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11-2024-CA-000552-0001-XX
Filing # 194025333 E-Filed 03/14/2024 01:13:53 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
TRUST DIVISION
IN RE: THE LEVY FAMILY REVOCABLE CASE NO.:
LIVING TRUST, w/a/d May 5, 2013. DIVISION:
/
COMPLAINT FOR JUDICIAL MODIFICATION OF TRUST
Comerica Bank & Trust, N.A (“Comerica”), as Trustee of the Levy Family Revocable
Living Trust (the “Trust”), through its undersigned counsel, files this Complaint for Judicial
Modification of Trust and states as follows:
1 This is an action for judicial modification of the Trust pursuant to §§736.04113 &
736.04115, Florida Statutes.
2. This Court has subject matter jurisdiction over this proceeding pursuant to
§736.0203, Florida Statutes.
3. Venue is proper in Collier County because the qualified beneficiaries of the Trust
reside in Collier County.
4. Comerica is the trustee of the Trust, is authorized to act as a trustee in Florida, and
presently administers the Trust in Collier County, Florida.
5 Roslyn Bromberg is a resident of Collier County, Florida, is a qualified beneficiary
of the Trust, and is otherwise sui juris.
6 Amy Bromberg Johnson is a resident of Collier County, Florida, is a qualified
beneficiary of the Trust, and is otherwise sui juris.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 03/14/2024 01:13:53 PM
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The remaining beneficiaries of the Trust have all received their full distributions
from the Trust and therefore are not affected by this proceeding.
8 Arnold and Rose Levy established the Trust by executing the “Levy Family
Revocable Trust Second Restatement and Amendment” on August 2, 2010. After Arnold Levy’s
death, Rose Levy executed the “First Amendment to the Second Restatement and Amendment of
the Levy Family Revocable Trust on May 5, 2013. Copies of the Trust documents are attached to
this Petition as Composite Exhibit A.
9 Arnold Levy predeceased Rose Levy.
10. Rose Levy died on August 1, 2021, at which point the Trust became irrevocable.
ll. Under Article III.D. of the Trust, after Rose Levy’s death, specific distributions
were to be made to six beneficiaries (the “Specific Distributions”). The Specific Distributions have
all been made as of the date of the filing of this Complaint.
12. Under Article III.F., after the Specific Distributions and following payment of
certain other expenses from the Trust, if any, the Trust is to terminate and all remaining Trust
property is to be distributed to the “Settlors’ Beneficiaries as defined in Article IV.”
13. Article IV of the Trust defines the “Settlors’ Beneficiaries” as Roslyn Bromberg.
14. Article IV.B. of the Trust indicates that any distributions to Roslyn Bromberg shall
be held in trust for Roslyn Bromberg’s lifetime subject to Article VI of the Trust.
15. Article VI creates the Roslyn Bromberg Trust. Article VI.B. of the Trust requires
the Trustee to distribute exactly $2,000 per month from the Roslyn Bromberg Trust to Roslyn
Bromberg.
16. Under Article VI.C. of the Trust, the Roslyn Bromberg Trust terminates at the death
of Roslyn Bromberg. Upon the termination of the Roslyn Bromberg Trust, any remaining property
of the trust is to be distributed to Roslyn Bromberg’s daughter, Amy Bromberg Johnson (“Amy”).
17. Pursuant to the terms of the Trust as outlined above, Roslyn Bromberg and Amy
are the only remaining qualified beneficiaries of the Trust.
18. Since Rose Levy executed the last amendment to the Trust in 2013, Roslyn
Bromberg’s health has deteriorated to the point that she has been required to enter an assisted
living facility (the “ALF”).
19. The monthly cost of the ALF where Roslyn Bromberg resides is currently more
than double the $2,000 distribution the Roslyn Bromberg Trust permits the trustee to make each
month.
20. Roslyn Bromberg’s monthly social security income and the $2,000 distributions
from the Roslyn Bromberg Trust are Roslyn’s only sources of income and are insufficient to
support the costs of her living and care at the ALF.
21. The Trustee requests this Court modify the Roslyn Bromberg Trust to permit the
Trustee to distribute Trust property sufficient to pay Roslyn Bromberg’s living expenses at the
ALF, and any other expenses reasonably necessary for Roslyn Bromberg’s health, maintenance,
and support, in the discretion of the Trustee.
22. Under § 736.04113, Fla. Stat., a court is permitted to modify a trust at the request
of a trustee if, because of circumstances not anticipated by the settlor, compliance with the terms
of the trust would defeat or substantially impair the accomplishment of a material purpose of the
trust.
23. Additionally, under §736.04115, Fla. Stat., “[w]ithout regard to the reasons for
modification provided in s. 736.041 13, if compliance with the terms of a trust is not in the best
interests of the beneficiaries, upon the application of a trustee or any qualified beneficiary, a
court may at any time modify a trust that is not then revocable as provided in s. 736.04113(2).”
24. Under §736.4113(2), Fla. Stat., in modifying a trust, the court may “[a]mend or
change the terms of the trust, including terms governing distribution of the trust income or
principal or terms governing administration of the trust”, or “[d]irect or permit the trustee to do
acts that are not authorized or that are prohibited by the terms of the trust.”
25. The Trustee requests modification of the RosyIn Bromberg Trust under
§736.4113 due to the change in Roslyn Bromberg’s medical condition that has required her to
reside at the ALF, and the high costs of assisted living facilities. The settlors did not anticipate
Roslyn Bromberg would be required to reside at an ALF nor anticipate the level of financial
support that would be required for an ALF at current rates. Had the settlors known of Roslyn
Bromberg’s change in medical condition, the settlors presumably would have modified the terms
of the Trust to permit the trustee to use Trust property to support Rosyln Bromberg.
26. Additionally, modification is appropriate under §736.4115, Fla. Stat., as
compliance with the terms of the Roslyn Bromberg Trust that only permit the Trustee to
distribute $2,000 per month to Roslyn Bromberg are not in the best interests of the beneficiaries.
The only remaining beneficiaries are Roslyn Bromberg and her daughter Amy. Comerica is
informed and believes Amy is in agreement with the relief requested in this Complaint.
Requiring the Trustee to retain funds in the Trust rather than using those funds as intended by the
Settlors, to help Roslyn Bromberg, is not in the best interests of either of the remaining
beneficiaries.
WHEREAS, the Trustee requests this Court enter an order modifying the Roslyn
Bromberg Trust to permit the Trustee, in the Trustee’s sole discretion, to distribute property of
the trust sufficient to pay the reasonable cost for the beneficiary to reside in an ALF and any
other reasonable expenses necessary for Roslyn Bromberg’s health, maintenance, and support.
DATED this 14" day of March, 2024.
/s/ Frederick L. Hearn
Steven L. Hearn, Esquire
Florida Bar No. 350801
Frederick L. Hearn, Esquire
Florida Bar No. 105987
STEVEN L. HEARN, P.A.
600 S. Magnolia Ave, Suite 200
Tampa, FL 33606
Telephone: (813) 222-0003
slh@estatedisputes.com
filh@estatedisputes.com
melr@estatedisputes.com
LEVY FAMILY REVOCABLE LIVING TRUST
Prepared by:
LAW OFFICE OF LAWRENCE LEVY, P.A.
12781 Miramar Parkway, Suite 203
Miramar, Florida 33027
954-442-6543
COMPOSITE EXHIBIT A
LEVY FAMILY REVOCABLE LIVING TRUST
SECOND RESTATEMENT AND AMENDMENT
THIS TRUST AGREEMENT ‘is entered into on August 3, 2010, between
ARNOLD. I. LEVY (the "Husband") and ROSE D. LEVY. (the "Wife"), of Broward. County,
Florida, as Settlors (the "Settlors"), and ARNOLD I. LEVY, of Palm Beach County, Florida and
ROSE D. LEVY, of Broward County, Florida as initial Co-Trustees (hereinafter referred to
jointly as the "Trustee"). The Settlors originally created. a revocable: trust. agreement by an
instrument dated March 3, 1995, entitled the-"LEVY FAMILY REVOCABLE LIVING TRUST."
Subsequently, ‘the Settlors amended such revocable trust agreement by an instrument dated
January 26,2007. This new Trust Agreement is intended by the Settlors to amend, restate, and
supersede such prior instruments. Accordingly, pursuant to the right reserved ‘in the Trust, the
following is an amendment and. restatement: in its entirety of the "LEVY FAMILY
REVOCABLE LIVING TRUST." All assets: currently owned. by the "LEVY FAMILY
REVOCABLE LIVING TRUST" (or. any similar designation) shall be controlled by this new
Trust Agreement.
WITNESSETH:
sin enn eid
The Settlors desire to create a, trust’ to be held, administered ‘and distributed ‘in
accordance with the provisions of this Trust Agreement. Accordingly, ‘the Settlors have
transferred to the Trustee, and the Trustee acknowledges receipt from the Settlors of the sum of
one dollar in cash. This property, together. with any other property which may be conveyed ‘to
the Trustee subject to the trust hereby created, shall be held, administered and distributed by the
Trustee, upon the trust and for the purposes and uses herein set forth. The trust initially created
by this Trust..Agreement shall be known as the "LEVY FAMILY REVOCABLE LIVING
TRUST."
ARTICLE I - IDENTIFICATION
A Children. The Settlors have.no children together.
ARTICLE I - INITIAL REVOCABLE TRUST.
A. Distributions, The Trustee shall hold, manage, sell, exchange, invest and
reinvest the trust property, collect all income and, after deducting such expenses as are properly
payable, shall accumulate and distribute the income and principal. as herein. provided. The
Trustee shall distribute the income and principal of the trust to the Settlors in such amounts as the
Settlors may direct. All undistributed trust income shall.be accumulated and invested. If either
Settlor becomes incapacitated, the Trustee shall distribute such amounts..of the income: and
principal of the trust for the comfort, health, support, maintenance or other-needs of the Settlors
as the Trustee shall determine; in. the Trustee's discretion, to’ be’ necessary or appropriate ‘to
maintain the Settlors in accordance with the Settlors' accustomed standard of living at the time of
the execution of this Trust Agreement.
B. Character of Property. Property. transferred to this trust which consists
of a Settlor's separate property (hereinafter referred. to as such Settlor's "Separate Estate") shall
retain its character as separate property and shallbe accounted for separately by the Trustee so
that it can be returned to such. Settlor as ‘his or’ her separate property if this instrument is
completely or partially revoked. Property transferred to this trust which consists of the Settlors'
joint property. (hereinafter referred to as ‘the "Joint Estate") shall retain its character as joint
property and shall be accounted for separately by the Trustee so that it can be retumed: to the
Settlors as their joint property if this instrument is.completely or partially revoked. The powers
of the Trustee over the Joint Estate shall-be no more extensive than. those possessed from time to
time by either Settlor over the Settlors' joint property.
Cc Tangible Personal Property. Following the death of the first Settlor to
die (hereinafter referred to as the "deceased Settlor"), the Trustee shall distribute all of the
Settlors' motor vehicles, personal watercraft, club memberships, household goods, appliances,
furniture and furnishings, pictures, silverware, china, glass, books, clothing, jewelry: or other
articles of personal use: or ornament, and. other tangible personal property of a nature, use or
classification similar to the foregoing to the Surviving Settlor's Trust created ‘under Article III
hereof to be held, administered and distributed, for the benefit, of the other Settlor (hereinafter
referred to as the "surviving Settlor") as’provided therein.
D. Termination. Following the death of the deceased Settlor, the Trustee
shall divide all of the then remaining trust property (including property which is received by the
Trustee: by beneficiary designation, under the deceased. Settlor's Will, or otherwise) into two
separate.shares, which may be unequal in value: One of such'shares shall initially contain that
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portion of the.trust property that.constitutes all-of the Separate Estate of the surviving Settlor and
that portion of the trust property which constitutes a one-half interest in the Joint Estate, and for
purposes of this Article shall be known.as the "surviving Settlor's share." Following the death of
the deceased Settlor, the surviving Settlor's share shall be-distributed by the Trustee of this trust
to ‘the Surviving Settlor's Trust created under Article III hereof to be held, administered and
distributed. for the benefit of the surviving. Settlor as provided therein. The. other. share shall
initially contain that portion of the trust property that constitutes all of the Separate Estate of the
deceased Settlor and that portion of the trust property which constitutes a:one-half interest in the
Joint Estate, and for purposes of this Article, shall be known as the "deceased Settlor's share."
E. Distributions Upon Termination. Following the death of the deceased
Settlor.and following any additions to the deceased Settlor's share under Article II, Section D, the
Trustee shall distribute all of the deceased Settlor's share to the surviving Settlor's Trust created
under Article III; provided, however, the surviving Settlor shall be permitted to disclaim all or
any part of such gift, and in such case, the disclaimed interests shall be held, administered, and.
distributed in the Bypass Trust created under Article V.
F. Taxes and Expenses. If there is no disclaimer of the gift jin Article II,
Section E, the Trustee shall pay from the deceased Settlor’s share the difference between all taxes
which must be paid by reason of the deceased Settlor's death and those taxes’ which would be
payable by reason of the deceased Settlor's death had the property of ‘this trust ‘not been
includable in the deceased Settlor's gross estate for the purpose of calculating such taxes. If
there is a disclaimer of the gift in Article II, Section E, the Trustee shall. pay fromthe property
transferred:to the Bypass Trust created. under Article V the difference between all taxes which
must be paid by reason of the deceased Settlor’s death and those taxes which would be payable by
reason of the deceased Settlor's death had such disclaimed: property not been includable in. the
deceased Settlor's gross estate for the purpose of. calculating such taxes; provided, however, to
the extent the property transferred to the Bypass Trust is insufficient for the payment of such
taxes, then any excess shall be paid. by ‘the Trustee from, the deceased Settlor's share.
Notwithstanding the foregoing, if there is a disclaimer of the gift in Article II, Section E, any
state estate or inheritance taxes which.are payable by reason of the deceased Settlor's death and
which, are deductible under Section 2058 of the Code shall, to the extent possible; be paid out of
the portion of the deceased Settlor's share which is: not disclaimed. The Trustee, in such
Trustee's discretion, may pay from the deceased Settlor’s. share all or any part of the deceased
Settlor's funeral expenses, claims which. are legally enforceable against’ the deceased Settlor's
estate (including estate and inheritance taxes) and reasonable expenses of administration of the
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deceased Settlor's. estate, but. the Trustee shall not make any. such payments ‘that aré‘not in the
best, interest of the surviving Settlor; provided, however, if there is a disclaimer of the gift in
Article II, Section E, the’Trustee shall make such payments from the property transferred to the
Bypass Trust created under Article V unless the property transferred to the Bypass Trust is
insufficient for the;payment of such expenses, in which case the excess shall be paid:from the
deceased. Settlor's share. The Trustee may make such payments directly or may pay over the
amounts thereof to the duly qualified executor, personal representative; or-administrator of the
deceased. Settlor's estate. Written statements by’ the executor,. personal representative, or
administrator of the deceased Settlor's estate of the sums that may be paid under this. Section
shall be sufficient evidence of their amounts, and the Trustee shall be under no duty to confirm
that such payments were applied properly.
ARTICLE III - SURVIVING SETTLOR'S TRUST
A Distributions. The Trustee shall hold, manage, sell, exchange, invest and
reinvest. the ‘trust property of the trust created by‘this Article, collect. all income and, ‘after
deducting such expenses as are properly payable, shall distribute the income and principal as
provided in this Article. The-trust created by this Article shall be known by the name of the
surviving Settlor, followed by the words "Revocable Trust." The Trustee: shall distribute the
income and principal of the Surviving Settlor's Trust to the surviving Settlor in such amounts as
the surviving Settlor may direct. All. undistributed trust income shall be accumulated and
invested. If the surviving Settlor becomes incapacitated, the Trustee shall distribute such amounts
of the income’ and principal of the surviving Settlor's Trust for the comfort, health, support,
maintenance or other needs of the surviving Settlor as the Trustee shall determine, in the
Trustee's discretion, to be necessary or appropriate to maintain the surviving Settlor ‘in
accordance with the surviving Settlor's accustomed standard of living at the'time of the death of
the deceased Settlor.
B. Additions Following Death of Surviving Settlor. Following the death
of the surviving Settlor, the Trustee shall:add to the Surviving Settlor's Trust all property which
was owned by the surviving Settlor and which is received by such Trustee under the surviving
Settlor's Will and all non-probate assets (which shall include, but not be limited to, any payments
from an employee or self-employed benefit plan, individual:retirement account or annuity or any
proceeds of any insurance policy on the life of the surviving Settlor) which. are payable’ to the
Trustee hereunder.
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Cc. Gifts_of Tangible Personal_Property. Following: the death of the
surviving Settlor, the Trustee shall distribute, free of trust, all of the surviving Settlor's motor
vehicles, personal. watercraft, club memberships;, household. goods, appliances, furniture and
furnishings, pictures, silverware, china, glass, books, clothing, jewelry or other articles of
personal use or ornament, and. other tangible personal property of a nature, ‘use or classification
similar to ‘the foregoing to the Settlors’ Beneficiaries as defined in Article IV, with particular
items to be allocated as they may agree, or if they cannot agree, as the Trustee shall decide. If
any beneficiary hereunder is a minor, the Trustee may distribute such minor's share to such minor
or for’such minor's use to any person with:whom such minor is residing or who has the care or
control of such minor without further responsibility, and the receipt of the person to whom such
minor's share is distributed shall be a. complete discharge of the Trustee. The cost of packing
and shipping such property to any such beneficiary shall be charged against this trust as an
administration expense.
D. Distributions Following Surviving Settlor'sFollowing the
Death.
additions in Article III, Section B and.prior to the payments in Article III, Section E, the Trustee
shall make the following distributions from the property of this trust outright and free of trust:
1 First Distribution. The sum of Twenty-five Thousand Dollars ($25,000) in cash
shall be distributed to the Settlors' niece; ROSLYN BROMBERG; provided, however, if
ROSLYN BROMBERG fails to survive the surviving Settlor, this distribution shall lapse.
This distribution shall:not bear interest from the date of the surviving Settlor's death until
paid.
2 Second Distribution. The sum. of One Hundred Thousand Dollars
($100,000.00) in cash shall. be distributed to the Settlors' grandniece, AMY BROMBERG
JOHNSON; provided, however, if AMY BROMBERG JOHNSON fails to survive the
surviving Settlor, this distribution shall Japse. This distribution shall not bear interest
from.the date of the surviving Settlor's death until paid.
E Other _Payments. Following ‘the death. of the ‘surviving Settlor and
following’ the distributions listed above, the Trustee of the Surviving Settlor's Trust shall pay
from the income and principal of such trust the difference between all taxes which must be paid
by reason of the surviving Settlor's death. and those taxes which. would be payable.by reason of.
the surviving Settlor's death had such .trust property not been includablein the surviving Settlor's
gross estate for the’purpose of calculating such taxes. The Trustee, in such Trustee's discretion,
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may pay from such trust all or any part of the’surviving Settlor's funeral expenses, claims which
are legally enforceable against. the surviving Settlor's estate (including estate and inheritance
taxes) and reasonable expenses of administration of the ‘surviving Settlor’s estate, but such
Trustee shall not make any such payments that are notin the best interests of any person having a
beneficial interest in:the remaining property of such trust upon: termination. The Trustee may
make such payments directly or may pay over the amounts thereof to the duly qualified executor,
personal. representative, or administrator of such surviving Settlor's estate: Written statements
by the executor, personal representative, or administrator of the surviving Settlor's estate of the
sums that may be paid under this Section shall be sufficient evidence of their amounts, and the
Trustee shall be under no duty to confirm that such payments were appliéd properly.
F. Termination. The trust created by this Article-shall terminate upon the
death of the surviving Settlor: Upon such termination, all ofthe remaining trust property shall
be distributed to the Settlors' Beneficiaries as definedin Article IV.
ARTICLE IV - BENEFICIARIES
A Distribution. Any property which. is to be distributed to the "Settlors'
Beneficiaries as defined in Article IV" shall be distributed to the: Settlors' niece, ROSLYN
BROMBERG (and not to ‘her descendants) subject to the terms set forth in. this Article. If
ROSLYN BROMBERG fails to survive the Settlors, all of such property shall be distributed to
the Settlors' grandniece, AMY BROMBERG JOHNSON (and not to her descendants) outright
and free of trust: If AMY BROMBERG JOHNSON fails to, survive the Settlors, all. of such
property shall be-distributed to Settlors' grandnephew-in-law, ALAN JOHNSON (and not to his
descendants) outright’ and, free of trust: Any requirement in this Article that. a person must
survive a Settlor shall, in the case of property distributed upon the termination of a trust, instead
mean that such person must then be living.
B Distribution to Roslyn Bromberg: Any distribution to the Settlors' niece,
ROSLYN BROMBERG pursuant to this Article shall be held in ‘trust. for the ROSLYN
BROMBERG's lifetime subject to Article VI of this Trust. Agreement.
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ARTICLE V - BYPASS TRUST.
A Applicability. If any property is to be held, administered, and distributed
by the Trustee subject. to the terms and provisions of this Article, such property shall not be
distributed outright, but:instead.the Trustee shall hold all of such property. in a single trust known
as the "LEVY BYPASS TRUST."
B Distributions. The Trustee shall distribute to the surviving Settlor such
amounts of the income and principal of the trust created by this Article as are necessary, when
added to the funds reasonably available-to the.surviving Settlor from all other sources known to
the Trustee, to provide for the surviving Settlor's health, support, maintenance and education,
taking into consideration the surviving Settlor's age, education and station in life: During the
surviving Settlor's lifetime, no income or principal. of the trust. under this: Article shall be
distributed to any person other. than the surviving Settlor.
Cc. Termination, This trust shall terminate when the surviving Settlor dies.
Upon termination, all of the remaining trust property shall be distributed to the Settlors'
Beneficiaries as defined in Article lV.
ARTICLE VI- ROSLYN BROMBERG TRUST
A Applicability.. If any property is to be distributed to an individual subject
to being held, administered, and ‘distributed according to the:terms and provisions of this Article,
the Trustee shall not distribute such:property outright,. but.instead.the Trustee shall hold all of
such property in trust forthe benefit of the Settlors' niece, ROSLYN BROMBERG. Said trust
created by this Article shall be known by the name of the ROSLYN BROMBERG TRUST. The
Settlors' niece, ROSLYN BROMBERG will hereafter be referred to as the "Beneficiary" of such
trust, which individual shall.be the primary beneficiary thereof.
B Distributions. With regard to each trust created ‘by ‘this Article, the
Trustee shall. distribute tothe Beneficiary no later than. the 5th day of the month on a monthly
basis Two Thousand Dollars and .00/1.00 ($2,000.00) per month. The Trustee is authorized to
invade principal. to make such distributions to the Beneficiary. The Trustee may continue to
invade principal, to the ‘exhaustion of the trust estate, if necessary to ensure such distributions
are
made to the Beneficiary. Such distributions are to begin on the month following the nine (9)
month anniversary of the death of the surviving Settlor. Until such mandatory distributions are to
begin, the Trustee may distribute such amounts of the income and principal of such trust as are
necessary, when. added to ‘the ‘funds reasonably available to’ such Beneficiary’ from all other
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sources known to the Trustee, to provide for such Beneficiary's health, support, maintenance and
education, taking into consideration the age, education and station in life of such Beneficiary. In
addition, the Trustee, in the Trustee's discretion; may distribute to any one or more descendants
of the Beneficiary of a trust created by this Article, such amounts of the income and principal of
such trust: as: are necessary, when. added to the funds reasonably available to such Beneficiary's
descendants from all other. sources known to the Trustee, to provide for. their health, support,
maintenance and education, taking into consideration their age, education and. station in. life.
The Settlors desire that each of the Beneficiaries, and the descendants of such Beneficiaries be
afforded the opportunity to obtain as complete an. education, including attendance at ‘graduate,
professional anid special trade schools, as they may reasonably desire and be qualified to obtain.
C. Termination, The trust created by this Article shall last for the lifetime of
the Beneficiary thereof and shall terminate upon such Beneficiary's death. Upon the termination
of a trust created by this Article, all of the remaining property of such trust shall be distributed to
the Settlors' grandniece, AMY BROMBERG JOHNSON (and not to her descendants) outright
and free of trust. If AMY BROMBERG JOHNSON fails to survive the ‘Settlors; all, of such
property shall be distributed to the Settlors' grandnephew-in-law, ALAN JOHNSON (and ‘not:-to
his descendants) outright and free of trust.
ARTICLE VII'- TRUSTEE NOMINATIONS
A Successor Trustee. If ARNOLD I. LEVY and.ROSE D. LEVY both fail
to qualify, die, resign, become incapacitated, or otherwise cease.to serve as Trustee of this Trust,
then COMERICA BANK. & TRUST N.A. shall become. Trustee of this Trust: and any and all
trusts created under this Trust Agreement.
B. Delegation of Investment Discretion, The Trustee is hereby authorized
to invest and manage the funds of the Trust as a prudent investor would, in light of the purposes,
terms, distribution requirements and other circumstances of the Trust. Trustee is specifically
authorized to employ agents, brokers, custodians, investment counsel and investment managers,
specifically including Morgan Stanley Smith. Barney and one or more third party managers,
including affiliates of Morgan Stanley Smith Barney, ‘to delegate to them the discretionary
authority to:make purchases and sales of any investments otherwise authorized to the Trustee.
C. Trustee _Compensation. The Trustee shall be: entitled to reasonable
compensation, for its services pursuant to its current schedule of fees from, time to time in effect,
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and to reimbursement for any expenses’ reasonably incurred’ in, the management, custody ‘and
preservation of the trust property; such compensation and, expenses shall constitute a lien on the
trust property. Trustee: shall. be entitled to employ Custodians, Investment Managers and
Sub-Investment Managers, as well as. accountants, attorneys, and other agents to assist. Trustee in
the administration. of the Trust. Reasonable compensation fot ‘services performed by agents
shall be paid as specifically provided by the terms of. the trust, or if not, out. of income or
principal, as Trustee in Trustee’s. discretion :shall ‘determine. The. Trustee fees shall not be
decreased for payments made to agents unless agreed to.in writing by the Settlors and Trustee.
D. Trustee. Resignation, Any’ Trustee:shall have the right to resign at any
time during the life of Settlors by giving notice writing to Settlors, and at any time after Settlors?
death by giving notice-in writing:to the beneficiary(ies) then entitled. to income from, the trust.
Upon the resignation of a Trustee, a successor Trustee shall be appointed by the Settlors, and at
any time after the Settlors’ death by a majority of the beneficiaries then entitled to income from
the trust;
E. Removal of Trustee. The Settlors' retain the right to remove any Trustee
of any trust created herein by providing written notice to said acting Trustee of such removal.
Following the death of the one of the Settlors, any Trustee may be removed before the death of
the ‘surviving Settlor by a written. notice-of removal signed by: the surviving Settlor, in which
event surviving Settlor, if he or she has not previously done so, ‘shall select a. Successor Trustee.
After the surviving Settlor's death, any Trustee may be removed as Trustee by a majority of the
Trust.income beneficiaries.. When a majority of the income beneficiaries of any Trust or share
established hereunder shall exercise the power of removal pursuant to this paragraph, such power
shall beexercised by written notice specifying the date of its removal as. Trustee, and a Successor
Trustee shall be appointed by a majority of such beneficiaries.
F, Waiver of Bond: Ancillary Trustees. No Trustee. acting hereunder shall
be required. to give bond or other sécurity in any jurisdiction. If any trust created by this Trust
Agreement contains property located in another state or a. foreign jurisdiction, and the Trustee
cannot or chooses not to serve under’ the laws thereof, the power to:nominate ah ancillary Trustee
for such property (as well.as any successor ancillary Trustee) shall be exercisable by the Settlors
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acting jointly, or the surviving Settlor acting alone,.or by the Trustee if the Settlors are both:not
living or are both not. competent to act. An ancillary Trustee nominated pursuant to this Section
may be an individual or corporate Trustee.
G. Uneconomical Trusts. With regard to any trust created by this Trust
Agreement after the death of the surviving Settlor, if a corporate Trustee is serving as Trustee.of
such trust and at the time such trust has a net asset value (on the books of such Trustee) less than
the amount that would have had the same purchasing power as $50,000.00 had on the January 1st
following the date of this Trust Agreement (based on the U.S. Consumer’ Price Index’ for All
Urban Consumers applicable to Fort: Lauderdale, Florida), such corporate Trustee may terminate
such trust by complete distribution to the surviving Settlor, if living, in the case of a trust created
under Article III or V, otherwise to the primary beneficiary of such trust, Furthermore, with
regard to any’ trust. created by this Trust Agreement, if in the opinion: of a. corporate Trustee
(named and eligible:to serve or already serving) it is or becomes uneconomical for such Trustee
to serve or-continue to serve because of the size of such trust, then:if a Co-Trustee is serving,
such Co-Trustee may resign or refuse to serve, or if no Co-Trusteeis serving, such Trustee may.
resign or refuse to serve and nominate an alternate or successor Trustee.
H. "Trustee" Defined. Unless another meaning is clearly ‘indicated or.
required by context or circumstances, the term. "Trustee" shall mean and ‘include the initial
Trustee and any successor Trustee or Co-Trustees. Except as otherwise provided in this Trust
Agreement, if two or more Trustees are named or serving hereunder and any one or more, but not
all, decline or cease to serve for any reason, then the remaining Trustee or Co-Trustees, as the
case may be, shall continue to serve in such capacity. In all matters relating to each trust created
under this Trust Agreement, the decision of a majority of the Trustees then serving shall control.
Any writing signed by the persons whose decision shall control shall be valid and effective for all
purposes:as if signed by all:such. Trustees.
I "Corporate Trustee" Defined, The term "corporate Trustee" shall mean
a bank having trust powers or a trust company. having (alone or when combined with its parent
organization.and affiliate) assets beneficially owned by others under its management with a value
in excess of.$1,000,000,000 (U.S.), and the successor (by merger, consolidation, change of name
ot any other form of reorganization, of if such corporate Trustee ever transfers all of its existing
business of serving as a fiduciary to any other bank or trust company or corporation) bank or trust
company to any such corporate Trustee named herein or serving hereunder.. If a bank or trust
company. is specifically named herein’ or was a corporate Trustee (as, defined above): when it
accepted its fiduciary position hereunder, it-shall not cease to be considered a corporate Trustee
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because its. assets under management: presently are: or later, decline below’ the amount stated
above.. ‘In any instance where’ a ‘corporate Trustee is required to be nominated as.a successor
Trustee or Co-Trustee in connection with. the removal of. any Trustee or Co-Trustee, the
instrument of removal, shall contain the. acceptance of the corporate Trustee ‘so nominated.
evidenced on it. Ifa. corporate Trustee is serving as a. Co-Trustee, it shall ‘have exclusive
custody of the properties, books and records of the trust as to which it is serving, but shall make
such properties, books and records available for inspection and copying by every other Trustee of
such trust.
ARTICLE VIII - ADMINISTRATIVE PROVISIONS
A. Revocation While Both Settlors Living. While both of the Settlors are
living, either Settlor may revoke any and all trusts. created pursuant to this. Trust Agreement.
While both of the Settlors:are living, this Trust Agreement may be amended or modified only by
the Settlors acting jointly.
B. Revocation By Surviving Settlor. After the death of the deceased
Settlor, surviving Settlor retains the power to revoke or amend any of the provisions of such
trusts created pursuant to the Trust Agreement.
Cc Formality of Revocation or Amendment. Any revocation or amendment
made pursuant to this Article shall be made by acknowledged instrument delivered to the
Trustee.
D. Survivorship Provisions.For purposes. of this Trust. Agreement,
including the marital deduction, gift made: in. Article JI, no person shall ‘be deemed to have
survived a Settlor if such person should die within 90 days of such Settlor's death; provided that
if both Settlors die under circumstances where it is impossible to determine which Settlor died
first,it shall be presumed, for purposes. of this Trust Agreement, that the Husband.survived the
Wife. If the Settlors‘die within 90 days of-each other, the Settlor-who dies first shall be treated
as ‘the deceased Settlor for purposes of this Trust Agreement, and the Settlor who dies second
shall be treated as the surviving Settlor for purposes of the Trust Agreement. Any person who is
prohibited by law from inheriting property from a Settlor’ shall be treated as having failed to
survive such Settlor.
E. Right To Reside, The Settlors' principal ‘residence’ shall be entitled to the
homestead tax exemption as provided .in Section 689.071(8)(h). of the Florida Land. Trust Act,
and_in that regard, notwithstanding any other provision of this Trust Agreement; the Settlors shall
have the tight to reside on any real property owned by the trust created/under Article II while
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both Settlors are alive, and by the trust created. under Article III until the death of the surviving
Settlor. It is the intent of this: provision to preserve in. the Settlors the requisite beneficial
interest and possessory right in and to such real property to.comply with Section 196.031 of the
Florida Statutes, so that the Settlors' possessory right constitutes, in all respects, equitable title to
real estate as that phrase.is used in Section 6, Article 7 of the Constitution of the State of Florida.
The Settlors will,be entitled to claim any available homestead tax exemption for any real
property in the trust created hereunder, and for purposes of that exemption, the Settlors' interest
in: such property will be deemed an interest: in real ‘property and not an interest in :personalty.
The provisions. contained in this Section shall not restrict the Trustee in any way from selling,
leasing, or encumbering such property without the joinder of the Settlors-in any deed or other
instrument.
RK Combination of Trusts. After.the death of the.last to die of the Settlors,
the: Trustee, in the: Trustee's discretion, may combine any trust created under: this Trust
Agreement. with any other trust or trusts if the terms of such. trusts are substantially similar, if
such trusts have the same primary beneficiaries, and if such trusts have the same:inclusion ratio
as defined in Section'2642(a) of the Code. The Trustee shall not be obligated'to combine such
trusts. If trusts which are combined are to terminate at’ different times, the combined trust shall
terminate ‘in stages, with a ‘pro rata portion of the’ combined ‘trust being distributed. to ‘the
appropriate beneficiaries: when each such trust terminates. If trusts which are combined are to
terminate at the same time but have different contingent beneficiaries, the remaining property of
the combined trust shall.be divided pro rata among the contingent: beneficiaries of each trust.
Any such pro rata distributions shall be made in proportion to the value of each trust at the time
such trusts were combined.
G. Maximum Duration of Notwithstanding anything to the
Trusts.
contrary contained in.this Trust Agreement, each trust created under this Trust Agreement or by
the exercise of any power of appointment conferred by this Trust Agreement, unless earlier
terminated according to its terms, shall terminate within the time period specified in the Florida
Uniform Statutory Rule Against Perpetuities found in Section 689:225 of the Florida ‘Statutes, as
amended. If the Trustee at any time combines and administers as. one trust any trust or trusts
created hereunder and any trust or trusts: under any other instrument, such combined ‘trust shall
not continue beyond the date on. which either. of such trusts would, without regard to such
combination, have been required to expire under the rule against perpetuities or other applicable
law governing the maximum duration of trusts. If any trust (including ‘a.combined trust) would,
but for the'terms of this Section, continue beyond’such date, such trust shall nevertheless at that
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time terminate and the remaining. property of such trust shall be- distributed as’ provided in. the
Article which creates such trust.
H. Support Obligation. Notwithstanding anything to the contrary in this
Trust Agreement, the Trustee, other than an Independent Trustee as defined in Section 674(c) of
the Code, shall make'no distributions of income or principal of any trust that would to any-extent
reduce or discharge a legal or contractual obligation of any person to support any other, person.
I. Allocation of GST Exemption. The Trustee, in the Trustee's discretion,
may assist the executor, personal representative, or administrator of the estate of either of the
Settlors in allocating any remaining portion. of. such Settlor's GST exemption amount to’ any
property as to which such Settlor is the transferor, including any property transferred by such
Settlor during life as to which such Settlor did not make an allocation prior to such Settlor's death
and/or among. any generation skipping transfers (as defined in Section, 2611. of. the Code)
resulting ‘under’ this Trust Agreement and/or that may later occur with respect. to. any trust
established under this Trust Agreenient, and the Trusteé shall never be liable to any person. by
reason of such allocation, if it is made'in good faith.and' without gross negligerice. The Trustee
may, in the Trustee's discretion, set apart, to constitute two separate trusts, any property: which
would otherwise have been allocated to any trust created hereunder and which would have had an
inclusion. ratio, as defined ‘in Section 2642(a) of the Code, of neither‘one nor zero so that one
such trust has an inclusion ratio of one and the other such trust has an inclusion ratio of zero. To
minimize GST taxes upon. the surviving Settlor’s death, if the special election :provided by
Section. 2652(a)(3) of the Code was: exercised following the death of the deceased Settlor, in
providing éach of the beneficiaries with their particular percentage of the remaining property of
the trusts created hereunder, the Trustee shall,.as necessary, allocate properties held in trusts with
an inclusion ratio of zero to trusts with inclusion ratios’ of zero or to beneficiaries. who are skip
persons ‘for GST purposes, and, the Trustee. shall allocate properties held in trusts with an
inclusion ratio greater than zero ‘to trusts with inclusion ratios of greater than zero or: to
beneficiaries who are non-skip' persons for GST purposes.
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ARTICLE IX.- TRUSTEE PROVISIONS
AL Powers. The Trustee shall have-all of the powers conferred upon trustees
by’ the Florida Trust Code, and. by: any future amendments to the Florida Trust Code or any
corresponding statute, except for any. instance in which the Florida Trust Code, as, amended, or
any such other statutory provisions may conflict with the express’ provisions of this Trust
Agreement, in which case the express provisions of this Trust Agreement. shall control. In
addition to such powers, the Trustee is specifically authorized:
qa) To retain, in the discretion of the: Trustee, any property transferred
to the Trustee by the Settlors or any other person, including securities. of any
corporate Trustee, without regard to the duty to diversify investments under. the
Florida Trust Code and without liability for any depreciation or loss occasioned by
such retention;
(2) To exchange, sell or lease (including leases for terms exceeding the
duration of all trusts created by this Trust Agreement) for cash, property or credit,
or to partition, from time to time, publicly or privately, at such prices, on such
terms, times and conditions-and by‘instruments of such character and with ‘such
covenants as the Trustee may deem proper, all or any’part of the assets of each
trust, including homestead real. property, and no vendee or lessee of the Trustee
shall be required to look to the application made by the Trustee of any funds paid
to the Trustee;
(3) To, borrow. money from any source (including any Trustee) and to
mortgage, pledge or in any other manner encumber all or any part of the assets of
any trust as may be advisable in the judgment of the Trustee for the advantageous
administration of the trusts;
(4) To invest and ‘reinvest each ofthe ‘trust estates in. any kind of
property whatsoever, real or personal, whether or. not productive of income’ and
without ‘regard to the proportion that such property or property of a. similar
character held may bear to the e
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11-2024-CA-000552-0001-XX Filing # 194025333 E-Filed 03/14/2024 01:13:53 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA TRUST DIVISION IN RE: THE LEVY FAMILY REVOCABLE CASE NO.: LIVING TRUST, w/a/d May 5, 2013. DIVISION: / COMPLAINT FOR JUDICIAL MODIFICATION OF TRUST Comerica Bank & Trust, N.A (“Comerica”), as Trustee of the Levy Family Revocable Living Trust (the “Trust”), through its undersigned counsel, files this Complaint for Judicial Modification of Trust and states as follows: 1 This is an action for judicial modification of the Trust pursuant to §§736.04113 & 736.04115, Florida Statutes. 2. This Court has subject matter jurisdiction over this proceeding pursuant to §736.0203, Florida Statutes. 3. Venue is proper in Collier County because the qualified beneficiaries of the Trust reside in Collier County. 4. Comerica is the trustee of the Trust, is authorized to act as a trustee in Florida, and presently administers the Trust in Collier County, Florida. 5 Roslyn Bromberg is a resident of Collier County, Florida, is a qualified beneficiary of the Trust, and is otherwise sui juris. 6 Amy Bromberg Johnson is a resident of Collier County, Florida, is a qualified beneficiary of the Trust, and is otherwise sui juris. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 03/14/2024 01:13:53 PM 7 The remaining beneficiaries of the Trust have all received their full distributions from the Trust and therefore are not affected by this proceeding. 8 Arnold and Rose Levy established the Trust by executing the “Levy Family Revocable Trust Second Restatement and Amendment” on August 2, 2010. After Arnold Levy’s death, Rose Levy executed the “First Amendment to the Second Restatement and Amendment of the Levy Family Revocable Trust on May 5, 2013. Copies of the Trust documents are attached to this Petition as Composite Exhibit A. 9 Arnold Levy predeceased Rose Levy. 10. Rose Levy died on August 1, 2021, at which point the Trust became irrevocable. ll. Under Article III.D. of the Trust, after Rose Levy’s death, specific distributions were to be made to six beneficiaries (the “Specific Distributions”). The Specific Distributions have all been made as of the date of the filing of this Complaint. 12. Under Article III.F., after the Specific Distributions and following payment of certain other expenses from the Trust, if any, the Trust is to terminate and all remaining Trust property is to be distributed to the “Settlors’ Beneficiaries as defined in Article IV.” 13. Article IV of the Trust defines the “Settlors’ Beneficiaries” as Roslyn Bromberg. 14. Article IV.B. of the Trust indicates that any distributions to Roslyn Bromberg shall be held in trust for Roslyn Bromberg’s lifetime subject to Article VI of the Trust. 15. Article VI creates the Roslyn Bromberg Trust. Article VI.B. of the Trust requires the Trustee to distribute exactly $2,000 per month from the Roslyn Bromberg Trust to Roslyn Bromberg. 16. Under Article VI.C. of the Trust, the Roslyn Bromberg Trust terminates at the death of Roslyn Bromberg. Upon the termination of the Roslyn Bromberg Trust, any remaining property of the trust is to be distributed to Roslyn Bromberg’s daughter, Amy Bromberg Johnson (“Amy”). 17. Pursuant to the terms of the Trust as outlined above, Roslyn Bromberg and Amy are the only remaining qualified beneficiaries of the Trust. 18. Since Rose Levy executed the last amendment to the Trust in 2013, Roslyn Bromberg’s health has deteriorated to the point that she has been required to enter an assisted living facility (the “ALF”). 19. The monthly cost of the ALF where Roslyn Bromberg resides is currently more than double the $2,000 distribution the Roslyn Bromberg Trust permits the trustee to make each month. 20. Roslyn Bromberg’s monthly social security income and the $2,000 distributions from the Roslyn Bromberg Trust are Roslyn’s only sources of income and are insufficient to support the costs of her living and care at the ALF. 21. The Trustee requests this Court modify the Roslyn Bromberg Trust to permit the Trustee to distribute Trust property sufficient to pay Roslyn Bromberg’s living expenses at the ALF, and any other expenses reasonably necessary for Roslyn Bromberg’s health, maintenance, and support, in the discretion of the Trustee. 22. Under § 736.04113, Fla. Stat., a court is permitted to modify a trust at the request of a trustee if, because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust. 23. Additionally, under §736.04115, Fla. Stat., “[w]ithout regard to the reasons for modification provided in s. 736.041 13, if compliance with the terms of a trust is not in the best interests of the beneficiaries, upon the application of a trustee or any qualified beneficiary, a court may at any time modify a trust that is not then revocable as provided in s. 736.04113(2).” 24. Under §736.4113(2), Fla. Stat., in modifying a trust, the court may “[a]mend or change the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust”, or “[d]irect or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust.” 25. The Trustee requests modification of the RosyIn Bromberg Trust under §736.4113 due to the change in Roslyn Bromberg’s medical condition that has required her to reside at the ALF, and the high costs of assisted living facilities. The settlors did not anticipate Roslyn Bromberg would be required to reside at an ALF nor anticipate the level of financial support that would be required for an ALF at current rates. Had the settlors known of Roslyn Bromberg’s change in medical condition, the settlors presumably would have modified the terms of the Trust to permit the trustee to use Trust property to support Rosyln Bromberg. 26. Additionally, modification is appropriate under §736.4115, Fla. Stat., as compliance with the terms of the Roslyn Bromberg Trust that only permit the Trustee to distribute $2,000 per month to Roslyn Bromberg are not in the best interests of the beneficiaries. The only remaining beneficiaries are Roslyn Bromberg and her daughter Amy. Comerica is informed and believes Amy is in agreement with the relief requested in this Complaint. Requiring the Trustee to retain funds in the Trust rather than using those funds as intended by the Settlors, to help Roslyn Bromberg, is not in the best interests of either of the remaining beneficiaries. WHEREAS, the Trustee requests this Court enter an order modifying the Roslyn Bromberg Trust to permit the Trustee, in the Trustee’s sole discretion, to distribute property of the trust sufficient to pay the reasonable cost for the beneficiary to reside in an ALF and any other reasonable expenses necessary for Roslyn Bromberg’s health, maintenance, and support. DATED this 14" day of March, 2024. /s/ Frederick L. Hearn Steven L. Hearn, Esquire Florida Bar No. 350801 Frederick L. Hearn, Esquire Florida Bar No. 105987 STEVEN L. HEARN, P.A. 600 S. Magnolia Ave, Suite 200 Tampa, FL 33606 Telephone: (813) 222-0003 slh@estatedisputes.com filh@estatedisputes.com melr@estatedisputes.com LEVY FAMILY REVOCABLE LIVING TRUST Prepared by: LAW OFFICE OF LAWRENCE LEVY, P.A. 12781 Miramar Parkway, Suite 203 Miramar, Florida 33027 954-442-6543 COMPOSITE EXHIBIT A LEVY FAMILY REVOCABLE LIVING TRUST SECOND RESTATEMENT AND AMENDMENT THIS TRUST AGREEMENT ‘is entered into on August 3, 2010, between ARNOLD. I. LEVY (the "Husband") and ROSE D. LEVY. (the "Wife"), of Broward. County, Florida, as Settlors (the "Settlors"), and ARNOLD I. LEVY, of Palm Beach County, Florida and ROSE D. LEVY, of Broward County, Florida as initial Co-Trustees (hereinafter referred to jointly as the "Trustee"). The Settlors originally created. a revocable: trust. agreement by an instrument dated March 3, 1995, entitled the-"LEVY FAMILY REVOCABLE LIVING TRUST." Subsequently, ‘the Settlors amended such revocable trust agreement by an instrument dated January 26,2007. This new Trust Agreement is intended by the Settlors to amend, restate, and supersede such prior instruments. Accordingly, pursuant to the right reserved ‘in the Trust, the following is an amendment and. restatement: in its entirety of the "LEVY FAMILY REVOCABLE LIVING TRUST." All assets: currently owned. by the "LEVY FAMILY REVOCABLE LIVING TRUST" (or. any similar designation) shall be controlled by this new Trust Agreement. WITNESSETH: sin enn eid The Settlors desire to create a, trust’ to be held, administered ‘and distributed ‘in accordance with the provisions of this Trust Agreement. Accordingly, ‘the Settlors have transferred to the Trustee, and the Trustee acknowledges receipt from the Settlors of the sum of one dollar in cash. This property, together. with any other property which may be conveyed ‘to the Trustee subject to the trust hereby created, shall be held, administered and distributed by the Trustee, upon the trust and for the purposes and uses herein set forth. The trust initially created by this Trust..Agreement shall be known as the "LEVY FAMILY REVOCABLE LIVING TRUST." ARTICLE I - IDENTIFICATION A Children. The Settlors have.no children together. ARTICLE I - INITIAL REVOCABLE TRUST. A. Distributions, The Trustee shall hold, manage, sell, exchange, invest and reinvest the trust property, collect all income and, after deducting such expenses as are properly payable, shall accumulate and distribute the income and principal. as herein. provided. The Trustee shall distribute the income and principal of the trust to the Settlors in such amounts as the Settlors may direct. All undistributed trust income shall.be accumulated and invested. If either Settlor becomes incapacitated, the Trustee shall distribute such amounts..of the income: and principal of the trust for the comfort, health, support, maintenance or other-needs of the Settlors as the Trustee shall determine; in. the Trustee's discretion, to’ be’ necessary or appropriate ‘to maintain the Settlors in accordance with the Settlors' accustomed standard of living at the time of the execution of this Trust Agreement. B. Character of Property. Property. transferred to this trust which consists of a Settlor's separate property (hereinafter referred. to as such Settlor's "Separate Estate") shall retain its character as separate property and shallbe accounted for separately by the Trustee so that it can be returned to such. Settlor as ‘his or’ her separate property if this instrument is completely or partially revoked. Property transferred to this trust which consists of the Settlors' joint property. (hereinafter referred to as ‘the "Joint Estate") shall retain its character as joint property and shall be accounted for separately by the Trustee so that it can be retumed: to the Settlors as their joint property if this instrument is.completely or partially revoked. The powers of the Trustee over the Joint Estate shall-be no more extensive than. those possessed from time to time by either Settlor over the Settlors' joint property. Cc Tangible Personal Property. Following the death of the first Settlor to die (hereinafter referred to as the "deceased Settlor"), the Trustee shall distribute all of the Settlors' motor vehicles, personal watercraft, club memberships, household goods, appliances, furniture and furnishings, pictures, silverware, china, glass, books, clothing, jewelry: or other articles of personal use: or ornament, and. other tangible personal property of a nature, use or classification similar to the foregoing to the Surviving Settlor's Trust created ‘under Article III hereof to be held, administered and distributed, for the benefit, of the other Settlor (hereinafter referred to as the "surviving Settlor") as’provided therein. D. Termination. Following the death of the deceased Settlor, the Trustee shall divide all of the then remaining trust property (including property which is received by the Trustee: by beneficiary designation, under the deceased. Settlor's Will, or otherwise) into two separate.shares, which may be unequal in value: One of such'shares shall initially contain that FCP Al portion of the.trust property that.constitutes all-of the Separate Estate of the surviving Settlor and that portion of the trust property which constitutes a one-half interest in the Joint Estate, and for purposes of this Article shall be known.as the "surviving Settlor's share." Following the death of the deceased Settlor, the surviving Settlor's share shall be-distributed by the Trustee of this trust to ‘the Surviving Settlor's Trust created under Article III hereof to be held, administered and distributed. for the benefit of the surviving. Settlor as provided therein. The. other. share shall initially contain that portion of the trust property that constitutes all of the Separate Estate of the deceased Settlor and that portion of the trust property which constitutes a:one-half interest in the Joint Estate, and for purposes of this Article, shall be known as the "deceased Settlor's share." E. Distributions Upon Termination. Following the death of the deceased Settlor.and following any additions to the deceased Settlor's share under Article II, Section D, the Trustee shall distribute all of the deceased Settlor's share to the surviving Settlor's Trust created under Article III; provided, however, the surviving Settlor shall be permitted to disclaim all or any part of such gift, and in such case, the disclaimed interests shall be held, administered, and. distributed in the Bypass Trust created under Article V. F. Taxes and Expenses. If there is no disclaimer of the gift jin Article II, Section E, the Trustee shall pay from the deceased Settlor’s share the difference between all taxes which must be paid by reason of the deceased Settlor's death and those taxes’ which would be payable by reason of the deceased Settlor's death had the property of ‘this trust ‘not been includable in the deceased Settlor's gross estate for the purpose of calculating such taxes. If there is a disclaimer of the gift in Article II, Section E, the Trustee shall. pay fromthe property transferred:to the Bypass Trust created. under Article V the difference between all taxes which must be paid by reason of the deceased Settlor’s death and those taxes which would be payable by reason of the deceased Settlor's death had such disclaimed: property not been includable in. the deceased Settlor's gross estate for the purpose of. calculating such taxes; provided, however, to the extent the property transferred to the Bypass Trust is insufficient for the payment of such taxes, then any excess shall be paid. by ‘the Trustee from, the deceased Settlor's share. Notwithstanding the foregoing, if there is a disclaimer of the gift in Article II, Section E, any state estate or inheritance taxes which.are payable by reason of the deceased Settlor's death and which, are deductible under Section 2058 of the Code shall, to the extent possible; be paid out of the portion of the deceased Settlor's share which is: not disclaimed. The Trustee, in such Trustee's discretion, may pay from the deceased Settlor’s. share all or any part of the deceased Settlor's funeral expenses, claims which. are legally enforceable against’ the deceased Settlor's estate (including estate and inheritance taxes) and reasonable expenses of administration of the ZB? Feb deceased Settlor's. estate, but. the Trustee shall not make any. such payments ‘that aré‘not in the best, interest of the surviving Settlor; provided, however, if there is a disclaimer of the gift in Article II, Section E, the’Trustee shall make such payments from the property transferred to the Bypass Trust created under Article V unless the property transferred to the Bypass Trust is insufficient for the;payment of such expenses, in which case the excess shall be paid:from the deceased. Settlor's share. The Trustee may make such payments directly or may pay over the amounts thereof to the duly qualified executor, personal representative; or-administrator of the deceased. Settlor's estate. Written statements by’ the executor,. personal representative, or administrator of the deceased Settlor's estate of the sums that may be paid under this. Section shall be sufficient evidence of their amounts, and the Trustee shall be under no duty to confirm that such payments were applied properly. ARTICLE III - SURVIVING SETTLOR'S TRUST A Distributions. The Trustee shall hold, manage, sell, exchange, invest and reinvest. the ‘trust property of the trust created by‘this Article, collect. all income and, ‘after deducting such expenses as are properly payable, shall distribute the income and principal as provided in this Article. The-trust created by this Article shall be known by the name of the surviving Settlor, followed by the words "Revocable Trust." The Trustee: shall distribute the income and principal of the Surviving Settlor's Trust to the surviving Settlor in such amounts as the surviving Settlor may direct. All. undistributed trust income shall be accumulated and invested. If the surviving Settlor becomes incapacitated, the Trustee shall distribute such amounts of the income’ and principal of the surviving Settlor's Trust for the comfort, health, support, maintenance or other needs of the surviving Settlor as the Trustee shall determine, in the Trustee's discretion, to be necessary or appropriate to maintain the surviving Settlor ‘in accordance with the surviving Settlor's accustomed standard of living at the'time of the death of the deceased Settlor. B. Additions Following Death of Surviving Settlor. Following the death of the surviving Settlor, the Trustee shall:add to the Surviving Settlor's Trust all property which was owned by the surviving Settlor and which is received by such Trustee under the surviving Settlor's Will and all non-probate assets (which shall include, but not be limited to, any payments from an employee or self-employed benefit plan, individual:retirement account or annuity or any proceeds of any insurance policy on the life of the surviving Settlor) which. are payable’ to the Trustee hereunder. Lae? AL Cc. Gifts_of Tangible Personal_Property. Following: the death of the surviving Settlor, the Trustee shall distribute, free of trust, all of the surviving Settlor's motor vehicles, personal. watercraft, club memberships;, household. goods, appliances, furniture and furnishings, pictures, silverware, china, glass, books, clothing, jewelry or other articles of personal use or ornament, and. other tangible personal property of a nature, ‘use or classification similar to ‘the foregoing to the Settlors’ Beneficiaries as defined in Article IV, with particular items to be allocated as they may agree, or if they cannot agree, as the Trustee shall decide. If any beneficiary hereunder is a minor, the Trustee may distribute such minor's share to such minor or for’such minor's use to any person with:whom such minor is residing or who has the care or control of such minor without further responsibility, and the receipt of the person to whom such minor's share is distributed shall be a. complete discharge of the Trustee. The cost of packing and shipping such property to any such beneficiary shall be charged against this trust as an administration expense. D. Distributions Following Surviving Settlor'sFollowing the Death. additions in Article III, Section B and.prior to the payments in Article III, Section E, the Trustee shall make the following distributions from the property of this trust outright and free of trust: 1 First Distribution. The sum of Twenty-five Thousand Dollars ($25,000) in cash shall be distributed to the Settlors' niece; ROSLYN BROMBERG; provided, however, if ROSLYN BROMBERG fails to survive the surviving Settlor, this distribution shall lapse. This distribution shall:not bear interest from the date of the surviving Settlor's death until paid. 2 Second Distribution. The sum. of One Hundred Thousand Dollars ($100,000.00) in cash shall. be distributed to the Settlors' grandniece, AMY BROMBERG JOHNSON; provided, however, if AMY BROMBERG JOHNSON fails to survive the surviving Settlor, this distribution shall Japse. This distribution shall not bear interest from.the date of the surviving Settlor's death until paid. E Other _Payments. Following ‘the death. of the ‘surviving Settlor and following’ the distributions listed above, the Trustee of the Surviving Settlor's Trust shall pay from the income and principal of such trust the difference between all taxes which must be paid by reason of the surviving Settlor's death. and those taxes which. would be payable.by reason of. the surviving Settlor's death had such .trust property not been includablein the surviving Settlor's gross estate for the’purpose of calculating such taxes. The Trustee, in such Trustee's discretion, Cle Ally may pay from such trust all or any part of the’surviving Settlor's funeral expenses, claims which are legally enforceable against. the surviving Settlor's estate (including estate and inheritance taxes) and reasonable expenses of administration of the ‘surviving Settlor’s estate, but such Trustee shall not make any such payments that are notin the best interests of any person having a beneficial interest in:the remaining property of such trust upon: termination. The Trustee may make such payments directly or may pay over the amounts thereof to the duly qualified executor, personal. representative, or administrator of such surviving Settlor's estate: Written statements by the executor, personal representative, or administrator of the surviving Settlor's estate of the sums that may be paid under this Section shall be sufficient evidence of their amounts, and the Trustee shall be under no duty to confirm that such payments were appliéd properly. F. Termination. The trust created by this Article-shall terminate upon the death of the surviving Settlor: Upon such termination, all ofthe remaining trust property shall be distributed to the Settlors' Beneficiaries as definedin Article IV. ARTICLE IV - BENEFICIARIES A Distribution. Any property which. is to be distributed to the "Settlors' Beneficiaries as defined in Article IV" shall be distributed to the: Settlors' niece, ROSLYN BROMBERG (and not to ‘her descendants) subject to the terms set forth in. this Article. If ROSLYN BROMBERG fails to survive the Settlors, all of such property shall be distributed to the Settlors' grandniece, AMY BROMBERG JOHNSON (and not to her descendants) outright and free of trust: If AMY BROMBERG JOHNSON fails to, survive the Settlors, all. of such property shall be-distributed to Settlors' grandnephew-in-law, ALAN JOHNSON (and not to his descendants) outright’ and, free of trust: Any requirement in this Article that. a person must survive a Settlor shall, in the case of property distributed upon the termination of a trust, instead mean that such person must then be living. B Distribution to Roslyn Bromberg: Any distribution to the Settlors' niece, ROSLYN BROMBERG pursuant to this Article shall be held in ‘trust. for the ROSLYN BROMBERG's lifetime subject to Article VI of this Trust. Agreement. ZA doa ARTICLE V - BYPASS TRUST. A Applicability. If any property is to be held, administered, and distributed by the Trustee subject. to the terms and provisions of this Article, such property shall not be distributed outright, but:instead.the Trustee shall hold all of such property. in a single trust known as the "LEVY BYPASS TRUST." B Distributions. The Trustee shall distribute to the surviving Settlor such amounts of the income and principal of the trust created by this Article as are necessary, when added to the funds reasonably available-to the.surviving Settlor from all other sources known to the Trustee, to provide for the surviving Settlor's health, support, maintenance and education, taking into consideration the surviving Settlor's age, education and station in life: During the surviving Settlor's lifetime, no income or principal. of the trust. under this: Article shall be distributed to any person other. than the surviving Settlor. Cc. Termination, This trust shall terminate when the surviving Settlor dies. Upon termination, all of the remaining trust property shall be distributed to the Settlors' Beneficiaries as defined in Article lV. ARTICLE VI- ROSLYN BROMBERG TRUST A Applicability.. If any property is to be distributed to an individual subject to being held, administered, and ‘distributed according to the:terms and provisions of this Article, the Trustee shall not distribute such:property outright,. but.instead.the Trustee shall hold all of such property in trust forthe benefit of the Settlors' niece, ROSLYN BROMBERG. Said trust created by this Article shall be known by the name of the ROSLYN BROMBERG TRUST. The Settlors' niece, ROSLYN BROMBERG will hereafter be referred to as the "Beneficiary" of such trust, which individual shall.be the primary beneficiary thereof. B Distributions. With regard to each trust created ‘by ‘this Article, the Trustee shall. distribute tothe Beneficiary no later than. the 5th day of the month on a monthly basis Two Thousand Dollars and .00/1.00 ($2,000.00) per month. The Trustee is authorized to invade principal. to make such distributions to the Beneficiary. The Trustee may continue to invade principal, to the ‘exhaustion of the trust estate, if necessary to ensure such distributions are made to the Beneficiary. Such distributions are to begin on the month following the nine (9) month anniversary of the death of the surviving Settlor. Until such mandatory distributions are to begin, the Trustee may distribute such amounts of the income and principal of such trust as are necessary, when. added to ‘the ‘funds reasonably available to’ such Beneficiary’ from all other LAT A sources known to the Trustee, to provide for such Beneficiary's health, support, maintenance and education, taking into consideration the age, education and station in life of such Beneficiary. In addition, the Trustee, in the Trustee's discretion; may distribute to any one or more descendants of the Beneficiary of a trust created by this Article, such amounts of the income and principal of such trust: as: are necessary, when. added to the funds reasonably available to such Beneficiary's descendants from all other. sources known to the Trustee, to provide for. their health, support, maintenance and education, taking into consideration their age, education and. station in. life. The Settlors desire that each of the Beneficiaries, and the descendants of such Beneficiaries be afforded the opportunity to obtain as complete an. education, including attendance at ‘graduate, professional anid special trade schools, as they may reasonably desire and be qualified to obtain. C. Termination, The trust created by this Article shall last for the lifetime of the Beneficiary thereof and shall terminate upon such Beneficiary's death. Upon the termination of a trust created by this Article, all of the remaining property of such trust shall be distributed to the Settlors' grandniece, AMY BROMBERG JOHNSON (and not to her descendants) outright and free of trust. If AMY BROMBERG JOHNSON fails to survive the ‘Settlors; all, of such property shall be distributed to the Settlors' grandnephew-in-law, ALAN JOHNSON (and ‘not:-to his descendants) outright and free of trust. ARTICLE VII'- TRUSTEE NOMINATIONS A Successor Trustee. If ARNOLD I. LEVY and.ROSE D. LEVY both fail to qualify, die, resign, become incapacitated, or otherwise cease.to serve as Trustee of this Trust, then COMERICA BANK. & TRUST N.A. shall become. Trustee of this Trust: and any and all trusts created under this Trust Agreement. B. Delegation of Investment Discretion, The Trustee is hereby authorized to invest and manage the funds of the Trust as a prudent investor would, in light of the purposes, terms, distribution requirements and other circumstances of the Trust. Trustee is specifically authorized to employ agents, brokers, custodians, investment counsel and investment managers, specifically including Morgan Stanley Smith. Barney and one or more third party managers, including affiliates of Morgan Stanley Smith Barney, ‘to delegate to them the discretionary authority to:make purchases and sales of any investments otherwise authorized to the Trustee. C. Trustee _Compensation. The Trustee shall be: entitled to reasonable compensation, for its services pursuant to its current schedule of fees from, time to time in effect, Zax AL and to reimbursement for any expenses’ reasonably incurred’ in, the management, custody ‘and preservation of the trust property; such compensation and, expenses shall constitute a lien on the trust property. Trustee: shall. be entitled to employ Custodians, Investment Managers and Sub-Investment Managers, as well as. accountants, attorneys, and other agents to assist. Trustee in the administration. of the Trust. Reasonable compensation fot ‘services performed by agents shall be paid as specifically provided by the terms of. the trust, or if not, out. of income or principal, as Trustee in Trustee’s. discretion :shall ‘determine. The. Trustee fees shall not be decreased for payments made to agents unless agreed to.in writing by the Settlors and Trustee. D. Trustee. Resignation, Any’ Trustee:shall have the right to resign at any time during the life of Settlors by giving notice writing to Settlors, and at any time after Settlors? death by giving notice-in writing:to the beneficiary(ies) then entitled. to income from, the trust. Upon the resignation of a Trustee, a successor Trustee shall be appointed by the Settlors, and at any time after the Settlors’ death by a majority of the beneficiaries then entitled to income from the trust; E. Removal of Trustee. The Settlors' retain the right to remove any Trustee of any trust created herein by providing written notice to said acting Trustee of such removal. Following the death of the one of the Settlors, any Trustee may be removed before the death of the ‘surviving Settlor by a written. notice-of removal signed by: the surviving Settlor, in which event surviving Settlor, if he or she has not previously done so, ‘shall select a. Successor Trustee. After the surviving Settlor's death, any Trustee may be removed as Trustee by a majority of the Trust.income beneficiaries.. When a majority of the income beneficiaries of any Trust or share established hereunder shall exercise the power of removal pursuant to this paragraph, such power shall beexercised by written notice specifying the date of its removal as. Trustee, and a Successor Trustee shall be appointed by a majority of such beneficiaries. F, Waiver of Bond: Ancillary Trustees. No Trustee. acting hereunder shall be required. to give bond or other sécurity in any jurisdiction. If any trust created by this Trust Agreement contains property located in another state or a. foreign jurisdiction, and the Trustee cannot or chooses not to serve under’ the laws thereof, the power to:nominate ah ancillary Trustee for such property (as well.as any successor ancillary Trustee) shall be exercisable by the Settlors AL 9 acting jointly, or the surviving Settlor acting alone,.or by the Trustee if the Settlors are both:not living or are both not. competent to act. An ancillary Trustee nominated pursuant to this Section may be an individual or corporate Trustee. G. Uneconomical Trusts. With regard to any trust created by this Trust Agreement after the death of the surviving Settlor, if a corporate Trustee is serving as Trustee.of such trust and at the time such trust has a net asset value (on the books of such Trustee) less than the amount that would have had the same purchasing power as $50,000.00 had on the January 1st following the date of this Trust Agreement (based on the U.S. Consumer’ Price Index’ for All Urban Consumers applicable to Fort: Lauderdale, Florida), such corporate Trustee may terminate such trust by complete distribution to the surviving Settlor, if living, in the case of a trust created under Article III or V, otherwise to the primary beneficiary of such trust, Furthermore, with regard to any’ trust. created by this Trust Agreement, if in the opinion: of a. corporate Trustee (named and eligible:to serve or already serving) it is or becomes uneconomical for such Trustee to serve or-continue to serve because of the size of such trust, then:if a Co-Trustee is serving, such Co-Trustee may resign or refuse to serve, or if no Co-Trusteeis serving, such Trustee may. resign or refuse to serve and nominate an alternate or successor Trustee. H. "Trustee" Defined. Unless another meaning is clearly ‘indicated or. required by context or circumstances, the term. "Trustee" shall mean and ‘include the initial Trustee and any successor Trustee or Co-Trustees. Except as otherwise provided in this Trust Agreement, if two or more Trustees are named or serving hereunder and any one or more, but not all, decline or cease to serve for any reason, then the remaining Trustee or Co-Trustees, as the case may be, shall continue to serve in such capacity. In all matters relating to each trust created under this Trust Agreement, the decision of a majority of the Trustees then serving shall control. Any writing signed by the persons whose decision shall control shall be valid and effective for all purposes:as if signed by all:such. Trustees. I "Corporate Trustee" Defined, The term "corporate Trustee" shall mean a bank having trust powers or a trust company. having (alone or when combined with its parent organization.and affiliate) assets beneficially owned by others under its management with a value in excess of.$1,000,000,000 (U.S.), and the successor (by merger, consolidation, change of name ot any other form of reorganization, of if such corporate Trustee ever transfers all of its existing business of serving as a fiduciary to any other bank or trust company or corporation) bank or trust company to any such corporate Trustee named herein or serving hereunder.. If a bank or trust company. is specifically named herein’ or was a corporate Trustee (as, defined above): when it accepted its fiduciary position hereunder, it-shall not cease to be considered a corporate Trustee eZ AL 10 because its. assets under management: presently are: or later, decline below’ the amount stated above.. ‘In any instance where’ a ‘corporate Trustee is required to be nominated as.a successor Trustee or Co-Trustee in connection with. the removal of. any Trustee or Co-Trustee, the instrument of removal, shall contain the. acceptance of the corporate Trustee ‘so nominated. evidenced on it. Ifa. corporate Trustee is serving as a. Co-Trustee, it shall ‘have exclusive custody of the properties, books and records of the trust as to which it is serving, but shall make such properties, books and records available for inspection and copying by every other Trustee of such trust. ARTICLE VIII - ADMINISTRATIVE PROVISIONS A. Revocation While Both Settlors Living. While both of the Settlors are living, either Settlor may revoke any and all trusts. created pursuant to this. Trust Agreement. While both of the Settlors:are living, this Trust Agreement may be amended or modified only by the Settlors acting jointly. B. Revocation By Surviving Settlor. After the death of the deceased Settlor, surviving Settlor retains the power to revoke or amend any of the provisions of such trusts created pursuant to the Trust Agreement. Cc Formality of Revocation or Amendment. Any revocation or amendment made pursuant to this Article shall be made by acknowledged instrument delivered to the Trustee. D. Survivorship Provisions.For purposes. of this Trust. Agreement, including the marital deduction, gift made: in. Article JI, no person shall ‘be deemed to have survived a Settlor if such person should die within 90 days of such Settlor's death; provided that if both Settlors die under circumstances where it is impossible to determine which Settlor died first,it shall be presumed, for purposes. of this Trust Agreement, that the Husband.survived the Wife. If the Settlors‘die within 90 days of-each other, the Settlor-who dies first shall be treated as ‘the deceased Settlor for purposes of this Trust Agreement, and the Settlor who dies second shall be treated as the surviving Settlor for purposes of the Trust Agreement. Any person who is prohibited by law from inheriting property from a Settlor’ shall be treated as having failed to survive such Settlor. E. Right To Reside, The Settlors' principal ‘residence’ shall be entitled to the homestead tax exemption as provided .in Section 689.071(8)(h). of the Florida Land. Trust Act, and_in that regard, notwithstanding any other provision of this Trust Agreement; the Settlors shall have the tight to reside on any real property owned by the trust created/under Article II while 11 Bie both Settlors are alive, and by the trust created. under Article III until the death of the surviving Settlor. It is the intent of this: provision to preserve in. the Settlors the requisite beneficial interest and possessory right in and to such real property to.comply with Section 196.031 of the Florida Statutes, so that the Settlors' possessory right constitutes, in all respects, equitable title to real estate as that phrase.is used in Section 6, Article 7 of the Constitution of the State of Florida. The Settlors will,be entitled to claim any available homestead tax exemption for any real property in the trust created hereunder, and for purposes of that exemption, the Settlors' interest in: such property will be deemed an interest: in real ‘property and not an interest in :personalty. The provisions. contained in this Section shall not restrict the Trustee in any way from selling, leasing, or encumbering such property without the joinder of the Settlors-in any deed or other instrument. RK Combination of Trusts. After.the death of the.last to die of the Settlors, the: Trustee, in the: Trustee's discretion, may combine any trust created under: this Trust Agreement. with any other trust or trusts if the terms of such. trusts are substantially similar, if such trusts have the same primary beneficiaries, and if such trusts have the same:inclusion ratio as defined in Section'2642(a) of the Code. The Trustee shall not be obligated'to combine such trusts. If trusts which are combined are to terminate at’ different times, the combined trust shall terminate ‘in stages, with a ‘pro rata portion of the’ combined ‘trust being distributed. to ‘the appropriate beneficiaries: when each such trust terminates. If trusts which are combined are to terminate at the same time but have different contingent beneficiaries, the remaining property of the combined trust shall.be divided pro rata among the contingent: beneficiaries of each trust. Any such pro rata distributions shall be made in proportion to the value of each trust at the time such trusts were combined. G. Maximum Duration of Notwithstanding anything to the Trusts. contrary contained in.this Trust Agreement, each trust created under this Trust Agreement or by the exercise of any power of appointment conferred by this Trust Agreement, unless earlier terminated according to its terms, shall terminate within the time period specified in the Florida Uniform Statutory Rule Against Perpetuities found in Section 689:225 of the Florida ‘Statutes, as amended. If the Trustee at any time combines and administers as. one trust any trust or trusts created hereunder and any trust or trusts: under any other instrument, such combined ‘trust shall not continue beyond the date on. which either. of such trusts would, without regard to such combination, have been required to expire under the rule against perpetuities or other applicable law governing the maximum duration of trusts. If any trust (including ‘a.combined trust) would, but for the'terms of this Section, continue beyond’such date, such trust shall nevertheless at that ZI 12 Abe time terminate and the remaining. property of such trust shall be- distributed as’ provided in. the Article which creates such trust. H. Support Obligation. Notwithstanding anything to the contrary in this Trust Agreement, the Trustee, other than an Independent Trustee as defined in Section 674(c) of the Code, shall make'no distributions of income or principal of any trust that would to any-extent reduce or discharge a legal or contractual obligation of any person to support any other, person. I. Allocation of GST Exemption. The Trustee, in the Trustee's discretion, may assist the executor, personal representative, or administrator of the estate of either of the Settlors in allocating any remaining portion. of. such Settlor's GST exemption amount to’ any property as to which such Settlor is the transferor, including any property transferred by such Settlor during life as to which such Settlor did not make an allocation prior to such Settlor's death and/or among. any generation skipping transfers (as defined in Section, 2611. of. the Code) resulting ‘under’ this Trust Agreement and/or that may later occur with respect. to. any trust established under this Trust Agreenient, and the Trusteé shall never be liable to any person. by reason of such allocation, if it is made'in good faith.and' without gross negligerice. The Trustee may, in the Trustee's discretion, set apart, to constitute two separate trusts, any property: which would otherwise have been allocated to any trust created hereunder and which would have had an inclusion. ratio, as defined ‘in Section 2642(a) of the Code, of neither‘one nor zero so that one such trust has an inclusion ratio of one and the other such trust has an inclusion ratio of zero. To minimize GST taxes upon. the surviving Settlor’s death, if the special election :provided by Section. 2652(a)(3) of the Code was: exercised following the death of the deceased Settlor, in providing éach of the beneficiaries with their particular percentage of the remaining property of the trusts created hereunder, the Trustee shall,.as necessary, allocate properties held in trusts with an inclusion ratio of zero to trusts with inclusion ratios’ of zero or to beneficiaries. who are skip persons ‘for GST purposes, and, the Trustee. shall allocate properties held in trusts with an inclusion ratio greater than zero ‘to trusts with inclusion ratios of greater than zero or: to beneficiaries who are non-skip' persons for GST purposes. abe 13 ARTICLE IX.- TRUSTEE PROVISIONS AL Powers. The Trustee shall have-all of the powers conferred upon trustees by’ the Florida Trust Code, and. by: any future amendments to the Florida Trust Code or any corresponding statute, except for any. instance in which the Florida Trust Code, as, amended, or any such other statutory provisions may conflict with the express’ provisions of this Trust Agreement, in which case the express provisions of this Trust Agreement. shall control. In addition to such powers, the Trustee is specifically authorized: qa) To retain, in the discretion of the: Trustee, any property transferred to the Trustee by the Settlors or any other person, including securities. of any corporate Trustee, without regard to the duty to diversify investments under. the Florida Trust Code and without liability for any depreciation or loss occasioned by such retention; (2) To exchange, sell or lease (including leases for terms exceeding the duration of all trusts created by this Trust Agreement) for cash, property or credit, or to partition, from time to time, publicly or privately, at such prices, on such terms, times and conditions-and by‘instruments of such character and with ‘such covenants as the Trustee may deem proper, all or any’part of the assets of each trust, including homestead real. property, and no vendee or lessee of the Trustee shall be required to look to the application made by the Trustee of any funds paid to the Trustee; (3) To, borrow. money from any source (including any Trustee) and to mortgage, pledge or in any other manner encumber all or any part of the assets of any trust as may be advisable in the judgment of the Trustee for the advantageous administration of the trusts; (4) To invest and ‘reinvest each ofthe ‘trust estates in. any kind of property whatsoever, real or personal, whether or. not productive of income’ and without ‘regard to the proportion that such property or property of a. similar character held may bear to the e