UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 1)
Under the Securities Exchange Act of 1934
Franklin Street Properties Corp.
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(Name of Issuer)
Common Stock, par value $.0001 per share
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(Title of Class of Securities)
35471F102
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(CUSIP Number)
Barry Silverstein
5111 Ocean Boulevard, Suite C
Sarasota, FL 34242
(941) 349-9200
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 30, 2005
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box |X|.
NOTE: Schedules filed in paper format should include a signed original and five
copies of the schedule, including all exhibits. Seess. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover shall not be deemed to
be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934
("Act") or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No. 35471F102 13D
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
Silverstein Investments Limited Partnership III
04-3531703
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)|_|
(b)|X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
4,090,580
NUMBER OF ---------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
EACH ---------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH
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10 SHARED DISPOSITIVE POWER
4,090,580
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,090,580
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
(See Instructions)
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.8%
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14 TYPE OF REPORTING PERSON (See Instructions)
PN
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
Barry Silverstein
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)|_|
(b)|X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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7 SOLE VOTING POWER
0
NUMBER OF ---------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,225,716
EACH ---------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
5,821,380.5
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,821,380.5
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
(See Instructions)
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.6%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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SCHEDULE 13D
This Schedule 13D amends a Schedule 13D filed on June 25, 2004. The
following items in the Schedule 13D are hereby amended to include the following
information.
Item 3. Source and Amount of Funds or Other Consideration.
No funds were borrowed by the Reporting Persons or any related
entity for the acquisition of FSP Common Stock.
On April 30, 2005, FSP Corp. completed its acquisition of four
real estate investment trusts (collectively, the "Target REITs"), each a
Delaware corporation. The acquisitions were completed pursuant to an Agreement
and Plan of Merger, dated as of August 13, 2004 (the "Merger Agreement"), by and
among FSP Corp., certain acquisition subsidiaries of FSP Corp. and the Target
REITs.
Upon consummation of the transactions contemplated by the Merger
Agreement, each Target REIT was merged with and into an acquisition subsidiary
of FSP Corp., with such acquisition subsidiary as the surviving corporation (the
"Mergers"). Under the terms of the Merger Agreement each outstanding share of
stock ("Target Stock") of each respective Target REIT, as of August 13, 2004,
was converted into a specified number of shares of Common Stock.
In connection with the Mergers, FSP Corp. reserved for issuance
an aggregate of approximately 10,894,994 shares of Common Stock. Based on the
capitalization of FSP Corp. as of the effective date of the Mergers, the Common
Stock reserved for issuance to the Target REIT stockholders represented
approximately 18% of the outstanding shares of FSP Common Stock.
SILP III directly owned an aggregate of 163 shares of Target
Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares of
Target Stock converted into 962,374 shares of FSP Common Stock upon consummation
of the Mergers. SILP III also owned 3,128,206 shares of Common Stock prior to
the Mergers. SILP III currently owns 4,090,580 shares of Common Stock.
S.B. Investment Management, Inc., as general partner of SILP III,
and Mr. Blechner, as president of the general partner of SILP III, indirectly
owned an aggregate of 163 shares of Target Stock prior to the Mergers. Pursuant
to the Merger Agreement, such shares of Target Stock converted into 962,374
shares of FSP Common Stock upon consummation of the Mergers. SILP III currently
owns 4,090,580 shares of Common Stock. S.B. Investment Management, Inc. is also
the general partner of Silverstein Investments Limited Partnership II. S.B.
Investment Management, Inc., as general partner, and Mr. Blechner, as president
of the general partner, indirectly own the 1,010,169 shares of Common Stock held
by Silverstein Investments Limited Partnership II. S.B. Investment Management,
Inc. and Mr. Blechner indirectly beneficially own a total of 5,100,749 shares of
Common Stock.
Mr. Silverstein indirectly owned an aggregate of 173 shares of
Target Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares
of Target Stock converted into 1,022,210 shares of FSP Common Stock upon
consummation of the Mergers. Mr. Silverstein was not an officer or director of
any Target REIT. Mr. Silverstein's ownership is due to his participation in the
following limited partnerships:
o Silverstein Investments Limited Partnership III ("SILP III"), of
which Mr. Silverstein is the sole limited partner, currently owns
4,090,580 shares of Common Stock after the Mergers.
o JMB Family Limited Partnership, of which Mr. Silverstein is general
partner, owned 3.5 shares of Target Stock prior to the Mergers.
Pursuant to the Merger Agreement, such shares of Target Stock
converted into 20,920 shares of Common Stock. JMB Family Limited
Partnership also owned 429,628 shares of Common Stock prior to the
Mergers. JMB Family Limited Partnership currently owns 450,548
shares of Common Stock. JMB Family Limited Partnership owns all such
shares of Common Stock through the JMB Family Limited Partnership
Irrevocable Trust of 2003, which JMB Family Limited Partnership
beneficially owns and of which Mr. Silverstein is the trustee.
o MSTB Family Limited Partnership, of which Mr. Silverstein is general
partner, owned 5 shares of Target Stock prior to the Mergers.
Pursuant to the Merger Agreement, such shares of Target Stock
converted into 29,850 shares of Common Stock. MSTB Family Limited
also owned 643,589 shares of Common Stock prior to the Mergers. MSTB
Family Limited Partnership currently owns 673,439 shares of Common
Stock. MSTB Family Limited Partnership owns all such shares of
Common Stock through the MSTB Family Limited Partnership
Irreveocable Trust of 2003, which MSTB Family Limited Partnership
beneficially owns and of which Mr. Silverstein is the trustee.
o Silverstein Family Limited Partnership 2002, Ltd., of which Mr.
Silverstein is general partner, owned 0.5 shares of Target Stock
prior to the Mergers. Pursuant to the Merger Agreement, such shares
of Target Stock converted into 2,899 shares of Common Stock.
Silverstein Family Limited Partnership also owned 68,245 shares of
Common Stock prior to the Mergers. Silverstein Family Limited
Partnership 2002, Ltd. currently owns 71,144 shares of Common Stock.
Silverstein Family Limited Partnership 2002, Ltd. owns all such
shares of Common Stock through the Silverstein FLP 2002, Ltd.
Irrevocable Trust of 2003, which Silverstein Family Limited
Partnership 2002, Ltd. beneficially owns and of which Mr.
Silverstein is the trustee.
o Mr. Silverstein's spouse owned 1 share of Target Stock prior to the
Mergers. This share was purchased with personal funds of $100,000.
Pursuant to the Merger Agreement, such share of Target Stock
converted into 6,167 shares of Common Stock. Mr. Silverstein's
spouse also owned 30,585 shares of Common Stock prior to the
Mergers. In addition, pursuant to the Indenture of Trust Agreement
by and between Barry Silverstein, as Grantor, and Trudy Silverstein
and Dennis McGillicuddy, as Trustees, dated September 22, 2003, Mrs.
Silverstein is a trustee of a charitable lead annuity trust for the
benefit of their dependent children. The trust owns 50% of the
limited partnership interests of Silverstein Investments Limited
Partnership II ("SILP II"), which owns 1,010,169 shares of Common
Stock. Mrs. Silverstein, as trustee, has no voting power and shared
dispositive power over 50% of the shares of Common Stock held by
SILP II. Mr. Silverstein's spouse currently beneficially owns
535,669.5 shares of Common Stock, oh which 30,585 shares are owned
by the Trudy Silverstein Irrevocable Trust of 2003, which is
benefically owned by Mr. Silverstein's spouse.
All descriptions of agreements filed as exhibits to this Schedule
13D are modified by the actual terms of such agreements.
Item 4. Purpose of Transaction.
See Item 3 above. The Reporting Persons have no present plans or
proposals which relate to or would result in any of the actions enumerated in
clauses (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) The percentages set forth in this Item 5 are based on
60,526,507 shares of Common Stock outstanding (calculated by adding together (x)
the 49,631,513 shares of Common Stock reported outstanding in FSP Corp.'s Form
10-K for the year ended December 31, 2004, and (y) the 10,894,994 shares issued
in connection with the Mergers).
SILP III directly owns 4,090,580 shares of Common Stock
representing approximately 6.8% of the outstanding Common Class.
S.B. Investment Management, Inc. and Mr. Blechner indirectly own
5,100,749 shares of Common Stock representing approximately 8.4% of the
outstanding Common Class, which consists of the shares of Common Stock owned by
SILP II and SILP III.
Mr. Silverstein indirectly owns 5,821,380.5 shares of Common
Stock representing approximately 9.6% of the outstanding FSP Common Stock, which
includes the shares of Common Stock owned by SILP III and fifty percent of the
shares of Common Stock owned by SILP II.
(b) SILP III has sole voting power with respect to its 4,090,580
shares of Common Stock.
S.B. Investment Management, Inc. and Mr. Blechner have sole
voting and shared dispositive power with respect to 5,100,749 shares of Common
Stock.
Mr. Silverstein does not have sole voting power or sole
dispositive power with respect to any shares of Common Stock. He has shared
voting power and shared dispositive power with respect to 1,195,131 shares of
Common Stock and shared dispositive power and no voting power with respect to
4,090,580 shares of Common Stock. In addition, Mr. Silverstein may share voting
power of 30,585 shares of Common Stock beneficially owned by his wife and
dispositive power of 535,669.5 shares of Common Stock beneficially held by his
wife.
(c) Except as described in this Schedule 13D, there have been no
transactions effected in the Common Stock in the past sixty days.
(d) Various persons have the right to receive or the power to
direct the receipt of dividends from, or proceeds from the sale of, shares of
Common Stock beneficially owned by the Reporting Persons. Of such persons, S.B.
Investment Management, Inc., as the general partner of Silverstein Investments
Limited Partnership, II and SILP III, has the power to direct the receipt of
dividends or the proceeds from the sale of shares of Common Stock beneficially
owned by the Reporting Persons in excess of 5% of the outstanding shares of
Common Stock.
(e) Not applicable.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 Joint Filing Agreement by and between Silverstein
Investments Limited Partnership, III and Barry
Silverstein, dated June 24, 2004*
Exhibit 2 Agreement and Plan of Merger among Franklin Street
Properties Corp. and thirteen real estate
investment trusts, dated as of January 14, 2003,
which is incorporated herein by reference to
Exhibit 2.1 of Franklin Street Properties Corp.'s
Report on Form 8-K filed on January 15, 2003
Exhibit 3 Limited Partnership Agreement of Silverstein
Investments Limited Partnership, III, dated as of
September 28, 2000*
Exhibit 4 Limited Partnership Agreement of Silverstein
Investments Limited Partnership, II, dated
November 22, 1999, as amended on September 16,
2003 and March __, 2004*
Exhibit 5 Limited Partnership Agreement of JMB Family
Limited Partnership, dated May 23, 2001*
Exhibit 6 Limited Partnership Agreement of MSTB Family
Limited Partnership, dated May 23, 2001*
Exhibit 7 Limited Partnership Agreement of Silverstein
Family Limited Partnership 2002, Ltd., dated May
17, 2002*
Exhibit 8 Indenture of Trust for the JM Silverstein 2003
CLAT by and between Barry Silverstein, Trudy
Silverstein and Dennis McGillicuddy, dated
September 22, 2003*
Exhibit 9 Indenture of Trust for the Mark S. Silverstein
2003 CLAT by and between Barry Silverstein, Mark
Shale Silverstein and Dennis McGillicuddy, dated
September 22, 2003*
Exhibit 10 Indenture of Trust for the Susan S. Potter 2003
CLAT by and between Barry Silverstein, Mark Shale
Silverstein and Dennis McGillicuddy, dated
September 22, 2003*
Exhibit 11 Indenture of Trust for the Thomas Benjamin
Silverstein 2003 CLAT by and between Barry
Silverstein, Mark Shale Silverstein and Dennis
McGillicuddy, dated September 22, 2003*
Exhibit 12 Agreement and Plan of Merger among Franklin Street
Properties Corp. and four real estate
investment trusts, dated as of August 13, 2004,
which is incorporated herein by reference to
Exhibit 2.1 of Franklin Street Properties Corp.'s
Report on Form 8-K filed on August 13, 2004.
Exhibit 13 Indenture of Trust for the MSTB FLP 2003
Irrevocable Trust by and between MSTB Family
Limited Partnership and Barry Silverstein, dated
December 12, 2003.
Exhibit 14 Indenture of Trust for the JMB FLP 2003
Irrevocable Trust by and between JMB Family
Limited Partnership and Barry Silverstein, dated
December 12, 2003.
Exhibit 15 Indenture of Trust for the Silverstein FLP 2002
Ltd. Irrevocable Trust of 2003 by and between
Silverstein Family Limited Partnership and Barry
Silverstein, dated December 12, 2003.
Exhibit 16 Indenture of Trust for the Trudy Silverstein
Irrevocable Trust of 2003 by and between Trudy
Silverstein and Dennis McGillicuddy, dated
December 15, 2003.
* - Previously filed as an exhibit to the Schedule 13D filed by the Reporting
Persons on June 25, 2004.
SIGNATURES
After reasonable inquiry and to the best of its knowledge and
belief, the undersigned certifies that the information set forth in this
Statement is true, complete and correct.
Dated: April 30, 2005
By: /s/ Barry Silverstein
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Barry Silverstein
SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP III
S.B. Investment Management, Inc.
General Partner
By: /s/ Steven Blechner
---------------------------
Steven Blechner
President, S.B. Investment Management, Inc.
THE SILVERSTEIN FLP 2002, LTD
IRREVOCABLE TRUST OF 2003
THIS AGREEMENT, made and executed in duplicate this 12th day of December
2003 is by and between Silverstein Family Limited Partnership 2002, as the
Settlor, and BARRY SILVERSTEIN as the Trustee.
WITNESSETH:
WHEREAS, the Settlor desires to establish, effective immediately, a trust
under all of the provisions of this Agreement, and the Trustee is willing to act
as Trustee hereunder.
NOW, THEREFORE, the parties do hereby agree and declare as follows:
ARTICLE I. PROPERTY SUBJECT TO THE TRUST
A. Initial Transfer to Trust. The Settlor irrevocably assigns, transfers,
and delivers to the Trustee all the rights, powers, interests, and benefits
which the Settlor now has or hereafter may have in all of the property described
in Schedule A annexed hereto, and the Trustee agrees to hold, manage, and
dispose of the trust property in the manner and subject to the provisions
contained in this Agreement.
B. Additional Transfers to Trust. The Settlor may from time to time
irrevocably assign, transfer, and deliver additional property to the Trustee
with the consent of the Trustee, which property shall be held, managed, and
disposed of by the Trustee in the manner and subject to the provisions contained
in this Agreement.
ARTICLE II. TRUSTEE SUCCESSION
A. Successor Trustee. It is the Settlor's intention BARRY SILVERSTEIN
shall serve as sole Trustee under this Agreement until the first to occur of the
Settlor's death or the expiration of the Trust Term, as hereinafter defined.
Should BARRY SILVERSTEIN fail to qualify or cease to serve as Trustee hereunder
for any reason, then a majority of the beneficiaries then entitled or permitted
to receive the income of such trust and the presumptive remaindermen of such
trust, or the legal or natural guardian of any of them who is then under a legal
disability, shall appoint an individual or a corporate fiduciary to serve as
Trustee of such trust.
B. Power to Appoint Co-Trustee or Successor Trustee. Any individual
Trustee at any time serving shall have the power to appoint an individual or a
corporate fiduciary to serve as successor Trustee to him or her. In addition,
all of the then acting Trustees of a trust shall, by unanimous vote, have the
power to appoint an individual or a corporate fiduciary to serve as Co-Trustee
of such trust. If at any time there is no Trustee serving hereunder, then a
majority of the beneficiaries (other than the Settlor) then entitled or
permitted to receive the income of such trust and the presumptive remaindermen
of such trust, or the legal or natural guardian (other than the Settlor) of any
of them who is then under a legal disability, shall appoint an individual or a
corporate fiduciary to serve as successor Trustee of such trust.
C. Removal of Corporate Trustee. Any corporate Trustee may be removed from
office at any time by (1) the individual Trustee or Trustees then serving, by
unanimous vote, or, if none, then by (2) a majority of the beneficiaries (other
than the Settlor) entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or the legal or natural guardian
(other than the Settlor) of any of them who is then under a legal disability. In
the event of the resignation or removal of the corporate Trustee of a trust, the
person or persons having the power of removal shall appoint a successor
corporate Trustee who is authorized to exercise trust powers either under the
law of the jurisdiction where such corporate Trustee is located or under the
national banking laws enacted by the Congress of the United States.
D. Right to Resign. Without limitation as to any other method of
resignation, any Trustee may resign as Trustee of any trust by giving prior
written notice of such intention to do so to the Co-Trustee(s), if any, and to
the beneficiaries entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or to the legal or natural guardian
of any of them who is then under a legal disability. In the event of such
resignation, the person or persons to whom such notice of resignation shall have
been given may, without liability to any person, approve the accounts of and
give a complete release and discharge to such resigning Trustee. Any Trustee who
resigns shall not receive any termination fee or commission that might otherwise
be payable by reason of termination of the trust or distribution of the trust
principal.
E. Method of Appointing or Removing Trustees. Any appointment or removal
of a Trustee (1) shall be made by a written instrument executed with the
formality required of a deed for the conveyance of real estate; (2) shall take
effect at the time and upon the conditions set forth in the instrument of
appointment or removal, subject, however, to the written acceptance of the
appointee (in the case of an appointment); and (3) may be revoked by a like
instrument at any time before the appointment or removal shall take effect.
F. Powers Exercisable by Third Party. The right to remove and/or appoint a
Trustee and the right to approve accountings and give a release to a resigning
Trustee shall be exercisable on behalf of any person by the holder of a durable
power of attorney (other than the Settlor) from that person or by the legal or
natural guardian (other than the Settlor) of any person who is then under a
legal disability.
G. Majority Rules. Unless expressly provided to the contrary in this
Article, if the right to appoint a Trustee shall be exercisable by two (2)
persons collectively, this right shall be exercisable only by the unanimous
agreement of both of them. If the right to appoint a Trustee shall be
exercisable by three (3) or more persons collectively, the decision of a
majority of them shall control.
H. No Bond Required. No Trustee at any time serving in any jurisdiction
shall be required to furnish any bond or other security for the faithful
performance of the office of Trustee hereunder, qualify before any court,
register the trust, or file an accounting in any court as a condition for the
exercise of any of the powers and discretions herein conferred upon the Trustee.
This Paragraph shall not affect the right of any beneficiary hereunder to
require an accounting.
Page 2
I. Restrictions on Whom May Serve As Trustee. Notwithstanding any other
provision of this Agreement to the contrary, during the lifetime of the Settlor,
the Settlor may not serve as a Trustee hereunder or exercise any other rights
under this Article.
ARTICLE III. TRUST IRREVOCABLE
This Agreement and any trust created hereunder are irrevocable and
unamendable. The Settlor expressly waives all rights and powers, whether alone
or in conjunction with others, to alter, amend, revoke, or terminate this Trust
Agreement in whole or in part.
ARTICLE IV. DISTRIBUTION OF TRUST ESTATE DURING THE TRUST TERM
A. Trust Term. The Trust shall terminate on the first to occur of the
dissolution of the Settlor or January 31, 2004 (the "Trust Term"). During the
Trust Term, the Trustee may pay to or for the benefit of the Settlor so much or
all of the net income and principal of the Trust as the Trustee, in the
Trustee's discretion, deems to be for the best interest of the Settlor. Any net
income not paid or applied shall be accumulated and added to the principal of
the Trust at least annually.
B. Automatic Renewal. Anything in Paragraph IV.A to the contrary
notwithstanding, during the existance of the Settlor, this Agreement shall
automatically renew for successive one (1) year terms on January 31st of each
year unless the Settlor delivers to the Trustee written notice of the Settlor's
intention not to renew, no later than forty (40) days before the termination of
the then current term of this Agreement.
ARTICLE V. DISPOSITION OF TRUST UPON EXPIRATION OF TRUST TERM
A. Expiration of Trust Term while Settlor Remains in Existence. Upon the
expiration of the Trust Term during while the Settlor remains in existence, the
remaining trust property shall be distributed to the Settlor, outright and free
of trust.
B. Expiration of Trust Term After Dissolution of the Settlor. Upon the
dissolution of the Settlor's during the Trust Term, the remaining trust property
shall be distributed to or among or for the benefit of such individuals,
corporations, charities qualified under ss.501(c)(3) of the Code, or other
entities that owned an interest in the Settlor at the time Settlor was
dissolved, in proportion to each such interest holder's proportionate ownership
of Settlor.
ARTICLE VI. AS TO THE TRUSTEE
A. Situs and Governing Law. This Agreement and each trust established
hereunder shall have an initial situs in the State of Florida and shall be
governed by the laws of the State of Florida. The Trustee may, in the Trustee's
discretion, change the situs of any trust established hereunder to a
jurisdiction other than the State of Florida. A change of situs shall not affect
the validity or construction of any trust hereunder or create in any beneficiary
any right or power other than those to which such beneficiary was then entitled
in the State of Florida.
Page 3
B. Certification Regarding Prior Administration. Any successor Trustee is
specifically authorized to accept the trust assets as the same may be certified
to such Trustee by any prior Trustee or as may be approved by the beneficiaries
then entitled or permitted to receive the income of such trusts (or the legal or
natural guardian of any of them who is then under a legal disability), without
the necessity of a full accounting or inquiry into the prior administration of
the trust by any prior Trustee.
C. Delegation of Powers. Any Trustee may delegate to another Trustee the
right to exercise any power (discretionary, administrative, or otherwise) by an
acknowledged instrument and may revoke the delegation at any time by delivery of
an acknowledged instrument to such other Trustee.
D. Termination of Fiduciary Capacity. Any individual Trustee shall be
deemed to have ceased to serve as Trustee of a trust upon the first to occur of
the following:
1. Unable to Manage Financial Affairs. Receipt by the remaining
Trustee(s), if any, and by the beneficiaries then entitled or permitted to
receive the income of such trust (or the legal or natural guardian of any
of them who is then under a legal disability) of a certificate or letter
from a medical doctor stating that he or she is the individual Trustee's
physician and that, because of illness or incapacity of any kind of said
individual Trustee, the Trustee is unable to manage financial affairs; or
2. Appointment of Guardian. Upon the appointment of a guardian of the
person or property or conservator of such individual Trustee; or
3. Death or Resignation. Upon the death or resignation of such individual
Trustee.
E. Custody of Trust Estate. While acting hereunder, the corporate Trustee
(or its agent) shall have the sole custody of the assets constituting the trust
estate and each trust or share thereof, and shall be responsible for the
maintenance of adequate records reflecting the condition of the trust and the
income and expenses thereof. Such records shall be open at all times to
inspection by the individual Trustee, if any, or by the respective beneficiaries
of the trust, or the legal representatives or attorneys of such persons.
F. Trustee Compensation. Any corporate Trustee shall receive compensation
as determined by its standard fee schedule in effect and applicable at the time
of the performance of its services, unless otherwise agreed to in writing by the
corporate Trustee. If no such schedule shall be in effect at that time or if no
such writing exists, it shall be entitled to reasonable compensation for the
services rendered. Any Trustee shall be reimbursed for reasonable expenses
incurred in serving as Trustee.
G. Trustee Exonerated. The Trustee shall be responsible for only due
diligence in the administration and disbursement of any trust created hereunder
and shall not be responsible for any loss or subject to any liability except by
reason of the Trustee's own negligence or willful default proved by affirmative
evidence. Every election, determination, or other exercise by the Trustee of any
discretion granted to the Trustee, expressly or by implication under this
Agreement or by law made in good faith, shall fully protect the Trustee and
shall be conclusive and binding upon all persons. This Paragraph shall be
binding on all interested parties hereunder, and the Trustee shall be
indemnified and held harmless by the trust estate for any claim, demand, or suit
Page 4
arising with respect to any decision of the Trustee in the administration of the
trust estate other than for the Trustee's gross negligence.
ARTICLE VII. ADMINISTRATIVE POWERS OF TRUSTEE
The Trustee shall have the following powers in addition to all powers now
or hereafter conferred upon trustees by law:
A. Invest Trust Property. To invest and reinvest the trust property in
property of any character, foreign or domestic, specifically including, but not
limited to, real estate, business enterprises of any nature, investment
partnerships, stocks, bonds, notes, debentures, warrants, puts, calls, options,
futures contracts, trust receipts, commodities, leases, contracts, United States
securities, interests in trusts, money market funds, mutual funds, common trust
funds (including those maintained by any corporate trustee or any affiliate
thereof), repurchase agreements, and securities exempt from income tax
(notwithstanding that higher yields may be obtained by investment in securities
not so exempt), or in any other property or undivided interests in property,
wherever located, without being limited by any statute or rule of law concerning
investments by trustees and without any requirement for diversification;
B. Margin Account Usage. The Trustee shall have the discretion to
establish, maintain, make investments on margin, and use a margin investment
account for such purposes as the Trustee deems reasonable and prudent. No person
dealing with the Trustee need see to the use or application of margin proceeds
nor place limitations or restrictions upon the Trustee in the maintenance of a
margin account;
C. Retain Trust Assets. To retain as a part of any trust any and all
assets transferred to or acquired by the Trustee, so long as the Trustee deems
it appropriate to do so, regardless of whether said assets are the kind and
class authorized by law for the investment of trust funds and without regard to
principles of diversification;
D. Establish Bank and Brokerage Accounts. To retain principal and income
cash funds in interest and non-interest bearing checking, savings, money market,
brokerage, and NOW accounts, for such reasonable period of time as the Trustee
may determine, pending investment or distribution to the beneficiaries
hereunder;
E. Deal In Real or Personal Property. With respect to any interest in real
or personal property, (i) to lease, including, without limitation, the power to
negotiate a lease and execute a lease; (ii) to exchange; (iii) to sell and
convey, including, without limitation, the power to locate a purchaser, to
accept and execute a contract for sale, and to execute deeds, bills of sale, and
other closing documents necessary or advisable in the discretion of the Trustee;
or (iv) to make any other disposition in public or private transactions deemed
necessary or advisable in the discretion of the Trustee. No notice to or the
consent of any beneficiary shall be required for any action taken under this
Paragraph, and the Trustee shall be entitled to employ brokers and agents and
pay them reasonable compensation for such purposes;
F. Borrow and Lend Money. To borrow such sums of money at any time and
from time to time for such periods of time upon such terms and conditions from
such persons or corporations (including any trustee hereunder) and for such
purposes as may be deemed appropriate, and to secure such loans by the pledge or
Page 5
hypothecation of any property held hereunder, and the lender shall have no
obligation to inquire as to the application of the sums loaned or as to the
necessity, expediency, or propriety of the loan; to loan money to any person or
entity, including a beneficiary, upon such terms and conditions, with adequate
interest and security, and for such purposes as the Trustee may deem advisable;
G. Make Nominee Registrations. To register any securities or other
property or any interest in property, in the name of any nominee or nominees,
without describing the fiduciary capacity, and to hold any securities in bearer
form;
H. Maintain Custody Accounts. To maintain custody or margin accounts with
any banks, brokers, or trust companies, and to maintain safekeeping vaults;
I. Exercise Ownership Rights. To exercise all ownership rights, including,
without limitation of generality, voting and subscription rights; and to
otherwise exercise any and all rights and powers, and deal in and with
securities at any time held hereunder, in the same manner and to the same extent
as any individual owner and holder thereof might do;
J. Purchase Investments at Premium. To purchase investments at a premium
and in the case of investments which have been purchased or otherwise acquired
at a premium and which are callable or have fixed maturities, to amortize such
premiums by charges against income;
K. Pay, Compromise, Settle, or Abandon Claims. To pay, compromise, settle,
object to or abandon all claims and demands in favor of or against the trust
estate (specifically including any claim that may arise out of any income, gift,
or death taxes);
L. Deal With Other Fiduciaries. To receive assets from any source and to
enter into any transaction authorized by this Article with the legal
representatives of any other estate or with the trustees of any other trust
estate in which any beneficiary hereunder has a beneficial interest, even though
any of such legal representatives or trustees is also a fiduciary hereunder;
M. Distribute Income and Principal. To distribute income and principal in
cash or in kind, or partly in each, and to allocate or distribute undivided
interests of different assets or disproportionate interests in assets, and no
adjustment shall be made to compensate for a disproportionate allocation of
unrealized gain for federal income tax purposes, provided that any distribution
to or for the benefit of a charitable organization described in ss.170(c) and
ss.2055(a) of the Code shall be made, to the extent possible, from assets which
produce income in respect of a decedent ("IRD");
N. Participate in Corporate Transactions. To participate in and to consent
to any plan of reorganization, recapitalization, consolidation, merger,
combination, dissolution, liquidation, or similar plan and any action
thereunder, including, but not limited to, the deposit of any property with any
protective, reorganization, or similar committee, the delegation of
discretionary powers thereto, and the sharing in the payment of its expenses and
compensation and the payment of any assessments levied with respect to such
property; and to receive and retain property under any such plan whether or not
the same is of the kind in which fiduciaries are authorized by law or any rule
of court to invest funds;
O. Allocate Items to Income. To allocate to income (unless otherwise
directed herein) all interest, all rental income not set aside as a reserve for
depreciation, and all cash dividends or other cash distributions (whether
Page 6
ordinary or extraordinary) received from any source, including, but not limited
to, cash dividends received from investment companies or investment trusts;
P. Allocate Items to Principal. To allocate to principal (unless otherwise
directed herein) all capital gains and all dividends and distributions payable
in property or in stocks, bonds, or other securities whether of the disbursing
company or another company;
Q. Make Discretionary Allocations to Income or Principal. To allocate to
income or to principal as shall be deemed appropriate, in the fiduciary's
absolute discretion, without liability to any beneficiary, (1) any dividend or
distribution, the allocation of which is not ascertainable under the preceding
two subparagraphs; (2) expenses of administration in a reasonable manner
consistent with applicable state law and optimal tax results; and (3) the
payment of Florida intangible personal property tax;
R. Employ Professionals. To employ investment counsel, accountants,
depositories, custodians, brokers, consultants, agents, attorneys, and other
employees, irrespective of whether any person so employed shall be a Trustee
hereunder and irrespective of whether any firm or corporation so employed shall
be one in which a Trustee hereunder shall be a partner, stockholder, member,
officer, or director, or shall have any interest, and to pay the usual
compensation for his, her, its, or their services out of principal or income as
may be deemed appropriate; and such compensation may be paid without diminution
of or charging the same against the commissions or compensation of any Trustee
hereunder; and any Trustee who shall be a partner, stockholder, member, officer,
or director in any such firm or corporation shall nevertheless receive his share
of the compensation paid to such firm or corporation;
S. Make Distributions to Minors. To effect distribution to a minor by
distributing the same to a custodian for such minor under the Uniform Transfers
to Minors Act (or corresponding provision of law) in effect in the jurisdiction
where the minor resides, or elsewhere, and to select such a custodian for such
minor, including a Trustee named herein;
T. Transfer Assets to Alternative Situs. To transfer the assets of any
trust for purposes of administration to another situs and to appoint, if
necessary, as a special Trustee, any individual or corporation authorized under
the laws of the United States or any state to administer or to co-administer
such trust and to remove any special Trustee and reappoint themselves;
U. Incorporate Business. To continue to operate or participate in the
operation of any unincorporated business for as long as the Trustee deems
appropriate to so do; to incorporate or to participate in the incorporation of
any business, and to operate such newly incorporated business; and to liquidate,
merge, consolidate, spin-off, or reorganize any business in such manner and upon
such terms as the Trustee deems appropriate;
V. Conduct Business Interests. To conduct any business interests owned
alone or with others for whatever period of time the Trustee deems appropriate
with all powers of an owner with respect thereto, including, but not limited to,
the power to borrow money and pledge estate or trust property as security
therefor, or to delegate such powers to any partner, manager, or employee; to
dispose of any such business or any assets thereof, at public or private sale,
upon such terms and conditions as the Trustee deems appropriate; to form
partnerships or corporations to carry on such business, and to contribute any
Page 7
estate or trust property as capital thereof; and to employ, elect, or permit to
be retained any Trustee as a director, officer, or employee of such business
entity;
W. Divide Trusts. To divide any trust into separate trusts for any
purpose, such as allocating the generation-skipping transfer tax exemption so
that one or more of these trusts is entirely exempt from the federal
generation-skipping transfer tax, or electing to treat a separate trust as
qualified terminable interest property for federal estate tax purposes; and, in
investing and making distributions from the separate trusts, the Trustee shall
consider the tax saving opportunities afforded by the existence of separate
trusts;
X. Direct Distribution if Trust Not Operative. To distribute property
directly to the beneficiary of a trust, without the interposition of such trust,
if at the time of distribution the circumstances are such that the trust would
have been paid out to the beneficiary immediately upon funding of the trust;
Y. Collapse of Trust. If at any time the Trustee, in the Trustee's
absolute discretion, shall determine that it is uneconomical or not in the best
interest of the beneficiaries to continue any trust created hereunder, the
Trustee, in the Trustee's absolute discretion, may terminate such trust and
distribute the trust property to the person or persons, or to the legal
representative of such person or persons, then entitled or permitted to receive
or have the benefit of the income therefrom. If there is more than one income
beneficiary, the Trustee shall make such distribution to such income
beneficiaries in the proportion in which they are beneficiaries or, if no
proportion is designated, in equal shares to such beneficiaries. This power
shall not be exercised by any Trustee who is also a beneficiary of such trust;
Z. Pool Assets. To pool the assets of any or all trusts hereunder for
investment purposes, allocating to each trust an undivided interest in all
assets so held; and to merge any trust with any other trust held by the Trustee,
whether created by a Guardian or by any other person by Will or Deed, if the
terms thereof are substantially similar and held for the primary benefit of the
same persons;
AA. Purchase Policies of Insurance. To purchase new or existing policies
of insurance, from any source, on the life of any person;
BB. Sell or Purchase Assets to or from Settlor's Estate. To sell or
purchase, at the fair market value as determined by the Trustee, and to lend or
borrow, at an adequate rate of interest and with adequate security and upon such
terms and conditions as the Trustee deems fair and equitable, any property to or
from the Settlor's estate, the Settlor's spouse's estate, or any trust created
by the Settlor or the Settlor's spouse during life or by Will, even though the
same person or corporation may be acting as Personal Representative of the
Settlor's estate or of the Settlor's spouse's estate or as Trustee of any such
trust and as Trustee of this Trust.
ARTICLE VIII. BENEFICIARY UNDER DISABILITY
A. Minors. If any property shall become distributable to a minor, it shall
vest absolutely in the minor, but the Trustee may retain such property with all
of the rights, powers, duties, and discretions which are herein granted to the
Trustee elsewhere in this Agreement. In that event, the Trustee shall invest and
reinvest such property and pay to or apply for the benefit of the minor so much
Page 8
or all of the net income and principal of such retained property as the Trustee
deems appropriate for the minor's best interests, accumulating any net income
not so paid or applied and adding such accumulated net income to principal, at
least annually. When the minor attains majority, the Trustee shall distribute
such retained property as then constituted to the minor. If the minor dies
before attaining majority, the Trustee shall distribute such retained property
to the deceased minor's estate.
B. Adult Beneficiary. If in the opinion of the Trustee any adult
beneficiary is unable to properly disburse the income or principal to which the
beneficiary may be entitled, the Trustee may retain such property and pay to or
apply for the benefit of the beneficiary all or part of such income or principal
as the Trustee deems advisable in the best interest of the beneficiary.
C. Application to Beneficiary. In applying income or principal for the
benefit of any beneficiary, the Trustee is authorized in the Trustee's
discretion to expend such amounts for the best interest of the beneficiary in
one or more of the following methods as the Trustee deems appropriate:
1. Minor, Incompetent or Incapacitated Beneficiary. By delivering any such
amount to the natural, general, or testamentary guardian of any
beneficiary, or to a custodian for any beneficiary under the Uniform
Transfers to Minors Act or similar law, or to any individual or entity
having the care, custody, or control of any such beneficiary, or with whom
such beneficiary may reside, or to the committee, guardian, or conservator
of any beneficiary who shall have been adjudicated an incompetent; or
2. Beneficiary. By delivering any such amount to such beneficiary,
personally; or
3. Beneficiary's Behalf. By making direct expenditures for the best
interest of such beneficiary.
D. Payment. The receipt of any such guardian, custodian, committee,
conservator, individual, entity, or beneficiary, or evidence of such payment or
expenditure of any such amount, shall be a full and sufficient discharge to the
Trustee for the payment or expenditure thereof, and the Trustee shall be
exonerated from all liability and responsibility by reason of any amount so
delivered, paid, or expended irrespective of the application or use thereof that
may be made by any such person; and the Trustee shall have no duty to see to the
application of any such amount.
ARTICLE IX. RESTRICTIONS, LIMITATIONS, AND POWERS REGARDING THE TRUST, TRUSTEE,
AND BENEFICIARIES
A. Perpetuities. Regardless of any contrary provision of this Agreement,
no assets shall be held in trust for a period longer than the longest statutory
period permitted under the applicable rule against perpetuities, as it is then
in force and effect, and, upon the expiration of such period, all such trusts
shall terminate, and the Trustee shall distribute the trust property to the
person or persons, or to the legal representative of such person or persons,
then entitled or permitted to receive or have the benefit of the income
therefrom. If there is more than one income beneficiary, the Trustee shall make
Page 9
such distribution to such income beneficiaries in the proportion in which they
are beneficiaries or, if no proportion is designated, in equal shares to such
beneficiaries.
B. Restrictions on Individual Trustee. No individual Trustee, who is also
a beneficiary of any trust, shall participate in the exercise of any discretion
granted to the Trustee to (i) pay or apply the net income or principal of such
trust to or for the benefit of himself or herself, including the termination of
such trust, except to provide for his or her health, education, maintenance, or
support as set forth under ss.ss.2041(b)(1)(A) and 2514(c)(1) of the Code; or
(ii) to exercise any discretion with respect to crediting or charging any item
to income or principal otherwise than as provided by law. In addition, any
Trustee who is under a legal obligation to support a beneficiary of any trust
shall not participate in the exercise of any discretion granted to the Trustee
to pay or apply the net income or principal of such trust in discharge of that
legal obligation.
C. Restrictions on Beneficiaries. No beneficiary of any trust shall have
any right or power to pledge, assign, sell, transfer, or encumber his or her
interest in any trust hereunder, nor shall any such interest be liable for or
subject to the debts, judgments, or other obligations of such beneficiary or to
claims of any sort against such beneficiary.
D. Power of Appointment.
1. Power to Appoint to Creditors. If a trust under this Agreement would,
but for the provisions of this Paragraph, be liable for
generation-skipping tax at the death of a beneficiary, such beneficiary
shall have the power to appoint to such beneficiary's creditors, by a Will
expressly referring to and exercising this power, the smallest fractional
share of such trust that would reduce to the minimum the aggregate estate,
inheritance, succession, and generation-skipping taxes payable upon such
beneficiary's death, assuming no deductions are allowed with respect to
the appointive property.
2. Payment of Taxes. If any beneficiary under this Agreement incurs any
estate or inheritance tax liability due to the inclusion of a portion or
all of a trust established hereunder in the beneficiary's gross estate for
federal estate tax purposes by reason of a power of appointment, then any
such tax attributable to such power of appointment shall be paid from such
beneficiary's separate trust prior to being distributed to the remainder
beneficiaries of such trust. The tax attributable to such power of
appointment shall be the excess of (1) the total amount of all federal and
state estate, inheritance, succession, and other death taxes, together
with any acquirer's taxes, including interest and penalties thereon,
imposed upon such beneficiary's estate (or imposed as an acquirer's tax on
any beneficiary) over (2) the amount of such taxes, interest, and
penalties that would have been imposed if no part of such power of
appointment property had been included in the beneficiary's gross estate
for purposes of any such tax.
Page 10
E. Prohibitions. No person shall purchase, exchange, or otherwise deal
with or dispose of the principal or income of the Trust for less than an
adequate consideration in money or money's worth, nor shall any person borrow
the principal or income of the trust estate, directly or indirectly, without
adequate interest or security.
ARTICLE X. SURVIVORSHIP CLAUSE
A. Beneficiaries. If any beneficiary dies within ninety (90) days after
the death of the Settlor, then for purposes of applying and interpreting this
Agreement such beneficiary shall be deemed conclusively to have predeceased the
Settlor.
B. Beneficiary Whose Life Measures Duration of a Trust. If any person
whose life measures the duration of a trust hereunder and any succeeding trust
beneficiary, including any remainderman of such trust, die under such
circumstances that there is reasonable doubt as to who died first, then for
purposes of applying and interpreting this Agreement such person whose life
measures the duration of such trust shall be deemed conclusively to have
survived such succeeding trust beneficiary or remainderman, as the case may be.
ARTICLE XI. CONSTRUCTION AND DEFINITIONS
Unless the context indicates that a different meaning is intended, for all
purposes of this Agreement:
A. Construction.
1. The singular number shall include the plural number and the
plural number shall include the singular number;
2. The use of any gender shall be applicable to all genders.
B. Definitions.
1. The words "child" and "children" shall mean descendants of the
first degree only, and the word "issue" shall mean descendants of
the first, second, or more remote degree;
2. The words "child," "children," and "issue" shall include any
person legally adopted prior to attaining the age of eighteen (18)
years and the issue of any such adopted person;
3. The word "issue" shall include any issue in gestation at the time
for determination hereunder later born alive (en ventre sa mere);
4. The term "Code" shall mean the Internal Revenue Code of 1986, as
now and hereafter amended, and shall include any corresponding
provisions of the federal tax law which may from time to time be in
effect;
Page 11
5. The term "education" may include, but shall not be limited to,
expenses of tuition, books, incidentals in any way related thereto,
and all other services, items, and things required in connection
with any course of study (including vocational apprenticeships,
internships, and residencies). Such expenses shall also include the
travel and living expenses incurred in connection with a
beneficiary's attendance at any educational institution. It is the
Settlor's intent that the term "educational institution," as used
herein, shall include, without limitation, private schools,
colleges, universities, trade schools, and graduate schools;
6. The word "minor" shall mean a person under the age of twenty-one
(21) years;
7. The term "Trustee" shall include both the singular and the plural
and whenever used herein shall mean all trustees at any time serving
and however appointed, including any successor trustee and any
additional trustee appointed or required to act in any jurisdiction;
8. The term "trust estate" shall include all property listed on the
attached Schedule A, and all investments and reinvestments thereof
and additions thereto;
9. If the Settlor and the Settlor's spouse are not married or if
there is any action filed or pending, or any judgment entered, for
dissolution of the marriage, divorce, legal separation, or support
without divorce, or any form of legal proceeding to compel support
or distribution of property or income, at the time of the Settlor's
death or at any such time as the Settlor's spouse would become
entitled to any benefit hereunder or have any power of appointment
or withdrawal pursuant to the terms of this Agreement, or if the
Settlor's spouse is serving as Trustee or has been nominated as a
successor Trustee, then the Settlor's spouse shall be deemed to have
predeceased the Settlor for all purposes of this Agreement.
ARTICLE XII. HEADINGS FOR REFERENCE ONLY
The headings contained in this Agreement are for reference purposes only
and are not intended to describe, interpret, define, or limit the scope, extent,
or intent of this Agreement or any provision hereof.
Page 12
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
SETTLOR: Silverstein Family Limited Partnership
2002, LTD
By: /s/ Barry Silverstein (Seal)
----------------------------------------------
BARRY SILVERSTEIN, General Partner
SIGNED, SEALED, PUBLISHED, AND DECLARED by the said BARRY SILVERSTEIN, as
General Partner, as and for the Settlor's Trust Agreement, in the presence of
the undersigned, who, at the Settlor's request and in the Settlor's presence and
in the presence of each other, have hereunto subscribed our names as witnesses
thereto, the day and year first above written.
/s/ Jeffrey McCurdy residing at 4862 Edgemont Ct.
------------------------------------ --------------------------------
Sarasota, FL 34233
-----------------------------
/s/ Simon J. Jaspers residing at 4071 Giannini Ln
------------------------------------ --------------------------------
Sarasota, FL 34233
-----------------------------
TRUSTEE:
/s/ Barry Silverstein (Seal)
----------------------------------------------
BARRY SILVERSTEIN
Page 13
STATE OF FLORIDA
COUNTY OF Sarasota
--------
ON THIS DAY before me, the undersigned authority, personally appeared
Barry Silverstein, who:
|X| is personally known to me OR
|_| has produced _________________________________ as identification
and who acknowledged to me that he/she is the person described in and who
executed the foregoing Trust Agreement as the Settlor and that he/she
executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 12th day of December, 2003.
(Notary Seal) /s/ Linnette Fauroat
--------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
--------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 3, 2006
---------------------
My Commission Number: DD 087555
----------------------
STATE OF FLORIDA
COUNTY OF Sarasota
--------
ON THIS DAY before me, the undersigned authority, personally appeared
Barry Silverstein, who:
|X| is personally known to me OR
|_| has produced ________________________________as identification
and who acknowledged to me that he/she is the person described in and who
executed the foregoing Trust Agreement as the Trustee and that he/she
executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 12th day of December, 2003.
(Notary Seal) /s/ Linnette Fauroat
--------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
--------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 3, 2006
---------------------
My Commission Number: DD 087555
----------------------
Page 14
AFFIDAVIT OF PROOF OF TRUST AGREEMENT
STATE OF FLORIDA
COUNTY OF Sarasota
--------
I, BARRY SILVERSTEIN, General Partner of Silverstein Family Limited
Partnership 2002, LTD, declare to the officer taking my acknowledgment of this
instrument, and to the subscribing witnesses, that I signed this instrument as a
Trust Agreement.
/s/ Barry Silverstein
--------------------------------------------
BARRY SILVERSTEIN as General Partner, Settlor
We, Jeffrey McCurdy and Simon J. Jaspers, have been sworn by the officer
signing below, and declare to that officer on our oaths that the Settlor
declared the instrument to be the Settlor's Trust Agreement and signed it in our
presence and that we each signed the instrument as a witness in the presence of
the Settlor and of each other.
/s/ Jeffrey McCurdy
--------------------------------------------
Witness
/s/ Simon J. Jaspers
--------------------------------------------
Witness
Acknowledged and subscribed before me by the Settlor, BARRY SILVERSTEIN,
General Partner, who is personally known to me or who has produced personally
known as identification, and sworn to and subscribed before me by the witnesses,
____________________________ who is personally known to me or who has produced
personally known as identification and _______________________________ who is
personally known to me or who has produced personally known as identification,
and subscribed by me in the presence of the Settlor and the subscribing
witnesses, all on this 12th day of December, 2003.
/s/ Linnette Fauroat
--------------------------------------------
(Signature of Officer)
(Print, type, or stamp commissioned name and
affix official seal)
Page 15
THE SILVERSTEIN FLP 2002, LTD
IRREVOCABLE TRUST OF 2003
SCHEDULE A
----------
Description Value
----------- -----
Cash $10.00
Dated this 12th day of December, 2003.
SETTLOR: Silverstein Family Limited Partnership
2002, LTD
/s/ Barry Silverstein
-----------------------------------------------
By: BARRY SILVERSTEIN, General Partner
TRUSTEE:
/s/ Barry Silverstein
-----------------------------------------------
BARRY SILVERSTEIN
Page 16
THE JMB FAMILY LIMTED PARTNERSHIP
IRREVOCABLE TRUST OF 2003
THIS AGREEMENT, made and executed in duplicate this 12th day of December,
2003 is by and between JMB Family Limited Partnership, as the Settlor, and BARRY
SILVERSTEIN as the Trustee.
WITNESSETH:
WHEREAS, the Settlor desires to establish, effective immediately, a trust
under all of the provisions of this Agreement, and the Trustee is willing to act
as Trustee hereunder.
NOW, THEREFORE, the parties do hereby agree and declare as follows:
ARTICLE I. PROPERTY SUBJECT TO THE TRUST
A. Initial Transfer to Trust. The Settlor irrevocably assigns, transfers,
and delivers to the Trustee all the rights, powers, interests, and benefits
which the Settlor now has or hereafter may have in all of the property described
in Schedule A annexed hereto, and the Trustee agrees to hold, manage, and
dispose of the trust property in the manner and subject to the provisions
contained in this Agreement.
B. Additional Transfers to Trust. The Settlor may from time to time
irrevocably assign, transfer, and deliver additional property to the Trustee
with the consent of the Trustee, which property shall be held, managed, and
disposed of by the Trustee in the manner and subject to the provisions contained
in this Agreement.
ARTICLE II. TRUSTEE SUCCESSION
A. Successor Trustee. It is the Settlor's intention BARRY SILVERSTEIN
shall serve as sole Trustee under this Agreement until the first to occur of the
Settlor's death or the expiration of the Trust Term, as hereinafter defined.
Should BARRY SILVERSTEIN fail to qualify or cease to serve as Trustee hereunder
for any reason, then a majority of the beneficiaries then entitled or permitted
to receive the income of such trust and the presumptive remaindermen of such
trust, or the legal or natural guardian of any of them who is then under a legal
disability, shall appoint an individual or a corporate fiduciary to serve as
Trustee of such trust.
B. Power to Appoint Co-Trustee or Successor Trustee. Any individual
Trustee at any time serving shall have the power to appoint an individual or a
corporate fiduciary to serve as successor Trustee to him or her. In addition,
all of the then acting Trustees of a trust shall, by unanimous vote, have the
power to appoint an individual or a corporate fiduciary to serve as Co-Trustee
of such trust. If at any time there is no Trustee serving hereunder, then a
majority of the beneficiaries (other than the Settlor) then entitled or
permitted to receive the income of such trust and the presumptive remaindermen
of such trust, or the legal or natural guardian (other than the Settlor) of any
of them who is then under a legal disability, shall appoint an individual or a
corporate fiduciary to serve as successor Trustee of such trust.
C. Removal of Corporate Trustee. Any corporate Trustee may be removed from
office at any time by (1) the individual Trustee or Trustees then serving, by
unanimous vote, or, if none, then by (2) a majority of the beneficiaries (other
than the Settlor) entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or the legal or natural guardian
(other than the Settlor) of any of them who is then under a legal disability. In
the event of the resignation or removal of the corporate Trustee of a trust, the
person or persons having the power of removal shall appoint a successor
corporate Trustee who is authorized to exercise trust powers either under the
law of the jurisdiction where such corporate Trustee is located or under the
national banking laws enacted by the Congress of the United States.
D. Right to Resign. Without limitation as to any other method of
resignation, any Trustee may resign as Trustee of any trust by giving prior
written notice of such intention to do so to the Co-Trustee(s), if any, and to
the beneficiaries entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or to the legal or natural guardian
of any of them who is then under a legal disability. In the event of such
resignation, the person or persons to whom such notice of resignation shall have
been given may, without liability to any person, approve the accounts of and
give a complete release and discharge to such resigning Trustee. Any Trustee who
resigns shall not receive any termination fee or commission that might otherwise
be payable by reason of termination of the trust or distribution of the trust
principal.
E. Method of Appointing or Removing Trustees. Any appointment or removal
of a Trustee (1) shall be made by a written instrument executed with the
formality required of a deed for the conveyance of real estate; (2) shall take
effect at the time and upon the conditions set forth in the instrument of
appointment or removal, subject, however, to the written acceptance of the
appointee (in the case of an appointment); and (3) may be revoked by a like
instrument at any time before the appointment or removal shall take effect.
F. Powers Exercisable by Third Party. The right to remove and/or appoint a
Trustee and the right to approve accountings and give a release to a resigning
Trustee shall be exercisable on behalf of any person by the holder of a durable
power of attorney (other than the Settlor) from that person or by the legal or
natural guardian (other than the Settlor) of any person who is then under a
legal disability.
G. Majority Rules. Unless expressly provided to the contrary in this
Article, if the right to appoint a Trustee shall be exercisable by two (2)
persons collectively, this right shall be exercisable only by the unanimous
agreement of both of them. If the right to appoint a Trustee shall be
exercisable by three (3) or more persons collectively, the decision of a
majority of them shall control.
H. No Bond Required. No Trustee at any time serving in any jurisdiction
shall be required to furnish any bond or other security for the faithful
performance of the office of Trustee hereunder, qualify before any court,
register the trust, or file an accounting in any court as a condition for the
exercise of any of the powers and discretions herein conferred upon the Trustee.
This Paragraph shall not affect the right of any beneficiary hereunder to
require an accounting.
Page 2
I. Restrictions on Whom May Serve As Trustee. Notwithstanding any other
provision of this Agreement to the contrary, during the lifetime of the Settlor,
the Settlor may not serve as a Trustee hereunder or exercise any other rights
under this Article.
ARTICLE III. TRUST IRREVOCABLE
This Agreement and any trust created hereunder are irrevocable and
unamendable. The Settlor expressly waives all rights and powers, whether alone
or in conjunction with others, to alter, amend, revoke, or terminate this Trust
Agreement in whole or in part.
ARTICLE IV. DISTRIBUTION OF TRUST ESTATE DURING THE TRUST TERM
A. Trust Term. The Trust shall terminate on the first to occur of the
dissolution of the Settlor or January 31, 2004 (the "Trust Term"). During the
Trust Term, the Trustee may pay to or for the benefit of the Settlor so much or
all of the net income and principal of the Trust as the Trustee, in the
Trustee's discretion, deems to be for the best interest of the Settlor. Any net
income not paid or applied shall be accumulated and added to the principal of
the Trust at least annually.
B. Automatic Renewal. Anything in Paragraph IV.A to the contrary
notwithstanding, during the existance of the Settlor, this Agreement shall
automatically renew for successive one (1) year terms on January 31st of each
year unless the Settlor delivers to the Trustee written notice of the Settlor's
intention not to renew, no later than forty (40) days before the termination of
the then current term of this Agreement.
ARTICLE V. DISPOSITION OF TRUST UPON EXPIRATION OF TRUST TERM
A. Expiration of Trust Term while Settlor Remains in Existence. Upon the
expiration of the Trust Term during while the Settlor remains in existence, the
remaining trust property shall be distributed to the Settlor, outright and free
of trust.
B. Expiration of Trust Term After Dissolution of the Settlor. Upon the
dissolution of the Settlor's during the Trust Term, the remaining trust property
shall be distributed to or among or for the benefit of such individuals,
corporations, charities qualified under ss.501(c)(3) of the Code, or other
entities that owned an interest in the Settlor at the time Settlor was
dissolved, in proportion to each such interest holder's proportionate ownership
of Settlor.
ARTICLE VI. AS TO THE TRUSTEE
A. Situs and Governing Law. This Agreement and each trust established
hereunder shall have an initial situs in the State of Florida and shall be
governed by the laws of the State of Florida. The Trustee may, in the Trustee's
discretion, change the situs of any trust established hereunder to a
jurisdiction other than the State of Florida. A change of situs shall not affect
the validity or construction of any trust hereunder or create in any beneficiary
any right or power other than those to which such beneficiary was then entitled
in the State of Florida.
Page 3
B. Certification Regarding Prior Administration. Any successor Trustee is
specifically authorized to accept the trust assets as the same may be certified
to such Trustee by any prior Trustee or as may be approved by the beneficiaries
then entitled or permitted to receive the income of such trusts (or the legal or
natural guardian of any of them who is then under a legal disability), without
the necessity of a full accounting or inquiry into the prior administration of
the trust by any prior Trustee.
C. Delegation of Powers. Any Trustee may delegate to another Trustee the
right to exercise any power (discretionary, administrative, or otherwise) by an
acknowledged instrument and may revoke the delegation at any time by delivery of
an acknowledged instrument to such other Trustee.
D. Termination of Fiduciary Capacity. Any individual Trustee shall be
deemed to have ceased to serve as Trustee of a trust upon the first to occur of
the following:
1. Unable to Manage Financial Affairs. Receipt by the remaining
Trustee(s), if any, and by the beneficiaries then entitled or permitted to
receive the income of such trust (or the legal or natural guardian of any
of them who is then under a legal disability) of a certificate or letter
from a medical doctor stating that he or she is the individual Trustee's
physician and that, because of illness or incapacity of any kind of said
individual Trustee, the Trustee is unable to manage financial affairs; or
2. Appointment of Guardian. Upon the appointment of a guardian of the
person or property or conservator of such individual Trustee; or
3. Death or Resignation. Upon the death or resignation of such individual
Trustee.
E. Custody of Trust Estate. While acting hereunder, the corporate Trustee
(or its agent) shall have the sole custody of the assets constituting the trust
estate and each trust or share thereof, and shall be responsible for the
maintenance of adequate records reflecting the condition of the trust and the
income and expenses thereof. Such records shall be open at all times to
inspection by the individual Trustee, if any, or by the respective beneficiaries
of the trust, or the legal representatives or attorneys of such persons.
F. Trustee Compensation. Any corporate Trustee shall receive compensation
as determined by its standard fee schedule in effect and applicable at the time
of the performance of its services, unless otherwise agreed to in writing by the
corporate Trustee. If no such schedule shall be in effect at that time or if no
such writing exists, it shall be entitled to reasonable compensation for the
services rendered. Any Trustee shall be reimbursed for reasonable expenses
incurred in serving as Trustee.
G. Trustee Exonerated. The Trustee shall be responsible for only due
diligence in the administration and disbursement of any trust created hereunder
and shall not be responsible for any loss or subject to any liability except by
reason of the Trustee's own negligence or willful default proved by affirmative
evidence. Every election, determination, or other exercise by the Trustee of any
discretion granted to the Trustee, expressly or by implication under this
Agreement or by law made in good faith, shall fully protect the Trustee and
shall be conclusive and binding upon all persons. This Paragraph shall be
binding on all interested parties hereunder, and the Trustee shall be
indemnified and held harmless by the trust estate for any claim, demand, or suit
Page 4
arising with respect to any decision of the Trustee in the administration of the
trust estate other than for the Trustee's gross negligence.
ARTICLE VII. ADMINISTRATIVE POWERS OF TRUSTEE
The Trustee shall have the following powers in addition to all powers now
or hereafter conferred upon trustees by law:
A. Invest Trust Property. To invest and reinvest the trust property in
property of any character, foreign or domestic, specifically including, but not
limited to, real estate, business enterprises of any nature, investment
partnerships, stocks, bonds, notes, debentures, warrants, puts, calls, options,
futures contracts, trust receipts, commodities, leases, contracts, United States
securities, interests in trusts, money market funds, mutual funds, common trust
funds (including those maintained by any corporate trustee or any affiliate
thereof), repurchase agreements, and securities exempt from income tax
(notwithstanding that higher yields may be obtained by investment in securities
not so exempt), or in any other property or undivided interests in property,
wherever located, without being limited by any statute or rule of law concerning
investments by trustees and without any requirement for diversification;
B. Margin Account Usage. The Trustee shall have the discretion to
establish, maintain, make investments on margin, and use a margin investment
account for such purposes as the Trustee deems reasonable and prudent. No person
dealing with the Trustee need see to the use or application of margin proceeds
nor place limitations or restrictions upon the Trustee in the maintenance of a
margin account;
C. Retain Trust Assets. To retain as a part of any trust any and all
assets transferred to or acquired by the Trustee, so long as the Trustee deems
it appropriate to do so, regardless of whether said assets are the kind and
class authorized by law for the investment of trust funds and without regard to
principles of diversification;
D. Establish Bank and Brokerage Accounts. To retain principal and income
cash funds in interest and non-interest bearing checking, savings, money market,
brokerage, and NOW accounts, for such reasonable period of time as the Trustee
may determine, pending investment or distribution to the beneficiaries
hereunder;
E. Deal In Real or Personal Property. With respect to any interest in real
or personal property, (i) to lease, including, without limitation, the power to
negotiate a lease and execute a lease; (ii) to exchange; (iii) to sell and
convey, including, without limitation, the power to locate a purchaser, to
accept and execute a contract for sale, and to execute deeds, bills of sale, and
other closing documents necessary or advisable in the discretion of the Trustee;
or (iv) to make any other disposition in public or private transactions deemed
necessary or advisable in the discretion of the Trustee. No notice to or the
consent of any beneficiary shall be required for any action taken under this
Paragraph, and the Trustee shall be entitled to employ brokers and agents and
pay them reasonable compensation for such purposes;
F. Borrow and Lend Money. To borrow such sums of money at any time and
from time to time for such periods of time upon such terms and conditions from
such persons or corporations (including any trustee hereunder) and for such
purposes as may be deemed appropriate, and to secure such loans by the pledge or
Page 5
hypothecation of any property held hereunder, and the lender shall have no
obligation to inquire as to the application of the sums loaned or as to the
necessity, expediency, or propriety of the loan; to loan money to any person or
entity, including a beneficiary, upon such terms and conditions, with adequate
interest and security, and for such purposes as the Trustee may deem advisable;
G. Make Nominee Registrations. To register any securities or other
property or any interest in property, in the name of any nominee or nominees,
without describing the fiduciary capacity, and to hold any securities in bearer
form;
H. Maintain Custody Accounts. To maintain custody or margin accounts with
any banks, brokers, or trust companies, and to maintain safekeeping vaults;
I. Exercise Ownership Rights. To exercise all ownership rights, including,
without limitation of generality, voting and subscription rights; and to
otherwise exercise any and all rights and powers, and deal in and with
securities at any time held hereunder, in the same manner and to the same extent
as any individual owner and holder thereof might do;
J. Purchase Investments at Premium. To purchase investments at a premium
and in the case of investments which have been purchased or otherwise acquired
at a premium and which are callable or have fixed maturities, to amortize such
premiums by charges against income;
K. Pay, Compromise, Settle, or Abandon Claims. To pay, compromise, settle,
object to or abandon all claims and demands in favor of or against the trust
estate (specifically including any claim that may arise out of any income, gift,
or death taxes);
L. Deal With Other Fiduciaries. To receive assets from any source and to
enter into any transaction authorized by this Article with the legal
representatives of any other estate or with the trustees of any other trust
estate in which any beneficiary hereunder has a beneficial interest, even though
any of such legal representatives or trustees is also a fiduciary hereunder;
M. Distribute Income and Principal. To distribute income and principal in
cash or in kind, or partly in each, and to allocate or distribute undivided
interests of different assets or disproportionate interests in assets, and no
adjustment shall be made to compensate for a disproportionate allocation of
unrealized gain for federal income tax purposes, provided that any distribution
to or for the benefit of a charitable organization described in ss.170(c) and
ss.2055(a) of the Code shall be made, to the extent possible, from assets which
produce income in respect of a decedent ("IRD");
N. Participate in Corporate Transactions. To participate in and to consent
to any plan of reorganization, recapitalization, consolidation, merger,
combination, dissolution, liquidation, or similar plan and any action
thereunder, including, but not limited to, the deposit of any property with any
protective, reorganization, or similar committee, the delegation of
discretionary powers thereto, and the sharing in the payment of its expenses and
compensation and the payment of any assessments levied with respect to such
property; and to receive and retain property under any such plan whether or not
the same is of the kind in which fiduciaries are authorized by law or any rule
of court to invest funds;
O. Allocate Items to Income. To allocate to income (unless otherwise
directed herein) all interest, all rental income not set aside as a reserve for
depreciation, and all cash dividends or other cash distributions (whether
Page 6
ordinary or extraordinary) received from any source, including, but not limited
to, cash dividends received from investment companies or investment trusts;
P. Allocate Items to Principal. To allocate to principal (unless otherwise
directed herein) all capital gains and all dividends and distributions payable
in property or in stocks, bonds, or other securities whether of the disbursing
company or another company;
Q. Make Discretionary Allocations to Income or Principal. To allocate to
income or to principal as shall be deemed appropriate, in the fiduciary's
absolute discretion, without liability to any beneficiary, (1) any dividend or
distribution, the allocation of which is not ascertainable under the preceding
two subparagraphs; (2) expenses of administration in a reasonable manner
consistent with applicable state law and optimal tax results; and (3) the
payment of Florida intangible personal property tax;
R. Employ Professionals. To employ investment counsel, accountants,
depositories, custodians, brokers, consultants, agents, attorneys, and other
employees, irrespective of whether any person so employed shall be a Trustee
hereunder and irrespective of whether any firm or corporation so employed shall
be one in which a Trustee hereunder shall be a partner, stockholder, member,
officer, or director, or shall have any interest, and to pay the usual
compensation for his, her, its, or their services out of principal or income as
may be deemed appropriate; and such compensation may be paid without diminution
of or charging the same against the commissions or compensation of any Trustee
hereunder; and any Trustee who shall be a partner, stockholder, member, officer,
or director in any such firm or corporation shall nevertheless receive his share
of the compensation paid to such firm or corporation;
S. Make Distributions to Minors. To effect distribution to a minor by
distributing the same to a custodian for such minor under the Uniform Transfers
to Minors Act (or corresponding provision of law) in effect in the jurisdiction
where the minor resides, or elsewhere, and to select such a custodian for such
minor, including a Trustee named herein;
T. Transfer Assets to Alternative Situs. To transfer the assets of any
trust for purposes of administration to another situs and to appoint, if
necessary, as a special Trustee, any individual or corporation authorized under
the laws of the United States or any state to administer or to co-administer
such trust and to remove any special Trustee and reappoint themselves;
U. Incorporate Business. To continue to operate or participate in the
operation of any unincorporated business for as long as the Trustee deems
appropriate to so do; to incorporate or to participate in the incorporation of
any business, and to operate such newly incorporated business; and to liquidate,
merge, consolidate, spin-off, or reorganize any business in such manner and upon
such terms as the Trustee deems appropriate;
V. Conduct Business Interests. To conduct any business interests owned
alone or with others for whatever period of time the Trustee deems appropriate
with all powers of an owner with respect thereto, including, but not limited to,
the power to borrow money and pledge estate or trust property as security
therefor, or to delegate such powers to any partner, manager, or employee; to
dispose of any such business or any assets thereof, at public or private sale,
upon such terms and conditions as the Trustee deems appropriate; to form
Page 7
partnerships or corporations to carry on such business, and to contribute any
estate or trust property as capital thereof; and to employ, elect, or permit to
be retained any Trustee as a director, officer, or employee of such business
entity;
W. Divide Trusts. To divide any trust into separate trusts for any
purpose, such as allocating the generation-skipping transfer tax exemption so
that one or more of these trusts is entirely exempt from the federal
generation-skipping transfer tax, or electing to treat a separate trust as
qualified terminable interest property for federal estate tax purposes; and, in
investing and making distributions from the separate trusts, the Trustee shall
consider the tax saving opportunities afforded by the existence of separate
trusts;
X. Direct Distribution if Trust Not Operative. To distribute property
directly to the beneficiary of a trust, without the interposition of such trust,
if at the time of distribution the circumstances are such that the trust would
have been paid out to the beneficiary immediately upon funding of the trust;
Y. Collapse of Trust. If at any time the Trustee, in the Trustee's
absolute discretion, shall determine that it is uneconomical or not in the best
interest of the beneficiaries to continue any trust created hereunder, the
Trustee, in the Trustee's absolute discretion, may terminate such trust and
distribute the trust property to the person or persons, or to the legal
representative of such person or persons, then entitled or permitted to receive
or have the benefit of the income therefrom. If there is more than one income
beneficiary, the Trustee shall make such distribution to such income
beneficiaries in the proportion in which they are beneficiaries or, if no
proportion is designated, in equal shares to such beneficiaries. This power
shall not be exercised by any Trustee who is also a beneficiary of such trust;
Z. Pool Assets. To pool the assets of any or all trusts hereunder for
investment purposes, allocating to each trust an undivided interest in all
assets so held; and to merge any trust with any other trust held by the Trustee,
whether created by a Guardian or by any other person by Will or Deed, if the
terms thereof are substantially similar and held for the primary benefit of the
same persons;
AA. Purchase Policies of Insurance. To purchase new or existing policies
of insurance, from any source, on the life of any person;
BB. Sell or Purchase Assets to or from Settlor's Estate. To sell or
purchase, at the fair market value as determined by the Trustee, and to lend or
borrow, at an adequate rate of interest and with adequate security and upon such
terms and conditions as the Trustee deems fair and equitable, any property to or
from the Settlor's estate, the Settlor's spouse's estate, or any trust created
by the Settlor or the Settlor's spouse during life or by Will, even though the
same person or corporation may be acting as Personal Representative of the
Settlor's estate or of the Settlor's spouse's estate or as Trustee of any such
trust and as Trustee of this Trust.
ARTICLE VIII. BENEFICIARY UNDER DISABILITY
A. Minors. If any property shall become distributable to a minor, it shall
vest absolutely in the minor, but the Trustee may retain such property with all
of the rights, powers, duties, and discretions which are herein granted to the
Trustee elsewhere in this Agreement. In that event, the Trustee shall invest and
Page 8
reinvest such property and pay to or apply for the benefit of the minor so much
or all of the net income and principal of such retained property as the Trustee
deems appropriate for the minor's best interests, accumulating any net income
not so paid or applied and adding such accumulated net income to principal, at
least annually. When the minor attains majority, the Trustee shall distribute
such retained property as then constituted to the minor. If the minor dies
before attaining majority, the Trustee shall distribute such retained property
to the deceased minor's estate.
B. Adult Beneficiary. If in the opinion of the Trustee any adult
beneficiary is unable to properly disburse the income or principal to which the
beneficiary may be entitled, the Trustee may retain such property and pay to or
apply for the benefit of the beneficiary all or part of such income or principal
as the Trustee deems advisable in the best interest of the beneficiary.
C. Application to Beneficiary. In applying income or principal for the
benefit of any beneficiary, the Trustee is authorized in the Trustee's
discretion to expend such amounts for the best interest of the beneficiary in
one or more of the following methods as the Trustee deems appropriate:
1. Minor, Incompetent or Incapacitated Beneficiary. By delivering any such
amount to the natural, general, or testamentary guardian of any
beneficiary, or to a custodian for any beneficiary under the Uniform
Transfers to Minors Act or similar law, or to any individual or entity
having the care, custody, or control of any such beneficiary, or with whom
such beneficiary may reside, or to the committee, guardian, or conservator
of any beneficiary who shall have been adjudicated an incompetent; or
2. Beneficiary. By delivering any such amount to such beneficiary,
personally; or
3. Beneficiary's Behalf. By making direct expenditures for the best
interest of such beneficiary.
D. Payment. The receipt of any such guardian, custodian, committee,
conservator, individual, entity, or beneficiary, or evidence of such payment or
expenditure of any such amount, shall be a full and sufficient discharge to the
Trustee for the payment or expenditure thereof, and the Trustee shall be
exonerated from all liability and responsibility by reason of any amount so
delivered, paid, or expended irrespective of the application or use thereof that
may be made by any such person; and the Trustee shall have no duty to see to the
application of any such amount.
ARTICLE IX. RESTRICTIONS, LIMITATIONS, AND POWERS REGARDING THE TRUST, TRUSTEE,
AND BENEFICIARIES
A. Perpetuities. Regardless of any contrary provision of this Agreement,
no assets shall be held in trust for a period longer than the longest statutory
period permitted under the applicable rule against perpetuities, as it is then
in force and effect, and, upon the expiration of such period, all such trusts
shall terminate, and the Trustee shall distribute the trust property to the
person or persons, or to the legal representative of such person or persons,
then entitled or permitted to receive or have the benefit of the income
therefrom. If there is more than one income beneficiary, the Trustee shall make
such distribution to such income beneficiaries in the proportion in which they
are beneficiaries or, if no proportion is designated, in equal shares to such
beneficiaries.
Page 9
B. Restrictions on Individual Trustee. No individual Trustee, who is also
a beneficiary of any trust, shall participate in the exercise of any discretion
granted to the Trustee to (i) pay or apply the net income or principal of such
trust to or for the benefit of himself or herself, including the termination of
such trust, except to provide for his or her health, education, maintenance, or
support as set forth under ss.ss.2041(b)(1)(A) and 2514(c)(1) of the Code; or
(ii) to exercise any discretion with respect to crediting or charging any item
to income or principal otherwise than as provided by law. In addition, any
Trustee who is under a legal obligation to support a beneficiary of any trust
shall not participate in the exercise of any discretion granted to the Trustee
to pay or apply the net income or principal of such trust in discharge of that
legal obligation.
C. Restrictions on Beneficiaries. No beneficiary of any trust shall have
any right or power to pledge, assign, sell, transfer, or encumber his or her
interest in any trust hereunder, nor shall any such interest be liable for or
subject to the debts, judgments, or other obligations of such beneficiary or to
claims of any sort against such beneficiary.
D. Power of Appointment.
1. Power to Appoint to Creditors. If a trust under this Agreement would,
but for the provisions of this Paragraph, be liable for
generation-skipping tax at the death of a beneficiary, such beneficiary
shall have the power to appoint to such beneficiary's creditors, by a Will
expressly referring to and exercising this power, the smallest fractional
share of such trust that would reduce to the minimum the aggregate estate,
inheritance, succession, and generation-skipping taxes payable upon such
beneficiary's death, assuming no deductions are allowed with respect to
the appointive property.
2. Payment of Taxes. If any beneficiary under this Agreement incurs any
estate or inheritance tax liability due to the inclusion of a portion or
all of a trust established hereunder in the beneficiary's gross estate for
federal estate tax purposes by reason of a power of appointment, then any
such tax attributable to such power of appointment shall be paid from such
beneficiary's separate trust prior to being distributed to the remainder
beneficiaries of such trust. The tax attributable to such power of
appointment shall be the excess of (1) the total amount of all federal and
state estate, inheritance, succession, and other death taxes, together
with any acquirer's taxes, including interest and penalties thereon,
imposed upon such beneficiary's estate (or imposed as an acquirer's tax on
any beneficiary) over (2) the amount of such taxes, interest, and
penalties that would have been imposed if no part of such power of
appointment property had been included in the beneficiary's gross estate
for purposes of any such tax.
Page 10
E. Prohibitions. No person shall purchase, exchange, or otherwise deal
with or dispose of the principal or income of the Trust for less than an
adequate consideration in money or money's worth, nor shall any person borrow
the principal or income of the trust estate, directly or indirectly, without
adequate interest or security.
ARTICLE X. SURVIVORSHIP CLAUSE
A. Beneficiaries. If any beneficiary dies within ninety (90) days after
the death of the Settlor, then for purposes of applying and interpreting this
Agreement such beneficiary shall be deemed conclusively to have predeceased the
Settlor.
B. Beneficiary Whose Life Measures Duration of a Trust. If any person
whose life measures the duration of a trust hereunder and any succeeding trust
beneficiary, including any remainderman of such trust, die under such
circumstances that there is reasonable doubt as to who died first, then for
purposes of applying and interpreting this Agreement such person whose life
measures the duration of such trust shall be deemed conclusively to have
survived such succeeding trust beneficiary or remainderman, as the case may be.
ARTICLE XI. CONSTRUCTION AND DEFINITIONS
Unless the context indicates that a different meaning is intended, for all
purposes of this Agreement:
A. Construction.
1. The singular number shall include the plural number and the
plural number shall include the singular number;
2. The use of any gender shall be applicable to all genders.
B. Definitions.
1. The words "child" and "children" shall mean descendants of the
first degree only, and the word "issue" shall mean descendants of
the first, second, or more remote degree;
2. The words "child," "children," and "issue" shall include any
person legally adopted prior to attaining the age of eighteen (18)
years and the issue of any such adopted person;
3. The word "issue" shall include any issue in gestation at the time
for determination hereunder later born alive (en ventre sa mere);
4. The term "Code" shall mean the Internal Revenue Code of 1986, as
now and hereafter amended, and shall include any corresponding
provisions of the federal tax law which may from time to time be in
effect;
Page 11
5. The term "education" may include, but shall not be limited to,
expenses of tuition, books, incidentals in any way related thereto,
and all other services, items, and things required in connection
with any course of study (including vocational apprenticeships,
internships, and residencies). Such expenses shall also include the
travel and living expenses incurred in connection with a
beneficiary's attendance at any educational institution. It is the
Settlor's intent that the term "educational institution," as used
herein, shall include, without limitation, private schools,
colleges, universities, trade schools, and graduate schools;
6. The word "minor" shall mean a person under the age of twenty-one
(21) years;
7. The term "Trustee" shall include both the singular and the plural
and whenever used herein shall mean all trustees at any time serving
and however appointed, including any successor trustee and any
additional trustee appointed or required to act in any jurisdiction;
8. The term "trust estate" shall include all property listed on the
attached Schedule A, and all investments and reinvestments thereof
and additions thereto;
9. If the Settlor and the Settlor's spouse are not married or if
there is any action filed or pending, or any judgment entered, for
dissolution of the marriage, divorce, legal separation, or support
without divorce, or any form of legal proceeding to compel support
or distribution of property or income, at the time of the Settlor's
death or at any such time as the Settlor's spouse would become
entitled to any benefit hereunder or have any power of appointment
or withdrawal pursuant to the terms of this Agreement, or if the
Settlor's spouse is serving as Trustee or has been nominated as a
successor Trustee, then the Settlor's spouse shall be deemed to have
predeceased the Settlor for all purposes of this Agreement.
ARTICLE XII. HEADINGS FOR REFERENCE ONLY
The headings contained in this Agreement are for reference purposes only
and are not intended to describe, interpret, define, or limit the scope, extent,
or intent of this Agreement or any provision hereof.
Page 12
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
SETTLOR: JMB Family Limited Partnership
By: /s/ Barry Silverstein (Seal)
---------------------------------------
BARRY SILVERSTEIN, General Partner
SIGNED, SEALED, PUBLISHED, AND DECLARED by the said BARRY SILVERSTEIN, as
General Partner, as and for the Settlor's Trust Agreement, in the presence of
the undersigned, who, at the Settlor's request and in the Settlor's presence and
in the presence of each other, have hereunto subscribed our names as witnesses
thereto, the day and year first above written.
/s/ Jeffrey McCurdy residing at 4862 Edgemont Ct.
------------------------------------------ --------------------------
Sarasota, FL 34233
---------------------------
/s/ Simon J. Jaspers residing at 4071 Giannini Ln
------------------------------------------ --------------------------
Sarasota, FL 34233
---------------------------
TRUSTEE:
By: /s/ Barry Silverstein (Seal)
---------------------------------------
BARRY SILVERSTEIN
Page 13
STATE OF FLORIDA
COUNTY OF Sarasota
--------
ON THIS DAY before me, the undersigned authority, personally appeared
Barry Silverstein, who:
|X| is personally known to me OR
|_| has produced ________________________________ as identification
and who acknowledged to me that he/she is the person described in and who
executed the foregoing Trust Agreement as the Settlor and that he/she
executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 12th day of December, 2003.
(Notary Seal) /s/ Linnette Fauroat
----------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
----------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 3, 2006
-----------------------
My Commission Number: DD 087555
------------------------
STATE OF FLORIDA
COUNTY OF Sarasota
--------
ON THIS DAY before me, the undersigned authority, personally appeared
Barry Silverstein, who:
|X| is personally known to me OR
|_| has produced _______________________________ as identification
and who acknowledged to me that he/she is the person described in and who
executed the foregoing Trust Agreement as the Trustee and that he/she
executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 12th day of December, 2003.
(Notary Seal) /s/ Linnette Fauroat
----------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
----------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 3, 2006
-----------------------
My Commission Number: DD 087555
------------------------
Page 14
AFFIDAVIT OF PROOF OF TRUST AGREEMENT
STATE OF FLORIDA
COUNTY OF Sarasota
--------
I, BARRY SILVERSTEIN, General Partner of JMB Family Limited Partnership,
declare to the officer taking my acknowledgment of this instrument, and to the
subscribing witnesses, that I signed this instrument as a Trust Agreement.
/s/ Barry Silverstein
----------------------------------------------
BARRY SILVERSTEIN as General Partner, Settlor
We, Jeffrey McCurdy and Simon J. Jaspers, have been sworn by the officer
signing below, and declare to that officer on our oaths that the Settlor
declared the instrument to be the Settlor's Trust Agreement and signed it in our
presence and that we each signed the instrument as a witness in the presence of
the Settlor and of each other.
/s/ Jeffrey McCurdy
----------------------------------------------
Witness
/s/ Simon J. Jaspers
----------------------------------------------
Witness
Acknowledged and subscribed before me by the Settlor, BARRY SILVERSTEIN,
General Partner, who is personally known to me or who has produced personally
known as identification, and sworn to and subscribed before me by the witnesses,
____________________________ who is personally known to me or who has produced
personally known as identification and _______________________________ who is
personally known to me or who has produced personally known as identification,
and subscribed by me in the presence of the Settlor and the subscribing
witnesses, all on this 12th day of December, 2003.
/s/ Linnette Fauroat
----------------------------------------------
(Signature of Officer)
(Print, type, or stamp commissioned name and
affix official seal)
Page 15
THE JMB FAMILY LIMITED PARTNERSHIP
IRREVOCABLE TRUST OF 2003
SCHEDULE A
Description Value
----------- -----
Cash $10.00
Dated this 12th day of December, 2003.
SETTLOR: JMB Family Limited Partnership
/s/ Barry Silverstein
----------------------------------------------
By: BARRY SILVERSTEIN, General Partner
TRUSTEE:
/s/ Barry Silverstein
----------------------------------------------
BARRY SILVERSTEIN
Page 16
THE MTSB FLP 2003
IRREVOCABLE TRUST AGREEMENT
THIS AGREEMENT, made and executed in duplicate this 12th day of December,
2003 is by and between MTSB Family Limited Partnership, as the Settlor, and
BARRY SILVERSTEIN as the Trustee.
WITNESSETH:
WHEREAS, the Settlor desires to establish, effective immediately, a trust
under all of the provisions of this Agreement, and the Trustee is willing to act
as Trustee hereunder.
NOW, THEREFORE, the parties do hereby agree and declare as follows:
ARTICLE I. PROPERTY SUBJECT TO THE TRUST
A. Initial Transfer to Trust. The Settlor irrevocably assigns, transfers,
and delivers to the Trustee all the rights, powers, interests, and benefits
which the Settlor now has or hereafter may have in all of the property described
in Schedule A annexed hereto, and the Trustee agrees to hold, manage, and
dispose of the trust property in the manner and subject to the provisions
contained in this Agreement.
B. Additional Transfers to Trust. The Settlor may from time to time
irrevocably assign, transfer, and deliver additional property to the Trustee
with the consent of the Trustee, which property shall be held, managed, and
disposed of by the Trustee in the manner and subject to the provisions contained
in this Agreement.
ARTICLE II. TRUSTEE SUCCESSION
A. Successor Trustee. It is the Settlor's intention BARRY SILVERSTEIN
shall serve as sole Trustee under this Agreement until the first to occur of the
Settlor's death or the expiration of the Trust Term, as hereinafter defined.
Should BARRY SILVERSTEIN fail to qualify or cease to serve as Trustee hereunder
for any reason, then a majority of the beneficiaries then entitled or permitted
to receive the income of such trust and the presumptive remaindermen of such
trust, or the legal or natural guardian of any of them who is then under a legal
disability, shall appoint an individual or a corporate fiduciary to serve as
Trustee of such trust.
B. Power to Appoint Co-Trustee or Successor Trustee. Any individual
Trustee at any time serving shall have the power to appoint an individual or a
corporate fiduciary to serve as successor Trustee to him or her. In addition,
all of the then acting Trustees of a trust shall, by unanimous vote, have the
power to appoint an individual or a corporate fiduciary to serve as Co-Trustee
of such trust. If at any time there is no Trustee serving hereunder, then a
majority of the beneficiaries (other than the Settlor) then entitled or
permitted to receive the income of such trust and the presumptive remaindermen
of such trust, or the legal or natural guardian (other than the Settlor) of any
of them who is then under a legal disability, shall appoint an individual or a
corporate fiduciary to serve as successor Trustee of such trust.
C. Removal of Corporate Trustee. Any corporate Trustee may be removed from
office at any time by (1) the individual Trustee or Trustees then serving, by
unanimous vote, or, if none, then by (2) a majority of the beneficiaries (other
than the Settlor) entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or the legal or natural guardian
(other than the Settlor) of any of them who is then under a legal disability. In
the event of the resignation or removal of the corporate Trustee of a trust, the
person or persons having the power of removal shall appoint a successor
corporate Trustee who is authorized to exercise trust powers either under the
law of the jurisdiction where such corporate Trustee is located or under the
national banking laws enacted by the Congress of the United States.
D. Right to Resign. Without limitation as to any other method of
resignation, any Trustee may resign as Trustee of any trust by giving prior
written notice of such intention to do so to the Co-Trustee(s), if any, and to
the beneficiaries entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or to the legal or natural guardian
of any of them who is then under a legal disability. In the event of such
resignation, the person or persons to whom such notice of resignation shall have
been given may, without liability to any person, approve the accounts of and
give a complete release and discharge to such resigning Trustee. Any Trustee who
resigns shall not receive any termination fee or commission that might otherwise
be payable by reason of termination of the trust or distribution of the trust
principal.
E. Method of Appointing or Removing Trustees. Any appointment or removal
of a Trustee (1) shall be made by a written instrument executed with the
formality required of a deed for the conveyance of real estate; (2) shall take
effect at the time and upon the conditions set forth in the instrument of
appointment or removal, subject, however, to the written acceptance of the
appointee (in the case of an appointment); and (3) may be revoked by a like
instrument at any time before the appointment or removal shall take effect.
F. Powers Exercisable by Third Party. The right to remove and/or appoint a
Trustee and the right to approve accountings and give a release to a resigning
Trustee shall be exercisable on behalf of any person by the holder of a durable
power of attorney (other than the Settlor) from that person or by the legal or
natural guardian (other than the Settlor) of any person who is then under a
legal disability.
G. Majority Rules. Unless expressly provided to the contrary in this
Article, if the right to appoint a Trustee shall be exercisable by two (2)
persons collectively, this right shall be exercisable only by the unanimous
agreement of both of them. If the right to appoint a Trustee shall be
exercisable by three (3) or more persons collectively, the decision of a
majority of them shall control.
H. No Bond Required. No Trustee at any time serving in any jurisdiction
shall be required to furnish any bond or other security for the faithful
performance of the office of Trustee hereunder, qualify before any court,
register the trust, or file an accounting in any court as a condition for the
exercise of any of the powers and discretions herein conferred upon the Trustee.
This Paragraph shall not affect the right of any beneficiary hereunder to
require an accounting.
Page 2
I. Restrictions on Whom May Serve As Trustee. Notwithstanding any other
provision of this Agreement to the contrary, during the lifetime of the Settlor,
the Settlor may not serve as a Trustee hereunder or exercise any other rights
under this Article.
ARTICLE III. TRUST IRREVOCABLE
This Agreement and any trust created hereunder are irrevocable and
unamendable. The Settlor expressly waives all rights and powers, whether alone
or in conjunction with others, to alter, amend, revoke, or terminate this Trust
Agreement in whole or in part.
ARTICLE IV. DISTRIBUTION OF TRUST ESTATE DURING THE TRUST TERM
A. Trust Term. The Trust shall terminate on the first to occur of the
dissolution of the Settlor or January 31, 2004 (the "Trust Term"). During the
Trust Term, the Trustee may pay to or for the benefit of the Settlor so much or
all of the net income and principal of the Trust as the Trustee, in the
Trustee's discretion, deems to be for the best interest of the Settlor. Any net
income not paid or applied shall be accumulated and added to the principal of
the Trust at least annually.
B. Automatic Renewal. Anything in Paragraph IV.A to the contrary
notwithstanding, during the existance of the Settlor, this Agreement shall
automatically renew for successive one (1) year terms on January 31st of each
year unless the Settlor delivers to the Trustee written notice of the Settlor's
intention not to renew, no later than forty (40) days before the termination of
the then current term of this Agreement.
ARTICLE V. DISPOSITION OF TRUST UPON EXPIRATION OF TRUST TERM
A. Expiration of Trust Term while Settlor Remains in Existence. Upon the
expiration of the Trust Term during while the Settlor remains in existence, the
remaining trust property shall be distributed to the Settlor, outright and free
of trust.
B. Expiration of Trust Term After Dissolution of the Settlor. Upon the
dissolution of the Settlor's during the Trust Term, the remaining trust property
shall be distributed to or among or for the benefit of such individuals,
corporations, charities qualified under ss.501(c)(3) of the Code, or other
entities that owned an interest in the Settlor at the time Settlor was
dissolved, in proportion to each such interest holder's proportionate ownership
of Settlor.
ARTICLE VI. AS TO THE TRUSTEE
A. Situs and Governing Law. This Agreement and each trust established
hereunder shall have an initial situs in the State of Florida and shall be
governed by the laws of the State of Florida. The Trustee may, in the Trustee's
discretion, change the situs of any trust established hereunder to a
jurisdiction other than the State of Florida. A change of situs shall not affect
the validity or construction of any trust hereunder or create in any beneficiary
any right or power other than those to which such beneficiary was then entitled
in the State of Florida.
Page 3
B. Certification Regarding Prior Administration. Any successor Trustee is
specifically authorized to accept the trust assets as the same may be certified
to such Trustee by any prior Trustee or as may be approved by the beneficiaries
then entitled or permitted to receive the income of such trusts (or the legal or
natural guardian of any of them who is then under a legal disability), without
the necessity of a full accounting or inquiry into the prior administration of
the trust by any prior Trustee.
C. Delegation of Powers. Any Trustee may delegate to another Trustee the
right to exercise any power (discretionary, administrative, or otherwise) by an
acknowledged instrument and may revoke the delegation at any time by delivery of
an acknowledged instrument to such other Trustee.
D. Termination of Fiduciary Capacity. Any individual Trustee shall be
deemed to have ceased to serve as Trustee of a trust upon the first to occur of
the following:
1. Unable to Manage Financial Affairs. Receipt by the remaining
Trustee(s), if any, and by the beneficiaries then entitled or
permitted to receive the income of such trust (or the legal or
natural guardian of any of them who is then under a legal
disability) of a certificate or letter from a medical doctor stating
that he or she is the individual Trustee's physician and that,
because of illness or incapacity of any kind of said individual
Trustee, the Trustee is unable to manage financial affairs; or
2. Appointment of Guardian. Upon the appointment of a guardian of
the person or property or conservator of such individual Trustee; or
3. Death or Resignation. Upon the death or resignation of such
individual Trustee.
E. Custody of Trust Estate. While acting hereunder, the corporate Trustee
(or its agent) shall have the sole custody of the assets constituting the trust
estate and each trust or share thereof, and shall be responsible for the
maintenance of adequate records reflecting the condition of the trust and the
income and expenses thereof. Such records shall be open at all times to
inspection by the individual Trustee, if any, or by the respective beneficiaries
of the trust, or the legal representatives or attorneys of such persons.
F. Trustee Compensation. Any corporate Trustee shall receive compensation
as determined by its standard fee schedule in effect and applicable at the time
of the performance of its services, unless otherwise agreed to in writing by the
corporate Trustee. If no such schedule shall be in effect at that time or if no
such writing exists, it shall be entitled to reasonable compensation for the
services rendered. Any Trustee shall be reimbursed for reasonable expenses
incurred in serving as Trustee.
G. Trustee Exonerated. The Trustee shall be responsible for only due
diligence in the administration and disbursement of any trust created hereunder
and shall not be responsible for any loss or subject to any liability except by
reason of the Trustee's own negligence or willful default proved by affirmative
evidence. Every election, determination, or other exercise by the Trustee of any
discretion granted to the Trustee, expressly or by implication under this
Agreement or by law made in good faith, shall fully protect the Trustee and
shall be conclusive and binding upon all persons. This Paragraph shall be
binding on all interested parties hereunder, and the Trustee shall be
Page 4
indemnified and held harmless by the trust estate for any claim, demand, or suit
arising with respect to any decision of the Trustee in the administration of the
trust estate other than for the Trustee's gross negligence.
ARTICLE VII. ADMINISTRATIVE POWERS OF TRUSTEE
The Trustee shall have the following powers in addition to all powers
now or hereafter conferred upon trustees by law:
A. Invest Trust Property. To invest and reinvest the trust property in
property of any character, foreign or domestic, specifically including, but not
limited to, real estate, business enterprises of any nature, investment
partnerships, stocks, bonds, notes, debentures, warrants, puts, calls, options,
futures contracts, trust receipts, commodities, leases, contracts, United States
securities, interests in trusts, money market funds, mutual funds, common trust
funds (including those maintained by any corporate trustee or any affiliate
thereof), repurchase agreements, and securities exempt from income tax
(notwithstanding that higher yields may be obtained by investment in securities
not so exempt), or in any other property or undivided interests in property,
wherever located, without being limited by any statute or rule of law concerning
investments by trustees and without any requirement for diversification;
B. Margin Account Usage. The Trustee shall have the discretion to
establish, maintain, make investments on margin, and use a margin investment
account for such purposes as the Trustee deems reasonable and prudent. No person
dealing with the Trustee need see to the use or application of margin proceeds
nor place limitations or restrictions upon the Trustee in the maintenance of a
margin account;
C. Retain Trust Assets. To retain as a part of any trust any and all
assets transferred to or acquired by the Trustee, so long as the Trustee deems
it appropriate to do so, regardless of whether said assets are the kind and
class authorized by law for the investment of trust funds and without regard to
principles of diversification;
D. Establish Bank and Brokerage Accounts. To retain principal and income
cash funds in interest and non-interest bearing checking, savings, money market,
brokerage, and NOW accounts, for such reasonable period of time as the Trustee
may determine, pending investment or distribution to the beneficiaries
hereunder;
E. Deal In Real or Personal Property. With respect to any interest in real
or personal property, (i) to lease, including, without limitation, the power to
negotiate a lease and execute a lease; (ii) to exchange; (iii) to sell and
convey, including, without limitation, the power to locate a purchaser, to
accept and execute a contract for sale, and to execute deeds, bills of sale, and
other closing documents necessary or advisable in the discretion of the Trustee;
or (iv) to make any other disposition in public or private transactions deemed
necessary or advisable in the discretion of the Trustee. No notice to or the
consent of any beneficiary shall be required for any action taken under this
Paragraph, and the Trustee shall be entitled to employ brokers and agents and
pay them reasonable compensation for such purposes;
F. Borrow and Lend Money. To borrow such sums of money at any time and
from time to time for such periods of time upon such terms and conditions from
such persons or corporations (including any trustee hereunder) and for such
purposes as may be deemed appropriate, and to secure such loans by the pledge or
Page 5
hypothecation of any property held hereunder, and the lender shall have no
obligation to inquire as to the application of the sums loaned or as to the
necessity, expediency, or propriety of the loan; to loan money to any person or
entity, including a beneficiary, upon such terms and conditions, with adequate
interest and security, and for such purposes as the Trustee may deem advisable;
G. Make Nominee Registrations. To register any securities or other
property or any interest in property, in the name of any nominee or nominees,
without describing the fiduciary capacity, and to hold any securities in bearer
form;
H. Maintain Custody Accounts. To maintain custody or margin accounts with
any banks, brokers, or trust companies, and to maintain safekeeping vaults;
I. Exercise Ownership Rights. To exercise all ownership rights, including,
without limitation of generality, voting and subscription rights; and to
otherwise exercise any and all rights and powers, and deal in and with
securities at any time held hereunder, in the same manner and to the same extent
as any individual owner and holder thereof might do;
J. Purchase Investments at Premium. To purchase investments at a premium
and in the case of investments which have been purchased or otherwise acquired
at a premium and which are callable or have fixed maturities, to amortize such
premiums by charges against income;
K. Pay, Compromise, Settle, or Abandon Claims. To pay, compromise, settle,
object to or abandon all claims and demands in favor of or against the trust
estate (specifically including any claim that may arise out of any income, gift,
or death taxes);
L. Deal With Other Fiduciaries. To receive assets from any source and to
enter into any transaction authorized by this Article with the legal
representatives of any other estate or with the trustees of any other trust
estate in which any beneficiary hereunder has a beneficial interest, even though
any of such legal representatives or trustees is also a fiduciary hereunder;
M. Distribute Income and Principal. To distribute income and principal in
cash or in kind, or partly in each, and to allocate or distribute undivided
interests of different assets or disproportionate interests in assets, and no
adjustment shall be made to compensate for a disproportionate allocation of
unrealized gain for federal income tax purposes, provided that any distribution
to or for the benefit of a charitable organization described in ss.170(c) and
ss.2055(a) of the Code shall be made, to the extent possible, from assets which
produce income in respect of a decedent ("IRD");
N. Participate in Corporate Transactions. To participate in and to consent
to any plan of reorganization, recapitalization, consolidation, merger,
combination, dissolution, liquidation, or similar plan and any action
thereunder, including, but not limited to, the deposit of any property with any
protective, reorganization, or similar committee, the delegation of
discretionary powers thereto, and the sharing in the payment of its expenses and
compensation and the payment of any assessments levied with respect to such
property; and to receive and retain property under any such plan whether or not
the same is of the kind in which fiduciaries are authorized by law or any rule
of court to invest funds;
O. Allocate Items to Income. To allocate to income (unless otherwise
directed herein) all interest, all rental income not set aside as a reserve for
depreciation, and all cash dividends or other cash distributions (whether
Page 6
ordinary or extraordinary) received from any source, including, but not limited
to, cash dividends received from investment companies or investment trusts;
P. Allocate Items to Principal. To allocate to principal (unless otherwise
directed herein) all capital gains and all dividends and distributions payable
in property or in stocks, bonds, or other securities whether of the disbursing
company or another company;
Q. Make Discretionary Allocations to Income or Principal. To allocate to
income or to principal as shall be deemed appropriate, in the fiduciary's
absolute discretion, without liability to any beneficiary, (1) any dividend or
distribution, the allocation of which is not ascertainable under the preceding
two subparagraphs; (2) expenses of administration in a reasonable manner
consistent with applicable state law and optimal tax results; and (3) the
payment of Florida intangible personal property tax;
R. Employ Professionals. To employ investment counsel, accountants,
depositories, custodians, brokers, consultants, agents, attorneys, and other
employees, irrespective of whether any person so employed shall be a Trustee
hereunder and irrespective of whether any firm or corporation so employed shall
be one in which a Trustee hereunder shall be a partner, stockholder, member,
officer, or director, or shall have any interest, and to pay the usual
compensation for his, her, its, or their services out of principal or income as
may be deemed appropriate; and such compensation may be paid without diminution
of or charging the same against the commissions or compensation of any Trustee
hereunder; and any Trustee who shall be a partner, stockholder, member, officer,
or director in any such firm or corporation shall nevertheless receive his share
of the compensation paid to such firm or corporation;
S. Make Distributions to Minors. To effect distribution to a minor by
distributing the same to a custodian for such minor under the Uniform Transfers
to Minors Act (or corresponding provision of law) in effect in the jurisdiction
where the minor resides, or elsewhere, and to select such a custodian for such
minor, including a Trustee named herein;
T. Transfer Assets to Alternative Situs. To transfer the assets of any
trust for purposes of administration to another situs and to appoint, if
necessary, as a special Trustee, any individual or corporation authorized under
the laws of the United States or any state to administer or to co-administer
such trust and to remove any special Trustee and reappoint themselves;
U. Incorporate Business. To continue to operate or participate in the
operation of any unincorporated business for as long as the Trustee deems
appropriate to so do; to incorporate or to participate in the incorporation of
any business, and to operate such newly incorporated business; and to liquidate,
merge, consolidate, spin-off, or reorganize any business in such manner and upon
such terms as the Trustee deems appropriate;
V. Conduct Business Interests. To conduct any business interests owned
alone or with others for whatever period of time the Trustee deems appropriate
with all powers of an owner with respect thereto, including, but not limited to,
the power to borrow money and pledge estate or trust property as security
therefor, or to delegate such powers to any partner, manager, or employee; to
dispose of any such business or any assets thereof, at public or private sale,
upon such terms and conditions as the Trustee deems appropriate; to form
partnerships or corporations to carry on such business, and to contribute any
Page 7
estate or trust property as capital thereof; and to employ, elect, or permit to
be retained any Trustee as a director, officer, or employee of such business
entity;
W. Divide Trusts. To divide any trust into separate trusts for any
purpose, such as allocating the generation-skipping transfer tax exemption so
that one or more of these trusts is entirely exempt from the federal
generation-skipping transfer tax, or electing to treat a separate trust as
qualified terminable interest property for federal estate tax purposes; and, in
investing and making distributions from the separate trusts, the Trustee shall
consider the tax saving opportunities afforded by the existence of separate
trusts;
X. Direct Distribution if Trust Not Operative. To distribute property
directly to the beneficiary of a trust, without the interposition of such trust,
if at the time of distribution the circumstances are such that the trust would
have been paid out to the beneficiary immediately upon funding of the trust;
Y. Collapse of Trust. If at any time the Trustee, in the Trustee's
absolute discretion, shall determine that it is uneconomical or not in the best
interest of the beneficiaries to continue any trust created hereunder, the
Trustee, in the Trustee's absolute discretion, may terminate such trust and
distribute the trust property to the person or persons, or to the legal
representative of such person or persons, then entitled or permitted to receive
or have the benefit of the income therefrom. If there is more than one income
beneficiary, the Trustee shall make such distribution to such income
beneficiaries in the proportion in which they are beneficiaries or, if no
proportion is designated, in equal shares to such beneficiaries. This power
shall not be exercised by any Trustee who is also a beneficiary of such trust;
Z. Pool Assets. To pool the assets of any or all trusts hereunder for
investment purposes, allocating to each trust an undivided interest in all
assets so held; and to merge any trust with any other trust held by the Trustee,
whether created by a Guardian or by any other person by Will or Deed, if the
terms thereof are substantially similar and held for the primary benefit of the
same persons;
AA. Purchase Policies of Insurance. To purchase new or existing policies
of insurance, from any source, on the life of any person;
BB. Sell or Purchase Assets to or from Settlor's Estate. To sell or
purchase, at the fair market value as determined by the Trustee, and to lend or
borrow, at an adequate rate of interest and with adequate security and upon such
terms and conditions as the Trustee deems fair and equitable, any property to or
from the Settlor's estate, the Settlor's spouse's estate, or any trust created
by the Settlor or the Settlor's spouse during life or by Will, even though the
same person or corporation may be acting as Personal Representative of the
Settlor's estate or of the Settlor's spouse's estate or as Trustee of any such
trust and as Trustee of this Trust.
ARTICLE VIII. BENEFICIARY UNDER DISABILITY
A. Minors. If any property shall become distributable to a minor, it shall
vest absolutely in the minor, but the Trustee may retain such property with all
of the rights, powers, duties, and discretions which are herein granted to the
Trustee elsewhere in this Agreement. In that event, the Trustee shall invest and
reinvest such property and pay to or apply for the benefit of the minor so much
Page 8
or all of the net income and principal of such retained property as the Trustee
deems appropriate for the minor's best interests, accumulating any net income
not so paid or applied and adding such accumulated net income to principal, at
least annually. When the minor attains majority, the Trustee shall distribute
such retained property as then constituted to the minor. If the minor dies
before attaining majority, the Trustee shall distribute such retained property
to the deceased minor's estate.
B. Adult Beneficiary. If in the opinion of the Trustee any adult
beneficiary is unable to properly disburse the income or principal to which the
beneficiary may be entitled, the Trustee may retain such property and pay to or
apply for the benefit of the beneficiary all or part of such income or principal
as the Trustee deems advisable in the best interest of the beneficiary.
C. Application to Beneficiary. In applying income or principal for the
benefit of any beneficiary, the Trustee is authorized in the Trustee's
discretion to expend such amounts for the best interest of the beneficiary in
one or more of the following methods as the Trustee deems appropriate:
1. Minor, Incompetent or Incapacitated Beneficiary. By delivering
any such amount to the natural, general, or testamentary guardian of
any beneficiary, or to a custodian for any beneficiary under the
Uniform Transfers to Minors Act or similar law, or to any individual
or entity having the care, custody, or control of any such
beneficiary, or with whom such beneficiary may reside, or to the
committee, guardian, or conservator of any beneficiary who shall
have been adjudicated an incompetent; or
2. Beneficiary. By delivering any such amount to such beneficiary,
personally; or
3. Beneficiary's Behalf. By making direct expenditures for the best
interest of such beneficiary.
D. Payment. The receipt of any such guardian, custodian, committee,
conservator, individual, entity, or beneficiary, or evidence of such payment or
expenditure of any such amount, shall be a full and sufficient discharge to the
Trustee for the payment or expenditure thereof, and the Trustee shall be
exonerated from all liability and responsibility by reason of any amount so
delivered, paid, or expended irrespective of the application or use thereof that
may be made by any such person; and the Trustee shall have no duty to see to the
application of any such amount.
ARTICLE IX. RESTRICTIONS, LIMITATIONS, AND POWERS REGARDING THE TRUST, TRUSTEE,
AND BENEFICIARIES
A. Perpetuities. Regardless of any contrary provision of this Agreement,
no assets shall be held in trust for a period longer than the longest statutory
period permitted under the applicable rule against perpetuities, as it is then
in force and effect, and, upon the expiration of such period, all such trusts
shall terminate, and the Trustee shall distribute the trust property to the
person or persons, or to the legal representative of such person or persons,
then entitled or permitted to receive or have the benefit of the income
therefrom. If there is more than one income beneficiary, the Trustee shall make
Page 9
such distribution to such income beneficiaries in the proportion in which they
are beneficiaries or, if no proportion is designated, in equal shares to such
beneficiaries.
B. Restrictions on Individual Trustee. No individual Trustee, who is also
a beneficiary of any trust, shall participate in the exercise of any discretion
granted to the Trustee to (i) pay or apply the net income or principal of such
trust to or for the benefit of himself or herself, including the termination of
such trust, except to provide for his or her health, education, maintenance, or
support as set forth under ss.ss.2041(b)(1)(A) and 2514(c)(1) of the Code; or
(ii) to exercise any discretion with respect to crediting or charging any item
to income or principal otherwise than as provided by law. In addition, any
Trustee who is under a legal obligation to support a beneficiary of any trust
shall not participate in the exercise of any discretion granted to the Trustee
to pay or apply the net income or principal of such trust in discharge of that
legal obligation.
C. Restrictions on Beneficiaries. No beneficiary of any trust shall have
any right or power to pledge, assign, sell, transfer, or encumber his or her
interest in any trust hereunder, nor shall any such interest be liable for or
subject to the debts, judgments, or other obligations of such beneficiary or to
claims of any sort against such beneficiary.
D. Power of Appointment.
1. Power to Appoint to Creditors. If a trust under this Agreement would,
but for the provisions of this Paragraph, be liable for
generation-skipping tax at the death of a beneficiary, such beneficiary
shall have the power to appoint to such beneficiary's creditors, by a Will
expressly referring to and exercising this power, the smallest fractional
share of such trust that would reduce to the minimum the aggregate estate,
inheritance, succession, and generation-skipping taxes payable upon such
beneficiary's death, assuming no deductions are allowed with respect to
the appointive property.
2. Payment of Taxes. If any beneficiary under this Agreement incurs any
estate or inheritance tax liability due to the inclusion of a portion or
all of a trust established hereunder in the beneficiary's gross estate for
federal estate tax purposes by reason of a power of appointment, then any
such tax attributable to such power of appointment shall be paid from such
beneficiary's separate trust prior to being distributed to the remainder
beneficiaries of such trust. The tax attributable to such power of
appointment shall be the excess of (1) the total amount of all federal and
state estate, inheritance, succession, and other death taxes, together
with any acquirer's taxes, including interest and penalties thereon,
imposed upon such beneficiary's estate (or imposed as an acquirer's tax on
any beneficiary) over (2) the amount of such taxes, interest, and
penalties that would have been imposed if no part of such power of
appointment property had been included in the beneficiary's gross estate
for purposes of any such tax.
Page 10
E. Prohibitions. No person shall purchase, exchange, or otherwise deal
with or dispose of the principal or income of the Trust for less than an
adequate consideration in money or money's worth, nor shall any person borrow
the principal or income of the trust estate, directly or indirectly, without
adequate interest or security.
ARTICLE X. SURVIVORSHIP CLAUSE
A. Beneficiaries. If any beneficiary dies within ninety (90) days after
the death of the Settlor, then for purposes of applying and interpreting this
Agreement such beneficiary shall be deemed conclusively to have predeceased the
Settlor.
B. Beneficiary Whose Life Measures Duration of a Trust. If any person
whose life measures the duration of a trust hereunder and any succeeding trust
beneficiary, including any remainderman of such trust, die under such
circumstances that there is reasonable doubt as to who died first, then for
purposes of applying and interpreting this Agreement such person whose life
measures the duration of such trust shall be deemed conclusively to have
survived such succeeding trust beneficiary or remainderman, as the case may be.
ARTICLE XI. CONSTRUCTION AND DEFINITIONS
Unless the context indicates that a different meaning is intended, for all
purposes of this Agreement:
A. Construction.
1. The singular number shall include the plural number and the
plural number shall include the singular number;
2. The use of any gender shall be applicable to all genders.
B. Definitions.
1. The words "child" and "children" shall mean descendants of the
first degree only, and the word "issue" shall mean descendants of
the first, second, or more remote degree;
2. The words "child," "children," and "issue" shall include any
person legally adopted prior to attaining the age of eighteen (18)
years and the issue of any such adopted person;
3. The word "issue" shall include any issue in gestation at the time
for determination hereunder later born alive (en ventre sa mere);
4. The term "Code" shall mean the Internal Revenue Code of 1986, as
now and hereafter amended, and shall include any corresponding
provisions of the federal tax law which may from time to time be in
effect;
Page 11
5. The term "education" may include, but shall not be limited to,
expenses of tuition, books, incidentals in any way related thereto,
and all other services, items, and things required in connection
with any course of study (including vocational apprenticeships,
internships, and residencies). Such expenses shall also include the
travel and living expenses incurred in connection with a
beneficiary's attendance at any educational institution. It is the
Settlor's intent that the term "educational institution," as used
herein, shall include, without limitation, private schools,
colleges, universities, trade schools, and graduate schools;
6. The word "minor" shall mean a person under the age of twenty-one
(21) years;
7. The term "Trustee" shall include both the singular and the plural
and whenever used herein shall mean all trustees at any time serving
and however appointed, including any successor trustee and any
additional trustee appointed or required to act in any jurisdiction;
8. The term "trust estate" shall include all property listed on the
attached Schedule A, and all investments and reinvestments thereof
and additions thereto;
9. If the Settlor and the Settlor's spouse are not married or if
there is any action filed or pending, or any judgment entered, for
dissolution of the marriage, divorce, legal separation, or support
without divorce, or any form of legal proceeding to compel support
or distribution of property or income, at the time of the Settlor's
death or at any such time as the Settlor's spouse would become
entitled to any benefit hereunder or have any power of appointment
or withdrawal pursuant to the terms of this Agreement, or if the
Settlor's spouse is serving as Trustee or has been nominated as a
successor Trustee, then the Settlor's spouse shall be deemed to have
predeceased the Settlor for all purposes of this Agreement.
ARTICLE XII. HEADINGS FOR REFERENCE ONLY
The headings contained in this Agreement are for reference purposes only
and are not intended to describe, interpret, define, or limit the scope, extent,
or intent of this Agreement or any provision hereof.
Page 12
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
SETTLOR: Silverstein Family Limited Partnership
2002, LTD
By: /s/ Barry Silverstein (Seal)
----------------------------------------------
BARRY SILVERSTEIN, General Partner
SIGNED, SEALED, PUBLISHED, AND DECLARED by the said BARRY SILVERSTEIN, as
General Partner, as and for the Settlor's Trust Agreement, in the presence of
the undersigned, who, at the Settlor's request and in the Settlor's presence and
in the presence of each other, have hereunto subscribed our names as witnesses
thereto, the day and year first above written.
/s/ Jeffrey McCurdy residing at 4862 Edgemont Ct.
-------------------------------------- -----------------------------
Sarasota, FL 34233
---------------------------------
/s/ Simon J. Jaspers residing at 4071 Giannini Ln
-------------------------------------- -----------------------------
Sarasota, FL 34233
---------------------------------
TRUSTEE:
/s/ Barry Silverstein (Seal)
----------------------------------------------
BARRY SILVERSTEIN
Page 13
STATE OF FLORIDA
COUNTY OF Sarasota
--------
ON THIS DAY before me, the undersigned authority, personally appeared
Barry Silverstein, who:
|X| is personally known to me OR
|_| has produced ________________________________ as identification
and who acknowledged to me that he/she is the person described in and who
executed the foregoing Trust Agreement as the Settlor and that he/she
executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 12th day of December, 2003.
(Notary Seal) /s/ Linnette Fauroat
--------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
--------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 3, 2003
---------------------
My Commission Number: DD 087555
----------------------
STATE OF FLORIDA
COUNTY OF Sarasota
--------
ON THIS DAY before me, the undersigned authority, personally appeared
Barry Silverstein, who:
|X| is personally known to me OR
|_| has produced _______________________________ as identification
and who acknowledged to me that he/she is the person described in and who
executed the foregoing Trust Agreement as the Trustee and that he/she
executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 12th day of December, 2003.
(Notary Seal) /s/ Linnette Fauroat
--------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
--------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 3, 2003
---------------------
My Commission Number: DD 087555
----------------------
Page 14
AFFIDAVIT OF PROOF OF TRUST AGREEMENT
STATE OF FLORIDA
COUNTY OF Sarasota
--------
I, BARRY SILVERSTEIN, General Partner of MTSB Family Limited Partnership,
declare to the officer taking my acknowledgment of this instrument, and to the
subscribing witnesses, that I signed this instrument as a Trust Agreement.
/s/ Barry Silverstein
--------------------------------------------
BARRY SILVERSTEIN as General Partner, Settlor
We, Jeffrey McCurdy and Simon J. Jaspers, have been sworn by the officer
signing below, and declare to that officer on our oaths that the Settlor
declared the instrument to be the Settlor's Trust Agreement and signed it in our
presence and that we each signed the instrument as a witness in the presence of
the Settlor and of each other.
/s/ Jeffrey McCurdy
--------------------------------------------
Witness
/s/ Simon J. Jaspers
--------------------------------------------
Witness
Acknowledged and subscribed before me by the Settlor, BARRY SILVERSTEIN,
General Partner, who is personally known to me or who has produced personally
known as identification, and sworn to and subscribed before me by the witnesses,
____________________________ who is personally known to me or who has produced
personally known as identification and _______________________________ who is
personally known to me or who has produced personally known as identification,
and subscribed by me in the presence of the Settlor and the subscribing
witnesses, all on this 12th day of December, 2003.
/s/ Linnette Fauroat
--------------------------------------------
(Signature of Officer)
(Print, type, or stamp commissioned name and
affix official seal)
Page 15
THE MTSB FLP 2003
IRREVOCABLE TRUST AGREEMENT
SCHEDULE A
----------
Description Value
----------- -----
Cash $10.00
Dated this 12th day of December, 2003.
SETTLOR: MTSB Family Limited Partnership
/s/ Barry Silverstein
--------------------------------------------
By: BARRY SILVERSTEIN, General Partner
TRUSTEE:
/s/ Barry Silverstein
--------------------------------------------
BARRY SILVERSTEIN
Page 16
THE TRUDY SILVERSTEIN
IRREVOCABLE TRUST OF 2003
THIS AGREEMENT, made and executed this 15th day of December 2003, is by
and between TRUDY SILVERSTEIN, as the Settlor, and DENNIS McGILLICUDDY, as the
Trustee.
WITNESSETH:
WHEREAS, the Settlor desires to establish, effective immediately, a trust
under all of the provisions of this Agreement, and the Trustee is willing to act
as Trustee hereunder.
NOW, THEREFORE, the parties do hereby agree and declare as follows:
ARTICLE I. PROPERTY SUBJECT TO THE TRUST
A. Initial Transfer to Trust. The Settlor irrevocably assigns, transfers,
and delivers to the Trustee all the rights, powers, interests, and benefits
which the Settlor now has or hereafter may have in all of the property described
in Schedule A annexed hereto, and the Trustee agrees to hold, manage, and
dispose of the trust property in the manner and subject to the provisions
contained in this Agreement.
B. Additional Transfers to Trust. The Settlor may from time to time
irrevocably assign, transfer, and deliver additional property to the Trustee
with the consent of the Trustee, which property shall be held, managed, and
disposed of by the Trustee in the manner and subject to the provisions contained
in this Agreement.
ARTICLE II. TRUSTEE SUCCESSION
A. Successor Trustee. It is the Settlor's intention that DENNIS
McGILLICUDDY shall serve as sole Trustee under this Agreement. Should DENNIS
McGILLICUDDY cease to serve as Trustee hereunder for any reason, then the
Settlor nominates and appoints STEVEN BLECHNER to serve as Trustee in DENNIS
McGILLICUDDY's place. Should STEVEN BLECHNER fail to qualify or cease to serve
as Trustee hereunder for any reason, then a majority of the beneficiaries (other
than the Settlor) then entitled or permitted to receive the income of such trust
and the presumptive remaindermen of such trust, or the legal or natural guardian
(other than the Settlor) of any of them who is then under a legal disability,
shall appoint an individual or a corporate fiduciary to serve as Trustee of such
trust.
B. Power to Appoint Co-Trustee or Successor Trustee. Except to the extent
a successor Trustee is already effectively appointed hereunder, any individual
Trustee at any time serving shall have the power to appoint an individual or a
corporate fiduciary to serve as successor Trustee to him or her. In addition,
all of the then acting Trustees of a trust shall, by unanimous vote, have the
power to appoint an individual or a corporate fiduciary to serve as Co-Trustee
of such trust. If at any time there is no Trustee serving hereunder, then a
majority of the beneficiaries (other than the Settlor) then entitled or
permitted to receive the income of such trust and the presumptive remaindermen
of such trust, or the legal or natural guardian (other than the Settlor) of any
of them who is then under a legal disability, shall appoint an individual or a
corporate fiduciary to serve as successor Trustee of such trust.
C. Removal of Corporate Trustee. Any corporate Trustee may be removed from
office at any time by (1) the individual Trustee or Trustees then serving, by
unanimous vote, or, if none, then by (2) a majority of the beneficiaries (other
than the Settlor) entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or the legal or natural guardian
(other than the Settlor) of any of them who is then under a legal disability. In
the event of the resignation or removal of the corporate Trustee of a trust, the
person or persons having the power of removal shall appoint a successor
corporate Trustee who is authorized to exercise trust powers either under the
law of the jurisdiction where such corporate Trustee is located or under the
national banking laws enacted by the Congress of the United States.
D. Right to Resign. Without limitation as to any other method of
resignation, any Trustee may resign as Trustee of any trust by giving prior
written notice of such intention to do so to the Co-Trustee(s), if any, and to
the beneficiaries entitled or permitted to receive the income of such trust and
the presumptive remaindermen of such trust, or to the legal or natural guardian
of any of them who is then under a legal disability. In the event of such
resignation, the person or persons to whom such notice of resignation shall have
been given may, without liability to any person, approve the accounts of and
give a complete release and discharge to such resigning Trustee. Any Trustee who
resigns shall not receive any termination fee or commission that might otherwise
be payable by reason of termination of the trust or distribution of the trust
principal.
E. Method of Appointing or Removing Trustees. Any appointment or removal
of a Trustee (1) shall be made by a written instrument executed with the
formality required of a deed for the conveyance of real estate; (2) shall take
effect at the time and upon the conditions set forth in the instrument of
appointment or removal, subject, however, to the written acceptance of the
appointee (in the case of an appointment); and (3) may be revoked by a like
instrument at any time before the appointment or removal shall take effect.
F. Powers Exercisable by Third Party. The right to remove and/or appoint a
Trustee and the right to approve accountings and give a release to a resigning
Trustee shall be exercisable on behalf of any person by the holder of a durable
power of attorney (other than the Settlor) from that person or by the legal or
natural guardian (other than the Settlor) of any person who is then under a
legal disability.
G. Majority Rules. Unless expressly provided to the contrary in this
Article, if the right to appoint a Trustee shall be exercisable by two (2)
persons collectively, this right shall be exercisable only by the unanimous
agreement of both of them. If the right to appoint a Trustee shall be
exercisable by three (3) or more persons collectively, the decision of a
majority of them shall control.
H. No Bond Required. No Trustee at any time serving in any jurisdiction
shall be required to furnish any bond or other security for the faithful
performance of the office of Trustee hereunder, qualify before any court,
register the trust, or file an accounting in any court as a condition for the
exercise of any of the powers and discretions herein conferred upon the Trustee.
This Paragraph shall not affect the right of any beneficiary hereunder to
require an accounting.
Page 2
I. Restrictions on Whom May Serve As Trustee. Notwithstanding any other
provision of this Agreement to the contrary, during the lifetime of the Settlor,
the Settlor may not serve as a Trustee hereunder or exercise any other rights
under this Article.
ARTICLE III. TRUST IRREVOCABLE
This Agreement and any trust created hereunder are irrevocable and
unamendable. The Settlor expressly waives all rights and powers, whether alone
or in conjunction with others, to alter, amend, revoke, or terminate this Trust
Agreement in whole or in part.
ARTICLE IV. DISTRIBUTION OF TRUST ESTATE DURING THE TRUST TERM
A. Trust Term. Except as provided in Paragraph IV.B, the Trust shall
terminate on the first to occur of the death of the Settlor or January 31, 2004
(the "Trust Term"). During the Trust Term, the Trustee may pay to or for the
benefit of the Settlor so much or all of the net income and principal of the
Trust as the Trustee, in the Trustee's discretion, deems to be for the best
interest of the Settlor. Any net income not paid or applied shall be accumulated
and added to the principal of the Trust at least annually.
B. Automatic Renewal. Anything in Paragraph IV.A to the contrary
notwithstanding, during the life of the Settlor, this Agreement shall
automatically renew for successive one (1) year terms on January 31st of each
year unless the Settlor delivers to the Trustee written notice of the Settlor's
intention not to renew, no later than thirty (30) days before the termination of
the then current term of this Agreement.
ARTICLE V. DISPOSITION OF TRUST UPON EXPIRATION OF TRUST TERM
A. Expiration of Trust Term During Settlor's Lifetime. Upon the expiration
of the Trust Term during the Settlor's lifetime, the remaining trust property
shall be distributed to the Settlor, outright and free of trust.
B. Expiration of Trust Term Upon Settlor's Death. Upon the Settlor's death
during the Trust Term, the remaining trust property shall be distributed to or
among or for the benefit of such individuals, corporations, charities qualified
under ss.501(c)(3) of the Code, or other appointees and on such terms and
conditions, including appointments in trust, as the Settlor appoints by Will,
providing such Will (or Codicil) contains a specific reference to this
particular power of appointment. To the extent the Settlor fails to effectively
exercise the foregoing power of appointment, the Trustee shall distribute the
remaining trust property as hereinafter set forth in Paragraph V.C.
C. Distribution to Settlor's Estate. To the extent the Settlor fails to
effectively exercise the foregoing power of appointment, the Trustee shall
distribute the remaining trust property to the Settlor's Revocable Trust to be
merged with, held, administered, and distributed as a part of the trust estate
under the Revocable Trust, but if the Revocable Trust is not then in existence,
then such property shall be distributed to the Settlor's estate.
Page 3
ARTICLE VI. AS TO THE TRUSTEE
A. Situs and Governing Law. This Agreement and each trust established
hereunder shall have an initial situs in the State of Florida and shall be
governed by the laws of the State of Florida. The Trustee may, in the Trustee's
discretion, change the situs of any trust established hereunder to a
jurisdiction other than the State of Florida. A change of situs shall not affect
the validity or construction of any trust hereunder or create in any beneficiary
any right or power other than those to which such beneficiary was then entitled
in the State of Florida.
B. Certification Regarding Prior Administration. Any successor Trustee is
specifically authorized to accept the trust assets as the same may be certified
to such Trustee by any prior Trustee or as may be approved by the beneficiaries
then entitled or permitted to receive the income of such trusts (or the legal or
natural guardian of any of them who is then under a legal disability), without
the necessity of a full accounting or inquiry into the prior administration of
the trust by any prior Trustee.
C. Delegation of Powers. Any Trustee may delegate to another Trustee the
right to exercise any power (discretionary, administrative, or otherwise) by an
acknowledged instrument and may revoke the delegation at any time by delivery of
an acknowledged instrument to such other Trustee.
D. Termination of Fiduciary Capacity. Any individual Trustee shall be
deemed to have ceased to serve as Trustee of a trust upon the first to occur of
the following:
1. Unable to Manage Financial Affairs. Receipt by the remaining
Trustee(s), if any, and by the beneficiaries then entitled or permitted to
receive the income of such trust (or the legal or natural guardian of any
of them who is then under a legal disability) of a certificate or letter
from a medical doctor stating that he or she is the individual Trustee's
physician and that, because of illness or incapacity of any kind of said
individual Trustee, the Trustee is unable to manage financial affairs; or
2. Appointment of Guardian. Upon the appointment of a guardian of the
person or property or conservator of such individual Trustee; or
3. Death or Resignation. Upon the death or resignation of such individual
Trustee.
E. Custody of Trust Estate. While acting hereunder, the corporate Trustee
(or its agent) shall have the sole custody of the assets constituting the trust
estate and each trust or share thereof, and shall be responsible for the
maintenance of adequate records reflecting the condition of the trust and the
income and expenses thereof. Such records shall be open at all times to
inspection by the individual Trustee, if any, or by the respective beneficiaries
of the trust, or the legal representatives or attorneys of such persons.
F. Trustee Compensation. Any corporate Trustee shall receive compensation
as determined by its standard fee schedule in effect and applicable at the time
of the performance of its services, unless otherwise agreed to in writing by the
corporate Trustee. If no such schedule shall be in effect at that time or if no
Page 4
such writing exists, it shall be entitled to reasonable compensation for the
services rendered. Any Trustee shall be reimbursed for reasonable expenses
incurred in serving as Trustee.
G. Trustee Exonerated. The Trustee shall be responsible for only due
diligence in the administration and disbursement of any trust created hereunder
and shall not be responsible for any loss or subject to any liability except by
reason of the Trustee's own negligence or willful default proved by affirmative
evidence. Every election, determination, or other exercise by the Trustee of any
discretion granted to the Trustee, expressly or by implication under this
Agreement or by law made in good faith, shall fully protect the Trustee and
shall be conclusive and binding upon all persons. This Paragraph shall be
binding on all interested parties hereunder, and the Trustee shall be
indemnified and held harmless by the trust estate for any claim, demand, or suit
arising with respect to any decision of the Trustee in the administration of the
trust estate other than for the Trustee's gross negligence.
ARTICLE VII. ADMINISTRATIVE POWERS OF TRUSTEE
The Trustee shall have the following powers in addition to all powers now
or hereafter conferred upon trustees by law:
A. Invest Trust Property. To invest and reinvest the trust property in
property of any character, foreign or domestic, specifically including, but not
limited to, real estate, business enterprises of any nature, investment
partnerships, stocks, bonds, notes, debentures, warrants, puts, calls, options,
futures contracts, trust receipts, commodities, leases, contracts, United States
securities, interests in trusts, money market funds, mutual funds, common trust
funds (including those maintained by any corporate trustee or any affiliate
thereof), repurchase agreements, and securities exempt from income tax
(notwithstanding that higher yields may be obtained by investment in securities
not so exempt), or in any other property or undivided interests in property,
wherever located, without being limited by any statute or rule of law concerning
investments by trustees and without any requirement for diversification;
B. Margin Account Usage. The Trustee shall have the discretion to
establish, maintain, make investments on margin, and use a margin investment
account for such purposes as the Trustee deems reasonable and prudent. No person
dealing with the Trustee need see to the use or application of margin proceeds
nor place limitations or restrictions upon the Trustee in the maintenance of a
margin account;
C. Retain Trust Assets. To retain as a part of any trust any and all
assets transferred to or acquired by the Trustee, so long as the Trustee deems
it appropriate to do so, regardless of whether said assets are the kind and
class authorized by law for the investment of trust funds and without regard to
principles of diversification;
D. Establish Bank and Brokerage Accounts. To retain principal and income
cash funds in interest and non-interest bearing checking, savings, money market,
brokerage, and NOW accounts, for such reasonable period of time as the Trustee
may determine, pending investment or distribution to the beneficiaries
hereunder;
Page 5
E. Deal In Real or Personal Property. With respect to any interest in real
or personal property, (i) to lease, including, without limitation, the power to
negotiate a lease and execute a lease; (ii) to exchange; (iii) to sell and
convey, including, without limitation, the power to locate a purchaser, to
accept and execute a contract for sale, and to execute deeds, bills of sale, and
other closing documents necessary or advisable in the discretion of the Trustee;
or (iv) to make any other disposition in public or private transactions deemed
necessary or advisable in the discretion of the Trustee. No notice to or the
consent of any beneficiary shall be required for any action taken under this
Paragraph, and the Trustee shall be entitled to employ brokers and agents and
pay them reasonable compensation for such purposes;
F. Borrow and Lend Money. To borrow such sums of money at any time and
from time to time for such periods of time upon such terms and conditions from
such persons or corporations (including any trustee hereunder) and for such
purposes as may be deemed appropriate, and to secure such loans by the pledge or
hypothecation of any property held hereunder, and the lender shall have no
obligation to inquire as to the application of the sums loaned or as to the
necessity, expediency, or propriety of the loan; to loan money to any person or
entity, including a beneficiary, upon such terms and conditions, with adequate
interest and security, and for such purposes as the Trustee may deem advisable;
G. Make Nominee Registrations. To register any securities or other
property or any interest in property, in the name of any nominee or nominees,
without describing the fiduciary capacity, and to hold any securities in bearer
form;
H. Maintain Custody Accounts. To maintain custody or margin accounts with
any banks, brokers, or trust companies, and to maintain safekeeping vaults;
I. Exercise Ownership Rights. To exercise all ownership rights, including,
without limitation of generality, voting and subscription rights; and to
otherwise exercise any and all rights and powers, and deal in and with
securities at any time held hereunder, in the same manner and to the same extent
as any individual owner and holder thereof might do;
J. Purchase Investments at Premium. To purchase investments at a premium
and in the case of investments which have been purchased or otherwise acquired
at a premium and which are callable or have fixed maturities, to amortize such
premiums by charges against income;
K. Pay, Compromise, Settle, or Abandon Claims. To pay, compromise, settle,
object to or abandon all claims and demands in favor of or against the trust
estate (specifically including any claim that may arise out of any income, gift,
or death taxes);
L. Deal With Other Fiduciaries. To receive assets from any source and to
enter into any transaction authorized by this Article with the legal
representatives of any other estate or with the trustees of any other trust
estate in which any beneficiary hereunder has a beneficial interest, even though
any of such legal representatives or trustees is also a fiduciary hereunder;
M. Distribute Income and Principal. To distribute income and principal in
cash or in kind, or partly in each, and to allocate or distribute undivided
interests of different assets or disproportionate interests in assets, and no
adjustment shall be made to compensate for a disproportionate allocation of
Page 6
unrealized gain for federal income tax purposes, provided that any distribution
to or for the benefit of a charitable organization described in ss.170(c) and
ss.2055(a) of the Code shall be made, to the extent possible, from assets which
produce income in respect of a decedent ("IRD");
N. Participate in Corporate Transactions. To participate in and to consent
to any plan of reorganization, recapitalization, consolidation, merger,
combination, dissolution, liquidation, or similar plan and any action
thereunder, including, but not limited to, the deposit of any property with any
protective, reorganization, or similar committee, the delegation of
discretionary powers thereto, and the sharing in the payment of its expenses and
compensation and the payment of any assessments levied with respect to such
property; and to receive and retain property under any such plan whether or not
the same is of the kind in which fiduciaries are authorized by law or any rule
of court to invest funds;
O. Allocate Items to Income. To allocate to income (unless otherwise
directed herein) all interest, all rental income not set aside as a reserve for
depreciation, and all cash dividends or other cash distributions (whether
ordinary or extraordinary) received from any source, including, but not limited
to, cash dividends received from investment companies or investment trusts;
P. Allocate Items to Principal. To allocate to principal (unless otherwise
directed herein) all capital gains and all dividends and distributions payable
in property or in stocks, bonds, or other securities whether of the disbursing
company or another company;
Q. Make Discretionary Allocations to Income or Principal. To allocate to
income or to principal as shall be deemed appropriate, in the fiduciary's
absolute discretion, without liability to any beneficiary, (1) any dividend or
distribution, the allocation of which is not ascertainable under the preceding
two subparagraphs; (2) expenses of administration in a reasonable manner
consistent with applicable state law and optimal tax results; and (3) the
payment of Florida intangible personal property tax;
R. Employ Professionals. To employ investment counsel, accountants,
depositories, custodians, brokers, consultants, agents, attorneys, and other
employees, irrespective of whether any person so employed shall be a Trustee
hereunder and irrespective of whether any firm or corporation so employed shall
be one in which a Trustee hereunder shall be a partner, stockholder, member,
officer, or director, or shall have any interest, and to pay the usual
compensation for his, her, its, or their services out of principal or income as
may be deemed appropriate; and such compensation may be paid without diminution
of or charging the same against the commissions or compensation of any Trustee
hereunder; and any Trustee who shall be a partner, stockholder, member, officer,
or director in any such firm or corporation shall nevertheless receive his share
of the compensation paid to such firm or corporation;
S. Make Distributions to Minors. To effect distribution to a minor by
distributing the same to a custodian for such minor under the Uniform Transfers
to Minors Act (or corresponding provision of law) in effect in the jurisdiction
where the minor resides, or elsewhere, and to select such a custodian for such
minor, including a Trustee named herein;
T. Transfer Assets to Alternative Situs. To transfer the assets of any
trust for purposes of administration to another situs and to appoint, if
necessary, as a special Trustee, any individual or corporation authorized under
Page 7
the laws of the United States or any state to administer or to co-administer
such trust and to remove any special Trustee and reappoint themselves;
U. Incorporate Business. To continue to operate or participate in the
operation of any unincorporated business for as long as the Trustee deems
appropriate to so do; to incorporate or to participate in the incorporation of
any business, and to operate such newly incorporated business; and to liquidate,
merge, consolidate, spin-off, or reorganize any business in such manner and upon
such terms as the Trustee deems appropriate;
V. Conduct Business Interests. To conduct any business interests owned
alone or with others for whatever period of time the Trustee deems appropriate
with all powers of an owner with respect thereto, including, but not limited to,
the power to borrow money and pledge estate or trust property as security
therefor, or to delegate such powers to any partner, manager, or employee; to
dispose of any such business or any assets thereof, at public or private sale,
upon such terms and conditions as the Trustee deems appropriate; to form
partnerships or corporations to carry on such business, and to contribute any
estate or trust property as capital thereof; and to employ, elect, or permit to
be retained any Trustee as a director, officer, or employee of such business
entity;
W. Divide Trusts. To divide any trust into separate trusts for any
purpose, such as allocating the generation-skipping transfer tax exemption so
that one or more of these trusts is entirely exempt from the federal
generation-skipping transfer tax, or electing to treat a separate trust as
qualified terminable interest property for federal estate tax purposes; and, in
investing and making distributions from the separate trusts, the Trustee shall
consider the tax saving opportunities afforded by the existence of separate
trusts;
X. Direct Distribution if Trust Not Operative. To distribute property
directly to the beneficiary of a trust, without the interposition of such trust,
if at the time of distribution the circumstances are such that the trust would
have been paid out to the beneficiary immediately upon funding of the trust;
Y. Collapse of Trust. If at any time the Trustee, in the Trustee's
absolute discretion, shall determine that it is uneconomical or not in the best
interest of the beneficiaries to continue any trust created hereunder, the
Trustee, in the Trustee's absolute discretion, may terminate such trust and
distribute the trust property to the person or persons, or to the legal
representative of such person or persons, then entitled or permitted to receive
or have the benefit of the income therefrom. If there is more than one income
beneficiary, the Trustee shall make such distribution to such income
beneficiaries in the proportion in which they are beneficiaries or, if no
proportion is designated, in equal shares to such beneficiaries. This power
shall not be exercised by any Trustee who is also a beneficiary of such trust;
Z. Pool Assets. To pool the assets of any or all trusts hereunder for
investment purposes, allocating to each trust an undivided interest in all
assets so held; and to merge any trust with any other trust held by the Trustee,
whether created by a Guardian or by any other person by Will or Deed, if the
terms thereof are substantially similar and held for the primary benefit of the
same persons;
Page 8
AA. Purchase Policies of Insurance. To purchase new or existing policies
of insurance, from any source, on the life of any person;
BB. Sell or Purchase Assets to or from Settlor's Estate. To sell or
purchase, at the fair market value as determined by the Trustee, and to lend or
borrow, at an adequate rate of interest and with adequate security and upon such
terms and conditions as the Trustee deems fair and equitable, any property to or
from the Settlor's estate, the Settlor's spouse's estate, or any trust created
by the Settlor or the Settlor's spouse during life or by Will, even though the
same person or corporation may be acting as Personal Representative of the
Settlor's estate or of the Settlor's spouse's estate or as Trustee of any such
trust and as Trustee of this Trust.
ARTICLE VIII. BENEFICIARY UNDER DISABILITY
A. Minors. If any property shall become distributable to a minor, it shall
vest absolutely in the minor, but the Trustee may retain such property with all
of the rights, powers, duties, and discretions which are herein granted to the
Trustee elsewhere in this Agreement. In that event, the Trustee shall invest and
reinvest such property and pay to or apply for the benefit of the minor so much
or all of the net income and principal of such retained property as the Trustee
deems appropriate for the minor's best interests, accumulating any net income
not so paid or applied and adding such accumulated net income to principal, at
least annually. When the minor attains majority, the Trustee shall distribute
such retained property as then constituted to the minor. If the minor dies
before attaining majority, the Trustee shall distribute such retained property
to the deceased minor's estate.
B. Adult Beneficiary. If in the opinion of the Trustee any adult
beneficiary is unable to properly disburse the income or principal to which the
beneficiary may be entitled, the Trustee may retain such property and pay to or
apply for the benefit of the beneficiary all or part of such income or principal
as the Trustee deems advisable in the best interest of the beneficiary.
C. Application to Beneficiary. In applying income or principal for the
benefit of any beneficiary, the Trustee is authorized in the Trustee's
discretion to expend such amounts for the best interest of the beneficiary in
one or more of the following methods as the Trustee deems appropriate:
1. Minor, Incompetent or Incapacitated Beneficiary. By delivering any such
amount to the natural, general, or testamentary guardian of any
beneficiary, or to a custodian for any beneficiary under the Uniform
Transfers to Minors Act or similar law, or to any individual or entity
having the care, custody, or control of any such beneficiary, or with whom
such beneficiary may reside, or to the committee, guardian, or conservator
of any beneficiary who shall have been adjudicated an incompetent; or
2. Beneficiary. By delivering any such amount to such beneficiary,
personally; or
Page 9
3. Beneficiary's Behalf. By making direct expenditures for the best
interest of such beneficiary.
D. Payment. The receipt of any such guardian, custodian, committee,
conservator, individual, entity, or beneficiary, or evidence of such payment or
expenditure of any such amount, shall be a full and sufficient discharge to the
Trustee for the payment or expenditure thereof, and the Trustee shall be
exonerated from all liability and responsibility by reason of any amount so
delivered, paid, or expended irrespective of the application or use thereof that
may be made by any such person; and the Trustee shall have no duty to see to the
application of any such amount.
ARTICLE IX. RESTRICTIONS, LIMITATIONS, AND POWERS REGARDING THE TRUST, TRUSTEE,
AND BENEFICIARIES
A. Restrictions on Individual Trustee. No individual Trustee, who is also
a beneficiary of any trust, shall participate in the exercise of any discretion
granted to the Trustee to (i) pay or apply the net income or principal of such
trust to or for the benefit of himself or herself, including the termination of
such trust, except to provide for his or her health, education, maintenance, or
support as set forth under ss.ss.2041(b)(1)(A) and 2514(c)(1) of the Code; or
(ii) to exercise any discretion with respect to crediting or charging any item
to income or principal otherwise than as provided by law. In addition, any
Trustee who is under a legal obligation to support a beneficiary of any trust
shall not participate in the exercise of any discretion granted to the Trustee
to pay or apply the net income or principal of such trust in discharge of that
legal obligation.
B. Restrictions on Beneficiaries. No beneficiary of any trust shall have
any right or power to pledge, assign, sell, transfer, or encumber his or her
interest in any trust hereunder, nor shall any such interest be liable for or
subject to the debts, judgments, or other obligations of such beneficiary or to
claims of any sort against such beneficiary.
C. Prohibitions. No person shall purchase, exchange, or otherwise deal
with or dispose of the principal or income of the Trust for less than an
adequate consideration in money or money's worth, nor shall any person borrow
the principal or income of the trust estate, directly or indirectly, without
adequate interest or security.
ARTICLE X. SURVIVORSHIP CLAUSE
Beneficiaries. If any beneficiary dies within ninety (90) days after the
death of the Settlor, then for purposes of applying and interpreting this
Agreement such beneficiary shall be deemed conclusively to have predeceased the
Settlor.
ARTICLE XI. CONSTRUCTION AND DEFINITIONS
Unless the context indicates that a different meaning is intended, for
all purposes of this Agreement:
Page 10
A. Construction.
1. The singular number shall include the plural number and the
plural number shall include the singular number;
2. The use of any gender shall be applicable to all genders.
B. Definitions.
1. The term "Code" shall mean the Internal Revenue Code of 1986, as
now and hereafter amended, and shall include any corresponding
provisions of the federal tax law which may from time to time be in
effect;
2. The word "minor" shall mean a person under the age of twenty-one
(21) years;
3. The term "Trustee" shall include both the singular and the plural
and whenever used herein shall mean all trustees at any time serving
and however appointed, including any successor trustee and any
additional trustee appointed or required to act in any jurisdiction;
4. The term "trust estate" shall include all property listed on the
attached Schedule A, and all investments and reinvestments thereof
and additions thereto.
ARTICLE XII. HEADINGS FOR REFERENCE ONLY
The headings contained in this Agreement are for reference purposes only
and are not intended to describe, interpret, define, or limit the scope, extent,
or intent of this Agreement or any provision hereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
SETTLOR:
/s/ Trudy Silverstein (Seal)
------------------------------------
TRUDY SILVERSTEIN
Page 11
SIGNED, SEALED, PUBLISHED, AND DECLARED by the said TRUDY SILVERSTEIN, as
and for the Settlor's Trust Agreement, in the presence of the undersigned, who,
at the Settlor's request and in the Settlor's presence and in the presence of
each other, have hereunto subscribed our names as witnesses thereto, the day and
year first above written.
/s/ Jeffrey McCurdy residing at 4862 Edgemont Ct.
------------------------------------- -------------------------------
Sarasota, FL 34233
---------------------------------
/s/ Lois May residing at 1551 Catalpa Cove Dr.
------------------------------------- -------------------------------
Ft. Myers, FL 33908
--------------------------------
TRUSTEE:
/s/ Dennis McGillicuddy (Seal)
------------------------------------
DENNIS McGILLICUDDY
Page 12
STATE OF FLORIDA
COUNTY OF Sarasota
--------
ON THIS DAY before me, the undersigned authority, personally appeared
TRUDY SILVERSTEIN, who:
|X| is personally known to me OR
|_| has produced ______________________________ as identification
and who acknowledged to me that she is the person described in and
who executed the foregoing Trust Agreement as the Settlor and that
she executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 15th day of December 2003.
(Notary Seal) /s/ Linnette Fauroat
--------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
--------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 3, 2006
---------------------
My Commission Number: DD 087555
----------------------
Page 13
STATE OF Florida
-------
COUNTY OF Sarasota
---------
ON THIS DAY before me, the undersigned authority, personally appeared
DENNIS McGILLICUDDY, who:
|X| is personally known to me OR
|_| has produced _______________________________ as identification
and who acknowledged to me that she is the person described in and who
executed the foregoing Trust Agreement as the Trustee and that she
executed the same for the purposes therein expressed.
WITNESS my hand and official seal this 15th day of December 2003.
(Notary Seal) /s/ Linnette Fauroat
--------------------------------------------
Signature of Notary Public
/s/ Linnette Fauroat
--------------------------------------------
Name of Notary Typed, Printed or Stamped
My Commission Expires: February 6, 2006
---------------------
My Commission Number: DD 087555
---------------------
Page 14
AFFIDAVIT OF PROOF OF TRUST AGREEMENT
STATE OF FLORIDA
COUNTY OF Sarasota
--------
I, TRUDY SILVERSTEIN, declare to the officer taking my acknowledgment of
this instrument, and to the subscribing witnesses, that I signed this instrument
as a Trust Agreement.
/s/ Trudy Silverstein
--------------------------------------------
TRUDY SILVERSTEIN, Settlor
We, Jeffrey McCurdy and Lois May, have been sworn by the officer signing
below, and declare to that officer on our oaths that the Settlor declared the
instrument to be the Settlor's Trust Agreement and signed it in our presence and
that we each signed the instrument as a witness in the presence of the Settlor
and of each other.
/s/ Jeffrey McCurdy
--------------------------------------------
Witness
/s/ Lois May
--------------------------------------------
Witness
Acknowledged and subscribed before me by the Settlor, TRUDY SILVERSTEIN,
who is personally known to me or who has produced personally known as
identification, and sworn to and subscribed before me by the witnesses, Jeffrey
McCurdy who is personally known to me or who has produced ___________________ as
identification and Lois May who is personally known to me or who has produced
___________________ as identification, and subscribed by me in the presence of
the Settlor and the subscribing witnesses, all on this 15th day of December
2003.
/s/ Linnette Fauroat
--------------------------------------------
(Signature of Officer)
(Print, type, or stamp commissioned name and
affix official seal)
Page 15
THE TRUDY SILVERSTEIN
IRREVOCABLE TRUST OF 2003
SCHEDULE A
Description Value
----------- -----
Cash $10.00
Dated this 15th day of December 2003.
SETTLOR:
/s/ Trudy Silverstein
--------------------------------------------
TRUDY SILVERSTEIN
TRUSTEE:
/s/ Dennis McGillicuddy
--------------------------------------------
DENNIS McGILLICUDDY
Page 16
RESIGNATION OF TRUSTEE
I, Dennis McGillicuddy, hereby resign as trustee of the Trudy Silverstein
Irrevocable Trust of 2003.
IN WITNESS WHEREOF, Dennis McGillicuddy has executed and delivered this
Resignation effective as of December 22, 2004.
WITNESSES: DENNIS MCGILLICUDDY
/s/ Jeffrey McCurdy /s/ Dennis McGillicuddy
------------------------- -----------------------------
Jeffrey McCurdy
-------------------------
Typed or printed name
/s/ Linnette Fauroat
-------------------------
Linnette Fauroat
-------------------------
Typed or printed name
APPOINTMENT OF TRUSTEE
I, Trudy Silverstein, representing a majority of the beneficiaries currently
entitled or permitted to receive the income of the Trudy Silverstein Irrevocable
Trust of 2003 (the "Trust"), hereby appoint Randall Meeks as Trustee of the
Trust under the terms of Article II, Paragraph A of the Trust Agreement.
IN WITNESS WHEREOF, Trudy Silverstein has executed and delivered this
Appointment effective as of December 22, 2004.
WITNESSES: TRUDY SILVERSTEIN:
/s/ Jeffrey McCurdy /s/ Trudy L. Silverstein
------------------------- -----------------------------
Jeffrey McCurdy
-------------------------
Typed or printed name
/s/ Linnette Fauroat
-------------------------
Linnette Fauroat
-------------------------
Typed or printed name