las mad and understands this Agreement and confirms that tile facts set ti~th above are true and correct, to the best of her knowledge, int'ormation and belief B Dedm c that she has received periodic statements f'~>r the 1991 ~1 rust and the 1993 Trust since at least Jammry 1. 1998. and that prior to that date, such statements were mailed to her father. Jcrcmv J Burdge C Declare that she has had the opportunity to review the accotmts and records of the Trustees and that, based upon that examination (or tile decision not to make such ail examination, she is satisfied that she }las sufficient information to make an informed waixer o£her right to obtain a formal accouuting of the administration of the 1991 [rust and the 1903 Trust by the Trustees. with the same to be approved pursuant to a Petition t'~r A4i~dication filed with a court et'competent jurisdiction D. Approve the termination of the 1991 Tmsr and the 1993 Trust and the distributions heretofore made b~ the Trustees E Acknoxdedge receipt el'the assets shoxxn on Exhibit C F Absolutely and irrexocably remise, release, quitclaim and forexer discharge the Trustees of both Trusts (in their capacity as fiduciaries and in their individual capacities) and each and eve~x' one of the Trustees' employees, agents, attorneys. advisors, and counselors, and their respectixe heirs, personal representatives. successors and assigns, of and from any and all actions, payments, accounts. reckonings, liabilities, claims and demands relating in an> way to the Trustees' administration oflhe 1001 Trust and the 1003 Trust, including but not limited to the t:ailure of the Trustees to file an account el'such administration x~ith, and obtain the approval otl a court of competent jurisdiction~ and thc termination of the 1991 Trust and the I093 Trust as provided herein G To the extent of the fimds and/or assets ~eceived bx the Beneficiary. covenant and agree to refund upon demand by tile Trustees all or am amount wbich may hereafter be determined bv the Trustees or bv a cout¢ of competent imisdiclion to bare been an erroneous or excess distribution to her regardless of the cause of such erroneous distribution, and agree that any period for the limitation of actions for tile collection of any erroneous distribution to her shall commence only at such time as the I rustees shall have obtained actual knox¥1edge of'such erroneoc~s distribution and that itl no exent shall the period for the collection of any erroneous distribution be less than txxo years after the actual discoveiy thereol'b5 thc Trustees less than two years after the actual discovery thereof by the Trustees. H. Agree to indemnify and hold harmless the Trustees from and against any and all claims, loss, liability or damage which they may suffer or to which they may be subjected by reason of their administration of the 1991 Trust and the 1993 Trust, the distribution of the 1991 Trust and the 1993 Trust based on this Agreement and not a formal accounting, and the distribution of the assets of the 1991 Trust and the 1993 Trust without having the approval of a court of competent jurisdiction. The Trustees shall not be indemnified nor held harmless for any act or omission which would constitute a breach of their fiduciary duty, a violation of law, or act of bad faith or gross negligence. I. Agree that this Agreement has been freely and voluntarily executed, and that she has not relied on any special inducement, promise, or representation other than those representations set forth herein. J. Acknowledge that she understands all of the terms and conditions of this Agreement, and that she has been advised by legal counsel for the Trustees that it may be in her best interest to seek thc advice of independent legal counsel before executing this Agreement, in order to fully understand the legal consequences of such terms and conditions. K. Consent to the Court of Common Pleas of Cumberland County, Pennsylvania, Orphans' Court Division, exercising personal jurisdiction over her in any suit or action arising out of the enforcement of this Agreement. L. Agree to waive the provisions of Pennsylvania Rules of Civil Procedure Rule 229.1 (relating to sanctions for failure to receive settlement funds within twenty days after receipt of an executed release). M. Agrce that his Agreement is governed by the laws of the Commonwealth of Pennsylvania. -4- 1N WITNESS WHEREOF, the Beneficiary has set her hand and seal on the date first written above. ~k:~O- ':-P' ',4., !,,_zk~/}-~- '- ~:')'3,:_ ,,4<~ Eleanora Phillips Burdg'e (Formerly known as Eleanor~Angela Burdge) STATE OF N-EW YORK ~: ,',~/'4::,~ c:,~ ~ ' SS. COUNTY OF 1~'4,4 -~, ~ lq On this, the i ~', day of ~-' ( > 4:: i:3 ~t ~ ,2004, before me, the undersigned officer, personally appeared ELEANORA PHILLIPS BURDGE, 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. 1N WITNESS WHEREOF, I hereunder set my hand and official seal. Notary Public Notarial Sea! Deanna t.. ?Cells, No!aw Public -5- EX! IIBIT :\ THE ELEANOR,\ ANGEL,\ B[;RDGE IRUST UNDER AGREEMEN 1' DATED DE(?EMBER 26. 1991 AGREEMENT OF TRUST JEFFREY J. BURDGE and MARY ELIZABETH BURDGE, his wife, (hereinafter referred to as "Settlors") and DAUPHIN DEPOSIT BANK AND TRUST COMPANY (hereinafter referred to as "corporate Trustee") and JEFFREY J. BURDGE and JEREMY J. BURDGE (hereinafter referred to as the "individual Trustees") (all of which Trustees are sometimes collectively referred to hereinafter as the Trustees) hereby agree that the Settlors have transferred to the Trustees and the Trustees hold i.n trust, cash in the amount of twenty thousand ($20,000.00) dollars, which shall constitute the initial principal of the Trust hereunder and which shall be held, managed and the principal and income distributed by the Trustees as hereinafter provided. I. IRREVOCABILITY This Trust is irrevocable, and neither the Settlors, the Trustees, nor any other person shall have the right, alone or with any other person, to alter, amend, revoke, or terminate this Trust or any of the terms of this Agreement of Trust. II. ADDITIONAL PROPERTY The Settlors reserve the right for either of them, or for any other person, to increase the assets comprising the principal of this Trust by bequests made by Will or by otherwise delivering additional assets to the Trustees at any time. However, the duties and liabilities of the Trustees hereunder shall, under no circumstances, be substantially increased with respect to any such additional assets, except with Trustees' written consent. III. ADMINISTRATION OF THE TRUST (a) The corporate Trustee shall have custody of, invest and manage the assets of the Trust, collect the income therefrom and make the principal and net income available to the individual Trustees for the purposes of the Trust, as provided herein. (b) The individual Trustees shall treat the entire principal and net income of the Trust, in the individual Trustees' absolute and uncontrolled discretion and as hereinafter set forth, as being for the benefit of Eleanora Angela Burdge, the Settlors' granddaughter, hereinafter referred to as the Beneficiary. (c) The Beneficiary shall have the absolute right, exercisable in Beneficiary's sole discretion, to withdraw with respect to each calendar year in which a contribution or transfer is made to this Trust, an aggregate amount equal to the (lesser of the) amount of the annual additions to this Trust during such calendar year (or Ten Thousand Dollars ($10,000) multiplied by the number of donors making addition(s) to this Trust during such calendar year), and such right of withdrawal shall be non- cumulative from year to year. (d) The Corporate Trustee shall notify the Beneficiary of any transfer or other contribution to the Trust, and of the donor(s) thereof, as soon as is practical after the contribution or transfer has been made, but not later than three months after the end of the calendar year in which the contribution or transfer has been made. (e) All such withdrawals shall be made by written demand signed by the Beneficiary and delivered to the corporate Trustee not more than thirty (30) days after the date of the corporate Trustee's notification to the Beneficiary of any transfer or other contribution to the Trust. Withdrawals shall be paid by the corporate Trustee not more than sixty (60) days after the date of such written demand. For purposes of this special right of withdrawal, assets transferred to this Trust shall be deemed to be a contribution or transfer in the calendar year in which the contribution or transfer occurs, rather than in the year in which notice is sent to the Beneficiary. (f) Such right of withdrawal shall constitute a first charge against the principal of this Trust and during the continuance of the Trust shall take precedence over all other distributions and all other beneficial interests hereunder. 3 (g) In creating this power of withdrawal, it is the intention of the Settlors to create an annual non-cumulative power of invasion which will qualify any transfer of property hereto as a transfer of a present interest under Section 2503(b) of the Internal Revenue Code of 1986, as amended, and which will not be treated as a release of such a power as that term is defined in Section 2514(e) of said Code. (h) Subject to the provisions of this Section, the net income from the Trust shall be accumulated and added to the principal of the Trust until the Beneficiary shall attain the age of twenty-one (21) years; except that any taxes due with respect to the Trust thereto shall be paid by the corporate Trustee from the income of the Trust. (i) Thereafter the individual Trustees shall pay the net income from the Trust to or for the benefit of the Beneficiary, but only in such amounts as the individual Trustees, in their sole discretion, shall determine to be reasonably necessary for the general comfort and welfare of the Beneficiary or for improvement of the Beneficiary's station in life. To the extent that the net income from the Trust is not distributed to or for the benefit of the Beneficiary, the income shall be accumulated and added to the principal of the Trust. (j) Upon the Beneficiary's attaining the age of thirty (30) years, all of the principal and all of the then accumulated 4 net income of the Trust shall be distributed to the Beneficiary; (k) In addition to the payments of net income to or for the benefit of the Beneficiary as aforesaid, the individual Trustees shall have the authority, in their sole discretion, to pay to or apply for the benefit of the Beneficiary such sum or sums from the principal of the Trust as they may deem necessary or advisable to provide for the general comfort and welfare of the Beneficiary or to improve her station in life. IV. DEATH OF BENEFICIARY If the Beneficiary should die before attaining the age of thirty (30) years, the principal of the Trust and any accumulated net income shall be distributed to the Beneficiary's estate. V. CORPORATE TRUSTEE'S POWERS The corporate Trustee shall have the following powers in the administration of the Trust hereunder, all of which shall be exercised in a fiduciary capacity: (a) To invest and reinvest the principal of the Trust in such obligations, bonds, mortgages, stocks or other securities, including shares of the corporate Trustee's own stock and shares in the corporate Trustee's Common Trust Funds, which the corporate Trustee may deem suitable and proper for the investment of the funds of the Trust, in such manner, at such 5 time or times, for such purposes, for such prices and upon such terms, credits and conditions as it may deem advisable. (b) To borrow money from the corporate Trustee's own banking department or elsewhere, for any purpose connected with the protection, preservation or improvement of the Trust, whenever in its judgment advisable, and as security, to mortgage or pledge any personal property forming a part of the Trust, upon such terms and conditions as it may deem advisable. (c) To vote in person or by general or limited proxy with respect to any shares of stock or other securities held by it; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of any corporation in which the Trust may have any interest, or to the sale, lease, pledge or mortgage of any property by or to any such corporation; and to make any payments and to take any steps which it may deem necessary or proper to enable it to obtain the benefit of any such transaction. (d) To hold investments in the name of a nominee or nominees. (e) To charge, in whole or in part, against principal, or to amortize out of or charge forthwith to income, as and to the extent from time to time deemed advisable by the corporate Trustee, premiums paid on the purchase of bonds or other 6 obligations for the payment of money, and amounts paid to exercise rights or options to buy stock or other securities. (f) To complete, extend, modify or renew any loans, notes, bonds, mortgages, contracts or other obligations which may be liens or charges against any property in the Trust, in such manner as it may deem advisable; to pay, compromise, compound, adjust, submit to arbitration, sell or release any claims or demands of the Trust as it may deem advisable, including the acceptance of deeds of real property in satisfaction of bonds and mortgages, and to make any payments in connection therewith which it may deem advisable. (g) To make distribution of the principal of the Trust in kind and to cause any share to be composed of cash, property or undivided fractional shares in property different in kind from any other share. (h) To execute and deliver any and all instruments in writing which it may deem advisable to carry out any of the foregoing powers. No party to any such instrument in writing signed by the corporate Trustee shall be obliged to inquire into its validity, or be bound to see to the application by the corporate Trustee of any money or other property paid or delivered to it pursuant to the terms of any such instrument. VI. INDIVIDUAL TRUSTEES' POWERS The individual Trustees shall have the following powers in the administration of the Trust hereunder, all which shall be exercised in a fiduciary capacity: (a) The individual Trustees shall have the same powers as those conferred upon the corporate Trustee with respect to any action involving the Trust which is of such nature as legally to require participation by the individual Trustees. (b) The individual Trustees shall monitor the activities of the corporate Trustee and approve its accounts relating to the Trust. (c) The individual Trustees shall make distributions of the principal and net income of the Trust in accordance with the terms of the Trust Agreement. VII. ALLOCATION OF CAPITAL GAINS AND LOSSES In the administration of the Trust, all capital gains and losses resulting from the administration of the Trust shall be allocated by the corporate Trustee to Trust principal. VIII. ACCOUNTING BY TRUSTEES The corporate Trustee shall keep all the accounts and records of the management of the Trust created hereunder and at least semi-annually, shall render to the individual Trustees 8 statements showing all receipts, disbursements, and investment transactions. - · The individual Trustees shall keep a statement showing in detail said Trustees' receipts, disbursements and distributions of both principal and income of the Trust, which shall be available to the Beneficiary and to the Settlors. IX. COMPENSATION OF TRUSTEES The corporate Trustee shall be entitled to receive reasonable compensation for duties performed hereunder, and to be reimbursed for reasonable expenses incurred in the administration of the Trust. The individual Trustees shall be entitled to be reimbursed for reasonable expenses incurred in the administration of the Trust. X. SPENDTHRIFT CLAUSE The interest of the Beneficiary, either in income or in principal, shall not be subject to pledge, assignment, sale, or transfer in any manner, nor shall the Beneficiary have the power in any manner to anticipate, charge, or encumber any interest, either in income or principal, nor shall such interest of the Beneficiary be liable or subject in any manner for the debts, contracts, liabilities, engagements or torts of such Beneficiary. No part of the principal or income of the Trust shall be used to 9 pay for or reimburse any public provider of assistance or other benefits to the Beneficiary. XI. GOVERNING LAW - SEPARABILITY The validity and construction of any provision of this Agreement of Trust shall be governed by the laws of the Commonwealth of Pennsylvania. If any provision of this Agreement of Trust shall be determined to be invalid or unenforceable, the remaining provisions hereof shall subsist and be carried into effect. XII. MERGER OR CONSOLIDATION AFFECTING CORPORATE TRUSTEE If the corporate Trustee shall merge with, be consolidated with, or be acquired by another corporation, that other corporation shall succeed to all the duties and all the powers herein granted to the corporate Trustee. XIII. REPLACEMENT OF TRUSTEE The individual Trustees shall have authority at any time, by written decision delivered to the corporate Trustee, to discharge that corporate Trustee and appoint a new corporate Trustee, in which event the corporate Trustee so discharged shall immediately transfer the assets held in trust to the new corporate Trustee. The new corporate Trustee shall be a bank or trust company at least approximately equal in size to Dauphin Deposit Bank and 10 Trust Company and have a trust department of comparable reputation. If either individual Trustee shall be unable or unwilling to serve as such, the other individual Trustee shall serve as the sole individual Trustee. If both individual Trustees shall be unable or unwilling to serve the following shall serve as sole individual trustee in the following order: Mary Elizabeth Burdge and Angela Burdge, the Settlor's daughter-in-law. In default of any of the above persons being able and willing to serve as individual Trustee, the corporate Trustee shall appoint another individual who is a relative of the Beneficiary by blood or marriage to serve as individual Trustee. In default of any such person, the corporate Trustee will serve as sole Trustee, in which event the corporate Trustee also shall possess, assume and perform all powers, obligations and responsibilities of the individual Trustee as set forth in Section VI above. 11 IN WITNESS WHEREOF, and intending to be legally bound, the Settlors and the Trustees have executed this Agreement of Trust, in triplicate, this ~day of ~~ , 1991. WITNESS: ~ ~' J~T~REY J. BURDGE MAR/'ELIZABETH BU~DGE Settlors ATTEST: DAUPHIN DEPOSIT BANK AND TRUST COMPANY (Assistant) S~cretary s~cJ~,~(Vice) President~-- CORPORATE TRUSTEE (Corporate Seal) JEFFREY J. BURDGE Individual Trustee 12 EXHIBIT B I'HE ELEANOR~, ANGEI,~ BURDGE TRiST L'NDER AGREEMENT DATED AUGLST 6, 1003 THE ELEANOR3~ ANGELA BURDGE TRUST NOW, on August 6r~, 1993, JEFFREY J. BURDGE and ELIZABETH BURDGE, his wife (collectively, the "Settlors"), of Cumberland County, Pennsylvania, by this Agreement and desiring to establish a Trust for the benefit of the Settlors' grandchild named below, hereby assign to DAUPHIN DEPOSIT BANK AND TRUST COMPANY ("Corporate Trustee"), of Cumberland County, Pennsylvania, and the Settlors' son, JEREMY JOHN BURDGE ("Individual Trustee"), of Franklin County, Ohio, as Co-Trustees (Individual Trustee and Corporate Trustee are collectively referred to as "Trustee"), hereinafter referred to in the singular neuter gender, the property described on Schedule A attached hereto, to be held, together with such additional property as may be transferred, devised or bequeathed hereto by Settlors or any other person, upon the following terms of trust: FIRST: DISPOSITIVE PROVISIONS During the lifetime of Beneficiary: 1. Settlors' grandchild, ELEANORA ANGELA BURDGE, (born: October 1, 1974) (SSN: 269-88-9652), hereinafter referred to as "Beneficiary," during Beneficiary's lifetime, shall have the absolute right (anything to the contrary appearing in Item THIRD hereof notwithstanding), exercisable in Beneficiary's sole discretion, to withdraw during each calendar year in which an addition or additions are made to this Trust, an aggregate amount equal to the lesser of the amount of the annual additions to this Trust up to the date of such withdrawal or Ten Thousand Dollars ($10,000) multiplied by the number of donors making addition(s) to this Trust during such calendar year, and such right of withdrawal shall be non-cumulative from year to year. 2. Trustee shall notify Beneficiary of any transfer or other contribution to the Trust, and of the donor(s) thereof, as soon as is practical after the contribution or transfer has been made, but not later than December 31 of the year in which the contribution or transfer has been made. 3. All withdrawals shall be made by written demand signed by Beneficiary (or by the natural parent or legal guardian of Beneficiary if Beneficiary is under the age of eighteen (18) years) and delivered to Trustee not more than thirty (30) days after the date of Trustee's notification to Beneficiary of any transfer or other contribution to the Trust. Withdrawals shall be paid by Trustee not more than sixty (60) days after the date of such written demand. For purposes of this special right of withdrawal, assets originally transferred to this Trust shall be deemed to be an addition in the year in which the transfer occurs. 4. Such rights of withdrawal shall constitute a first charge against the principal of this Trust and during the continuance of this Trust shall take precedence over all other distributions and all other beneficial interests hereunder. 5. In creating this power of withdrawal, it is the intention of Settlors to create an annual non-cumulative power of -2- invasion which will qualify any transfer of property hereto as a transfer of a present interest under Section 2503(b) of the Internal Revenue Code of 1986, as amended, and which will not be treated as a release of such a power as that term is defined in Section 2514(e) of said Code. 6. Trustee shall pay to or apply for the benefit of Beneficiary at such times as Trustee determines as much of the net income and, if income shall be insufficient therefor, as much of the principal, as Trustee, in its sole discretion both as to income and principal, shall deem necessary for Beneficiary's maintenance, support and education (including college and graduate and professional studies); provided, however, that before making any such payments of principal to Beneficiary, Trustee shall take into account other property and income available to Beneficiary, and in so doing the decision of Trustee as to the amount of principal so used and the extent to which other resources are considered shall be conclusive as to all parties in interest. Any income not expended may be accumulated and added to principal. 7. In addition to the discretionary distributions of income and principal provided above, Trustee shall distribute, at least annually, to Beneficiary (or to his natural parents or legal guardian) funds sufficient for the payment of any and all federal and state income taxes of Beneficiary which are -3- attributable to Beneficiary as a result of his interest in the Trust. 8. When Beneficiary attains the age of thirty (30) years, Trustee shall pay over and distribute to Beneficiary, absolutely and free of all trusts, such share or the then- remaining principal, together with any accumulated or undistributed income of the Trust. SECOND: DISPOSITIVE PROVISIONS UPON BENEFICIARY'S DEATH In the event Beneficiary dies before the entire principal of the Trust has been withdrawn or distributed, such share or the then-remaining principal, together with any accumulated or undistributed income, of the Trust (as the case may be) shall be distributed to or for the benefit of such person or persons or corporation'~r corporations (including Beneficiary's estate, Beneficiary's creditors or the creditors of Beneficiary's estate) in such amounts or proportions and in such lawful interests or estates, whether absolute or in trust, as Beneficiary may direct by Beneficiary's Last Will, provided such Last Will contains a specific reference to this general power of appointment, or in default of such appointment, or to the extent it is not effectively exercised, then, to Beneficiary's estate. THIRD: TERMINATION OF TRUSTS 1. Notwithstanding any other provisions hereof, Trustee may, in its sole discretion, at any time, terminate any or all of the trusts created herein if the amount thereof would -4- make the continuing of said trust impractical. Upon such termination, Trustee shall pay the principal and any accumulated or undistributed income of any such trust share to the person or persons entitled to receive the income therefrom in the proportions to which they were then entitled to receive the income. If no such fixed proportions then exist among beneficiaries, payment shall be made in equal shares, per stirpes, among the persons to whom the income may then be paid, and upon such termination the rights of all other persons who might otherwise have interests as succeeding life tenants or remaindermen shall cease. 2. Any and all trusts created herein shall terminate in any event, and every final distribution or payment of the principal of the trust estate shall be made, not later than twenty-one (21) years after the death of the last to die of Settlors' issue living on the date hereof, in the event that this Trust shall have not terminated previously in accordance with the terms hereof. In the event of the termination of this Trust as provided for in this paragraph, Trustee shall pay over and deliver the principal, together with any accumulated or undistributed income, free and discharged of any trust, to the person or persons then entitled to receive the income thereof in the proportions to which he, she or they were then entitled to receive the income. -5- FOURTH: MINORITY AND DISABILITY PROVISIONS Unless otherwise provided for herein, any income or principal payable to any beneficiary who may be then a minor (for all purposes of this Trust, a minor shall be deemed to be a person who has not attained the age of twenty-one (21) years) or, who may then be, in the opinion of Trustee, mentally or physically disabled, shall be held in a separate trust by Trustee during such minority or disability unless the trust share is sooner terminated as otherwise provided herein; said net income and/or principal may be accumulated or expended for the maintenance, support and education (including college and graduate and professional studies) of such beneficiary, as Trustee, in its sole discretion, may determine. Trustee, in the expenditure of income and/or principal for such purposes, may, in its discretion, apply the same directly without intervention of a guardian, or pay the same to any person having care or control of said beneficiary, or with whom the beneficiary resides, without the duty on the part of Trustee to see to or inquire into the application of the funds by any person to whom any payment is so made. The balance of such income and/or principal shall be paid to said beneficiary when the disability or minority ceases, or to said beneficiary's estate in the event of death prior thereto. FIFTH: PROTECTIVE PROVISION All principal and income shall, until actual distribution to a beneficiary, be free of the debts, contracts, alienations, -6- torts and anticipations of any beneficiary, and the same shall not be liable to any levy, attachment, execution or sequestration while in the possession of Trustee. SIXTH: INSURANCE POLICIES 1. Trustee shall not be under any obligation to pay premiums on insurance policies held hereunder, if any, and shall have no responsibility to see that such policies are kept in force. 2. No life insurance company shall be responsible to see to the execution or performance of any trust created herein or to the application of any insurance proceeds paid to any such trust. 3. Trustee may, without incurring liability, compromise and settle any question~elating to any insurance policy upon such terms as it deems wise. Trustee need not institute litigation to collect the proceeds of any policy unless it is reasonably indemnified for costs, counsel fees and other expenses of such litigation. SEVENTH: POWERS OF TRUSTEE In addition to the powers hereinbefore provided and those given by law, Trustee, and any additional or successor Trustee, without any order of court and in its sole discretion, may exercise the following powers, which shall be construed broadly: 1. Hold and retain the property now or hereafter comprising a part of this Trust, for such length of time as in -7- its sole discretion it may deem wise, or sell any part thereof, without liability of any kind by reason of such retention or sale and invest and reinvest, alter, vary and change investments from time to time, in such manner and in such property, real, personal or otherwise, including any common or diversified trust funds maintained by, or stock of, any bank or trust company or any holding company or affiliate thereof, as Trustee may deem prudent, without being confined to what are known as legal investments under the laws of any state or jurisdiction; 2. Repair, alter, improve or lease, for any period of time (even for more than five (5) years) any property and give options for leases; 3. Make distribution hereunder either in cash or in kind or partly in each, and cause any share to be composed of property different in kind from any other shares, without regard to the basis of such property; 4. Purchase investments at a premium; 5. Vote in person, or by proxy, all stocks or other securities held; 6. Exercise any rights or warrants to subscribe for stocks or bonds or other allotments received by reason of securities held, or sell them for such prices as it may deem best; -8- 7. Deposit, surrender or exchange stocks or pay any assessments in connection with any reorganization or merger or similar proceedings as it may deem best; 8. Exercise any option, right or privilege granted in any insurance policy; 9. Sell any real or personal property at public or private sale to any person or entity, or give options therefor for cash or credit, without liability on the part of the purchaser to see to the application of the purchase money; provided, however, that no sale hereunder shall be made at a price less than that which Trustee acting in good faith shall consider to represent adequate and full consideration; 10. Borrow money from any source, including any Trustee, mortgage or pledge any property; 11. After the death of either of the Settlors, to merge any trust created hereunder with any other trust or trusts created by Settlors or by either of them under will or trust, if the terms of such trusts are then substantially similar and held for the primary benefit of the same person; 12. Compromise claims; 13. Register securities in the name of a nominee in such manner that title shall pass by delivery; 14. Employ attorneys, investment counsel, accountants and agents in connection with the discharge of its duties, and determine and pay to them reasonable compensation; -9- 15. Pool the assets of all trusts created hereunder or any of them for investment purposes, allocating to each trust an undivided interest in all of the assets so held; 16. Add to the principal of any trust created hereunder any property received from any person by deed, will or in any other manner; 17. In the exercise of its discretion with respect to the use of principal for any beneficiary, Trustee may take into account other property and income available to such beneficiary; in so doing, Trustee may conclusively rely on written representations made to it by such beneficiary, and the judgment of Trustee as to the amount of principal so used and the extent to which other resources are considered shall be conclusive as to all parties in interest; 18. Anything herein to the contrary notwithstanding, no Individual Trustee hereunder shall make or participate in any decision of Trustee required for the discretionary termination of any trust hereunder or to authorize the discretionary payment of income or principal in cases where such terminated trust or such principal or income (as the case may be) would be distributable to or for the benefit of himself, herself, or anyone such Individual Trustee is legally obligated to support; such decisions shall be made solely by the Corporate Trustee; -10- Trustee by designation in the removal document aforesaid. Should Robert R. Church be unable or unwilling to act in this capacity, the law firm with which he is associated, or with which he was last associated, shall designate an attorney to act in such capacity. 2. Anything hereinbefore notwithstanding, Robert R. Church, or the law firm with which he is associated, or with which he was last associated, shall not exercise any such power if the exercise thereof would cause the assets of this Trust to be included in the "gross estate" of Settlors, as such term is defined in the Internal Revenue Code of 1986, as amended. 3. Designations hereunder shall be written and shall be effective when accepted in a writing signed by the designee and delivered to the then-serving Corporate Trustee, if any, or if none, when delivered to the then-serving Individual Trustee. 4. If at any time Jeremy John Burdge shall be unable or unwilling to act as Individual Trustee, then his wife, Angela Burdge, shall serve as successor Individual Trustee, and may exercise any and all powers herein conferred upon the Individual Trustee. If Angela Burdge shall be unable or unwilling to serve in such capacity, then Randall Desmond Burdge and Gavin Frederick Burdge shall serve in that order as successor Individual Trustee. If none of the foregoing persons shall be able or willing to serve as Individual Trustee, then, and in that event only, the -12- Corporate Trustee shall serve alone and shall exercise all the powers herein granted to Trustee. NINTH: WAIVER OF BOND Settlors direct that Trustee and any alternates or successors thereto shall not be required to file a bond to secure the faithful performance of the duties of such office in any jurisdiction. TENTH: IRREVOCABILITY This Trust shall be irrevocable, and Settlors hereby expressly waive all rights and powers to alter, amend, revoke or terminate the Trust or any of its terms in whole or in part. Settlors hereby renounce any interest, either vested or contingent, including any reversionary interest or possibility of reverter, in the income or principal of this Trust. ELEVENTH: SITUS Except as otherwise provided above with respect to a change of situs, the situs of this Trust shall be Cumberland County, Pennsylvania, and questions pertaining to the validity, construction and administration of any trust hereunder shall be determined in accordance with the laws of the Commonwealth of Pennsylvania. Provided, however, that if the situs of this Trust shall be changed as provided in Article EIGHTH above, then the laws of such new situs of the Trust shall thereafter apply (unless the designation of situs change shall otherwise specify the continuing application of Pennsylvania law). -13- TWELFTH: MISCELLANEOUS 1. Wherever the words "child," "children" or "issue" are used in this instrument, they shall include those both naturally born and legally adopted, provided that the Order or Decree of Adoption is entered before such adoptive person attains the age of twenty-one (21) years. 2. Throughout this Agreement of Trust, nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular or plural, whichever shall be applicable. 3. Corporate Trustee, and any successors, shall be entitled to receive reasonable compensation for services rendered in such capacity. No Individual Trustee shall receive any compensation for services rendered in such capacity, except for reimbursement of reasonable out-of-pocket expenses incurred in such capacity. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above!written. WITNESS: JEFFREY J. BURDGE, Settlor MARY?ELIZABETH BURDGE, ~.e~tlor -14- Corporate Trustee hereby accepts: ATTEST: DAUPHIN DEPOSIT BANK AND TRUST COMPANY, Co-Trustee (A~3~istant) Secretary J~¢' Campben, T~sf Officer W~ESS:~~. ~ ~ ~ Individual~~~Trustee hereby accepts: -15- COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF CUMBERLAND : On the ~.. day of [-{/f,;AI_ , 1993, before me, the subscriber, a notary public in and for the Commonwealth of Pennsylvania, personally appeared the above-named JEFFREY J. BURDGE and MARY ELIZABETH BURDGE, his wife, and in due form of law acknowledged the foregoing Agreement of Trust to be their voluntary act and deed for the purposes expressed therein. WITNESS my hand and notarial seal the day and year aforesaid. Notary 'P~blic NOiAR;AL S~AL -16- STATE OF OHIO : : SS. COUNTY OF FRANKLIN : On the~ay of ~ .~./~/~ , 1993, before me, the subscriber, a notary public ih and for the State of Ohio, personally appeared the above-named JEREMY JOHN BURDGE and in due form of law acknowledged the foregoing Agreement of Trust to be their voluntary act and deed for the purposes expressed therein. WITNESS my hand and notarial seal the day and year Notary Public ~NNA k R~GG~, ~,~y PUGUC STATE OF OH~ -17- SCHEDULE A Item Description Value 1. Cash $ 1.00 EXHIBIT C ACC[ MLII.ATED IN('OME AND PRINCII~AL ON HAND Valued as o~' September 20. 2004 Asset Description Market CanTing Vahle Value M lB Money Market Fund $54.484.20 $54,48420 14.845 533 stns MTB Large Cap Stock Fund 131.086 05 131,049.54 S20.000 Fed Home kn Bk Note 20,01200 20,156 25 S5.000 Fed Home I.oan Bank Note 5.035 95 652148 S20.000 lnt'l Bus Machines Bond 21.85960 19.790.99 1.730 shs Harsco ('orp 76,82930 3.203 35 650 shs JPMorgan CImse & Co 25.330 97 20,33097 1.300 units Burdge Family I.imited PartnersNp #2 66~368 90 42,00000 172 445 shs MTB Equity Income PTF 1.698 58 1.31492 135 943 sins MTB Mid Cap Orwtln Fund 1~825 71 1.26544 755 005 shs MTB Multi Cap (h-x, th Fund 10.684 25 7,865 83 584 296 shs MTB Sm ('ap Grx~th Fund 9.956 40 6.57333 Il 0427 shs lntl Equity Fund I. 146 81 83660 1.974884 sins MTB Intermcd Term Bd kund 20.045 07 20.57828 3.':,84 34 sins MTB Sh Term ('orp Bd Fund 35.41328 35.82877 $482.043 79 S371,80904