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HomeMy WebLinkAbout892191 RECEIVED L, INOOLN 001,1NTY CLERK Certificate of Record -Fort Smith District of Sebastian County, ~rkansas ~-'~'~j;~ ~ ~ Doc ,: 7,o2,72 IIHII IIIIIIII II IIIIII 8 9 2 I Alf -4 t, , 112' l0 05/07/2003 14 30 07 PM Dorm 'rate. County Clerk and Record¢~. ¢o,,.....- '~ [,,,, 17 ¢,~ ¢ [:.." ,;.i/ ./, ~,.,.,..',i i; 070:2 I, 7 MEMORANDUM OF TRUST This Memorandum is executed this 25th day of April, 2003, by Connie Lichty Smith, Trustee of the Connie Lichty Smith Living Trust. - Conr~ie Licht!, Sr~dth was Sett!or o; ~,~ ~,~n,~ Lichty Smith Li':..'ing Trust u.qder a Declaration of Revocable Trust dated the 25th day of April, 2003. Article VI of the 'Connie Lichty Smith Living Trust provides: ARTICLE VI Provision for Substitute or Successor Trustee. The identity of the Substitute or Successor Trustee shall be determined as follows: (1) First Successor Trustee. Except as otherwise provided in this Trust Declaration, if Connie Lichty Smith should be unwilling or unable to continue to serve as Trustee, the Substitute or Successor Co-Trustees shall be Brian Edward Wells and Thomas D. Wells. (2) Determination of Incompetency. If an individual Trustee is unable to continue to serve as Trustee due to his Or her incompetency, the Substitute or Successor Trustee shall rely on a certificate signed by a medical doctor (if available, a doctor who has been in attendance of and treating the i. ndividual Trustee), and which certificate shall state that the doctor examined the individual Trustee and found him or her to be incompetent to handle and manage his or her personal affairs by reason of physical or mental incapacity; or Substitute or Successor Trustee may rely on the Order of a court having jurisdiction over the individual Trustee. (3) Second and Subsequent Successor Trustees. If either Brian Edward Wells or Thomas D. Wells is unwilling or unable to serv;~ as a Co-Trustee, the other shall serve as sole Trustee. If neither Brian Edward Wells nor Thomas D. Wells is willing and able to serve as Successor Trustee, the Trustee shall be designated in a writing signed by all of Settlor's then living children, with their signatures thereto being acknowledged, and if Settlor's then living children are then unwilling or unable to make this designation, the Successor Trustee shall be designated by the court having jurisdiction over this Trust. (4) Change of Trustee. If Settlor is no longer Trustee and Settlor's then living children believe it is in their best interest to replace the then current Trustee, the Settlor's then living children can select a Substitute or Successor Trustee by notifying the outgoing Trustee of the selection of a new Trustee in a writing signed by all of Settlor's then living children, the signatures thereto being acknowledged. The outgoing Trustee shall promptly deliver all the assets of the Trust to the newly selected Trustee and provide a final accounting of the activities of the Trust to the newly selected Trustee. This subparagraph (4) of Article VI shall not apply with regard to the Brian Edward Wells Bypass Trust or the Thomas D. Wells Bypass Trust. HON DENNIS SBANOTTO 120 BELLE AVE PO BOX 1443 FORT SMITH AR 72902-1443 Doc #: 7102472 (5) Trustee of the Shannon Nicole Wisemiller Bypass Trust. The Trustee of the Shannon Nicole Wisemiller Bypass Trust shall be Shannon Nicole Wisemiller. If Shannor~') :! Wisemiller is unwilling or unable t© serve, the Trustee 'of the Shannon Nicole Wisemiller Bypass Trust shall be designated in a writing executed by Shannon Nicole Wisemiller with her signature thereto acknowledged. If Shannon Nicole Wisemiller does not make such a designation, the Trustee of the Shannon Nicole Wisemiller Bypass Trust shall be designated the court having jurisdiction over the Shannon Nicole Wisemiller Bypass Trust. (6) Trustee of the Shannon Nicole Wisemiller Children's Trust. The Trustee of the Shannon Nicole Wisemiller Children's Trust shall be designated in a writing signed by a . majority of the then living children of Shannon Nicole Wisemiller, with the signatures thereto being acknowledged. The natural or legal guardian of any minor child of Shannon Nicole Wisemiller shall be authorized to make this designation on behalf of the respective minor child. If the children of Shannon Nicole Wisemiller are unwilling or unable to make this designation, ~he Tru~ee of the ShannOn Nicole Wjsemiller Children's Trust shall be designated the court having ju. risdiCtion' ~ver "i:he 'S'~anno~:~-Nicd.~ Wisemilier ~Children's ~'ust. Article IX of the Connie Lichty Smith Living Trust provides: ARTICLE IX Long Form of Powers for Trustee. The Trustee is authorized in Trustee's fiduciary discretion (which shall be .subject to the standard of reasonableness and good faith to all beneficiaries) with respect to any property, real or personal, at any time held under any provision of this Trust Declaration and without authorization by any court and in addition to any other rights, powers, authority, and privileges granted by any other provision of this Trust Declaration or by statute or general rules of law: (1) To retain in the form received any property or undivided interests in property donated to, or otherwise acquired as a part of the Trust Estate, including residential p.roperty, regardless of any lack of diversification, risk, or non-Productivity, as long as it deems advisable, and to exchange any such security or property for other securities or properties and to retain such items received in exchange, although said property represents a large percentage of the total property of the Trust Estate or even the entirety thereof. (2) To invest and re-invest all or any part of the Trust Estate in any property and undivided interests in property, wherever located, including bonds, debentures, notes, secured or unsecured, stocks of corporations regardless of class, interests in limited partnerships~ mutual funds, real estate or any interest in real estate whether or not produCtive at the time o'f'investment; interests in trusts, inv~stmept trusts, whether of the open and/or closed fund types, and participation in common, collective, or pOoled trust funds of the Trustee, insurance contracts on. the life of any beneficiary or annuity contracts for any beneficiary, without being limited b'y any statute or rule of law concerning investments by fiduciaries. The trustee is further authorized to buy, sell and trade in securities of any nature (including "short" sales) on margin, and for such purpose may maintain and operate margin accounts with brokers and may pledge any securities held or purchased by them with such brokers as security for loans and advances made to the trustee. (3) To sell or dispose of or grant options to purchase any proPerty, real or personal, constituting a part of the Trust Estate, for cash or upon credit, to exchange any property of the Trust Estate for other property, at such times and upon such terms and conditions as it may deem best, and no person dealing with it shall be bound to see to the application of any monies paid. 4?5 (4) To hold any securities or other property in its own name as Trustee, in its own name, in the name of a nominee (with or without disclosure of any fiduciary relatio~t]].~ or n bearer form. (5) To keep, at any time and from time to time, all or any portion of the Trust Estate in cash and uninvested for such periods of time as it may deem advisable, without liability for any loss in income by reason thereof. (6) To sell or exercise stock Subscription or conversion rights. (7) To refrain from voting or to vote shares of stock which are a part of the Trust Estate at shareholders' meetings in person or by special, limited, or general proxy and in general to exercise all the rights, powers, and privileges of an owner in respect to any securities constituting a part of the Trust Estate. (8) To participate in any plan of reorganization or consolidation or merger involving any company or companies whose stock or other securities shall be part of the Trust Estate, i.~nd te deposit such stock or other se,curRies under any plan of reorganization or with any protectiv'e :,bomm~ttee and to del'egate"re .such commi~tee-discreti-(',nary powe'r 'Mth rei~tion thereto, to pay any proportionate part of the expenses of such committee and any assessments levied under any such plan, to accept and retain new securities received by the Trustee pursuant to any such plan, to exercise all conversion, subscription, voting, and other rights, of whatever nature pertaining to such property, and to pay any amount or amounts of money as it may deem advisable in connection therewith. (9) To borrow money and to encumber, mortgage, or pledge any asset of the Trust Estate for a term within or extending beyond the term of the Trust, in connection with the exercise of any power vested in the Trustee. (10) To enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the Trust. (11) To subdivide, develop, or dedicate real property to public use or to make or obtain the vacation of plats and adjust boundaries, to adjust differences in valuation on exchange or partition by giving or receiving consideration, and to dedicate easements to public use without consideration. (12) To make ordinary or extraordinary repairs or alterations on buildings or other structures, to demolish any improvements, to raze existing, or erect new party walls or buildings. (13) To bontinue and operate any business owned by the Settlor at the Settlor's death and to do any and all things deemed needful or appropriate by the Trustee, including the power to incort~orate the business and to put additional caPital into the business, for such time as it shall deem advisabi~, without iiabil.ity for Io~s resulting~ from the ci~minda~ce Or operatior~ of the business except for its own negligence; and to close out, liquidate, or sell the business at such time and upon such terms as it shall deem best. (14) To collect, receive, and receipt for rents, issues, profits, and income of the Trust Estate. (15) To insure the assets of the Trust against damage or loss and the Trustee against liability with respect to third persons. (16) In buying and selling assets, in lending and borrowing money, and in all other transactions, irrespective of the occupancy by the same person of dual positions, to deal with itself in its separate, or any fiduciary capacity. (17) To compromise, adjust, arbitrate, sue on or defend, abandon,' or otherwise deal with and settle claims in favor of or against the Trust as the Trustee shall deem best. (18) To employ and compensate agents, accountants, investment advisers, brokers, attorneys-in-fact, attorneys-at-law, tax specialists, realtors, and other assistants arid advisors deemed by the Trustee needful for the proper administration of the Trust, and to~/~;'c~" ~,i so without liability for any neglect, omission, misconduct, or default of any such agent or professional representative, provided such person was selected and retained with reasonable care. (19) To determine what shall be fairly and equitably charged or credited to income and what to principal. (20) To hold and retain the principal of the Trust Estate undivided until actual division shall become necessary in order to make distributions; to hold, manage, invest, and account roi' the severa shares or parts thereof by appropriate entries on the Trustee's books of account; and to allocate to each share or part of share its proportionate part of all receipts and expenses; provided, however, the carrying of several trusts as one shall not defer the vesting in title or in possession of any share or part of share thereof. · . (21) TO make payment in cash or in kind, or partly in cash and partly in kind, upon any division or dist~'ibution of t~e Trust Estate (including the satisfaction of any pecuniary distributiC'~in) wif~hout ,~ega;i-d tO "the income "f[~:~ basis -t:f ar~, specific i5'roperty allocated to 'r~ny beneficiary and to value and appraise any asset and to distribute such asset in kind at its appraised value; and when dividing fractional interests in property among several beneficiaries to allocate entire interests in some property to one beneficiary and entire interests in other property to another beneficiary or beneficiaries. (22) In general, to exercise all powers in the management of the Trust Estate which any individual could exercise in his or her own right, upon'such terms and conditions as it may reasonably deem best, and to do all acts which it may deem reasonably necessary or proper to carry o.ut the purposes of this Trust Declaration. (23) To purchase property, real or personal, from the Settlor's general estate upon such terms and conditions as to price and terms of payment as the Settlor's Executor or Administrator and the Trustee shall agree, to hold the property so purchased as a part of the Trust Estate although it may not qualify as an authorized trust investment except for this provision, and to dispose of such property as and when the Trustee shall deem advisable. The fact that the Settlor's Executor or Administrator and the Trustee are the same shall in no way affect the validity of this provision. (24) 7'0 lend funds to the Settlor's general estate upon such terms and conditions as to interest rates, maturities, and security as the Settlor's Executor or Administrator and the Trustee shall agree, the fact that they may be the same in no way affecting the validity of this provision. (25) To .receive property bequeathed, devised, or donated to the Trustee by the Settlor or any oti"~er person; to recei'~'e the ip~'ocee~s of a:~y i~suranc~ po!ic'~~ which na¢~es the Trustee as beneficiary; to execute all necessary receipts and release to 'Executors, donors, insurance companies, and other parties adding property to the Trust Estate. (26) To combine assets of two or more trusts if the provisions and terms of each trust are substantially identical, and. to administer them as a single trust, if the Trustee reasonably determines that the administration as a single trust is consistent with Settlor's intent, and facilitates trust administration without defeating or impairing the interests of the beneficiaries. (27) To divide any trust into separate shares or separate trusts if the Trustee reasonably deems it approp¢iate and the division is consistent with the Settlor's intent, and facilitates trust administration without defeating or impairing the interests of the beneficiaries. (28) To divide property in any trust being held hereunder with an inclusion ratio, as defined in Section 2642(a)(1) of the Internal Revenue Code of 1986, as from time to 477 time amended or under similar future legislation, of neither one nor zero into two separate _. trusts representing two fractional shares of the property being divided, one to have an incl'~t]~i;~ii~'- -',~. ratio of one and the other to have an inclusion ratio of zero, as the Trustee in its sole discretion .. deems best. (29) If the Trustee shall act as the Executor of the Settlor's estate, to elect to allocate any portion or all the Settlor's generation-skipping transfer exemption provided for in Code Section 2631 or under similar future legislation, in effect at the time of the Settlor's death, to any portion or all of Brian Edward Wells Bypass Trust and Thomas D. Wells Bypass Trust or any other trusts or bequests in the Settlor's Will or any other transfer which the Settlor is the transferor for purposes of the generation-skipping tax. Generally, the Settlor anticipates that the Settlor's Executor will elect to allocate this exemption first to direct skips as defined in Code Section 2612, then in equal proportions to Brian Edward Wells Bypass Trust and Thomas D. Wells Bypass Trust, unless it would be inadvisable based on all the circumstances at the time of~ making the all0cation;-,~nd to make the special election under Section 2652(a)(1) ¢;f the Code to ,*,he e~tenf~i~e S'~tflor's Exb. c¢:~¢~: deems, in the best inte¢;~st of my es~¢ate. This Memorandum of -r'rust is executed to be recorded to provide notice regarding the Connie Lichty Smith Living Trust, the identity of its Trustees, and the Trustees' powers with regard to dealing'with 'property of the Trust Estate. IN WITNESS WHEREOF~ the Trustee has set her hand and seal the day and year first above written. Connie Lichty Smith, TrUStee ACKNOWLEDGMENT 4? 8 STATE OF ARKANSAS COUNTY OF SEBASTIAN On this 25th day of April, 2003, before me, a Notary Public, personally appeared Connie Lichty Smith, known to me to be the person whose name appears upon the within and foregoing instrument and acknowledged that she executed the same for the purposes therein mentioned and set forth. ~4.itne~s my hand and seal this 25th cjay of April, 2003. My Commission Notary Public