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National Bedding Co., L.L.C. v. American Realty Capital

September 27, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


This action arises out of a Purchase and Sale Agreement ("PSA") between Plaintiff National Bedding Company, L.L.C. ("NBC") and Defendant American Realty Capital, L.L.C ("ARC"). Under the PSA, NBC agreed to complete the construction of its headquarters in Hoffman Estates, Illinois, and then sell the building to ARC, which would then lease it back to NBC. On December 14, 2009, NBC filed a two-count amended complaint, alleging that ARC defaulted under the terms of the PSA and seeking (i) a declaratory judgment stating that NBC is entitled to receive the balance of funds held in an earnest money deposit as liquidated damages for ARC's default under the PSA; and (ii) damages for ARC's alleged breach of the purchase and sale agreement that include $416,500.00 in funds that ARC withdrew from the escrow fund, along with interest and attorney's fees. NBC has moved for summary judgment [35] on both counts. For the following reasons, the Court grants NBC's motion for summary judgment [35].

I. Background

The Court takes the relevant facts primarily from the parties' Local Rule ("L.R.") 56.1 statements:*fn1 NBC's L.R. 56.1(a)(3) Statement of Undisputed Material Facts ("Pl. SOF"), ARC's Response to Plaintiff's L.R. 56.1(a)(3) Statement of Undisputed Material Facts ("Def. Resp. Pl. SOF") and ARC's Statement of Facts Requiring Denial of Summary Judgment ("Def. SOF"), and NBC's Response to Defendant's L.R. 56.1(a)(3) Statement (Pl. Resp. Def. SOF).

A. The Purchase and Sale Agreement

In 2006, NBC began constructing a new international headquarters (the "Building") that that initially was scheduled for completion no later than December 19, 2007. Pl. SOF ¶ 25. On February 16, 2007, NBC and ARC entered into the PSA, which created a sale and lease-back transaction in which NBC agreed to complete construction of the Building and then sell it, along with related property interests, to ARC, who would then lease the Building back to NBC. Id. ¶ 8. The parties agreed to a purchase price of $28,000,000.00 and arranged for ARC to deposit earnest money totaling $1,000,000.00 of the purchase price into escrow (the "Escrow"). Id. ¶ 9. The balance of the purchase price was due at closing, but the PSA allowed ARC to withdraw $29,750.00 a month (beginning on April 17, 2007) from the Escrow to secure financing for the full purchase price. Id. ¶ 10. ARC exercised this provision and withdrew approximately $416,500.00.*fn2

Section 3.1 of the PSA, which required ARC to make an earnest money deposit, states that ARC's deposit is non-refundable after the initial due-diligence period (up to March 19, 2007) "unless the Transaction fails to close due solely to (a) default by [NBC] under this Agreement, as provided in Section 11.2 hereof, or (b) termination of this Agreement pursuant to Section 9.3.4, Section 10.2, and Article 12 hereof." Def. SOF ¶ 1 (emphasis in original). Section 9.3.4 and Article 12 are not at issue here;*fn3 however, the parties do contest the applicability of § 10.2. Section 10.2 provides that

Seller shall use good faith efforts to cause Substantial Completion to occur no later than the Target Completion Date. If Substantial Completion has not occurred by the Target Completion Date * * * Buyer may at any time thereafter require Seller to close on seven (7) days' notice to Seller. If Closing occurs prior to Substantial Completion, Seller shall (i) after Closing complete the work necessary to achieve Substantial Completion, (ii) provide Buyer and its leader a guarantee to complete such work, and (iii) indemnify and hold Buyer and its lender harmless from any liability that arises out of Seller performing the work necessary to complete the Improvements. As an additional security for the performance of such work, at Closing, Seller shall deposit into escrow with the Buyer's lender, to be held and disbursed by it post-Closing in accordance with the terms hereinafter set forth, pursuant to an agreement to be executed at Closing in form reasonably satisfactory to Seller, Buyer and Buyer's lender, and amount equal to 125% of the cost of completing any items that remain uncompleted as of the Closing Date (which cost shall be subject to the reasonable approval of Buyer and its lender).

Pl. SOF, Ex. 2. Thus, pursuant to the terms of the PSA, NBC was required to "use good faith efforts" to substantially complete the Building by December 1, 2007.*fn4 See also Pl. SOF ¶ 14, 23. In the event that the Building was not substantially complete by December 1, the PSA allowed ARC, "at any time thereafter," to require NBC to close on seven day's notice. Pl. SOF, Ex. 2. Alternatively, ARC was entitled to wait until Substantial Completion occurred and then close within ten days. Pl. SOF ¶ 11-12.

Section 11.2 sets out the conditions and consequences of any default by NBC as follows: If, at the closing, (i) Seller is in default of any of its obligations hereunder, or (ii) any of Seller's representations or warranties are untrue in any material respect, or (iii) the Closing otherwise fails to occur by reason of Seller's failure or refusal to perform its obligations hereunder in a prompt and timely manner, then Buyer may elect, as its sole and exclusive remedy, to (a) terminate this Agreement in its entirety by written notice to the Seller, promptly after which the Deposit shall be returned to Buyer, Seller shall reimburse Buyer for its out-of-pocket costs incurred in connection with the transaction contemplated hereby not to exceed $100,000, and Seller shall pay to Buyer an amount equal to that portion of the Deposit that was withdrawn pursuant to Section 3.1 above and used to pay the forward rate lock fee, or (b) waive the condition and proceed to close the Transaction, or (c) seek specific performance of this Agreement by the Seller. As a condition precedent to exercise by Buyer of any right Buyer may have to bring an action for specific performance hereunder, Buyer must commence such an action for specific performance within sixty (60) days after the occurrence of Seller's default. * * * The provisions of this Section 11.2 are not intended to limit Buyer's rights or remedies with respect to ay claim of fraud by Seller.

Pl. SOF, Ex. 2 (emphasis added). The PSA also stipulated that "[i]n any action between [ARC and NBC] as a result of failure to perform or a default under this Agreement, the prevailing party shall be entitled to recover * * * attorney's fees and disbursements and court costs included in such action." Pl. SOF, Ex. 2; Def. Resp. Pl. SOF ¶ 19. The parties agreed that Illinois law would govern any dispute concerning the PSA and that they would waive their right to a jury trial. Pl. SOF, Ex. 2 at §§ 14.5, 14.7.

B. The Delay and Termination of the PSA

The specific controversy between the parties originated in construction delays that pushed the completion date well beyond December 2007. The parties agree that there were two primary reasons for the delay: First, a subcontractor failed to deliver the exterior glass to the construction site until March 2008, nine months after it had been scheduled to arrive. Pl. SOF ¶ 33-34. Second, weather hampered efforts to complete construction, although the impact of the weather was exacerbated by the absence of a glass exterior, which made it harder to complete internal work on schedule. Id. ¶ 35. The dispute between the parties relates mainly to NBC's actions in the face of these delays and the extent to which each party fulfilled its other obligations under the PSA. ARC asserts that NBC's failure to accelerate the delivery of the exterior glass or to affirmatively seek alternative sources fell short of a "good faith effort to cause Substantial Completion" before the target date of December 1, 2007, as the PSA requires. Def. Resp. Pl. SOF ¶ 38. Meanwhile, NBC asserts that it was in regular contact with the glass company (Elston Glass) to urge immediate delivery of the delayed components and that it went to extra lengths to ensure that interior construction could continue through the winter months, despite the missing exterior. Pl. SOF ¶ 34-35. Furthermore, NBC asserts that its employees considered the possibility of ordering glass from a new subcontractor but concluded that doing so would only further delay the construction of the Building. Id. ¶ 37. ARC does not dispute that NBC went to great lengths to keep ARC appraised of the construction status by forwarding numerous reports and photographs showing the process at the work site. Id. ¶ 39.

In November 2007, it became clear that the Building would not be substantially completed by December 2007, which had several immediate consequences. NBC was forced to exercise an extension on the lease for its existing headquarters, resulting in an increase in monthly rent. Id. ¶ 40. NBC also had to pay a $250,000 penalty to Sears, its original lessor, for failure to obtain a certificate of occupancy by December 31, 2007. Id. As a result of the delay, ARC initially decided to exercise its rights under § 10.2 of the PSA and to close the transaction on December 21, 2007, prior to Substantial Completion; however, ARC withdrew this demand on December 3, 2007, and notified NBC that instead ...

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