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advisers, and WTC. Mr. Sweeney had initially asked Ms. Lee to
begin drafting the documents in a November 14, 1997, memorandum
that set forth details regarding certain provisions to be
included. Regarding purpose, the memorandum stated:
You will recall that the purpose of the two
Delaware business trusts is to preserve and coordinate
Porter Schutt’s investment philosophy with respect to
those trusts over which he has either direction or
consent investment advice of which the Wilmington Trust
Company is trustee, as well as his own funded revocable
trust. Over the years, Porter Schutt has developed a
buy and hold philosophy which has been quite
successful, and he is anxious to have that philosophy
preserved for his family for the future.
In a January 6, 1998, telephone conversation, Mr. Howard
pointed out, along with several minor drafting errors, what he
considered to be a significant substantive problem with the
provision then included in the trust documents regarding
distributions. The initial drafts of the trust stated that net
cashflow would be distributed at such times and in such amounts
as determined by the trustee in his discretion. WTC wanted the
trusts to provide for distribution of net cashflow at least
annually. Mr. Sweeney thought that quarterly distributions could
accord with decedent’s original intent, and the documents were
revised to so provide, for further review by the participants.
By a letter dated January 9, 1998, WTC confirmed its
agreement with the form and content of the Schutt I and Schutt II
indentures, and work proceeded to prepare and finalize the
beneficiary consent documents. Like the trusts, the consents
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