MARTIN, Circuit Judge:
This case presents more fallout from the failure of the ambitious Fontainebleau development in Las Vegas, Nevada. In this appeal, we address a contract dispute and two District Court decisions. The contract was entered into by appellants Avenue CLO Fund, Ltd., and others, who provided term loans (the Term Lenders); the appellee Bank of America, N.A., and others, who provided revolving loans (the Revolving Lenders); and Fontainebleau Las Vegas LLC and Fontainebleau Las Vegas II LLC, who borrowed the money (the Borrowers). The Borrowers are represented here by Soneet R. Kapila, who is the Chapter 7 Bankruptcy Trustee for the Fontainebleau Estate. In separate actions, the Borrowers and the Term Lenders sued the Revolving Lenders for breach of contract. In one case, the District Court dismissed the Term Lenders' claims against the Revolving Lenders, finding that the Term Lenders lacked standing to sue. In the other case, the District Court denied the Borrowers' motion for summary judgment against the Revolving Lenders, rejecting the Borrowers' argument that the Revolving Lenders had breached the contract as a matter of law and alternatively finding there are material issues of fact about whether the Revolving Lenders breached the contract. After careful review, and having had the benefit of oral argument, we affirm both rulings by the District Court.
The Borrowers were the owners and developers of a casino-resort to be built in
Here, the parties dispute the meaning of section 2 of the Credit Agreement, through which the Revolving Lenders promised to lend the Borrowers money by an agreed-upon process, once the Borrowers satisfied certain conditions. Specifically, under section 2.1(c)(iii) of the Credit Agreement, "each Revolving Lender severally agree[d] to make Revolving Loans ... to Borrowers... provided that ... unless the Total Delay Draw Commitments [had] been fully drawn, the aggregate outstanding principal amount of all Revolving Loans and Swing Line Loans shall not exceed $150,000,000."
On March 2, 2009, the Borrowers requested $350 million in Delay Draw Term Loans and $670 million in Revolving Loans.
During March and April 2009, the parties talked about the financial condition of the Project. On April 20, 2009, the Revolving Lenders told the Administrative Agent that the Borrowers had defaulted on the lending conditions. As a result, the Revolving Lenders refused to give more funding to the Borrowers and the Project collapsed.
On June 9, 2009, the Borrowers filed for bankruptcy in the Southern District of Florida and sued the Revolving Lenders in
In separate law suits, various Term Lenders sued the Revolving Lenders. Avenue CLO Fund, Ltd., and others, sued the Revolving Lenders in the District of Nevada. ACP Master, Ltd., and others, sued the Revolving Lenders in the Southern District of New York. On December 2, 2009, these cases were merged into a multi-district litigation action in the Southern District of Florida. The Revolving Lenders then moved to dismiss the Term Lenders' complaints. On May 28, 2010, the District Court dismissed with prejudice the Delay Term Lenders' claims against the Revolving Lenders, finding that the Term Lenders had no standing to enforce the Revolving Lenders' promise to lend to the Borrowers because the Term Lenders were not the intended beneficiaries of that promise.
The Borrowers filed a notice of appeal on October 18, 2010. The Term Lenders filed a notice of appeal on January 19, 2011. We consolidated the two appeals, and have now had the benefit of the parties' oral arguments.
We review the District Court's dismissal for lack of standing de novo. Wright v. Dougherty Cnty., Ga., 358 F.3d 1352, 1354 (11th Cir.2004). We also review the District Court's summary judgment decision de novo, applying the same legal standard as the District Court. See Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir.2003). "The interpretation of a contract is a question of law that the court reviews de novo." Daewoo Motor Am. v. Gen. Motors Corp., 459 F.3d 1249, 1256 (11th Cir.2006). The parties agree that New York law governs the interpretation of the contract.
To establish standing for Article III purposes, the Term Lenders must show that they held a legally protected interest in the Credit Agreement which was injured by the Revolving Lenders. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 173 (2d Cir.2005) ("[A] plaintiff must have standing under both Article III of the Constitution and applicable state law in order to maintain a [breach of contract] cause of action."). We look to New York law to determine if the Term Lenders had a legally protected interest in the Credit Agreement that allows them to sue the Revolving Lenders. See Mid-Hudson Catskill, 418 F.3d at 173. Under New York law, the Term Lenders may enforce a promise made in the Credit Agreement if either the contract language "clearly evidences an intent to permit enforcement" by the Term Lenders or if no other party may recover for the alleged
The Term Lenders argue that the parties intended for them to enforce section 2.1(c) of the Credit Agreement. Specifically, they assert that the Term Lenders were the intended beneficiaries of the Revolving Lenders' promise to lend to the Borrowers. Because the intended beneficiary of a promise may enforce that agreement, the Term Lenders argue that they have standing to enforce the section 2.1(c) promise. While they concede that the language of section 2.1(c) "says nothing about whether the parties intended to give the Term Lenders the benefit of that obligation," the Term Lenders point to a separate provision in the Credit Agreement and provisions in the Disbursement Agreement to argue that they were the intended beneficiaries of the section 2.1(c) promise.
First, the Term Lenders direct us to section 10.6(a) of the Credit Agreement, which provides that "[t]he provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns." From this, the Term Lenders argue that "all parties are intended beneficiaries of all provisions" of the Credit Agreement. However, we are not persuaded by this because the broad-sweeping language in section 10.6(a) does not clearly show the parties' intent for the Term Lenders to enforce or benefit from the promise of the Revolving Lenders to fund the Borrowers. Stainless, Inc. v. Emp'r Fire Ins. Co., 69 A.D.2d 27, 418 N.Y.S.2d 76, 80 (1979) ("The terms contained in the contract must clearly evince an intention to benefit the third person who seeks the protection of the contractual provisions."). Certainly, the Term Lenders' argument that all parties were intended beneficiaries of section 2.1(c) does not support the conclusion that the Term Lenders are the only party able to recover under that provision. See Fourth Ocean Putnam Corp., 66 N.Y.2d at 45, 495 N.Y.S.2d 1, 485 N.E.2d 208.
Second, the Term Lenders point to sections 2.3(d) and 10.5 of the Disbursement Agreement. Generally, the Disbursement Agreement was structured so that Disbursement Agreement Loans were paid into a Bank Proceeds Account. The Borrowers could not access the funds in this account until they fulfilled several conditions. During this time, the Lenders held a ratable security interest in funds in the Bank Proceeds Account, which provided additional security for the Lenders "[t]o secure the payment and performance of each Borrower's obligations." Based on this, the Term Lenders argue that they were the intended beneficiaries of the loan from the Revolving Lenders to the Borrowers because while the funds were in the Bank Proceeds Account, the Term Lenders gained the benefit of a ratable security interest in that account.
Again, we look to the language of the contract and find no express intention of the parties that the Term Lenders be the beneficiaries of the Revolving Lenders' promise to fund the Borrowers under section 2.1(c). See Berry Harvester Co. v. Walter A. Wood Mowing & Reaping Mach. Co., 152 N.Y. 540, 46 N.E. 952, 955 (1897) ("Whether the right or privilege conferred by the promise of one party to a tripartite contract belongs to one or both of the other contracting parties depends upon the intention as gathered from the words used."); see also Stainless, Inc., 418 N.Y.S.2d at 80 ("The intention to benefit the third party must appear from the four
The Borrowers urge us to find that the Revolving Lenders broke their promise to fund under section 2.1(c)(iii) when they did not lend to the Borrowers on March 2, 2009. Specifically, the Borrowers say that the Revolving Lenders were required to fund once the Borrowers simultaneously requested funds from the Delay Draw Term Loans and the Revolving Loans. The Revolving Lenders respond that they were right to reject the Borrowers' request because the Credit Agreement did not allow for this type of simultaneous request. After careful review, we have concluded that the relevant terms of the Credit Agreement are ambiguous. For this reason, we decline to hold, as a matter of law, that the Revolving Lenders breached the Credit Agreement when they did not fund the March 2, 2009 request.
The provision of the Credit Agreement at issue, section 2.1(c)(iii), requires the Revolving Lenders to make Revolving Loans
The Revolving Lenders argue that subsections (b) and (c) of the Credit Agreement establish a "sequential funding process" by which the Revolving Loans were the last loans to be funded to the Borrowers. The Revolving Lenders urge us to read subsection (b)(i), which requires loans under the Delay Draw Commitments to be $150 million or greater, together with subsection (c)(iii), which provides that the Revolving Loans must not exceed $150 million "unless the Total Delay Draw Commitments have been fully drawn." When read in context, the Revolving Lenders assert that the Delay Draw Term Loan Commitments could not be "fully drawn" under subsection (c)(iii) "until there were no funds left to pay off the $150 million."
The Borrowers argue that the funding arrangement established through subsections (b) and (c) created a continuous flow-of-funds structure. The Borrowers appear to agree that the contract established "a sequential funding process," but say that the sequential process did not allow for the funding to stop when there was a simultaneous request for Revolving and Delay Draw Term Loans. Rather, the Borrowers assert that the Delay Draw Term Loans were only required to cover the Revolving Loans that were outstanding at the time the Borrowers requested the loan. In March 2009, the Borrowers argue that the Delay Draw Term Loans would have satisfied the outstanding Revolving Loan, meaning that the remainder of available funds should have been placed in the Bank Proceed Account to be disbursed to the Borrowers. Because the Revolving Lenders' interpretation of subsections (b) and (c) stopped the lending, the Borrowers argue it is at odds with the purpose of the agreement, which was to provide a steady flow of funds to the Borrowers.
The Borrowers also present several arguments why the phrase "fully drawn" in section 2.1(c)(iii) unambiguously means "fully requested." The Borrowers' primary argument is that the word "outstanding"
This seems to us a reasonable basis for disagreement over the interpretation of the Revolving Lenders' section 2.1(c)(iii) obligation and so we conclude that the meaning of the provision is ambiguous. See Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 (N.Y.2002) (explaining that a contract is unambiguous when it has a "definite and precise meaning"). This is in keeping with New York law which instructs that when there is a "reasonable basis for a difference of opinion" attended by a "danger of misconception," in a contract, it is to be deemed ambiguous. See Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978); see e.g., Seiden Assoc., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 430 (2d Cir. 1992) (applying New York law in examining the interrelationship between two provisions in an agreement and finding the contract susceptible to more than one meaning and therefore ambiguous).
Where, as here, "the language used is susceptible to differing interpretations... and where there is relevant extrinsic evidence of the parties' actual intent, the meaning of the words become an issue of fact and summary judgment is inappropriate." Seiden Assoc., 959 F.2d at 428. "Because of the presence of an ambiguity, an opportunity to present extrinsic evidence must be afforded to establish what the original contracting parties intended." Id. at 430. Based on this, we cannot conclude, as a matter of law, that the Revolving Lenders broke their promise to fund the Borrowers under section 2 of the Credit Agreement. For the same reasons, we also affirm the District Court's denial of the Borrowers' request for turnover of the loan proceeds and specific performance.
We affirm the District Court's dismissal of the Term Lenders' claims for lack of standing. We also affirm the District Court's denial of the Borrowers' summary judgment motion.