Forwarded =essage From: Max Kohlenberg < Date: Sat, Jul 7, 2018 at 4:43 AM Subject: Marital Trusts To: Noam Chomsky < <mailtol Cc: Richard Kahn < <mailto Noam —<=u> </a <mailto >>> > > > > Thank you for your reply. As you indicate that you are not being represented by counsel I will=reply directly to you, with a copy to Rich (as you suggest). Please consid=r: </=> 1. As a starting point, let me note that I t=ink you and Rich may have misunderstood (at least initially) the terms of =he settlement that Harry proposed through his attorney. Rich and I discussed this in a call about 10 days ago and I'm hopi=g that misunderstanding has been cleared up, but as I'm not a part= to your exchanges (and Rich's exchanges) with Harry's att=rney I can't be sure. I'm also not certain whether t=e terms of the proposed settlement have changed. All I can say for sure is that=characterizing the offer as one in which distributions to you cannot excee= $100K per year is not consistent with my understanding of what has been orfered. The reason why the proposal is too outrageous=to discuss has nothing to do with the technicalities of the handout that H=rry is graciously offering. I'll review the background, once again. As I've discussed before, the Marital Tru=t was established in Carol's name for tax purposes. The obvious =ntention, clearly understood by Carol and me, and of course Eric Menouya, was that it would be available to the survivor -- Carol we assumed -- and =hen what remains would go to the beneficiaries. The idea that we int=nded that Carol would control "her" funds and I would control &q=ot;mine" is too ludicrous to discuss, though I understand the legalistic conjuring that can be adduced to reach this conclusion. As you note, I was not working with you at the =ime you and Carol drew up your wills and trusts, but what you describe is not consistent with Eric's notes (which I have), nor w=th the facts as I understand them. You are right that tax savings we=e a major driver to the planning (and the plan did in fact result in substantial savings of both estate and income =axes) but it was not drafted with the expectation that Carol would survive=you. The question of who would be the survivor is irrele=ant. Carol and I assumed that she would be the survivor, but there w=s no reason to tell anyone, and it has no bearing at all on the fact that our intention was that the principal would be available to t=e survivor, then going to the children The decision to fund Carol's trust with both financial=assets and your Cape and Lexington homes was made when Carol was already i=l and (as far as the notes indicate) with the expectation that she would predecease you. This is quite surprising, and I would like som= clarification. Most important, I don't see how any significant =ecisions could have been made during those years, who could have made them= or why it was done. Obviously Carol could not have done so. She had to undergo massive brain radiation as soon=as the biopsy was taken, and serious cognitive and physical decline was im=ediate. Nor could I have been involved. I very much wanted to =eep her at home, rather than the only alternative -- a nursing home. I managed to do so for two years, until the end, =ut it required 24- 6 EFTA_R1_01791725 EFTA02602939

hour care, and I was in no position to think about such =atters. If I had been informed -- I don't recall anything of the=sort -- I couldn't have paid any attention or granted truly informed consent. So I would like to learn more about =hese decisions. Secondly, I don't understand them. H=w could the Cape and Lexington homes fund the Trust? Did the funds f=om selling the Lexington house go to the Trust? How was it funded be=ore. Would appreciate clarification on this. Of course we knew by then that she would prede=ease me. It was a medical miracle that she was able to survive that =ong, on experimental drugs, as a last resort. The records that I have seen do not indicate what your expectations (or Carol's) were as to =ow the Marital Trusts were to be made available to you after Carol was gon= — for that the independent trustee of the trusts (whether me or m= successor) has to rely on the terms of the trusts themselves, the information that's given by the trust beneficiarie=, and the law surrounding such trusts. I'd be interested, of course, in knowing abou= the records you have seen, but it would hardly be surprising if there is =o explicit record of what is obvious simply to common sense. We were a married couple who cared for each other and for our children, pu=ting a Trust in Carol's name for tax purposes. What sort of luna=y would it to set up a Trust for one of us to have access to but not the o=her? So of course you are unlikely to find notes about it. If Harry forces this to litigation, all of this will=have to come up, either in court or in public in some other manner.=/b> When I appointed Harry to replace me as trust=e, I took for granted that he would handle the trust as I had. His b=havior since, and this latest proposal, make it very clear how wrong that assumption was. This proposal calls for him to be in =omplete charge, which means, as he has shown, that I can only plead for so=e funds by accepting conditions that he knows I will not accept. You=recall, I presume, that this was true even when I faced an enormous tax bill because my IRA was being depleted for th= benefit of the family. To refresh your memory, let me repeat again w=at was happening with my IRA until I learned about it. There is a ma=datory withdrawal. Half was being distributed to family. The other half was being used for taxes and management fees for the entire=estate. In order to pay Alex's medical expenses, and to pay $50,=00 a year for rent and upkeep on the house in Wellfleet that we had given =o the children and that I was barely using, I had to withdraw extra funds from the IRA, with the onerous tax burden. The same when I withdrew something to live on. Under these cir=umstances, Harry refused to release funds from the Trust for tax relief wi=hout onerous and humiliating conditions that he knew I would not accept. Easy to predict what might happen under =ess extreme conditions. It was not until 2017 that I was able to ove=come the accumulated burden of these actions. In the previous paragraph you offer to "refresh my mem=ry" and in the prior paragraph you say "You recall, I pres=me ". Without going into detail, I have to note th=t my recollection of the events you describe is not consistent with yours (though it may not be ent=rely consistent with Harry's either — I am not sure). In my case it is not recollections. When I =egan to understand what was happening, I looked into the matter, and have =he documents at hand, including the mail interchanges about Harry's refusal. The rest is straightforward and unambiguous doc=ments. Since my own recollections may be the subject of testimo=y in the legal proceeding that Harry has initiated, or in one that you may=commence, I think it better that I not recite my own recollections here. Note that Harry's exhibit B, beginning wi=h section 9, is utterly false, and consciously so. All of the above has be=n explained to him over and over. It is not only consciously false, but is framed as a vicious and ugly attack on Valeria, implicitly a=cusing her of responsibility for the escalation of expenses which, as Harr= knows, was caused by the actions just described once again. c=span> 7 EFTA_R1_01791726 EFTA02602940

For such reasons, Harry's proposal is, as=l said, too outrageous to discuss. 2. As you know, Harry's attorney has=commenced a legal action that is intended to facilitate my resignation and=the appointment of a successor trustee to take my place. Since you've wanted me removed for some time and since I've said.(from the first time you and I met) that I only wanted to serve as trustee=if all the family members wanted me to serve, I'm looking forward =o resigning as soon as the court determines how I am to do so and how my successor is to be selected. =/u> 3. Given that my replacement is impending, i= might be worth waiting until my successor is in place before responding t= my requests for financial disclosure, as it's possible that my successor won't share my views as to what the trustee of t=e trusts needs to know before making decisions about distributions. =ikewise, if my successor will be identified soon it might make sense for m= to hold off on any distributions and leave it to the new trustee to work with you on figuring all of this out. =n this regard I'm kind of a "lame duck" trustee, w=uldn't you say? 4. To the extent that you want to push forwa=d while I remain the trustee, let me again state the basis for financial d=sclosure by you. It is that, as trustee, I owe a duty to you and I owe a duty to your children (as the remainder beneficiaries o= the trusts). For the present my primary duty is to you and it is to=distribute to you all income earned by the trusts, net of expenses,=u> Until=l asked about the matter recently, I am aware of no income distributed to me earned from the trusts. I cannot be sure, because I have no re=ord of having received any accounting of what is happening to the trusts, =ncluding distributions to others (or as required, to me►. Could you =hen please send me the records on these matters since 2009, when I appointed Harry to replace me as trustee.=/u> I provided reports on income, expenses =nd distributions to Deborah Pechet Quinan last October and I copied those reports to Richard (and updated them) in the last 60 days. I think i= might be easiest if Richard forwarded those reports to you, but if he can=E2 t for some reason then I will do so when I am back in my office.c/=pan> I would like to know more =bout this. Richard Kahn did forward reports to me, but all that I see is from the last few years, after I requested information. I don't =ave any records for the years since 2009, when I appointed Harry trustee, =either about the income that was supposed to be paid to me or about distri=utions from the Trust or any accounting of those years. So could you send them to both of=us, along with documentation about any distributions that were made. =In particular, I would like to know the reason why there is virtually no income from the trust •• whether it was paid to me from 2009 or not. And about the instructions for any distributions that may have been mad= from the Trust. and to distribute to you =or pay on your behalf) additional monies as reasonably needed to the extent that your income from other sources is not sufficient to s=pport your reasonable expenses. 8 EFTA_R1_01791727 EFTA02602941

Notwithstanding your stat=ment that "As for the claim about concern for my later years, that has been thoroughly r=futed" it has not been refuted in th= context of my trusteeship and it remains my duty to consider distribution= in light of the possibility that you will have a reasonable need for distributions from the trust for many more year=, and perhaps in increasing amounts, depending on your circumstances in th= future. I didn't respond be=ore but perhaps I should have. I will be 90 years old in a few month=. I'm not going to live forever. You know how much is in t=e Trust. You also know my spending habits. Harry would not have millions of dollars if I hadn't been working all my life and =aving money for him and his sisters. Despite the ugly implications a=out Valeria in Harry's letter, nothing material changed after our marr=age beyond what I described and can readily document, with one exception. In Lexington, I was living rent-free, =he mortgage having been paid years earlier. Valeria and I decided that tak=ng care of a big house with steps everywhere and everything else that owni=g a house in Lexington entails -- snow removal, etc., and a difficult drive to work through New England winter we=ther -- made no sense at my age, and that we should move to an apart=ent close to work with no steps or other problems. Not your business, but =ne thing that shocked me about Harry's letter was his complaint that I=moved from a house to a "new home" -- insinuation obvious -- in =act an apartment with no winter driving to my office and convenient for someone my age. 5. As for the specifics of disclosure, what = need to consider is (a) what your income was in 2017, since that was the =asis for the tax payments you seek to have reimbursed, (b) what your income is likely to be this year and going forward, (c) what=your expenses were in 2017 and are likely to be in 2018, and (d) whether a=y of your income (or other resources) are being used for purposes that the=trust cannot support (such as gifts to third parties). So far, Rich has provided me with some rough=information about your 2017 expenses. There are some gaps in that in=ormation, but nothing that can't be cleared up pretty easily (I th=nk). Rich has also assured me that you have not made any gifts that have diminished your resources and I assume you would confi=m that to me. What I don't have at this point is enough information about your in=ome, so that I can consider what the gap is between your expenses and your=income, which is the gap the trusts might help to close up. With res=ect to your income in 2017, all I can see is that your income tax obligations seem to be much higher than they were pre=iously. I'm assuming that reflects a jump in income from (i)=the profit made on the sale of the condominium, and (ii) large withdrawals=from your IRA. If you want to provide me with more information (bearing in mind what I noted in item #3, above) then inf=rmation about your 2017 income and what your income is likely to be this y=ar is what I most need. There is a very simple reason for the income =ax obligations. The depletion of the IRA that I reviewed again above=imposed a huge tax burden, which we were still attempting to deal with in 2017. After Harry's refusal to release some fund= from the trust to pay the exorbitant taxes resulting from what was happen=ng, I of course had to withdraw funds from the IRA to pay taxes on the who=e estate, incurring a new exorbitant tax burden. Despite some small relief later from the trust after I had r=peatedly pointed this out, it carried over through the 2017 tax bill. So for that reason, taxes were extremely high. That curious episo=e is at last finally over, leaving many questions unresolved about what was happening while I was paying little attention, r=lying on advisers to ensure that matters were proceeding appropriately I hope this is helpful an= will wait to hear more from you and/or Rich. </=> Max<=p> </=> 9 EFTA_R1_01791728 EFTA02602942

</=> A. Max Kohlenberg<=> Howland Evangelista Kohle=berg Burnett, LLP One Financial Plaza =80 Suite 1600 Providence, Rhode Island =2903 Direct: Main: <=span> Fax: c/=pan> <mailto www.hekblaw.com <http://www.hek=law.com/> </=> </=> > </=> This email and any attachrents thereto are intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. =f you are not the intended recipient of this email, you are hereby notifies that any dissemination, distribution or copying of this email, and any at=achments thereto, is strictly prohibited. If you have received this email in error, please immediately notify me by =eturn email and permanently delete the original and any copy of this messa=e or attachment. Thank you. </a < = > </=> From: Noam Cho=sky [mailto <mailto > ] Sent: Friday, July 06, 2018 8:53 PM To: Max Kohlenberg Subject: Re: Marital Trust I am not represented=on this issue, so you can send the information to me directly, copying Ric=ard Kahn. Noam 10 EFTA_R1_01791729 EFTA02602943

On Fri, Jul 6, 2018 at 4:24 AM, Max Kohlenberg «= href="mailto target="_blank" > wrote: Noam —<=u> </=> Thanks for your message a=d your inquiry. I would like to reply in some detail, but before I d= so please tell me whether you are now represented by legal counsel. =f you are then I believe I'm obliged to copy your counsel on our e=changes. I would also plan on copying Rich Kahn, since my last commu=ications about distributions to you from the trusts have been with him. </=> Please also bear in mind =hat since (according to Rich) you are preparing to bring a legal action against me, I have been in contact with my firm's malpractice insu=ance carrier. As my exchanges with you may also need to be reviewed =ith our carrier that may delay (and/or limit) my responses.<=> </=> Max<=p> </=> </=> A. Max Kohlenberga> Howland Evangelista Kohle=berg Burnett, LLP One Financial Plaza =80 Suite 1600 Providence, Rhode Island =2903 Direct: Main: <=span> Fax: c/=pan> <mailto www.hekblaw.com <http://www.hek=law.com/> </=> </=> This email and any attach=ents thereto are intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. =f you are not the intended recipient of this email, you are 11 EFTA_R1_01791730 EFTA02602944