EFTA01117016.pdf

This Agreement made this day of , 2013, between LEON D. BLACK of the State of New York (hereinafter called the "Grantor"), and LEON D. BLACK (hereinafter, along with any other person, bank or trust company qualifying as additional or successor trustees, referred to as the "Trustees"). WITNESSETH: The property transferred to the Trustees hereunder shall be held by the Trustees IN TRUST subject to the following terms and conditions. This trust agreement shall be known as the LB REVOCABLE TRUST AGREEMENT. FIRST: DISPOSITION OF INITIAL TRUST (A) During the life of the Grantor, the Trustees shall pay to the Grantor so much of the income of this trust as the Trustees may deem advisable in their sole and absolute discretion, including such amount as the Trustees may deem advisable to enable the Grantor to pay income taxes. Any income not directed to be paid shall be accumulated by adding such income to the principal of the trust. (B) At any time and from time to time during the life of the Grantor, the Trustees may, in their sole and absolute discretion, pay to him so much of the principal of this trust as the Trustees may deem advisable, including such amount as the Trustees may deem advisable to enable the Grantor to pay income taxes. (C) At any time and from time to time during the life of the Grantor, the Grantor may withdraw from the income and/or principal of this trust so much of the income and/or principal as the Grantor shall direct by instrument in writing signed and delivered to the Trustees during his lifetime. USI:8489098v15 EFTA01117016  (D) At any time and from time to time during the life of the Grantor, the Grantor, by instrument signed and delivered to the Trustees, may direct the Trustees to pay income and/or principal to any individual or entity. Any payment made by the Trustees pursuant to such direction shall be deemed to be a withdrawal by the Grantor followed by a transfer to such individual or entity, it being the Grantor's desire to avoid the multiple re-titling of assets. (E) In addition, during any period in which the Grantor is Incapacitated (as defined in Clause THIRTEENTH), the Independent Trustees (as defined in Clause THIRTEENTH) are authorized to make the following distributions: The Independent Trustees are hereby authorized and empowered to make gifts on the Grantor's behalf of cash or property, either outright or in trust, to or for the benefit of such one or more of (i) the Grantor's wife DEBRA R. BLACK ("DEBRA"), (ii) the Grantor's descendants, (iii) the Grantor's sister JUDY ELLEN BLACK ("JUDY"), (iv) the Grantor's mother SHIRLEY BLACK ("SHIRLEY"), and (v) Qualified Charitable Organizations (as defined in Clause THIRTEENTH), as the Independent Trustees, in their sole, absolute and uncontrolled discretion deem advisable, at any time and from time to time. It is the Grantor's intent to permit the Independent Trustees to make gifts either to continue any pattern of gift-giving that the Grantor may have established, or if the Independent Trustees believe that such gifts will be in the best interests of the Grantor's family, taking into consideration the tax consequences of making or refraining from making such gift. The Trustees are further authorized and empowered to pay any gift or generation-skipping transfer ("GST") taxes that may be payable in connection with any gift made pursuant to this provision. 2 DoeN: USI:8489098v15 EFTA01117017  (2) The Independent Trustees are hereby authorized and empowered to pay on the Grantor's behalf such of the Grantor's enforceable debts as they come due. (F) Upon the death of the Grantor, the remaining trust property shall be disposed of as the Grantor may appoint by his Last Will in favor of any appointee or appointees, including his estate. (G) Upon the death of the Grantor, any remaining trust property which is not effectively appointed pursuant to his testamentary power of appointment, together with any property bequeathed to this trust by the Grantor or added hereto at or by reason of the Grantor's death, shall be disposed of as directed hereinafter under this Agreement. SECOND: PERSONAL PROPERTY/ART DISPOSITION (A) If DEBRA survives the Grantor: If the trust property includes any Individual Collectibles (as defined in Clause THIRTEENTH) or any interest in an Art Entity (as defined in Clause THIRTEENTH), the Grantor directs the Trustees to hold all of the Individual Collectibles, together with all insurance covering the Individual Collectibles, and any such interest in an Art Entity, IN TRUST, in accordance with Clause EIGHTH. (2) If the trust property includes any other articles of personal and household use or ornament, including, without limitation, automobiles, jewelry, furniture and furnishings, the Grantor directs to Trustees to distribute all of the remaining items of personal and household use or ornament, together with all insurance covering those articles, to DEBRA, outright and free of trust. 3 USI:8489098v15 EFTA01117018  (B) If DEBRA does not survive the Grantor and one or more of the Grantor's children survive the Grantor: (1) (a) Subject to the power of appropriation granted in subparagraph (B)(1)(b) of this Clause SECOND, if the trust property includes any Individual Collectibles or any interest in an Art Entity, the Grantor directs the Trustees to distribute the Grantor's Collectibles (as defined in Clause THIRTEENTH), together with all insurance covering the Grantor's Collectibles, to the LEON BLACK FAMILY FOUNDATION (as defined in Clause THIRTEENTH), if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any Qualified Charitable Organizations as are then in existence or as the Trustees shall create after the Grantor's death. (b) The Grantor gives the Trustees the power to appropriate such of the Grantor's Collectibles (together with all insurance covering such Collectibles) as they shall select, in their absolute discretion, and to distribute such selected Collectibles among the Trustees of the Legacy Trusts (as defined in Clause THIRTEENTH) created for the Grantor's descendants. Without imposing any legal obligation, it is the Grantor's wish that the Trustees, in exercising the foregoing power to appropriate, take into account any requests regarding the disposition of such Collectibles as set forth in any writing signed by the Grantor that is in existence at his death. (c) The foregoing power of appropriation shall be exercised, if at all, by acknowledged, written instrument signed at least one day prior 4 DoeN: USI:8489098v15 EFTA01117019 to the expiration of nine (9) months from the date of the Grantor's death, and shall terminate completely if and to the extent it is not validly exercised within such time period. The Grantor confirms that this power of appropriation is intended to be, and shall be treated as, a power described in the flush language following Section 2055(a)(5) of the Code to consume, invade or appropriate property for the benefit of an individual, the complete termination of which before the date prescribed for the filing of the estate tax return for the Grantor's estate shall be considered and deemed to be a qualified disclaimer with the same full force and effect as though a qualified disclaimer of said power had been filed. (d) The Trustees may exercise the foregoing power of appropriation to any extent, or not exercise said power, in their complete discretion. Nevertheless, the Trustees shall be guided by the Grantor's wishes made known to them. Their decision as to whether or not, and the extent to which, to exercise said power shall be final and binding on all persons and entities interested hereunder, and they shall not be liable to any person or entity interested hereunder for any failure to exercise said power. (e) To the extent that the Trustees select any Collectibles that are held by an Art Entity, the Trustees shall instruct the manager of such Art Entity to distribute such Collectible to the Trustees of such Legacy Trust. The Grantor confirms that the Trustees have the further authority to direct the liquidation of any such Art Entity as is necessary in order to effect the disposition of the Collectibles pursuant to this Clause SECOND. 5 DoeN: USI:8489098v15 EFTA01117020  (2) The Arizona Tangibles (as defined in Clause THIRTEENTH) shall pass to SHIRLEY, if she survives the Grantor, or if she does not survive the Grantor, the Arizona Tangibles shall be added to the property disposed of under subparagraph (B)(3) of this Clause SECOND. (3) (a) The remaining articles of personal and household use or ornament, including, without limitation, automobiles, jewelry, furniture and furnishings, together with all insurance covering those articles, shall pass to such of the Grantor's children as survive the Grantor, in shares of substantially equal value, to be divided among them as they agree, or all to the survivor of them if only one of the Grantor's children survives the Grantor. If the Grantor's children fail to agree, the division of such personal property shall be made as the Trustees (other than any child of the Grantor) determine and such determination shall be conclusive and binding on all of the Grantor's children. (b) The Trustees are authorized to sell such of the remaining items of personal and household use or ornament for purposes of division or otherwise to facilitate distributions. (C) The Trustees may pay, and charge as a general administration expense, without apportionment or reimbursement from any beneficiary, the expenses of selling, storing, packing, insuring, and mailing or delivering the tangible personal property hereinabove disposed of. THIRD: RESIDENTIAL PROPERTY (A) If DEBRA survives the Grantor: 6 USI:8489098v15 EFTA01117021  The Trustees shall distribute to DEBRA the Manhattan Apartments (as defined in Clause THIRTEENTH). (2) The Trustees shall hold the balance of the Residential Property (as defined in Clause THIRTEENTH), IN TRUST, in accordance with Clause EIGHTH. (B) If DEBRA does not survive the Grantor: (1) (a) The Trustees shall sell, at Fair Market Value (as defined in Clause THIRTEENTH), the Manhattan Apartments, and the net proceeds of any such sale shall be added to the trust, to be disposed of as a part hereof. (b) The Grantor confirms that the Trustees, in their discretion, may sell the Manhattan Apartments to any one or more of the Grantor's children, the Trustees of the Heritage Trust (as defined in Clause THIRTEENTH) and/or the Trustees of the Legacy Trusts for the benefit of the Grantor's descendants, provided such sale is for Fair Market Value. (c) The Trustees shall pay any such expenses that they deem reasonable in connection with selling the Manhattan Apartments, such as brokerage commissions and legal fees, and/or maintaining the Manhattan Apartments prior to a sale, including, without limitation, monthly maintenance charges, repairs, painting, telephone bills, electricity bills, and advertising costs. (2) The balance of the Residential Property shall be distributed to the Trustees of the Heritage Trust. (C) The foregoing devises and bequests shall be subject to any mortgage or other encumbrance on such Residential Property. 7 USI:8489098v15 EFTA01117022  FOURTH: CASH LEGACIES (A) The Trustees shall pay the sum of Three Million Dollars ($3,000,000) to MELANIE SPINELLA, if she survives the Grantor. (B) (1) The Trustees shall purchase an annuity that shall pay to JUDY the fixed annual sum of Five Hundred Thousand Dollars ($500,000) for the balance of her life. (2) JUDY shall receive the first payment under such annuity no later than the first (P9 anniversary of the Grantor's death. (3) The Trustees shall have discretion in selecting the company issuing the annuity and negotiating the proper terms, including cost, associated with the purchase of the annuity. (4) If the Trustees, in their discretion, determine that the purchase of such an annuity is impractical, the Trustees may make other comparable arrangements for JUDY, including (without limitation) making payments to JUDY during the administration of the Grantor's estate and/or creating and funding a separate trust for JUDY's lifetime that shall provide that, upon JUDY's death, the remaining trust property be paid to the LEON BLACK FAMILY FOUNDATION, if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any Qualified Charitable Organizations as are then in existence or as the Trustees shall create after the Grantor's death. 8 USI:8489098v15 EFTA01117023  (C) (1) If, and only if, DEBRA does not survive the Grantor, the Trustees shall purchase an annuity that shall pay to JON RESSLER ("JON") the fixed annual sum of Five Hundred Thousand Dollars ($500,000) for the balance of his life. (2) JON shall receive the first payment under such annuity no later than the first (PI anniversary of the Grantor's death. (3) The Trustees shall have discretion in selecting the company issuing the annuity and negotiating the proper terms, including cost, associated with the purchase of the annuity. (4) If the Trustees, in their discretion, determine that the purchase of such an annuity is impractical, the Trustees may make other comparable arrangements for JON, including (without limitation) making payments to JON during the administration of the Grantor's estate and/or creating and funding a separate trust for JON's lifetime that shall provide that, upon JON's death, the remaining trust property be paid to the LEON BLACK FAMILY FOUNDATION, if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any Qualified Charitable Organizations as are then in existence or as the Trustees shall create after the Grantor's death. (D) In connection with carrying out the foregoing bequests to JUDY and JON, the following restrictions shall apply: 9 DoeN: USI:8489098v15 EFTA01117024  (1) The arrangements made by the Trustees for each of JUDY and JON shall be finally determined within nine (9) months of the Grantor's death. (2) Any trust established for either JUDY or JON pursuant to the authority granted to the Trustees under paragraphs (B) or (B) of this Clause FOURTH shall not be funded with an amount in excess of the sum of Ten Million Dollars ($10,000,000). (3) The foregoing power of the Trustees to determine how to make payments to JUDY and JON shall be deemed a power of appropriation that shall be exercised by acknowledged, written instrument signed at least one day prior to the expiration of nine (9) months from the date of the Grantor's death. The Grantor confirms that this power of appropriation is intended to be, and shall be treated as, a power described in the flush language following Section 2055(a)(5) of the Code to consume, invade or appropriate property for the benefit of an individual, the complete termination of which before the date prescribed for the filing of the estate tax return for the Grantor's estate shall be considered and deemed to be a qualified disclaimer with the same full force and effect as though a qualified disclaimer of said power had been filed. FIFTH: ESTATE TAX EXEMPTION DISPOSITION (A) If, and only if, DEBRA survives the Grantor and one or more of the Grantor's descendants survive the Grantor, the Trustees shall distribute the Exemption Amount (as defined in Clause THIRTEENTH), together with any other property herein directed to be disposed of as provided in this paragraph, to the Trustees of the Heritage Trust (as defined in Clause THIRTEENTH), to be added to and disposed of 10 Doc#: USI:8489098v15 EFTA01117025 as a part of the principal thereof; provided, however, that to the extent that the Exemption Amount has an inclusion ratio of zero (0) for Federal GST tax purposes, such portion of the Exemption Amount instead shall be distributed to the Trustees of the Black Family 1997 GST Exempt Trust (as defined in Clause THIRTEENTH), to be added to and disposed of as a part of the principal thereof. (B) In allocating cash or other property to the legacy under paragraph (A) of this Clause FIFTH, the Trustees are directed to include therein, to the extent possible, all property or interest in property (or the proceeds of sale or other disposition thereof) in respect of which the Federal marital deduction is not allowable. SIXTH: GST TAX EXEMPTION DISPOSITION (A) If one or more of the Grantor's descendants survive the Grantor, the Grantor directs the Trustees to set aside LB's GST Exemption Amount (as defined in Clause THIRTEENTH), to be disposed of in accordance with the provisions of paragraph (B) of this Clause SIXTH, if DEBRA survives the Grantor, or, if DEBRA does not survive the Grantor, in accordance with the provisions of paragraph (C) of this Clause SIXTH. (B) If DEBRA survives the Grantor, the amount set aside in paragraph (A) of this Clause SIXTH shall be held by the Trustees IN TRUST (the "GST Marital Trust"), as follows: During the life of DEBRA, the Trustees shall pay to her all of the net income of the GST Marital Trust, at least quarter-annually. (2) Upon the death of DEBRA, the remaining GST Marital Trust property shall be disposed of in accordance with the provisions of 11 USI:8489098v15 EFTA01117026 paragraph (C) of this Clause SIXTH if one or more of the Grantor's descendants are then living. If no descendant of the Grantor is then living, the remaining trust property shall be paid to the LEON BLACK FAMILY FOUNDATION, if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any Qualified Charitable Organizations as are then in existence or as the Trustees shall create after DEBRA's death. (C) Any trust property directed to be disposed of in accordance with the provisions of this paragraph (C) shall be distributed to the Trustees of the Black Family 1997 GST Exempt Trust, to be disposed of as a part thereof. SEVENTH: RESIDUARY TRUST FUND The balance of the trust property, real and personal and wherever situated, after payment of debts, expenses and taxes as provided in Clause TENTH, shall be disposed of as follows: (A) If DEBRA survives the Grantor, the balance of the trust property shall be held IN TRUST in accordance with the provisions of Clause EIGHTH hereof. (B) If DEBRA does not survive the Grantor, the balance of the trust property shall be paid to the LEON BLACK FAMILY FOUNDATION, if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any 12 USI:8489098v15 EFTA01117027 Qualified Charitable Organizations as are then in existence or as the Trustees shall create after the Grantor's death. EIGHTH: MARITAL TRUST All trust property set aside for DEBRA and directed to be disposed of under, or in accordance with, this Clause EIGHTH shall be held by the Trustees IN TRUST (the "Marital Trust") in accordance with the following provisions: (A) During the life of DEBRA, the Trustees shall pay to her all of the net income of the Marital Trust, at least quarter-annually. (B) (1) At any time and from time to time during the life of DEBRA, the Trustees, in their sole and absolute discretion, may pay to DEBRA so much of the principal of the Marital Trust as shall not exceed the Principal Invasion Cap (as defined in Clause THIRTEENTH) for any purpose they deem advisable. (2) Notwithstanding the foregoing, the Trustees, in their sole and absolute discretion, may pay to DEBRA so much of the principal of the Marital Trust as the Trustees may deem advisable for DEBRA's medical needs and emergencies, and to satisfy any pledges to Qualified Charitable Organizations that are in existence at the Grantor's death and for which DEBRA is responsible. (C) Upon the death of DEBRA, the remaining Marital Trust property shall be disposed of as follows: (1) If the trust property includes any Individual Collectibles or any interest in an Art Entity: (a) Subject to the power of appropriation granted in subparagraph (C)(1)(b) of this Clause EIGHTH, the Grantor directs the 13 USI:8489098v15 EFTA01117028 Trustees to distribute the Grantor's Collectibles to the LEON BLACK FAMILY FOUNDATION, if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any Qualified Charitable Organizations as are then in existence or as the Trustees shall create after the Grantor's death. (b) The Grantor gives the Trustees of the Marital Trust the power to appropriate such of the Grantor's Collectibles (together with all insurance covering such Collectibles) as they shall select, in their absolute discretion, and to distribute such selected Collectibles among the Trustees of the Legacy Trusts created for the Grantor's descendants. Without imposing any legal obligation, it is the Grantor's wish that the Trustees of the Marital Trust, in exercising the foregoing power to appropriate, take into account any requests regarding the disposition of such Collectibles as set forth in any writing signed by the Grantor that is in existence at his death. (c) The foregoing power of appropriation shall be exercised, if at all, by acknowledged, written instrument signed at least one day prior to the expiration of nine (9) months from the date of DEBRA's death, and shall terminate completely if and to the extent it is not validly exercised within such time period. The Grantor confirms that this power of appropriation is intended to be, and shall be treated as, a power described in the flush language following Section 2055(a)(5) of the Code to consume, invade or appropriate property for the benefit of an individual, the complete termination of which before the date prescribed for the filing of the estate tax return for 14 DoeN: USI:8489098v15 EFTA01117029 DEBRA's estate shall be considered and deemed to be a qualified disclaimer with the same full force and effect as though a qualified disclaimer of said power had been filed. (d) The Trustees of the Marital Trust may exercise the foregoing power of appropriation to any extent, or not exercise said power, in their complete discretion. Nevertheless, the Trustees shall be guided by the Grantor's wishes made known to them. Their decision as to whether or not, and the extent to which, to exercise said power shall be final and binding on all persons and entities interested hereunder, and they shall not be liable to any person or entity interested hereunder for any failure to exercise said power. (e) To the extent that the Trustees of the Marital Trust select any Collectibles that are held by an Art Entity, the Trustees shall instruct the manager of such Art Entity to distribute such Collectible to such Legacy Trust. The Grantor confirms that the Trustees have the further authority to direct the liquidation of any such Art Entity as is necessary in order to effect the disposition of the Collectibles pursuant to this Clause EIGHTH. (2) If the trust property includes any Residential Property, the Residential Property shall be distributed to the Trustees of the Heritage Trust. (3) (a) The Trustees shall purchase an annuity that shall pay to JON the fixed annual sum of Five Hundred Thousand Dollars ($500,000) for the balance of his life. (b) JON shall receive the first payment under such annuity no later than the first (1st) anniversary of DEBRA's death. 15 DoeN: USI:8489098v15 EFTA01117030  (c) The Trustees shall have discretion in selecting the company issuing the annuity and negotiating the proper terms, including cost, associated with the purchase of the annuity. (d) If the Trustees, in their discretion, determine that the purchase of such an annuity is impractical, the Trustees may make other comparable arrangements for JON, including (without limitation) making payments to JON during the administration of the Grantor's estate and/or creating and funding a separate trust for JON's lifetime that shall provide that, upon JON's death, the remaining trust property be paid to the LEON BLACK FAMILY FOUNDATION, if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any Qualified Charitable Organizations as are then in existence or as the Trustees shall create after DEBRA's death. (e) In connection with carrying out the foregoing provision for JON, the following restrictions shall apply: (i) The arrangements made by the Trustees for JON shall be finally determined within nine (9) months of DEBRA's death. (ii) Any trust established for JON pursuant to the authority granted to the Trustees under this subparagraph (C)(3)(d) of this Clause EIGHTH shall not be funded with an amount in excess of the sum of Ten Million Dollars ($10,000,000). 16 USI:8489098v15 EFTA01117031  (f) The foregoing power of the Trustees to determine how to satisfy the payments to JON shall be deemed a power of appropriation that shall be exercised, if at all, by acknowledged, written instrument signed at least one day prior to the expiration of nine (9) months from the date of DEBRA's death. The Grantor confirms that this power of appropriation is intended to be, and shall be treated as, a power described in the flush language following Section 2055(a)(5) of the Code to consume, invade or appropriate property for the benefit of an individual, the complete termination of which before the date prescribed for the filing of the estate tax return for DEBRA's estate shall be considered and deemed to be a qualified disclaimer with the same full force and effect as though a qualified disclaimer of said power had been filed. (4) If one or more of the Grantor's descendant is then living, Debra's GST Exemption Amount (as defined in Clause THIRTEENTH) shall be distributed to the Trustees of the Black Family 1997 GST Exempt Trust, to be disposed of as a part thereof. (5) The balance of the Marital Trust property, after the payment of taxes as provided in paragraph (D) of Clause NINTH, shall be paid to the LEON BLACK FAMILY FOUNDATION, if it is then in existence and is then a Qualified Charitable Organization, or if it not then in existence and then a Qualified Charitable Organization, to such one or more other Qualified Charitable Organizations as the Trustees, in their discretion, shall select, including any Qualified Charitable Organizations as are then in existence or as the Trustees shall create after DEBRA's death. NINTH: MARITAL/CHARITABLE DEDUCTION PROVISIONS 17 USI:8489098v15 EFTA01117032  The following provisions shall apply to the GST Marital Trust created under paragraph (B) of Clause SIXTH and the Marital Trust created under Clause EIGHTH (each a "Marital Trust" and collectively, the "Marital Trusts"): (A) The Grantor confirms that the Grantor's Executors (other than DEBRA) have the absolute discretion to determine whether and to what extent to make an election pursuant to Section 2056(b)(7) of the Code, or any successor thereto, and any similar statute under state law. The Grantor's Executors (other than DEBRA) may determine to make said election or elections with respect to all or any part or none of the Marital Trusts, all in the Executors' complete discretion. The Grantor suggests to his Executors (other than DEBRA) by way of illustration and without limiting such Executors' absolute authority, that the Grantor's Executors consider in making said election not only the Federal and state estate tax consequences for the Grantor's estate but also the Federal and state estate and gift tax consequences for DEBRA which result from said election. The determination of the Grantor's Executors (other than DEBRA) as to whether and to what extent to make said election shall be absolute and conclusive, regardless of the personal interest any Executor may have in the consequences of such election. The Grantor's Executors shall not be held liable, responsible or accountable, in court or otherwise, to any beneficiary, for the consequences of the exercise, the manner of exercise or failure to exercise the power granted under this Clause NINTH. (B) The Grantor directs that any trust principal passing to a Marital Trust which the Grantor's Executors (other than DEBRA) do not elect to qualify for the marital deduction shall be held in a separate trust, apart from the principal of the Marital Trust for which an election is made by the Grantor's Executors to qualify for the 18 DoeN: USI:8489098v15 EFTA01117033 marital deduction. The Grantor further directs that any trust principal passing to a Marital Trust for which the Grantor's Executors (other than DEBRA) elect to qualify for the marital deduction for either state estate tax purposes or Federal estate tax purposes, but not both, also shall be held in a separate trust. All such Marital Trusts shall be administered under paragraph (B) of Clause SIXTH and Clause EIGHTH, as the case may be, in accordance with the terms above set forth. Without imposing any legal obligation upon the Trustees, the Grantor recommends that, in making discretionary principal payments to DEBRA, the Trustees take into account all potential transfer taxes. (C) Notwithstanding anything in this Agreement to the contrary, any power, duty or discretionary authority granted to the Executors of the Grantor's estate or any Trustee hereunder (other than the power to make elections under any tax law) shall be absolutely void to the extent that the right to exercise such power, duty or authority or the exercise thereof would in any way affect, jeopardize or cause the disallowance to the Marital Trusts of all or any part of the tax benefit afforded by the marital deduction provisions of Section 2056 of the Code (to the extent so elected by the Executors of the Grantor's estate). (D) If any part of DEBRA's gross estate for Federal estate tax purposes consists of property which is includible by reason of Section 2044 of the Internal Revenue Code, relating to certain property for which the marital deduction was allowed in the Grantor's estate, the Executor of DEBRA's estate shall be entitled to recover from the Trustees of the Marital Trusts the estate taxes payable by DEBRA's estate by reason of such inclusion, in accordance with the Code and the law of DEBRA's domicile at the time of her death; provided that none of the payments shall be made from 19 USI:8489098v15 EFTA01117034 property of any Marital Trust which is not included in DEBRA's gross estate for Federal estate tax purposes; and provided further, however, that all such taxes, to the extent possible, shall be paid first from the property passing under subparagraph (C)(5) of Clause EIGHTH, thereby preserving (to the extent possible) the GST Marital Trust and the property passing under subparagraphs (C)(1) through (C)(4) of Clause EIGHTH. (E) If DEBRA, pursuant to the authority granted to her under paragraph (A) of Clause FOURTEENTH, at any time directs the Trustees to sell any of the Grantor's Collectibles or any of the Residential Property held by the Marital Trust: (a) The Trustees of Heritage Trust shall have the first option to purchase any of the Residential Property from the Marital Trust at the Fair Market Value (as defined in Clause THIRTEENTH) as determined by the Appraised Value (as defined in Clause THIRTEENTH). The Trustees of the Heritage Trust shall exercise said option to purchase by delivering written notice to the Trustees within thirty (30) days of the Trustees receiving the Appraised Value. (b) If the Trustees of the Heritage Trust fail to exercise the foregoing option to purchase, the Trustees of the Marital Trust, in their discretion, may sell such property to any one or more of the Grantor's children and/or the Trustees of the Legacy Trusts for the benefit of the Grantor's children for the Appraised Value. If more than one of the Grantor's children and/or Trustees of the Legacy Trusts wish to purchase such property, the Trustees of the Marital Trust (other than any child of the Grantor) shall develop a mechanism for resolving any such dispute, which shall be final and binding on all of the Grantor's children and Legacy Trusts. The Grantor's children and/or the Trustees of the Legacy Trust(s) shall exercise said option to purchase 20 USI:8489098v15 EFTA01117035 by delivering written notice to the Trustees of the Marital Trust within thirty (30) days of the lapse of the option granted to the Trustees of the Heritage Trust under subparagraph (E)(1)(a) of this Clause NINTH. (c) If, after the lapse of the foregoing options to purchase any Residential Property under subparagraphs (E)(1)(a) and (E)(1)(b) of this Clause NINTH, the Trustees of the Marital Trust are prepared to accept a bona fide written offer from a third party buyer to purchase a Residential Property for the Decreased Amount (as defined in Clause THIRTEENTH), the Trustees of the Marital Trust shall give prompt written notice of such offer to the Trustees of the Heritage Trust, the Trustees of the Legacy Trusts, and the Grantor's children, which notice further shall include an option to purchase such Residential Property for the Decreased Amount (the "Residence Option Notice"). The Trustees of the Heritage Trust, the Trustees of the Legacy Trusts, and the Grantor's children shall exercise the option to purchase such Residential Property by delivering written notice to the Trustees of the Marital Trust within thirty (30) days of receiving the Residence Option Notice. If more than one of the Trustees of the Heritage Trust, the Trustees of the Legacy Trusts, and the Grantor's children wish to purchase a Residential Property for the Decreased Amount, (i) the Trustees of the Heritage Trust shall have first priority in making such purchase, and (ii) with respect to any multiple offers to purchase by the Trustees of the Legacy Trusts and/or the Grantor's children, the Trustees of the Marital Trust (other than any child of the Grantor) shall develop a mechanism for resolving any such dispute, which shall be final and binding on all of the Grantor's children and the Trustees of the Legacy Trusts. 21 USI:8489098v15 EFTA01117036  (2) (a) The Grantor's children and the Trustees of the Legacy Trusts for the benefit of the Grantor's children shall have the first option to purchase any of the Grantor's Collectibles from the Marital Trust at the Fair Market Value as determined by the Appraised Value. The Grantor's children and the Trustees of the Legacy Trusts for the benefit of the Grantor's children shall exercise said option to purchase by delivering written notice to the Trustees of the Marital Trust within thirty (30) days of the Trustees receiving the Appraised Value. If more than one of the Grantor's children and the Trustees of the Legacy Trusts wish to purchase a Collectible, the Trustees of the Marital Trust (other than any child of the Grantor) shall develop a mechanism for resolving any such dispute, which shall be final and binding on all of the Grantor's children and the Trustees of the Legacy Trusts. Without imposing any legal obligation, it is the Grantor's wish that the Trustees of the Marital Trust, in developing such mechanism, take into account any requests regarding the disposition of such Collectibles as set forth in any writing signed by the Grantor that is in existence at his death. (b) If, after the lapse of the foregoing option to purchase a Collectible under subparagraph (E)(2)(a) of this Clause NINTH, the Trustees of the Marital Trust are prepared to accept a bona fide written offer from a third party buyer to purchase such Collectible for the Decreased Amount, the Trustees of the Marital Trust shall give prompt written notice of such offer to the Grantor's children and the Trustees of the Legacy Trusts, which notice further shall include an option to purchase such Collectible for the Decreased Amount (the "Collectible Option Notice"). The Grantor's children and/or Trustees of the Legacy Trusts shall exercise the option to 22 DoeN: USI:8489098v15 EFTA01117037 purchase such Collectible by delivering written notice to the Trustees of the Marital Trust within thirty (30) days of receiving the Collectible Option Notice. If more than one of the Grantor's children and/or Trustees of the Legacy Trusts wish to purchase a Residential Property for the Decreased Amount, the Trustees of the Marital Trust (other than any child of the Grantor) shall develop a mechanism for resolving any such dispute, which shall be final and binding on all of the Grantor's children and the Trustees of the Legacy Trusts. (F) The Grantor confirms that the Trustees acting hereunder and the Executors of the Grantor's estate may engage in transactions with respect to the property directed to be disposed of pursuant to the provisions herein so long as such transactions comply with the exception to the indirect self-dealing rules for private foundations that is provided under Treasury Regulation Section 53.4941(d)-1(b)(3). TENTH: DEBTS. EXPENSES AND DEATH TAXES Following the Grantor's death, the Trustees shall make the following payments when directed to do so by the Executors of the Grantor's estate by written instrument delivered to the Trustees: (A) The Trustees shall pay all funeral expenses, claims against the Grantor's estate, debts and expenses of administration which are due and payable and approved for payment by the Executor of the Grantor's estate. All such payments shall be made without requiring reimbursement from any person and without apportionment. (B) Except as otherwise provided in the Grantor's Will, the Trustees shall pay all inheritance, succession, transfer and estate taxes (including foreign 23 USI:8489098v15 EFTA01117038 taxes and any interest and penalties) payable by reason of the death of the Grantor in respect of (i) property passing under this Agreement, (ii) property passing under the Grantor's Last Will, (iii) any gift tax included in the Grantor's gross estate under applicable local law that was paid by the Grantor or by the Grantor's estate or the trust hereunder with respect to gifts made by the Grantor (or by the Grantor's spouse) during the three-year period ending on the date of the Grantor's death, (iv) any contributions to qualified state tuition programs included in the Grantor's gross estate under Section 529(c) of the Code and (v) any property includible in the Grantor's gross estate by reason of Section 2044 of the Code (or any similar statute under state law relating to certain property for which the marital deduction was previously allowed) which has an inclusion ratio of zero for GST tax purposes, as follows: (1) If DEBRA survives the Grantor: (a) All such taxes, other than state estate taxes that are allowed as deductions in computing the Federal estate tax for the Grantor's estate, shall be paid out of the property set aside under Clause FIFTH, without apportionment or reimbursement from any beneficiary. If such sum is insufficient, the balance of such taxes shall be paid as a general administration expense out of the residue of the initial trust passing under Clause SEVENTH without apportionment or reimbursement from any beneficiary. (b) The Grantor confirms that if DEBRA survives the Grantor, any state estate taxes that are allowed as deductions in computing the Federal estate tax shall be paid as general administration expenses out of the property passing under subparagraph (A)(1) of Clause SEVENTH. 24 USI:8489098v15 EFTA01117039  (2) If DEBRA does not survive the Grantor, such taxes shall be paid out of the residue of the initial trust passing under Clause SEVENTH as if such taxes were expenses of administration, without apportionment or reimbursement from any beneficiary. (3) The Grantor confirms his understanding that the foregoing directions will reduce the estate tax charitable deduction available to his and DEBRA's estates under Section 2055(a) of the Code, thereby increasing the resulting estate tax (further reducing the charitable deduction). (C) Except as otherwise provided in the Grantor's Will, all inheritance, succession, transfer and estate taxes that are payable by reason of the Grantor's death with respect to property passing outside the Grantor's Will, other than (i) property passing under this Agreement (ii) any contributions to qualified state tuition programs included in the Grantor's gross estate under Section 529(c) of the Code and (iii) any property includible in the Grantor's gross estate by reason of Section 2044 of the Code (or any similar statute under state law relating to certain property for which the marital deduction was previously allowed) which has an inclusion ratio of zero for GST tax purposes, shall be charged to and apportioned in accordance with New York law. (D) Any GST tax on direc