Bi-Tech North, Inc. v. Lockheed Martin Corp.

129 F. App'x 9
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 10, 2005
DocketNo. 04-1391
StatusPublished
Cited by1 cases

This text of 129 F. App'x 9 (Bi-Tech North, Inc. v. Lockheed Martin Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bi-Tech North, Inc. v. Lockheed Martin Corp., 129 F. App'x 9 (4th Cir. 2005).

Opinion

PER CURIAM:

In this diversity contract and tort action, we affirm the district court’s grant of summary judgment to Lockheed Martin Corp. and denial of partial summary judgment to Bi-Tech North, Inc. (“BTN”).

I.

In March 1998, William Sherlock, the principal in Bi-Tech, Inc. (“BTI”), a machine shop, began negotiations with a unit of Lockheed to buy from Lockheed the Manchester Machine Center (“MMC”).

In late December 1999 and early January 2000, the parties executed documents that provided, inter alia, that BTN, a New Hampshire corporation created for the purpose of the purchase, would buy MMC from Lockheed for $500,000 — a $100,000 down payment, with the remaining $400,000 to be paid in equal monthly installments for one year, pursuant to the terms of a promissory note (the “Note”). BTN would' pay $310,000 to lease the building housing MMC for one year, with [11]*11options to renew at a lower rate or to purchase for $2.1 million. BTN would continue to employ designated MMC employees at (at least) the same pay and with (at least) the same benefits. Also, Lockheed would have a priority security interest in the assets transferred to BTN, which BTN could not further encumber; and BTI would guarantee BTN’s payment of the Note and performance of all obligations under the agreement. While the agreement became effective December 23, 1999, the deal was not to close until January 3, 2000.

A few provisions of the agreement are important here:

1. Article IX lists “Conditions to Closing.” Section 9.03(a) conditions Lockheed’s obligations on BTI’s and BTN’s performance of its obligations under the agreement and conditioned Lockheed’s performance on the truth and correctness (in all material respects) of BTI’s and BTN’s representations and warranties contained in the transaction documents. Section 9.03(c)(iii) conditions Lockheed’s obligations on BTN having provided to Lockheed “reasonable assurances” that BTN had in place “sufficient financial resources to satisfy the Promissory Note and to satisfy and perform its other obligations under the Transaction Documents.”
. 2. Article IV lists the “Representations and Warranties” of BTN and BTI. Section 4.01(e) represents and warrants that each was “capable of performing, in all material respects, each agreement, covenant and obligation required by the Transaction Documents” and that at the time of the transactions, BTN would have “the resources and assets necessary and sufficient to conduct the [business of MMC] and to perform its obligations and Contracts that constitute Transferred Assets.” Section 4.01(h) represents and warrants that BTN had “available to it cash, marketable securities or other investments, or presently available sources of credit, to enable it to consummate the Contemplated Transactions and to pay the Purchase Price.”
3. Article XI governs termination. Section 11.01(b) controls termination if the deal has not closed by January 15, 2000, and allows immediate termination by either Lockheed or BTN at any time prior to closing. The sole exception to this prerogative is if the closing is not consummated by January 15 because of the terminating party’s breach of any of the representations or warranties or its failure to perform the covenants or agreements contained in the Transaction Documents. Section 11.01(d) is an alternative termination provision, not dependent on the failure of the deal to close by January 15. It allows termination because of a breach of any representation, warranty, covenant, or agreement under the Transaction Documents, if the effect of the breach “would cause the closing conditions of the terminating party not to be capable of being satisfied,” and if the breach is not cured by the breaching party within 15 days of receiving written notice of the breach from the terminating party.

The parties agree that Maryland law governs the contract.

BTN began to install new phones and signs at MMC, obtained insurance coverage, and secured signed acceptances of employment from the designated MMC [12]*12employees. Sherlock also contacted Joseph Franchetti about a possible loan of $200,000 or more for working capital. The terms of the proposed loan were, however, onerous: the interest rate on the loan would be 20%; Franchetti would be entitled to 10% of net profit after taxes and would become a board member with a monthly retainer.

The Lockheed/BTN deal did not close on January 3, 2000, and on January 5, Lockheed’s in-house counsel sent a handwritten note to Sherlock listing open action items, including “evidence of financial capability.” On January 7, 2000, BTN’s attorney forwarded to Lockheed’s outside counsel materials addressing some of the open action items. Included was a letter from GE Capital to Sherlock stating that it was “in the process of completing [the] review of [Sherlock’s] request for a $750,000 working capital line.” GE Capital asked for a copy of the executed purchase agreement, and “Verification from Lockheed management as to the invoicing and payment terms.” It farther proposed a January 10 meeting. The meeting did not occur.

On January 12, Sherlock’s consultant calculated that BTN would require $218,000 in working capital to operate MMC for the first month. At a meeting with Sherlock on January 12, Lockheed said that a $600,000 letter of credit would satisfy BTN’s obligations under § 9.03(c)(iii) of the contract. Sherlock indicated that he would look into the issue and intended to talk to his attorney about whether he needed to post additional funds.

By January 14, Sherlock had tendered $50,000 of the $100,000 down payment. On January 14, Lockheed sent Sherlock a letter informing him that, pursuant to the terms of the agreement, Lockheed would exercise its termination rights unless Sherlock had provided, by January 15, the remaining $50,000 of the down payment and “written evidence that [BTN] has access to a minimum of $600,000” via a signed letter of credit. Sherlock’s attorney replied that the requirement of proof of access to $600,000 “appears to be a breach of the transaction agreements,” but that Sherlock was ready, willing, and able to forward by wire transfer the remaining balance of the downpayment. On January 15, Sherlock wrote to Lockheed offering to contact banks to get financing and offering as collateral his vacation home, which he valued at $1.6 million.1 Lockheed terminated the agreement by letter dated January 18, 2000.

Lockheed later sold MMC to another purchaser, PGM. BTN points to evidence of phone calls between Lockheed and PGM during early January 2000 as suggesting that Lockheed was negotiating a deal with PGM before the termination of the BTN deal.

II.

In January 2001, BTN, BTI, and Sherlock filed suit against Lockheed in the United States District Court for the District of Maryland, asserting breach of contract and various tort claims. Lockheed filed counterclaims against BTN, BTI, and Sherlock. In May 2001, Sherlock filed a Suggestion of Bankruptcy, and, in August 2001, the district court ordered the case to go forward except as to the counterclaim against Sherlock.2

[13]*13By February 2004, BTN’s remaining claims against Lockheed were for breach of contract, detrimental reliance, breach of confidential duty, fraud, conspiracy to defraud, and tortious interference with prospective business relations.

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Bluebook (online)
129 F. App'x 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bi-tech-north-inc-v-lockheed-martin-corp-ca4-2005.