EFTA01296035.pdf

JEFFREY E. EPSTEIN
AS
GRANTOR
TO
DARREN K. INDYKE
AND
RICHARD KAHN
AS
TRUSTEES
BUTTERFLY TRUST
-11,- 131i DATED DECEMBER 27, 2006
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TRUST AGREEMENT dated December 21 , 2006 between
JEFFREY E. EPSTEIN, as Grantor, and DARREN IC. INDYKE and
RICHARD KAHN, as Trustees,
FIRST
Transfer to Trustees
The Grantor hereby transfers to the Trustees, IN TRUST, and
the Trustees hereby acknowledge receipt of, the property listed in Schedule
A hereto. Said property and all investments and reinvestments thereof, and
all proceeds thereof which constitute principal, and any property hereafter
transferred to the Trust, are hereinafter collectively called "principal."
SECOND
Definitions
Wherever used in this Trust Agreement:
A. The word "Trustees" and all references to the Trustees
shall mean and refer to the Trustees hereinbefore named and any successor
or substitute Trustees or Trustee, as may be acting hereunder from time to
time and shall be construed in the masculine, feminine or neuter and in the
singular or plural, whichever is consistent with the facts prevailing at any
given time.
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B. The words "IN TRUST" shall mean "'in trust,
nevertheless, to hold, manage, invest and reinvest, and, until payment
thereof as hereinafter directed, to receive the income thereof."
C. The word "pay" shall, where applicable, mean "convey,
transfer and pay" and the word "payment" shall, where applicable, mean
"conveyance, transfer and payment."
D. The word "Trust" shall mean the trust created under this
Trust Agreement.
E. The words "Code" and "Internal Revenue Code" shall
mean and refer to the Internal Revenue Code of 1986, as the same shall have
been amended from time to time.
THIRD
Dispositive Provisions
A. The Trustees, in their complete and uncontrolled
discretion are authorized to distribute any part or all of the income or
principal of the Trust (either outright or in further trust, upon such terms and
conditions as the Trustees shall determine in their sole and absolute
discretion) to any one or more persons then living from a class consisting of
and GHISLAINE N.
MAXWELL in such amounts and proportions and to the exclusion of any
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one or more of them as the Trustees may determine. This power of
distribution shall include the power to distribute all of the Trust assets,
thereby terminating the Trust.
B. The foregoing notwithstanding, the Trustees then acting
(including the case where only one Trustee is then serving), acting jointly (or
singly in the case of only one Trustee then acting), shall have the right,
during the lifetime of the Grantor, to delete or add beneficiaries under this
Article Third by an acknowledged instrument delivered to the Grantor,
provided that neither the Grantor, nor any Trustee then acting, nor any
member of the family, the estate, the creditors or the creditors of the estate
of the Grantor or any such Trustee may be added as a beneficiary under this
Trust.
C. The Trustees shall not be accountable to any Court or any
person regarding the exercise or nonexercise of this completely discretionary
authority. Any income not distributed may be added to principal.
D. Unless terminated by the Trustees at an earlier date, this
Trust shall terminate twenty-one years after the death of the last survivor of
the Grantor,
and
GHISLAINE N. MAXWELL, and thereafter the then remaining principal
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shall be paid to EPSTEIN INTERESTS, a Trust, organized under the laws of
the State of New York.
E. The Trust created pursuant to this Trust Agreement may
be referred to as "BUTTERFLY TRUST."
FOURTH
Governing Law; Claims or Charges Against Grantor or his Estate
A. This Trust Agreement and the Trust hereby created shall
be construed under, and governed by, the laws of the United States Virgin
Islands.
B. No portion of the income or principal of the Trust shall
be liable for the payment of any taxes, liabilities, debts or any other claims
or charges against the Grantor or the estate of the Grantor.
FIFTI I
Irrevocability; Severability
A. This Trust Agreement and the Trust created hereunder
are irrevocable. Neither the Grantor nor any other person shall have the
right to alter, amend, revoke or terminate this Trust Agreement or the Trust
created hereunder.
13. Should any part, clause, provision or condition of this
Trust Agreement be held to be void or invalid, then such voidance or
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invalidity shall not affect any other part, clause, provision or condition
hereof, but the remainder of this Trust Agreement shall be effective as
though such void or invalid part clause, provision or condition had not been
contained herein.
SIXTH
Trustees
A. The acting Trustees (or Trustee) of the Trust are
authorized to designate one or more additional or successor Trustees of the
Trust.
B. If either DARREN K. INDYKE or RICHARD KAHN is
no longer acting hereunder, and no successor has been designated as
provided hereunder, then Harry Beller shall act as successor Trustee. If at
any time there is only one Trustee acting hereunder, and no successor has
been designated as provided hereunder, then such acting Trustee may, but
need not, appoint a Co-Trustee to act with him.
C. Designations shall be in writing and may be revoked in
writing by the maker thereof, at any time prior to the qualification of the
Trustee so designated.
D. Any Trustee may resign by giving notice to take effect on
the date specified in said notice, except that if the resigning Trustee is the
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last acting Trustee, and no successor designated pursuant to the provisions of
this Article is available to succeed him, his resignation shall not be effective
until he designates his successor and such successor qualifies to act.
E. A Trustee may resign or qualify only by a written
instrument mailed or delivered to a Trustee then acting, or if none, to his
successor, in the case of a resignation, or in any case to the Grantor.
No Trustee at any time acting hereunder shall be required
to give any bond, undertaking or other security for the faithful performance
of his duties in any jurisdiction.
G. Anything contained in the foregoing provisions
notwithstanding, neither the Grantor nor any person who is a person
described in Section 672(c) of the Code, in relation to the Grantor, shall be
appointed as a Trustee of the Trust.
SEVENTH
Settlement of Trustees' Accounts; Exoneration of Trustees
A. The Trustees shall not be required to file or render, and
the Grantor waives and excuses the filing with, or rendering to, any Court of
an account of their transactions with respect to the Trust or of inventories,
accounts, statements or reports of principal and/or income in respect of the
Trust. Nevertheless, the Trustees may at any time and from time to time
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render an account of their transactions with respect to the Trust. The
Grantor shall have full power to settle finally any such account or to waive
the same, and on the basis of such account or waiver, to release the Trustees,
individually, and as Trustees, from all accountability, liability and
responsibility for their acts or omissions as Trustees. Any such settlement
and release or waiver and release shall be binding upon all persons, whether
or not then in being, then or thereafter interested in either the income or the
principal of the Trust and shall have the force and effect of a final decree,
judgment or order of a court of competent jurisdiction rendered in an
appropriate action or proceeding for the judicial settlement of such an
account in which action or proceeding jurisdiction was obtained over all
necessary and proper parties. The expenses of any such accounting shall be
a proper administration expense of the Trust payable from principal or
income of the Trust, or partly from each, as the Trustees, in their discretion,
shall determine. The foregoing provision, however, shall not preclude the
Trustees from having their accounts judicially settled, if they shall so desire,
and the expenses of a judicial accounting shall be a proper administration
expense of the Trust payable from principal.
B. If any Trustee shall resign as a Trustee hereunder, the
continuing Trustee or Trustees may deliver to the Trustee so resigning, an
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instrument whereby such resigning Trustee shall be released and discharged,
to the extent stated therein, of and from any and all accountability, liability
and responsibility for acts or omissions as Trustee. Any such release and
discharge shall be binding upon all persons, whether or not then in being,
then or thereafter interested in either the income or the principal of the Trust
and shall have the force and effect of a final decree, judgment or order of a
court of competent jurisdiction rendered in an appropriate action or
proceeding for the judicial settlement of the account of such Trustee, in
which action or proceeding jurisdiction was obtained over all necessary and
proper parties. The foregoing provision, however, shall not preclude any
Trustee so resigning from having his, her or its account judicially settled.
The expenses of any judicial accounting rendered by a Trustee who shall
resign shall be a proper administration expense of the Trust payable from
principal.
C. In addition to the foregoing, the Trustees arc hereby
authorized, at any time and from time to time, with respect to the Trust, to
settle the accounts of the Trustees by agreement between or among the
Trustees and the then adult beneficiary of the income and the beneficiary or
beneficiaries who would be entitled to the principal in case the Trust was to
terminate at the time of such agreement, excluding any who are then
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incompetent, which agreement shall bind all persons, whether or not then in
being, then or thereafter interested in either the income or the principal of
the Trust. Any such settlement shall have the force and effect of a final
decree, judgment or order of a court of competent jurisdiction rendered in an
appropriate action or proceeding for the judicial settlement of such account,
in which action or proceeding jurisdiction was obtained over all necessary
and proper parties. The expenses of any such account shall be a proper
administration expense of the Trust payable from principal or income of the
Trust, or partly from each, as the Trustees, in their discretion, shall
determine.
D. No Trustee shall be accountable, liable or responsible for
any act, default, negligence or omission of any other Trustee.
E. No Trustee acting hereunder shall be liable for any loss
or damage which may occur hereunder, unless due to willful default,
deliberate wrongdoing or willful violation of an express provision hereof.
EIGHTH
Administrative Powers
A. In addition to and in amplification of the powers given by
law to trustees, the Trustees, but solely in their fiduciary capacities are
hereby authorized and empowered, in their discretion:
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I. To hold any part or all of the assets of the Trust
invested in the same form of property in which the same shall be invested
when received by the Trustees, and invest and reinvest the assets of the
Trust, or any portion thereof, in any form of investment which the Trustees
may determine.
2. To acquire, buy, sell, contract to buy, contract to
sell, sell short, buy on margin, exchange, engage in risk arbitrage
transactions with respect to, and trade in stocks (common or preferred),
bonds, notes., obligations (secured or unsecured), securities of open-end and
closed-end investment companies and common trust funds, other securities
(issued or to be issued), commodities, futures, options, executory contracts
for the purchase or sale of securities and commodities, mortgages, and other
property, real or personal, of any kind, whether similar or dissimilar to that
specifically enumerated above, and interests in any of the foregoing, without
being bound by any provision of law restricting investments by trustees, and
without regard to any principles of diversification.
3. To purchase, sell or exercise conversion,
subscription and other rights, and warrants, puts, calls, straddles, and other
options, to make payments in connection therewith and to sell naked options,
whether calls or puts, and to deal in other financial instruments.
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4. To make any authorized transaction for cash or on
credit or partly for cash and partly on credit, with or without security, or
partly or wholly with borrowed funds.
5. To invest in and to become a member of, any
partnership, limited liability company or joint venture, to comply with all the
terms and provisions of every partnership, limited liability company and
joint venture relating to any investment at any time held by them, and to
vote, execute consents, exercise all rights and take such other action with
respect to any partnership, limited liability company or joint venture as they,
in their discretion, deem advisable.
6. To lease, for such periods (whether or not any such
period shall extend beyond the period prescribed by law or the probable term
of the Trust), on such terms and conditions and at such time or times as the
Trustees shall determine, the whole or any portion or portions of any
property, real or personal, which may at any time form part of the Trust,
whether the same be held in severalty or as tenant-in common with others or
in a partnership, syndicate or joint venture or otherwise, and release and
convey any undivided interest in any such property for the purpose of
effecting partition of the whole or any part thereof, to make, place, extend or
renew mortgages, pledges, building loan agreements or building loan
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mortgages upon or affecting any and all such property; and make, execute
and deliver such mortgages, pledges and agreements, together with proper
bonds, notes or other instruments of indebtedness to accompany the same,
and such extension or renewal agreements, as the Trustees shall deem best;
to repair, alter, reconstruct, build upon or improve any such property and on
such terms and at such time or times as the Trustees shall determine, give
and grant to others the right so to do, or agree in, or so modify any lease
affecting any such property that the lessee may alter, repair, reconstruct,
build upon, improve, mortgage and pledge any such property; and generally
to make, alter and modify all agreements, leases, mortgages, pledges,
building loans, sales, exchanges, transfers and conveyances of or affecting
any such property which the Trustees shall determine to be necessary,
advisable or proper for the preservation, improvement, enhancement in value
of, or betterment of or addition to, such property.
7. To vote, in person or by proxy, all stocks and other
securities held by the Trust; to grant, exercise or sell rights to subscribe to
stock and securities and options of any nature; to amortize or refrain from
amortizing premiums on bonds or other securities which the Trustees may
purchase or receive; to participate in reorganizations, mergers, liquidations
or dissolutions, and contribute to the expense of, and deposit securities with
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protective committees in connection therewith; to participate in voting trusts;
and generally exercise, in respect of said stock and securities, all rights,
powers and privileges which may be lawfully exercised by any person
owning similar property in his own right.
8. To employ any investment counsel, corporate
custodians, agents, accountants, brokers and attorneys which the Trustees
may select and pay the charges thereof, and the Trustees, or a partnership,
corporation or other entity in which any Trustee shall be interested, or by
which any Trustee may be employed, may be retained in any such capacity,
and, in such event, the charges which shall be payable to such Trustee, or to
any such partnership, corporation or other entity, shall be in addition to
commissions or compensation otherwise allowable to such Trustee and may
be paid without prior judicial approval.
9. In any case in which the Trustees are authorized or
required to pay or distribute any share of the Trust, to make such payment or
distribution in kind, or in cash or partly in each and, in connection therewith,
to allocate equal or unequal interests in, or amounts of, specific property in
satisfaction of such payment or distribution.
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10. To settle, adjust, compromise or submit to
arbitration any dispute, claim or controversy in which the Trust may be in
any way interested.
11. To borrow money from any person, partnership,
corporation or other entity, who may be a Trustee or a partnership,
corporation or other entity in which any Trustee may be interested, or by
which any Trustee may be employed, for the purpose of meeting any and all
charges against the Trust or for any other purpose connected with the
administration, preservation, improvement or enhancement in value of the
Trust, and, in connection with any such borrowing, to pledge, hypothecate or
mortgage any part or all of the assets of the Trust.
12. To keep any or all of the securities at any time
forming a part of the Trust in the name of one or more nominees.
13. In any case where doubt or uncertainty exists
under applicable law or this Trust Agreement, to (i) credit receipts to
principal or income, or partly to each and (ii) charge expenses against
principal or income, or partly against each.
14. By instrument or instruments signed by all of the
Trustees qualified and acting as such at any time, to delegate, in whole or in
part, to any person or persons (including any one or more of the Trustees)
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the authority and power to (i) sign checks, drafts or orders for the payment
or withdrawal of funds from any account in which funds of the Trust
hereunder shall be deposited, (ii) endorse for sale, transfer or delivery, or
sell, transfer or deliver, or purchase or otherwise acquire, any and all stocks,
stock warrants, stock rights, bonds or other securities whatsoever, and (iii)
gain access to any safe deposit box which may be in the names of the
Trustees and remove part or all of the contents of any such safe deposit box
and release and surrender the same.
15. To remove the assets of the Trust to, or hold and
administer any such assets in, such location or locations within or without
the State of Ohio as the Trustees, in their discretion, shall select.
16. To make, or retain from making, elections
permitted under any applicable tax law, without regard to the effect of any
such election on the interest of any beneficiary of the Trust and, if any such
election shall be made, to apportion, or refrain from apportioning, any
benefits thereof among the respective interests of the beneficiaries of the
Trust, all in such manner as the Trustees shall deem appropriate.
17. To exercise all authority, powers, privileges and
discretion, conferred in this Article after the termination of the Trust created
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under this Trust Agreement and until all of the assets of the Trust are fully
distributed.
B. No person or party dealing with the Trustees shall be
bound to see to the application of any money or other consideration paid by
them to the Trustees.
C. Neither the principal nor the income of the Trust or any
part thereof, shall or may at any time be liable or subject in any matter
whatsoever to the debts or liabilities of any beneficiary entitled to receive
any principal or income therefrom, nor shall the principal or income of the
Trust be liable to attachment by garnishment proceedings or other legal
process issued by any creditor of any beneficiary of the Trust for debts
heretofore or hereafter contracted by such beneficiary; nor shall any
assignment, conveyance, charge, encumbrance or order, either of principal
or income, given by any such beneficiary be valid.
D. This Trust Agreement may be executed in counterparts,
each of which shall be an original, but together which shall constitute one
instrument.
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IN WITNESS WHEREOF, the Grantor and the Trustees have
executed this Trust Agreement on the day and ye Bove .
JEFFREY E. EPSTEIN, Grantor
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SCHEDULE A
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y
STATE OF
(J )
)ss.:
by )
COUNTY OF
On the la day of Ckadmabev- in the year 2006, before me, the
it
undersigned, personally appeared JEFFREY E. EPSTEIN, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual or the person upon behalf of
which the individual acted, executed the instrument.
r/ ael-1-1
Notary blic
STATE OF iby HARRY I. BELLER
Notary Public. State of New York
Ly No. 016E4853924
Qualified in Rockland County
COUNTY OF
Commission Expires Feb.17, 20L.r.
On the Pir day of oeca•iii-e-t- in the year 2006, before me, the
undersigned, personally appeared DARREN K. INDYKE, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual or the person upon behalf of
which the individual acted, executed the ins ment.
A
N tary ublic
HARRY I. BELLER
Notary Public, State of New York
No. 018E4853924
Qualified in Rockland County
Commission Expires Feb. 17, 202.E
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STATE OF \ • )
)ss.:
COUNTY OF /CV )
2
On the 7 f= day of Opeci,j7j,.- in the year 2006, before me, the
undersigned, personally appeared RICHARD KAHN, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his capacity, and that by his signature on the
instrument the individual or the person upon behalf of which the individual
acted, executed the instrument.
Notaty Public
HARRY I. BELLER
Notary Public, State of Nabs York
No. 01BE4853924
Ouslified in Rockland County,
Commission Expires Feb. 17, 20L4
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BUTTERFLY TRUST
ADDITION OF BENEFICIARIES
Pursuant to Article Third, Paragraph B of that certain Trust Agreement, dated December
27, 2006 (the "Trust Agreement"), between JEFFREY E. EPSTEIN, as Grantor (the "Grantor"),
and DARREN K. INDYKE and RICHARD KAHN, as Trustees, of Butterfly Trust (the "Trust"),
the then acting trustees of the Trust, acting jointly, have the right, during the lifetime of the
Grantor, to add beneficiaries under Article Third of the Trust Agreement by an acknowledged
instrument delivered to the Grantor,
DARREN K. INDYKE and RICHARD KAHN are the current acting trustees of the Trust
and desire to add each of and as a beneficiary under Article Third of
the Trust Agreement;
NOW, THEREFORE, pursuant to the authority conferred upon them under Article Third,
Paragraph B of the Trust Agreement, the undersigned, DARREN K. INDYKE and RICHARD
KAHN, as current acting Trustees of the Trust, do hereby add each of and
as a beneficiary under Article Third of the Trust Agreement.
DARREN K. INDYKE
RICHARD KAHN
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ze day of March, 2011, before me personally came DARREN K. 1NDYKE,
known to me to the individual described in and who executed foregoing instrument, and he
duly acknowledged to me that he executed the same.
STATE OF NEW YORK ) HAFIAY1. !MIER
) ss.: Notary f;utthr. Clid:e rg Nsint York
COUNTY OF NEW YORK )
Cu l unttliajtt2) : pai : :tt. i : 415A1 i . 0 14": Z .. Ly
On this 28th day of March, 2011, before me personally came RICHARD KAHN, know
to me to the individual described in and who executed the fo going instrument, and he duly
acknowledged to me that he executed the same.
e-----
otary Pu b is
Received this 28th day of March, 2011 by:
HARRY I. BEI LER
Newry PubliT.
_ O _ ff?fl'!e-I D .n 1 P S LA talk 5 d o 9 f 2 N .1 o w York
Co tottassion aocido-o County/ to
Expires Fub. 17.2O
JEFF Y EPSTEIN, Grantor
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BUTTERFLY TRUST
ADDITION OF BENEFICIARY
Pursuant to Article Third, Paragraph B of that certain Trust Agreement, dated December
27, 2006 (the "Trust Agreement"), between JEFFREY E. EPSTEIN, as Grantor (the "Grantor"),
and DARREN K. INDYKE and RICHARD KAHN, as Trustees, of Butterfly Trust (the "Trust"),
the then acting trustees of the Trust, acting jointly, have the right, during the lifetime of the
Grantor, to add beneficiaries under Article Third of the Trust Agreement by an acknowledged
instrument delivered to the Grantor;
DARREN K. INDYKE and RICHARD KAHN are the current acting trustees of the Trust
and desire to add as a beneficiary under Article Third of the Trust Agreement;
NOW, THEREFORE, pursuant to the authority conferred upon them under Article Third,
Paragraph B of the Trust Agreement, the undersigned, DARREN K. INDYKE and RICHARD
KAHN, as current acting Trustees of the Trust, do hereby add as a beneficiary
under Article Third of the Trust Agreement.
STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK )
On this 24th day of March, 2011, before me personally came DARREN K. INDYKE,
known to me to the individual described in and who executed the foregoing instrument, and he
duly acknowledged to me that he executed the same.
N tary blic
STATE OF NEW YORK
14 taRY I. BEL' ER
) ss.: Notary Fucl.c. Stoic of Now York
COUNTY OF NEW YORK ) No. 019k4X1.fl7.4
OuralGod in Rockland Couniy
Commiscion Expires Fob. 17.20.
On this 24th day of March, 2011, before me personally came RICHARD KAHN, knwn
to me to the individual described in and who executed the oing instrument, and he duly
r/
acknowledged to me that he executed the same.
Publ c
Received this 24ilth ay of March, 2011 by: _
HARRY I. RELLFR
..- Notary Public, Stale of oew Y.&
ew9iftali%?niti;"‘..)4O.3:150.11
7 Commission Expires Feb .0) . 4C . 1 c 7 .2 t 0 j"
JE EY Et:EPSTEIN, Grantor
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