Pine River Master Fund Ltd. and Pine River Fixed Income Master Fund Ltd. v. Amur Finance Company, Inc. and Amur Finance IV LLC ( 2017 )

EFiled: Oct 12 2017 02:18PM EDT
Transaction ID 61236356
Case No. 2017-0145-JRS
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
PINE RIVER MASTER FUND LTD. :
AND PINE RIVER FIXED INCOME :
MASTER FUND LTD., :
:
Plaintiffs, :
:
v. : C.A. No. 2017-0145-JRS
:
AMUR FINANCE COMPANY, INC. :
AND AMUR FINANCE IV LLC, :
:
Defendants. :
MEMORANDUM OPINION
Date Submitted: September 12, 2017
Date Decided: October 12, 2017
C. Barr Flinn, Esquire, Emily V. Burton, Esquire, Lakshmi A. Muthu, Esquire and
Meryem Y. Dede, Esquire of Young Conaway Stargatt & Taylor, LLP, Wilmington,
Delaware and Michael M. Krauss, Esquire, Jane E. Maschka, Esquire and Michael F.
Doty, Esquire of Faegre Baker Daniels LLP, Minneapolis, Minnesota, Attorneys for
Plaintiffs.
Garrett B. Moritz, Esquire and Nicholas D. Mozal, Esquire of Ross Aronstam &
Moritz LLP, Wilmington, Delaware and Christopher D. Kercher, Esquire, Julia M.
Beskin, Esquire, Marlo A. Pecora, Esquire, and Thomas A. Bridges, Esquire of
Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York, Attorneys for
Defendants.
SLIGHTS, Vice Chancellor
The parties to a collateralized loan transaction, Pine River Master Fund Ltd.,
Pine River Fixed Income Master Fund and Pine River Credit Relative Value Master
Fund Ltd., as lenders, Amur Finance IV LLC (“Amur IV”), as borrower, Amur
Finance Company, Inc. (“AFC”), as former administrative agent and Amur IV
managing member, and Deutsche Bank Trust Company Americas, as collateral
agent, have reached a breaking point in their relationship. The principal antagonists,
the borrower and the lender, both maintain that the other is in dire financial straits
and that this circumstance is driving the litigation positions being advanced in this
Court. From the borrower’s perspective, the lender is desperate to declare an Event
of Default under the operative Credit Agreement so that it can seize assets pledged
as collateral, monetize them and pay off its various investors. From the lender’s
perspective, the borrower is no longer able to meet its commitments under the Credit
Agreement and yet is desperately clinging to the hope that its financial circumstances
will improve in time to cure its many breaches before the Court enters a judgment
declaring an Event of Default.
This opinion comprises chapter two of what is shaping up to be a litigation
saga.1 In chapter one, the Court concluded that the borrower had breached the Credit
1
Chapter one: Pine River Master Fund Ltd. v. Amur Fin. Co., Inc., 2017 WL 4023099
(Del. Ch. Sept. 13, 2017) (addressing alleged breaches of the Credit Agreement and alleged
corresponding Events of Default) (hereinafter, “Pine River I”).
1
Agreement but that no Event of Default had occurred.2 In this next chapter, the
lender once again argues that the borrower has breached the Credit Agreement and
that these breaches constitute Events of Default.3 The first set of alleged breaches
relate to the borrower’s failure to pay cash interest in accordance with the Credit
Agreement’s detailed provisions addressing such payments. After attempting to
construe these provisions, I have determined they are ambiguous and that extrinsic
evidence is required before the Court can determine whether a breach has occurred.
The second breach relates to the borrower’s distributions of cash to its parent out of
an account created under the Credit Agreement, which the lender alleges has resulted
in an unauthorized syphoning of loan collateral. As to this latter claim, I am satisfied
that the operative language of the contract is unambiguous, that the borrower is in
breach and that the breach constitutes an Event of Default. My reasoning follows.
I. BACKGROUND
In accordance with Court of Chancery Rule 56(c), I have drawn the facts from
the pleadings, affidavits and documentary evidence appended to the motions. I note
2
Id.
3
Not all of the breaches alleged in the Verified Amended Complaint were advanced here,
suggesting that there is likely more dispositive motion practice to come. The Court has
advised the parties that they will have to join any remaining bases for partial or complete
summary judgment in a single motion; the Court will not engage with the parties in serial
partial dispositive motion practice.
2
that the Court has recited the background facts once before.4 The facts stated here
are those relating to the motions sub judice.
A. Relevant Parties
Plaintiffs are two Cayman Island exempted companies, Pine River Master
Fund Ltd. and Pine River Fixed Income Master Fund Ltd. (together, “Pine River”).
Pine River is the Lender under the Credit Agreement.5 Defendant, Amur IV, is a
Delaware limited liability company with its principal place of business in White
Plains, New York. Amur IV is the Borrower under the Credit Agreement.
Defendant, AFC, which served as Administrative Agent under the Credit Agreement
until late 2016, is a Delaware corporation with its principal place of business in
White Plains, New York. AFC is the principal equity owner6 and exclusive
managing member of Amur IV.7
4
Pine River I.
5
All capitalized terms not expressly defined herein follow the definitions assigned in the
Credit Agreement. Verified Supplemental and Am. Compl. (“Am. Compl.”) Ex. A (“Credit
Agmt.”).
6
Am. Compl. ¶ 2.
7
Id. at ¶¶ 7, 39.
3
B. Relevant Provisions of the Credit Agreement
The Secured Revolving Credit Agreement, dated August 5, 2013 (the “Credit
Agreement”), provides Amur IV with an aggregate credit facility of $167,000,000
to be funded by Pine River (the “Pine River Loan” or the “Loan”).8 Amur IV, in
turn, committed to invest the borrowed funds in certain Operating Companies. Pine
River has alleged multiple breaches and corresponding Events of Default under the
Credit Agreement. At issue here are Amur IV’s and AFC’s alleged breaches of
provisions relating to interest payments as well as Amur IV’s alleged breach of
provisions restricting borrower distributions. I address the relevant provisions of the
Credit Agreement (and a related Security Agreement) and then summarize the
allegations of breach.
1. The Waivers/Amendments and Integration Clauses
To prevent unintended changes to the highly negotiated Credit Agreement,
the parties included a waivers and amendments provision in Section 9.02. This
provision requires any alterations to the Credit Agreement to be in a writing executed
by all parties and further provides that the lender’s delay or failure to assert rights
under the agreement will not “operate as a waiver thereof.”9 The Credit Agreement
8
Credit Agmt., at pmbl.
9
Id. at § 9.02(a).
4
also contains an integration provision in Section 9.06 in which the parties agreed
that the Credit Agreement is the “entire contract among the parties relating to the
subject matter . . . supersed[ing] any and all previous agreements and
understandings.”10
2. Cash Interest Accrual
Under the Credit Agreement, the Operating Companies make monthly
payments to Amur IV (the “Available Collections”) which are then deposited into
the Collections Account.11 Available Collections are defined as:
(i) all monies received, whether for earned interest, principal repayment
or other amount, pursuant to the leases, loan agreements or other
contracts constituting the Assets; (ii) any proceeds received from the
sale of an Asset; (iii) any Default Proceeds, (iv) any earned interest with
respect to the Accounts; and (v) any permitted withdrawals from the
Accounts, including the positive difference between (a) the amount in
the Reserve Account and (b) the Initial Reserve Amount or Required
Reserve Amount, as applicable.12
The Credit Agreement, in turn, defines “Assets” (hereinafter, “Credit Agreement
Assets”) as:
10
Id. at § 9.06 (“This Agreement constitutes the entire contract among the parties relating
to the subject matter hereof and supersedes any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.”).
11
Id. at § 6.02 (“‘Collections Account.’ On the Closing Date, the Borrower will establish
a Collections Account (the ‘Collections Account’). Available Collections for the related
Collection Period shall be deposited to the Collections Account to be distributed on each
Payment Date according to the priority of payments set forth in Section 6.04.”).
12
Id. at § 6.02.
5
commercial or industrial equipment, capital leases and operating leases,
loans, or other financial assets acquired by the Borrower, as initially set
forth on Schedule 3 [to the Credit Agreement], as such Schedule may
be amended from time to time, and any proceeds thereof.13
Once Available Collections are deposited into the Collections Account, the
Administrative Agent is tasked with preparing an Administrator Report that lists the
distribution of Available Collections under the prescribed Waterfall as set forth in
the Credit Agreement at Section 6.04.14 The Administrator Report identifies, inter
alia, the amount of Cash Interest Accrual, or monthly cash interest, Amur IV is
obligated to pay to Pine River for that particular Interest Period, which the Credit
Agreement defines as a calendar month. This obligation is listed under the Fifth
priority of the Waterfall, a higher priority than distributions Amur IV is permitted to
make to its affiliates.15
13
Id. at § 1.01 (Assets definition).
14
Id. at § 6.03.
15
Id. at § 6.04. The provisions of the Waterfall set forth the following relevant payment
priorities:
Fifth, to each Lender, accrued and unpaid Cash Interest Accrual on its
respective Loan, including past-due and current Cash Interest Accrual, pro-
rata if not all Cash Interest Accrual may be paid;
Sixth, to each Lender, Additional Interest if any, due on its Loan, pro-rata if
not all Additional Interest may be paid;
Eighth, to repay outstanding principal of Loans to the extent of PIK Accrual
amounts then outstanding (including PIK accrual previously capitalized);
6
Amur IV’s obligation to pay Cash Interest Accrual implicates several
provisions of the Credit Agreement. To begin, Section 2.08 requires Amur IV to
pay cash interest to Pine River each month.16 Section 2.08(a) sets out the formula
used to calculate the total interest owed,17 while Section 2.08(b) requires Amur IV
to “immediately pay [] in cash . . . the lesser of (i) the accrual calculated pursuant to
[Section 2.08(a)] or (ii) 75% of the aggregate Stated Return Minimum Cash
Calculation for all Assets during such Interest Period.”
In order to ascertain which of the amounts set forth in Section 2.08(b) is the
“lesser” amount that is immediately due to Pine River, the Administrative Agent
must determine the value of the Stated Return Minimum Cash Calculation
(“SRMCC”). At Section 1.01, the Credit Agreement defines the SRMCC as “the
Ninth, when, after giving effect to a payment made hereunder and in the
absence of a Default or an Event of Default, the equity of the Borrower will
be at least 17.5% of its capital, and the cash equity of the Borrower will be
at least 10.0% of its capital, any dividends and distributions to the Parent
which the Borrower may declare;
Twelfth, to the Borrower (including disbursement to the Borrower of any
amounts in the Reserve Account).
16
Id. at § 2.08(b) (defining “[t]he amount of [] accrual which is immediately payable in
cash as Interest upon the Loans”).
17
Section 2.08(a) defines the interest accruing during each Interest Period as “(A) the
Weighted Average Stated Rate Yield of all Assets held during such Interest Period
multiplied by (B) the average Loans outstanding in such Interest Period divided by
(C) twelve, less (ii) the Administrative Fee and Collateral Agent Fee, each to the extent
accruing in such Interest Period.”
7
sum of all amounts of cash required to be paid to [Amur IV] during [the] Interest
Period as determined from all Stated Return Schedules related to Assets held during
such Interest Period less the Asset Operating Fee.”18 The “Stated Return Schedule,”
referenced in the SRMCC definition, is defined under the Credit Agreement as a
schedule that is created by the Administrative Agent and disclosed to Pine River
when an investment in an Operating Company is proposed.19 Its purpose is to:
set[] forth for each Interest Period in which the Asset is anticipated to
be held [] the amount of cash expected to be returned to the Borrower,
including the Net Proceeds for any sale of the proposed Asset . . . [and]
disclose Stated Yield, Stated Rate Yield and Stated Spread. The Stated
Return Schedule of an Asset shall not be changed absent manifest
calculation error. For the avoidance of doubt, the underperformance or
over-performance of an Asset shall not permit the Stated Return
Schedule to be altered.20
Under the Credit Agreement, any failure to pay the Cash Interest Accrual due
constitutes an Event of Default upon which Pine River can accelerate the entirety of
18
In addition to its relevance in the calculation of the Cash Interest Accrual, Pine River
takes account of the SRMCC of a particular proposed investment when it considers whether
to make an additional advance. See Credit Agmt., at § 4.02(f) (providing that advances
will be made after “[e]ach Lender is satisfied in its sole discretion that (i) each Asset to be
acquired with the proceeds of the Advance meets Asset Criteria, (ii) the calculations of
Stated Yield, Stated Rate Yield and Stated Return Minimum Cash Calculation are
reasonable and (iii) the Participation Accrual provisions are appropriately disclosed and
consistent with the related Program”).
19
Id. at § 1.01 (Stated Return Schedule definition).
20
Id.
8
the Loan.21 As discussed below, Pine River alleges that Amur IV has failed to pay
Cash Interest Accrual as directed by the Administrative Agent and that this failure
constitutes an Event of Default.22
3. The Restricted Payments
The Credit Agreement provides a means to protect Pine River’s investment
by requiring Amur IV to maintain a prescribed “equity cushion.”23 Specifically,
Section 4.02(e) provides:
[a]fter giving effect to the acquisition of the Assets to be acquired on
such Drawdown Date, the Borrower shall provide evidence that the
amount of equity held by the equity holders of the Borrower complies
with the Equity Ratio. If the Borrower will not be in compliance with
the Equity Ratio when delivering the Borrowing Notice [five business
21
Id. at § 7.01. Under Sections 7.01 (a) and (b) of the Credit Agreement, an Event
of Default occurs if:
(a) [Amur IV] shall fail to pay any Interest on any Loan when and as the
same shall become due and payable, and such failure shall continue
unremedied for a period of sixty (60) days;
(b) [Amur IV] shall fail to pay any Interest on any Loan when and as the
same shall become due and payable (without giving effect to any grace period
provided under Section 7.01(a)) on two or more Payment Dates.
See also id. at § 7.02(a) (granting Pine River the right to accelerate the entire Loan
upon an Event of Default under particular sections, including Sections 7.01(a), (b)
and (f)).
22
Additionally, Pine River asserts that AFC has breached Sections 2.08(b) and 6.04 by
failing to calculate and direct payment of Cash Interest Accrual when it acted as
Administrative Agent. Am. Compl. ¶ 279.
23
Credit Agmt., at § 4.02(e); Am. Compl. Ex. C. (“December 2014 Amendment”) at § 1(d)
(Section 4.02 Amendment).
9
days prior to an advance], Borrower shall receive from its equity
holders an equity investment in cash or in kind (through the
contribution of assets or investments of equivalent cash value), in
sufficient amount to achieve compliance with the Equity Ratio after
giving effect to the acquisition of the Assets to be acquired on such
Drawdown Date. The Lenders will not be obligated to make the
requested Advance until they is satisfied that (i) Parent has complied
with any such request for investment, (ii) the Borrower will be in
compliance with the Equity Ratio subsequent to receiving such
Advance and acquiring the related Asset and (iii) the form of the equity
contributed to the Borrower has been adequately disclosed to the
Lenders and any equity contribution made other than in cash has been
made in compliance with any transfer restrictions and is fully paid and
non-assessable.24
The “Equity Ratio,” in turn, is defined as:
an amount of equity in the Borrower held by its equity holders equal to
(i) not less than 7.5% of the Borrower's Total Assets until such time as
the Class A members have received any dividends' or distributions upon
the Class A Units of the Borrower or from Excess Proceeds (other than
any distribution made pursuant to Section Il(a) of the LLC Agreement
of the Borrower in the form to which it was amended on December [ ],
2014 (the ‘LLC Agreement’)), or (ii) from and at all times after such
Class A equity holders have received any dividend or distribution upon
the Class A Units of the Borrower or from Excess Proceeds (other than
any distribution made pursuant to Section l1(a) of the LLC Agreement),
17.5% of Borrower's Total Assets.25
While a breach of Section 4.02(e) alone will not lead to an Event of Default,
the prescribed equity cushion in Section 4.02(e) animates certain of the Credit
Agreement’s restrictions with respect to Loan Collateral. Pine River alleges that
24
December 2014 Amendment, at § 1(d) (4.02(e) Amendment).
25
Id. at § 1(c) (Equity Ratio Amendment).
10
Amur IV has breached these restrictions causing an Event of Default. Specifically,
Pine River alleges that Amur IV has made certain unauthorized distributions to AFC
that have disrupted the equity cushion. In this regard, the Credit Agreement, by its
terms, protects the equity cushion from depletion through Section 5.07(d) which
imposes restrictions on distributions “in respect of [the borrower’s] equity interests”
and Section 5.07(f) which imposes restrictions on certain related-party transactions
involving the borrower.
Under Section 5.07(d), Amur IV is restricted from making “distributions in
respect of its equity interest . . . other than any . . . payment[s] permitted to be made
to [the] Parent in accordance with Section 6.04 [the Waterfall].”26 Such payments
to the Parent are authorized deep into the Waterfall in the Ninth priority.27
Section 5.07(d) was amended in 2014 to allow Amur IV to make dividend
distributions to AFC, but only if Amur IV satisfied four designated conditions:
(i) no Event of Default has occurred and is continuing or may result as
a consequence of such dividend being paid, (ii) such dividend is
permitted under Section 11 of the LLC Agreement, or in a different or
successor provision of such LLC Agreement to which each Lender has
furnished its consent; (iii) all Interest which accrued in the most
recently completed Interest Period was paid in cash, and (iv) an officer
of the Borrower certifies to the Lenders that he or she has reasonably
26
Credit Agmt., at § 5.07(d).
27
Id. at § 6.04.
11
determined that the Borrower will be able to pay in cash all Interest
which will accrue in the current and next Interest Periods.28
Section 5.07(f) further limits Amur IV by requiring that a transaction with an
Amur IV affiliate be “no less favorable to [Amur IV] than those that would have
been obtained by [Amur IV] in . . . an arm’[s]-length [transaction].” Additionally,
Amur IV must deliver to Pine River a resolution of its board stating that the
transaction does “not adversely affect the interests of [Pine River].”29
Section 7.01(f) provides that a breach of Section 5.07 constitutes an Event of
Default.30 Pine River alleges that Amur IV’s breaches of Section 5.07(d) and
Section 5.07(f) are separate breaches, either of which should be deemed to have
triggered Section 7.01(f).
C. The Security Agreement
The Security Agreement was executed by the parties alongside the Credit
Agreement. The two agreements advance the joint goal of securing Pine River’s
investment.31 Under Section 2.02 of the Credit Agreement, Amur IV grants Pine
28
December 2014 Amendment, at § 1(e) (Section 5.07(d) Amendment).
29
Credit Agmt., at § 5.07(f).
30
Id. at § 7.01(f) (providing that an Event of Default occurs under the Credit Agreement if
Amur IV “fail[s] to observe or perform any covenant, condition or agreement contained in
Article V [Covenants]. . . .”).
31
The Security Agreement’s Preliminary Statement explains the relationship of the parties
in reference to both Agreements: “The Grantor is owner of the Collateral, and will derive
substantial benefit from the transactions contemplated by the Credit Agreement and the
12
River a security interest in the Loan Collateral as defined in the Security
Agreement.32 Thus, under Section 2.01 of the Security Agreement, which defines
Collateral, Pine River holds a security interest in:
(a) all right of the Grantor in and to the Interest Reserve Account, the
Collections Account and each other Account established under the
Credit Agreement, (b) all cash, investment property, investments,
securities, instruments, investment property or other property
(including all ‘financial assets’ within the meaning of Section 8-
102(a)(9) of the UCC) at any time or from time to time on deposit in or
credited to any such Account, (c) all of the Assets and all rights to
payment and other Proceeds from time to time received, receivable or
otherwise distributed in respect of such Assets, (d) all income,
payments and proceeds of any and all of the foregoing, and (e) all other
Assets of the Grantor, wherever located and whether now owned or
hereafter acquired or arising, and all proceeds thereof, in each case for
the benefit of the Secured Parties (the ‘Collateral’).33
Assets (hereinafter, “Security Agreement Assets”), as defined in the Security
Agreement, are:
Related Documents. [] It is a condition precedent to the making of the Loans by the Lenders
that the Grantor grant the security interests required by this Agreement.” See also Credit
Agmt., at § 2.02 (“The Borrower grants to the Collateral Agent, for the benefit of the
Lenders, free and clear of all other Liens (other than Permitted Liens), a first priority
perfected lien on and security interest in the Collateral. The Collateral shall secure the
Loans and other amounts owing from Borrower to Lenders or other parties hereunder on
the terms herein.”).
32
Credit Agmt., at § 2.02; id. at § 1.01 (“‘Collateral’ shall have the meaning set forth in
the Security Agreement”); id. at Preliminary Statement (Amur IV pledged “all of its assets”
to the lenders and granted a security interest in those assets as Collateral for the Loan).
33
Security Agmt., at § 2.01.
13
all right, title and interest of Grantor in and to the following property
with each term having the definition provided in Article 9 of the UCC:
accounts, chattel paper, commercial tort claims, consumer goods,
deposit accounts, documents, equipment, farm products, general
intangibles, instruments, inventory, investment property, letter of credit
rights, letters of credit and money, whether now owned or hereafter
acquired (including without limitation the Assets set forth on
Schedule 3 to the Credit Agreement).34
Thus, any Amur IV Assets, and “all proceeds thereof,” as set forth in the Security
Agreement, are “Collateral” which Amur IV pledged to Pine River under
Section 2.02 of the Credit Agreement to secure the Pine River Loan.
D. The Alleged Breaches of the Credit Agreement
On February 23, 2017, Pine River filed a Verified Complaint (the “Original
Complaint”) in which it seeks declaratory judgments with respect to various
breaches of the Credit Agreement as well as relief from future breaches and money
damages. As noted, in its latest motion for partial summary judgment, Pine River
seeks declarations from the Court that Amur IV or AFC breached the Credit
Agreement in two respects: (1) Amur IV breached Section 2.08 by failing to pay
accrued interest when due and AFC breached Section 6.04 by failing to direct such
payments as Administrative Agent; and (2) Amur IV breached Section 5.07 by
making unauthorized distributions of roughly $94,000 to AFC out of the Collections
Account on a near monthly basis since the inception of the parties’ relationship.
34
Id. at § 1.01 (Assets definition).
14
1. The Alleged Underpayment of Cash Interest
The dispute over cash interest payments was apparently sparked by the
parties’ Stipulation and Order Resolving Pine River’s Anticipated Motion for
Preliminary Injunction entered by the Court on April 25, 2017 (the “April 25
Order”).35 The April 25 Order, which resolved a motion for preliminary injunction
filed by Pine River, required Lighthouse Management Group, Inc. (“Lighthouse”),
in its role as Administrative Agent,36 to prepare the Administrator Reports according
to the Credit Agreement (with certain agreed upon modifications pending resolution
of this dispute). In generating the June 2017 Administrator Report, Lighthouse took
a fresh look at the Cash Interest Accrual calculation and concluded that AFC, during
its time as Administrative Agent, had been calculating it incorrectly, in particular
with respect to its calculation of the SRMCC.
According to Lighthouse, the Credit Agreement requires the Administrative
Agent to determine the SRMCC by combining “all amounts” owed to Amur IV in
the Interest Period.37 “All amounts,” according to Lighthouse’s interpretation,
35
DI 68.
36
Pine River had previously exercised its right to remove AFC as Administrative Agent.
Aff. of Patrick Finn (“Lighthouse Aff.”) ¶ 5; Am. Compl. ¶ 19.
37
See Lighthouse Aff. ¶ 15 (explaining how Lighthouse reached the conclusion that the
cash interest due from Amur IV would be interest calculated under Section 2.08(a)
referencing one particular loan program which had passed its maturity date but remained
largely unpaid). In reaching this conclusion, Lighthouse focused on the following phrase
within the definition of SRMCC: “‘Stated Minimum Cash Calculation’ means for any
15
includes all principal and interest, whether due or past due, that the Operating
Companies owe to Amur IV.38 Thus, to calculate the SRMCC, Lighthouse
determined that it must identify and total all outstanding and due payments reflected
on the Stated Return Schedule with respect to each Asset.39 This marked a departure
from how AFC, as Administrative Agent, had been calculating SRMCC from the
outset of the parties’ relationship. Specifically, AFC had calculated SRMCC by
referring to projected returns as set forth in the Stated Return Schedules. This
approach yielded a steady, predictable SRMCC for each loan program.
Lighthouse’s approach to calculating SRMCC resulted in substantially higher
Cash Interest Accrual numbers.40 Specifically, after applying its calculation of
SRMCC, Lighthouse determined that the amount calculated under
Section 2.08(b)(ii) (75% of the SRMCC) would exceed the interest owed under
Interest Period the sum of all amounts of cash required to be paid to the Borrower during
such Interest Period . . . .” Credit Agmt., at § 1.01 (emphasis supplied).
38
Lighthouse Aff. ¶ 15.
39
See id. at ¶¶ 13, 15; Aff. Lakshmi A. Muthu Transmitting Ex. to Pls.’ Br. in Opp’n to the
Defs.’ Mot. and in Supp. of Pls.’ Cross-Mot. to Enforce the Court’s Apr. Order and for
Partial Summ. J. on Related Claims (“Muthu Aff.”) Ex. 12, at 4.
40
For June 2017 Lighthouse directed Amur IV to pay $1,956,167.19; for July 2017
$1,959,148.81; for August 2017 $1,980,270.54. Lighthouse Aff. ¶¶ 22, 24–25. The June
2017 calculation was later changed to $1,957,151.09 to reflect an error which had resulted
in the addition of interest earned on the Collections Account to the Cash Interest Accrual.
Id. at 6.
16
Section 2.08(a) (the total interest owed).41 Accordingly, Lighthouse concluded that
the cash interest due from Amur IV was the interest as calculated under
Section 2.08(a).42
Amur IV disagreed with Lighthouse’s calculation, performed its own
calculation under Section 2.08(b)(ii), and distributed $635,717.30 in June 2017.
According to Amur IV, its calculation for June 2017 was consistent with calculations
performed by AFC and accepted by Pine River since the inception of their
relationship.43 The July and August Administrator Reports sparked similar disputes:
in July, Lighthouse requested payment of $1,960,109.97 under Section 2.08(a) and
41
Lighthouse Aff. ¶ 15.
42
Id. To illustrate its calculation, Lighthouse pointed to one Amur IV investment, a
$12 million loan program to PMC Aviation 2012-1 LLC, where the loan to PMC had
matured in August 2016 but PMC still owed Amur IV a substantial amount of principal
and interest. Id. Based on the outstanding balance of this loan alone, Lighthouse
determined that 75% of the SRMCC was more than the interest due under Section 2.08(a).
Id.
43
Defs.’ Br. in Supp. of their Mot. to Enforce the Court’s Apr. 25, 2017 Order (“Defs.’
Br. in Supp. of Mot. to Enforce”) 12. In June 2016, the Cash Interest Accrual stated on the
Administrator Report was $635,717.30. Muthu Aff. Ex. HH. The Administrator Reports
for July 2016 through May 2017 stated Cash Interest Accrual payments due in the same
amount. Id. at Ex. II-18/D. This amount equals 75% of Amur IV’s SRMCC that AFC
consistently calculated by taking the sum of all “Stated Min Cash” columns included on
the Stated Return Schedule for each program. Defs.’ Br. in Supp. of Mot. to Enforce 9.
These columns, according to Amur IV, are determined at the outset of each investment
program and represent the program’s expected cash returns to Amur IV for each month
during the life of the program. Id.
17
Amur IV distributed $375,412.95;44 in August, Lighthouse directed payment of
$1,980,157.5745 and Amur distributed $635,717.30.46
2. The $94k Distributions
Starting in 2013, Amur Equipment Finance, Inc. (“Axis”) paid out a dividend
(the “Dividends” or the “Axis Dividends”) to Amur IV on roughly a monthly basis
by depositing $94,327.75 into the Collections Account established by the Credit
Agreement.47 These deposits were quickly followed by a withdrawal (the “$94k
distributions”) in roughly the same amount out of the Collections Account by
Amur IV and a corresponding distribution to AFC. This, according to Pine River,
occurred in 44 months since the parties entered into the Credit Agreement,48 and
amounted to deposits of $4,430,076.50 and withdrawals of $4,241,421.00.49
Lighthouse noticed the $94k distributions out of the Collections Account
when it began to compile and review records supplied by AFC during the transition
44
Lighthouse Aff. ¶ 22.
45
Id. at ¶ 24 n.6.
46
Id. at ¶ 25.
47
Id. at ¶ 27, Ex. E.
48
Id. at ¶¶ 26–27, Ex. E.
49
Id. at ¶ 27 (the discrepancy reflects that 47 deposits were made but only 44 distributions
went to AFC).
18
from AFC to Lighthouse as Administrative Agent.50 Lighthouse asked AFC and
Amur IV to explain these monthly transactions.51 In response, Amur IV explained
that the $94k distributions were dividends on Axis preferred stock (the “Axis
Preferred Stock”) owned by Amur IV.52 It further explained that while Amur IV
owned the Axis Preferred Stock, the Dividends flowed to AFC in accordance with
an agreement between AFC and Amur IV that had been blessed by Pine River.
Specifically, the parties had agreed that AFC would contribute the Axis Preferred
Stock to Amur IV so Amur IV could reach the Equity Ratio required by the Credit
Agreement while AFC would retain the right to receive any dividends declared by
Axis on its preferred stock.53
According to Amur IV and AFC, the parties’ agreement with regard to the
treatment of the Dividends and the $94k distributions is entirely consistent with the
Credit Agreement.54 In this regard, Amur IV points out that Credit Agreement
50
Id. at ¶ 26.
51
Id.
Id.; Defs.’ Corrected Reply Br. in Supp. of Their Mot. to Enforce and in Opp’n to Pls.’
52
Mot. for Partial Summ. J. (“Defs.’ Reply Br.”) 37.
53
Credit Agmt., at § 4.02(e).
54
Curiously, after Pine River advised Amur IV that it viewed the $94k distributions as
serial breaches of the Credit Agreement, Amur IV did not deposit the Dividend into or
distribute the $94k distribution out of the Collections Account in July or August 2017.
Lighthouse Aff. ¶ 28. Amur IV explains that this was due to Axis’ decision not to declare
a dividend in July and August 2017. Defs.’ Reply Br. 37; Corrected Aff. of Mostafiz
19
Assets are only those assets “acquired by” Amur IV.55 Since Amur IV did not
acquire the Dividends, but instead held them for AFC, the rightful owner, they were
not Credit Agreement Assets. As such, the Dividends cannot be deemed “Available
Collections” that would be subject to distribution out of the Collections Account in
accordance with Section 6.04’s Waterfall and, accordingly, they are not subject to
the provisions of the Credit Agreement.56 Additionally, Amur IV argues that the
Dividends are not part of the Loan Collateral as defined by Section 2.01 of the
Security Agreement since they are not “owned” by Amur IV.57 For the same reason,
Amur IV asserts that the Dividends are not a Security Agreement Asset securing the
Loan since Amur IV does not have “all right, title and interest” in the Dividends.58
ShahMohammed in Supp. of Defs.’ Mot. to Enforce and in Opp’n to Pls.’ Mot. for Partial
Summ. J. (“ShahMohammed Aff.”) ¶ 17.
55
Credit Agmt., at § 1.01.
56
Transcript of the September 12, 2017, Oral Argument, DI 132, (“Tr.”) 49–51 (“[T]he
preferred equity dividends are not ‘Available Collections’ . . . the ‘Collections
Account’ definition doesn’t contemplate them and they don’t flow through the
Section 6.04 waterfall . . . So the preferred equity dividends are not contemplated by
the credit agreement.”); Defs.’ Reply Br. 5 (“[T]hese dividends are not Available
Collections under the Credit Agreement and therefore do not flow through the
priority of payment waterfall of section 6.04.”).
57
Tr. 117–18 (Amur IV explaining that the section encompasses only those assets “owned
[by Amur IV] or hereinafter acquired.”).
58
Id. at 118 (“Amur IV did not have right, title or interest in the Axis preferred equity
dividends.”).
20
Pine River maintains that Amur IV’s characterization of the $94k distributions
collides with the clear terms of the Credit Agreement and Security Agreement at
every turn. First, the notion that Amur IV can simply transfer to AFC dividends
earned on preferred equity that AFC and Amur IV have committed to meet the
Equity Ratio (required by the Credit Agreement to secure the Pine River Loan) finds
no support in the language or spirit of Section 4.02(e).59 In this regard, Pine River
argues that Amur IV’s reliance upon the definition of Credit Agreement Assets as
justification for the $94k distributions is misplaced. According to Pine River, it is
not arguing that the Dividends are a Credit Agreement Asset and, thus, must be
distributed as part of Available Collections under Section 6.04’s Waterfall.60 Rather,
Pine River is simply arguing that the Dividends are part of the Loan Collateral and,
accordingly, Amur IV is prohibited from making the $94k distributions to AFC
59
Credit Agmt., at § 4.02(e) (providing that “the Borrower shall provide evidence” of
compliance with the Equity Ratio). Amur IV asserts that only the Axis Preferred Stock
was transferred to satisfy the Equity Ratio and not the Dividends. Tr. 114. Amur IV
supports its claim that the stock alone was sufficient to meet the requirement by explaining
that the Axis common stock initially contemplated to be transferred (agreed to by Pine
River) would not have yielded a dividend. Id.; Defs.’ Reply Br. 36. Furthermore, Amur
IV asserts that the Axis Preferred Stock alone is sufficient equity, even without the
Dividend, because Pine River could foreclose on the stock and thereby receive the face
value of the shares of approximately $8 million. Tr. at 117.
60
Tr. 61 (“The argument that Amur makes about how these are (capital ‘A’) Assets or not
(capital ‘A’) Assets doesn’t matter. We’re not trying to argue that they needed to be
distributed through the waterfall.”).
21
under Sections 5.07(d) and (f).61 According to Pine River, the Axis Preferred Stock
is a Security Agreement Asset and, under Section 2.01 of the Security Agreement
defining Collateral, is part of the Collateral for the Loan.62 The Dividends, as
“proceeds” of the Axis Preferred Stock, even if not a Security Agreement Asset, still
remain a key component of that Collateral.63 Since Sections 5.07(d) and 5.07(f) of
the Credit Agreement are meant to prevent Amur IV from depleting the Collateral,
these sections must be read to prevent the $94k distributions.
Second, as for Amur IV’s argument that a side agreement between the parties
authorized the $94k distributions, Pine Rive contends that Amur IV has conveniently
overlooked Sections 9.02 and 9.06 of the Credit Agreement.64 Section 9.06’s
61
Id. at 58 (explaining that the language of Section 5.07(d) does not apply only to Credit
Agreement Assets but rather limits Amur IV in making any distributions “of any property
belonging to [Amur IV]”); see also id. at 60 (Pine River explaining that Amur IV could
retain the Dividends without violating the Credit Agreement but cannot distribute the
Dividends to AFC without meeting the requirements of Section 5.07); Pls.’ Reply Br. 30
(“Sections 5.07(d), (f) and 6.04 prohibited Amur IV from depleting that equity cushion by
distributing value to AFC or any other affiliate.”).
62
See id. at 59–60.
63
Security Agmt., at § 2.01(a) (defining “Collateral” broadly to include “all other Assets
of the Grantor, wherever located and whether now owned or hereafter acquired or arising,
and all proceeds thereof, in each case for the benefit of the Secured Parties . . .”); Tr. 61
(“[T]he proceeds of all of the debtor’s property are also part of the collateral for the Pine
River loan.”).
64
Tr. 63–64 (explaining how both Sections 9.02 and 9.06 would prevent a separate
agreement concerning the Dividends and $94k distributions as argued by Amur IV).
22
integration clause does not allow for side agreements;65 and Section 9.02’s waiver
and amendments clause requires all agreements that would amend the Credit
Agreement to be in writing and prohibits either party from arguing that the other has
waived rights under the Credit Agreement by not previously asserting them.66
E. Procedural Posture
Pine River’s Original Complaint contained seven counts in which it sought
various declaratory, injunctive, and monetary relief. The Court entered the April 25
Order, on the stipulation of the parties, to resolve Pine River’s applications for
preliminary injunctive relief.67 The April 25 Order required Lighthouse to prepare
the monthly Administrator Report and Amur IV to follow the directions in those
reports. When the parties disagreed as to the cash interest due to Pine River as
calculated in the June Administrator Report, on July 26, 2017, Amur filed a motion
to enforce the April 25 Order.68 On August 18, 2017, Pine River filed a cross-motion
to enforce the April 25 Order and a motion for partial summary judgment on
65
Id. at 64 (“So if there was an oral agreement—Pine River doesn’t agree that there was
one—but if there were an oral agreement, it would be superseded by Section 5.07(d) or, if
Amur prefers, 5.07(f).”).
66
See id. (pointing to Am. Compl. Ex. B, C (“Waiver and Amendment No. 1;”
“Amendment No. 2”) as evidence that the parties recognized that amendments to the Credit
Agreement must be in writing signed by all parties).
67
DI 68.
68
DI 100.
23
Count VIII (relating to Cash Interest Accrual) and Count IX (relating to the $94k
distributions) of its Verified Amended Complaint which was e-filed on August 21,
2017.69 The Court heard the cross-motions to enforce and Pine River’s motion for
partial summary judgment on September 12, 2017.
II. ANALYSIS
Pine River’s motion seeks a summary declaration that Amur IV and AFC have
breached the Credit Agreement by failing to pay interest when due and that Amur IV
is in breach for making the unauthorized $94k distributions. It also seeks
declarations that these breaches constitute Events of Default. I address the merits of
the motion below after briefly reciting the well-settled standards by which the Court
must review a motion for summary judgment in which the movant seeks a
declaration of rights under a contract.
A. Standard of Review
Pursuant to Court of Chancery Rule 56(c), the Court will grant summary
judgment when “there are no questions of material fact and the moving party is
entitled to judgment as a matter of law.”70 When considering a motion for summary
judgment in the context of contract construction, the threshold question is whether
69
The Amended Complaint is dated August 18, 2017, but was not e-filed until August 21,
2017. See Am. Compl.; DI 107.
70
Senior Tour Players 207 Mgmt. Co. LLC v. Golftown 207 Hldg. Co., LLC, 853 A.2d 124,
126 (Del. Ch. 2004).
24
the contract is ambiguous.71 This is a question of law the answer to which may not
be reached through the consideration of extrinsic evidence.72
“A contract is ambiguous if the language used lacks a definite and precise
meaning, and there is a reasonable basis for a difference of opinion.”73 “Where a
contract is ambiguous, the interpreting court must look beyond the language of the
contract to ascertain the parties’ intentions.”74 Thus, if the court finds a contract
term ambiguous, “its construction presents a question of fact that may not be
resolved by the court on a motion for summary judgment.”75
71
Vitullo v. New York Cent. Mut. Fire Ins. Co., 51 N.Y.S.3d 768, 770 (N.Y. App. Div.
2017). While the Credit Agreement contains a New York choice of law provision at
Section 9.09, Delaware and New York apply the same general contract principles and thus
Delaware law is instructive here. See Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76,
90 (Del. Ch. 2009).
72
Vitullo, 51 N.Y.S.3d at 770 (“A contract may be enforced summarily where its terms are
unambiguous. Whether a contract is ambiguous is a question of law[,] and extrinsic
evidence may not be considered unless the document itself is ambiguous. Furthermore,
extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement
which is complete and clear and unambiguous on its face.”).
73
Agor v. Bd. of Educ., 981 N.Y.S.2d 485, 487 (N.Y. App. Div. 2014).
74
GMG Capital Invs., LLC v. Athenian Venture P’rs I, L.P., 36 A.3d 776, 780 (Del. 2012)
(internal quotation omitted).
75
Shadlich v. Rongrant Assocs., LLC, 887 N.Y.S.2d 228, 229 (N.Y. App. Div. 2009).
25
Finally, since “[t]here is no ‘right’ to summary judgment,”76 the court may
deny summary judgment in its discretion “if it decides upon a preliminary
examination of the facts presented that it is desirable to inquire into and develop the
facts more thoroughly at trial.”77 As it relates to contract construction, the “more
thorough development” of the facts necessarily translates into the development and
presentation of extrinsic evidence.78
B. Cash Interest Accrual
The construction exercise required to determine whether Amur IV has
breached Section 2.08 by failing to pay cash interest, and whether AFC has breached
Section 6.04 by directing that payments be made inconsistently with the prescribed
Waterfall, begins, of course, with Section 2.08. According to Section 2.08(b), “[t]he
amount . . . which is immediately payable in cash as Interest [each month] upon the
Loans,” defined as “Cash Interest Accrual,” is the lesser of the Interest as calculated
under Section 2.08(a) or “75% of aggregate Stated Return Minimum Cash
76
In re El Paso Pipeline P’rs, L.P. Deriv. Litig., 2014 WL 2768782, *9 (Del. Ch. June 12,
2014) (citing Telxon Corp. v. Meyerson, 802 A.2d 257, 262 (Del. 2002)).
77
Id. (citing Cerberus Int’l, Ltd. v. Apollo Mgmt., 794 A.2d 1141, 1150 (Del. 2002)).
78
GMG Capital Invs., 36 A.3d at 783 (“[W]here reasonable minds could differ as to the
contract’s meaning, a factual dispute results and the fact-finder must consider admissible
extrinsic evidence.”).
26
Calculation for all Assets during such Interest Period.”79 The interest as calculated
under Section 2.08(a) is the total interest owed.80 To ascertain which is the “lesser”
amount as between accrued Interest in Section 2.08(a) and 75% of the SRMCC, one
must calculate the accrued Interest and compare that to the calculated SRMCC for
all Assets during any given month (the “Interest Period”).
To calculate the SRMCC, one must look to “the sum of all amounts of cash
required to be paid to the Borrower during such Interest Period as determined from
all Stated Return Schedules related to Assets held during such Interest Period.”81
The Stated Return Schedule is defined as:
a schedule reasonably prepared by the Administrative Agent for a
proposed Asset, and disclosed to the Lenders in the related Borrowing
Notice, which sets forth for each Interest Period in which the Asset is
anticipated to be held and the amount of cash expected to be returned
to the Borrower, including the Net Proceeds for any sale of the proposed
Asset. Such cash flows shall be divided between the cash required to be
paid to the Borrower pursuant to the contractual terms of the Asset, and
all other cash flows, including cash flows to be realized upon the sale
of the proposed Asset. The Stated Return Schedule shall also disclose
Stated Yield, Stated Rate Yield and Stated Spread. The Stated Return
Schedule of an Asset shall not be changed absent manifest calculation
error. For the avoidance of doubt, the underperformance or over-
79
Credit Agmt., at § 2.08(b).
80
Id. at § 2.08(a) (providing that the interest owed is based on the Weighted Average Stated
Rate Yield of the Assets as defined in Section 1.01).
81
Id. at § 1.01 (SRMCC definition).
27
performance of an Asset shall not permit the Stated Return Schedule to
be altered.82
An exemplar “Borrowing Notice,” referenced in the definition of Stated
Return Schedule, is attached to the Credit Agreement as Exhibit A. On its face, it is
clear that this notice is intended to be delivered to Pine River at the time of a
“Proposed Borrowing” under the Credit Agreement.83 The intended timing of the
delivery of the Borrowing Notice and accompanying Stated Return Schedule, in
turn, suggests that the purpose of the Stated Return Schedule is to project the
performance of an Asset at the outset of a “Proposed Borrowing” rather than to track
the performance of the Asset as an evolving document during the course of the
borrowing. This construction is consistent with the references within the definition
of Stated Return Schedule to the effect that its purpose is to provide the Lender with
a schedule of “the amount of cash expected to be returned to the Borrower” during
the timeframe in which the Asset is “anticipated to be held” by the Borrower.84
The definition of Stated Return Schedule goes on to provide that the schedule
“shall not be changed absent manifest error” and further states, “[f]or the avoidance
of doubt, the underperformance or over-performance of an Asset shall not permit the
82
Id. at § 1.01.
83
Id. at Ex. A.
84
Id. at § 1.01 (Stated Return Schedule definition).
28
Stated Return Schedule to be altered.”85 Together, this language appears to reflect
an intent that the Stated Return Schedule is to be a one-time projection of sorts
prepared by the Administrative Agent at the front-end of a Proposed Borrowing.
Under this construction, AFC’s reliance upon the projected returns of an Asset to
calculate SRMCC would appear to be reasonable.
The parties have provided several exemplar Stated Return Schedules in the
summary judgment record.86 Each of these schedules contains a column designated
“Stated Min Cash” which, according to Amur IV, is shorthand for SRMCC.87 The
amounts reflected in this column appear to reflect steady, consistent projections of
performance throughout the anticipated life of the loan.88 Amur maintains that it is
from these projected SRMCC numbers that the Administrative Agent must
85
Id.
86
See Defs.’ Br. in Supp. of Mot. to Enforce Ex. 24–28.
87
See id.; Defs.’ Reply Br. 17; ShahMohammed Aff. ¶ 23.
88
See, e.g., Defs.’ Br. in Supp. of Mot. to Enforce Ex. 25 (containing a “Stated Min Cash”
column that projects returns of $80,000.00 from May 31, 2014 (apparently the initiation of
that particular program) through June 25, 2019, at which time the amount jumps to
$146,666.67 for one month and then declines to $0 on the 64th payment date (the end of
the 64-month term investment)); see also id. at Ex. 27 (showing a “Stated Min Cash”
column setting forth returns of $151,070 for August 2013, $150,989 for September 2013,
$149,790 for October 2013, slowly decreasing to $1,255 in February 2015, and then finally
reflecting a projection of $0 for the remainder of the 18 months ending in August 2016). I
note that it is impossible to tell from the Stated Return Schedules in print format which
investment program the schedule pertains to. See, e.g., id. at Ex. 24, 27.
29
determine the Cash Interest Accrual to be paid every month, just as AFC has done
(without objection from Pine River) throughout the parties’ relationship.89
Pine River offers a different construction. It contends that the Stated Return
Schedules, on their face, reflect the parties’ intent to create an evolving document
that tracks the performance of the Assets and reveals, in actual (not projected) terms,
“the sum of all amounts of cash required to be paid to the Borrower during such
Interest Period.”90 By doing so, the Stated Return Schedules allow an actual, not
projected, calculation of SRMCC. Specifically, according to Pine River, the Stated
Return Schedules permit the Administrative Agent to calculate in real time the
principal and interest payments due from the Operating Companies to the
Borrower.91 This, according to Pine River, is consistent with the definition of
89
Defs.’ Br. in Supp. of Mot. to Enforce 9–10 (“[The] Stated Return Minimum Cash
Calculation is calculated by simply adding the figures in the “Stated Min Cash” column in
each Program’s Stated Return Schedule for such month, across all the relevant fundings.
This is how the Stated Return Minimum Cash Calculation has been derived since the
inception of the Credit Agreement, and correspondence with Pine River dating back to
2013 reflects that all parties understood that the figures in the “Stated Min Cash” column
for the Stated Return Schedules were the proper and sole inputs for arriving at the Stated
Return Minimum Cash Calculation.”).
90
Credit Agmt., at § 1.01 (definition of SRMCC).
91
Tr. 83 (Pine River explaining that “[t]hose payments of principal and interest are all
shown on the stated return schedules”); see also Native Excel Files of Certain Ex. Filed
with Defs.’ Br. in Supp. of Mot. to Enforce Apr. 25, 2017 Order (“Defs.’ Excel File CD”)
(showing excel versions of the Stated Return Schedules presented by Defendants in the
exhibits to their Motion to Enforce). The Stated Return Schedule exhibits presented to the
Court on Defs.’ Excel File CD, include tabs as part of the Stated Return Schedules
reflecting, among other figures, amounts for interest due, interest paid and principal paid.
30
SRMCC, which requires the calculation to account for “all amounts of cash required
to be paid to the Borrower . . . .”92
Amur’s construction of the SRMCC and Stated Return Schedule definitions
is reasonable. There is no clear indication in either definition that the parties
intended SRMCC to be determined based on the actual performance of an Asset.
The definition of Stated Return Schedule, as noted above, can be read to suggest that
the schedule is to provide a projection of performance which, in turn, suggests that
the SRMCC, “determined from the Stated Return Schedule,” is likewise intended to
be based on projected, not actual, performance.
Pine River’s interpretation of the definition of SRMCC is also reasonable and
supported by the Stated Return Schedules submitted with the parties’ motion papers.
These schedules appear to reflect the actual “sum of all amounts of cash required to
See, e.g., id. at Ex. 24. For example, the “Amur Aviation Return Schedule,” labeled as
Exhibit 24 on the CD, includes four tabs as part of its Excel booklet named “Stated
Minimum Cash Sheet,” “Funding1,” “Funding2” and “Repayment.” Id. The Repayment
tab includes columns for interest due, interest paid as well as principal due and paid
columns. Id. Similarly, the “PMC Return Schedule,” labeled Exhibit 27 on the CD,
displays three tabs, one of which is labeled “Schedule” while the others are labeled “PMC-
767 (Assets)” and “PMC-767 (Liab).” Id. at Ex. 27. The “Schedule” tab, again, includes
a column for interest and principal in addition to the “Stated Min Cash” column. Id. The
PMC-767 (Liab) tab shows amounts for interest, reserve and principal payments updated
throughout the life of the loan to reflect those payments due and paid as well as a column
named “cash out” for each of the categories. Id. Based on these exemplars, it would appear
that the Stated Return Schedules contain more than simply projections prepared at the
outset of a borrowing.
92
Credit Agmt., at § 1.01 (emphasis supplied).
31
be paid to the Borrower during [any given] Interest Period.”93 The Stated Return
Schedules are expressly incorporated within the definition of SRMCC. The
schedules themselves, therefore, are not extrinsic to the Credit Agreement.94 Thus,
they cannot be ignored when determining who, as between AFC and Amur IV or
Lighthouse, correctly calculated the SRMCC.
Because I have determined that both parties have offered reasonable
constructions of the relevant provisions of the Credit Agreement relating to potential
breaches of Sections 2.08 and 6.04, I must conclude that the Credit Agreement is
93
Id. at § 1.01 (SRMCC definition).
94
I.U. N. Am., Inc. v. A.I.U. Ins. Co., 896 A.2d 880, 886 (Del. Super. 2006) (“The general
rule of contractual interpretation referred to as the doctrine of incorporation by reference
is: Other writings, or matters contained therein, which are referred to in a written contract
may be regarded as incorporated by the reference as a part of the contract and therefore,
may properly be considered in the construction of the contract. Where a written contract
refers to another instrument and makes the terms and conditions of such other instrument
a part of it, the two will be construed together as the agreement of the parties.”) (internal
quotation omitted); In re Bd. of Comm’rs of Washington Park, 52 N.Y. 131, 134 (N.Y.
1873) (“It is most usual to annex papers designed to be incorporated in an instrument by a
reference, and a simple reference to a paper thus annexed will suffice without more
particular description, and, if referred to as annexed, and is not annexed, the defect cannot
be supplied by parol. Neither is there any particular mode of reference to a paper, whether
annexed or not, essential to make it a part of the chief or principal instrument. Any
language which clearly indicates the intention of the parties or the maker of the instrument
to that effect, will suffice, within the well-established rule which calls upon courts to give
effect to the intent as indicated by the words employed by parties.”).
32
ambiguous with respect to these provisions.95 Thus, I must deny summary judgment
as to Count VIII.96
95
GMG Capital, 36 A.3d at 780 (“[A]n ambiguity exists when the provisions in
controversy are fairly susceptible of different interpretations or may have two or more
different meanings. Where a contract is ambiguous, the interpreting court must look
beyond the language of the contract to ascertain the parties’ intentions.”) (internal quotation
omitted). I acknowledge that both parties argue that the other’s construction of the
operative provisions, if accepted, would yield “absurd results.” According to Amur, Pine
River’s SRMCC calculation would allow a lone Asset’s default to trigger an Event of
Default for Amur IV that could not be cured due to limitations on the circumstances under
which AFC can make equity contributions under the Credit Agreement. Under this
construction, Amur IV would be paying an “above-market interest rate of 15% while
simultaneously taking on the burden of guaranteeing the performance of each Asset.”
Amur also claims that, under Pine River’s interpretation, the over-performance of an Asset
could lead to negative SRMCC and to Amur IV’s principal increasing while “by all logic
it should be decreasing.” Defs.’ Reply Br. 4, 28–29, 34–35. For its part, Pine River
contends that “[u]nder Amur’s interpretation, Pine River could not declare an Event of
Default even if Amur IV owed Pine River $160 million, with principal increasing by more
than $1 million monthly, and Amur IV made no payments to Pine River—for years . . . .”
This is because, “[u]nder Amur’s interpretation, although PMC [for example] is currently
required to pay Amur IV more than $9 million, with more than $6.5 million in missed
payments reflected on PMC’s Stated Return Schedule, Pine River [would have] no recourse
for a recovery of the funds [it] advanced for PMC [until the maturity of the Loan in 2023].”
Pls.’ Reply Br. 16–17. To be sure, it is a settled tenet of contract construction that the court
should not construe a contract in a manner that produces an “absurd result.” In re IBP, Inc.
S’holder Litig., 789 A.2d 14, 57 (Del. 2001) (“New York law disfavors a reading of a
contract that produces capricious and absurd results, in favor of a reading that is reasonable
in the commercial context in which the parties were contracting.”). Even so, neither party
has proffered a result that would flow from the court’s acceptance of the other party’s
construction that is any more or less “absurd” than the result that would flow from its own
construction. Stated differently, in the “absurd results” sweepstakes, both parties are
winners or losers, depending upon one’s perspective.
96
Shadlich, 887 N.Y.S.2d at 229 (“When the language of a contract is ambiguous, its
construction presents a question of fact that may not be resolved by the court on a motion
for summary judgment.”). Since Pine River’s claim that AFC has breached Section 6.04
is dependent upon a finding that Amur IV breached Section 2.08, and I have found
33
C. Section 5.07 and the $94k Distributions
An assessment of Pine River’s claim that Amur IV is in breach of the Credit
Agreement by having made the $94k distributions, once again, requires a rather
tedious perambulation through several provisions of the contract.97 At the heart of
the claim are Sections 5.07(d) and (f). These sections serve to protect the Collateral
for the Pine River Loan from depletion by restricting Amur IV’s ability to make
distributions “in respect of its equity interests” as well as its ability to engage in
transactions with its affiliates.98 Pine River has invoked both provisions to support
its claim of breach.
ambiguity in that section, the determination of whether AFC is in breach of Section 6.04
must await the Court’s construction of Section 2.08.
97
I note that Pine River has asserted a claim of breach of Section 4.02 in Count IX for
Amur IV’s alleged failure to maintain the Equity Ratio prescribed by the Credit Agreement.
Am. Compl. ¶¶ 291–92, 296, 298. I need not reach this claim given my findings regarding
Pine River’s claim that Amur IV has breached Section 5.07.
98
See Credit Agmt., at § 5.07(d) (“Restricted Payments: The Borrower shall not and shall
cause its Subsidiaries not to [m]ake any distributions in respect of its equity interests or
directly or indirectly purchase redeem, or otherwise acquire or retire any of its equity
interests . . . other than any such payment permitted to be made to Parent in accordance
with Section 6.04.”); id. at § 5.07(f) (restricting Borrower from “mak[ing] any transaction,
contract, agreement, understanding, loan, advance or guarantee with or for the benefit of
any Affiliate of Borrower” except “on terms that are no less favorable to Borrower than
those that would have been obtained by Borrower in a comparable transaction on an arm’s
length basis . . .”). Amur argues that Pine River did not preserve its arguments under
Section 5.07(f) in its briefs and, therefore, has waived them. Defs.’ Br. in Opp’n 41.
I disagree. First, I note that Count IX in the Amended Verified Complaint, filed on
August 21, 2017, expressly put Amur on notice that Pine River was alleging a breach of
Section 5.07(f). Am. Compl. ¶¶ 294, 296; DI 106–07. Pine River then invoked
34
1. Section 5.07(d)
Section 5.07(d), by its terms, restricts the transfer of Amur IV’s “equity
interests.” 99 It is undisputed that Amur IV owns the Axis Preferred Stock from
which the $94k distributions originate.100 As such, the distributions are
“distributions in respect of [Amur IV’s] equity interests.”101
Two provisions modify the restrictions set forth in Section 5.07(d). First,
Section 5.07(d) contains a carve-out for payments “permitted to be made to Parent
in accordance with Section 6.04.” Since the $94k distributions were made by
Amur IV to its parent, AFC, it is appropriate to consider whether Section 6.04
authorizes these distributions. A review of the unambiguous terms of Section 6.04
reveals that it does not. Section 6.04 permits the Borrower to make payments to its
Parent under the Ninth priority of the Waterfall, after the higher priorities, including
Interest, have been paid.102 There is no dispute that the $94k distributions were made
Section 5.07(f) in its opening brief at page 32, and again in its reply brief at pages 29
through 31. There was no waiver.
99
Credit Agmt., at § 5.07(d).
100
ShahMohammed Aff. ¶ 13; Tr. 46, 50.
101
Credit Agmt., at § 5.07(d). Amur IV maintains the $94k distributions were actually
“distributions in respect of Axis’s equity interests.” Defs.’ Reply Br. 40. While it is true
that the payment of the Dividends from Axis to Amur IV were in respect of Axis’s equity
interests, the $94k distributions from Amur IV to AFC were payments made “in respect
of” Amur IV’s equity interests.
102
Credit Agmt., at § 6.04.
35
before the other priorities in the Waterfall were satisfied.103 They were not,
therefore, permitted by Section 6.04.
Second, Section 5.07(d) was amended in December 2014 to provide that
Amur IV could pay dividends to AFC, even if not “permitted” by Section 6.04, but
only if Amur IV satisfied four designated conditions: “(i) no Event of Default has
occurred and is continuing or may result as a consequence of such dividend being
paid, (ii) such dividend is permitted under Section 11 of the LLC Agreement, or in
a different or successor provision of such LLC Agreement to which each Lender has
furnished its consent; (iii) all Interest which accrued in the most recently completed
Interest Period was paid in cash, and (iv) an officer of the Borrower certifies to the
Lenders that he or she has reasonably determined that the Borrower will be able to
pay in cash all Interest which will accrue in the current and next Interest Periods.”104
It is undisputed that neither condition (iii) nor condition (iv) were satisfied prior to
103
Payment of PIK Accrual is due under the Eighth priority of the Waterfall. Amur IV
has, through its arguments concerning the calculation of cash interest due, already asserted
that it has not previously paid all PIK Accrual. See, e.g., Tr. 20 (Amur arguing that “Pine
River knew it was going to receive certain amounts of money in cash and that the rest of
Amur [IV]’s debt service would be satisfied through the addition of any difference . . . as
PIK accrual. So it is not that Pine River would not receive its money; it would just receive
it at a different point in time in the form of essentially compound interest.”). Thus, the
priorities due before the Ninth priority, under which the distributions to AFC could have
been properly made, were not satisfied prior to the payment of the $94k distributions.
104
December 2014 Amendment, at § 1(e) (Section 5.07(d) Amendment) (emphasis
supplied).
36
the $94k distributions to AFC.105 Thus, Amur IV cannot employ the amendment to
Section 5.07(d) to justify the distributions.
The $94k distributions were not authorized and, in fact, were prohibited by
Section 5.07(d). Thus, absent some other justification for the distributions, Amur IV
has breached the Credit Agreement by making them.
2. Section 5.07(f)
As noted, under Section 5.07(f), Amur IV may not enter into a “transaction”
with its affiliates unless it can demonstrate that the transaction is on terms
comparable to an arms-length transaction.106 In addition, Amur IV must deliver to
Pine River a board resolution reflecting that the transaction “does not adversely
105
The Credit Agreement defines “Interest” as “the sum of Additional Interest, PIK Accrual
and Cash Interest Accrual.” Credit Agmt., at § 1.01. Defendants in their Brief in Support
of their Motion to Enforce explain that Pine River will still receive the amount it is owed
under Amur IV’s theory but will receive it in PIK Accrual rather than cash interest within
each month. Based on Amur IV’s argument, one can deduce that PIK Accrual was not
paid in cash in prior months and has not been certified to be paid in future months. Since
Interest, under the Credit Agreement, includes PIK Accrual, Amur IV has not paid in cash
all Interest in the months preceding the $94k distributions. Credit Agmt., at § 1.01.
Section 5.07(d)(iii), as amended, requires all Interest to be paid in cash in the prior month
and Section 5.07(d)(iv), as amended, requires certification that Amur IV will be able to pay
all Interest in cash in the current and next period. Amur IV does not dispute that these
provisions were not satisfied and thus the December 2014 Amendment allowing additional
distributions cannot justify the $94k distributions. Defs.’ Br. in Supp. of Mot. to
Enforce 27, 29–30.
106
Black’s Law Dictionary (10th ed. 2014) (defining “transaction” as “[t]he act or an
instance of conducting business or other dealings” and noting that the term “is a broader
term than contract”). I am satisfied that the monthly distributions are “transactions” as that
term is used in Section 5.07(f).
37
affect the interests of the Lenders” and that it is, in fact, on terms comparable to an
arms-length transaction.107 It is undisputed that no such board resolutions were
delivered to Pine River with respect to the $94k distributions to AFC.108 Nor did
Amur IV ever attempt to demonstrate that the $94k distributions were on terms “that
are no less favorable to [Amur IV] than those that would have been obtained by
[Amur IV] in a comparable transaction on an arm’s-length basis with a [non-
affiliate].”109 Thus, the $94k distributions violated Section 5.07(f) as well.
3. The Alleged Separate Agreement Relating to the Axis Dividends
Staring in the face of a clear breach of Section 5.07, Amur IV maintains that
the Credit Agreement does not apply to the $94k distributions because Amur IV
reached an understanding with Pine River that the Dividends, from which the
distributions originate, belong to AFC, not Amur IV. According to Amur IV, the
107
Credit Agmt., at § 5.07(f).
108
ShahMohammed Aff. ¶¶ 13, 16–17 (“AFC’s transfer of the preferred shares to
Amur IV was approved by resolutions of the Board of AFC and of the sole member of
Amur IV.” (emphasis supplied). “It was my understanding that we had reached agreement
with Pine River and the matter [of routing the Dividends through the Collections Account]
was settled.” “To the best of my knowledge, Axis dividends were routed to AFC by way
of the Collections Account from the inception of the Credit Agreement—when Pine River
and I agreed to this approach—until Pine River objected, for the first time, in June of
2017.”); Tr. 47 (Amur’s counsel stating that “Pine River has been aware of these
dividends . . . [through its receipt of] quarterly financial disclosures evidencing the
payment . . . [and] collections account bank statements,” thus indicating that no Amur IV
board resolutions concerning the $94k distributions were ever presented to Pine River).
109
Credit Agmt., at § 5.07(f)(i).
38
Credit Agreement accounts for this arrangement in its definition of Assets and
Available Collections and Pine River blessed the payments to AFC in a separate,
binding oral agreement between Pine River and Amur IV prior to entering the Credit
Agreement.
Credit Agreement Assets are “commercial or industrial equipment, capital
leases and operating leases, loans, or other financial assets acquired by the Borrower,
as initially set forth on Schedule 3 [to the Credit Agreement], . . . and any proceeds
thereof.”110 Amur IV maintains that since it never “acquired” the Axis Dividends,
they cannot be deemed a Credit Agreement Asset subject to distribution under the
Credit Agreement.111 According to Amur IV, this construction is consistent with
Schedule 3 to the Credit Agreement, which purports to list all Credit Agreement
Assets at the time of the Credit Agreement’s execution but does not list the Axis
Dividends.112 Thus, having demonstrated that the Dividends are not a Credit
Agreement Asset, Amur IV argues that they are not part of the Available Collections
and, thus, the Credit Agreement does not apply to them.113
110
Id. at § 1.01 (Assets definition).
111
Amur IV also argues that the Axis Dividends do not become a Credit Agreement Asset
simply because they were deposited into the Collections Account. Tr. 52.
112
Id. at 50–51.
113
Id. at 51 (“[T]he preferred equity dividends are not contemplated by the credit
agreement.”).
39
Even assuming that Amur IV is correct and the Dividends are not a Credit
Agreement Asset, that determination, standing alone, does not take Amur IV where
it needs to go to defeat Pine River’s claim of breach under Section 5.07. Nothing in
Section 5.07 remotely suggests that its transfer and distribution restrictions apply
only to transfers of Amur IV’s Assets as defined under the Credit Agreement.114
Instead, these provisions are “negative covenants” that restrict Amur IV’s ability to
engage in conduct that might diminish Pine River’s security, including by
diminishing the Collateral that has been pledged for the Loan. “Collateral” is
defined in the Credit Agreement by reference to the Security Agreement,115 which,
in turn, defines Collateral as:
114
Credit Agmt., § 5.07(d) (Borrower shall not “[m]ake any distributions in respect to its
equity interests . . .”) (emphasis supplied); id. at § 5.07(f) (Borrower shall not “make any
payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to,
or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of,
any Affiliate of Borrower . . .”) (emphasis supplied).
115
At oral argument, Amur maintained that Pine River’s “argument with respect to
Section 2.01 was not briefed, and [Amur] respectfully submit[s] that it is not appropriate
for [Pine River] to make new arguments related to Section 2.01 of the security agreement
now.” Tr. 117. Once again, I disagree. Pine River briefed the argument in its Reply Brief
on page 30 in response to Amur’s suggestion that the Dividend belonged to AFC:
Pine River underwrote the Credit Agreement based on the equity cushion.
Sections 5.07(d), (f) and 6.04 prohibit Amur IV from depleting that equity
cushion by distributing value to AFC or any other affiliate. Moreover, Pine
River receives the benefit of a security interest in the Axis Stock to protect
its rights; that security interest covers not only the Axis preferred stock, but
also all proceeds of and income from the Axis Stock, including all Axis
Dividends received by Amur IV. (Security Agreement § 2.01 (a)).
40
(a) all right of the Grantor in and to the Interest Reserve Account, the
Collections Account and each other Account established under the
Credit Agreement, (b) all cash, investment property, investments,
securities, instruments, investment property or other property
(including all ‘financial assets’ within the meaning of Section 8-
102(a)(9) of the UCC) at any time or from time to time on deposit in or
credited to any such Account, (c) all of the Assets and all rights to
payment and other Proceeds from time to time received, receivable or
otherwise distributed in respect of such Assets, (d) all income,
payments and proceeds of any and all of the foregoing, and (e) all other
Assets of the Grantor, wherever located and whether now owned or
hereafter acquired or arising, and all proceeds thereof, in each case for
the benefit of the Secured Parties (the ‘Collateral’).116
Security Agreement Assets, in turn, are defined as:
all right, title and interest of Grantor in and to the following property
with each term having the definition provided in Article 9 of the UCC:
accounts, chattel paper, commercial tort claims, consumer goods,
deposit accounts, documents, equipment, farm products, general
intangibles, instruments, inventory, investment property, letter of credit
rights, letters of credit and money, whether now owned or hereafter
acquired (including without limitation the Assets set forth on
Schedule 3 to the Credit Agreement).117
As noted, it is undisputed that Amur IV owns the Axis Preferred Stock.118
Accordingly, Amur IV has “all right, title and interest” in that equity and it is,
See also Defs.’ Br. in Opp’n to Pls.’ Mot. for Partial Summ. J. (“Defs.’ Br. in Opp’n”) 37
(raising the issue of Amur IV’s ownership of and interest in the Axis Dividend).
116
Security Agmt., at § 2.01 (emphasis supplied).
117
Id. at § 1.01.
118
Tr. 44 (Amur explaining that the “preferred shares were transferred to Amur IV in order
to satisfy the equity ratio”); ShahMohammed Aff. ¶¶ 13–14 (“The transfer of the preferred
shares to Amur IV was approved by resolutions of the Board of AFC and the sole member
41
therefore, a Security Agreement Asset.119 As a Security Agreement Asset, the Axis
Preferred Stock is part of the Collateral securing the Loan under Section 2.01(a) of
the Security Agreement.120 It follows from that determination that the Dividends
derived from that stock, even if not themselves a Security Agreement Asset, are
Collateral under Section 2.01(a)(e), which provides that Collateral includes “all
other Assets of [Amur IV], wherever located and whether now owned or hereafter
121
acquired or arising, and all proceeds thereof.” More succinctly stated, the
Dividends are “proceeds” of the Axis Preferred Stock and thus are Collateral for the
Pine River Loan. Therefore, the Credit Agreement’s provisions, including the
of Amur IV.”); Defs.’ Reply Br. 39 n.100 (“AFC transferred [the Axis Preferred Stock] to
Amur IVI to maintain Amur IV’s Equity Ratio.”).
119
Security Agmt., at § 1.01 (Assets definition).
120
ShahMohammed Aff. ¶ 7 (explaining that the stock to be transferred to Amur IV was
intended to be “part of the asset contribution used to satisfy the Equity Ratio as well as part
of the collateral in which Pine River ha[s] a security interest”).
121
Id. at § 2.01(a)(e); see also Credit Agmt., pmbl.:
The Borrower agrees and acknowledges that each Lender is agreeing to make
Advances to Borrower on the terms set forth herein with an initial aggregate
Commitment Amount of One Hundred Sixty-Seven Million US Dollars
($167,000,000.00) as of the Closing Date, and Borrower shall apply the
proceeds of Advances solely as set forth herein, and the Borrower shall in
consideration for such Advances pledge all of its assets to, and grant a first
priority perfected Lien on all of such assets as Collateral for the Loans and
any other obligations hereunder, to the Collateral Agent for the benefit of the
Lenders (emphasis supplied).
42
negative covenants set forth in Sections 5.07(d) and (f), are applicable to the $94k
distributions.
As for Amur IV’s contention that it reached a separate oral agreement with
Pine River that modified the Credit Agreement, the argument fails to account for the
parties’ clear intent, as expressed in the Credit Agreement, that no such oral
agreements will modify the parties’ fully integrated written agreement. To be sure,
as a general matter, a written agreement “does not exclude proof of a parol collateral
agreement made even between the same parties.”122 When a written contract is
meant to embody the whole agreement of the parties and covers the subject matter
of the alleged collateral agreement completely, however, such proof of a collateral
agreement is not admissible.123 Such is the case here.
As an initial matter, the Credit Agreement requires Amur IV to hold certain
equity as security for the Loan prior to and following any advance from Pine River
122
Thompson Bros. Pile Corp. v. Rosenblum, 993 N.Y.S.2d 353, 354 (N.Y. App. Div.
2014).
123
Id.; see also Mitchill v. Lath, 160 N.E. 646, 647 (N.Y. 1928) (“Under our decisions,
before such an oral agreement as the present is received to vary the written contract, at least
three conditions must exist: (1) The agreement must in form be a collateral one; (2) it must
not contradict express or implied provisions of the written contract; (3) it must be one that
parties would not ordinarily be expected to embody in the writing, or, put in another way,
an inspection of the written contract, read in the light of surrounding circumstances, must
not indicate that the writing appears to contain the engagements of the parties, and to define
the object and measure the extent of such engagement. Or, again, it must not be so clearly
connected with the principal transaction as to be part and parcel of it.”) (internal quotation
marks omitted).
43
under Section 4.02.124 Additionally, as noted, it restricts Amur IV’s ability “to make
distributions in respect of its equity” in Section 5.07(d). And, at Section 5.07(f), it
prohibits Amur IV from transacting with an affiliate in a manner that would unfairly
benefit the affiliate and harm the interests of Pine River. Read separately or together,
these provisions reflect the parties’ intent to address Amur IV’s ability to act with
respect to its equity and Pine River’s security for the Loan. The oral agreement that
Amur IV would have the Court recognize addresses Amur IV’s ownership rights
with respect to the Axis Preferred Stock and the $94k distributions to Amur IV’s
affiliate. Considering the lengths to which the parties went in their written
agreement to address these issues, it is not conceivable that the parties would have
entered into a collateral oral agreement pertaining to the $94k distributions that was
disconnected from the Credit Agreement.
More to the point, the Credit Agreement contains an integration clause at
Section 9.06 in which the parties agreed that “[the Credit Agreement] constitutes the
entire contract among the parties relating to the subject matter [] and supersedes any
and all previous agreements and understandings, oral or written, relating to the
124
December 2014 Amendment, at § 1(d) (Section 4.02(e) Amendment) (“After giving
effect to the acquisition of the Assets to be acquired on such Drawdown Date, the Borrower
shall provide evidence that the amount of equity held by the equity holders of the Borrower
complies with the Equity Ratio.”); ShahMohammed Aff. ¶ 6.
44
subject matter [thereof].”125 This provision forecloses Amur IV’s argument that it
reached a separate oral agreement with Pine River with respect to the $94k
distributions.
In addition to Section 9.06, the parties also agreed to a waivers and
amendments clause in Section 9.02, which requires that any amendments to the
Credit Agreement be in writing executed by all parties. No written amendment to
the Credit Agreement addressed the $94k distributions.126 Moreover, given
Section 9.02’s clear language to the effect that the parties cannot waive their rights
under the Credit Agreement by failing to assert them, Amur IV cannot be heard to
argue that Pine River’s acquiescence to Amur IV’s prior $94k distributions out of
the Collections Account constitutes a waiver of its right to enforce Section 5.07.127
125
Credit Agmt., at § 9.06.
126
The record contains two written amendments to the Credit Agreement, Am. Compl.
Ex. B, C, neither of which even mention the Dividend or the $94k distributions. These
amendments, however, do reflect that when the parties wanted to amend the Credit
Agreement, they knew how to do it.
127
Nor can Amur IV contend that its alleged side agreement with Pine River somehow
amended or altered the written Amendments to the Credit Agreement. Both Amendments
make clear that the integration, waiver and amendments clauses of the Credit Agreement
“apply mutatis mutandis” to the Amendments. Amendment No. 1, at § 5; Amendment
No. 2, at § 4.
45
D. Amur IV’s Breach of Sections 5.07(d) and 5.07(f) Resulted in an Event of
Default Under Section 7.01(f)
Under the Credit Agreement, an Event of Default occurs when Amur IV
“fail[s] to observe or perform any covenant, condition or agreement contained in
Article V.”128 Amur IV’s breach of both Sections 5.07(d) and 5.07(f) constitute
failures to perform covenants in Article V and are, therefore, Events of Default under
Section 7.01(f).129
III. CONCLUSION
For the foregoing reasons, Pine River’s motion for partial summary judgment
is DENIED as to Count VIII and GRANTED as to Count IX. The parties shall
confer and submit an implementing order within 10 days.130
128
Credit Agmt., at § 7.01 (f).
129
Key Int’l Mfg. Inc. v. Stillman, 480 N.Y.S.2d 528 (N.Y. App. Div. 1984), aff’d, 66
N.Y.S.2d 924 (N.Y. 1985) (declaring an event of default even after acknowledging that the
result was harsh, noting that “absent some element of fraud, exploitive overreaching or
unconscionable conduct to exploit a technical breach, there is no warrant, either in law or
in equity, for a court to refuse enforcement of the agreement of the parties”) (internal
quotation omitted).
130
The form of order should address next steps to be taken in the litigation given the Court’s
findings here.
46