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FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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:
TROJAN MARITIME INC., : Index No.: 655978/2016
:
Plaintiff, : Motion Seq. No. 005
:
- against - :
:
:
TPG SIXTH STREET PARTNERS, LLC, f/k/a :
TPG SPECIAL SITUATIONS PARTNERS, LLC :
:
Defendant.
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DEFENDANT TPG SIXTH STREET PARTNERS, LLC'S MEMORANDUM OF LAW
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
FELICELLO & MELCHIONNA LLP
Rosanne E. Felicello, Esq.
Zofia H. Rubens, Esq.
1330 Avenue of the Americas, 12th Floor
New York, NY 10019
Tel.: (212) 626-2616
Attorneys for Defendant TPG Sixth Street Partners, LLC
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TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………………………. ii
PRELIMINARY STATEMENT…….…………………………………………………...………. 1
FACTUAL BACKGROUND……………………………………………………………………. 3
PROCEDURAL POSTURE……………………………………………………………………... 5
ARGUMENT…………………………………………………………………………….………. 5
Standard on a Motion for Summary Judgment ……………………...…………….……… 5
POINT I
Defendant is Entitled to Summary Judgment Because Plaintiff Cannot Present Any
Evidence of Breach of Contract by Defendant…………………………………………… 6
POINT II
Defendant and Counterclaim-Plaintiff is Entitled to Summary Judgment on Its Counterclaim
Because There Are No Genuine Triable Issues of Material Fact that Plaintiff and
Counterclaim-Defendant Owes the balance of $75,000…………………………………... 10
CONCLUSION…………………………………………………………………………………. 11
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TABLE OF AUTHORITIES
Edelman Arts, Inc. v. Art Intern. (UK) Ltd., 841 F.Supp.2d 810, 2012 WL 183641
(S.D.N.Y., 2012)…………………………………………………………………………………...8
Kass v. Kass, 235 A.D.2d 150, 159, 663 N.Y.S.2d 581
(2nd Dept. 1997)…………………………………………………………………………………..7
Morris v. 702 E Fifth St. HDFC, 46 A.D.3d 478, 850 N.Y.S.2d 6
(1st Dep’t 2007)………………………………………………………………………………. 6, 10
Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685
(1995)…………………………………………………………………………………………….. 7
Zuckerman v. City of New York, 49 N.Y.2d 557
(1980)…………………………………………………………………………………………… 6
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Defendant, TPG Sixth Street Partners, LLC (“TSSP” or “Defendant”), submits this
Memorandum of Law in support of its motion for summary judgment on the Amended Complaint
and TSSP’s Counterclaim, pursuant to CPLR § 3212, in favor of Defendant and against Plaintiff
Trojan Maritime Inc. (“Trojan” or “Plaintiff”).
PRELIMINARY STATEMENT
Plaintiff's second attempt to state a claim is no better than its first, which was dismissed by
the Court with the right to re-plead one of the four claims. Trojan maintains that TSSP was required
to hold money advanced for due diligence expenses in escrow and not to spend the money on due
diligence expenses it was incurring until Trojan signed a settlement agreement with a third party. The
court already rejected that argument in this case and that decision has not been appealed. Under the
law of the case, the only potential breach that can be stated is limited to any balance remaining from
the funds advanced for due diligence. But the documentary evidence in this case shows that all the
funds advanced for due diligence were spent on due diligence before the deal was suspended. Thus,
Plaintiff is not owed a refund.
Even assuming arguendo that Plaintiff’s argument has not been rejected already by the court,
Plaintiff’s second attempt to state a breach of contract should be rejected for the same reasons set
forth in Defendant’s motion to dismiss the first complaint. Simply, the parties agree that the
preliminary term sheet at issue, for a proposed transaction that never closed, provides that Trojan is
required to transfer $150,000 to TSSP upon the execution of a settlement agreement with a third
party. Trojan transferred the $150,000 to TSSP for due diligence expenses and the settlement
agreement with the third party was never executed. Neither facts nor logic compel the conclusion
urged by Plaintiff that execution of the settlement agreement with a third party was a condition
precedent for TSSP to begin spending the received funds on due diligence expenses.
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There is no evidence to support the interpretation urged by Plaintiff that once Plaintiff
transferred the funds to TSSP they were to be held in escrow until and unless the Settlement
Agreement was signed. The use of the word “upon” does not set a condition precedent to when the
funds could be used and does not impose on TSSP an obligation to hold the funds in escrow. It
would be inconsistent with contract law and the plain language of the parties’ agreement to
transform a statement of timing (“upon”) to one of condition. Even assuming arguendo a condition
could be read into the Term Sheet, contrary to established law that terms of an agreement should
not be interpreted to impose a condition absent clear and unambiguous language that a condition
was intended, Trojan waived it by transferring the funds before the settlement agreement was
signed. Moreover, TSSP’s use of transferred $150,000 was proper as TSSP used it in accordance
with the Term Sheet, i.e. to help cover costs incurred in progressing the transaction.
Trojan further alleges that TSSP’s failure to return the $150,000 constitutes a breach of the
Term Sheet. The Term Sheet, however, requires return of funds only if the expenses are less than
the $150,000. TSSP used the entire $150,000 as the costs incurred in progressing the transaction
were greater than $150,000. There is no issue of fact that TSSP used the whole amount of
transferred $150,000 to cover the costs and fees of legal, tax, technical and other professional
advisers incurred in progressing the transaction. Therefore, Plaintiff’s breach of contract claim has
no merits and fails as a matter of law.
Moreover, not only does TSSP not owe Trojan a refund, but in fact, Trojan is liable to TSSP
for $75,000. Pursuant to the Term Sheet, Plaintiff was required to pay for all Defendant’s expenses
incurred in progressing the Transaction. The parties later modified this requirement to provide that
Plaintiff would be liable for up to $225,000 of due diligence expenses. Plaintiff failed to fulfill its
obligation. TSSP incurred expenses greater than $225,000 on due diligence. Trojan has remitted only
the amount of $150,000 to TSSP for due diligence expenses. Therefore, Plaintiff owes Defendant
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the difference of $75,000 for the costs and fees of legal, tax, technical and other professional
advisers Defendant incurred in progressing the Transaction. There are no genuine triable issues of
material fact with respect to Plaintiff’s breach of the Term Sheet and its modification, or damages,
and Defendant is entitled to summary judgment on its counterclaim as a matter of law.
Thus, this Court should grant Defendant’s Motion for Summary Judgment dismissing the
Amended Complaint in its entirety and granting judgment against Plaintiff and in favor of
Defendant on its Counterclaim.
FACTUAL BACKGROUND
The facts set forth here are based on the allegations of the Amended Complaint 1,
documents attached to the Amended Complaint, and the documents submitted by TSSP on this
motion.
Trojan and TSSP are parties to an executed Term Sheet dated June 26, 2015. “Felicello Aff.
Exhibit B at ¶ 19. The Term Sheet provides, in 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 expenses are less than the deposit
amount, the Charterer [Trojan] will be refunded any excess amounts.” (emphasis added). Felicello
Aff. Exhibit B at ¶ 19 and at Exhibit 6, p. 7; Affidavit of Samuel Ditter in Support of Defendant’s
1
The Amended Complaint, filed on June 9, 2017, is attached as Exhibit B to the Affirmation of Rosanne E. Felicello
in Support of Defendant’s Motion for Summary Judgment, dated December 1, 2017 (hereinafter “Felicello Aff.”).
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Motion for Summary Judgment (hereinafter, “Ditter Aff.”), Exhibit E. Non-party RMK Maritime
LLP encouraged Trojan to prefund the amount of $150,000. Felicello Aff. Exhibit B at ¶¶ 20, 21.
Trojan sent TSSP $150,000 by wire transfer in two installments in late July 2015. Felicello Aff.
Exhibit B at ¶ 22. By the end of September 2015, negotiations between the parties terminated.
Felicello Aff. Exhibit B at ¶ 24. On or about October 7, 2015, Trojan sent an e-mail to a non-party
RMK Maritime LLP requesting return of the $150,000. Felicello Aff. Exhibit B at ¶ 25.
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, Ditter Aff., Exhibit F. In its
Answer to Counterclaim, Plaintiff admitted that the parties agreed that Plaintiff’s exposure to the
Transaction expenses would be capped at $225,000. See, Felicello Aff. Exhibit C2 at paragraph 8.
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, Ditter Aff., Exhibit F. As due diligence
progressed, 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, Ditter
Aff. Exhibit G. 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, Affidavit of
Daniel Louis Wanek in Support of Defendant’s Motion for Summary Judgment (hereinafter,
“Wanek Aff.”), Exhibit H. The $150,000 advanced by Plaintiff was used for the intended purpose of
conducting due diligence. As reflected in the invoices attached as Exhibit H, 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. 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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It is undisputed that the parties entered into the final Term Sheet dated June 26, 2017, See,
Felicello Aff. Exhibit B at ¶ 19, and that $150,000 was transferred to Defendant on behalf of
Plaintiff. See, Felicello Aff. Exhibit B at ¶ 22. Nowhere in the Amended Complaint does Plaintiff
allege that the whole sum of $150,000 was not spent on due diligence. Moreover, Plaintiff is unable
to provide any evidence to establish that the whole amount of $150,000 was not spent on due
diligence while Defendant provides evidence that show the costs and fees of legal, tax, technical and
other professional advisers Defendant incurred in progressing the Transaction. Therefore, it is also
undisputed that the full amount of $150,000 was expended by TSSP on due diligence.
PROCEDURAL POSTURE
Trojan filed its original Complaint in this matter on November 15, 2016 alleging breach of
fiduciary duty, constructive trust, unjust enrichment, and breach of contract. After briefing by both
parties and oral argument, this Court dismissed three of the four counts of the Complaint and
provided Plaintiff with leave to re-file to see if it could state a claim for breach of contract. The
Court also provided for limited discovery in advance of Plaintiff’s re-filing.
Defendants served the limited discovery on Plaintiff and Plaintiff filed an Amended
Complaint. Plaintiff’s Amended Complaint re-states the same facts in support of its breach of
contract claim as are included in the original Complaint.
ARGUMENT
STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Under Rule 3212 of the New York Civil Practice Law and Rules (“CPLR”), a motion for
summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action
or defense shall be established sufficiently to warrant the court as matter of law in directing
judgment in favor of any party”. CPLR 3212. The opponent of a motion for summary judgment
“must produce evidentiary proof in admissible form sufficient to require a trial of material questions
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of fact on which he rests his claim… mere conclusions, expressions of hope or unsubstantiated
allegations or assertions are insufficient.” Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).
POINT I
Defendant is Entitled to Summary Judgment Because Plaintiff Cannot Present Any Evidence of
Breach of Contract by Defendant.
Trojan has not, and cannot, establish its claim for breach of contract. The elements of a
breach of contract are: a valid contract, plaintiff’s performance of its obligations, defendant’s breach
of the agreement, and resulting damages. Morris v. 702 E Fifth St. HDFC, 46 A.D.3d 478, 479, 850
N.Y.S.2d 6 (1st Dep’t 2007).
Trojan alleges that “TSSP’s failure and refusal to return Trojan’s $150,000 pre-funded
deposit constitutes a breach of the Term Sheet contract.”. See, Felicello Aff. Exhibit B at ¶ 28.
Contrary to Plaintiff’s contention, the Term Sheet does not provide for TSSP’s refund of the
prefunded $150,000. The Term Sheet only states that if the expenses are greater than $150,000,
Trojan is responsible for the further expenses and if the expenses are less than $150,000, Trojan will
be refunded any excess amounts. See, Ditter Aff. Exhibit E at p. 7. The expenses incurred by TSSP
in progressing the transaction were greater than $150,000. See, Wanek Aff. Exhibit H. Trojan also
argues that “[p]ursuant to the terms of the Term Sheet, the purpose of the pre-fund deposit was to
fund TSSP’s costs and fees of legal, tax, technical and other professional advisory only after a final
Settlement Agreement was agreed to and signed” and that “[th]e deposit was not to be spent until a
final Settlement Agreement was signed.” See, Felicello Aff. Exhibit B at ¶¶ 29, 22. There is no such
provision in the Term Sheet. Rather, the Term Sheets states that the amount of $150,000 was to be
prefunded “upon” a signed Settlement Agreement, so the deposit was not to be paid until a final
Settlement Agreement. See, Ditter Aff. Exhibit E at p. 7. This is a statement of timing not a
condition precedent. Further, the Term Sheet does not include any provision requiring TSSP to hold
in escrow any funds remitted prior to the execution of a final settlement agreement. See, Ditter Aff.
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Exhibit E. Moreover, the interpretation of the Term Sheet that Plaintiff now urges the Court to
accept as true could not have been the parties’ intent because it would lead to the absurd result
whereby TSSP would take on the entire risk of the due diligence process because Plaintiff had failed
to sign a Settlement Agreement with a third party, an act over which TSSP had no control.
Trojan further alleges that “any use of any amount of the pre-funded deposit when the
Settlement Agreement was not signed constitutes a breach of the parties’ contract”. See, Felicello
Aff. Exhibit B at ¶ 31. But the Term Sheet does not state that Defendant is prevented from using
funds transferred to it to cover costs incurred in progressing the transaction and it does not include
any obligation that TSSP hold the funds in escrow until the settlement agreement is executed.
Further, the evidence shows that Trojan was aware that TSSP was using the funds for due diligence
activities and contemporaneously approved the expenditures. See, Ditter Aff. Exhibit F and Exhibit
G. Thus, Plaintiff cannot state a claim that TSSP breached the contract by using the funds
transferred by Trojan to fund due diligence activities.
Trojan argues that it was not responsible for due diligence expenses if the Settlement
Agreement was not signed. Felicello Aff. Exhibit B at ¶ 23. But terms of an agreement should not be
interpreted to impose conditions precedent or subsequent absent clear, unambiguous language
expressing the parties’ intent to impose a condition. Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon
& Co., 86 N.Y.2d 685, 691 (1995) (“In determining whether a particular agreement makes an event
a condition courts will interpret doubtful language as embodying a promise or
constructive condition rather than an express condition. This interpretive preference is especially
strong when a finding of express condition would increase the risk of forfeiture by the oblige.”); Kass
v. Kass, 235 A.D.2d 150, 159, 663 N.Y.S.2d 581, 588 (2nd Dep’t 1997), aff'd, 91 N.Y.2d 554, 696
N.E.2d 174 (1998) (“As a general rule, it must clearly appear from the agreement itself that the
parties intended a provision to operate as a condition precedent … If the language is in any way
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ambiguous, the law does not favor a construction which creates a condition precedent…”); Edelman
Arts, Inc. v. Art Intern. (UK) Ltd., 841 F.Supp.2d 810, 825-826.; 2012 WL 183641 (S.D.N.Y., 2012)
citing Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1099–1100 (2d Cir.1992)(“Conditions are
not favored under New York law, and in the absence of unambiguous language, a condition will not
be read into the agreement”); Edelman Arts, Inc., at 825-826 (“Thus, New York courts have
repeatedly stated that if contract “language is in any way ambiguous, the law does not favor a
construction which creates a condition precedent.” Ashkenazi v. Kent South Assocs., LLC, 51 A.D.3d
611, 857 N.Y.S.2d 693, 694 (2008); accord Torres v. D'Alesso, 80 A.D.3d 46, 910 N.Y.S.2d 1, 10
(2010); Lui v. Park Ridge at Terryville Ass'n, 196 A.D.2d 579, 601 N.Y.S.2d 496, 499 (1993); Vincent v.
Seaman, 152 A.D.2d 841, 544 N.Y.S.2d 225, 227 (1989). And “a contractual duty ordinarily will not
be construed as a condition precedent absent clear language showing that the parties intended to
make it a condition.” Unigard Sec. Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 584 N.Y.S.2d 290,
594 N.E.2d 571, 573 (1992).”).
The Term Sheet provides for the timing of the payment of $150,000; it does not establish a
condition to such payment. It states that Trojan is responsible for payment of all TSSP’s expenses
incurred in progressing the Transaction “whether or not the transaction is finalized or Definitive
Documents are executed.” See, Ditter Aff., Exhibit E, p. 7 (emphasis added). “Definitive
Documents” are defined as definitive legal documentation governing the transaction. Ditter Aff.,
Exhibit E, p. 1. It further provides that an amount of $150,000 is to be prefunded immediately upon
a signed Settlement Agreement and that Trojan shall not be responsible for any expenses until a
final Settlement Agreement is signed. See, Ditter Aff., Exhibit E, p. 7 (emphasis added). This
language does not create a clear, unambiguous condition that is to be met before any funds
transferred by Trojan to TSSP could be spent on due diligence expenses. Moreover, the result
sought by Plaintiff, a return of the entire $150,000 representing its share of the due diligence
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expenses, could not have been intended by the parties because such a result defeats the whole
purpose of the transfer of due diligence funds, i.e. to allow the parties to share in the risk of due
diligence.
Even assuming that execution of the Settlement Agreement could be viewed as a condition,
Plaintiff waived it by making the payment. As evidenced in the emails attached to the Amended
Complaint, Trojan was aware that the due diligence funds were required to progress the Transaction.
See, Felicello Aff. Exhibit B at Exhibit 7 and Exhibit 8. Trojan was aware the funds it transferred
were being used to fund costs incurred in advancing the transaction and its principal/representative
was approving due diligence process. See, Ditter Aff. Exhibit F and Exhibit G. Trojan wanted to
proceed with the transaction (See, Felicello Aff. Exhibit B at ¶ 22) so it participated in costs of its
progression. Additionally, Defendant relied on Plaintiff’s waiver as it used the transferred funds to
cover the expenses incurred in progressing the Transaction. Therefore, even if there was a condition
precedent to Trojan’s transfer of funds, Trojan waived the condition, and TSSP relied on this
waiver, by transferring the funds prior to the execution of the Settlement Agreement with the third
party.
Trojan further alleges that TSSP's spending the pre-funded deposit before a final Settlement
Agreement was signed constitutes “a breach of the parties' contract and an improper purpose and use
of said funds.” (emphasis added). See, Felicello Aff. Exhibit B at ¶ 32. The Term Sheet provides in
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.” See, Ditter Aff. Exhibit E at p. 7. Defendant expended the pre-funded $150,000 to
cover the costs and fees of legal, tax, technical and other professional advisers incurred in
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progressing the Transaction, i.e. for its intended, expressly provided in the Term Sheet, purpose. As
indicated on the invoices, the $150,000 was used in its entirety. See, Wanek Aff., Exhibit H.
Based on the foregoing, Defendant has made a prima facie showing of its entitlement to
summary judgment on the grounds that there are no genuine disputed issues of material fact, and
that the Plaintiff’s cause of action has no merits.
POINT II
Defendant and Counterclaim-Plaintiff is Entitled to Summary Judgment on Its Counterclaim
Because There Are No Genuine Triable Issues of Material Fact that Plaintiff and Counterclaim-
Defendant Owes the balance of $75,000.
The elements of a breach of contract are: a valid contract, plaintiff’s performance of its
obligations, defendant’s breach of the agreement, and resulting damages. Morris v. 702 E Fifth St.
HDFC, 46 A.D.3d 478, 479, 850 N.Y.S.2d 6 (1st Dep’t 2007). The Term Sheet that the parties signed
provides in 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 expenses are less than the deposit amount, the Charterer
[Trojan] will be refunded any excess amounts.” See, Ditter Aff. Exhibit E at p. 7
(emphasis added).
As indicated above, on p. 6-8, the Term Sheet’s reference to the signed Settlement
Agreement provides for timing of Plaintiff’s payment for the Transaction expenses and does not
constitute a condition to Plaintiff’s payment of the Transaction expenses. Plaintiff breached its
promise under the Term Sheet to pay for all Defendant’s expenses incurred in progressing the
Transaction. The Parties later modified this agreement to provide that Plaintiff would be liable for
up to $225,000 of due diligence expenses. See, Felicello Aff. Exhibit C2, Ditter Aff., Exhibit F. TSSP
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incurred expenses greater than $225,000 on due diligence. See, Wanek Aff. Exhibit H. Trojan has
only remitted the amount of $150,000 to TSSP for due diligence expenses. See, Felicello Aff. Exhibit
B at ¶ 22. Therefore, Plaintiff owes Defendant the difference of $75,000 for the costs and fees of
legal, tax, technical and other professional advisers Defendant incurred in progressing the
Transaction. As a result of Plaintiff’s breach, Defendant has suffered damages in the principal
amount of $75,000.
The terms of the Term Sheet and its later modification, as well as the intent of the parties, are
clear. There are no genuine triable issues of material fact with respect to Plaintiff’s breach of the Term
Sheet and its modification, or damages, and Plaintiff’s defenses to the Defendant’s cause of action have
no merits. Thus, Defendant is entitled to summary judgment on its counterclaim as a matter of law.
CONCLUSION
For all the foregoing reasons, Defendant’s motion for summary judgment shall be granted
in its entirety.
Dated: New York, New York
December 1, 2017
Respectfully submitted,
FELICELLO & MELCHIONNA LLP
/s/ Rosanne E. Felicello
By : ____________________________
Rosanne E. Felicello, Esq.
Zofia H. Rubens, Esq.
1330 Avenue of the Americas, 12thFloor
New York, NY 10019
Tel. (212) 626-2616
Attorneys for Defendant
TPG Sixth Street Partners, LLC
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FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------- x : TROJAN MARITIME INC., : Index No.: 655978/2016 : Plaintiff, : Motion Seq. No. 005 : - against - : : : TPG SIXTH STREET PARTNERS, LLC, f/k/a : TPG SPECIAL SITUATIONS PARTNERS, LLC : : Defendant. ------------------------------------- x DEFENDANT TPG SIXTH STREET PARTNERS, LLC'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT FELICELLO & MELCHIONNA LLP Rosanne E. Felicello, Esq. Zofia H. Rubens, Esq. 1330 Avenue of the Americas, 12th Floor New York, NY 10019 Tel.: (212) 626-2616 Attorneys for Defendant TPG Sixth Street Partners, LLC 1 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………………………. ii PRELIMINARY STATEMENT…….…………………………………………………...………. 1 FACTUAL BACKGROUND……………………………………………………………………. 3 PROCEDURAL POSTURE……………………………………………………………………... 5 ARGUMENT…………………………………………………………………………….………. 5 Standard on a Motion for Summary Judgment ……………………...…………….……… 5 POINT I Defendant is Entitled to Summary Judgment Because Plaintiff Cannot Present Any Evidence of Breach of Contract by Defendant…………………………………………… 6 POINT II Defendant and Counterclaim-Plaintiff is Entitled to Summary Judgment on Its Counterclaim Because There Are No Genuine Triable Issues of Material Fact that Plaintiff and Counterclaim-Defendant Owes the balance of $75,000…………………………………... 10 CONCLUSION…………………………………………………………………………………. 11 i 2 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 TABLE OF AUTHORITIES Edelman Arts, Inc. v. Art Intern. (UK) Ltd., 841 F.Supp.2d 810, 2012 WL 183641 (S.D.N.Y., 2012)…………………………………………………………………………………...8 Kass v. Kass, 235 A.D.2d 150, 159, 663 N.Y.S.2d 581 (2nd Dept. 1997)…………………………………………………………………………………..7 Morris v. 702 E Fifth St. HDFC, 46 A.D.3d 478, 850 N.Y.S.2d 6 (1st Dep’t 2007)………………………………………………………………………………. 6, 10 Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685 (1995)…………………………………………………………………………………………….. 7 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980)…………………………………………………………………………………………… 6 ii 3 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 Defendant, TPG Sixth Street Partners, LLC (“TSSP” or “Defendant”), submits this Memorandum of Law in support of its motion for summary judgment on the Amended Complaint and TSSP’s Counterclaim, pursuant to CPLR § 3212, in favor of Defendant and against Plaintiff Trojan Maritime Inc. (“Trojan” or “Plaintiff”). PRELIMINARY STATEMENT Plaintiff's second attempt to state a claim is no better than its first, which was dismissed by the Court with the right to re-plead one of the four claims. Trojan maintains that TSSP was required to hold money advanced for due diligence expenses in escrow and not to spend the money on due diligence expenses it was incurring until Trojan signed a settlement agreement with a third party. The court already rejected that argument in this case and that decision has not been appealed. Under the law of the case, the only potential breach that can be stated is limited to any balance remaining from the funds advanced for due diligence. But the documentary evidence in this case shows that all the funds advanced for due diligence were spent on due diligence before the deal was suspended. Thus, Plaintiff is not owed a refund. Even assuming arguendo that Plaintiff’s argument has not been rejected already by the court, Plaintiff’s second attempt to state a breach of contract should be rejected for the same reasons set forth in Defendant’s motion to dismiss the first complaint. Simply, the parties agree that the preliminary term sheet at issue, for a proposed transaction that never closed, provides that Trojan is required to transfer $150,000 to TSSP upon the execution of a settlement agreement with a third party. Trojan transferred the $150,000 to TSSP for due diligence expenses and the settlement agreement with the third party was never executed. Neither facts nor logic compel the conclusion urged by Plaintiff that execution of the settlement agreement with a third party was a condition precedent for TSSP to begin spending the received funds on due diligence expenses. 1 4 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 There is no evidence to support the interpretation urged by Plaintiff that once Plaintiff transferred the funds to TSSP they were to be held in escrow until and unless the Settlement Agreement was signed. The use of the word “upon” does not set a condition precedent to when the funds could be used and does not impose on TSSP an obligation to hold the funds in escrow. It would be inconsistent with contract law and the plain language of the parties’ agreement to transform a statement of timing (“upon”) to one of condition. Even assuming arguendo a condition could be read into the Term Sheet, contrary to established law that terms of an agreement should not be interpreted to impose a condition absent clear and unambiguous language that a condition was intended, Trojan waived it by transferring the funds before the settlement agreement was signed. Moreover, TSSP’s use of transferred $150,000 was proper as TSSP used it in accordance with the Term Sheet, i.e. to help cover costs incurred in progressing the transaction. Trojan further alleges that TSSP’s failure to return the $150,000 constitutes a breach of the Term Sheet. The Term Sheet, however, requires return of funds only if the expenses are less than the $150,000. TSSP used the entire $150,000 as the costs incurred in progressing the transaction were greater than $150,000. There is no issue of fact that TSSP used the whole amount of transferred $150,000 to cover the costs and fees of legal, tax, technical and other professional advisers incurred in progressing the transaction. Therefore, Plaintiff’s breach of contract claim has no merits and fails as a matter of law. Moreover, not only does TSSP not owe Trojan a refund, but in fact, Trojan is liable to TSSP for $75,000. Pursuant to the Term Sheet, Plaintiff was required to pay for all Defendant’s expenses incurred in progressing the Transaction. The parties later modified this requirement to provide that Plaintiff would be liable for up to $225,000 of due diligence expenses. Plaintiff failed to fulfill its obligation. TSSP incurred expenses greater than $225,000 on due diligence. Trojan has remitted only the amount of $150,000 to TSSP for due diligence expenses. Therefore, Plaintiff owes Defendant 2 5 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 the difference of $75,000 for the costs and fees of legal, tax, technical and other professional advisers Defendant incurred in progressing the Transaction. There are no genuine triable issues of material fact with respect to Plaintiff’s breach of the Term Sheet and its modification, or damages, and Defendant is entitled to summary judgment on its counterclaim as a matter of law. Thus, this Court should grant Defendant’s Motion for Summary Judgment dismissing the Amended Complaint in its entirety and granting judgment against Plaintiff and in favor of Defendant on its Counterclaim. FACTUAL BACKGROUND The facts set forth here are based on the allegations of the Amended Complaint 1, documents attached to the Amended Complaint, and the documents submitted by TSSP on this motion. Trojan and TSSP are parties to an executed Term Sheet dated June 26, 2015. “Felicello Aff. Exhibit B at ¶ 19. The Term Sheet provides, in 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 expenses are less than the deposit amount, the Charterer [Trojan] will be refunded any excess amounts.” (emphasis added). Felicello Aff. Exhibit B at ¶ 19 and at Exhibit 6, p. 7; Affidavit of Samuel Ditter in Support of Defendant’s 1 The Amended Complaint, filed on June 9, 2017, is attached as Exhibit B to the Affirmation of Rosanne E. Felicello in Support of Defendant’s Motion for Summary Judgment, dated December 1, 2017 (hereinafter “Felicello Aff.”). 3 6 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 Motion for Summary Judgment (hereinafter, “Ditter Aff.”), Exhibit E. Non-party RMK Maritime LLP encouraged Trojan to prefund the amount of $150,000. Felicello Aff. Exhibit B at ¶¶ 20, 21. Trojan sent TSSP $150,000 by wire transfer in two installments in late July 2015. Felicello Aff. Exhibit B at ¶ 22. By the end of September 2015, negotiations between the parties terminated. Felicello Aff. Exhibit B at ¶ 24. On or about October 7, 2015, Trojan sent an e-mail to a non-party RMK Maritime LLP requesting return of the $150,000. Felicello Aff. Exhibit B at ¶ 25. 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, Ditter Aff., Exhibit F. In its Answer to Counterclaim, Plaintiff admitted that the parties agreed that Plaintiff’s exposure to the Transaction expenses would be capped at $225,000. See, Felicello Aff. Exhibit C2 at paragraph 8. 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, Ditter Aff., Exhibit F. As due diligence progressed, 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, Ditter Aff. Exhibit G. 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, Affidavit of Daniel Louis Wanek in Support of Defendant’s Motion for Summary Judgment (hereinafter, “Wanek Aff.”), Exhibit H. The $150,000 advanced by Plaintiff was used for the intended purpose of conducting due diligence. As reflected in the invoices attached as Exhibit H, 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. 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. 4 7 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 It is undisputed that the parties entered into the final Term Sheet dated June 26, 2017, See, Felicello Aff. Exhibit B at ¶ 19, and that $150,000 was transferred to Defendant on behalf of Plaintiff. See, Felicello Aff. Exhibit B at ¶ 22. Nowhere in the Amended Complaint does Plaintiff allege that the whole sum of $150,000 was not spent on due diligence. Moreover, Plaintiff is unable to provide any evidence to establish that the whole amount of $150,000 was not spent on due diligence while Defendant provides evidence that show the costs and fees of legal, tax, technical and other professional advisers Defendant incurred in progressing the Transaction. Therefore, it is also undisputed that the full amount of $150,000 was expended by TSSP on due diligence. PROCEDURAL POSTURE Trojan filed its original Complaint in this matter on November 15, 2016 alleging breach of fiduciary duty, constructive trust, unjust enrichment, and breach of contract. After briefing by both parties and oral argument, this Court dismissed three of the four counts of the Complaint and provided Plaintiff with leave to re-file to see if it could state a claim for breach of contract. The Court also provided for limited discovery in advance of Plaintiff’s re-filing. Defendants served the limited discovery on Plaintiff and Plaintiff filed an Amended Complaint. Plaintiff’s Amended Complaint re-states the same facts in support of its breach of contract claim as are included in the original Complaint. ARGUMENT STANDARD ON A MOTION FOR SUMMARY JUDGMENT Under Rule 3212 of the New York Civil Practice Law and Rules (“CPLR”), a motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as matter of law in directing judgment in favor of any party”. CPLR 3212. The opponent of a motion for summary judgment “must produce evidentiary proof in admissible form sufficient to require a trial of material questions 5 8 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 of fact on which he rests his claim… mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). POINT I Defendant is Entitled to Summary Judgment Because Plaintiff Cannot Present Any Evidence of Breach of Contract by Defendant. Trojan has not, and cannot, establish its claim for breach of contract. The elements of a breach of contract are: a valid contract, plaintiff’s performance of its obligations, defendant’s breach of the agreement, and resulting damages. Morris v. 702 E Fifth St. HDFC, 46 A.D.3d 478, 479, 850 N.Y.S.2d 6 (1st Dep’t 2007). Trojan alleges that “TSSP’s failure and refusal to return Trojan’s $150,000 pre-funded deposit constitutes a breach of the Term Sheet contract.”. See, Felicello Aff. Exhibit B at ¶ 28. Contrary to Plaintiff’s contention, the Term Sheet does not provide for TSSP’s refund of the prefunded $150,000. The Term Sheet only states that if the expenses are greater than $150,000, Trojan is responsible for the further expenses and if the expenses are less than $150,000, Trojan will be refunded any excess amounts. See, Ditter Aff. Exhibit E at p. 7. The expenses incurred by TSSP in progressing the transaction were greater than $150,000. See, Wanek Aff. Exhibit H. Trojan also argues that “[p]ursuant to the terms of the Term Sheet, the purpose of the pre-fund deposit was to fund TSSP’s costs and fees of legal, tax, technical and other professional advisory only after a final Settlement Agreement was agreed to and signed” and that “[th]e deposit was not to be spent until a final Settlement Agreement was signed.” See, Felicello Aff. Exhibit B at ¶¶ 29, 22. There is no such provision in the Term Sheet. Rather, the Term Sheets states that the amount of $150,000 was to be prefunded “upon” a signed Settlement Agreement, so the deposit was not to be paid until a final Settlement Agreement. See, Ditter Aff. Exhibit E at p. 7. This is a statement of timing not a condition precedent. Further, the Term Sheet does not include any provision requiring TSSP to hold in escrow any funds remitted prior to the execution of a final settlement agreement. See, Ditter Aff. 6 9 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 Exhibit E. Moreover, the interpretation of the Term Sheet that Plaintiff now urges the Court to accept as true could not have been the parties’ intent because it would lead to the absurd result whereby TSSP would take on the entire risk of the due diligence process because Plaintiff had failed to sign a Settlement Agreement with a third party, an act over which TSSP had no control. Trojan further alleges that “any use of any amount of the pre-funded deposit when the Settlement Agreement was not signed constitutes a breach of the parties’ contract”. See, Felicello Aff. Exhibit B at ¶ 31. But the Term Sheet does not state that Defendant is prevented from using funds transferred to it to cover costs incurred in progressing the transaction and it does not include any obligation that TSSP hold the funds in escrow until the settlement agreement is executed. Further, the evidence shows that Trojan was aware that TSSP was using the funds for due diligence activities and contemporaneously approved the expenditures. See, Ditter Aff. Exhibit F and Exhibit G. Thus, Plaintiff cannot state a claim that TSSP breached the contract by using the funds transferred by Trojan to fund due diligence activities. Trojan argues that it was not responsible for due diligence expenses if the Settlement Agreement was not signed. Felicello Aff. Exhibit B at ¶ 23. But terms of an agreement should not be interpreted to impose conditions precedent or subsequent absent clear, unambiguous language expressing the parties’ intent to impose a condition. Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 691 (1995) (“In determining whether a particular agreement makes an event a condition courts will interpret doubtful language as embodying a promise or constructive condition rather than an express condition. This interpretive preference is especially strong when a finding of express condition would increase the risk of forfeiture by the oblige.”); Kass v. Kass, 235 A.D.2d 150, 159, 663 N.Y.S.2d 581, 588 (2nd Dep’t 1997), aff'd, 91 N.Y.2d 554, 696 N.E.2d 174 (1998) (“As a general rule, it must clearly appear from the agreement itself that the parties intended a provision to operate as a condition precedent … If the language is in any way 7 10 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 ambiguous, the law does not favor a construction which creates a condition precedent…”); Edelman Arts, Inc. v. Art Intern. (UK) Ltd., 841 F.Supp.2d 810, 825-826.; 2012 WL 183641 (S.D.N.Y., 2012) citing Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1099–1100 (2d Cir.1992)(“Conditions are not favored under New York law, and in the absence of unambiguous language, a condition will not be read into the agreement”); Edelman Arts, Inc., at 825-826 (“Thus, New York courts have repeatedly stated that if contract “language is in any way ambiguous, the law does not favor a construction which creates a condition precedent.” Ashkenazi v. Kent South Assocs., LLC, 51 A.D.3d 611, 857 N.Y.S.2d 693, 694 (2008); accord Torres v. D'Alesso, 80 A.D.3d 46, 910 N.Y.S.2d 1, 10 (2010); Lui v. Park Ridge at Terryville Ass'n, 196 A.D.2d 579, 601 N.Y.S.2d 496, 499 (1993); Vincent v. Seaman, 152 A.D.2d 841, 544 N.Y.S.2d 225, 227 (1989). And “a contractual duty ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition.” Unigard Sec. Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 584 N.Y.S.2d 290, 594 N.E.2d 571, 573 (1992).”). The Term Sheet provides for the timing of the payment of $150,000; it does not establish a condition to such payment. It states that Trojan is responsible for payment of all TSSP’s expenses incurred in progressing the Transaction “whether or not the transaction is finalized or Definitive Documents are executed.” See, Ditter Aff., Exhibit E, p. 7 (emphasis added). “Definitive Documents” are defined as definitive legal documentation governing the transaction. Ditter Aff., Exhibit E, p. 1. It further provides that an amount of $150,000 is to be prefunded immediately upon a signed Settlement Agreement and that Trojan shall not be responsible for any expenses until a final Settlement Agreement is signed. See, Ditter Aff., Exhibit E, p. 7 (emphasis added). This language does not create a clear, unambiguous condition that is to be met before any funds transferred by Trojan to TSSP could be spent on due diligence expenses. Moreover, the result sought by Plaintiff, a return of the entire $150,000 representing its share of the due diligence 8 11 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 expenses, could not have been intended by the parties because such a result defeats the whole purpose of the transfer of due diligence funds, i.e. to allow the parties to share in the risk of due diligence. Even assuming that execution of the Settlement Agreement could be viewed as a condition, Plaintiff waived it by making the payment. As evidenced in the emails attached to the Amended Complaint, Trojan was aware that the due diligence funds were required to progress the Transaction. See, Felicello Aff. Exhibit B at Exhibit 7 and Exhibit 8. Trojan was aware the funds it transferred were being used to fund costs incurred in advancing the transaction and its principal/representative was approving due diligence process. See, Ditter Aff. Exhibit F and Exhibit G. Trojan wanted to proceed with the transaction (See, Felicello Aff. Exhibit B at ¶ 22) so it participated in costs of its progression. Additionally, Defendant relied on Plaintiff’s waiver as it used the transferred funds to cover the expenses incurred in progressing the Transaction. Therefore, even if there was a condition precedent to Trojan’s transfer of funds, Trojan waived the condition, and TSSP relied on this waiver, by transferring the funds prior to the execution of the Settlement Agreement with the third party. Trojan further alleges that TSSP's spending the pre-funded deposit before a final Settlement Agreement was signed constitutes “a breach of the parties' contract and an improper purpose and use of said funds.” (emphasis added). See, Felicello Aff. Exhibit B at ¶ 32. The Term Sheet provides in 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.” See, Ditter Aff. Exhibit E at p. 7. Defendant expended the pre-funded $150,000 to cover the costs and fees of legal, tax, technical and other professional advisers incurred in 9 12 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 progressing the Transaction, i.e. for its intended, expressly provided in the Term Sheet, purpose. As indicated on the invoices, the $150,000 was used in its entirety. See, Wanek Aff., Exhibit H. Based on the foregoing, Defendant has made a prima facie showing of its entitlement to summary judgment on the grounds that there are no genuine disputed issues of material fact, and that the Plaintiff’s cause of action has no merits. POINT II Defendant and Counterclaim-Plaintiff is Entitled to Summary Judgment on Its Counterclaim Because There Are No Genuine Triable Issues of Material Fact that Plaintiff and Counterclaim- Defendant Owes the balance of $75,000. The elements of a breach of contract are: a valid contract, plaintiff’s performance of its obligations, defendant’s breach of the agreement, and resulting damages. Morris v. 702 E Fifth St. HDFC, 46 A.D.3d 478, 479, 850 N.Y.S.2d 6 (1st Dep’t 2007). The Term Sheet that the parties signed provides in 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 expenses are less than the deposit amount, the Charterer [Trojan] will be refunded any excess amounts.” See, Ditter Aff. Exhibit E at p. 7 (emphasis added). As indicated above, on p. 6-8, the Term Sheet’s reference to the signed Settlement Agreement provides for timing of Plaintiff’s payment for the Transaction expenses and does not constitute a condition to Plaintiff’s payment of the Transaction expenses. Plaintiff breached its promise under the Term Sheet to pay for all Defendant’s expenses incurred in progressing the Transaction. The Parties later modified this agreement to provide that Plaintiff would be liable for up to $225,000 of due diligence expenses. See, Felicello Aff. Exhibit C2, Ditter Aff., Exhibit F. TSSP 10 13 of 14 FILED: NEW YORK COUNTY CLERK 12/01/2017 06:12 PM INDEX NO. 655978/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/01/2017 incurred expenses greater than $225,000 on due diligence. See, Wanek Aff. Exhibit H. Trojan has only remitted the amount of $150,000 to TSSP for due diligence expenses. See, Felicello Aff. Exhibit B at ¶ 22. Therefore, Plaintiff owes Defendant the difference of $75,000 for the costs and fees of legal, tax, technical and other professional advisers Defendant incurred in progressing the Transaction. As a result of Plaintiff’s breach, Defendant has suffered damages in the principal amount of $75,000. The terms of the Term Sheet and its later modification, as well as the intent of the parties, are clear. There are no genuine triable issues of material fact with respect to Plaintiff’s breach of the Term Sheet and its modification, or damages, and Plaintiff’s defenses to the Defendant’s cause of action have no merits. Thus, Defendant is entitled to summary judgment on its counterclaim as a matter of law. CONCLUSION For all the foregoing reasons, Defendant’s motion for summary judgment shall be granted in its entirety. Dated: New York, New York December 1, 2017 Respectfully submitted, FELICELLO & MELCHIONNA LLP /s/ Rosanne E. Felicello By : ____________________________ Rosanne E. Felicello, Esq. Zofia H. Rubens, Esq. 1330 Avenue of the Americas, 12thFloor New York, NY 10019 Tel. (212) 626-2616 Attorneys for Defendant TPG Sixth Street Partners, LLC 11 14 of 14