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Exhibit 4
XXXXX X. XXXXXXXXXX
IRREVOCABLE TRUST AGREEMENT
This agreement is made on Oct. 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, XXXXX X. XXXXXXXXXX ("XXXXX"), as
hereinafter provided. This trust shall be known as the "Xxxxx X. Xxxxxxxxxx
Irrevocable Trust, dated Oct. 8, 1996."
FIRST: A. The trustee shall pay to XXXXX, 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 XXXXX' reasonable support
and medical care, considering his other resources known to the
trustee.
B. Upon XXXXX' death, the trust shall terminate and the trustee
shall distribute any accrued or undistributed income of the trust to
XXXXX' estate and the principal of the trust to such person or
persons, other than XXXXX' estate, his creditors and the creditors of
his estate, as XXXXX xxx appoint by will which specifically exercises
this limited power of appointment. The trustee may assume that XXXXX
left no will if at the expiration of three (3) months after XXXXX'
death the trustee has no knowledge of the existence of his will.
Principal of the trust not validly appointed by XXXXX 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 settler 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;
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, XXXXX is appointed
successor trustee. If for any reason
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neither or 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 settler) 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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