DURABLE GENERAL POWER OF ATTORNEY
STATUTORY SHORT FORM POWER OF ATTORNEY NEW YORK GENERAL OBLIGATIONS LAW § 5-1501 ET SEQ.
PRINCIPAL: JONATHAN ROBERT CALDWELL
DATE OF EXECUTION: APRIL 1, 2023
Prepared in connection with the generational estate plan administered by Calderwood & Harkness LLP Matter No. 1034-00004
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ARTICLE I — IDENTIFICATION OF PRINCIPAL
Section 1.1 — Principal's Information
I, Jonathan Robert Caldwell, born on March 14, 1956, residing at 418 East 72nd Street, Apt. 14A, New York, New York 10021, Social Security Number ending in 4781 (XXX-XX-4781), do hereby make, constitute, and appoint the Agent and Successor Agent identified in Article II of this instrument as my true and lawful attorney-in-fact ("Agent"), with full power and authority to act on my behalf in all matters as hereinafter set forth.
I am a resident of the State of New York, County of New York. I hereby declare that I am of sound mind and memory, that I am fully competent to manage my own affairs, and that I execute this Durable General Power of Attorney freely and voluntarily, without duress, fraud, or undue influence of any kind. I understand the nature and consequences of granting the powers herein described, and I intend this instrument to be a durable power of attorney, effective immediately upon execution and continuing notwithstanding my subsequent disability or incapacity.
This Power of Attorney is executed as a component of a comprehensive generational estate plan prepared and administered by the law firm of Calderwood & Harkness LLP, 375 Park Avenue, 42nd Floor, New York, New York 10152, under Matter No. 1034-00004. The responsible partner for this engagement is Victoria Chambers, Esq., and the specialist partner for tax matters is Sylvia Hartwell, Esq.
ARTICLE II — DESIGNATION OF AGENT
Section 2.1 — Primary Agent
I hereby designate and appoint the following individual as my primary Agent and attorney-in-fact under this Durable General Power of Attorney:
Name: Eleanor Victoria Caldwell
Relationship to Principal: Spouse
Date of Birth: September 22, 1958
Residence Address: 418 East 72nd Street, Apt. 14A, New York, New York 10021
Eleanor Victoria Caldwell shall serve as my primary Agent immediately upon execution of this instrument and shall have all powers and authorities described herein, subject to the modifications and limitations set forth in Article V. The Primary Agent shall have the authority to act on my behalf in all respects and in all transactions as though I were personally present and acting for myself, to the fullest extent permitted by the laws of the State of New York and any other applicable jurisdiction.
Section 2.2 — Successor Agent
In the event that Eleanor Victoria Caldwell is unable or unwilling to serve as my Agent, resigns from her appointment, is removed from her appointment, or becomes incapacitated (as determined in accordance with Section 7.2 of this instrument), I hereby designate and appoint the following individual as my Successor Agent and attorney-in-fact:
Name: Thomas Robert Caldwell
Relationship to Principal: Son
Date of Birth: June 7, 1985
Residence Address: 55 Perry Street, Unit 3, New York, New York 10014
Thomas Robert Caldwell shall serve as my Successor Agent upon the occurrence of any of the conditions described above with respect to the Primary Agent, and shall thereupon have all of the powers and authorities granted to the Primary Agent under this instrument, subject to the same modifications and limitations set forth in Article V and elsewhere in this Power of Attorney. The Successor Agent's authority shall become effective in accordance with the provisions of Article VII.
Section 2.3 — Co-Agents
I do not appoint co-agents under this Power of Attorney. The Primary Agent shall act alone and shall have sole authority to exercise all powers granted herein. Only upon the Primary Agent's inability or unwillingness to serve, resignation, removal, or incapacity shall the Successor Agent act. At no time shall the Primary Agent and the Successor Agent serve simultaneously as co-agents. The Successor Agent's authority is contingent upon and arises solely from the cessation of the Primary Agent's authority, and the Successor Agent shall have no power to act under this instrument so long as the Primary Agent remains able and willing to serve.
ARTICLE III — DURABILITY PROVISION
This power of attorney shall not be affected by my subsequent disability or incompetence.
I hereby declare, in accordance with Section 5-1501A of the New York General Obligations Law, that this Durable General Power of Attorney shall survive and remain in full force and effect notwithstanding my subsequent disability, incompetence, or incapacity, whether such disability, incompetence, or incapacity arises from physical illness, mental illness, cognitive decline, injury, advanced age, or any other cause whatsoever.
This Power of Attorney is effective immediately upon its execution. This is not a "springing" power of attorney; the Agent's authority commences upon the date of execution and continues without interruption thereafter. The Agent may act under this instrument at any time following execution, regardless of whether I am then competent, capable, or available to act on my own behalf.
This Power of Attorney shall remain in full force and effect until it is revoked in writing by me, the Principal, in accordance with Section 9.1 of this instrument, or until my death, whichever occurs first. No lapse of time, non-use by the Agent, or other circumstance (other than the specific termination events described in Article IX) shall cause this Power of Attorney to expire or become ineffective.
ARTICLE IV — GRANT OF AUTHORITY — GENERAL PROVISIONS
I hereby grant to my Agent, whether the Primary Agent or the Successor Agent serving in accordance with Article VII, broad and comprehensive authority to act on my behalf in all matters and transactions, to the fullest extent permitted by law, subject to the specific grants, modifications, and limitations set forth in this Article IV and in Article V of this instrument.
Without limiting the generality of the foregoing, I specifically grant to my Agent authority with respect to each of the categories of transactions enumerated in Sections 5-1502A through 5-1502N of the New York General Obligations Law, as described in the following sections. The enumeration of specific powers and specific assets in this Article IV is intended to be illustrative and not limiting; the Agent shall have authority to act with respect to all of my assets, interests, and affairs, whether or not specifically identified herein, unless a specific limitation is set forth in Article V.
In exercising the powers granted herein, the Agent shall act in my best interests, shall exercise reasonable care and prudence, and shall comply with all applicable fiduciary duties imposed by the laws of the State of New York, including but not limited to the duties set forth in Section 5-1505 of the New York General Obligations Law.
Section 4.1 — Real Estate Transactions (GOL § 5-1502A)
Pursuant to Section 5-1502A of the New York General Obligations Law, I grant my Agent authority to engage in all real estate transactions on my behalf, including but not limited to the authority to buy, sell, exchange, lease, sublease, manage, improve, develop, subdivide, mortgage, encumber, grant options with respect to, release, convey, and otherwise deal with any and all interests in real property, whether held by me directly or through entities in which I hold an ownership interest.
Without limiting the generality of the foregoing, this grant of authority specifically extends to my interests in real property held directly or through Stonecrest Realty Holdings LLC, a limited liability company organized and existing under the laws of the State of New York, with its principal office at 330 Madison Avenue, Suite 2401, New York, New York 10017, under the operational management of Robert M. Sinclair, Chief Operating Officer. The Agent is authorized to act on my behalf in my capacity as a member of Stonecrest Realty Holdings LLC with respect to any and all real property transactions involving the properties owned by or through that entity.
The real property holdings of Stonecrest Realty Holdings LLC include, but are not limited to, the following eleven (11) properties, each of which is subject to the Agent's authority hereunder:
(a) 440 West Broadway, New York, New York 10012 — A mixed-use retail and residential property, with an estimated fair market value of Twenty-Eight Million Dollars ($28,000,000);
(b) 15–21 Harrison Street, New York, New York 10013 — Luxury residential condominium units, with an estimated fair market value of Nineteen Million Five Hundred Thousand Dollars ($19,500,000);
(c) Stonecrest Office Park I, Paramus, New Jersey 07652 — A Class A office building, with an estimated fair market value of Twenty-Two Million Dollars ($22,000,000);
(d) Stonecrest Office Park II, Paramus, New Jersey 07652 — A Class A office building, with an estimated fair market value of Eighteen Million Five Hundred Thousand Dollars ($18,500,000);
(e) The Ridgeline at Stamford, Stamford, Connecticut 06901 — A multi-family residential property, with an estimated fair market value of Sixteen Million Dollars ($16,000,000);
(f) 88 Mercer Street, New York, New York 10012 — A retail property, with an estimated fair market value of Eleven Million Five Hundred Thousand Dollars ($11,500,000);
(g) 200 West 14th Street, New York, New York 10011 — An office and loft property, with an estimated fair market value of Eight Million Five Hundred Thousand Dollars ($8,500,000);
(h) 765 Morris Avenue, Elizabeth, New Jersey 07208 — An industrial warehouse property, with an estimated fair market value of Four Million Two Hundred Thousand Dollars ($4,200,000);
(i) 12 Elm Court, Rye, New York 10580 — A single-family residential property, with an estimated fair market value of Two Million Eight Hundred Thousand Dollars ($2,800,000);
(j) 44 Prospect Lane, Westport, Connecticut 06880 — A single-family residential property, with an estimated fair market value of One Million Eight Hundred Thousand Dollars ($1,800,000); and
(k) 9 Birch Hill Road, Bedford, New York 10506 — Vacant land, with an estimated fair market value of One Million Two Hundred Thousand Dollars ($1,200,000).
The Agent is authorized to execute, acknowledge, deliver, and record deeds, mortgages, deeds of trust, assignments, satisfactions, releases, easements, covenants, restrictions, leases, memoranda of lease, estoppel certificates, subordination agreements, and all other instruments and documents relating to real property transactions. The Agent is further authorized to collect rents, manage tenancies, negotiate and execute lease agreements and amendments, engage and discharge property managers and maintenance contractors, pay real property taxes and assessments, procure and maintain insurance on real property, and take any and all other actions incident to the management, operation, and disposition of my interests in real property.
Section 4.2 — Chattel and Goods Transactions (GOL § 5-1502B)
Pursuant to Section 5-1502B of the New York General Obligations Law, I grant my Agent authority to buy, sell, lease, exchange, transport, store, insure, and otherwise deal with all tangible personal property and goods in which I have an interest, or in which I may hereafter acquire an interest.
This grant of authority includes, without limitation, all art, collectibles, antiques, jewelry, furnishings, and decorative items owned by me, with an aggregate estimated fair market value of approximately Nine Million Dollars ($9,000,000). This grant further includes all other tangible personal property owned by me, including but not limited to automobiles, watercraft, household furnishings, equipment, and other personal effects, with an aggregate estimated fair market value of approximately Seven Million Dollars ($7,000,000).
The Agent is authorized to execute bills of sale, purchase agreements, consignment agreements, loan agreements for museum or gallery exhibition, insurance applications, and all other instruments and documents relating to transactions involving tangible personal property.
Section 4.3 — Bond, Share, and Commodity Transactions (GOL § 5-1502C)
Pursuant to Section 5-1502C of the New York General Obligations Law, I grant my Agent authority to buy, sell, exchange, transfer, assign, pledge, hypothecate, and otherwise deal with all stocks, bonds, mutual funds, exchange-traded funds, options, futures, commodities, and other securities and financial instruments in which I have an interest, or in which I may hereafter acquire an interest, whether held in brokerage accounts, custodial accounts, retirement accounts (to the extent permitted by law), or otherwise.
Without limiting the generality of the foregoing, this grant of authority specifically extends to my publicly traded securities portfolio, which has an aggregate estimated fair market value of approximately One Hundred Twelve Million Dollars ($112,000,000), and which is managed by Havensbrook Wealth Advisors LLC, with offices at 900 Third Avenue, 18th Floor, New York, New York 10022, under the supervision of Managing Director Diana R. Linden, CFP®. The Agent is authorized to interact with Havensbrook Wealth Advisors LLC and its officers, employees, and representatives on my behalf, to provide investment instructions, to receive account statements and reports, to modify investment objectives and guidelines, to open and close accounts, and to execute investment management agreements and amendments thereto.
The Agent is further authorized to interact with any and all brokerage firms, custodians, transfer agents, clearing corporations, mutual fund companies, and other financial intermediaries holding my securities or acting on my behalf, and to execute all instruments, documents, and agreements necessary or appropriate in connection with securities transactions, including trade confirmations, transfer instructions, stock powers, bond powers, option agreements, margin agreements, and account applications.
Section 4.4 — Banking Transactions (GOL § 5-1502D)
Pursuant to Section 5-1502D of the New York General Obligations Law, I grant my Agent authority to conduct all banking and financial institution transactions on my behalf, including but not limited to the following:
(a) Opening, maintaining, managing, and closing checking accounts, savings accounts, money market accounts, certificates of deposit, and any other deposit accounts at any bank, savings institution, credit union, or other financial institution;
(b) Signing, endorsing, and depositing checks, drafts, and other negotiable instruments payable to me or to my order;
(c) Making deposits to and withdrawals from any of my accounts, by any means including in-person transactions, wire transfers, electronic funds transfers, automated clearing house transactions, and online or telephone banking;
(d) Accessing, opening, and closing safe deposit boxes maintained by me at any financial institution, and removing, adding, or otherwise dealing with the contents thereof;
(e) Negotiating and executing promissory notes, loan agreements, lines of credit, and other borrowing instruments on my behalf;
(f) Pledging my assets as collateral for loans and other obligations; and
(g) Performing any and all other banking transactions that I could perform if personally present.
Section 4.5 — Business Operating Transactions (GOL § 5-1502E)
Pursuant to Section 5-1502E of the New York General Obligations Law, I grant my Agent authority to operate, manage, participate in, and conduct any and all business transactions and affairs on my behalf, with respect to any business entity in which I hold an ownership interest, management role, or other beneficial or contractual interest.
Without limiting the generality of the foregoing, this grant of authority specifically extends to my interests in the following business entities:
(a) Caldwell Ridgeline Capital LLC, a limited liability company organized and existing under the laws of the State of Delaware, with its principal office at 280 Park Avenue, 35th Floor, New York, New York 10017. Caldwell Ridgeline Capital LLC is my former asset management firm, with approximately Two Billion One Hundred Million Dollars ($2,100,000,000) in assets under management. The Agent is authorized to interact with Gregory S. Fenton, Chief Financial Officer, and other officers and employees of Caldwell Ridgeline Capital LLC on my behalf, and to exercise all rights and powers attendant to my ownership and management interests in that entity;
(b) Caldwell Ridgeline Fund IV LP, a limited partnership organized and existing under the laws of the State of Delaware (vintage 2015), in which I hold limited partnership interests with an estimated fair market value of Twelve Million Dollars ($12,000,000);
(c) Caldwell Ridgeline Fund V LP, a limited partnership organized and existing under the laws of the State of Delaware (vintage 2018), in which I hold limited partnership interests with an estimated fair market value of Fourteen Million Dollars ($14,000,000);
(d) Caldwell Ridgeline Fund VI LP, a limited partnership organized and existing under the laws of the State of Delaware (vintage 2021), in which I hold a carried-interest position with an estimated fair market value of Twelve Million Dollars ($12,000,000); and
(e) Stonecrest Realty Holdings LLC, a limited liability company organized and existing under the laws of the State of New York, with its principal office at 330 Madison Avenue, Suite 2401, New York, New York 10017. Stonecrest Realty Holdings LLC is my real estate holding company, through which I hold the real property interests described in Section 4.1 of this Article. The Agent is authorized to interact with Robert M. Sinclair, Chief Operating Officer, and other officers and employees of Stonecrest Realty Holdings LLC on my behalf.
With respect to each of the foregoing entities, and any other business entity in which I hold an interest, the Agent is authorized to vote my membership interests, partnership interests, or other ownership interests; attend meetings of members, partners, managers, or directors; execute written consents and resolutions in lieu of meetings; review and approve financial statements, budgets, and business plans; approve or reject capital calls, distributions, and other financial transactions; negotiate, execute, amend, and terminate operating agreements, partnership agreements, subscription agreements, side letters, and other governing documents; and take all other actions that I could take if personally present as an owner, member, partner, or manager of such entities.
The Agent is further authorized, on my behalf and in my name, to form, organize, capitalize, dissolve, wind up, or reorganize business entities of any type, including but not limited to corporations, limited liability companies, limited partnerships, general partnerships, joint ventures, and trusts, in any jurisdiction, and to execute and file articles of incorporation, certificates of formation, certificates of limited partnership, and all other organizational and regulatory filings necessary or appropriate in connection therewith.
Section 4.6 — Insurance and Annuity Transactions (GOL § 5-1502F)
Pursuant to Section 5-1502F of the New York General Obligations Law, I grant my Agent authority to deal with all insurance and annuity contracts and policies on my behalf, including but not limited to the authority to apply for, obtain, modify, renew, cancel, surrender, assign, borrow against, and collect the proceeds of insurance policies and annuity contracts of every kind and description, including life insurance, health insurance, disability insurance, long-term care insurance, property and casualty insurance, liability insurance, umbrella coverage, and annuity contracts.
The Agent is specifically authorized to coordinate with Glenmore Insurance Brokerage LLC, with offices at 44 Wall Street, Suite 1200, New York, New York 10005, under the supervision of Senior Vice President Nathan C. Freed, regarding all insurance matters affecting me and my interests, including the procurement, renewal, modification, and claims management of all insurance policies.
Notwithstanding the foregoing, the Agent shall not exercise any incidents of ownership over the second-to-die universal life insurance policy issued by Beacon Life Assurance Company, Policy No. BLA-2023-77419, with a death benefit of Fifteen Million Dollars ($15,000,000), which policy is owned by the Caldwell Family Insurance Trust (the "ILIT"), an irrevocable life insurance trust, with Northgate Trust Company of Delaware serving as institutional trustee. This exclusion is imposed in order to preserve the estate tax benefits of the ILIT structure and to avoid the inclusion of the policy proceeds in my gross estate under Section 2042 of the Internal Revenue Code of 1986, as amended. The Agent's authority under this Section 4.6 does not extend to any action that would constitute an exercise of incidents of ownership over the aforementioned policy or that could otherwise jeopardize the estate tax treatment of the ILIT. For the avoidance of doubt, the prohibition in this paragraph applies to any action that could be construed as ownership, control, or dominion over the policy, including but not limited to changing the beneficiary designation, surrendering or canceling the policy, borrowing against the cash value of the policy, pledging the policy as collateral, or assigning the policy to any person or entity.
Section 4.7 — Estate, Trust, and Other Beneficiary Transactions (GOL § 5-1502G)
Pursuant to Section 5-1502G of the New York General Obligations Law, I grant my Agent authority to act on my behalf with respect to all estates, trusts, and other beneficial interests in which I have a present or future interest, in any capacity, including as settlor, grantor, trustee, beneficiary, or otherwise.
Without limiting the generality of the foregoing, this grant of authority specifically extends to my interests in and authority over the following trusts and related structures:
(a) The Caldwell Revocable Trust, originally established by me as Settlor on October 3, 2010, and amended and restated effective April 1, 2023, of which I currently serve as Settlor and Trustee. The Agent is authorized to act in my capacity as Trustee to the extent I am unable to act in that capacity, and to exercise all powers reserved to me as Settlor, subject to the limitations in Article V;
(b) The Caldwell 2023 Securities GRAT ("GRAT A"), a grantor retained annuity trust funded on April 15, 2023, with a corpus of Sixty Million Dollars ($60,000,000), a two (2)-year term, and an annuity payment of Thirty-Two Million One Hundred Ninety-Five Thousand One Hundred Twenty-Two Dollars ($32,195,122) per year;
(c) The Caldwell 2023 Realty GRAT ("GRAT B"), a grantor retained annuity trust funded on May 1, 2023, with a corpus of Eighty Million Dollars ($80,000,000), a three (3)-year term, and an annuity payment of Twenty-Nine Million Three Hundred Seventy-Five Thousand Eight Hundred Fifty-Nine Dollars ($29,375,859) per year;
(d) The Caldwell 2023 Carried Interest GRAT ("GRAT C"), a grantor retained annuity trust funded on June 1, 2023, with a corpus of Thirty-Eight Million Dollars ($38,000,000), a three (3)-year term, and an annuity payment of Thirteen Million Nine Hundred Fifty-Three Thousand Seven Hundred Fifty-Nine Dollars ($13,953,759) per year;
(e) The Caldwell Family Dynasty Trust, a trust established under the laws of the State of Delaware (Delaware situs), established on April 1, 2023, with initial funding of Five Million Dollars ($5,000,000), with Thomas R. Caldwell and Northgate Trust Company of Delaware serving as co-trustees; and
(f) The Caldwell Family Foundation, a not-for-profit corporation organized under the laws of the State of New York, incorporated on March 20, 2023, Employer Identification Number 88-3021547, with initial funding of Ten Million Dollars ($10,000,000).
The Agent is authorized to make GRAT annuity payments when due, in the amounts and at the times specified in the governing instruments of each GRAT, using such assets of the GRATs as the Agent determines to be appropriate, consistent with the terms of the GRAT instruments and applicable law. The Agent is further authorized to interact with the co-trustees of the Dynasty Trust, the trustee of the ILIT, and the officers and directors of The Caldwell Family Foundation on my behalf. The Agent is specifically authorized to communicate and coordinate with Northgate Trust Company of Delaware, with offices at 1201 North Market Street, Suite 1600, Wilmington, Delaware 19801, under the supervision of Senior Vice President Philip A. Rossiter, in connection with all matters relating to the Dynasty Trust, the ILIT, and any other trust or fiduciary arrangement in which Northgate Trust Company of Delaware serves in a fiduciary or co-fiduciary capacity.
The Agent is authorized to disclaim, release, or exercise any power of appointment held by me, whether presently exercisable or exercisable in the future, whether general or limited, and whether arising under a trust instrument, a will, or otherwise, subject to the limitations set forth in Article V of this instrument and to the requirements of applicable law, including but not limited to the requirements of Sections 2-1.11 and 2-1.12 of the New York Estates, Powers and Trusts Law and Section 2514 of the Internal Revenue Code.
Section 4.8 — Claims and Litigation (GOL § 5-1502H)
Pursuant to Section 5-1502H of the New York General Obligations Law, I grant my Agent authority to prosecute, defend, submit to arbitration or mediation, settle, compromise, and otherwise manage and resolve any and all claims, disputes, actions, suits, and proceedings of every kind and description, whether now existing or hereafter arising, in which I have an interest or to which I am or may become a party, in any court, tribunal, administrative agency, or other forum of competent jurisdiction.
The Agent is authorized to retain, engage, compensate, and discharge attorneys, counselors, accountants, expert witnesses, consultants, and other professionals on my behalf in connection with any claim or litigation. The Agent is authorized to execute pleadings, motions, discovery requests and responses, stipulations, settlement agreements, releases, satisfactions of judgment, and all other documents and instruments necessary or appropriate in connection with the prosecution, defense, or resolution of any claim or litigation on my behalf.
Section 4.9 — Personal and Family Maintenance (GOL § 5-1502I)
Pursuant to Section 5-1502I of the New York General Obligations Law, I grant my Agent authority to provide for the health, education, maintenance, and support of myself and the members of my family, including the payment of medical expenses, insurance premiums, educational tuition and fees, household expenses, and all other costs reasonably necessary for the comfort, welfare, and well-being of myself and my family members.
For purposes of this Section 4.9, my family members include the following individuals:
(a) Eleanor Victoria Caldwell — my spouse;
(b) Thomas Robert Caldwell — my son;
(c) Dr. Sarah P. Caldwell — my daughter-in-law (spouse of Thomas R. Caldwell);
(d) Katherine C. Hartfield — my daughter;
(e) Dr. Andrew W. Hartfield — my son-in-law (spouse of Katherine C. Hartfield);
(f) Olivia G. Caldwell — my daughter;
(g) James W. Hartfield — my grandchild, age 8 (child of Katherine C. Hartfield and Dr. Andrew W. Hartfield);
(h) Charlotte M. Hartfield — my grandchild, age 5 (child of Katherine C. Hartfield and Dr. Andrew W. Hartfield);
(i) Lucas T. Caldwell — my grandchild, age 3 (child of Thomas R. Caldwell and Dr. Sarah P. Caldwell); and
(j) Nora E. Caldwell — my grandchild, age 1 (child of Thomas R. Caldwell and Dr. Sarah P. Caldwell).
The Agent is authorized to make expenditures for the health, education, maintenance, and support of the above-named individuals in such amounts and at such times as the Agent deems reasonable and appropriate, consistent with my accustomed standard of living and my established pattern of providing for my family.
Section 4.10 — Benefits from Social Security, Medicare, Medicaid, and Other Government Programs or Military Service (GOL § 5-1502J)
Pursuant to Section 5-1502J of the New York General Obligations Law, I grant my Agent authority to apply for, claim, and receive all benefits, payments, and entitlements from Social Security, Medicare, Medicaid, and any other governmental program or military service benefit to which I am or may become entitled. The Agent is authorized to interact with the Social Security Administration, the Centers for Medicare and Medicaid Services, the United States Department of Veterans Affairs, and any other federal, state, or local governmental agency on my behalf, and to execute all applications, forms, appeals, and other documents necessary or appropriate in connection with any such benefit or entitlement.
Section 4.11 — Tax Matters (GOL § 5-1502K)
Pursuant to Section 5-1502K of the New York General Obligations Law, I grant my Agent authority to act on my behalf in all tax matters, including but not limited to the following:
(a) Preparing, signing, and filing all federal, state, and local income tax returns, estimated tax payments, extensions of time to file, gift tax returns (including Internal Revenue Service Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return), estate tax returns (including Internal Revenue Service Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return), and all related schedules, statements, elections, and correspondence;
(b) Interacting with the Internal Revenue Service, the New York State Department of Taxation and Finance, the New York City Department of Finance, the New Jersey Division of Taxation, the Connecticut Department of Revenue Services, the Delaware Division of Revenue, and any other federal, state, or local taxing authority on my behalf, including responding to notices, attending audits and examinations, executing closing agreements, filing protests and appeals, and negotiating and executing settlements of tax disputes;
(c) Coordinating with Strathmore Corporation & Greaves LLP, my accountants and tax advisors, with offices at 600 Third Avenue, 28th Floor, New York, New York 10016, under the supervision of Senior Partner Martin J. Prescott, CPA, and with Sylvia Hartwell, Specialist Partner, Tax, at Calderwood & Harkness LLP, regarding all tax planning, compliance, and reporting matters;
(d) Making elections with respect to the allocation of my generation-skipping transfer ("GST") tax exemption, including the allocation of GST exemption to transfers to the Caldwell Family Dynasty Trust and to other transfers to skip persons or trusts for the benefit of skip persons;
(e) Making portability elections under Section 2010(c)(5)(A) of the Internal Revenue Code to transfer any deceased spousal unused exclusion ("DSUE") amount to a surviving spouse, or to elect against portability, as appropriate;
(f) Making qualified terminable interest property ("QTIP") elections under Section 2056(b)(7) of the Internal Revenue Code with respect to property passing to or for the benefit of my spouse, and making reverse QTIP elections under Section 2652(a)(3) of the Internal Revenue Code; and
(g) Signing and filing the 2023 Form 709 (United States Gift Tax Return) on my behalf, reporting all gift tax-relevant transfers made in the 2023 calendar year, including without limitation: (i) the funding of the three GRATs described in Section 4.7 (each designed as a "zeroed-out" GRAT with a remainder interest valued at or near zero for gift tax purposes); (ii) the Five Million Dollar ($5,000,000) gift to the Caldwell Family Dynasty Trust; (iii) my Five Million Dollar ($5,000,000) share of the contribution to The Caldwell Family Foundation; and (iv) Crummey withdrawal right contributions to the Caldwell Family Insurance Trust in respect of premium payments on the Beacon Life Assurance Company policy.
Section 4.12 — Gifts (GOL § 5-1502L — As Modified)
Pursuant to Section 5-1502L of the New York General Obligations Law, as modified by the Statutory Gifts Rider attached hereto and incorporated herein by reference, I grant my Agent authority to make gifts in my name and on my behalf, consistent with my established pattern of giving, subject to the following terms and limitations:
(a) Annual Exclusion Gifts. The Agent is authorized to make gifts to any individual in amounts not exceeding the applicable annual exclusion amount under Section 2503(b) of the Internal Revenue Code, which for the 2023 calendar year is Seventeen Thousand Dollars ($17,000) per donee.
(b) Charitable Gifts. The Agent is authorized to make gifts to The Caldwell Family Foundation and to other qualified charitable organizations as part of my ongoing charitable giving program, subject to the limitations set forth in Section 5.4 of Article V.
(c) Crummey Power Premium Contributions. The Agent is authorized to make contributions to the Caldwell Family Insurance Trust in the amount of the annual premium on the Beacon Life Assurance Company policy (Policy No. BLA-2023-77419), which premium is approximately One Hundred Eighty-Seven Thousand Five Hundred Dollars ($187,500) per year. Of this amount, approximately Fifty-One Thousand Dollars ($51,000) is covered by the annual exclusion for three (3) Crummey withdrawal right beneficiaries (at Seventeen Thousand Dollars ($17,000) each), and the balance of approximately One Hundred Thirty-Six Thousand Five Hundred Dollars ($136,500) shall be applied against my remaining lifetime gift tax exemption.
(d) Limitation on Gifts Using Lifetime Exemption. The Agent shall not make gifts, transfers, or other dispositions that would cause my remaining applicable exclusion amount (lifetime gift tax exemption) under Section 2010 of the Internal Revenue Code to fall below Five Hundred Thousand Dollars ($500,000) without my prior written approval, or, if I am incapacitated, without obtaining a court order authorizing such gifts. As of the date of this instrument, after giving effect to the gifts contemplated by the current estate plan (including the Dynasty Trust funding, the Foundation contribution, and the ILIT premium gifts), my estimated remaining applicable exclusion amount is approximately One Million One Hundred Seventy Thousand Dollars ($1,170,000).
The authority to make gifts under this Section 4.12 is subject to and contingent upon the execution of the Statutory Gifts Rider in compliance with Section 5-1514 of the New York General Obligations Law, which Statutory Gifts Rider is attached to and executed concurrently with this Power of Attorney.
Section 4.13 — All Other Matters (GOL § 5-1502N)
Pursuant to Section 5-1502N of the New York General Obligations Law, I grant my Agent authority to perform any and all other acts, transactions, and things that I could perform if personally present and acting on my own behalf, in any matter or transaction not specifically enumerated in Sections 4.1 through 4.12 of this Article IV, subject to the modifications and limitations set forth in Article V of this instrument.
This catch-all grant of authority is intended to be construed broadly to effectuate my intent that my Agent shall have the fullest authority permitted by law to act on my behalf in all matters affecting my person, property, and affairs, and to ensure that no gap in authority exists that would impair the Agent's ability to manage my affairs in the event of my incapacity or unavailability.
ARTICLE V — MODIFICATIONS AND LIMITATIONS ON AGENT'S AUTHORITY
Notwithstanding the broad grant of authority set forth in Article IV, the Agent's authority under this Power of Attorney is subject to the following modifications and limitations:
Section 5.1 — Self-Dealing Restrictions
The Agent shall not use, transfer, pledge, or otherwise dispose of any of my assets, funds, or property for the Agent's own personal benefit, except as expressly authorized under Section 4.9 (personal and family maintenance) and Section 4.12 (gifts) of this instrument. The Agent shall not engage in any transaction in which the Agent has a personal financial interest that is adverse to my interests, unless such transaction is specifically authorized by this instrument or approved by a court of competent jurisdiction.
The Agent shall not commingle my funds, assets, or property with the Agent's own funds, assets, or property, or with the funds, assets, or property of any other person or entity. All of my funds and assets shall be maintained in accounts and investments held in my name, or in the name of entities in which I hold an ownership interest, and shall be clearly identifiable as my property at all times.
Section 5.2 — Restrictions on Trust Modifications
The Agent shall not amend, revoke, or terminate the Caldwell Revocable Trust, the Caldwell Family Dynasty Trust, the Caldwell Family Insurance Trust (the ILIT), or any of the three Grantor Retained Annuity Trusts (GRATs A, B, and C described in Section 4.7) without the prior written consent of Calderwood & Harkness LLP, specifically from Victoria Chambers, Responsible Partner, or her successor, at 375 Park Avenue, 42nd Floor, New York, New York 10152. In the event that Calderwood & Harkness LLP is no longer serving as my counsel, the Agent shall obtain the prior written consent of successor counsel designated by me or, if no successor counsel has been designated, shall obtain a court order authorizing such amendment, revocation, or termination.
This restriction is imposed to protect the integrity and tax efficiency of the structures established under my generational estate plan and to ensure that no action is taken that would inadvertently trigger adverse tax consequences, disqualify any trust from favorable tax treatment, or otherwise undermine the objectives of the estate plan.
Section 5.3 — Restrictions on ILIT
The Agent shall not exercise, and shall not purport to exercise, any incidents of ownership over the second-to-die universal life insurance policy issued by Beacon Life Assurance Company, Policy No. BLA-2023-77419, with a death benefit of Fifteen Million Dollars ($15,000,000), which policy is owned by the Caldwell Family Insurance Trust (the ILIT) and held by Northgate Trust Company of Delaware as institutional trustee. Any exercise of incidents of ownership over such policy by the Agent could result in the inclusion of the full death benefit of the policy in my gross estate for federal estate tax purposes under Section 2042 of the Internal Revenue Code, thereby defeating the estate tax planning objectives of the ILIT structure.
For purposes of this Section 5.3, "incidents of ownership" includes, without limitation, the right to change the beneficiary designation, the right to surrender or cancel the policy, the right to borrow against the cash value of the policy, the right to pledge the policy as collateral, the right to assign the policy, and any other economic benefit or right of control over the policy.
Section 5.4 — Restrictions on Charitable Transfers
The Agent shall not make charitable pledges, commitments, grants, or transfers exceeding Two Hundred Fifty Thousand Dollars ($250,000) in any single calendar year without the prior written consent of the Principal. If I, as Principal, am then incapacitated and unable to provide such consent, the Agent may make charitable pledges, commitments, grants, or transfers exceeding such threshold only with the joint written approval of the Successor Agent (Thomas R. Caldwell, if he is not then serving as Agent) and one other family member, specifically either Katherine C. Hartfield or Olivia G. Caldwell.
This restriction is intended to ensure that my charitable giving remains consistent with my established philanthropic objectives and within the parameters of my overall financial plan and estate plan.
Section 5.5 — Compensation of Agent
The Agent shall serve without compensation for the Agent's services under this Power of Attorney. The Agent shall, however, be entitled to reimbursement from my assets for all reasonable and necessary expenses actually incurred by the Agent in the performance of the Agent's duties under this instrument, including but not limited to travel expenses, postage and delivery charges, copying costs, professional fees for accountants and attorneys engaged to assist the Agent, and other out-of-pocket costs reasonably associated with the administration of my affairs.
The Agent shall maintain receipts and records of all expenses for which reimbursement is claimed and shall include such expenses in the accounting required by Article VIII.
ARTICLE VI — THIRD-PARTY RELIANCE
Any third party who receives a copy of this Durable General Power of Attorney, whether an original, a photocopy, a facsimile, or an electronically transmitted copy, may rely upon the authority granted herein and upon the representations of the Agent as to the scope and validity of the Agent's authority, without independent investigation or verification, and without liability for any action taken or omitted in good-faith reliance thereon, in accordance with Section 5-1504 of the New York General Obligations Law.
Third parties entitled to rely upon this Power of Attorney include, but are not limited to, all banks, savings institutions, credit unions, brokerage firms, custodians, transfer agents, insurance companies, title companies, real estate brokers, government agencies, and other institutions and persons with whom the Agent transacts business on my behalf. Without limitation, the following entities and persons are specifically authorized to rely upon the Agent's authority hereunder:
(a) Havensbrook Wealth Advisors LLC and its officers, employees, and representatives;
(b) Strathmore Corporation & Greaves LLP and its partners, employees, and representatives;
(c) Northgate Trust Company of Delaware and its officers, employees, and representatives;
(d) Glenmore Insurance Brokerage LLC and its officers, employees, and representatives;
(e) Calderwood & Harkness LLP and its partners, associates, and staff;
(f) Caldwell Ridgeline Capital LLC and its officers, employees, and representatives;
(g) Stonecrest Realty Holdings LLC and its officers, employees, and representatives; and
(h) All financial institutions, brokerages, banks, and other entities holding accounts, assets, or instruments on my behalf or in my name.
I hereby agree to indemnify and hold harmless any third party who, in good faith and without actual knowledge that the authority granted herein has been revoked, terminated, or modified, acts in reliance upon a properly executed copy of this Power of Attorney or upon the instructions of my Agent given pursuant to this Power of Attorney. This indemnification shall extend to any loss, liability, cost, damage, or expense (including reasonable attorneys' fees) incurred by such third party as a result of such good-faith reliance.
ARTICLE VII — SUCCESSOR AGENT PROVISIONS
Section 7.1 — Appointment and Qualification
Thomas Robert Caldwell is hereby appointed as Successor Agent under this Power of Attorney, as set forth in Section 2.2 of Article II. Thomas R. Caldwell shall assume the role of Agent and shall have all of the powers, authorities, duties, and obligations of the Primary Agent under this instrument, effective upon the occurrence of any of the following events with respect to the Primary Agent, Eleanor Victoria Caldwell:
(a) The Primary Agent's inability to serve due to physical or mental incapacity, illness, or disability;
(b) The Primary Agent's unwillingness to serve, as communicated in writing to the Principal, to the Successor Agent, or to Calderwood & Harkness LLP;
(c) The Primary Agent's written resignation delivered to the Principal, to the Successor Agent, or to Calderwood & Harkness LLP;
(d) The removal of the Primary Agent by court order or by any other legally effective means; or
(e) The incapacity of the Primary Agent, as determined in accordance with Section 7.2 of this Article.
Upon assuming the role of Agent, the Successor Agent shall have all powers and authorities granted to the Primary Agent under this instrument, without limitation, and subject to the same modifications and limitations set forth in Article V and elsewhere in this Power of Attorney. The Successor Agent shall be bound by all fiduciary duties applicable to an Agent under the New York General Obligations Law, including but not limited to the duties set forth in Section 5-1505.
Section 7.2 — Determination of Primary Agent's Incapacity
For purposes of this Article VII, the Primary Agent, Eleanor Victoria Caldwell, shall be deemed incapacitated upon the earlier of:
(a) The receipt by the Successor Agent (Thomas R. Caldwell) of written certifications from two (2) licensed physicians, each certifying that Eleanor V. Caldwell is unable to manage her own affairs or to serve as Agent under this Power of Attorney due to physical illness, mental illness, cognitive impairment, injury, or other condition rendering her incapable of performing the duties of Agent; or
(b) A determination by a court of competent jurisdiction that Eleanor V. Caldwell is incapacitated, incompetent, or otherwise unable to serve as Agent under this Power of Attorney.
The physicians providing the certifications described in subsection (a) above shall be licensed to practice medicine in the State of New York or in the state in which the Primary Agent then resides, and at least one of the two physicians shall be board-certified in a medical specialty relevant to the condition causing the incapacity (such as neurology, geriatric medicine, psychiatry, or internal medicine).
The Successor Agent may act immediately upon receipt of the physician certifications described in subsection (a) above, or upon the entry of a court order described in subsection (b) above, without further authorization, qualification, or judicial proceeding.
Section 7.3 — Successor Agent's Acceptance
The Successor Agent's authority under this Power of Attorney shall become effective upon the earlier of:
(a) The Successor Agent's execution and delivery of a written acceptance of appointment as Agent under this instrument; or
(b) The Successor Agent's first act taken pursuant to the authority granted under this instrument, which act shall constitute acceptance of the appointment and of all fiduciary duties and obligations attendant thereto.
The Successor Agent is not required to post a bond or other security as a condition of serving under this Power of Attorney, unless a court of competent jurisdiction orders otherwise.
ARTICLE VIII — ACCOUNTING AND RECORD-KEEPING
The Agent shall maintain complete, accurate, and contemporaneous records of all transactions conducted, all actions taken, and all decisions made on behalf of the Principal under this Power of Attorney. Such records shall include, without limitation, receipts, bank statements, brokerage statements, contracts, correspondence, tax returns and filings, and any other documents evidencing transactions or decisions made by the Agent on the Principal's behalf.
The Agent shall keep the Principal's assets and funds separate from the Agent's own assets and funds, and from the assets and funds of any other person or entity, and shall maintain accurate records reflecting such separation at all times.
The Agent shall provide an annual accounting of all transactions conducted under this Power of Attorney to the following persons and entities, upon request:
(a) Thomas R. Caldwell (provided that Thomas R. Caldwell is not then serving as Agent under this instrument); and
(b) Calderwood & Harkness LLP, or successor counsel designated by the Principal or by a court of competent jurisdiction.
The annual accounting shall include a statement of all receipts and disbursements, a description of all transactions involving the Principal's assets, a summary of the Principal's assets and liabilities as of the end of the accounting period, and such other information as may be reasonably requested by the persons and entities entitled to receive the accounting.
The Agent's records shall be made available for inspection by any court of competent jurisdiction upon proper demand, including in connection with any proceeding brought under Article 81 of the New York Mental Hygiene Law or any other applicable statute.
ARTICLE IX — REVOCATION AND TERMINATION
Section 9.1 — Revocation
I reserve the right to revoke this Durable General Power of Attorney at any time, for any reason or for no reason, by delivering a written instrument of revocation to the Agent and to any third parties who have been provided with a copy of this Power of Attorney or who have been dealing with the Agent in reliance upon this Power of Attorney. A revocation shall be effective upon delivery of the written instrument of revocation to the Agent, or upon such later date as may be specified in the instrument of revocation.
This Power of Attorney hereby revokes any and all prior powers of attorney executed by me, Jonathan Robert Caldwell, whether general or limited, durable or non-durable, and whether executed in the State of New York or in any other jurisdiction. Any person who has received a copy of any prior power of attorney executed by me is hereby notified that such prior instrument is revoked and is of no further force or effect as of the date of execution of this instrument.
Section 9.2 — Termination Events
This Durable General Power of Attorney shall terminate upon the first to occur of any of the following events:
(a) Death of the Principal. This Power of Attorney shall terminate immediately upon my death, and the Agent shall thereafter have no authority to act on my behalf, except to the extent necessary to complete transactions that were commenced but not yet concluded prior to my death, and only if such completion is necessary to prevent loss or damage to my estate;
(b) Written Revocation by the Principal. This Power of Attorney shall terminate upon my execution and delivery of a written instrument of revocation in accordance with Section 9.1;
(c) Court Order. This Power of Attorney shall terminate upon the entry of an order by a court of competent jurisdiction revoking, suspending, or terminating this Power of Attorney or the Agent's authority hereunder; and
(d) Divorce or Legal Separation. In the event that I and the Primary Agent, Eleanor Victoria Caldwell, are divorced or legally separated, the Primary Agent's authority under this Power of Attorney shall terminate automatically upon the entry of a final judgment or decree of divorce or legal separation, in accordance with Section 5-1511 of the New York General Obligations Law. Upon such termination of the Primary Agent's authority, the Successor Agent, Thomas R. Caldwell, shall thereupon assume the role of Agent and shall have all powers and authorities granted under this instrument, as though the Primary Agent had become unable or unwilling to serve.