Opinion
No. 00 Civ. 8613 (SAS)
April 23, 2002
OPINION AND ORDER
During the last three months of 1999, defendant Bay View Franchise Mortgage Acceptance Company ("BVFMAC") sold a series of loans to plaintiff Morgan Guaranty Trust Company of New York ("MGT"). In a contract dated October 29, 1999 (the "First Purchase Agreement"), BVFMAC made several express. warranties as to the quality of the loans that MGT was purchasing and agreed to repurchase any loans for which those warranties proved untrue. In this action, MGT alleges that five of the warranties did prove untrue with respect to sixty-three loans (the "Cimm's Loans" or the "Loans") that had been made to the owners of certain Burger King restaurants (the "Borrowers"), and that BVFMAC breached its contractual obligation to repurchase those Loans upon MGT's demand.
The corporation referred to as "BVFMAC" is the result of a November 1999 merger between Franchise Mortgage Acceptance Company and Bay View Capital Corporation. Because BVFMAC is the successor in interest to the Franchise Mortgage Acceptance Company, the Court will use "BVFMAC" to refer to both FMAC and BVFMAC.
MGT now moves for summary judgment as to BVFMAC's liability, and BVFMAC moves for summary judgment dismissing all of MGT's claims. For the reasons set forth below. summary judgment is granted in favor of MGT as to BVFMAC's liability for breach of the warranty contained in section 6(xvi) of the First Purchase Agreement and for breach of its resulting obligation to repurchase the Loans. The remainder of MGT's motion is denied, and BVFMAC's motion is granted in part and denied in part, as more fully set forth below.
BACKGROUND
In the First Purchase Agreement of October 29, 1999, MGT and BVFMAC agreed to the terms and conditions of sale for an unspecified number of loans. (PSOF ¶ 7; DSOF ¶ 19.) The agreement contemplated that particular sales were to be effectuated by means of separate, follow-up "Annex" agreements. (PSOF ¶ 9; DSOF ¶ 20.) In section six of the agreement, BVFMAC made a series of express warranties with respect to the quality and servicing of the loans to be sold in the annexes. In section 8(a), BVFMAC promised, upon receipt of prompt notification of discovery by MGT of "any breach" of a section six warranty, to repurchase any loans for which the warranty had been breached at the "Repurchase Price" of the loan. The Repurchase Price is defined in section one of the agreement.
"PSOF" refers to both parties' statements of fact as compiled in the document entitled "Statement of Plaintiff Morgan Guaranty Trust Company of New York Pursuant to Local Rule 56.1 in Reply to Defendant's Statement of Material Facts in Dispute." Similarly, "DSOF" refers to both parties' statements of fact as compiled in the document entitled "Statement of Plaintiff Morgan Guaranty Trust Company of New York Pursuant to Local Rule 56.1 of Disputed Material Facts in Opposition to Defendant's Motion for Summary Judgment."
Pursuant to a document entitled "Annex I," which was also dated October 29, 1999, BVFMAC sold eighty-six loans to MGT. (PSOF ¶ 13.) Fifty-four of these loans were so-called Cimm's Loans — loans that had been made to the Borrowers as owners of Burger King restaurants. (PSOF ¶ 14; DSOF ¶¶ 31-32.) Annex I recited that its loans were being sold "on the terms and conditions set forth in that certain Loan Purchase Agreement between the Seller and Purchaser dated October 29, 1999." (Bull Aff. Ex. B, Recital B.) It also contains BVFMAC's reaffirmation of the section six warranties and section 8(a) repurchase obligation of the First Purchase Agreement. (Bull Aff. Ex. B, §§ 3-4.)
In yet another document dated October 29, 1999, BVFMAC and J.P. Morgan Securities, Inc. ("JPM"), an affiliate of MGT, "agreed to enter into a program under which [JPM] will form a conduit . . . to securitize small business loans . . . to owners/operators of franchise businesses originated by [BVFMAC]." (2d Burke Decl. Ex. A.) This letter, via reference to its first exhibit, recounted that MGT had agreed on that day to purchase the loans of Annex I. (2d Burke Decl. Ex. A.) Via reference to its second exhibit, the letter further recited the parties' "agreement" that the Annex I loans, "may (at the option of MGT) be contributed to" a securitization of "[BVMFAC]-owned loans" to be conducted by JPM. (2d Burke Decl. Ex. A.)
BVFMAC and MGT entered into a second annex to the First Purchase Agreement on December 15, 1999. The Annex II sale is not at issue in this litigation. (PSOF ¶ 16.)
Also on December 15, 1999, BVFMAC and MGT executed a second document entitled "Loan Purchase Agreement" (the "Second Purchase Agreement"). (DSOF ¶ 35.) The Second Purchase Agreement was similar to the First Purchase Agreement in that it contemplated sales of loans by follow-up annexes, but it was different in that it contained fewer, different, and more qualified warranties by BVFMAC. (Talisman Decl. Ex. 11.) For instance, in section 6(xvi) of the First Purchase Agreement, BVFMAC unconditionally warranted that "[t]here is no, and during the twelve months preceding the applicable [Annex], there has been no," event constituting a material breach of any mortgage or note of any' of the loans to be sold. By contrast. in section 6 (xliii) of the Second Purchase Agreement, BVFMAC warranted only that "to [its actual] knowledge [without inquiry]" there had been no material breaches of the loan documents. (Talisman Decl. Ex. 11, § 6 (xliii).) (A document purporting to be "Annex I" to this Second Purchase Agreement was executed by the parties on February 18, 2000. (3d Bull Aff. Ex. U.) This Annex I, however, is not at issue in this litigation.)
Next, on December 22, 1999, pursuant to a document entitled "Annex III," BVFMAC sold to MGT the nine remaining Cimm's Loans. (PSOF ¶ 15; DSOF ¶ 35.) Annex III, like Annex I, recited that its loans were being sold "on the terms and conditions set forth in that certain Loan Purchase Agreement between the Seller and Purchaser dated October 29, 1999." (Bull Aff. Ex. C, Recital B.) It also contains BVFMAC's reaffirmation of the section six warranties and section 8(a) repurchase obligation of the First Purchase Agreement. (Bull Aff. Ex. C, §§ 3-4.)
In the spring of 2000, MGT came to believe that BVFMAC had breached its warranties with respect to the Cimm's Loans, or, more accurately, that the warranties had been incorrect when BVFMAC made them on October 29, 1999 (the date of Annex I) and December 22, 1999 (the date of Annex III). Accordingly, on July 17, 2000, MGT notified BVFMAC that it had breached the warranties contained in sections 6 (xiii), 6 (xvi), and 6 (xlii) of the First Purchase Agreement. (Talisman Decl. Ex. 30). On October 6, 2000, after BVFMAC denied those allegations. MGT demanded that BVFMAC repurchase the Cimm's Loans pursuant to section 8(a) of First Purchase Agreement. (Talisman Decl. 31, 32, 34, 35,) On November 6, 2000. MGT notified BVFMAC that it had also allegedly breached the warranties contained in sections 6(xix) and 6 (xliv) of that agreement and demanded repurchase on that ground as well. (Talisman Decl. Ex. 36.) BVFMAC has refused to repurchase the Loans.
DISCUSSION
BVFMAC's refusal to repurchase the Loans prompted MGT to file this action alleging that BVFMAC breached section 8(a) of the First Purchase Agreement. Pursuant to New York law, which the parties agree controls, a plaintiff is entitled to summary judgment as to liability on a breach of contract claim if it establishes (1) the existence of a valid contract, (2) its own performance under the contract, and (3) defendant's breach of its obligations under the contract. See Commonwealth Assocs. v. Palomar Med. Techs., Inc., No. 96 Civ. 1868, 1997 WL 26723, at *1 (S.D.N.Y. Jan. 23, 1997) (citing Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994)). In the motions now before the Court, the parties contest all three of these elements.
I. The Controlling Contract
The parties do not dispute the existence of a contract; rather they contest which of two contracts controls MGT's breach of warranty claims — the First Purchase Agreement, dated October 29, 1999, or the Second Purchase Agreement, dated December 15, 1999. BVFMAC argues that the Second Purchase Agreement, which contains fewer, different, and more qualified warranties by BVFMAC, superseded the First Purchase Agreement and thus governs not only the Annex III sale conducted one week after execution of the Second Purchase Agreement, but also the Annex I sale conducted six weeks prior to its execution. MGT asserts to the contrary that the Second Purchase Agreement did not relate at all to the sale of the Cimm's Loans and thus has no effect upon the terms and conditions of the First Purchase Agreement. Annex I. or Annex III.
BVFMAC's suggestion that the merger clause of the Second Agreement expressly superseded the First Agreement with respect to the previously executed Annex I sale is, as a matter of contract interpretation, meritless; it is also unsupported by any evidence that supersession of the First Agreement was the intent of the parties. Furthermore, BVFMAC's suggestion that the terms of the Second Agreement apply to the subsequent Annex III sale is surprising: on its face, Annex III, like Annex I, expressly incorporates the terms and conditions of the First Agreement, not the Second Agreement. Similarly, a letter of understanding dated December 22, prepared and signed by David Walden for BVFMAC, recited that the Annex III loans being sold that day were being sold pursuant to the First Agreement. (3d Bull Aff. Ex. T.)
The merger clause of the Second Purchase Agreement reads as follows: "The Transaction documents and other documents executed by Purchaser and Seller in connection with this Agreement (including each Annex) constitute the entire agreement and understanding of the parties hereto, and supersede all prior agreements and understandings between the parties hereto with respect to the transaction contemplated hereby." (Talisman Decl. Ex. 11, ¶ 21.) The First Purchase Agreement contains the exact same paragraph. (Talisman Decl. Ex. 10, ¶ 21.)
Recital B of Annex III states that "Seller has agreed to sell to Purchaser the Loans and Loan Documents on the terms and conditions set forth in that certain Loan Purchase Agreement between the Seller and Purchaser dated October 29, 1999 (the "Loan Purchase Agreement"), as modified by this Annex III," and that "[t]his Annex III is being executed and delivered pursuant to the Loan Purchase Agreement." (Bull Aff. Ex. C, Recital B.) Annex I has the exact same recital. (Bull Aff. Ex. B, Recital B.) Both annexes also reaffirm the warranties and repurchase obligation contained in sections six and eight of the Purchase Agreement. (Bull Aff. Ex. C. §§ 3-4; Bull Aff. Ex. B, §§ 3-4.)
The letter of understanding states that BVFMAC "has agreed to sell certain loans . . . on December 22, 1999 to [MGT] utilizing the Loan Purchase Agreement (the "Agreement") dated October 29, 1999 between [BVFMAC and MGT and that certain Annex III to the Agreement." (3d Bull Aff. Ex. T.)
Given the unambiguous language of Annex III and the letter of understanding, extrinsic evidence of intent is not admissible. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992). Undeterred, BVFMAC has proffered evidence suggesting that those documents did not accurately reflect its understanding of the Annex III agreement. Kevin Burke, who negotiated the transactions with MGT's Clive Bull, now says that he understood the Second Agreement — and its less demanding warranties — to supersede and replace the First Agreement "going forward." (Burke Opp. Decl. ¶¶ 6-10.) Burke claims that he was ill when Annex III closed and thus did not supervise David Walden's erroneous drafting of the documents. (Burke Opp. Decl. ¶ 11.) Walden himself testifies that, because he had not been involved in the Annex III negotiations, he was unaware that a second, supposedly superceding purchase agreement had been executed the week before, and that is why the Annex III documents that he drafted incorporate the First Agreement instead of the Second Agreement. (Walden Decl.)
Assuming for a moment that Burke's declaration is admissible to clarify the intent of the parties when they reduced the Annex III agreement to writing, which it is not, it is nonetheless "beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that contradicts the affiant's previous deposition testimony," Bickerstaff v. Vassar College, 196 F.3d 435, 454-55 (2d Cir. 1999) (quotations and alterations omitted), and Burke's declaration contradicts his deposition testimony. At his deposition, Burke testified that, to his knowledge, the warranties in the First Agreement had not been modified in writing, (Burke Dep. at 96-98), and that BVFMAC would not have sold the Annex III loans if all the conditions of the First Agreement had not been met, (Burke Dep. at 129-30). In addition. Burke's declaration contradicts BVFMAC's repeated acknowledgments in its pleadings that it entered into the Annex III sale "under the [First] Agreement." (Answer ¶ 9; Compl. ¶ 9; Third Storch Aff. Exs. T, U, V.) See Pemrick v. Stracher, 67 F. Supp.2d 149, 165 (E.D.N.Y. 1999). Under these circumstances, Burke's declaration fails to create a triable issue of fact as to which contract controls here. As Annex I and Annex III clearly state, the First Agreement controls.
Walden, in his declaration, does not set forth his view of BVFMAC's intent. BVFMAC submits Walden's declaration in spite of the fact that during discovery, in an effort to avoid the depositions of Walden and David Stiles, it represented to the Court and MGT that the test testimony of those men "clearly [would] have no bearing on the issues in this case" and that affidavits from them would not be submitted "for any purpose." (Third Storch Aff. Ex. T.) MGT relied on these representations when it agreed not to depose Walden.
In another, similar effort to define the scope of the controlling contract, BVFMAC points to the October 29, 1999 letter in which JPM "agreed to enter into a program" of securitization as evidence that the Purchase Agreement was part and parcel of a broader agreement between the parties to not only sell the Loans, but also to securitize them. (2d Burke Decl. Ex. A.) BVFMAC argues, accordingly, that MGT waived its section 8(a) right to repurchase when, after learning of BVFMAC's alleged breaches, it elected to "continue" the broad agreement by continuing its efforts to securitize the Loans. See Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 662 F. Supp. 798, 804-05 (S.D.N.Y. 1987) ("[o]nce the non-breaching party elects to continue the contract, he may not at a later time renounce his election and seek to terminate based on the prior breach"), aff'd, 865 F.2d 513 (2d Cir. 1989). Whatever the effect of the October 29, 1999 letter is, however, it does not purport to alter the terms or conditions of the sale of the Cimm's Loans to MGT. At the most, it says that MGT may, at its option, contribute those Loans to a JPM-conducted securitization. Thus, MGT did not waive any of its rights under the Purchase Agreement by continuing its efforts to securitize the Loans post-breach.
II. MGT's Performance and BVFMAC's Breach
Having established that the First Purchase Agreement is the Purchase Agreement, MGT must now demonstrate its own performance under that contract and BVFMAC's breach. The contract sets forth the performance obligations of the parties. Section 8(a) provides that. "upon discovery" of "any breach" of a warranty contained in section six with respect to "any Loan," MGT shall "promptly notify" BVFMAC and request that BVFMAC "cure" the breach within thirty days. If BVFMAC is unable to cure any breach within thirty days, then section 8(a) provides that, upon demand of MGT, BVFMAC "shall promptly repurchase the applicable Loan at the Repurchase Price" defined in section one of the Agreement.
The parties dispute the occurrence of two conditions precedent to BVFMAC's section 8(a) obligation to repurchase the Loans: (I) a breach of a warranty contained in section six of the Purchase Agreement and (2) prompt notice to BVFMAC upon discovery of that breach. If both of those conditions occurred, then BVFMAC breached section 8(a) of the Purchase Agreement when it refused to repurchase the Cimm's Loans.
With respect to the first condition precedent, under New York common law, a buyer may hold a seller accountable for breach of an express warranty upon showing that (1) the defendant breached the express warranty, and (2) the parties "relied" on the express warranty as part of the bargain between the parties. See CBS Inc. v. Ziff-Davis Publ'g Co., 75 N.Y.2d 496, 503-04, 553 N.E.2d 997, 554 N.Y.S.2d 449 (1990); Promuto v. Waste Mgmt., Inc., 44 F. Supp.2d 628, 642 (S.D.N.Y. 1999); Ainger v. Michigan Gen. Corp., 476 F. Supp. 1209, 1225 (S.D.N.Y. 1979), aff'd, 632 F.2d 1025 (2d Cir. 1980). In addition, although section 8(a) refers to "any" breach of warranty. in order for a breach of warranty to trigger BVFMAC's section 8(a) repurchase obligation, it must be a material breach of the warranty in question. See Resolution Trust Corp. v. Key Fin. Servs., Inc., 280 F.3d 12, 17 (1st Cir. 2002).
With respect to the second condition precedent — prompt notice upon discovery of breach section 8(a)'s requirement echoes New York contract law, which provides that "a party wishing to rescind a contract must make this intention known promptly after the discovery of the wrong or defect." K.M.L. Labs. Ltd. v. Hopper, 830 F. Supp. 159, 166 (E.D.N.Y. 1993); see also In re Instruments for Indus., Inc., 496 F.2d 1157, 1160 n. 5 (2d Cir. 1974); American Mfg. Co. v. United States Shipping Bd. Emergency Fleet Corp., 7 F.2d 565, 566 (2d Cir. 1925). With this contract, as under the common law, "[p]romptly . . . does not mean immediately, but rather within a reasonable time." K.M.L. Labs., 830 F. Supp. at 166; Instruments for Indus., 496 F.2d at 1160 n. 5. Moreover, where there is no dispute as to facts, the question of whether notice was given within a reasonable time is a question for the court.See Tabor v. Logan, 114 A.D.2d 894, 894, 495 N.Y.S.2d 67 (2d Dep't 1985); Martin-Barris Co. v. Jackson, 24 A.D. 354, 48 N.Y.S. 586, 589 (4th Dep't 1897).
Pursuant to section 8(a), the prompt notice clock does not start running against MGT until it "discovers" a breach of BVFMAC's warranties. A party "discovers" a breach when it knows or should know that the breach has occurred. See K.M.L. Labs., 830 F. Supp. at 166. Yet, a party need not raise a claim immediately upon receiving notice of facts merely suggesting that a breach has occurred, especially where, as here, the seller knows the underlying facts better than the buyer. See American Mfg., 7 F.2d at 566. Rather, upon receipt of such notice, it becomes incumbent upon the buyer "`to pick up the scent and nose to the source. If the quest confirms this suspicion, then he must make [the] decision [to raise the claim] with reasonable dispatch.'" Banque Arabe Et Internationale D'Investissement v. Maryland Nat'l Bank, 850 F. Supp. 1199, 1211 (S.D.N.Y. 1994) (emphasis added) (quoting Gannet Co. v. Register Publ'g Co., 428 F. Supp. 818, 828 (D. Conn. 1977) (quoting Baumel v. Rosen, 412 F.2d 571, 574 (4th Cir. 1969))). aff'd, 57 F.3d 146 (2d Cir. 1995); see also K.M.L. Labs., 830 F. Supp. at 166. Otherwise, there would be "an incentive for [buyers] to litigate before knowing for certain that they have suffered any injury." Vista Co. v. Columbia Pictures Indus. Inc., 725 F. Supp. 1286, 1295 (S.D.N Y 1989).
With these principles of law in mind, the Court will now address the merits of each particular alleged breach of warranty seriatim in order to determine whether or not, as a matter of law, (1) BVMFAC committed a material breach and (2) MGT gave reasonably prompt notice of that breach. The Court will then return to the question of whether any of the warranties that were or may have been breached were part of the basis of the bargain that the parties reached when they entered into the Purchase Agreement.
A. BVFMAC's Breach of Warranty and MGT's Reasonably Prompt Notice
1. FCCR Covenant in the Undertaking Letter — Section 6 (xvi)
BVFMAC warranted in the Purchase Agreement that, as of the dates of Annex I (October 29, 1999) and Annex III (December 22, 1999), there had been no event within the preceding twelve months which could constitute a material breach of any mortgage or note of any of the Cimm's Loans. The Court agrees with MGT that, as a matter of law, (1) BVFMAC materially breached this warranty with respect to all of the Cimm's Loans and (2) that MGT promptly notified BVFMAC of that breach.
In section 6(xvi) of the Agreement, BVFMAC warranted that, "effective as of the date hereof and as of each [Annex]," there "is no, and during the twelve months preceding the applicable [Annex], there has been no, material default, breach, violation or event or acceleration existing under the Mortgage or Note related to any Loan, and no event which, with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event or acceleration occurred during such preceding twelve months."
a. Breach
Each mortgage and note requires compliance with provisions of the pledge and security agreement. (Bull Aff. Ex. F, §§ 17, 35; Bull Aff. Ex. G at 1.) The pledge and security agreement requires the Borrowers to comply with promises made in the other Loan Documents. (Bull Aff. Ex. B, §§ 7.1.1 16.) One of the Loan Documents — the undertaking letter — requires the Borrowers to maintain a Fixed Charge Coverage Ratio ("FCCR"). calculated without add-backs of discretionary and non-recurring items (i.e. an "unadjusted" or "pure" FCCR), of "not less than 1.15." (Bull Aff. Ex. H § 9.) The pledge and security agreement itself requires the Borrowers to maintain a "Borrower FCCR," calculated with add-backs of discretionary and non-recurring items (i.e. an "adjusted FCCR"), of "not less than 1.20." (Bull Aff. Ex. E §§ 3.8 16.) In general, FCCR, whether unadjusted or adjusted, is a ratio between the cash flow of a borrower and its fixed charges, including debt service, that a creditor uses to measure the ability of a borrower to repay a loan.
Undisputed evidence indicates that for the twelve months ending on December 31, 1999, the Borrowers were not in compliance with either the pure or adjusted FCCR requirements. (Bull Aff. Ex. L § B; PSOF ¶ 29; Goyal Decl. ¶¶ 3-4.) There is a factual dispute, however, over whether this fact establishes that the Borrowers were out of FCCR compliance as of October 29 and December 22, 1999, the dates on which BVMAC made its warranties. BVFMAC points out that the Borrowers could have been in FCCR compliance for the first three quarters of 1999, but far out of compliance for the fourth quarter. If that were true, it would have been possible for the Borrowers to be out of compliance for the entire year, but still in compliance at the time the warranties were made by BVFMAC.
Yet, MGT has submitted other evidence that the Borrowers' unadjusted FCCR for the twelve month period ending September 30, 1999 was 1.00, and therefore out of compliance. (Bull Aff. ¶ 14 Ex. K; Kelleher Dep. at 147-50.) BVFMAC has not come forward with any admissible evidence tending to show that this calculation is incorrect. Moreover, the calculation is not inadmissible, as BVFMAC contends, simply because it was not made by an "expert." (PSOF ¶ 25.)
BVFMAC argues additionally that this calculation is somehow legally irrelevant in light of the specific FCCR reporting requirements contained in the pledge and security agreement. (PSOF ¶ 25.) The unadjusted FCCR requirement, however, arises from section nine of the undertaking letter, not the pledge and security agreement, and, by the terms of the undertaking letter, it arises "in addition to, and not in lieu of" any covenants set forth in the other Loan Documents. (Bull Aff. Ex. I-I, § 9.) The undertaking letter states the Borrowers "shall maintain" an unadjusted FCCR of not less than 1.15 — it does not require that calculation be made or reported at any specific time. (Bull Aff. Ex. H, § 9.) Thus, there is no question that the Borrowers breached the undertaking letter in September 1999 by failing to maintain an unadjusted FCCR above 1.15, and that BVFMAC incorrectly represented to MGT on October 29 and December 22 that the Borrowers had maintained such an unadjusted FCCR.
Section nine of the undertaking letter provides, in full, that "[i]n addition to, and not in lieu of, any covenants set forth in the Loan Documents. Borrower shall maintain an FCCR, calculated without add-backs of discretionary and non-recurring items, of not less than 1.15. Borrower shall promptly deliver to Secured Party, from time to time, such information as Secured Party reasonably requests to determine whether Borrower is in compliance with the requirements set forth in this paragraph." (Bull Aff. Ex. II. § 9.)
BVFMAC contends that the Borrowers' failure to comply with the unadjusted FCCR requirement of the undertaking letter does not amount to a material breach of section 6(xvi), primarily because neither section 6(xvi), the mortgages. the notes, nor the pledge and security agreement refer specifically to the undertaking letter. The Court concludes, however, that default on the undertaking letter amounts to occurrence of the condition precedent to BVFMAC's repurchase obligation because (1) the mortgages and notes incorporate the pledge and security agreement, (Bull Aff. Ex. F, §§ 17, 35; Bull Aff. Ex. G at 1), (2) the pledge and security agreement forbids defaults under any of the "Loan Documents," (Bull Aff. Ex. E, § 7.1.1), and (3) the undertaking letter provides that any breach of its warranties "shall constitute a material default under the Loans and shall constitute an Event of Default under all of the Loan Documents," (Bull Aff. Ex. H, § 14). Moreover, BVFMAC's Burke himself admitted that he would not have sold the Loans to MGT if the Borrowers were not in compliance with their FCCR covenants. (Burke Dep. at 107-08.) That testimony confirms that the parties considered the FCCR covenants to be a material aspect of the section 6(xvi) warranty.
b. Reasonably Prompt Notice of Breach
When did MGT "discover" the breach of section 6(xvi) of the Purchase Agreement? It is undisputed that BVFMAC informed MGT in March 2000 that it had conducted a compliance analysis indicating that the Borrowers were in default of the FYE December 31, 1999 FCCR requirements contained in the loan documents. (2d Bull Aff. ¶ 11; Goyal Decl. ¶ 3.) Yet, that analysis did not necessarily show that there had been a breach of section 6 (xvi) of the Purchase Agreement because that section only guarantees FCCR requirements contained in the loan documents for the twelve months preceding the Loan purchase. (2d Bull Aff. ¶ 12.) It did, however, put MGT on notice that a breach may have occurred, thus making it incumbent upon MGT to "to pick up the scent and nose to the source." Banque Arabe, 850 F. Supp. at 1211.
Uncontroverted facts indicate that MGT did just that. MGT discerned that BVFMAC's March analysis calculated the FCCR for the Consolidated Restaurant Group instead of for the Borrowers. (Goyal Decl. ¶ 4; 2d Bull Aff. ¶ 13.) MGT eventually convinced BVFMAC that the calculation should have been made for the Borrowers, and, on May 1, 2000, BVFMAC provided FYE December 31, 1999 FCCRs for the Borrowers. (2d Bull Aff. ¶¶ 13-15.) Those FCCRs were also out of compliance with the Loan Documents. (Goyal Decl. ¶¶ 4-5; 2d Bull Aff. ¶¶ 15.) Yet, MGT still had not been given interim figures for the period ended June 30, 1999 or September 30, 1999 from which to calculate FCCRs for the time period preceding the Loan sales — the time period guaranteed by BVFMAC's warranty. (2d Bull Aff. ¶ 15.) "It was not until after December 2000 that the Borrowers provided profit and loss statements . . . that were accurate and from which [MGT] could calculate the Borrowers' unadjusted FCCR for the 12 months ended September 30, 1999." (2d Bull Aff. ¶¶ 20, 28.) MGT's investigation having confirmed its suspicion of breach, it was then obligated to notify BVFMAC "with reasonable dispatch." Banque Arabe, 850 F. at 1211. In these circumstances, MGT's written notice to BVFMAC on July 17, 2000, five months earlier, was, as a matter of law, sufficiently prompt.
2. Servicing of Loans — Section 6(xiv)
BVFMAC warranted in section 6 (xiv) of the Purchase Agreement that each of the Cimm's Loans had been originated and serviced in accordance with the Loan Documents, BVFMAC's servicing manual, and "customary industry standards." MGT alleges that BVMFAC breached this warranty in two ways: first, by not requiring the Borrowers to comply with quarterly reporting requirements contained in the Loan Documents, and, second, by not obtaining proof on a quarterly basis that the Borrowers had made all relevant property tax payments, as allegedly required by customary industry standards. Both sides now move for summary judgment on these two claims. As explained below, while material issues of fact preclude summary judgment on the first claim, the Court grants summary judgment on the second claim in favor of BVFMAC.
Section 6(xiv) provides, in full, that "[e]ach Loan has been originated and serviced in accordance with all applicable laws, customary industry standards, the Loan Documents and [BVFMAC's] servicing manual, a true and complete copy of which has been delivered to [MGT]"
a. Compliance Statements and Quarterly Financial Statements
(1) Breach
The pledge and security agreement requires that within forty-five days of the end of each fiscal quarter, the Borrowers submit "compliance certificates" and "quarterly financial statements" certifying, among other things, their cash flow and fixed charges (used to calculate FCCR) and that they had complied with their covenants and obligations under the Loans. (Bull Aff. Ex. E, § 3.19 (as modified by Bull Aff. Ex. I) Ex. C.) BVFMAC's loan servicing manual further requires BVFMAC "to monitor the borrowers' on-going compliance" with the Loan Documents. (Bull Aff. Exs. M V; PSOF ¶ 35.)
BVFMAC does not dispute the fact that it never obtained compliance certificates or quarterly financial statements from the Borrowers for the second or third quarters of 1999. (PSOF ¶¶ 36-37.) Instead, with respect to the second quarter, BVFMAC contends that the Borrowers were not legally obligated to submit those documents because the Loans were not originated until the middle of the quarter. The pledge and security agreement, however, requires submission of compliance certificates and quarterly financial statements for "each" quarter and contain no exceptions for the first quarter of a loan's operation. (Pledge and Security Agreement § 3.19.) With respect to the third quarter, BVFMAC is correct to point out that the documents were not due from the Borrowers until forty-five days after September 30, after the closing of Annex I on October 29, but that does not change the fact that those documents were due well before the closing of Annex III on December 22. There is no question, therefore, that BVFMAC incorrectly warranted to MGT that the Borrowers had complied with the pledge and security agreement. The Borrowers had in fact failed to provide BVFMAC with any second quarter documents for any of the Cimm's Loans or any third quarter documents for the nine Cimm's Loans sold pursuant to Annex III. This was, as a matter of law, a material breach of the warranty as to proper loan servicing contained in section 6 (xiv) of the Purchase Agreement
(2) Reasonably Prompt Notice of Breach
BVFMAC argues that summary judgment should nevertheless be granted in its favor because MGT's November 6, 2000 notice of this breach was not sufficiently prompt. BVFMAC points out that MGT's Jayme Laurash has testified that he requested documents necessary for 1999 FCCR calculations from BVFMAC "either at due diligence or shortly thereafter," and that BVFMAC responded that it did not have them. (Laurash Dep. at 93-94.) If, as this testimony seems to indicate, MGT discovered BVFMAC's breach of this warranty at the time of sale, giving notice of that breach almost a year later was not reasonably prompt. However, because it is not clear which documents Laurash requested or whether he was informed of the reason why BVFMAC did not have them at the time, summary judgment in favor of BVFMAC on this evidence is inappropriate. If MGT is correct that it did not truly discover this breach until October 1999, then notice as of November 6, 1999 would be reasonably prompt.
b. Proof of Property Tax Payments
MGT has also alleged that BVFMAC violated the warranty contained in section 6 (xiv) of the Purchase Agreement because it did not comply with customary industry standards when it failed to obtain proof on a quarterly basis that the Borrowers had made all relevant property tax payments. (Compl. ¶¶ 31-32.) MGT has failed to come forward with any evidence that BVFMAC did not do this. For that reason, this claim is dismissed.
3. Errors in Origination of Loans — Section 6 (xliv)
BVFMAC warranted in section 6 (xliv) of the Purchase Agreement that
[n]o fraud, error, omission, misrepresentation, negligence or similar occurrence with respect to a Loan has taken place on the part of any Person, including, without limitation, the Borrower, any appraiser, any builder or developer, or any other party involved in the origination of the Loan. [BVFMAC] has reviewed all of the documents constituting the Loan Files and has made such inquires [sic] as it deems necessary to make and confirm the accuracy of the representation set forth herein.
MGT contends that BVFMAC was incorrect to make this guarantee because BVFMAC itself had committed a serious error in the credit memo it used to originate the Cimm's Loans. Both sides now move for summary judgment on this claim. For the following reasons, the Court grants summary judgment in favor of BVFMAC.
It is undisputed that in deciding to originate the Cimm's Loans, BVFMAC's credit committee utilized an April 13, 1999 credit memorandum authored by Janet Rogers. (Bull Aff. Ex. O ("Credit Memo"); PSOF ¶ 39.) The Credit Memo incorrectly set forth an adjusted FCCR for the Borrowers as well as adjusted and unadjusted FCCRs for the Consolidated Restaurant Group. (Credit Memo at 14.) It is also undisputed that in the Spring of 2000, after discovering that the FCCRs in the Credit Memo had been incorrect, BVFMAC revised the memo. (Bull Aff. Ex. P ("Revised Credit Memo"); Goyal Decl. ¶¶ 8-9.) The Revised Credit Memo reported that (I) the adjusted FCCR of the Borrowers had actually been 1.26 at the time of origination, not, as previously reported, 1.35; (2) the adjusted FCCR of the Consolidated Restaurant Group had actually been 1.22, not 1.26; and (3) the unadjusted FCCR of the Consolidated Restaurant Group had actually been 1.14, not 1.20. (Credit Memo at 14; Revised Credit Memo at 11, 14.)
BVFMAC contends that although it committed an error in loan origination, MGT did not provide reasonably prompt notice of that breach as required by section 8(a) of the Purchase Agreement. With respect to this argument, the following facts are undisputed. BVFMAC's Goyal advised MGT in March 2000 that the FCCR for the Borrower Group contained in the original Credit Memo had been calculated incorrectly. (Goyal Decl. ¶ 8; 2d Bull Aff. ¶ 18 ("Eventually, BVFMAC informed MGT that there were errors in the original credit memo.").) Goyal specifically advised MGT at that time that the "adjusted FCCR that had been calculated at 1.35 should have been calculated to be something in the mid to high 1.20's." (Goyal Decl. ¶ 8.) Starting in March 2000, BVFMAC provided drafts of the Revised Credit Memo to MGT which reflected the revised FCCR. (Goyal Decl. ¶ 9; 2d Bull Aff. ¶ 19.) From March through at least May, 2000, MGT asked questions as to BVFMAC's revisions and calculations. (Goyal Decl. ¶ 9; 2d Bull Aff. ¶ 19, Ex. 8.) BVFMAC completed the Revised Credit Memo on May 14. 2000, at the earliest. (2d Bull Aff. ¶ 21; Goyal Decl. ¶ 9.)
In spite of this relatively early "discovery" of the errors constituting this breach, MGT did not include notice of this particular breach in its first, July 17, 2000 notice-of-breach letter. (Talisman Decl. Ex. 30.) In fact, MGT did not notify BVFMAC of this breach until November 6, 2000. (Talisman Decl. Ex. 36.) In these circumstances, MGT's notice was not reasonably prompt. As a result, it cannot now hold BVFMAC accountable for this breach.
4. Origination in Accordance with Underwriting Standards — Section 6 (xiii)
MGT alleges that BVFMAC incorrectly warranted in section 6 (xiii) of the Purchase Agreement that the Cimm's Loans were underwritten "in accordance with [BVFMAC's] applicable underwriting standards." Because there are material factual issues in dispute with respect to this claim, BVFMAC's motion for summary judgment on it is denied.
Section 6 (xiii) provides, in full, that "[e]ach Loan has been underwritten in accordance with [BVFMAC's] applicable underwriting standards, true and complete copies of which have been delivered to [MGT]."
a. Breach
MGT's specific allegation is that Janet Rogers failed to calculate the FCCRs that she reported in the Credit Memo according to BVFMAC's underwriting guidelines, and that since the Credit Memo was an integral part of the underwriting process, the Cimm's Loans were not underwritten in accordance with the guidelines. There is indeed evidence that Rogers did not calculate the FCCRs in accordance with the guidelines. The Court concludes, however, that Rogers's errors in FCCR calculation constitute a material breach of section 6 (xiii) only inasmuch as they led BVFMAC to underwrite a borrower with an FCCR below the guidelines minimum of 1.25. Although an immaterial breach resulting from merely incorrect calculations could conceivably have caused damages to MGT, only a material breach of the warranty will trigger BVFMAC's obligation to repurchase the Loans, which is the outcome that MGT seeks.
According to the Revised Credit Memo, the correct adjusted FCCR of the Borrowers was 1.26, slightly above the guidelines minimum of 1.25, making any error by Rogers with respect to that particular calculation immaterial. MGT contends, nonetheless, that a material breach resulted from Rogers's errors because the correct adjusted FCCR for the Consolidated Restaurant Group was 1.22 — below the guidelines' minimum of 1.25. BVFMAC responds that the guidelines did not require a minimum FCCR for the Consolidated Restaurant Group, but only for the Borrowers. MGT points to evidence, however, that BVFMAC understood the guidelines' 1.25 minimum to apply not only to the Borrowers, but also to the Consolidated Restaurant Group. (Burke Dep. at 107-08, 178-89; Kelleher Dep. at 111-12; 2d Storch Aff. Ex. 6 at 1-2.) That evidence is sufficient to create a genuine issue of material fact as to whether BVFMAC underwrote the Loans in compliance with its underwriting guidelines.
b. Reasonably Prompt Notice of Breach
BVFMAC argues that even if there are material issues of fact concerning the alleged breach of section 6(xiii), summary judgment should be granted in its favor because MGT did not give reasonably prompt notice of the breach. As recounted above, BVFMAC's Goyal advised MGT in March 2000 that the 1.35 FCCR for the Borrower Group contained in the original Credit Memo had been calculated incorrectly — it should have been "in the mid to high 1.20's." (Goyal Decl. ¶ 8; 2d Bull Aff. ¶ 18.) However, BVFMAC did not complete the Revised Credit Memo until May 14, 2000, at the earliest. (2d Bull Aff. ¶ 21; Goyal Decl. ¶ 9.) Although the parties dispute whether MGT "discovered" BVFMAC's breach in March or on May 14, that does not matter. Either way, in light of MGT's ensuing efforts to investigate other warranty violations suggested by the March revelation, it was not unreasonable for MGT to wait and provide notice of this alleged breach on July 17, 2000, at the same time it provided notice of the other alleged breaches. (Talisman Decl. Ex. 30.)
5. Individual FCCRs — Section 6(xlii)
For its last claim, MGT alleges that BVFMAC incorrectly warranted in section 6(xlii) of the Purchase Agreement that, as of the dates of sale, the FCCR for each individual Loan was not less than the FCCR specified in the BVFMAC underwriting guidelines. Material issues of fact preclude the Court from granting BVFMAC's motion for summary judgment on this claim.
Section 6 (xlii) provides, in relevant part, that the "Fixed Charge Coverage Ration (as defined in the Underwriting Guidelines) for each Loan is not less than that specified in the Underwriting Guidelines, except as indicated on Schedule II to the relevant Annex."
a. Breach
The underwriting guidelines provided that if the weighted average FCCR for the Loans was 1.30 or higher, then each individual Loan needed to have an FCCR of at least 1.05, but if the weighted average FCCR for the Loans was below 1.30, then each individual Loan needed to have an FCCR of at least 1.15. (Bull Aff. Ex. J at 34.) MGT's specific allegation, then, is that BVFMAC breached this warranty because the weighted average FCCR at the time of sale was below 1.30 while the FCCR of many of the individual Loans was less than 1.15.
BVMFAC's first argument in support of its motion for summary judgment on this claim is that MGT has failed to come forward with evidence sufficient to prove the allegation. As evidence that the weighted average FCCR at the time of the sales was less than 1.30, MGT points to its own uncontradicted calculation that the Borrowers' unadjusted FCCR for the twelve month period ending September 30, 1999 was 1.00, (Bull Aff. ¶ 14 Ex. K; Kelleher Dep. at 147-50), and to Goyal's calculation that the Borrowers' unadjusted FCCR for the twelve months ending on December 31, 1999, was 1.08, (Goyal Dep. at 290; 2d Bull Aff. Ex. 6). Goyal testified at his deposition that, given his figure, the "likelihood" that the weighted average FCCR was above 1.30 was "small." (Goyal Dep. at 290.) Similarly, when Kelleher was asked whether a 1.30 weighted average FCCR at the time of the sales was "likely" given the 1.08 figure, he responded "probably not." (Kelleher Dep. at 219-20.) BVFMAC argues that all of this evidence does not raise the inference that the weighted average FCCR was below 1.30 at the time of Annex I or Annex III, but the Court agrees with MGT that a reasonable factfinder could conclude that the weighted average FCCR was indeed below 1.30.
While MGT has presented no evidence that any of the Loans sold pursuant to Annex III on December 22, 1999 had an individual FCCR below 1.15, the schedule of Loans attached to Annex I indicates that, as of April 30, 1999, fourteen of the Loans sold pursuant to Annex I on October 29, 1999, did have individual FCCRs below that number. (Annex I, Schedule I.) A reasonable factfinder could conclude from that evidence that the individual FCCRs of those Loans as of October 29, 1999, remained below 1.15, and thus out of compliance with the underwriting guidelines (if, at the same time, the weighted average FCCR was below 1.30).
b. Reasonably Prompt Notice of Breach
BVFMAC's contends, again, that MGT did not provide reasonably prompt notice of this alleged breach. The Court disagrees. The evidence of this alleged FCCR default is the same as the evidence of the FCCR default which, as explained earlier, violated section 6 (xvi) of the Purchase Agreement. Just as MGT was unable to "discover" the section 6 (xvi) breach until it "picked up the scent and nosed to" that evidence, MGT was unable to "discover" this breach until it did that. Banque Arabe, 850 F. Supp. at 1211. As a matter of law, therefore, MGT's July 17, 2000, notice of an alleged breach of section 6 (xlii) was reasonably prompt. (Talisman Decl. Ex. 30.) Moreover, given MGT's obligation to provide reasonably prompt notice, and the fact that BVFMAC and the Borrowers controlled the information that could establish a breach, MGT's notice of breach was not deficient, as BVFMAC claims it was, just because it did not specify which individual Loans fell below the FCCR requirement of the underwriting guidelines. (Talisman Decl. Exs. 30-32.)
B. Basis of Bargain
In sum, MGT has established that BVFMAC materially breached its section 6 (xvi) warranty that the Borrowers had not defaulted on the unadjusted FCCR requirement of the undertaking letter and that prompt notice of that breach was given to BVFMAC upon its discovery by MGT. In addition, MGT may be able to establish at trial its claims that BVFMAC materially breached (1) the section 6 (xiv) warranty that the Borrowers had submitted compliance certificates and financial statements in accordance with the pledge and security agreement; (2) the section (xiii) warranty that the Loans were originated in compliance with the borrower FCCR minimum of the underwriting guidelines; and (3) the section 6 (xlii) warranty that the Loans were sold in compliance with the individual loan FCCR minimum of the underwriting guidelines.
Thus, if any of these four warranties were part of the basis of the bargain reached by the parties when they entered into the Purchase Agreement, MGT may, if material breach has been or is proven, hold BVFMAC accountable for that breach — and also the consequent breach of the repurchase obligation contained in section 8(a) of the Purchase Agreement. See Promuto, 44 F. Supp.2d at 650; Ainger, 476 F. Supp. at 1225 ("[A] claim for relief in breach of warranty is complete upon proof of the warranty as part of the contract and proof of its breach.").
According to the New York Court of Appeals, the "critical question" in determining whether an express warranty was a "bargained-for term" and thus part of the basis of the agreement is whether the buyer "believed it was purchasing the seller's promise as to the [warranty's] truth."Ziff-Davis, 75 N.Y.2d at 503-04 (alterations and quotations omitted);Promuto, 44 F. Supp. at 643. Applying Ziff-Davis, the Second Circuit Court of Appeals has held that inclusion of a warranty in a "Representations and Warranties" section of an agreement establishes, as a matter of law, that the warranty was part of the bargain reached by the parties to the agreement. See Metromedia Co v. Fugazy, 983 F.2d 350, 360 (2d Cir. 1992).
By the logic of Fugazy, all of the disputed warranties contained in section six of the Purchase Agreement are part of the basis of the bargain reached by the parties. Lest there be any doubt on this point with respect to the one material breach that MGT has fully established as a matter of law — that of section 6 (xvi) — the Court notes, tracking the logic of Ziff-Davis, that MGT contracted to buy the Cimm's Loans in consideration, among other things, of the reciprocal promises made by BVFMAC concerning the financial health of the Loans. These reciprocal promises included section 6 (xvi)'s express warranty that for a twelve month period preceding the dates of closing, there had been no event constituting a material default or breach of the mortgage or note of any Loan. The mortgages and notes, through the undertaking letter, required the Borrowers, at pain of material default, to maintain a certain minimum ratio between their cash flow and fixed charges. Almost by definition, that ratio — FCCR — reflected the Borrowers' ability to repay the Loans. Unquestionably, MGT relied on the assumption that the Borrowers' had maintained an ability to repay their Loans sufficient to keep them out of default when it formed its opinion as to the value of the Loans and arrived at the amount it was willing to pay BVFMAC for them. Thus, because MGT was "buying [loans] which it believed to be of a certain value based on information furnished by [BVFMAC] which [BVFMAC] warranted to be true," the section 6 (xvi) warranty was an "express term of the bargain and part of what [MGT] contracted to purchase." Ziff-Davis, 75 N.Y.2d at 505.
However, with respect to two of the still-disputed warranties — sections 6 (xiv) and 6 (xlii) — BVFMAC argues that, in spite ofZiff-Davis and Fugazy, those warranties were not part of the basis of the bargain because, at the time of sale, BVFMAC informed MGT that it would be in breach of them. The Second Circuit Court of Appeals has identified such a limitation on the holding of Ziff-Davis. It has held that "[w]here a buyer closes on a contract in the full knowledge and acceptance of facts disclosed by the seller which would constitute a breach of warranty under the terms of the contract, the buyer should be foreclosed from later asserting the breach." Galli v. Metz, 973 F.2d 145, 151 (2d Cir. 1992); see also Promuto, 44 F. Supp.2d at 644-46. Whether a buyer closes "in the full knowledge and acceptance of facts disclosed by the seller" depends on "fine factual distinctions" involving "both the extent and the source of the buyer's knowledge about the truth of what the seller is warranting." Rogath v. Siebenmanm, 129 F.3d 261, 264 (2d Cir. 1997). But if the buyer did not close "in full knowledge," then it is assumed that he "believed he was purchasing the seller's promise as to the truth of the [warranted information]" and he may assert the breach as part of the basis of the bargain. Id. at 264-65.
BVFMAC argues that MGT waived its right to assert breach of section 6 (xiv) because at the time of sale BVFMAC had informed MGT that the Borrowers had not submitted any second or third quarter compliance certificates or quarterly financial statements. Indeed, as described earlier, MGT's Jayme Laurash has testified that he requested documents necessary For 1999 FCCR calculations from BVFMAC "either at due diligence or shortly thereafter," and that BVFMAC responded that it did not have them. (Laurash Dep. at 93-94.) However, because it is not clear which documents Laurash requested or whether he was informed of the reason why BVFMAC did not have them at the time, summary judgment in favor of BVFMAC on this evidence is inappropriate. Nevertheless, Laurash's testimony is sufficient to raise a triable issue of fact concerning BVFMAC's disclosure and MGT's knowledge of the Borrowers' failure to comply with the pledge and security agreement. See Rogath, 129 F.3d at 266.
BVFMAC makes a similar argument with respect to its alleged breach of section (xlii). BVFMAC says that MGT cannot now claim breach of this warranty because BVFMAC informed MGT at the time of Annex I that the fourteen individual FCCRs were below the guidelines minimum of 1.15. The alleged faulty representations, however, are not with respect to the individual FCCRs, but the conjunction of those FCCRs and a weighted average FCCR below 1.30. Thus, if BVFMAC did not tell MGT that the weighted average was below 1.30, it does not matter that it did tell MGT that the individual FCCRs were below 1.15. Moreover, the fact that the non-complying FCCRs were listed in the schedule of Loans (Schedule I) attached to Annex I does not except those Loans from the warranty pursuant to the terms of section 6 (xlii) of the Purchase Agreement. That section excepts from the warranty only those breaches set forth in Schedule II, and the offending Loans are not set forth there. (Annex I, Schedule II.)
this is true as long as the individual FCCR at issue was not below 1.05, in which case it would be out of compliance regardless of whether the weighted average FCCR was above or below 1.30. One of the fourteen Loans listed in the schedule attached to Annex I had an individual FCCR of 1.00. MGT cannot claim breach of the section 6 (xlii) warranty with respect to that particular Loan.
III. Remedy for Breach
Thus, there is no material issue of fact that (1) BVFMAC materially breached the warranty contained in section 6 (xvi) of the Purchase Agreement, (2) MGT gave reasonably prompt notice of that breach to BVFMAC upon discovery, and (3) that warranty was part of the basis of bargain between the parties. That confluence of facts means that when BVFMAC refused MGT's demand to repurchase the Cimm's Loans, it breached the promise it made in section 8(a) of the Purchase Agreement. The question now is how to remedy that breach.
MGT suggests an order requiring BVFMAC to repurchase the Cimm's Loans and damages. There is some suggestion in the parties' papers that in order for MGT to get any such relief, it must establish that BVFMAC's breaches were "material" to the Purchase Agreement as a whole. The breaches may well be material to the Purchase Agreement, but as the First Circuit Court of Appeals recently explained in enforcing a New York contract for the sale of loans very similar to the one at issue here, the standards of materiality applicable in "fraudulent inducement or "pure rescission" cases do not apply when the buyer seeks relief based on an explicit contractual repurchase provision. See Resolution Trust Corp., 280 F.3d at 16-17 (distinguishing United States ex rel. Roman v. Schelesinger, 404 F. Supp. 77, 85 (E.D.N Y 1975) (materiality test for fraudulent inducement) and Times Mirror Magazines, Inc. v. Field Stream Licenses Co., 103 F. Supp.2d 711, 731 (S.D.N.Y. 2000) (materiality test for pure rescission)). Where, as here, a buyer does not seek "complete dissolution" but rather merely asserts its bargained-for repurchase rights under the agreement, "the appropriate question is whether the [information] deficiencies constituted a material breach of [the particular warranty]," not whether the warranty was "material to the Agreement as a whole." Id. at 17. This Court has already held that BVFMAC committed a material breach of the warranty contained in section 6(xvi) of the Purchase Agreement. Pursuant to the bargain struck in the Purchase Agreement, a breach of that magnitude triggers the repurchase remedy contained in section 8(a). See id.
Thus, repurchase was triggered on October 6, 2000. Accordingly, BVFMAC shall repurchase the Cimm's Loans at the Repurchase Price it would have paid had it repurchased the Loans on that date, plus interest from that date, plus the costs to MGT, if any, of holding the Loans subsequent to that date.
Section one of the Purchase Agreement defines "Repurchase Price" to mean "an amount, with respect to each Loan, equal to (i) the Individual Loan Price of such Loan, increased by (ii) all accrued but unpaid interest and other fees and amounts due and payable with respect to such Loan by the Borrower on the date of such repurchase by the Seller and resale by the Purchaser and (iii) decreased by all principal paid on the Loan by the Borrower between the related Closing Date and the date that the Purchaser requests in writing that the seller repurchase the Loan."
CONCLUSION
For the reasons set forth above, the Court grants MGT's motion for summary judgment as to BVFMAC's liability for breach of the warranty contained in section 6 (xvi) of the Purchase Agreement and for breach of its resulting section 8(a) obligation to repurchase the Loans. MGT's motion for summary judgment as to BVFMAC's liability for breach of section 6 (xiv) and section 6 (xliv) is denied. BVFMAC's motion for summary judgment is granted with respect to the allegations that it breached section 6 (xiv) by failing to obtain proof of property tax payments and section 6(xliv) by committing errors in loan origination, but otherwise denied.