Contract analysis

ARTICLE I — RECITALS The Parties recite and acknowledge the following:

Section 1.1 — The Trust. The Eldon M. Briarwood Irrevocable Family Trust (the "Trust") was established pursuant to that certain Trust Agreement dated June 12, 1998, by and between Eldon M. Briarwood, as Grantor and original individual trustee, and Caldwell Fiduciary Services Inc., as institutional co-trustee, as amended by the First Amendment to Trust Agreement dated March 3, 2008, and the Second Amendment to Trust A

Section 1.2 — Grantor Trust Status Termination. The Trust was initially treated as a grantor trust for federal income tax purposes under Section 675(4) of the Internal Revenue Code of 1986, as amended (the "Code" or "IRC"), by reason of the Grantor's retention of a power to reacquire Trust corpus by substituting property of equivalent value (the "swap power"). The Grantor relinquished such swap power effective Decemb

Section 1.3 — Incapacity of the Grantor. On December 3, 2023, Dr. Annette Volkov, M.D., the Grantor's attending physician, practicing at her offices in Larchmont, New York, certified the Grantor as permanently incapacitated within the meaning of and under the standard set forth in Article VII, Section 7.2 of the Trust Agreement. As of the date of such certification, the Grantor, age 87, is a resident of 27 Fenimore R

Section 1.4 — Trustee Succession. Pursuant to Article VII, Section 7.3 of the Trust Agreement, Margot S. Briarwood is named as the first successor individual trustee to serve in the event that the Grantor ceases to serve as individual trustee by reason of death, resignation, or incapacity. Following receipt of Dr. Volkov's incapacity certification, Margot S. Briarwood was tendered the appointment as Successor Individ

Section 1.5 — Beneficial Interests. Under the terms of the Trust Agreement, as amended, the Beneficiaries hold the following percentage interests in the Trust corpus: The foregoing percentage interests represent the vested, distributable shares of the Trust corpus and are not subject to any discretionary modification by the Trustees.

Section 1.6 — Trust Corpus. As of December 31, 2023, the total corpus of the Trust was valued at approximately Forty-One Million Five Hundred Thousand Dollars ($41,500,000), consisting of the following categories of assets: The real property values stated above reflect the independent fair-market-value appraisals described in Section 1.7 below. The marketable securities, cash and money-market funds, and private-fund

Section 1.7 — Independent Appraisals. Pursuant to an engagement letter dated February 14, 2024, Caldwell Fiduciary Services Inc. engaged Pinnacle Valuation Group LLC, 300 Mamaroneck Avenue, Suite 210, White Plains, NY 10605 ("Pinnacle"), to prepare independent fair-market-value appraisals of each of the three real-estate parcels held by the Trust. The lead appraiser assigned by Pinnacle was Derek T. Winstead, MAI, a

Section 1.8 — Authorization for In-Kind Distribution. Article X, Section 10.4 of the Trust Agreement authorizes the Trustees, in their discretion, to make in-kind distributions of real property to any Beneficiary upon a determination that such distribution is consistent with the Trust's purposes and equitable among the Beneficiaries. Article X, Section 10.4 further authorizes the Trustees to make cash equalization pa

Section 1.9 — Purpose of Agreement. The Parties desire to set forth the terms and conditions governing (a) the distribution of the entire Trust corpus, consisting of in-kind distributions of real property and cash equalization payments, (b) the termination of the Trust following the completion of such distributions, and (c) the informed consent and waiver of all Beneficiaries with respect to the foregoing distributio

ARTICLE II — DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Article II shall have the meanings ascribed to them elsewhere in this Agreement. "Agreement" means this Consent and Distribution Agreement, including all exhibits and schedules attached hereto, as the same may be amended, modified, or supplemented from time to

Section 3.1 — In-Kind Real Property Distributions. The Trustees shall distribute the Parcels to the following Beneficiaries at the stated Appraised Values, in accordance with the Distribution Schedule attached as Exhibit A: (a) To Margot S. Briarwood: (i) 14 Waverly Place, Unit 4W, New York, NY 10003 — a cooperative apartment consisting of approximately 2,400 square feet of living space, represented by shares allocat

Section 3.2 — Cash Equalization Payments. To equalize the distributions among the Beneficiaries in accordance with their respective Pro-Rata Entitlements, and to ensure that each Beneficiary receives aggregate distributions equal to his or her Pro-Rata Entitlement, the Trustees shall distribute cash and/or Liquid Assets to the Beneficiaries as follows: (a) To Margot: Pro-Rata Entitlement of $18,675,000 minus $12,950,

Section 3.3 — Verification of Total Distributions. The aggregate distributions under Sections 3.1 and 3.2 total $41,500,000, which is equal to the total Trust corpus as set forth in Section 1.6, verified as follows: Each Beneficiary's total distribution corresponds precisely to his or her Pro-Rata Entitlement, subject only to the proportional reduction for Administration Costs described in Section 3.4 below.

Section 3.4 — Administration Costs. The Parties acknowledge that the following administration costs (the "Administration Costs") shall be borne by the Trust corpus and deducted from the Liquid Asset pool prior to or concurrently with the Cash Equalization Payments, thereby proportionally reducing the Cash Equalization Payments payable to each Beneficiary: The real-property transfer taxes of $84,450 are comprised of t

Section 3.5 — Tax Basis of Distributed Property. Each Beneficiary receiving real property in kind pursuant to Section 3.1 hereby acknowledges and agrees that, pursuant to IRC § 643(e), property distributed from a non-grantor trust to a beneficiary carries over the trust's adjusted tax basis (i.e., the carryover basis rule applies, and the Trustees have not elected under IRC § 643(e)(3) to recognize gain upon distribu

ARTICLE IV — DEED DELIVERY AND REAL PROPERTY TRANSFER MECHANICS

Section 4.1 — Deed Execution and Recording. The Trustees shall execute and deliver the following instruments to effect the real property transfers contemplated by Section 3.1: (a) 14 Waverly Place, Unit 4W, New York, NY 10003. The Trustees shall execute and deliver an Assignment of Cooperative Shares and Proprietary Lease, assigning all of the Trust's right, title, and interest in the cooperative shares allocated to

Section 4.2 — Title Insurance. Trident National Title Corp., 570 Seventh Avenue, 20th Floor, New York, NY 10018 (contact: Mitchell Fong, Vice President, Commercial Underwriting) ("Trident"), has been engaged to issue owner's title insurance policies in connection with the real property transfers contemplated hereby. Trident shall issue owner's title insurance policies as follows: (a) In favor of Margot S. Briarwood,

Section 4.3 — Transfer Tax Responsibility. All applicable real-property transfer taxes, as detailed in Section 3.4, shall be the obligation of and paid by the Trust from the Liquid Assets prior to or concurrently with the distributions contemplated hereby. The Trust shall be treated as the "grantor" for purposes of all applicable transfer tax returns and filings. The Parties acknowledge that the transfer of cooperati

Section 4.4 — Condition of Property. Each Parcel is distributed to the receiving Beneficiary "AS IS, WHERE IS," and "WITH ALL FAULTS," without any warranty or representation by the Trustees, whether express or implied, as to the physical condition, environmental condition, structural integrity, mechanical systems, habitability, or compliance with applicable zoning, building, fire, health, or other codes, laws, regula

ARTICLE V — CASH EQUALIZATION PAYMENT MECHANICS

Section 5.1 — Source of Funds. The Cash Equalization Payments described in Section 3.2 shall be funded from the Trust Account maintained at Caldwell Fiduciary Services Inc. (Account No. CFT-00298174). The Liquid Assets available for Cash Equalization Payments total approximately Twenty-Two Million Four Hundred Thousand Dollars ($22,400,000), consisting of the following: The Co-Trustee shall administer the funding of

Section 5.2 — Wire Transfer. Cash Equalization Payments shall be made by wire transfer of immediately available funds to accounts designated by each Beneficiary in writing. Each Beneficiary shall provide wire transfer instructions to the Co-Trustee no later than business days prior to the The Co-Trustee shall not be responsible for any delays or errors arising from incorrect or incomplete wire transfer instructions p

Section 5.3 — Liquidation of Non-Cash Assets. To the extent that the Liquid Assets include non-cash items, including marketable securities and the Trust's private-fund interests in Ashgrove Capital Partners Fund III LP, the Co-Trustee is hereby authorized and directed to liquidate such assets as necessary to fund the Cash Equalization Payments and Administration Costs in cash. Such liquidation shall be conducted in a

ARTICLE VI — CONSENT OF BENEFICIARIES

Section 6.1 — Informed Consent. Each Beneficiary, having been advised of his or her right to seek and obtain independent legal counsel at his or her own expense, and having had a full and fair opportunity to review the Pinnacle Appraisals, the Trust Agreement, and the terms and conditions of this Agreement, hereby freely and voluntarily consents to the distributions set forth in Article III of this Agreement, includi

Section 6.2 — Waiver of Objection. Each Beneficiary hereby irrevocably waives any and all objections, claims, or challenges to: (a) The methodology used by Pinnacle Valuation Group LLC and Derek T. Winstead, MAI, to determine the Appraised Value of each Parcel, including the selection of comparable sales, the income capitalization approach, the cost approach, or any other valuation methodology employed; (b) The alloc

Section 6.3 — Acknowledgment of Independent Appraisal. Each Beneficiary independently acknowledges that the Appraised Values used in this Agreement are based on independent fair-market-value appraisals conducted by Pinnacle Valuation Group LLC, a qualified, independent third-party appraiser engaged by Caldwell Fiduciary Services Inc. (and not by any Beneficiary or by the Successor Trustee), and that such appraisals w

ARTICLE VII — REPRESENTATIONS AND WARRANTIES

Section 7.1 — Representations of the Successor Trustee. Margot S. Briarwood, in her capacity as Successor Trustee, hereby represents and warrants to the Co-Trustee and each Beneficiary as follows: (a) She has been duly appointed Successor Individual Trustee of the Trust pursuant to Article VII, Section 7.3 of the Trust Agreement, and her appointment has been duly evidenced by the Certificate of Successor Trustee Appo

Section 7.2 — Representations of the Co-Trustee. Caldwell Fiduciary Services Inc., acting through its duly authorized officer, Howard R. Phelan, Senior Vice President and Trust Officer, hereby represents and warrants to the Successor Trustee and each Beneficiary as follows: (a) It is duly organized and validly existing as a trust company under the laws of the State of New York, chartered by the New York State Departm

Section 7.3 — Representations of the Beneficiaries. Each Beneficiary, severally and not jointly, hereby represents and warrants to the Trustees and each other Beneficiary as follows: (a) He or she is of legal age (at least eighteen years of age), is a citizen or lawful permanent resident of the United States, and is legally competent to execute this Agreement and to perform his or her obligations hereunder. (b) He or

Section 7.4 — Additional Representations by Tobias. In addition to the representations and warranties set forth in Section 7.3, Tobias E. Briarwood additionally represents and warrants as follows: (a) He has been represented by independent counsel, Janet C. Okonkwo of Reedlaw & Stein LLP, 55 East 59th Street, Suite 1800, New York, NY 10022, in connection with his review of this Agreement and the Pinnacle Appraisals,

ARTICLE VIII — TRUST TERMINATION

Section 8.1 — Final Trust Accounting. Following the completion of all distributions contemplated by Article III and Article V, and the payment of all Administration Costs, the Trustees shall prepare and deliver to each Beneficiary a final trust accounting (the "Final Accounting") reflecting all receipts, disbursements, gains, losses, distributions, and Administration Costs of the Trust from the beginning of the curre

Section 8.2 — Final Fiduciary Income Tax Return. Halford & Kline CPAs (engagement partner: Lorraine M. Casella, CPA), 125 Broad Street, 8th Floor, New York, NY 10004, has been engaged by the Trustees to prepare the final federal fiduciary income-tax return (IRS Form 1041) for the Trust for the short tax year beginning January 1, 2024, and ending on the date of Trust termination. Halford & Kline shall also prepare the

Section 8.3 — Termination. Upon the satisfaction of each of the following conditions, the Trust shall terminate in accordance with its terms and the applicable provisions of the EPTL: (a) The completion of all distributions of Trust corpus to the Beneficiaries under Article III, including the recording of all deeds, the delivery of cooperative share assignments, and the wire transfer of all Cash Equalization Payments

Section 8.4 — Receipt and Release. As a condition to Trust termination, each Beneficiary shall execute and deliver to the Trustees a Receipt, Release, and Refunding Agreement (each, a "Receipt and Release") in a form reasonably satisfactory to the Trustees and their counsel. Each Receipt and Release shall contain: (a) an acknowledgment by the executing Beneficiary of receipt of all distributions to which such Benefic

ARTICLE IX — INDEMNIFICATION AND REFUNDING

Section 9.1 — Refunding Obligation. Each Beneficiary agrees, severally and not jointly, to refund to the Trust estate (or, if the Trust has been terminated, to the other Beneficiaries pro rata in proportion to their respective Pro-Rata Entitlements) such portion of his or her distribution as may be necessary to satisfy any creditor's claim, tax liability, assessment, penalty, interest, or other obligation of the Trus

Section 9.2 — Indemnification of Trustees. Each Beneficiary, severally and not jointly, shall indemnify, defend, and hold harmless the Successor Trustee (in her fiduciary capacity) and the Co-Trustee, and their respective officers, directors, employees, agents, successors, and assigns, from and against any and all claims, demands, causes of action, judgments, losses, damages, costs, and expenses (including reasonable

ARTICLE X — MISCELLANEOUS PROVISIONS

Section 10.1 — Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, including the New York Estates, Powers and Trusts Law, without regard to the conflicts-of-law principles thereof. The Parties consent to the exclusive jurisdiction of the courts of the State of New York sitting in New York County, and the United States District Court for the Southern D

Section 10.2 — Entire Agreement. This Agreement, together with the Trust Agreement, the Pinnacle Appraisals, and the exhibits and schedules attached hereto, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, representations, warranties, understandings, and agreements, whether written or oral, relating to

Section 10.3 — Amendments. This Agreement may not be amended, modified, supplemented, or waived except by a written instrument signed by all Parties hereto. No oral agreement, course of dealing, or trade usage shall be deemed to amend or modify this Agreement.

Section 10.4 — Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall continue in full force and effect. The Parties agree that any such invalid, illegal, or unenforceable provision shall be modified

Section 10.5 — Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by electronic transmission (including PDF, DocuSign, or other electronic signature platform) or by facsimile transmission shall be as effective as delivery of a

Section 10.6 — Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered personally, (b) sent by certified or registered mail, return receipt requested, postage prepaid, (c) sent by nationally recognized overnight courier service, or (d) sent by electronic mail with confirmat

Section 10.7 — Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, personal representatives, successors, and assigns.

Section 10.8 — No Third-Party Beneficiaries. Except as expressly provided herein, nothing in this Agreement is intended to confer, and nothing herein shall be construed to confer, any rights, benefits, or remedies upon any person or entity other than the Parties hereto. The Grantor, while not a signatory to this Agreement, is acknowledged as the settlor of the Trust; however, this Agreement does not create any rights

Section 10.9 — Waiver. No waiver of any provision of this Agreement shall be effective unless set forth in writing and signed by the waiving Party. No waiver of any provision shall constitute a continuing waiver of the same provision or a waiver of any other provision. The failure of any Party to enforce any provision of this Agreement at any time shall not be construed as a waiver of such provision or the right to e

Section 10.10 — Headings. The article and section headings contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement.

Section 10.11 — Counsel. The Parties acknowledge and agree that this Agreement was prepared by Calderwood & Harkness LLP as counsel to Briarwood Family Office LLC and the Successor Trustee, and that Calderwood & Harkness LLP does not represent and has not represented any Beneficiary individually in connection with this Agreement or the transactions contemplated hereby. Each Beneficiary has been advised to retain and

1. Appraisal Report No. PVG-2024-0441 Property: 14 Waverly Place, Unit 4W, New York, NY 10003 Effective Valuation Date: March 1, 2024 Fair Market Value: $8,750,000 Appraiser: Derek T. Winstead, MAI

2. Appraisal Report No. PVG-2024-0442 Property: 602 Halsey Street, Brooklyn, NY 11233 Effective Valuation Date: March 1, 2024 Fair Market Value: $4,200,000 Appraiser: Derek T. Winstead, MAI

3. Appraisal Report No. PVG-2024-0443 Property: 27 Fenimore Road, Larchmont, NY 10538 Effective Valuation Date: March 1, 2024 Fair Market Value: $6,150,000 Appraiser: Derek T. Winstead, MAI All appraisals were prepared in accordance with the Uniform Standards of Professional Appraisal Practice ("USPAP") and in compliance with applicable New York State appraisal licensing requirements. Copies of the full appraisal rep