Avenue Clo IV, LTD. v. Bank of America, NA , 723 F.3d 1287 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11815
________________________
D.C. Docket Nos. 1:09-md-02106-ASG, 1:09-cv-23835-ASG
AVENUE CLO FUND, LTD.,
et. al.,
Plaintiffs,
AVENUE CLO IV, LTD.,
AVENUE CLO V, LTD.,
AVENUE CLO VI, LTD.,
BRIGADE LEVERAGED CAPITAL STRUCTURES FUND, LTD.,
BATTALION CLO 2007-I LTD.,
CASPIAN CAPITAL PARTNERS, L.P.,
CASPIAN SELECT CREDIT MASTER FUND, LTD.,
ING PRIME RATE TRUST,
ING SENIOR INCOME FUND,
ING INTERNATIONAL (II) -SENIOR BANK LOANS EURO,
ING INVESTMENT MANAGEMENT CLO I, LTD.,
ING INVESTMENT MANAGEMENT CLO II, LTD.,
ING INVESTMENT MANAGEMENT CLO III, LTD.,
ING INVESTMENT MANAGEMENT CLO IV, LTD.,
ING INVESTMENT MANAGEMENT CLO V, LTD.,
VENTURE II CDO 2002, LIMITED,
VENTURE III CDO LIMITED,
VENTURE IV CDO LIMITED,
VENTURE V CDO LIMITED,
VENTURE VI CDO LIMITED,
VENTURE VII CDO LIMITED,
VENTURE VIII CDO LIMITED,
VENTURE IX CDO LIMITED,
VISTA LEVERAGED INCOME FUND,
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VEER CASH FLOW CLO, LIMITED,
MARINER LDC,
GENESIS CLO 2007-1 LTD.,
CANPARTNERS INVESTMENTS IV, LLC,
SCROGGIN CAPITAL MANAGEMENT II,
SCROGGIN INTERNATIONAL FUND LTD.,
SCROGGIN WORLDWIDE FUND LTD.,
CASPIAN ALPHA LONG CREDIT FUND, L.P.,
SOLA LTD,
MONARCH MASTER FUNDING, LTD.,
SOLUS CORE OPPORTUNITIES MASTER FUND LTD.,
CANTOR FITZGERALD SECURITIES,
OLYMPIC CLO I, LTD.,
SHASTA CLO I, LTD.,
WHITNEY CLO I LTD.,
SAN GABRIEL CLO I LTD.,
SIERRA CLO II LTD.,
NORMANDY HILL MASTER FUND, L.P.,
SPCP GROUP, LLC,
VENURE CAPITAL MASTER FUND, LTD.,
Plaintiffs - Appellants,
versus
SUMITOMO MITSUI BANKING CORPORATION,
et al.,
Defendants,
BANK OF AMERICA, NA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 26, 2013)
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Before TJOFLAT and MARTIN, Circuit Judges, and BUCKLEW, * District Judge.
MARTIN, Circuit Judge:
This case is one of many resulting from the failure of the project to build a
Fontainebleau Resort in Las Vegas. The Fontainebleau Las Vegas was a hotel and
casino development project on an approximately 24.4 acre parcel at the north end
of the Las Vegas Strip. Here, a group of lenders and their successors in interest
(Term Lenders) appeal the District Court’s grant of summary judgment in favor of
Bank of America. See In re Fontainebleau Las Vegas Contract Litigation MDL
No. 2106, No. 09-MD-02106-CIV, 2012 WL 930290, *1 (S.D. Fla. March 19,
2012). After careful review, and with the benefit of oral argument, we affirm in
part, reverse in part, and remand for further proceedings consistent with this
opinion.
I. FACTUAL BACKGROUND
This case is a contract dispute related to the funding of the development of
the Fontainebleau Las Vegas (the Project). See In re Fontainebleau, 2012 WL
930290, at *1–49. On one side of the dispute are the Term Lenders, which loaned
money to Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas II, LLC
(the Borrowers). The Borrowers’ parent company, Fontainebleau Resorts, LLC,
was the developer of the Fontainebleau Las Vegas. On the other side of the
*Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
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dispute is Bank of America, which was the Disbursement Agent responsible under
the funding agreements for disbursing the Term Lenders’ funds to the Borrowers.
A. THE FUNDING STRUCTURE
At the beginning, the Project’s budget was $2.9 billion, with $1.85 billion to
be funded by a senior secured debt facility (Senior Credit Facility). 1 The Senior
Credit Facility was set up by the Credit Agreement and consisted of three
components: a $700 million Initial Term Loan Facility; a $350 million Delay Draw
Term Loan Facility; and an $800 million Revolving Loan Facility.
The Term Lenders own Initial Term Loan and Delay Draw Term Loan
notes. The Initial Term Loans were due on the closing date. The Delay Draw
Term Loans and Revolving Loans were disbursed on a periodic basis under the
terms of the Disbursement Agreement. Bank of America was the Disbursement
Agent responsible for distributing the funds under the terms of the Disbursement
Agreement.
B. DISPERSING THE MONEY
The process set up for the Borrowers to get the money had a lot of moving
parts. The Credit Agreement required the Borrowers to first submit a Notice of
Borrowing to the Administrative Agent (Bank of America). This would prompt
1
The balance of the Project was funded by a $675 million Second Mortgage Note offering and a
$400 million Retail Facility. The Retail Facility was the sole source of funding for the retail
portion of the Fontainebleau Las Vegas. The resort budget included $83 million in costs that
were to be funded through the Retail Facility.
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the Term Lenders and/or Revolving Lenders to give the money to the
Administrative Agent. If the Notice of Borrowing included the proper information
and the Borrowers submitted no more than one Notice per month, the
Administrative Agent would transfer the loan funds into the Bank Proceeds
Account. One difference between the Delay Draw Term Loans and Revolving
Loans was that “the proceeds of each Delayed Draw Term Loan [was] applied first
to repay in full any then outstanding Revolving Loans . . . and second, to the extent
of any excess, [was] credited to the Bank Proceeds Account.”
Once funds were in the Bank Proceeds Account, the Borrowers had to
submit another request, called the Advance Request, which included a series of
general representations and certifications, to the Disbursement Agent (Bank of
America). When it received the Advance Request, Bank of America, as
Disbursement Agent, as well as the Construction Consultant were required to
review the Advance Request and determine whether all the required documentation
was provided. The Construction Consultant was also required to deliver a
certificate to Bank of America either approving or disapproving the Advance
Request.
Under the Disbursement Agreement, the next step turned on whether the
conditions precedent set forth in Article 3 of the Disbursement Agreement were
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satisfied.2 If the conditions precedent were met, Bank of America, in its role as
Disbursement Agent, was required to execute an Advance Confirmation Notice
and the funds would be disbursed to the Borrowers. If, on the other hand, the
conditions precedent were not met then Bank of America was required to issue a
Stop Funding Notice. Bank of America’s duties as Disbursement Agent, with
respect to determining whether the conditions precedent were or were not satisfied,
is one of the disputes between the parties that will be the subject of our discussion
in Part IV.A of this Order.
C. MONEY DISPERSED DURING THE TIME IN DISPUTE
For each Advance Request from September 2008 through March 2009, Bank
of America, as Disbursement Agent, received the required Advance Request
certifications from the Borrowers, the Construction Consultant, the contractor, and
the architect. Throughout this period Bank of America continued to disburse funds
to the Borrowers and never issued a Stop Funding Notice.
However, the Term Lenders have pointed to a number of events, beginning
in September 2008, which they say “caused the failures of multiple conditions
precedent.” They delineate these events as: “the Lehman bankruptcy and the
2
The conditions included, for example, that “[n]o Default or Event of Default shall have
occurred and be continuing”; “there shall not have occurred any change in the economics or
feasibility of constructing and/or operating the Project, or in the financial condition, business or
property of Fontainebleau, any of which could reasonably be expected to have a Material
Adverse Effect”; and “the Retail Agent and the Retail Lenders shall . . . make any Advances
required of them.” Other conditions that the parties believe are relevant to this case are set forth
in §§ 3.3.2, 3.3.8, 3.3.21, and 3.3.24 of the Disbursement Agreement.
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funding of the Retail Facility; Fontainebleau’s failure to disclose anticipated
Project costs; repudiation by the FDIC of First National Bank of Nevada’s
commitments; select lenders’ failure to fund with respect to the March 2009
Advance; and the ‘untimely’ submission of the March 2009 Advance.” See In re
Fontainebleau, 2012 WL 930290, at *15. How much Bank of America knew about
these events is another source of dispute between the parties. That dispute will be
the subject of our discussion in Part IV.B of this Order.
In April 2009, the “Total Revolving Commitments” were ended because the
Revolving Lenders determined that there had been Events of Default. In May
2009, Bank of America commissioned a “cost-complete review” of the Project,
which revealed that Fontainebleau had been concealing cost overruns. Finally, on
June 9, 2009, the Borrowers and some of their affiliates filed for bankruptcy.
II. PROCEDURAL HISTORY
On January 15, 2010, the Term Lenders filed a Second Amended Complaint
alleging, as relevant to this appeal, that Bank of America breached the
Disbursement Agreement. 3 Following discovery, the parties filed cross-motions
for summary judgment.
3
The Complaint also alleged breach of the Credit Agreement, breach of the implied covenant of
good faith and fair dealing, and requested declaratory relief.
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The District Court granted summary judgment in favor of Bank of America
because it determined that “the Term Lenders, with all inferences in their favor,
have failed to raise a genuine issue of material fact as to whether Bank of America,
as Disbursement Agent or Bank Agent, breached the Disbursement Agreement, or
whether Bank of America acted with bad faith, gross negligence, or willful
misconduct.” In re Fontainebleau, 2012 WL 930290, at *26. In reaching that
conclusion, the District Court made several preliminary findings. First, the District
Court held that “[i]n determining whether the conditions precedent to an Advance
Request were satisfied, Bank of America was explicitly authorized to rely on
Fontainebleau’s certifications . . . and was explicitly not required to conduct ‘any
independent investigation as to the accuracy, veracity, or completeness’ of those
certifications.” Id. at *28. Second, the District Court determined that “Bank of
America, as Disbursement Agent, did not act in bad faith or with gross negligence
or willful misconduct in performing its duties under the Disbursement Agreement.”
Id. at *34. Third, the District Court found that there was no evidence on summary
judgment that Bank of America breached the Disbursement Agreement by
disbursing funds despite having actual knowledge that a condition precedent was
not satisfied. Id. at * 35.
The Term Lenders timely filed a Notice of Appeal on March 22, 2012.
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III. STANDARD OF REVIEW
“This Court reviews the granting of summary judgment de novo, applying
the same legal standards which bound the district court.” Whatley v. CNA Ins.
Companies, 189 F.3d 1310, 1313 (11th Cir. 1999). “Summary judgment is
appropriate only when there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Id. (quotation marks
omitted). “An issue of fact is material if it ‘might affect the outcome of the suit
under governing law’” and it is “genuine ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Western Grp. Nurseries,
Inc. v. Ergas, 167 F.3d 1354, 1360 – 61 (11th Cir. 1999) (quoting Anderson v.
Liberty Lobby, Inc., 466 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986)).
All “evidence must be viewed in the light most favorable to the party
opposing the motion for summary judgment.” Blackston v. Shook and Fletcher
Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985). The Court “must avoid
weighing conflicting evidence or making credibility determinations.” Stewart v.
Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). “All reasonable
inferences arising from the undisputed facts should be made in favor of the
nonmovant, but an inference based on speculation and conjecture is not
reasonable.” Blackston, 764 F.2d at 1482 (internal citation omitted).
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IV. DISCUSSION
In its appeal, the Term Lenders argue that the District Court erred in
granting summary judgment to Bank of America because: 1) it based its
determination on a misunderstanding of Bank of America’s duties under the
Disbursement Agreement; 2) there remain genuine issues of material fact about
whether Bank of America breached the Disbursement Agreement; and 3) there
remain genuine issues of material fact about whether Bank of America was grossly
negligent. We will discuss each of these issues in turn.
A. BANK OF AMERICA’S DUTIES UNDER THE DISBURSEMENT
AGREEMENT
In ruling on the summary judgment motion, the District Court necessarily
had to determine what Bank of America’s duties were under the relevant portions
of the Disbursement Agreement. Both parties agree that if the conditions
precedent were satisfied, Bank of America was supposed to deliver an Advance
Confirmation Notice so that the Term Lenders’ funds could be disbursed to the
Borrowers. Both parties also agree that if any of the relevant conditions precedent
were not satisfied Bank of America was required to issue a Stop Funding Notice.
The parties disagree, however, on whether Bank of America had an affirmative
duty to determine that the conditions precedent were satisfied or whether Bank of
America was permitted to rely on the Borrowers’ certifications that the conditions
precedent were satisfied unless it had actual knowledge to the contrary.
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The District Court determined that “[t]he Disbursement Agreement imposed
on Bank of America no duty to inquire or investigate whether [the Borrower’s]
representations that all conditions precedent had been met were accurate.” In re
Fontainebleau, 2012 WL 930290, at *48. For the reasons set out here, we agree
with this determination.
“Under New York Law, the initial interpretation of a contract is a matter of
law for the court to decide.” Alexander & Alexander Servs., Inc. v. These Certain
Underwriters at Lloyd’s, London, 136 F.3d 82, 86 (2d Cir. 1998) (quotation marks
omitted). 4 A court must enforce a contract provision that is “complete, clear and
unambiguous on its face . . . according to the plain meaning of the terms.”
Greenfield v. Phillies Records, Inc., 780 N.E.2d 166, 170 (N.Y. 2002). When
interpreting a contract, a court should look at the whole agreement and try to give
meaning to all of the contract’s provisions. See RLI Ins. Co. v. Smiedala, 947
N.Y.S.2d 850, 853 (App. Div. 2012). But, in the face of any inconsistency
between a general provision and specific provisions, the specific provisions
prevail. See Muzak Corp. v. Hotel Taft Corp., 133 N.E.2d 688, 690 (N.Y. 1956).
The specific provision of the Disbursement Agreement that most directly
addresses this issue is § 9.3.2. That section explains that:
Notwithstanding anything else in this Agreement to the contrary, in
performing its duties hereunder, including approving any Advance
4
The Disbursement Agreement says that it is to be governed by New York law. [D.A. § 11.6]
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Requests . . . the Disbursement Agent shall be entitled to rely on
certifications from the Project Entities . . . as to the satisfaction of any
requirements and/or conditions imposed by this Agreement.
The clear language of this provision supports Bank of America’s interpretation of
its duties under the Disbursement Agreement: Bank of America had to determine
that the conditions precedent were satisfied, but in doing so it was permitted to rely
on the Borrower’s certifications.
Bank of America, as Disbursement Agent, would not have been permitted to
rely on the Borrowers’ certifications that the conditions precedent were met if it
had actual knowledge to the contrary. If Bank of America actually knew that a
condition precedent was not satisfied, it would not be commercially reasonable to
interpret the Agreement to allow Bank of America to disregard that knowledge by
pointing to a certification by the Borrower, which it knows to be false. See In re
Lipper Holdings, LLC, 766 N.Y.S.2d 561, 562 (App. Div. 2003) (explaining that a
contract “should not be interpreted to produce a result . . . commercially
unreasonable, or contrary to the reasonable expectations of the parties” (internal
citations omitted)).
However, if Bank of America merely had information that was inconsistent
with the Borrowers’ certification, it did not have an affirmative duty to determine
whether the condition precedent was actually satisfied. Section 9.3.2 does not
include any language requiring Bank of America, as Disbursement Agent, to verify
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the accuracy of the Borrowers’ certifications. Instead, immediately following the
language quoted above, § 9.3.2 includes language suggesting that the opposite is
true:
The Disbursement Agent shall not be required to conduct any
independent investigation as to the accuracy, veracity or
completeness of any such items . . . .
In addition, according to § 9.10 of the Agreement, “nothing in this Agreement . . .
shall be so construed as to impose” obligations on Bank of America “except as
expressly set forth herein.”
Under this interpretation of Bank of America’s duties as Disbursement
Agent, Bank of America would still have to determine whether each condition
precedent was satisfied if it did not have a certification it could rely on. For
example, as the Term Lenders point out, there are some conditions for
disbursement that the Borrowers could not certify, such as the condition in
§ 3.3.24, requiring that the Bank Agent “receive[] such other documents and
evidence as are customary . . . as the Bank Agent may reasonably request.” Also,
it is not hard to imagine a circumstance in which the Borrowers chose not to give
such a certification or where Bank of America had actual knowledge that the
certification was false. In situations like these, § 9.3.2 would play no role because
there would be no certification Bank of America, as Disbursement Agent, could
rely on when determining whether the condition precedent was satisfied. It is
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under these circumstances that other provisions of the Agreement – such a § 9.2.1,
giving Bank of America the right to review information supporting the Advance
Requests, and § 2.5.1, requiring that Bank of America “specify, in reasonable
detail, the conditions precedent which [it] has determined have not been satisfied”
– would have had more relevance
B. DID BANK OF AMERICA BREACH THE DISBURSEMENT
AGREEMENT?
Bank of America was permitted to rely on the Borrowers’ certifications
unless it had actual knowledge that the conditions precedent were not satisfied.
During the relevant period, the Borrowers certified that the conditions precedent
were met. Therefore, Bank of America could have only been in breach by
disbursing funds to the Borrowers if it had actual knowledge that the conditions
precedent were not satisfied.
In granting summary judgment to Bank of America, the District Court
determined that “with all inferences in favor of the Term Lenders, the Term
Lenders . . . failed to present a genuine issue of material fact as to whether Bank of
America, as Disbursement Agent or Bank Agent, had actual knowledge of the
failure of any conditions precedent to disbursement.” In re Fontainebleau, 2012
WL 930290, at *48. For the reasons we will outline here, we have come to a
different conclusion.
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As detailed in the District Court’s thorough opinion, the Term Lenders
contend that Bank of America should have stopped disbursing funds to the
Borrowers because, at some point between September 2008 and March 2009, Bank
of America became aware of certain events, discussed below, that it knew caused
the failure of seven separate conditions precedent listed in § 3.3 of the
Disbursement Agreement. Id. at *8–9, 15–24. Under the terms of that agreement,
once the Bank of America knew that conditions precedent were not satisfied, it was
required to issue a Stop Funding Notice to temporarily halt disbursal of the funds.
1. Lehman Brothers’ Bankruptcy and Failure to Fund
Lehman Brothers Holdings, Inc. (Lehman) was the largest lender under the
Retail Facility and the Administrative Agent of the Retail Facility. No one
disputes that Lehman filed for bankruptcy on September 15, 2008. Neither is it
disputed that Fontainebleau funded Lehman’s approximately $2.5 million share of
the September 2008 Retail Advance and essentially funded Lehman’s portion of
the Retail Advances from December 2008 through March 2009 by reimbursing
ULLICO, a Co-Lender under the Retail Facility, for funding those amounts.
The failure of Lehman may have caused the failure of several conditions
precedent in and of itself. For example, Fontainebleau’s funding of Lehman’s
share of the September Retail Advance was a failure of the condition in § 3.3.23,
requiring that the Retail Lenders make all advances required of them. Also, if
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Lehman’s bankruptcy was a “change in the economics” of the Project “which
could reasonably be expected to have a Material Adverse Effect,” there would have
been a failure of the condition in § 3.3.11, requiring that no such change shall have
occurred. 5
What the parties do dispute is whether Bank of America had actual
knowledge of these events and whether the impact of these events on the
conditions precedent was such that the disbursing of funds constituted a breach of
contract. The Term Lenders argue that Bank of America had actual knowledge
that Lehman did not fund its share of the September Retail Advance and that
Fontainebleau paid the money for Lehman. In support of this view of the facts, the
Term Lenders point to a number of things: 1) a series of letters from Highland
Capital Management, one of the original term lenders, alerting Bank of America to
the serious impact Lehman’s bankruptcy could have on the Project and suggesting
that Fontainebleau funded Lehman’s share of the September Retail Advance; 2)
testimony by McLendon Rafeedie, the primary contact at TriMont Real Estate
5
The Term Lenders also argue that Lehman’s bankruptcy and its failure to fund could have led
to the failure of several other conditions precedent in the Disbursement Agreement: § 3.3.21,
requiring that the Bank Agent shall not have become aware of information that is materially
inconsistent with the information disclosed to them; § 3.3.3, requiring that no “Default or Event
of Default” has occurred and is continuing ; and § 3.3.2, requiring that the Borrowers’
representation that there was no “Event of Default” was true in all material respects. Our
analysis of Bank of America’s actual knowledge applies equally to these conditions precedent
even though we do not specifically discuss them. The Term Lenders made other arguments on
appeal about why genuine issues of material fact remain with respect to Bank of America’s
knowledge of the failure of these conditions. However, our analysis in this section makes it
unnecessary for us to address them.
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Advisors, Inc. about TriMont’s role as servicer of the Retail Facility, explaining
that he knew Fontainebleau funded for Lehman and suggesting that it was possible
that he informed Bank of America about this; 3) an October 2008 meeting among
executives of Fontainebleau, Bank of America, and certain Retail Co-Lenders
where the implications of Lehman’s bankruptcy were discussed; and 4)
Fontainebleau’s suspicious evasiveness on the topic of Lehman’s bankruptcy and
its nonresponsive answers to Bank of America’s questions about who funded
Lehman’s share of the September Advance.
As the District Court’s opinion details, there are ways to discount each of
these categories of evidence as showing, at most, a reason that Bank of America
should have been suspicious that Fontainebleau funded Lehman’s share of the
September Retail Advance. See In re Fontainebleau, 2012 WL 930290, at *37–40.
However, taken together and viewed in the light most favorable to the Term
Lenders, we conclude that this circumstantial evidence creates a genuine issue of
material fact with respect to whether Bank of America had actual knowledge that
Fontainebleau paid Lehman’s share of the September Retail Advance. Cf. United
States v. Santos, 553 U.S. 507, 521, 128 S. Ct. 2020, 2029 (2008) (explaining that
the “knowledge element” of the offense “will be provable (as knowledge must
almost always be proved) by circumstantial evidence”).
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Forwarding a similar argument, the Term Lenders also say that Bank of
America had actual knowledge that Lehman’s bankruptcy was a “change in the
economics . . . which could reasonably be expected to have a Material Adverse
Effect.” To support this proposition, the Term Lenders highlight: 1) the large share
of the Retail Facility that Lehman was responsible for funding; 2)
contemporaneous statements made by Bank of America employees about the
potential impact Lehman’s bankruptcy would have on the Project together with
their later explanations of those statements; 3) the letters from Highland Capital
Management mentioned above; and 4) discussions at the October 2009 meeting
(also mentioned above) about the impact of Lehman’s bankruptcy on the Project
and the Retail Co-Lenders’ unwillingness to pay Lehman’s portion if Lehman was
unable to pay.
The District Court’s opinion accurately details how, despite Lehman’s
bankruptcy, “there was no indication that there would be a shortfall in Retail Funds
or that the Retail Lenders would fail to honor their obligations under the Retail
Facility.” In re Fontainebleau, 2012 WL 930290, at * 17. However, when taken
together and viewed in the light most favorable to the Term Lenders, we conclude
that the Term Lenders’ evidence raises a genuine question of material fact about
whether Bank of America had actual knowledge that Lehman’s bankruptcy was a
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change in the economics of the Project “which could reasonably be expected to
have a Material Adverse Effect.” (emphasis added).
2. First National Bank of Nevada’s Repudiation, Cost Overruns, and the
Default of Several Delay Draw Term Lenders
That several other events of consequence happened during the period of
September 2008 through 2009 is also undisputed. First, in late December 2008,
the Federal Deposit Insurance Corporation, which had been appointed as receiver
of First National Bank of Nevada (a Delay Draw Term Loan and Revolving Loan
Lender), formally repudiated First National Bank of Nevada’s unfunded Senior
Credit Facility commitments. These commitments amounted to $1,666,666 under
the Delay Draw Term Loan and $10,000,000 under the Revolver Loan.
Second, in January and March 2009, the Construction Consultant issued
Project Status Reports expressing concerns that the Borrowers’ Anticipated Cost
Report did not accurately reflect increases in the Project budget. In March, the
Consultant issued a Construction Consultant Advance Certificate declaring that
there were material errors in the Advance Request and that the budget did not
accurately reflect costs. By the end of March, the Borrowers increased the Project
budget by more than $114,000,000.6
6
The Borrowers first increased construction costs by $64,854,000. Based on the Construction
Consultant’s Advance Certificate, the Borrowers increased the budget by another $50,000,000.
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Third, in March 2009, the Borrowers submitted a Notice of Borrowing
requesting a Delay Draw Term Loan for the entire $350 million facility.
Guggenheim (which controlled five Delay Draw Term Loan investment funds) and
Z Capital Finance, LLC (a Delay Draw Term Lender) failed to give Bank of
America funds as they were obligated to under the Credit Agreement.
Guggenheim’s portion of the Delay Draw Term Loan was $10,000,000 and Z
Capital was responsible for $11,666,666. Despite their failure to fund, Bank of
America included these commitments as “Available Funds” to calculate whether
the Project was “In Balance.”
No one disputes that these events may be relevant to several conditions
precedent. For example, if either First National Bank of Nevada’s repudiation or
Guggenheim’s and Z Capital’s failures to fund “could reasonably be expected to
result in a Material Adverse Effect,” this would have been an Event of Default
under the Credit Agreement. Based on this, the condition in § 3.3.3 of the
Disbursement Agreement would not have been satisfied. 7 Also, if these events,
7
This condition required that “No Default or Event of Default shall have occurred and be
continuing.” “Event of Default” was defined as being an “Event of Default under any of the
Facility Agreements.” One “Event of Default” under the Credit Agreement was any breach or
default by any party to the agreements of any term of the agreements provided that it “could
reasonably be expected to result in a Material Adverse Effect.”
If Bank of America had actual knowledge that the condition in § 3.3.3 was not satisfied
because there was an “Event of Default,” the condition in § 3.3.2 would also be implicated
because Bank of America would have had actual knowledge that Fontainebleau’s representation
that there was no “Event of Default” was not “true and correct.”
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considered together with Lehman’s bankruptcy, amounted to a “change in the
economics” of the Project “which could reasonably be expected to have a Material
Adverse Effect,” then the condition in § 3.3.23 would not have been satisfied.
However, the parties do dispute whether these events did, in fact, cause
failures of the conditions precedent and whether Bank of America had actual
knowledge of the failures. The primary basis for the District Court’s determination
that these events did not constitute failures of conditions precedent, which Bank of
America urges us to adopt, was its determination that each of these events was not
material, as a matter of law. See In re Fontainebleau, 2012 WL 930290, at *43–44.
In arguing to defeat this materiality determination by the District Court, and to
support their own view that these events “could reasonably be expected to have a
Material Adverse Effect,” the Term Lenders: 1) take issue with the District Court’s
finding that the loan amounts of the Senior Credit Facility that were not available
due to First National Bank of Nevada’s repudiation and Guggenheim’s and Z
Capital’s failures to fund were immaterial as a matter of law; 2) point out that, as
the District Court acknowledged, Guggenheim’s and Z Capital’s failures to fund
caused the Project’s budget to be out of balance; 3) highlight Bank of America’s
recognition of how difficult it would be to secure alternative lenders; and 4) argue
that “[t]he intricate, interlocking agreements reflected the reality that no reasonable
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lender would fund without assurances that other lenders would also fund to
completion.”
Considering all of this together, the Term Lenders have raised genuine
issues of material fact about whether there were “Events of Default” to the extent
that these events “could reasonably be expected to have a Material Adverse Effect”
and whether Bank of America had actual knowledge of this fact. Cf. e.g., Lucas v.
Fla. Power & Light Co., 765 F.2d 1039, 1040–41 (11th Cir. 1985) (explaining that
“questions of materiality” are “[m]ixed questions of law and fact” that “involve
assessments peculiarly within the province of the trier of fact”); Willjeff, LLC v.
United Realty Mgmt. Corp., 920 N.Y.S.2d 495, 497 (N.Y. App. Div. 2011)
(explaining that materiality is generally a question for the finder of fact unless “the
evidence concerning the materiality is clear and substantially uncontradicted”).
Even if First National Bank of Nevada’s repudiation, and Guggenheim’s and Z
Capital’s failures to fund could not have been expected to result in a Material
Adverse Effect when considered one by one, taken together and in conjunction
with the large increase in the Project budget and Lehman’s bankruptcy, we have no
problem concluding there is a genuine issue of material fact regarding whether
Bank of America knew that there was a “change in the economics” of the Project
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“which could reasonably be expected to have a Material Adverse Effect,” thereby
implicating the condition in § 3.3.11. 8
C. WAS BANK OF AMERICA GROSSLY NEGLIGENT?
Under § 9.10 of the Disbursement Agreement, Bank of America, as
Disbursement Agent, had no responsibility “except for any bad faith, fraud, gross
negligence or willful misconduct” and could not be held liable for any loss “except
as a result of [its] bad faith, fraud, gross negligence or willful misconduct.” Under
New York law, these are high standards. For example, New York law defines
gross negligence as “conduct that evinces a reckless disregard for the rights of
others or smacks of intentional wrongdoing,” Colnaghi, U.S.A., Ltd. v. Jewelers
Protection Servs., Ltd., 81 N.Y.2d 821, 823–24 (N.Y. 1993) (quotation marks
omitted), or “the failure to exercise even slight care,” Food Pageant, Inc. v.
Consolidated Edison Co., Inc., 54 N.Y.2d 167, 172 (N.Y. 1981).
However, “[g]enerally, the particular standard of care which a defendant is
judged against in a given case is a factual matter for the jury.” Food Pageant, Inc.,
54 N.Y.2d at 172. Thus, “[w]here the inquiry is to the existence or nonexistence of
gross negligence . . . the question . . . [is] a matter for jury determination.” Id. at
8
The Term Lenders argue that Bank of America was in breach of the Disbursement Agreement
because it disbursed funds even though it had actual knowledge that seven conditions precedent
had failed. Because we have concluded that there were genuine issues of material fact as to five
of these conditions, we decline to address the remaining two conditions precedent. Neither will
we address Term Lenders’ arguments about several other purported failures of the conditions
precedent we have discussed. We leave it to the District Court to reevaluate these issues, as
necessary, in light of this opinion and further proceedings before that court.
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173. “While gross negligence may be found as a matter of law in some limited
instances,” Trump Int’l Hotel & Tower v. Carrier Corp., 524 F. Supp. 2d 302, 315
(S.D.N.Y. 2007), it cannot be resolved as a matter of law in this case.
Here, there is an issue of fact about whether Bank of America was grossly
negligent. For example, under our interpretation of the Disbursement Agreement,
Bank of America would have been in breach of the Agreement if it disbursed the
Term Lenders’ funds to the Borrowers even though it had actual knowledge that
any one of the conditions precedent had failed. We have discussed why we believe
there are genuine issues of material fact about whether Bank of America had actual
knowledge that a number of conditions precedent had failed. In addition to those
things we discussed, the Term Lenders have also established a dispute of material
fact on the subject of whether Bank of America had actual knowledge that some of
these conditions precedent had failed months before it disbursed funds to the
Borrowers or that Bank of America had actual knowledge that some of these
conditions precedent had failed for several different reasons. A jury could find that
the cumulative effect of Bank of America’s disbursing funds despite having actual
knowledge about the failure of many different conditions precedent amounted to
gross negligence. A jury could also find that certain conditions precedent were so
material to the Agreement that Bank of America’s conduct, including disbursing
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funds to the Borrowers, showed a reckless disregard for the Term Lenders’ rights
to the extent it knew that those conditions were not satisfied.
V. SEALED DOCUMENTS
Many of the documents filed in this case, including the parties’ motions for
summary judgment and appeal briefs, were filed under seal. An example of the
documents filed under seal is the Disbursement Agreement, which is central to this
case. This same document was publicly filed in other proceedings, including a
case we heard at oral argument on the same day as this one.
At the request of the court, the parties have filed a joint letter agreeing that
the underlying Agreements and many of the other documents in the record should
be unsealed. The parties also listed certain documents they wish to continue to
keep under seal. Upon remand of this case to the District Court, the Clerk is
directed to unseal all of the documents in the record, except those delineated in the
parties’ request to retain them as sealed.
VI. CONCLUSION
Having concluded that under the Disbursement Agreement Bank of America
was permitted to rely on the Borrowers’ certifications that the conditions precedent
were satisfied unless it had actual knowledge to the contrary, and finding that there
remain genuine issues of material fact about whether Bank of America had such
knowledge and whether its actions amounted to gross negligence, we affirm in part
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and reverse in part the District Court’s order. Specifically, we affirm the District
Court’s denial of the Term Lenders’ Motion for Partial Summary Judgment and the
District Court’s interpretation of Bank of America’s obligations under the
Disbursement Agreement. We reverse the District Court’s grant of summary
judgment in favor of Bank of America. We also remand the case to the District
Court for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED
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