EFTA00082368.pdf

FIRST AMENDMENT AND RESTATEMENT TO TRUST AGREEMENT for the JEFFREY E. EPSTEIN 2001 TRUST TWO FIRST AMENDMENT AND RESTATEMENT TO TRUST THE JEFFREY E. EPSTEIN 2001 TRUST TWO, made and AGREEMENT FOR entered into this day of , 2012, by and between JEFFREY E. EPSTEIN, as Grantor ("Grantor") and DARREN K. INDYKE, JES STALEY and ANDREW FARKAS, as Truste es ("Trustee"). ACKNOWLEDGEMENTS A. On November 8, 2001, the Grantor entered into a Trust Agreement (referred to as the "Trust Agreement") with himself and JEFFREY A. SCHANTZ, as Trustees. In Article FIFTEENTH of the Trust Agreement , the Grantor reserved the right to amend the Trust Agreement. The Trust Agreement has been amended from time to time. B. The Grantor desires to amend and restate the Trust Agreement entirety' as follows: in its Article I. During My Lifetime Section 1.1 - Disbursement of Income All of the income of the trust (the "Trust Estate") shall accumulated or paid as I may direct in writing from time to be paid to me, or time. Section 1.2 - Disbursement of Principal My Trustee may distribute any part or all of the principal of the in the discretion of my Trustee. Trust Estate to me Section 1.3 - Specific Rights Reserved to Me A. I reserve the right, at any time and from time to time, to Agreement, in whole or in part, by a written instrument execu amend this ted and acknowledged by me and my Trustee. B. 1 reserve the right to revoke and terminate the trust herein delivering to my Trustee a written instrument executed created by and acknowledged solely by me. C. !reserve the right to withdraw or appoint any part or all of principal of the Trust Estate by delivering to my Trustee a writte the n instrument executed and acknowledged solely by me. D. I reserve the right, at any time and from time to time, to Trustee, by gift, by Will or by beneficiary designation, such transfer to my additional property, including 2657767.1 GJ_000296 EFTA00082368 life insurance policies, as I may desire. Any such additional property shall be held on the same terms as are then applicable to the original Trust Estate, except that it may be transferred subject to conditions and provisions of special application to such additional property. Section 1.4 - Incapacity If I am incapacitated through illness, age or other cause (and am determined to be incapacitated in the written opinion of two medical doctors), during the period of such incapacity, I shall cease to act as a Trustee hereunder. If, after having been determined to be incapacitated, I thereafter am capable of giving prompt, intelligent consideration to financial matters (as determined in the written opinion of two medical doctors), I shall be restored as a Trustee without any court proceeding. Article II. After My Death Upon my death, the trust shall terminate and the Trustee shall distribute the balance of the principal of the trust as follows: A. Five Million Dollars ($5,000,000) to JEAN LUC BRUNEL, if he survives me. B. Two Million Dollars ($2,000,000) to if she survives me. C. One Million Dollars ($1,000,000) to if he survives me. D. One Million Dollars ($1,000,000) to if she survives me. E. One Million Dollars ($1,000,000) to if she survives me. F. One Million Dollars ($1,000,000) in equal shares to LUCIANO A. FONTANILLA, JR. and ROSALYN V. FONTANILLA, if they both survive me, or all to the survivor, if only one of them survives me. G. The balance thereof, including any distributions in Subdivisions A through F above which are ineffective, shall be payable to the Grantor's estate to be disposed of in accordance with the provisions of the Grantor's Will and the Grantor's Trust One. 2 GJ 000297 2657767.1 EFTA00082369  Article III. Trust Administration Section 3.1 - Termination of Trusts A. Notwithstanding anything herein, any trust created hereunder for any person shall (unless terminated earlier) terminate upon the day preceding the expiration of the maximum period permitted under the United States Virgin Islands Rule Against Perpetuities, for the vesting of an interest in a trust and upon such date the assets of such trust shall be distributed to such person. B. If at any time my Trustee determines that it is uneconomic to continue any trust with respect to which such Trustee is acting hereunder, my Trustee may terminate such trust and distribute the trust assets, in such amounts and proportions as such Trustee may determine, to the person or persons to whom income may be distributed. Section 3.2 - Equitable Adjustment If my Trustee decides to exercise or not exercise any fiduciary power granted by this Agreement or by law (including, without limitation, any election available to my Trustee) and the exercise or nonexercise of such power confers a benefit on one beneficiary or class of beneficiaries hereunder and imposes a detriment upon another beneficiary or class of beneficiaries hereunder, my Trustee shall not attempt to restore the interests of the beneficiaries or classes of beneficiaries to the position otherwise contemplated by this Agreement through adjustment between income and principal or otherwise. Section 3.3 - Lapsed Distribution Except as otherwise specifically provided in this Agreement, a provision for distribution to an individual who is not surviving at the date such individual otherwise becomes eligible for such distribution shall lapse notwithstanding any law to the contrary. Section 3.4 - Notice Any notice required hereunder shall be delivered personally or sent by first class or certified mail addressed to the last known address of the intended recipient. Section 3.5 - Termination of Trust An instrument in writing completely revoking this Agreement shall, without more, upon delivery to my Trustee, completely terminate all of my Trustee's right, title, and interest to any life insurance proceeds, death benefits, pension, profit sharing, or other retirement benefits or any other assets otherwise payable to my Trustee. 3 GJ 000298 144/11.1 1 EFTA00082370  Article IV. Powers of Trustee Section 4.1 - General Investment Powers Except as otherwise provided in this Agreement, respect to such trust: my Trustee has the power with A. To enter upon and take possession of the ass collect the income and profits from suc ets of such trust and h assets, and to invest and reinvest such asse real, personal, or mixed assets (including ts in the common trust funds of a corporate fidu or in undivided interests therein without ciary) being limited by any present or future inve laws; stment B. To retain all or any part of the assets of suc the proportion that any one asset or class h trust (without regard to of assets may bear to the whole) in the form which such assets were received or acq in uired by my Trustee; C. To sell or dispose of, exchange, transfer, inve of the assets of such trust which my Tru st, or loan all or any part stee holds, at any time, for such sums or terms as to payment, security, or otherw upon such ise as my Trustee determines, either by pub private transactions; lic or D. To buy and sell options, warrants, puts, call purchase or sell (collectively called "option s or other rights to s") relating to any security or securities, regardless of whether such security or sec urities are then held by my Trustee, and whe such options are purchased or sold on a nati ther onal securities exchange, and to exercise respect to such options all powers whi with ch an individual owner thereof could exe including, without limitation, the right to rcis e, allow the same to expire; E. With respect to oil, natural gas, minerals, and resources and rights to and interests all other natural therein (together with all equipment pertain thereto) including, without limiting the ing generality of the foregoing, oil and gas royalties leases, or other oil and gas interests of any , character, whether owned in fee, as lessee, lessor, licensee, concessionaire or otherw ise, or alone or jointly with others as partne joint tenant, or joint venturer in any oth r, er noncorporate manner, (1) to make oil, mineral leases or subleases; (2) to pay dela gas and y rentals, lease bonuses, royalties, overrid royalties, taxes, assessments, and all oth ing er charges; (3) to sell, lease, exchange, pledge or otherwise hypothecate any or all mortgage, of such rights and interests; (4) to surren abandon, with or without consideration, der or any or all of such rights and interests; (5) farm-out, pooling, and unitization agreeme to make nts; (6) to make reservations or impose conditions on the transfer of any suc h rights or interests; (7) to employ the most advantageous business form in which pro perly to exploit such rights and interests, as corporations, partnerships, limited par whether tnerships, mining partnerships, joint ventures, co- tenancies, or otherwise exp loit any and all such rights and interests; (8) produce, process, sell or exchange all pro to ducts recovered through the exploitation of rights and interests, and to enter into con such tracts and agreements for or in respect of installation or operation of absorption rep the , rocessing or other processing plants; (9) to 2657767.) GJ 000299 EFTA00082371  carry any or all such interests in the name or names of a nomi nee or nominees; (10) to delegate, to the extent permitted by law, any or all of the powe rs set forth herein to the operator of such property; and (11) to employ personnel, rent office space, buy or lease office equipment, contract and pay for geological surveys and studies, procure appraisals, and generally to conduct and engage in any and all activi ties incident to the foregoing powers, with full power to borrow and pledge in order to financ e such activities; together with the power to allocate between principal and incom e any net proceeds received as consideration, whether as royalties or otherwise, for the permanen t severance from lands of oil, natural gas, minerals, and all other natural resources; P. To hold all or any part of the assets of such trust in cash or in bank accounts without the necessity of investing the same; of such trust; G. To improve, repair, partition, plat, or subdivide all or any part assets of the H. To litigate, defend, compromise, settle, abandon, or submit arbitration on such terms and conditions as my Trustee to determines any claims in favor of or against such trust or the assets of such trust; I. To loan or borrow money in such amounts and upon such terms conditions as my Trustee determines, assume such obligations and or give such guarantees as my Trustee determines, for the purpose of the acquisition, improvement, protection, retention, or preservation of the assets of such trust, or for the benefit of any of the beneficiaries who are entitled or permitted to receive incom e from such trust; J. To create or invest in any entity with all or part of the assets of trust and to carry on for as long and in such manner such as my Trustee determines any business enterprise held or created by my Trustee or in which I owned any interest at my death, either individually or as a partner, joint venturer, stock holder, trust beneficiary, or member, to sell such business enterprise as an ongoing busin ess; to consolidate, merge, encumber, dissolve, liquidate or undertake any other extra ordinary corporate transaction relating to such business enterprise; K. To vote in person or by proxy any and all stock or securities and become a party to any voting trusts, reorganization, conso to lidation, or other capital or debt readjustment of any corporation, association, partnership, limited liability partnership, limited liability company, or individual with respect to stock s, securities, or debts held by such trust; L. To enter into any good faith transactions with my Trustee indiv or with any corporation, partnership, limited liability partn idually ership, limited liability company, or other entity in which my Trustee has an owne rship interest; M. To purchase from my estate any stocks, bonds, securities, real or personal property, or other assets, or make loans to my estate even though the same person or persons occupy the office of my Trustee and the office of the Personal Representative of my estate; GJ_000300 EFTA00082372  N. To lease, mortgage, pledge, grant a security interest in, or otherwise encumber all or any part of the assets of such trust for any term of years whether or not beyond the term of such trust (including, without limitation, any such action for the benefit of any of the beneficiaries of such trust); O. To abandon any property, real or personal, which my Trustee may deem worthless or not of sufficient value to warrant keeping or protecting; to abstain from the payment of taxes, water rents or assessments and to forego making repairs, maintaining or keeping up any such property; and to permit such property to be lost by tax sale or other proceedings or to convey any such property for a nominal consideration or without consideration so as to prevent the imposition of any liability by reason of the continued ownership thereof; P. To elect the mode of distribution of the proceeds from any profit- sharing plan, pension plan, employee benefit plan, individual retirement plan, insurance contract, or annuity contract pursuant to the terms of such plan or to change to another custodian of such plan; Q. To conduct any audit, assessment, or investigation with respect to any asset of such trust regarding compliance with any law or regulation having as its object protection of public health, natural resources, or the environment (referred to as "Environmental Laws"); to pay from the assets of such trust to remedy any failure to comply with any Environmental Law (even to the exhaustion of all of the assets of such trust); and, as may be required in my Trustee's judgment by any Environmental Law, to notify any governmental authority of any past, present, or future non-compliance with any Environmental Law; and R. To refuse to accept any asset distributable to such trust. S. No trustee shall directly or indirectly buy or sell any property for the trust from or to himself, or from or to his relative, employer, employee, partner or other business associate. T. No trustee shall as trustee of one trust sell property to himself as trustee of another trust. U. No trustee shall lend trust funds to himself, or to his relative, employer, employee, partner, or other business associate. Section 4.2 - Administrative Powers Except as otherwise provided in this Agreement, my Trustee has the power with respect to each trust: A. To employ agents, attorneys-at-law, consultants, investment advisers (to whom my Trustee has discretion to delegate my Trustee's investment authority and responsibility), other trustees and other fiduciaries in the administration of my Trustee's duties, to delegate to such persons, or to one or more of my Trustees, the custody, control, GJ_000301 EFTA00082373 or management of any part of the assets of such trust as my Trustee determines and to pay for such services from the assets of such trust, without obtaining judicial authorization or approval; B. To delegate, in whole or in part, to any person or persons the authority and power to (1) sign checks, drafts or orders for the payment or withdrawal of funds, securities and other assets from any bank, brokerage, custody or other account in which funds, securities or other assets of such trust shall be deposited, (2) endorse for sale, transfer or delivery, or sell, transfer or deliver, or purchase or otherwise acquire, any and all property, stocks, stock warrants, stock rights, options, bonds or other securities whatsoever, (3) gain access to any safe deposit box or boxes in which assets of such trust may be located or which may be in the name of my Trustee and remove part or all of the contents of any such safe deposit box or boxes and release and surrender the same, and (4) take any other action that my Trustee may have the power to take with respect to such trust and the property thereof; no person or corporation acting in reliance on any such delegation shall be charged with notice of any revocation or change of such delegation unless such person or corporation receives actual notice thereof; C. To pay any property distributable to a beneficiary under a legal disability or who has not attained the age of 21, without liability to my Trustee, by paying such property (1) to such beneficiary, (2) for the use of such beneficiary, (3) to a legal representative of such beneficiary appointed by a court or if none, to a relative for the use of such beneficiary, or (4) to a custodian for such beneficiary designated by my Trustee to hold until age 21 or such earlier age as shall be the maximum permitted under applicable law; D. To divide such trust into subsidiary accounts if my Trustee determines that such division is necessary to maintain fair and accurate records; E. To permit the beneficiary of such trust to use, possess, and enjoy real property, tangible personal property, or club memberships held by such trust; F. To distribute to such trust or any of the beneficiaries of such trust in kind or in cash, or partly in kind and partly in cash, and to allocate different kinds or disproportionate shares of assets or undivided interests in assets among all of such trusts or all of such beneficiaries; G. In making the division into one or more trusts hereunder (if such trusts have the same Trustee), to keep the assets of such trusts invested and handled as a single fund without actual division and to designate such trusts on my Trustee's books as owning a designated undivided interest in such fund; H. To have evidence of ownership of any security maintained in the records of a Federal Reserve Bank under the Federal Reserve Book Entry System; to deposit funds in any bank or trust company; to carry in the name of my Trustee or the nominee or nominees of the Trustee and with or without designation of fiduciary capacity, or to hold in bearer form, securities or other property requiring or permitting of registration; and to cause any securities to be held by a depository corporation of which a 7 GJ_000302 2657767 I EFTA00082374  Trustee is a member or by an agent und er a safekeeping contract provided, the books and records of my Trustee sha however, that ll at all times show that such investments of such trust; are pan I. To register or not register such trust with circuit court of the United States Virgin the probate division of the Islands or otherwise and to make all dec which relate thereto; isions J. To give any beneficiary of any trust her appointment exercisable in such benefic eunder a general power of iary's Will over all or part of such trust, any terms and conditions as my Tru subject to stee determines, by written notice to suc to eliminate any such power of h beneficiary; appointment by written notice to the beneficiary; and to irrevocably release the power under this paragraph to give a pow appointment or to eliminate a power of app er of ointment; K. To renounce and disclaim, in whole or applicable law, any assets, interests, righ in part, and in accordance with ts, or powers (including any power of appointment) which are payable to (or exercisable by) such trust or over which has any right, title, interest, or power; my Trustee and L. To make, execute, and deliver any and shall be necessary or proper to carr all such instruments in writing as y out any power, right, duty, or obligation any disposition whatsoever of such trus of my Trustee or t or any asset of such trust and to exercise other powers incidental or necessary any and all to carry out or to fulfill the terms, provisio of such trust. ns and purposes Section 4.3 - Restrictions on Exercise of My 'Trustee 's Powers A. Notwithstanding any provision of this a Trustee (other than me) shall not par Agreement to the contrary, ticipate in a discretionary decision to not exercise any fiduciary power to (1) exercise or distribute income from or principal of any hereunder to himself or herself; or (2) dist trust ribute income from or principal of any hereunder for the health, support, mainten trust ance or education of a beneficiary if Trustee has a legal obligation to provide such for the health, support, maintenance of such beneficiary from such Trustee or education 's personal assets. For purposes of this person whose interest in a trust hereun paragraph, a der is limited to a remote contingent example, a contingent remainderman who inte rest (for se interest depends upon another per to survive to a specified age or a person son failing designated to receive assets only in the power of appointment is not exercis eve nt a ed) shall not be treated as a person who beneficiary of such trust. is or may be a B. A Trustee of any trust hereunder may by the other Trustee (or Trustees) a written notice delivered to of such trust decline to participate in the exercise or not exercise any fiduciary pow decision to er granted by this Agreement or by law . C. If a Trustee of any trust hereunder is not conflict of interest, declination to act empowered (because of a or otherwise) to participate in the decisio or not exercise any fiduciary power gra n to exercise nted by this Agreement or by law, then the 2657767.1 8 GJ_000303 EFTA00082375  remaining Trustee or Trustees of such trust shall be empowere d to make such decision ii no Trustee is empowered to participate in such decision, then the first successor Trustee of such trust designated in Section 6.1 and able and willing to act shall be empowered to make such decision. If no Trustee or successor Trustee is empowered to participate in such decision, my Trustee may designate a subst itute Trustee to serve as Trustee of such trust who shall be empowered to make such decis ion but has no other power or authority of the Trustee. Such designation shall be by written notice delivered to such substitute Trustee. Article V. Provisions Concerning Trustees Section 5.1 - Successor Trustees Each Trustee actine hereunder shall be authorized to designate his Trustee. successor as Section 5.2 - Appointment of Trustee The appointment of a successor Trustee hereunder shall becom e effective when such successor Trustee signs an acceptance of the trust. Section 5.3 - Resignation of Trustees Any Trustee may resign at any time, without the approval of any court, instrument in writing filed with the trust records. In addition, by an if there is filed with the trust records a written certification from any attending physician of any individual Trustee of a trust (other than me) that he or she is no longer able to make decisions with respect to such trust, then from the date of filing of such certification, such individual Trust ee shall be deemed to have resigned for all purposes of this Agreement. Section 5.4 - Vacancy in Office If the sole Trustee dies or cannot or will not act as Trustee of any trust and if no successor Trustee is designated pursuant to Section 5.1 hereunder who is willing to act, the legally competent adult beneficiary (or a majority in beneficial interest of the legally competent adult beneficiaries if there are multiple beneficiaries) then entitled or permitted to receive income from such trust shall designate a successor Trustee by an instrument in writing delivered to the designated Trustee. If the legally competent adult beneficiarie s do not designate a successor Trustee within sixty days after receipt of notice of such vacancy or if there is no legally competent adult beneficiary of such trust, my Trustee shall desig nate a successor Trustee by written notice delivered to the designated Trustee and each adult beneficiary then entitled or permitted to receive income from such trust. If no successor Trust ee is designated pursuant to this Section 5.4, then a successor Trustee shall be named by order of a court of competent jurisdiction. All of the fees and expenses of my Trustee (including attorneys' fees) attributable to the appointment of a successor Trustee of a trust shall be paid from the assets of such trust. 9 2657767.1 G1_000304 EFTA00082376  Section 5.5 - Elimination of Bond No bond or other security shall be required of any Trustee hereu jurisdiction. nder in any Section 5.6 - Exculpation of My Trustee My Trustee shall not be accountable or responsible to any perso trust hereunder for the manner in which my Trustee shall in n interested in any good faith exercise any discretionary authority or power of my Trustee. My Trustee shall not be liable for any loss or depreciation in value occasioned by reason of any negligence, error or mistake of judgment in entering into any transaction, in making any sale or investment, in contin uing to hold any property, or by reason of any action or omission, whether by my Trustee or any other fiduciary, unless my Trustee has acted in bad faith. In the absence of proof by affirmative evide nce to the contrary, each Trustee shall be deemed to have acted within the scope of my Trust ees authority, to have exercised reasonable care, diligence, and prudence and to have acted impartially as to all interested persons. A Trustee shall not be liable for the acts or defaults of another Trustee. Article VI. Miscellaneous Provisions Section 6.1 - Representation of Person Under a Disability To the extent allowed by law, where a party to any proceeding trust hereunder has the same interest as a person under a disab with respect to any ility, legal process on the person under a disability may be dispensed with. Section 6.2 - Simultaneous Deaths If a beneficiary under this Trust Agreement and I die simultaneo such circumstances that it is difficult to determine who died usly or under first, then for all purposes of this Agreement such beneficiary shall be deemed to have prede ceased me. Section 6.3 - Law Governing This Agreement shall be construed under the laws of the Unite d States Virgin Islands. Each trust hereby created shall in all respects be regula ted by the laws of the jurisdiction in which such trust is situated, from time to time. If the situs of a trust cannot be determined with certainty, then the laws of the United States Virgin Islands shall apply. Notwithstanding anything to the contrary in this Agreement, my Trustee of each trust created under this Agreement has discretion at any time or times to transfer the situs of such trust to such other country, or such other jurisdiction as my Trustee determines, without obtaining judicial authorization or approval (unless such judicial authorizatio n or approval is required by applicable law) and without the filing of any bond. My Trustee's determ ination to transfer the situs of any trust under this Agreement shall be evidenced by an instrument in writing signed, witnessed and acknowledged by my Trustee in the same manner as would be required for a deed. My Trustee is authorized to take whatever actions are necessary to effect a transfer of situs. If judicial authorization or approval is required to effect a transfer of situs, I intend and desire that the 2657767.1 10 GJ_000305 EFTA00082377  appropriate court ai.A.co the dew:minutia e army Tastecanctrangdhe taut such trust even if one or more beneficiarie etAie sans if s disagree with sorb debt hum my Trustee's transfer of the situs of a trust ni al= pursuant to this Section 63, the administrati trust shall be governed by the law of the new on of Ric': situs of such trust. Section 6.4 - Definition of Terms Except as otherwise specifically provided herein, as used in this Agreement, A. The term "Trustee" means all persons or office of Trustee of any trust hereunder entities who occupy the while such persons or entities occupy whether one or more persons or enti such office, ties occupy the office of Trustee at the sam times, and includes any successor e time or Trustee or Trustees. The term "Personal of a person's estate means all persons or Rep resentative" entities who occupy the office of persona representative, administrator, executo l r, or ancillary administrator while such entities occupy such office, whether one pers ons or or more persons or entities occupy suc the same time or times, and includes any h office at successor or successors to that office. to a person's Will means such person A reference 's Last Will and Testament and any Cod thereto. icil or Codicils B. Whenever the singular number is used, plural, and the masculine gender sha the same shall include the ll include the feminine and neuter genders . Section 6.5 - Trustee Notice My Trustee may have duties and respons this Agreement. If my Trustee has question ibilities in addition to those described in s, my Trustee should obtain legal adv ice. I1 2657767.1 G.1_000306 EFTA00082378  iriennign I have duly executed this Agseement on the ea set opposite ray sigma= Date signed: Jan.... 7 17 1o/ 2. -s )c= PS Date signed: z 7, z of 2_ PS DARREN K. INDYKE, as a T Date signed: JES STALEY, as a Trustee, and Date signed: ANDREW FARICAS, as a Trustee, On this 27 1./ day of././...7, 2012, the fore published and declared to be the First Am going instrument was signed, endment and Restatement to the Jeffrey E. 2001 Trust Two Trust Agreement by JEFFRE Epstein Y E. EPSTEIN, as Grantor, and was signed accepted in our presence; and we, at the Gra and ntor's request, in the Grantor's presence and presence of ea other, did, on said day, sign in the our names as witnesses thereto. residing at 14 - DP-K k..A Ave_ Log.) e_ caa..a 3 a.-we-1r 1?).- 4-1 0a E.1•••3 10,4 i1 4/1 t lost ›taum‘e... residing at ty,eie Gast ec/ -A. AL, f fry. //o.1-2, G.1_000307 EFTA00082379  • •• The foreseing inattsinont wasseam! and SOME se beirst mean' .M. Lifinref TA uzAni , 2012 In JEFFREY E EPSTEN„, the Gra tit) is personally known so Ete ar who hag produced as identification. Sworn to before me this 21 day of lut..72012 HARRY I. SELLER Notary Public. Stare of No. 016E4$539New York Qualified in Rock 24 Co land mmission Expires Feb.Cou nty 17. 20 Notary Public STATE OF PP"' Yeakk ) )ss: COUNTY OF IJPw yak ) The foregoing instrument was subscribed and sworn to before me this Ams 2012, by DARREN K. 27