EFTA00616851.pdf

AMENDMENT AND RESTATEMENT OF THE BLACK FAMILY 1997 TRUST AGREEMENT Dated: DM US 37283516-2.088835.0011 EFTA00616851  TABLE OF CONTENTS ARTICLE PAGE I : TRUST FUND 4 H : THE BLACK FAMILY 1997 TRUST 4 III : SEPARATE PORTION A TRUSTS FOR ISSUE 5 IV : SEPARATE PORTION B TRUSTS FOR ISSUE 8 V : SPECIAL DISTRIBUTION RULES 15 VI : ADDITIONS 19 VII : TRUSTEES' INVESTMENT AND ADMINISTRATIVE POWERS 20 VIII : RESTRICTIONS ON POWERS 39 IX : IRREVOCABILITY; MODIFICATION 42 X : ACCOUNTING BY TRUSTEES 46 XI : TRUSTEE DESIGNATIONS, RESIGNATIONS, AND REMOVALS 48 XII : ACTION BY TRUSTEES 56 XIII : LIABILITY AND INDEMNITY OF TRUSTEES 57 XIV : ORIGINAL DEFINITIONS 59 XV : 2012 DEFINITIONS AND RULES OF CONSTRUCTION 62 DM US 37283516-2.088835.0011 EFTA00616852  WHEREAS, by trust agreement dated July 30, 1997 by and among LEON D. BLACK, as settlor (the "Settlor"), and DEBRA R. BLACK ("DEBRA"), BARRY J. COHEN ("BARRY"), JOHN J. HANNAN ("JOHN") and RICHARD RESSLER ("RICHARD"), as trustees (the "Original Trust Agreement"), the BLACK FAMILY 1997 TRUST (the "Family Trust") was created; and WHEREAS, by an instrument dated December 28, 2009, the trustees of the Family Trust (1) divided the Family Trust into two separate trusts, one which continues to be known as the BLACK FAMILY 1997 TRUST (the "Non-GST Exempt Trust") and one of which is known as the LEON D. BLACK 2007 GST EXEMPT FAMILY TRUST (the "GST Exempt Trust"), and (2) allocated to (a) the GST Exempt Trust a fraction of the assets held in the Family Trust on the date of this Instrument of Division the numerator of which is TWO MILLION NINE HUNDRED FIFTY-TWO THOUSAND EIGHTY-FIVE (2,952,085) and the denominator of which is the fair market value of the assets held in the Family Trust as of the date of this Instrument of Division and (b) the Non-GST Exempt Trust the balance of the assets of the Family Trust. WHEREAS, DEBRA, BARRY, JOHN and RICHARD are currently the trustees under the Original Trust Agreement, and BARRY, JOHN and RICHARD are currently the Independent Trustees (as defined in the Original Trust Agreement) under the Original Trust Agreement; and WHEREAS, pursuant to article III of the Original Trust Agreement, the Independent Trustees (as defined in the Original Trust Agreement) may amend the Original Trust Agreement at any time while either the Settlor or DEBRA is alive and not under a disability, subject to certain prohibitions set forth in section (B) of article III of the Original Trust Agreement, by written instrument signed by all of the Independent Trustees then serving, which EFTA00616853 amendment shall be effective not earlier than thirty (30) days after the date a copy of the instrument is delivered to the Settlor; and WHEREAS, pursuant to article VII(B) of the Original Trust Agreement, the Trustees may change the situs of administration and governing law of any trust held under the Original Trust Agreement from one jurisdiction to another; and WHEREAS, pursuant to article XII(A) of the Original Trust Agreement, at any time or from time to time the Settlor may designate additional and/or successor trustees under the Original Trust Agreement; and WHEREAS, pursuant to article XII(H) of the Original Trust Agreement, before taking office each person other than an original trustee shall accept the terms of the Original Trust Agreement and shall agree to act as trustee under the Original Trust Agreement by signing a written instrument to that effect; and WHEREAS, the Settlor and DEBRA are alive and not under a disability; and WHEREAS, the Trustees would like to change the situs of administration of the law governing all trusts under the Original Trust Agreement other than the GST Exempt Trust from New York to Delaware; and WHEREAS, the Independent Trustees now would like to amend the Original Trust Agreement in certain respects as it pertains to the Non-GST Exempt Trust and restate in this one instrument the Original Trust Agreement as it pertains to the Non-GST Exempt Trust; and WHEREAS, the desired amendments to the Original Trust Agreement are not prohibited by section (B) of article III of the Original Trust Agreement. WHEREAS, the Settlor would like to designate U.S. TRUST COMPANY OF DELAWARE ("U.S. TRUST") as directed trustee (hereinafter referred to as "Administrative Trustee") of all trusts under the Original Trust Agreement other than the GST Exempt Trust; and 2 DM US 37283516-2.088835.0011 EFTA00616854  WHEREAS, U.S. TRUST, as Administrative Trustee, would like to accept the terms of the Original Trust Agreement and agrees to act as trustee. NOW, THEREFORE, (1) First, the Trustees hereby change the situs of administration of the law governing all trusts under the Original Trust Agreement other than the GST Exempt Trust from New York to Delaware. (2) Second, the Independent Trustees hereby amend and restate the Original Trust Agreement in its entirety as it pertains to the Non-GST Exempt Trust, such amendment and restatement to be effective on the date that occurs thirty (30) days after a copy of this instrument has been delivered to the Settlor. The Amendment and Restatement as set forth in this instrument, and as it may be amended in the future, shall be relied upon by the persons dealing with the trustees and the trusts held hereunder as the sole governing instrument of the BLACK FAMILY 1997 TRUST. (3) Third, the Settlor hereby designates U.S. TRUST COMPANY OF DELAWARE as Administrative Trustee of all trusts under the Original Trust Agreement other than the GST Exempt Trust. (4) Fourth, U.S. TRUST COMPANY OF DELAWARE, as Administrative Trustee, hereby accepts the terms of the Original Trust Agreement and agrees to act as trustee of all trusts under the Original Trust Agreement other than the GST Exempt Trust. (5) Fifth, the Original Trust Agreement shall continue to govern the GST Exempt Trust and DEBRA, BARRY, JOHN and RICHARD shall continue to serve as Trustee of such trust and U.S. TRUST COMPANY OF DELAWARE shall not serve as Administrative Trustee of such trust. 3 DM US 37283516-2.088835.0011 EFTA00616855  I: TRUST FUND The Trustees of the Non-GST Exempt Trust agree to continue to hold the Trust Fund of the Non-GST Exempt Trust in trust and to manage and dispose of such assets in accordance with the provisions of this Trust Agreement. This Trust shall be identified as the "BLACK FAMILY 1997 TRUST," the dispositive provisions of which are set forth in Article II. The Beneficiaries under this Trust Agreement at any particular time are those of the Settlor's spouse and the Settlor's issue who are then living. This Trust Agreement shall be identified as the "BLACK FAMILY 1997 TRUST AGREEMENT." The defmitions of the other terms used in this Trust Agreement are set forth in Article XIV or in Article XV or where they first appear. II: THE BLACK FAMILY 1997 TRUST Following are the dispositive provisions of the "BLACK FAMILY 1997 TRUST': (A) Distributions. (1) The Trustees shall pay or apply as much of the Trust Fund as the Independent Trustees, in their sole discretion, shall determine, to or for the benefit of such one or more of the Beneficiaries (to the exclusion of any one or more of them) and in such amounts or proportions as the Independent Trustees, in their sole discretion, shall determine. Payments or applications pursuant to this subsection may be made at any time or from time to time, for any reason or purpose whatsoever. In exercising the discretion granted in this subsection, the Independent Trustees need not, but may, consider such of the financial resources apart from the Trust as they deem appropriate of the Beneficiaries, or any one or more of them. (2) At the end of each year, the Trustees shall add to principal any net income not paid or applied pursuant to the previous provisions of this section. The Settlor confirms that the entire Trust Fund may be distributed at any time to or for the benefit of any one or more of 4 DM US 37283516.2.088835.0011 EFTA00616856 the Beneficiaries pursuant to this section, even though such distribution terminates the 'Trust, without regard to the interest of any remainderman of the Trust. (B) Trust Termination. (1) Unless sooner terminated by the distribution of the entire Trust Fund, the Trust shall terminate upon the death of the Settlor, or, if the Settlor is survived by the Settlor's spouse, upon the earlier to occur of the death of the Settlor's spouse and the Perpetuities Date. The date on which the Trust is to terminate is referred to as the "Termination Date." Upon such termination, the Trustees shall pay seventy-five (75%) percent of the Trust Fund ("Portion A") to the Settlor's issue living on the Termination Date, subject to the provisions of Article III. The Trustees shall pay the remaining twenty-five (25%) percent of the Trust Fund ("Portion B") to the Settlor's issue living on the Termination Date, subject to the provisions of Article IV. (2) Notwithstanding subsection (1), at any time or from time to time within one year following the Termination Date, and before actual distribution of the Trust Fund in accordance with subsection (1), the Trustees shall have the power to make loans to and to purchase assets from any estate or any trust, as described in Article VII, and to delay the actual distribution of the Trust Fund for that purpose. The authority granted by the preceding sentence shall not affect the vesting of the Trust Fund, which shall be determined as of the date of the Trust's termination as described in the first sentence of subsection (1). III: SEPARATE PORTION A TRUSTS FOR ISSUE If at the termination of the Trust under Article II any share of Portion A of such Trust is payable to an issue of the Settlor subject to the provisions of this Article or if at the termination of any held Trust under this Article any share of such Trust is payable to an issue of the Settlor subject to the provisions of this Article each such share shall not be paid outright to 5 DM US 37283516-2.088835.0011 EFTA00616857 such issue (referred to in this Article as the "Primary Beneficiary"), but shall instead be held in as many separate Trusts for the benefit of the Primary Beneficiary upon the terns set forth in this Article as the Trustees of such terminated Trust, in their sole discretion, shall direct. (A) Distributions. (1) The Trustees shall pay to the Primary Beneficiary, or apply for his or her benefit, as much of the Trust Fund as the Trustees, in their sole discretion, shall determine is necessary for the Primary Beneficiary's health, education, support and maintenance, taking into consideration the Primary Beneficiary's financial resources apart from the Trust. (2) The Trustees shall pay to the Primary Beneficiary or apply for his or her benefit, as much of the Trust Fund as the Independent Trustees, in their sole discretion, shall determine. Payments or applications pursuant to this subsection may be made at any time or from time to time, for any reason or purpose whatsoever. In exercising the discretion granted in this subsection, the Independent Trustees need not, but may, consider such of the Primary Beneficiary's financial resources apart from the Trust as they deem appropriate. (3) Without limiting the scope of the Independent's power to direct payments to or applications for the benefit of the Primary Beneficiary, it is suggested that the Independent Trustees direct distributions from the Trust to finance the Primary Beneficiary's education, to cover any of the Primary Beneficiary's medical expenditures, or to help the Primary Beneficiary purchase or finance a home, pay for a wedding or start a business, provided, however, that such business has a solid business plan that has been approved by the Trustees. (4) At the end of each year, the Trustees shall add to principal any net income not so paid or applied. The Settlor confirms that the entire Trust Fund may be distributed at any 6 DM US 37283516-2.088835.0011 EFTA00616858 time to or for the benefit of the Primary Beneficiary pursuant to this section, even though such distribution terminates the Trust, without regard to the interest of any remainderman of the Trust. (5) Notwithstanding anything contained in this Trust Agreement to the contrary, no distributions shall be made to the Primary Beneficiary in accordance with the provisions of this section without the consent of the Corporate Trustee. (B) Power of Appointment. (1) The Independent Trustees, at any time, may grant to the Primary Beneficiary a general power of appointment (as defined in § 2041 of the Code) or a limited power of appointment, either of which may be subject to such restrictions as the Independent Trustees set forth in the instrument by which the power is granted. The grant of this power shall be effected by written instrument signed by a majority of the Independent Trustees and delivered to the Primary Beneficiary, and may be revoked at any time during the Primary Beneficiary's lifetime by written instrument of revocation signed by a majority of the Independent Trustees and delivered to the Primary Beneficiary. If revoked, a new power of appointment may be granted as provided in the preceding provisions of this subsection. Notwithstanding anything contained in this section to the contrary, the Trustees shall not grant to the Primary Beneficiary a power of appointment without the consent of the Corporate Trustee. (2) In considering whether to grant a general power of appointment to the Primary Beneficiary, the Settlor requests that the Independent Trustees give particular consideration to the likelihood that generation-skipping transfer taxes imposed on the Trust at the Primary Beneficiary's death would exceed the estate taxes otherwise payable with respect to the Trust if the Trust Fund were included in the Primary Beneficiary's gross estate for estate tax purposes. For this purpose, the Independent Trustees may rely without further investigation on a 7 DM US 37283516-2.088835.0011 EFTA00616859 statement provided by or on behalf of the Primary Beneficiary as to the potential value of the Primary Beneficiary's gross estate. (C) Trust Termination. Unless sooner terminated by the distribution of the entire Trust Fund, the Trust shall terminate on the date of the Primary Beneficiary's death. Upon such termination, the Trustees shall pay the Trust Fund, if and to the extent not effectively appointed pursuant to a power granted under this Article, to the Primary Beneficiary's issue who survive the Primary Beneficiary, or, if no issue of the Primary Beneficiary survives the Primary Beneficiary, to the issue who survive the Primary Beneficiary of the Primary Beneficiary's nearest ancestor who was an issue of the Settlor and who has issue who survive the Primary Beneficiary, or, if there is no such ancestor or issue, to the Settlor's issue who survive the Primary Beneficiary, subject, in each case, to the provisions of this Article. (D) Termination on Perpetuities Date. Notwithstanding any other provision of this Trust Agreement, the Trust shall terminate, unless it terminates sooner, on the Perpetuities Date. If the Trust terminates pursuant to this section, the Trustees shall pay the Trust Fund to the Primary Beneficiary, outright and not in trust. IV: SEPARATE PORTION B TRUSTS FOR ISSUE If at the termination of the Trust under Article II any share of Portion B of such Trust is payable to an issue of the Settlor subject to the provisions of this Article or if at the termination of any held Trust under this Article any share of such Trust is payable to an issue of the Settlor subject to the provisions of this Article each such share shall not be paid outright to such issue (referred to in this Article as the "Primary Beneficiary"), but shall instead be held in as many separate Trusts for the benefit of the Primary Beneficiary upon the terms set forth in this Article as the Trustees of such terminated Trust, in their sole discretion, shall direct. 8 DM US 37283516-2.088835.0011 EFTA00616860  (A) Distributions. (1) The Trustees shall pay to the Primary Beneficiary, or apply for his or her benefit, as much of the Trust Fund as the Trustees, in their sole discretion, shall determine is necessary for the Primary Beneficiary's health, education, support and maintenance, taking into consideration the Primary Beneficiary's financial resources apart from the Trust. (2) The Trustees shall pay to the Primary Beneficiary or apply for his or her benefit, as much of the Trust Fund as the Independent Trustees, in their sole discretion, shall determine. Payments or applications pursuant to this subsection may be made at any time or from time to time, for any reason or purpose whatsoever. In exercising the discretion granted in this subsection, the Independent Trustees need not, but may, consider such of the Primary Beneficiary's financial resources apart from the Trust as they deem appropriate. (3) Without limiting the scope of the Independent's power to direct payments to or applications for the benefit of the Primary Beneficiary, it is suggested that the Independent Trustees direct distributions from the Trust to finance the Primary Beneficiary's education, to cover any of the Primary Beneficiary's medical expenditures, or to help the Primary Beneficiary purchase or finance a home, pay for a wedding or start a business, provided, however, that such business has a solid business plan that has been approved by the Trustees. (4) At the end of each year, the Trustees shall add to principal any net income not so paid or applied. The Settlor confirms that the entire Trust Fund may be distributed at any time to or for the benefit of the Primary Beneficiary pursuant to this section, even though such distribution terminates the Trust, without regard to the interest of any remainderman of the Trust. (B) Primary Beneficiary's Right to Direct Payment (I) In each calendar year prior to the year of the Primary Beneficiary's death, if the Primary Beneficiary is competent 9 DM US 37283516-2.088835.0011 EFTA00616861 and at least thirty-five (35) years of age at the beginning of such year, the Primary Beneficiary shall have the absolute right, from time to time, to direct the Trustees to pay to the Primary Beneficiary out of the Trust Fund an aggregate amount not exceeding the amount (the "Annual Amount"), if any, by which (i) an amount equal to the lesser of (a) FIVE MILLION DOLLARS ($5,000,000), adjusted as provided in subsection (5) (as so adjusted, the "Limitation Amount"), and (b) three percent (3%) of the Trust Fund valued on the Withdrawal Valuation Date as hereinafter defined of the calendar year in which the Primary Beneficiary submits such direction exceeds (ii) the sum of all amounts paid or applied pursuant to section (A) to or for the benefit of the Primary Beneficiary during the calendar year, provided that such Primary Beneficiary's right to direct such payment has not been postponed, suspended or terminated pursuant to Article V(F). For purposes of this section, the term "calendar year" shall include the portion of the calendar year following the Trust Commencement Date, but shall not include the portion of the calendar year of the Primary Beneficiary's death that precedes the Primary Beneficiary's death. The right to direct payment shall be noncumulative and shall be exercised by a written instrument signed by the Primary Beneficiary alone (and not by any guardian, conservator, committee, attorney-in-fact or other legal representative purporting to act on the Primary Beneficiary's behalf) and delivered to the Trustees prior to the close of such year. (2) In any particular calendar year, the Trustees are authorized to make payments to the Primary Beneficiary on account of the Annual Amount based upon the lesser of (a) the value of the Trust Fund at the time of such direction and (b) the value of the Trust Fund on the first day of such calendar year, notwithstanding that (i) the Annual Amount cannot be precisely determined until the end of such year and (ii) the Primary Beneficiary may not be living at the end of such year. At the end of such year, in determining the Annual Amount, any 10 DM US 37283516-2.088835.0011 EFTA00616862 such payment shall be treated as an asset, in the form of a loan from the Trust, valued at the amount distributed, until the moment immediately following the time of determination of the Annual Amount. If it is determined, after the end of such year, that there has been an overpayment, then the Primary Beneficiary (or the Primary Beneficiary's Personal Representatives, if the Primary Beneficiary is not then living) shall repay to the Trustees the amount by which the aggregate payments made in such year on account of the Annual Amount exceed the Annual Amount. The Primary Beneficiary's Personal Representatives shall repay to the Trustees an amount equal to the aggregate payments, if any, made to the Primary Beneficiary during the year of the Primary Beneficiary's death on account of the Annual Amount. (3) For purposes of this section, the "Withdrawal Valuation Date" for any particular calendar year shall be the first day of such calendar year, unless the value of the Trust Fund on the last day of such calendar year is less than the value of the Trust Fund on the first day of such calendar year, in which case the "Withdrawal Valuation Date" for such calendar year shall be the last day of such calendar year. (4) If more than one Trust is held under this Article for the benefit of the Primary Beneficiary, the Primary Beneficiary shall be permitted to exercise the right to direct payment described in this section with respect to any such Trust only to the extent the amount paid to the Primary Beneficiary in any particular year does not exceed the amount by which (i) an amount equal to the lesser of (a) the Limitation Amount, and (b) three percent (3%) of the Trust Fund of all such Trusts valued on the Withdrawal Valuation Date of the calendar year in which the Primary Beneficiary submits such direction exceeds (ii) the sum of all amounts paid or applied pursuant to section (A) from all such Trusts to or for the benefit of the Primary Beneficiary during the calendar year. If one or more trusts held under other trust instruments is II DM US 37283516-2.088835.0011 EFTA00616863 held for the primary benefit of the Primary Beneficiary and provides the Primary Beneficiary with a withdrawal power that is substantially similar to the withdrawal power in this Trust Agreement (a "Similar Trust"), and that power is also subject to a limitation based on the Limitation Amount, the Primary Beneficiary's withdrawal power from all Trusts and all Similar Trusts shall be limited to the Limitation Amount in any particular year. If the Primary Beneficiary in any particular year exercises his or her withdrawal right with respect to one or more Trusts and one or more Similar Trusts, the Independent Trustees shall confer with the trustees of all other Similar Trusts with respect to which the Primary Beneficiary has attempted to exercise his withdrawal rights in such year and shall agree as to which trusts shall satisfy his or her exercise of the withdrawal right. (5) Whenever in this Article an amount is required to be adjusted as provided in this subsection, the Trustees shall multiply such amount by a fraction, the numerator of which shall be the Consumer Price Index for January of the calendar year in which such amount is to be paid and the denominator of which shall be the Consumer Price Index for December 2006, and if the resulting amount is greater than the original amount, then such prorated amount shall be substituted for the original amount and shall be paid to the designated recipient in lieu thereof. (C) Powers of Appointment (1) At any time or from time to time, the Primary Beneficiary, if he or she is at least thirty-five (35) years of age, shall have the power to appoint any part or all of the Trust Fund to or for the benefit of such one or more of the Settlor's issue (other than the Primary Beneficiary and other than those whose deaths preceded the time the appointment is effective) in such amounts and proportions, either outright or in further trust, upon such terms and conditions (including the granting to the appointee of a further and general or limited power of appointment), and to the exclusion of any one or more of them, as the 12 DM US 37283516-2.088835.0011 EFTA00616864 Primary Beneficiary shall determine, provided that such Primary Beneficiary's power of appointment has not been postponed, suspended or terminated pursuant to Article V(F). The Primary Beneficiary may exercise this power of appointment either (a) by a written instrument that is signed and acknowledged by the Primary Beneficiary and delivered to the Trustees, all at a time when the Primary Beneficiary is competent, and that makes specific reference to this section or (b) by a provision in his or her Will that makes specific reference to this section. Any appointment made by such exercise shall be effective on the date of the Primary Beneficiary's death. (2) (a) The Independent Trustees, at any time, may grant to the Primary Beneficiary a general power of appointment (as defined in § 2041 of the Code) or a limited power of appointment, either of which may be subject to such restrictions as the Independent Trustees set forth in the instrument by which the power is granted. The grant of this power shall be effected by written instrument signed by a majority of the Independent Trustees and delivered to the Primary Beneficiary, and may be revoked at any time during the Primary Beneficiary's lifetime by written instrument of revocation signed by a majority of the Independent Trustees and delivered to the Primary Beneficiary. If revoked, a new power of appointment may be granted as provided in the preceding provisions of this subsection. (b) In considering whether to grant a general power of appointment to the Primary Beneficiary, the Settlor requests that the Independent Trustees give particular consideration to the likelihood that generation-skipping transfer taxes imposed on the Trust at the Primary Beneficiary's death would exceed the estate taxes otherwise payable with respect to the Trust if the Trust Fund were included in the Primary Beneficiary's gross estate for estate tax purposes. For this purpose, the Independent Trustees may rely without further investigation on a 13 DM US 37283516-2.088835.0011 EFTA00616865 statement provided by or on behalf of the Primary Beneficiary as to the potential value of the Primary Beneficiary's gross estate. (D) Trust Termination. Unless sooner terminated by the distribution of the entire Trust Fund, the Trust shall terminate on the date of the Primary Beneficiary's death. Upon such termination, the Trustees shall pay the Trust Fund, if and to the extent not effectively appointed pursuant to a power granted under this Article, to the Primary Beneficiary's issue who survive the Primary Beneficiary, or, if no issue of the Primary Beneficiary survives the Primary Beneficiary, to the issue who survive the Primary Beneficiary of the Primary Beneficiary's nearest ancestor who was an issue of the Settlor and who has issue who survive the Primary Beneficiary, or, if there is no such ancestor or issue, to the Settlor's issue who survive the Primary Beneficiary, subject, in each case, to the provisions of this Article. (E) Recharacterization of Trust Assets. If a Primary Beneficiary of the Settlor who is a Child of the Settlor gets married without entering into a prenuptial or postnuptial agreement with his or her spouse that in the judgment of the Independent Trustees adequately protects the Primary Beneficiary's assets, the Trust's assets shall cease to be treated as if they were derived from Portion B and instead shall be treated as if they were derived from Portion A. The provisions of Article III, and not the provisions of this Article, shall apply to the Trust, and for all purposes of this Trust Agreement the Primary Beneficiary shall have only those powers with respect to the Trust granted to him or her under Article III or under any other provision of the Trust Agreement. (F) Termination on Perpetuities Date. Notwithstanding any other provision of this Trust Agreement, the Trust shall terminate, unless it shall have sooner terminated, on the 14 DM US 37283516-2.088835.0011 EFTA00616866 Perpetuities Date. Upon such termination, the Trustees shall pay the Trust Fund to the Primary Beneficiary, outright and not in trust. V: SPECIAL DISTRIBUTION RULES (A) Per Stirpital Distributions. Except when otherwise provided, mandatory distributions or payments of property to the issue of a particular individual (including distributions subject to the provisions of Article III or Article IV) shall be distributed or paid on a per stirpes basis. The preceding sentence shall not apply to discretionary distributions or payments, or to payments made pursuant to the exercise of a power of appointment granted under this Trust Agreement. A per stirpital distribution or payment shall require an initial division into the number of shares required to provide one share for each then living child of such individual, if any, and one share for each then deceased child of such individual who has issue then living. Each then living child shall be allotted one share and the share of each deceased child shall be divided in the same manner among such deceased child's then living issue. (B) Beneficiaries Under a Legal Disability or Under 21. (1) Distribution of any money or other property from any Trust to an individual who is under a legal disability may, in the sole discretion of the Trustees, be made directly to that individual, or to any Person (including a Trustee) who is that individual's parent or that individual's guardian, conservator or similar fiduciary in whatever jurisdiction appointed and however denominated. (2) In addition, distribution of any money or other property from any Trust to an individual who is younger than twenty-one (21) years of age (whether or not he or she is an "infant" or "minor" under local law and whether or not he or she is under any other legal disability), may be made to a Person selected by the Trustees (including a Trustee) as custodian 15 DM US 37283516-2.088835.0011 EFTA00616867 for such individual's benefit under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any jurisdiction. (3) Any receipt or release furnished by a Person who receives a distribution pursuant to this section on behalf of a beneficiary shall fully release and discharge the Trustees with respect to such distribution, even though the Person furnishing such receipt or release is a Trustee. (4) Notwithstanding the preceding provisions of this section, no distribution of property pursuant to this section or pursuant to law may be made to the Settlor in any capacity. (C) Survivorship. Any beneficiary whose entitlement to property (whether income or principal and whether outright or in trust) under this Trust Agreement depends upon his or her surviving the occurrence of some event who dies under such circumstances that it is difficult or impossible to determine whether or not he or she was alive upon the occurrence of such event shall be deemed for all purposes of this Trust Agreement to have died prior to the occurrence of such event. (D) [Indisposed ofProperty. If upon the occurrence of any event any share of a terminated Trust shall not be completely disposed of by the other provisions of this Trust Agreement, then such undisposed of share shall be paid to those individuals who would have inherited it from the Settlor, and in the same proportions in which they would have shared it, had the Settlor then died intestate, unmarried, the owner of it, and a resident of the State of New York. (E) Assignment of Trust Interests. No disposition, charge, or encumbrance of the income or principal of any Trust, or any part thereof, by way of anticipation, alienation, or 16 DM US 37283516-2.088835.0011 EFTA00616868 otherwise shall be valid or in any way binding upon the Trustees. No beneficiary of any Trust may assign, transfer, encumber or otherwise dispose of the income or principal of such Trust, or any part thereof, until it shall be paid to such beneficiary by the Trustees. The preceding provisions of this section shall not apply in the case of an exercise of a power of appointment. No income or principal of any Trust, or any part thereof, shall be liable to any claim of any creditor. (F) Power to Postpone. (1) This Trust Agreement gives each Primary Beneficiary of a Trust under Article III or Article IV certain powers beginning on the date on which he or she attains the age of thirty-five (35) years or beginning with the first calendar year following the calendar year in which the Primary Beneficiary attained the age of thirty-five (35) years. (a) The Independent Trustees of a Trust under Article III or Article IV may postpone the age or ages at or after which the Primary Beneficiary of such Trust may acquire such powers, taking into account any prior postponements pursuant to this section. A postponement pursuant to this paragraph shall be effected by a written instrument signed by the Independent Trustees of such Trust and delivered to the Primary Beneficiary at any time prior to the Primary Beneficiary's acquisition of such power. (b) The Independent Trustees of a terminating Trust under Article II, III or IV may, prior to funding a Trust under Article III or Article IV, as the case may be, postpone the age or ages at or after which the Primary Beneficiary of such Trust would acquire such powers. A postponement pursuant to this paragraph shall be effected by a written instrument signed by the Independent Trustees of the terminating Trust and delivered to such Primary Beneficiary no later 17 DM US 37283516-2.088835.0011 EFTA00616869 than thirty (30) days after the occurrence of the event upon which the terminating Trust terminates. (c) The Independent Trustees of a Trust under Article III or Article IV may suspend or terminate the Primary Beneficiary's right to direct payment (in the case of a Trust held under Article IV) and/or the Primary Beneficiary's power of appointment under such Article, notwithstanding that either or both powers may have been previously exercised by the Primary Beneficiary. A suspension or termination pursuant to this paragraph shall be effected by a written instrument signed by the Independent Trustees of such Trust and delivered to the Primary Beneficiary prior to the Trust's termination. (2) A postponement, suspension or termination pursuant to this section may be made by the Independent Trustees only if they determine that there is a compelling reason therefor, such as a serious illness or disability of such Primary Beneficiary, a pending divorce, potential or pending creditor claims, potential tax disadvantage to such Primary Beneficiary or his or her family, or similar substantial cause. (G) Exercise of Powers of Appointment. With regard to any power of appointment granted under this Trust Agreement that may be exercised by the Will of the holder of the power, the Trustees may rely on any instrument purporting to be a certified copy of the Will of the holder of the power. Commencing six (6) months after the death of the holder of the power, the Trustees (if they have no actual notice of the existence of a purported will of the holder that exercises such power) shall incur no personal liability for administering the Trust as though the holder had not exercised the power. If the Will that exercises the power is subsequently discovered, any disposition of the Trust property by the Trustees shall be without prejudice to the rights of any appointee to recover the property from any Person to whom the 18 DM US 37283516-2.088835.0011 EFTA00616870 Trustees have paid assets of the Trust or from the Trustees (in their capacities as Trustees) to the extent of any remaining Trust property. VI: ADDITIONS (A) General Provisions Regarding Additions. The Settlor or any other Person may add property to any Trust (i) by lifetime transfers of additional property; (ii) by Will; (iii) by naming the Trustees as beneficiaries of one or more life insurance policies; or (iv) by any other means; provided that, except as otherwise provided in section (B), the Trustees, in their sole discretion, may decline to accept all or any portion of the additions, and may, in their sole discretion, accept conditional transfers or additions. If the Trustees agree to accept any additions, they need not retain any property in the form received. The Trustees shall add any property that they accept to the Trust designated by the donor, or failing such designation, this property shall be allocated ratably to all Trusts then held under this Trust Agreement. (B) Pour-Over Additions From Related Trusts. (1) Notwithstanding the provisions of section (A), the Trustees of a Trust shall accept any property that is directed to be paid to such Trust under the provisions of the Settlor's Will or any Related Trust (a "Pour- Over"). (2) If a Pour-Over is directed to be made to a Trust under a particular Article of this Trust Agreement to or for the benefit of an issue of the Settlor and more than one such Trust is then in existence, and the instrument or instructions governing the Pour-Over do not otherwise specify, such Pour-Over shall be allocated among such Trusts in such amounts or proportions, and to the exclusion of any one or more of them, as the Independent Trustees, in their sole discretion, shall direct. 19 DM US 37283516-2.088835.0011 EFTA00616871  (3) For purposes of this section, a Pour-Over to a trust for the primary benefit of an issue of the Settlor under this Trust Agreement shall be given effect even though such Trust has yet to be created under this Trust Agreement or has previously terminated. In that event, the Trustees shall accept such Pour-Over and administer it under the terms of this Trust Agreement as though such Trust had previously been created or had never previously terminated, as the case may be. (4) As used in this section, the term "Related Trust" means (i) a trust held under a trust agreement created by the Settlor during the Settlor's lifetime or under the Settlor's Will, or (ii) a trust held under any successor instrument amending or restating one or more trusts described in clause (i). VII: TRUSTEES' INVESTMENT AND ADMINISTRATIVE POWERS (A) Overriding Limitation on Powers. The provisions of this Article are expressly subordinate to the overriding provisions of Article VIII. (B) General Powers. The Trustees shall have all powers and discretion conferred generally upon fiduciaries by the laws of the State of Delaware and by other provisions of law. Without limiting the foregoing, the Trustees shall also have the following powers and discretion as to all property of whatever kind at any time held by them, including income held by them, until final distribution, which they may exercise as they deem advisable: (1) To sell, purchase, exchange, invest and reinvest in bonds, preferred or common stocks, mortgages, mutual funds or money market funds, interests in any kind of investment trust, partnership or limited liability company, or other evidences of rights, interests or obligations, secured or unsecured, foreign or domestic, or any other property, real or personal and whether or not in the nature of a wasting asset, without any duty to diversify investments, and fully free of any 20 DM US 37283516-2.088835.0011 EFTA00616872  and all restrictions imposed by law upon the investment of funds held by a fiduciary; and to retain the same for any period of time without liability therefor; (2) To employ such one or more agents, accountants, custodians, experts and counsel, legal or investment (including any firm with which any of the Trustees may be affiliated), as the Trustees shall determine, to delegate discretionary powers to them, to rely upon information or advice furnished by them, and to compensate them out of the Trust Fund of the Trust or Trusts on behalf of which the engagement was made (and not out of the Trustees' commissions); (3) To improve, lease for any term (whether or not such term is beyond the term of the administration of the Trust which is the lessor or the term fixed by any law) to any Person including the Senior, partition or otherwise deal with or dispose of any real or personal property or any interest therein; to demolish or to make alterations in and extraordinary improvements to any building now or hereafter located on any such property; to construct new buildings; and to enter into contracts or grant options (for any period) as to any of the foregoing; (4) To consent to the modification, renewal or extension of any note, whether or not secured, or any bond or mortgage, or any term or provision thereof, or any guarantee thereof, or to the release of such guarantee; to release obligors on bonds secured by mortgages or to refrain from instituting suits or actions against such obligors for deficiencies; to use property held under this Trust Agreement for the protection of any investment in real property or in any mortgage on real property; (5) To abandon any property, real or personal, that they deem to be worthless or not of enough value to warrant keeping or protecting; to abstain from the repairs, maintenance and upkeep of such property, and from the payment of taxes, water rents, and assessments regarding such property; to permit such property to be lost by tax sale or other proceeding, or to convey it for nominal or no consideration; (6) To exercise or dispose of any or all options, privileges or rights of any nature appurtenant or incident to the ownership of any property, including but not limited to rights to vote, assent, subscribe or convert; to become a party to, or deposit securities or other property under, or accept securities issued under, any voting trust agreement; (7) To assent to or participate in any reorganization, readjustment, recapitalization, liquidation, partial liquidation, consolidation, merger, dissolution, sale or purchase of assets, lease, mortgage, contract or other action or proceeding by any corporation and, in that connection, to subscribe to new securities, to exchange any property for any other property, and to pay any assessments or other 21 DM US 37283516-2.088835.0011 EFTA00616873  expenses; to delegate discretionary powers to any reorganization, protective or similar committee; (8) To borrow money from any party, including the Settlor or any of the Trustees, for any purpose