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EXHIBIT B
XXX XXXXX VAN EVERY INTANGIBLE TAX TRUST
THIS AGREEMENT, dated December 6, 1996 between XXX XXXXX VAN EVERY, of
Naples, Florida (hereinafter called the "Grantor"), and XXXXX XXXXX XXXXXXXXX,
of Raleigh, North Carolina (hereinafter called the "Trustee"),
W I T N E S S E T H:
The Grantor hereby delivers and assigns to the Trustee the property
specified in Schedule A hereto annexed, the receipt of which is hereby
acknowledged by the Trustee, which agrees to hold the same, in trust, together
with any property added to the trust estate, as follows:
Article I:Distribution of Trust Funds During the Grantor's
Lifetime.
A. Income and Principal Distributions. The Trustee shall pay or apply
all or any part of the net income and principal of this trust to or for the
benefit of the Grantor, during the Grantor's lifetime, that the Trustee
considers advisable for the Grantor's maintenance in health and reasonable
comfort, or support in the Grantor's accustomed manner of living. Any
undistributed income shall be added to principal. The Trustee shall allocate all
capital gains and/or losses to income.
B. Trustee Power of Appointment. The Trustee may at any time, during
the Grantor's lifetime, distribute all or any part of the trust principal to, or
in trust for the benefit of the Grantor, upon such estates or conditions, in
such manner, and at such time or times as the Trustee shall direct and appoint
in writing specifically referring to and exercising this power; provided,
however, that this power shall not be exercisable to any extent for the benefit
of the Trustee, the Trustee's estate, the Trustee's creditors or the creditors
of the Trustee's estate.
C. Grantor's Limited Power of Appointment. The Grantor may at any time
direct the distribution of all or any part of the trust principal to, or in
trust for the benefit of, such person or persons, upon such estates or
conditions, in such manner, and at such time or times as the Grantor shall
direct and appoint, in writing, during the Grantor's lifetime or at the
Grantor's death, specifically referring to and exercising this power; provided,
however, that this power shall not be exercisable to any extent for the benefit
of the Grantor, the Grantor's estate, the Grantor's creditors or the creditors
of the Grantor's estate.
Article II: Partial and Full Termination of Trust. Upon the first to
occur of the following events, the Trustee shall (using the actual date of the
receipt by the Trustee of each particular
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asset as the controlling date with respect to each such particular assets in the
case of a partial termination) distribute the particular asset received by the
Trustee as hereinafter provided:
A. Upon the death of the Grantor, the Trustee shall distribute any and
all trust principal not effectively appointed pursuant to section C of Article I
to the then acting Trustee of the Xxx Xxxxx Van Every Revocable Trust dated
4/1/92, as amended, to be added to the principal of such trust, or, if such
trust is not then in existence, to the Personal Representative of the Grantor's
estate, to be disposed of as part of the Grantor's estate.
B. Upon the day occurring four (4) months after the actual date of the
receipt of each particular asset received by the Trustee, the Trustee shall
distribute each particular asset, which is then a part of the trust estate, to
the then acting Trustee of the Xxx Xxxxx Van Every Revocable Trust dated 4/1/92,
as amended, to be added to the principal of such trust, or, if such trust is not
then in existence, to the Grantor.
C. Notwithstanding the foregoing provisions of this Article, the
Trustee shall retain the amount of assets initially listed on Schedule A
attached hereto until the date of the Grantor's death.
Article III: Appointment of Trustees. If the Grantor's son, XXXXX XXXXX
XXXXXXXXX, ceases to act as Trustee, the Grantor's son, WORTH XXXX XXXXXXXXX,
XX., currently of North Wilkesboro, North Carolina, is appointed as Trustee, to
act together with any other then acting Trustee.
Any individual Trustee shall be considered removed at such time as such
Trustee is unable to manage the Trustee's affairs.
For purposes of this Agreement, an individual Trustee shall be
considered to be unable to manage the Trustee's affairs if such individual is
under a legal disability or by reason of mental illness or physical disability
is unable to give prompt and intelligent consideration to financial matters. The
determination as to the inability shall be made in writing by a physician who
has examined such individual, and the Trustee may rely upon such written
determination.
Any individual Trustee may at any time appoint such Trustee's successor
as Trustee, unless the foregoing provisions of this Agreement effectively
provide for such Trustee's successor.
Notwithstanding any provisions in this Agreement to the contrary, no
individual who is a resident of the State of Florida, and no corporation doing
business in, or qualified to do business in, the State of Florida may serve as
Trustee of this Trust.
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Any individual Trustee who is or becomes a resident of the State of
Florida, or any corporate Trustee which does business in the State of Florida or
becomes qualified to do business in the State of Florida, shall cease to act as
a Trustee at such time.
If at any time there is no Trustee and the foregoing provisions of this
Agreement do not effectively provide for a successor Trustee, the Grantor may
appoint one or more successor Trustees.
The Grantor may not serve as Trustee.
Any fiduciary is authorized to resign at any time without court
approval.
The resignation, appointment, or revocation of appointment may be made
by the person authorized to take such action by delivery of an acknowledged
instrument to the Trustee then acting and any Trustee to be appointed, or, if
none, to a court having jurisdiction over the trust.
Any appointment of a Trustee may be conditioned to commence or cease
upon a future event and may be revoked or modified at any time before such
future event has occurred.
Unless otherwise expressly provided, any power to appoint a Trustee
shall permit appointment of an individual, bank or trust company as such
fiduciary, and shall be exercised by the parent (or, if none, the legal
representative) of any minor and the legal representative of any incompetent
person holding such power.
Article IV: Administrative and Tax Provisions.
A. Irrevocable Trust. This Agreement and any trust created
hereunder shall be irrevocable and shall not be subject to alteration or
amendment in any respect.
B. Additions to Trust. Any person may add property to the
trust estate by lifetime gift or by transfer taking effect at death, provided
such property is acceptable to the Trustee.
C. Situs of Trust Property. No Trustee shall invest in real
property having a situs in the State of Florida.
D. Requirement of Survival. No beneficiary shall be
considered to have survived the event terminating any trust and be entitled to
any trust funds on that event unless such beneficiary survives for at least
thirty (30) days after that event.
E. Distributions to Minors. If the Trustee is authorized or
required to distribute trust funds to a beneficiary who is then a minor, and the
Trustee does not believe that an immediate
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distribution is in the beneficiary's best interests, it may instead distribute
such property to any adult caring for the beneficiary or to the beneficiary's
Guardian or Custodian under a Uniform Gifts to Minors Act or Uniform Transfers
to Minors Act. In the alternative, the Trustee may hold and invest such property
as a separate fund for such beneficiary, and accumulate income or pay or apply
any part of the fund to or for the beneficiary's benefit from time to time, as
it considers advisable. Any accumulated income shall be added to principal
annually. When the beneficiary becomes an adult, the Trustee shall distribute
the fund to the beneficiary. If the beneficiary dies before becoming an adult,
the Trustee shall distribute the fund to the beneficiary's legal representative.
F. Permissible Use of Trust Funds. Upon the death of the Grantor, the
Trustee may in its discretion purchase property from the Grantor's estate, make
loans to the Grantor's estate, and guarantee the obligations of the Grantor's
estate and pledge trust property as security therefor upon whatever terms and in
whatever manner and with whatever security the Trustee considers advisable. This
provision shall not give either the Grantor or the Grantor's estate any right or
authority over trust property.
G. Governing Law. The validity, construction and administration of this
Agreement and any trust hereunder shall be governed by the laws of Florida.
H. Consideration of Other Resources of Beneficiaries. In exercising
discretion to distribute trust funds to any beneficiary, the Trustee may (but
shall not be required to) take into consideration any other resources reasonably
available to such beneficiary.
I. Informal Accountings. The Trustee may provide to the Grantor, or,
after the Grantor's death, to each legally competent eligible income beneficiary
and presumptive remainderman (or the parent or Guardian of the estate of any
such minor or incompetent person), statements of trust transactions at such time
and in such form as it considers advisable. If all such persons give written
approval of the statement, it shall be final, binding and conclusive on all
persons interested in the trust.
J. Investment Counsel. The Trustee may employ investment counsel;
consult with such counsel on any matters relating to the retention, sale,
purchase, investment, or reinvestment of securities or other property; and pay
such investment counsel reasonable compensation for its services in addition to
the regular compensation of the Trustee. The Trustee may act upon or refrain
from acting upon the advice of such investment counsel in whole or in part, and
to the extent the Trustee follows the advice of such counsel the Trustee shall
not be liable for any action taken, except in the case of willful misconduct.
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Notwithstanding the foregoing provisions of this section J, no
investment counsel which is a resident of the State of Florida, doing business
in the State of Florida, or qualified to do business in the State of Florida,
shall have the discretionary authority to make decisions relating to the
retention, sale, purchase, investment or reinvestment of securities or other
property.
K. Trustee Relieved From Liability. No individual Trustee shall be
liable for any mistake or error of judgment, or for any action taken or omitted,
either by the Trustee or by any agent or attorney employed by the Trustee, or
for any loss or depreciation in the value of the trust, except in the case of
willful misconduct.
L. Successor Trustee. No Trustee has a duty to examine the transactions
of any prior Trustee. Each Trustee is responsible only for those assets which
are actually delivered to it.
M. Delegation. Any Trustee may delegate to the other Trustees the right
to exercise any power (discretionary, administrative or otherwise), and may
revoke the delegation at any time, by delivery of an acknowledged instrument to
such other Trustees.
X. Xxxxxx of Appointment. Any power of appointment created under this
Agreement may be exercised only by an express reference to the power which
includes the name of the Grantor. A person exercising a power of appointment may
appoint trust funds outright or in trust. The choice of terms, Trustees and
jurisdiction of any trust shall be entirely within the discretion of the person
having the power of appointment, except to the extent otherwise expressly
provided in this Agreement. No power of appointment shall be exercisable by a
beneficiary over any property or its proceeds added to a trust by means of a
disclaimer by such beneficiary.
O. Management Powers of Trustee. Without limitation of the powers
conferred upon it by law but subject to the foregoing terms of this Agreement,
the Trustee is authorized:
1. To retain, acquire, or sell any property (including any
discretionary common trust fund of any corporate fiduciary acting under
this Agreement, covered and uncovered stock options, and investments in
foreign securities), without regard to diversification and without
being limited to the investments authorized for trust funds; (2) to
exercise stock options; (3) to enter into agreements for the sale,
merger, reorganization, dissolution or consolidation of any corporation
or properties; (4) to manage, improve, repair, sell, mortgage, lease
(including the power to lease for oil and gas), pledge, convey, option
or exchange any property and take back purchase money mortgages
thereon, without court order; (5) to make distributions in cash or in
kind, or partly
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in each, and, in the discretion of such fiduciaries, to allocate
particular assets or portions thereof to any one or more beneficiaries,
provided that such property shall be valued for purposes of
distribution at its value on the date of distribution; (6) to maintain
custody or brokerage accounts (including margin accounts) and to
register securities in the name of a nominee; (7) to compromise and
settle claims (including those relating to taxes) without court order;
(8) to borrow funds from any person or corporation (including a
Trustee) and pledge or mortgage trust assets to secure such loans; (9)
to extend, renew or renegotiate the Grantor's loans or guarantees; (10)
to employ attorneys, accountants, investment counsel, custodians and
brokers to assist in the administration of trust property; (11) to vote
and give proxies to vote shares of stock; (12) to make joint
investments in property, real or personal; (13) to divide any trust
into separate trusts; and (14) if there is more than one trust
established under this Agreement, to administer such trusts as a single
fund.
Article V: Identification of Trust. This Trust Agreement may
be referred to as the "Xxx Xxxxx Van Every Intangible Tax Trust dated 12/6/96."
IN WITNESS WHEREOF, XXX XXXXX VAN EVERY, the Grantor, has hereunto set
the Grantor's hand and seal as of the 6th day of December, 1996.
S/Xxx Xxxxx Van Every
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XXX XXXXX VAN EVERY
Grantor
SIGNED, SEALED, PUBLISHED and DECLARED by XXX XXXXX VAN EVERY, the
Grantor, as and for the Xxx Xxxxx Van Every Intangible Tax Trust dated 12/6/96,
in the presence of us and each of us, who, at the Grantor's request, in the
Grantor's presence and in the presence of each other, have hereunto subscribed
our names as witnesses on the day and in the year first above written.
s/Xxxxxxx X. Xxxxxx of 0000 Xxxxxxxx Xxxx.
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Signature of Witness #1 Xxxxxxxxx, XX 00000
as to Granter ------------------------------
Address of Witness #1
s/Xxxxxxx X. Xxxxxx of 0000 Xxxxxxxx Xxxx.
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Signature of Witness #2 Xxxxxxxxx, XX 00000
as to Grantor ------------------------------
Xxxxxxx xx Xxxxxxx #0
XXXXX XX XXXXX XXXXXXXX )
) Ss:
COUNTY OF MECKLENBURG )
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The foregoing instrument was acknowledged before me this 6th day of
December, 1996 by XXX XXXXX VAN EVERY, who is personally known to me or who has
produced a driver's license as identification.
s/Xxxxxxx XxXxxxxx
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Notary Public
My commission expires: 8/5/2001
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IN WITNESS WHEREOF, XXXXX XXXXX XXXXXXXXX, the Trustee,has hereunto set
the Trustee's hand and seal as of the 9th day of December, 1996.
s/Xxxxx Xxxxx Xxxxxxxxx
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XXXXX XXXXX XXXXXXXXX
Trustee
SIGNED AND SEALED by XXXXX XXXXX XXXXXXXXX, as Trustee, as and for the
Xxx Xxxxx Van Every Intangible Tax Trust dated 12/6/96 in the presence of us and
each of us, who, at the Trustee's request, in the Trustee's presence and in the
presence of each other, have hereunto subscribed our names as witnesses on this
9 day of December, 1996.
s/ Witness #1 of 000 Xxxxxxx Xx., Xxxxxxx, XX 00000
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Signature of Witness #1 Address of Witness #1
as to Trustee
s/Xxxxx Xxxxxx of 000 Xxxxxxx Xx., Xxxxxxx, XX 00000
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Signature of Witness #2 Address of Witness #2
as to Grantor
STATE OF NORTH CAROLINA )
) Ss:
COUNTY OF WAKE )
The foregoing instrument was acknowledged before me this 9 day of
December, 1996, by XXXXX XXXXX XXXXXXXXX, who is personally known to me or who
has produced a driver's license as identification.
s/ Notary Public
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Notary Public
Commission Expires: 4-13-97
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SCHEDULE A
FIVE
DOLLARS...................................................................$5.00
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