Michael Brady brought suit against Greater Southwest Funding Corporation (“GSW”) and UBS Financial Services (“UBS”), which Brady contends is GSW’s alter ego, for payment on bonds issued by GSW. The district court dismissed Brady’s claims as time barred. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and holds that Brady acquired a right to sue on the Stated Maturity of his bond and that remedy is not time barred. Furthermore, Brady’s claims are not barred by res judicata. We therefore REVERSE the judgment of the district court.
I. Background
This action arises out of GSW’s 1985 sale of bonds to finance the construction of the Mid-Continent Tower in Tulsa, Oklahoma. GSW is a single-purpose entity created to issue and administer the bonds. GSW issued the bonds in two series. The Series A Bonds were sold to several large institutional investors, while the majority of the Series B Bonds were sold to non-institutional investors like Brady. The bonds were issued pursuant to a Collateral Trust Indenture (the “Indenture”), with Shawmut Bank (the “Trustee”) acting as the Indenture Trustee.
The Tower was to serve as the headquarters of Reading & Bates Corporation. It was owned by Fourth .Street Associates and leased to RMM Corporation. RMM Corporation subleased the Tower to Reading & Bates for a twenty-five year term. GSW loaned the proceeds from the sale of the bonds to Fourth Street Associates to finance the tower. In return for the loan of the bond sale proceeds from GSW, Fourth Street Associates issued Series A and B Mortgage Notes, seсured by granting GSW a first mortgage interest in the Tower. The collateral also consisted of the assignment to GSW of Fourth Street Associates’ interest in the lease and sublease, including the right to receive payment of rent. As required by the Indenture, GSW assigned the Mortgage Notes, *1322 the first mortgage interest, the lease, and the sublease to the Trustee as security for the payment of the bonds.
In 1987 Reading & Bates defaulted on its lease obligations. On December 8, 1987, the Trustee provided written notice to all bondholders that an Event of Default 1 had occurred when GSW, which relied on the lease payments to pay the principal and interest on the bonds, defaulted on the payment of principal and interest on the Series A Bonds. Five years later, holders of more than twenty-five percent of the outstanding principal amount of the Series A Bonds notified the Trustee that they were exеrcising their right under § 9.02 of the Indenture to accelerate all the bonds. 2
Section 9.02 of the Indenture governs the acceleration of the bonds. That Section states, in part:
If an Event of Default occurs and is continuing ... the Holders of not less than 25% in principal amount of the Bonds Outstanding of such series may declare the principal of all the Bonds to be due and payable immediately, by a notice in writing to the Company (and to the Trustеe, if given by Bondholders), and upon any such declaration such principal, or, in the case of Zero Coupon Bonds, the Compound Accreted Value thereof, shall become immediately due and payable.
On December 24, 1993, the Trustee informed all bondholders that it had received a Notice of Acceleration from more than twenty-five percent of the Series A Bondholders. In the letter the Trustee explainеd, “[u]nder Section 9.02 of the Indenture, the principal amount of the Series A Bonds and the Compound Accreted Value (as defined in the Indenture) of the Series B Bonds thereby became due and payable on December 8,1993.”
The Trustee filed a foreclosure action in 1994 in Tulsa County District Court (the “Foreclosure Action”) against all parties associated with the transaction, including GSW and UBS. The Trustee asserted claims to collect payment on the Mortgage Notes and to foreclose on its lien on the Tower. The Series B Bondholders, represented by plaintiffs John R. Roberson and David B. Magill, were granted class certification and intervenor status in the Foreclosure Action. The Foreclosure Action is unresolved at this time.
The Series B Bondholders’ case in intervention involved claims only against the Trustee. In December of 2005, the Series B Bondholders moved to amend their complaint in intervention to add breach of contract claims against GSW and against UBS under an alter ego theory of liability. The Oklahoma district court denied the motion on the basis of undue delay. The court later granted summary judgment to the Trustee on all the Series B Bondholders’ claims in intervention. The Series B Bondholders appealed that decision to the Oklahoma Court of Civil Appeals. The Court of Civil Appeals reversed the district court’s grant of summary judgment and remanded for trial on the Series B Bondholders’ claims against the Trustee. It also held, however, that the district court had not abused its discretion in denying the motion to amend for undue delay.
In 1996, Roberson initiated a separate action in state court against GSW, UBS, and others, claiming breach of contract *1323 and fraud (the “Roberson Action”). The Series B Bondholders were denied class status in the Robеrson Action, but the litigation remains unresolved. In 1997, another Series B Bondholder, Stephens Property Company, brought an action against GSW and UBS in United States District Court for the Northern District of Oklahoma (the “Stephens Action”). Stephens alleged UBS was liable, under an alter ego theory, for unpaid principal and interest on its Series B Bonds. The district court granted the defendants’ summary judgment motion on the grounds that the claim was barred by § 9.11 of the Indenture (thе “No-Action Clause” 3 ) and, in the alternative, because the plaintiff could not prevail on the alter ego theory.
Brady brought this suit in the Northern District of Oklahoma on May 31, 2006, for payment on the bonds, alleging the same breach of contract claims as alleged in the Roberson Action, the Stephens Action, and in the Series B Bondholders’ motion to amend in the Foreclosure Action. The defendants filed a motion to dismiss, arguing the claims were time barred and also barred by res judicata. The district court dismissed the suit on the grounds that the statute of limitations had run on Brady’s breach of contract claims.
II. Discussion
A. Statute of Limitations
Brady claims the terms of the Indenture give him an unconditional right to sue on the fixed date of maturity printed on his bond, regardless of the acceleration of the debt. The defendants maintain that Brady’s right to bring suit accrued for statute of limitations purposes when the bonds were declared due and payable in 1993 and has therefore expired. Okla. Stat. Ann. tit. 12, § 95(A)(1). This court reviews de novo the district court order granting the 12(b)(6) motion to dismiss on statute of limitations grounds.
Nelson v. State Farm Mut. Auto. Ins. Co.,
Brady provides numerous justifications for his position. Ultimately, however, his case rests on whether the Indenture provides him with a remedy triggered by the fixed date of payment stated on his bonds. The Indenture sеts out the remedies available to the bondholders and the Trustee in an Event of Default. The bondholders are provided with three different remedies. 4 The first of these is the right to accelerate payment of the bonds under § 9.02. Section 9.11, the No-Action Clause, provides a sharply circumscribed remedy to bondholders. Under § 9.11, “[n]o Holder of any Bond shall have the right to institute any proceeding, judicial or otherwise, ... unless” certain procedural steps are com *1324 pleted. 5 Finally, the Indenture provides a more expansive remedy in § 9.12, which states, in part:
Notwithstanding any other provision in this Indenture, the Holder of any Bond shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and interest on such Bond on the respective Stated Maturities expressed in such Bond (or, in the case of redemption, on the Redemptiоn Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
It is this provision that Brady claims guaranteed him an unconditional right to bring suit after his bonds reached their Stated Maturity 6 on December 31, 2005.
As a preliminary matter, we agree with the defendants’ position that Brady acquired a right to sue, governed by § 9.11, at the time the bonds were declared due and payable. When a contract prоvides for acceleration of the maturity of a debt in the event of a default, the statute of limitations will generally run from the date the option to accelerate is exercised.
Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal.,
The language in § 9.12 is statutory in origin. It incorporates the language of § 316(b) of the Trust Indenture Act of 1939(TIA).
7
15 U.S.C. § 77ppp(b). Con
*1325
gress passed the TIA to address the concerns of the Securities and Exchange Commission regarding corporate insiders taking advantage of individual investors. S.Rep. No. 76-248, at 26-27 (1939);
Zeffiro v. First Penn. Banking & Trust Co.,
The district court opined that Brady’s reliance on § 9.12 was counterintuitive. It noted, “[t]he Indenture clearly provides that all bonds can mature as a result of the declaration of acceleration. If that is the case, then it is illogical that the B Bondholders’ claim accrued after the declaration of acceleration and then accrued
again
upon Stated Maturity.” The plain language of § 9.12, however, demonstrates that Brady did have an unconditional right to sue on the Stated Maturity of his bond. The district court’s reading of § 9.12 would render it moot after the exercise of the acceleration provision. The provision clearly states, however, that “[njotwith-standing any other provision in this Indenture” there is an absolute right to payment on the Stated Maturity and an individual right to sue for such payment. Allowing the acceleration clause to eviscerate § 9.12 would be contrary to the “notwithstanding” clause. By its clear terms, the right guaranteed in § 9.12 can only be impaired with the consent of the bondholder. It is undisputed that the Series B Bondholders did not participate in the vote to accelerate the bonds. Nor does the record show any other actions by Brady that could constitute consent to the abrogation of his rights
*1326
under § 9.12. Sеction 9.12 offers a separate remedy that is distinct from the remedy offered under the No-Action Clause. That the § 9.11 remedy accrued and its limitations period expired, does not lead to the conclusion that the remedy under § 9.12 was also extinguished.
See Commentaries, supra,
§ 5-7 at 233 (noting the limitations of a no-action clause apply only to suits under an indenture, not to the absolute and unconditional right to sue on the debenture for payment when due);
Jackson Nat’l Life Ins. Co. v. Ladish Co.,
No. 92-9358,
The defendants argue that because of the 1993 acceleration of the bonds, there are no longer any “Stated Maturities” since no payment is due at that time. They claim § 9.12 only applies if the default in payment occurs on the Stated Maturity date. In addition to disregarding the “notwithstanding” clause, this argument also ignores the unambiguous definition of “Stated Maturity” set out in the Indenture. Section 1.01 of the Indenture defines “Stated Maturity” as “the date specified in such Bond ... as the fixed date on which the principal of such Bond or such installment of interest is due and payable.” Under this definition it is irrelevant whether the principal actually becomes due and payable on that date. Rather, the Indenture defines Stated Maturity as the date specified on the bond itself, not as a date contingent on a specific set of events.
Section 9.12 was designed to provide an individual remedy to a bondholder, in contrast to the collective remedies outlined in the other provisions of the Indenture. 9 The exercise of this individual right may be to the detriment of other bondholders. As the Commentaries explain, however, “any suit by one debentureholder seeking to collect thе principal of his debenture might prejudice other holders who do not bring such a suit but this kind of action is an absolute right of the debentureholder under [§ 316(b) ].” Commentaries, supra, § 5-7 at 234.
B. Res Judicata
The defendants offer an alternative ground for affirmance of the district court. They maintain this suit is barred by the doctrine of res judicata because the Series B Bondholders moved to amend their complaint in the Foreclosure Action to include the claims presented here and that motion
*1327
was denied by the state court. The district court did not address this issue. This court, however, may affirm for any reason supported by the record, but not relied on by the district court.
Jacobsen v. Deseret Book Co.,
“The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute,” 28 U.S.C. § 1738, which “directs a federal court to refer to the preclusion law of the State in which judgment was rendered.”
Marrese v. Am. Acad. of Orthopaedic Surgeons,
Under Oklahoma law, the elements of res judicata, or claim preclusion, are “1) an identity of subject matter, of the parties or their privies, of the capacity of the parties and of the cause of action; 2) the court which heard the original action must have been one of competent jurisdiction; and 3) the judgment rendered must have been a judgment on the merits of the case and not upon purely technical grounds.”
Carris v. John R. Thomas & Assocs.,
In the same opinion, the Court of Civil Appeals affirmed the district court’s denial of the motion to amend. In affirming, however, it held only that the trial court had not abused its discretion in denying the motion. The claims of the Series B Bondholders against the Trustee are now back before the district court and nothing prevents that court from exercising its discretion to revisit its decision to deny the motion to amend. As a result, the denial of the motion to amend is functionally indistinguishable from any other interlocutory order of the state trial court. Because such ordеrs are “subject to alteration or modification by the trial court before entry of final judgment determining all the issues raised by a claim, [they] can have no binding res judicata effect.”
Reams v. Tulsa Cable Television, Inc.,
III. Conclusion
For the foregoing reasons, the judgment of the district court is REVERSED and *1328 the matter REMANDED for further proceedings not inconsistent with this opinion. The defendants’ mоtion to file an additional brief is DENIED.
Notes
. An "Event of Default” is defined in the Indenture at § 9.01.
. Section 9.02 of the Indenture provides that in the event of a default for payment on one particular series of bond before September 1, 1994, twenty-five percent of the holders of that series alone may effectuate an acceleration of all bonds.
. No-action clauses are a common element of bond indentures and strictly limit the right оf bondholders to bring suit in most circumstances. See Marcel Kahan, Rethinking Corporate Bonds: The Trade-Off Between Individual and Collective Rights, 77 N.Y.U. L.Rev. 1040, 1051 (2002).
. The Indenture provides the Trustee with additional remedies not at issue here.
. Those procedural requirements are: (A) written notice to the Trustee of a continuing default; (B) written request to the Trustee by a majority in principal amount of the outstanding bonds to institute proceedings; (C) an offer of reasonable indemnity to the Trustеe by the holders against the costs incurred in compliance with such a request; (D) a failure by the Trustee to act for thirty days after receipt of the request and indemnity offer; and (E) no contrary written request delivered to the Trustee within the thirty days from the holders of sixty-six percent of the principal amount of the outstanding bonds.
. Section 1.01 of the Indenture defines "Stated Maturity” as "the date specified in such Bond ... as the fixed date on which the principal of such Bond ... is due and payable.”
.The Trust Indenture Act provides that "[njotwithstanding any other provision of the indenture to be qualified, the right of any holder of any indenture security to receive payment of the principal of and interest on such indenture security, on or after the respective due dates expressed in such indenture security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder....” 15 U.S.C. § 77ppp(b).
. While § 316(b) is mandatory for any qualified indenture, an indenture may provide the bondholders with rights in excess of those guaranteed by § 316(b). 15 U.S.C. § 77rrr(b) ("The indenture to be qualified may contain, in addition to provisions specifically authorized under this subchapter to be included therein, any other provisions the inclusion of which is not in contravention of any prоvision of this subchapter.”).
. Arguably, the right to bring suit under § 9.12 is not absolute. Had a court entered a judgment on the amounts due under the bonds, the outcome here might be different.
See
American Bar Foundation,
Commentaries on Model Debenture Indenture Provisions 1965 Model Debenture Indenture Provisions All Registered Issues 1967 and Certain Negotiable Provisions Which May Be Included in a Particular Incorporating Indenture
§ 5-3, at 226 (1971) ("[O]nce a suit by the Trustee goes to judgment for ‘the sums due and unpaid’ on the debentures, suсh judgment has the effect of merging into the judgment the rights of all the debentureholders, and separate suits by de-bentureholders would no longer be maintainable.”);
see also Magten Asset Mgmt. Corp. & Law Debenture Trust Co. v. Nw. Corp. (In re Nw. Corp.),
. The first suit need not reach final judgment before a motion to dismiss based on improper claim-splitting can be granted.
Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp.,