THE XXXXXXXXX VILLAS REAL ESTATE
TRUST AGREEMENT
This Xxxxxxxxx Villas Real Estate Trust Agreement (TRUST AGREEMENT) is
entered into as of the Effective Date (as hereinafter defined), and with
reference to the following facts:
WHEREAS, the Grantors (as hereinafter defined) has determined to establish
an irrevocable trust for the benefit of the Beneficiaries (as hereinafter
defined), and to transfer to such trust real property, initially consisting of
The Xxxxxxxxx Villas in SoSua, Dominican Republic, more fully described in
Exhibit A hereto. (Hotel) WHEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
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As used herein, the following terms shall have the meanings set forth
below:
1.1 AGREEMENT. "Agreement" shall mean this Trust Agreement, as hereinafter
amended.
1.2 ASSETS. "Assets" shall mean the Hotel and all other assets of any
nature or description, now or hereafter contributed to the Trust by
the Grantors, or acquired by the Trust from any other source.
1.3 BENEFICIARIES. "Beneficiaries" shall mean the parties described on
Exhibit B hereto.
1.4 EFFECTIVE DATE. "Effective Date" shall mean December 27, 1999.
1.5 INTEREST. "Interest" shall mean the interest of any of the
Beneficiaries in the Trust, which Interest shall be as stated on
Exhibit B hereto.
1.6 GRANTORS. "Grantors" shall mean GO-CALL INC. as to 80% of the
Ownership, ITASCA HOLDING LTD. as to 10% of the Ownership and ACS
FINANCIAL INC. RETIREMENT TRUST as to the remaining 10%.
1.7 TRANSFER. "Transfer" shall mean to give, assign, transfer, convey, or
grant a security interest in.
1.8 TRUST. "Trust" shall mean the Trust formed pursuant to this Agreement.
1.9 TRUSTEE. "Trustee" shall mean Xxxxx Xxxxxxxxx, Esq. as trustee, or his
successor(s).
2. CREATION OF TRUST: APPOINTMENT OF TRUSTEE.
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2.1 CREATION OF TRUST. Grantors hereby create and establish a trust, and
appoint and authorize the Trustee as trustee of such Trust, pursuant
to the terms and provisions of this Agreement. Grantors hereby
expressly agree, acknowledge and covenant that the creation and
establishment of this Trust is and shall be irrevocable. The Trustee
hereby accepts such appointment, and agrees to administer the Trust in
accordance with the terms and provisions of this Agreement, unless and
until replaced by successor trustees as hereinafter provided.
2.2 PURPOSE OF THE TRUST. The purpose of the Trust will be to receive,
hold, convey, transfer and otherwise deal with the Assets of the
Trust, as the same may be constituted from time to time hereafter, and
to hold such Assets solely for the benefit of the Beneficiaries,
pursuant to the terms of this Trust Agreement. Grantors and the
Trustee, and each of them, expressly agree and acknowledge, by their
execution of this Agreement, that they are familiar with all of the
terms and provisions of this Agreement, and that they hereby agree and
acknowledge that this Trust is created and established, and shall be
administered, solely on such terms and for such purposes.
3. DEPOSIT OF ASSETS.
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3.1 DEPOSIT OF ASSETS. The Grantors, concurrently with the execution of
this Agreement, have deposited with the Trustee, subject to the terms
of this Agreement and for the sole benefit of the Beneficiaries,
certain property, consisting of all of Grantors right, title and
interest in and to, and has delivered to the Trustee the Ownership
Documents to the Xxxxxxxxx Villas.
3.2 DESIGNATION OF BENEFICIARY. The Grantors hereby irrevocably designate
the entities listed on Exhibit B hereto as the Beneficiaries of the
Trust. The Trustee shall treat the Beneficiaries so designated as the
sole and exclusive beneficiaries of this Trust for any and all
purposes whatsoever, and the Trustee shall not be bound by any
attempted or purported designation of any new, additional or alternate
Beneficiaries.
3.3 PROOF OF BENEFICIAL INTEREST. The Trustee shall, promptly upon any
written request therefore from the Beneficiaries, deliver to the
Beneficiaries a letter, duly executed by the Trustee, certifying that
(i) the Beneficiary is the sole beneficiary of the Trust, and (ii)
that the Assets of the Trust consist of the items listed on a schedule
attached to such letter.
4. TRANSFER OF INTEREST.
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The Beneficiaries shall have no right, power or authority to Transfer all
or any portion of the Beneficiaries interest, or any right or interest
therein, during the term of this Trust.
5. TRUSTEE.
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5.1 NUMBER AND TERM OF TRUSTEE. There shall initially be one Trustee of
this Trust. The initial Trustee shall be Xxxxx Xxxxxxxxx, Esq. In the
absence of the death of the Trustee, the Trustee shall serve in such
capacity for the entire term of this Trust.
5.2 DEATH OF TRUSTEE. All rights, powers and duties granted to or reposed
in the Trustee pursuant to this Agreement are personal. The rights and
duties of the Trustee shall terminate upon the Trustee's death and
none of the rights, powers or duties of the Trustee hereunder may be
transferred or assigned, either voluntarily or by operation of law.
5.3 OWNERSHIP OF TRUST ASSETS. The Trustee expressly acknowledges and
agrees that he is holding the Trust Assets solely for the purpose of
carrying out his duties hereunder, and expressly subject to all of the
terms and conditions of this Agreement. The Trustee shall have the
obligation and duty to transfer such Assets to any successor
Trustee(s), as necessary.
5.4 REPLACEMENT OF TRUSTEE. If at any time, the initial Trustee, is unable
to serve as Trustee by reason of death, incapacity, resignation, or
otherwise, City National Bank shall be the successor Trustee. In the
event City National Bank refuses to serve as Trustee, Grantors may
appoint an acceptable replacement Trustee. For the purposes of this
Section 5.4, acceptable replacement trustee shall consist of the trust
department of a major bank or financial institution, with a net worth
of not less that $500,000.000, having trust powers, with which neither
the Grantor nor the Beneficiaries is affiliated.
6. POWERS OF TRUSTEE; ACTION BY TRUSTEE.
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6.1 POWERS. Subject to the provisions of Section 6.4 below, the Trustee
shall have the full, exclusive and complete authority in the
management and control of the Trust and the Trust Assets for the
purposes stated herein.
6.2 LITIGATION. Trustee shall have no right to commence, defend, settle,
or compromise litigation, arbitration or other legal disputes.
6.3 TIME; OTHER ACTIVITIES. The Trustee shall devote such time to the
Trust as he shall deem reasonably necessary to carry out the Trustee's
responsibilities as herein provided. It is acknowledged by the
Grantors and the Beneficiaries and it is hereby agreed, that the
Trustee intends to, and will, devote a substantial amount of time and
effort to the business, affairs and operations of other businesses and
that his services to the Trust will be of a limited part time nature.
6.4 PROHIBITED ACTS. Notwithstanding any other provisions of this
Agreement, the Trustee shall have no authority to:
(a) CONTRAVENTION. Do any act in contravention of this Agreement;
(b) DEBT. To incur any debt or obligation on behalf of the Trust or
encumbering any of the Trust Assets.
(c) IMPOSSIBILITY. Do any act which would make it impossible to carry
out the purpose of the Trust.
(d) CONFESSION OF JUDGMENT. Confess a judgment against the Trust or
any of the Trust Assets;
(e) POSSESSION. Possess any Trust Assets or assign the rights of the
Trust in any Trust Assets for other than the Trust purpose; or
(f) ADMIT A TRUSTEE. Admit another person or persons as an additional
or substitute trustee of the Trust.
6.5 INDEMNIFICATION. The Trust shall indemnify and defend the Trustee
(with counsel reasonably acceptable to the Trustee) and hold them
harmless from and against any and all loss, damage, liability and
expense, including settlement costs, court or other costs and
reasonable attorneys' fees, to which any of them may be put or which
any of them may incur by reason of or in connection with any act
performed by the Trustee, or any omission or failure to act, if the
performance of such act or such omission or failure to act is done in
good faith, in the exercise of Trustee's reasonable judgment, and is
within the scope of the authority conferred upon the Trustee by this
Agreement or by law.
6.6 RELIANCE ON POWER AND AUTHORITY OF TRUSTEES. Any person not a party to
this Agreement who shall deal with the Trust shall be entitled to rely
conclusively upon the power and authority of the Trustee as set forth
herein, and shall have no obligation to inquire further as to the
extent or nature of such power or authority with respect to any action
by the Trustee on behalf of the Trust.
6.7 REIMBURSEMENT. The Trust shall reimburse the Trustee promptly for all
reasonable expenses actually incurred by the Trustee which were
approved by the Grantor prior to being incurred, including legal and
accounting fees and costs, incurred by them in good faith in
connection with the operation and maintenance of the Trust, in dealing
with the Trust Assets, and in carrying out the purpose of the Trust.
6.8 COMPENSATION TO TRUSTEE. The Trustee shall be compensated at an annual
rate of $____ for his efforts. In the event that any successor
Trustees are appointed and agree to act, the Grantors agrees and
covenants to pay the customary fees charged by such Trustees directly
to such successor Trustees.
7. RECORDS AND REPORTS.
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7.1 BANK ACCOUNTS. All funds of the Trust, and all distributions received
by the Trustee in respect of the Assets deposited pursuant hereto,
will be deposited in the name of the Trust.
7.2 BOOK OF ACCOUNTS. The Trustee shall maintain a book of accounts which
shall show all sums of money received by the Trustee, all
disbursements made by the Trustee, and all obligations incurred by the
Trustee which are unpaid.
7.3 INSPECTION OF RECORDS. The books and records of the Trust shall be
open to inspection by any of the parties to this Agreement or the
Beneficiaries or their successors at any reasonable time. The right of
inspection shall include the right to make copies of the books and
records, at such requesting party's costs, upon reasonable notice
first given to the Trustee.
7.4 INFORMATION. The Trustee shall obtain and forward to the Beneficiaries
any and all financial statements, reports, notices or other
information received by the Trustee with respect to any securities
constituting Assets of the Trust, or provided or made available by any
company issuing any such securities to the holders thereof.
8. TERM AND TERMINATION OF TRUST.
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8.1 TERM. The term of this Agreement shall continue through the sale or
other disposition of the Xxxxxxxxx Villas, in accordance with the
terms of the Partnership Agreement of SEVADA HOLDINGS, LTD. IV.
8.2 PROCEDURE AFTER TERMINATION.
(a) As soon as practicable after the termination of this Agreement,
the Trustee shall return to the Grantors all remaining Assets of
the Trust.
9. MISCELLANEOUS.
9.1 NOTICES. All notices which are to be given by any party to any
other party hereunder shall be in writing, sent by registered or
certified mail1 postage prepaid, return receipt requested, or
through a means of electronic communications followed by a
confirmation letter sent by registered or certified mail, postage
prepaid, return receipt requested, or delivered by hand or
messenger service, with the charges therefor prepaid, addressed to
the Trustee at the offices of the Trust, and addressed to the
Beneficiaries at the addresses shown on the records of the Trust,
or such other address as shall be notified in accordance with this
Section. Notices sent in accordance with this Section shall be
effective on the date of dispatch.
9.2 SURVIVAL OF AGREEMENT PROVISIONS. All covenants, agreements,
representations and warranties made herein and in the certificate
delivered pursuant hereto shall survive the expiration or other
termination of this Agreement or the Trust.
9.3 SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement should be found to be invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby, and this Agreement
shall be interpreted and construed as if such provision, to the
extent the same shall have been held invalid, illegal, or
unenforceable, had never been contained herein.
9.4 HEADINGS. The headings of the articles and sections contained in
this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
9.5 APPLICABLE LAW: VENUE. This Agreement is entered into, and is to be
wholly performed, in the State of California and shall be governed
by, construed and enforced in accordance with the internal laws of
the State of California, applied to contracts made in California by
California domiciliaries to be wholly performed in California. Any
legal action to enforce or interpret this Agreement shall be
commenced in a court or competent jurisdiction within the County of
Los Angeles, the State of California.
9.6 ATTORNEYS' FEES. In the event that any party to this Agreement
shall commence any suit, action, arbitration or other proceeding to
enforce any right or obligation created hereby, the prevailing
party in such action shall recover, in addition to any and all
other amounts awarded to such party, all of such party's costs and
expenses incurred in connection therewith, including attorneys'
fees and costs of appeal, in any (collectively, "costs"), and any
court or panel of arbitrators determining any such suit, action,
arbitration or other proceeding shall make an express determination
that one party therein is the prevailing party and shall make an
award of expenses to such party pursuant to this Section 9.6.
9.7 EXECUTION AND COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts
together shall constitute only one instrument. Each party hereto
shall receive a duplicate original of the counterpart copy or
copies executed by such parties.
9.8 COVENANT OF FURTHER ASSURANCES. All parties to this Agreement shall
perform any and all acts as well as execute and deliver any and all
certificates, instruments and other documents that may be necessary
or appropriate to fully carry out the provisions and the intent of
this Agreement.
9.9 BINDING EFFECT. Subject to the restrictions in Article 4 respecting
transfers, this Agreement shall inure to the benefit of and be
binding upon all of the parties hereto and their respective
executors, administrators, successors and permitted assignees.
9.10 COMPLIANCE WITH LAWS. Nothing contained in this Agreement shall be
construed to require the commission of any act contrary to law, and
whenever there is a conflict between any provision of this
Agreement and any present or future statute, law, ordinance or
regulation contrary to which the parties have no legal right to
contract, the latter shall prevail, but in such event the provision
of this Agreement affected shall be curtailed and limited only to
the extent necessary to bring it within the requirement of the law.
9.11 GENDER. As used in this Agreement, the masculine, feminine, or
neuter gender, and the singular or plural number, shall be deemed
to include the others whenever the context so indicates.
9.12 NO THIRD PARTY BENEFIT. Nothing contained in this Agreement shall
be deemed to confer any right or benefit on any person who is not a
party to this Agreement.
9.13 NATURE OF RELATIONSHIP. The Trust created by this Agreement is not
intended to be, and shall not be deemed to be, and shall not be
treated as a general partnership, limited partnership, joint
venture, corporation, or joint stock company or association. The
relationship of the Beneficiaries to the Trustee shall be solely
that of beneficiaries of the Trust created by this Agreement and
their rights shall be limited to those conferred upon them by this
Agreement.
9.14 AMENDMENT OF AGREEMENT. This Agreement may only be amended by
writing executed by all of the parties hereto.
9.15 ADVICE OF COUNSEL. Each of the parties agrees and represents that
he was not under an incapacity at the time of executing this
Agreement, that he has been represented by his own counsel with
regard to the execution of this Agreement or that, if acting
without counsel, he has had adequate opportunity and has been
encouraged to take the advice of his own counsel prior to the
execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the Effective Date.
TRUSTEE:
By: /S/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, Esq.
GRANTOR:
GO CALL INC.,
A Delaware Corporation
By: /S/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, CEO
And Authorized Signatory
