EFTA00082368

FIRST AMENDMENT AND RESTATEMENT TO TRUST AGREEMENT for the JEFFREY E. EPSTEIN 2001 TRUST TWO FIRST AMENDMENT AND RESTATEMENT TO TRUST AGREEMENT FOR THE JEFFREY E. EPSTEIN 2001 TRUST TWO, made and entered into this day of , 2012, by and between JEFFREY E. EPSTEIN, as Grantor ("Grantor") and DARREN K. INDYKE, JES STALEY and ANDREW FARKAS, as Trustees ("Trustee"). ACKNOWLEDGEMENTS A. On November 8, 2001, the Grantor entered into a Trust Agreement (referred to as the "Trust Agreement") with himself and JEFFREY A. SCHANTZ, as Trustees. In Article FIFTEENTH of the Trust Agreement, the Grantor reserved the right to amend the Trust Agreement. The Trust Agreement has been amended from time to time. B. The Grantor desires to amend and restate the Trust Agreement in its entirety' as follows: Article I. During My Lifetime Section 1.1 - Disbursement of Income All of the income of the trust (the "Trust Estate") shall be paid to me, or accumulated or paid as I may direct in writing from time to time. Section 1.2 - Disbursement of Principal My Trustee may distribute any part or all of the principal of the Trust Estate to me in the discretion of my Trustee. Section 1.3 - Specific Rights Reserved to Me A. I reserve the right, at any time and from time to time, to amend this Agreement, in whole or in part, by a written instrument executed and acknowledged by me and my Trustee. B. 1 reserve the right to revoke and terminate the trust herein created by delivering to my Trustee a written instrument executed and acknowledged solely by me. C. !reserve the right to withdraw or appoint any part or all of the principal of the Trust Estate by delivering to my Trustee a written instrument executed and acknowledged solely by me. D. I reserve the right, at any time and from time to time, to transfer to my Trustee, by gift, by Will or by beneficiary designation, such additional property, including 2657767.1 GJ_000296 EFTA00082368 life insurance policies, as I may desire. Any such additional property shall be held on the same terms as are then applicable to the original Trust Estate, except that it may be transferred subject to conditions and provisions of special application to such additional property. Section 1.4 - Incapacity If I am incapacitated through illness, age or other cause (and am determined to be incapacitated in the written opinion of two medical doctors), during the period of such incapacity, I shall cease to act as a Trustee hereunder. If, after having been determined to be incapacitated, I thereafter am capable of giving prompt, intelligent consideration to financial matters (as determined in the written opinion of two medical doctors), I shall be restored as a Trustee without any court proceeding. Article II. After My Death Upon my death, the trust shall terminate and the Trustee shall distribute the balance of the principal of the trust as follows: A. Five Million Dollars ($5,000,000) to JEAN LUC BRUNEL, if he survives B. Two Million Dollars ($2,000,000) to if she C. One Million Dollars ($1,000,000) to if he survives me. survives me. me. D. One Million Dollars ($1,000,000) to if she survives me. E. One Million Dollars ($1,000,000) to if she survives me. F. One Million Dollars ($1,000,000) in equal shares to LUCIANO A. FONTANILLA, JR. and ROSALYN V. FONTANILLA, if they both survive me, or all to the survivor, if only one of them survives me. G. The balance thereof, including any distributions in Subdivisions A through F above which are ineffective, shall be payable to the Grantor's estate to be disposed of in accordance with the provisions of the Grantor's Will and the Grantor's Trust One. 2 GJ 000297 2657767.1 EFTA00082369 Article III. Trust Administration Section 3.1 - Termination of Trusts A. Notwithstanding anything herein, any trust created hereunder for any person shall (unless terminated earlier) terminate upon the day preceding the expiration of the maximum period permitted under the United States Virgin Islands Rule Against Perpetuities, for the vesting of an interest in a trust and upon such date the assets of such trust shall be distributed to such person. B. If at any time my Trustee determines that it is uneconomic to continue any trust with respect to which such Trustee is acting hereunder, my Trustee may terminate such trust and distribute the trust assets, in such amounts and proportions as such Trustee may determine, to the person or persons to whom income may be distributed. Section 3.2 - Equitable Adjustment If my Trustee decides to exercise or not exercise any fiduciary power granted by this Agreement or by law (including, without limitation, any election available to my Trustee) and the exercise or nonexercise of such power confers a benefit on one beneficiary or class of beneficiaries hereunder and imposes a detriment upon another beneficiary or class of beneficiaries hereunder, my Trustee shall not attempt to restore the interests of the beneficiaries or classes of beneficiaries to the position otherwise contemplated by this Agreement through adjustment between income and principal or otherwise. Section 3.3 - Lapsed Distribution Except as otherwise specifically provided in this Agreement, a provision for distribution to an individual who is not surviving at the date such individual otherwise becomes eligible for such distribution shall lapse notwithstanding any law to the contrary. Section 3.4 - Notice Any notice required hereunder shall be delivered personally or sent by first class or certified mail addressed to the last known address of the intended recipient. Section 3.5 - Termination of Trust An instrument in writing completely revoking this Agreement shall, without more, upon delivery to my Trustee, completely terminate all of my Trustee's right, title, and interest to any life insurance proceeds, death benefits, pension, profit sharing, or other retirement benefits or any other assets otherwise payable to my Trustee. 3 GJ 000298 144/11.1 1 EFTA00082370 Article IV. Powers of Trustee Section 4.1 - General Investment Powers respect Except as otherwise provided in this Agreement, my Trustee has the power with to such trust: collect A. To enter upon and take possession of the assets of such trust and real, personal, the income and profits from such assets, and to invest and reinvest such assets in or in undivided or mixed assets (including the common trust funds of a corporate fiduciary) interests therein without being limited by any present or future investment laws; the proportion B. To retain all or any part of the assets of such trust (without regard to which such assets that were any one asset or class of assets may bear to the whole) in the form in received or acquired by my Trustee; of the assets of C. To sell or dispose of, exchange, transfer, invest, or loan all or any part terms as such trust which my Trustee holds, at any time, for such sums or upon such private to payment, security, or otherwise as my Trustee determines, either by public or transactions; purchase or D. To buy and sell options, warrants, puts, calls or other rights to sell (collectively called "options") relating to any security or securities, regardless such options of whether such security or securities are then held by my Trustee, and whether respect to such are purchased or sold on a national securities exchange, and to exercise with options all powers which an individual owner thereof could exercise, including, without limitation, the right to allow the same to expire; resources E. With respect to oil, natural gas, minerals, and all other natural and rights to and interests therein (together with all equipment pertaining thereto) including, without limiting the generality of the foregoing, oil and gas royalties, leases, or other oil and gas interests of any character, whether owned in fee, as lessee, lessor, licensee, concessionaire or otherwise, or alone or jointly with others as partner, mineral joint tenant, or joint venturer in any other noncorporate manner, (1) to make oil, gas and royalties, leases or subleases; (2) to pay delay rentals, lease bonuses, royalties, overriding pledge or otherwise taxes, assessments, and all other charges; (3) to sell, lease, exchange, mortgage, abandon, with or without hypothecate any or all of such rights and interests; (4) to surrender or farm-out, pooling, consideration, any or all of such rights and interests; (5) to make conditions and unitization agreements; (6) to make reservations or impose advantageous on the transfer of any such rights or interests; (7) to employ the most as corporations, business form in which properly to exploit such rights and interests, whether partnerships, limited partnerships, mining partnerships, ventures, joint produce, process, co- tenancies, or otherwise exploit any and all such rights and interests; (8) to rights and sell or exchange all products recovered through the exploitation of such interests, and to enter into contracts and agreements installation or for or in respect of the operation of absorption, reprocessing or other processing plants; (9) to 2657767.) GJ 000299 EFTA00082371 carry any or all such interests in the name or names of a nominee or nominees; (10) to delegate, to the extent permitted by law, any or all of the powers set forth herein to the operator of such property; and (11) to employ personnel, rent office space, buy or lease office equipment, contract and pay for geological surveys and studies, procure appraisals, and generally to conduct and engage in any and all activities incident to the foregoing powers, with full power to borrow and pledge in order to finance such activities; together with the power to allocate between principal and income any net proceeds received as consideration, whether as royalties or otherwise, for the permanent severance from lands of oil, natural gas, minerals, and all other natural resources; P. To hold all or any part of the assets of such trust in cash or in bank accounts without the necessity of investing the same; of such trust; G. To improve, repair, partition, plat, or subdivide all or any part of the assets H. To litigate, defend, compromise, settle, abandon, or submit to arbitration on such terms and conditions as my Trustee determines any claims in favor of or against such trust or the assets of such trust; I. To loan or borrow money in such amounts and upon such terms and my conditions as my Trustee determines, assume such obligations or give such guarantees as Trustee determines, for the purpose of the acquisition, improvement, protection, retention, or preservation of the assets of such trust, or for the benefit of any of the beneficiaries who are entitled or permitted to receive income from such trust; J. To create or invest in any entity with all or part of the assets of such trust and to carry on for as long and in such manner as my Trustee determines any business enterprise held or created by my Trustee or in which I owned any interest at my death, either individually or as a partner, joint venturer, stockholder, trust beneficiary, or member, to sell such business enterprise as an ongoing business; to consolidate, merge, encumber, dissolve, liquidate or undertake any other extraordinary corporate transaction relating to such business enterprise; K. To vote in person or by proxy any and all stock or securities and to become a party to any voting trusts, reorganization, consolidation, or other capital or debt readjustment of any corporation, association, partnership, limited liability partnership, limited liability company, or individual with respect to stocks, securities, or debts held by such trust; L. To enter into any good faith transactions with my Trustee individually or with any corporation, partnership, limited liability partnership, limited liability company, or other entity in which my Trustee has an ownership interest; M. To purchase from my estate any stocks, bonds, securities, real or personal property, or other assets, or make loans to my estate even though the same person or persons occupy the office of my Trustee and the office of the Personal Representative of my estate; GJ_000300 EFTA00082372 N. To lease, mortgage, pledge, grant a security interest in, or otherwise encumber all or any part of the assets of such trust for any term of years whether or not beyond the term of such trust (including, without limitation, any such action for the benefit of any of the beneficiaries of such trust); O. To abandon any property, real or personal, which my Trustee may deem worthless or not of sufficient value to warrant keeping or protecting; to abstain from the payment of taxes, water rents or assessments and to forego making repairs, maintaining or keeping up any such property; and to permit such property to be lost by tax sale or other proceedings or to convey any such property for a nominal consideration or without consideration so as to prevent the imposition of any liability by reason of the continued ownership thereof; P. To elect the mode of distribution of the proceeds from any profit￾sharing plan, pension plan, employee benefit plan, individual retirement plan, insurance contract, or annuity contract pursuant to the terms of such plan or to change to another custodian of such plan; Q. To conduct any audit, assessment, or investigation with respect to any asset of such trust regarding compliance with any law or regulation having as its object protection of public health, natural resources, or the environment (referred to as "Environmental Laws"); to pay from the assets of such trust to remedy any failure to comply with any Environmental Law (even to the exhaustion of all of the assets of such trust); and, as may be required in my Trustee's judgment by any Environmental Law, to notify any governmental authority of any past, present, or future non-compliance with any Environmental Law; and R. To refuse to accept any asset distributable to such trust. S. No trustee shall directly or indirectly buy or sell any property for the trust from or to himself, or from or to his relative, employer, employee, partner or other business associate. T. No trustee shall as trustee of one trust sell property to himself as trustee of another trust. U. No trustee shall lend trust funds to himself, or to his relative, employer, employee, partner, or other business associate. Section 4.2 - Administrative Powers Except as otherwise provided in this Agreement, my Trustee has the power with respect to each trust: A. To employ agents, attorneys-at-law, consultants, investment advisers (to whom my Trustee has discretion to delegate my Trustee's investment authority and responsibility), other trustees and other fiduciaries in the administration of my Trustee's duties, to delegate to such persons, or to one or more of my Trustees, the custody, control, GJ_000301 EFTA00082373 or management of any part of the assets of such trust as my Trustee determines and to pay for such services from the assets of such trust, without obtaining judicial authorization or approval; B. To delegate, in whole or in part, to any person or persons the authority and power to (1) sign checks, drafts or orders for the payment or withdrawal of funds, securities and other assets from any bank, brokerage, custody or other account in which funds, securities or other assets of such trust shall be deposited, (2) endorse for sale, transfer or delivery, or sell, transfer or deliver, or purchase or otherwise acquire, any and all property, stocks, stock warrants, stock rights, options, bonds or other securities whatsoever, (3) gain access to any safe deposit box or boxes in which assets of such trust may be located or which may be in the name of my Trustee and remove part or all of the contents of any such safe deposit box or boxes and release and surrender the same, and (4) take any other action that my Trustee may have the power to take with respect to such trust and the property thereof; no person or corporation acting in reliance on any such delegation shall be charged with notice of any revocation or change of such delegation unless such person or corporation receives actual notice thereof; C. To pay any property distributable to a beneficiary under a legal disability or who has not attained the age of 21, without liability to my Trustee, by paying such property (1) to such beneficiary, (2) for the use of such beneficiary, (3) to a legal representative of such beneficiary appointed by a court or if none, to a relative for the use of such beneficiary, or (4) to a custodian for such beneficiary designated by my Trustee to hold until age 21 or such earlier age as shall be the maximum permitted under applicable law; D. To divide such trust into subsidiary accounts if my Trustee determines that such division is necessary to maintain fair and accurate records; E. To permit the beneficiary of such trust to use, possess, and enjoy real property, tangible personal property, or club memberships held by such trust; F. To distribute to such trust or any of the beneficiaries of such trust in kind or in cash, or partly in kind and partly in cash, and to allocate different kinds or disproportionate shares of assets or undivided interests in assets among all of such trusts or all of such beneficiaries; G. In making the division into one or more trusts hereunder (if such trusts have the same Trustee), to keep the assets of such trusts invested and handled as a single fund without actual division and to designate such trusts on my Trustee's books as owning a designated undivided interest in such fund; H. To have evidence of ownership of any security maintained in the records of a Federal Reserve Bank under the Federal Reserve Book Entry System; to deposit funds in any bank or trust company; to carry in the name of my Trustee or the nominee or nominees of the Trustee and with or without designation of fiduciary capacity, or to hold in bearer form, securities or other property requiring or permitting of registration; and to cause any securities to be held by a depository corporation of which a 7 GJ_000302 2657767 I EFTA00082374 Trustee the books is and a member records or of by my an agent under a safekeeping contract provided, however, that of such Trustee shall at all times show that such investments are pan trust; circuit court of I. To register or not register such trust with the probate division of the which the United States Virgin Islands or otherwise and to make all decisions relate thereto; appointment J. To give any beneficiary of any trust hereunder a general power of exercisable any terms and in such beneficiary's Will over all or part of such trust, subject to to eliminate conditions as my Trustee determines, by written notice to such beneficiary; beneficiary; any such power of appointment by written notice to the appointment and or to irrevocably release the power under this paragraph to give a power of to eliminate a power of appointment; applicable K. To renounce and disclaim, in whole or in part, and in accordance with appointment) law, which any assets, interests, rights, or powers (including any power of has any are payable to (or exercisable by) such trust or over which my Trustee right, title, interest, or power; and L. To make, execute, and deliver any and all such instruments shall be necessary or in writing as any disposition whatsoever proper to carry out any power, right, duty, or obligation of my Trustee or other powers of such trust or any asset of such trust and to exercise any and all of such incidental or necessary to carry out or to fulfill the terms, provisions and purposes trust. Section 4.3 - Restrictions on Exercise of My 'Trustee's Powers A. Notwithstanding any provision of this Agreement a Trustee to the contrary, (other than me) shall not participate not exercise any in a discretionary decision to exercise or hereunder fiduciary power to (1) distribute income from or principal of any trust to himself or herself; or (2) distribute hereunder income from or principal of any trust for the health, support, maintenance or education of a beneficiary Trustee has a if such of such beneficiary legal obligation to provide for the health, support, maintenance or education person whose from such Trustee's personal assets. For purposes of this paragraph, a interest in a trust hereunder is limited to a remote contingent example, a contingent interest (for to survive remainderman whose interest depends upon another person failing to a specified age or a person designated power of appointment to receive assets only in the event a beneficiary of such is not exercised) shall not be treated as a person who is or may be a trust. B. A Trustee of any trust hereunder may by a written notice delivered the other Trustee to (or Trustees) of such trust decline to participate exercise or not in the decision to exercise any fiduciary power granted by this Agreement or by law. C. If a Trustee of any trust hereunder is not empowered conflict of (because of a interest, declination to act or otherwise) to participate or not exercise any in the decision to exercise fiduciary power granted by this Agreement or by law, then the 8 2657767.1 GJ_000303 EFTA00082375 remaining Trustee or Trustees of such trust shall be empowered to make such decision ii no Trustee is empowered to participate in such decision, then the first successor Trustee of such trust designated in Section 6.1 and able and willing to act shall be empowered to make such decision. If no Trustee or successor Trustee is empowered to participate in such decision, my Trustee may designate a substitute Trustee to serve as Trustee of such trust who shall be empowered to make such decision but has no other power or authority of the Trustee. Such designation shall be by written notice delivered to such substitute Trustee. Article V. Provisions Concerning Trustees Section 5.1 - Successor Trustees Each Trustee actine hereunder shall be authorized to designate his successor as Trustee. Section 5.2 - Appointment of Trustee The appointment of a successor Trustee hereunder shall become effective when such successor Trustee signs an acceptance of the trust. Section 5.3 - Resignation of Trustees Any Trustee may resign at any time, without the approval of any court, by an instrument in writing filed with the trust records. In addition, if there is filed with the trust records a written certification from any attending physician of any individual Trustee of a trust (other than me) that he or she is no longer able to make decisions with respect to such trust, then from the date of filing of such certification, such individual Trustee shall be deemed to have resigned for all purposes of this Agreement. Section 5.4 - Vacancy in Office If the sole Trustee dies or cannot or will not act as Trustee of any trust hereunder and if no successor Trustee is designated pursuant to Section 5.1 who is willing to act, the legally competent adult beneficiary (or a majority in beneficial interest of the legally competent adult beneficiaries if there are multiple beneficiaries) then entitled or permitted to receive income from such trust shall designate a successor Trustee by an instrument in writing delivered to the designated Trustee. If the legally competent adult beneficiaries do not designate a successor Trustee within sixty days after receipt of notice of such vacancy or if there is no legally written competent adult beneficiary of such trust, my Trustee shall designate a successor Trustee by notice delivered to the designated Trustee and each adult beneficiary then entitled or permitted to receive income from such trust. If no successor Trustee is designated pursuant to this Section 5.4, then a successor Trustee shall be named by order of a court of competent jurisdiction. All of the fees and expenses of my Trustee (including attorneys' fees) attributable to the appointment of a successor Trustee of a trust shall be paid from the assets of such trust. 9 2657767.1 G1_000304 EFTA00082376 Section 5.5 - Elimination of Bond No bond or other security shall be required of any Trustee hereunder in any jurisdiction. Section 5.6 - Exculpation of My Trustee My Trustee shall not be accountable or responsible to any person interested in any trust hereunder for the manner in which my Trustee shall in good faith exercise any discretionary authority or power of my Trustee. My Trustee shall not be liable for any loss or depreciation in value occasioned by reason of any negligence, error or mistake of judgment in entering into any transaction, in making any sale or investment, in continuing to hold any property, or by reason of any action or omission, whether by my Trustee or any other fiduciary, unless my Trustee has acted in bad faith. In the absence of proof by affirmative evidence to the contrary, each Trustee shall be deemed to have acted within the scope of my Trustees authority, to have exercised reasonable care, diligence, and prudence and to have acted impartially as to all interested persons. A Trustee shall not be liable for the acts or defaults of another Trustee. Article VI. Miscellaneous Provisions Section 6.1 - Representation of Person Under a Disability To the extent allowed by law, where a party to any proceeding with respect to any trust hereunder has the same interest as a person under a disability, legal process on the person under a disability may be dispensed with. Section 6.2 - Simultaneous Deaths If a beneficiary under this Trust Agreement and I die simultaneously or under such circumstances Agreement that it is difficult to determine who died first, then for all purposes of this such beneficiary shall be deemed to have predeceased me. Section 6.3 - Law Governing This Agreement shall be construed under the laws of the United States Virgin Islands. Each trust hereby created shall in all respects be regulated by the laws of the jurisdiction in which such trust is situated, from time to time. If the situs of a trust cannot be determined with certainty, then the laws of the United States Virgin Islands shall apply. Notwithstanding anything Agreement to the contrary in this Agreement, my Trustee of each trust created under this has discretion at any time or times to transfer the situs of such trust to such other country, or such other jurisdiction as my Trustee determines, without obtaining judicial authorization or approval (unless such judicial authorization or approval is required by applicable law) and without the filing of any bond. My Trustee's determination to transfer the situs of any trust under this Agreement shall be evidenced by an instrument in writing signed, witnessed and acknowledged by my Trustee in the same manner as would be required for a deed. My Trustee is authorized to take whatever actions are necessary to effect a transfer of situs. If judicial authorization or approval is required to effect a transfer of situs, I intend and desire that the 10 2657767.1 GJ_000305 EFTA00082377 appropriate such trust even court ai.A.co the dew:minutiae army Taste canctrang dhe taut et Aie sans if my Trustee's if one or more beneficiaries disagree with sorb debt hum ni al= trust shall be governed transfer of the situs of a trust pursuant to this Section 63, the administration of Ric': by the law of the new situs of such trust. Section 6.4 - Definition of Terms Except as otherwise specifically provided herein, as used in this Agreement, office of Trustee A. The term "Trustee" means all persons or entities who occupy the whether one or more of any trust hereunder while such persons or entities occupy such office, times, and persons or entities occupy the office of Trustee at the same time or of a person's includes any successor Trustee or Trustees. The term "Personal Representative" estate means all persons or entities who occupy the office of personal entities representative, occupy administrator, executor, or ancillary administrator while such persons or the same such office, whether one or more persons or entities occupy such office at time or times, and includes any successor or successors to a person's Will means to that office. A reference thereto. such person's Last Will and Testament and any Codicil or Codicils B. Whenever plural, and the singular number is used, the same shall include the the masculine gender shall include the feminine and neuter genders. Section 6.5 - Trustee Notice My Trustee may have duties and responsibilities this Agreement. in addition to those described in If my Trustee has questions, my Trustee should obtain legal advice. 2657767.1 I1 G.1_000306 EFTA00082378 iriennign I have duly executed this Agseement on the ea set opposite ray sigma= Date signed: Jan....7 17 1o/ 2. -s )c= PS PS Date signed: z 7, z of 2_ DARREN K. INDYKE, as a T Date signed: Date signed: JES STALEY, as a Trustee, and ANDREW FARICAS, as a Trustee, published On this 271./ day of././...7, 2012, the foregoing instrument was signed, and declared to be the First Amendment and Restatement 2001 Trust Two to the Jeffrey E. Epstein accepted Trust Agreement by JEFFREY E. EPSTEIN, as Grantor, and was signed and presence of in ea our presence; and we, at the Grantor's request, in the Grantor's presence and in the other, did, on said day, sign our names as witnesses thereto. caa..a 3 a.-we-1r residing at 14 - DP-K k..A Ave_ Log.) e_ 1?).-4-1 0a E.1•••3 10,4 i14/1 t lost ›taum‘e... residing at ty,eie Gast ec/ -A. AL, f fry. //o.1-2, G.1_000307 EFTA00082379 • •• The foreseing inattsinont was seam! and SOME se beirst mean' .M.Lifinref TA uzAni , 2012 In JEFFREY E EPSTEN„, the Gra tit) is personally known so Ete ar who hag produced as identification. Sworn to before me this 21 day of lut..72012 Notary Public STATE OF PP"' Yeakk ) )ss: COUNTY OF IJPw yak ) HARRY I. SELLER Notary No. Public. Stare of New York 016E4$53924 Qualified Commission in Rockland County Expires Feb. 17. 20 Ams The foregoing instrument was subscribed and sworn to before me this 27 day of prodded 2012, by as DARREN K. INDYKE, a Trustee, who is personally known to me or who has identification. Sworn to before me this 2:7 day of 2012 Notary Public HARRY I. SELLER kertary Public. Siete of New York No. 014E4853924 Qualified in Rockland County Expires Feb. 17. 20.L1 GJ_000308 EFTA00082380 Stitagt ..„ . .. .• COLNTY OF The foregoing instrument , 2012, by J ES STALEY, a T produced as identification. Sworn to before me this day of_ _,2012 Notary Public STATE OF COUNTY OF )ss: dr) c•: ,x st n: The foregoing instrument was subscribed and sworn to before me this dry ct , 2012, by ANDREW FARKAS, a Trustee, who is personally known to rne or who hs produced as identification. Sworn to before me this day of , 2012 Notary Public G.1_000309 EFTA00082381