CERTIFICATE OF SUCCESSOR TRUSTEE APPOINTMENT
Eldon M. Briarwood Irrevocable Family Trust
Trust EIN: 13-7284915
Date of Certificate: January 22, 2024
Prepared by: Calderwood & Harkness LLP, 1 Chase Manhattan Plaza, 42nd Floor, New York, NY 10005 Matter No.: 1026-00005
RECITALS
A. Establishment of the Trust. The Eldon M. Briarwood Irrevocable Family Trust (the "Trust") was established pursuant to the Eldon M. Briarwood Irrevocable Family Trust Agreement dated June 12, 1998, as amended by the First Amendment to the Trust Agreement dated March 3, 2008, and by the Second Amendment to the Trust Agreement dated December 31, 2015 (the Trust Agreement, together with all amendments thereto, collectively referred to herein as the "Trust Agreement"). The Trust was created by Eldon M. Briarwood (the "Grantor"), under the laws of the State of New York, as an irrevocable inter vivos trust with its situs in New York County, New York. The Trust's federal employer identification number, as assigned by the Internal Revenue Service, is 13-7284915. Since its inception, the Trust has been administered in accordance with the terms and conditions of the Trust Agreement and in compliance with all applicable provisions of the laws of the State of New York, including the New York Estates, Powers and Trusts Law ("EPTL").
B. Original Trustees. Upon the creation of the Trust on June 12, 1998, Eldon M. Briarwood was appointed as the individual trustee of the Trust and has served in that capacity continuously from the date of the Trust's inception. Concurrently, Caldwell Fiduciary Services Inc., a New York–chartered trust company organized and existing under the laws of the State of New York, with its principal offices located at 401 Lexington Avenue, 14th Floor, New York, NY 10174, was appointed as the institutional co-trustee of the Trust. Caldwell Fiduciary Services Inc. has served continuously in that capacity since the inception of the Trust and continues to serve as institutional co-trustee as of the date of this Certificate.
C. Incapacity of the Original Individual Trustee. Article VII, Section 7.2 of the Trust Agreement provides that the individual trustee shall be deemed to have ceased serving as trustee upon a determination of permanent incapacity, as certified in writing by the trustee's attending physician. The Trust Agreement defines "permanent incapacity" as a condition in which the individual trustee is unable, by reason of physical or mental disability, to manage his personal and financial affairs, as determined in good faith by the attending physician and set forth in a written certification delivered to the institutional co-trustee. On December 3, 2023, Dr. Annette Volkov, M.D., the attending physician of Eldon M. Briarwood, of Larchmont, New York, issued a written certification (the "Physician's Certification") stating that Eldon M. Briarwood is permanently incapacitated within the meaning of Article VII, Section 7.2 of the Trust Agreement and is unable to manage his personal and financial affairs. A true and correct copy of the Physician's Certification is attached hereto as Exhibit A and incorporated herein by reference. The original of the Physician's Certification is maintained on file with Caldwell Fiduciary Services Inc. and with Calderwood & Harkness LLP, counsel to the Trust.
D. Successor Trustee Designation. Article VII, Section 7.3 of the Trust Agreement provides that, upon the cessation of service of the individual trustee due to incapacity, death, resignation, or removal, the first successor individual trustee shall be Margot S. Briarwood. Margot S. Briarwood, age 56, is a resident of the State of New York, currently residing at 14 Waverly Place, Unit 4W, New York, NY 10003. She is the daughter of Eldon M. Briarwood, the Grantor. Ms. Briarwood serves as Managing Director of Briarwood Family Office LLC, a New York limited liability company, and is a primary beneficiary of the Trust holding a forty-five percent (45%) beneficial interest in the Trust. Ms. Briarwood has been identified and designated as the first successor individual trustee in the Trust Agreement, and no event or circumstance has occurred that would disqualify her from serving in that capacity.
E. Beneficiaries of the Trust. The Trust has three primary beneficiaries, each holding a designated percentage beneficial interest in the Trust corpus and income, as set forth in Article IV of the Trust Agreement:
(i) Margot S. Briarwood — forty-five percent (45%) beneficial interest; residing at 14 Waverly Place, Unit 4W, New York, NY 10003;
(ii) Tobias E. Briarwood — thirty-five percent (35%) beneficial interest; residing at 88 Round Hill Road, Greenwich, CT 06831; and
(iii) Nadia Briarwood-Chen — twenty percent (20%) beneficial interest; residing at 341 Sterling Place, Apt. 3, Brooklyn, NY 11238.
Each of the foregoing beneficiaries is an adult and is currently living. The Trust Agreement does not require the consent of any beneficiary for the appointment of a successor trustee pursuant to Article VII, Section 7.3, though notice of such appointment is required to be provided in accordance with the Trust Agreement and applicable New York law, as further addressed in Section 6 of this Certificate.
CERTIFICATION AND APPOINTMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and in reliance upon the provisions of the Trust Agreement and the applicable laws of the State of New York, the undersigned hereby certifies and declares as follows:
Section 1 — Certification of Successor Trustee Appointment
1.1 The undersigned hereby certifies that, as a consequence of the permanent incapacity of Eldon M. Briarwood, as certified by Dr. Annette Volkov, M.D., in the Physician's Certification dated December 3, 2023, Eldon M. Briarwood has ceased serving as individual trustee of the Eldon M. Briarwood Irrevocable Family Trust, effective as of December 3, 2023, in accordance with Article VII, Section 7.2 of the Trust Agreement.
1.2 Pursuant to Article VII, Section 7.3 of the Trust Agreement, Margot S. Briarwood is hereby appointed and has accepted appointment as successor individual trustee of the Trust, to serve in such capacity with all the rights, powers, duties, and discretions conferred upon the individual trustee under the Trust Agreement and under applicable law.
1.3 Margot S. Briarwood's appointment as successor individual trustee is effective as of January 22, 2024. From and after such date, Margot S. Briarwood shall act as individual trustee of the Trust in all respects as though she had been originally named as individual trustee therein, and she shall have full authority to act on behalf of the Trust in that capacity.
Section 2 — Acceptance of Appointment
2.1 Margot S. Briarwood hereby accepts appointment as successor individual trustee of the Eldon M. Briarwood Irrevocable Family Trust, effective as of January 22, 2024.
2.2 By executing this Certificate, Margot S. Briarwood acknowledges her fiduciary duties and obligations under the Trust Agreement and under the laws of the State of New York, including, without limitation, the applicable provisions of the New York Estates, Powers and Trusts Law (EPTL), the duty of loyalty, the duty of care, the duty of impartiality as among the beneficiaries of the Trust, and all other duties imposed by law upon a trustee serving in the State of New York.
2.3 Margot S. Briarwood affirms that she has received and reviewed the Trust Agreement, including the First Amendment dated March 3, 2008, and the Second Amendment dated December 31, 2015, and is fully familiar with the terms and provisions thereof, including the provisions governing the administration of the Trust, the investment of Trust assets, the standards for distributions to beneficiaries, and the rights and obligations of the trustees.
2.4 Margot S. Briarwood further acknowledges the continuing role of Caldwell Fiduciary Services Inc. as institutional co-trustee of the Trust and agrees to cooperate with Caldwell Fiduciary Services Inc. in the administration of the Trust in accordance with the Trust Agreement, including, without limitation, any provisions requiring the joint action or consent of both co-trustees for specified transactions or decisions.
Section 3 — Powers and Authority of Successor Trustee
3.1 As successor individual trustee, Margot S. Briarwood shall have and may exercise all of the powers, rights, duties, and discretions granted to the individual trustee under the Trust Agreement, including, without limitation, the following:
(a) The power to manage, invest, and reinvest the Trust corpus, including the power to acquire, hold, sell, exchange, lease, pledge, mortgage, encumber, and dispose of any real or personal property held in the Trust, subject to the provisions of the Trust Agreement and the prudent investor standard set forth in EPTL § 11-2.3;
(b) The power to make discretionary distributions of income and principal to the beneficiaries of the Trust in accordance with the distribution standards and provisions set forth in Article IV and Article V of the Trust Agreement, including distributions for the health, education, maintenance, and support of the beneficiaries, and such other distributions as may be authorized under the Trust Agreement;
(c) The power to make in-kind distributions of Trust assets, including real property, to one or more beneficiaries, pursuant to Article X, Section 10.4 of the Trust Agreement, taking into account the fair market value of such assets as of the date of distribution;
(d) The power to execute and deliver deeds, assignments, bills of sale, stock powers, and other instruments of transfer on behalf of the Trust, and to take all actions necessary or appropriate to convey, transfer, or assign any asset of the Trust;
(e) The power to retain and compensate professionals, including legal counsel, accountants, investment advisors, appraisers, and other consultants, as the successor trustee may deem necessary or advisable for the proper administration of the Trust; and
(f) All other powers set forth in the Trust Agreement and under applicable New York law, including the powers enumerated in EPTL § 11-1.1 and such additional powers as may be conferred upon trustees under the laws of the State of New York.
3.2 The foregoing enumeration of powers shall not be deemed to limit or restrict any power otherwise granted to the individual trustee under the Trust Agreement or under applicable law. The successor individual trustee shall exercise all powers in a fiduciary capacity, consistent with the purposes and intent of the Trust as expressed in the Trust Agreement.
Section 4 — Trust Assets
4.1 As of the date of this Certificate, the Trust corpus includes, but is not limited to, the following asset categories:
(a) Marketable Securities. Marketable securities, including equities, fixed-income instruments, and exchange-traded funds, held in custody at Caldwell Fiduciary Services Inc. under Trust Account No. CFT-00298174;
(b) Cooperative Apartment — 14 Waverly Place, Unit 4W, New York, NY 10003. Shares in Waverly Place Owners Corp. allocated to Unit 4W, together with the proprietary lease appurtenant thereto, located in the Borough of Manhattan, City, County, and State of New York;
(c) Real Property — 602 Halsey Street, Brooklyn, NY 11233. Real property located at 602 Halsey Street, Brooklyn, New York 11233, designated as Block 1684, Lot 42, on the Tax Map of Kings County, New York;
(d) Real Property — 27 Fenimore Road, Larchmont, NY 10538. Real property located at 27 Fenimore Road, Larchmont, New York 10538, designated as Section 9, Block 32, Lot 14, on the Tax Map of the Village of Larchmont, Town of Mamaroneck, Westchester County, New York;
(e) Cash and Money-Market Funds. Cash deposits and money-market fund holdings maintained at Caldwell Fiduciary Services Inc. and at such other financial institutions as are reflected in the Trust's records; and
(f) Limited Partnership Interest — Ashgrove Capital Partners Fund III LP. A limited partnership interest in Ashgrove Capital Partners Fund III LP, a Delaware limited partnership, as more particularly described in the limited partnership agreement and subscription documents on file with the Trust.
4.2 The foregoing schedule of assets is provided for informational purposes and is not intended to be a comprehensive inventory of all Trust assets. A complete inventory and accounting of Trust assets shall be prepared by the successor trustee and the institutional co-trustee in accordance with the Trust Agreement and applicable law.
4.3 The total corpus of the Trust was valued at approximately Forty-One Million Five Hundred Thousand Dollars ($41,500,000) as of December 31, 2023, based upon the most recent valuation statements and appraisals on file with Caldwell Fiduciary Services Inc.
Section 5 — Continuing Co-Trustee
5.1 Caldwell Fiduciary Services Inc. shall continue to serve as institutional co-trustee of the Trust in accordance with the terms of the Trust Agreement. The appointment of Margot S. Briarwood as successor individual trustee does not alter, modify, or diminish the rights, duties, responsibilities, or authority of Caldwell Fiduciary Services Inc. as institutional co-trustee of the Trust.
5.2 All rights, duties, and responsibilities of Caldwell Fiduciary Services Inc. as co-trustee of the Trust remain in full force and effect as of the date of this Certificate and shall continue in accordance with the Trust Agreement and applicable law.
5.3 Howard R. Phelan, Senior Vice President of Caldwell Fiduciary Services Inc., is the trust officer currently assigned to the administration of the Trust at Caldwell Fiduciary Services Inc. All communications and correspondence regarding the Trust may be directed to Mr. Phelan at Caldwell Fiduciary Services Inc., 401 Lexington Avenue, 14th Floor, New York, NY 10174.
Section 6 — Notice to Beneficiaries
6.1 In accordance with the Trust Agreement and applicable provisions of New York law, including EPTL § 7-A-2.3, notice of the successor trustee appointment shall be provided to each beneficiary of the Trust. Such notice shall include a copy of this Certificate and such additional supporting documentation as may be required or appropriate under the circumstances.
6.2 This Certificate, together with supporting documentation, shall be circulated to all beneficiaries of the Trust, namely Margot S. Briarwood, Tobias E. Briarwood, and Nadia Briarwood-Chen, and to Caldwell Fiduciary Services Inc., in the manner provided in the Trust Agreement for the delivery of notices.
Section 7 — Governing Law
7.1 This Certificate and the appointment of the successor trustee 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 (EPTL), without regard to principles of conflicts of law. The Trust shall continue to have its situs in New York County, New York, and shall be administered in accordance with New York law.
Section 8 — Reliance
8.1 This Certificate may be relied upon by any third party dealing with the Trust, including, but not limited to, financial institutions, banks, broker-dealers, real-estate purchasers and transferees, title insurance companies, governmental agencies, recording offices, cooperative corporations, managing agents, and any other person or entity transacting business with the Trust or its trustees.
8.2 Any third party may rely upon this Certificate as conclusive evidence that Margot S. Briarwood has been duly appointed as successor individual trustee of the Eldon M. Briarwood Irrevocable Family Trust and is authorized to act in that capacity with full power and authority, subject to the terms of the Trust Agreement. No third party dealing with the Trust shall be required to inquire into the provisions of the Trust Agreement or the propriety of any action taken by the successor trustee in reliance upon this Certificate.
8.3 Any third party acting in good faith reliance upon this Certificate shall be fully protected in so doing, and shall not be liable for any loss or damage arising from such reliance.
SIGNATURE OF SUCCESSOR TRUSTEE
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Successor Trustee Appointment as of the date first set forth above.
SUCCESSOR INDIVIDUAL TRUSTEE
By: ________
Name: Margot S. Briarwood
Title: Successor Individual Trustee, Eldon M. Briarwood Irrevocable Family Trust
Date: January 22, 2024
ACKNOWLEDGMENT BY INSTITUTIONAL CO-TRUSTEE
Caldwell Fiduciary Services Inc., as institutional co-trustee of the Eldon M. Briarwood Irrevocable Family Trust, hereby acknowledges the appointment of Margot S. Briarwood as successor individual trustee of the Trust and confirms that such appointment has been duly made in accordance with Article VII, Section 7.3 of the Trust Agreement. Caldwell Fiduciary Services Inc. further confirms that it has received and reviewed the Physician's Certification dated December 3, 2023, and that all conditions precedent to the appointment of the successor individual trustee under the Trust Agreement have been satisfied.
CALDWELL FIDUCIARY SERVICES INC. Institutional Co-Trustee
By: ________
Name: Howard R. Phelan
Title: Senior Vice President
Address: 401 Lexington Avenue, 14th Floor, New York, NY 10174
Date: January 22, 2024
NOTARIAL ACKNOWLEDGMENT — MARGOT S. BRIARWOOD
STATE OF NEW YORK COUNTY OF NEW YORK
On the 22nd day of January, in the year 2024, before me, the undersigned, a Notary Public in and for said State, personally appeared Margot S. Briarwood, known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that she executed the same in her capacity as Successor Individual Trustee of the Eldon M. Briarwood Irrevocable Family Trust, and that by her signature on the instrument, she executed the instrument for the purposes therein stated.
________________________________________
Notary Public, State of New York
Printed Name: ________
Commission Number: ________
Commission Expiration Date: ________
[NOTARY SEAL/STAMP]
NOTARIAL ACKNOWLEDGMENT — HOWARD R. PHELAN (ON BEHALF OF CALDWELL FIDUCIARY SERVICES INC.)
STATE OF NEW YORK COUNTY OF NEW YORK
On the 22nd day of January, in the year 2024, before me, the undersigned, a Notary Public in and for said State, personally appeared Howard R. Phelan, known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his capacity as Senior Vice President of Caldwell Fiduciary Services Inc., the institutional co-trustee of the Eldon M. Briarwood Irrevocable Family Trust, and that by his signature on the instrument, the entity upon behalf of which he acted executed the instrument for the purposes therein stated.
________________________________________
Notary Public, State of New York
Printed Name: ________
Commission Number: ________
Commission Expiration Date: ________
[NOTARY SEAL/STAMP]
EXHIBIT A
PHYSICIAN'S CERTIFICATION OF INCAPACITY
CERTIFICATION OF PERMANENT INCAPACITY
Pursuant to Article VII, Section 7.2 of the Eldon M. Briarwood Irrevocable Family Trust Agreement Dated June 12, 1998
Date: December 3, 2023
To: Caldwell Fiduciary Services Inc., as Institutional Co-Trustee of the Eldon M. Briarwood Irrevocable Family Trust
I, Dr. Annette Volkov, M.D., a physician duly licensed to practice medicine in the State of New York, hereby certify as follows:
1. I am the attending physician of Eldon M. Briarwood, age 87, residing at 27 Fenimore Road, Larchmont, New York 10538.
2. I have treated and observed Eldon M. Briarwood in my professional capacity over an extended period and am familiar with his medical history and current condition.
3. Based upon my professional medical judgment, and after thorough examination and evaluation, I hereby certify that Eldon M. Briarwood is permanently incapacitated and is unable to manage his personal and financial affairs. This determination meets the standard of incapacity set forth in Article VII, Section 7.2 of the Eldon M. Briarwood Irrevocable Family Trust Agreement dated June 12, 1998, which defines permanent incapacity as a condition in which the individual trustee is unable, by reason of physical or mental disability, to manage his personal and financial affairs.
4. It is my professional opinion, rendered in good faith, that Eldon M. Briarwood's incapacity is permanent in nature and that there is no reasonable medical expectation of recovery to a level of capacity sufficient to permit him to resume the management of his personal and financial affairs or to serve as trustee of any trust.
5. This certification is issued for the purpose of effecting the succession of the individual trusteeship of the Eldon M. Briarwood Irrevocable Family Trust in accordance with the provisions of the Trust Agreement.
________________________________________
Dr. Annette Volkov, M.D. Attending Physician Private Practice Larchmont, New York
Date: December 3, 2023
Note: The original of this certification is on file with Caldwell Fiduciary Services Inc., 401 Lexington Avenue, 14th Floor, New York, NY 10174, and with Calderwood & Harkness LLP, 1 Chase Manhattan Plaza, 42nd Floor, New York, NY 10005. The foregoing is a true and correct copy of the original certification.
Prepared by:
Calderwood & Harkness LLP 1 Chase Manhattan Plaza, 42nd Floor New York, NY 10005
Attention: Patricia Dunmore, Partner
Matter No.: 1026-00005
This Certificate was circulated to all beneficiaries and to Caldwell Fiduciary Services Inc. on March 12, 2024.