OF
JACK KENT COOKE
I, JACK KENT COOKE, residing in Middleburg, in the Commonwealth of Virginia, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all other and former Wills and Codicils by me at any time heretofore made.
FIRST: I direct that the expenses of my funeral and of the administration of my estate shall be paid as soon after my decease as is practicable and convenient.
SECOND: Except as herein specifically provided in Article "FIFTH" hereof as to JACQUELINE KENT COOKE, the terms child, children, son, souls, issue and lawful child, lawful children and lawful issue ("legitimate descendants") as used in this my Last Will and Testament shall include only my sons, JOHN KENT COOKE and RALPH KENT COOKE, and only the issue of my said sons. I herewith specifically provide that no child born or adopted by me after the execution of this my Last Will and Testament shall share in my estate and no such afterborn, after-adopted or pretermitted child or the issue of such afterborn or after-adopted or pretermitted child shall in any way be considered a beneficiary under this my Last Will and Testament or by operation of law whether under ¤64.1-71 of the Code of Virginia or under the statutes of any other jurisdiction, or any successor statute of similar import in any jurisdiction. Such terms are intended to include only an individual having one of the following relationships:
A. An individual who is the natural descendant in the first degree of a female shall be regarded as her legitimate descendant.
B. An individual who is the natural descendant in the first degree of a male shall be regarded as his legitimate descendant only if such individual was born of parents who, prior or subsequent to such individual's birth, have entered into a civil or religious marriage with each other, in the manner authorized by the law of the jurisdiction where such marriage was entered into , notwithstanding that such marriage was void or voidable, or has been, or shall be, annulled or otherwise judicially declared void.
C. An individual who is adopted pursuant to a final order, decree or judgment of a court of competent jurisdiction, shall be regarded as the legitimate descendant of the adopting parent, but only if such order, decree or judgment has become final prior to such individual's attaining the age of sixteen. No other adopted individual shall be regarded as the legitimate descendant of the adopting parent. It is my intent to exclude any children or issue who are adopted out of the family prior to my death, except those children or issue who are adopted out of my family by a stepparent.
THIRD: A. I give and bequeath the following items of tangible personal property which I may own at the time of my death to my son, JOHN KENT COOKE,, if he shall survive me:
l. All of my clothing and accessories:
2. My Patek Phillipe watch;
3. All of my items of sterling silver;
4. Any one of my automobiles, other than my 1962 Bentley Continental, as my said son, in his sole and absolute discretion, shall choose; and
5. Such of my books, silverplate, glassware, antiques, any other of my jewelry, personal effects and works of art, other than the works of art specifically bequeathed to my son, RALPH KENT COOKE, Which my said son, JOHN KENT COOKE, shall, in his sole and absolute discretion, choose to own.
B. I give and bequeath the following items of tangible personal property, which I may own at the time of my death to my son, RALPH KENT COOKE, if he shall survive me:
1. My 1962 Bentley continental automobile; and
2. My Pierre Bonnard artwork entitled "Les Enfants dans le Jardin" and my Mathieu artwork.
C. I give and bequeath all of my furniture, furnishings and household effects located in my various residences to much of my sons, JOHN KENT COOKE and RALPH KENT COOKE, who shall survive me to be divided between them as they shall agree in as nearly equal shares as possible, or all of much furniture, furnishings and household effects to the survivor of my said sons who shall survive me. If my said sons are unable to agree as to the distribution of such items of furniture, furnishings and household effects between themselves within sixty (60) days following admission of this my Last Will and Testament to probate by a court of competent jurisdiction, the said items shall be distributed between them in such manner, whether equally or not, as my Executors (other than my said sons) shall determine, any much determination to be final and binding upon my said sons.
FOURTH: Pursuant to the provisions of the Prenuptial Agreement entered into between SUZANNE ELIZABETH MARTIN and myself on the 24th day of July, 1987, and a proceeding for divorce having been instituted by me, I make no provision for SUZANNE ELIZABETH MARTIN, as I do not wish her to share in any of the assets in my estate and I specifically forbid any disposition to her from my estate, or otherwise, by my Executor(A) and/or my Trustee(R) because of her misconduct and behavior which were calculated to harm me.
FIFTH. If a court of competent jurisdiction shall, prior to my death, determine that I am the father of JACQUELINE KENT COOKE, I give and bequeath the sum of One Million ($1,000,000) Dollars to my Trustees, hereinafter named, in trust, nevertheless, to hold, manage, invest and reinvest the principal thereof, and to collect the rents, income, interest and dividends therefrom and after deducting any and all lawful and proper charges, commissions and expenses, to pay or apply the net income and principal as follows:
A. So long as JACQUELINE KENT COOKE is under the age of thirty (30) years, to pay to or apply for the use and benefit of JACQUELINE KENT COOKE go much of the net income thereof as my Trustees, in their sole and absolute discretion, after due regard to any and all other property, funds and resources (both income and principal) which may be available to or for the use and benefit of JACQUELINE KENT COOKE, may deem necessary or proper for her education, health, maintenance and support and to accumulate any balance of said net income and add the same to the principal Or this Trust at the end of each trust year; provided, however, that as long as JACQUELINE KENT COOKE is under the age of twenty-one (21) years, my Trustees shall distribute not more than Twenty-Five Thousand ($25,000) Dollars of income annually (or a pro-rata amount for any portion of a twelve month period calculated on a monthly basis) increased by the cost of living adjustment (COLA) provided in Article "FOURTEENTH" of this my last Will and Testament (hereinafter sometimes referred to as the "Limitation Amount"), any amount distributed prior to JACQUELINE KENT COOKE attaining the age of twenty-one (21) years is to be used primarily for the education of JACQUELINE KENT COOKE. It is further provided, however, that after JACQUELINE KENT COOKE attains the age of twenty-one (21) years, and as long as JACQUELINE KENT COOKE is under the age of thirty (30) years, my Trustees shall distribute not more than Fifty Thousand ($50,000) Dollar" of income annually (or a pro-rata amount for any potion of a twelve month period calculated on a monthly basis) increased by the COLA as provided in Article "FOURTEENTH" of this my Last Will and Testament (hereinafter also sometimes referred to as the "Limitation Amount"). Any amount distributed subsequent to JACQUELINE KENT COOKE attaining the age of twenty-one (21) years and prior to her attaining the age of thirty (30) years is to be used for the education, health, maintenance and support of JACQUELINE KENT COOKE.
B. After JACQUELINE KENT COOKE shall attain the age of thirty (30) years and thereafter during the continuance of this Trust for the benefit of JACQUELINE KENT COOKE, my Trustees shall pay the entire net income of the Trust or apply it for the use and benefit of JACQUELINE KENT COOKE.
C. Upon the death of JACQUELINE KENT COOKE, my Trustee shall pay over and distribute the principal of this Trust as then constituted, together with any accrued or undistributed income thereof, to the JACK KENT COOKE FOUNDATION (described in Article "TWELFTH" hereof and hereinafter sometimes referred to as the "FOUNDATION".
SIXTH: If my former wife, JEANNE MAXWELL COOKE, shall survive me, and shall not have remarried prior to the time of my death, I give and bequeath the sun of Three Hundred Thousand (S300, 000) Dollars to my Trustees, herein after named, in trust, nevertheless to hold, manage, invest and reinvest the principal thereof, and to collect the rents, income, interest and dividends therefrom and after deducting any and all lawful and proper charges, commission and expenses, to dispose of the net income and principal thereof as follows:
A. My Trustees shall pay over and distribute to or for the use and benefit of my former wife, JEANNE MAXWELL COOKE, the sum of Thirty-Five Thousand ($35,000) Dollars annually (or a pro rata amount for any portion of a twelve month period calculated on a monthly basis") increased by the COLA as provided in Article "FOURTEENTH" of this: my Last Will and Testament until the first to occur of my said former wife's death or her remarriage. Such sum (hereinafter sometimes referred to as the "Annual Distribution Amount"), shall first be applied by my Trustees to pay the expenses of maintenance of my former wife's residence at 59 Country Club Lane, Las Vegas, Nevada including, but not limited to, the payment of fire and liability insurance premiums, real estate taxes, assessments, water rents, gas, electricity, telephone and other utilities, and ordinary and extraordinary repairs, and the balance, if any, shall be paid over and distributed to my said former wife. If each residence is "old or otherwise disposed of, such sums shall first be applied to the above indicated expense" (but not the purchase price, financing charges or mortgage payments) of any replacement principal residence of my said former wife.
B. The Annual Distribution Amount shall be paid from the net income of the Trust and, to the extent net income is not sufficient, from the principal of the Trust. Any net income of this Trust not paid to or for the benefit of my said former wife pursuant to Paragraph "A" of this Article "SIXTH" shall be accumulated and added to the principal of this Trust at the end of each trust year.
C. In addition to the above, out of the principal of this Trust, my Trustees shall purchase an automobile for my said former wife, JEANNE MAXWELL COOKE, every five (5) years until the first to occur of her death or remarriage. Said automobile shall be of similar quality to the highest quality automobile my said former wife shall be using or own at the time of my death.
D. Upon the death of my former wife, JEANNE MAXWELL COOKE, or upon my said former wife's remarriage, whichever shall first occur, my Trustees shall pay over and distribute the principal of this Trust as then constituted, together with any accrued or undistributed income thereof not otherwise disposed of, to the FOUNDATION.
SEVENTH: A. Recognizing that my brother, HAROLD COOKE, has substantial assets of his own, I give and bequeath the sun of Two Hundred Fifty Thousand (S250,000) Dollars to my said brother, if he shall survive me, as a token of my esteem and love for him.
B. I give and bequeath the following sums to the following persons who shall survive me;
1. One Hundred Thousand ($100,000) Dollars to my brother, DONALD RALPH COOKE;
2. One Hundred Thousand ($100,000) Dollars to my sister, THELMA MARION FRANKS:
3. One Hundred Thousand ($100,000) Dollars to my nephew, DONALD ROBERT COOKE;
4. One Hundred Thousand ($100,000) Dollars to my niece, NANCY JEANNE FRANKS;
5. One Hundred Thousand ($100,000) Dollars to my nephew, ROBERT GORDON FRANKS;
6. Two Hundred Fifty Thousand ($250,000) Dollars to JAMES LACHER
7. Fifty Thousand ($50,000) Dollars to WANDA WISER; and
8. Twenty-Five Thousand (s25.000) Dollars to MORRIE SIEGEL.
C. I give and bequeath the following sums to the following of my employees who shall survive me and who shall at the time of my death be employed by me or by Jack Kent Cooke, Inc. or by any related or successor entity:
l Ten Thousand ($10,000) Dollars to MILDRED KROSSMAN;
2 Five Thousand ($5,000) Dollars to JOSIE DAVID;
3. Fifteen Thousand ($15,000) Dollars to DEBBY RAMEY;
4. Ten Thousand ($10,000) Dollars to AUTUMN DONALD;
5. Ten Thousand ($10,000) Dollars to HARRY TURNER:
6. Ten Thousand ($10,000) Dollars to ANTHONY LITTEN;
7. Twenty-Five Thousand ($25,000) Dollars to ROBERT N. EISMAN: and
8. Twenty-Five Thousand ($25,000) Dollars to STUART HANEY.
EIGHTH: If either or both of my brother, DONALD RALPH COOKE, and my brother's wife, DOROTHY COOKE, shall survive me, I give and bequeath the sum of One Million ($1,000,000) Dollars to my Trustees, hereinafter named, in trust, nevertheless, to hold, manage, invest and reinvest the principal thereof, and to collect the rent, income, interest and dividends therefrom and after deducting any and all lawful and proper charges, commissions and expenses, to dispose of the net income and principal thereof as follows:
A. My Trustees shall pay over and distribute jointly to my brother, DONALD RALPH COOKE, and his wife, DOROTHY COOKE, (or if only one of them shall be surviving, the entire amount to the survivor of them who shall be surviving), the sum of Sixty Thousand ($60,000) Dollars annually (or a pro-rata amount for any portion of a twelve month period calculated on a monthly basis) as increased by the COLA, as provided in Article "FOURTEENTH" of this my Last Will and Testament. Such sum shall be reduced by the total amount of wages, salary and actual net business income (hereinafter sometimes referred to as the "Earned Income") of my said brother and his said wife, or the survivor of them, during the calendar year. (The annual amount distributed to my said brother and his said wife, or the survivor of them who shall be surviving, is hereinafter sometimes referred to as the "Annual Distribution Amount".)
B. The Annual Distribution Amount shall be paid from the net income of the Trust and, to the extent net income is not sufficient, from the principal of the Trust, in quarterly installments or such more frequent installments as my Trustees, in their sole and absolute discretion, may determine. Any net income of this Trust not paid to or for the benefit of my brother, DONALD RALPH COOKE, and/or his wife, DOROTHY COOKE, shall be accumulated and added to the principal of this Trust at the end of each trust year.
C. My Trustees shall determine Earned Income from the personal income tax returns of my said brother and his said wife, and my Trustees are hereby authorized to rely on the amounts as reported thereon.
D. Upon the death of the survivor of my said brother and his said wife, my Trustees shall pay over and distribute the principal of this Trust as then constituted, together with any accrued or undistributed income thereof not otherwise disposed of, to the FOUNDATION.
NINTH: If either or both of my sister, THELMA MARION FRANKS, and my sister's husband, GORDON FRANKS, shall survive me, I give and bequeath the sum of One Million ($1,000,000) Dollars to my Trustees, hereinafter named, in trust, nevertheless, to hold, manage, invest and reinvest the principal thereof, and to collect the rents, income, interest and dividends therefrom and after deducting any and all lawful and proper charges, commissions and expenses to dispose of the net income and principal thereof as follows:
A. My Trustees shall pay over and distribute jointly to my sister, THELMA MARION FRANKS, and her husband, GORDON FRANKS, (or if only one of them shall be surviving, the entire amount to the survivor of them who shall be surviving), the sum of Sixty Thousand ($60,000) Dollars annually (or a pro-rata amount for any portion of a twelve month period calculated on a monthly basis) as increased by the COLA as provided in Article "FOURTEENTH" of this my Last Will and Testament. Such sum shall be reduced by the Earned Income of my said sister and her said husband, or the survivor of them who, during the calendar year. (The annual amount distributed to my said sister and her said husband or the survivor of them who shall be surviving is hereinafter sometimes referred to as the "Annual Distribution Amount".)
B. The Annual Distribution Amount shall be paid from the net income of the Trust and, to the extent net income is not sufficient from the principal of the Trust in quarterly installments or such more frequent installments as my Trustees, in their sole and absolute discretion, may determine. Any net income of this trust not paid to or for the benefit of my sister, THELMA MARION FRANKS , and/or her husband, GORDON FRANKS, shall be accumulated and added to the principal of this Trust at the end of each trust year.
C. My Trustees shall determine Earned Income from the personal income tax returns of my said sister and her said husband, and my Trustees are hereby authorized to rely on the amounts as reported thereon.
D. Upon the death of the survivor of my said sister and her said husband, my Trustees shall pay over and distribute the principal of this Trust as then constitute, together with any accrued or undistributed income thereof not otherwise disposed of, to the FOUNDATION.
TENTH: If any of my son, RALPH KENT COOKE, his lawful children or any of my said son's other lawful issue shall survive me or if my said son's wife, ANITA COOKE, shall survive me and shall be married to my said son at the time of my death or if my said son shall predecease me and ANITA COOKE shall have been married to my said son at the time of my said son's death, and she and my son shall not be divorced, and she shall not have remarried at the time of my death, I give and bequeath the sum of Fifty Million ($50,000,000) Dollars, to my Trustees, hereinafter named, in trust, nevertheless, to hold, manage, invest and reinvest the principal thereof, and to collect the rents, income, interest and dividends therefrom and after deducting any and all lawful and proper charges, commissions and expenses, to dispose of the net income and principal thereof as follows:
A. My Trustees may, at any time or from time to time, pay or apply the net income of this Trust to or for the use and benefit of each member or members of the class of persons consisting of my son, RALPH KENT COOKE, his lawful children and any other lawful issue of my said son, from time to time living, and ANITA COOKE, the wife of my son, RALPH KENT COOKE, if she shall be married to my said son at time of my death or shall have been married to my said son at the time of his death if my said son shall predecease me, and she and my said son shall not be divorced, and until such time as she shall remarry, in such amounts and proportions, whether equal or unequal, to the exclusion of any member of such class, and whether the whole thereof or a lesser amount, as my Trustee-, in their sole and absolute discretion, shall from time to time determine, and to accumulate the balance or said net income, if any, and to add such accumulated income to the principal of the Trust at the end of each trust year.
B. My Trustees, in addition to income, may at any time or from time to time, pay or apply the principal of this Trust to or for the use and benefit of such member or members of the class of persons consisting of my son, RALPH KENT COOKE, his lawful children and any other lawful issue of my said son, from time to time living, and ANITA COOKE, the wife of my son, RALPH KENT COOKE, if she shall be married to my said son at the time of my death or shall have been married to my said son at the time of his death if my said son shall predecease me, and she and my said son shall not be divorced, and until such time as she shall remarry, in such amounts and proportions, whether equal or unequal, to the exclusion of any member of such class, and whether the whole thereof or a lesser amount, as my Trustees, in their sole and absolute discretion, shall from time to time deem necessary or proper for each of such member's education, health, support and maintenance.
C. This Trust shall terminate on the first to occur of "(a)" or "(b)" following: (a) the expiration of twenty-one (21) years after the death of the last surviving of my son, RALPH KENT COOKE, his lawful children and any other lawful issue of my said son and my said son's wife, ANITA COOKE, in being at the date of my death, or (b) the last to occur of the death of the last surviving of my said son, his lawful children and my said son's other lawful issue and the death of my said son's wife, ANITA COOKE, or the dissolution of the marriage of my said son and ANITA COOKE, or the remarriage of my said son's wife, ANITA COOKE, if she shell have been married to my said son at the time of his death, and upon such termination, the. principal of this Trust, together with any accrued or undistributed income hereof not otherwise disposed of, shall be paid over and distributed in shares and sub-shares, per stirpes, to such of the lawful issue of my son, RALPH KENT COOKE, who shall then be surviving. If none of the lawful issue of my said son, RALPH KENT COOKE, shall then be surviving, the principal of this Trust, as then constituted, together with any accrued or undistributed income thereof not otherwise disposed of, shall be paid over and distributed to the FOUNDATION.
ELEVENTH: If any of my son, JOHN KENT COOKE, his lawful children or any of my said son's other lawful issue shall survive me, I give and bequeath the sum of Fifty Million ($50,000,000) Dollars, to my Trustees, hereinafter named, in trust, nevertheless, to hold, manage, invest and reinvest the principal thereof, and to collect the rents, income, interest and dividends therefrom and after deducting any and all lawful and proper charges, commissions and expenses, to pay or apply the net income and principal thereof as follows:
A. My Trustee may, at any time or from time to time, pay or apply the net income of this Trust to or for the use and benefit of such member or members of the class of persons consisting of my son, JOHN KENT COOKE, his lawful children and any other lawful issue of my said son, from time to time living, in such amounts and proportions, whether equal or unequal, to the exclusion of any member of such class, and whether the whole thereof or a lesser amount, as my Trustees, in their sole and absolute discretion, shall from time to time determine, and to accumulate the balance of said net income, if any, and to add such accumulated income to the principal of the Trust at the end of each trust year.
B. My Trustees, in addition to income, may at any time or from time to time, pay or apply the principal of this Trust to or for the use and benefit of such member or members of the class of persons consisting of my son, JOHN KENT COOKE, his lawful children and any other lawful issue of my said son, from time to time living, in such amounts and proportions, whether equal or unequal, to the exclusion of any member of such class, and whether the whole thereof or a lesser amount, as my Trustees, in their sole and absolute discretion, shall from time to time deem necessary or proper for each of such member's education, health, support and maintenance.
C. This Trust shall terminate on the first to occur of "(a)" or "(b)" following: (a) the expiration of twenty-one (21) years after the death of the last surviving of my son, JOHN KENT COOKE, his lawful children and any other lawful issue of my said son in being at the date of my death, or (b) the last to occur of the death of the last surviving of my said son, his lawful children and any other lawful issue of my said son, and upon such termination, the principal of this Trust, as then constituted together with any accrued or undistributed income thereof not otherwise disposed of, shall be paid over and distributed in shares and sub-shares, per stirpes, to such of the lawful issue of my son, JOHN KENT COOKE, who shall then be surviving. If none of the lawful issue of my said son, JOHN KENT COOKE, shall then be surviving, the principal of this Trust, as then constituted, together with any accrued or undistributed income thereof not otherwise disposed of, shall be paid over and distributed to the FOUNDATION.
TWELFTH: A. I give, devise and bequeath all of the rest, residue and remainder of my property and estate, real, personal and mixed, or whatsoever kind and nature and wheresoever situate, of which I shall die seized or possessed, or to which I may be in any wise entitled at the time of my decease (including any lapsed legacy), or which may be subject to my disposal by Will or over which I may have a general or special testamentary power of appointment (hereinafter referred to as my "Residuary Estate') to the JACK KENT COOKE FOUNDATION.
B. If at the time of my death, the JACK KENT COOKE FOUNDATION has not been organized or shall not be then in existence or if contributions or distributions to such FOUNDATION shall not qualify for the Federal Estate Tax charitable deduction under 2055 (a) of the Internal Revenue Code of 1986, as amended from time to time (hereinafter referred to as the "Code"), and/or the Federal Income Tax charitable deduction under 6170(c) of the code, my Executors or Trustees, as the case may be, shall make such contributions or distributions to a charitable corporation or foundation to be organized by my executors or my Trustees, an the case may be, in my memory for the purposes set forth in Paragraph "C" of this Article "FIFTEENTH". Any such charitable corporation or foundation shall be an organization described in 9170(c) and 2055(a)(2) of the Code and under applicable state tax laws of similar import and successor statutes of similar import as to qualify bequests to it as deductions for Federal Estate Tax and state estate or inheritance tax purposes. Such corporation or foundation shall be organized under the laws of a state selected by my Executors or my Trustees, as the case may be, in their sole and absolute discretion. To the extent permitted by law, I authorize my Executors and/or my Trustees, as the case may be, and other persons selected by them, in their sole and absolute discretion, to serve as members, directors and officers of each such corporation or foundation.
C. THE JACK KENT COOKE FOUNDATION shall be organized to award substantial scholarships to students pursuing a post-graduate degree who have shown unique overall excellence, both in academic endeavors and in extracurricular activities, during their undergraduate careers. The purpose of such Foundation will be to reward young men and women for unusual intelligence, application, deportment and character. In addition to awarding a scholarship to a student, the FOUNDATION shall also award a matching stipend to the undergraduate division of the college or university from which the student graduated in recognition of the training given the student (such grant shall be to the department from which the student graduated or to the specialty in which the student majored).
THIRTEENTH: In lieu of creating trusts (or any one or more of them) pursuant to Article "SIXTH", Article "EIGHTH" and/or Article "NINTH" hereof, my trustees, in their sole and absolute discretion, may purchase annuities which would pay the Annual. Distribution Amounts as provided pursuant to the provisions of such Articles. Such purchase shall be made from a life insurance or annuity company of good standing in the United States or elsewhere in the form of a non-assignable annuity contract, which shall contribute complete satisfaction of the distributions to be made pursuant to Article "SIXTH", Article "EIGHTH" and/or Article "NINTH", as the case may be.
FOURTEENTH: For purposes of the Trust(s) created pursuant to Articles "FIFTH", "SIXTH", "EIGHTH" and "NINTH", of this my Last Will and Testament the cost of living adjustment (hereinafter sometimes referred to as the "COLA") shall be calculated as follows:
A. The Consumer Price Index for the Washington, D.C. - Maryland - Virginia Area for all items of the Bureau of Labor Statistics of the United States Department of Labor (hereinafter sometimes referred to as the "Index" ) for the last day of the month of the date of my death shall hereinafter sometimes be called the "Base Index Number". The Index for the last day of the month prior to the first month of said Trust's fiscal or calendar year, as the case may be, shall hereinafter sometimes be referred to as the "Annual Index Number".
B. In calculating the Cost of Living Adjustment, if the Annual Index Number shall exceed the Base Index Number, the Limitation Amount or the Annual Distribution Amount, as the case may be, shall be increased (hereinbefore and hereinafter any such increase is referred to as the "Cost of Living Adjustment" or "COLA") by a fraction of such amount determined as follows: The denominator or such fraction shall be the Base Index Number and the numerator shall be the amount by which the Annual Index Number exceeds the Base Index Number. For example, if the Base Index Number shall be 100 and the Annual Index Number shall be 110, the Cost of Living Adjustment would be equal to 10% multiplied by the stated annual monetary limitation in such trust.
C. If, at the time required for the determination of the Base Index Number and/or Annual Index Number, the Index is no longer published or issued, my Trustees shall use such other index as is then generally recognized and accepted for similar determinations of the cost of living adjustment, any such determination to be final and binding upon the beneficiary or beneficiaries of each such trust.
FIFTEENTH: A. To the extent permitted by law, I direct my Executors and/or my Trustees, as the case may be, to use their best efforts to have my son, JOHN KENT COOKE, manage and operate PRO FOOTBALL INC. during his lifetime.
B. To the extent permitted by law, I direct my Executors and/or my Trustees, as the case may be, to use their best efforts to have my son, RALPH KENT COOKE , manage and operate ELMENDORF FARMS during his lifetime.
SIXTEENTH: A. I direct my Executors to pay all transfer, estate, inheritance, legacy, succession and like taxes, including any interest and penalties thereon, levied upon or assessed against my estate with respect to property passing hereunder or outside of my Will and which are required to be included in my taxable estate out of my Residuary Estate passing pursuant to Article "TWELFTH" or this my Last Will and Testament, as an expense of administration, without apportionment. No devisee, legatee or other recipient of property constituting part of my taxable estate shall be required to pay or contribute to the payment of such taxes.
B. Notwithstanding the above, if any generation-skipping transfer tax shall be payable at, after or with respect to my death, under Chapter 13 of the Code, or any similar state estate or inheritance tax provision, or any additional estate tax shall be imposed by either 2044 or 2032A(c) of the Code, or any similar state estate or inheritance tax provision, or any increase in the estate tax shall be imposed by 498lA(d) of the Code, or any similar state estate or inheritance tax provision, no part of any such tax, including any interest and penalties thereon, shall be paid from my testamentary estate, but such taxes shall be apportioned against and paid by the persons in possession of the property giving rise to such tax(es) or benefited thereby, or the trustee or distributee of the property with respect to which the tax(es) is imposed, as the case may be. I direct that the amount of such tax(es) under this Paragraph "B", together with any interest and penalties thereon, which shall be recovered with respect to this Paragraph "B" shall be the difference between the amount of tax(es) including interest and penalties thereon, actually payable and the amount thereof which would have been payable had such property not been included in the computation of such tax(es).
SEVENTEENTH: A. I hereby nominate, constitute and appoint my sons, JOHN KENT COOKE and RALPH KENT COOKE, and JAMES LACHER, WANDA WISER and WILLIAM A. SHEA to be Executors of this my Last Will and Testament and Trustees of any trust(s) created hereunder. If any of the Executors and/or Trustees, as the case may be, shall die or shall be or become unwilling or unable to qualify and/or act or continue to act as Executor and/or Trustee hereunder, as the case may be, hereby nominate, constitute and appoint HOWARD SOLOWAY to fill the first such vacancy, ARNOLD S. JACOBS to fill the second such vacancy, STUART HANEY to fill the third such vacancy and ROBERT N. EISMAN to fill the fourth such vacancy, as successor Executor(s) and/or Trustee(s), as the case may be, in such person's place and stead.
B. There shall always be at least three Executors and/or Trustees acting hereunder. Subject to the appointments in Paragraph "A" above, when a vacancy exists, the then acting Executors and/or Trustees, as the case may be, by majority action shall appoint any person or persons or bank or trust company duly authorized by law to act as executor and/or trustee, as the case may be, and as successors thereto, as he, she or they, in his, her or their sole and absolute discretion, may determine, to act as successor Co-Executor(s) and/or Co-Trustee(s), as the case may be, upon the death or resignation of Co-Executor(s) and/or CoTrustee(s) hereunder by a written instrument duly acknowledged by him, her or them, as the case may be, and delivered to such person or persons or bank or trust company.
C. If my estate is administered in the Commonwealth of Virginia, as long as 26-59 (or any similar statute or successor statute of similar import) of the code of Virginia provides that a non-resident can serve as an executor or trustee hereunder only if a co-executor or CoTrustee is a resident of said Commonwealth, at least one of the three Co-Executors and/or Co-Trustees hereunder or designated as a successor, as the case may be, shall be a resident of the Commonwealth of Virginia pursuant to such requirement.
D. Any provision hereof the contrary notwithstanding, at no time shall there be more than one bank or trust company acting as a Co-Executor and/or Co-Trustee with the individual Executors and/or Trustees hereunder.
E. I direct that no Trustee hereunder shall participate in the exercise of any discretion to determine the propriety or amount of payments of income or principal to himself or herself or to any person he or she is legally obligated to support, and the remaining Trustee (s) alone shall exercise that discretion.
F. I direct that no bond or undertaking shall be required of my Executors or Trustees, or their survivors or successors, in any court, place or jurisdiction for the faithful performance of their duties in such capacities, including, but not limited to, the payment on account of commissions.
EIGHTEENTH: In the event that any beneficiary hereunder and I shall die simultaneously or under such circumstances that it is difficult or impracticable to determine who survived the other, then I direct, for the purposes of this Will, that such beneficiary shall be deemed to have predeceased me.
NINETEENTH: A. Anything herein contained to the contrary notwithstanding, if pursuant to this Will, any part of my estate or any trust(s) created hereunder shall vest in absolute ownership in a person under the age of legal majority, I authorize and empower my Executors or Trustees, as the case may be, in their sole and absolute discretion, to hold the property so vested in such person in a separate fund for the benefit of such person and to invest and reinvest the same, collect the income therefrom and during the period until such person attains the age of legal majority, to apply as much of the net income and principal to the health, education, maintenance and support of the said person as my Executors or Trustees, without regard to any and all other property, funds and resources, which may be available to or for the benefit of such person, shall deem necessary, and to accumulate the balance of said income, if any, until said person shall attain the age of legal majority, at which time all accumulated income and unexpended principal shall be paid over to said person.
B. Anything herein contained to the contrary notwithstanding, if pursuant to this Will, any part of my estate or any trust(s) created hereunder shall vest in absolute ownership in a person under the age of legal majority (hereinafter referred to as the "Minor") my Executors or Trustees, as the case may be, in their sole and absolute discretion, may designate themselves, any one of them, or any other adult person as Custodian for the Minor under the provisions of the Uniform Gifts to Minors Act then in effect in the Commonwealth of Virginia (hereinafter referred to as the "Act"), and may distribute so much of such property which consists of "custodial property" as that term is described in said Act to such Custodian.
TWENTIETH: In addition to the powers conferred by law upon my Executors, Trustees and the Donees of a power during minority with respect to any and all property, real or personal, of which I am the owner at the time of my death, or which at any time shall constitute part of my estate or any trust created under this my Last Will and Testament, I hereby give and grant unto my said Executor, Trustees and the Donees of a power during minority the following additional powers:
A. To hold and retain, either permanently or temporarily, or for such period as to them may seem expedient, all or any part of any investment or property held by me, of whatever nature, notwithstanding that the same may not be of a character authorized by law, without liability for any lose, depreciation or decrease or value thereof, resulting by reason of the retention of such investment or property or for any error of Judgment or otherwise.
B. To sell at public or private sale for cash or upon credit (including the extension of credit for periods in excess of one year) with or without security, upon such terms as they may consider advisable, or otherwise dispose of any property, real or personal, of which I may die seized or possessed, or in which from time to time there may be an investment or reinvestment, including the giving or granting of options for periods in excess of six (6) months in connection therewith.
C. To invest and from time to time to reinvest in such common or preferred stocks, investment trust stocks, and in such bonds, securities and other property, real or personal, foreign or domestic, as in their discretion, they may deem advisable, whether or not such property is of the character or nature in which executors or trustees are authorized by law or any rule of court to invest trust funds.
D. To hold securities in their names as Executors or Trustees or in the name of a nominee or in such form as to pass by delivery.
E. To retain, to exchange for any other property, to divide, subdivide, partition, mortgage, improve, alter, remodel, repair and develop in any manner any real property and to lease any such property for such terms or terms, and upon such conditions and rentals, and in such manner, as in their sole and absolute discretion, they shall deem advisable, irrespective of whether the term of any such lease shall exceed the period permitted by law, the probable period of retention under this my Last Will and Testament or the term of any trust created hereunder, thereby specifically provide that my Executors and/or Trustees, as the case may be, are authorized to retain Far Acres.
F. To borrow money for any purpose connected with the protection, preservation or improvement of my estate or any trust created hereunder, and as security to mortgage or pledge any real or personal property forming a part of my estate or of any trust created hereunder.
G. To make, without the content of any legatee hereunder, any payment, distribution or division required by this my Last Will and Testament, or of any trust created hereunder, either in cash or in kind, or partly in cash and partly in kind, in proportions like to or different from that paid or transferred to anyone else, Such distribution may be effected without regard to the income tax basis of the property distributed to any legatee of my estate or any beneficiary of any trust created hereunder and without liability for any increase in the income taxes of any such legatee or beneficiary.
H. If, at the time of my death, I have any interest in any business whether incorporated or unincorporated, or shall be a member of any partnership, I hereby authorize my Executors and Trustees to continue my individual business and/or my interest in such partnership and/or corporation at the risk of my general assets or to sell, settle and/or discontinue my said business or my said interest therein, whether corporate or otherwise, or any of them, in whole or in part, at any time, when and upon such terms and conditions as in their judgment is for the best interest of my estate, or to exchange my said interest therein or assets thereof in whole or in part for bonds or shares of stock in any corporation which may take over or continue said business and/or partnership. I hereby specifically and fully authorize and direct that my said Executors and Trustees, in all and every necessary and useful manner and respect, cooperate with the survivor or survivors of any partnership or corporation of which I may be a member or shareholder, as the case may be, at the time of my death in continuing and carrying on the business and I specifically authorize and empower my Executors and Trustees to sell to my surviving partner or partners and/or the surviving stockholder or stockholders of any corporation in which I may be interested at the time of my death, regardless of who such person or persons may be, at any time, when and upon such terms and conditions as they, in their judgment, deem to be in the best interest of my estate, all or any part of my interest in such partnership and/or corporation and in the assets, business, property and profile therein. I authorize and empower my Executors and Trustees to become, or continue to be, an officer, director or employee of such partnership or corporation and to be paid reasonable compensation from such partnership or corporation for serving as such officer, director and/or employee, in addition to any compensation otherwise allowed by law.
I. To act as or to select other persons (including any beneficiary hereunder) to act as directors, officers or employees of any such business, the same to be compensated without regard to their being a fiduciary or beneficiary hereunder.
J. To remove all or any part of the property of my estate or any trust created hereunder from the jurisdiction which is the situs of my estate or such trust, and to take and keep such property outside such jurisdiction and in any other place or places within or outside the United States during the term of my estate or such trust or for any lesser period.
K. To pay all expenses, costs, fees and other charges incurred in connection with the preservation, protection and delivery of all tangible personal property owned by me at the time of my death, even though such tangible personal property is specifically bequeathed under this my Last Will and Testament.
L. To employ investment counsel, accountants, depositaries, custodians, brokers, attorneys and agents, irrespective or whether any person so employed shell be an Executor or Trustee hereunder, shall be a partner, a shareholder, or shall have an interest in my estate, any trust created hereunder or otherwise', or any asset hereof, and to compensate him, her or them out of the principal of the property held hereunder or under any trust created hereunder without charging the same against the commissions or compensation of such Executor or Trustee.
M. To exercise the following powers with respect to any property, partnership interests and/or stock which I may own at the time of my death, which powers shall be in addition to all the other powers herein conferred upon my Executors or Trustees or conferred upon my Executors or Trustees by law with respect to such property, partnership interests and/or stock:
1. To take advantage of 303 and/or 6166 of the Code, and any other provisions therein which provide relief for the estates of owners of property, partnership interests and/or stock in closely-held corporations in and to post any bond or other security and pay any interest required by 6166 at the expense of my Residuary Estate and to elect under 6324A of the Code to create a special lien for the deferred estate tax (including tax attributable to property not passing under this my Last Will and Testament) and to subject property belonging to my estate to such lien.
2. To retain any such property, partnership interests and/or stock even though such property, partnership interests and/or stock may form a substantially disproportionate part, or all, of my estate or of any trust created hereunder without risk of surcharge to my Executors or Trustees for so doing, as long as they act in good faith .
3. To purchase any additional such property, partnership interests and/or stock for my estate or for any trust created hereunder from any sources at such price or prices and at such times as my Executors or Trustees shall determine to be fair and reasonable.
4. To sell any such property, partnership interests and/or stock from my estate or from any trust created hereunder to any person, firm, trust or other entity at such price or prices and at such times as my Executors or Trustees shall determine to be fair and reasonable.
N. To execute and deliver in writing any and all instruments which my Executors or Trustees may deem advisable to carry out any of the foregoing powers. No party to any such instruments signed by my Executors or Trustees shall be obligated to inquire into the validity of such instrument.
TWENTY-FIRST: If my estate shall include stock of any corporation which, together with any other stock of the same or of a different corporation, is includible in my gross estate as finally determined for Federal Estate Tax purposes and which satisfies the requirements of 303 of the Code, I direct that any property received by my Executors or Trustees, as the case may be, from the corporation(s) in connection with a redemption of such stock shall not be used to satisfy the provision of any interest herein which is not reduced by the payment of Federal Estate Taxes, state tranfer, estate, inheritance, legacy, succession and like taxes including any interest or penalties thereon, and/or allowable funeral and administration expenses as provided in 303(b)(3) of the Code.
TWENTY-SECOND: As to any Generation Skipping Transfer Tax under Chapter 13 the Code ("GST"):
A. I give my Executors the power, exercisable without court approval, and binding on all beneficiaries hereunder, without further adjustment between or among them, to allocate any exemption from the GST created under 2631(a) of the Code, to any property with respect to which I am the Transferor, as defined in the Code, for the purposes of said tax, including any property transferred by me during my lifetime as to which I did not make such an allocation prior to my death, whether or not such property is included in my probate estate, and the power to exclude any such property from such allocation.
B. I authorize, but do not direct, my Executors or Trustees, as the case may be, to divide any trust created hereunder, at any time, into two or more separate trusts with the same dispositive provisions, in order to adjust between or among them the Inclusion Ratio, as defined in the Code, of each such trust for the purposes of the said GST.
C. If any provision under this my Last Will and Testament shall dispose of assets and such disposition would otherwise qualify for any GST exemption or as a GST "direct skip" except for the fact that such assets are to be held in trust for the beneficiary thereof or are to be held pursuant to the provisions of Article "NINETEENTH" of this my Last Will and Testament for the beneficiary thereof, I direct that such estate or whichever part thereof as is necessary to obtain the maximum GST exemption or GST "direct skip" treatment shall be paid over and distributed as if such disposition were outright and free of trust or as if the provisions of Article "NINETEENTH" hereof did not apply.
TWENTY-THIRD: If it becomes necessary to have ancillary administration of my estate in any jurisdiction where my Executors are unable or do not desire to qualify as ancillary legal representatives, I appoint as such ancillary legal representative(s) such individual or corporation as my Executors shall designate in writing. I direct that any balance of my property remaining after such ancillary administration be delivered, to the extent permitted by law, to my Executors for disposition in accordance with the terms of this Will. I direct that all of the powers and discretion granted to my Executors herein shall also apply to any such ancillary legal representative(s). I direct that such ancillary legal representative(s) shall serve without bond or undertaking.
TWENTY-FOURTH: All references herein to this Will shall be construed as referring to this Will and any Codicil or Codicils hereto which I may hereafter execute. Whenever necessary or appropriate, the use herein of any gender shall be deemed to include the other genders and the use herein of either the singular or the plural shall be deemed to include the other.
TWENTY-FIFTH: All references in this Will to the Code or the Internal Revenue Code are to the Internal Revenue Code of 1986, as heretofore and hereafter amended, and shall be deemed to refer to corresponding provisions of any subsequent Federal tax law.
IN WITNESS WHEREOF, I have hereunto set my hand to this my Last Will and Testament in the City of Middleburg and the State of Virginia this 20th day of October in the year one thousand nine hundred and eighty-eight.
Jack Kent Cooke [Signature]
Witnesses:
Linda Jane King [Signature]
Mary Louise Thorpe [Signature]
Jean L. O'Meara [Signature]
On this 20th day of October, 1988, the foregoing Will, consisting of thirty (30) typewritten pages, excluding this page, was subscribed, published and declared by the Testator herein named, JACK KENT COOKE, as and for his Last Will and Testament, in our presence of each other, thereupon subscribed our names thereto as attesting witnesses, we intending to certify hereby that the foregoing acts took place in fact, and in the manner set forth herein. Before executing his Will, said Testator stated that he had read the same and knows the contents thereof.
Linda Jane King [Signature] residing at [address deleted]
Mary Louise Thorpe [Signature] residing at [address deleted]
Jean L. O'Meara [Signature] residing at [address deleted]
