EFTA01087456.pdf

THIS AGREEMENT made as of the day of , 2013, among LEON D. BLACK of the State of New York (hereinafter referred to as the "Grantor"), and BARRY J. COHEN, RICHARD RESSLER, and JOHN J. HANNAN (hereinafter along with any other person, bank or trust company qualifying as additional or successor trustees, referred to as the "Trustees"). WITNESSETH: This trust agreement shall be known as the APO2 FAMILY TRUST AGREEMENT. The Grantor hereby transfers to the Trustees the property shown on Schedule A annexed hereto, which property shall be held by the Trustees IN TRUST in accordance with the provisions of this Trust Agreement. Unless otherwise directed herein, or in the documentation directing property to be held in trust under this Agreement, property set aside in trust in accordance with this agreement shall be governed by Clause FIRST. FIRST: DISCRETIONARY TRUST All trust property directed to be disposed of under, or in accordance with, this Clause FIRST shall be held by the Trustees IN TRUST (the "Discretionary Trust") in accordance with the following provisions: (A) The Trustees shall pay so much of the income of the Discretionary Trust as the Trustees may deem advisable from time to time, in equal or unequal shares, to or for the use or benefit of one or more of the Grantor's wife DEBRA (as defined in Clause THIRTEENTH) and the Grantor's descendants living from time to time, in the Trustees' sole and absolute discretion. Any income not directed to be paid EFTA01087456  USI:81364901v2 for any year of the Discretionary Trust shall be accumulated by adding such income to the principal of the Discretionary Trust. (B) At any time and from time to time, the Trustees may pay so much of the principal of the Discretionary Trust, in equal or unequal shares, to or for the use or benefit of one or more of DEBRA and the Grantor's descendants living from time to time, in the Trustees' sole and absolute discretion. (C) In lieu of making a distribution of income and/or principal directly to one or more of the Grantor's descendants, as beneficiaries of the Discretionary Trust, the Trustees may direct that such income and/or principal so distributed be identified by the name of a particular descendant and (i) disposed of under Clause SECOND, or (ii) paid to the Trustees of any "Other Trust" as authorized by paragraph (D) of Clause FOURTH. (D) Unless sooner terminated pursuant to the foregoing provisions of this Clause FIRST, the Discretionary Trust shall terminate upon the earlier to occur of (i) the death of all of the Grantor's descendants, and (ii) the expiration of the period set forth in Clause SIXTH. SECOND: SEPARATE TRUSTS FOR DESCENDANTS All trust property directed to be held IN TRUST for a descendant of the Grantor under or in accordance with this Clause SECOND shall be held in a separate trust (a "Separate Trust") for the benefit of the descendant for whom such property was set aside (each such descendant herein referred to as the "Beneficiary" with respect to his or her Separate Trust), in accordance with the following provisions: 2 EFTA01087457  USI:81364901v2 (A) The Trustees shall pay to or apply for the use or benefit of the Beneficiary and his or her descendants so much, including all, of the income of his or her Separate Trust as the Trustees, in the Trustees' sole and absolute discretion, may deem advisable from time to time. Any income of the Separate Trust not directed to be paid for any year of the trust shall be accumulated by adding such income to the principal of the Separate Trust. (B) The Trustees may, in the Trustees' sole and absolute discretion, pay to or apply for the use or benefit of the Beneficiary and his or her descendants so much, including all, of the principal of his or her Separate Trust as the Trustees may deem advisable. (C) Upon the death of the Beneficiary, the remaining property of his or her Separate Trust shall be disposed of as the Beneficiary may appoint by his or her last Will duly admitted to probate, in favor of any one or more individuals; provided, however, that subject to the provisions of paragraph (D) of Clause FIFTH, the Beneficiary may not appoint any such property in favor of himself or herself, his or her estate, his or her creditors or the creditors of his or her estate. Any trust property not effectively appointed by the Beneficiary pursuant to this paragraph shall be divided, per stirpes, for the Beneficiary's then living descendants, or, if the Beneficiary has no then living descendants, per stirpes, for the then living descendants of the Beneficiary's nearest ancestor who is either the Grantor or a descendant of the Grantor, and who has then living descendants, or if there be no such descendants, such property shall be divided, per stirpes, for the Grantor's then living descendants; provided, however, each share set aside hereunder (other than by exercise of a power of appointment) for a 3 EFTA01087458  USI:81364901v2 descendant of the Grantor shall not vest in or be distributed to such descendant, but instead shall be held in a Separate Trust for such descendant in accordance with this Clause SECOND or if a Separate Trust shall already be in existence for such descendant under this Clause SECOND, such share shall be added to such Separate Trust. (D) Except as set forth in paragraph (E) of Clause FOURTH and paragraph (D) of Clause FIFTH, all trust principal set aside for a descendant of the Grantor and directed to be disposed of under or in accordance with this Clause SECOND shall be held in a single Separate Trust for such descendant so that there shall be only one Separate Trust for such descendant under this Clause SECOND. (E) The Grantor further authorizes and empowers the Trustees, in the Trustees' sole and absolute discretion, to retain the trusts under this Clause SECOND in one fund for the purpose of investment and reinvestment, crediting each trust with its proportionate share of income, profits and appreciation in value, and charging each trust with its proportionate share of expenses, losses and diminution in value. This provision is solely for the purpose of convenience in administration and nothing contained herein shall destroy the individual character of any trust or prevent the release of principal funds upon the termination in whole or in part of any trust or the making of discretionary payments from the income and/or principal of such trust. THIRD: MARITAL TRUST Any property directed to be held in a separate trust created under this Clause THIRD for DEBRA (the "Marital Trust") shall be disposed of in accordance with the following provisions: 4 EFTA01087459  USI:81364901v2 (A) During the life of DEBRA, the Trustees shall pay to her all of the income of the Marital Trust, at least quarter-annually. (B) At any time and from time to time during the life of DEBRA, the Trustees shall pay to or for the benefit of DEBRA so much, including all, of the principal of the Marital Trust as the Trustees may deem advisable for her medical needs and emergencies. (C) Upon the death of DEBRA, the remaining principal of the Marital Trust shall be disposed of in accordance with Clause FIRST of this Agreement. (D) The Grantor confirms that his Executors have the absolute discretion to determine whether and to what extent to make an election pursuant to Section 2056(b)(7) of the Code, or any successor thereto, and any similar statute under state law. The Grantor's Executors may determine to make said election or elections with respect to all or any part or none of the Marital Trust created under this Clause, all in the Executors' complete discretion. The Grantor suggests to his Executors by way of illustration and without limiting such Executors' absolute authority, that the Grantor's Executor consider in making said election not only the Federal and state estate tax consequences for the Grantor's estate but also the Federal and state estate and gift tax consequences for DEBRA which result from said election. The determination of the Grantor's Executors as to whether and to what extent to make said election shall be absolute and conclusive, regardless of the personal interest any such Executor may have in the consequences of such election. The Grantor's Executor shall not be held liable, responsible or accountable, in court or otherwise, to any beneficiary, for the 5 EFTA01087460  USI:81364901v2 consequences of the exercise, the manner of exercise or failure to exercise the power granted under this Clause. (1) The Grantor directs that any trust principal passing under this Clause which the Grantor's Executors do not elect to qualify for the marital deduction shall be held in a separate trust, apart from the principal of the trust under this Clause for which an election is made by the Grantor? Executor to qualify for the marital deduction. The Grantor further directs that any trust principal passing under this Clause which the Grantor's Executors elect to qualify for the marital deduction for either state estate tax purposes or Federal estate tax purposes, but not both, also shall be held in a separate trust. All such trusts shall be administered under this Clause in accordance with the terms above set forth. Without imposing any legal obligation upon the Trustees, the Grantor recommends that, in making discretionary principal payments to DEBRA pursuant to paragraph (B) of this Clause, the Trustees take into account all potential transfer taxes. (2) Notwithstanding anything in this Agreement to the contrary, any power, duty or discretionary authority granted to any Trustee hereunder (other than the power to make elections under any tax law) shall be absolutely void to the extent that the right to exercise such power, duty or authority or the exercise thereof would in any way affect, jeopardize or cause the disallowance to any trust created under this Clause of all or any part of the tax benefit afforded by the marital deduction provisions of Section 2056 of the Code (to the extent so elected by the Executors of the Grantor's estate). 6 EFTA01087461  USI:81364901v2 (3) If any part of DEBRA's gross estate for Federal tax purposes consists of property which is includible by reason of Section 2044 of the Code, relating to certain property for which the marital deduction was allowed in the Grantor's estate, the Executors of DEBRA's estate shall be entitled to recover from the Trustees of the Marital Trust created under this Clause the estate taxes payable by DEBRA's estate by reason of such inclusion, in accordance with the Code and the law of DEBRA's domicile at the time of her death; provided that none of the payments shall be made from property which is not included in DEBRA's gross estate for Federal estate tax purposes. FOURTH: GUIDELINES AND LIMITATIONS (A) (1) After taking into account the provisions of paragraph (B) of Clause THIRD and paragraph (C) of this Clause FOURTH, in exercising the discretionary powers granted to the Trustees to pay principal under any trust created hereunder, the Trustees shall have absolute discretion and plenary power to pay principal for any reason or purpose whatever, even to the extent of terminating a trust by paying all of the principal at any one time. In paying principal, the Trustees need not consider the other resources that may be available from any source to the beneficiary and may pay principal without regard to the need of the beneficiary therefor. The Grantor suggests to the Trustees, but only by way of illustration and without limiting their plenary powers, that principal may be paid in the Trustees' discretion not only to enable a beneficiary to meet the expenses of emergencies or illness or medical, dental or nursing care, but also to make up deficiencies in income caused by inflation or changes in the beneficiary's cost or style of living; because of the burdens of income or estate or gift or generation-skipping transfer ("GST") taxation or changes in the tax laws; to enable a 7 EFTA01087462  USI:81364901v2 beneficiary to obtain the best possible education (including graduate and professional training), to take advantage of a business, professional or investment opportunity, to assume and meet family responsibilities, travel, acquire a dwelling (including a seasonal dwelling or a cooperative apartment), or for any other reason whatsoever that the Trustees may have at any time. The Grantor wishes to stress that the interest of the remaindermen shall be secondary and subordinate to the well-being of the income beneficiary or beneficiaries. The judgment of the Trustees as to whether, when and to what extent to pay principal of any trust shall be absolute and conclusive and no court shall have power under any statute to direct payment of principal to any beneficiary or any creditor of a beneficiary. (B) In exercising the discretionary powers granted to the Trustees with respect to the Discretionary Trust and each Separate Trust, after taking into account the provisions of paragraph (C) of this Clause FOURTH, in determining whether to pay or accumulate income, the Trustees may pay income for any reason or purpose, and the Trustees need not consider the other resources that may be available from any source to a beneficiary. The Trustees may at any time, in their sole and absolute discretion, pay income and/or principal to any one of the eligible beneficiaries, exclusively, or to any two or more of such beneficiaries in equal or unequal shares, without regard to any prior payments that may have been made by the Trustees. The determinations of the Trustees as to what extent and to whom to pay (or not pay) income and principal at any time shall be conclusive. (C) In exercising the discretionary powers to pay income and/or principal to a beneficiary of the Discretionary Trust or a Separate Trust, in addition to any 8 EFTA01087463  USI:81364901v2 other factors the Trustees deem appropriate, the Grantor requests, but does not direct or require, that the Trustees consider the following factors: (1) Whether the beneficiary has taken appropriate steps to educate and familiarize himself or herself regarding financial matters, asset management and estate planning, and whether the beneficiary has reasonable access to competent professional advisors. (2) Whether there is a Pending Matrimonial Action (as defined in Clause THIRTEENTH) or Marital Discord (as defined in Clause THIRTEENTH) with respect to the beneficiary. (3) The extent to which the beneficiary is indebted to creditors, including former spouses, or otherwise involved in any litigation. (4) Whether the beneficiary is suffering from a psychological or medical condition that may impair the beneficiary's emotional stability, regardless of whether the beneficiary is seeking any treatment, either inpatient or outpatient. The Trustees may consult with medical personnel as necessary to make the determination. (5) Whether the beneficiary will use the distributed funds to perpetuate a drug or alcohol problem or other negative addictive activities, such as gambling. (D) Subject to Clause SIXTH, the Grantor specifically authorizes those Trustees who may participate in decisions with respect to distributions from a trust created under any provision of this Agreement (the "Original Trust"), in lieu of distributing income and/or principal to a beneficiary or beneficiaries of the Original 9 EFTA01087464  USI:81364901v2 Trust, to pay such income and/or principal to an existing trust or to a trust to be established by the Trustees for such beneficiary or beneficiaries (an "Other Trust"), even to the exclusion of one or more current or contingent beneficiaries of the Original Trust, without notice to current or contingent beneficiaries of the Original Trust and without court filings of any kind; provided, however, no share of principal from an Original Trust with an inclusion ratio (as defined in Section 2642(a)(1) of the Code) of greater than zero shall be added to an Other Trust with an inclusion ratio of zero. Notwithstanding the foregoing, (i) no portion of any Original Trust created for the benefit of DEBRA under Clause THIRD may be paid to any Other Trust, and (ii) no portion of any Original Trust that would be a "qualified subchapter S trust" (as defined in Section 1361(d)(3) of the Code) or an "electing small business trust" (as defined in Section 1361(e)(1) of the Code) from and forever after the time, if any, that such Original Trust first holds or is first entitled to receive shares of stock of an S corporation (as defined in Section 1361(a) of the Code) may be paid to an Other Trust unless such Other Trust also qualifies as a qualified subchapter S trust or an electing small business trust. Such Other Trust may include a provision granting a power of appointment to a beneficiary of the Original Trust, which power may broaden or limit the class of permissible appointees under the Original Trust. (E) The Trustees are directed to divide property in any trust under this Agreement with an inclusion ratio, as defined in Section 2642(a)(1) of the Code of neither one nor zero into two separate trusts representing two fractional shares of the property being divided, one to have an inclusion ratio of one (the "nonexempt trust") 10 EFTA01087465  USI:81364901v2 and the other to have an inclusion ratio of zero (the "exempt trust"). Any such separate trust shall have provisions identical to the trust so divided. (1) Without in any way limiting the authority and discretion granted to the Trustees by any other provision of this Agreement, the Grantor wishes to confirm that in exercising the discretionary powers granted to the Trustees to pay principal to a beneficiary from each such separate trust, that the Trustees may pay principal to such beneficiary exclusively from one of such separate trusts or in equal or unequal shares from both of such separate trusts, without regard to any prior distributions that have been made by the Trustees from such trust, even to the extent of terminating either or both of such separate trusts. (2) No share of principal of any trust with an inclusion ratio (as defined in Section 2642(a)(1) of the Code) greater than zero which is directed to be continued in trust at the death of a beneficiary shall be added to a trust with an inclusion ratio of zero. (F) The Independent Trustees (as defined in Clause THIRTEENTH) shall have the power (but not the obligation), in their sole and absolute discretion, to pay to the United States Treasury and any state or local taxing authority, such amounts as the Grantor or the Grantor's legal representatives shall certify as being required to discharge the Grantor's tax liability (including but not limited to Federal, state or otherwise) in respect of income realized by the trust and not distributed to the Grantor. The Grantor confirms that no payment under this paragraph shall exceed the difference between (i) the Grantor's Federal and state income tax liability and (ii) the Grantor's Federal and state income tax liability computed as if the trust is not a grantor trust under 11 EFTA01087466  USI:81364901v2 Sections 671 et. seq. of the Code. The Grantor further confirms that there is no understanding or pre-existing arrangement, express or implied, between the Grantor and the Independent Trustees regarding the Independent Trustees' exercise of discretion pursuant to this paragraph or Section 7-1.11 of the New York Estates, Powers and Trusts Law. The provisions of this paragraph are intended to come within the safe harbor provisions of Revenue Ruling 2004-64. Accordingly, the discretionary authority granted to the Independent Trustees under this paragraph and under New York law should not cause the value of the trust assets to be includible in the Grantor's gross estate. The Grantor directs that no court shall have power under any statute to direct payment under this paragraph. Notwithstanding the foregoing provisions of this paragraph, the Independent Trustees, may at any time and from time to time release the power granted under this paragraph. Such release may be for a limited period or under stated conditions or indefinitely. (G) Notwithstanding any other provision of this Agreement, the Grantor directs that: (1) No Trustee hereunder shall have any power or discretion, or be deemed to be a Trustee, with respect to payments, applications or allotments of income or principal to or for the use or benefit of any person whom such Trustee, in his or her individual capacity, is legally obligated to support, if such payment, application or allotment would constitute the discharge of any part of such Trustee's legal support obligation. (2) Discretionary powers granted to the Trustees hereunder with respect to payments, applications or allotments of the income and/or 12 EFTA01087467  USI:81364901v2 principal of any trust hereunder ("the trust hereunder") to or for the use or benefit of any beneficiary thereof shall be exercisable solely by the Trustees other than any Trustee (i) who has a current beneficial interest in the trust, (ii) who has a beneficial interest in the remainder of such trust hereunder that would cause the exercise of such power to be treated as a gift by such Trustee for Federal gift tax purposes, (iii) whose disclaimer, in his or her individual capacity, resulted in the funding, in whole or in part, of the trust hereunder, or (iv) who is a permissible beneficiary of the income and/or principal of any other trust, whether created under this Agreement or otherwise ("such other trust"), if any Trustee of such other trust is a permissible beneficiary of the trust hereunder. Notwithstanding the foregoing, if at any time there is no Trustee qualified and acting for the purpose of exercising such discretionary powers other than a Trustee described in (i), (ii), (iii) or (iv) of the preceding sentence, such powers shall nonetheless be exercisable by all the Trustees (subject to any other provision of this Agreement restricting the exercise of such powers), in their discretion, but solely for the support and maintenance of such beneficiary in his or her accustomed standard of living and for his or her health and education. (3) No person who may be serving at any time as a Trustee shall have any right, power, control or incidents of ownership over any insurance policy on such individual's life; if a trust acquires an interest in an insurance policy on the life of a Trustee-beneficiary, the Independent Trustees shall exercise all such rights, powers, control and incidents of ownership over such policy. (H) The Grantor hereby confirms that if any trust owns an interest in a limited liability company, partnership, corporation or other business 13 EFTA01087468  USI:81364901v2 arrangement, the Trustees shall be bound by the provisions of any operating agreement, partnership agreement, shareholders' agreement or other agreement governing or otherwise effecting such limited liability company, partnership, corporation other business arrangement. FIFTH: POWERS OF APPOINTMENT (A) No testamentary power of appointment granted by the provisions of this Agreement shall be deemed to have been exercised unless the donee of the power specifically identifies the power in his or her Will and expressly exercises the power. In the absence of such identification of the power and express exercise, the power of appointment shall not be deemed to be exercised. (B) The donee of any power of appointment may appoint in favor of one beneficiary exclusively, or in favor of two or more beneficiaries in equal or unequal shares. In exercising the power, the donee may appoint outright or in trust and may grant further powers to appoint, but no such further power of appointment may be exercised to postpone the vesting of any interest or to suspend the power of alienation for a period beyond that which is permitted by law as described in Clause SIXTH. Appointments in trust shall be administered by such Trustees or Trustee as the donee may designate, subject to the management and investment powers granted by this Agreement or such other and different management and investment powers that the donee may grant; and the donee may direct that an appointed trust shall have a situs outside of New York and shall be governed by the law of the appointed situs. 14 EFTA01087469  USI:81364901v2 (C) Notwithstanding any provisions to the contrary in this Agreement: No donee of a power of appointment shall have the right to direct the disposition of any trust property consisting of an insurance policy on the life of the donee. (D) Notwithstanding any provisions to the contrary in this Agreement: the Independent Trustees are authorized and empowered to expand the power of appointment granted under Clause SECOND as provided in this paragraph. Such power of appointment, in the sole discretion of the Independent Trustees, may be expanded so that such beneficiary may exercise a testamentary general power of appointment (within the meaning of Section 2041 of the Code) over all or a part of the trust to which the power relates (including a pecuniary sum). The scope of any such expanded power of appointment may be as expansive or limited as the Independent Trustees, in their sole and absolute discretion, may determine. Any power thus expanded may be made exercisable by such beneficiary solely under his or her Will. If the Independent Trustees so expand any such power, the Independent Trustees may revoke such expanded (general) power, may again expand the power after a revocation, and in expanding any power, may make the exercise of such expanded (general) power require the consent of the Independent Trustees then in office. Without limiting the Independent Trustees' absolute discretion hereunder, it is anticipated that the Independent Trustees' authority under this paragraph will be used only if doing so will reduce GST taxes more than it increases estate taxes, and otherwise does not create an adverse result for the beneficiary's estate. If a power over a portion of any such trust is expanded, such trust shall be divided into corresponding fractional shares constituting separate trusts of which one shall be subject to the expanded (general) power and the other not. The Independent 15 EFTA01087470  USI:81364901v2 Trustees are authorized to release irrevocably the right to expand a power of appointment or revoke an expanded (general) power of appointment and consent to the exercise of an expanded power by an acknowledged instrument in writing. Nothing herein shall be construed as requiring the Independent Trustees to expand the power of appointment granted to the beneficiary so he or she has a general power of appointment. In the event that the Independent Trustees expand any such power of appointment so that such beneficiary may exercise a general power of appointment, that power shall be deemed to have been exercised only if such beneficiary specifically identifies the power in his or her last Will duly admitted to probate and expressly exercises the power, and in the absence of such identification of the power and express exercise, said power of appointment (if any) shall be deemed to be unexercised. Nothing herein shall be construed as granting the Independent Trustees the authority to revoke any special (limited) power of appointment granted to the beneficiary of any trust hereunder. SIXTH: RULE AGAINST PERPETUITIES Notwithstanding any other provision in this Agreement: With respect to each trust that may exist under this Agreement, unless such trust shall earlier terminate pursuant to the provisions governing the disposition of such trust, it shall terminate upon the expiration of twenty-one (21) years after the death of the last survivor of DEBRA, and the Grantor's children BENJAMIN ELI BLACK, JOSHUA MAX BLACK, ALEXANDER SAMUEL BLACK, and VICTORIA RACHEL BLACK. Upon such termination the remaining principal of such trust shall pass to the beneficiary for whose primary benefit the trust was created hereunder. SEVENTH: POWER TO REACQUIRE 16 EFTA01087471  USI:81364901v2 Except as otherwise provided below, the Grantor, in an individual and nonfiduciary capacity, without the approval or consent of any person in a fiduciary capacity, shall have the power to reacquire property of the trust, other than shares of voting stock of a controlled corporation (within the meaning of Section 2036(b) of the Code), whether owned directly or indirectly through one or more limited liability companies, partnerships or other entities, by substituting other property of an equivalent value; provided that the Independent Trustees are satisfied that the substituted property is of equivalent value. If no Independent Trustee is then serving, upon the exercise of this power by the Grantor, the Trustees shall appoint an Independent Trustee in accordance with subparagraph (C)(I) of Clause EIGHTH. Notwithstanding the foregoing, the Grantor may not exercise his power under this paragraph in such a manner that may shift benefits among the trust beneficiaries within the meaning of Revenue Ruling 2008-22 and Revenue Ruling 2011-28. The Grantor may at any time and from time to time release, in whole or in part, the powers retained by him under this Clause SEVENTH. Such release may be for a limited period or under stated conditions or indefinitely. Such release shall be made by an instrument in writing delivered to the Trustees. EIGHTH: TRUSTEE PROVISIONS (A) (1) BARRY J. COHEN, RICHARD RESSLER, and JOHN J. HANNAN shall serve as Trustees of the Discretionary Trust and each Separate Trust. (2) BARRY J. COHEN, RICHARD RESSLER, and DEBRA R. BLACK shall serve as Trustees of the Marital Trust. (3) Upon the Grantor's death: 17 EFTA01087472  USI:81364901v2 (a) Each child of the Grantor shall serve as an additional Trustee of the Discretionary Trust. (b) If a Separate Trust has been created for a Beneficiary, such Beneficiary, upon attaining the age of thirty-five (35) years, shall serve as a co-Trustee of his or her Separate Trust. (4) Notwithstanding the foregoing, the Grantor confirms that the acting Trustees of the Discretionary Trust and/or a Separate Trust, pursuant to subparagraph (C)(1) of this Clause, are authorized to appoint (i) one or more children of the Grantor to serve as additional Trustees of the Discretionary Trust, and (i) a child of the Grantor to serve as an additional Trustee of his or her Separate Trust, at such earlier time as they deem advisable, whether during the Grantor's life or after his death. (B) (1) If RICHARD RESSLER ceases to serve as Trustee of any trust hereunder, ANTONY RESSLER shall serve as Trustee of such trust in his place. (2) With respect to the Marital Trust, if BARRY J. COHEN ceases to serve as Trustee, JOHN J. HANNAN shall serve as Trustee in his place. (C) (1) Subject to the successors named in paragraph (B) of this Clause, each individual serving from time to time as a Trustee (including each individual who may be appointed pursuant to this paragraph) may appoint any person (other than the Grantor or any other donor to the trust) or bank or trust company to serve as his or her successor Trustee of any trust. In addition, the individual or individuals serving at any time as Trustees, acting unanimously if more than one is serving, may 18 EFTA01087473  USI:81364901v2 appoint any person (other than the Grantor or any other donor to the trust) or bank or trust company to serve as an additional Trustee. Appointments shall be by instrument filed with the Trustees then in office. Notwithstanding the foregoing: No more than seven (7) Trustees of the Discretionary Trust and no more than five (5) Trustees of any Separate Trust or the Marital Trust shall serve at any time; no appointment of a bank or trust company shall be effective if a corporate fiduciary is already serving as a Trustee; and there always must be act least one (1) Independent Trustee in office. (2) If a vacancy in the office of Trustee occurs which is not filled in accordance with the preceding provisions of this paragraph (C) of this Clause, such individual (other than the Grantor or any other donor to the trust), or bank, or trust company (or such series of individuals, or banks, or trust companies) shall become Trustee as is or was designated (i) by the Grantor, or, if he is not living or is unable to make and has not theretofore made such designation, (ii) by a majority of the adult current permissible beneficiaries of such trust, or, if no beneficiary is an adult, (iii) by a majority of the guardians of any minor beneficiaries then living; provided, however, that such designation by the Grantor under this paragraph shall only be effective so long as the designated successor Trustee is not related or subordinate to the Grantor or any beneficiary hereunder within the meaning of Section 672(c) of the Code. (D) Any designation made under the provisions of paragraphs (C) or (Q) of this Clause shall be made by a signed instrument mailed or delivered to any Trustee hereunder or to the Trustee designated therein. At any time before any such designation becomes effective, it may be revoked in similar manner by the individual or 19 EFTA01087474  USI:81364901v2 individuals who made it. Any designation hereunder shall become effective at the time specified in the instrument of designation. (E) No Trustee, including any who is appointed under the provisions of this Clause, and regardless of the State of residence of such Trustee, shall be required to give any bond or other security for any purpose in any jurisdiction, including any bond that would otherwise be required for the return of any commissions of a Trustee. (F) Any Trustee of any trust may resign, by instrument in writing filed with the other Trustees then in office or if no co-Trustee be in office, to the Trustee who succeeds such resigning Trustee pursuant to the foregoing provisions of this Agreement. (G) (1) Except as otherwise provided in this Agreement, decisions of the Trustees of each trust hereunder shall be made by majority vote of the Trustees of such trust (or by unanimous vote if only two Trustees are acting). (2) With respect to the Discretionary Trust, so long as two (2) or more children of the Grantor are acting as Trustees, the children of the Grantor who are then acting as Trustees, collectively, shall be deemed to have two (2) votes (so that each such child individually may exercise an equal fractional portion thereof) with regard to all decisions and actions that they, as Trustees of the Discretionary Trust, are authorized to undertake pursuant to the terms of this Agreement. If at any time only one child of the Grantor is acting as a Trustee of the Discretionary Trust, such child shall have one (1) vote with regard to all decisions and actions that such child, as Trustee of 20 EFTA01087475  USI:81364901v2 the Discretionary Trust, is authorized to undertake pursuant to the terms of this Agreement. (H) Any Trustee may, by revocable power of attorney, delegate to one or more of the co-Trustees then in office the full exercise of all or any powers granted by any provision of this Agreement to the Trustees, provided, however, that no discretionary power may be delegated to a Trustee who is specifically precluded by law or by the provisions of this Agreement from participating in the exercise of such power. (1) All management and investment powers shall remain exercisable until distribution of every trust has been completed. (J) The Trustees, by written unanimous consent if more than one Trustee is serving, may authorize any individual, including, but not limited, to any of the Trustees serving at any time, to perform ministerial acts on behalf of any trust created hereunder once the Trustees have reached a decision, including signing checks or instruments of transfer or giving instructions for the purchase or sale of securities or performing other ministerial acts on behalf of all of the Trustees. (K) The account of a resigning Trustee and the account of a deceased Trustee may be settled by the other Trustees then in office, or if no co-Trustee be in office, then by the Trustee who may succeed such resigning Trustee pursuant to the foregoing provisions of this Agreement. (L) No Trustee shall be required to render in court annual or periodic accounts. (M) Persons dealing with the Trustees need not inquire concerning the validity of anything done by the Trustees or anything the Trustees purport 21 EFTA01087476  USI:81364901v2 to do or the application of any money paid or property transferred to or upon the order of the Trustees, but may act without further inquiry in accordance with the writings signed by the Trustees. All persons dealing with the Trustees may act on the assumption that a trust is still in existence until they receive actual notice of its termination. (N) Parties dealing with the Tntstees may rely upon a copy of this Agreement that is certified by a Notary Public to be a true copy. (O) In any proceeding relating to any trust created under this Agreement, where a party to such proceeding has the same interest as a person under a disability, it shall not be necessary to serve with process the person who is under a disability. (P) The Trustees hereunder may enter into transactions with the Executors of an estate or the Trustees of another trust and purchase or in any other manner acquire property from such estate or such other trust, even though a Trustee hereunder may also be acting as the Executor of such estate or Trustee of such other trust, provided that any such purchase is for full fair market value in money or money's worth. (Q) (1) The Grantor shall have the power to remove a Trustee, with or without cause, by delivering notice to the Trustee and appointing a successor Trustee; provided, however, that such authority shall be effective if, and only if, the Grantor appoints a successor Trustee (other than himself) who is not related or subordinate to the Grantor within the meaning of Section 672(c) of the Code, and such designated successor so qualifies as Trustee. Notwithstanding the foregoing provisions of this paragraph, the Grantor may not exercise the power to remove a Trustee because of such Trustee's exercise or failure to exercise a power which, if held by the Grantor, 22 EFTA01087477  USI:81364901v2 would result in any portion of the trust being included in the Grantor's gross estate for Federal estate tax purposes. The Grantor may at any time release the powers granted under this subparagraph (Q)(I). (2) Upon the Grantor's death, Incapacity (as defined in Clause THIRTEENTH) or release of the power referred to in subparagraph (QXI) above, each Beneficiary, upon attaining the age of forty (40) years, shall have the power to remove a Trustee of his or her Separate Trust, with or without cause, by delivering a signed written instrument to the Trustee being so removed and appointing a successor Trustee; provided, however, that such authority shall be effective only if: (i) such Beneficiary appoints a successor Trustee (other than himself) who is not related or subordinate to him or her within the meaning of Section 672(c) of the Code (as amended from time to time) and (ii) such successor qualifies as Trustee. Notwithstanding the foregoing, no Beneficiary shall exercise his or her power to remove a Trustee because of such Trustee's exercise or failure to exercise a power which, if held by such Beneficiary, would result in any portion of the trust being included in his or her gross estate for federal estate tax purposes. Each Beneficiary may at any time release the powers granted to him or her under this subparagraph (Q)(2). (R) (1) Subject to subparagraph (R)(2) of this Clause THIRD, no individual may receive compensation for his or her services as Trustee of the Discretionary Trust, the Marital Trust, and the Separate Trusts (but shall nevertheless be entitled to reimbursement for reasonable expenses incurred in connection with the administration of any trust created hereunder). 23 EFTA01087478  USI:81364901v2 (2) Notwithstanding the foregoing, if, within thirty (30) days of a trust's fiscal year end, an individual (other than any beneficiary hereunder) serving as Trustee hereunder files with the Grantor, or if the Grantor is Incapacitated or is not living, with the other acting Trustees, a written notice whereby such individual elects to receive compensation for his services as Trustee for the trust's forthcoming fiscal year, such individual shall be compensated in the following manner: (a) Any individual (other than any beneficiary hereunder) serving as Trustee of the Discretionary Trust, the Marital Trust, and the Separate Trust, for his or her collective services as Trustee of such trusts and of any other trusts created by the Grantor, shall be entitled to receive, in the aggregate, compensation equal to the lesser of (i) one-third (1/3) of the annual statutory commissions to which a sole individual Trustee would be entitled to receive under New York law as compensation for services rendered in acting as a Trustee, and (ii) the sum of Four Hundred Thousand Dollars ($400,000) per year, as prorated for any partial year and as adjusted to reflect the increase (but not the decrease), if any, in the cost of living during the period between January 2013 and the first day of each taxable year of the trust. (b) The foregoing increases in the cost of living, if any, shall be measured by reference to the percent change in the Consumer Price Index for All Urban Consumers (CPI-U) — the "all items" expenditure category, not seasonally adjusted — as published by the Bureau of Labor Statistics of the United States Department of Labor (the "Index"), or if the Index is discontinued, such other generally recognized inflation index as the Trustees, in their discretion, select. 24 EFTA01087479  USI:81364901v2 (c) The individual Trustees shall not be entitled to paying commissions. (3) The Grantor confirms that no beneficiary hereunder (including, without limitation, DEBRA with respect to the Marital Trust, the Grantor's children with respect to the Discretionary Trust and the Beneficiary with respect to any Separate Trust) shall be entitled to receive any compensation, by way of commissions or otherwise, for acting as a Trustee hereunder (but shall nevertheless be entitled to reimbursement for reasonable expenses incurred in connection with the administration of such trust). The qualification of any beneficiary hereunder so to act as a Trustee shall be deemed a waiver of any right to commission or other compensation. (4) The qualification of any individual as Trustee shall be deemed an acceptance of the foregoing provisions. NINTH: TRUSTEE POWERS In addition to the powers granted by law and by any other provision of this Agreement, the Grantor grants to the Trustees full power to do everything in administering the trusts that they deem advisable, to the full extent that an individual