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HomeMy WebLinkAbout10-20-05 . , .. Court of Common Pleas of Cumberland County-Orphans' Court Division COMMONWEALTH OF PENNSYLVANIA CUMBERLAND VALLEY MEMORIAL Settlor No. To PNC BANK, National Association Trustee PETITION FOR ADJUDICATION-TRUST INTER VIVOS The petition ofthe undersigned Trustee under deed of trust respectfully represents: That a First and Interim Account was filed in the office ofthe Clerk of the Orphans' Court Division on and advertised for audit on That the said CUMBERLAND VALLEY MEMORIAL, Settlor, on November 8, 2000 executed a Perpetual Care Trust designating PNC BANK, National Association as Trustee, creating an irrevocable trust. The Trust Agreement was amended by the Assignment and Amendment to Care Fund Trust Agreement as of September 14, 2004. The Trust Agreement and the Assignment have not previously been recorded. A copy of the Trust and the Assignment are hereto attached. The reason for filing the present account is: f......:l c:;::.::. '~') crl Per the requirement of9 Pa. Con. Stat. 9308(a) and to confirm the current account a~ to award principal and income to PNC Bank, N.A. Trustee, in continuing trust. ~.) o ~ en ~ 642300 ~ -", il't <~ C") , :~~~~\ ! ('_:'1 C) , ":-1 -'1'1 "'~ - l-T I . , The names of all persons having any interest, vested or contingent, in the trust, with their relationship, and the nature of their interests, are as follows: (If this is a terminated trust, set forth the name oflife beneficiary, date of death, and name oflegal representative.) N/A (If this is a continuing trust, set forth the name of the succeeding trustee and date of appointment. ) Notice was provided via first class mail dated October I r-: 2005, to each of the following: PNC Bank, N.A., Trustee c/o Kathleen L. Singleton 620 Liberty Avenue Two PNC Plaza - 25th Floor Pittsburgh, PA 15222 Cumberland Valley Memorial, Settlor c/o Stonemor Partners L.P. ATTN: Linda Punturiero, Trust Department 155 Rittenhouse Circle Bristol, PA 19007 Michael T. Foerster, Esquire Deputy Attorney General Commonwealth of Pennsylvania Office of the Attorney General Charitable Trusts and Organizations Section Strawberry Square Harrisburg, P A 17120 The accountant has given written notice of the filing of the account and the call thereof for audit and confirmation to every unpaid claimant who has given written notice of his claim to the accountant or to his attorney of record, and to every other person known to the accountant to have an interest in the trust as beneficiary, heir, or next of kin. None. Wherefore, your petitioner asks that distribution be awarded to the persons thereto entitled, and suggests that the distributive shares of principal and income are as follows: 642300 . .. All remaining balances to be awarded as follows: Principal- To PNC Bank, N.A., Trustee for the benefit of Cumberland Valley Memorial Cemetery, in continuing trust. Income - To Cumberland Valley Memorial Cemetery*. * Subject to distributions properly made heretofore. And your petitioner/s will respectfully pray, etc. STATEOh h ~ U L<<.. -'1f' ~ COUNTY OF r : SS ~ : SS : SS Respectfully Submitted, PNC BANK, N.A. By: JOANNA MAYO, Vice President of the above captioned PNC Bank, N.A., Trustee, and as such Vice President duly authorized to make this Verification on its behalf, being duly affirmed say/s: That the statements made in the foregoing petition which are within personal knowledge of petitioner are true, and as to statements based on information of others, the petitioner/s, after diligent inquiry, believe/s them to be true. Affirmed and _suj],scIjbed before me _ this day of ~ ""f',.:t ~ 0 5 642300 PNC Brk, N.A. /1 ! I By: /!~1'11/!1<' (t!/![J/) ;1'OANNA ;JA YOyVice President .....1_. '-"f(~ ""''*0 ClWW.. ...a..-.ca..r Mra..._ r L ~...._ Ie.... Court of Common Pleas of Cumberland County-Orphans' Court Division COMMONWEALTH OF PENNSYLVANIA CUMBERLAND V ALLEY MEMORIAL Settlor No. To PNC BANK, N.A., Trustee STATEMENT OF PROPOSED DISTRIBUTION Principal Balance as per Account $ 583.010.46 Increases and/or Decreases: None Principal Balance for distribution: Which is awarded as follows: To: PNC BANK, N.A., Trustee, in further Trust $ 583.010.46 Income Balance as per Account $ -0- Increases and/or Decreases: None Income Balance for distribution: Which is awarded as follows I: $ -0- To: CUMBERLAND V ALLEY MEMORIAL I Subject to distributions heretofore properly made. 642300 --- . . I ~ereby certify that the folIowi~s a true and correct , cOpy oftjt,e o~ina! document. . · )., - . ---. \ '" . _ ---, f )') l~ J Nina B. Stryke , Esquire Attorney I.D. #36531 . 62.D-1 O.-/O~-d'OOOL 770 , ,LG2--~S /C!.... PERPETUAL CARE TRUST FOR CUMBERLAND V ALLEY MEMORIAL THIS PERPETUAL CARE TRUST AGREEMENT made this 2tb, day of JJ.t7JeMb~, 2000 by and between Cumberland Valley Memorial, a Pennsylvania corporation with its principal offices located at (hereinafter referred to as "Cemetery Operator") and PNC BANK, National Association, a national banking association organized under the laws of the United States of America, with one of its principal offices located at Two PNC Plaza, Pittsburgh, PA 15222 (hereinafter "Trustee"). WIT N E SSE T H: WHEREAS, in the normal course of its business, the Cemetery Operator enters into contracts with owners and manages a cemetery and sells burial lots therein. WHEREAS, Cemetery Operator is required to place certain funds into a trust account to be used for the perpetual care and maintenance of the cemetery and desires to have Trustee act as trustee in connection therewith; and WHEREAS, Trustee is authorized to perform trust functions and desires to act as trustee for those funds. NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties hereto agree as follows: 1. Establishment. There is hereby established a trust account (the "Trust"), which shall be used to hold the funds received by Trustee for use in the perpetual care, maintenance and preservation of the lots and grounds of cemeteries and the repair and renewal of buildings and property connected with and forming a part of cemeteries ("Cemetery Property"). 2. Irrevocability. This Perpetual Care Trust Agreement shall be irrevocable. However, the Cemetery Operator and the Trustee, by a written instrument executed by _._.,~:~j<J~::'::_:2J\t:G~!'T~ElLE~D ~N \lAUL T . . t' both may amend this in any manner to (i) assure that it continues to meet the requirements of laws and regulations governing the sale of Cemetery Property, or (ii) provide for more efficient investment or administration of the trust provided such amendment does not cause the trust to fail to meet the aforesaid requirements. 3. Contributions. The Cemetery Operator shall contribute to this Trust such, amounts as it is required to deposit under the laws, rules and regulations which control the maintenance and care of cemeteries in the Commonwealth of Pennsylvania. The Trustee is under no obligation to ascertain whether the funds so deposited by the Cemetery Operator are in amounts required by those laws, rules and regulations or to enforce the contribution thereof. 4. Disbursement ofIncome. The Trustee shall hold all funds IN TRUST, and the Trustee shall invest and reinvest those funds and distribute the income and principal as follows: a. On a monthly basis (or otherwise to the extent the Trustee and the Cemetery Operator so agree), the Trustee shall distribute the net income earned by the Trust to the Cemetery Operator to be used for the perpetual care and maintenance of that cemetery. b. The principal shall remain in Trust in perpetuity. 5. Recouoment of Excess Distributions. Notwithstanding anything contained herein to the contrary, the Cemetery Operator shall not receive any amounts from the trust which amounts are in excess of those amounts permitted to be distributed under the laws, rules or regulations of the Commonwealth of Pennsylvania. In the event that excess amounts have been distributed to the Cemetery Operator from a trust, the Cemetery Operator hereby agrees to take any action which may be necessary to repay said excessive distribution including but not limited to granting the Trustee the right to withhold said excessive amount from any other funds due to the Cemetery Operator or from the next distribution of income to be paid to be said Cemetery Operator hereunder. . . If 6. Representations and Warranties of the CemeterY Operator. a. The Cemetery Operator warrants and represents that it is a corporation duly organized, and existing in good standing under the laws of the Commonwealth of Pennsylvania, that its corporate officer executing this Agreement on its behalf has been duly authorized to enter into this Trust Agreement for the purposes set forth herein. b. The Cemetery Operator, for itself, its successors and assigns hereby authorizes the Trustee as necessary from time to time to deal with and handle the funds of the Trust so as to conform to or comply with any law, rule, regulation or decree relating to the subject matter hereof, irrespective of the provisions hereof or of any Agreement. c. The Cemetery Operator for itself, its successors and assigns hereby warrants that Trustee has no obligation to see to that the Cemetery Operator properly uses the income distributed hereunder for the perpetual care, maintenance and preservation of the Cemetery Property. 7. Representations and Warranties Dfthe Trustee. a. The Trustee shall file financial reports with the Orphans' Court Division of the Court of Common Pleas and such other reports as required by laws of the Commonwealth of Pennsylvania. In the preparation of these reports, the Cemetery Operator shall provide to the Trustee all assistance reasonably necessary to file complete and aCCurate reports. b. The Trustee shall be responsible for filing all Federal and State income tax returns which are required to be filed. In that regard, the Cemetery Operator shall provide to Trustee such information and assistance as is reasona~ly necessary to file complete and accurate returns. e . ~ c. The Trustee agrees to perform such duties as are specifically set forth herein. No implied covenants or obligations shall be deemed to be imposed upon the Trustee. 8. Powers of Trustee. The Trustee shall have the following powers: a. To retain as an investment for the trust estate any and all property. received by the Trustee. This authority shall specifically include the authority to retain any stock received by it hereunder in PNC FINANCIAL SERVICES GROUP, or its successors, and the authority to act with respect to the same as if it were stock of any other corporation, notwithstanding the fact that PNC BANK, NATIONAL ASSOCIATION or any successor thereto, shall be Trustee hereunder. b. To invest and reinvest the principal of the trust estate, together with any income accumulated thereon, in all forms of property, including but not limited to common trust funds maintained by the Trustee or any of its bank affiliates, stocks, bonds and other evidences of indebtedness, and securities including any of those which are underwritten by PNC BANK, NA TIONAL ASSOCIATION or any of its affiliates, whether individually or as a member of a divided or undivided syndicate, participation in registered investment companies including those for which the Trustee or any of its affiliates provide services for additional compensation, whether as custodian, transfer agent, investment advisor or otherwise (the Cemetery Operator acknowledges that such participations are not bank deposits and are not insured by, guaranteed by, obligations of, or otherwise supported by the United States of America, the Federal Deposit Insurance Corporation, or any bank), and interest-bearing deposits in a bank or other financial institution under state or federal supervision, including the Trustee's banking department, without restriction to legal investments and without regard to diversification; to exchange or lease for any period of time any real or personal property and to give options for sales, exchanges and leases; to exercise all rights of security holders; to compromise any claim or controversy without court approval; to borrow money from any source, including PNC e . BANK, NATIONAL ASSOCIATION; to delegate record keeping to the Cemetery Operator and to delegate discretionary powers; and to make distribution in cash or in kind. c. To purchase and sell securities through any broker and brokerage firm the Trustee may select, including any brokerage operation affiliated with or conducted by PNC BANK, NATIONAL ASSOCIATION, PNC FINANCIAL SERVICES GROUP, or any of their subsidiaries. The payment of the usual commissions charged by such an affiliated brokerage operation shall in no way reduce or otherwise affect the Trustee's compensation as hereinafter provided for. d. To register or carry any investments held by it hereunder in its 0'WI1 name or In the name of a nominee or nominees; provided, however, that all such investments shall be so designated upon the records of the Trustee that the trust to which they belong shall appear clearly at all times. 9. Investment Advisor. The Cemetery Operator may from time to time select, by an instrument in writing signed by a duly authorized officer and delivered to the Trustee, a person or firm to act as an investment advisor hereunder in respect of the Trust or any part thereof. Any investment advisor so selected may in like manner be removed at any time and another investment advisor appointment concurrently therewith or at any time subsequent thereto. As used herein, an investment advisor may but need not be a securities broker or registered representative with whom or which an investment account is established. So long as an investment advisor is acting hereunder, the Trustee shall invest the Trust or the designated part thereof only in accordance with the instructions of the advisor. The Trustee shall be under no duty to question any s~~h instruction, and during the period in which the advisor is acting hereunder, to review or to make any recommendations to any person regarding the retention, sale, or any matter whatsoever, and the Trustee shall not be liable for any action or failure to act resulting from . . compliance with such instructions and shall be indemnified and saved harmless from the Trust from and against any and all liabilities to which the Trustee may be subject by reason of any such action or failure to act. including all expenses reasonably incurred in its defense. The advisor shall be entitled to receive such compensation for services rendered hereunder as may customarily be paid to investment advisory firms or securities brokers or registered representatives, as the case may be. 10. Statements. The Trustee shall on a monthly basis furnish the Cemetery Operator with statements. All such statements shall be in a form produced by the Trustee's automated accounting system and shall contain such additional information, to the extent available without imposing unreasonable expense or effort on the part of the Trustee, so as to enable the Cemetery Operator to comply with any reporting obligations which may be imposed by any government agency with authority or control over the subject matter of this Trust. Upon the expiration of ninety (90) days from the date of filing any account, or upon the earlier specific approval of the Cemetery Operator, the Trustee shall be forever released and discharged from all liability and accountability to the Cemetery Operator with respect to the propriety of its acts and transactions shown in such account, except to such acts or transactions which the Cemetery Operator objects to in writing within such ninety (90) day period. 11. Fees. The Trustee shall be entitled to fees for services it is provided hereunder according to the written agreement between the parties, as amended from time to time. 12. Signatures. The Trustee may rely absolutely upon the genuineness of any signature or purported signature appearing to that of the Cemetery Operator, or any persons, firms or entities claiming by, through or under it and upon any instruction, notice, relief or receipt of other document delivered to the Trustee pursuant to the terms and provisions hereunder, under the Contract and/or Certificate. . . 13. Effect. The terms of this Trust Agreement shall be binding upon the parties hereto with respect to all matters set forth herein including but not limited to the disbursement of funds held pursuant to the Trust, the administration of the Trust and the Trustee's obligation and liabilities with respect thereto. 14. Indemnitv. The Cemetery Operator hereby agrees to indemnity Trustee and hold the Trustee harmless from any and all claims, liabilities, costs, expenses and counsel fees arising out of or incurring in connection with this Trust Agreement, and existing Trust or other fiduciary arrangement, unless such claim or suit is based on the claims arising out of the acts or omissions of predecessor trustees with respect to any pre- willful misconduct, gross negligence or bad faith of the Trustee. The Trustee may consult with the counsel of its own choosing with respect to the performance of its obligations hereunder and the Trustee may act upon any written advice tendered by such counsel, with such advice being conclusive proof for purposes of this Trust of the reasonableness of the action taken by the Trustee in reliance thereon. 15. Termination. This Agreement may be terminated by either party by one party giving the other party thirty (30) days written notice thereof. Any such termination shall be effective upon the transfer all trusts held pursuant to this Agreement to a qualified successor COrporate trustee. Neither party may assign its rights, duties and/or obligations under this Trust without prior written Consent of the other party, which consent may be withheld for any reason whatsoever. l6. Notices. Any and all notices required or permitted by this Agreement shall be made in writing and shall be deemed to have been given if delivered or mailed, postage prepaid, first-class mail as follows: To PNC: PNC Bank, National Association 620 Liberty Avenue Two PNC Plaza - 25th Floor Pittsburgh, PAl 5222 e . To: Cumberland Valley Memorial 1921 Ritner Highway Carlisle, P A 17013 understanding between the parties with respect to the subject matter contained herein and 17. Inte2ration. This Agreement constitutes the entire agreement and supersedes all prior agreements between the parties pertaining to the subject matter hereof and the terms hereof may not be amended, revoked, rescinded or altered in any fashion except by a writing executed by all the parties hereto. 18. Governin!l Law. This Agreement shall be governed and construed In accordance with the laws of the Commonwealth of Pennsylvania. hand and seal the date and year first above written. IN Vv1TNESS WHEREOF, the parties hereto have set unto this document their ATTEST: CUMBERLAND VALLEY MEMORIAL ~ By: ;/' J4G-1- /.e~I/.Id~ ATTEST: PNC BANK, NATIONAL ASSOCIATION .~~A,~ By: VI LL ?r-B.oE<J) . . . / COMMONWEAL TH OF PENNSYL VANIA COUNTY OF ALLEGHENY On this, the dO+YI day of lNembor . 20iD, before me, the undersigned officer, personally appeared e l' eJa.rcl A. "1h ( \ ( , who acknowledged himself to be Vice President of PNC Bank, National Association, and that for the purposes therein contained by signing the name of the Bank as Vice President. as such Vice President, being duly authorized to do so, executed the foregoing instrument IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~ooc -if~~ NOTARY PUBLIC - (SEAL) My Commission Expires: Ju.ne ;l S . d-OO I I \'-'--:-.,.- ".' I' I Kathlepn L 's';;'~.':.'._', .:~";',:..:..,." 'C"..,, - . -'," ",". .~. . , .'.." . , .-'. ."- j ::m~:;~::~~:?~~2~:;'~:~:~i:i':::!;X~;~~') e e ) COMMONWEALTH OF PENNSYLVANIA COUNTY OF BUCKS On this, the 26th day of October, 2000, before me, the undersigned officer, personally appeared Frank Milles, who acknowledged himself to be Vice President of Cumberland Valley Memorial, and that as such corporate officer, being duly authorized to do so, executed the foregoing instrument for the purposes therein contained by signing his name as Vice President. IN WITNESS WHEREOF. I have hereunto set my hand and official seal. ~~ Notary Public My Commission Expires: NOTARIJ.l. SEAL Antonia J. Foster. Notary Public Bensalem Twp., Bucks COUC1ty My Commlsslon Ex,mes: July 1. 2"(1;' I hereby certify that the following is a true and correct copy oft~e ori~iW11 document. t~~__ Nina B. Stryker, quire Attorney I.D. #36531 ASSIGNMENT OF AND AMENDMENT To CARE FuND TRUST AGREEMENT PERPETUAL CARE TRUST AGREEMENT THIS ASSIGNMENT AND AMENDMENT ("Assignment and Amendment") is made as of September 14th, 2004, with an Effective Date as hereinafter provided by and among CORNERSTONE F AMIL Y SERVICES, INC. ("CFSr'), Osiris Holding of Pennsylvania LtC ("Parent"), Osiris Holding of Pennsylvania Subsidiary LLC ("Subsidiary"), and PNC Bank, National ;'\ssociation ("Trustee"). WHEREAS, Parent is the legal successor to Cumberland Valley Memorial Gardens ("Trustor") by merger of Parent into a Pennsylvania limited liability company under 15 Pa. Cons. Stat. S 8901 et. seq. ("Merger"); WHEREAS, CFSI, on behalf of Trustor, and Trustee entered into a [care fund trust agreement] / [perpetual care trust agreement] for sales of burial lots and services by Trustor, dated as of Il~ ~ .00 (the "Trust Agreement"); and WHEREAS, as successor to Trustor, Parent wishes to assign certain rights and obligations of Trustor to Subsidiary to enable Subsidiary to assume certain rights and duties of Trustor; and WHEREAS, as successor to Trustor, Parent wishes to amend the Trust Agreement to provide that Parent shall have the exclusive obligation under the Trust Agreement to make contributions to the Trust; and WHEREAS, the Board of Directors of the Trustor by unanimous written consent approved, prior to the Merger, the actions established by this Assignment and Amendment and such approval has been adopted, ratified and confirmed by the sole member of Parent. NOW THEREFORE, in consideration of the premises and the mutual promises contained herein, and intending to be legally bound hereby, the Trust Agreement is hereby assigned and amended as follows, effective on the Effective Date as hereinafter provided: 1. Trustor assigns all of its right, title and interest in the Perpetual Care Trust Agreement to Subsidiary. Subsidiary accepts such assignment and agrees to be bound by the terms of the Trust Agreement as amended by the terms hereof. Parent and Subsidiary agree to fully cooperate with each other in carrying out the intents and purposes of this Assignment and Amendment. 2. All references to "Trustor" in the Perpetual Care Trust Agreement shall.be deemed to mean the Subsidiary (as defined above), except as otherwise provided below in Sections 3 and 4. . . 3. In the following sections, all references to "Trustor" shall be deemed to mean the Parent (as defined above): . Section 1 (a) - Sentence 3 - Line 1. Section 1 (b) - Line 2. (both reference) Section 1 (b) - Line 4. Section 2(b) - Line 1. Section 7 - Lines 2 and 5. Section 9 - Line 1. Section 10 - Line 2. Section 13 - Line 4. 4. In the following sections, all references to "Trustor" shall be deemed to mean the Parent and the Subsidiary (as defined above): Section 1 (b) - Line 5. Section 2(c) - all references to "Trustor" Section 2( d) - all references to "Trustor" Section 6 - Line 2. Section 11 - all references "Trustor" Section 13 - Line 5 Section 16 - Line 3 Section 17 - all references "Trustor" 5. Section 1- (a)-Sentence 1 is deleted in its entirety and replaced with the following language: "A predecessor of Parent has hereby established a trust with the Trustee an irrevocable cemetery care fund (the "Fund") separate and apart froll1 all other funds, property or securities belonging to the Trustor, which Fund shall constitute the trust estate to be governed, invested, reinvested and disposed of under the terms hereof, and shall consist of deposits to be made hereunder." 6. The Effective Date of this Assignment and Amendment shall be the effective date of that certain Transfer Agreement between Cemetery Company and Subsidiary (the "Transfer Agreement"). 7. Except as provided above, the terms and conditions of the Agreement shall remain in full force and effect. IN WTTNESS WHEREOF, CFSI, the Trustor, Subsidiary and the Trustee have caused this Amendment to be executed as of the day and year first written above. CORNERSTONE FAMILY SERVICES, INC. ",/~. ;,~) z--:-:.-' B ~./ /7 ~~ "'-//J' / y: ,/,//v;/.v~Y ?'-""'~V Vice President (/ Osiris Holding of Pennsylvania LLC /./ /' -~- /----, ~ "/ ,//~ '.' .~'") /// . ,/ . / . By. /'/:?...;J-d/ . .~ Vice Presjdeni' Osiris Holding of Pennsylvania Subsidiary LLC -----) ~-- By: :~<<</~~ Vice Presidetit ACCEPTED, this I ~ day of <:;:~ fY\ ~, 2004 PNC Bank, National Association By:72~~~ \j\VC ?i\-U\~~ [END OF EXECUTIONS] 109495001 J3!1132673lvl '- . Court of Common Pleas of Cumberland County-Orphans' Court Division COMMONWEAL TH OF PENNSYL VANIA CUMBERLAND VALLEY MEMORIAL CEMETERY PERPETUAL CARE FUND TRUST, Settlor No. To PNC BANK, N.A., Trustee TO: Cumberland Valley Memorial Michael T. Forrester, Esquire PNC Bank, N.A, Trustee Cemetery, Settlor Chief Deputy Attorney c/o Kathleen Singleton c/o Stonemor Partners L.P. General 620 Liberty Avenue A TTN: Linda Punturiero, Commonwealth ofPA Two PNC Plaza, 2Sth Floor Trust Department Charitable Trusts and Pittsburgh, P A IS222 ISS Rittenhouse Circle Organizations Section Bristol, P A 19007 Strawberry Square Harrisburg, P A 17120 NOTICE You are hereby notified that the accountant has filed a First and Interim Account and a petition for adjudication of all real and personal property of the aforementioned perpetual care cemetery trust in the Office ofthe Clerk of the Orphans' Court ofthe County Cumberland, Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania 17013, to be placed on the audit list for November 22, 200S. Copies of these documents are attached. If you object to any portion of the account or petition for adjudication, you must file objections by 9:00 AM. on November 22, 200S, the date the account and petition for adjudication will be confirmed by the Clerk of the Orphans' Court. You are hereby warned that ifno objections are filed, the account and petition for adjudication will be confirmed and distribution will be made in accordance with the statement of proposed 66]318 - ... - distribution, attached to the petition. If you have any questions concerning this notice, you should contact your attorney or the accounta~'s attorney. . t~5;;& Date: I () (I f (0 r- Nina B. Stryker ~ Counsel for the Accountant 1617 JFK Boulevard Philadelphia, PA 19103 Address (215) 665-3057 Telephone number 661318