EFTA01146128.pdf

THE BLACK 2006 FAMILY TRUST AGREEMENT Dated: "PeCtinkitt 2.1, ZOO iv r NY I A1470407,01WSKN0I LDOC1.26504.0COI •\\ nA EFTA01146128  TABLE OF CONTENTS A' RTICLE: I : TRUST FUND 1' II : THE BLACK 2006 FAMILY TRUST • '• M. SEPARATE TRUSTS FOR ISSUE 4 IV : SPECIAL DISTRIBUTION RULES • - -- V : ADDITIONS 16 VI : TRUSTEES' INVESTMENT AND ADMINISTRATIVE POWERS ' • •*17 VII : RESTRICTIONS ON POWERS • VIII : IRREVOCABILITY; MODIFICATION ' 32 IX : ACCOUNTING BY TRUSTEES •. . • ' 37 X : TRUSTEE DESIGNATIONS, RESIGNATIONS, AND . ..;. XI : :ACTION BY TRUSTEES 42 XII : LIABILITY AND INDEMNITY OF TRUSTEES 43 : DEFINITIONS AND RULES OF CONSTRUCTION 45 NY I A147040701WSKN0I !.PO(.126504.0071 EFTA01146129  TRUST AGREEMENT made the 21st day of December, 2006, between LEON D. BLACK, as Settlor, and LEON D. BLACK and JOHN J. HANNAN, as Trustees. I: TRUST FUND The Settlor hereby assigns, transfers and delivers to the Trustees the property listed on Schedule A annexed hereto. The Trustees acknowledge receipt of such property and agree to hold such property and all other assets that are a part of the Trust Fund in mist and to manage and dispose of it in accordance with the provisions of this Trust Agreement. 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 Trust may be identified as the "BLACK 2006 FAMILY TRUST." This Trust Agreement may be identified as the "BLACK 2006 FAMILY TRUST AGREEMENT." 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. The definitions of the other terms used in this Trust.Agreement are set forth in Article XIII or where they first appear. II: THE BLACK 2006 FAMILY TRUST Following are the dispositive provisions of the "BLACK 2006 FAMILY TRUST': (A) Mandatory Income Payments to Settlor. (1) Each year the Trustees shall distribute to an amount equal to the Trust Accounting Income in such installments as may be convenient to the Trustees. (2) For purposes of this section, the term "Tnist Accounting Income" shall mean any distribution received by the Trust with respect to an interest in any of the Relevant Companies held in the Trust to the extent such distribution is derived from the Operating Profits NY 47040701WSKNOI I.D0026504.0031 EFTA01146130 of any such Relevant Company. For purposes of this section, the term "Operating Profits" shall mean net profits for any year without taking into account any items of income, gain, loss or deduction generated or incurred in connection with a transaction constituting a Distribution Event. For, purposes of this section, the term `Distribution Event" shall be interpreted broadly, and shall mean an extraordinary transaction (or a series of related transactions) involving any one or more of the Relevant Companies, whether occurring directly or indirectly, that constitutes a sale to, or material investment by, a Third Party Investor, in circumstances in which one or more members or partners of the Relevant Companies receive Distributions (or sales proceeds in respect of their interests) as a result of, or in connection with, such extraordinary transaction (or series of related transactions). For purposes of this section, the term "Distributions" shall mean all distributions made by any Relevant Company to its members or partners, whether in cash, property, dividends or distributions upon the occurrence of a dissolution of such Company or otherwise. For purposes of this section, the term "Third Party Investor" shall mean a Person who is not a private equity professional employed by a Relevant Company and who makes an investment in the Relevant Company in circumstances designed to monetize one or more of the equity interests in any Relevant Company. (3) For purposes of this section, the term "Relevant Companies" shall mean all of the following entities, including any of their subsidiaries or successors in interest (whether by way of merger, exchange of interests or otherwise): Apollo Management, L.P., Apollo Management IV, L.P., Apollo Management V, L.P., Apollo Management VI, L.P., Apollo Investment Management, L.P., Apollo Value Management, L.P.; Apollo SVF Management, L.P., Apollo Asia Management, L.P., Apollo Europe Management, L.P. and Apollo Alternative Assets, L.P. NY I A14704071MVSKNOILCOCV.6504.0001 2 EFTA01146131  (B) Distributions. (1) The Trustees shall pay or apply as much of the income C of the Trust not disposed of pursuant to section (A) of this section and as much of the principal of the Trust to DEBRA so long as DEBRA is a Beneficiary as the Trustees, in their sole discretion, shall determine is necessary for DEBRA's health, education, support and maintenance, taking into consideration DEBRA's financial resources apart from the.Trust. (2) The Trustees shall pay or•apply as much of the remaining income of the Trust not disposed of pursuant to section (A) of this section and as much of the principal of the Trust 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 tithe 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. (3) 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 Article. The Senior confirms that the entire Trust Fund may be distributed at any time to or for the benefit of any one or more of the Beneficiaries pursuant to this section, even though such distribution terminates the Trust, without regard to the interest of any rernainderrnan of the Trust. (C) Trust Termination. (1) Unless sooner terminated by the distribution of the entire Trust Fund, the Trust shall terminate upon the death of the Senior, or, if the Settlor is survived by the Senior's spouse, upon the earlier to occur of the death of the Senior's spouse and the Perpetuities Date. The date on which the Trust is to terminate is referred to as the NYI :\147040701WSKNOI D01126504.0001 3 EFTA01146132 "Termination Date." Upon such termination, the Trustees shall pay the Trust Fund to the Senior's Children living on the Termination Date in equal shares, or if none of the. Settlor's Children is living on the Termination Date, to the Settlor's issue living on the Termination Date, subject, in each case, to the provisions of Article DI. (2) Notwithstanding subsection (1), at any time or from time to time within one year following the death of the survivor of the Settlor and the Senior's spouse, 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 an ys_oz_a est ayicust,'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). HI: SEPARATE TRUSTS FOR ISSUE If at the termination of any Trust (including any Trust under this Article), any share of such 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 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 NY1AI 470407VWSICN01IDOC\26504.0001 EFTA01146133 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, without regard to the interest of any remainderman of the Trust. (4) It is the Senior's desire, but not the Senior's direction, that when the Primary Beneficiary attains thirty-five (35) years of age, the Trustees distribute to the Primary Beneficiary TEN (10%) PERCENT of the Trust Fund if the Independent Trustees believe it appropriate to do so. (B) Primary Beneficiary's Right to Direct Payment. (1) In each calendar year prior to the year of the Primary Beneficiary's death, if the Primary Beneficiary is competent and at least twenty-five (25) 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 three percent (3%) of the Trust Fund valued on the Withdrawal Valuation Date as hereinafter defined of the calendar year in which the NY I ANIIN0T0IWSKN0ILDOO26504.0001 S EFTA01146134  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 portion of such calendar year preceding such direction, provided that such Primary Beneficiary's right to direct such payment has not been postponed, suspended or terminated pursuant to Article IV(J). - 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, conrunittee,attomey-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 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 NYIN4/0407101WSKNOILDOC126504.0001 6 EFTA01146135  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. (C) Powers of Appointment. (1) At any. time or from time to time, the Primary Beneficiary, if he or she is at least twenty-five (25) years of age, shall have the absolute power to appoint any part or all of the Trust Fund to or for the benefit of such' one or more of the SettIor's issue (other than the Priniary 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 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 at any time when he or she is competent either (a) by a written instrument that is delivered to the Trustees, which makes specific reference to this section and which is signed and acknowledged by the Primary Beneficiary 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 NY! A147040701WSKNOI I.D00265044001 7 EFTA01146136 the case of an exercise by Will, such date shall not precede 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) 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 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 NY IK1470407 01WSKN01!.DOC.26507.0001 8 EFTA01146137 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 Senior 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)• Termination on Perpetuities Date. Notwithstanding any other provision of this Trust Agreement, the Trust shall terminate, unless it shall have sooner. terminated, on the Perpetuities Date. Upon such termination, 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 NY I A147040701WSKNOMDOC126504.0001 9 EFTA01146138 (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) Iri 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 for such individual's benefit under the Uniform Gifts to' Minors Act or the Uniform .Transfeis 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 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 X111(AX23), the adoption of an individual after his or her nineteenth (19th) birthday by an adoptive parent other thtin the NYI:U6704O7'OIWf1O.31LOOO24504.0001 10. EFTA01146139 Senior shall be ignored for purposes of determining his or her status as a descendant of any individual. (3) 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 (a) unless the father (i) marries his or her mother or was married to his or her 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 birth, (ii) adopts the individual at any time, or (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 (b) unless subsection (5) applies. (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 shall be deemed to be a descendant of such parent only if (i) such individual was born within the two (2) year period after such parent's death and before the Perpetuities Date, (ii) such parent gave permission for the use of his or her genetic material to the surviving parent in connection with the conception of such individual by such parents in an instrument that was signed by the deceased parent, and (iii) such deceased parent (if living) would have had legal rights as a parent of such child upon his or her birth under local law. (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. NY I AI 470407501WSKNORD0026504.0C01 11 EFTA01146140  Ati 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. (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 other 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) Undisposed of Property. If upon the occurrence of any event any share of a tenninated 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. (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 NY1 A1470407OIWSKN0I LDOCk26504.0001 12 EFTA01146141  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 bet L or any similar provisions of law apply to any Trust. (H) Statutory Reimbursement. Under no circumstances shall § 7-1.11 of the EPTI. 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 (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, and (iv) the Independent Trustees give each beneficiary of the original Trust written notice of his, her or its intention to make such direction at least thirty (30) days before making the direction. For purposes of clause (i) of the preceding• sentence, the NY1A14704070AVSKNOILD0026,14.00011 13 EFTA01146142  beneficiaries of the original Trust shall include all beneficiaries of such Trust, whether original discretionary beneficiaries, income-only beneficiaries or remaindermen, and for purposes of clause (iv) 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. (J) 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 twenty-five (25) years or beginning with the first calendar year following the calendar year in which the Primary Beneficiary attained the age of twenty-five (25) years. (a) The Independent Trustees of a Trust under Article Ell 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 or III may, prior to funding a Trust under Article 111, 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 Tnistees of the . NY 1A1470407`01VISKN0I I.00C126504.0001 14 EFTA01146143  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 right to direct payment 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. (K) 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 NY1 A1410401VIWSKNO1ID0026504.1X601 15 EFTA01146144 extent of any remaining Trust property. The exercise in DEBRA's Will of a power of appointment granted under this Trust Agreement shall be valid only if DEBRA is the Senior's spouse at the time of DEBRA's death. V: ADDITIONS (A) General Provisions Regarding Additions. The Senior 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 Senior'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 Senior 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. NY 1A147040TO I WSKNOI LDOM26504.0001 16 EFTA01146145  (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 Senior's lifetime or under the Senior'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. For purposes of this Article, an."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: NY I K147040701WSKNO1LIDOCYZ6504 0001 17 EFTA01146146  (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 ₹iduciary; 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 Truitees 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; NY :%) 470407%3 I WSKNOI L D00265a4.0001 18 EFTA01146147  . (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 Senior or any of the Trustees, for any purpose whatsoever, and to give or not to give security for the loan; (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 estateor 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 such other jurisdiction shall thereafter govern the same to such extent as may be necessary and appropriate, at any time or from time to time (and any number of times) as they deem advisable; NYIAMOMYADIMMOILD0026$04000I 19 EFTA01146148  (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 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 (0, 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 patty 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) an