EFTA01087894.pdf

THE BENJAMIN ELI BLACK 2012 TRUST AGREEMENT Dated: Prepared by McDermott Will & Emery LLP New York, New York DN1_US 39866104-1.088835.0011 EFTA01087894  TABLE OF CONTENTS ARTICLE PAGE I : TRUST FUND 1 II : THE BENJAMIN ELI BLACK 2012 TRUST III : SEPARATE TRUSTS FOR ISSUE 2 IV : SPECIAL DISTRIBUTION RULES 5 V : ADDITIONS 12 VI : TRUSTEES' INVESTMENT AND ADMINISTRATIVE POWERS 14 VII : RESTRICTIONS ON POWERS 27 VIII : IRREVOCABILITY; MODIFICATION 30 IX : ACCOUNTING BY TRUSTEES 33 X : TRUSTEE DESIGNATIONS, RESIGNATIONS, AND REMOVALS 35 XI : ACTION BY TRUSTEES 39 XII : LIABILITY AND INDEMNITY OF TRUSTEES 40 XIII : DEFINITIONS AND RULES OF CONSTRUCTION 41 DM US 39866104-1.088835.001I EFTA01087895  TRUST AGREEMENT made the day of , 2012, between BENJAMIN ELI BLACK, as Settlor, and and , as Trustees. I: TRUST FUND The Senior hereby assigns, transfers and delivers to the Trustees the property listed on Schedule A annexed hereto. The Trustees acknowledge receipt of such property. This property shall be the original Trust Fund of a Trust for the benefit of the Beneficiaries, the dispositive terms of which are set forth in Article II. The Trustees agree to hold such property and all other assets that are a part of the Trust Fund in trust and to manage and dispose of it in accordance with the provisions of this Trust Agreement. The Trust may be identified as the "BENJAMIN ELI BLACK 2012 TRUST." This Trust Agreement may be identified as the "BENJAMIN ELI BLACK 2012 TRUST AGREEMENT." The Beneficiaries under this Trust Agreement at any particular time are those of the Settlor's issue who are then living. The definitions of the other terms used in this Trust Agreement are set forth in Article XIII or where they first appear. II: THE BENJAMIN ELI BLACK 2012 TRUST Following are the dispositive provisions of the "BENJAMIN ELI BLACK 2012 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 DN1_US 39866104-1.088835.0011 EFTA01087896 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. (B) Accumulations. At the end of each year, the Trustees shall separately accumulate any net income not paid or applied pursuant to section (A) of this Article. Such separately accumulated income shall not be added to the principal of the Trust Fund. (C) Trust Termination. (1) Unless sooner terminated by the distribution of the entire Trust Fund, the Trust shall terminate upon the death of the Settlor. When the Trust terminates, the Trustees shall pay the Trust Fund to the Settlor's issue then living, subject to the provisions of Article III. (2) Notwithstanding subsection (1), at any time or from time to time within one year following the death of the Settlor, 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 VI, 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 TRUSTS FOR ISSUE If at the termination of any Trust (including any Trust under this Article), any share of the Trust is payable to an issue of the Settlor subject to the provisions of this Article, 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 the terminated Trust, in their sole discretion, shall direct. 2 DN1_US 39866104-1.088835.0011 EFTA01087897  (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) 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 and without regard to the interest of any remainderman of the Trust. (B) Powers of Appointment. 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 Senior'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 3 DN1_US 39866104-1.088835.0011 EFTA01087898 Primary Beneficiary shall determine, provided that such Primary Beneficiary's power of appointment has not been postponed, suspended or terminated pursuant to Article IV(J). 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 specified in the written instrument or in the Primary Beneficiary's Will, as the case may be, provided, however, that, in the case of an exercise by Will, such date shall be the date of the Primary Beneficiary's death. An appointment shall be revocable until its effective date unless the Primary Beneficiary manifests his or her intention in the instrument by which the appointment is exercised to make such appointment irrevocable. (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 Senior'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 4 DN1_US 39866104-1.088835.0011 EFTA01087899 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: 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) 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 5 DN1_US 39866104-1.088835.0011 EFTA01087900 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) Adopted, Out-of-Wedlock and Posthumously Conceived Children. (1) An individual legally adopted on or before his or her nineteenth (19th) birthday shall be deemed to be a descendant of his or her adoptive parent or parents, and shall be deemed not to be a descendant of a parent of his or hers who consented to such adoption unless the adoption did not terminate such parent's rights as a parent, or unless such parent also adopted such individual. (2) Except as provided in subsection (3) and Article XIII(A)(19), the adoption of an individual after his or her nineteenth (19th) birthday by an adoptive parent other than the Settlor shall be ignored for purposes of determining his or her status as a descendant of any individual. (3) Except as provided in subsection (5), an individual who is the Genetic Child of parents who were not married to each other at the time of his or her birth shall be deemed not to be a descendant of his or her Genetic Father unless the Genetic Father (i) marries the Child's Genetic Mother or was married to the Child's Genetic Mother at any time during the period starting at the time of such individual's conception and ending at the time of his or her 6 DN1_US 39866104-1.088835.0011 EFTA01087901 birth, (ii) adopts the individual at any time, (iii) acknowledges his paternity of such individual in a signed instrument filed with any court or governmental agency or delivered to any Trustee during such father's lifetime or (iv) functioned as a parent of the child. For purposes of this provision, a father shall be deemed to have functioned as a parent of his Genetic Child if he behaved toward the child in a manner consistent with being the child's parent and performing functions that are customarily performed by a parent. (4) Except as provided in subsection (5), an individual who is the Genetic Child of parents who were not married to each other at the time of his or her birth shall be deemed to be a descendant of his or her Genetic Mother unless she has no legal rights as a parent of such child under local law. (5) An individual who is the Genetic Child of a parent who was deceased at the time of such individual's conception (the "Deceased Parent") shall be deemed to be a descendant of the Deceased Parent only if (i) the Deceased Parent gave permission for the use of his or her genetic material in connection with the conception of the individual in an instrument that was signed by the Deceased Parent, and (ii) the Deceased Parent (if living) would have had legal rights as a parent of the Genetic Child upon his or her birth under local law. Notwithstanding the preceding sentence, a Genetic Child shall not be deemed to be a descendant of the Deceased Parent for purposes of determining to whom payments are to be made under this Trust Agreement unless (i) the first posthumously born Genetic Child was born alive within two (2) years after the death of the Deceased Parent, (ii) each subsequently born Genetic Child was born alive within three (3) years after the previously born Genetic Child, and (iii) each Genetic Child is born prior to the Perpetuities Date. 7 DN1_US 39866104-1.088835.0011 EFTA01087902  (6) An individual who is deemed to be a descendant of his or her adoptive parent by reason of adoption shall be deemed to be a descendant of all ancestors of such parent. An individual who is deemed not to be a descendant of a parent of his or hers who consented to his or her adoption by another shall be deemed not to be a descendant of any ancestor of such consenting parent unless such individual is a descendant of such ancestor without regard to his or her relationship to such consenting parent. An individual who is deemed not to be a descendant of his or her parent pursuant to subsection (3) or (4) shall be deemed not to be a descendant of any ancestor of such parent unless such individual is a descendant of such ancestor independent of his or her relationship to such parent. (7) For purposes of this section: (i) a child is the "Genetic Child" of each of the two individuals from whom he or she inherited one-half of his or her DNA; (ii) the man from whom a child inherited one-half of his or her DNA is such child's "Genetic Father," and (iii) the woman from whom a child inherited one-half of his or her DNA is such child's "Genetic Mother." (D) 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. (E) (Indisposed of Property. 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 8 DN1_US 39866104-1.088835.0011 EFTA01087903 inherited it from the Senior, 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. (F) 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 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. (G) Judicial Intervention. Under no circumstances shall § 7-1.6 of the EPTL or any similar provisions of law apply to any Trust. (H) Statutory Reimbursement. Under no circumstances shall § 7-1.11 of the EPTL or any similar provisions of law apply to any Trust if its application to such Trust would cause any portion of the Trust Fund of such Trust to be subject to the claims of the Settlor's creditors. (I) Distributions to Trusts. If the Independent Trustees of a Trust (the "original Trust") have the discretion to pay a portion (or all) of the Trust Fund of the original Trust (the "permitted portion") to or for the benefit of any one or more beneficiaries of such Trust (the "original discretionary beneficiaries"), such Independent Trustees may exercise such discretion by directing the payment of any part or all of the permitted portion to the trustee or trustees of another trust for the benefit of one or more of the original discretionary beneficiaries 9 DN1_US 39866104-1.088835.0011 EFTA01087904 (the "recipient trust"), provided, however, that (i) the recipient trust does not direct or permit payments to or applications by the trustees for the benefit of any Person other than one or more of the beneficiaries of the original Trust, (ii) the recipient trust does not reduce any fixed income interest of any income beneficiary of the original Trust, (iii) the recipient trust ends no later than the Perpetuities Date, (iv) the Independent Trustees give the Settlor written notice of his, her or its intention to make such direction at least five (5) days before making the direction and (v) if the Settlor is not competent, the Independent Trustees give each beneficiary of the original Trust written notice of his, her or its intention to make such direction at least five (5) days before making the direction. For purposes of clause (i) of the preceding sentence, the beneficiaries of the original Trust shall include all beneficiaries of such Trust, whether original discretionary beneficiaries, income-only beneficiaries or remainderrnen, and for purposes of clause (v) of the preceding sentence, the beneficiaries of the original Trust shall include only those persons who are competent and to whom current distributions from such Trust may be made. Notwithstanding the first sentence of this section, the terms of the recipient trust may provide any one or more of the original discretionary beneficiaries with a power of appointment exercisable in favor of one or more individuals, regardless of whether any such individual is a beneficiary of the original Trust. Power to Postpone. (1) This Trust Agreement gives each Primary Beneficiary of a Trust under Article III certain powers beginning on the date on which he or she attains the age of thirty-five (35) years. (a) The Independent Trustees of a Trust under Article III may postpone the age 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 10 DN1_US 39866104-1.088835.0011 EFTA01087905 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 or III may, prior to funding a Trust under Article III, 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 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 may suspend or terminate 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. (K) Power of Appointment. The Independent Trustees, at any time, may grant to the Settlor a limited power of appointment, which may be subject to such restrictions as the Independent Trustees set forth in the instrument by which the power is granted, provided, II DN1_US 39866104-1.088835.0011 EFTA01087906 however, that (a) the effective date of the Settlor's exercise of any such power of appointment shall not be prior to the date of the Settlor's death, (b) no such power may be exercised in favor of the Settlor, the Settlor's estate, the Settlor's creditors or the creditors of the Settlor's estate and (c) such power may only be exercisable over the principal portion of the Trust Fund and not over separately accumulated income. The grant of this power shall be effected by a written instrument signed by a majority of the Independent Trustees and delivered to the Settlor, and may be revoked at any time during the Settlor's lifetime by written instrument of revocation signed by a majority of the Independent Trustees and delivered to the Settlor. If revoked, a new power of appointment may be granted as provided in the preceding provisions of this section. (L) 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 Trustees have paid assets of the Trust or from the Trustees (in their capacities as Trustees) to the extent of any remaining Trust property. V: 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 12 DM US 39866104-1.088835.0011 EFTA01087907 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 Front 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. (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. 13 DN1_US 39866104-1.088835.0011 EFTA01087908  (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). (C) Additions as Principal. All receipts of a Trust through Additions shall be characterized as principal for accounting purposes. The term "Addition" shall mean an addition (other than a Pour-Over) made to the Trust under Article II by an individual by a transfer during such individual's lifetime. VI: TRUSTEES' INVESTMENT AND ADMINISTRATIVE POWERS (A) Overriding Limitation on Powers. The provisions of this Article are expressly subordinate to the overriding provisions of Article VII. (B) General Powers. The Trustees shall have all powers and discretion conferred generally upon fiduciaries by EPTL § 11-1.1 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 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 14 DN1_US 39866104-1.088835.0011 EFTA01087909  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 Settlor, 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 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 whatsoever, and to give or not to give security for the loan; 15 DN1_US 39866104-1.088835.0011 EFTA01087910  (9) To consent, or to decline to consent, to the election (including any that is now in effect) by any corporation to be taxed under subchapter S of the Code or any comparable provision under state law; (10) To make any loans, either secured or unsecured, in such amounts, and upon such terms as to interest and repayment, and to such Persons (including, but not limited to, the Personal Representatives of any estate and the trustees of any trust), as they determine in their discretion, and, in the case of a loan to any estate or trust, irrespective of whether any beneficiary, Personal Representative or trustee of any such estate or trust is a beneficiary or Trustee under this Trust Agreement; provided that all loans, other than loans from a Trust to a beneficiary of that Trust to whom current distributions of income may be made, shall be made at a reasonable rate of interest, and provided further that only the Independent Trustees may participate in any decision to lend property at less than a reasonable rate of interest; (11) To purchase assets at their fair market value from any estate or trust, upon such terms and conditions as they shall determine, and irrespective of whether any beneficiary, Personal Representative or trustee of such estate or trust is a beneficiary or Trustee hereunder; (12) To sell, liquidate, incorporate or carry on (for any period) any business which is or was conducted by the Settlor or in which the Settlor is or was interested as shareholder, partner or otherwise; (13) To hold property in the name of a nominee or unregistered or in such form as will pass by delivery; (14) To remove all or part of the assets or change the situs of administration of any Trust from one jurisdiction to another jurisdiction, and to elect, by an instrument signed by the Trustees of such Trust and filed with the records of such Trust, that the law of any other jurisdiction shall thereafter govern any one or more of the administration of any Trust, the construction of the terms of any Trust and the validity of any Trust to such extent as the Trustees may deem necessary and appropriate, at any time or from time to time (and any number of times) as they deem advisable; (15) To satisfy any disposition (other than a specific disposition) or effect any distribution of income or principal with any property not otherwise specifically disposed of, including an undivided interest in property, in kind or in cash or partly in each to any one or more beneficiaries, whether or not the same kind of property is distributed to other beneficiaries having comparable interests; (16) To credit receipts (including, but not limited to, gains from the sale or exchange of property) and to charge expenditures and other disbursements to or between income and principal in such amounts and proportions as the Trustees 16 DN1_US 39866104-1.088835.0011 EFTA01087911  deem advisable, without regard to any prior allocation made at any time and notwithstanding any contrary provision of law; (17) To open and maintain bank accounts and brokerage accounts, including margin accounts; (18) To do any and all acts, to exercise any and all rights, to enter into any and all proceedings, contracts (including contracts containing guarantees, warranties, representations and indemnifications of any kind or nature), and other instruments (whether or not specified above and including but not limited to the preparation and filing of any and all registration statements and papers, documents and instruments of whatever kind and nature with the Securities and Exchange Commission and the payment of any and all expenses in that connection) necessary or proper in their opinion in the administration of any Trust as fully as if they were the absolute owners of such property; (19) To mortgage or pledge any or all of the assets of any Trust (herein, the "Pledging Trust") as security for any loan to, or otherwise in connection with any transaction involving, (i) the Pledging Trust or any other trust the Beneficiaries of which are the same as the Beneficiaries of the Pledging Trust, (ii) a Beneficiary, or (iii) any Entity in which the Pledging Trust, any trust described in clause (i), above, or a Beneficiary has an interest; to guarantee the debt or any other obligation or liability of the Pledging Trust, any trust described in clause (i), above, a Beneficiary or any Entity in which the Pledging Trust, any trust described in clause (i), above, or a Beneficiary has an interest; to indemnify any lender or other party against any claim, loss, obligation, liability or expense of any nature in connection with any loan to, or other transaction a participant in which is (w) the Pledging Trust, (x) any trust described in clause (i), above, (y) a Beneficiary or (z) any Entity in which the Pledging Trust, any trust described in clause (i), above, or a Beneficiary has an interest; and to pledge any or all of the assets held in the Pledging Trust as security for any such indemnity, provided that only the Independent Trustees may participate in the exercise of this power and that, for purposes of this provision, a Person shall be deemed to be a Beneficiary of a trust only if the trustee of such trust may make current distributions to him or her; and (20) To engage on behalf of any Trust in any type of security, commodity or currency transaction (including, without limitation, short sales, purchases on margin and over-the-counter and private transactions); to buy and sell any type of option contract (including, without limitation, so-called puts, calls, and straddles), or any combination of any types of option contract, relating to securities, commodities or currencies; to purchase quantities of any commodity or currency for present or future delivery; to borrow all or any part of the purchase price; and in the case of any such commodity purchase, to make all arrangements that the Trustees of such Trust deem advisable for the storage, maintenance and preservation of the commodity so purchased, and to pay all storage expenses, carrying charges and other expenses incurred in connection 17 DN1_US 39866104-1.088835.0011 EFTA01087912  therewith out of such Trust; and to sell quantities of any commodity or currency for present or future delivery. (C) Reliance on Statement of Financial Resources. If the Trustees and/or Independent Trustees of a Trust consider the financial resources of a beneficiary in exercising their power to determine that distributions should be made from such Trust to or for the benefit of such individual, then they may, without further investigation, rely upon any written statement made by such individual, or on such individual's behalf, as to the nature and extent of such individual's financial resources. (D) Exoneration of Third Parties. (1) No Person dealing with the Trustees shall be bound to see to the application or disposition of cash or other property transferred to them or to inquire into the authority for or propriety of any action by the Trustees. (2) Every Person contracting or otherwise dealing with the Trustees of a Trust shall look only to the funds and property of such Trust for payment under such contract or payment of any money that may become due or payable under any obligation arising under this Trust Agreement, in whole or in part, and the Trustees shall not be individually liable therefor even though the Trustees did not exempt themselves from individual liability when entering into any contract, obligation or transaction in connection with or growing out of such Trust. (E) Consolidation of Trust Property. The Trustees shall not be required to segregate physically the property of multiple Trusts, but may, in their discretion, maintain any part or all of the trust property of any two or more Trusts in one or more consolidated funds, in which event the division of each such consolidated fund into the various shares or parts comprising it need be made only on the Trustees' books of account. 18 DN1_US 39866104-1.088835.0011 EFTA01087913  (F) Combination and Division of Trusts. (1) The Trustees may combine any two or more Trusts having identical terms and identical beneficiaries and administer the combined Trusts as a single Trust. (2) The Trustees may divide any Trust into two or more separate Trusts of equal or unequal size, each having terms identical to the terms of the original Trust. (3) If, pursuant to any authority granted in this Trust Agreement, the Trustees direct that (a) any Trust shall be divided into two or more separate Trusts or (b) any share of any Trust shall be held in more than one Trust, then the Trustees shall determine which property then allocated to or held in such Trust or share shall be allocated to each such separate Trust. (G) Powers Relating to Closely Held Business and Investment Interests. (1) As to each and any Entity, public or private, in which the Trustees, as such, hold or acquire, directly or indirectly, an equity interest, if the fair market value of such interest of the Trustees when aggregated with the fair market value of the equity interests in such Entity of (i) the Settlor and (ii) the trustees of all other trusts of which the Senior is the settlor, exceeds one percent (1%) of the fair market value of such Entity, such Entity being hereinafter referred to as "the Closely Held Entity," the Trustees are hereby authorized to retain the shares thereof or interest therein for as long as they deem to be in the best interests of any Trust, regardless of the fact that such shares or interest might produce no income, regardless of any duty to diversify investments, and notwithstanding any other fiduciary obligation which might require them to dispose of such shares or interest. (2) With respect to each and every Closely Held Entity, the Trustees of any Trust are authorized, to the extent permitted by law, to exercise their rights and powers as holders of the shares or other interests in such Closely Held Entity to effect its continued 19 DN1_US 39866104-1.088835.0011 EFTA01087914 operation, or the sale or other disposition of its assets or business, or, in their sole discretion, to sell, exchange, offer for redemption, or otherwise dispose of the shares of or other interests in the Closely Held Entity owned by any Trust, or to effect the liquidation or dissolution of the Closely Held Entity, at such time or times and upon such terms and conditions as the Trustees, in their sole discretion, shall determine. (3) The Trustees may participate in the management of any Closely Held Entity to the extent that their interest therein permits. They are expressly authorized (without limiting the generality of the foregoing), in their sole discretion, to select, vote for and remove directors of the Closely Held Entity (if the Closely Held Entity is a corporation); to name or change officers, managing personnel and/or operating personnel; to reduce, expand, limit or otherwise change the Closely Held Entity's trade or business, or any property or investment that it holds; to require surety bonds of employees and/or officers and specify the amount of such bonds and the bonding company; to employ accountants or engineers to appraise or evaluate the Closely Held Entity's business or assets; to employ investment or legal counsel, including any firm with which a Trustee may be affiliated; to charge the costs of such services against the interest in the Closely Held Entity owned by any Trust,