Preview
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
YASEMIN TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Yasemin Tekiner 2011
Descendants Trust and derivatively as a
holder of equitable interests in a shareholder
or a member of the Company Defendants, Index No.: 657193/2020
Motion Sequence No. 37
Plaintiff,
-against- REPLY AFFIDAVIT OF
ATTORNEY GARY
BREMEN HOUSE INC., GERMAN NEWS TANNENBAUM REGARDING
COMPANY, INC., BERRIN TEKINER, GONCA CONSTRUCTION OF THE
TEKINER, and BILLUR AKIPEK, in her as ZEYNEP TEKINER 2011
capacity
a Trustee of The Yasemin Tekiner 2011 Descendants DESCENDANTS TRUST
Trust,
Defendants.
ZEYNEP TEKINER,
in her individual capacity, as a beneficiary
and a Trustee of The Zeynep Tekiner 2011
Descendants Trust and derivatively as a
holder of equitable interests in a shareholder
or a member of the Company Defendants,
Intervenor-Plaintiff,
-against-
BREMEN HOUSE INC., GERMAN NEWS
COMPANY, INC., BERRIN TEKINER, GONCA
TEKINER, and BILLUR AKIPEK, in her capacity as
a Trustee of The Zeynep Tekiner 2011 Descendants
Trust,
Defendants.
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COMMONWEALTH OF PENNSYLVANIA )
COUNTY OF MONTGOMERY ) .ss
GARY TANNENBAUM, being duly sworn, deposes and says:
Delaware.1
1. I am an attorney duly admitted to the Bar of the State of I submit this
Defendants'
affidavit in reply to the affidavit of Daniel Hayward, which was submitted on behalf.
2. As set forth herein, and with all due respect, the proposed construction of the Trust
Agreement advanced by Defendants and their expert, Mr. Hayward, is not logical, nor is it
supported by any legal authority.
L Background
3. As explained in my moving affidavit, Berrin Tekiner is the Grantor and Protector
of the Zeynep Trust, and Bryn Mawr Trust (f/k/a Christiana Trust) is the "Trustee", i.e., the
Independent Trustee. As the Protector, Berrin has the authority under Article EIGHTH to appoint
and of Trust.2
remove members the Trust Committee on the terms set forth in the Almost all of
the powers of the Trust are vested in the Trust Committee. The Trustee can only act (and must act)
upon the direction of the Trust Committee; however if there is no one serving on the Trust
Committee, then the Trustee can exercise the powers of the Trust Committee.
4. Once the Court removed Billur as a member of the Trust Committee of the Zeynep
Trust by its October 19, 2022 Trustee Removal Order (NYSCEF Doc. No. 800), Zeynep was left
as the sole member of the Trust Committee. As the sole member of the Trust Committee of the
Zeynep Tekiner 2011 Descendants Trust, and pursuant to both Delaware law and the plain
language of the Zeynep Trust, Zeynep Tekiner has the full to exercise all powers of the
authority
Trust Committee. The exceptions to this are because is a (i.e.a non-
only that, Zeynep beneficiary
1
My experience and credentials are set forth in my moving affidavit (NYSCEF Doc. No. 881).
2
Subject to the right of beneficiaries or others to request Court intervention.
2
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independent member of the Trustee Committee), Zeynep cannot (1) grant herself or her guests or
caretakers the right to occupy properties owned by the Trust or (2) vote on distributions to
beneficiaries - as set forth below and as is the case the of the Trustee
unless, here, only member(s)
Committee are beneficiaries (i.e. interested members), in which case, as here, she can give
distributions to beneficiaries only for her or their health, education, maintenance or support.
(B).3
(NYSCEF Doc. No. 669, Articles FIFTEENTH (B) (13) and TWENTY-FIRST (A) and
5. Even though Berrin has purported to appoint new members of the Trust Committee,
the directions that Zeynep gave while she was the sole member of the Trust Committee are valid
and binding, and remain extant.
IL The Rules Of Trust Construction
6. As set forth in my moving affidavit, and as agreed by Defendants and Mr. Hayward,
Delaware courts construe trusts in the same way as contracts are construed. In construing trusts,
the courts are to discern the Grantor's intent. That intent is determined by the words of the "trust
creation."
instrument, read as a whole, in light of the circumstances surrounding its In re Trusts
F/B/O Marie C. Thomas Under Agreement of Charles D. Thomas Dated Dec. 17, 1986 (Del. Ch.
2021, C. A. No. 2020-0698-MTZ) (citations omitted); and see, In re Peierls Family Inter Vivos
Trusts, 77 A.3d 249 (Del. 2013). Words are to be given their common meaning. (Id.) The
document should be construed to give meaning to all parts of the document. (Id; and see The
Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC 2022 Del. LEXIS
277). The Court will apply rules of construction only ifthe words are unclear. The Samuel J.
Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC 2022 Del. LEXIS 277. (Id.)
3 - -
Members of the Trust Committee whether independent or not are also limited in or
precluded from making distributions for legal support obligations owed to beneficiaries.
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Extrinsic evidence is considered only ifthe document is ambiguous, and a provision is notrendered
ambiguous just because the parties disagree over the proper construction. (Id.)
HI. The Only Plausible Way to Construe the Trust is To Determine
That Zeynep Had the Power to Exercise the Full Powers of the
Trust Committee While She Was the Sole Member of the Trust Committee
7. Defendants and Mr. Hayward continues to rely on Article NINTH (D) (2) and (3)
of the Zeynep Trust. Article NINTH (D) (2) merely provides that whoever replaces Berrin on the
Trustee Committee must be independent. Zeynep does not claim to be independent, nor does
Zeynep claim that she replaced Billur. Itis not clear to me why Mr. Hayward believes that Article
NINTH (D) (2) has any bearing on whether the Trust Committee can act if there is not an
independent member. In fact, that section has no bearing on the issue at hand.
"Notwithstanding"
A. The Clause Does Not Control
8. Defendants and Mr. Hayward also rely on Article NINTH (D) (3), which states:
"The Grantor directs that there shall at all times be at least one independent member of the Trust
instrument."
Committee qualified and acting under this
9. First, and without citing any legal authority, Defendants and Mr. Hayward take the
position that the phrase of Article NINTH -- in this instrument to the
prefatory "anything contrary
."
notwithstanding . . dictates that the Trust Committee cannot act unless there is at least one
independent member on the Trust Committee. Case law and logic reveal that Mr. Hayward's
construction is not correct.
10. In Spyglass Media Grp., LLC v Weinstein (In re Weinstein Co. Holdings LLC),
2022 US Dist LEXIS 142333, at *18 [D Del Aug. 10, 2022, No. 18-10601 (MFW)]), the U.S.
District Court for the District of Delaware was asked by a defendant to hold that a clause that
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began with the phrase "[n]otwithstanding any provision in this Agreement or any other writing to
."
the contrary . . trumped all other provisions in the contract.
"notwithstanding"
11. The Court held that the clause contradicted numerous other
'notwithstanding'
provisions of the contract, and that "adopting [defendant's] interpretation of the
"notwithstanding"
clause would lead to unreasonable results. In holding that the clause did not
'notwithstanding'
control, the Court noted that "the clause at issue is a very broad provision,
rights]."
standing in contrast to specific provisions [setting out the plaintiff's The Court also noted
- "notwithstanding" --
that its interpretation holding that the clause did not control harmonized all
the sections of the agreement. This is the situation here.
12. Moreover, Mr. Heyward ignores the fact that Article TWENTY FIRST also begins
notwithstanding..."
with the phrase, "Anything herein to the contrary Additionally, Article
SIXTEENTH (A)(1), also begins with the phrase, "Notwithstanding any other provision of this
instrument..." "notwithstanding"
In fact, the document is replete with this phrase (see, for
example, Article S1XTH (A)(1); Article SIXTH (B)(1); Article EIGHTH (A); Article
FOURTEENTH; Article FIFTEENTH (A); Article FIFTEENTH (D); Article TWENTY THIRD
(A); and Article TWENTY FOURTH (B)).
"notwithstanding"
13. Given the numerous instances of language throughout the Trust
"notwithstanding"
Agreement, it is disingenuous of Mr. Hayward to claim that the language in
Article NINTH (D) means that Article NINTH prevails over any other Article of the Trust
Agreement.
"notwithstanding"
14. And the Spyglass case makes clear that a general such as
clause,
Article NINTH (D) (3) does not trump other more specific provisions, such as Article TWENTY-
FIRST (B).
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"notwithstanding"
15. With or without the language, there is also no support for the
claim that Article NINTH (D) (3) takes precedence over the numerous other provisions in the Trust
Agreement that make plain that the Trust Committee continues to act even ifits only member or
members are not independent.
"Directs"
B. The Word Does Not Control
16. Defendants and Mr. Hayward also point out that Article NINTH (D) (2) says that
."
the "Grantor directs . . (emphasis supplied). But Mr. Hayward then surprisingly argues that that
"directs"
inclusion of the word in the preceding sentence somehow leads to his conclusion that the
Trust Committee is impotent to act on any matter without an independent member. Yet, this
conclusion is not written into the trust instrument. Itis merely wishful thinking on Mr. Hayward's
part.
17. In making his conclusion, Mr. Hayward inexplicably ignores an express provision
of the trust instrument that explicitly addresses the situation, namely Article TWENTY FIRST (B),
which states: "Whenever all Trustees or members of the Trust Committee of such trust are
beneficiaries (i.e.not independent members) of such trust, the distribution powers granted to such
Trustees or members of the Trust Committee in this instrument shall be limited to distributions for
trust."
the health, education, maintenance or support of the beneficiaries of the (emphasis added).
"directs"
18. Mr. Hayward further argues that the word implies that Zeynep (who was
appointed to the Trust Committee at the time the trust was settled, and has been qualified and
acting on theTrust Committee since that time) is somehow disqualified and no longer when
acting
the independent member of the Trust Committee was removed the Court. Mr. Hayward points
by
disqualification"
to no Delaware law that would (or could) support such an "inferred of an acting
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member of the Trust Committee, and I do not believe there is any legal or other support for such a
farfetched interpretation.
C. Article FIFTEENTH Is Irrelevant to the Issue Before the Court
19. Article FIFTEENTH (D) provides: "Any provision hereof to the contrary
notwithstanding, if at any time there shall be no member of the Trust Committee who is qualified
and acting hereunder, then the powers granted to the Trust Committee . . .shallbe exercised by the
."
Trustee . . (emphasis supplied).
20. Mr. Hayward reads Article FIFTEENTH (D) to say that the Trustee takes over the
functions of the Trust Committee whenever Trust Committee is comprised of members who are
not independent.
21. However, Article FIFTEENTH (D) addresses the situation when there is no person
- no one at all -- qualified and on the
acting Trust Committee. There is no language in the Trust
Agreement that support Hayward's interpretation that Article FIFTEENTH means that the Trustee
takes over even when there are non-independent members.
D. The Trust Must Be Construed to Mean That The Directions
Zeynep Issued While She Was the Sole Member of the
Trust Committee Are Valid and Binding
22. As set forth herein and in my moving affidavit, the language of TWENTY FIRST
(B) makes clear that the remaining non-independent members of the Trust Committee have the
ability to continue to act on behalf of the Trust Committee.
23. Other provisions of the trust instrument those cited in
(including my moving
affidavit), also lead to the conclusion that a single member of the Trust Committee continue
may
to act on behalf of the Trust Committee. For example, Article SIXTEENTH(A)(1) reads,
"Notwithstanding any other provision of this instrument, at all times when there shall be one or
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more members of the Trust Committee serving hereunder, the Trustee shall act with respect to the
investment of the assets of the trusts created hereunder only upon the written direction of the Trust
Committee."
(emphasis added).
24. The trust instrument could have been drafted to say "at all times when there shall
be one or more independent members of the Trust Committee serving hereunder, the Trustee [shall
Committee]"
follow the directions of the Trust but Settler chose not to do this.
25. Similarly, Article SIXTEENTH (B)(2) begins, "At the written direction of the Trust
."
Committee, or at such time as no member of the Trust Committee shall then be serving... Again,
the trust instrument could have been drafted to say "...or at such time as no independent member
."
of the Trust Committee shall then be serving . . Yet, this was not done, and itis wishful thinking
on Hayward's part to infer it.
26. If Article NINTH is deemed to control, numerous provisions of the Trust would be
rendered meaningless. Among these are Article TWENTY FIRST (B). And ifMr. Hayward's
interpretation of Article FIFTEENTH (D) is accepted, it would render Article SIXTEENTH (A)
and SIXTEENTH (B) meaningless or irrelevant.
27. This is especially true because the statement in Article NINTH (C) that the Grantor
wants an independent member on the Trust Committee at all times is a general statement, whereas
the provisions of Article NINTH (C), Article SIXTEENTH, and Article TWENTY-FIRST (B) are
specific provisions that govern specific situations.
28. By the Trust's plain meaning and pursuant to Delaware law, the Trust Committee
can exercise any and allof itspowers even when the sole member is not independent.
[REST OF PAGE INTENTIONALLY BLANK)
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CONCLUSION
29. For the reasons set forth herein, based upon my extensive experience as an attorney
drafting, modifying and otherwise dealing with Delaware trusts for over 25 years, and based upon
the provisions of this Zeynep Trust and Delaware law, itis my opinion that the terms of the Trust
provide that,while Zeynep was the sole member of the Trust Committee, Zeynep had full authority
to exercise all of the powers of the Trust Committee, with the exception that she cannot grant
herself or other beneficiaries the right to occupy Trust-owned properties and that any distributions
to beneficiaries she might make must be limited to health, education, maintenance and support.
GAR TANNBAUM
Sworn to before me this
14th
day of December, 2022
commonwealth of Pennsylvania-
Notary Seal
ASHLEYA MCBRIDE-
e-- Notary Public
/ /1 Montgomery County
My CommissionExpires April 6, 2026
CommissionNumber 1328585
otary Pub
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CERTIFICATE OF CONFORMITY
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF MONTGOMERY )
I, , an attorney duly licensed to practice law in
the Commonwealth of NNSYLVANIA, do hereby certify that the acknowledgment or proof
upon the Affidavit of GARY TANNENBAUM, signed and notarized in the Commonwealth of
PENNSYLVANIA on November 28, 2022 in the New York County Supreme Court action entitled
Tekiner v. Bremen House et al, Index No. 657193/2020, and filed in that action via NYSCEF as
Docket No. 881, was taken in the manner prescribed by the laws of the Commonwealth of
PENNSYLVANIA and duly conforms to the laws thereof for the taking of oaths and
acknowledgments.
Dated: December 14, 2022
Montgomery County, Pennsylvania
t Name: 4 .
RAy
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CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17
I hereby certify that the foregoing Memorandum of Law complies with Rule 17 of
subdivision (g) of section 202.70 of the Uniform Rules for the Supreme Court and County Court
(Rules of Practice for the Commercial Division of the Supreme Court), and has a word count of
2,624, which is within the word limit of 7,000.
Dated: December 14, 2022
New York, New York
Michele Kahn
Tekiner/Z-M 12-14-22 - for filing
Compel Def Comply Z Sole Member/ Tannenbaum Reply Aff
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Preview
FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK YASEMIN TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Yasemin Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants, Index No.: 657193/2020 Motion Sequence No. 37 Plaintiff, -against- REPLY AFFIDAVIT OF ATTORNEY GARY BREMEN HOUSE INC., GERMAN NEWS TANNENBAUM REGARDING COMPANY, INC., BERRIN TEKINER, GONCA CONSTRUCTION OF THE TEKINER, and BILLUR AKIPEK, in her as ZEYNEP TEKINER 2011 capacity a Trustee of The Yasemin Tekiner 2011 Descendants DESCENDANTS TRUST Trust, Defendants. ZEYNEP TEKINER, in her individual capacity, as a beneficiary and a Trustee of The Zeynep Tekiner 2011 Descendants Trust and derivatively as a holder of equitable interests in a shareholder or a member of the Company Defendants, Intervenor-Plaintiff, -against- BREMEN HOUSE INC., GERMAN NEWS COMPANY, INC., BERRIN TEKINER, GONCA TEKINER, and BILLUR AKIPEK, in her capacity as a Trustee of The Zeynep Tekiner 2011 Descendants Trust, Defendants. 1 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF MONTGOMERY ) .ss GARY TANNENBAUM, being duly sworn, deposes and says: Delaware.1 1. I am an attorney duly admitted to the Bar of the State of I submit this Defendants' affidavit in reply to the affidavit of Daniel Hayward, which was submitted on behalf. 2. As set forth herein, and with all due respect, the proposed construction of the Trust Agreement advanced by Defendants and their expert, Mr. Hayward, is not logical, nor is it supported by any legal authority. L Background 3. As explained in my moving affidavit, Berrin Tekiner is the Grantor and Protector of the Zeynep Trust, and Bryn Mawr Trust (f/k/a Christiana Trust) is the "Trustee", i.e., the Independent Trustee. As the Protector, Berrin has the authority under Article EIGHTH to appoint and of Trust.2 remove members the Trust Committee on the terms set forth in the Almost all of the powers of the Trust are vested in the Trust Committee. The Trustee can only act (and must act) upon the direction of the Trust Committee; however if there is no one serving on the Trust Committee, then the Trustee can exercise the powers of the Trust Committee. 4. Once the Court removed Billur as a member of the Trust Committee of the Zeynep Trust by its October 19, 2022 Trustee Removal Order (NYSCEF Doc. No. 800), Zeynep was left as the sole member of the Trust Committee. As the sole member of the Trust Committee of the Zeynep Tekiner 2011 Descendants Trust, and pursuant to both Delaware law and the plain language of the Zeynep Trust, Zeynep Tekiner has the full to exercise all powers of the authority Trust Committee. The exceptions to this are because is a (i.e.a non- only that, Zeynep beneficiary 1 My experience and credentials are set forth in my moving affidavit (NYSCEF Doc. No. 881). 2 Subject to the right of beneficiaries or others to request Court intervention. 2 2 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 independent member of the Trustee Committee), Zeynep cannot (1) grant herself or her guests or caretakers the right to occupy properties owned by the Trust or (2) vote on distributions to beneficiaries - as set forth below and as is the case the of the Trustee unless, here, only member(s) Committee are beneficiaries (i.e. interested members), in which case, as here, she can give distributions to beneficiaries only for her or their health, education, maintenance or support. (B).3 (NYSCEF Doc. No. 669, Articles FIFTEENTH (B) (13) and TWENTY-FIRST (A) and 5. Even though Berrin has purported to appoint new members of the Trust Committee, the directions that Zeynep gave while she was the sole member of the Trust Committee are valid and binding, and remain extant. IL The Rules Of Trust Construction 6. As set forth in my moving affidavit, and as agreed by Defendants and Mr. Hayward, Delaware courts construe trusts in the same way as contracts are construed. In construing trusts, the courts are to discern the Grantor's intent. That intent is determined by the words of the "trust creation." instrument, read as a whole, in light of the circumstances surrounding its In re Trusts F/B/O Marie C. Thomas Under Agreement of Charles D. Thomas Dated Dec. 17, 1986 (Del. Ch. 2021, C. A. No. 2020-0698-MTZ) (citations omitted); and see, In re Peierls Family Inter Vivos Trusts, 77 A.3d 249 (Del. 2013). Words are to be given their common meaning. (Id.) The document should be construed to give meaning to all parts of the document. (Id; and see The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC 2022 Del. LEXIS 277). The Court will apply rules of construction only ifthe words are unclear. The Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC 2022 Del. LEXIS 277. (Id.) 3 - - Members of the Trust Committee whether independent or not are also limited in or precluded from making distributions for legal support obligations owed to beneficiaries. 3 3 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 Extrinsic evidence is considered only ifthe document is ambiguous, and a provision is notrendered ambiguous just because the parties disagree over the proper construction. (Id.) HI. The Only Plausible Way to Construe the Trust is To Determine That Zeynep Had the Power to Exercise the Full Powers of the Trust Committee While She Was the Sole Member of the Trust Committee 7. Defendants and Mr. Hayward continues to rely on Article NINTH (D) (2) and (3) of the Zeynep Trust. Article NINTH (D) (2) merely provides that whoever replaces Berrin on the Trustee Committee must be independent. Zeynep does not claim to be independent, nor does Zeynep claim that she replaced Billur. Itis not clear to me why Mr. Hayward believes that Article NINTH (D) (2) has any bearing on whether the Trust Committee can act if there is not an independent member. In fact, that section has no bearing on the issue at hand. "Notwithstanding" A. The Clause Does Not Control 8. Defendants and Mr. Hayward also rely on Article NINTH (D) (3), which states: "The Grantor directs that there shall at all times be at least one independent member of the Trust instrument." Committee qualified and acting under this 9. First, and without citing any legal authority, Defendants and Mr. Hayward take the position that the phrase of Article NINTH -- in this instrument to the prefatory "anything contrary ." notwithstanding . . dictates that the Trust Committee cannot act unless there is at least one independent member on the Trust Committee. Case law and logic reveal that Mr. Hayward's construction is not correct. 10. In Spyglass Media Grp., LLC v Weinstein (In re Weinstein Co. Holdings LLC), 2022 US Dist LEXIS 142333, at *18 [D Del Aug. 10, 2022, No. 18-10601 (MFW)]), the U.S. District Court for the District of Delaware was asked by a defendant to hold that a clause that 4 4 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 began with the phrase "[n]otwithstanding any provision in this Agreement or any other writing to ." the contrary . . trumped all other provisions in the contract. "notwithstanding" 11. The Court held that the clause contradicted numerous other 'notwithstanding' provisions of the contract, and that "adopting [defendant's] interpretation of the "notwithstanding" clause would lead to unreasonable results. In holding that the clause did not 'notwithstanding' control, the Court noted that "the clause at issue is a very broad provision, rights]." standing in contrast to specific provisions [setting out the plaintiff's The Court also noted - "notwithstanding" -- that its interpretation holding that the clause did not control harmonized all the sections of the agreement. This is the situation here. 12. Moreover, Mr. Heyward ignores the fact that Article TWENTY FIRST also begins notwithstanding..." with the phrase, "Anything herein to the contrary Additionally, Article SIXTEENTH (A)(1), also begins with the phrase, "Notwithstanding any other provision of this instrument..." "notwithstanding" In fact, the document is replete with this phrase (see, for example, Article S1XTH (A)(1); Article SIXTH (B)(1); Article EIGHTH (A); Article FOURTEENTH; Article FIFTEENTH (A); Article FIFTEENTH (D); Article TWENTY THIRD (A); and Article TWENTY FOURTH (B)). "notwithstanding" 13. Given the numerous instances of language throughout the Trust "notwithstanding" Agreement, it is disingenuous of Mr. Hayward to claim that the language in Article NINTH (D) means that Article NINTH prevails over any other Article of the Trust Agreement. "notwithstanding" 14. And the Spyglass case makes clear that a general such as clause, Article NINTH (D) (3) does not trump other more specific provisions, such as Article TWENTY- FIRST (B). 5 5 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 "notwithstanding" 15. With or without the language, there is also no support for the claim that Article NINTH (D) (3) takes precedence over the numerous other provisions in the Trust Agreement that make plain that the Trust Committee continues to act even ifits only member or members are not independent. "Directs" B. The Word Does Not Control 16. Defendants and Mr. Hayward also point out that Article NINTH (D) (2) says that ." the "Grantor directs . . (emphasis supplied). But Mr. Hayward then surprisingly argues that that "directs" inclusion of the word in the preceding sentence somehow leads to his conclusion that the Trust Committee is impotent to act on any matter without an independent member. Yet, this conclusion is not written into the trust instrument. Itis merely wishful thinking on Mr. Hayward's part. 17. In making his conclusion, Mr. Hayward inexplicably ignores an express provision of the trust instrument that explicitly addresses the situation, namely Article TWENTY FIRST (B), which states: "Whenever all Trustees or members of the Trust Committee of such trust are beneficiaries (i.e.not independent members) of such trust, the distribution powers granted to such Trustees or members of the Trust Committee in this instrument shall be limited to distributions for trust." the health, education, maintenance or support of the beneficiaries of the (emphasis added). "directs" 18. Mr. Hayward further argues that the word implies that Zeynep (who was appointed to the Trust Committee at the time the trust was settled, and has been qualified and acting on theTrust Committee since that time) is somehow disqualified and no longer when acting the independent member of the Trust Committee was removed the Court. Mr. Hayward points by disqualification" to no Delaware law that would (or could) support such an "inferred of an acting 6 6 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 member of the Trust Committee, and I do not believe there is any legal or other support for such a farfetched interpretation. C. Article FIFTEENTH Is Irrelevant to the Issue Before the Court 19. Article FIFTEENTH (D) provides: "Any provision hereof to the contrary notwithstanding, if at any time there shall be no member of the Trust Committee who is qualified and acting hereunder, then the powers granted to the Trust Committee . . .shallbe exercised by the ." Trustee . . (emphasis supplied). 20. Mr. Hayward reads Article FIFTEENTH (D) to say that the Trustee takes over the functions of the Trust Committee whenever Trust Committee is comprised of members who are not independent. 21. However, Article FIFTEENTH (D) addresses the situation when there is no person - no one at all -- qualified and on the acting Trust Committee. There is no language in the Trust Agreement that support Hayward's interpretation that Article FIFTEENTH means that the Trustee takes over even when there are non-independent members. D. The Trust Must Be Construed to Mean That The Directions Zeynep Issued While She Was the Sole Member of the Trust Committee Are Valid and Binding 22. As set forth herein and in my moving affidavit, the language of TWENTY FIRST (B) makes clear that the remaining non-independent members of the Trust Committee have the ability to continue to act on behalf of the Trust Committee. 23. Other provisions of the trust instrument those cited in (including my moving affidavit), also lead to the conclusion that a single member of the Trust Committee continue may to act on behalf of the Trust Committee. For example, Article SIXTEENTH(A)(1) reads, "Notwithstanding any other provision of this instrument, at all times when there shall be one or 7 7 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 more members of the Trust Committee serving hereunder, the Trustee shall act with respect to the investment of the assets of the trusts created hereunder only upon the written direction of the Trust Committee." (emphasis added). 24. The trust instrument could have been drafted to say "at all times when there shall be one or more independent members of the Trust Committee serving hereunder, the Trustee [shall Committee]" follow the directions of the Trust but Settler chose not to do this. 25. Similarly, Article SIXTEENTH (B)(2) begins, "At the written direction of the Trust ." Committee, or at such time as no member of the Trust Committee shall then be serving... Again, the trust instrument could have been drafted to say "...or at such time as no independent member ." of the Trust Committee shall then be serving . . Yet, this was not done, and itis wishful thinking on Hayward's part to infer it. 26. If Article NINTH is deemed to control, numerous provisions of the Trust would be rendered meaningless. Among these are Article TWENTY FIRST (B). And ifMr. Hayward's interpretation of Article FIFTEENTH (D) is accepted, it would render Article SIXTEENTH (A) and SIXTEENTH (B) meaningless or irrelevant. 27. This is especially true because the statement in Article NINTH (C) that the Grantor wants an independent member on the Trust Committee at all times is a general statement, whereas the provisions of Article NINTH (C), Article SIXTEENTH, and Article TWENTY-FIRST (B) are specific provisions that govern specific situations. 28. By the Trust's plain meaning and pursuant to Delaware law, the Trust Committee can exercise any and allof itspowers even when the sole member is not independent. [REST OF PAGE INTENTIONALLY BLANK) 8 8 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 CONCLUSION 29. For the reasons set forth herein, based upon my extensive experience as an attorney drafting, modifying and otherwise dealing with Delaware trusts for over 25 years, and based upon the provisions of this Zeynep Trust and Delaware law, itis my opinion that the terms of the Trust provide that,while Zeynep was the sole member of the Trust Committee, Zeynep had full authority to exercise all of the powers of the Trust Committee, with the exception that she cannot grant herself or other beneficiaries the right to occupy Trust-owned properties and that any distributions to beneficiaries she might make must be limited to health, education, maintenance and support. GAR TANNBAUM Sworn to before me this 14th day of December, 2022 commonwealth of Pennsylvania- Notary Seal ASHLEYA MCBRIDE- e-- Notary Public / /1 Montgomery County My CommissionExpires April 6, 2026 CommissionNumber 1328585 otary Pub 9 9 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 CERTIFICATE OF CONFORMITY COMMONWEALTH OF PENNSYLVANIA ) ) ss.: COUNTY OF MONTGOMERY ) I, , an attorney duly licensed to practice law in the Commonwealth of NNSYLVANIA, do hereby certify that the acknowledgment or proof upon the Affidavit of GARY TANNENBAUM, signed and notarized in the Commonwealth of PENNSYLVANIA on November 28, 2022 in the New York County Supreme Court action entitled Tekiner v. Bremen House et al, Index No. 657193/2020, and filed in that action via NYSCEF as Docket No. 881, was taken in the manner prescribed by the laws of the Commonwealth of PENNSYLVANIA and duly conforms to the laws thereof for the taking of oaths and acknowledgments. Dated: December 14, 2022 Montgomery County, Pennsylvania t Name: 4 . RAy 10 10 of 11 FILED: NEW YORK COUNTY CLERK 12/15/2022 01:45 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 928 RECEIVED NYSCEF: 12/15/2022 CERTIFICATION PURSUANT TO COMMERCIAL DIVISION RULE 17 I hereby certify that the foregoing Memorandum of Law complies with Rule 17 of subdivision (g) of section 202.70 of the Uniform Rules for the Supreme Court and County Court (Rules of Practice for the Commercial Division of the Supreme Court), and has a word count of 2,624, which is within the word limit of 7,000. Dated: December 14, 2022 New York, New York Michele Kahn Tekiner/Z-M 12-14-22 - for filing Compel Def Comply Z Sole Member/ Tannenbaum Reply Aff 11 11 of 11