Case: 12-11815   Date Filed: 07/26/2013   Page: 1 of 26


                                                           [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 12-11815
                     ________________________

       D.C. Docket Nos. 1:09-md-02106-ASG, 1:09-cv-23835-ASG

AVENUE CLO FUND, LTD.,
et. al.,

                                                          Plaintiffs,
AVENUE CLO IV, LTD.,
AVENUE CLO V, LTD.,
AVENUE CLO VI, LTD.,
BRIGADE LEVERAGED CAPITAL STRUCTURES FUND, LTD.,
BATTALION CLO 2007-I LTD.,
CASPIAN CAPITAL PARTNERS, L.P.,
CASPIAN SELECT CREDIT MASTER FUND, LTD.,
ING PRIME RATE TRUST,
ING SENIOR INCOME FUND,
ING INTERNATIONAL (II) -SENIOR BANK LOANS EURO,
ING INVESTMENT MANAGEMENT CLO I, LTD.,
ING INVESTMENT MANAGEMENT CLO II, LTD.,
ING INVESTMENT MANAGEMENT CLO III, LTD.,
ING INVESTMENT MANAGEMENT CLO IV, LTD.,
ING INVESTMENT MANAGEMENT CLO V, LTD.,
VENTURE II CDO 2002, LIMITED,
VENTURE III CDO LIMITED,
VENTURE IV CDO LIMITED,
VENTURE V CDO LIMITED,
VENTURE VI CDO LIMITED,
VENTURE VII CDO LIMITED,
VENTURE VIII CDO LIMITED,
VENTURE IX CDO LIMITED,
VISTA LEVERAGED INCOME FUND,
         Case: 12-11815   Date Filed: 07/26/2013   Page: 2 of 26


VEER CASH FLOW CLO, LIMITED,
MARINER LDC,
GENESIS CLO 2007-1 LTD.,
CANPARTNERS INVESTMENTS IV, LLC,
SCROGGIN CAPITAL MANAGEMENT II,
SCROGGIN INTERNATIONAL FUND LTD.,
SCROGGIN WORLDWIDE FUND LTD.,
CASPIAN ALPHA LONG CREDIT FUND, L.P.,
SOLA LTD,
MONARCH MASTER FUNDING, LTD.,
SOLUS CORE OPPORTUNITIES MASTER FUND LTD.,
CANTOR FITZGERALD SECURITIES,
OLYMPIC CLO I, LTD.,
SHASTA CLO I, LTD.,
WHITNEY CLO I LTD.,
SAN GABRIEL CLO I LTD.,
SIERRA CLO II LTD.,
NORMANDY HILL MASTER FUND, L.P.,

SPCP GROUP, LLC,
VENURE CAPITAL MASTER FUND, LTD.,

                                              Plaintiffs - Appellants,

                                versus

SUMITOMO MITSUI BANKING CORPORATION,
et al.,

                                                   Defendants,

BANK OF AMERICA, NA,

                                         Defendant - Appellee.
                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________
                            (July 26, 2013)
                                   2
               Case: 12-11815       Date Filed: 07/26/2013      Page: 3 of 26


Before TJOFLAT and MARTIN, Circuit Judges, and BUCKLEW, * District Judge.

MARTIN, Circuit Judge:

       This case is one of many resulting from the failure of the project to build a

Fontainebleau Resort in Las Vegas. The Fontainebleau Las Vegas was a hotel and

casino development project on an approximately 24.4 acre parcel at the north end

of the Las Vegas Strip. Here, a group of lenders and their successors in interest

(Term Lenders) appeal the District Court’s grant of summary judgment in favor of

Bank of America. See In re Fontainebleau Las Vegas Contract Litigation MDL

No. 2106, No. 09-MD-02106-CIV, 

, *1 (S.D. Fla. March 19,

2012). After careful review, and with the benefit of oral argument, we affirm in

part, reverse in part, and remand for further proceedings consistent with this

opinion.

                            I. FACTUAL BACKGROUND

       This case is a contract dispute related to the funding of the development of

the Fontainebleau Las Vegas (the Project). See In re Fontainebleau, 

, at *1–49. On one side of the dispute are the Term Lenders, which loaned

money to Fontainebleau Las Vegas, LLC and Fontainebleau Las Vegas II, LLC

(the Borrowers). The Borrowers’ parent company, Fontainebleau Resorts, LLC,

was the developer of the Fontainebleau Las Vegas. On the other side of the

*Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
                                               3
               Case: 12-11815       Date Filed: 07/26/2013      Page: 4 of 26


dispute is Bank of America, which was the Disbursement Agent responsible under

the funding agreements for disbursing the Term Lenders’ funds to the Borrowers.

                             A. THE FUNDING STRUCTURE

       At the beginning, the Project’s budget was $2.9 billion, with $1.85 billion to

be funded by a senior secured debt facility (Senior Credit Facility). 1 The Senior

Credit Facility was set up by the Credit Agreement and consisted of three

components: a $700 million Initial Term Loan Facility; a $350 million Delay Draw

Term Loan Facility; and an $800 million Revolving Loan Facility.

       The Term Lenders own Initial Term Loan and Delay Draw Term Loan

notes. The Initial Term Loans were due on the closing date. The Delay Draw

Term Loans and Revolving Loans were disbursed on a periodic basis under the

terms of the Disbursement Agreement. Bank of America was the Disbursement

Agent responsible for distributing the funds under the terms of the Disbursement

Agreement.

                              B. DISPERSING THE MONEY

       The process set up for the Borrowers to get the money had a lot of moving

parts. The Credit Agreement required the Borrowers to first submit a Notice of

Borrowing to the Administrative Agent (Bank of America). This would prompt

1
 The balance of the Project was funded by a $675 million Second Mortgage Note offering and a
$400 million Retail Facility. The Retail Facility was the sole source of funding for the retail
portion of the Fontainebleau Las Vegas. The resort budget included $83 million in costs that
were to be funded through the Retail Facility.
                                               4
             Case: 12-11815     Date Filed: 07/26/2013   Page: 5 of 26


the Term Lenders and/or Revolving Lenders to give the money to the

Administrative Agent. If the Notice of Borrowing included the proper information

and the Borrowers submitted no more than one Notice per month, the

Administrative Agent would transfer the loan funds into the Bank Proceeds

Account. One difference between the Delay Draw Term Loans and Revolving

Loans was that “the proceeds of each Delayed Draw Term Loan [was] applied first

to repay in full any then outstanding Revolving Loans . . . and second, to the extent

of any excess, [was] credited to the Bank Proceeds Account.”

      Once funds were in the Bank Proceeds Account, the Borrowers had to

submit another request, called the Advance Request, which included a series of

general representations and certifications, to the Disbursement Agent (Bank of

America). When it received the Advance Request, Bank of America, as

Disbursement Agent, as well as the Construction Consultant were required to

review the Advance Request and determine whether all the required documentation

was provided. The Construction Consultant was also required to deliver a

certificate to Bank of America either approving or disapproving the Advance

Request.

      Under the Disbursement Agreement, the next step turned on whether the

conditions precedent set forth in Article 3 of the Disbursement Agreement were




                                          5
                Case: 12-11815        Date Filed: 07/26/2013        Page: 6 of 26


satisfied.2 If the conditions precedent were met, Bank of America, in its role as

Disbursement Agent, was required to execute an Advance Confirmation Notice

and the funds would be disbursed to the Borrowers. If, on the other hand, the

conditions precedent were not met then Bank of America was required to issue a

Stop Funding Notice. Bank of America’s duties as Disbursement Agent, with

respect to determining whether the conditions precedent were or were not satisfied,

is one of the disputes between the parties that will be the subject of our discussion

in Part IV.A of this Order.

             C. MONEY DISPERSED DURING THE TIME IN DISPUTE

       For each Advance Request from September 2008 through March 2009, Bank

of America, as Disbursement Agent, received the required Advance Request

certifications from the Borrowers, the Construction Consultant, the contractor, and

the architect. Throughout this period Bank of America continued to disburse funds

to the Borrowers and never issued a Stop Funding Notice.

       However, the Term Lenders have pointed to a number of events, beginning

in September 2008, which they say “caused the failures of multiple conditions

precedent.” They delineate these events as: “the Lehman bankruptcy and the

2
  The conditions included, for example, that “[n]o Default or Event of Default shall have
occurred and be continuing”; “there shall not have occurred any change in the economics or
feasibility of constructing and/or operating the Project, or in the financial condition, business or
property of Fontainebleau, any of which could reasonably be expected to have a Material
Adverse Effect”; and “the Retail Agent and the Retail Lenders shall . . . make any Advances
required of them.” Other conditions that the parties believe are relevant to this case are set forth
in §§ 3.3.2, 3.3.8, 3.3.21, and 3.3.24 of the Disbursement Agreement.
                                                  6
               Case: 12-11815      Date Filed: 07/26/2013      Page: 7 of 26


funding of the Retail Facility; Fontainebleau’s failure to disclose anticipated

Project costs; repudiation by the FDIC of First National Bank of Nevada’s

commitments; select lenders’ failure to fund with respect to the March 2009

Advance; and the ‘untimely’ submission of the March 2009 Advance.” See In re

Fontainebleau, 

, at *15. How much Bank of America knew about

these events is another source of dispute between the parties. That dispute will be

the subject of our discussion in Part IV.B of this Order.

       In April 2009, the “Total Revolving Commitments” were ended because the

Revolving Lenders determined that there had been Events of Default. In May

2009, Bank of America commissioned a “cost-complete review” of the Project,

which revealed that Fontainebleau had been concealing cost overruns. Finally, on

June 9, 2009, the Borrowers and some of their affiliates filed for bankruptcy.



                            II. PROCEDURAL HISTORY

       On January 15, 2010, the Term Lenders filed a Second Amended Complaint

alleging, as relevant to this appeal, that Bank of America breached the

Disbursement Agreement. 3 Following discovery, the parties filed cross-motions

for summary judgment.



3
 The Complaint also alleged breach of the Credit Agreement, breach of the implied covenant of
good faith and fair dealing, and requested declaratory relief.
                                              7
              Case: 12-11815     Date Filed: 07/26/2013   Page: 8 of 26


      The District Court granted summary judgment in favor of Bank of America

because it determined that “the Term Lenders, with all inferences in their favor,

have failed to raise a genuine issue of material fact as to whether Bank of America,

as Disbursement Agent or Bank Agent, breached the Disbursement Agreement, or

whether Bank of America acted with bad faith, gross negligence, or willful

misconduct.” In re Fontainebleau, 

, at *26. In reaching that

conclusion, the District Court made several preliminary findings. First, the District

Court held that “[i]n determining whether the conditions precedent to an Advance

Request were satisfied, Bank of America was explicitly authorized to rely on

Fontainebleau’s certifications . . . and was explicitly not required to conduct ‘any

independent investigation as to the accuracy, veracity, or completeness’ of those

certifications.” 

the District Court determined that “Bank of

America, as Disbursement Agent, did not act in bad faith or with gross negligence

or willful misconduct in performing its duties under the Disbursement Agreement.”

the District Court found that there was no evidence on summary

judgment that Bank of America breached the Disbursement Agreement by

disbursing funds despite having actual knowledge that a condition precedent was

not satisfied. 

      The Term Lenders timely filed a Notice of Appeal on March 22, 2012.




                                          8
              Case: 12-11815     Date Filed: 07/26/2013   Page: 9 of 26


                         III. STANDARD OF REVIEW

      “This Court reviews the granting of summary judgment de novo, applying

the same legal standards which bound the district court.” Whatley v. CNA Ins.

Companies, 

, 1313 (11th Cir. 1999). “Summary judgment is

appropriate only when there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” 

“An issue of fact is material if it ‘might affect the outcome of the suit

under governing law’” and it is “genuine ‘if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.’” Western Grp. Nurseries,

Inc. v. Ergas, 

, 1360 – 61 (11th Cir. 1999) (quoting Anderson v.

Liberty Lobby, Inc., 

, 248, 

, 2510 (1986)).

      All “evidence must be viewed in the light most favorable to the party

opposing the motion for summary judgment.” Blackston v. Shook and Fletcher

Insulation Co., 

, 1482 (11th Cir. 1985). The Court “must avoid

weighing conflicting evidence or making credibility determinations.” Stewart v.

Booker T. Washington Ins., 

, 848 (11th Cir. 2000). “All reasonable

inferences arising from the undisputed facts should be made in favor of the

nonmovant, but an inference based on speculation and conjecture is not

reasonable.” 

(internal citation omitted).




                                           9
             Case: 12-11815    Date Filed: 07/26/2013      Page: 10 of 26


                                IV. DISCUSSION

      In its appeal, the Term Lenders argue that the District Court erred in

granting summary judgment to Bank of America because: 1) it based its

determination on a misunderstanding of Bank of America’s duties under the

Disbursement Agreement; 2) there remain genuine issues of material fact about

whether Bank of America breached the Disbursement Agreement; and 3) there

remain genuine issues of material fact about whether Bank of America was grossly

negligent. We will discuss each of these issues in turn.

       A. BANK OF AMERICA’S DUTIES UNDER THE DISBURSEMENT
                             AGREEMENT
      In ruling on the summary judgment motion, the District Court necessarily

had to determine what Bank of America’s duties were under the relevant portions

of the Disbursement Agreement. Both parties agree that if the conditions

precedent were satisfied, Bank of America was supposed to deliver an Advance

Confirmation Notice so that the Term Lenders’ funds could be disbursed to the

Borrowers. Both parties also agree that if any of the relevant conditions precedent

were not satisfied Bank of America was required to issue a Stop Funding Notice.

The parties disagree, however, on whether Bank of America had an affirmative

duty to determine that the conditions precedent were satisfied or whether Bank of

America was permitted to rely on the Borrowers’ certifications that the conditions

precedent were satisfied unless it had actual knowledge to the contrary.

                                         10
                 Case: 12-11815      Date Filed: 07/26/2013     Page: 11 of 26


         The District Court determined that “[t]he Disbursement Agreement imposed

on Bank of America no duty to inquire or investigate whether [the Borrower’s]

representations that all conditions precedent had been met were accurate.” In re

Fontainebleau, 

, at *48. For the reasons set out here, we agree

with this determination.

         “Under New York Law, the initial interpretation of a contract is a matter of

law for the court to decide.” Alexander & Alexander Servs., Inc. v. These Certain

Underwriters at Lloyd’s, London, 

, 86 (2d Cir. 1998) (quotation marks

omitted). 4 A court must enforce a contract provision that is “complete, clear and

unambiguous on its face . . . according to the plain meaning of the terms.”

Greenfield v. Phillies Records, Inc., 

, 170 (N.Y. 2002). When

interpreting a contract, a court should look at the whole agreement and try to give

meaning to all of the contract’s provisions. See RLI Ins. Co. v. Smiedala, 

, 853 (App. Div. 2012). But, in the face of any inconsistency

between a general provision and specific provisions, the specific provisions

prevail. See Muzak Corp. v. Hotel Taft Corp., 

, 690 (N.Y. 1956).

         The specific provision of the Disbursement Agreement that most directly

addresses this issue is § 9.3.2. That section explains that:

         Notwithstanding anything else in this Agreement to the contrary, in
         performing its duties hereunder, including approving any Advance

4
    The Disbursement Agreement says that it is to be governed by New York law. [D.A. § 11.6]
                                               11
             Case: 12-11815     Date Filed: 07/26/2013     Page: 12 of 26


      Requests . . . the Disbursement Agent shall be entitled to rely on
      certifications from the Project Entities . . . as to the satisfaction of any
      requirements and/or conditions imposed by this Agreement.
The clear language of this provision supports Bank of America’s interpretation of

its duties under the Disbursement Agreement: Bank of America had to determine

that the conditions precedent were satisfied, but in doing so it was permitted to rely

on the Borrower’s certifications.

      Bank of America, as Disbursement Agent, would not have been permitted to

rely on the Borrowers’ certifications that the conditions precedent were met if it

had actual knowledge to the contrary. If Bank of America actually knew that a

condition precedent was not satisfied, it would not be commercially reasonable to

interpret the Agreement to allow Bank of America to disregard that knowledge by

pointing to a certification by the Borrower, which it knows to be false. See In re

Lipper Holdings, LLC, 

, 562 (App. Div. 2003) (explaining that a

contract “should not be interpreted to produce a result . . . commercially

unreasonable, or contrary to the reasonable expectations of the parties” (internal

citations omitted)).

      However, if Bank of America merely had information that was inconsistent

with the Borrowers’ certification, it did not have an affirmative duty to determine

whether the condition precedent was actually satisfied. Section 9.3.2 does not

include any language requiring Bank of America, as Disbursement Agent, to verify


                                          12
              Case: 12-11815    Date Filed: 07/26/2013    Page: 13 of 26


the accuracy of the Borrowers’ certifications. Instead, immediately following the

language quoted above, § 9.3.2 includes language suggesting that the opposite is

true:

        The Disbursement Agent shall not be required to conduct any
        independent investigation as to the accuracy, veracity or
        completeness of any such items . . . .
In addition, according to § 9.10 of the Agreement, “nothing in this Agreement . . .

shall be so construed as to impose” obligations on Bank of America “except as

expressly set forth herein.”

        Under this interpretation of Bank of America’s duties as Disbursement

Agent, Bank of America would still have to determine whether each condition

precedent was satisfied if it did not have a certification it could rely on. For

example, as the Term Lenders point out, there are some conditions for

disbursement that the Borrowers could not certify, such as the condition in

§ 3.3.24, requiring that the Bank Agent “receive[] such other documents and

evidence as are customary . . . as the Bank Agent may reasonably request.” Also,

it is not hard to imagine a circumstance in which the Borrowers chose not to give

such a certification or where Bank of America had actual knowledge that the

certification was false. In situations like these, § 9.3.2 would play no role because

there would be no certification Bank of America, as Disbursement Agent, could

rely on when determining whether the condition precedent was satisfied. It is


                                          13
             Case: 12-11815     Date Filed: 07/26/2013    Page: 14 of 26


under these circumstances that other provisions of the Agreement – such a § 9.2.1,

giving Bank of America the right to review information supporting the Advance

Requests, and § 2.5.1, requiring that Bank of America “specify, in reasonable

detail, the conditions precedent which [it] has determined have not been satisfied”

– would have had more relevance

          B. DID BANK OF AMERICA BREACH THE DISBURSEMENT
                             AGREEMENT?
      Bank of America was permitted to rely on the Borrowers’ certifications

unless it had actual knowledge that the conditions precedent were not satisfied.

During the relevant period, the Borrowers certified that the conditions precedent

were met. Therefore, Bank of America could have only been in breach by

disbursing funds to the Borrowers if it had actual knowledge that the conditions

precedent were not satisfied.

      In granting summary judgment to Bank of America, the District Court

determined that “with all inferences in favor of the Term Lenders, the Term

Lenders . . . failed to present a genuine issue of material fact as to whether Bank of

America, as Disbursement Agent or Bank Agent, had actual knowledge of the

failure of any conditions precedent to disbursement.” In re Fontainebleau, 

, at *48. For the reasons we will outline here, we have come to a

different conclusion.



                                          14
             Case: 12-11815     Date Filed: 07/26/2013    Page: 15 of 26


      As detailed in the District Court’s thorough opinion, the Term Lenders

contend that Bank of America should have stopped disbursing funds to the

Borrowers because, at some point between September 2008 and March 2009, Bank

of America became aware of certain events, discussed below, that it knew caused

the failure of seven separate conditions precedent listed in § 3.3 of the

Disbursement Agreement. 

Under the terms of that agreement,

once the Bank of America knew that conditions precedent were not satisfied, it was

required to issue a Stop Funding Notice to temporarily halt disbursal of the funds.

                  1. Lehman Brothers’ Bankruptcy and Failure to Fund

      Lehman Brothers Holdings, Inc. (Lehman) was the largest lender under the

Retail Facility and the Administrative Agent of the Retail Facility. No one

disputes that Lehman filed for bankruptcy on September 15, 2008. Neither is it

disputed that Fontainebleau funded Lehman’s approximately $2.5 million share of

the September 2008 Retail Advance and essentially funded Lehman’s portion of

the Retail Advances from December 2008 through March 2009 by reimbursing

ULLICO, a Co-Lender under the Retail Facility, for funding those amounts.

      The failure of Lehman may have caused the failure of several conditions

precedent in and of itself. For example, Fontainebleau’s funding of Lehman’s

share of the September Retail Advance was a failure of the condition in § 3.3.23,

requiring that the Retail Lenders make all advances required of them. Also, if


                                          15
               Case: 12-11815        Date Filed: 07/26/2013       Page: 16 of 26


Lehman’s bankruptcy was a “change in the economics” of the Project “which

could reasonably be expected to have a Material Adverse Effect,” there would have

been a failure of the condition in § 3.3.11, requiring that no such change shall have

occurred. 5

       What the parties do dispute is whether Bank of America had actual

knowledge of these events and whether the impact of these events on the

conditions precedent was such that the disbursing of funds constituted a breach of

contract. The Term Lenders argue that Bank of America had actual knowledge

that Lehman did not fund its share of the September Retail Advance and that

Fontainebleau paid the money for Lehman. In support of this view of the facts, the

Term Lenders point to a number of things: 1) a series of letters from Highland

Capital Management, one of the original term lenders, alerting Bank of America to

the serious impact Lehman’s bankruptcy could have on the Project and suggesting

that Fontainebleau funded Lehman’s share of the September Retail Advance; 2)

testimony by McLendon Rafeedie, the primary contact at TriMont Real Estate

5
  The Term Lenders also argue that Lehman’s bankruptcy and its failure to fund could have led
to the failure of several other conditions precedent in the Disbursement Agreement: § 3.3.21,
requiring that the Bank Agent shall not have become aware of information that is materially
inconsistent with the information disclosed to them; § 3.3.3, requiring that no “Default or Event
of Default” has occurred and is continuing ; and § 3.3.2, requiring that the Borrowers’
representation that there was no “Event of Default” was true in all material respects. Our
analysis of Bank of America’s actual knowledge applies equally to these conditions precedent
even though we do not specifically discuss them. The Term Lenders made other arguments on
appeal about why genuine issues of material fact remain with respect to Bank of America’s
knowledge of the failure of these conditions. However, our analysis in this section makes it
unnecessary for us to address them.
                                                16
             Case: 12-11815     Date Filed: 07/26/2013   Page: 17 of 26


Advisors, Inc. about TriMont’s role as servicer of the Retail Facility, explaining

that he knew Fontainebleau funded for Lehman and suggesting that it was possible

that he informed Bank of America about this; 3) an October 2008 meeting among

executives of Fontainebleau, Bank of America, and certain Retail Co-Lenders

where the implications of Lehman’s bankruptcy were discussed; and 4)

Fontainebleau’s suspicious evasiveness on the topic of Lehman’s bankruptcy and

its nonresponsive answers to Bank of America’s questions about who funded

Lehman’s share of the September Advance.

      As the District Court’s opinion details, there are ways to discount each of

these categories of evidence as showing, at most, a reason that Bank of America

should have been suspicious that Fontainebleau funded Lehman’s share of the

September Retail Advance. See In re Fontainebleau, 

, at *37–40.

However, taken together and viewed in the light most favorable to the Term

Lenders, we conclude that this circumstantial evidence creates a genuine issue of

material fact with respect to whether Bank of America had actual knowledge that

Fontainebleau paid Lehman’s share of the September Retail Advance. Cf. United

States v. Santos, 

, 521, 

, 2029 (2008) (explaining that

the “knowledge element” of the offense “will be provable (as knowledge must

almost always be proved) by circumstantial evidence”).




                                         17
             Case: 12-11815     Date Filed: 07/26/2013   Page: 18 of 26


      Forwarding a similar argument, the Term Lenders also say that Bank of

America had actual knowledge that Lehman’s bankruptcy was a “change in the

economics . . . which could reasonably be expected to have a Material Adverse

Effect.” To support this proposition, the Term Lenders highlight: 1) the large share

of the Retail Facility that Lehman was responsible for funding; 2)

contemporaneous statements made by Bank of America employees about the

potential impact Lehman’s bankruptcy would have on the Project together with

their later explanations of those statements; 3) the letters from Highland Capital

Management mentioned above; and 4) discussions at the October 2009 meeting

(also mentioned above) about the impact of Lehman’s bankruptcy on the Project

and the Retail Co-Lenders’ unwillingness to pay Lehman’s portion if Lehman was

unable to pay.

      The District Court’s opinion accurately details how, despite Lehman’s

bankruptcy, “there was no indication that there would be a shortfall in Retail Funds

or that the Retail Lenders would fail to honor their obligations under the Retail

Facility.” In re Fontainebleau, 

, at * 17. However, when taken

together and viewed in the light most favorable to the Term Lenders, we conclude

that the Term Lenders’ evidence raises a genuine question of material fact about

whether Bank of America had actual knowledge that Lehman’s bankruptcy was a




                                         18
              Case: 12-11815       Date Filed: 07/26/2013      Page: 19 of 26


change in the economics of the Project “which could reasonably be expected to

have a Material Adverse Effect.” (emphasis added).

         2. First National Bank of Nevada’s Repudiation, Cost Overruns, and the
                        Default of Several Delay Draw Term Lenders

       That several other events of consequence happened during the period of

September 2008 through 2009 is also undisputed. First, in late December 2008,

the Federal Deposit Insurance Corporation, which had been appointed as receiver

of First National Bank of Nevada (a Delay Draw Term Loan and Revolving Loan

Lender), formally repudiated First National Bank of Nevada’s unfunded Senior

Credit Facility commitments. These commitments amounted to $1,666,666 under

the Delay Draw Term Loan and $10,000,000 under the Revolver Loan.

       Second, in January and March 2009, the Construction Consultant issued

Project Status Reports expressing concerns that the Borrowers’ Anticipated Cost

Report did not accurately reflect increases in the Project budget. In March, the

Consultant issued a Construction Consultant Advance Certificate declaring that

there were material errors in the Advance Request and that the budget did not

accurately reflect costs. By the end of March, the Borrowers increased the Project

budget by more than $114,000,000.6




6
 The Borrowers first increased construction costs by $64,854,000. Based on the Construction
Consultant’s Advance Certificate, the Borrowers increased the budget by another $50,000,000.
                                              19
               Case: 12-11815       Date Filed: 07/26/2013      Page: 20 of 26


       Third, in March 2009, the Borrowers submitted a Notice of Borrowing

requesting a Delay Draw Term Loan for the entire $350 million facility.

Guggenheim (which controlled five Delay Draw Term Loan investment funds) and

Z Capital Finance, LLC (a Delay Draw Term Lender) failed to give Bank of

America funds as they were obligated to under the Credit Agreement.

Guggenheim’s portion of the Delay Draw Term Loan was $10,000,000 and Z

Capital was responsible for $11,666,666. Despite their failure to fund, Bank of

America included these commitments as “Available Funds” to calculate whether

the Project was “In Balance.”

       No one disputes that these events may be relevant to several conditions

precedent. For example, if either First National Bank of Nevada’s repudiation or

Guggenheim’s and Z Capital’s failures to fund “could reasonably be expected to

result in a Material Adverse Effect,” this would have been an Event of Default

under the Credit Agreement. Based on this, the condition in § 3.3.3 of the

Disbursement Agreement would not have been satisfied. 7 Also, if these events,


7
  This condition required that “No Default or Event of Default shall have occurred and be
continuing.” “Event of Default” was defined as being an “Event of Default under any of the
Facility Agreements.” One “Event of Default” under the Credit Agreement was any breach or
default by any party to the agreements of any term of the agreements provided that it “could
reasonably be expected to result in a Material Adverse Effect.”

        If Bank of America had actual knowledge that the condition in § 3.3.3 was not satisfied
because there was an “Event of Default,” the condition in § 3.3.2 would also be implicated
because Bank of America would have had actual knowledge that Fontainebleau’s representation
that there was no “Event of Default” was not “true and correct.”
                                              20
             Case: 12-11815     Date Filed: 07/26/2013    Page: 21 of 26


considered together with Lehman’s bankruptcy, amounted to a “change in the

economics” of the Project “which could reasonably be expected to have a Material

Adverse Effect,” then the condition in § 3.3.23 would not have been satisfied.

      However, the parties do dispute whether these events did, in fact, cause

failures of the conditions precedent and whether Bank of America had actual

knowledge of the failures. The primary basis for the District Court’s determination

that these events did not constitute failures of conditions precedent, which Bank of

America urges us to adopt, was its determination that each of these events was not

material, as a matter of law. See In re Fontainebleau, 

, at *43–44.

In arguing to defeat this materiality determination by the District Court, and to

support their own view that these events “could reasonably be expected to have a

Material Adverse Effect,” the Term Lenders: 1) take issue with the District Court’s

finding that the loan amounts of the Senior Credit Facility that were not available

due to First National Bank of Nevada’s repudiation and Guggenheim’s and Z

Capital’s failures to fund were immaterial as a matter of law; 2) point out that, as

the District Court acknowledged, Guggenheim’s and Z Capital’s failures to fund

caused the Project’s budget to be out of balance; 3) highlight Bank of America’s

recognition of how difficult it would be to secure alternative lenders; and 4) argue

that “[t]he intricate, interlocking agreements reflected the reality that no reasonable




                                          21
               Case: 12-11815   Date Filed: 07/26/2013    Page: 22 of 26


lender would fund without assurances that other lenders would also fund to

completion.”

      Considering all of this together, the Term Lenders have raised genuine

issues of material fact about whether there were “Events of Default” to the extent

that these events “could reasonably be expected to have a Material Adverse Effect”

and whether Bank of America had actual knowledge of this fact. Cf. e.g., Lucas v.

Fla. Power & Light Co., 

, 1040–41 (11th Cir. 1985) (explaining that

“questions of materiality” are “[m]ixed questions of law and fact” that “involve

assessments peculiarly within the province of the trier of fact”); Willjeff, LLC v.

United Realty Mgmt. Corp., 

, 497 (N.Y. App. Div. 2011)

(explaining that materiality is generally a question for the finder of fact unless “the

evidence concerning the materiality is clear and substantially uncontradicted”).

Even if First National Bank of Nevada’s repudiation, and Guggenheim’s and Z

Capital’s failures to fund could not have been expected to result in a Material

Adverse Effect when considered one by one, taken together and in conjunction

with the large increase in the Project budget and Lehman’s bankruptcy, we have no

problem concluding there is a genuine issue of material fact regarding whether

Bank of America knew that there was a “change in the economics” of the Project




                                          22
               Case: 12-11815       Date Filed: 07/26/2013       Page: 23 of 26


“which could reasonably be expected to have a Material Adverse Effect,” thereby

implicating the condition in § 3.3.11. 8

               C. WAS BANK OF AMERICA GROSSLY NEGLIGENT?

       Under § 9.10 of the Disbursement Agreement, Bank of America, as

Disbursement Agent, had no responsibility “except for any bad faith, fraud, gross

negligence or willful misconduct” and could not be held liable for any loss “except

as a result of [its] bad faith, fraud, gross negligence or willful misconduct.” Under

New York law, these are high standards. For example, New York law defines

gross negligence as “conduct that evinces a reckless disregard for the rights of

others or smacks of intentional wrongdoing,” Colnaghi, U.S.A., Ltd. v. Jewelers

Protection Servs., Ltd., 

, 823–24 (N.Y. 1993) (quotation marks

omitted), or “the failure to exercise even slight care,” Food Pageant, Inc. v.

Consolidated Edison Co., Inc., 

, 172 (N.Y. 1981).

       However, “[g]enerally, the particular standard of care which a defendant is

judged against in a given case is a factual matter for the jury.” Food Pageant, 

. Thus, “[w]here the inquiry is to the existence or nonexistence of

gross negligence . . . the question . . . [is] a matter for jury determination.” 

Term Lenders argue that Bank of America was in breach of the Disbursement Agreement
because it disbursed funds even though it had actual knowledge that seven conditions precedent
had failed. Because we have concluded that there were genuine issues of material fact as to five
of these conditions, we decline to address the remaining two conditions precedent. Neither will
we address Term Lenders’ arguments about several other purported failures of the conditions
precedent we have discussed. We leave it to the District Court to reevaluate these issues, as
necessary, in light of this opinion and further proceedings before that court.
                                               23
             Case: 12-11815     Date Filed: 07/26/2013   Page: 24 of 26


173. “While gross negligence may be found as a matter of law in some limited

instances,” Trump Int’l Hotel & Tower v. Carrier Corp., 

, 315

(S.D.N.Y. 2007), it cannot be resolved as a matter of law in this case.

      Here, there is an issue of fact about whether Bank of America was grossly

negligent. For example, under our interpretation of the Disbursement Agreement,

Bank of America would have been in breach of the Agreement if it disbursed the

Term Lenders’ funds to the Borrowers even though it had actual knowledge that

any one of the conditions precedent had failed. We have discussed why we believe

there are genuine issues of material fact about whether Bank of America had actual

knowledge that a number of conditions precedent had failed. In addition to those

things we discussed, the Term Lenders have also established a dispute of material

fact on the subject of whether Bank of America had actual knowledge that some of

these conditions precedent had failed months before it disbursed funds to the

Borrowers or that Bank of America had actual knowledge that some of these

conditions precedent had failed for several different reasons. A jury could find that

the cumulative effect of Bank of America’s disbursing funds despite having actual

knowledge about the failure of many different conditions precedent amounted to

gross negligence. A jury could also find that certain conditions precedent were so

material to the Agreement that Bank of America’s conduct, including disbursing




                                         24
             Case: 12-11815     Date Filed: 07/26/2013     Page: 25 of 26


funds to the Borrowers, showed a reckless disregard for the Term Lenders’ rights

to the extent it knew that those conditions were not satisfied.

                            V. SEALED DOCUMENTS

      Many of the documents filed in this case, including the parties’ motions for

summary judgment and appeal briefs, were filed under seal. An example of the

documents filed under seal is the Disbursement Agreement, which is central to this

case. This same document was publicly filed in other proceedings, including a

case we heard at oral argument on the same day as this one.

      At the request of the court, the parties have filed a joint letter agreeing that

the underlying Agreements and many of the other documents in the record should

be unsealed. The parties also listed certain documents they wish to continue to

keep under seal. Upon remand of this case to the District Court, the Clerk is

directed to unseal all of the documents in the record, except those delineated in the

parties’ request to retain them as sealed.

                                VI. CONCLUSION

      Having concluded that under the Disbursement Agreement Bank of America

was permitted to rely on the Borrowers’ certifications that the conditions precedent

were satisfied unless it had actual knowledge to the contrary, and finding that there

remain genuine issues of material fact about whether Bank of America had such

knowledge and whether its actions amounted to gross negligence, we affirm in part


                                             25
             Case: 12-11815     Date Filed: 07/26/2013   Page: 26 of 26


and reverse in part the District Court’s order. Specifically, we affirm the District

Court’s denial of the Term Lenders’ Motion for Partial Summary Judgment and the

District Court’s interpretation of Bank of America’s obligations under the

Disbursement Agreement. We reverse the District Court’s grant of summary

judgment in favor of Bank of America. We also remand the case to the District

Court for further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED




                                          26