HomeMy WebLinkAbout07-13-06
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IN THE MATTER OF TH E
ESTATE OF JOHN E. FOX, JR.
DECEASED
JOHN E. FOX, JR. FAMILY TRUST
UNDER AGREEMENT DATED
DECEMBER 29, 1995,
AS THEREAFTER AMENDED
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
.
: ORPHANS' COURT DIVISION
: \005
: No. 1=CPPIt of 2005
RECEIPT, RELEASE, REFUNDING AND INDEMNIFICATION AGREEMENT
CONCERNING INTERIM DISTRIBUTIONS
THIS AGREEMENT made this .).)J-l.!) day of \1~ ~c
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WIT N E SSE T H:
I. THE CIRCUMSTANCES leading up to the execution of this Agreement are
as follows:
WHEREAS, John died testate, on October 24, 2005, a domiciliary of
Cumberland County, Pennsylvania.
WHEREAS, John's wife, Katharine, predeceased John on June 8, 2001.
WHEREAS, the Cumberland County Register of Will appointed M& T Trust and
Ross as the Executors of John's Probate Estate.
WHEREAS, pursuant to John's Will, the residue of John's Probate Estate is
distributed to the Trustees.
WHEREAS, pursuant to Paragraphs A and B of Article IX of the Trust Agreement
(entitled Disposition of Family Trust), upon the death of John, the Trustees are to pay
the following amounts to the following individuals:
(i) $50,000 to Uda, if she is then living; if Uda is not then living, the Trustees
are to pay such amount to Lida's then living issue, per stirpes; and,
(ii) Pay the sum of $25,000 to Eliza, if she is then living.
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WHEREAS, Uda disclaimed any and all rights and interests in the above
described $50,000 cash legacy.
WHEREAS, pursuant to Pennsylvania statutory and case law, the above
described $50,000 cash legacy to Uda automatically passes equally to Lida's children,
Eliza and J. Gerhardt, as a result of Lida's Disclaimer.
WHEREAS, the Executors have not yet filed the Pennsylvania Inheritance Tax
Return, but have made a substantial payment on account of the inheritance tax
obligation.
WHEREAS, Eliza and J. Gerhardt would like the Trustees to pay the above
described cash legacies without the cost and delay of court adjudicated and confirmed
accounting.
WHEREAS, the Executors and Trustees are willing make such interim
distributions to Eliza and J. Gerhardt, provided both Eliza and J. Gerhardt execute this
Agreement to provide the Executors and Trustees with satisfactory release, refunding
and indemnification protections.
II. RECEIPT, RELEASE, REFUNDING AND INDEMNIFICATION AGREEMENT:
NOW THEREFORE, in consideration of the foregoing and intending to be legally
bound, severally, Eliza and J. Gerhardt for themselves, their heirs, personal
representative, successors, and assigns hereby do as follows, to wit:
A. Represent and warrant that they have read and understand this
Agreement, including all the Exhibits thereto, and confirm that the facts
set forth above are true, correct and complete to the best of their
knowledge, information and belief, and incorporate them herein by
reference.
B. Represent they have entered into this Agreement by their own free will
and choice without any compulsion, duress or undue influence from
anyone.
C. Represent they have sought advice of an attorney, prior to executing this
Agreement or have voluntarily chosen not to consult an Attorney.
D. Approve the Proposed Interim Distributions set forth in Exhibit "C" hereto,
and acknowledge receipt thereof in full satisfaction of their respective
interests/shares under Paragraphs A and B of Article IX of John's Family
Trust.
E. Agree to refund, on demand, all or any part of the aforesaid distributions,
which has been determined by the Executors and/or the Trustees or by
the Pennsylvania Court, or by any court of competent jurisdiction to have
been improperly made.
F. Absolutely, unconditionally, and irrevocably release, remise and forever
discharge KW AR from any and all manner of actions, causes of action,
suits, liens, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents,
executions, claims, demands, losses, costs and expense whatsoever in
law, admiralty or equity, in any way arising from or in any way regarding
the distributions described herein.
G. To the extent of the aforesaid distributions, Eliza and J. Gerhardt hereby
agree to indemnify and hold harmless the Executors and the Trustees and
their heirs, personal representatives, successors and assigns, from and
against any and all claims, loss, liability or damage (whether or not related
to the negligence of the Executors and/or the Trustees) which they
respectively may suffer, or to which they may be subjected by reason of
their administration of John's Probate Estate and John's Family Trust, to
date, including the Proposed Interim Distributions described herein.
H. Absolutely, unconditionally, and irrevocably release, remise and forever
discharge the Executors and the Trustees from any and all manner of
actions, causes of action, suits, liens, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims, demands, losses, costs and
expense whatsoever in law, admiralty or equity, in any way arising from or
in any way regarding the Proposed Interim Distributions described herein.
I. Agree that this Agreement constitutes the entire understanding between
the parties hereto concerning the subject matter hereof, and supersedes
any and all prior written agreements, and any and all prior or
contemporaneous oral agreement or understanding relating to the subject
matter.
J. Agree that this Agreement may not be amended, modified, superseded,
canceled, renewed or extended, nor may any term or condition hereof be
waived, except by a written instrument or document signed by all the
parties hereto or, in the case of a waiver, signed by the party sought to be
charged therewith. No waiver by any party of the breach of any provision
hereof shall be deemed to constitute a waiver of any continuing or
subsequent breach of such provision or any other provision hereof.
Except as otherwise provided herein, the rights and remedies expressly
granted hereunder shall be cumulative with respect to, and shall not be
deemed to exclude, any other rights and remedies to which any party shall
be entitled at law or in equity.
K. Agree that this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors, assigns,
personal representatives, and those who may hereafter claim through any
of the parties.
L. Agree that this Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to choice-of-Iaw provisions. The Pennsylvania Court shall have
exclusive jurisdiction over any action to enforce or interpret the terms of
this Agreement. The parties hereby consent to said Pennsylvania Court
exercising personal jurisdiction over them in any suit or action arising out
of the enforcement of this Agreement.
M. Agree that any references to persons or things shall be deemed to refer to
such persons or things in the singular or plural and in the masculine,
feminine or neuter gender as the context shall require.
N. Agree this Agreement shall be deemed to be severable, so that if any
provision hereof shall be determined by a court of competent jurisdiction
to be invalid or unenforceable, the remaining provisions hereof shall
continue to remain valid and enforceable in accordance with their terms.
O. Agree this Agreement may be executed in multiple counterparts, each of
which may contain the signatures of one or more of the parties, all of
which, taken together, shall constitute one and the same document.
P. Agree the following words and phrases when used in this Agreement shall
have the following meanings unless clearly indicated otherwise:
1. Disclaimer. The term "Disclaimer" means that certain written
instrument which Lida signed and dated February 28, 2006, and
delivered to the Trustees, whereby she renounced any and all
interest in the $50,000 gift under Article IX of the Trust Agreement.
A true and correct copy of the Disclaimer is attached hereto as
Exhibit "C", and is incorporated herein by reference.
2. Eliza. The term "Eliza" means Eliza W. Granlund (a/k/a Eliza
Gerhardt Granlund), John's niece.
3. Executors. The term "Executors" refers collectively to M& T Trust
and Ross, as the appointed Executors of John's Probate Estate.
4. John. The term "John" means John E. Fox, Jr., who died testate on
October 24, 2005, a domiciliary of Cumberland County,
Pennsylvania.
5. John's Will. The term "John's Will" refers collectively to John's
Will dated December 29, 1995 and codicils dated January 19, 1996
and August 15, 2001. A true and correct copy of John's Will is
attached hereto as Exhibit "A", and is incorporated herein by
reference.
6. J. Gerhardt. The term "J. Gerhardt" means John Fox Gerhardt,
John's nephew.
7. Katharine. The term "Katharine" means Katharine C. Fox, John
wife, who died testate on June 8, 2001, a domiciliary of
Cumberland County, Pennsylvania.
9. John's Family Trust. The term "John's Family Trust" means the
Family Trust which John established by the Trust Agreement.
10. KWAR. The term "KWAR" means the law firm of Keefer, Wood,
Allen & Rahal, LLP, and its members and individual attorneys
associated therewith.
11. Lida. The term "Uda" means Eliza F. Gerhardt (a/k/a Uda F.
Gerhardt, and erroneously identified as Uda S. Gerhardt under
Article IX of the Trust Agreement), Jon's sister.
12. M& T Trust. The term "M& T Trust" refers to Manufacturers and
Traders Trust Company, as a Co-Trustee of John's Family Trust
((the successor by its merger with Allfirst Trust Company of
Pennsylvania, N.A. ("Allfirst"), the successor entity of that merger of
Allfirst and Dauphin Deposit Bank and Trust Company, a division
of FMB Bank)).
13. Pennsylvania Court. The term "Pennsylvania Court" means the
Orphans' Court Division of he Court of Common Pleas of
Cumberland County, Pennsylvania.
14. Probate Estate. The term "Probate Estate" means those assets
which are distributable to a decedent or to his or her successors,
personal representative or heirs-at-Iaw.
15. Ross. The term "Ross"means Ross Miner Chrisman, Katharine's
son and John's step-son.
16. Trustees. The term "Trustees" refers collectively to M& T Trust and
Ross, as the Trustees of John's Family Trust.
17. Trust Agreement. The term "Trust Agreement" means that
Agreement of Trust which John signed and dated December 29,
1995, and thereafter amend on January 19, 1996, July 2, 1996,
September 13, 2001. A true and correct copy of the Trust
Agreement is attached hereto as Exhibit "B", and is incorporated
herein by reference.
IN WITNESS WHEREOF, Eliza, J. Gerhardt, the Executors and the Trustees
have placed their hands and seals on the attached Consents to Receipt, Release,
Refunding and Indemnification Agreement.
IN THE MATTER OF TH E
ESTATE OF JOHN E. FOX, JR.
DECEASED
JOHN E. FOX, JR. FAMILY TRUST
UNDER AGREEMENT DATED
DECEMBER 29, 1995,
AS THEREAFTER AMENDED
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
.
: No. 1011 of 2005
CONSENT TO
RECEIPT, RELEASE, REFUNDING AND INDEMNIFICATION AGREEMENT
CONCERNING INTERIM DISTRIBUTIONS
THE UNDERSIGNED, ELIZA GERHARDT GRANLUND (AlK/A ELIZA W.
GRANLUND), hereby consents to and joins in this Receipt, Release, Refunding and
Indemnification Agreement Concerning Interim Distributions (the "Agreement"), for the
purposes expressed therein, and acknowledges receipt of a copy of the Agreement and
all Exhibits thereto.
STATE OF NORTH CAROLINA
COUNTY OF (' l?,A 0,c U
On this?:) day of --,\vd)Z- , 2006 before me, the undersigned officer,
personally a.ppeared ELIZA GERHARDT GRANLUND, 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.
: ss:
IN WITNESS WHEREOF, I hereunder set my hand and official seal.
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Notary Public /::.-y e-, (( 2.7 \x-~
IN THE MATTER OF TH E
ESTATE OF JOHN E. FOX, JR.
DECEASED
JOHN E. FOX, JR. FAMILY TRUST
UNDER AGREEMENT DATED
DECEMBER 29, 1995,
AS THEREAFTER AMENDED
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
.
: ORPHANS' COURT DIVISION
.
: No. 1011 of 2005
CONSENT TO
RECEIPT, RELEASE, REFUNDING AND INDEMNIFICATION AGREEMENT
CONCERNING INTERIM DISTRIBUTIONS
THE UNDERSIGNED, JOHN FOX GERHARDT, hereby consents to and joins in
this Receipt, Release, Refunding and Indemnification Agreement Concerning Interim
Distributions (the "Agreement"), for the purposes expressed therein, and acknowledges
receipt of a copy of the Agreement and all Exhibits therejo.
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JOHN FO ER ARDT
STATE OF MICHIGAN
COUNTY OF Grand Traverse
On this 29th day of June ,2006 before me, the undersigned officer,
personally appeared JOHN FOX GERHARDT, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged
that he executed the same for the purposes therein contained.
: ss:
IN WITNESS WHEREOF, I hereunder set my hand and official seal.
c0 C<( ~cLI~i7l.Z::
Notary Public Rex A. Balentine
Grand Traverse County, Michigan
Acting in Grand Traverse County, Michigan.
My Commision Expires: March 8, 2012.
IN THE MATTER OF TH E
ESTATE OF JOHN E. FOX, JR.,
DECEASED
JOHN E. FOX, JR. FAMILY TRUST
UNDER AGREEMENT DATED
DECEMBER 29, 1995,
AS THEREAFTER AMENDED
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
: No.1 011 of 2005
CONSENT TO
RECEIPT, RELEASE, REFUNDING AND INDEMNIFICATION AGREEMENT
CONCERNING INTERIM DISTRIBUTIONS
THE UNDERSIGNED, Sue Mauery, Vice President and Trust Officer of
Manufacturers and Traders Trust Company, as Co-Executor of the Probate Estate of
John E. Fox, Jr., deceased, and as Co-Trustee of the Family Trust established by that
certain Agreement of Trust which John E. Fox, Jr. signed and dated December 29,
1995, and thereafter amended on January 19,1996, July 2, 1996 and September 13,
2001 ((Co-Executor and Co-Trustee as the successor entity of its merger with Allfirst
Trust Company of Pennsylvania, N.A. ("Allfirst"), the successor entity of that merger of
Allfirst and Dauphin Deposit Bank and Trust Company, a division of FMB Bank)),
hereby consents to and joins in this Receipt, Release, Refunding and Indemnification
Agreement Concerning Interim Distributions (the "Agreement"), for the purposes
expressed therein, and acknowledges receipt of a copy of the Agreement and all
Exhibits thereto.
M&T Trust
By Au 0 FYI /H ~ 0 .JJ "
Sue Mauery, Vice Pr~dent and Trust
Officer
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
On this / / day of July, 2006 before me, the undersigned officer, personally
appeared Sue Mauery, who acknowledge herself to be the Vice President and Trust
Officer of Manufacturers and Traders Trust Company, and that she, as such officer
being authorized so to do, executed the foregoing instrument for the purposes therein
contained by signing the name of such trust company by herself as such officer.
: ss:
IN WITNESS WHEREOF, I hereunder set my hand and official seal.
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Notary Public
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Deama L WeIs, NoI8IY ~
City Of Hanl&burg, ~ Colrty
My eommisSion ExpiI'e8 Dee. 8, ~
Member, Pennsylvania Allocl.tlon Of Notalltl
IN THE MATTER OF TH E
ESTATE OF JOHN E. FOX, JR.
DECEASED
JOHN E. FOX, JR. FAMILY TRUST
UNDER AGREEMENT DATED
DECEMBER 29, 1995,
AS THEREAFTER AMENDED
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
.
: ORPHANS' COURT DIVISION
.
: No. 1011 of 2005
CONSENT TO
RECEIPT, RELEASE~ REFUNDING AND INDEMNIFICATION AGREEMENT
CONCERNING INTERIM DISTRIBUTIONS
THE UNDERSIGNED, ROSS MINER CHRISMAN (as Co-Executor of the
Probate Estate of John E. Fox, Jr., deceased, and as a Co-Trustee of the Family Trust
established by the Agreement of Trust which John E. Fox signed and dated December
29, 1995, and thereafter amended on January 19,1996, July 2, 1996 and September
13, 2001) hereby consents to and joins in this Receipt, Release, Refunding and
Indemnification Agreement Concerning Interim Distributions (the "Agreement"), for the
purposes expressed therein, and acknowledges receipt of a copy of the Agreement and
all Exhibits thereto.
/C. 1?J~ d-
ROSS MINER CHRISMAN
~
COMMONWEALTH OF PENNSYLVANIA
: ss:
COUNTY OF ~C()\l\.I("\~
On this,)..'2>rA- day of 3 \)~ C ,2006 before me, the undersigned officer,
personally appeared ROSS MINER CHRISMAN, known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and acknowledged
that he executed the same in the fiduciary capacities indicated above for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunder set my hand and official seal.
~Q Gul~
NO.,ta Public
. -. OF ~.ANIA .
NotIlrieI Se8I .
JII A.1..arn8de. NotarY PubliC
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....mber. ~8 (J.S8OCIatlon t:J NoWIe8
EXHIBIT A
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~r CO~IL TO WILL OF
JOHN E. FOX, JR.
It
I, John E. Fox, Jr., presently of Cumberland County, Pennsylvania, declare this to be a
First Codicil to my Will of December 29, 1995.
1. I hereby insert the following Article III -1 :
Article 111-1. Specific Bequest of Tangible Personal Property. I bequeath the
silver and the desk in the living room of my Camp Hill residence equally to Ross
M. Chrisman and Neil Chrisman, III, the son's of my deceased wife, Katharine C.
Fox.
2. In all other respects, my Will of December 29, 1995, shall remain in full force and
effect.
IN WITNESS WHEREOF, I, John E. Fox, Jr., set my hand to the First Codicil to my last
Will, typewritten on two (2) sheets of paper, including the self-proving attestation clause and
signature of witnesses, this 15th, day of August, 2001.
,
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, John E. Fox, Jr. Testator (' '
(SEAL)
Witnessed:
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COMMONWEALTH OF PENNSYL V ANlA
: ss:
COUNTY OF DAUPHIN
John E. Fox, Jr. (the testator), Stephanie Kleinfelter and
Sue Mauery (the witnesses), whose names are signed to the foregoing instrument, being first
duly sworn, each hereby declares to the undersigned authority that the testator signed and
executed the instrument as his First Codicil to his Will dated December 29, 1995, in the presence
of the witnesses and that he had signed willingly, and that he executed it as his free and
voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence
and hearing ofthe testator, signed the codicil as witness and that to the best of his or her
knowledge the testator was at that time eighteen years of age or older, of sound mind and under
no constraint or undue influence.
WITNESS:
TESTATOR:
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John E. Fox, Jr.
WITNESS:
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Subscribed, sworn to and acknowledged before me by John E. Fox, Jr., the testator, and
15th day of August, 2001.
(SEAL)
Notarial Seal
Adelia M. GaleS. Notary PubHc
Han1sbufg. DauphIn County
My Commission Expires Sept. 20. 2004
Member. PennsyIV8nia AssoCiatIOn of Notaries
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FIRST CODICIL
to
WILL
of
JOHN E. FOX, JR.
I, JOHN E. FOX, JR., presently a resident of the County of
Cumberland, Pennsylvania, declare this to be a First Codicil to
my will of December 29, 1995.
1. The following paragraph is added to my said Will:
I hereby name Ross Miner Chrisman, a son of my
wife, as an additional Executor of my Estate, and, if
ever he is unable or unwilling so to serve, or to
continue so serving, Neil Chrisman I I I,. a son of my
wife, shall serve in Ross's place, and if ever neither
of the said son's of my wife is ever unable or
unwilling to serve, or to continue so serving, no
successor shall be appointed to serve in their place.
2. In all other respects my Will of December 29, 1995,
shall remain in full force and effect.
IN WITNESS WHEREOF,
First Codicil to my last
paper, this ~ day of
I, JOHN E. FOX, JR., set my hand to this
W~, typewritten on two (2) sheets of
rlCUu.Ut~_' 1,996.
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,/ J,9HN E. FOX,
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JR. Pf
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On the day of ,1996, JOHNE. FOX, JR.,
declared to us, the undersigned, that the foregoing instrument
was a First Codicil to his last Will, and he requested us to act
as witnesses to the same and to his signature thereupon. He
thereupon signed this said First Codicil to his last Will in our
presence, we being present at the same time. We now, at his
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~st, hereby subscribe our names as witnesses. Each of us
~ther declares that he or she believes this testator to be of
dound mind and memory.
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF Uc-.......oh \ .,
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(the testator), \,..,.i~'".,ii.", ,
, and (the
w1tnesses), hose mes are signed to the foregoing instrument,
being first duly sworn, each hereby declares to the undersigned
authority that the testator signed and executed the instrument as
a First Codicil to his last will in the presence of the witnesses
and that he had signed willingly, and that he executed it as his
free and voluntary act for the purposes therein expressed, and
that each of the witnesses, in the presence and hearing of the
testator, signed the will as witness and that to the best of
his/her knowledge the testator was at that time eighteen years of
age or older, of sound mind and under no constraint or undue
influence.
WITNESS
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TESTATOR:
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1,_i[0HN E. FOX, JR. (j
WITNESS:
WITNESS:
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Subscribed, sworn to and acknowledged before me by
JR.> the testator, and subscri sworn before
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JOHN E.
me by
, and
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FOX,
day
of ....)'-'-",u.G\,....\
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, 1996.
-J2 ' ~".~ J'/I- ~~j
~Notary Public
(SEAL)
Notarial Seal
Anf.ela M. Alonzo. Notary Public
Harrisburt, Dauphin Count)'
My Commission Expjres Oct. 26. 1996
12-21-95
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WILL
of
JOHN E. FOX, JR.
I, JOHN E. FOX, JR., having my domicile in the County of Cumberland, State of
Pennsylvania, revoke my prior Wills and Codicils and declare this to be my Will:
Article I. Family Information.
A. I am married to Katharine C. Fox ("Katharine").
Article II. Appointment of Fiduciaries.
A. I appoint Dauphin Deposit Bank and Trust Company and Kathar~ne as Co-
Executors hereunder. If ever Katharine is unable or unwilling to serve, or
continue so serving, no successor shall be appointed to serve in her place.
B. Provisions governing the compensation of executors and the appointment of
executors by persons other than myself appear elsewhere in this Will.
Article III. Real Property.
A. I give my usual principal residence to my wife if she survives me.
B. I direct my Executors to sell any other real property that was used by me as a
personal residence if it is not otherwise effectively disposed of hereunder and my
Executors determine that I would not wish to have the residence preserved for my
residuary estate, and to add the proceeds of sale to my estate generally.
Article IV. Powers of Appointment.
I declare that I do not by this Will intend to exercise any power of appointment.
Article V. Residue.
A. I give my residuary estate, real and personal, wherever located, including any
property mentioned above but not effectively disposed of, to the Trustees under
the Trust Agreement that I have signed today prior to signing this Will, to be
disposed of as provided in that Trust Agreement, including any amendments to it
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signed after today. If for any reason this gift is invalid but the terms of the trust
may be validly incorporated into this Will or otherwise carried out under this Will,
then (i) I hereby appoint the Trustees under that Trust Agreement to be trustees
under this Will, (ii) I incorporate the provisions of that Trust Agreement into this
Will (iii) I give my residuary estate to the Trustees under this Will, and (iv) I
direct that my residuary estate shall be disposed of in the manner provided in that
Trust Agreement but with the trusts thereby set forth treated as trusts under this
Will.
1. I direct my Executors to follow any instructions contained in that Trust
Agreement in making any tax election, including but not limited to the
allocation of my GST exemption. I direct that the taxes imposed by reason
of my death upon property passing under and outside this Will shall be
apportioned and paid in the manner provided in that Trust Agreement.
Article VI. Payments to Minors.
Whenever income or principal becomes distributable (whether by a direction in this Will
or by exercise of discretion hereunder) to a person under age 25 (described herein as the "Minor"
regardless of the actual legal age of majority), my Executors may make the distribution in one
or more of the following ways (or any other way that seems appropriate to my Executors):
A. If the Minor is a descendant of mine or my wife, by holding the property in a
separate trust for the Minor until the Minor attains age 25. As much of the net
income and/or principal of the trust as my Executors may from time to time
determine shall be distributed to the Minor for any purpose. Any net income not
so distributed shall from time to time be accumulated and added to principal.
Upon the attainment of age 25 by the Minor, the property then held in the Minor's
trust shall be distributed to the Minor. If the Minor dies before attaining age 25,
the property shall be distributed to (1) the Minor's descendants surviving the
Minor, per stirpes, or in default thereof (2) if the Minor was a grandchild or more
remote descendant of mine, to the descendants then living, per stirpes, of the
Minor's nearest ancestor who was a descendant of mine with issue then living, or
in default thereof or if the Minor was a child of mine (3) to my descendants then
living, per stirpes.
B. By distributing the property to a custodian under any state's version of the
Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act, including
a custodian selected by my Executors. My Executors may select any age for
termination of the custodianship permitted under the Act, giving due consideration
to selecting age 25 if that is permitted.
c. By distributing the property to anyone serving as executor under this Will to hold
the same as donee of a power during minority, such donee to have all the powers
of an executor under this Will (including the power to apply the property for the
Minor) and to be compensated as if the property were a separate trust, but with
no duty to account to any court periodically or otherwise.
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D. By distributing the property to a guardian of the Minor's property.
E. By distributing the property to a parent of the Minor even if the parent does not
assume any formal fiduciary capacity concerning the property.
F. By distributing the property directly to the Minor if the Minor has attained the age
of fourteen and has the practical capacity to own the type and amount of property
in question.
My Executors shall be free from any responsibility for the subsequent disposition of the
property if it is distributed of in one of the ways specified in this Article.
Article VII. Adopted & Non-marital Persons.
A person adopted prior to attaining age 18 (but not after) by me or my wife or by a
descendant of mine or my wife shall be treated under this Will as a descendant. A biological
descendant of mine or my wife shall not be treated as a descendant if surrendered for adoption
with the consent of his/her parent who is myself or a descendant of mine or my wife in such
manner that an adoptive parent substitutes as parent for the consenting parent. A biological
descendant of mine born out of wedlock shall not be treated as a descendant unless and until
his/her biological parents many one another prior to his or her attaining age 18. Under these
rules, adoptions and marriages shall not affect prior distributions or other interests that have
previously vested in possession, but they shall enable a person to receive distributions from or
remainder or other interests in a trust still in existence. When a person is treated or is not treated
as a descendant of mine or my wife under these rules, the same treatment shall apply to that
person's descendants. To be treated or not treated as a descendant means to be treated or not
treated as a descendant of me or my wife and of any intervening descendant of mine. Applicable
law shall apply to adopted and non-marital persons to the extent not modified by these rules.
Article VIII. Fiduciary Powers.
My Executors may, without prior authority from any court, exercise all powers conferred
by this Will or by law, including without limitation any Fiduciary Powers Act or other statute
of Pennsylvania or any other jurisdiction whose law applies to this Will. My Executors shall have
absolute discretion in exercising these powers. In order to fully effectuate the powers of the my
Executors, specific reference is now made to Probate, Estates and Fiduciaries Code, 20 Pa. C.S.A.
101, et seq. Except as specifically limited by this Will, these powers shall extend to all property
held by my Executors until the actual distribution of the property. The powers of my Executors
shall include the following:
A. Power in my Executors to pay my debts as soon as practicable in the course of the
administration of my estate, and to pay my funeral and burial expenses without
regard to any limits otherwise imposed by law on funeral and burial expenses. If
under law my wife is primarily liable for my funeral or burial expenses or the
expenses of my last illness I hereby relieve her of such liability and direct that
payment be made from my estate.
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B. Power to payout of my general estate administration expenses incurred in
connection with real or tangible personal property located outside of my domicile.
C. Power to determine what property is covered by general descriptions contained in
this Will.
D. Power to make any election available under the tax laws in such manner as my
Executors shall determine, even though an executor may have an interest affected
by the election, except where an executor is prohibited from participating in the
election by another provision of this Will.
E. Power to retain any property originally owned by me, and/or to invest and reinvest
in all forms of real and personal property, whether inside or outside the United
States, including without limitation common trust funds of a corporate executor,
mutual funds, partnerships (including a partnership in which an executor is a
general or limited partner), and other forms of joint investment (which may but
need not be managed by, advised by, or affiliated with an executor), without
regard to any principle of law limiting delegation of investment responsibility by
executors.
F. Power to compromise claims or debts and to abandon or demolish any property
which my Executors shall determine to be of little or no value.
G. Power to sell property at public or private sale, for cash or upon credit, and to
exchange property for other property, and to lease property for any period of time,
and to give options of any duration for sales, exchanges or leases.
H. Power to join in any merger, reorganization, voting-trust plan or other concerted
action of security holders, and to delegate discretionary powers (including
investment powers) in entering into the arrangement.
1. Power to borrow from anyone, even if the lender is an executor under this Will,
and to pledge property as security for repayment of the funds borrowed, including
the establishment of a margin account. No executor shall be personally liable, and
any such loan shall be payable only out of assets of my estate.
J. Power without the consent of any beneficiary to distribute in cash or in kind, and
to allocate specific assets in satisfaction of fractional shares or pecuniary sums
among the beneficiaries (including any trust) in such proportions, not necessarily
pro rata, as my Executors may determine, even though an executor has an interest
affected by the distribution and even though different beneficiaries entitled to the
same sum or share may thereby receive different mixes of assets, possibly with
different income tax bases, so long as the fair market value of property on the date
of distribution is used in determining the extent to which any distribution satisfies
a sum or share.
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K. Power to apply to the use of any individual, any property, whether principal or
income, that otherwise would or could be distributed directly to such individual.
L. Power with respect to any real property (i) to partition, subdivide or improve such
property and to enter into agreements concerning the partition, subdivision,
improvement, zoning or management of any real estate in which my estate has an
interest and to impose or extinguish restrictions on any such real estate, (ii) to sell,
exchange, lease for any period, mortgage, alter, or otherwise dispose of such
property and to execute any instrument necessary to do that, and (iii) to charge to
principal the net loss incurred in operating or carrying non-income producing real
property .
M. Power to permit any individual eligible to receive distributions of income from a
trust to occupy any real property or cooperative apartment or use any tangible
personal property forming part of the trust upon such terms as the Trustees shall
deem proper, whether rent free or in consideration of the payment of taxes,
insurance, maintenance and ordinary repairs, or otherwise.
N. Power to employ a custodian, to hold property unregistered or in the name of a
nominee (including the nominee of any bank, trust company, brokerage house or
other institution employed as custodian), and to pay reasonable compensation to
the custodian in addition to any fees otherwise payable to my Executors,
notwithstanding any rule of law otherwise prohibiting such dual compensation.
O. Power to make loans to, and to buy property from, the estate of my spouse or the
trustee of any trust subject to any wealth transfer tax upon either of our deaths,
regardless of the fact that one or more or all of the persons serving as executor
hereunder are also serving as a selling or borrowing executor or trustee; provided
that such loans shall be for adequate interest and shall be adequately secured and
such purchases shall be for fair market value.
P. Power to employ and to rely upon advice given by accountants, attorneys,
investment bankers, and other expert advisers, and to employ agents, clerks and
other employees, and to pay reasonable compensation to such advisors or
employees in addition to fees otherwise payable to my Executors, notwithstanding
any rule of law otherwise prohibiting such dual compensation.
Q. Power if Dauphin Deposit Bank. and Trust Company is unable to serve as executor
in any jurisdiction, in the executor serving in that jurisdiction, to use Dauphin
Deposit Bank and Trust Company as agent to perform any task that may lawfully
be performed by such an agent in that jurisdiction, and to pay to Dauphin Deposit
Bank and Trust Company such compensation for its services as agent as shall be
agreed upon by such executor and it.
R. Power to accept or to decline to accept additions whether made by me or from
some other source.
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S. Power in the Trustees (excluding, however, any interested trustee) to allocate
receipts and disbursements to income or principal in such manner as the Trustees
(excluding, however, any interested trustee) shall determine, even though a
particular allocation may be inconsistent with otherwise applicable state law. My
Executors shall follow any direction by the Trustees of a trust (excluding,
however, any interested trustee) with respect to allocations affecting property
passing to that trust.
T. Power in the Trustees (excluding, however, any interested trustee) to amortize in
whole or in part the premium on securities received or purchased at a premium,
or to treat as income the gross return from such securities. I anticipate (but I do
not direct) that the Trustees will consider amortization when failure to amortize
would result in a substantial impairment of principal. My Executors shall follow
any direction given by the Trustees of a trust (excluding, however, any interested
trustee) with respect to amortizations affecting property passing to that trust.
U. Power to continue any business, incorporated or unincorporated, for any period,
and to do anthing that I could have done regarding the business, including without
limitation the power (i) to invest additional sums in the business whether or not
such investment would otherwise be appropriate for fiduciaries and without regard
to any duty to diversify investments (ii) to select directors, offi,ers or other
employees of the business, and an executor or an officer of a corporate executor
or a beneficiary hereunder may act as such director, officer or employee and may
receive compensation for doing so (iii) to pay from principal the cost of liability
insurance for an executor or beneficiary acting as director (iv) to recapitalize,
reorganize or liquidate the business (v) to redeem stock under Sec. 303 of the
Code, and the proceeds of any such redemption shall be applied in a manner
consistent with the requirements of Sec. 303(b)(3) (vi) to elect deferred payment
of estate tax under Sec. 6166 of the Code and/or any corresponding provision of
state law, and to charge interest on deferred tax to income or principal, and to
consent to the creation of a special lien for deferred tax to be imposed on property
of my estate even if the tax: is imposed on property passing outside my estate (vii)
to sell the business (including a sale to a co-owner even if the co-owner is an
executor hereunder) without "testing the market" by solicitation of bids, relying
instead on a qualified appraiser. My Executors may exercise these powers despite
having individual interests in the business that might conflict with their interests
as executor.
Article IX. Accountings & Other Proceedings.
A. I direct that my estate be subject to independent administration with as little court
supervision as the law allows. My Executors shall not be required to render to
any court annual or other periodic accounts, or any inventory, appraisal, or other
returns or reports, whether required by statute or otherwise. My Executors shall
take such action for the settlement or approval of accounts at such times andrbefore such courts or without court proceedings as my Executors shall determine.
My Executors shall pay the costs and expenses of any such action or proceeding,
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including but not limited to the compensation and expenses of attorneys and
guardians, out of the property of my estate.
B. I direct that in any proceeding relating to my estate service upon any person under
a legal disability need not be made when another person not under a disability is
a party to the proceeding and has the same interest as the person under the
disability. The person under the disability shall nevertheless be bound by the
results of the proceeding. The same rule shall apply to non-judicial settlements,
releases, exonerations, and indemnities.
Article X. Various Provisions Regarding Fiduciaries.
A. Except to the extent specifically provided otherwise in this Will, references to my
Executors shall, in their application to my estate, refer to all those from time to
time acting as executors and if two or more executors are eligible to act on a
given matter they shall act by majority.
B. Individual executors shall receive compensation in accordance with the law of
Pennsylvania in effect at the time of payment, unless the executor waives
compensation, provided that my wife and descendants shall serve without
compensation. A corporate executor shall be compensated by agreement with the
individual executors or in the absence of such agreement in accordance with its
fee schedule as in effect at the time of payment. I authorize a corporate executor
to charge additional fees for services it provides to my estate that are not
comprised within its duties as executor, for example a fee charged by a mutual
fund it administers in which my estate invests, or a fee for providing an appraisal,
or a fee for providing corporate finance or investment banking services. I also
recognize that a corporate executor may charge separately for some services
comprised within its duties as executor, for example a separate fee for investing
cash balances or preparing tax returns. Such separate or "unbundled" charges shall
not be treated as improper or excessive merely because they are added on to a
basic fee in calculating total compensation for service as executor. Insurance
proceeds and retirement benefits payable to my estate shall not be subject to
executor's compensation.
C. No executor shall be liable to anyone for anything done or not done by any other
executor or by any beneficiary.
D. The fact that an executor is active in the investment business shall not be deemed
a conflict of interest, and purchases and sales of investments may be made through
a corporate executor or through any firm of which a corporate or individual
executor is a partner, shareholder, proprietor, associate, employee, owner,
subsidiary, affiliate or the like, and property of my estate may be invested in
individual securities, mutual funds, partnerships, private placements, or other forms
of investment promoted, underwritten, managed, or advised by an executor or such
a firm.
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E. I authorize my Executors to employ and rely upon advice given by investment
counsel, to delegate discretionary investment authority over investments to
investment counsel, and to pay investment counsel reasonable compensation in
addition to fees otherwise payable to my Executors, notwithstanding any rule of
law otherwise prohibiting such dual compensation. I authorize my Executors to
acquire and retain investments that present a higher degree of risk than would
normally be authorized by the "prudent person" rule. I do not intend any type of
investment, no matter how risky or speculative, to be absolutely prohibited, so
long as prudent procedures are followed in selecting and retaining the investment
and the investment constitutes a prudent percentage of the trust. My Executors
may but need not favor retention of assets originally owned by me. My Executors
shall not be under any duty to diversify investments regardless of any principle of
law requiring diversification. My Executors may retain and acquire property that
does not produce income, subject to any restrictions or qualifications of this power
set forth elsewhere in this Will.
F. The fact that an executor (or a firm of which an executor is a member or with
which an executor is otherwise affiliated) renders legal or other professional
services to my estate shall not be deemed a conflict of interest, and I authorize my
Executors to pay fees for such services to such executor or firm without prior
approval of any court or any beneficiary and whether or not there is a co-executor
to approve such payment. I intend an attorney or other executor who also renders
professional services to receive full compensation for both services as executor and
the professional services rendered, except as specifically limited by law.
G. I direct that the so-called rule against self-dealing shall not apply to an executor
who is my wife or a descendant of mine. Except when prohibited by another
provision of this Will, such an executor may enter into transactions on behalf of
my estate in which that executor is personally interested so long as the terms of
such transaction are fair to my estate. For example, such an executor may purchase
property from my estate at its fair market value without court approval.
H. Any executor may delegate to a co-executor any power held by the delegating
executor, but only if the co-executor is authorized to exercise the power delegated.
A delegation may be revocable, but while it is in effect the delegating executor
shall have no responsibility concerning the exercise of the delegated power.
Article XI. Alternate or Successor Fiduciaries.
A. Any executor may resign at any time without court approval and whether or not
a successor has been appointed.
B. Each individual executor (including successors) shall have the right to appoint a
successor individual executor by an instrument in writing, such appointment to
take effect upon the death, resignation or incapacity of the appointing executor.
An appointment may be changed or revoked until it takes effect. If I have named
an alternate or alternates to the appointing executor in this Will, the appointment
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of a successor under this paragraph shall take effect only if and when those
alternates fail to qualify or cease to act.
C. The individuals (and any corporation) acting as my Executors may at any time
acting unanimously by written instrument appoint an individual or a corporation
with fiduciary powers as a co-executor.
D. If the office of executor is vacant, and no successor takes office pursuant to any
other provision of this Will, an individual or corporation with fiduciary powers
may be appointed as executor by my wife if then living and competent, otherwise
by a majority of my adult descendants then living and competent.
E. An executor may be appointed pursuant to this Article for a limited purpose or
to hold only specified powers.
Article XII. Exoneration From Security.
No executor shall be required to give bond or other security in any jurisdiction, and if
despite this exoneration a bond is nevertheless required, no sureties shall be required.
Article XIII. Miscellaneous.
The following terms used in this Will shall be defined as follows:
A. Whether an individual is a minor or an adult shall be determined under the laws
of the individual's domicile at the time in question, except in cases when this Will
has specifically defined "Minor" to mean a person under age 21.
B. Except when I have specifically provided otherwise, any gift to an individual
under this Article shall take effect only if the individual survives me, and no anti-
lapse rule shall apply.
C. A gift of property under this Article includes my rights under any related
insurance policies or the proceeds of such policies.
IN WITNESS WHEREOF, I have hereunto subscribed my name on this~,~rLday of jJ'&';'i1,iJ..,:;~-'
1995.
L.S.
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Signed, sealed published and declared by JOHN E. FOX, JR., the testator above named,
as and for his last will and testament, in our presence, and we in his presence, and in the presence
of each other, have hereunto subscribed our names as witnesses:
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JO"hn E. Fox, Jr. p
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SELF .PROVING AFFIDA VIT
( Contemporaneous)
COMMONWEAL TH OF PENNSYLVANIA
COUNTY OF ,J.d~!..f,.V:._~r.......
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respectively, whose names are subscribed to the foregoing
instrument, being first duly sworn, do hereby declare to the
undersigned authority that the testator signed and executed the
instrument as his last Will and that he had signed willingly and
that he executed it as his free and voluntary act for the
purposes therein expressed, and that each of the witnesses, in
the presence and hearing of the testator, signed the Will as
witness and that to the best of each such witness's knowledge the
testator was at that time eighteen (18) years of age or older, of
sound mind, and under no constraint or undue influence.
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Subscribed, sworn to and acknowledged before me by JOHN E.
FOX{ qR.,t.he testator, and subsc;~ibed a;nd 9worn. to before me by
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witnesses, this ...:J./i'~'^- day of ';"'L(~-i. iF tti~..G ,'19 i1 (J
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Notary Public
NO'iARIAL S::AL
SHERYL L SAN~E?S, Notary Public
MvHarrls~ur9. PA Dal'!Jhin C~l!n-tVn-
Commisslcn Ex"ircz Aun. l~'''{QOQ
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EXHIBIT B
SECOND AMENDMENT
TO AGREEMENT OF TRUST
THIS SECOND AMEND:MENT, made, executed and delivered this L3-~fSeptember,
2001, is made by JOHN E. FOX, JR., Settlor under the Agreement of Trust dated December 29,
1995 (the "Trust"), between himself as Settlor thereunder, and, Allfirst Trust and Ross Miner
Chrisman, as Trustees of the Trust.
WITNESSETH:
On December 29, 1995, John E. Fox, Jr. executed an Agreement of Trust between
himself as Settlor and., his wife, Katharine C. Fox, and Dauphin Deposit Bank and Trust
Company, as Trustees (collectively, "Trustees").
On January 19, 1996, John E. Fox, Jr. executed a First Amendment to the Trust, adding
his step-son, Ross Miner Chrisman as an additional Trustee of the Trust.
On July 2, 1996, John E. Fox, Jr. executed a second First Amendment to the Trust,
modifying the remainder beneficiary provisions of the Trust.
On, June 8, 2001, Katharine C. Fox, the wife ofJohn E. Fox, Jr. and Trustee of the Trust,
died.
Whereas, Allfirst Trust, formerly known as iVlfust Bank and F1v1B Bank, successor by
merger to Dauphin Deposit Bank and Trust Company, became and is a Trustee of the Trust.
NOW THEREFORE, to avoid any potential future confusion by the misnamed second
First Amendment to the Trust and to reaffirm his intentions stated therein, John E. Fox, Jr., as
Settlor, hereby restates the second First Amendment to the Trust dated July 2, 1996, in its
entirety. Accordingly, in consideration of these premises, and the mutual covenants herein
contained., John E. Fox, Jr., Settlor of the Trust, and Allfust Trust and Ross Miner Chrisman,
Trustees of the Trust, each, intending to be legally bound hereby agree as follows:
1. Under .Article XXII of the Trust, John E. Fox, Jr. reserved the right to amend the .:~-
Trust in whole or in part, and by the within Second Amendment thereto, John E. Fox, Jr. amends
the Trust as follows: .Article IX.D (on page 7) of Trust is deleted and replaced in its entirety with
the following Subsection:
D. Pay the other one-half of such balance in the following proportions to the
sons of Settlor's wife, per stirpes: ninety-two percent (92%) thereof to Ross
Miner Chrisman and, eight percent (8%) thereof to Neil Chrisman, ill.
2. In all other respects, the Trust, as amended by the First Amendment and this
Second Amendment, shall remain in full force and effect.
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JollN E. FOX, JR., as Se 'oj
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Witness:
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Ross Miner Chrisman, Trustee
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CO~ONWEAL TH OF PENNSYLVANIA
COUNTY OF ~/Pft
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I HEREBY CERTIFY that on this ~ day of September, 2001, before me, the
subscriber, a Notary Public in and for the Commonwealth of Pennsylvania, personally appeared
JOHN E. FOX, JR., Settlor, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the foregoing instrument, and
acknowledged that the foregoing instrument was executed by JOHN E. FOX, JR., as Settlor, for
the purposes therein contained.
WITNESS my hand and notarial seal.
(SEAL)
M/),~ / W.Lt.L<z/
v Notary Public
My Commission Expires:
NGtarial Seal
. Notary Public
Harrisburg. Dauphin County
My Commission Expires Dec. 6. 2004
Member. Ptnnsylvania AssociaIiOn at NataneS
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McNEES, WALLACE Be NURICK
100 PINE .STREET ,
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P. O. BOX 1166
HARRISBURG. PA 1710S
FIRST AMENDMENT
TO AGREEMENT OF TRUST
THIS FIRST AMENDMENT, made, executed and delivered this 2nd
of July, 1996, is made by JOHN E. FOX, JR., Settlor under the
Agreement of Trust dated December 29, 1995, between himself as
Settlor thereunder, and, his wife, Katharine C. Fox, and Dauphin
Deposit Bank and Trust Company, as Trustees thereunder, as
follows:
1. Under Section XXI of the said Agreement of Trust, the
Settlor reserves the right to amend the Agreement of Trust in
whole or in part, and by the within First Agreement thereto, the
said Agreement of Trust is amended as follows: Article IX.D (on
page 7) of said Agreement of Trust is deleted therefrom, and the
following Subsection is inserted in place thereof:
D. Pay the other one-half of such balance per stirpes
to the following persons, as follows: ninety two
percent (92%) thereof to Ross Miner Chrisman, and,
eight percent (8%) thereof to Neil Chrisman, III, sons
of the Settlor's wife.
2. In all other respects, the said Agreement of Trust
dated December 29, 1995, as amended by the within First Amendment
th~reto, shall remain in full force and effect.
IN WITNESS WHEREOF, John E. Fox, Jr., has signed this First
Amendment, effective the day and year first above written and
executed by him on the date set forth below.
Dated:
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JOHN E.';FOX,' JR'., as Settlor
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
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I HEREBY CERTIFY that on this,',' ;'{ (I day of ) U u..! , 1996,
before me, the subscriber, a Notary Public in and for the Commonwealth of
Pennsylvania, personally appeared JOHN E. FOX, JR., Settlor, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the foregoing instrument, and acknowledged that
the foregoing instrument was executed by JOHN E. FOX, JR., as Settlor, for the
purposes therein contained.
WITNESS my hand and notarial seal.
(SEAL)
11.,__ ,I J' (
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Notary Public
My Commission Expires: I'
NOTARIAL SEAL
DONNA J THOMSON, Notary Public
Harri~t'l;Q, PA Dauphin County
My Commi~ion Expires May 31,1997
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FIRST AMENDMENT TO TRUST AGREEMENT
~IS AMENDMENT, made, executed and delivered this ~ day
of .u1l~ ' 1996, by and between JOHN E. FOX, JR., an adult
individua~ esiding in the County of Cumberland, Pennsylvania,
hereinafter called the "Settlor",
AND
KATHARINE C. FOX, an adult individual residing in the County of
Cumberland, Pennsylvania, hereinafter called the "Trustee", and
DAUPHIN DEPOSIT BANK AND TRUST COMPANY, a banking and trust
institution with offices located in Dauphin County, Pennsylvania,
hereinafter called the "Trustee".
WIT N E SSE T H:
WHEREAS, the Settlor desires to continue, but to amend as
herein stated, a Trust Agreement entered into by him as Settlor,
dated December 29, 1995, with Katharine C. Fox and Dauphin
Deposit Bank and Trust Company, as Trustees, and the Trustees are
willing to continue serving as the fiduciary hereunder, all on
the conditions and terms hereinafter set forth.
NOW THEREFORE, in consideration of these premises, and the
mutual covenants herein contained, the parties hereto, each
intending to be legally bound hereby, do now covenant and agree
as follows:
1. Ross Miner Chrisman, a son of the Settlor's wife, shall
serve as an additional Trustee under said Trust Agreement, and,
if ever he is unable or unwilling so to serve, or to continue so
serving, Neil Chrisman III, a son of the Settlor's wife, shall
serve in place of Ross, and if ever neither of said two persons
is able or willing so to serve, or to continue so serving, no
successor shall be appointed to serve in their place.
2. In all other respects, said Trust Agreement, dated
December 29, 1995, shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have duly executed this Amendment on this
day, month and year first above written.
Witness:
_QDJ~
(SEAL)
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yJlP R~
~~t'.k
THARINE C. FO, rustee
Attest:
Dauphin Deposit Bank
Trust Company, Trustee
By
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Vice President cm~ Tr"l'~ O~~!~er
ASSISTANT SECRETARY
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DCi........ph.lV'\
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ss:
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I HEREBY CERTIFY that on th1s ~ day of ...jCl.V'lWO\r2
19~, before me, the subscriber, a Notary Public in and for he
Commonwealth of Pennsylvania, personally appeared JOHN E. FOX, JR., Settlor,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged that the foregoing instrument was executed by JOHN E. FOX, JR.,
as Settlor, for the purposes therein contained.
WITNESS my hand and notarial seal.
(SEAL)
~l~'~
My Commission Expires:
Notarial Seal
Anf.ela M. Alonzo. Notary Public
Harrisburf.. Dauphin County
~y Commission Expire~ Oct. 26. 1996
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COMMONWEALTH OF PENNSYL7A
COUNTY OF DI9#~ .
ss:
)
I HEREBY CERTIFY that on this~~ay 0 , 19 ~~
before me, the subscriber, a Notary P l' in Commonwealth of
Pennsylvania, personally appeare , an officer of
DAUPHIN DEPOSIT BANK AND TRUST COMPANY, Trustee, a , being authorized to do
so, acknowledged that the foregoing instrument was signed on behalf of DAUPHIN
DEPOSIT BANK AND TRUST COMPANY, as Trustee, for the purposes therein
contained.
WITNESS my ha~d and notarial seal.
~Jt4:~~~
ot:M Public
My Commission Expires:
Notarial Seal
Mary Ann Anderson, Notary Public
Harrisburg, Dauphin County
My Commission Expires Oct. 3D, 1998
Member. PennsvlvaniP A<;.,~ of NoI;:!!io=!s
~
'12-21-95
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This Agreement dated the .} rnJ day of \ !f'l~~~]"U~tl; 199{.~ between JOHN E. FOX,
JR., of the County of Cumberland, State of Pennsylvania (described herein as the "Settlor")
and the Settlor's wife, Katharine C. Fox, and Dauphin Deposit Bank and Trust Company, as
trustees (collectively described herein as the "Trustees")
WITNESSETH:
WHEREAS, the Settlor desires to create a trust, and
WHEREAS, the Trustees are willing to accept the trust hereby created and covenant to
faithfully discharge the duties of a trustee hereunder;
NOW, THEREFORE, the Settlor hereby transfers property to the Trustees described
on Schedule A hereto annexed, IN TRUST, and the Trustees agree to accept the property and
to hold, manage and distribute the property under the terms of this Trust Agreement.
Article I. Family Information.
A. The Settlor is married to Katharine C. Fox.
Article II. Trustee Appointments.
A. A trustee who is a party to this Agreement shall serve as trustee of each trust
under this Agreement except where this Article or some other provision of this
Agreement specifically provides otherwise.
B. Provisions governing the compensation of trustees and the appointment of
trustees by persons other than the Settlor appear elsewhere in this Agreement.
Article III. Lifetime Trust.
During the Settlor's life, any property held under this Agreement shall be disposed of
as follows:
A. The Trustees shall distribute to the Settlor as much of the net income and
principal of the trust as the Settlor may from time to time direct in writing, and
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such additional amounts of net income or principal as the Trustees may from
time to time determine.
B. Any net income not so distributed shall be accumulated and from time to time
shall be added to principal.
Article IV. Payments After Death.
Upon the Settlor's death, the Trustees shall dispose of all property then belonging to
the trust, together with all property distributable to the Trustees as a result of the Settlor's
death, whether under the Settlor's Will or otherwise (the "trust fund"), as follows:
A. If the Settlor's probate estate (excluding income) is insufficient (i) to pay the
Settlor's funeral expenses, all claims against the Settlor's estate, the expenses of
administering the Settlor's estate, and all death taxes chargeable to the Settlor's
estate, and (ii) to satisfy all pre-residuary gifts under the Settlor's Will, the
Trustees shall make available to the Settlor's executor, out of the trust fund,
such sums as the Settlor's executor shall certify to be required to make good
such deficiency.
B. The Trustees shall also payout of the trust fund all death taxes chargeable to
the trust fund as a result of the Settlor's death and not otherwise provided for
in the Settlor's Will, in the manner directed below in the provisions governing
payment of death taxes.
C. If the Settlor's wife survives the Settlor, and if at the death of the Settlor the
Trust owns the condominium property known as No. SA, 3600 Logan Street,
Camp Hill, Pennsylvania, ownership of such condominium property shall be
transferred and distributed outright and without limitations to the Settlor's wife.
D. The Trustees shall dispose of the balance of the trust fund remaining after these
payments in the manner provided below.
Article V. Formula Gifts for Tax Purposes.
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This Article contains one or more gifts based upon technical tax-related terms. These
terms are defined elsewhere in this Trust Agreement and shall be applied under the law and
the facts as they are at the time of the Settlor's death.
A. If the Settlor's wife survives the Settlor:
1. The Trustees shall distribute a sum equal to the Settlor's optimum
marital deduction to the Trustees of the Marital Trust under this
Agreement, to be disposed of under the terms of that trust.
B. If the Settlor's wife and the Settlor die simultaneously or under such
circumstances that the order of their deaths cannot be determined, she shall be
deemed to have survived the Settlor for purposes of this Article.
Article VI. Residue.
A. The Trustees shall distribute the residue of the trust fund, real and personal,
wherever located, including any property mentioned above but not effectively
disposed of, as follows:
1. If the Settlor's wife survives the Settlor, to the Trustees of the Family
Trust under this Agreement, to be disposed of under the terms of that
trust.
2. If the Settlor's wife dies before the Settlor, to the person designated to
receive the Family Trust upon the death of the second to die of the
Settlor and his wife as hereinafter provided.
B. If the Settlor's wife and the Settlor die simultaneously or under such
circumstances that the order of their deaths cannot be determined, she shall be
deemed to have survived the Settlor for purposes of this Article.
Article VII. Marital Trust.
The Marital Trust shall have these terms:
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A. During the Settlor's wife's life:
1. The net income of the trust shall be distributed to the Settlor's wife at
least annually.
2. As much of the principal of the trust as the Trustees may from time to
time determine shall be distributed to the Settlor's wife for her health,
education, support in her accustomed manner of living, or maintenance.
3. As much of the principal of the trust as the Trustees (excluding,
however, any interested trustee) may from time to time determine shall
be distributed to the Settlor's wife for any purpose.
4. Without limiting the Trustees' discretion, the Settlor wants the Trustees
to know that, to the extent consistent with the foregoing, it would not be
contrary to the Settlor's intent for the Trustees to regard the needs of
the Settlor's wife as more important than those of the Settlor's
descendants or any remainderman.
5. The Settlor's wife shall have the right individually in each calendar
year, if living on December 31 of that year, to withdraw up to five
percent of the principal of the trust. The Settlor's wife may notify the
Trustees at any time during the year of her intent to exercise this right
in whole or in part, and the right for any year shall lapse if not
exercised during that year. For any year in which it would produce a
greater possible withdrawal, instead of five percent the limit shall be
five thousand dollars ($5,000) reduced to any extent required by the
principles of Rev. Rul. 85-88.
6. The Settlor's wife shall have the right to direct the Trustees to make
unproductive property productive of income or to convert any
unproductive property to property that produces income, within a
reasonable time, notwithstanding any provision of this Agreement
otherwise authorizing the Trustees to retain unproductive property. The
power to allocate receipts and disbursements to income and principal
and to amortize premium contrary to applicable state law granted to the
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Trustees in other parts of this Trust Agreement shall not apply to the
Marital Trust. The application of any specific provision of this
Agreement shall be controlled by the Settlor's overriding intent that the
Settlor's wife have that degree of beneficial enjoyment of the trust
property during her life which the principles of the law of trusts accord
to a person who is unqualifiedly designated as the life beneficiary of a
trust.
B. Upon the death of the Settlor's wife:
1. Any increase in death taxes payable upon the death of the Settlor's wife
caused by the inclusion of a Marital Trust or a portion of a Marital
Trust in her gross estate shall be paid out of the principal of the trust or
portion so included, except to the extent that a specific reference to this
provision of this Trust Agreement in her will or other controlling
instrument provides for payment of such taxes from other sources; and a
written statement by her Executors of the amounts thus payable may be
accepted as being correct.
2. The balance of the property then held in the Marital Trust shall be paid
over to and made a part of the Family Trust
C. If the Settlor's wife disclaims all of her interest in the income and principal of
the Marital Trust or a portion of the Marital Trust, the disclaimed property
shall be paid to the Trustees of the Family Trust under this Agreement to be
disposed of under the terms of that Trust. If the Settlor's wife disclaims all of
her interest in the income of the Marital Trust or a portion of the income of the
Marital Trust, she shall be deemed to have disclaimed her interest in all or a
corresponding portion of the principal of the Marital Trust.
Article VIII. Family Trust.
The Family Trust shall have these terms:
A. During the Settlor's wife's life:
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1. The net income of the trust shall be distributed to the Settlor's wife at
least annually.
2. As much of the principal of the trust as the Trustees may from time to
time determine shall be distributed to the Settlor's wife for her health,
education, support in her accustomed manner of living, or maintenance.
3. As much of the principal of the trust as the Trustees (excluding,
however, any interested trustee) may from time to time determine shall
be distributed to the Settlor's wife for any purpose.
4. Without limiting the Trustees' discretion, the Settlor suggests (but does
not direct) that no distribution of principal be made to the Settlor's wife
by the Trustees until the principal of the Marital Trust is exhausted,
unless there is a compelling reason to do so.
5. The Settlor's wife shall have the right individually in each calendar
year, if living on December 31 of that year, to withdraw up to five
percent of the principal of the trust. The Settlor's wife may notify the
Trustees at any time during the year of her intent to exercise this right
in whole or in part, and the right for any year shall lapse if not
exercised during that year. For any year in which it would produce a
greater possible withdrawal, instead of five percent the limit shall be
five thousand dollars ($5,000) reduced to any extent required by the
principles of Rev. Rul. 85-88.
6. Without limiting the Trustees' discretion, the Settlor wants the Trustees
to know that, to the extent consistent with the foregoing, it would not be
contrary to the Settlor's intent for the Trustees to regard the needs of
the Settlor's wife as more important than those of the Settlor's
descendants or any remainderman.
B. Upon the death of the Settlor's wife, the property then held in the Family Trust
shall be distributed as provided in Article IX.
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C. If the Settlor's wife disclaims her interest in the income and principal of all or
a portion of the Family Trust, the disclaimed property shall be disposed of as if
she had survived the Settlor and died immediately after the Settlor's death.
1. If the Settlor's wife makes a disclaimer limited to her right to
mandatory income payments from the Family Trust as to all or a portion
of the income of the trust, the disclaimed net income shall be disposed
of by the Trustees under terms identical to those that apply to
distributions of principal above, and any income not so distributed shall
from time to time be accumulated and added to principal.
Article IX. Disposition of Family Trust.
Upon the death of the second to die of the Settlor and his wife, from the Family Trust
the Trustees shall:
A. Pay to the Settlor's sister, Lida S. Gerhardt, presently of Baltimore, Maryland,
the sum of fifty thousand dollars ($50,000.00), and if she is not then living, per
stirpes to her issue who are then living.
B. Pay to the Settlor's niece, Eliza W. Granlund, presently of Leesburg, Virginia,
the sum of twenty five thousand dollars ($25,000.00) and if she is not then
living, per stirpes to her issue who are then living.
C. Pay one-half of the balance thereof after paying the amounts for which
provision is made in Subsection A and B above, equally and per stirpes to the
Settlor's niece, Eliza W. Granlund; the Settlor's nephew, John Fox Gerhardt;
the Settlor's nephew, Charles A. Fox; and, the Settlor's niece, Susanne Fox
Riker.
D. Pay the other one-half of such balance equally and per stirpes to Neil
Chrisman, III, and Ross Miner Chrisman, sons of the Settlor's wife.
Article X. Separate Trusts for Descendants.
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If any beneficiary under Article IX has not attained thirty years of age when he/she
would otherwise be an outright beneficiary hereunder, the share which would otherwise go
outright to hirnlher shall, rather, be held in a separate trust for hislher benefit, as follows:
A. During the Beneficiary's life:
1. As much of the net income and principal of the trust as the Trustees
may from time to time determine shall be distributed to the Beneficiary
for hislher health, education, support in hislher accustomed manner of
living, or maintenance.
2. As much of the principal of the trust as the Trustees (excluding,
however, any interested trustee) may from time to time determine shall
be distributed to the Beneficiary for any purpose, for hislher health,
education, support in hislher accustomed manner of living, or
maintenance.
3. The Beneficiary shall have the right individually to withdraw all the
principal and accumulated income at any time after attaining age thirty.
4. Without limiting the Trustees' discretion, the Settlor wants the Trustees
to know that, to the extent consistent with the foregoing, it would not be
contrary to the Settlor's intent for the Trustees to regard the needs of
the Beneficiary as more important than those of the Beneficiary's
descendants or any remainderman.
B. Upon the Beneficiary's death, the property then held in hislher trust shall be
distributed:
1. To such one or more persons (other than the Beneficiary, the
Beneficiary's estate, the Beneficiary's creditors, or the creditors of the
Beneficiary's estate) on such terms as the Beneficiary may appoint by a
Will specifically referring to this power of appointment; or in default of
appointment or insofar as an appointment is not effective, to the
Beneficiary's estate.
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C. Any trust under this Article still in existence upon the expiration of the
maximum duration for trusts as defined elsewhere in this Trust Agreement shall
thereupon terminate and the remaining trust property shall be distributed to the
Beneficiary of the trust.
Article XI. Maximum Duration of Trusts.
The maximum duration for trusts means the longest period that property may be held
in trust under this Agreement under the applicable rules governing perpetuities, vesting,
accumulations, the suspension of alienation, and the like (including any applicable period in
gross such as 21 years or 90 years). If under those rules the maximum duration may be
determined (or alternatively determined) with reference to the death of the last survivor of a
group of individuals alive on the date of the Settlor's death, those individuals shall consist of
the Settlor's surviving wife, all of the Settlor's descendants living on the date of the Settlor's
death, and any surviving spouse of a descendant of the Settlor if both the descendant and the
spouse were living on the date of the Settlor's death. This Article shall not apply to a trust
created by an exercise of a power of appointment conferred by this Agreement if the exercise
is valid under this Agreement and under the applicable rules against perpetuities,
accumulations, suspension of alienation, or the like, and such a trust may have different
measuring lives than those provided in this Article. In the case of any property the Settlor
has appointed to a trust under this Agreement from another trust by exercising a power over
the other trust, the date for determining measuring lives with respect to that property shall be
the date that the Settlor's power was created (rather than the date of the Settlor's death).
Article XII. Payments to Minors.
Whenever income or principal becomes distributable (whether by a direction in this
Trust Agreement or by exercise of discretion hereunder) to a person under age 25 (described
herein as the "Minor" regardless of the actual legal age of majority), the Trustees may make
the distribution in one or more of the following ways (or any other way that seems
appropriate to the Trustees):
A. By holding the property in a separate trust for the Minor until the Minor attains
age 25. As much of the net income and/or principal of the trust as the Trustees
may from time to time determine shall be distributed to the Minor for any
purpose. Any net income not so distributed shall from time to time be
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accumulated and added to principal. Upon the attainment of age 25 by the
Minor, the property then held in the Minor's trust shall be distributed to the
Minor. If the Minor dies before attaining age 25, the property shall be
distributed to (1) the Minor's descendants surviving the Minor, per stirpes, or
in default thereof (2) if the Minor was a grandchild of the Settlor, or grandchild
of the Settlor's wife or more remote descendant of the Settlor or the Settlor's
wife, to the descendants then living, per stirpes, of the Minor's nearest ancestor
who was a descendant of the Settlor or the Settlor's wife with issue then living,
or in default thereof or if the Minor was a child of the Settlor or the Settlor's
wife (3) to the descendants of the Settlor and the Settlor's wife then living, per
stirpes. Any trust under this paragraph still in existence upon the expiration of
the maximum duration for trusts as defined elsewhere in this Trust Agreement
shall thereupon terminate and the remaining trust property shall be distributed
to the Minor in one of the other ways authorized in this Article.
B. By distributing the property to a custodian under any state's version of the
Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act,
including a custodian selected by the Trustees. The Trustees may select any
age for termination of the custodianship permitted under the Act, giving due
consideration to selecting age 25 if that is permitted.
c. By distributing the property to anyone serving as Trustee under this Agreement
to hold the same as donee of a power during minority, such donee to have all
the powers of a trustee under this Agreement (including the power to apply the
property for the Minor) and to be compensated as if the property were a
separate trust, but with no duty to account to any court periodically or
otherwise.
D. By distributing' the property to a guardian of the Minor's property.
E. By distributing the property to a parent of the Minor even if the parent does
not assume any formal fiduciary capacity concerning the property.
F. By distributing the property directly to the Minor if the Minor has attained the
age of fourteen and has the practical capacity to own the type and amount of
property in question.
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The Trustees shall be free from any responsibility for the subsequent disposition of the
property if it is distributed of in one of the ways specified in this Article.
Article XIII. Exercise of Powers Created Hereunder.
Except where this Trust Agreement specifically provides otherwise, a power of
appointment conferred hereunder upon a person in hislher individual capacity (a "non-
fiduciary power") may be exercised to confer upon one or more objects of the power in any
proportions any lawful estates and interests, whether absolute or in further trust, including
further non-fiduciary powers which may be made exercisable in favor of objects or non-
objects of the exercised power, or both. A limited power of appointment may be exercised to
confer a limited or general power on an object of the exercised power, including a presently
exercisable limited or general power. The trustee under an appointment in further trust may
be any person not prohibited from serving as trustee under this Agreement and may be given
fiduciary powers (including discretionary powers over distributions), exercisable, however,
only in favor of objects of the exercised power. A non-fiduciary power exercisable by Will
may also be exercised by a written instrument, signed by the powerholder, other than the
powerholder's Will, if the powerholder's Will contains a direction that the exercise in the
other instrument be honored.
Article XIV. Adopted & Non-marital Persons.
A person adopted prior to attaining age 18 (but not after) by the Settlor, his wife, or
by a descendant of the Settlor or his wife shall be treated under this Trust Agreement as a
descendant. A biological descendant of the Settlor or his wife shall not be treated as a
descendant if surrendered for adoption with the consent of hislher parent who is the Settlor or
his wife or a descendant of the Settlor or his wife in such manner that an adoptive parent
substitutes as parent for the consenting parent. A biological descendant of the Settlor or his
wife born out of wedlock shall not be treated as a descendant unless and until his/her
biological parents marry one another prior to hislher attaining age 18. Under these rules,
adoptions and marriages shall not affect prior distributions or other interests that have
previously vested in possession, but they shall enable a person to receive distributions from,
or remainder or other interests in, a trust still in existence. When a person is treated or is not
treated as a descendant of the Settlor or his wife under these rules, the same treatment shall
apply to that person's descendants, To be treated or not treated as a descendant means to be
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treated or not treated as a descendant of the Settlor or his wife and of any intervening
descendant of the Settlor or his wife. Applicable law shall apply to adopted and non-marital
persons to the extent not modified by these rules.
Article XV. Retirement Benefits.
The following provisions concern qualified retirement benefits that become
distributable to the Trustees under this Agreement (whether directly or through the Settlor's
estate) by reason of the Settlor's death. "Qualified retirement benefits" means amounts held in
or payable pursuant to a plan (of whatever type) qualified under Section 401 of the Internal
Revenue Code or an individual retirement arrangement under Section 408 of the Code or a
tax-sheltered annuity under Section 403 of the Code or any other benefit subject to the
distribution rules of Section 401(a)(9) of the Code.
A. If retirement benefits are made payable to the Settlor's estate or directly to the
Trustees without specifying a particular trust, then:
1. If the Settlor's wife survives the Settlor, any benefit excluded from the
Settlor's gross estate shall be allocated to the Family Trust.
2. Subject to that, to the extent there is insufficient other property to
satisfy any of the formula gifts for tax purposes, a fractional share (and
not a sum, even if the gift is stated as a sum) of the retirement benefits
having a value as finally determined for Federal Estate Tax purposes
equal to the insufficiency shall be allocated in satisfaction of that gift.
3. The balance of the retirement benefits shall be disposed of in the same
manner as the residue of the trust fund under this Agreement.
B. The Trustees may in the Trustees' absolute discretion exercise any right to
determine the manner and timing of payment of retirement benefits that is
available to the recipient of the benefits. However, if any retirement benefits
are payable to the Marital Trust (whether pursuant to a separate beneficiary
designation or pursuant to this Article) the Settlor's wife shall have the right in
her individual capacity and in her absolute discretion, exercisable in all events,
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to withdraw from the plan, trust or account from which the benefits are
payable, all the income of the plan, trust or account annually or at more
frequent intervals. For this purpose "income" means income as defined in Sec.
643(b) of the Code determined as if the plan, trust, or account were a separate
trust under this Trust Agreement. This right of the Settlor's wife shall take
precedence over the right of the Trustees of the Marital Trust to such income
and any exercise of the right shall take precedence over any different payout
selected by the Trustees of the Marital Trust. The Settlor directs the Trustees of
the Marital Trust to take any steps necessary to enable the Settlor's wife to
effectively exercise this right.
C. The Trustees are authorized to identify and designate the person who, pursuant
to the Regulations under Sec. 40 I (a)(9), is the "designated beneficiary" whose
life expectancy may be used to measure payments to any trust.
D. If the Settlor's wife survives the Settlor and retirement benefits are distributable
to the Trustees either directly or through the Settlor's estate (other than by
reason of a disclaimer by the Settlor's wife) the Trustees (excluding, however,
any interested trustee) are authorized (but not directed) in the Trustees' absolute
discretion to distribute the right to all or part of such benefits outright to the
Settlor's wife, or to disclaim all or part of such benefits, and any benefits so
disclaimed shall be payable to the Settlor's wife outright, and the Settlor's wife
may exercise any right to determine the manner and timing of payments of
such distributed or disclaimed benefits that is available to the recipient of the
benefits. In exercising this discretionary power, the Trustees may but need not
consider solely the needs and desires of the Settlor's wife and not those of any
other beneficiary. It is the Settlor's hope that the Trustees will consider
distributing or disclaiming if (a) the Settlor's wife wishes to "roll over" the
benefits to an individual retirement arrangement and such distribution or
disclaimer will help effectuate the rollover, or (b) the distribution or disclaimer
will make possible an election to avoid the tax on an excess retirement
accumulation that would not otherwise be available, but this precatory
expression shall not limit the Trustees' absolute discretion, and is not meant to
direct a distribution or disclaimer even if one or both of these conditions should
exist.
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Article XVI. Governing Law and Trustees' Powers.
The interpretation and operation of the Trust shall be governed by the laws of the
Commonwealth of Pennsylvania. The Trustees may, without prior authority from any court,
exercise all powers conferred by this Agreement or by law, including without limitation any
Fiduciary Powers Act or other statute of Pennsylvania or any other jurisdiction whose law
applies to the Trust. The Trustees shall have absolute discretion in exercising these powers.
Except as specifically limited by this Trust Agreement, these powers shall extend to all
property held by the Trustees until actual distribution of the property. In order to fully
effectuate the powers of the Trustees, specific reference is now made to Probate, Estates and
Fiduciaries Code, 20 Pa. C.S.A. 101, et seq. The powers of the Trustees shall include the
following:
A. Power to determine what property is covered by general descriptions contained
in this Trust Agreement.
B. Power to make any election available under the tax laws in such manner as the
Trustees shall determine, even though a trustee may have an interest affected by
the election, except where a trustee is prohibited from participating in the
election by another provision of this Agreement.
C. Power to retain any property originally owned by the Settlor, and/or to invest
and reinvest in all forms of real and personal property, whether inside or
outside the United States, including without limitation common trust funds of a
corporate trustee, mutual funds, partnerships (including a partnership in which a
trustee is a general or limited partner), and other forms of joint investment
(which may but need not be managed by, advised by, or affiliated with a
trustee), without regard to any principle of law limiting delegation of
investment responsibility by trustees.
D. Power to compromise claims or debts and to abandon or demolish any property
which the Trustees shall determine to be of little or no value.
E. Power to sell property at public or private sale, for cash or upon credit, and to
exchange property for other property, and to lease property for any period of
time, and to give options of any duration for sales, exchanges or leases.
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F. Power to join in any merger, reorganization, voting-trust plan or other
concerted action of security holders, and to delegate discretionary powers
(including investment powers) in entering into the arrangement.
G. Power to borrow from anyone, even if the lender is a trustee under this
Agreement, and to pledge property as security for repayment of the funds
borrowed, including the establishment of a margin account. No trustee shall be
personally liable, and any such loan shall be payable only out of assets of the
trust.
H. Power without the consent of any beneficiary to distribute in cash or in kind,
and to allocate specific assets in satisfaction of fractional shares or pecuniary
sums among the beneficiaries (including any trust) in such proportions, not
necessarily pro rata, as the Trustees may determine, even though a trustee has
an interest affected by the distribution and even though different beneficiaries
entitled to the same sum or share may thereby receive different mixes of assets,
possibly with different income tax bases, so long as the fair market value of
property on the date of distribution is used in determining the extent to which
any distribution satisfies a sum or share.
I. Power to apply to the use of any individual, any property, whether principal or
income, that otherwise would or could be distributed directly to such
individual.
J. Power with respect to any real property (i) to partition, subdivide or improve
such property and to enter into agreements concerning the partition,
subdivision, improvement, zoning or management of any real estate in which a
trust hereunder has an interest and to impose or extinguish restrictions on any
such real estate, (ii) to sell, exchange, lease for any period, mortgage, alter, or
-
otherwise dispose of such property and to execute any instrument necessary to
do that, and (iii) to charge to principal the net loss incurred in operating or
carrying non-income producing real property.
K. Power to permit any individual eligible to receive distributions of income from
a trust to occupy any real property or cooperative apartment or use any tangible
personal property forming part of the trust upon such terms as the Trustees
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shall deem proper, whether rent free or in consideration of the payment of
taxes, insurance, maintenance and ordinary repairs, or otherwise. In the case of
the Marital Trust, such occupancy and/or use shall be rent free and any other
condition shall be consistent with the Settlor's intention that the Settlor's wife
have that degree of beneficial enjoyment of the trust property during her life
which the principles of the law of trusts accord to a person who is
unqualifiedly designated as the life beneficiary of a trust, so that the Settlor's
wife's interest is a qualifying income interest for life for purposes of the
marital deduction.
L. Power to employ a custodian, to hold property unregistered or in the name of a
nominee (including the nominee of any bank, trust company, brokerage house
or other institution employed as custodian), and to pay reasonable compensation
to the custodian in addition to any fees otherwise payable to the Trustees,
notwithstanding any rule of law otherwise prohibiting such dual compensation.
M. Power to hold two or more trusts hereunder as a combined fund (allocating
ratably to such trusts all receipts from, and expenses of, the combined fund)
for convenience in investment and administration; provided that any
combination of trusts for this purpose shall not alter their status as separate
trusts.
N. Power to consolidate any trust for a descendant with another trust having
identical terms and the same trustee under this Agreement or the Settlor's Will
or the Settlor's wife's Will or any Trust Agreement and administer the two as
one trust, provided that each portion of the consolidated trust shall terminate
and vest in possession no later than the date required for the separate trust from
which it came.
o. Power to divide any trust into two or more separate trusts and administer them
as separate trusts, either before or after the trust is funded, to enable GST
exemption to be separately allocated to one of the trusts, or to enable the
election under Sec. 2652(a)(3) of the Code to be made separately over one of
them, or to otherwise make possible a separate trust with a zero inclusion ratio,
or because the trusts have different transferors for GST purposes, or for any
other purpose. Any such division shall be a division into fractional shares with
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each share participating pro rata in income, appreciation, and depreciation to
the time of division. Any relevant pecuniary amount (such as the obligation to
pay an annuity, or the right to withdraw $5,000) shall be applied pro rata to
the separate trusts based on the fractional shares into which they are divided.
P. Power to make loans to, and to buy property from, the Settlor's or the Settlor's
wife's estate or the trustee of any trust subject to any wealth transfer tax upon
either of their deaths, regardless of the fact that one or more or all of the
persons serving as trustee hereunder are also serving as a selling or borrowing
executor or trustee; provided that such loans shall be for adequate interest and
shall be adequately secured and such purchases shall be for fair market value.
Q. Power to employ and to rely upon advice given by accountants, attorneys,
investment bankers, and other expert advisers, and to employ agents, clerks and
other employees, and to pay reasonable compensation to such advisors or
employees in addition to fees otherwise payable to the Trustees,
notwithstanding any rule of law otherwise prohibiting such dual compensation.
R. Power if Dauphin Deposit Bank and Trust Company is unable to serve as
trustee in any jurisdiction, in the trustee serving in that jurisdiction, to use
Dauphin Deposit Bank and Trust Company as agent to perform any task that
may lawfully be performed by such an agent in that jurisdiction, and to pay to
Dauphin Deposit Bank and Trust Company such compensation for its services
as agent as shall be agreed upon by such trustee and it.
S. Power to accept or to decline to accept additions whether made by the Settlor
or from some other source.
T. Power (excluding, however, any interested trustee) to allocate receipts and
disbursements to income or principal in such manner as the Trustees
(excluding, however, any interested trustee) shall determine, even though a
particular allocation may be inconsistent with otherwise applicable state law.
U. Power in the Trustees (excluding, however, any interested trustee) to amortize
in whole or in part the premium on securities received or purchased at a
premium, or to treat as income the gross return from such securities. The
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Settlor anticipates (but the Settlor does not direct) that the Trustees will
consider amortization when failure to amortize would result in a substantial
impairment of principal.
V. Power to continue any business, incorporated or unincorporated, for any period,
and to do anything that the Settlor could have done regarding the business,
including without limitation the power (i) to invest additional sums in the
business whether or not such investment would otherwise be appropriate for
fiduciaries and without regard to any duty to diversify investments (ii) to select
directors, officers or other employees of the business, and a trustee or an
officer of a corporate trustee or a beneficiary hereunder may act as such
director, officer or employee and may receive compensation for doing so (iii)
to pay from principal the cost of liability insurance for a trustee or beneficiary
acting as director (iv) to recapitalize, reorganize or liquidate the business (v) to
redeem stock under Sec. 303 of the Code, and the proceeds of any such
redemption shall be applied in a manner consistent with the requirements of
Sec. 303(b)(3) (vi) to elect deferred payment of estate tax under Sec. 6166 of
the Code and/or any corresponding provision of state law, and to charge
interest on deferred tax to income or principal, and to consent to the creation of
a special lien for deferred tax to be imposed on property of the trust fund even
if the tax is imposed on property passing outside the trust fund (vii) to sell the
business (including a sale to a co-owner even if the co-owner is a trustee
hereunder) without "testing the market" by solicitation of bids, relying instead
on a qualified appraiser. The Trustees may exercise these powers despite
having individual interests in the business that might conflict with their interests
as trustee.
Article XVII. Accountings & Other Proceedings.
A. The Settlor directs that a trust hereunder be subject to independent
administration with as little court supervision as the law allows. The Trustees
shall not be required to render to any court annual or other periodic accounts,
or any inventory, appraisal, or other returns or reports, whether required by
statute or otherwise. The Trustees shall take such action for the settlement or
approval of accounts at such times and before such courts or without court
proceedings as the Trustees shall determine. The Trustees shall pay the costs
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and expenses of any such action or proceeding, including but not limited to the
compensation and expenses of attorneys and guardians, out of the property of
the trust. The Trustees shall not be required to register any trust hereunder.
B. The Settlor directs that in any proceeding relating to a trust hereunder service
upon any person under a legal disability need not be made when another person
not under a disability is a party to the proceeding and has the same interest as
the person under the disability. The person under the disability shall
nevertheless be bound by the results of the proceeding. The same rule shall
apply to non-judicial settlements, releases, exonerations, and indemnities.
Article XVIII. Various Provisions Regarding Fiduciaries.
A. "Interested trustee" means for any trust a trustee who is (i) a transferor of
property to the trust, including a person whose qualified disclaimer resulted in
property passing to the trust, or (ii) a person who is or in the future may be
eligible to receive income or principal pursuant to the terms of the trust. A
trustee described in (i) is an interested trustee only with respect to the
transferred property (including income and gain on, and reinvestment of, such
property). A person is described in (ii) even if the person's only interest is a
remote contingent remainder interest, but is not described in (ii) if the person's
only interest is as a potential appointee under a non-fiduciary power of
appointment held by another person the exercise of which will take effect only
in the future, such as a testamentary power held by a living person. A trustee
who is not an interested trustee is a "disinterested trustee".
B. Under this Trust Agreement, if two or more separate trusts with the same
beneficiaries and same terms are created, either by direction or pursuant to the
exercise of discretion, the Settlor intends that the separate trusts may but need
not have the same investments and may but need not follow the same pattern of
distributions. The Trustees' powers shall be exercisable separately with respect
to each trust.
C. Except to the extent specifically provided otherwise in this Trust Agreement,
references to the Trustees shall, in their application to a trust hereunder, refer to
all those from time to time acting as trustees of that trust and if two or more
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trustees are eligible to act on a given matter they shall act by majority. In the
exercise of discretion over distributions, if this Agreement provides that certain
trustees may participate in distributions limited by an ascertainable standard,
while a different set of trustees may participate in distributions for any purpose,
if the two sets of trustees (each acting by its own majority) want to distribute
the same item of income or principal to different recipients, the distribution
desired by the set of trustees participating in distributions for any purpose shall
prevail.
D. Individual trustees shall receive compensation in accordance with the law of
Pennsylvania in effect at the time of payment, unless the trustee waives
compensation, provided that the Settlor's wife and descendants shall serve
without compensation. A corporate trustee shall be compensated by agreement
with the individual trustees or in the absence of such agreement in accordance
with its fee schedule as in effect at the time of payment. The Settlor authorizes
a corporate trustee to charge additional fees for services it provides to a trust
hereunder that are not comprised within its duties as trustee, for example a fee
charged by a mutual fund it administers in which a trust hereunder invests, or a
fee for providing an appraisal, or a fee for providing corporate finance or
investment banking services. The Settlor also recognizes that a corporate
trustee may charge separately for some services comprised within its duties as
trustee, for example a separate fee for investing cash balances or preparing tax
returns. Such separate or "unbundled" charges shall not be treated as improper
or excessive merely because they are added on to a basic fee in calculating total
compensation for service as trustee.
E. No trustee shall be liable to anyone for anything done or not done by any other
trustee or by any beneficiary.
F. The fact that a trustee is active in the investment business shall not be deemed
a conflict of interest, and purchases and sales of investments may be made
through a corporate trustee or through any firm of which a corporate or
individual trustee is a partner, shareholder, proprietor, associate, employee,
owner, subsidiary, affiliate or the like, and property of a trust hereunder may be
invested in individual securities, mutual funds, partnerships, private placements,
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or other forms of investment promoted, underwritten, managed, or advised by a
trustee or such a firm.
G. The Settlor authorizes the Trustees to employ and rely upon advice given by
investment counsel, to delegate discretionary investment authority over
investments to investment counsel, and to pay investment counsel reasonable
compensation in addition to fees otherwise payable to the Trustees,
notwithstanding any rule of law otherwise prohibiting such dual compensation.
The Settlor authorizes the Trustees to acquire and retain investments that
present a higher degree of risk than would normally be authorized by the
"prudent person" rule. The Settlor does not intend any type of investment, no
matter how risky or speculative, to be absolutely prohibited, so long as prudent
procedures are followed in selecting and retaining the investment and the
investment constitutes a prudent percentage of the trust. The Trustees may but
need not favor retention of assets originally owned by the Settlor. The Trustees
shall not be under any duty to diversify investments regardless of any principle
of law requiring diversification. The Trustees may retain and acquire property
that does not produce income, subject to any restrictions or qualifications of
this power set forth elsewhere in this Agreement.
H. The fact that a trustee (or a firm of which a trustee is a member or with which
a trustee is otherwise affiliated) renders legal or other professional services to a
trust hereunder shall not be deemed a conflict of interest, and the Settlor
authorizes the Trustees to pay fees for such services to such trustee or firm
without prior approval of any court or any beneficiary and whether or not there
is a co-trustee to approve such payment. The Settlor intends an attorney or
other trustee who also renders professional services to receive full
compensation for both services as trustee and the professional services
rendered, except as specifically limited by law.
I. The Settlor directs that the so-called rule against self-dealing shall not apply to
a trustee who is the Settlor's wife or a descendant of the Settlor. Except when
prohibited by another provision of this Trust Agreement, such a trustee may
enter into transactions on behalf of a trust hereunder in which that trustee is
personally interested so long as the terms of such transaction are fair to the
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trust. For example, such a trustee may purchase property from the trust at its
fair market value without court approval.
J. If the Settlor has given the Trustees discretion concerning distributions of
income or principal the Settlor intends that discretion to be absolute and
uncontrolled, and subject to correction by a court only if the Trustees should
act utterly without reason, or in bad faith, or in violation of specific provisions
of this Trust Agreement. If the Settlor has set forth general guidelines (as
opposed to directions or dollar limits) for the Trustees in making distributions,
the Settlor intends those guidelines to be merely suggestive and not to create an
enforceable standard whereby a distribution could be criticized or compelled. It
is the Settlor's strong belief that the Trustees will be in the best position to
interpret and carry out the intentions expressed herein under changing
circumstances. This paragraph shall not, however, apply to any standards
framed in terms of health, education, support (including support in an
accustomed manner of living) or maintenance, as the Settlor intends those
words to create an ascertainable standard for federal tax purposes when applied
to a trustee's power or a power held individually, although even in those cases
the Settlor wants the holder of the power to have as much discretion as is
consistent with that intent.
K. Notwithstanding any other provisions of this Trust Agreement, each trustee is
prohibited from making, voting on, or otherwise participating in any
discretionary distribution of income or principal from a trust that would
discharge or substitute for a legal obligation of that trustee, including the
obligation to support a beneficiary of the trust. Subject to that, in exercising
discretion over distributions, the Trustees may consider, or may disregard, other
resources available to any beneficiary.
L. Unless the Settlor has specifically provided otherwise, and subject to any
ascertainable standard governing its exercise, the Trustees' discretionary power
to distribute income or principal includes the power to distribute all of such
income and/or principal to one or more members of a class to the exclusion of
others whether or not the terms of the trust specifically mention that possibility.
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M. A trustee may irrevocably release one or more powers held by the trustee while
retaining other powers.
N. Any trustee may delegate to a co-trustee any power held by the delegating
trustee, but only if the co-trustee is authorized to exercise the power delegated.
A delegation may be revocable, but while it is in effect the delegating trustee
shall have no responsibility concerning the exercise of the delegated power.
Article XIX.Alternate or Successor Fiduciaries.
A. Any trustee may resign at any time without court approval and whether or not
a successor has been appointed.
B. Each individual trustee (including successors) shall have the right to appoint a
successor individual trustee by an instrument in writing, such appointment to
take effect upon the death, resignation or incapacity of the appointing trustee.
An appointment may be changed or revoked until it takes effect. If the Settlor
has named an alternate or alternates to the appointing trustee in this Agreement,
the appointment of a successor under this paragraph shall take effect only if
and when those alternates fail to qualify or cease to act.
C. The individuals (and any corporation) acting as the Trustees may at any time
acting unanimously by written instrument appoint an individual or a corporation
with fiduciary powers as a co-trustee.
D. If the office of trustee of a trust is vacant, and no successor takes office
pursuant to any other provision of this Trust Agreement, an individual or
corporation with fiduciary powers may be appointed as trustee by the Settlor's
wife if then living and competent, otherwise by a majority of the Settlor's adult
descendants then living and competent.
E. The separate trusts hereunder may have different trustees pursuant to these
prOViSIOns.
F. In the event that the sole trustee of a trust is a beneficiary of the trust, the
Settlor intends that the trustee may appoint but shall not be required to appoint
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a co-trustee as provided herein. The Settlor does not intend that a beneficiary's
interest be merged or converted into a legal life estate or estate for years
because the beneficiary is the sole trustee, but if despite this expression of
intent that would happen under applicable law, then a co-trustee shall be
appointed in preference to such merger or conversion.
G. A trustee may be appointed pursuant to this Article for a limited purpose or to
hold only specified powers.
Article XX. Exoneration From Security.
No trustee shall be required to give bond or other security in any jurisdiction, and if
despite this exoneration a bond is nevertheless required, no sureties shall be required.
Article XXI. Other Definitions.
The following terms used in this Trust Agreement shall be defined as follows:
A. Whether an individual is a minor or an adult shall be determined under the
laws of the individual's domicile at the time in question, except in cases when
this Trust Agreement has specifically defined "Minor" to mean a person under
age 25.
B. References to the "Internal Revenue Code" or "Code" or to provisions thereof
are to the Internal Revenue Code of 1986, as amended at the time in question.
References to the "Regulations" are to the Treasury Regulations under the
Code. If by the time in question a particular provision of the Code has been
renumbered, or the Code has been superseded by a subsequent federal tax law,
the reference shall be deemed to be to the renumbered provision or the
corresponding provision of the subsequent law, unless to do so would clearly be
contrary to the Settlor's intent as expressed in this Trust Agreement, and a
similar rule shall apply to references to the Regulations.
C. "Gross estate" means the Settlor's gross estate as determined for Federal Estate
Tax purposes (or for state death tax purposes where relevant).
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D. The technical tax-related term determining the formula gift for tax purposes
shall be defined as follows:
1. The Settlor's "optimum marital deduction" means the amount necessary
to reduce the Settlor's Federal Estate Tax to the lowest possible amount.
2. This amount and the resulting formula gift shall be calculated using
final Federal Estate Tax values and the calculations shall take account of
all non-deductible items entering into the calculation of the Settlor's
Federal Estate Tax, which include (for example) the Settlor's adjusted
taxable gifts during life, non-deductible gifts under or outside this Trust
Agreement, state death taxes, some administration expenses not allowed
as estate tax deductions, as well as all deductible items, which include
(for example) gifts under or outside this Trust Agreement that qualify
for the marital or charitable deduction, and some administration
expenses allowed as estate tax deductions. However, in making the
calculations it shall be assumed that an election is made by the Settlor's
Executors to qualify all eligible property (other than the Family Trust)
for the marital deduction regardless of what election is in fact made by
the Settlor's Executors. The calculations shall take into account all
available subtractions and credits against the Federal Estate Tax (other
than a credit for previously taxed property that results from a death
subsequent to the Settlor's death), except that no credit shall be taken
into account that does not reduce the Federal Estate Tax to zero or the
lowest possible amount, and if the only credits that can do that are the
unified credit and the credit for state death taxes, the credit for state
death taxes shall not be taken into account if the state imposes only a
tax equal to that credit. The calculations shall be made before giving
effect to any disclaimer. The Settlor recognizes that some of these
amounts may be zero, may be affected by changes in the law before the
Settlor's death and by the Trustees in exercising certain tax elections
(for example, the selection of the valuation date and the deduction of
some administration expenses), and will be affected by some items (for
example, state death taxes and some administration expenses not
allowed as estate tax deductions) even though such items may initially
be payable from the trust fund generally.
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Article XXII. Revocability of Trust & Rights Reserved.
The Settlor reserves the following rights, each of which may be exercised whenever
and as often as the Settlor may wish:
A. The right by an acknowledged instrument in writing to revoke or amend this
trust agreement in whole or in part.
B. The right to remove any trustee and appoint substitute, additional or successor
trustees.
C. The right to approve the Trustees' investment decisions, and such approval
shall bind all other beneficiaries. If the Settlor is aware of an investment
decision and does not object to it, the Settlor shall be deemed to have approved
it.
D. The right from time to time to approve of the Trustees' conduct (whether in
connection with an accounting by the Trustees or without an accounting), and
the Settlor's approval shall bind all other beneficiaries.
E. All rights the Settlor may have as the owner of any insurance policies payable
to the Trustees.
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IN WITNESS WHEREOF, the Trustees and the Settlor have signed this Agreement,
effective the day and year first above written and executed by each of them on the dates set
forth below.
Dated:
i
/1'';''-','''' "
\:
: '.j C;/
I. --'\
/r:~
7' ~_
E. FOX, JR., as set rand
Trustee
Dated: j iI, , '
'/' . ~ (1 i, 'f ci :',)
j
8 "
, (La C{/Lhr--L (, ,{ cl'--<'/
KA THARINE C. FOX, as Trustee
DAUPHIN DEPOSIT BANK AND
TRUST CaMP ANY, as Trustee
ATTEST:
By:
By:
Title:
Title:
Dated:
Dated:
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COMMONWEAL TH OF PENNSYL VANIA
COUNTY OF V{t~h( tJ/i.{ !~
j
)
) ss:
)
, .
I HEREBY CERTIFY that on this~'?(I( day of ll~ (I,. .Ii: lie:.... I 19 '1' r- ,
before me, the subscriber, a Notary Public in and for the Commonwealth of
Pennsylvania, personally appeared JOHN E. FOX, JR., Settlor, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the foregoing instrument, and acknowledged that
the foregoing instrument was executed by JOHN E. FOX, JR., as Settlor, for the
purposes therein contained.
WITNESS my hand and notarial seal.
(SEAL)
/~ ,/
I- /1,.'
>"_./,1.1.. 1...1;'/ ('_lJ <./L.'~_ ::.~-t.(.~ ....:.-/~
Notary Public
My Commission Expires:
NOTARIAL SEAL
SHERXL, L SAr~DERS. Notary Public
Harn3llurg, PA Dauphin County
My Conlii:i<:sion Expires Aug. 19. 1999
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF 11~/J{f.,) leI 70
j
ss:
I HEREBY CERTIFY that on thiscJ{;/A. day of !L{~:~/7/Jjl, ,19 rJ)" ,
before me, the subscriber, a Notary Public in and for the Commonwealth of
Pennsylvania, personally appeared KATHARINE C. FOX, Trustee, personally known
to me (or proven to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the foregoing instrument and acknowledged that the
foregoing instrument was executed by KATHARINE C. FOX, as Trustee, for the
purposes therein contained.
WITNESS my hand and notarial seal.
(SEAL)
/1" / /
\J-" "-.. ~- ~ ~. (~ '_/
(-.
r,\./ (...~~,
;~'{~I l-~
./
Notary Public
My Commission Expires:
NOT/\RiAl SEAL
SHERYL L S/WDEPS, Notary Public
Harli:;!1urg, PA Dauphin County
My Commir;sion Ex:.;\re~ Aut). '19, 1999
_........._-~. ...~.,.. ---..-
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.
COMMONWEALTH OF PENNSYLVANIA
ss:
COUNTY OF
I HEREBY CERTIFY that on this _____ day of , 19_____
before me, the subscriber, a Notary Public in and for the Commonwealth of
Pennsylvania, personally appeared , an officer of
DAUPHIN DEPOSIT BANK AND TRUST COMPANY, Trustee, and, being authorized to do
so, acknowledged that the foregoing instrument was signed on behalf of DAUPHIN
DEPOSIT BANK AND TRUST COMPANY, as Trustee, for the purposes therein
contained.
WITNESS my hand and notarial seal.
(SEAL)
Notary Public
My Commission Expires:
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SCHEDULE A
One Dollar ($1.00)
.---- ---------------;--..- -----------.--_..
. tat ;.t , ) ;.t : ..~ , ~ a :.1_-, ;.t : .. ~ ~,,'o 11 ~ :.II
.
.-.-......----....----
I
!
- 31 -
I EXHIBIT C
.
.
.
"
IN THE MATTER OF TH E
ESTATE OF JOHN E. FOX, JR.
DECEASED
JOHN E. FOX, JR. FAMILY TRUST
UNDER AGREEMENT DATED
DECEMBER 29, 1995,
AS THEREAFTER AMENDED
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
.
: No. 1011 of 2005
EXHIBIT "C" TO
RECEIPT, RELEASE, REFUNDING AND INDEMNIFICATION AGREEMENT
CONCERNING INTERIM DISTRIBUTIONS
To: Eliza Gerhardt Granlund
(a/k/a Eliza W. Granlund):
Cash - Specific Gift
$ 25,000
Cash - Y2 of Specific Cash Legacy
Received As Result of
Disclaimer $ 25.000
Total Interim Distribution To Eliza Gerhartdt Grandlund
$ 50,000.00
To: John Fox Gerhardt:
Cash - Y2 of Specific Cash Legacy
Received As Result of
Disclaimer
$ 25.000.00
Total Proposed Interim Distributions
$ 75.000.00