XXXXXX X. XXXXXXXXX
FLORIDA INTANGIBLE TAX TRUST
THIS AGREEMENT, dated December 23, 1997, between XXXXXX X. XXXXXXXXX, of
Tequesta, Florida (hereinafter called the "Grantor"), and XXXXXX X. XXXXXXX, of
Darien, Connecticut (hereinafter called the "Trustee"),
W I T N E S S E T H:
The Grantor hereby delivers and assigns to the Trustee the property
specified in Schedule A hereto annexed, the receipt of which is hereby
acknowledged by the Trustee, which agrees to hold the same, in trust, together
with any property added to the trust estate, as follows:
Article I. Distribution of Trust Funds During the Grantor's Lifetime.
A. Income Distributions. The Trustee shall pay or apply all or any part of
the net income of this trust to or for the benefit of the Grantor, during the
Grantor's lifetime, that the Trustee in its discretion considers advisable. Any
undistributed income shall be added to principal. The Trustee shall allocate all
capital gains and/or losses to income.
B. Trustee Power of Appointment. The Trustee may at any time, during the
Grantor's lifetime, distribute all or any part of the trust principal to, or in
trust for the benefit of the Grantor, the Grantor's spouse, XXXXXXX X.
XXXXXXXXX, and THE UNIVERSITY OF NORTH CAROLINA, to be added to the XXXXXX
XXXXXXXX XXXXXXXXX SCHOLARSHIP FUND heretofore established, upon such estates or
conditions, in such manner, and at such time or times as the Trustee shall
direct and appoint in writing specifically referring to and exercising this
power; provided, however, that this power shall not be exercisable to any extent
for the benefit of the Trustee, the Trustee's estate, the Trustee's creditors or
the creditors of the Trustee's estate.
In exercising its discretion, the Trustee shall give first consideration to
the Grantor, then to the Grantor's spouse, XXXXXXX X. XXXXXXXXX, and then to THE
UNIVERSITY OF
NORTH CAROLINA, to be added to the XXXXXX XXXXXXXX XXXXXXXXX SCHOLARSHIP FUND
heretofore established.
Article II. Partial and Full Termination of Trust. Upon the first to occur
of the following events, the Trustee shall distribute each particular asset
received by the Trustee (or the traceable proceeds of such asset) as hereinafter
provided:
A. Upon the day occurring four (4) months after the actual date of receipt
by the Trustee of each particular asset, the Trustee shall distribute such asset
(or the traceable proceeds of such asset), if not previously effectively
appointed pursuant to section B of Article I, to the then acting Trustee of the
Xxxxxx X. Xxxxxxxxx Revocable Trust under an agreement signed by Xxxxxx X.
Xxxxxxxxx, as both "Grantor" and "Trustee," on the same day as and immediately
prior to this Agreement, as amended to the date of the Grantor's death, to be
added to the principal of such trust, or, if such trust is not then in
existence, to the Grantor.
B. Upon the death of the Grantor, the Trustee shall distribute any and all
undistributed income and principal of this trust not effectively appointed
pursuant to section B of Article I, to the then acting Trustee of the Xxxxxx X.
Xxxxxxxxx Revocable Trust under an agreement signed by Xxxxxx X. Xxxxxxxxx, as
both "Grantor" and "Trustee," on the same day as and immediately prior to this
Agreement, as amended to the date of the Grantor's death, to be added to the
principal of such trust, or, if such trust is not then in existence, to the
Personal Representative of the Grantor's estate, to be disposed of as part of
the Grantor's estate.
C. Notwithstanding the foregoing provisions of this Article, the Trustee
shall retain the assets initially listed on Schedule A attached hereto until the
date of the Grantor's death.
Article III.: Appointment of Trustees. If XXXXXX X. XXXXXXX ceases to act
as Trustee, XXXXXX X. XXXXXXX, III, currently of Ridgefield, Connecticut, is
appointed as Trustee, to act together with any other then acting Trustee.
Any individual Trustee shall be considered removed at such time as such
Trustee is unable to manage the Trustee's affairs.
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For purposes of this Agreement, an individual Trustee shall be considered
to be unable to manage the Trustee's affairs if such individual is under a legal
disability or by reason of mental illness or physical disability is unable to
give prompt and intelligent consideration to financial matters. The
determination as to the inability shall be made in writing by a physician who
has examined such individual, and the Trustee may rely upon such written
determination.
Any individual Trustee may at any time appoint such Trustee's successor as
Trustee, unless the foregoing provisions of this Agreement effectively provide
for such Trustee's successor.
Notwithstanding any provisions in this Agreement to the contrary, no
individual who is a resident of the State of Florida, and no corporation doing
business in, or qualified to do business in, the State of Florida may serve as
Trustee of this Trust.
Any individual Trustee who is or becomes a resident of the State of
Florida, or any corporate Trustee which does business in the State of Florida or
becomes qualified to do business in the State of Florida, shall cease to act as
a Trustee at such time.
If at any time there is no Trustee and the foregoing provisions of this
Agreement do not effectively provide for a successor Trustee, the Grantor may
appoint one or more successor Trustees.
The Grantor may not serve as Trustee.
Any fiduciary is authorized to resign at any time without court approval.
The resignation, appointment, or revocation of appointment may be made by
the person authorized to take such action by delivery of an acknowledged
instrument to the Trustee then acting and any Trustee to be appointed, or, if
none, to a court having jurisdiction over the trust.
Any appointment of a Trustee may be conditioned to commence or cease upon a
future event and may be revoked or modified at any time before such future event
has occurred.
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Unless otherwise expressly provided, any power to appoint a Trustee shall
permit appointment of an individual, bank or trust company as such fiduciary,
and shall be exercised by the parent (or, if none, the legal representative) of
any minor and the legal representative of any legally incapacitated person
holding such power.
Article IV. Administrative and Tax Provisions.
A. Irrevocable Trust. This Agreement and any trust created hereunder shall
be irrevocable and shall not be subject to alteration or amendment in any
respect.
B. Additions to Trust. Any person may add property to the trust estate by
lifetime gift or by transfer taking effect at death, provided such property is
acceptable to the Trustee.
C. Situs of Trust Property. No Trustee shall invest in real property having
a situs in the State of Florida.
D. Requirement of Survival. No beneficiary shall be considered to have
survived the event terminating any trust and be entitled to any trust funds on
that event unless such beneficiary survives for at least ninety (90) days after
that event.
E. Distributions to Minors. If the Trustee is authorized or required to
distribute trust funds to a beneficiary who is then a minor, and the Trustee
does not believe that an immediate distribution is in the beneficiary's best
interests, it may instead distribute such property to any adult caring for the
beneficiary or to the beneficiary's Guardian or Custodian under a Uniform Gifts
to Minors Act or Uniform Transfers to Minors Act. In the alternative, the
Trustee may hold and invest such property as a separate fund for such
beneficiary, and accumulate income or pay or apply any part of the fund to or
for the beneficiary's benefit from time to time, as it considers advisable. Any
accumulated income shall be added to principal annually. When the beneficiary
becomes an adult, the Trustee shall distribute the fund to the beneficiary. If
the beneficiary dies before becoming an adult, the Trustee shall distribute the
fund to the beneficiary's legal representative.
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F. Permissible Use of Trust Funds. Upon the death of the Grantor, the
Trustee may in its discretion purchase property from the Grantor's estate, make
loans to the Grantor's estate, and guarantee the obligations of the Grantor's
estate and pledge trust property as security therefor upon whatever terms and in
whatever manner and with whatever security the Trustee considers advisable. This
provision shall not give either the Grantor or the Grantor's estate any right or
authority over trust property.
G. Governing Law. The validity, construction and administration of this
Agreement and any trust hereunder shall be governed by the laws of Florida.
H. Consideration of Other Income of Beneficiaries. In exercising discretion
to distribute trust funds to any beneficiary, the Trustee may (but shall not be
required to) take into consideration any other income reasonably available to
such beneficiary.
I. Informal Accountings. The Trustee may provide to the Grantor, or, after
the Grantor's death, to each legally competent eligible income beneficiary and
presumptive remainderman (or the parent or Guardian of the estate of any such
minor or incompetent person), statements of trust transactions at such time and
in such form as it considers advisable. If all such persons give written
approval of the statement, it shall be final, binding and conclusive on all
persons interested in the trust.
J. Investment Counsel. The Trustee may employ investment counsel; consult
with such counsel on any matters relating to the retention, sale, purchase,
investment, or reinvestment of securities or other property; and pay such
investment counsel reasonable compensation for its services in addition to the
regular compensation of the Trustee. The Trustee may act upon or refrain from
acting upon the advice of such investment counsel in whole or in part, and to
the extent the Trustee follows the advice of such counsel the Trustee shall not
be liable for any action taken, except in the case of willful misconduct.
Notwithstanding the foregoing provisions of this section J, no investment
counsel which is a resident of the State of Florida, doing business in the State
of Florida, or qualified to do
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business in the State of Florida, shall have the discretionary authority to make
decisions relating to the retention, sale, purchase, investment or reinvestment
of securities or other property.
K. Trustee Relieved From Liability. No individual Trustee shall be liable
for any mistake or error of judgment, or for any action taken or omitted, either
by the Trustee or by any agent or attorney employed by the Trustee, or for any
loss or depreciation in the value of the trust, except in the case of willful
misconduct.
L. Successor Trustee. No Trustee has a duty to examine the transactions of
any prior Trustee. Each Trustee is responsible only for those assets which are
actually delivered to it.
M. Delegation. Any Trustee may delegate to the other Trustees the right to
exercise any power (discretionary, administrative or otherwise), and may revoke
the delegation at any time, by delivery of an acknowledged instrument to such
other Trustees.
X. Xxxxxx of Appointment. Any power of appointment created under this
Agreement may be exercised only by an express reference to the power which
includes the name of the Grantor. A person exercising a power of appointment may
appoint trust funds outright or in trust. The choice of terms, Trustees and
jurisdiction of any trust shall be entirely within the discretion of the person
having the power of appointment, except to the extent otherwise expressly
provided in this Agreement. No power of appointment shall be exercisable by a
beneficiary over any property or its proceeds added to a trust by means of a
disclaimer by such beneficiary.
O. Management Powers of Trustee. Without limitation of the powers conferred
upon it by law but subject to the foregoing terms of this Agreement, the Trustee
is authorized:
(1) To retain, acquire, or sell any property (including any discretionary
common trust fund of any corporate fiduciary acting under this Agreement,
covered and uncovered stock options, and investments in foreign securities),
without regard to diversification and without being limited to the investments
authorized for trust funds; (2) to exercise stock options; (3) to enter into
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agreements for the sale, merger, reorganization, dissolution or consolidation of
any corporation or properties; (4) to manage, improve, repair, sell, mortgage,
lease (including the power to lease for oil and gas), pledge, convey, option or
exchange any property and take back purchase money mortgages thereon, without
court order; (5) to make distributions in cash or in kind, or partly in each,
and, in the discretion of such fiduciaries, to allocate particular assets or
portions thereof to any one or more beneficiaries, provided that such property
shall be valued for purposes of distribution at its value on the date of
distribution; (6) to maintain custody or brokerage accounts (including margin
accounts) and to register securities in the name of a nominee; (7) to compromise
and settle claims (including those relating to taxes) without court order; (8)
to borrow funds from any person or corporation (including a Trustee) and pledge
or mortgage trust assets to secure such loans; (9) to extend, renew or
renegotiate the Grantor's loans or guarantees; (10) to employ attorneys,
accountants, investment counsel, custodians and brokers to assist in the
administration of trust property; (11) to vote and give proxies to vote shares
of stock; (12) to make joint investments in property, real or personal; (13) to
divide any trust into separate trusts; and (14) if there is more than one trust
established under this Agreement, to administer such trusts as a single fund.
Article V. Identification of Trust. This Trust Agreement may be referred to
as the "Xxxxxx X. Xxxxxxxxx Florida Intangible Tax Trust dated
December 23, 1997."
IN WITNESS WHEREOF, XXXXXX X. XXXXXXXXX, the Grantor, has hereunto set the
Grantor's hand and seal as of the 23 day of December, 1997.
/s/ Xxxxxx X. Xxxxxxxxx
XXXXXX X. XXXXXXXXX
Grantor
SIGNED, SEALED, PUBLISHED and DECLARED by XXXXXX X. XXXXXXXXX, the Grantor,
as and for the Xxxxxx X. Xxxxxxxxx Florida Intangible Tax Trust dated
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December 23, 1997, in the presence of us and each of us, who, at the Grantor's
request, in the Grantor's presence and in the presence of each other, have
hereunto subscribed our names as witnesses on the day and in the year first
above written.
/s/ Xxxxxx Xxxxxx of Stamford, CT
Signature of Witness #1 Address of Witness #1
/s/ Xxxxxxx Xxxxxxx of Bridgeport, CT
Signature of Witness #2 Address of Witness #2
STATE OF CONNECTICUT )
) ss: Stamford
COUNTY OF FAIRFIELD )
The foregoing instrument was acknowledged before me this 23rd day of
December, 1997, by XXXXXX X. XXXXXXXXX, who is personally known to me.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Notary Public
Commissioner of the Superior
Court
My Commission Expires:
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IN WITNESS WHEREOF, XXXXXX X. XXXXXXX, the Trustee, has hereunto set the
Trustee's hand and seal as of the 29 day of December, 1997.
/s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
Trustee
STATE OF FLORIDA )
) ss: Palm Beach
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 29 day of
December, 1997, by XXXXXX X. XXXXXXX, who is personally known to me or who has
produced a driver's license as identification.
/s/ Xxxxx Xxxxxx
--------------------------------
Notary Public
My Commission Expires:
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SCHEDULE A
FIVE
DOLLARS..........................................................$5.00
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