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EXHIBIT 3
XXXX X. XXXXXXXXXX
IRREVOCABLE TRUST AGREEMENT
This agreement is made on October 8, 1996, between me, XXXXXX
XXXXXXXXXX, as grantor, and my wife, XXXXXX XXXXXXXXXX ("my wife"), as trustee.
I am transferring to the trustee $10.00 and other property. The trustee shall
hold such property for the benefit of my son, XXXX X. XXXXXXXXXX ("XXXX"), as
hereinafter provided. This trust shall be known as the "Xxxx X. Xxxxxxxxxx
Irrevocable Trust, dated October 8, 1996."
FIRST: A. The trustee shall pay to XXXX, commencing with the
creation of the trust and continuing until the termination of
the trust, all of the income of the trust and so much or all of the
principal thereof as the trustee determines to be required or advisable
from time to time for JOHN'S reasonable support and medical care,
considering his other resources known to the trustee.
B. Upon JOHN'S death, the trust shall terminate and the trustee
shall distribute any accrued or undistributed income of the trust to
JOHN'S estate and the principal of the trust to such person or persons,
other than JOHN'S estate, his creditors and the creditors of his
estate, as XXXX xxx appoint by will which specifically exercises this
limited power of appointment. The trustee may assume that XXXX left no
will if at the expiration of three (3) months after JOHN'S death the
trustee has no knowledge of the existence of his will. Principal of the
trust not validly appointed by XXXX shall be distributed to his
descendants per
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stirpes who are living upon the termination of the trust
and if none, to my descendants per stirpes who are then
living.
SECOND: The following provisions shall apply to each trust
created by this agreement:
A. If under any prior provision of this agreement a
share of any trust is distributable, except by the exercise of
a power of appointment, to a beneficiary who has not then
attained age 21, the beneficiary's share shall immediately
vest in the beneficiary but in the trustee's discretion the
trustee shall either (1) create a custodianship for the
beneficiary under a Uniform Transfers to Minors Act and
distribute the share to that custodian; (2) distribute the
share to a then acting custodian for the beneficiary under a
Uniform Transfers to Minors Act; or (3) retain the share in a
separate trust as follows: the trustee shall pay to the
beneficiary so much or all of the income and principal of the
trust as the trustee determines to be required or advisable
from time to time for the beneficiary's reasonable support,
education and medical care, considering the beneficiary's
other resources known to the trustee. Income not paid to the
beneficiary shall be added to trust principal. When the
beneficiary attains age 21, the trust shall terminate and the
trustee shall distribute to the beneficiary the principal and
any accrued or undistributed income of the trust. If the
beneficiary dies before attaining age 21, the trust thereupon
shall terminate and the trustee shall distribute
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the principal and any accrued or undistributed income
of the trust to the beneficiary's estate.
B. Mandatory income payments shall be made in quarterly
installments, or more often if the trustee sees fit.
C. Each trust created under this agreement or pursuant
to any power of appointment granted hereunder shall terminate
not later than the day immediately preceding the date 21 years
after the death of the last to die of me, my wife and my
descendants who are living on March 16, 1990, and the trustee
shall upon that day, regardless of any other provision of this
agreement, distribute the principal and any accrued or
undistributed income of each trust then held hereunder to the
income beneficiary thereof.
THIRD: In addition to the powers from time to time conferred on
the trustee by the Illinois Trusts and Trustees Act, the trustee shall
have the following powers exercisable in the trustee's discretion:
A. To charge or not to charge against income an
allowance for depreciation;
B. To borrow money from any source, including but not
limited to, the banking department of a successor corporate
trustee;
C. If at any time the principal of a trust required to
be held under the terms of this agreement is less than $50,000
in value, to distribute the principal and any accrued or
undistributed income of the
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trust to its income beneficiary, and that trust shall
thereupon terminate, notwithstanding any provisions in this
agreement to the contrary;
D. When there is a trust under this agreement and a
trust under another document, each having the same
beneficiary or beneficiaries and terms which are
substantially identical as to the distribution of income and
principal, to transfer all of the assets of such trust under
this agreement to the trustee or trustees of the
substantially identical trust, and thereupon such trust
under this agreement shall terminate;
E. To retain as an investment of the trusts securities
of any one or more closely-held businesses which may become
an asset of the trusts, and/or of any successor to or
subsidiary or affiliate of each such business. Each such
business and all successors, subsidiaries and affiliates
thereof, if any, are hereinafter singly and collectively
referred to as the "Company." "Securities" shall include
common and preferred stocks, bonds, debentures, voting trust
certificates, interests in limited liability companies, and
any other evidence of a proprietary or partnership interest
in and/or an obligation of the Company. The trustee shall
have with reference to such securities the following powers,
in addition to those elsewhere herein granted:
1. To participate in the management of the Company
as an officer or director or otherwise, with
appropriate compensation;
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2. To extend credit to the Company from the banking
department of a corporate successor trustee; and
3. To increase the investment of the trusts in the
Company by any means, including but not limited to, one or
more of the following: making secured or unsecured loans to
the Company, purchasing or subscribing to securities of the
Company, or pledging assets for debts of the Company.
The trustee shall exercise ordinary business judgment in
determining how long such securities shall be retained, it being the
settlor's intention that the trustee retain such securities as long as
in the trustee's judgment it is in the best interest of the
beneficiaries, and the trustee shall not be liable for any loss
resulting from such retention. The settlor realizes that he is exposing
the trusts to risks inherent in all business operations but he believes
those risks justifiable by the possibility of preserving the capital and
income values of such securities. To the extent that the trustee renders
services to the Company, the trustee may charge the Company for those
services. Nothing in this agreement shall be construed to prevent any
individual trustee from being employed or retained by the Company at a
salary or fee commensurate with the value of his or her service, nor to
prevent him or her from purchasing such securities from the trusts or
from any other source; 4.
F. To make secured or unsecured loans to the income
beneficiary of any trust hereunder, and to pledge trust assets,
guarantee
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or otherwise encumber trust assets for any debts, loans,
obligations or liabilities of the income beneficiary of any
trust hereunder, all as the trustee considers proper and at the
sole discretion of the trustee. Notwithstanding the foregoing, a
trustee who is the beneficiary of any trust hereunder shall not
have any powers under this paragraph relating to the trust or
trusts of which the trustee is the beneficiary. The trustee
shall not be liable to any beneficiary of any trust hereunder or
any other person or entity for deciding in the trustee's
discretion to exercise or not to exercise the powers under this
paragraph and the trustee shall not be personally liable under
any such pledge, guarantee or other encumbrance; and
G. To do all other acts to accomplish the proper management,
investment and distribution of the trusts.
FOURTH: No interest under this trust shall be assignable by any
beneficiary. Cash or other property distributable hereunder shall not be
subject to claims of any creditor of any beneficiary, nor to claims for alimony
or maintenance. Nothing herein contained shall prevent the exercise of any
power of appointment under this agreement or prevent distribution of money or
property to the estate of a deceased beneficiary when required by this
agreement.
FIFTH: The following provisions shall apply to each trust created
by this agreement:
A. If for any reason my wife does not act or continue to
act as trustee, XXXX is appointed successor trustee. If for any
reason
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neither of the foregoing individuals acts or continues to act
as trustee, my other child or children who are then living and
competent are appointed successor co-trustees or sole trustee, as
the case may be. If for any reason one of my remaining children
does not act or continue to act as a successor co-trustee, that
vacancy shall not be filled, except that if none of the foregoing
act or continue to act as trustee, THE NORTHERN TRUST COMPANY, of
Chicago, Illinois, is appointed successor trustee. If for any
reason none of the foregoing nor any successor trustee appointed
as hereinafter provided acts or continues to act as trustee, a
successor trustee shall be appointed as provided in the Illinois
Trusts and Trustees Act and shall be any "qualified corporate
trustee". A "qualified corporate trustee" shall be any corporation
situated in the United States and authorized under the laws of the
United States or of any state thereof to administer trusts and
with capital, surplus and undivided profits of at least fifty
million dollars.
B. While more than one trustee is acting:
1. The term "trustee" as used in this agreement shall
be read as "trustees" and, where appropriate, the singular
shall be read as the plural, and corresponding changes shall
be read in references to gender.
2. Any trustee may from time to time, by signed
revocable instrument, delegate to the other trustee or
trustees the
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exercise of all or less than all of the powers
herein conferred upon the successor co-trustees
jointly.
C. For purposes of this agreement, an individual shall
be determined to be incompetent (1) if the individual is
under age 18, or (2) if the individual is age 18 or older,
upon the unanimous determination by his or her attending
physician and such of my children who are then living and
competent that the individual is incapable of properly
managing his or her financial affairs (except that the
individual whose competency is in question shall not
participate in that determination).
D. If an individual is acting as a trustee hereunder
and a determination is made that he or she is
incompetent, that determination shall be deemed to
constitute his or her resignation as trustee.
E. The income beneficiary of any trust created under
this agreement may at any time approve the trustee's
accounts with respect to that trust, with the same effect
as if a court having jurisdiction over the trust approved
the accounts.
F. The income beneficiary of each trust created
hereunder shall have the right from time to time, while
living and competent, to remove the then acting corporate
trustee of such trust and to appoint any qualified
corporate trustee as successor corporate trustee. If the
income beneficiary desires to exercise his or her rights
under this paragraph, the income beneficiary shall deliver
to the trustee whom he or she intends to remove and to the
trustee whom he or she intends to appoint, an
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instrument signed by the income beneficiary reciting
such removal and appointment. Such removal and appointment
shall take effect 30 days after the removed trustee receives
that instrument.
G. In the case of any incompetent income beneficiary, a
living and competent parent or child, or guardian or
conservator if the income beneficiary has no living and
competent parent or child, may receive notices, approve
accounts, appoint successor trustees and removal corporate
trustees as provided in this article on behalf of the
incompetent income beneficiary.
H. Notwithstanding any contrary provision herein, no
individual trustee shall participate as trustee in making any
decisions relating to a discretionary distribution of income
or principal of the trust property to any beneficiary to the
extent that such distribution would be in discharge of such
trustee's legal obligation (in his or her individual capacity)
to support such beneficiary. If an individual trustee is
precluded, from participating in a particular decision by the
foregoing provisions of this paragraph, then the decision
shall be made by the other trustee who is not so precluded, if
any. If the sole trustee or all of the co-trustees are
precluded from participating in a particular decision, then
the trustee or trustees with respect to any such trust may
appoint by an instrument filed with the trust records any
person (other than the settlor) or qualified corporate trustee
to act as a "special trustee" of such trust whose sole power
shall be to make those decisions relating to
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discretionary distributions of income and principal of
any trust hereunder which the trustee is precluded from
making. If for any reason the trustee who appoints a "special
trustee" pursuant to this paragraph ceases to act as a
trustee, the term of office of the "special trustee" shall
terminate. A "special trustee" may act in such capacity more
than once.
SIXTH: This agreement is irrevocable and may not be amended.
SEVENTH: This agreement shall be governed by and interpreted in
accordance with the laws of Illinois.
IN WITNESS WHEREOF, I and the trustee have signed this
agreement on the date first written above.
/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX, as Grantor
/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX, as Trustee
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