OPINION OF THE COURT
Plaintiffs Stonehill Capital Management LLC, Stonehill Institutional Partners, L.P. and Stonehill Master Fund Ltd. (collectively Stonehill) are affiliated commercial entities that seek to enforce the auction sale of a syndicated loan against defendant Bank of the West (BOTW). BOTW concedes that it accepted Stonehill’s bid and then refused to transfer the loan, but claims it had no legal obligation to do so because the parties never executed a written sales agreement and Stonehill failed to submit a timely cash deposit. However, these prerequisites are not conditions precedent to formation of the parties’ contract and do not render their agreement unenforceable. Therefore, Stonehill has established its entitlement to summary judgment.
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BOTW, a lender of various nonperforming mortgage loans, retained codefendant Mission Capital Advisors, LLC to manage
The Memorandum set forth information about the loan portfolio and the asset pools contained therein. In the description of the “Loan Sale Process,” the Memorandum informed interested parties that
“[a]fter receipt of [the] indicative bids, Mission, in conjunction with the Seller, will select Final Bidders to complete final due diligence before submitting non-contingent offers on the Final Bid Date (the acceptance of which by Seller will require immediate execution of pre-negotiated Asset Sale Agreement (s) by Prospective Bidder accompanied by a 10% non-refundable wire funds deposit).”
The asset sale agreement would be made available for review to final bidders. The Memorandum also included the following disclaimer:
“The seller reserves the right, at their sole and absolute discretion, to withdraw any or all of the assets from the loan sale, at any time. . . . Only those representations and warranties that are made by the seller to a prospective bidder in a definitive, executed loan sale agreement shall have any legal effect” (capitalization modified).
After Stonehill expressed an interest in the Goett Loan, Mission forwarded a proposed asset sale agreement, referred to as the “Loan Sale Agreement” (LSA). Two days later, on April 18, Stonehill submitted to Mission a $2,363,142 final bid on the Goett Loan. The same day, by separate correspondence, Stone-hill informed Mission that the LSA was not the proper document to effectuate a syndicated loan transfer, and offered to “either make the minor modifications required to that docu
Mission notified Stonehill by telephone on April 20 that it had submitted the winning bid for the Goett Loan. On April 23, Stonehill sent Mission a modified redlined version of the proposed LSA, purportedly at Mission’s request, containing what Stonehill considered to be the necessary technical changes that would enable the LSA to effectuate the sale and assignment of the Goett syndicated loan. Mission’s representative replied that it was “a substantially larger markup than I was expecting to see. I can’t actually say that our lawyer is going to use it.” Then, on April 24, BOTW’s counsel sent Mission an email stating that if the Goett Loan was a syndicated credit “the LSTA form agreement is actually pretty good,” to which Mission’s representative responded that he was “99.9% certain that [Stonehill is] right about this being a syndicated credit.”
On Friday, April 27, Mission emailed Stonehill written confirmation that BOTW agreed to the Stonehill bid. The correspondence stated:
“Subject to mutual execution of an acceptable [LSA], [BOTW] has agreed to the Stonehill. . . bid of:
“Mixed Portfolio - $8,787,141 UPB
“Purchase Price - $2,363,142
“As discussed, counsel representing [BOTW] . . . will be sending you an executable [LSA] ... by Tuesday, May 1st. An executed signature page and 10% non-refundable deposit is expected no later than 2:00 pm EDT on Wednesday, May 2nd” (emphasis omitted).
The email also included wiring instructions for the deposit and closing.
That same day, BOTW’s counsel sent Stonehill an email in which counsel explained that he was previously unaware that the Goett Loan was syndicated and that he “prefer [red] to use LSTA documentation for syndicated credits.” He pushed for an early May closing on the loan transfer because “[m]ost trade agents won’t approve trades at the end of the month” and said that he would send the trade agreements the following week.
As promised, two days later Stonehill sent the LSTA form to BOTW’s counsel with the terms for the loan transaction and related documents. In this same correspondence, Stonehill informed counsel that it was forwarding the credit agreement transfer forms to Wells Fargo, the credit agreement agent, ánd this was a necessary step to complete and record the transfer of the Goett Loan to Stonehill.
On May 8, Stonehill informed BOTW’s counsel that Wells Fargo approved the credit transfer forms. Under the credit agreement, Stonehill needed the promissory note endorsed in order to close on the Goett Loan, so Stonehill also sent counsel a standard allonge form for the promissory note on the Goett Loan issued to BOTW.
Around this time, BOTW learned that Stonehill was refinancing the Goett Loan. This would apparently increase the value of the loan, which led BOTW to consider its options with respect to the loan sale. An internal BOTW memorandum circulated on May 10 detailed both the refinancing and the auction sale to Stonehill. The memorandum explained that
“there is a question as to the direction [BOTW] should take; sale or not to sale [sic], given that no formal written commitments are executed between [BOTWl/Mission Capital arid Stonehill that would obligate [BOTW] to sale [sic] the Goett Note. Fact remains that [BOTW] acted in good faith and has verbally committed to the Goett Note sale to Stone-hill.”
It further stated that Stonehill had proceeded with various steps to finalize the refinancing and Stonehill funding was highly likely.
“[BOTW] will not proceed with this trade because it has no obligation to do so. There are no agreements (oral or written) between [BOTW] and Stone-hill Capital. The Offering Memorandum specifically permits [BOTW] to withdraw any loan from the auction at any time. Specifically, it states ‘The Seller reserve [s] the right, at their sole and absolute discretion, to withdraw any or all of the assets from the loan sale, at any time.’ In addition, Mission Capital’s bid response e-mail to Stonehill conditioned [BOTW’s] response upon the execution of a definitive loan sale agreement.”
As a consequence of the refinancing and the cancellation of the sale to Stonehill, on June 21 BOTW received $4,197,441 on the Goett Loan, an excess of approximately $1.8 million over Stone-hill’s bid.
Stonehill commenced the present action against BOTW and Mission, alleging breach of contract and breach of the implied covenant of good faith and fair dealing, and seeking indemnification. In its amended complaint, Stonehill added a cause of action for unjust enrichment and demanded $1.5 million in damages.
Supreme Court denied BOTW’s motion to dismiss and cross motion for summary judgment, and granted Stonehill’s motion for summary judgment on the breach of contract cause of action (Stonehill Capital Mgt., LLC v Bank of the W.,
II.
A. Summary Judgment Standard
It iwell established that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp.,
B. Breach of Contract Claim
To establish a prima facie breach of contract, Stonehill must show that BOTW breached a binding agreement between the parties, which damaged Stonehill (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC,
Stonehill maintains that BOTW’s acceptance of its bid constitutes a contract to sell the Goett Loan. In response, BOTW asserts it conditioned the sale on the parties’ execution of a written agreement and Stonehill’s submission of a 10% deposit, neither of which was satisfied prior to BOTW’s withdrawal from the transaction. We conclude, based on the totality of the parties’ actions and communications, that they agreed to an enforceable contract, with express material terms and post-formation requirements.
BOTW, through Mission as its auctioneer, solicited bids on a loan portfolio and its component parts. The Offering Memorandum stated that the bids were non-contingent final offers that, if accepted by the seller, required execution by the bidder of a pre-negotiated asset sale agreement and an accompanying 10% deposit. The Memorandum additionally informed prospective bidders that the loans sold at auction were “subject only to those representations and warranties explicitly stated in the Asset Sale Agreement,” which was included with the Memorandum. Thus, the terms of the sale were preset.
In response, Stonehill submitted a bid and separately informed Mission that the LSA included with the Memorandum was inappropriate for the type of asset that was the subject of the auction, specifically a syndicated credit facility. Stonehill offered to make the necessary modifications or use LSTA documents instead. When BOTW accepted Stonehill’s offer it confirmed the bid in a correspondence setting forth the sale price, the specific loan to be sold, the timing of the closing, and the manner of payment and wire transfer instructions—terms
In future correspondence counsel did not mention any problems with the LSTA form that Stonehill had sent, but instead requested documentation from Stonehill to move the transaction along towards a mid-May closing date. Specifically, in the Friday, May 4th email thread, BOTW’s counsel said he was working on getting the documents to Stonehill the following Monday and requested a term sheet to further the process. After Stonehill responded that it could not return the specific term sheet requested because of confidentiality provisions, offering instead to send an LSTA form for the Goett Loan transaction, BOTW’s counsel informed Stonehill that it could proceed as described.
The totality of the parties’ conduct and the “objective manifestations” of their intent are evidenced by BOTW’s inclusion of pre-negotiated auction terms in the Offering Memorandum, BOTW’s acceptance of Stonehill’s bid in correspondence that communicated the terms of the purchase and the date and instructions for the closing, the email exchanges between BOTW’s counsel and Stonehill which indicated the sale was moving ahead and included references to documents necessary for closing the transaction, and BOTW’s utter failure to identify or explain any objections to the LSTA form prior to the May 18th correspondence announcing its withdrawal from the sale. This established the parties’ intent to enter a binding agreement in which BOTW would sell the Goett Loan to Stonehill at the accepted final price.
BOTW argues that an executed signed agreement and a 10% deposit were preconditions to the contract which were never fulfilled and so BOTW was not bound to sell the Goett Loan to Stonehill. It claims that, at best, the parties had an unenforceable agreement to agree. BOTW relies on the April 27th email to Stonehill, which provides that “[sjubject to mutual execution of an acceptable Loan Sale Agreement, [BOTW] has agreed to the Stonehill . . . bid” and which also set a due date for the
“[I]f the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed” (Scheck v Francis,
Such a forthright, reasonable signal is not obvious from the mere inclusion in an auction bid form of such formulaic language that the parties are “subject to” some future act or event. Less ambiguous and more certain language is necessary to remove any doubt of the parties’ intent not to be bound absent a writing (see e.g. Emigrant Bank v UBS Real Estate Sec., Inc.,
We disagree with BOTW that the “subject to” language in the April 27th email clearly expresses an intent not to be bound to the sale of the Goett Loan. This email stated that closure of the transaction required execution of a signed document and Stonehill’s tender of the 10% deposit. That, however, is not the same as a clear expression that the parties were not bound to consummate the sale and that BOTW could withdraw at any time, for any reason. Nor did BOTW make known its desire for an unrestricted exit from the deal before accepting Stonehill’s bid or anytime before it withdrew from the transaction.
“[A] condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises. Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself” (IDT Corp. v Tyco Group, S.A.R.L.,13 NY3d 209 , 214 [2009] [internal quotation marks and citations omitted]).
Here, the signed writing and deposit were post-agreement requirements necessary for the consummation of the transfer, as established by the continued exchange of documents necessary to the asset transfer. To adopt BOTW’s argument would mean that the auction was neither final nor binding—in direct contravention of the auction sale terms and the usual manner in which reserve auctions proceed.
Truman Capital Advisors LP v Nationstar Mtge., LLC (
Furthermore, there is no indication that these events were an actual obstacle to the sale. BOTW proffered no evidence to suggest that Stonehill refused to enter a signed agreement or to submit the deposit. Quite the opposite. Stonehill was responsive to all of BOTW’s requests for documentation, expressed its eagerness to close the deal, took necessary steps to achieve that end (including securing approval of the credit agreement from Wells Fargo), and never implied its inability or unwillingness to turn over the deposit.
BOTWs withdrawal was not without consequences for Stone-hill, which suffered losses totaling over $1.8 million, reflecting the difference between the refinanced Discounted Payoff proceeds on account of the loan received by BOTW ($4,197,441) and the accepted bid sale price ($2,363,142). In other words, BOTW’s breach of contract resulted in Stonehill not being able to realize the increased valuation of the Goett Loan.
We conclude therefore that Stonehill met its prima facie burden on summary judgment by showing that BOTW accepted Stonehill’s bid to purchase the Goett Loan and the parties entered a binding agreement to complete the sale, BOTW breached that agreement, and the breach caused Stonehill to suffer monetary damages.
In response, BOTW failed to establish the existence of material issues of fact. This is not a case where the parties’ intentions present a question of fact that prevents summary judgment (see Darmento v Pacific Molasses Co.,
1—H HH J—I
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the judgment of Supreme Court in favor of the Stonehill plaintiffs on their breach of contract claim against BOTW reinstated.
Order, insofar as appealed from, reversed, with costs, and judgment of Supreme Court, New York County, in favor of plaintiffs on their breach of contract claim against defendant Bank of the West reinstated.
Notes
. LSTA (Loan Syndications and Trading Association) is a trade association that publishes standardized forms for syndicated loan agreements.
. The amount of damages is not at issue in this appeal.
. Additionally, BOTW’s internal memorandum acknowledged that it had “verbally committed to the Goett Note sale to Stonehill” and suggests the reason the sale did not go through was BOTW’s desire to increase its revenue from the sale, not failure to comply with the preconditions.
. We reject any argument by BOTW that it is not bound to its agreement with Stonehill based on the Memorandum disclaimer that BOTW reserved the right at its sole discretion to withdraw any or all assets from the sale at any time. Read in context, the disclaimer concerns BOTW’s ability to withdraw assets from the “sale,” and not whether it may withdraw an acceptance of an offer.