Exhibit 7.02
AGREEMENT DATED THE 22ND DAY OF
NOVEMBER, 2005, BETWEEN MP ALPHA
HOLDINGS LLLP, A DELAWARE LIMITED
LIABILITY LIMITED PARTNERSHIP (THE
"SETTLOR") AND XXXXXX X. XXXXXX (THE
"TRUSTEE").
The settlor hereby transfers and herewith delivers to the trustee the
property described in Schedule A annexed to this agreement and the trustee, for
himself and his successors, acknowledges receipt of that property and agrees to
hold, invest, reinvest and otherwise deal with that property and such other
property as may be given, devised and otherwise transferred to the trustee for
the purposes of this agreement, in trust as provided in this agreement.
The trust provided for in this agreement may be referred to as the "MP
ALPHA HOLDINGS LLLP INVESTMENTS TRUST" and this agreement may, in relation to
the trust or trusts from time to time held under this agreement, be referred to
as the "MP ALPHA HOLDINGS LLLP INVESTMENTS TRUST AGREEMENT."
ARTICLE I
TRUST FOR SETTLOR
(A) Dispositive Provisions. During the trust term, the trustee shall
hold the trust estate as the principal of a separate trust for the primary
benefit of the settlor. The trustee, shall when and as directed by the trust
protector (pursuant to Article II E hereinafter) pay to the settlor so much,
including all or any portion, of the net income and principal of the trust as
the trust protector deems necessary or advisable for any purpose The settlor
shall not have any current right to require the distribution of income whether
current or accumulated or principal. Any net income not paid to the settlor as
provided in this Subdivision (A) shall be accumulated and added to the principal
of the trust.
(B) Termination. On January 31st of the calendar year following the
effective date (hereinafter, the "termination date"), the trustee shall
distribute to the settlor all of the then principal of the trust, together with
any income then on hand or accrued, and this trust shall thereupon terminate.
Notwithstanding the provisions of the preceding sentence, if the settlor
requests the trustee to not make the distribution hereinabove provided for in
this Subdivision (B) by communication to the trustee during the fifteen (15) day
period (the "grace period") prior to the termination date, in any year, the
trustee shall not make the
distribution provided hereinabove to the settlor, the trust shall not
terminate, and the trustee shall retain the principal and income of
this trust. In such case, the termination date shall be deferred for
the one year period immediately subsequent to the original termination
date, subject to the same notice provisions and deferral provisions
described above in each successive calendar year. Notwithstanding the
above, in no event shall this Trust continue beyond January 31st, 2012,
at which time any undistributed principal and income shall thereupon be
distributed to the settlor.
ARTICLE II
TRUST MANAGEMENT
(A) Powers. In addition to, and without in any way limiting, any powers
or authority which the trustee would have in the absence of this Article, and
subject to Article V and the stated purposes to comply with Rule 12C-2.0063 of
the Florida Administrative Code, as amended, the trustee is authorized, from
time to time and in the discretion of the trustee:
(1) without regard to any law prescribing or limiting the
investment powers of fiduciaries, to retain any property of any kind
(including securities issued by any corporation, or any affiliate of
any corporation, serving as trustee under this agreement) and to invest
in any property of any kind;
(2) to sell, at public or private sale and for cash or on
credit, with or without security, or to exchange, or to grant options
upon, any property on any terms, it being the intention of the settlor
to confer on the trustee a general power of sale;
(3) to lease any property for any term, without regard for any
limitation imposed by law or for the probable duration of the
administration of any trust held under this agreement;
(4) to partition or improve any property, to demolish, remodel
or erect buildings or other structures on any property, and to
foreclose, extend, assign, release partially or discharge any lien on
any property;
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(5) to borrow money from anyone (including any individual or
corporation serving as trustee under this agreement) and for any
purpose (including to pay the costs of maintaining in force any policy
of insurance held as part of the trust estate) and to secure the
repayment thereof by mortgage or pledge of any property;
(6) to lend money or guarantee a loan to any beneficiary under
this agreement either with or without security and on such other terms
as the trustee deems appropriate;
(7) to settle or compromise any claim in favor of or against
any trust held under this agreement;
(8) to vote in person or by proxy, or to refrain from voting,
in respect of any securities, and to enter into any voting trust or
similar agreement;
(9) with respect to any securities, to consent or object to
any action or non-action of any corporation, or of the directors,
officers or stockholders of any corporation; and to deposit any
securities under any reorganization or other agreement or with any
committee, depository, agent or trustee, and to pay fees, assessments
and expenses relative thereto;
(10) to exercise or sell any subscription rights or other
rights received in respect of any securities;
(11) to register securities in the name of any nominee or in
the name of any bank, trust company, stock brokerage firm or its
nominee, with or without indication of the capacity in which the
securities shall be held, or to hold securities in bearer form;
(12) to employ legal counsel, accountants, investment
advisers, brokers and other agents or employees, and to pay to them
reasonable compensation as an administration expense, and to rely upon
information or advice furnished by them,
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without liability for any consequence that can be attributed to such
reliance, provided that the selection of such agents or employees was
made in good faith;
(13) to delegate to any investment adviser full or partial
discretionary power with respect to the purchase, retention and sale of
securities under investment management and to delegate investment
functions to an investment agent;
(14) to appoint one or more trustees (a "foreign trustee") in
any jurisdiction where the trustee is unable or unwilling to serve, to
remove any trustee so appointed, and to pay reasonable compensation to
any foreign trustee (as determined by the trustees making the
appointment) as an administration expense, and each foreign trustee
shall, to the full extent legally possible, serve without bond or other
security and shall have all the powers and authority conferred by this
agreement on the trustee;
(15) to allocate to the income account or to the principal
account, or in part to each, any money, stock distributions or other
property received, and to charge to either of such accounts, or in part
to each, any expense (including taxes, and interest and penalties
relative thereto, and trustee's commissions) paid or loss incurred, as
the trustee deems equitable, having due regard for the interests of the
income beneficiaries and the remaindermen, and, in particular, to
determine whether, and if so, to what extent (a) premiums on securities
acquired at a premium shall be amortized, (b) account shall be taken of
discounts in the case of securities acquired at a discount, (c)
receipts from wasting investments shall be allocated to principal
account, or (d) rentals from improved real property shall be withheld
as a reserve for depreciation in respect of such property;
(16) when and as directed by the trust protector, to make any
particular payment, division or distribution of income or principal in
kind or in money or partly in each and without regard for the manner in
which any other payment, division or distribution may have been made
and, in the case of any division into shares, to make up the several
shares of similar or of different property; and to exercise these
powers without regard to the income tax basis of any property so paid,
divided or distributed
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in the hands of the recipient and without regard to any provision of
law expressing a preference for distribution of property in kind;
(17) when and as directed by the trust protector, with respect
to payments of income or principal to any person, either to take into
account or to disregard, as the trust protector shall direct in the
particular circumstances, any financial resources which may be
available to such person otherwise than under the provisions of this
agreement,
(18) to receive and accept as an addition to the principal of
any trust under this agreement any property which is acceptable to the
trustee and which is given, bequeathed, devised or otherwise
transferred to the trustee for the purposes of such trust;
(19) to disclaim all or part of any interest or property that
any trust under this agreement shall be entitled to receive;
(20) when and as directed by the trust protector, to apply for
the benefit of any person any amount, whether of income or of
principal, which under any provisions of this agreement could be paid
directly to him or her;
(21) to pay any tax properly payable; to collect any tax
refund; to file any tax return that may be required, and, as the
trustee deems appropriate, to claim any deduction and to exercise any
right of election that may be available in connection with any such
return; in connection with the payment of any such tax, to make such
adjustment, if any, as between the income account and the principal
account as the trustee deems equitable;
(22) if at any time any trusts on substantially identical
dispositive terms shall be in existence under this agreement and under
the will or any other trust instrument of the settlor or any other
person, to combine such trusts by paying over the trust estate of the
trust under this agreement to the trustees of the other trust or by
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receiving the trust estate of such other trust as an addition to the
trust under this agreement;
(23) to remove from the State of Florida any property at any
time located in that State and, for as long as the trustee deems it
advisable to do so, to keep such property, or any other property at any
time comprising a part of the trust estate, in such place or places,
whether or not within the United States of America, as the trustee
determines;
(24) to carry on, direct, control, supervise, manage, develop,
operate or participate in any business, incorporated or unincorporated,
any interest in which is at any time held as part of the trust estate,
for such period of time and upon such terms as the trustee deems
advisable, and to form one or more corporations, partnerships or other
types of business organizations under the laws of any state or country
for the purposes of carrying on, directing, controlling, supervising,
managing, developing, operating or participating in any such business
and to transfer all or any part of the assets of any such business to
one or more of such organizations; to act as or to select other persons
to act as directors, officers or other employees of any such business;
to determine the manner and degree of active participation by the
trustee in the management of any such business and to that end to
delegate all or any of the powers, authorities and discretions
conferred in this agreement to such persons as may be deemed advisable,
including, without limitation, to any director, officer or employee of
such business; to engage, compensate and discharge, or as a stockholder
or director of any such corporation, to vote to engage, compensate and
discharge such managers, employees, agents, attorneys, accountants,
consultants, advisers or other representatives of any such business or
corporation as may be deemed advisable, including, without limitation,
any trustee under this agreement or an officer or employee of any
corporate trustee under this agreement or any person who is a
beneficiary under this agreement and to pay such compensation
(including reasonable compensation to any trustee under this agreement)
from such business; to lend money or guarantee loans to any such
business or to utilize any property held under this agreement as
collateral for loans;
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to enlarge, diminish or change the scope or nature of the activities of
any such business; and to sell, transfer, dissolve or liquidate, wholly
or partially, all or any portion of any such business at any time or
times and upon such terms and conditions (including, without
limitation, the power to make representations and warranties and to
give indemnities and other forms of undertakings) as may be deemed
advisable;
(25) to exercise the powers granted under this agreement after
the principal of any trust becomes distributable and until the entire
income and principal of the trust have been distributed; and
(26) generally to exercise in respect of any property any
power which an absolute owner of such property would have.
(B) Termination of Trust. In granting discretion over the payment of
the principal of the trust under this agreement to the trust protector, it is
the settlor's intention that the trust protector have complete direction in
terminating the trust if the trust protector determines that continuation of
such trust is inadvisable in view of the size of the trust or for any other
reason, and the trustee shall follow the direction of the trust protector in
respect thereof.
(C) "Prudent Person" Rule May Be Waived In The Discretion of Trustee.
In addition to the investment powers conferred above, the trustee is
specifically authorized (but not directed) to acquire and retain investments not
regarded as traditional for trusts, including investments that would be
forbidden or would be regarded as imprudent, improper or unlawful by the
"prudent person" rule, "prudent investor" rule, or any other rule or law which
restricts a fiduciary's capacity to invest. The trustee, in the exercise of its
discretion may invest in any type of property, wherever located, including any
type of security or option, improved or unimproved real property, and tangible
or intangible personal property, and in any manner, including direct purchase,
joint ventures, partnerships, limited partnerships, limited liability companies,
corporations, mutual funds, business trusts or any other form of participation
or ownership whatsoever. In making investments, the trustee may disregard any or
all of the following factors:
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(1) Whether a particular investment, or the trust
investments collectively, will produce a reasonable rate of return or
result in the preservation of principal.
(2) Whether the settlor, or any person related to the
settlor, the trustee, or entities in which one or more of them
participate or are beneficially interested also owns an interest in, or
is a director, officer or otherwise participates in, a particular
investment.
(3) Whether the trust is diversified. The settlor intends
that no duty to diversify shall exist.
(4) Whether any or all of the trust investments would
traditionally be classified as too risky or speculative for trusts. The
entire trust may be so invested. The settlor intends the trustee to
have its sole and absolute discretion in determining what constitutes
acceptable risk and what constitutes proper investment strategy.
The settlor's purpose in granting the foregoing authority is to modify
the "prudent person" rule, "prudent investor" rule, or any other rule or law
which restricts a fiduciary's ability to invest insofar as any such rule or law
would prohibit an investment or investments because of one or more factors
listed above, or any other factor relating to the nature of the investment
itself. It is in the best interests of the beneficiaries of the trusts created
hereunder to give the trustee broad discretion in managing the assets of any
trust created hereunder Notwithstanding anything contained hereunder, the waiver
described in this Subdivision (C) is conditional and may be withdrawn and
released at any time, and from time to time, by the settlor, but only as to
those actions, transactions and investments that shall occur from and after any
such release.
(D) Division, Merger and Consolidation of Trusts. Notwithstanding
any provision of this agreement requiring that property be held in a single
trust:
(1) The trustee of any trust created under this agreement
may, at any time or times and without court approval, (i) divide any
trust created under this agreement (before or after it is funded with
assets) into two or more separate trusts, the terms of
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each such trust being identical to those of the divided trust, for any
purpose, and (ii) merge or consolidate any trusts that have been so
divided;
(2) If any trust is divided into separate trusts, the
trustee of each trust may at any time (prior to a later merger of such
trusts) (i) make different tax elections with respect to such separate
trusts, (ii) when and as directed by the trust protector, expend
principal and exercise any discretionary powers with respect to such
separate trusts differently (including, without limitation, making any
mandatory distribution of principal required to be made from separate
trusts with the same provisions by aggregating the then value of such
separate trusts and making such distribution disproportionately from
such trusts or entirely from one or more of such trusts to the
exclusion of the others), (iii) when and as directed by the trust
protector, determine from which of the separate trusts of a divided
trust any payment (other than a mandatory distribution of income) shall
be made to any person, including any taxing authority, who would have
been authorized or entitled to receive such payment from the trust had
it not been divided, (iv) invest such separate trusts differently, and
(v) take all other actions consistent with such trusts being separate
entities; further, the holder of any power of appointment with respect
to a trust so divided may exercise such power differently with respect
to the separate trusts created by the division; and
(3) Any division, merger or consolidation of trusts
pursuant to the authority granted to the trustee by this Subdivision
(D) shall become effective as of the effective date set forth in a
statement of division, merger or consolidation signed by all affected
trustees, a copy of which shall become a part of the records of each
trust affected by such division, merger or consolidation.
(E) Limitation Requiring Consent of Trust Protector for
Distributions. Notwithstanding any provision of this instrument to the contrary,
any distributions by the trustee (other than distributions on termination of the
trust under Article I (B) hereinabove) shall require that the same be determined
and directed by following person who is hereby designated as "trust protector:"
Xxxxx Xxxxxx
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The direction hereunder shall be evidenced by a written statement executed by
the trust protector, and delivered to the trustee within thirty (30) days of the
date that the consent is granted. In the event of the inability of the trust
protectors to serve, an additional trust protector or trust protectors may be
appointed by the trustee by delivering written notice of such appointment and by
written acceptance by the trust protector or trust protectors so appointed. Any
resignation of a trust protector shall be by written communication delivered to
the trustee. The powers granted to the trust protector hereunder are so granted
in a non- fiduciary capacity .
ARTICLE III
OTHER PROVISIONS CONCERNING TRUSTEES AND TRUST PROTECTOR
(A) Discretion. The exercise by any trustee or trust protector of
the discretionary power herein granted with respect to any property given
hereunder of the payment, application or accumulation of income of any trust
created hereunder shall be final and conclusive upon all persons interested
hereunder and shall not be subject to any review whatsoever. The trustee and
trust protector shall have the greatest latitude in exercising such
discretionary powers, and the entities or persons entitled to receive the trust
estate of any trust created hereunder shall upon the termination of such trust
be entitled only to such trust estate as may remain after the last exercise of
such continuing discretionary powers.
(B) Special Limitations. An act in violation of the following
shall be deemed ultra xxxxx and without force or effect. These provisions are
not intended to change any other provision hereof, but rather to make it clear
that:
(1) The settlor shall have no authority to direct the
trustee to distribute or appoint any assets of this trust to anyone
(including settlor, as settlor's creditors) or to name or remove a
beneficiary;
(2) The settlor shall have no right to veto, rescind or
approve any action of the trustee;
(3) The settlor shall have no power, authority or any
right to exercise influence over any item of trust property or to
control or manage any trust property or possess any other or similar
indicia of ownership;
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(4) The settlor shall have no right to revoke the trust;
(5) No provision of the trust shall be deemed or
interpreted to permit or direct the form or type of property that will
be returned to the settlor.
(C) Additional Limitations In the event it is determined that any
right or power of the settlor, the trustee, or both of them acting together
during the grace period may or would result in the retention of the settlor of
a "beneficial interest" (as that term is defined in Section 199.023, Florida
Statutes) in the trust, then, with respect to any such grace period, the trustee
shall no longer act in such capacity, but instead shall act and shall be deemed
for all purposes to act as the true and lawful attorney-in-fact ("Attorney") for
the settlor with respect to only those assets that shall constitute and comprise
the trust on the termination date and shall continue to hold such assets during
the grace period or the portion thereof then remaining in the settlor's name,
place and stead and for the settlor's use and benefit:
(1) To act for and represent the settlor in any and all
transactions connected with any business or businesses carried on by
the settlor; to dissolve, in whole or in part, or, to transfer, assign,
sell or incorporate any or all of such business or businesses; to
transfer, assign, sell or exchange all or any portion of the settlor's
interest in any business or businesses to any person, firm or
corporation; to exchange all or any portion of the settlor's assets or
the settlor's interest in any such business or businesses for corporate
stock or for shares or beneficial interests in any trust or other
entity; to transfer, assign, sell or exchange all or any portion of the
assets of the business or businesses, or any other real or personal
property of the settlor's or in which the settlor has an interest, upon
such terms as the settlor's Attorney, in the settlor's Attorney's
opinion, shall deem advisable and proper;
(2) To demand, institute legal proceedings for, recover,
collect and receive any and all manner of goods, chattels, debts,
claims, demands, choses in action, duties, rents, sum and sums of
money, whatsoever, due or hereafter to become due and owing; to
compound, compromise, settle and adjust all claims and demands,
whatsoever, due or hereafter to become due or owing or belonging to the
settlor, or which the settlor may now or hereafter owe or be liable
for, and to execute and deliver, or to receive, all proper receipts,
and releases or discharges therefor;
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(3) To grant extensions of time for the payment of any
debts, claims or demands, due or hereafter to become due or owing to
the settlor, for such periods and on such terms as the settlor's said
Attorney shall deem best, with or without security;
(4) To sign, execute, deliver, pay and perform all
checks, drafts, agreements, contracts and all other instruments, in
writing, of whatever nature as the settlor's Attorney shall deem fit;
(5) To sign, endorse, execute and deliver, and renew, any
and all checks, promissory notes, bonds, bills of exchange, trade
acceptances, or other evidences of indebtedness; and to waive notice of
demand and protest thereon, and upon any and all promissory notes,
bonds, checks, drafts, or other instruments of writing which the
settlor has heretofore executed, or endorsed;
(6) To vote, sell, assign, transfer, convey and endorse
for transfer any stocks, bonds or other evidences of title to any
personal property whatsoever owned by the settlor, and to make such
sale, transfer, assignment, or conveyances for such prices and upon
such terms and conditions as the settlor's said Attorney shall deem
wise;
(7) To collect and receive any dividends, interest, or
other accretion or income due or to become due upon any such stocks,
bonds or other evidence or title or property, and to execute a proper
receipt, release and discharge therefor;
(8) To pay any all taxes, charges and assessments that
may be levied, assessed or imposed upon any of the settlor's property,
whether real or personal;
(9) The settlor's Attorney may create on behalf of the
settlor a new trust which shall hereinafter be designated as the
successor trust either: (i) at the direction of the settlor during the
term hereof; or (ii) upon the expiration of the term hereof by virtue
of continuing to hold the assets hereunder together with notification
to the settlor of the successor trust at the direction of the settlor.
In such case, the trustee may retain or change the manner in which the
successor trust is denominated.
This Power of Attorney shall be nondelegable and shall be valid until
such time as terminated. This Power of Attorney may be terminated in whole or in
part by either the settlor or the settlor's Attorney giving written notice of
such termination to the other. An executed duplicate of this Power of Attorney,
or a photostatic or electronic copy thereof,
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delivered by the settlor or by the settlor's Attorney to any third party will be
conclusive against the settlor and the settlor's Attorney as to such third party
that this Power of Attorney has not been terminated and will continue in effect
until such third party is advised by written notice from the settlor or from the
settlor's Attorney of such termination. This Power of Attorney shall be governed
by Florida law and the provisions of Article III, Subdivision (N).
The settlor hereby reserves all rights on the settlor's part to do
personally any act which the Attorney is hereby authorized to perform, and to
authorize and direct the attorney to perform any such act.
(D) Appointment of Additional Trustees. The person or persons from
time to time in office as trustees of the trust created under this agreement
may, at any time or times, appoint additional or successor trustees of such
trust. Upon the death, resignation, or refusal or inability to serve of the then
acting trustee, if no successor trustee has been appointed by such departing
trustee, settlor shall appoint a successor trustee, except that in no event
shall the settlor be successor trustee.
(E) Rules Governing Appointment. Appointments of additional and
successor trustees shall be subject to the following limitations: (a) there
shall not at any time be more than one corporation or more than three
individuals in office as trustees of the trust, and (b) no corporation shall be
eligible for appointment unless at the time of its appointment it shall have, as
shown by its then most recently published financial statement or report (c)
total capital funds of at least $10,000,000 (and for purposes of this clause (i)
the capital of a corporation transacting trust business in Florida is deemed to
include the capital of its parent in another state, provided the parent,
directly or indirectly, transacts trust business in the other state) or (ii)
trust and other investment assets under management of a value of at least
$100,000,000.
(F) Resignation of Trustees. Any trustee under this agreement may
resign from office, provided that (i) at least one other trustee is then acting,
or (ii) a successor trustee is named in this agreement or appointed as provided
in this agreement and has accepted its appointment. Any resignation shall be
effected by instrument signed and acknowledged by the resigning trustee and
delivered to the co-trustee then serving or, if none, to the appointed successor
who has accepted its appointment.
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(G) Requirements for Appointment. Any appointment of a trustee
shall be effected by instrument signed by the person or persons authorized to
take the action and delivered to the person being appointed. Any appointment of
a trustee may be revoked prior to the qualification of the person so appointed
by instrument signed by the person or persons who made the appointment and
delivered to the appointee.
(H) Limitation on Powers. Notwithstanding any other provision of
this agreement, no trustee may participate in any decision to make a
discretionary distribution (i) in his or her own favor.
(I) Delegation. Any individual in office as a trustee under this
agreement may at any time, by instrument signed and acknowledged by him or her
and delivered to his or her co-trustee or co-trustees, delegate, or revoke the
prior delegation of, any one or more of his or her powers or authorities as
such trustee, whether or not discretionary, to any one or more of his or her
co-trustees; provided that the delegation of any power or authority shall be
made only to a trustee who, in the absence of such delegation, would be
authorized to participate in the exercise of such power or authority.
(J) Corporate Succession. Any corporation which, by merger,
consolidation, purchase or otherwise, succeeds to all or substantially all of
the personal trust business of any corporation then in office as a trustee
shall, immediately and without any appointment, assignment or other action by
anyone, succeed to office as a trustee under this agreement.
(K) Exoneration from Statutory Requirements. To the full extent
legally possible, each individual or corporation serving as a trustee is hereby
released from any obligation, in any jurisdiction, to furnish any bond or other
security, to file any inventory, to render annual or periodic accountings, or to
obtain the approval of any court before applying, distributing, selling or
otherwise dealing with any property.
(L) Compensation of Trustee. Each trustee under this agreement
shall receive such compensation, if any, as provided in a written agreement
between such trustee and either the settlor or the other person or persons who
appointed such trustee as provided in this Article. In the absence of any such
agreement, each individual trustee shall receive compensation that is reasonable
under the laws of the State of Florida and each corporate trustee shall be
compensated in accordance with its regularly published schedule of fees in
effect at the time the compensation is payable.
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(M) Release or Suspension of Powers. Any person upon whom a power
is conferred by any provision of this agreement with respect to a trust created
under this agreement may at any time release or suspend for a specified period
of time such power, in whole or in part, by delivering an instrument of release,
signed and acknowledged by him or her, to the individual or individuals for
whose primary benefit such trust is established and filing such instrument with
the records of the trust. Such release or suspension shall be irrevocable if the
document by which the release or suspension is effected states that it is
irrevocable and shall bind all such person's successors if such document states
that it is intended to bind such successors. If the release of a power is made
by less than all of the persons upon whom it is conferred, the power shall
continue to be exercisable in full by the person or persons (other than any
successor upon whom the release is, by its terms, binding) who have not released
it.
(N) Exoneration of Trustees and Others. In addition to any and all
other provisions contained in this agreement, the trustee and the trusts created
under this agreement shall be subject to the following provisions:
(1) No person dealing with the trustee shall be required
to inquire into the validity, expediency or propriety of any
transaction entered into by the trustee or to see to the use or
application of any property delivered to the trustee, and the written
receipt of the trustee shall constitute a full discharge and release of
such person;
(2) The written receipt of any person to whom income or
principal is paid in accordance with the provisions of this agreement
or the canceled check of the trustee or other evidence of the payment
or application of any amount by the trustee to or for the benefit of
any beneficiary shall be a full discharge to the trustee for any amount
so paid or applied and from further accountability therefore, and the
trustee shall not be required to see to the use or application thereof
by any recipient;
(3) No person serving as trustee under this agreement
shall be liable for any loss to or depreciation of the assets of any
trust created under this agreement provided such trustee acted in good
faith; and in no event shall any trustee be liable for any error in
judgment, or any act or omission, except for its gross or willful
negligence, willful misconduct or lack of good faith. The settlor
recognizes that, by
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reason of the provisions of this agreement, the nature of the trust
estate and the applicable tax and other laws, the trustee is charged
with complex administrative responsibilities. The settlor has conferred
broad discretionary powers on the trustee with which to discharge those
responsibilities because the settlor believes that the unrestricted
exercise of such discretion, free from the threat of having the account
surcharged for losses or depreciation will, upon the whole, operate for
the best interests of the trust estate and the trusts under this
agreement;
(4) An individual trustee shall act as trustee in his
individual fiduciary capacity without regard to his interest in any
entity of which he may be a director, officer, shareholder, partner,
manager, or member, and when acting as trustee, such individual shall
be governed by the laws of the appropriate jurisdiction respecting
trusts and not by the laws of the appropriate jurisdiction governing
such entity or by any agreement concerning such entity of which such
individual trustee may be a party to;
(5) No successor trustee shall be required to investigate
or audit the accounts or acts of any prior trustee or to take any
action with respect thereto before qualifying or acting; and
(6) Any determination, allocation, or exercise or
non-exercise of any tax election, by the settlor's personal
representatives or by the trustee shall be conclusive and binding on
all persons having or claiming any interest in the settlor's estate or
the trust under this agreement.
Nothing in this Subdivision or in any other provision of this trust
shall be construed to authorize the trustee to act unreasonably in the exercise
of its discretionary powers over the distribution of income or principal.
ARTICLE IV
IRREVOCABILITY
This agreement and the trusts created under this agreement are
irrevocable and shall not be amendable by the settlor or any other person.
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ARTICLE V
GOVERNING LAW
(A) Florida Law. The trustee resides in the State of Florida;
therefore, (subject to the provisions of Subdivision (B) of this Article), the
law of Florida shall govern the validity and interpretation of the provisions of
this Agreement. A material objective of the trust is that neither the settlor,
the trustee, any beneficiary of the trust, nor any assets of the trust shall be
subject to Florida tax on intangible personal property and that this trust
otherwise comply with the exception criteria set forth in Florida Administrative
Rule 12C-2.0063, as amended, other than section (3) thereof which has been
legislatively invalidated. The provisions of this Agreement will be construed in
accordance with such intention.
(B) Change of Law. The trustee is authorized to change the situs
of any trust held under this agreement by written instrument signed and
acknowledged by the trustee; and, in connection with any such change and without
any need to obtain the approval of any court, to elect that such trust shall be
subject to the jurisdiction of, and to move the assets of such trust to, the
state, country or place of the new situs; and, if such election is made, such
trust shall be administered and the validity and effect of the provisions of
this agreement applicable to such trust shall be determined in accordance with
the laws of such jurisdiction.
ARTICLE VI
PROVISIONS REGARDING RIGHT TO RECEIVE INCOME OR PRINCIPAL
The right of any entity to receive any amount, whether of income or of
principal, pursuant to any of the provisions of this agreement, shall not, in
any manner, be anticipated, alienated, assigned or encumbered, and shall not be
subject to any legal process or bankruptcy or insolvency proceeding or to
interference or control by creditors or others.
ARTICLE VII
DEFINITIONS AND RULES OF CONSTRUCTION
(A) Inability to Act. For purposes of this agreement, any
individual who is serving as a trustee or who is authorized or required to take
any action (whether as a trustee or otherwise) shall be deemed unable to act if
and so long as he or she, in the opinion of the person or persons designated to
serve as trustee or to take such action in the event of such individual's
inability to act, is incapable of acting by reason of advanced age, illness,
accident, or any other cause. Any such person shall be justified in assuming
that such
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individual is unable to act if that fact is certified by the spouse of such
individual or, if the spouse is not available, by a majority of the then living
adult descendants of such individual or, if no such descendant is available, by
the principal physician attending such individual.
(B) Internal Revenue Code and Treasury Regulations. Any reference
in this agreement to a section of the Internal Revenue Code or the Treasury
Regulations shall be deemed to refer to that section of the Internal Revenue
Code of 1986 or the Treasury Regulations promulgated thereunder as in effect on
the date of this agreement or to the corresponding provisions of any subsequent
Federal tax laws and regulations which shall be in effect at the relevant time.
(C) Other. Wherever used in this agreement, except where the
context shall clearly require otherwise:
(1) the term "property" shall include real, personal and
mixed property, tangible or intangible, of any kind and wherever
located, including securities and interests in any so-called common
trust funds;
(2) the term "securities" shall include but not be
limited to bonds, mortgages, notes, obligations, warrants and stocks of
any class, whether listed on an exchange, sold over the counter or
closely held, futures contracts, options, derivatives and mutual funds,
interests in any partnership, co-tenancy and joint venture, and such
other evidences of indebtedness and certificates of interest as are
usually referred to by the word "securities";
(3) the term "trust estate" means with respect to any
trust created under this agreement the property and any such additional
property, and its proceeds and reinvestments, from time to time held
under this agreement as part of that trust;
(4) the term "trustee" shall mean at any time with
relation to any trust under this agreement the trustee or trustees of
that trust then in office;
(5) words in either the masculine or the feminine form
shall be deemed to include or relate to both males and females and,
where appropriate, corporations or other entities; and
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(6) words in either the singular or the plural number
shall be deemed to include both the singular and the plural numbers.
(D) Counterparts. This instrument may be executed in counterparts
each of which shall be considered part of the whole.
(E) Signatories. The trustees shall have the power and authority
to designate the authorized signatory or signatories on accounts with banks
and savings and loans, stock brokerage firms and stock transfer agents as well
as all other third persons. Such powers may be general or limited, as the
trustee shall designate, whether such authorized signatories include all of
the trustees or not, and all institutions relying on such authorized
signatures are exonerated from any loss, claim or liability. Accordingly, one
or two or more trustees as well as non-trustee parties may be authorized
signatories.
ARTICLE VIII
EFFECTIVE DATE
This agreement and the trusts created by this agreement shall be
effective upon the signing of the agreement by the settlor and the trustee;
provided, however, if pursuant to this agreement, there shall be a successor
trust(s) then the effective date of any such successor trust shall be the date
that such trust shall come into existence pursuant to Article III, Subdivision
(C).
ARTICLE IX
HEADINGS
The headings preceding the text of the Articles and Subdivisions of
this agreement are inserted solely for purposes of identification, and shall not
be used to ascertain the meaning of any provision contained in this agreement or
for any other reason.
[Signatures on following page]
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IN WITNESS WHEREOF, the settlor and the trustee have signed this
agreement under seal as of the date first above written. The trust protector has
signed this agreement for the purpose of accepting his responsibilities
hereunder.
Signed by the settlor in our
presence and signed by us in
the presence of the
settlor and each other:
MP ALPHA HOLDINGS LLLP, a
Delaware limited liability limited
partnership, settlor
By: LMM FAMILY CORP., a Delaware
corporation, its General Partner
/s/ Xxxxxx Xxxxx
-------------------------------- By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Print name Xxxxxx Xxxxx XXXXXX X. XXXXXX, its President
/s/ Xxxxx X. Xxx
--------------------------------
Print name: Xxxxx X. Xxx
Signed by the trustee and trust
protector respectively in the
presence of the below witnesses:
/s/ Xxxxxx Xxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------------- -------------------------------------------
Print name: Xxxxxx Xxxxx XXXXXX X. XXXXXX, as Trustee
/s/ Xxxxx X. Xxx
--------------------------------
Print name: Xxxxx X. Xxx
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxx Xxxxxx
-------------------------------- -------------------------------------------
Print name: Xxxxxxxx Xxxxxx XXXXX XXXXXX, as Trust Protector
/s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Print name: Xxxxxxxxx Xxxxxxx
