XXXX X. XXXXX
TRUST AGREEMENT
THIS AGREEMENT OF TRUST, made and restated as of the 28th
day of May, 1997, by and between XXXX X. XXXXX of Philadelphia,
Pennsylvania, (hereinafter called "Settlor"), and XXXX X. XXXXX
of Philadelphia, Pennsylvania, and XXXXXXXX X. XXXXXX, of
Washington, D.C., as Trustees (hereinafter called "Trustees").
W I T N E S S E T H:
Settlor does hereby irrevocably assign, convey, transfer and
deliver to Trustees all Settlor's right, title and interest in
the assets set forth in Schedule "A" attached hereto and made a
part hereof.
Trustees hereby agree to hold the aforesaid property and any
other property, real or personal, that may be added from time to
time to this trust by Settlor or any other person, by Will, Deed,
or otherwise, such proceeds and additions being hereinafter
called principal, IN TRUST, upon the following terms and
conditions:
FIRST: XXXX XXXXX CHARITABLE FOUNDATION.
A. The principal shall be used by the
Trustees to establish a charitable foundation to be known as the
"XXXX XXXXX CHARITABLE FOUNDATION." The Trustees shall
distribute the income and principal of such Foundation
exclusively to organizations which are tax-exempt within the
meaning of Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the "Code"), and described in each of Sections
170(c), 2055(a) and 2522 (a) of the Code which advance or promote
education, medical research or Jewish causes.
B. The Trustees shall make distributions
from income and, if income is not sufficient, from principal,
from the "XXXX XXXXX CHARITABLE FOUNDATION" for the charitable
purposes selected by the Trustees, consistent with the objectives
set forth above, for each taxable year, in such amount, at such
time and in such manner as not to subject the said Foundation to
tax on undistributed income imposed by
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Section 4942 of the Code.
In addition, the Trustees shall have the unrestricted right to
distribute additional income or principal for such charitable
purposes set forth above if a majority of Trustees then serving
shall authorize such use of income or principal.
C. No part of the net earnings of the
Foundation should inure to the benefit of any individual. No
substantial part of the activities of the Foundation should be
involved in carrying on propaganda, or otherwise attempting to
influence legislation. The Foundation shall not participate in,
or intervene in (including the publishing or distributing of
statements), any political campaign on behalf of any candidate
for public office, it being intended that the "XXXX XXXXX
CHARITABLE FOUNDATION" be exempt from tax as an organization
described in each of Sections 170(c), 2055(a) and 2522(a) of the
Code, distributions to which from Settlor's estate shall be
deductible under the provisions of Section 2055 of the Code.
D. The Trustees of the "XXXX XXXXX
CHARITABLE FOUNDATION" (1) shall not engage in any act of self-dealing
as defined in Section 4941(d) of the Code; (2) shall not
hold or retain any excess business holdings as defined in
Sections 4943(c) of the Code, which would subject the trust to
tax under Section 4943 of the Code; (3) shall not make any
investments which would subject the trust to tax under Section
4944 of the Code; (4) shall not make any taxable expenditures as
defined in Section 4945(d) of the Code, and (5) shall make
distributions, expenditures and investments (within the meaning
of the private Foundation provisions of the treasury regulations)
in such manner and at such times as not to subject it to taxes
under the provisions of Section 4942 of the Code.
E. The Trustees of the "XXXX XXXXX
CHARITABLE FOUNDATION" shall not (1) lend any part of the
principal of the trust; (2) make any services available on a
preferential basis to Settlor or any member of Settlor's family;
(3) pay any compensation from income or principal other than
reasonable compensation
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for services rendered, and (4) purchase
or sell securities for other than adequate consideration or
engage in any transaction which diverts income or principal to
Settlor or any member of Settlor's family or any corporation
owned by Settlor or Settlor's family.
F. Upon the dissolution of the trust,
assets shall be distributed for one or more exempt purposes
within the meaning of section 501 (c) (3) of the Internal Revenue
Code, or corresponding section of any future federal tax code, or
shall be distributed to the federal government, or to a state or
local government, for a public purpose. Any such assets not
disposed of shall be disposed of by the Court of Common Pleas of
the county in which the principal office of the trust is then
located, exclusively for such purposes or to such organization or
organizations, as said Court shall determine, which are organized
and operated exclusively for such purposes.
SECOND: Trustees' Powers. In the absolute discretion of
the Trustees, they shall, in addition to the powers given by law,
have the following powers applicable to all property held in
trust whether principal or income, and exercisable without order
of Court:
A. To retain all stocks, bonds and
investments owned by the trust estate, and to invest and reinvest
in other stocks, bonds and investments, without being confined to
what are known as "legal investments", and to sell and transfer
the same, whether in person or by attorney, without liability on
the part of the purchasers to see to the application of the
purchase or consideration monies.
B. To purchase securities at a premium and
to exercise any option to subscribe for stocks, bonds or other
investments; to grant options and proxies; to execute and issue
and deliver letter of investment; and to enter into voting trust
agreements affecting any estate investments.
C. To join in any plan of lease, mortgage,
consolidation, exchange or reorganization of any corporation in
which the trust may hold stocks, bonds, or other investments or
securities.
D. To make distribution of the assets, in
kind, according to their absolute discretion, and at such
valuation as the Trustees shall properly establish therefor.
E. To borrow such sums of money as may be
required for the purpose of the trust created hereunder, and to
secure the loan by a pledge of all or any part of the trust
property, or mortgage, and to execute an accompanying bond
authorizing the confession of judgment and plain or collateral
notes, or other evidences
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of indebtedness. Persons or
corporations advancing money to the Trustees need not inquire
into the necessity, expediency or propriety of such a loan, nor
see to the application of the money advanced.
F. To exercise any elections available to
them under applicable law.
G. To hold securities in a nominee form of
registration.
H. The Trustees, in their sole and
absolute discretion, shall be authorized at anytime, to take
whatever steps are necessary to make the "XXXX XXXXX CHARITABLE
FOUNDATION" into a non-profit corporation if the Trustees deem it
advisable.
I. To commingle any funds held in a trust
hereunder for investment purposes and to commingle such funds
with funds held in any other trust established hereunder and/or
funds held in any other trust or trusts established for similar
purposes of the trust established hereunder by Settlor or any
other person.
THIRD: Construction of Trust.
A. In the event that any provision of
Paragraph SECOND conflicts with a rule of law, treasury
regulation or interpretation thereof by the Internal Revenue
Service or the courts as to what is a permissible power or action
to be possessed or taken by a Trustee of a qualifying charitable
foundation, the rule of law, treasury regulation or
interpretation of the Internal Revenue Service or the court shall
control and completely overrule the provision of Paragraph
SECOND, as it pertains the Foundation created hereunder.
B. The "XXXX XXXXX CHARITABLE FOUNDATION"
is intended to qualify as a tax exempt organization as described
in Sections 170(c), 2055(a) and 2522(a) of the Code,
distributions to which are deductible by Settlor's estate under
the provisions of Section 2055 of the Code and that this trust be
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exempt from Federal Income Tax as an organization described in
Section 501(c)(3) of the Code. All provisions of this Trust
Agreement affecting such Foundation shall be so construed in
their application and the trust shall be administered in such
manner so as not to impair the validity of the trust for these
purposes under the applicable provisions of the Code, and Settlor
directs further that insofar as any such provision may adversely
affect the tax exempt status of such Foundation, it shall be
disregarded and become inoperative and the Trustees shall be
further authorized to take such actions as is necessary to amend
the provisions of Paragraph FIRST so that it will be so
qualified.
C. Except for willful default or gross
negligence, the Trustees shall not be liable for any act,
omission, loss, damage or expense arising from the performance of
their duties as Trustees, including the act, omission, loss,
damage, or expenses caused by any agent appointed by the
Trustees.
FOURTH: Irrevocable. Settlor expressly declares this
trust to be irrevocable and does not reserve to himself any right
or power to amend or revoke said trust.
FIFTH: Successor Trustees.
A. Settlor reserves the right to appoint
additional Trustees to serve with him in such capacity. In the
event that XXXX X. XXXXX is unable or unwilling to serve or
continue to serve as Trustee, XXXXXXXX X. XXXXXX shall have the
right to designate additional Trustees to serve with him, if in
his sole and absolute discretion, he wishes to do so.
Notwithstanding anything to the contrary, XXXX X. XXXXX or
XXXXXXXX X. XXXXXX shall have the right, for any reason, to
remove a Co-Trustee that either of them may have so designated.
In the event of a vacancy in the office of Trustee, and no
Trustee is then serving, Settlor appoints PNC BANK, N.A. to fill
such vacancy. Any individual Trustee may resign at any time
without need for court approval. Any successor or additional
Trustee shall have the same powers, duties and authorities as
though named as an initial Trustee.
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B. The Trustees may, at any time, in their
sole discretion, appoint a corporate fiduciary to serve with them
as co-Trustee of the Foundation created hereunder. The
individual Trustees serving hereunder at any time shall have the
right to remove, with or without cause, the corporate Trustee
then serving, if so appointed. The corporate fiduciary shall
have no voice in the discretion affecting the beneficial
enjoyment of the principal or income of the Foundation. Should a
corporate fiduciary be appointed hereunder, it shall not be
liable for any losses sustained by the trust as a result of
decisions made by the individual Trustees in which it does not
participate. Such corporate fiduciary shall be entitled to
charge Trustee's commissions in accordance with its published,
standard schedule of compensation then in effect, provided such
fees do not exceed rates then prevailing in the metropolitan area
in which it is located.
C. Any lawyer, accountant or other
professional providing legal, accounting or other professional
service to the Charitable Foundation created hereunder, including
the Trustees designated herein or subsequently appointed, shall
be entitled to compensation at their normal hourly rates provided
such compensation is reasonable, plus reimbursement for any
incidental, out of pocket expenses that they may incur, out of
the Charitable Foundation. For purposes of this provision, the
time that any lawyer, accountant or other professional shall
spend on the Charitable Foundation, whether to attend Foundation
meetings or any other legitimate purpose, shall be compensable at
their normal hourly rates.
D. Compensation may be paid to the
individual Trustees other than Settlor and the individual
Trustees shall be reimbursed for all expenditures incident to
their duties as a Trustee. Compensation, expense reimbursement,
and insurance premiums shall be charged upon the principal or
income of the trust established hereunder as Trustees, in their
sole discretion, shall determine.
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E. No bond shall be required of any
Trustee in this or any other jurisdiction.
SIXTH: Situs and Choice of Law. This is a Pennsylvania
Trust, and questions as to the validity, construction and
administration thereof shall be determined in accordance with the
laws of and in the court of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, XXXX X. XXXXX, Settlor, has hereunto set
his hand and seal and XXXX X. XXXXX and XXXXXXXX X. XXXXXX,
Trustees, have hereunto set their hands and seals the day and
year first above written.
SIGNED, SEALED AND DELIVERED
IN the presence of: /s/ Xxxx X. Xxxxx(SEAL)
XXXX X. XXXXX, Settlor
/s/ Xxxx X. Xxxxx(SEAL)
XXXX X. XXXXX, Trustee
/s/ Xxxxxxxx X. Xxxxxx(SEAL)
XXXXXXXX X. XXXXXX, Trustee
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COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF PHILADELPHIA :
On this 28th day of May, 1997, before
me personally appeared XXXX X. XXXXX, Settlor and Trustee, known
to be the person described in and who executed the foregoing
Agreement, and acknowledged that he executed the same as his free
act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal.
MY COMMISSION EXPIRES:
July 8, 2000 /s/ Xxxxx X. Volchy
NOTARY PUBLIC
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STATE OF Washington, D.C. :
: SS
COUNTY OF :
On this 30th day of May, 1997, before
me personally appeared XXXXXXXX X. XXXXXX, Trustee, known to be
the person described in and who executed the foregoing Agreement,
and acknowledged that he executed the same as his free act and
deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal.
MY COMMISSION EXPIRES:
10/31/97 /s/ Xxxxxxx
NOTARY PUBLIC
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Schedule "A"
One ($1.00) Dollar
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