The opinion of the court was delivered by: MARVIN E. ASPEN
MARVIN E. ASPEN, District Judge:
This contract dispute arises out of an equipment leasing agreement between plaintiff IFC Credit Corporation ("IFC") and defendant Nuovo Pasta Co., Inc. ("Nuovo Pasta"). The agreement, which provided that IFC would lease pasta-making equipment to Nuovo Pasta, was contingent on Nuovo Pasta obtaining $ 300,000 of additional financing. IFC now seeks partial summary judgment on the issue of whether Nuovo Pasta waived this financing contingency. For the reasons set forth below, we grant IFC's motion.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Moreover, we must view the record and all possible inferences in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). Summary judgment should be denied "where there is reason to believe that the better course would be to proceed to a full trial." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).
In 1991, Nuovo Pasta was a new company and Kenneth Finochiaro ("Finochiaro") served as its president. In order to acquire pasta making equipment, Finochiaro negotiated an equipment leasing arrangement with IFC. On September 26, 1991, the two companies signed a Confidential Lease Agreement ("Agreement"), which provided that IFC, or its assigns, would lease equipment to Nuovo Pasta for $ 1,200,000. Under the Agreement, Nuovo Pasta agreed to pay IFC a $ 40,145 commitment fee. In a letter dated October 3, 1991, the parties further agreed that IFC would return the fee, minus $ 500 for expenses, if Nuovo Pasta was unable to come up with $ 300,000 of additional financing by November 15. Both parties understood the additional financing to be a condition precedent to closing the Agreement.
Throughout the negotiations, IFC dealt with Finochiaro. However, on October 30, Nuovo Pasta's Board of Directors signed and sent a letter to IFC stating that "efforts to raise additional equity capital are under way and we anticipate completing the final terms in the next several days," adding that if they were unable to raise the funds, they would appreciate it if IFC would send the refunded fee to the company from whom they borrowed the fee money. The letter contained a "cc" to Finochiaro.
Two days later, on November 1, Finochiaro sent IFC a letter indicating that
Nuovo Pasta Co., Inc. has received the following financial commitments in excess of $ 300,000. According to our agreements we ask you to conclude our lease in the amount of $ 1,200,000.
Finochiaro signed the letter, remarking that he "looked forward to signing the final documents later this month."
Attached to the letter were five documents representing commitment letters from potential investors. However, all of the letters contained conditions making the loans or investments tentative. Some loans were predicated upon the shipment of the pasta equipment and the initiation of renovation at the factory site, others depended upon events entirely out of the control of Nuovo Pasta.
On November 15, Nuovo Pasta's vice president, George Lauritsen, sent a letter to IFC informing the leasing company that Nuovo Pasta had failed to obtain the necessary $ 300,000 financing and requesting that IFC return $ 39,645 (the commitment fee, minus $ 500) to Nuovo Pasta's lender. IFC did not return the fee, but ...