EFTA02516299.pdf

From: jeffrey E. <jeevacation@gmail.com> Sent: Wednesday, November 19, 2014 1:16 AM To: Martin O'Connor Peggy Siegal 1.The note from Gary's attorney at the top of the Settlement Agreement ab=ut Peggy being required to sign and deliver to Gary any necessary instrument to close the Estate of Annette Siegel and the Trusts seems unnecessary, as the expressed concerns would appear to be addressed in paragraph 7, which provides that "Each of the parties agrees to exe=ute and deliver any and all necessary or proper instruments to carry out the purposes and intent of this Agreement" To the extent what is=requested is necessary and acceptable to Peggy, it would require a slight addition at the end of paragraph 7. 2. The opening provisions of the Settlement Agreement should name Gary as a party, individually, and in his representative capacities as trustee of the Marital Trust and the Annette Trust and as Person Representative of the Estate of Annette Siegel. 3. Recital K appears to be the basis for the consideration to be given to Peggy. Is the stated sum correct? Also, there is a reference in recita= K to "50% of the balance of the reserve, if any remains." =hat is "the reserve"? It is not defined in the agreement. <=div> 4. In paragraphs 2, note that any reference to Gary having an individual obligation to make any payment provided for therein is eliminated. Al=o note that in paragraph (ii) of paragraph 2 there is a reference to a payment of $150,000. Is this something that can come from the trusts =r the estate or must it come from Gary? If so, then deleting Gary in h=s individual capacity from paragraph 2 would be inappropriate. 5. In paragraph 3, reference to Gary's individual liability is deleted=C2 from the beginning of the paragraph, but is kept in at the end of the paragraph. I am not certain what his attorney is trying to achieve, a=d without any context, I am in the dark. 6. In the comments on the side margin on page 2, Gary's attorney wants t= define Effective Date, but Effective Date is already defined in paragraph 5 as a specific date. So, the change requested by Gary =80 s attorney, if appropriate, should be made to paragraph 5. Otherwise there will be inconsistent provisions defining the Effective Date. 7. In paragraph 3 there is an obligation to distribute Peggy's share of=20 "accrued assets after the date of distribution" - what are &qu=t;accrued assets"? Accrued where? This is too vague. The same is tru= for the obligation to distribute Peggy's share of any "additional asse=s" not reflected on the Statement of Account. This is also too vague - literally it means any additional assets not on that Statement of Account. 8. I agree with the comment in paragraph 4 that the form of the releases should be attached to the agreement and incorporated therein. I would=20 want this to make sure that there is no later argument about the content of the releases. I also might expressly state that full payment of a=l amounts to be paid under the Settlement Agreement is a condition precedent to the effectiveness of the releases. Also, it may also be=20 wise to expressly state in the body of the releases that not only do the releases cover any claims by a party or his or her successors or assigns, but also the release cover derivative claims by devisees, distributes, beneficiaries, and successor fiduciaries making claims through the trusts or the Estate. EFTA_R1_01651179 EFTA02516299 9. Paragraph 6 provides that it is the intent to settle all disputes covering the subject matter of the Settlement Agreement - why limit this to "coveri=g the subject matter of this Agreement." The releases provided fo= in the Settlement Agreement are general releases and paragraph 14 provide= that "it is expressly agreed that the sole and exclusive purpose of=20 settlement is to resolve all differences between the parties." =AO There is no limitation there. 10. Gary's attorney's comment that he wants paragraph 8 to state that it is=20 binding on Peggy too, seems unnecessary. Peggy's rights to re=eive distributions and payments from the trusts and the estate are in her individual capacity and not in a representative capacity on behalf of another entity. Also, Peggy is signing the agreement and paragraph 18=20 already provides that the agreement is binding on her. Moreover, Pegg= is agreeing in paragraph 8(d) that Gary's signing of the agreement =n his fiduciary capacity binds her as beneficiary and all successor fiduciaries. 11. Note in paragraph 9 that Florida law governs the Settlement Agreement and in paragraph 10 that Federal and state courts are the exclusive venue for any action brought in connection with the Settlement Agreement. ert> 12. Paragraph 14 requiring full cooperation in the event of a collateral attack by third parties on the Settlement Agreement is interesting. Full cooperation may require payment of costs and fees, including attorneys fees. I suspect there may be provisions in the will and trusts which=20 indemnify Gary for his attorney fees and costs when acting in his fiduciary capacities. To the extent payments of those fees and costs=20 come out of the trusts and the estate, one-half of those fees and costs are essentially being borne by Peggy. So in the event of a collateral=20 attack, in addition to Peggy having to pay 100% of any costs and fees Peggy must occur to defend against it, it may be possible that Peggy will essentially bear one-half of Gary's costs and fees as well. =AO This may be more theoretical than practical as one attorney could probably represent both Gary and Peggy in their defense of collateral attacks because their respective interests in any such collateral attacks will presumably coincide. But depending on what you are trying to achieve=20 with your comments, it may be worth noting. 13. Please note Gary's attorney's comment limiting the a=plicability of attorney's fees awards to disputes where distributions described in=the Settlement Agreement are unreasonably withheld. First, this limitatio= seems unnecessary where fees are only awarded to the prevailing party to begin with. Second, I am not sure how likely it is that Peggy will=20 have to sue Gary for anything other than unreasonable withholding of distributions; nor do I have any idea whether it is likely that Gary may try to sue Peggy for something covered by the general release provided for in the Settlement Agreement. If either of those events is possibl=, then why should Peggy agree to eliminate her right to fees? Also, to=20 the extent that the parties have a reasonable dispute concerning the amount of a distribution that should be made to Peggy, the existence of a prevailing party fees provision may make the parties more amenable to resolving that difference outside of court. Depending on relative wealth of Peggy and Gary, not sure who has more of a strategic advantage to a prevailing party fee provision without the additional limitation proposed by Gary's lawyer. please no=e The information contained in this communication is confidenti=l, may be attorney-client privileged, may constitute inside information= and is intended only for the use of the addressee. It is the property =f JEE Unauthorized use, disclosure or copying of this communicati=n or any part thereof is strictly prohibited and may be unlawful. If yo= have received this communication in error, please notify us immediatel= by return e-mail or by e-mail to jeevacation@gmail.com <mailto:jeevacation@gmail.c=m> , and destroy this commun=cation and all copies thereof, including all attachments. copyright -al= rights reserved 2 EFTA_R1_01651180 EFTA02516300