Arlington LF, LLC v. Arlington Hospitality, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3560
A RLINGTON LF, LLC,
Appellant,
v.
A RLINGTON H OSPITALITY, INC., et al.,
Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 5098—James B. Zagel, Judge.
A RGUED S EPTEMBER 29, 2010—D ECIDED M ARCH 3, 2011
Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. This is a bankruptcy case with
a complicated factual and procedural background, but
one that boils down to a simple question: who breached
the parties’ post-petition financing agreement? Arlington
Hospitality, Inc. and its subsidiaries (“Arlington”), opera-
tors of the AmeriHost hotel chain, filed for Chapter 11
bankruptcy in August 2005. Arlington needed funds in
2 No. 09-3560
order to meet its obligations during the pendency of the
bankruptcy proceeding, and to that end entered into a
post-petition financing agreement on the eve of the bank-
ruptcy filing with Arlington LF, LLC (“LF”), a single-
purpose entity that had been created for that purpose.
LF lent Arlington $3.53 million under the agreement,
but shortly thereafter, relations between the parties
soured. LF began to have misgivings about its role as a
post-petition lender and signaled that it did not wish
to make further loans, while Arlington did not pay cer-
tain fees associated with the loan. Shortly thereafter,
Arlington’s assets were successfully sold in the bank-
ruptcy proceeding, and Arlington repaid LF the full
$3.53 million it had borrowed, with interest. LF, be-
lieving it was still owed the additional fees Arlington
had not paid, filed a motion in the bankruptcy court to
recover them, along with additional default interest.
Arlington, believing it had met all of its obligations
and owed nothing more to LF, opposed the request. The
bankruptcy court held a trial on the matter and ruled
in Arlington’s favor, concluding that LF had breached
the agreement. The district court reversed and remanded,
and the bankruptcy court ruled for LF on the second go-
round. The district court again reversed, this time on
a different basis, with instructions to the bankruptcy
court to rule in Arlington’s favor. LF appeals to us.
We conclude that LF repudiated the parties’ agreement,
and is not entitled to any additional fees or costs.
We affirm.
No. 09-3560 3
I. BACKGROUND
Arlington owned or leased thirty-six AmeriHost hotels
located primarily throughout the midwestern United
States. In order to meet its operating costs during off-
seasons, it had for a number of years utilized a revolving
line of credit with LaSalle Bank (“LaSalle”), secured
by Arlington’s assets. In 2005, Arlington began experi-
encing some financial difficulties and by that summer
it owed approximately $3.5 million to LaSalle on the
revolving credit loan and was having difficulty repaying
it. That, coupled with litigation it was facing in Texas
that had forced a subsidiary into bankruptcy, placed
Arlington at serious financial risk. On the advice of
an investment banking firm it had retained, Arlington
decided that the best plan of action was to file for
Chapter 11 bankruptcy and to begin soliciting potential
purchasers of its assets and potential lenders to pro-
vide financing after a bankruptcy petition had been
filed. One interested party was an entity called DH2,
Inc. (“DH2”). Arlington and DH2 engaged in discus-
sions about a potential purchase of Arlington’s assets,
along with debtor-in-possession (“DIP”) financing
during the pendency of the bankruptcy. DH2 had some
concerns about the financing, because it had never
engaged in DIP lending before, but decided to go
forward because it wanted to preserve its ability to po-
tentially purchase Arlington’s assets. DH2 created a
special-purpose entity to transact business with
Arlington—Arlington LF, LLC (“LF”)—and hours before
Arlington filed its Chapter 11 petition, LF and Arlington
signed an agreement called the “Outline of Terms and
4 No. 09-3560
Conditions for Total DIP Financing Facility” (the “Term
Sheet”).
A. The Term Sheet and Interim Order
Pursuant to the Term Sheet, LF agreed to lend Arlington
a total of $11 million. The parties referred to this overall
amount as the “Total DIP Facility.” The $11 million
was divided into three separate parts: a $6 million re-
volving loan (the “Revolver” or the “Interim DIP Facility”),
a $1 million “Term Loan A” that would be available
after December 31, 2005, and a $4 million “Term Loan B”
intended to fund certain real estate purchases by
Arlington.1 The Term Sheet set forth interest rates for
the three loans and provided for a higher rate of
default interest in the event that Arlington defaulted.
The agreement also set forth various fees associated
with the loan that Arlington agreed to pay. Two of these
fees were a $100,000 “Total DIP Facility Commitment
Fee” (the “Commitment Fee”) and a $210,000 “Total
DIP Facility Funding Fee” (the “Funding Fee”). The Term
Sheet provided that these two fees were “payable im-
mediately” to LF. The Term Sheet also provided that
LF would be entitled to legal fees and other various
expenses it incurred in connection with post-petition
financing.
The parties submitted the Term Sheet to the Bankruptcy
Court for approval on the first day of the bankruptcy
1
Arlington never ended up utilizing either Term Loan A or B,
and only ever drew on the Revolver.
No. 09-3560 5
proceedings pursuant to 11 U.S.C. §§ 364(c) and (d). The
bankruptcy court entered an Interim Order approving
the agreement on September 2, 2005, finding that the
terms of the DIP financing had been negotiated in good
faith and were fair and reasonable. The Interim Order
largely adopted the terms of the parties’ Term Sheet,
but the two documents were not identical. Notably,
while the Term Sheet had provided that Arlington
could use the proceeds of the Revolver loan itself to
pay the fees it would owe LF, the Interim Order stated
that those fees had to be paid with separate funds, not
drawn from the Revolver. Like the Term Sheet, the
Interim Order provided that the $100,000 Commitment
Fee and the $210,000 Funding Fee were “payable im-
mediately” to LF. Other fees, in contrast, were payable
“upon invoice” from LF.
Critically, the Interim Order also contained a para-
graph requiring that LF give Arlington notice of any
default and three business days to cure it (the “Notice
Provision”). As the district court put it, the Notice Pro-
vision “created a condition precedent which must have
occurred before LF stopped dealing with [Arlington].”
Due to the Notice Provision, Arlington could not, con-
ceptually, be in breach of the Interim Order until after
it had been given notice and opportunity to cure it.
B. LF Indicates It No Longer Wishes to Lend to
Arlington
On September 7, five days after entry of the Interim
Order, Arlington drew $3.53 million on the Revolver
6 No. 09-3560
and used it to pay off its obligations to LaSalle. It did
not, however, pay either the Commitment Fee or the
Funding Fee that were due immediately pursuant to
the terms of the Interim Order. Arlington mistakenly
believed that those fees were going to be paid through
the Revolver draw itself—an assumption likely based
on the fact that the parties’ Term Sheet had provided
for such an arrangement. LF, for its part, did nothing
to seek payment of the two fees. It did not remind
Arlington of its obligation to do so, nor did it utilize
the Notice Provision procedure set forth in the Interim
Order to inform Arlington of the potential default.
In the weeks that followed, the relationship between
the parties began to take a downward turn, for reasons
having nothing to do with the unpaid fees (it is not
clear from the record that the fees were even on
LF’s radar screen in September). LF and Arlington
were negotiating a potential asset purchase agreement,
but the negotiations were proving fruitless. LF, fueled
by doubts about the true value of Arlington’s assets,
began to have misgivings about purchasing them and
had decided as early as September 16 that it was
not likely to do so. At the same time, LF was becoming
uncomfortable with its role as Arlington’s post-petition
lender.
On September 29, LF made these concerns explicit.
That day, LF’s general counsel, Richard Marks, had a
phone call with an investment banker for Arlington,
Richard Morgner, in which he said that LF was unwilling
No. 09-3560 7
to “fund any more money under the DIP.” 2 Morgner
relayed Marks’s comments to his Arlington colleagues
the next day, writing in an email that LF did “not wish
to fund any more $ under the DIP.”
If LF’s intention not to follow through with any more
DIP lending was not clear as of September 29, it was
made crystal clear on October 4. The day before, a lawyer
for Arlington’s creditor committee 3 sent an email to LF’s
counsel asking whether it was in fact the case that LF
did not intend to proceed with any additional DIP lend-
ing. LF’s counsel wrote this in response:
2
LF disputes this characterization of what Marks said, con-
tending that all he said was that he did not “want” to fund any
more money under the DIP. However, the bankruptcy court,
having assessed all of the evidence in context, took Marks’s
statement as indicating LF was “unwilling” to lend more. We
do not reverse such a factual finding even if we would have
come out slightly differently. Freeland v. Enodis Corp., 540
F.3d 721, 729 (7th Cir. 2008). And in any event, we do not
think there is as much of a difference between the meaning
of “unwilling” and “want” as LF would like there to be. The
meaning of what Marks was saying is clear: LF was not going
to lend any more money to Arlington.
3
The committee of Arlington’s unsecured creditors (the
“Creditor Committee”) is also a party to this appeal and was
closely involved in the proceedings below, as well as in the
bankruptcy and related negotiations. Arlington and the
Creditor Committee filed a single brief together, and just as
in the proceedings below, their interests are aligned in
opposing LF’s motion. We refer to the Creditor Committee
separately in this opinion only when it is necessary to do so.
8 No. 09-3560
We are not willing to proceed further with the
DIP loan; in other words, we will make no further
loans to the Debtors. . . . We think the Debtor
should find a new DIP lender to pay out our
loan and fund the options that expire at the end
of this month.
On October 6—after making these statements—LF for
the first time sent Arlington anything that could be con-
strued as a request that the fees be paid. On that date,
an LF analyst sent Arlington’s CFO a Statement of
Account with a “Total Amount Due” of $456,216.87 in
fees, which included the $100,000 Commitment Fee and
the $210,000 Funding Fee. The Statement of Account
also noted, in a separate section entitled “Account Sum-
mary,” a $3.5 million outstanding loan balance, re-
flecting the draw Arlington had made on the $6 million
Revolver, and noted a remaining “Loan Commitment
Available” of approximately $2.5 million.
Arlington did not pay the October 6 Statement of Ac-
count. Two weeks later, on October 20, LF’s counsel
faxed Arlington’s counsel a letter declaring Arlington
to be in default for having failed to do so, and noted
that several of the fees listed in the total amount due
were payable immediately. Pursuant to the procedures
set forth in the Interim Order, LF gave Arlington three
business days to cure the default by paying the
amount requested.
Shortly thereafter, on October 25, Arlington filed an
asset purchase agreement in which a third party
proposed to buy Arlington’s assets. That same day, at a
No. 09-3560 9
hearing before the bankruptcy court, Arlington stated
its belief that it had been “double-crossed” by LF
because LF had stated that “they’re just not going to
fund anymore” and thus had “breach[ed] the agreement.”
On December 7, following an auction, the bankruptcy
court approved the sale to the third party. On January 25,
2006, Arlington repaid LF the $3.5 million it had bor-
rowed from the Revolver, along with interest. Arlington
did not, however, pay any of the fees associated with
the loan. LF, in response, filed a motion for payment of
those sums, along with default interest, pursuant to 11
U.S.C. §§ 364(c)(1) and 503(b).
C. The Litigation Below
Before making its way to us, LF’s motion was ruled on
by the bankruptcy court, remanded by the district
court, ruled on again by the bankruptcy court, and
again reversed by the district court. Explained below is
a synopsis of these proceedings, which is summarized
to highlight the relevant aspects of this appeal.
1. The First Bankruptcy Ruling
The bankruptcy court held a three day trial on LF’s
motion, involving five witnesses and numerous pages of
exhibits. On May 10, 2007, the bankruptcy judge denied
LF’s request for fees and interest in a Memorandum
Opinion and Order containing extensive findings of fact
and conclusions of law. The court held that the Interim
Order it had entered governed the parties, that LF’s
10 No. 09-3560
September 29 and October 4 statements constituted
an anticipatory breach of that agreement, and that
having repudiated the agreement, LF was not entitled to
recover the fees or expenses it sought. The bankruptcy
court reasoned that at the point LF made the statements
to the effect that it would no longer make any loans,
“Arlington was entitled to consider its relationship with
LF over and its duties of performance discharged.
Having refused to perform under the agreement, LF
cannot insist that Arlington continue to perform, paying
interest and fees on a loan LF would not make.” Notably,
en route to reaching its conclusion, the bankruptcy
court interpreted the Interim Order to mean that all
fees owed to LF were payable “on invoice,” despite the
fact that the Order singled out the Commitment Fee
and Funding Fee as “payable immediately.”
2. The First District Court Ruling
LF appealed the bankruptcy judge’s ruling to the
district court. The district court disagreed with the bank-
ruptcy court’s conclusion that all fees related to the
DIP lending were only payable on invoice from
LF, noting the separate paragraph in the Interim
Order specifying that the Commitment and Funding
Fees were payable immediately instead. The district
court reasoned that Arlington, having failed to pay the
fees that were due immediately upon entry of the Order
on September 2, was therefore already in default by the
time LF purportedly repudiated on September 29. And
if Arlington was already in default as of that time, it
No. 09-3560 11
could not claim that LF had breached. The district court
vacated the bankruptcy court’s decision and remanded
the matter for further proceedings. Critically, neither
party raised, nor did the district court address, the fact
that the Interim Order had a Notice Provision (described
infra) whereby Arlington could only actually be in a
cognizable breach after having been given notice and
an opportunity to cure.
3. The Second Bankruptcy Ruling
On remand in the bankruptcy court, Arlington and the
Creditor Committee argued, inter alia, that it could not
possibly have been in breach as of September 29, because
LF had never followed the Notice Provision procedures
set forth in the Interim Order.4 The bankruptcy court
agreed, concluding that the Notice Provision effectively
created a condition precedent to LF enforcing the agree-
ment, and that LF’s failure to utilize it with regard to
the unpaid Commitment and Funding Fees prevented
LF from relying on any breach to justify its refusal to
lend. But believing itself bound by the law of the case
in light of the district court’s ruling, the bankruptcy court
4
Additional new arguments were also made to the bank-
ruptcy court on the second go-round, which we do not address
here, because the way we dispose of the appeal makes
it unnecessary to do so. The additional arguments are sum-
marized in the district court’s second decision. See Arlington
Hospitality, Inc. v. Arlington LF, LLC, 2009 WL 3055350, at *4
(N.D. Ill. Sept. 18, 2009).
12 No. 09-3560
felt it had to rule for LF, and did so, awarding LF $842,053
in fees plus default interest. This time, both parties ap-
pealed—Arlington appealing the award of fees, and
LF believing it should have been awarded more.
4. The Second District Court Ruling
The case came back to the district court, which ruled
that the bankruptcy judge had misunderstood the “nar-
row” scope of its first ruling. The district court stressed
that its first holding was limited only to interpretation
of the Interim Order regarding the payment of the “imme-
diately” payable Commitment and Funding Fees. How-
ever, the district court stated that its ruling “did not
require the Bankruptcy Court to find for LF under all
circumstances.” It noted that the Notice Provision argu-
ment made in the bankruptcy court on remand had not
been raised in the district court previously, because
“there was initially no reason for Debtor to raise the
notice argument, and I certainly never considered that
argument in the context of this case.” Presented with
the Notice Provision argument for the first time, the
district court agreed with it, concluding that a breach
by Arlington could only be effective after LF gave it
notice and opportunity to cure. Because LF had not yet
done so as of the time it repudiated the agreement on
September 29, reasoned the district court, LF’s repudia-
tion of those statements caused the first breach. It was
only after October 20, when Arlington did not pay the
fees after finally being given the requisite notice, that any
breach cognizable under the Interim Order could have
No. 09-3560 13
occurred. But by then, LF had already “walked away.”
The district court reversed the bankruptcy court’s
ruling and remanded with instructions to enter judg-
ment in favor of Arlington. LF appealed to this court.
II. ANALYSIS
Despite the complicated fits and starts below, the issue
before us boils down to a relatively straightforward
one: who breached the lending agreement? If LF com-
mitted an anticipatory breach of the agreement through
the statements it made regarding its unwillingness to
lend further, it is not entitled to the fees and interest.
But if Arlington breached first (via nonpayment of the
Commitment and Funding Fees), LF would be entitled to
collect the fees and additional default interest it seeks.
We conclude, like the bankruptcy court and district
court did, that LF breached. While Arlington did indeed
fail to pay certain fees “immediately due” under the
Interim Order, by the time LF used the proper mechan-
isms that would have placed Arlington in violation, it
had already repudiated the parties’ agreement.
LF argues that neither its September 29 nor October 4
statements amounted to an anticipatory breach, and that
even if they did, any breach was timely retracted days
later when LF sent a Statement of Account to Arlington
that it contends indicated a continued willingness to
lend. LF further contends that Arlington did not detri-
mentally alter its position or suffer any harm in any
way that would entitle it to raise any alleged breach as a
defense to nonpayment of fees. It also argues that the
14 No. 09-3560
bankruptcy judge’s opinions to the contrary ran afoul
of Bankruptcy Rule 7052 because the court disregarded
certain evidence and premised its conclusions on other-
wise faulty findings.
We review the bankruptcy court’s conclusions of law
de novo and its factual findings for clear error. In re
Resource Tech. Corp., 624 F.3d 376, 382 (7th Cir. 2010). “If
the bankruptcy court’s account of the evidence is
plausible in light of the record viewed in its entirety, we
will not reverse its factual findings even if we would
have weighed the evidence differently.” Freeland v.
Enodis Corp., 540 F.3d 721, 729 (7th Cir. 2008) (citation
and quotation omitted). Mixed questions of law and fact
are subject to de novo review. Mungo v. Taylor, 355
F.3d 969, 974 (7th Cir. 2004).
A. LF Repudiated the Parties’ Agreement
On September 29, LF’s general counsel told Arlington’s
investment banker that LF was unwilling to “fund any
more money under the DIP.” And on October 4, outside
counsel for LF told counsel for Arlington’s creditor com-
mittee that LF was “not willing to proceed further with
the DIP loan; in other words, we will make no further
loans to the Debtors. . . . We think the Debtor should
find a new DIP lender to pay out our loan and fund the
options that expire at the end of this month.” We con-
clude that in making the statement it did on Septem-
ber 29 (a statement then verified and corroborated by
the October 4 email), LF committed an anticipatory
breach of the parties’ lending agreement. These state-
No. 09-3560 15
ments demonstrated LF’s intent not to perform any
more of its lending obligations under the Interim Order.
Under Illinois law, a party commits an anticipatory
repudiation when it manifests a clear, unequivocal
intent not to perform under the contract when per-
formance is due. In re Marriage of Olsen, 528 N.E.2d 684,
686 (Ill. 1988); Draper v. Frontier Ins. Co., 638 N.E.2d
1176, 1181 (Ill. App. 1994). The repudiation has to “render
unattainable” the point of the contract. Olsen, 528 N.E.2d
at 686. When one party has committed a repudiation,
the other party can treat the contract as ended.
Timmerman v. Grain Exch., L.L.C., 915 N.E.2d 113, 124 (Ill.
App. 2009); Truman L. Flatt & Sons Co., Inc. v. Schupf,
649 N.E.2d 990, 994 (Ill. App. 1995). Whether an antici-
patory repudiation has occurred is a question of fact. Id.As such, looming large in our determination are the
factual findings and credibility determinations made by
the bankruptcy court, findings that we review for clear
error.5 Freeland, 540 F.3d at 729. The bankruptcy
judge concluded that LF’s statements did amount to a
repudiation, a finding that is more than plausible in
light of the record here, and one we agree with. We
believe the meaning of the September 29 and October 4
statements was clear: LF was not going to perform
any more of its lending obligations under the Interim
5
The trial on LF’s motion involved five witnesses, three days
of testimony, and over 100 exhibits, and generated 700 pages
of trial transcript as well as 900 pages of deposition tran-
scripts that the parties stipulated into evidence.
16 No. 09-3560
Order, and if Arlington wanted additional funds, it
was going to have to look elsewhere. By stating that no
further lending was forthcoming, LF had rendered the
point of the parties’ agreement unattainable.6
LF argues that its statements were only referring to a
lack of interest in making additional lending agreements
with Arlington, not regarding intentions of honoring
the agreement they already had. The bankruptcy court
found testimony from LF’s general counsel to this effect
not to be credible, and that the evidence as a whole
instead “plainly showed LF’s desire to exit the Arlington
scene entirely.” We reached the same conclusion after
our review of the record. LF was not talking about
some hypothetical future lending when making these
statements. It was talking about whether it would
perform any more lending under this DIP loan, and
making clear it would not. The undisputed evidence
was that Marks said LF did not want to lend any more
money under “the DIP,” and the bankruptcy court,
looking at the way the parties used that terminology,
concluded that he was clearly talking about LF’s present
funding obligations. And LF’s October 4 email further
6
The background against which the statements was made
supports this conclusion. LF had only agreed to be a post-
petition lender for Arlington because it wanted to preserve its
ability to bid for Arlington’s assets in the bankruptcy sale. But
by late September, LF had decided it was not going to be
a buyer and was increasingly uncomfortable with its corre-
sponding position as a DIP lender. As the bankruptcy court
concluded, “LF had had enough of Arlington. It wanted out.”
No. 09-3560 17
supports this conclusion—referring to “the DIP loan” and
that Arlington should find a “new DIP lender” to pay out
“our loan.” To be a repudiation, a statement need only
be “sufficiently positive to be reasonably understood as
meaning the breach will actually occur.” C.L. Maddox, Inc.
v. Coalfield Servs., Inc., 51 F.3d 76, 81 (7th Cir. 1995) (quoting
2 E. Allan Farnsworth, Farnsworth on Contracts § 8.21,
p. 475 (1990)). LF’s statements were more than suf-
ficiently positive. Any reasonable person on the receiving
end of LF’s September 29 and October 4 statements
would take them to mean that LF did not intend to
make any more DIP loans to Arlington.
LF correctly points out that the September 29 and
October 4 statements were not made directly to
Arlington, but to its investment banker and Creditor
Committee, respectively—both technically third parties.
But Arlington’s investment banker was acting as an
agent, and statements to an agent within the scope of
the agent’s authority can qualify as statements to the
principal. See, e.g., N. Assur. Co. of Am. v. Summers, 17
F.3d 956, 964 (7th Cir. 1994). And the Creditor Com-
mittee was obviously no stranger to the situation, and it
is unrealistic for LF to argue that a statement to it would
have no effect on the parties’ agreement. Cf. 2 E. Allan
Farnsworth, Contracts § 8.21 p. 561 (3d ed. 2004) (state-
ment cannot be made to a “mere stranger”). As the bank-
ruptcy judge correctly observed, LF had to know that
comments to the Creditor Committee would make their
way to Arlington. And in any event, we conclude as
the bankruptcy court did that the repudiation took place
on September 29, as Marks’s statement alone clearly
manifested LF’s intent not to perform. The October 4
18 No. 09-3560
email merely corroborates the September 29 statement
and makes it even more clear that LF was walking
away from the lending agreement.7
B. LF Did Not Retract the Repudiation
LF contends that even if it did commit an anticipatory
breach of the lending agreement, the breach was
retracted when LF sent a Statement of Account to Arling-
ton on October 6. LF argues that because the Statement
of Account included a line stating that there was
still $2.5 million available on the loan, LF was expressing
a continued willingness to lend, retracting any state-
ment to the contrary. We disagree that this constituted
a retraction.
7
LF also points to an October 3, 2005 email in which an LF
lawyer refers to a conversation with Creditor Committee
counsel as additional evidence that LF did not repudiate. In
that email, LF’s counsel states that he told the Creditor Com-
mittee that LF did not “expect to resolve our problems for a
final DIP order.” LF claims this shows it only intended not
to proceed with a final financing agreement, not with any
lending obligations that already existed. We have reviewed
that email and do not believe that it alters the conclusion. The
fact that LF was having issues with reaching a final DIP
order does not undercut the repudiatory statements on Septem-
ber 29 nor its later statement on October 4; to the contrary,
LF’s reluctance with regard to a final order is to us entirely
consistent with its position that it did not want to lend any
further. We also note that in pointing to this email, LF appar-
ently suddenly appears to subscribe to the position that com-
munications to the Creditor Committee do carry weight.
No. 09-3560 19
A repudiation can be retracted, but for the retraction
to be effective, it has to be a sufficiently clear statement.
See Kinesoft Dev. Corp. v. Softbank Holdings, Inc., 139 F. Supp.
2d 869, 901 (N.D. Ill. 2001); see also Gilmore v. Duderstadt,
961 P.2d 175, 181 (N.M. Ct. App. 1998) (“a retraction, to
be effective, must be clear and unequivocal”); Vahabzadeh
v. Mooney, 399 S.E.2d 803, 805 (Va. 1991); Farnsworth,
supra, § 8.21. We do not believe that any language in
the Statement of Account can be fairly characterized as
a retraction in the context of LF’s unequivocal state-
ments from only days earlier stating an unwillingness
to lend.
The statement to which LF points is a single line on a
one-page form, and viewing it in context makes clear to
us that it does not constitute a valid retraction. The
record indicates that it was sent to Arlington by an LF
analyst after Arlington’s CFO requested it on Septem-
ber 27, 2005, along with a cover email stating, “[p]lease
submit payment.” The majority of the single-page State-
ment of Account is, consistent with the document’s title,
a chart setting out the various fees Arlington owed to
LF, added up at the bottom on a line titled “Total
Amount Due.” In addition, the bottom left of the docu-
ment includes a much smaller box entitled “Account
Summary.” Within this box is a series of lines indicating
the status of the Revolver loan, with the final line
stating “Loan Commitment Available: $2,483,490.17.” This
single line is not a sufficiently clear statement to retract
LF’s unequivocal repudiation. Moreover, the Statement
of Account was not even sent by LF on its own initia-
tive—it was sent in response to a request that Arlington’s
20 No. 09-3560
CFO had made on September 27, two days before LF
repudiated the agreement. It is not as if LF sent this
document in a conscious effort to retract any breach,
intending the “Loan Commitment Available” line to
somehow undo the effect of its prior statements. The
document had already been requested before Marks
said anything on September 29. The fact that the State-
ment of Account was sent only in reaction to Arlington
having asked for it further undercuts the argument
that it constituted a clear, unequivocal retraction. See
Vahabzadeh, 399 S.E.2d at 805 (“[L]ogic and reason compel
the application of the same standard to the retraction of
a repudiation that is applied in determining whether
a contract has been repudiated.”).8
C. Arlington Was Free From its Obligations Once LF
Repudiated
LF argues that Arlington cannot assert an anticipatory
repudiation because it incurred no detriment nor
changed its position as a result of any breach. It is true
8
LF also points to the fact that in October, the parties agreed to
continue the bankruptcy court hearing on final approval of an
order regarding the parties’ financing agreement. LF contends
that this was a retraction, because they effectively represent
agreements to extend the interim order. We disagree. The
routine continuation of a court hearing says nothing
regarding LF’s intentions to honor its financing obligations,
certainly not in any way that would be sufficiently clear
and unequivocal so as to constitute a retraction.
No. 09-3560 21
that Arlington never requested more funding after its
initial Revolver draw, nor did it immediately notify
LF that it treated the September 29 statement as a
breach. But LF’s repudiation immediately discharged all
of Arlington’s remaining duties under the lending agree-
ment. See Timmerman, 915 N.E.2d at 124; Restate-
ment (Second) of Contracts § 253. At the moment LF
repudiated, Arlington was entitled to treat the agree-
ment as having ended and was no longer under any
obligation to perform. Builder’s Concrete Co. of Morton v.
Fred Faubel & Sons, 373 N.E.2d 863, 867-68 (Ill. App. 1978);
In re C&S Grain Co., Inc., 47 F.3d 233, 237 (7th Cir. 1995);
see also Timmerman, 915 N.E.2d at 124 (repudiation
effective “at the moment” defendant rendered per-
formance impossible). LF clearly stated it would lend
no more money and thus breached, and Arlington
was entitled to treat it as such and walk away.
LF argues that it is significant that Arlington never
sought rescission or brought suit against LF for any
alleged breach. But it did not need to. “Unless the non-
repudiating party wishes to hold the repudiator responsi-
ble for contract damages, the non-repudiating party
need not make efforts to keep the contract in force.” In
re C&S Grain Co., 47 F.3d at 237. It is LF seeking
additional money in this case, not Arlington. Arlington—
which paid LF in full for the money it borrowed—simply
believes it has no further obligations under the agree-
ment. Once LF declared it was unwilling to perform its
obligations memorialized in the Interim Order, LF “was
quite clearly not entitled to payments it would otherwise
have been due.” SMS Demag Aktiengesellschaft v. Material
22 No. 09-3560
Scis. Corp., 565 F.3d 365, 370 (7th Cir. 2009). LF’s theory
that Arlington needs to have done more than it did in
reaction to the breach “would allow a party to announce
repudiation of its contractual duty and then be held
blameless unless the other party objected and attempted
to change [the] repudiating party’s mind. Such is not
the law.” Builder’s Concrete, 373 N.E.2d at 868. And the
record shows that LF’s repudiation did adversely af-
fect Arlington. There was evidence before the bank-
ruptcy court that upon learning that no more funds
would be available under the DIP facility, Arlington felt
increased pressure to rapidly negotiate an asset pur-
chase, and was more constrained in its ability to
explore other strategic options for the company.9 We
can, of course, never know what parallel universe
might have unfolded if Arlington did have access to
additional DIP lending, but that does not mean LF
did not breach. Simply put, once LF walked away from
its obligations on September 29, Arlington no longer
had what it had bargained for: the availability of
financing during the Chapter 11 bankruptcy process.
D. The Bankruptcy Judge Complied with Bankruptcy
Rule 7052
Finally, LF advances a general argument that the bank-
ruptcy court failed to comply with Federal Rules of Bank-
9
Counsel for Arlington stated at oral argument that Arlington
had to “scramble” in reaction to the news.
No. 09-3560 23
ruptcy Procedure 7052 in its opinion. This argument
fails. Rule 7052, which makes Fed. R. Civ. P. 52(a) applica-
ble to adversarial bankruptcy proceedings, requires a
bankruptcy court to “make findings that supply a clear
understanding of the grounds underlying the court’s
decision.” Freeland, 540 F.3d at 732. The bankruptcy
judge did so here. The bankruptcy court supplied more
than adequate findings supporting the conclusions it
reached, and LF’s arguments, and the evidence it sub-
mitted in support thereof, were adequately considered.
The bankruptcy judge was not required to discuss
every single piece of evidence before him—which would
have been a virtually impossible task given how exten-
sive the record was in this case. See Mozze v. Jeffboat, Inc.,
746 F.2d 365, 370 (7th Cir. 1984). To the extent LF
disagrees with the findings that the bankruptcy judge
made—particularly, the judge’s finding regarding the
September 29 statement—such findings would only be
set aside if clearly erroneous. They are not. LF’s Rule
7052 argument essentially asks us to assign importance
to varying pieces of evidence in the record in a manner
differently than the bankruptcy court did, but we do not
reverse a bankruptcy court’s factual findings “even if we
would have weighed the evidence differently.” In re
Lifschultz Fast Freight, 132 F.3d 339, 343 (7th Cir. 1997). At
most, LF has presented an alternative characterization
of what transpired in September and October of 2005.
But “where two permissible conclusions can be drawn,
the factfinder’s choice cannot be clearly erroneous.” In re
Weber, 892 F.2d 534, 538 (7th Cir. 1989). The bankruptcy
court’s conclusions were more than plausible in light of
the record. Freeland, 540 F.3d at 729.
24 No. 09-3560
III. CONCLUSION
The finding that LF committed an anticipatory repudia-
tion of the parties’ lending agreement was not clearly
erroneous. While Arlington did fail to pay fees that were
due immediately per the parties’ agreement, by the time
LF properly informed Arlington of the potential breach
by using the notice procedures in the Interim Order,
LF had already breached the agreement. Having walked
away from the agreement before Arlington’s breach ever
became effective, LF cannot now invoke the Interim
Order to obtain the additional fees and interests it
seeks. The ruling below is A FFIRMED.
3-3-11