EFTA01252008.pdf

uf -31 1.22 FIRST AMENDMENT AND RESTATEMENT TO TRUST AGREEMENT for the JEFFREY E. EPSTEIN 2001 TRUST TWO FIRST AMENDMENT AND RESTATEMENT TO TRUST AGRE THE JEFFREY E. EPSTEIN 2001 TRUST TWO, made and EMENT FOR entered into this day of , 2012, by and between JEFFREY E. EPSTEIN, as Grantor ("Grantor") and DARREN K. INDYKE, JES STALEY and ANDREW FARKAS, as Trustees ("Trustee"). ACKNOWLEDGEMENTS A. On November 8, 2001, the Grantor entered into a Trust Agreement (referred to as the "Trust Agreement") with hims elf and JEFFREY A. SCHANTZ, as Trustees. In Article FIFTEENTH of the Trust Agreement, the Grantor reserved the right to amend the Trust Agreement. The Trust Agreement has been amended from time to time. B. The Grantor desires to amend and restate the Trust Agree entirety as follows: ment in its Article I. During My Lifetime Section 1.1 - Disbursement of Income All of the income of the trust (the "Trust Estate") shall be accumulated or paid as I may direct in writing from time to paid to me, or time. Section 1.2 - Disbursement of Principal My Trustee may distribute any part or all of the principal of the Trust Estate to me in the discretion of my Trustee. Section 1.3 - Specific Rights Reserved to Me A. I reserve the right, at any time and from time to time, to Agreement, in whole or in part, by a written instrument amend this executed and acknowledged by me and my Trustee. B. I reserve the right to revoke and terminate the trust herei delivering to my Trustee a written instrument executed n created by and acknowledged solely by me. C. I reserve the right to withdraw or appoint any part or all of principal of the Trust Estate by delivering to my Trustee a the written instrument executed and acknowledged solely by me. D. I reserve the right, at any time and from time to time, to Trustee, by gift, by Will or by beneficiary designation, such transfer to my additional property, including 2657767 I CONFIDENTIAL GJ 000296 SDNY_GM_00007973 EFTA_00120645 EFTA01252008 life insurance policies, as I may desire. Any such additional property shall be held on the same terms as are then applicable to the original Trust Estate, except that it may be transferred subject to conditions and provisions of special application to such additional property. Section 1.4 - Incapacity If I am incapacitated through illness, age or other cause (and am determined to be incapacitated in the written opinion of two medical doctors), during the period of such incapacity, I shall cease to act as a Trustee hereunder. If, after having been determined to be incapacitated, I thereafter am capable of giving prompt, intelligent consideration to financial matters (as determined in the written opinion of two medical doctors), I shall be restored as a Trustee without any court proceeding. Article II. After My Death Upon my death, the trust shall terminate and the Trustee shall distribute the balance of the principal of the trust as follows: A. Five Million Dollars ($5,000,000) to JEAN LUC BRUNEL, if he survives me. B. Two Million Dollars ($2,000,000) to if she survives me. C. One Million Dollars ($1,000,000) to LAWRENCE PAUL VISOSKI, JR., if he survives me. D. One Million Dollars ($1,000,000) to I if she survives me. E. One Million Dollars ($1,000,000) to if she survives me. F. One Million Dollars iA1 000 nnn in equal shares to LUCIANO A. FONTANILLA, JR. and if they both survive me, or all to the survivor, if only one of t J4I VIV G. The balance thereof, including any distributions in Subdivisions A through F above which are ineffective, shall be payable to the Grantor's estate to be disposed of in accordance with the provisions of the Grantor's Will and the Grantor's Trust One. GJ 000297 2657767.1 CONFIDENTIAL SDNY_GM_00007974 EFTA_00120646 EFTA01252009  Article III. Trust Administration Section 3.1 - Termination of Trusts A. Notwithstanding anything herein, any trust created hereunder for any person shall (unless terminated earlier) terminate upon the day preceding the expiration of the maximum period permitted under the United States Virgin Islands Rule Against Perpetuities, for the vesting of an interest in a trust and upon such date the assets of such trust shall be distributed to such person. B. If at any time my Trustee determines that it is uneconomic to continue any trust with respect to which such Trustee is acting hereunder, my Trustee may terminate such trust and distribute the trust assets, in such amounts and proportions as such Trustee may determine, to the person or persons to whom income may be distributed. Section 3.2 - Equitable Adjustment If my Trustee decides to exercise or not exercise any fiduciary power granted by this Agreement or by law (including, without limitation, any election available to my Trustee) and the exercise or nonexercise of such power confers a benefit on one beneficiary or class of beneficiaries hereunder and imposes a detriment upon another beneficiary or class of beneficiaries hereunder, my Trustee shall not attempt to restore the interests of the beneficiaries or classes of beneficiaries to the position otherwise contemplated by this Agreement through adjustment between income and principal or otherwise. Section 3.3 - Lapsed Distribution Except as otherwise specifically provided in this Agreement, a provision for distribution to an individual who is not surviving at the date such individual otherwise becomes eligible for such distribution shall lapse notwithstanding any law to the contrary. Section 3.4 - Notice Any notice required hereunder shall be delivered personally or sent by first class or certified mail addressed to the last known address of the intended recipient. Section 3.5 - Termination of Trust An instrument in writing completely revoking this Agreement shall, without more, upon delivery to my Trustee, completely terminate all of my Trustee's right, title, and interest to any life insurance proceeds, death benefits, pension, profit sharing, or other retirement benefits or any other assets otherwise payable to my Trustee. GJ 000298 14.C1741 CONFIDENTIAL SDNY_GM_00007975 EFTA_00120647 EFTA01252010  Article IV. Powers of Trustee Section 4.1 - General Investment Powers Except as otherwise provided in this Agreement, respect to such trust: my Trustee has the power with A. To enter upon and take possession of the asse collect the income and profits from such ts of such trust and assets, and to invest and reinvest such asse real, personal, or mixed assets (including ts in the common trust funds of a corporate fidu or in undivided interests therein without ciary) being limited by any present or future investm laws; ent B. To retain all or any part of the assets of suc the proportion that any one asset or clas h trust (without regard to s of assets may bear to the whole) in the which such assets were received or acq form in uired by my Trustee; C. To sell or dispose of, exchange, transfer, of the assets of such trust which my Tru invest, or loan all or any part stee holds, at any time, for such sums or terms as to payment, security, or othe upon such rwise as my Trustee determines, either by pub private transactions; lic or D. To buy and sell options, warrants, puts, call purchase or sell (collectively called "op s or other rights to tions") relating to any security or secu regardless of whether such security or rities, securities are then held by my Trustee, and such options are purchased or sold on whether a national securities exchange, and to exercis respect to such options all powers which e with an individual owner thereof could exercis including, without limitation, the righ e, t to allow the same to expire; E. With respect to oil, natural gas, minerals, and resources and rights to and interests ther all other natural ein (together with all equipment pertaini thereto) including, without limiting the ng generality of the foregoing, oil and gas roya leases, or other oil and gas interests lties, of any character, whether owned in fee, as lessor, licensee, concessionaire or othe lessee, rwise, or alone or jointly with others as joint tenant, or joint venturer in any other partner, noncorporate manner, (1) to make oil, gas mineral leases or subleases; (2) to pay and delay rentals, lease bonuses, royalties, royalties, taxes, assessments, and all oth ove rriding er charges; (3) to sell, lease, exchange, pledge or otherwise hypothecate any mortgage, or all of such rights and interests; (4) to surr abandon, with or without consideration, ender or any or all of such rights and interests; (5) farm -out, pooling, and unitization agre to make ements; (6) to make reservations or imp conditions on the transfer of any such righ ose ts or interests; (7) to employ the most advantageous business form in which pro perly to exploit such rights and interests, as corporations, partnerships, limited part whether nerships, mining partnerships, joint ventures, co- tenancies, or otherwise exp loit any and all such rights and interests; produce, process, sell or exchange all (8) to products recovered through the exploitation rights and interests, and to enter into of such contracts and agreements for or in respect installation or operation of absorption of the , reprocessing or other processing plants; (9) to 2657767. I CONFIDENTIAL GJ 000299 SDNY_GM_00007976 EFTA_00120648 EFTA01252011  carry any or all such interests in the name or names of a nomin ee or nominees; (10) to delegate, to the extent permitted by law, any or all of the powe rs set forth herein to the operator of such property; and (11) to employ personnel, rent office space, buy or lease office equipment, contract and pay for geological surveys and studies, procure appraisals, and generally to conduct and engage in any and all activities incident to the foregoing powers, with full power to borrow and pledge in order to financ e such activities; together with the power to allocate between principal and incom e any net proceeds received as consideration, whether as royalties or otherwise, for the perm anent severance from lands of oil, natural gas, minerals, and all other natural resources; F. To hold all or any part of the assets of such trust in cash or in bank accounts without the necessity of investing the same; of such trust; G. To improve, repair, partition, plat, or subdivide all or any part assets of the Fl. To litigate, defend, compromise, settle, abandon, or submit to arbitration on such terms and conditions as my Trustee deter mines any claims in favor of or against such trust or the assets of such trust; 1. To loan or borrow money in such amounts and upon such terms conditions as my Trustee determines, assume such obligations and or give such guarantees as my Trustee determines, for the purpose of the acquisition , improvement, protection, retention, or preservation of the assets of such trust, or for the benefit of any of the beneficiaries who are entitled or permitted to receive income from such trust; J. To create or invest in any entity with all or part of the assets trust and to carry on for as long and in such manner as my of such Trustee determines any business enterprise held or created by my Trustee or in which I owned any interest at my death, either individually or as a partner, joint venturer, stock holder, trust beneficiary, or member, to sell such business enterprise as an ongoing busin ess; to consolidate, merge, encumber, dissolve, liquidate or undertake any other extraordin ary corporate transaction relating to such business enterprise; K. To vote in person or by proxy any and all stock or securities and become a party to any voting trusts, reorganization, conso to lidation, or other capital or debt readjustment of any corporation, association, partnershi p, limited liability partnership, limited liability company, or individual with respect to stock s, securities, or debts held by such trust; L. To enter into any good faith transactions with my Trustee individuall or with any corporation, partnership, limited liability partnershi y p, limited liability company, or other entity in which my Trustee has an ownership interest; M. To purchase from my estate any stocks, bonds, securities, real or personal property, or other assets, or make loans to my estate even though the same person or persons occupy the office of my Trustee and the office of the Personal Representative of my estate; CONFFDENTIAL GJ 000300 SDNY_GM_00007977 EFTA_00120649 EFTA01252012  N. To lease, mortgage, pledge, grant a security interest in, or otherwise encumber all or any part of the assets of such trust for any term of years whether or not beyond the term of such trust (including, without limitation, any such action for the benefit of any of the beneficiaries of such trust); 0. To abandon any property, real or personal, which my Trustee may deem worthless or not of sufficient value to warrant keeping or protecting; to abstain from the payment of taxes, water rents or assessments and to forego making repairs, maintaining or keeping up any such property; and to permit such property to be lost by tax sale or other proceedings or to convey any such property for a nominal consideration or without consideration so as to prevent the imposition of any liability by reason of the continued ownership thereof; P. To elect the mode of distribution of the proceeds from any profit- sharing plan, pension plan, employee benefit plan, individual retirement plan, insurance contract, or annuity contract pursuant to the terms of such plan or to change to another custodian of such plan; Q. To conduct any audit, assessment, or investigation with respect to any asset of such trust regarding compliance with any law or regulation having as its object protection of public health, natural resources, or the environment (referred to as "Environmental Laws"); to pay from the assets of such trust to remedy any failure to comply with any Environmental Law (even to the exhaustion of all of the assets of such trust); and, as may be required in my Trustee's judgment by any Environmental Law, to notify any governmental authority of any past, present, or future non-compliance with any Environmental Law; and R. To refuse to accept any asset distributable to such trust. S. No trustee shall directly or indirectly buy or sell any property for the trust from or to himself, or from or to his relative, employer, employee, partner or other business associate. T. No trustee shall as trustee of one trust sell property to himself as trustee of another trust. U. No trustee shall lend trust funds to himself, or to his relative, employer, employee, partner, or other business associate. Section 4.2 - Administrative Powers Except as otherwise provided in this Agreement, my Trustee has the power with respect to each trust: A. To employ agents, attorneys-at-law, consultants, investment advisers (to whom my Trustee has discretion to delegate my Trustee's investment authority and responsibility), other trustees and other fiduciaries in the administration of my Trustee's duties, to delegate to such persons, or to one or more of my Trustees, the custody, control, GJ 000301 CONFIDENTIAL SDNY_GM_00007978 EFTA_00120650 EFTA01252013 or management of any part of the assets of such trust as my Trustee determines and to pay for such services from the assets of such trust, without obtaining judicial authorization or approval; B. To delegate, in whole or in part, to any person or persons the authority and power to (1) sign checks, drafts or orders for the payment or withdrawal of funds, securities and other assets from any bank, brokerage, custody or other account in which funds, securities or other assets of such trust shall be deposited, (2) endorse for sale, transfer or delivery, or sell, transfer or deliver, or purchase or otherwise acquire, any and all property, stocks, stock warrants, stock rights, options, bonds or other securities whatsoever, (3) gain access to any safe deposit box or boxes in which assets of such trust may be located or which may be in the name of my Trustee and remove part or all of the contents of any such safe deposit box or boxes and release and surrender the same, and (4) take any other action that my Trustee may have the power to take with respect to such trust and the property thereof; no person or corporation acting in reliance on any such delegation shall be charged with notice of any revocation or change of such delegation unless such person or corporation receives actual notice thereof; C. To pay any property distributable to a beneficiary under a legal disability or who has not attained the age of 21, without liability to my Trustee, by paying such property (1) to such beneficiary, (2) for the use of such beneficiary, (3) to a legal representative of such beneficiary appointed by a court or if none, to a relative for the use of such beneficiary, or (4) to a custodian for such beneficiary designated by my Trustee to hold until age 21 or such earlier age as shall be the maximum permitted under applicable law; D. To divide such trust into subsidiary accounts if my Trustee determines that such division is necessary to maintain fair and accurate records; E. To permit the beneficiary of such trust to use, possess, and enjoy real property, tangible personal property, or club memberships held by such trust; F. To distribute to such trust or any of the beneficiaries of such trust in kind or in cash, or partly in kind and partly in cash, and to allocate different kinds or disproportionate shares of assets or undivided interests in assets among all of such trusts or all of such beneficiaries; G. In making the division into one or more trusts hereunder (if such trusts have the same Trustee), to keep the assets of such trusts invested and handled as a single fund without actual division and to designate such trusts on my Trustee's books as owning a designated undivided interest in such fund; H. To have evidence of ownership of any security maintained in the records of a Federal Reserve Bank under the Federal Reserve Book Entry System; to deposit funds in any bank or trust company; to carry in the name of my Trustee or the nominee or nominees of the Trustee and with or without designation of fiduciary capacity, or to hold in bearer form, securities or other property requiring or permitting of registration; and to cause any securities to be held by a depository corporation of which a GJ 000302 2657767 I CONFIDENTIAL SDNY_GM_00007979 EFTA_0011 2065 I EFTA01252014  Trustee is a member or by an agent under a safekeeping contract provided, however, the books and records of my Trustee sha that ll at all times show that such investments are of such trust; part I. To register or not register such trust with circuit court of the United States Virgin Isla the probate division of the nds or otherwise and to make all decision which relate thereto; s J. To give any beneficiary of any trust hereun appointment exercisable in such benefic der a general power of iary's Will over all or part of such trust, sub any terms and conditions as my Tru ject to stee determines, by written notice to such to eliminate any such power of appoint beneficiary; ment by written notice to the beneficiary; and to irrevocably release the pow er under this paragraph to give a power of appointment or to eliminate a power of app ointment; K. To renounce and disclaim, in whole or in applicable law, any assets, interests, righ part, and in accordance with ts, or powers (including any power of appointment) which are payable to (or exe rcisable by) such trust or over which my has any right, title, interest, or power; Trustee and L. To make, execute, and deliver any and all such shall be necessary or proper to carry out instruments in writing as any power, right, duty, or obligation of my any disposition whatsoever of such trus Trustee or t or any asset of such trust and to exercise other powers incidental or necessary to carr any and all y out or to fulfill the terms, provisions and of such trust. purposes Section 4.3 - Restrictions on Exercise of My Trustee' s Powers A. Notwithstanding any provision of this a Trustee (other than me) shall not particip Agreement to the contrary, ate in a discretionary decision to exercise not exercise any fiduciary power to (1) dist or ribute income from or principal of any trus hereunder to himself or herself; or (2) t distribute income from or principal of any hereunder for the health, support, mainten trus t ance or education of a beneficiary if such Trustee has a legal obligation to provide for the health, support, maintenance or edu of such beneficiary from such Trustee's pers cation onal assets. For purposes of this paragrap person whose interest in a trust hereunder h, a is limited to a remote contingent interest example, a contingent remainderman (for whose interest depends upon another pers to survive to a specified age or a person des on failing ignated to receive assets only in the event power of appointment is not exercised) sha a ll not be treated as a person who is or beneficiary of such trust. may be a B. A Trustee of any trust hereunder may by the other Trustee (or Trustees) of such trus a written notice delivered to t decline to participate in the decision to exercise or not exercise any fiduciary power granted by this Agreement or by law. C. If a Trustee of any trust hereunder is not conflict of interest, declination to act or othe empowered (because of a rwise) to participate in the decision to exe or not exercise any fiduciary power granted rcise by this Agreement or by law, then the 2657767.1 S CONFIDENTIAL GJ 000303 SDNY_GMJM0TIMO EFTA_00120652 EFTA01252015  remaining Trustee or Trustees of such trust shall be empowere d to make such decision_ if no Trustee is empowered to participate in such decision, then the first successor Trustee of such trust designated in Section 6.1 and able and willing to act shall be empowered to make such decision. If no Trustee or successor Trustee is empowered to participate in such decision, my Trustee may designate a subst itute Trustee to serve as Trustee of such trust who shall be empowered to make such decis ion but has no other power or authority of the Trustee. Such designation shall be by written notice delivered to such substitute Trustee. Article V. Provisions Concerning Trustees Section 5.1 - Successor Trustees Each Trustee acting hereunder shall be authorized to designate his successor as Trustee. Section 5.2 - Appointment of Trustee The appointment of a successor Trustee hereunder shall becom e effective when such successor Trustee signs an acceptance of the trust. Section 5.3 - Resignation of Trustees Any Trustee may resign at any time, without the approval of any instrument in writing filed with the trust records. In addition, court, by an if there is filed with the trust records a written certification from any attending physician of any individual Trustee of a trust (other than me) that he or she is no longer able to make decisi ons with respect to such trust, then from the date of filing of such certification, such individual Truste e shall be deemed to have resigned for all purposes of this Agreement. Section 5.4 - Vacancy in Office If the sole Trustee dies or cannot or will not act as Trustee of any trust hereunder and if no successor Trustee is designated pursuant to Section 5.1 who is willing to act, the legally competent adult beneficiary (or a majority in beneficial intere st of the legally competent adult beneficiaries if there are multiple beneficiaries) then entitled or permitted to receive income from such trust shall designate a successor Trustee by an instrument in writing delivered to the designated Trustee. If the legally competent adult beneficiarie s do not designate a successor Trustee within sixty days after receipt of notice of such vacan cy or if there is no legally competent adult beneficiary of such trust, my Trustee shall design ate a successor Trustee by written notice delivered to the designated Trustee and each adult beneficiary then entitled or permitted to receive income from such trust. If no successor Truste e is designated pursuant to this Section 5.4, then a successor Trustee shall be named by order of a court of competent jurisdiction. All of the fees and expenses of my Trustee (inclu ding attorneys' fees) attributable to the appointment of a successor Trustee of a trust shall be paid from the assets of such trust. 9 2657767.1 CONFIDENTIAL GJ 000304 SDNY_GM_00007981 EFTA_00120653 EFTA01252016  Section 5.5 - Elimination of Bond No bond or other security shall be required of any Trustee hereu jurisdiction. nder in any Section 5.6 - Exculpation of My Trustee My Trustee shall not be accountable or responsible to any person trust hereunder for the manner in which my Truste interested in any e shall in good faith exercise any discretionary authority or power of my Trustee. My Trustee shall not be liable for any loss or depreciation in value occasioned by reason of any negligence, error or mistak e of judgment in entering into any transaction, in making any sale or investment, in continuing to hold any property, or by reason of any action or omission, whether by my Trustee or any other fiduciary, unless my Trustee has acted in bad faith. In the absence of proof by affirmative evidence to the contrary, each Trustee shall be deemed to have acted within the scope of my Truste e's authority, to have exercised reasonable care, diligence, and prudence and to have acted impartially as to all interested persons. A Trustee shall not be liable for the acts or defau lts of another Trustee. Article VI. Miscellaneous Provisions Section 6.1 - Representation of Person Under a Disability To the extent allowed by law, where a party to any proceeding trust hereunder has the same interest as a person under a disabi with respect to any lity, legal process on the person under a disability may be dispensed with. Section 6.2 - Simultaneous Deaths If a beneficiary under this Trust Agreement and I die simul taneously or under such circumstances that it is difficult to determine who died first, then for all purposes of this Agreement such beneficiary shall be deemed to have predeceased me. Section 6.3 - Law Governing This Agreement shall be construed under the laws of the Unite d States Virgin Islands. Each trust hereby created shall in all respects be regula ted by the laws of the jurisdiction in which such trust is situated, from time to time. If the situs of a trust cannot be determined with certainty, then the laws of the United States Virgin Islands shall apply. Notwithstanding anything to the contrary in this Agreement, my Truste e of each trust created under this Agreement has discretion at any time or times to transfer the situs of such trust to such other country, or such other jurisdiction as my Trustee determines, without obtaining judicial authorization or approval (unless such judicial authorizatio n or approval is required by applicable law) and without the filing of any bond. My Trustee's deten nination to transfer the situs of any trust under this Agreement shall be evidenced by an instrument in writing signed, witnessed and acknowledged by my Trustee in the same manner as would be required for a deed. My Trustee is authorized to take whatever actions are necessary to effect a transfer of situs. If judicial authorization or approval is required to effect a transfer of situs, I intend and desire that the 2657767.1 10 CONFIDENTIAL GJ 000305 SDNY_GM_00007982 EFTA_00120654 EFTA01252017  appropriate court accept the detamitic e elm'hakecomenzatillbeitea such trust even if one or more beneficiarie ltettlat lassa' s disagree with sods detenzionties. my Trustee's transfer of the situs of a trus Fro mrid err t pursuant to this Section 63, the administ trust shall be governed by the law of the ration of sxc new situs of such trust. Section 6.4 - Definition of Terms Except as otherwise specifically provided herein, as used in this Agreement, A. The term "Trustee" means all persons or office of Trustee of any trust hereunder entities who occupy the while such persons or entities occupy suc whether one or more persons or enti h office, ties occupy the office of Trustee at the sam times, and includes any successor e time or Trustee or Trustees. The term "Person of a person's estate means all pers al Representative' ons or entities who occupy the office of representative, administrator, executo personal r, or ancillary administrator while such entities occupy such office, whether persons or one or more persons or entities occupy the same time or times, and includes such office at any successor or successors to that offic to a person's Will means such person's e. A reference Last Will and Testament and any Cod thereto. icil or Codicils B. Whenever the singular number is use plural, and the masculine gender sha d, the same shall include the ll include the feminine and neuter gen ders. Section 6.5 - Trustee Notice My Trustee may have duties and respons this Agreement. If my Trustee has que ibilities in addition to those described in stions, my Trustee should obtain legal advice. 2657767. I CONFIDENTIAL GJ 000306 SDNY_GM_00007983 EFTA_00120655 EFTA01252018  aikaaSinS I have duly executed this Agreement on the dams opposite my/gate_ Date signed: y 1.7 2o/ 2. JEF Y E. EPS Date signed: Jalh O. ••• y z7, 2O/L DARREN K. INDYKE, as a T Date Signed: JES STALEY, as a Trustee, and Date signed: