EXHIBIT 10.4
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TRUST AGREEMENT
XXXXXX X. XXXXX, hereinafter referred to as the "Grantor," hereby
assigns, transfers and sets over to XXXX XXXX XXXXX, hereinafter
referred to as the "Trustee," the property described in Schedule "A"
attached hereto and made a part hereof, receipt of which is hereby
acknowledged by the Trustee. Such property and any other property
that may be received by the Trustee, hereinafter referred to as the
"trust estate", shall be held by the Trustee upon the terms, trusts
and conditions hereinafter set forth. This instrument and the trust
established hereunder shall be known as the "XXXXXXX XXXX XXXXX
TRUST".
ARTICLE I
IRREVOCABILITY
The Trust created hereunder is irrevocable. The Grantor
expressly waives all rights and powers to revoke, amend or alter this
Trust Agreement or the terms of the Trust hereby created in any
respect, either in whole or in part.
ARTICLE II
CURRENT BENEFICIARY
XXXXXXX XXXX XXXXX (the "Current Beneficiary"), during her
lifetime, shall be the sole beneficiary of the Trust.
ARTICLE III
DISTRIBUTION PROVISIONS
The trust estate shall be held, administered and distributed as
hereinafter provided.
3.1 RIGHTS OF WITHDRAWAL. In any calendar year in which a
transfer of property is made to this trust by any person, the Current
Beneficiary, at such date, shall have the power, in his or her sole
discretion, commencing with such date, to withdraw property then
belonging to the principal of the trust (including the property then
transferred into trust) having a value equal at the time of withdrawal
to the value of such transferred property at the date of such
transfer, but in no case exceeding Twenty Thousand Dollars
($20,000.00) per calendar year. Any power of withdrawal hereunder
shall be noncumulative. The Trustee shall, promptly after the initial
transfer into trust or after an addition is made in a later calendar
year, notify in writing the person having a withdrawal power of the
existence of the power, except that in the case of any such person who
is under a legal disability, notification shall be given to his legal
guardian; or if none, to a parent of an infant or to such other
individual whom the Trustee shall deem appropriate Such person
receiving notification from the Trustee shall have thirty (30) days
after receiving such notification to exercise the power by a written
instrument delivered to the Trustee, except that in the case of a
person under a legal disability, his or her power may be exercised
only by his or her legal guardian. An adult beneficiary, or a
guardian, may after receiving such notice at least once, waive further
notice by an instrument in writing delivered to the Trustee.
3.2 DISTRIBUTION OF INCOME. During the life of the Current
Beneficiary, the Trustee, in her sole discretion, shall distribute
such portions or all of the net income of the trust estate to the
Current Beneficiary as Trustee shall from time to time determine to be
of for the comfortable maintenance, welfare and support of the Current
Beneficiary, provided that, absent unusual circumstances, the maximum
amount distributable in any year prior to the date the Current
Beneficiary attains age twenty-five (25) should not exceed Fifty
Thousand Dollars ($50,000.00).
3.3 DISTRIBUTION OF PRINCIPAL. During the life of the Current
Beneficiary, the Trustee, in her sole discretion, shall distribute to
or use for the benefit of the Current Beneficiary such portions or all
of the principal of the trust as the Trustee shall from time to time
determine to be for the comfortable maintenance, welfare and support
of the Current Beneficiary.
3.4 RIGHTS OF WITHDRAWAL OF PRINCIPAL. After the last to occur
of (i) the death of the Grantor; and (ii) the attaining of the
following respective ages, the Current Beneficiary shall have the
right at any time and from time to time during her lifetime to
withdraw portions of the principal of the trust which shall not exceed
in the aggregate the portions thereof which are set forth below with
respect to each such age:
(a) On or after age twenty-five (25), ten percent (10%)
thereof;
(b) On or after age thirty (30), twenty percent (20%)
thereof;
(c) On or after age thirty-five (35), forty percent (40%)
thereof; and
(d) On or after age forty (40), the entire remaining
balance thereof.
For the purpose of determining amounts subject to withdrawal, the
value of the principal of the trust shall be its value as of the date
a withdrawal is requested plus the amount of all previous withdrawals
valued as of the date of each such withdrawal. The aggregate amount
of all such previous withdrawals valued as aforesaid shall be charged
against any amounts subject to withdrawal pursuant hereto. All such
withdrawals shall be made by written request delivered to the Trustee
during the lifetime of the Current Beneficiary and after the right to
make the withdrawal has accrued. Upon delivery of such request, so
much of the principal of the trust as is properly requested shall
immediately vest in the Current Beneficiary.
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3.5 LIMITED POWER OF APPOINTMENT. Upon the death of the Current
Beneficiary before complete distribution of the trust, the remainder
thereof shall be distributed to or in trust for such one or more of
such Current Beneficiary's descendants in such manner and in such
proportions and upon such terms, conditions and trusts as such
beneficiary may appoint by her will, specifically referring to the
power hereby granted.
3.6 FAILURE TO EXERCISE POWER OF APPOINTMENT. To the extent
that the Current Beneficiary shall fail validly to exercise the
foregoing power of appointment, the balance of the trust, upon her
death, shall be distributed to her then living descendants, per
stirpes, or if no such descendant shall have survived such deceased
child, to the then living descendants of the Current Beneficiary's
father, per stirpes; subject, however, to the holdback provisions
hereof.
3.7 HOLDBACK PROVISIONS FOR BENEFICIARIES UNDER TWENTY-ONE YEARS
OF AGE. If at any time part or all of the principal of any trust
created hereunder shall be distributable to a beneficiary who has not
yet attained twenty-one (21) years of age and for whose benefit a
separate trust is not then being held hereunder, the distributable
share of such beneficiary shall at once vest in him or her, but the
Trustee, notwithstanding any provisions for distribution, shall either
(a) establish with such distributable share a custodianship for the
beneficiary under a Uniform Transfers to Minors Act, designating the
parent or a relative of the beneficiary as the custodian, or (b)
continue to hold such distributable share as a separate trust for the
beneficiary, using so much of the net income and principal as the
Trustee deems to be necessary or advisable for the education,
comfortable maintenance, welfare and support of such beneficiary,
accumulating and adding to principal any net income not so used, and
distributing to such beneficiary upon attaining twenty-one (21) years
of age the then remaining principal and any accumulated income
therefrom.
3.8 ULTIMATE DISTRIBUTION. If, at the death of the last
survivor of the Grantor, the Current Beneficiary and the last
surviving descendant of the Current Beneficiary's father, any portion
of any trust created hereunder, except a trust created pursuant to the
holdback provisions hereof relating to beneficiaries under twenty-one
(21) years of age, remains undistributed under the foregoing
provisions hereof or pursuant to the exercise of a power of
appointment created hereunder, then such trust shall be distributed by
the Trustee to those persons who would then be the Grantor's heirs-at-
law. For the purposes hereof, the term "heirs-at-law" shall mean
those persons who would then be the heirs-at-law as determined by the
then existing laws of descent and distribution of the State of
Illinois as if the Grantor had died intestate at such time.
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ARTICLE IV
DISTRIBUTION TO BENEFICIARIES
4.1 DISCRETIONARY DISTRIBUTIONS. The Trustee shall exercise the
discretionary powers herein conferred primarily to the benefit of the
Current Beneficiary rather than the remaindermen.
4.2 COMFORTABLE MAINTENANCE, WELFARE AND SUPPORT. The
"comfortable maintenance, welfare and support" of a beneficiary shall
include without limitation medical, dental and psychiatric care. In
applying such standards, the Trustee shall consider the standard of
living to which such beneficiary shall have been accustomed at the
time of the creation of the trust and the other income and resources
known to the Trustee to be available to the beneficiary for such
purposes (including any other distributions made to the beneficiary
pursuant to this instrument and the income and resources of any person
who shall be legally obligated to support the beneficiary.) It is the
Grantor's intention that each beneficiary be assisted by the Trustee
in any educational, business or personal endeavor which the Trustee
deems to be in his best interests. In that connection, the Trustee
may make distributions to permit a beneficiary to travel for
educational or pleasure purposes; to permit a beneficiary to purchase
or furnish a personal residence; or to permit a beneficiary to
purchase, initiate or invest in a business which the Trustee deems to
be sound or promising, even though said business might be the type of
investment in which, because of its risk, the Trustee would not or
could not invest the trust estate. At such time as a financial
institution is acting as the Trustee, the Trustee shall consult with
the Grantor's sister, XXXXXX XXXXXX XXXXXX, regarding the needs of the
Current Beneficiary for comfortable, maintenance, welfare and support.
The Trustee may rely on the recommendations of the Grantor's sister.
4.3 EDUCATION. The "education" of a beneficiary shall include
without limitation college, post-graduate, professional, vocational,
language and artistic studies.
4.4 BENEFICIARY UNDER DISABILITY. In the event that income or
principal shall become distributable free of any trust to a minor
beneficiary, to a beneficiary under other legal disability or to a
beneficiary not adjudicated incompetent, but who, by reason of illness
or mental or physical disability, is, in the sole opinion of the
Trustee, unable properly to administer such amounts, then such amounts
may be used by the Trustee directly for the best interests of the
beneficiary or distributed by the Trustee for the benefit of the
beneficiary in such one or more of the following ways as the Trustee
deems advisable:
(a) directly to the beneficiary;
(b) to the legally appointed guardian or conservator of the
beneficiary, if any;
(c) to an adult relative or friend of the beneficiary; or
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(d) to a custodian for the beneficiary under a Uniform
Transfers to Minors Act;
and the receipt of any such distributee shall constitute a full
release and discharge to the Trustee upon making such distribution,
and the Trustee shall not be obligated to see to the application of
any money or property so distributed.
ARTICLE V
GENERAL PROVISIONS
5.1 ADDITIONS TO TRUST ESTATE. The Grantor and any other person
may at any time and from time to time transfer, devise and bequeath to
the Trustee additional property of any kind acceptable to the Trustee,
to be held and administered in accordance with the provisions hereof
5.2 SPENDTHRIFT PROVISION. The interests of a beneficiary in the
income or principal shall not be subject to the claims of any
creditor, any spouse for alimony or support, or others, or to legal
process, and may not be voluntarily or involuntarily alienated or
encumbered. This provision shall not limit the exercise of any power
of appointment.
5.3 PERPETUITIES. Notwithstanding anything herein to the
contrary, the trust under this instrument shall terminate not later
than twenty-one (21) years after the death of the last survivor of the
Grantor, the Current Beneficiary and the Current Beneficiary's
descendants who are living on the date of this Trust Agreement, at the
end of which period the Trustee shall distribute the trust to the then
income beneficiary or beneficiaries in the proportions in which they
are then entitled to receive income, or if their interests are
indefinite, then in equal shares.
5.4 SMALL TRUST TERMINATION. If at any time a separate trust
created hereunder shall be of the aggregate principal value of Fifty
Thousand Dollars ($50,000.00) or less, the Trustee, in the Trustee's
sole discretion, may distribute the assets of such trust then in the
possession of the Trustee to the Current Beneficiary if he is then
living, or if he is not then living to the then income beneficiary or
beneficiaries in the proportions in which they are then entitled to
receive income, or, if their respective rights to receive income are
discretionary with the Trustee, then to such of the income
beneficiaries who are descendants of the Grantor, per stirpes, and
such trust shall thereupon terminate, notwithstanding any provision
herein to the contrary.
5.5 EXERCISE OF TESTAMENTARY POWER OF APPOINTMENT. In
determining whether, in what manner and to what extent a power of
appointment hereunder has been exercised by will, the trustee may act
in reliance upon a court order in any jurisdiction admitting an
instrument to probate as the will of the holder of the power or
finding that he died intestate, and unless within three months after
the holder's death the Trustee has actual notice of the existence of a
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will or of probate proceedings, the Trustee may assume that he died
intestate (but the provisions of this paragraph shall not affect any
right which an appointee or beneficiary in default of appointment may
have against any distributee).
ARTICLE VI
TRUSTEE POWERS, RIGHTS AND DUTIES
6.1 POWERS OF TRUST. In addition to any powers conferred by law
upon trustees, the Trustee shall have the following powers and
discretions in the administration, investment and distribution of any
trust created hereunder:
(32) to invest and reinvest the principal and any
income which the Trustee is authorized or directed
to accumulate, in such bonds, notes, debentures,
mortgages, preferred or common stock, interests in
common trust funds, partnership interests, or in
other property, real, personal or mixed, whether
like or unlike the types of property enumerated,
either within or without the State of Illinois, as
the Trustee may deem advisable, without being
limited by any statute or rule of law regarding
investments by trustees;
(33) to sell, contract to sell and grant options to
purchase any part or all of the trust estate at
public or private sale for cash or on credit, and
to exchange any part or all of the trust estate
for other property;
(34) to enter into leases for any period of time,
though extending beyond the termination of the
trust;
(35) to borrow money for any purpose, and if a bank or
trust company is then acting as trustee, said
money may be borrowed from its banking department
or from others, and to mortgage, pledge or
otherwise encumber any part or all of the trust
estate;
(36) to grant easements, subdivide, operate, maintain,
repair, improve, rehabilitate, give consents and
enter into contracts relating to real estate or
its use and dedicate any interest in real estate;
(37) to transfer the situs of the trust property to
such other place as the Trustee deems to be for
the best interests of the trust; and to designate
or appoint a trustee to act in any other
jurisdiction as sole trustee or co-trustee of any
part or all of the trust estate located in such
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other jurisdiction; to confer upon the appointed
trustee any or all of the powers, duties or rights
of the appointing Trustee; and to remove any
trustee appointed pursuant hereto and appoint
another, including the appointing Trustee;
(38) to enter into agreements for bank or other deposit
accounts, safe deposit boxes, custodian, agency or
depositary arrangements for all or any part of the
trust estate;
(39) to exercise all the rights and powers of an
individual owner with respect to shares of stock,
bonds or other securities in the trust estate,
including, but not by way of limitation, voting,
giving proxies, participating in voting trusts,
mergers, consolidations, foreclosures,
reorganizations or liquidations, and exercising or
selling subscription or conversion rights;
(40) to pay taxes and reasonable expenses incurred in
administering the trust estate;
(41) to appoint attorneys, auditors, financial advisers
and other agents, with or without discretionary
powers, and to pay reasonable compensation to such
appointees;
(42) to compromise contest, prosecute or abandon claims
or other charges in favor of or against the trust
estate;
(43) to execute contracts, notes, conveyances and other
instruments, whether or not containing covenants
and warranties binding upon and creating a charge
against the trust estate or excluding personal
liability;
(44) to receive from any source and administer
additional property as part of the trust estate;
(45) to invest in or hold undivided interest in
property;
(46) except as otherwise provided herein, to retain any
property or undivided interests in property
received from any source, regardless of any lack
of diversification, risk, or non- productivity;
(47) to deal with the executor, trustee or other
representative of any other trust or estate in
which a beneficiary of the trust estate has an
interest, notwithstanding the fact that the
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Trustee is an executor, trustee or other
representative of the other trust or estate;
(48) to make equitable division or distribution in cash
or in kind, or both, and for that purpose to value
any property divided or distributed in kind,
except as otherwise specifically provided in this
instrument;
(49) to rely upon any affidavit, certificate, letter or
other evidence reasonably believed to be genuine
and on the basis of any such evidence to make any
payment or distribution in good faith without
liability;
(50) to have all of the rights, powers, duties and
discretions given to or imposed upon the Trustee
by law and the provisions of the trust instrument
during the period between the termination of the
trust and the distribution thereof and during any
period in which any litigation is pending which
may void or invalidate the trust in whole or in
part or in any other way affect the rights,
powers, duties or discretions of the Trustee;
(51) to purchase and keep in force insurance of an
appropriate nature and form and in a reasonable
amount for the protection of the trust estate or
the ownership thereof;
(52) to determine the manner of ascertainment of income
and principal, and the allocation or apportionment
between income and principal of all receipts and
disbursements. The Trustee may at any time or
times charge all or any part of the Trustee's
regular annual compensation against the principal,
regardless of any rule of law or statue to the
contrary;
(53) to allocate different kind or disproportionate
shares of property or undivided interests in
property among the beneficiaries or trusts, and to
determine the value of any such property;
(54) to hold the several trusts as a common fund and to
make joint investments of funds in such trusts,
dividing the net income therefrom among the
beneficiaries of the several trusts
proportionately;
(55) to establish or refrain from establishing out of
income and credit to principal reasonable reserves
for the depreciation, obsolescence or depletion of
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tangible property, regardless of any rule of law
or statute to the contrary;
(56) to abandon any property, real or personal, which
the Trustee shall deem to be worthless or not of
sufficient value to warrant keeping or protecting;
to abstain from the payment of taxes, water rents,
assessments, repairs, maintenance and upkeep of
any such property; to permit any such property to
be lost by tax sale or other proceedings, or to
convey any such property for a nominal
consideration or without consideration; to permit
the expiration of any renewal, sale or purchase
option with respect to any property or lease;
(57) to purchase, acquire or retain any business
interest, as shareholder, security holder,
creditor, partner, proprietor or otherwise, even
though it may constitute all or a large portion of
the trust estate and to participate in the conduct
of any business with respect to its management and
affairs which an individual could do as owner of
the business, including but not limited to (a) the
voting of stock and the determination of all
questions or policy; (b) the execution of
partnership agreements and amendments thereto; (c)
the participation in any incorporation,
reorganization merger, consolidation,
recapitalization, liquidation or dissolution of
any business or any change in its nature; (d) the
investment of additional capital in, subscription
to or purchase of additional stock or securities
of, or the making of secured, unsecured or
subordinated loans to, any business, with trust
funds; (e) the election or employment with
compensation as directors, officers, employees or
agents of any business, or any persons, including
a trustee or a director or agent of a trustee. If
any such business is continued by the Trustee, the
Trustee shall not be liable for any losses to the
trust estate arising therefrom, and they may
retain and continue such business without
application to any court for authority to do so.
(58) to lend the principal or income of the trust
estate of a separate trust to a beneficiary of
such trust, without interest and without security,
or to make loans to or guarantee loans by any
other person, partnership, corporation, trust or
estate, including the estate of the Grantor or any
person who shall be deemed to be a grantor of the
trust estate, upon such terms as the Trustee may
deem advisable, with or without security and
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whether or not such loan is subordinated to other
obligations of the indebted party; to deal in
every way and without limitation or restriction
with the executor, trustee or other representative
of any other trust or estate whether or not the
beneficiary has any existing or future interest
therein (and even though the Trustee is acting in
such other capacity); provided, however, that
nothing herein contained shall be construed to
enable the Trustee to lend the principal or income
of the trust estate, directly or indirectly, to
the Grantor or any person who shall be deemed to
be a grantor of the trust estate or the estate of
the Grantor or such person without adequate
interest and security, nor enable any person to
purchase, exchange or otherwise deal with or
dispose of the principal or income of the trust
estate for less than an adequate consideration in
money or money's worth;
(59) to designate a name for any separate trust created
hereunder, and a collective name for any two or
more of such trusts, and, from time to time, to
change the name of any separate trust or the
collective name of any two or more of such trusts;
to merge or consolidate any two or more trusts
which shall be held hereunder by the trustee under
identical terms for identical beneficiaries and
remaindermen; to divide any separate trust into
two or more equal and unequal separate trusts to
be held by the Trustee under the identical terms
and for the identical beneficiaries and
remaindermen as said trust shall have been held
before such division; except as otherwise provided
herein, to allocate different kinds or
disproportionate shares of property or undivided
interest in property of a separate trust among the
beneficiaries thereof or among trusts into which
such trust shall have been divided; to determine
the value thereof; to make joint investments for
any separate trusts hereunder or of which the
Trustee is trustee or co-trustee, to designate a
name for such joint investments and to hold such
joint investments as a common fund for purposes of
administration dividing the net income (gains or
losses) therefrom in the same proportions as the
respective interests of such trusts therein;
(60) to inspect, review and monitor periodically, or to
require the inspection, review and monitoring, of
any property which is or becomes a part of the
Trust for the purpose of determining compliance
with any environmental law, or regulation
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thereunder, affecting such property, with all such
expenses of such inspection, review or monitoring
being paid from income or principal as the Trustee
may determine;
(61) to take any and all actions the Trustee shall deem
necessary to prevent, xxxxx, clean up, or
otherwise respond to actual or threatened
violation of any federal, state or local law, rule
or ordinance affecting any property held in the
Trust relating to the generation, use, treatment,
storage, disposal, release, discharge or
contamination by any materials or substances that
are prohibited or regulated by federal, state or
local law; to take such actions prior to the
initiation of enforcement action by a federal,
state or local agency; and to charge any such
costs against income or principal, as the Trustee
shall determine;
(62) to release any power which will or may cause the
Trustee to be considered an "owner" or "operator"
of property held in the Trust, under the
provisions of Comprehensive Environmental
Response, Compensation and Liability Act of 1980
as amended ("CERCLA") 42 U.S.C. Section 9601, ET
SEQ. or which shall otherwise cause the Trustee to
incur liability under CERCLA or any successor to
such law or regulation thereunder; and
(33) to inspect and monitor businesses and real property (whether
held directly or through a partnership, corporation, trust or other
entity) for environmental conditions or possible violations on
environmental laws; to remediate environmentally damaged property or
to take steps to prevent environmental damage in the future, even if
no action by public or private parties is currently pending or
threatened; to abandon or refuse to accept property which may have
environmental damage; the trustee may expend trust property to do the
foregoing, and no action or failure to act by the trustee pursuant to
this paragraph shall be subject to question by any beneficiary.
6.2 NOMINEE REGISTRATION. The Trustee may cause stocks, bonds
and other property, real or personal, belonging to the trust to be
registered and held in the name of a nominee without mention of the
trust in any instrument of record constituting or evidencing title
thereto. The Trustee shall not be liable for the acts of the nominee
with respect to any investment so registered. The records of the
Trustee shall show at all times the ownership of the investment by the
Trustee, and the stocks, bonds and other similar investments shall be
in the possession and control of the Trustee and be kept separate and
apart from assets which are the individual property of the Trustee.
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6.3 COMPENSATION. The Trustee shall be reimbursed for all
proper expenses incurred in the management and protection of each
trust created hereunder and shall be entitled to reasonable
compensation for services rendered.
6.4 BONDS OR COURT APPROVAL. To the extent that any such
requirements can legally be waived, no trustee shall ever be required
to give any bond as trustee; to qualify before, be appointed by or, in
the absence of breach of trust, account to any court; or to obtain an
order or the approval of any court in the exercise of any power or
discretion hereunder,
6.5 BENEFICIARY AS TRUSTEE. Except with respect to any powers
of appointment expressly granted herein to a beneficiary, no trustee
who is also a beneficiary of a trust created hereunder or who is
legally obligated to support a beneficiary shall have any voice,
determination or vote relating to any discretionary payments of the
income or principal of the trust either to or for the benefit of the
said trustee-beneficiary or to or for the benefit of any person whom
the said trustee-beneficiary is legally obligated to support, when
such distribution is or would be a full or partial discharge of such
obligation. Notwithstanding anything herein to the contrary, if such
trustee-beneficiary is acting as sole trustee, such trustee may make
discretionary distributions of income and/or principal of the trust
solely for the health, education and support of such trustee-
beneficiary.
6.6 RELATION WITH THIRD PERSONS. Anyone dealing with the
Trustee shall not be obliged to inquire as to the Trustee's powers or
to see to the application of any money or property delivered to the
Trustee and may assume that the trust is in full force and effect,
that the Trustee is authorized to act and that the Trustee's act is in
accordance with the provisions of this instrument.
6.7 CUSTODY OF ASSETS. If a corporation is acting as co-
trustee of any trust created hereunder together with one or more
individuals, the corporate trustee shall have custody of the trust
estate and may perform for the trustees all acts necessary for the
acquisition and transfer of personal property and money, including the
signing and endorsement of checks, receipts, stock certificates and
other instruments, unless all of the trustees otherwise agree.
6.8 DELEGATION OF POWERS TO CO-TRUSTEE. Except as provided in
Section 6.5, any trustee may at any time by a signed instrument
delivered to a co-trustee delegate to the co-trustee any or all powers
and discretion which the Trustee has under this instrument, including
the power to convey real property, either for a specified time or
until the delegation is revoked by a similar instrument. Any person
dealing in good faith with the co-trustee may rely without inquiry
upon the certification of the co-trustee with respect to any
delegation.
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6.9 ACCOUNTS. Upon the request of any income beneficiary, the
Trustee shall furnish to such beneficiary an account showing the
receipts and disbursements of the trust estate and an account showing
the inventory of the trust estate; provided, however, that in no event
shall an individual trustee be required to furnish such accounts more
often than annually and a corporate trustee more often than quarter-
annually.
6.10 TRUSTEE'S DISCRETION. The decision of the Trustee in
exercising any of the discretions granted hereunder shall be
conclusive and binding upon all persons.
6.11 TRUSTEE'S LIABILITY. The Trustee shall be liable only for
gross negligence or willful default, and no trustee shall be liable
for errors of judgment or acts or omissions of any co-trustee. The
Trustee shall not be personally liable for any obligation of the trust
and shall have power to bind the trust without binding the Trustee
personally.
ARTICLE VII
SUCCESSOR TRUSTEES
7.1 RESIGNATION TRUSTEE. Any Trustee may resign by giving
written notice to each beneficiary of the trust (or such beneficiary's
guardian or conservator, if such beneficiary is under legal
disability) and to each co-trustee of the trust, if any, and to the
resigning Trustee's successor as trustee.
7.2 VACANCIES AND SUCCESSOR TRUSTEES. Upon the death,
resignation, inability or refusal to act of any Trustee, the following
provisions shall be applicable:
(a) In the case of XXXX XXXX XXXXX, the successor shall be
the XXXXXX TRUST AND SAVINGS BANK.
(b) In the case of XXXXXX TRUST AND SAVINGS BANK or any
successor trustee, a successor trustee shall be appointed by the
person then entitled to receive or eligible to have the benefit
of the income of the trust estate; provided, however, that any
such successor so appointed shall be a bank or trust company,
wherever located, authorized to accept and administer trusts and
having a combined capital and surplus of not less than Ten
Million Dollars ($10,000,000.00)
7.3 POWERS, RIGHTS AND DUTIES OF SUCCESSOR. A successor trustee
shall automatically acquire the title to each trust asset which was
vested in the predecessor of such successor trustee, but any
predecessor trustee shall execute all documents and do all acts
necessary to vest such title in such successor trustee.
A successor trustee shall have all rights, powers, duties,
discretions, immunities, authorities and obligations which are granted
to or imposed on the predecessor. A successor trustee shall be under
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no duty to inquire into the acts or doings of a predecessor trustee,
and is not liable for any act or failure to act of a predecessor
trustee.
Wherever reference is made herein to the Trustee, such reference
shall be deemed to include the singular and plural thereof wherever
the context and facts require, and to include any and all successor
trustee at any time acting as the Trustee of a separate trust, unless
otherwise specifically provided herein to the contrary.
7.4 LIABILITY OF SUCCESSOR TRUSTEE. No successor trustee shall
be liable for the acts or defaults of any predecessor trustee, nor for
any loss or expense from anything done or neglected to be done by any
predecessor trustee, but such successor trustee shall be liable only
for his own willful wrongdoing or gross negligence with respect to
property received by him as Trustee and a successor trustee may accept
the account rendered and the assets and property delivered to him by
the predecessor trustee, and shall incur no liability to any person
beneficially interested in any separate trust by reason of so doing.
The parties have executed this Trust Agreement as of the 22nd day
of October, 1993.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
XXXXXX X. XXXXX, Grantor
/s/ Xxxx Xxxx Xxxxx
-----------------------------------
XXXX XXXX XXXXX, Trustee
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