EFTA00587181.pdf

TABLE OF CONTENTS FIRST: DISCRETIONARY TRUST 1 SECOND: SEPARATE TRUSTS FOR DESCENDANTS 2 THIRD: MARITAL TRUST 5 FOURTH: GUIDELINES AND LIMITATIONS 7 FIFTH: POWERS OF APPOINTMENT 14 SIXTH: RULE AGAINST PERPETUITIES AND ULTIMATE BENEFICIARIES 16 SEVENTH: POWER TO ACQUIRE 18 EIGHTH: TRUSTEE PROVISIONS 19 NINTH: TRUSTEE POWERS 26 TENTH: ACCOUNTING 35 ELEVENTH: TRUST ADDITIONS 36 TWELFTH: IRREVOCABILITY 36 THIRTEENTH: DEFINITIONS 37 FOURTEENTH: SITUS/GOVERNING LAW 39 FIFTEENTH: PROVISIONS FOR MINORS 40 SIXTEENTH: TRUSTEE EXCULPATION AND EXONERATION 41 SEVENTEENTH: COUNTERPARTS AND EFFECTIVE DATE 43 EFTA00587181  DECLARATION OF TRUST made as of the day of 2015 by BARRY J. COHEN and JOHN J. HANNAN (hereinafter along with any other person, bank or trust company qualifying as additional or successor trustees, referred to as the "Trustees"). WITNESSETH: This Declaration shall be known as the APO-01 DECLARATION. The Trustees agree to hold any property that they receive IN TRUST in accordance with the provisions of this Declaration. Unless otherwise directed herein, or in the documentation directing property to be held in trust under this Declaration, the Trustees shall hold any such property in accordance with Clause FIRST. FIRST: DISCRETIONARY TRUST All trust property directed to be disposed of under, or in accordance with, this Clause FIRST shall be held by the Trustees IN TRUST (the "Discretionary Trust") in accordance with the following provisions: (A) The Trustees shall pay so much of the income of the Discretionary Trust as the Trustees may deem advisable from time to time, in equal or unequal shares, to or for the use or benefit of one or more of DEBRA (as defined in Clause THIRTEENTH) and the descendants of LEON (as defined in Clause THIRTEENTH) living from time to time, in the Trustees' sole and absolute discretion. Any income not directed to be paid for any year of the Discretionary Trust shall be accumulated by adding such income to the principal of the Discretionary Trust. (B) At any time and from time to time, the Trustees may pay so much of the principal of the Discretionary Trust, in equal or unequal shares, to or for the EFTA00587182 Dorn: USI: I032SSII v3 use or benefit of one or more of DEBRA and the descendants of LEON living from time to time, in the Trustees' sole and absolute discretion. (C) In lieu of making a distribution of income and/or principal directly to one or more of the descendants of LEON, as beneficiaries of the Discretionary Trust, the Trustees may direct that such income and/or principal so distributed be identified by the name of a particular descendant and (i) disposed of under Clause SECOND, or (ii) paid to the Trustees of any "Other Trust" as authorized by paragraph (D) of Clause FOURTH. (D) Unless sooner terminated pursuant to the foregoing provisions of this Clause FIRST, the Discretionary Trust shall terminate upon the earlier to occur of (i) the death of DEBRA and all of the descendants of LEON, and (ii) the expiration of the period set forth in paragraph (A) of Clause SIXTH. Upon the termination of the Discretionary Trust, the remaining trust property shall be divided, per stirpes, for the then living descendants of LEON, and each such share so resulting shall be held in trust for the beneficiary for whom such share was set apart in accordance with the trust provisions of Clause SECOND. If no such descendant is then living, the remaining trust property shall pass as directed in paragraph (B) of Clause SIXTH. SECOND: SEPARATE TRUSTS FOR DESCENDANTS All trust property directed to be held IN TRUST for a descendant of LEON under or in accordance with this Clause SECOND shall be held in a separate trust (a "Separate Trust") for the benefit of the descendant for whom such property was set aside (each such descendant herein referred to as the "Beneficiary" with respect to his or her Separate Trust), in accordance with the following provisions: 2 EFTA00587183 Dorn: USI: I032SSII v3 (A) The Trustees shall pay to or apply for the use or benefit of the Beneficiary and his or her descendants so much, including all, of the income of his or her Separate Trust as the Trustees, in the Trustees' sole and absolute discretion, may deem advisable from time to time. Any income of the Separate Trust not directed to be paid for any year of the trust shall be accumulated by adding such income to the principal of the Separate Trust. (B) The Trustees may, in the Trustees' sole and absolute discretion, pay to or apply for the use or benefit of the Beneficiary and his or her descendants so much, including all, of the principal of his or her Separate Trust as the Trustees may deem advisable. (C) Upon the death of the Beneficiary, the remaining property of his or her Separate Trust shall be disposed of as the Beneficiary may appoint by his or her last Will duly admitted to probate, in favor of any one or more of LEON's descendants; provided, however, that subject to the provisions of paragraph (D) of Clause FIFTH, the Beneficiary may not appoint any such property in favor of himself or herself, his or her estate, his or her creditors or the creditors of his or her estate. Any trust property not effectively appointed by the Beneficiary pursuant to this paragraph shall be divided, per stirpes, for the Beneficiary's then living descendants, or, if the Beneficiary has no then living descendants, per stirpes, for the then living descendants of the Beneficiary's nearest ancestor who is either LEON or a descendant of LEON, and who has then living descendants, or if there be no such descendants, such property shall be divided, per stirpes, for the then living descendants of LEON; provided, however, each share set aside hereunder (other than by exercise of a power of appointment) for a 3 EFTA00587184 Dorn: USI: I032SSII v3 descendant of LEON shall not vest in or be distributed to such descendant, but instead shall be held in a Separate Trust for such descendant in accordance with this Clause SECOND or if a Separate Trust shall already be in existence for such descendant under this Clause SECOND, such share shall be added to such Separate Trust. If no descendant of LEON is then living, the property shall pass as directed in paragraph (B) of Clause SIXTH. (D) Except as set forth in paragraph (E) of Clause FOURTH and paragraph (D) of Clause FIFTH, all trust principal set aside for a descendant of LEON and directed to be disposed of under or in accordance with this Clause SECOND shall be held in a single Separate Trust for such descendant so that there shall be only one Separate Trust for such descendant under this Clause SECOND. (E) The Trustees, in the Trustees' sole and absolute discretion, are further authorized and empowered to retain the trusts under this Clause SECOND in one fund for the purpose of investment and reinvestment, crediting each trust with its proportionate share of income, profits and appreciation in value, and charging each trust with its proportionate share of expenses, losses and diminution in value. This provision is solely for the purpose of convenience in administration and nothing contained herein shall destroy the individual character of any trust or prevent the release of principal funds upon the termination in whole or in part of any trust or the making of discretionary payments from the income and/or principal of such trust. 4 EFTA00587185 Dorn: USI: I032SSII v3 THIRD: MARITAL TRUST Any property directed to be held in a separate trust created under this Clause THIRD for DEBRA (the "Marital Trust") shall be disposed of in accordance with the following provisions: (A) During the life of DEBRA, the Trustees shall pay to her all of the income of the Marital Trust, at least quarter-annually. (B) At any time and from time to time during the life of DEBRA, the Trustees shall pay to or for the benefit of DEBRA so much, including all, of the principal of the Marital Trust as the Trustees may deem advisable for her medical needs and emergencies. (C) Upon the death of DEBRA, the remaining principal of the Marital Trust shall be disposed of in accordance with Clause FIRST of this Agreement, or, if no descendant of LEON is then living, in accordance with paragraph (B) of Clause SIXTH of this Agreement. (D) LEON's Executors 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. LEON's Executors may determine to make said election or elections with respect to all or any part or none of the Marital Trust created under this Clause, all in the Executors' complete discretion. By way of illustration and without limiting such Executors' absolute authority, LEON's Executors may consider in making said election not only the Federal and state estate tax consequences for LEON's estate but also the Federal and state estate and gift tax consequences for DEBRA which result from said election. The 5 EFTA00587186 Dorn: USI: I032SSII v3 determination of LEON's Executors as to whether and to what extent to make said election shall be absolute and conclusive, regardless of the personal interest any such Executor may have in the consequences of such election. LEON'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 confirmed in this Clause. (1) Any trust principal passing under this Clause which LEON's Executors do not elect to qualify for the marital deduction shall be held in a separate trust, apart from the principal of the trust under this Clause for which an election is made by LEON's Executors to qualify for the marital deduction. Any trust principal passing under this Clause which LEON's Executors 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 trusts shall be administered under this Clause in accordance with the terms above set forth. In making discretionary principal payments to DEBRA pursuant to paragraph (B) of this Clause, the Trustees may take into account all potential transfer taxes. (2) Notwithstanding anything in this Agreement to the contrary: (a) any power, duty or discretionary authority granted to 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 any trust created under this Clause 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 6 EFTA00587187 Dorn: USI: I032SSII v3 LEON's estate), and (b) in the event that any property not productive of income shall be held in any Marital Trust under this Clause, upon DEBRA's written request, the Trustees shall make such property productive of income or shall convert such property to income producing property within a reasonable period of time. (3) If any part of DEBRA's gross estate for Federal tax purposes consists of property which is includible by reason of Section 2044 of the Code, relating to certain property for which the marital deduction was allowed in LEON's estate, the Executors of DEBRA's estate shall be entitled to recover from the Trustees of the Marital Trust created under this Clause 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 property which is not included in DEBRA's gross estate for Federal estate tax purposes. FOURTH: GUIDELINES AND LIMITATIONS (A) (1) After taking into account the provisions of paragraph (B) of Clause THIRD and paragraph (C) of this Clause FOURTH, in exercising the discretionary powers granted to the Trustees to pay principal under any trust created hereunder, the Trustees shall have absolute discretion and plenary power to pay principal for any reason or purpose whatever, even to the extent of terminating a trust by paying all of the principal at any one time. In paying principal, the Trustees need not consider the other resources that may be available from any source to the beneficiary and may pay principal without regard to the need of the beneficiary therefor. By way of illustration and without limiting the Trustees' plenary powers, principal may be paid in the Trustees' discretion not only to enable a beneficiary to meet the expenses of 7 EFTA00587188 Dorn: USI: I032SSII v3 emergencies or illness or medical, dental or nursing care, but also to make up deficiencies in income caused by inflation or changes in the beneficiary's cost or style of living; because of the burdens of income or estate or gift or generation-skipping transfer ("GST") taxation or changes in the tax laws; to enable a beneficiary to obtain the best possible education (including graduate and professional training), to take advantage of a business, professional or investment opportunity, to assume and meet family responsibilities, travel, acquire a dwelling (including a seasonal dwelling or a cooperative apartment), or for any other reason whatsoever that the Trustees may have at any time. The interest of the remaindermen shall be secondary and subordinate to the well-being of the income beneficiary or beneficiaries. The judgment of the Trustees as to whether, when and to what extent to pay principal of any trust shall be absolute and conclusive and no court shall have power under any statute to direct payment of principal to any beneficiary or any creditor of a beneficiary. (B) In exercising the discretionary powers granted to the Trustees with respect to the Discretionary Trust and each Separate Trust, after taking into account the provisions of paragraph (C) of this Clause FOURTH, in determining whether to pay or accumulate income, the Trustees may pay income for any reason or purpose, and the Trustees need not consider the other resources that may be available from any source to a beneficiary. The Trustees may at any time, in their sole and absolute discretion, pay income and/or principal to any one of the eligible beneficiaries, exclusively, or to any two or more of such beneficiaries in equal or unequal shares, without regard to any prior payments that may have been made by the Trustees. The 8 EFTA00587189 Dorn: USI: I032SSII v3 determinations of the Trustees as to what extent and to whom to pay (or not pay) income and principal at any time shall be conclusive. (C) In exercising the discretionary powers to pay income and/or principal to a beneficiary of the Discretionary Trust or a Separate Trust, in addition to any other factors the Trustees deem appropriate, the Trustees may consider the following factors: (1) Whether the beneficiary has taken appropriate steps to educate and familiarize himself or herself regarding financial matters, asset management and estate planning, and whether the beneficiary has reasonable access to competent professional advisors. (2) Whether there is a Pending Matrimonial Action (as defined in Clause THIRTEENTH) or Marital Discord (as defined in Clause THIRTEENTH) with respect to the beneficiary. (3) The extent to which the beneficiary is indebted to creditors, including former spouses, or otherwise involved in any litigation. (4) Whether the beneficiary is suffering from a psychological or medical condition that may impair the beneficiary's emotional stability, regardless of whether the beneficiary is seeking any treatment, either inpatient or outpatient. The Trustees may consult with medical personnel as necessary to make the determination. (5) Whether the beneficiary will use the distributed funds to perpetuate a drug or alcohol problem or other negative addictive activities, such as gambling. 9 EFTA00587190 Dorn: USI: I032SSII v3 (D) Subject to paragraph (A) of Clause SIXTH, the Independent Trustees who may participate in decisions with respect to distributions from a trust created under any provision of this Declaration (the "Original Trust") are specifically authorized, in lieu of distributing income and/or principal to a beneficiary or beneficiaries of the Original Trust (the "Initial Class"), to pay, for any reason or purpose whatsoever, so much, including all, of such income and/or principal to one or more existing trusts or new trusts to be created or established by any person (including the Trustees) at any time, whether with the Trustees of the Original Trust or other trustees, for such beneficiary or beneficiaries (an "Other Trust"), in such amounts or proportions, even to the exclusion of one or more current or contingent beneficiaries of the Original Trust, as said Independent Trustees, with absolute discretion, deem advisable, without notice to current or contingent beneficiaries of the Original Trust and without court filings of any kind; provided, however, no share of principal from an Original Trust with an inclusion ratio (as defined in Section 2642(a)(1) of the Code) of greater than zero shall be added to an Other Trust with an inclusion ratio of zero. Notwithstanding the foregoing, (i) no portion of any Original Trust created for the benefit of DEBRA under Clause THIRD may be paid to any Other Trust and (ii) no portion of any Original Trust that would be a "qualified subchapter S trust" (as defined in Section 1361(d)(3) of the Code) or an "electing small business trust" (as defined in Section 1361(e)(1) of the Code) from and forever after the time, if any, that such Original Trust first holds or is first entitled to receive shares of stock of an S corporation (as defined in Section 1361(a) of the Code) may be paid to an Other Trust unless such Other Trust also qualifies as a qualified subchapter S trust or an electing small business trust. Such Other Trust (i) may 10 EFTA00587191 Dorn: USI: I032SSII v3 include a provision granting a power of appointment to a beneficiary of the Original Trust, which power may be in favor of a broader or more limited class of permissible appointees than any such power granted to such beneficiary under the Original Trust, and (ii) may permit the payment of income and/or principal to beneficiaries who are not members of the Initial Class but only after the death of the last survivor of the members of the Initial Class. (E) The Trustees are directed to divide property in any trust under this Declaration with an inclusion ratio, as defined in Section 2642(a)(1) of the Code of neither one nor zero into two separate trusts representing two fractional shares of the property being divided, one to have an inclusion ratio of one (the "nonexempt trust") and the other to have an inclusion ratio of zero (the "exempt trust"). Any such separate trust shall have provisions identical to the trust so divided. (1) Without in any way limiting the authority and discretion granted to the Trustees by any other provision of this Declaration, in exercising the discretionary powers granted to the Trustees to pay principal to a beneficiary from each such separate trust, the Trustees may pay principal to such beneficiary exclusively from one of such separate trusts or in equal or unequal shares from both of such separate trusts, without regard to any prior distributions that have been made by the Trustees from such trust, even to the extent of terminating either or both of such separate trusts. (2) No share of principal of any trust with an inclusion ratio (as defined in Section 2642(a)(1) of the Code) greater than zero which is directed to be continued in trust at the death of a beneficiary shall be added to a trust with an inclusion ratio of zero. 11 EFTA00587192 Dorn: USI: I032SSII v3 (F) The 2004-64 Trustees (as defined in Clause THIRTEENTH) shall have the power (but not the obligation), in their sole and absolute discretion, to pay to the United States Treasury and any state or local taxing authority, such amounts as LEON or the legal representatives of LEON shall certify as being required to discharge LEON's tax liability (including but not limited to Federal, state or otherwise) in respect of income realized by the trust and not distributed to LEON. No payment under this paragraph shall exceed the difference between (i) LEON's Federal and state income tax liability and (ii) LEON's Federal and state income tax liability computed as if the trust is not a grantor trust under Sections 671 et. seq. of the Code. The Trustees confirm that there is no understanding or pre-existing arrangement, express or implied, between LEON and the 2004-64 Trustees regarding the 2004-64 Trustees' exercise of discretion pursuant to this paragraph or Section 7-1.11 of the New York Estates, Powers and Trusts Law. The provisions of this paragraph are intended to come within the safe harbor provisions of Revenue Ruling 2004-64. Accordingly, the discretionary authority granted to the 2004-64 Trustees under this paragraph and under New York law should not cause the value of the trust assets to be includible in LEON's gross estate. No court shall have power under any statute to direct payment under this paragraph. Notwithstanding the foregoing provisions of this paragraph, the 2004-64 Trustees may at any time and from time to time release the power granted under this paragraph. Such release may be for a limited period or under stated conditions or indefinitely. (G) Notwithstanding any other provision of this Declaration: 12 EFTA00587193 Dorn: USI: I032SSII v3 (1) No Trustee hereunder shall have any power or discretion, or be deemed to be a Trustee, with respect to payments, applications or allotments of income or principal to or for the use or benefit of any person whom such Trustee, in his or her individual capacity, is legally obligated to support, if such payment, application or allotment would constitute the discharge of any part of such Trustee's legal support obligation. (2) Discretionary powers granted to the Trustees hereunder with respect to payments, applications or allotments of the income and/or principal of any trust hereunder ("the trust hereunder") to or for the use or benefit of any beneficiary thereof shall be exercisable solely by the Trustees other than any Trustee (i) who has a current beneficial interest in such trust, (ii) who has a beneficial interest in the remainder of such trust hereunder that would cause the exercise of such power to be treated as a gift by such Trustee for Federal gift tax purposes, (iii) whose disclaimer, in his or her individual capacity, resulted in the funding, in whole or in part, of such trust hereunder, or (iv) who is a permissible beneficiary of the income and/or principal of any other trust, whether created under this Declaration or otherwise ("such other trust"), if any Trustee of such other trust is a permissible beneficiary of the trust hereunder. Notwithstanding the foregoing, if at any time there is no Trustee qualified and acting for the purpose of exercising such discretionary powers other than a Trustee described in (i), (ii), (iii) or (iv) of the preceding sentence, such powers shall nonetheless be exercisable by all the Trustees (subject to any other provision of this Declaration restricting the exercise of such powers), in their discretion, but solely for the support and maintenance 13 EFTA00587194 Dorn: USI: I032SSII v3 of such beneficiary in his or her accustomed standard of living and for his or her health and education. (3) No person who may be serving at any time as a Trustee shall have any right, power, control or incidents of ownership over any insurance policy on such individual's life; if a trust acquires an interest in an insurance policy on the life of a Trustee-beneficiary, the Independent Trustees shall exercise all such rights, powers, control and incidents of ownership over such policy. (H) If any trust owns an interest in a limited liability company, partnership, corporation or other business arrangement, the Trustees shall be bound by the provisions of any operating agreement, partnership agreement, shareholders' agreement or other agreement governing or otherwise effecting such limited liability company, partnership, corporation other business arrangement. FIFTH: POWERS OF APPOINTMENT (A) No testamentary power of appointment granted by the provisions of this Declaration shall be deemed to have been exercised unless the donee of the power specifically identifies the power in his or her Will duly admitted to probate and expressly exercises the power. In the absence of such identification of the power and express exercise, the power of appointment shall not be deemed to be exercised. (B) The donee of any power of appointment may appoint in favor of one beneficiary exclusively, or in favor of two or more beneficiaries in equal or unequal shares. In exercising the power, the donee may appoint outright or in trust and may grant further powers to appoint, but no such further power of appointment may be exercised to postpone the vesting of any interest or to suspend the power of alienation for 14 EFTA00587195 Dorn: USI: I032SSII v3 a period beyond that which is permitted by law as described in paragraph (A) of Clause SIXTH. Appointments in trust shall be administered by such Trustees or Trustee as the donee may designate, subject to the management and investment powers granted by this Declaration or such other and different management and investment powers that the donee may grant; and the donee may direct that an appointed trust shall have a situs outside of New York and shall be governed by the law of the appointed situs. (C) Notwithstanding any provisions to the contrary in this Declaration: No donee of a power of appointment shall have the right to direct the disposition of any trust property consisting of an insurance policy on the life of the donee. (D) Notwithstanding any provisions to the contrary in this Declaration: the Independent Trustees are authorized and empowered to expand the power of appointment granted under Clause SECOND as provided in this paragraph. Such power of appointment, in the sole discretion of the Independent Trustees, may be expanded so that such beneficiary may exercise a testamentary general power of appointment (within the meaning of Section 2041 of the Code) over all or a part of the trust to which the power relates (including a pecuniary sum). The scope of any such expanded power of appointment may be as expansive or limited as the Independent Trustees, in their sole and absolute discretion, may determine. Any power thus expanded may be made exercisable by such beneficiary solely under his or her last Will duly admitted to probate. If the Independent Trustees so expand any such power, the Independent Trustees may revoke such expanded (general) power, may again expand the power after a revocation, and in expanding any power, may make the exercise of such expanded (general) power require the consent of the Independent Trustees then in office. 15 EFTA00587196 Dorn: USI: I032SSII v3 Without limiting the Independent Trustees' absolute discretion hereunder, it is anticipated that the Independent Trustees' authority under this paragraph will be used only if doing so will reduce GST taxes more than it increases estate taxes, and otherwise does not create an adverse result for the beneficiary's estate. If a power over a portion of any such trust is expanded, such trust shall be divided into corresponding fractional shares constituting separate trusts of which one shall be subject to the expanded (general) power and the other not. The Independent Trustees are authorized to release irrevocably the right to expand a power of appointment or revoke an expanded (general) power of appointment and consent to the exercise of an expanded power by an acknowledged instrument in writing. Nothing herein shall be construed as requiring the Independent Trustees to expand the power of appointment granted to the beneficiary so he or she has a general power of appointment. In the event that the Independent Trustees expand any such power of appointment so that such beneficiary may exercise a general power of appointment, that power shall be deemed to have been exercised only if such beneficiary specifically identifies the power in his or her last Will duly admitted to probate and expressly exercises the power, and in the absence of such identification of the power and express exercise, said power of appointment (if any) shall be deemed to be unexercised. Nothing herein shall be construed as granting the Independent Trustees the authority to revoke any special (limited) power of appointment granted to the beneficiary of any trust hereunder. SIXTH: RULE AGAINST PERPETUITIES AND ULTIMATE BENEFICIARIES (A) Notwithstanding any other provision in this Declaration: With respect to each trust created under this Declaration and any Other Trust to which 16 EFTA00587197 Dorn: USI: I032SSII v3 property of any Original Trust is distributed pursuant to paragraph (D) of Clause FOURTH of this Declaration, unless such trust shall earlier terminate pursuant to the provisions governing the disposition of such trust, it shall terminate upon the expiration of twenty-one (21) years after the death of the last survivor of DEBRA, BENJAMIN ELI BLACK, JOSHUA MAX BLACK, ALEXANDER SAMUEL BLACK, and VICTORIA RACHEL BLACK. With respect to any trust created under Clause FIRST, upon such termination the remaining principal of such trust shall pass, per stirpes, to the then living descendants of LEON. With respect to any trust under Clause SECOND, upon such termination the remaining principal of such trust shall pass to the Beneficiary thereof. With respect to any Other Trust, upon such termination the remaining principal of such trust shall be disposed of in accordance with the provisions of the instrument governing such Other Trust. (B) Any property directed to pass in accordance with the provisions of this paragraph (B) of Clause SIXTH shall pass to the LEON BLACK FAMILY FOUNDATION, INC., New York, New York, or its successor(s) (the "Foundation"), if it is then in existence and is then a Qualified Charitable Organization, as defined in Clause THIRTEENTH, or if is 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 upon the termination of the Discretionary Trust. Notwithstanding the foregoing, any funds distributed to the Foundation shall be set aside in a separate account (the "Segregated Fund") over which LEON shall have no powers with respect to investments, distributions or otherwise, so 17 EFTA00587198 Dorn: USI: I032SSII v3 long as LEON is living. The Segregated Fund cannot be used to satisfy pledges or other commitments of the Foundation. Rather, the Segregated Fund must be operated as a distinct fund, without any control by LEON. As such, the Segregated Fund will be analyzed independent from the other funds in the Foundation in satisfying the annual minimum distribution requirements under Section 4942 of the Code. SEVENTH: POWER TO ACQUIRE Except as otherwise provided below, LEON at any time or from time to time may acquire or reacquire any portion of any trust hereunder by substituting therefor other property of an equivalent value, valued on the date of substitution. Notwithstanding any other provision of this Declaration, LEON may exercise this power without the consent of the Trustees. Although this power is exercisable by LEON in a non-fiduciary capacity without the consent of any of the Trustees, the Independent Trustees, if they believe that the property LEON seeks to substitute for trust property is not in fact property of equivalent value, shall seek a determination by a court of competent jurisdiction to assure that the equivalent value requirement of this Clause is satisfied. If no Independent Trustee is then serving, upon the exercise of this power by LEON, the Trustees shall appoint an Independent Trustee in accordance with subparagraph (C)(1) of Clause EIGHTH. Notwithstanding the foregoing, LEON may not exercise his power under this Clause in such a manner that may shift benefits among the trust beneficiaries within the meaning of Revenue Ruling 2008-22 and Revenue Ruling 2011-28, and further may not exercise this power to acquire or reacquire shares of voting stock of a controlled corporation (within the meaning of Section 2036(b) of the Code). LEON may at any time and from time to time release, in whole or in part, the powers 18 EFTA00587199 Dorn: USI: 103266J1v3 retained by him under this Clause SEVENTH with respect to any trust hereunder. Such release may be for a limited period or under stated conditions or indefinitely. Such release shall be made by an instrument in writing signed by LEON and delivered to the Trustees of the trust with respect to which the release applies. EIGHTH: TRUSTEE PROVISIONS (A) (1) BARRY J. COHEN and JOHN J. HANNAN shall serve as Trustees of the Discretionary Trust and each Separate Trust. (2) BARRY J. COHEN and DEBRA R. BLACK shall serve as Trustees of the Marital Trust. (3) Upon LEON's death: (a) DEBRA R. BLACK shall serve as an additional Trustee of the Discretionary Trust. (b) If a Separate Trust has been created for a Beneficiary, such Beneficiary, upon attaining the age of thirty-five (35) years, shall serve as a co-Trustee of his or her Separate Trust. (4) Notwithstanding the foregoing, the acting Trustees of the Discretionary Trust and/or a Separate Trust, pursuant to subparagraph (C)(1) of this Clause, are authorized to appoint (i) one or more children of LEON to serve as additional Trustees of the Discretionary Trust, and (i) a child of LEON to serve as an additional Trustee of his or her Separate Trust, at such earlier time as they deem advisable, whether during LEON's life or after his death. (B) With respect to the Marital Trust, if BARRY J. COHEN ceases to serve as Trustee, JOHN J. HANNAN shall serve as Trustee in his place. 19 EFTA00587200 Dorn: USI: I032SSII v3 (C) (1) Subject to the successor named in paragraph (B) of this Clause, each individual serving from time to time as a Trustee (including each individual who may be appointed pursuant to this paragraph) may appoint any person (other than LEON or any donor to the trust) or bank or trust company to serve as his or her successor Trustee of any trust. In addition, the individual or individuals serving at any time as Trustees, acting unanimously if more than one is serving, may appoint any person (other than LEON or any donor to the trust) or bank or trust company to serve as an additional Trustee. Appointments shall be by instrument filed with the Trustees then in office. Notwithstanding the foregoing: No more than eight (8) Trustees of the Discretionary Trust and no more than five (5) Trustees of any Separate Trust or the Marital Trust shall serve at any time; no appointment of a bank or trust company shall be effective if a corporate fiduciary is already serving as a Trustee; and there always must be act least one (1) Independent Trustee in office. (2) If a vacancy in the office of Trustee occurs which is not filled in accordance with the preceding provisions of this paragraph (C) of this Clause, such individual (other than LEON or any donor to the trust), or bank, or trust company (or such series of individuals, or banks, or trust companies) shall become Trustee as is or was designated (i) by LEON, or, if he is not living or is unable to make and has not theretofore made such designation, (ii) by a majority of the adult current permissible beneficiaries of such trust, or, if no beneficiary is an adult, (iii) by a majority of the guardians of any minor beneficiaries then living; provided, however, that such designation by LEON under this paragraph shall only be effective so long as the 20 EFTA00587201 Dorn: USI: I032SSII v3 designated successor Trustee is not related or subordinate to LEON within the meaning of Section 672(c) of the Code. (D) Any designation made under the provisions of paragraphs (C) or (Q) of this Clause shall be made by a signed instrument mailed or delivered to any Trustee hereunder or to the Trustee designated therein. At any time before any such designation becomes effective, it may be revoked in similar manner by the individual or individuals who made it. Any designation hereunder shall become effective at the time specified in the instrument of designation. (E) No Trustee, including any who is appointed under the provisions of this Clause, and regardless of the State of residence of such Trustee, shall be required to give any bond or other security for any purpose in any jurisdiction, including any bond that would otherwise be required for the return of any commissions of a Trustee. (F) Any Trustee of any trust may resign, by instrument in writing filed with the other Trustees then in office or if no co-Trustee be in office, to the Trustee who succeeds such resigning Trustee pursuant to the foregoing provisions of this Declaration. (G) (1) Except as otherwise provided in this Declaration, decisions of the Trustees of each trust hereunder shall be made by majority vote of the Trustees of such trust (or by unanimous vote if only two Trustees are acting). (2) With respect to the Discretionary Trust, so long as two (2) or more children of LEON are acting as Trustees, the children of LEON who are then acting as Trustees, collectively, shall be deemed to have two (2) votes (so that each 21 EFTA00587202 Dorn: USI: I032SSII v3 such child individually may exercise an equal fractional portion thereof) with regard to all decisions and actions that they, as Trustees of the Discretionary Trust, are authorized to undertake pursuant to the terms of this Declaration. If at any time only one child of LEON is acting as a Trustee of the Discretionary Trust, such child shall have one (1) vote with regard to all decisions and actions that such child, as Trustee of the Discretionary Trust, is authorized to undertake pursuant to the terms of this Declaration. (H) Any Trustee may, by revocable power of attorney, delegate to one or more of the co-Trustees then in office the full exercise of all or any powers granted by any provision of this Declaration to the Trustees, provided, however, that no discretionary power may be delegated to a Trustee who is specifically precluded by law or by the provisions of this Declaration from participating in the exercise of such power. (I) All management and investment powers shall remain exercisable until distribution of every trust has been completed. (J) The Trustees, by written unanimous consent if more than one Trustee is serving, may authorize any individual, including, but not limited, to any of the Trustees serving at any time, to perform ministerial acts on behalf of any trust created hereunder once the Trustees have reached a decision, including signing checks or instruments of transfer or giving instructions for the purchase or sale of securities or performing other ministerial acts on behalf of all of the Trustees. (K) The account of a resigning Trustee and the account of a deceased Trustee may be settled by the other Trustees then in office, or if no co-Trustee be in office, then by the Trustee who may succeed such resigning Trustee pursuant to the foregoing provisions of this Declaration. 22 EFTA00587203 Dorn: USI: I032SSII v3 (L) No Trustee shall be required to render in court annual or periodic accounts. (M) Persons dealing with the Trustees need not inquire concerning the validity of anything done by the Trustees or anything the Trustees purport to do or the application of any money paid or property transferred to or upon the order of the Trustees, but may act without further inquiry in accordance with the writings signed by the Trustees. All persons dealing with the Trustees may act on the assumption that a trust is still in existence until they receive actual notice of its termination. a`o Parties dealing with the Trustees may rely upon a copy of this Declaration that is certified by a Notary Public to be a true copy. (O) In any proceeding relating to any trust created under this Declaration, where a party to such proceeding has the same interest as a person under a disability, it shall not be necessary to serve with process the person who is under a disability. (P) The Trustees hereunder may enter into transactions with the Executors of an estate or the Trustees of another trust and purchase or in any other manner acquire property from such estate or such other trust, even though a Trustee hereunder may also be acting as the Executor of such estate or Trustee of such other trust, provided that any such purchase is for full fair market value in money or money's worth. (Q) (1) LEON shall have the power to remove a Trustee, with or without cause, by delivering notice to the Trustee and appointing a successor Trustee; provided, however, that such authority shall be effective if, and only if, LEON appoints a successor Trustee (other than himself) who is not related or subordinate to 23 EFTA00587204 Dorn: USI: I032SSII v3 LEON within the meaning of Section 672(c) of the Code, and such designated successor so qualifies as Trustee. Notwithstanding the foregoing provisions of this paragraph, LEON may not exercise the power to remove a Trustee because of such Trustee's exercise or failure to exercise a power which, if held by LEON, would result in any portion of the trust being included in LEON's gross estate for Federal estate tax purposes. LEON may at any time release the powers granted under this subparagraph (Q)(1). (2) Upon LEON's death, Incapacity (as defined in Clause THIRTEENTH) or release of the power referred to in subparagraph (Q)(I) above, each Beneficiary, upon attaining the age of forty (40) years, shall have the power to remove a Trustee of his or her Separate Trust, with or without cause, by delivering a signed written instrument to the Trustee being so removed and appointing a successor Trustee; provided, however, that such authority shall be effective only if: (i) such Beneficiary appoints a successor Trustee (other than himself) who is not related or subordinate to him or her within the meaning of Section 672(c) of the Code (as amended from time to time) and (ii) such successor qualifies as Trustee. Notwithstanding the foregoing, no Beneficiary shall exercise his or her power to remove a Trustee because of such Trustee's exercise or failure to exercise a power which, if held by such Beneficiary, would result in any portion of the trust being included