Preview
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023
EXHIBIT E
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023
CONFIDENTIAL
PREPAID FORWARD PURCHASE AGREEMENT
BY AND BETWEEN
ON THE ONE HAND,
AND
YASEMIN BAHAR TEKINER
AND
ZEYNEP S. TEKINER,
ON THE OTHER HAND
DATED AS OF JUNE 21, 2022
LP 21077386.10 \ 43541-132729
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CONFIDENTIAL
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ......................................................................................................................... 1
1.1 Definitions..................................................................................................................................... 1
ARTICLE II TERMS OF PURCHASE ........................................................................................................ 7
2.1 Commitment and Deployments .................................................................................................... 7
2.2 Use of Deployments ...................................................................................................................... 8
2.3 Deployment Procedure.................................................................................................................. 8
2.4 Termination and Reduction of Commitment .............................................................................. 10
2.5 No Affirmative Liability ............................................................................................................. 10
2.6 True Sale ..................................................................................................................................... 10
ARTICLE III DISTRIBUTION OF LITIGATION PROCEEDS .............................................................. 10
3.1 Priority of Payment ..................................................................................................................... 10
3.2 Non-Recourse ............................................................................................................................. 11
3.3 Tax Matters ................................................................................................................................. 11
3.4 Interest on Overdue Amounts ..................................................................................................... 11
ARTICLE IV SETTLEMENT .................................................................................................................... 12
4.1 Right to Settle ............................................................................................................................. 12
4.2 Communication of Settlement Offers ......................................................................................... 12
4.3 Settlements and other Resolutions ................................................. 12
4.4 Settlement Agreement ................................................................................................................. 12
ARTICLE V LITIGATION MANAGEMENT .......................................................................................... 12
5.1 Control of the Litigation ............................................................................................................. 12
5.2 New Counsel ............................................................................................................................... 13
5.3 Engagement Agreements ............................................................................................................ 13
5.4 Conduct of the Litigation ............................................................................................................ 13
5.5 Disclosure of Interest .................................................................................................................. 13
ARTICLE VI LITIGATION INFORMATION; CONFIDENTIALITY .................................................... 13
6.1 Communication of Litigation Information .................................................................................. 13
6.2 Confidentiality ............................................................................................................................ 14
ARTICLE VII REPRESENTATIONS AND WARRANTIES .................................................................. 14
7.1 Mutual Representations and Warranties ..................................................................................... 14
7.2 Seller’s Additional Representations and Warranties ................................................................... 15
ARTICLE VIII TERMINATION OF AGREEMENT ............................................................................... 17
8.1 Termination ................................................................................................................................. 17
8.2 Consequences of Termination..................................................................................................... 17
8.3 Clawback..................................................................................................................................... 18
ARTICLE IX INDEMNIFICATION; RECOURSE EVENTS .................................................................. 18
9.1 Seller Indemnity .......................................................................................................................... 18
9.2 Recourse Events .......................................................................................................................... 18
9.3 Joint and Several Liability .......................................................................................................... 19
ARTICLE X SECURITY AGREEMENT .................................................................................................. 19
10.1 Grant of Security Interest ............................................................................................................ 19
10.2 Continuing Security Interest ....................................................................................................... 20
10.3 Financing Statements .................................................................................................................. 20
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10.4 Additional Representations and Warranties of Seller Relating to Security Interest ................... 20
10.5 Covenants .................................................................................................................................... 21
10.6 Remedies and Applications of Proceeds ..................................................................................... 21
10.7 Certain Waivers .......................................................................................................................... 22
10.8 Attorney-in-Fact .......................................................................................................................... 22
ARTICLE XI GOVERNING LAW; JURISDICTION AND VENUE; DISPUTES .................................. 22
11.1 Governing Law ........................................................................................................................... 22
11.2 Arbitration of Disputes................................................................................................................ 22
ARTICLE XII NOTICES ........................................................................................................................... 23
12.1 Method ........................................................................................................................................ 23
12.2 Receipt ........................................................................................................................................ 23
ARTICLE XIII GENERAL ........................................................................................................................ 23
13.1 Acknowledgment ........................................................................................................................ 23
13.2 Interpretation ............................................................................................................................... 23
13.3 Survival of Representations, Warranties, Covenants and Indemnities ....................................... 23
13.4 Merger Clause ............................................................................................................................. 23
13.5 Confidentiality ............................................................................................................................ 24
13.6 Assignment ................................................................................................................................. 24
13.7 Third Party Beneficiaries ............................................................................................................ 24
13.8 Independent Parties ..................................................................................................................... 24
13.9 Costs, Expenses and Fees............................................................................................................ 24
13.10 Amendment; Waiver ............................................................................................................... 24
13.11 Counterparts ............................................................................................................................ 24
13.12 Severability ............................................................................................................................. 25
13.13 Further Assurances .................................................................................................................. 25
Exhibits and Schedules:
Exhibit A Wire and Notice Information
Exhibit B Form of Deployment Request
Exhibit C Engagement Agreements
Schedule 7.2(c) Capitalization of Relevant Entities
Schedule 7.2(s) Assets
Schedule 7.2(t) Indebtedness
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PREPAID FORWARD PURCHASE AGREEMENT
This Prepaid Forward Purchase Agreement, dated as of June 21, 2022, is by and between
, a Delaware limited liability company (“Purchaser”), on the one hand, and Yasemin Bahar
Tekiner (“Yasemin”), and Zeynep S. Tekiner (“Zeynep”), on the other hand, each in their individual
capacities and as respective beneficiaries of The Yasemin Tekiner 2011 Descendants Trust and The Zeynep
Tekiner Ozaltin 2011 Descendants Trust, and derivatively as holders of equitable interests in a shareholder
or member of any Defendant to the Litigation (as such terms are defined below). “Seller” means both (a)
each of Yasemin and Zeynep, separately, and (b) both of Yasemin and Zeynep, collectively, and jointly and
severally. “Parties” means, collectively, Purchaser and Seller.
ARTICLE I
DEFINITIONS
1.1 Definitions. The following capitalized terms shall have the meanings specified in this
Section 1.1. Other terms are defined in the text of this Agreement and those terms shall have the meanings
respectively assigned to them.
“254-258 LLC” means 254-258 W 35th ST LLC, a New York limited liability company.
“AAA” means the American Arbitration Association or its successor.
“Adverse Effect” means any one or more of the following: an adverse effect on any of (a) the
Claims or the Litigation, or the value or viability thereof, (b) the rights of Purchaser under Article X, (c)
the financial condition or assets of Seller, Yasemin Trust, Zeynep Trust or the Defendants in the Litigation
or (d) the ability of Purchaser to enforce its rights and remedies under the Transaction Documents.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls,
is Controlled by, or is under common Control with such Person. Solely for purposes of this definition of
Affiliate, “Control” (including the terms “Controlled by” and “under common Control with”) means the
possession, directly or indirectly, of the power to direct or cause the direction of the management policies
or affairs of a Person, whether through ownership of voting securities of a Person, by contract or otherwise.
“Agreement” means this Prepaid Forward Purchase Agreement, as amended from time to time in
accordance with Section 13.10, including all Exhibits and Schedules.
“Bankruptcy Code” means the Bankruptcy Code of the United States of America.
“Berrin” means Berrin Tekiner.
“BHI” means Bremen House, Inc., a New York corporation.
“BHT” means Bremen House Texas, Inc., a Delaware corporation.
“Business Day” means any day that is not a Saturday, a Sunday or a public holiday on which banks
are authorized or required to be closed under the laws of the State of Delaware.
“Business Deal” means any transaction or arrangement relating to the Litigation or the Claims
entered into by Seller and any Person, whereby such Person provides a benefit to Seller, any of Seller’s
Affiliates, Yasemin Trust or Zeynep Trust, including any transaction or arrangement with any Defendant.
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“Claims” means the claims that Seller has against each Defendant and any related claims.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations in effect
thereunder.
“Collateral” shall have the meaning assigned to such term in Section 10.1.
“Commitment” shall have the meaning assigned to such term in Section 2.1.
“Commitment Amount” shall have the meaning assigned to such term in Section 2.1.
“Confidential Information” means any information relating to: (a) the Transaction Documents,
including any discussions and negotiations related thereto, the existence of them, or the identity of the
Parties or their respective Affiliates; the Litigation or the Claims, including the names of the parties and
potential other parties to the Claims; the factual, legal, technical, economic and financial background of the
Claims; the procedural status of the Claims; the planned legal and procedural strategies and tactics for the
pursuing of the Claims or Settlement, or a Business Deal, or collection of the Litigation Proceeds; and the
expected recoveries from the Claims; (b) factual information, evidentiary information, legal theories,
procedures, decision trees, experts’ or other consultants’ reports, attorney or other professional work
product; (c) billing arrangements, billing rates, financial arrangements, contingent fee agreements,
contingent fee percentages, costs, finances, investments, investors, price lists, pricing, profit margins,
profitability and quotations; (d) any financial statements and information, data, documents, reports and
materials relating to the Litigation or the Claims; (e) information concerning accountants, agents, law firms,
lawyers and advisors; and (f) other proprietary or nonpublic information, data or material, in all cases
regardless of whether such information is (i) written or oral, irrespective of the form or storage medium,
and (ii) specifically identified as “confidential” or which, by virtue of its nature, would be understood to be
confidential by a reasonable Recipient. “Confidential Information” includes analytics derived from other
Confidential Information. “Confidential Information” does not include information that (x) was or becomes
generally available to the public other than as a result of a disclosure by the Recipient in violation of this
Agreement or the Confidentiality Agreement; (y) was actually known to the Recipient on a non-confidential
basis prior to its disclosure; or (z) was developed independently of the information derived from the
Confidential Information.
“Confidentiality Agreement” shall have the meaning assigned to such term in Section 13.5.
“Counsel” means Current Counsel and/or any New Counsel.
“Counsel Fees” means, collectively, the PIB Fees, the FH Fees, the GS&S Fees and the K&G Fees.
“Court” means the courts or other tribunals in which the Litigation is conducted.
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“Current Counsel” means, individually and collectively, PIB, FH, GS&S and K&G.
“Current Counsel Instruction Letter” means the letter, in a form approved by Purchaser, from Seller
to Current Counsel, and agreed to by Current Counsel, that relates to the payment of the Litigation Proceeds
to Purchaser pursuant to this Agreement.
“Debtor Relief Law” means the Bankruptcy Code and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time
to time in effect.
“Default Rate” means a rate per annum equal to the lesser of
“Defendant” means, individually and collectively, BHI, BHT, GNC, GNT, 254-258 LLC, Berrin,
Gonca, Billur Akipek and any other defendant to the Litigation, and each of the successors and assigns of
the foregoing.
“Deployment” shall have the meaning assigned to such term in Section 2.1.
“Deployment Completion Date” means the earlier of (a) the date on which the Total Deployments
(excluding Purchaser’s Transaction Costs) have reached the Commitment Amount, or (b) Final Resolution.
“Deployment Request” shall have the meaning assigned to such term in Section 2.3(f).
“Disclosing Party” means the Party to this Agreement who provides Confidential Information to
the Recipient.
“Encumbrance” means any mortgage, pledge, lien, security or ownership interest, charge,
hypothecation, or other encumbrance, option agreement, transfer, set-off right, security or subordination
arrangement, or other similar interest or arrangement of any kind.
“Engagement Agreements” shall have the meaning assigned to such term in Section 7.2(m).
“FH” means Foley Hoag LLP, a Massachusetts limited liability partnership.
“FH Fees” means the time-based attorneys’ fees incurred by Seller for
legal services by FH in connection with the Litigation.
“Final Resolution” means the resolution of the Litigation that substantially concludes the Litigation
with respect to Seller pursuant to (a) a final, non-appealable, legal and valid judgment of the Court binding
all Defendants, or (b) a Settlement agreement or agreements between Seller and all Defendants.
“Financing Statement Collateral” shall have the meaning assigned to such term in Section 10.4(c).
“GNC” means German News Company, Inc., a New York corporation.
“GNT” means German News Texas, Inc., a Delaware corporation.
“Gonca” means Gonca Tekiner.
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“Governmental Authority” means any court, tribunal, arbitrator, authority, agency, commission,
official, body or other instrumentality of the United States, any foreign country, or any domestic or foreign
state, province, county, city, other political subdivision or any other similar body or organization exercising
governmental or quasi-governmental power or authority.
“GS&S” means Greenfield Stein & Senior, LLP, a New York limited liability partnership.
“GS&S Fees” means the time-based attorneys’ fees incurred by Seller
for legal services by GS&S in connection with the Litigation.
“Indebtedness” means (a) all principal and accrued (but unpaid) interest owing by a Person for
indebtedness for borrowed money owed to any third-party, (b) all indebtedness of a Person evidenced by
notes, debentures, bonds or other similar instruments, (c) all obligations of a Person as lessee or lessees
under leases that have been recorded by such Person as capital leases, (d) the deferred purchase price of
property or services (excluding trade payables and accrued expenses arising in the ordinary course of
business) of a Person, (e) all obligations of a Person under exchange rate contracts or interest rate protection
agreements, (f) any obligation of a Person to reimburse the issuer of any letter of credit, surety bond,
performance bond or other guarantee of contractual performance, in each case to the extent drawn or
otherwise not contingent, (g) any obligation of a Person to current or former equity holders, or current or
former employees, of such Person (excluding compensation arising in the ordinary course of business
consistent with past practice), (h) any guaranty by a Person of any liability or obligation described in the
immediately preceding clauses (a) through (g), and (i) any payments, fines, fees, penalties or other amounts
applicable to or otherwise incurred by a Person in connection with or as a result of any prepayment or early
satisfaction of any obligation described in the immediately preceding clauses (a) through (h).
“Instruction Letter” means the Current Counsel Instruction Letter and/or any New Counsel
Instruction Letter.
“K&G” means Kahn & Goldberg, LLP, a New York limited liability partnership.
“K&G Fees” means the time-based attorneys’ fees incurred by Seller
for legal services by K&G in connection with the Litigation.
“Litigation” means, individually and collectively, the cases captioned (a) Yasemin Tekiner et al. v.
Bremen House Inc., et al., Index No. 657193/20, in the Supreme Court of the State of New York, and
, together with (i) any and all claims, suits,
causes of action, proceedings, and other rights relating to, or arising therefrom, (ii) any and all appellate
proceedings, proceedings on remand, and enforcement, ancillary, parallel or alternate dispute resolution
proceedings and processes arising out of or related thereto, and (iii) any additional cases, lawsuits,
arbitration matters, bankruptcy proceedings, receivership actions, settlements or other formal or informal
proceedings filed or initiated by or on behalf of Seller, any of Seller’s Affiliates, Yasemin Trust or Zeynep
Trust based upon the same or substantially similar business dealings, facts or claims.
“Litigation Expenses” means the reasonable out-of-pocket costs incurred by or on behalf of Seller
related to the Litigation, including expert witness fees and costs, but excluding the Counsel Fees.
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“Litigation Proceeds” means any and all proceeds, receivables, property, cash, concessions and
other consideration payable or transferred directly or indirectly to or for the benefit of Seller, any of Seller’s
Affiliates, Yasemin Trust or Zeynep Trust in connection with the Litigation or any Claims (whether by
judgment, Settlement, Business Deal or otherwise), including any damages (punitive or otherwise),
penalties, interest, award of attorneys’ fees and the reimbursement for costs and expenses, and other
amounts paid or property transferred or concessions made to or for the benefit of Seller, any of Seller’s
Affiliates, Yasemin Trust or Zeynep Trust in respect of the Litigation or any Claims.
“Losses” shall have the meaning assigned to such term in Section 9.l(a).
“New Counsel” means any substitute or additional legal counsel engaged by Seller with respect to
the Claims or the Litigation.
“New Counsel Instruction Letter” shall have the meaning assigned to such term in Section 5.2.
“Order” means any order, judgment, ruling, injunction, award, decree or writ of any Governmental
Authority.
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“Parties” shall have the meaning assigned to such term in the introduction to this Agreement.
“Person” means any natural person, corporation, partnership, limited liability company, joint stock
company, joint venture, association, company, estate, trust or other organization, whether or not a legal
entity, custodian, trustee, executor, administrator, nominee or entity in a representative capacity and any
Governmental Authority.
“PIB” means Parker Ibrahim & Berg LLP, a New Jersey limited liability partnership.
“PIB Fees” means the time-based attorneys’ fees incurred by Seller for
legal services by PIB in connection with the Litigation.
“Pre-Closing Expense Deployment” shall have the meaning assigned to such term in Section 2.2(e).
“Pre-Closing FH Deployment” shall have the meaning assigned to such term in Section 2.2(b).
“Pre-Closing GS&S Deployment” shall have the meaning assigned to such term in Section 2.2(c).
“Pre-Closing K&G Deployment” shall have the meaning assigned to such term in Section 2.2(d).
“Pre-Closing PIB Deployment” shall have the meaning assigned to such term in Section 2.2(a).
“Proceeds” shall have the meaning assigned to such term in Section 9-102(64) of the UCC.
“Protective Order” means a stipulated order to protect confidential information prepared by the
parties to the Litigation and ordered by the Court.
“Purchaser” shall have the meaning assigned to such term in the introduction to this Agreement.
“Purchaser’s Transaction Costs” shall have the meaning assigned to such term in Section 13.9.
“Recipient” means the Party to this Agreement receiving Confidential Information from the
Disclosing Party.
“Records” shall have the meaning assigned to such term in the UCC.
“Recourse Event” shall have the meaning assigned to such term in Section 9.2.
“Secured Obligations” means, collectively: (a) the prompt payment by Seller, as and when due, of
the Purchaser’s Share to Purchaser and the due performance by Seller of all of its obligations in respect of
the Transaction Documents; (b) all other debts, liabilities, obligations, covenants and duties of Seller owing
to Purchaser now or hereafter existing, whether direct or indirect, absolute or contingent or due or to become
due, arising under or in connection with the Transaction Documents or any of the transactions contemplated
thereby and including any interest due thereon and all fees, costs and expenses due to Purchaser under the
terms of this Agreement; (c) all debts, liabilities, obligations, covenants and duties of Seller to pay or
reimburse Purchaser for all expenses, including attorneys’ fees, incurred by Purchaser in connection with
the enforcement, attempted enforcement or preservation of any rights or remedies under the Transaction
Documents, including all such costs and expenses incurred during any legal proceeding, including any
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proceeding under any applicable bankruptcy, insolvency or other similar Debtor Relief Laws; and (d) all
interest and fees on any of the foregoing, whether accruing prior to or after the commencement by or against
Seller of any proceeding under any applicable bankruptcy, insolvency or other similar Debtor Relief Laws
naming Seller as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.
“Seller” shall have the meaning assigned to such term in the introduction to this Agreement.
“Settlement” means
“Taxes” means any and all applicable taxes, duties, charges or levies of any nature imposed by any
taxing or other Governmental Authority, including income, gains, capital gains, surtax, capital, franchise,
capital stock, value-added taxes, taxes required to be deducted from payments made by the payor and
accounted for to any tax authority, employees’ income withholding, back-up withholding, withholding on
payments to foreign Persons, social security, national insurance, unemployment, worker’s compensation,
payroll, disability, real property, personal property, sales, use, goods and services or other commodity taxes,
business, occupancy, excise, customs and import duties, transfer, stamp and other taxes (including interest,
penalties or additions to tax in respect of the foregoing), and includes all taxes payable pursuant to any
provision of state, local or foreign law.
“Total Deployments” shall have the meaning assigned to such term in Section 2.1.
“Transaction Documents” means, collectively, this Agreement, the Confidentiality Agreement and
any other agreement, document or instrument contemplated hereby or delivered in connection herewith or
therewith, including any Instruction Letter (which letter shall be binding on the signatories thereto as
specifically set forth therein).
“UCC” means the Uniform Commercial Code as in effect on the date hereof in the State of
Delaware or, in relation to the perfection or priority of a security interest, the Uniform Commercial Code
that then governs under the choice of law rules applicable to questions of perfection or priority.
“Yasemin Trust” means The Yasemin Tekiner 2011 Descendants Trust, including, with respect to
any reference involving action by the aforementioned trust, the trustee, members of the trustee committee,
members of the protector committee, and any other fiduciaries of Yasemin Trust.
“Zeynep Trust” means The Zeynep Tekiner Ozaltin 2011 Descendants Trust, including, with
respect to any reference involving action by the aforementioned trust, the trustee, members of the trustee
committee, members of the protector committee, and any other fiduciaries of Zeynep Trust.
ARTICLE II
TERMS OF PURCHASE
2.1 Commitment and Deployments. Subject to the terms and conditions of this Agreement
(including Section 13.9), Purchaser commits (the “Commitment”) to make payments to Seller or on Seller’s
behalf (each payment, a “Deployment,” and the total of such payments, together with Purchaser’s
Transaction Costs, the “Total Deployments”), at any time and from time to time from the date of this
Agreement until the Deployment Completion Date (unless (a) the Commitment is terminated earlier in
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accordance with the terms of this Agreement, or (b) Purchaser agrees in writing to make Deployment(s)
after the Deployment Completion Date),
. The Commitment is not revolving.
In
consideration of the Commitment, Seller hereby sells, assigns and transfers to Purchaser, free and clear of
any Encumbrance, all rights, title, benefits and interests of Seller in and to Purchaser’s Share.
2.2 Use of Deployments. Except for Purchaser’s Transaction Costs, Deployments made under
this Agreement are only for payment by Seller or on Seller’s behalf of:
2.3 Deployment Procedure.
(a) Pre-Closing PIB Deployment. Purchaser shall fund the Pre-Closing PIB
Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby
directs Purchaser to pay to PIB on behalf of Seller. Prior to the date of this Agreement, Seller has provided
an invoice detailing the amount described in this clause, which invoice is in a form reasonably acceptable
to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate said
amount.
(b) Pre-Closing FH Deployment. Purchaser shall fund the Pre-Closing FH
Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby
directs Purchaser to pay to FH on behalf of Seller. Prior to the date of this Agreement, Seller has provided
an invoice detailing the amount described in this clause, which invoice is in a form reasonably acceptable
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to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate said
amount.
(c) Pre-Closing GS&S Deployment. Purchaser shall fund the Pre-Closing GS&S
Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby
directs Purchaser to pay to GS&S on behalf of Seller. Prior to the date of this Agreement, Seller has
provided an invoice detailing the amount described in this clause, which invoice is in a form reasonably
acceptable to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate
said amount.
(d) Pre-Closing K&G Deployment. Purchaser shall fund the Pre-Closing K&G
Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby
directs Purchaser to pay to K&G on behalf of Seller. Prior to the date of this Agreement, Seller has provided
an invoice detailing the amount described in this clause, which invoice is in a form reasonably acceptable
to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate said
amount.
(e) Pre-Closing Expense Deployment. Purchaser shall fund the Pre-Closing Expense
Deployment within fifteen (15) Business Days after the date of this Agreement,
(f) Other Deployments. Beginning with the calendar month after the calendar month
that includes the date of this Agreement, and no more than once per calendar month until the Deployment
Completion Date, Seller may submit a written request (a “Deployment Request”) to Purchaser for each
desired Deployment in the form of Exhibit B. Purchaser shall disburse such Deployment to Seller or the
ultimate payee on Seller’s behalf; provided that:
(i) Seller provides an invoice detailing the out-of-pocket costs and fees incurred by
Seller in accordance with the uses permitted under Section 2.2, which invoice will
be in form and substance reasonably acceptable to Purchaser and which costs and
fees were not paid by a previous Deployment, along with invoices or other
documentation acceptable to Purchaser to substantiate said costs and fees;
(ii) No breach or default by Seller exists, and remains uncured, under any of the
Transaction Documents as of the date of such request or the funding of the related
Deployment;
(iii) The Deployment Request is in the form of Exhibit B or otherwise contains a
certification by Seller that, as of the date of such request, (i) no breach or default
by Seller exists under any of the Transaction Documents, and (ii) Seller’s
representations and warranties in or in connection with the Transaction Documents
remain true and correct in all material respects; and
(iv)
Subject to the terms of this Agreement, within fifteen (15) Business Days of Purchaser’s receipt of
the Deployment Request, Purchaser shall disburse the Deployment in immediately available funds to or on
behalf of Seller in accordance with “Seller’s Wire Instructions” set forth on Exhibit A or as Seller otherwise
directs pursuant to written instructions confirmed by telephone.
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For the avoidance of doubt, Section 2.3(f) does not apply to any out-of-pocket costs and fees
incurred prior to the date of this Agreement.
2.4 Termination and Reduction of Commitment. If an Adverse Effect occurs, as determined
by Purchaser in its sole discretion, then, at any time thereafter and upon written notice to Seller, Purchaser
may terminate Purchaser’s obligations with respect to any unfunded portion of the Commitment.
2.5 No Affirmative Liability. Under no circumstances shall Purchaser have any obligation to
pay any sums awarded against Seller, including fees, costs or awards, nor shall Purchaser be otherwise
liable in tort or contract for any obligations of Seller to any Defendant in respect of any of the Claims.
2.6 True Sale. Seller and Purchaser intend and agree that the transactions contemplated by the
Transaction Documents shall constitute a true sale and absolute transfer of the Purchaser’s Share to
Purchaser, thereby providing Purchaser with the full risks and benefits of ownership of the Purchaser’s
Share, and each of Seller and Purchaser agrees that the transactions contemplated by the Transaction
Documents shall be reflected on their respective books and records in a manner consistent with this intent
and agreement. Notwithstanding that Seller and Purchaser intend that this transaction be a true sale, in the
event that such sale and assignment ever is characterized as a loan or other financial accommodation and
not as a true sale, or that such sale shall for any reason be ineffective or unenforceable as such, each as
determined in a judicial, administrative or other proceeding, Seller is agreeing to Article X to grant to
Purchaser a first-priority security interest in the Collateral.
ARTICLE III
DISTRIBUTION OF LITIGATION PROCEEDS
3.1 Priority of Payment.
10
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3.2 Non-Recourse. If there are no Litigation Proceeds, then no amount shall be payable to
Purchaser under Section 3.1, and the Deployments will be non-recourse to Seller. If there are Litigation
Proceeds but they are less than the amount necessary to pay Purchaser the entirety of Purchaser’s Share,
Seller shall not be obligated to pay to Purchaser the difference between Purchaser’s Share and the Litigation
Proceeds, and that difference will be non-recourse to the Seller. Nothing in this Section 3.2 shall limit
Seller’s liability under Article IX, which shall be full recourse to Seller and which obligations shall be
secured pursuant to Article X.
3.3 Tax Matters.
(a) Seller shall pay any and all Taxes (other than Taxes imposed upon Purchaser as a
consequence of Purchaser’s income) imposed on Seller in connection with, or as a result of, the Litigation
Proceeds or as a consequence of any Settlement or Business Deal.
(b) No Tax payment, liability or obligation of Seller shall operate to reduce any
amount payable to Purchaser under this Agreement. If any such reduction or withholding is required by
law, Seller shall (i) promptly notify Purchaser upon becoming aware of the required deduction or
withholding; (ii) pay to the relevant authorities (within the time allowed) the full amount required to be
deducted or withheld (including the full amount required to be deducted or withheld from any additional
amount paid by Seller to Purch
Preview
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 EXHIBIT E FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL PREPAID FORWARD PURCHASE AGREEMENT BY AND BETWEEN ON THE ONE HAND, AND YASEMIN BAHAR TEKINER AND ZEYNEP S. TEKINER, ON THE OTHER HAND DATED AS OF JUNE 21, 2022 LP 21077386.10 \ 43541-132729 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL TABLE OF CONTENTS Page ARTICLE I DEFINITIONS ......................................................................................................................... 1 1.1 Definitions..................................................................................................................................... 1 ARTICLE II TERMS OF PURCHASE ........................................................................................................ 7 2.1 Commitment and Deployments .................................................................................................... 7 2.2 Use of Deployments ...................................................................................................................... 8 2.3 Deployment Procedure.................................................................................................................. 8 2.4 Termination and Reduction of Commitment .............................................................................. 10 2.5 No Affirmative Liability ............................................................................................................. 10 2.6 True Sale ..................................................................................................................................... 10 ARTICLE III DISTRIBUTION OF LITIGATION PROCEEDS .............................................................. 10 3.1 Priority of Payment ..................................................................................................................... 10 3.2 Non-Recourse ............................................................................................................................. 11 3.3 Tax Matters ................................................................................................................................. 11 3.4 Interest on Overdue Amounts ..................................................................................................... 11 ARTICLE IV SETTLEMENT .................................................................................................................... 12 4.1 Right to Settle ............................................................................................................................. 12 4.2 Communication of Settlement Offers ......................................................................................... 12 4.3 Settlements and other Resolutions ................................................. 12 4.4 Settlement Agreement ................................................................................................................. 12 ARTICLE V LITIGATION MANAGEMENT .......................................................................................... 12 5.1 Control of the Litigation ............................................................................................................. 12 5.2 New Counsel ............................................................................................................................... 13 5.3 Engagement Agreements ............................................................................................................ 13 5.4 Conduct of the Litigation ............................................................................................................ 13 5.5 Disclosure of Interest .................................................................................................................. 13 ARTICLE VI LITIGATION INFORMATION; CONFIDENTIALITY .................................................... 13 6.1 Communication of Litigation Information .................................................................................. 13 6.2 Confidentiality ............................................................................................................................ 14 ARTICLE VII REPRESENTATIONS AND WARRANTIES .................................................................. 14 7.1 Mutual Representations and Warranties ..................................................................................... 14 7.2 Seller’s Additional Representations and Warranties ................................................................... 15 ARTICLE VIII TERMINATION OF AGREEMENT ............................................................................... 17 8.1 Termination ................................................................................................................................. 17 8.2 Consequences of Termination..................................................................................................... 17 8.3 Clawback..................................................................................................................................... 18 ARTICLE IX INDEMNIFICATION; RECOURSE EVENTS .................................................................. 18 9.1 Seller Indemnity .......................................................................................................................... 18 9.2 Recourse Events .......................................................................................................................... 18 9.3 Joint and Several Liability .......................................................................................................... 19 ARTICLE X SECURITY AGREEMENT .................................................................................................. 19 10.1 Grant of Security Interest ............................................................................................................ 19 10.2 Continuing Security Interest ....................................................................................................... 20 10.3 Financing Statements .................................................................................................................. 20 i FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL 10.4 Additional Representations and Warranties of Seller Relating to Security Interest ................... 20 10.5 Covenants .................................................................................................................................... 21 10.6 Remedies and Applications of Proceeds ..................................................................................... 21 10.7 Certain Waivers .......................................................................................................................... 22 10.8 Attorney-in-Fact .......................................................................................................................... 22 ARTICLE XI GOVERNING LAW; JURISDICTION AND VENUE; DISPUTES .................................. 22 11.1 Governing Law ........................................................................................................................... 22 11.2 Arbitration of Disputes................................................................................................................ 22 ARTICLE XII NOTICES ........................................................................................................................... 23 12.1 Method ........................................................................................................................................ 23 12.2 Receipt ........................................................................................................................................ 23 ARTICLE XIII GENERAL ........................................................................................................................ 23 13.1 Acknowledgment ........................................................................................................................ 23 13.2 Interpretation ............................................................................................................................... 23 13.3 Survival of Representations, Warranties, Covenants and Indemnities ....................................... 23 13.4 Merger Clause ............................................................................................................................. 23 13.5 Confidentiality ............................................................................................................................ 24 13.6 Assignment ................................................................................................................................. 24 13.7 Third Party Beneficiaries ............................................................................................................ 24 13.8 Independent Parties ..................................................................................................................... 24 13.9 Costs, Expenses and Fees............................................................................................................ 24 13.10 Amendment; Waiver ............................................................................................................... 24 13.11 Counterparts ............................................................................................................................ 24 13.12 Severability ............................................................................................................................. 25 13.13 Further Assurances .................................................................................................................. 25 Exhibits and Schedules: Exhibit A Wire and Notice Information Exhibit B Form of Deployment Request Exhibit C Engagement Agreements Schedule 7.2(c) Capitalization of Relevant Entities Schedule 7.2(s) Assets Schedule 7.2(t) Indebtedness ii FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL PREPAID FORWARD PURCHASE AGREEMENT This Prepaid Forward Purchase Agreement, dated as of June 21, 2022, is by and between , a Delaware limited liability company (“Purchaser”), on the one hand, and Yasemin Bahar Tekiner (“Yasemin”), and Zeynep S. Tekiner (“Zeynep”), on the other hand, each in their individual capacities and as respective beneficiaries of The Yasemin Tekiner 2011 Descendants Trust and The Zeynep Tekiner Ozaltin 2011 Descendants Trust, and derivatively as holders of equitable interests in a shareholder or member of any Defendant to the Litigation (as such terms are defined below). “Seller” means both (a) each of Yasemin and Zeynep, separately, and (b) both of Yasemin and Zeynep, collectively, and jointly and severally. “Parties” means, collectively, Purchaser and Seller. ARTICLE I DEFINITIONS 1.1 Definitions. The following capitalized terms shall have the meanings specified in this Section 1.1. Other terms are defined in the text of this Agreement and those terms shall have the meanings respectively assigned to them. “254-258 LLC” means 254-258 W 35th ST LLC, a New York limited liability company. “AAA” means the American Arbitration Association or its successor. “Adverse Effect” means any one or more of the following: an adverse effect on any of (a) the Claims or the Litigation, or the value or viability thereof, (b) the rights of Purchaser under Article X, (c) the financial condition or assets of Seller, Yasemin Trust, Zeynep Trust or the Defendants in the Litigation or (d) the ability of Purchaser to enforce its rights and remedies under the Transaction Documents. “Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with such Person. Solely for purposes of this definition of Affiliate, “Control” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies or affairs of a Person, whether through ownership of voting securities of a Person, by contract or otherwise. “Agreement” means this Prepaid Forward Purchase Agreement, as amended from time to time in accordance with Section 13.10, including all Exhibits and Schedules. “Bankruptcy Code” means the Bankruptcy Code of the United States of America. “Berrin” means Berrin Tekiner. “BHI” means Bremen House, Inc., a New York corporation. “BHT” means Bremen House Texas, Inc., a Delaware corporation. “Business Day” means any day that is not a Saturday, a Sunday or a public holiday on which banks are authorized or required to be closed under the laws of the State of Delaware. “Business Deal” means any transaction or arrangement relating to the Litigation or the Claims entered into by Seller and any Person, whereby such Person provides a benefit to Seller, any of Seller’s Affiliates, Yasemin Trust or Zeynep Trust, including any transaction or arrangement with any Defendant. 1 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL “Claims” means the claims that Seller has against each Defendant and any related claims. “Code” means the Internal Revenue Code of 1986, as amended, and the regulations in effect thereunder. “Collateral” shall have the meaning assigned to such term in Section 10.1. “Commitment” shall have the meaning assigned to such term in Section 2.1. “Commitment Amount” shall have the meaning assigned to such term in Section 2.1. “Confidential Information” means any information relating to: (a) the Transaction Documents, including any discussions and negotiations related thereto, the existence of them, or the identity of the Parties or their respective Affiliates; the Litigation or the Claims, including the names of the parties and potential other parties to the Claims; the factual, legal, technical, economic and financial background of the Claims; the procedural status of the Claims; the planned legal and procedural strategies and tactics for the pursuing of the Claims or Settlement, or a Business Deal, or collection of the Litigation Proceeds; and the expected recoveries from the Claims; (b) factual information, evidentiary information, legal theories, procedures, decision trees, experts’ or other consultants’ reports, attorney or other professional work product; (c) billing arrangements, billing rates, financial arrangements, contingent fee agreements, contingent fee percentages, costs, finances, investments, investors, price lists, pricing, profit margins, profitability and quotations; (d) any financial statements and information, data, documents, reports and materials relating to the Litigation or the Claims; (e) information concerning accountants, agents, law firms, lawyers and advisors; and (f) other proprietary or nonpublic information, data or material, in all cases regardless of whether such information is (i) written or oral, irrespective of the form or storage medium, and (ii) specifically identified as “confidential” or which, by virtue of its nature, would be understood to be confidential by a reasonable Recipient. “Confidential Information” includes analytics derived from other Confidential Information. “Confidential Information” does not include information that (x) was or becomes generally available to the public other than as a result of a disclosure by the Recipient in violation of this Agreement or the Confidentiality Agreement; (y) was actually known to the Recipient on a non-confidential basis prior to its disclosure; or (z) was developed independently of the information derived from the Confidential Information. “Confidentiality Agreement” shall have the meaning assigned to such term in Section 13.5. “Counsel” means Current Counsel and/or any New Counsel. “Counsel Fees” means, collectively, the PIB Fees, the FH Fees, the GS&S Fees and the K&G Fees. “Court” means the courts or other tribunals in which the Litigation is conducted. 2 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL “Current Counsel” means, individually and collectively, PIB, FH, GS&S and K&G. “Current Counsel Instruction Letter” means the letter, in a form approved by Purchaser, from Seller to Current Counsel, and agreed to by Current Counsel, that relates to the payment of the Litigation Proceeds to Purchaser pursuant to this Agreement. “Debtor Relief Law” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. “Default Rate” means a rate per annum equal to the lesser of “Defendant” means, individually and collectively, BHI, BHT, GNC, GNT, 254-258 LLC, Berrin, Gonca, Billur Akipek and any other defendant to the Litigation, and each of the successors and assigns of the foregoing. “Deployment” shall have the meaning assigned to such term in Section 2.1. “Deployment Completion Date” means the earlier of (a) the date on which the Total Deployments (excluding Purchaser’s Transaction Costs) have reached the Commitment Amount, or (b) Final Resolution. “Deployment Request” shall have the meaning assigned to such term in Section 2.3(f). “Disclosing Party” means the Party to this Agreement who provides Confidential Information to the Recipient. “Encumbrance” means any mortgage, pledge, lien, security or ownership interest, charge, hypothecation, or other encumbrance, option agreement, transfer, set-off right, security or subordination arrangement, or other similar interest or arrangement of any kind. “Engagement Agreements” shall have the meaning assigned to such term in Section 7.2(m). “FH” means Foley Hoag LLP, a Massachusetts limited liability partnership. “FH Fees” means the time-based attorneys’ fees incurred by Seller for legal services by FH in connection with the Litigation. “Final Resolution” means the resolution of the Litigation that substantially concludes the Litigation with respect to Seller pursuant to (a) a final, non-appealable, legal and valid judgment of the Court binding all Defendants, or (b) a Settlement agreement or agreements between Seller and all Defendants. “Financing Statement Collateral” shall have the meaning assigned to such term in Section 10.4(c). “GNC” means German News Company, Inc., a New York corporation. “GNT” means German News Texas, Inc., a Delaware corporation. “Gonca” means Gonca Tekiner. 3 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL “Governmental Authority” means any court, tribunal, arbitrator, authority, agency, commission, official, body or other instrumentality of the United States, any foreign country, or any domestic or foreign state, province, county, city, other political subdivision or any other similar body or organization exercising governmental or quasi-governmental power or authority. “GS&S” means Greenfield Stein & Senior, LLP, a New York limited liability partnership. “GS&S Fees” means the time-based attorneys’ fees incurred by Seller for legal services by GS&S in connection with the Litigation. “Indebtedness” means (a) all principal and accrued (but unpaid) interest owing by a Person for indebtedness for borrowed money owed to any third-party, (b) all indebtedness of a Person evidenced by notes, debentures, bonds or other similar instruments, (c) all obligations of a Person as lessee or lessees under leases that have been recorded by such Person as capital leases, (d) the deferred purchase price of property or services (excluding trade payables and accrued expenses arising in the ordinary course of business) of a Person, (e) all obligations of a Person under exchange rate contracts or interest rate protection agreements, (f) any obligation of a Person to reimburse the issuer of any letter of credit, surety bond, performance bond or other guarantee of contractual performance, in each case to the extent drawn or otherwise not contingent, (g) any obligation of a Person to current or former equity holders, or current or former employees, of such Person (excluding compensation arising in the ordinary course of business consistent with past practice), (h) any guaranty by a Person of any liability or obligation described in the immediately preceding clauses (a) through (g), and (i) any payments, fines, fees, penalties or other amounts applicable to or otherwise incurred by a Person in connection with or as a result of any prepayment or early satisfaction of any obligation described in the immediately preceding clauses (a) through (h). “Instruction Letter” means the Current Counsel Instruction Letter and/or any New Counsel Instruction Letter. “K&G” means Kahn & Goldberg, LLP, a New York limited liability partnership. “K&G Fees” means the time-based attorneys’ fees incurred by Seller for legal services by K&G in connection with the Litigation. “Litigation” means, individually and collectively, the cases captioned (a) Yasemin Tekiner et al. v. Bremen House Inc., et al., Index No. 657193/20, in the Supreme Court of the State of New York, and , together with (i) any and all claims, suits, causes of action, proceedings, and other rights relating to, or arising therefrom, (ii) any and all appellate proceedings, proceedings on remand, and enforcement, ancillary, parallel or alternate dispute resolution proceedings and processes arising out of or related thereto, and (iii) any additional cases, lawsuits, arbitration matters, bankruptcy proceedings, receivership actions, settlements or other formal or informal proceedings filed or initiated by or on behalf of Seller, any of Seller’s Affiliates, Yasemin Trust or Zeynep Trust based upon the same or substantially similar business dealings, facts or claims. “Litigation Expenses” means the reasonable out-of-pocket costs incurred by or on behalf of Seller related to the Litigation, including expert witness fees and costs, but excluding the Counsel Fees. 4 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL “Litigation Proceeds” means any and all proceeds, receivables, property, cash, concessions and other consideration payable or transferred directly or indirectly to or for the benefit of Seller, any of Seller’s Affiliates, Yasemin Trust or Zeynep Trust in connection with the Litigation or any Claims (whether by judgment, Settlement, Business Deal or otherwise), including any damages (punitive or otherwise), penalties, interest, award of attorneys’ fees and the reimbursement for costs and expenses, and other amounts paid or property transferred or concessions made to or for the benefit of Seller, any of Seller’s Affiliates, Yasemin Trust or Zeynep Trust in respect of the Litigation or any Claims. “Losses” shall have the meaning assigned to such term in Section 9.l(a). “New Counsel” means any substitute or additional legal counsel engaged by Seller with respect to the Claims or the Litigation. “New Counsel Instruction Letter” shall have the meaning assigned to such term in Section 5.2. “Order” means any order, judgment, ruling, injunction, award, decree or writ of any Governmental Authority. 5 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL “Parties” shall have the meaning assigned to such term in the introduction to this Agreement. “Person” means any natural person, corporation, partnership, limited liability company, joint stock company, joint venture, association, company, estate, trust or other organization, whether or not a legal entity, custodian, trustee, executor, administrator, nominee or entity in a representative capacity and any Governmental Authority. “PIB” means Parker Ibrahim & Berg LLP, a New Jersey limited liability partnership. “PIB Fees” means the time-based attorneys’ fees incurred by Seller for legal services by PIB in connection with the Litigation. “Pre-Closing Expense Deployment” shall have the meaning assigned to such term in Section 2.2(e). “Pre-Closing FH Deployment” shall have the meaning assigned to such term in Section 2.2(b). “Pre-Closing GS&S Deployment” shall have the meaning assigned to such term in Section 2.2(c). “Pre-Closing K&G Deployment” shall have the meaning assigned to such term in Section 2.2(d). “Pre-Closing PIB Deployment” shall have the meaning assigned to such term in Section 2.2(a). “Proceeds” shall have the meaning assigned to such term in Section 9-102(64) of the UCC. “Protective Order” means a stipulated order to protect confidential information prepared by the parties to the Litigation and ordered by the Court. “Purchaser” shall have the meaning assigned to such term in the introduction to this Agreement. “Purchaser’s Transaction Costs” shall have the meaning assigned to such term in Section 13.9. “Recipient” means the Party to this Agreement receiving Confidential Information from the Disclosing Party. “Records” shall have the meaning assigned to such term in the UCC. “Recourse Event” shall have the meaning assigned to such term in Section 9.2. “Secured Obligations” means, collectively: (a) the prompt payment by Seller, as and when due, of the Purchaser’s Share to Purchaser and the due performance by Seller of all of its obligations in respect of the Transaction Documents; (b) all other debts, liabilities, obligations, covenants and duties of Seller owing to Purchaser now or hereafter existing, whether direct or indirect, absolute or contingent or due or to become due, arising under or in connection with the Transaction Documents or any of the transactions contemplated thereby and including any interest due thereon and all fees, costs and expenses due to Purchaser under the terms of this Agreement; (c) all debts, liabilities, obligations, covenants and duties of Seller to pay or reimburse Purchaser for all expenses, including attorneys’ fees, incurred by Purchaser in connection with the enforcement, attempted enforcement or preservation of any rights or remedies under the Transaction Documents, including all such costs and expenses incurred during any legal proceeding, including any 6 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL proceeding under any applicable bankruptcy, insolvency or other similar Debtor Relief Laws; and (d) all interest and fees on any of the foregoing, whether accruing prior to or after the commencement by or against Seller of any proceeding under any applicable bankruptcy, insolvency or other similar Debtor Relief Laws naming Seller as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. “Seller” shall have the meaning assigned to such term in the introduction to this Agreement. “Settlement” means “Taxes” means any and all applicable taxes, duties, charges or levies of any nature imposed by any taxing or other Governmental Authority, including income, gains, capital gains, surtax, capital, franchise, capital stock, value-added taxes, taxes required to be deducted from payments made by the payor and accounted for to any tax authority, employees’ income withholding, back-up withholding, withholding on payments to foreign Persons, social security, national insurance, unemployment, worker’s compensation, payroll, disability, real property, personal property, sales, use, goods and services or other commodity taxes, business, occupancy, excise, customs and import duties, transfer, stamp and other taxes (including interest, penalties or additions to tax in respect of the foregoing), and includes all taxes payable pursuant to any provision of state, local or foreign law. “Total Deployments” shall have the meaning assigned to such term in Section 2.1. “Transaction Documents” means, collectively, this Agreement, the Confidentiality Agreement and any other agreement, document or instrument contemplated hereby or delivered in connection herewith or therewith, including any Instruction Letter (which letter shall be binding on the signatories thereto as specifically set forth therein). “UCC” means the Uniform Commercial Code as in effect on the date hereof in the State of Delaware or, in relation to the perfection or priority of a security interest, the Uniform Commercial Code that then governs under the choice of law rules applicable to questions of perfection or priority. “Yasemin Trust” means The Yasemin Tekiner 2011 Descendants Trust, including, with respect to any reference involving action by the aforementioned trust, the trustee, members of the trustee committee, members of the protector committee, and any other fiduciaries of Yasemin Trust. “Zeynep Trust” means The Zeynep Tekiner Ozaltin 2011 Descendants Trust, including, with respect to any reference involving action by the aforementioned trust, the trustee, members of the trustee committee, members of the protector committee, and any other fiduciaries of Zeynep Trust. ARTICLE II TERMS OF PURCHASE 2.1 Commitment and Deployments. Subject to the terms and conditions of this Agreement (including Section 13.9), Purchaser commits (the “Commitment”) to make payments to Seller or on Seller’s behalf (each payment, a “Deployment,” and the total of such payments, together with Purchaser’s Transaction Costs, the “Total Deployments”), at any time and from time to time from the date of this Agreement until the Deployment Completion Date (unless (a) the Commitment is terminated earlier in 7 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL accordance with the terms of this Agreement, or (b) Purchaser agrees in writing to make Deployment(s) after the Deployment Completion Date), . The Commitment is not revolving. In consideration of the Commitment, Seller hereby sells, assigns and transfers to Purchaser, free and clear of any Encumbrance, all rights, title, benefits and interests of Seller in and to Purchaser’s Share. 2.2 Use of Deployments. Except for Purchaser’s Transaction Costs, Deployments made under this Agreement are only for payment by Seller or on Seller’s behalf of: 2.3 Deployment Procedure. (a) Pre-Closing PIB Deployment. Purchaser shall fund the Pre-Closing PIB Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby directs Purchaser to pay to PIB on behalf of Seller. Prior to the date of this Agreement, Seller has provided an invoice detailing the amount described in this clause, which invoice is in a form reasonably acceptable to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate said amount. (b) Pre-Closing FH Deployment. Purchaser shall fund the Pre-Closing FH Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby directs Purchaser to pay to FH on behalf of Seller. Prior to the date of this Agreement, Seller has provided an invoice detailing the amount described in this clause, which invoice is in a form reasonably acceptable 8 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate said amount. (c) Pre-Closing GS&S Deployment. Purchaser shall fund the Pre-Closing GS&S Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby directs Purchaser to pay to GS&S on behalf of Seller. Prior to the date of this Agreement, Seller has provided an invoice detailing the amount described in this clause, which invoice is in a form reasonably acceptable to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate said amount. (d) Pre-Closing K&G Deployment. Purchaser shall fund the Pre-Closing K&G Deployment within fifteen (15) Business Days after the date of this Agreement, all of which Seller hereby directs Purchaser to pay to K&G on behalf of Seller. Prior to the date of this Agreement, Seller has provided an invoice detailing the amount described in this clause, which invoice is in a form reasonably acceptable to Purchaser, along with invoices or other documentation acceptable to Purchaser to substantiate said amount. (e) Pre-Closing Expense Deployment. Purchaser shall fund the Pre-Closing Expense Deployment within fifteen (15) Business Days after the date of this Agreement, (f) Other Deployments. Beginning with the calendar month after the calendar month that includes the date of this Agreement, and no more than once per calendar month until the Deployment Completion Date, Seller may submit a written request (a “Deployment Request”) to Purchaser for each desired Deployment in the form of Exhibit B. Purchaser shall disburse such Deployment to Seller or the ultimate payee on Seller’s behalf; provided that: (i) Seller provides an invoice detailing the out-of-pocket costs and fees incurred by Seller in accordance with the uses permitted under Section 2.2, which invoice will be in form and substance reasonably acceptable to Purchaser and which costs and fees were not paid by a previous Deployment, along with invoices or other documentation acceptable to Purchaser to substantiate said costs and fees; (ii) No breach or default by Seller exists, and remains uncured, under any of the Transaction Documents as of the date of such request or the funding of the related Deployment; (iii) The Deployment Request is in the form of Exhibit B or otherwise contains a certification by Seller that, as of the date of such request, (i) no breach or default by Seller exists under any of the Transaction Documents, and (ii) Seller’s representations and warranties in or in connection with the Transaction Documents remain true and correct in all material respects; and (iv) Subject to the terms of this Agreement, within fifteen (15) Business Days of Purchaser’s receipt of the Deployment Request, Purchaser shall disburse the Deployment in immediately available funds to or on behalf of Seller in accordance with “Seller’s Wire Instructions” set forth on Exhibit A or as Seller otherwise directs pursuant to written instructions confirmed by telephone. 9 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL For the avoidance of doubt, Section 2.3(f) does not apply to any out-of-pocket costs and fees incurred prior to the date of this Agreement. 2.4 Termination and Reduction of Commitment. If an Adverse Effect occurs, as determined by Purchaser in its sole discretion, then, at any time thereafter and upon written notice to Seller, Purchaser may terminate Purchaser’s obligations with respect to any unfunded portion of the Commitment. 2.5 No Affirmative Liability. Under no circumstances shall Purchaser have any obligation to pay any sums awarded against Seller, including fees, costs or awards, nor shall Purchaser be otherwise liable in tort or contract for any obligations of Seller to any Defendant in respect of any of the Claims. 2.6 True Sale. Seller and Purchaser intend and agree that the transactions contemplated by the Transaction Documents shall constitute a true sale and absolute transfer of the Purchaser’s Share to Purchaser, thereby providing Purchaser with the full risks and benefits of ownership of the Purchaser’s Share, and each of Seller and Purchaser agrees that the transactions contemplated by the Transaction Documents shall be reflected on their respective books and records in a manner consistent with this intent and agreement. Notwithstanding that Seller and Purchaser intend that this transaction be a true sale, in the event that such sale and assignment ever is characterized as a loan or other financial accommodation and not as a true sale, or that such sale shall for any reason be ineffective or unenforceable as such, each as determined in a judicial, administrative or other proceeding, Seller is agreeing to Article X to grant to Purchaser a first-priority security interest in the Collateral. ARTICLE III DISTRIBUTION OF LITIGATION PROCEEDS 3.1 Priority of Payment. 10 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:21 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1547 RECEIVED NYSCEF: 04/11/2023 CONFIDENTIAL 3.2 Non-Recourse. If there are no Litigation Proceeds, then no amount shall be payable to Purchaser under Section 3.1, and the Deployments will be non-recourse to Seller. If there are Litigation Proceeds but they are less than the amount necessary to pay Purchaser the entirety of Purchaser’s Share, Seller shall not be obligated to pay to Purchaser the difference between Purchaser’s Share and the Litigation Proceeds, and that difference will be non-recourse to the Seller. Nothing in this Section 3.2 shall limit Seller’s liability under Article IX, which shall be full recourse to Seller and which obligations shall be secured pursuant to Article X. 3.3 Tax Matters. (a) Seller shall pay any and all Taxes (other than Taxes imposed upon Purchaser as a consequence of Purchaser’s income) imposed on Seller in connection with, or as a result of, the Litigation Proceeds or as a consequence of any Settlement or Business Deal. (b) No Tax payment, liability or obligation of Seller shall operate to reduce any amount payable to Purchaser under this Agreement. If any such reduction or withholding is required by law, Seller shall (i) promptly notify Purchaser upon becoming aware of the required deduction or withholding; (ii) pay to the relevant authorities (within the time allowed) the full amount required to be deducted or withheld (including the full amount required to be deducted or withheld from any additional amount paid by Seller to Purch