Answer: Trojan Maritime Inc. v. Tpg Sixth Street Partners, Llc, F/K/A Tpg Special Situations Partners, Llc

On November 15, 2016 a Answer was filed involving a dispute between Trojan Maritime Inc., and Tpg Sixth Street Partners, Llc, F K A Tpg Special Situations Partners, Llc, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 07/10/2017 02:58 PM INDEX NO. 655978/2016
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/10/2017

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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:
TROJAN MARITIME INC., : Index No.: 655978/2016
:
Plaintiff, :
:
- against - :
: ANSWER TO
: AMENDED COMPLAINT
TPG SIXTH STREET PARTNERS, LLC, f/k/a :
TPG SPECIAL SITUATIONS PARTNERS, LLC :
:
Defendant.
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TPG Sixth Street Partners, LLC (“TSSP” or “Defendant”), by its undersigned attorneys, for it

Answer to the Amended Complaint of Trojan Maritime Inc. (“Trojan” or Plaintiff), responds as

follows 1:

1. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 1 of the Amended Complaint.

2. Admits the allegations contained in paragraph 2 of the Amended Complaint.

3. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 3 of the Amended Complaint.

4. States that paragraph 4 of the Amended Complaint states a conclusion of law to

which no response is required.

5. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 5 of the Amended Complaint.

1
Capitalized terms that are undefined herein are defined in accordance with their definition provided in the
Amended Complaint.

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6. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 6 of the Amended Complaint.

7. Admits that TSSP engaged in discussions with RMK in 2015 in connection with

the proposed Transaction. Defendant denies knowledge or information sufficient to form a belief

as to the truth of the remaining allegations contained in paragraph 7 of the Amended Complaint.

8. Admits that RMK presented TSSP with multiple versions of a document titled

“Bareboat Charter Indicative Term Sheet” (“Term Sheet”) setting forth certain proposed terms

and conditions for the Transaction and that the Term Sheet was revised several times. Defendant

denies that “the execution of a formal ‘Settlement Agreement’” was a condition precedent to

concluding the Transaction. Defendant denies knowledge or information sufficient to form a

belief as to the truth of the remaining allegations contained in paragraph 8 of the Amended

Complaint.

9. Defendant admits that the Term Sheet speaks for itself. Defendant denies

knowledge and information sufficient to form a belief as to the truth of the remaining allegations

contained in paragraph 9 of the Amended Complaint.

10. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 10 of the Amended Complaint.

11. Defendant admits that the “original drafts of the Term Sheet” speak for

themselves. Defendant denies knowledge and information sufficient to form a belief as to the

truth of the remaining allegations contained in paragraph 11 of the Amended Complaint.

12. Defendant admits that “earlier drafts of the Term Sheet” speak for themselves.

Defendant denies knowledge and information sufficient to form a belief as to the truth of the

remaining allegations contained in paragraph 12 of the Amended Complaint.

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13. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 13 of the Amended Complaint.

14. Defendant admits that the referenced email speaks for itself. Defendant denies

knowledge and information sufficient to form a belief as to the truth of the remaining allegations

contained in paragraph 14 of the Amended Complaint.

15. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 15 of the Amended Complaint.

16. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 16 of the Amended Complaint.

17. States that the allegations in the seventh sentence of paragraph 17 of the Amended

Complaint purport to state a legal conclusion and do not require a response, but, to the extent a

response is required, denies the allegations contained in the seventh sentence of paragraph 17 of

the Amended Complaint. Denies knowledge and information sufficient to form a belief as to the

truth of the remaining allegations contained in paragraph 17 of the Amended Complaint.

18. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 18 of the Amended Complaint.

19. Defend admits that the executed Term Sheet dated June 26, 2015 speaks for itself

and denies the remaining allegations contained in paragraph 19 of the Amended Complaint.

20. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 20 of the Amended Complaint.

21. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 21 of the Amended Complaint.

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22. States that the allegations in the second and third sentence of paragraph 22 of the

Amended Complaint purport to state a legal conclusion and do not require a response, but, to the

extent a response is required, denies the allegations contained in second and third sentence of

paragraph 22 of the Amended Complaint. Defendant admits that it received two wire transfers

totaling $150,000 sent on behalf of Trojan, and denies knowledge and information sufficient to

form a belief as to the truth of the remaining allegations contained in paragraph 22 of the

Amended Complaint.

23. Defendant admits that it began using the pre-funded deposit to fund the due

diligence process and denies the remaining allegations contained in paragraph 23 of the

Amended Complaint.

24. Defendant admits that the parties could not agree to final terms for the

Transaction and that negotiations were terminated in 2015. Defendant denies knowledge and

information sufficient to form a belief as to the truth of the remaining allegations contained in

paragraph 24 of the Amended Complaint.

25. Denies knowledge and information sufficient to form a belief as to the truth as to

whether Trojan was able to reach a final Settlement Agreement. States that the allegations in

paragraph 25 of the Amended Complaint purport to state a legal conclusion and do not require a

response, but, to the extent a response is required, denies the allegations contained in paragraph

25 of the Amended Complaint.

26. Admits that TSSP has not returned $150,000 sent by Trojan to TSSP, and denies

the remaining allegations contained in paragraph 26 of the Amended Complaint.

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IN RESPONSE TO THE FIRST CAUSE OF ACTION

27. In response to paragraph 27 of the Amended Complaint, repeats and realleges

each and every response to the allegations contained in paragraphs 1 through 26 of the Amended

Complaint as though fully set forth herein.

28. States that the allegations in paragraph 28 of the Amended Complaint purport to

state a legal conclusion and do not require a response, but, to the extent a response is required,

denies the allegations contained in paragraph 28 of the Amended Complaint. Defendant admits

that the Term Sheet speaks for itself.

29. States that the allegations in paragraph 29 of the Amended Complaint purport to

state a legal conclusion and do not require a response, but, to the extent a response is required,

denies the allegations contained in paragraph 29 of the Amended Complaint.

30. Denies knowledge and information sufficient to form a belief as to the truth of the

allegations contained in paragraph 30 of the Amended Complaint.

31. States that the allegations in paragraph 31 of the Amended Complaint purport to

state a legal conclusion and do not require a response, but, to the extent a response is required,

denies the allegations contained in paragraph 31 of the Amended Complaint.

32. States that the allegations in paragraph 32 of the Amended Complaint purport to

state a legal conclusion and do not require a response, but, to the extent a response is required,

denies the allegations contained in paragraph 32 of the Amended Complaint.

33. Denies the allegations contained in paragraph 33 of the Amended Complaint.

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DEFENSES
Defendant, without assuming the burden of proof on those matters for which Plaintiff

bears such burden, alleges for its affirmative defenses in this action as follows:

FIRST DEFENSE

The Amended Complaint fails to state a cause of action upon which relief can be granted.

SECOND DEFENSE

The Amended Complaint is barred to the extent that Plaintiff did not sustain any

damages.

THIRD DEFENSE

The Amended Complaint is barred to the extent that Defendant did not cause any injury

to Plaintiff.

FOURTH DEFENSE
The Amended Complaint is barred to the extent that Plaintiff fails or has failed to

mitigate damages.

FIFTH DEFENSE

The Amended Complaint is barred to the extent that Plaintiff recovers or has recovered

any of the damages alleged in the Amended Complaint from any persons or entities other than

Defendant.

SIXTH DEFENSE

The Amended Complaint is barred to the extent that Defendant owed no duty to Plaintiff.

SEVENTH DEFENSE

The Amended Complaint is barred by documentary evidence.

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EIGHTH DEFENSE

The Amended Complaint is barred because Defendant acted in good faith and did not

engage in any culpable conduct.

NINTH DEFENSE

Any alleged losses suffered by Plaintiff resulted, in whole or in part, from acts and/or

omissions by persons or entities entirely separate from Defendant, not acting as agents for

Defendant, and for whom Defendant is not, and has never been, legally responsible, and such

persons or entities, not Defendant are responsible, in whole or in part, to Plaintiff for any

damages alleged in the Amended Complaint.

TENTH DEFENSE

The Amended Complaint is barred by the principles of waiver, ratification and/or

estoppel.

ELEVENTH DEFENSE
The Amended Complaint is barred because Plaintiff lacks capacity to bring suit in this

forum.

TWELFTH DEFENSE

The Amended Complaint is barred by the statute of frauds.

THIRTEENTH DEFENSE

The Amended Complaint is barred by the doctrine of unclean hands.

WHEREFORE, Defendant respectfully requests the entry of a judgment as follows:

a. dismissing the Amended Complaint with prejudice;

b. awarding Defendant its costs, disbursements, and attorneys’ fees in connection with this

action; and

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c. awarding such other and further relief as may be just and proper.

COUNTERCLAIM

1. Defendant repeats and re-alleges each and every response to the allegations

contained in paragraphs 1 through 33 of the Amended Complaint as though fully set forth herein.

2. TPG Sixth Street Partners, LLC f/k/a TPG Special Situations Partners, LLC was

and is a limited liability company organized and existing under the laws of the state of Delaware,

with a place of business at 888 Seventh Avenue, 35th Floor, New York, New York 10106.

3. Upon information and belief, Trojan Maritime, Inc. was and is a corporation

organized and existing under foreign law, with an office care of Independence Maritime Agency,

Inc., 39 Broadway, Suite 3100, New York, New York, 10006.

4. Defendant for its Counterclaim against Plaintiff alleges and says:

GENERAL ALLEGATIONS

5. On or about June 26, 2015, Plaintiff and Defendant entered into a final Term

Sheet setting forth certain terms and conditions for the refinancing Transaction.

6. The Term Sheet provides in the pertinent part that “[t]he Charterer and Charterer

Guarantors [Trojan] shall be jointly and severally be (sic) responsible for payment of all

Arranger’s and TSSP’s [Defendant’s] expenses incurred in progressing the Transaction,

including but not limited to the costs and fees of legal, tax, technical and other professional

advisers whether or not the transaction is finalized or Definitive Documents are executed. An

amount of $150,000 to be prefunded by the Charterer [Trojan] immediately upon a signed RBS

Settlement Agreement for TSSP’s expenses. In the event that expenses are greater than the

deposit amount, the Charterer [Trojan] is responsible for further expenses and in the event

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expenses are less than the deposit amount, the Charterer [Trojan] will be refunded any excess

amounts.” (emphasis added). See, Exhibit A.

7. The Term Sheet’s reference to the signed Settlement Agreement provides for

timing of Plaintiff’s payment of the Transaction expenses and does not constitute a condition to

Plaintiff’s payment of the Transaction expenses.

8. After the Term Sheet was signed, and before Trojan advanced the $150,000 for

due diligence, the parties reached a separate agreement, memorialized in an email, that Plaintiff’s

exposure to the Transaction expenses would be capped at $225,000. See, Exhibit B.

9. During this same conversation, TSSP agreed that it would provide Trojan with the

right to approve the due diligence expenses before they were incurred. See, Exhibit B.

10. Trojan was made aware of the due diligence expenses prior to them being

incurred, was asked to approve the due diligence expenses, and did approve the due diligence

expenses. See, Exhibit C.

11. In total, TSSP spent more than $225,000 to cover the costs and fees of legal, tax,

technical and other professional advisers incurred in progressing the Transaction. See, Exhibit

12. The $150,000 advanced by Plaintiff was used for the intended purpose of

conducting due diligence. As reflected in the invoices attached as Exhibit D, the full amount of

$150,000 and additional funds were used by TSSP to cover the costs and fees of legal, tax,

technical and other professional advisers Defendant incurred in progressing the Transaction.

13. Despite being responsible for the difference between the $225,000 agreed cap and

the $150,000 advanced funds of $75,000, Trojan has failed to remit this amount to TSSP.

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14. Therefore, Plaintiff owes Defendant $75,000 for the costs and fees of legal, tax,

technical and other professional advisers Defendant incurred in progressing the Transaction.

AS AND FOR A FIRST CAUSE OF ACTION
Breach of Contract
15. Defendant repeats and re-alleges each and every allegation set forth in paragraphs

1 through 14 of the Answer as though fully set forth herein.

16. Plaintiff breached its promise under the Term Sheet to pay for all Defendant’s

expenses incurred in progressing the Transaction.

17. The Parties later modified this agreement to provide that Plaintiff would be liable

for up to $225,000 of due diligence expenses.

18. TSSP incurred expenses greater than $225,000 on due diligence.

19. Trojan has remitted the amount of $150,000 to TSSP for due diligence expenses.

20. TSSP is owed the difference of $75,000.

21. As a result of Plaintiff’s breach, Defendant has suffered damages in the amount of

$75,000.

WHEREFORE, Defendant respectfully requests the entry of a judgment on the

Counterclaim in favor of Defendant and against the Plaintiff as follows:

a. awarding Defendant damages in an amount not less than $75,000;

b. awarding Defendant interest as provided for under New York Civil Practice Law and

Rules;

c. awarding Defendant its costs, disbursements, and attorneys’ fees in connection with

this action; and

d. awarding such other and further relief as may be just and proper.

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Dated: New York, New York
July 10, 2017

FELICELLO & MELCHIONNA LLP

By: /s/ Rosanne E. Felicello
Rosanne E. Felicello, Esq.
Zofia H. Rubens, Esq.
1120 Avenue of the Americas, 4thFloor
New York, NY 10036
Tel. (212) 626-2616
Attorneys for Defendant
TPG Sixth Street Partners, LLC

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Case Info

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Document Filed Date

July 10, 2017

Case Filing Date

November 15, 2016

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