Preview
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed
Tekiner
April 12, 2022
settlements, or other formal or informal proceedings filed or
efforts undertaken by or on behalf of Counterparty against or with
any defendants based on the same or substantially similar business
dealings, facts or claims.
The Commitment shall include five sub-Commitments:
(i)
to support
attorneys’ fees incurred by Parker Ibrahim & Berg after
the close of this Transaction in connection with the
prosecution of the Litigation; provided, however, that
of this sub-Commitment, plus additional
amounts incurred prior to the closing of the Transaction
may be drawn
for fees incurred prior to the close of this
Transaction;
(ii) to support
attorneys’ fees incurred by
Foley Hoag LLP after the close of this Transaction in
connection with the prosecution of the Litigation;
provided, however,
of this sub-Commitment, plus
additional amounts incurred prior to the closing of the
Transaction , may
be drawn for fees incurred prior to the close of
this Transaction;
(iii)
to support attorneys’
fees incurred by Greenfield Stein & Senior, LLP after the
close of this Transaction in connection with the
prosecution of the Litigation; provided, however, [$X]
($[X]) of this sub-Commitment, plus additional amounts
incurred prior to the closing of the Transaction
, may be drawn for
fees incurred prior to the close of this
Transaction;
(iv)
to support attorneys’
fees incurred by Kahn & Goldberg, LLP after the close of
this Transaction in connection with the prosecution of the
2
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed
Tekiner
April 12, 2022
Litigation2; provided, however,
, may be drawn for fees
incurred prior to the close of this Transaction;
(v) to
support expert witness-related and other out-of-pocket
costs incurred in connection with the prosecution of the
Litigation, which fees and costs are incurred on or after
the closing of the Transaction; provided, however, that up
to may be drawn for such
costs incurred prior to the close of this Transaction.
At the Investor’s discretion, unused funding
Commitments may be re-allocate from one law firm listed
above to another.
Transaction A prepaid forward purchase agreement secured by the Litigation
Proceeds. “Litigation Proceeds” means any and all consideration
payable or transferred directly or indirectly to or for the benefit of
any Counterparty in connection with the Litigation, including
from any settlements, judgments, arbitration awards, business
resolution, or otherwise.
Funding of the Commitment Counterparties may periodically draw amounts from the
2
3
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed
Tekiner
April 12, 2022
Commitment (each draw, a “Deployment,” and collectively, the
“Deployments”).
Deployments shall be disbursed directly to a Counterparty, their
counsel, or vendors involved in the prosecution of the Litigation.
. Upon any request supported by invoices and other
documentation, Investor shall wire the requested amount within
15 (fifteen) business days.
The Commitment may not be used for any amounts that are
ordered to be paid by a Counterparty to any opposing party, third
parties, or into the court or other dispute resolution tribunal.
Return on Investment In exchange for the Commitment, Counterparties shall distribute
to Investor an amount of the Litigation Proceeds equal to the sum
of (a) the total Deployments plus (b) the product of the Multiple
times the total Deployments (such sum, the “Return on
Investment.”)
The “Multiple” shall equal ; provided, that if the full Return
on Investment is not paid to Investor by
the Multiple will increase to
.
Notwithstanding the foregoing, the Return on Investment shall be
no less than the sum of the total Deployments plus
.
Counterparties will satisfy their obligation to pay Investor its full
Return on Investment before making any other payments from the
Litigation Proceeds to any other person or entity, including
Counterparties’ counsel3, other law firms or creditors.
For avoidance of doubt, if the Litigation terminates unfavorably
such that there are no Litigation Proceeds, then in such a case, all
Deployments shall be non-recourse to Counterparties.
Equitable Resolution Notwithstanding anything to the contrary, if there is any equitable
resolution in the Litigation or other event during or in connection
with the Litigation which results in
3
As of the date of this Term Sheet, Counterparty Yasemin Tekiner
4
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed
Tekiner
April 12, 2022
, then
all of Counterparties’ interests in the Properties shall be deemed
Litigation Proceeds, and the Counterparties shall take reasonable
efforts to monetize Litigation Proceeds to the extent necessary to
pay amounts payable to Investor in connection.
Commitment Not Revolving The Commitment is not revolving. Upon each Deployment, the
total remaining Commitment shall be reduced by an equal amount.
Collateral The Transaction will be secured by a first priority perfected
security interest in the Litigation Proceeds and related collateral
only (together, the “Collateral”), and Investor may file an “all
assets” UCC financing statement to evidence its security interest
in the Collateral.
Assignments of Collateral Counterparties warrant that, ,
they previously have not and also agree that they shall not sell,
assign, or otherwise dispose of any interest in, under, or to the
Collateral to any person without the prior written consent of
Investor.
Control of Litigation Investor does not seek contractual or other rights to direct,
supervise, manage, or otherwise control the Litigation. Investor
shall have no authority to direct Counterparties or their counsel
and shall not request, receive, or otherwise become party to
attorney-client privileged communications between
Counterparties and their counsel. Counterparties shall have sole
authority to accept or reject proposed settlements related to any
litigation. Should Counterparties and their counsel continue the
Litigation or pursue future related litigation or arbitration, it shall
be based on the independent belief that the claims are meritorious
and independent of any encouragement or interference from
Investor. The Transaction in no way constrains Counterparties’
or their counsel’s ability to decline to pursue litigation or
arbitration for any reason, including should Counterparties or their
counsel determine that litigation or arbitration is not meritorious.
Confidentiality The Parties hereby confirm that the existence and contents of this
Term Sheet, related discussions between the Parties, and any
ultimate Transaction shall be held in the strictest confidence
pursuant to the terms of the Mutual Non-Disclosure and Common
Interest Agreement between Investor and Yasemin Tekiner, dated
February 28, 2022. Investor and Zeynep Tekiner shall also
endeavor to enter into a similar Mutual Non-Disclosure and
Common Interest Agreement as soon as practicable.
5
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed
Tekiner
April 12, 2022
Conditions to Closing (i) Investor’s satisfaction with its due diligence investigation of
Counterparties, the Litigation, and counsel’s engagements and
budgets, and the valuation of the Properties, and (ii) execution of
the Transaction Documents.
Transaction Documents Provided that Investor is satisfied with its due diligence
investigation and counsel’s engagements, Counterparties will
endeavor in good faith to negotiate and execute the Transaction
Documents as soon as practicable after signing this Term Sheet.
Transaction Costs Counterparties shall be responsible for: (i) a one-time diligence
and documentation fee of (the
“Transaction Costs”) and (ii) Counterparties’ own out-of-pocket
costs and expenses incurred in connection with the Transaction.
Transaction Costs shall be payable upon the closing of the
Transaction, and Transaction Costs shall be treated as a
Deployment paid on the date the Transaction Documents are
executed.
No Shop In consideration of efforts to be expended by Investor in
connection with due diligence and documentation of the
Transaction, for a period of 30 days from the date of execution of
this Term Sheet, neither Counterparties nor any representative or
affiliate of Counterparties will, directly or indirectly, enter into,
solicit or encourage, or furnish information with respect to, any
loan, sale, investment, or other transaction involving the
Litigation, other than as contemplated by this Term Sheet. The
foregoing restriction will automatically renew for subsequent 15-
day periods unless Counterparties have notified Investor in
writing to the contrary at least seven days before the end of the
30-day term. During such 30-day term and subsequent renewal
terms, if any, Counterparties will promptly notify Investor of their
receipt of any offer, proposal, or solicitation concerning any type
of loan, sale, investment, or other transaction involving the
Litigation. From the date of execution hereof through the date the
Transaction Documents are executed, Counterparties will
cooperate with Investor in Investor’s due diligence investigation.
Governing Law; Venue Any controversy or claim arising out of or relating to this Term
Sheet shall be decided in accordance with Delaware law, without
reference to Delaware’s choice of law rules (as this is the state of
organization of Investor), and settled by arbitration in Chicago,
Illinois administered by the American Arbitration Association
under its Commercial Arbitration Rules.
Execution of Term Sheet This Term Sheet may be executed in any number of counterparts,
6
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed
Tekiner
April 12, 2022
each of which shall be deemed an original for all purposes and all
of which shall constitute, collectively, one agreement.
Transmission by electronic mail or other form of electronic
transmission of an executed counterpart of this Term Sheet will be
deemed to constitute due and sufficient delivery of such
counterpart.
Expiration The offer proposed by this Term Sheet expires if not accepted by
April 12, 2022.
SIGNATURE PAGE FOLLOWS
7
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020
NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023
Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed
Tekiner
April 12, 2022
If the foregoing confirms our agreement, please sign and return this Term Sheet to the undersigned.
Sincerely,
AGREED:
YASEMIN TEKINER ZEYNEP TEKINER
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
8
Preview
FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed Tekiner April 12, 2022 settlements, or other formal or informal proceedings filed or efforts undertaken by or on behalf of Counterparty against or with any defendants based on the same or substantially similar business dealings, facts or claims. The Commitment shall include five sub-Commitments: (i) to support attorneys’ fees incurred by Parker Ibrahim & Berg after the close of this Transaction in connection with the prosecution of the Litigation; provided, however, that of this sub-Commitment, plus additional amounts incurred prior to the closing of the Transaction may be drawn for fees incurred prior to the close of this Transaction; (ii) to support attorneys’ fees incurred by Foley Hoag LLP after the close of this Transaction in connection with the prosecution of the Litigation; provided, however, of this sub-Commitment, plus additional amounts incurred prior to the closing of the Transaction , may be drawn for fees incurred prior to the close of this Transaction; (iii) to support attorneys’ fees incurred by Greenfield Stein & Senior, LLP after the close of this Transaction in connection with the prosecution of the Litigation; provided, however, [$X] ($[X]) of this sub-Commitment, plus additional amounts incurred prior to the closing of the Transaction , may be drawn for fees incurred prior to the close of this Transaction; (iv) to support attorneys’ fees incurred by Kahn & Goldberg, LLP after the close of this Transaction in connection with the prosecution of the 2 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed Tekiner April 12, 2022 Litigation2; provided, however, , may be drawn for fees incurred prior to the close of this Transaction; (v) to support expert witness-related and other out-of-pocket costs incurred in connection with the prosecution of the Litigation, which fees and costs are incurred on or after the closing of the Transaction; provided, however, that up to may be drawn for such costs incurred prior to the close of this Transaction. At the Investor’s discretion, unused funding Commitments may be re-allocate from one law firm listed above to another. Transaction A prepaid forward purchase agreement secured by the Litigation Proceeds. “Litigation Proceeds” means any and all consideration payable or transferred directly or indirectly to or for the benefit of any Counterparty in connection with the Litigation, including from any settlements, judgments, arbitration awards, business resolution, or otherwise. Funding of the Commitment Counterparties may periodically draw amounts from the 2 3 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed Tekiner April 12, 2022 Commitment (each draw, a “Deployment,” and collectively, the “Deployments”). Deployments shall be disbursed directly to a Counterparty, their counsel, or vendors involved in the prosecution of the Litigation. . Upon any request supported by invoices and other documentation, Investor shall wire the requested amount within 15 (fifteen) business days. The Commitment may not be used for any amounts that are ordered to be paid by a Counterparty to any opposing party, third parties, or into the court or other dispute resolution tribunal. Return on Investment In exchange for the Commitment, Counterparties shall distribute to Investor an amount of the Litigation Proceeds equal to the sum of (a) the total Deployments plus (b) the product of the Multiple times the total Deployments (such sum, the “Return on Investment.”) The “Multiple” shall equal ; provided, that if the full Return on Investment is not paid to Investor by the Multiple will increase to . Notwithstanding the foregoing, the Return on Investment shall be no less than the sum of the total Deployments plus . Counterparties will satisfy their obligation to pay Investor its full Return on Investment before making any other payments from the Litigation Proceeds to any other person or entity, including Counterparties’ counsel3, other law firms or creditors. For avoidance of doubt, if the Litigation terminates unfavorably such that there are no Litigation Proceeds, then in such a case, all Deployments shall be non-recourse to Counterparties. Equitable Resolution Notwithstanding anything to the contrary, if there is any equitable resolution in the Litigation or other event during or in connection with the Litigation which results in 3 As of the date of this Term Sheet, Counterparty Yasemin Tekiner 4 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed Tekiner April 12, 2022 , then all of Counterparties’ interests in the Properties shall be deemed Litigation Proceeds, and the Counterparties shall take reasonable efforts to monetize Litigation Proceeds to the extent necessary to pay amounts payable to Investor in connection. Commitment Not Revolving The Commitment is not revolving. Upon each Deployment, the total remaining Commitment shall be reduced by an equal amount. Collateral The Transaction will be secured by a first priority perfected security interest in the Litigation Proceeds and related collateral only (together, the “Collateral”), and Investor may file an “all assets” UCC financing statement to evidence its security interest in the Collateral. Assignments of Collateral Counterparties warrant that, , they previously have not and also agree that they shall not sell, assign, or otherwise dispose of any interest in, under, or to the Collateral to any person without the prior written consent of Investor. Control of Litigation Investor does not seek contractual or other rights to direct, supervise, manage, or otherwise control the Litigation. Investor shall have no authority to direct Counterparties or their counsel and shall not request, receive, or otherwise become party to attorney-client privileged communications between Counterparties and their counsel. Counterparties shall have sole authority to accept or reject proposed settlements related to any litigation. Should Counterparties and their counsel continue the Litigation or pursue future related litigation or arbitration, it shall be based on the independent belief that the claims are meritorious and independent of any encouragement or interference from Investor. The Transaction in no way constrains Counterparties’ or their counsel’s ability to decline to pursue litigation or arbitration for any reason, including should Counterparties or their counsel determine that litigation or arbitration is not meritorious. Confidentiality The Parties hereby confirm that the existence and contents of this Term Sheet, related discussions between the Parties, and any ultimate Transaction shall be held in the strictest confidence pursuant to the terms of the Mutual Non-Disclosure and Common Interest Agreement between Investor and Yasemin Tekiner, dated February 28, 2022. Investor and Zeynep Tekiner shall also endeavor to enter into a similar Mutual Non-Disclosure and Common Interest Agreement as soon as practicable. 5 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed Tekiner April 12, 2022 Conditions to Closing (i) Investor’s satisfaction with its due diligence investigation of Counterparties, the Litigation, and counsel’s engagements and budgets, and the valuation of the Properties, and (ii) execution of the Transaction Documents. Transaction Documents Provided that Investor is satisfied with its due diligence investigation and counsel’s engagements, Counterparties will endeavor in good faith to negotiate and execute the Transaction Documents as soon as practicable after signing this Term Sheet. Transaction Costs Counterparties shall be responsible for: (i) a one-time diligence and documentation fee of (the “Transaction Costs”) and (ii) Counterparties’ own out-of-pocket costs and expenses incurred in connection with the Transaction. Transaction Costs shall be payable upon the closing of the Transaction, and Transaction Costs shall be treated as a Deployment paid on the date the Transaction Documents are executed. No Shop In consideration of efforts to be expended by Investor in connection with due diligence and documentation of the Transaction, for a period of 30 days from the date of execution of this Term Sheet, neither Counterparties nor any representative or affiliate of Counterparties will, directly or indirectly, enter into, solicit or encourage, or furnish information with respect to, any loan, sale, investment, or other transaction involving the Litigation, other than as contemplated by this Term Sheet. The foregoing restriction will automatically renew for subsequent 15- day periods unless Counterparties have notified Investor in writing to the contrary at least seven days before the end of the 30-day term. During such 30-day term and subsequent renewal terms, if any, Counterparties will promptly notify Investor of their receipt of any offer, proposal, or solicitation concerning any type of loan, sale, investment, or other transaction involving the Litigation. From the date of execution hereof through the date the Transaction Documents are executed, Counterparties will cooperate with Investor in Investor’s due diligence investigation. Governing Law; Venue Any controversy or claim arising out of or relating to this Term Sheet shall be decided in accordance with Delaware law, without reference to Delaware’s choice of law rules (as this is the state of organization of Investor), and settled by arbitration in Chicago, Illinois administered by the American Arbitration Association under its Commercial Arbitration Rules. Execution of Term Sheet This Term Sheet may be executed in any number of counterparts, 6 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed Tekiner April 12, 2022 each of which shall be deemed an original for all purposes and all of which shall constitute, collectively, one agreement. Transmission by electronic mail or other form of electronic transmission of an executed counterpart of this Term Sheet will be deemed to constitute due and sufficient delivery of such counterpart. Expiration The offer proposed by this Term Sheet expires if not accepted by April 12, 2022. SIGNATURE PAGE FOLLOWS 7 FILED: NEW YORK COUNTY CLERK 04/11/2023 12:12 AM INDEX NO. 657193/2020 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 04/11/2023 Per Court Order, This Motion & All Related Papers Are to Be Submitted to Chambers & Not E-Filed Tekiner April 12, 2022 If the foregoing confirms our agreement, please sign and return this Term Sheet to the undersigned. Sincerely, AGREED: YASEMIN TEKINER ZEYNEP TEKINER By: ________________________________ By: ________________________________ Name: Name: Title: Title: 8