RoundPoint Mortgage Servicing Corporation v. Freedom Mortgage Corporation

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ROUNDPOINT MORTGAGE ) SERVICING CORPORATION, a ) Delaware corporation, and RPFG ) HOLDINGS, INC., a Florida ) corporation, ) ) Plaintiffs, ) ) v. ) C.A. No. 2020-0161-SG ) FREEDOM MORTGAGE ) CORPORATION, a New Jersey ) corporation, and FMC/RADIANT ) MERGER SUB INC., a Delaware ) corporation ) ) Defendants. )

MEMORANDUM OPINION

Date Submitted: June 17, 2020 Date Decided: July 22, 2020

Kevin R. Shannon, Christopher N. Kelly, and Daniel M. Rusk, of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; OF COUNSEL: Andrew W. Stern, Jon W. Muenz, and Charlotte K. Newell, of SIDLEY AUSTIN LLP, New York, New York, Attorneys for Plaintiffs and Counterclaim Defendants RoundPoint Mortgage Servicing Corporation and RPFG Holdings, Inc.

Rudolf Koch, Kevin M. Gallagher, and Kevin M. Regan, of RICHARDS, LAYTON & FINGER P.A., Wilmington, Delaware; OF COUNSEL: Edward L. Powers, Jeffrey L. Friesen, and Florence M. Craig, of ZUCKERMAN GORE BRANDEIS & CROSSMAN, LLP, New York, New York, Attorneys for Defendants and Counterclaim Plaintiffs Freedom Mortgage Corporation and FMC/Radiant Merger Sub Inc.

GLASSCOCK, Vice Chancellor Before me is a limited issue of contract construction, in way of a merger

agreement. The merger consideration here is, in my experience, unusual. The buyer

is obligated to pay book value plus a premium (minus a fixed amount). The issue

before me concerns a provision in the merger agreement contemplating that, during

the period between signing and closing, the controlling stockholder of the target

would extend credit to the target; as a condition to closing the target, the parties

agreed, “shall have repaid” any such credit “outstanding” to its controlling

stockholder.

Here, the controlling stockholder made substantial loans to the target, forgave

all but $1 million, and the target attempted to proceed to closing. The parties

disagree about the application of the contractual language to these facts. The

Plaintiffs here, the target and its corporate grandparent (the owner of the controlling

stockholder), point out that only $1 million remains “outstanding” and that the target

is ready to make that repayment and close. The Defendants (the acquirer and merger

sub) point out that over $150 million of credit owed to the controlling stockholder

has been outstanding, and was not repaid, but forgiven. This makes a difference in

the purchase price, because the forgiveness increases book value and the buyer must

pay the premium on such book value at closing.

The Plaintiffs seek a declaratory judgment of their rights under the merger

agreement, and specific performance. The Defendants have counterclaimed, raising

1 contractual defenses including but not limited to the dispute just described, and

invoking the implied covenant in the latter dispute as well. I bifurcated the matter

and held a trial on two issues: Does the closing condition in the merger agreement

described above exclude retiring debt by forgiveness? And if not, does the implied

covenant serve to provide that term? I find the answer to both is in the negative, for

the reasons below.

I. BACKGROUND

This Action involves the purchase of RoundPoint Mortgage Servicing

Corporation by Freedom Mortgage Corporation (the “Merger”). The Merger was

agreed to via an agreement and plan of merger executed on May 23, 2019 (the

“Merger Agreement”).

The facts in this Memorandum Opinion reflect my findings based on the

parties’ briefing, 149 documentary exhibits, and trial held on June 17, 2020. This

Memorandum Opinion resolves only the Plaintiffs’ claim for a declaratory judgment

under Section 7.02(f) of the Merger Agreement and the Defendants’ third

counterclaim alleging breach of the implied covenant of good faith and fair dealing.

My findings herein are without prejudice to the resolution of the remaining claims

to be heard at the second phase of trial.1

1 Citations to the Joint Trial Exhibits are cited as “JX #”. Citations to the Declarations submitted in this matter, which are included as JX 104, JX 105, JX 106, JX 107 and JX 108, are referenced

2 A. The Parties

Plaintiff and Counterclaim Defendant RoundPoint Mortgage Servicing

Corporation (“RoundPoint”) is a Delaware corporation engaged in the business of

originating, refinancing, and servicing residential mortgage loans.2 RoundPoint

acquires Mortgage Servicing Rights (“MSRs”) and originates, refinances, and

services residential mortgage loans; MSRs are RoundPoint’s primary assets.3

Plaintiff and Counterclaim Defendant RPFG Holdings, Inc. (“Holdings”) is a

Florida corporation.4 Holdings owns 100% of the membership interests of non-party

RoundPoint Financial Group, LLC (“RPFG”).5 RPFG itself owns approximately

79% of the voting power of RoundPoint and over 99% of RoundPoint’s common

stock.6

Defendant and Counterclaim Plaintiff Freedom Mortgage Corporation

(“Freedom”) is a New Jersey Corporation and one of the nation’s largest mortgage

loan originators and servicers, with approximately 8,000 employees and contractors

in more than 75 locations in the United States.7

herein as “[Name] Decl.”. I cite to the Plaintiffs’ Verified Complaint (“Compl.”) where the Plaintiffs’ allegations are not in dispute. 2 Compl., ¶ 15. 3 Zeidman Decl., ¶ 3. 4 Compl., ¶ 16. 5 Id.; Zeidman Decl., ¶ 2. 6 Compl., ¶ 16; Zeidman Decl., ¶ 2. 7 King Decl., ¶ 1; Compl., ¶ 17.

3 Defendant and Counterclaim Plaintiff FMC/Radiant Merger Sub Inc.

(“Merger Sub”) is a Delaware corporation wholly owned by Freedom, and was

incorporated for the purpose of effectuating the Merger.8

B. The Merger Agreement and the RPFG Facility

On May 23, 2019, RoundPoint, Holdings (for limited purposes), Freedom,

and Merger Sub agreed to the Merger Agreement, which sets forth an acquisition of

RoundPoint by Freedom.9 The consideration to be paid in cash by Freedom was not

fixed, but was to be calculated according to a book-value-based formula.10 The

consideration is determined by taking the book value—i.e. the net asset value—of

RoundPoint as of the last day of the month immediately preceding the month in

which closing occurs, multiplying that amount by 107.5%, and subtracting

$4,150,000 from the product.11 The practical implication of this formula is that the

consideration to be paid by Freedom in the Merger was uncertain when the Merger

Agreement was signed, and that any fluctuation will be attributable to changes in

RoundPoint’s net asset value.

Before entering into the Merger Agreement, RoundPoint had an existing

revolving credit facility with Bank of America Merrill Lynch (“BAML,” and the

8 Compl., ¶ 18. 9 JX 29 (“Merger Agreement”). 10 Id. § 2.01. 11 Id. §§ 2.01, 10.02 (“Book Value of the Company”).

4 revolving credit facility the “BAML Loan”).12 The BAML Loan is secured by

RoundPoint’s MSR assets.13 MSRs fluctuate in value depending on a number of

factors, namely, market interest rates.14 The mechanics of the BAML Loan were

such that RoundPoint was subject to margin calls if the value of the MSR collateral

declined.15 In negotiating the Merger Agreement, Freedom expressed a preference

that the BAML Loan remain in place after the signing of the Merger Agreement.16

RoundPoint was concerned that if the BAML Loan was subject to margin calls

between signing and closing—because RoundPoint’s MSRs declined in value—

restrictions in the Merger Agreement, such as restrictions on selling assets, could

restrain RoundPoint from taking steps it would ordinarily take to pay margin calls

under the BAML Loan.17

The parties’ solution to RoundPoint’s concerns about meeting BAML’s

margin calls was to permit RoundPoint to borrow funds from RPFG—its controlling

stockholder—pursuant to a revolving credit facility.18 No such facility was in place

before the parties entered into the Merger Agreement.19 Though the facility was not

entered into before the Merger Agreement was signed, it was provided for in the

12 Zeidman Decl., ¶ 5; King Decl., ¶ 3; Reisman Decl., ¶ 7. 13 Zeidman Decl., ¶ 5; Reisman Decl., ¶ 8. 14 Reisman Decl., ¶ 8. 15 Id. 16 Id. ¶ 7; Mallol Decl., ¶ 5. 17 Reisman Decl., ¶ 8. 18 Id. ¶ 9. 19 King Decl., ¶ 6.

5 Merger Agreement as the “RPFG Facility.”20 The Merger Agreement states that the

RPFG Facility “means the Resolving Unsecured Loan Facility to be entered into

between [RoundPoint], as borrower, and [RPFG], as Lender, substantially on terms

as set forth on Schedule 5.01(b)(iv).”21

Schedule 5.01(b)(iv) contains a summary of principal terms and conditions

for the RPFG Facility in the form of a term sheet.22 The maximum borrowing

amount in Schedule 5.01(b)(iv) is $40,000,000.23 Schedule 5.01(b)(iv) states that

the affirmative covenants and negative covenants of the RPFG Facility were to be

“[u]sual and customary for transactions of this type.”24 The proceeds of the RPFG

Facility may only be used to meet margin calls under the BAML Loan.25

Section 7.02 of the Merger Agreement states in pertinent part:

The obligation of [Freedom] and [Merger Sub] to effect the Merger are further subject to the satisfaction or waiver on or before the Closing Date of each of the following conditions . . . (f) RPFG Facility. If the RPFG Facility has been put in place prior to Closing, [RoundPoint] shall have obtained any and all necessary consents to repay (in accordance with all of its contractual obligations and restrictions, and otherwise), and shall have repaid, all amounts outstanding under the RPFG Facility.26

20 Reisman Decl., ¶ 9; Merger Agreement, § 10.02 (“RPFG Facility”). 21 Merger Agreement, § 10.02 (“RPFG Facility”). 22 JX 30, Schedule 5.01(b)(iv). 23 Id. 24 Id. 25 Id. 26 Merger Agreement, § 7.02 (emphasis added).

6 As noted, the parties executed the Merger Agreement on May 23, 2019.27

RoundPoint faced a margin call shortly thereafter, and, consequently, on May 31,

2019 RoundPoint and RPFG entered into the RPFG Facility.28

C. RPFG Purports to Forgive Amounts Under the RPFG Facility

In June 2019, Freedom approved an increase of the RPFG Facility from $40

million to $100 million.29 The increase was presumably necessary due to further

declines in value of RoundPoint’s MSRs, leading to margin calls under the BAML

Loan. Freedom’s approval was necessary to increase the amount of the RPFG

Facility due to restrictions on RoundPoint’s incurrence of indebtedness under

Section 5.01(b)(iv) of the Merger Agreement.30 Thereafter, in August 2019,

Freedom approved a further increase of the RPFG Facility, and RoundPoint and

RPFG increased the size of the RPFG Facility to $123 million in January 2020.31

After the RPFG Facility was increased to $123 million, RPFG forgave $50

million under the RPFG Facility in January 2020, taking the balance from $123

million to $73 million at the end of January 2020. 32 In February 2020, RoundPoint

borrowed an additional $50 million under the RPFG Facility to satisfy and/or avoid

27 Merger Agreement. 28 JX 36; Reisman Decl., ¶ 15. 29 Zeidman Decl., ¶ 7; JX 38, at RP_000082897. 30 See Merger Agreement, § 5.01(b)(iv). 31 JX 54, at RP_000085000; Zeidman Decl., ¶ 9; King Decl., ¶ 33(a). 32 Reisman Decl., ¶ 23.

7 margin calls.33 RPFG then forgave $122 million, leaving RoundPoint owing $1

million under the RPFG Facility at the end of February 2020.34 Additional loans

were extended in early March 2020, though the amounts are unclear from the

record.35 In February 2020, RoundPoint communicated that it was able to repay all

amounts then outstanding under the RPFG Facility—that is, $1 million—and sought

confirmation from Freedom that Freedom would close the transaction on March 16,

2020.36 On March 2, 2020, Freedom refused to confirm that it would close the

transaction, and contended that all conditions to closing had not been met.37

D. Procedural History

RoundPoint and Holdings filed their Verified Complaint (the “Complaint”)

on March 4, 2020. The Complaint seeks a declaratory judgment and specific

performance of the Merger Agreement.38 Specifically, the Complaint seeks a

declaration that Section 7.02(f) of the Merger Agreement will be satisfied by

forgiveness by RPFG and repayment by RoundPoint of any outstanding amount

(after such forgiveness) under the RPFG Facility.39 Freedom and Merger Sub filed

their Answer and Verified Counterclaims on March 24, 2020.40 The Defendants

33 Id. ¶ 26. 34 Id. 35 See Id. ¶ 29. 36 Id. ¶ 25. 37 Id. ¶ 29; JX 90. 38 Compl., ¶¶ 78–92. 39 Id. ¶¶ 78–84. 40 Defs.’ Answ. and Verified Countercls., D.I. 28 (“Answ. and Countercls.”).

8 made three counterclaims: the first for a declaratory judgment that they have no

obligation to close the Merger, the second for breach of contract, and the third for

breach of the implied covenant of good faith and fair dealing.41

The parties sought to commence motion practice, and I agreed to hear the

Plaintiffs’ motion for partial summary judgment—on their declaratory judgment

claim regarding Section 7.02(f)—and the Plaintiffs’ motion to dismiss the

Defendants’ implied covenant counterclaim. I heard Oral Argument on these

motions on April 22, 2020. At the conclusion of Oral Argument, I denied the

Plaintiffs’ motion to dismiss the implied covenant counterclaim.42 I subsequently

ruled that ambiguities exist in Section 7.02(f) of the Merger Agreement, and denied

the Plaintiffs’ motion for partial summary judgment on their declaratory judgment

claim.43 I then instructed the parties to engage in discovery and presentation

regarding only those issues which I had considered at Oral Argument—that is, the

declaratory judgment claim under Section 7.02(f) of the Merger Agreement and the

Defendants’ implied covenant counterclaim.44 I held a one day trial on June 17,

2020 regarding those claims and considered the matter submitted for decision on that

date.

41 Id. ¶¶ 89–108. 42 Oral Arg. Tr., D.I. 80, at 65:15–65:20. 43 Oral. Arg. Tr., D.I. 81, at 6:20–7:2. 44 Letter, D.I. 59.

9 II. ANALYSIS

A. Section 7.02(f)

The Plaintiffs ask for a declaratory judgment that Section 7.02(f) of the

Merger Agreement will be satisfied by repayment by RoundPoint of any amount

outstanding (after giving effect to forgiveness by RPFG) under the RPFG Facility.45

Section 7.02(f) is replicated in full, supra, but the parties’ dispute on the Plaintiffs’

claim ultimately boils down to eleven words: “and shall have repaid, all amounts

outstanding under the RPFG Facility.”46 The Plaintiffs contend that to fulfill the

closing condition RoundPoint must repay, at or prior to closing, all outstanding

amounts then owed to RPFG, i.e. leaving no balance owed, and that Section 7.02(f)

does not prohibit forgiveness of debt under the RPFG Facility. Conversely, the

Defendants argue that RoundPoint and Freedom intended Section 7.02(f) to require

repayment in full of all amounts borrowed under the RPFG Facility and outstanding

at any time, and not to permit such loans to be forgiven by RPFG.

The Plaintiffs previously moved for summary judgment on their declaratory

judgment claim.47 Summary judgment on a contract claim is appropriate only if the

language is clear and unambiguous.48 I denied the Plaintiffs’ motion for partial

45 Compl., ¶ 84. 46 Merger Agreement, § 7.02(f). 47 Pls.’ Mot. for Partial Summ. J., D.I. 35. 48 United Rentals, Inc. v. RAM Hldgs., Inc., 937 A.2d 810, 830 (Del. Ch. 2007).

10 summary judgment because I found Section 7.02(f) to be ambiguous.49 “Contracts

are ambiguous ‘when the provisions in controversy are reasonably or fairly

susceptible of different interpretations or may have two or more different

meanings.’”50 At the summary judgment stage I found both the Plaintiffs’ and the

Defendants’ interpretation of Section 7.02(f) reasonable.

Though both interpretations are reasonable, the Plaintiffs’ interpretation of

Section 7.02(f) is certainly the more intuitive reading. Delaware law mandates that

“when interpreting a contract, the role of a court is to effectuate the parties’ intent.

In doing so, we are constrained by a combination of the parties’ words and the plain

meaning of those words where no special meaning is intended.”51 The combination

of words used in the relevant clause of Section 7.02(f), considering their plain

meaning, does not explicitly comment on or restrict in any way amounts no longer

“outstanding.” Accordingly, in the Plaintiffs’ view of this language, RoundPoint

must have repaid only the “outstanding” balance of its loans to fulfill the closing

condition, not some other amount, be it the full, original amount of the loans, or

some amount outstanding at some other point in time. Forgiven debt is no longer

outstanding.52 The words “shall have repaid,” per the Plaintiffs, are applicable only

49 Oral. Arg. Tr., D.I. 81, at 6:20–7:2. 50 United Rentals, 937 A.2d at 830 (quoting Rhone–Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)). 51 AT&T Corp. v. Lillis, 953 A.2d 241, 252 (Del. 2008). 52 Forgive, Merriam Webster’s Online Dictionary, https://www.merriam-webster.com/ dictionary/forgive (“to grant relief from payment of”).

11 to the amounts outstanding immediately prior to closing, and do not operate on any

amounts no longer outstanding, without regard to why such amounts are no longer

outstanding. The intent expressed through such a reading of Section 7.02(f) is

simply that no amounts may remain outstanding on the RPFG Facility in order for

the Plaintiffs to fulfill the closing condition. If the outstanding amount is $0,

RoundPoint is in compliance.

The Defendants’ reading, by contrast, has a temporal element, that is, that

“shall have repaid” (rather than “shall repay”) refers not only to any amounts

outstanding immediately prior to closing, but to any amounts that were ever

outstanding under the RPFG Facility. But to accept the Defendants’ reading would

be to read the clause as containing a cryptic protection against the retirement of debt

under the RPFG Facility by any means other than repayment. The plain language of

the section is not naturally read this way because, as noted, the language is silent on

how amounts are to be deemed “outstanding.” If the intent was to ensure that debt

be repaid and not forgiven, that intent is expressed poorly. Though I have found the

Defendants’ proffered interpretation not unreasonable for purposes of summary

judgement, it is certainly the less intuitive reading.

12 Where, such as here, the contract is ambiguous, the court may consider

extrinsic evidence to resolve the ambiguity.53 The court “will apply the parol

evidence rule and consider all admissible evidence relating to the objective

circumstances surrounding the creation of the contract.”54 Such extrinsic evidence

can include overt statements and acts of the contracting parties, the business context,

prior dealings between the parties, and business custom and usage in the industry.55

“After examining the relevant extrinsic evidence, a court may conclude that, given

the extrinsic evidence, only one meaning is objectively reasonable in the

circumstances of the negotiation.”56

The parties have submitted extrinsic evidence, but it does not aid my

understanding as to whether the parties intended Section 7.02(f) to restrict

forgiveness of RPFG Facility debt. Remarkably, the parties agree that forgiveness

of RPFG Facility debt was never discussed during the negotiations of the Merger

Agreement.57 Though the parties disputed whether RPFG could forgive RPFG

Facility debt after the Merger Agreement was signed, one of the “primary tenets” of

53 Salamone v. Gorman, 106 A.3d 354, 374 (Del. 2014) (citing In re IBP, Inc. S’holders Litig., 789 A.2d 14, 55 (Del. Ch. 2001)). 54 Id. (quoting In re Mobilactive Media, LLC, 2013 WL 297950, at *15 (Del. Ch. Jan. 25, 2013)). 55 Id. (quoting Mobilactive, 2013 WL 297950, at *15). 56 Id. (quoting Mobilactive, 2013 WL 297950, at *15). 57 Defs.’ Corrected Pretrial Br., D.I. 90, at 40 (“[F]orgiveness of the RPFG Facility debt was never discussed at all during the negotiations.” (emphasis in original)); Pls.’ Answering Pre-Trial Br., D.I. 95, at 16 (“Freedom also relies heavily upon the fact that forgiveness of the RPFG Facility was not explicitly discussed before execution of the Merger Agreement. The parties agree on that point.” (footnotes omitted)).

13 the parol evidence rule is that “relevant extrinsic evidence is that which reveals the

parties’ intent at the time they entered into the contract. In this respect, backward-

looking evidence gathered after the time of contracting is not usually helpful.”58

Consequently, though the parties dutifully collected and presented extrinsic evidence

for trial, there is no evidence extrinsic to the Merger Agreement read as a whole

pertinent to whether the parties intended to regulate or restrict RPFG Facility debt

forgiveness in Section 7.02(f). The Defendants point to the fact that the peculiar

consideration here—book value plus a premium—will allow the Plaintiffs to reap a

windfall by retiring the RPFG Facility debt by forgiveness, but fail to point to any

evidence that the parties recognized this and intended to avoid it through the

language of Section 7.02(f).

Though the extrinsic evidence does not help resolve Section 7.02(f)’s

ambiguity, other provisions of the Merger Agreement regarding forgiveness of debt

are probative, and fatal to the Defendants’ proffered interpretation of the provision.

Section 3.21(d) of the Merger Agreement is a representation and warranty of

RoundPoint regarding mortgage loans that “[n]o payment of principal or interest on

the mortgage loan has been forgiven, suspended, or rescheduled.”59 Section

58 Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1233 n.11 (Del. 1997), (citing Demetree v. Commonwealth Tr. Co., 1996 WL 494910 (Del. Ch. Aug. 27, 1996)) (emphasis in original). 59 Merger Agreement, § 3.21(d) (emphasis added).

14 3.06(b)(vi) of the Merger Agreement is a representation and warranty that none of

RoundPoint or its subsidiaries has “cancelled, compromised, waived or released any

right or claim or any Indebtedness owed to it, in any instance involving more than

$100,000.”60 Clearly, where the parties sought to impose restrictions on the

forgiveness or modification of RoundPoint’s debt obligations they knew how to do

so.61 Consequently, because Section 7.02(f), as most naturally read, does not impose

a restriction on debt forgiveness, and because the Merger Agreement shows that

where the parties sought to impose such restrictions they knew how to do so, I find

that the parties did not intend Section 7.02(f) to prohibit forgiveness of debt under

the RPFG Facility.62

Before moving onto the Defendants’ implied covenant claim, it is important

to note that my construction of Section 7.02(f) of the Merger Agreement is limited

60 Id. § 3.06(b)(vi) (emphasis added). 61 See Roseton OL, LLC v. Dynegy Hldgs. Inc., 2011 WL 3275965, at *10 (Del. Ch. July 29, 2011) (“This demonstrates that when the parties intended to make a particular restriction applicable to both DHI and its subsidiaries, they knew how to do so and readily could accomplish that objective.”); ITG Brands, LLC v. Reynolds Am., Inc., 2017 WL 5903355, at *11 (Del. Ch. Nov. 30, 2017) (“There, the parties placed a modifier (‘as of the Closing’) next to a verb (‘will assume’) to define when that action would occur, demonstrating that they knew how to place a temporal modifier on an action when they wished to do so.”); El Paso Nat. Gas Co. v. Amoco Prod. Co., 1992 WL 43925, at *7 (Del. Ch. Mar. 4, 1992) (“Clearly, when the negotiators meant to address most-favored-rates protection, they knew how to do so directly.”). 62 I note that the record reflects that the Merger Agreement was negotiated heavily by sophisticated entities with the assistance of counsel, and consequently the doctrine of contra proferentem has no application here. Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 2014 WL 2919333, at *26 n.192 (Del. Ch. June 25, 2014), aff’d, 116 A.3d 1244 (Del. 2015) (“As an initial matter, I do not consider it appropriate to apply the doctrine of contra proferentem to this dispute because the License Agreement and the consent both were negotiated heavily by sophisticated entities with the assistance of counsel.”).

15 to that clause only. While I have found that Section 7.02(f) does not prohibit

forgiveness of RPFG Facility debt, this does not mean that such a restriction cannot

be found elsewhere in the Merger Agreement, outside Section 7.02(f); that issue

remains.63 Nor does it mean that all conditions to closing the Merger have been met.

I have read and considered the contract as a whole as it bears on the language in

question. Because this matter was bifurcated,64 however, I have not considered here

(nor have the parties yet litigated) whether the Merger Agreement as a whole permits

RoundPoint to meet all conditions to closing considering RPFG’s forgiveness of

debt under the RPFG Facility. All I can say at this point is that the obligation

expressed in the language of Section 7.02(f) itself will be fulfilled if RoundPoint

repays any amount outstanding under the RPFG Facility, thus bringing indebtedness

under the RPFG Facility to $0.

B. The Implied Covenant Counterclaim

The Defendants have counterclaimed that implicit in RoundPoint’s obligation

to repay all amounts outstanding under the RPFG Facility pursuant to Section 7.02(f)

is the covenant of good faith and fair dealing not to engage in what the Defendants

term the “debt forgiveness scheme.”65 The covenant of good faith and fair dealing

63 For example, the Defendants assert that the Plaintiffs have used forgiveness, then reborrowing, to borrow in the aggregate in excess of the contractual debt limits on the RPFG Facility. I do not address that issue here. 64 I bifurcated the matter in the belief that efficiency would result; sadly, that belief has proved deluded. 65 Answ. and Countercls., ¶ 102.

16 inheres in all contracts, but the doctrine does not provide a court with the authority

to “rewrite or supply omitted provisions to a written contract.”66 The implied

covenant is “used to infer contract terms to handle developments of contractual gaps

that the asserting party pleads neither party anticipated,” and applies “when the party

asserting the implied covenant proves that the other party has acted arbitrarily or

unreasonably, thereby frustrating the fruits of the bargain that the asserting party

reasonably expected. The reasonable expectations of the contracting parties are

assessed at the time of contracting.”67

To prevail on their implied covenant claim, the Defendants must prove “a

specific implied contractual obligation, a breach of that obligation by the [Plaintiffs],

and resulting damage to the [Defendants].”68 The Defendants must show “from what

was expressly agreed upon that the parties who negotiated the express terms of the

contract would have agreed to proscribe the act later complained of had they thought

to negotiate with respect to that matter.”69

The implied covenant will imply “only those terms that the parties would have

agreed to during their original negotiations if they had thought to address them.”70

66 Fitzgerald v. Cantor, 1998 WL 842316, at *1 (Del. Ch. Nov. 10, 1998). 67 Buckeye Partners, L.P. v. GT USA Wilmington, LLC, 2020 WL 2551916, at *7 (Del. Ch. May 20, 2020) (quoting Dieckman v. Regency GP, 155 A.3d 358, 367 (Del. 2017)). 68 Id. at *8 (quoting Fitzgerald, 1998 WL 842316, at *1). 69 Id. (quoting Katz v. Oak Indus. Inc., 508 A.2d 873, 880 (Del. Ch. 1986)) (internal alterations omitted). 70 Id. (quoting Gerber v. Enter. Prods. Hldgs., LLC, 67 A.3d 400, 418 (Del. 2013)).

17 Thus, the Defendants must show it is clear that the parties would have agreed to

prohibit forgiveness of RPFG Facility debt.71 That is, that the parties would not have

agreed to some other contract term. The Defendants have the burden to show that

RPFG’s debt forgiveness constituted a breach of the implied covenant.72 It is vital

to the freedom of contract that the implied covenant be so limited. The value of

contracts is based on certainty and enforceability. The promiscuous employment of

equity to amend contracts to make them “fair” or “reasonable” would be fatal to

those qualities.

The Plaintiffs concede that some unfairness results from the forgiveness of

RPFG Facility debt under the Merger Agreement. That is because the purchase price

is calculated by taking the book value of RoundPoint and multiplying it by 107.5%

(and subtracting a fixed amount from the product). RPFG is both RoundPoint’s

controlling stockholder and is owed the RPFG Facility debt obligation. Where debt

is forgiven by RPFG it increases the book value—i.e. net asset value—of

RoundPoint. Every dollar of debt that RoundPoint is no longer obligated to repay

increases the book value of RoundPoint by one dollar. If RoundPoint was to use a

dollar of assets to extinguish the debt, the impact on book value is neutral—a dollar

71 See Katz, 508 A.2d at 880. 72 See Caldera Properties-Lewes/Rehoboth VII, LLC v. Ridings Dev., LLC, 2009 WL 2231716, at *29 (Del. Super. May 29, 2009), aff’d sub nom. Ridings Dev., LLC v. Caldera Properties - Lewes/Rehoboth VII, LLC, 998 A.2d 851 (Del. 2010).

18 of debt disappears but so does a dollar of assets. But where only a dollar of debt

disappears due to forgiveness, book value rises by a dollar because there is no

offsetting drop in assets. Thus, RoundPoint’s controlling stockholder (RPFG)

benefits (almost) 7.5 cents per dollar of debt it forgives.73 Further, although Freedom

upon closing would receive an additional dollar of assets for every dollar that is

forgiven—because that dollar need not be used to extinguish RPFG Facility debt—

each such dollar requires Freedom to come up with an additional dollar (plus

premium) in cash at closing in order to meet its obligation to close, which is not a

neutral result. But these facts, to my mind, do not imply that the parties therefore

clearly would have provided a “no forgiveness” term; it only suggests that the

parties, had they considered the issue, would likely have addressed it in some form.

One plausible and less restrictive way to address the issue, for instance, would

simply have been to agree to excuse the Defendants from payment of the 7.5%

premium on amounts forgiven.

The Plaintiffs dispute that they would have agreed to an outright prohibition

on RPFG forgiving RPFG Facility debt, had the matter been considered. Consistent

with the problematic outcome described above, the Plaintiffs suggest that

RoundPoint may have agreed to forgo the premium on forgiven amounts—this, I

73 As noted, supra, RPFG owns approximately 79% of the voting power of RoundPoint and over 99% of RoundPoint’s common stock.

19 note, they have offered to do in this litigation.74 The Defendants, unsurprisingly,

argue otherwise. The Defendants specifically cite the Merger Agreement’s

restrictions on indebtedness, and certain terms of the RPFG Facility term sheet in

the Merger Agreement. These are not helpful, I find, to demonstrate that the parties

clearly would have prohibited forgiveness of RPFG Facility debt. As the parties did

not even discuss such forgiveness, it is unsurprising that no useful evidence exists in

this regard. Nonetheless, one can posit conceivable business reasons (other than a

bad-faith “forgiveness scheme”) for RoundPoint to have preferred flexibility in this

regard. RoundPoint’s Chairman did state under oath: “I believe Tavistock

[RoundPoint’s ultimate parent] would have refused [a prohibition on RPFG Facility

forgiveness].”75

“The implied covenant is well-suited to imply contractual terms that are so

obvious that the drafter would not have needed to include the conditions as express

terms in the agreement.”76 But it is not obvious what terms the parties would have

agreed to regarding forgiveness of RPFG Facility debt, and no evidence exists from

which to conclude that RoundPoint clearly would have agreed on an outright

74 Pls.’ Answering Pre-Trial Br., D.I. 95, at 33–34 (“[I]f RoundPoint were in fact seeking to collect the premium on forgiven amounts, it would be because it is a function of the variable purchase price formula to which Freedom willingly agreed. But RoundPoint could not be clearer that it is not seeking it.” (italics in original)). 75 Reisman Decl., ¶ 12. 76 Bandera Master Fund LP v. Boardwalk Pipeline Partners, LP, 2019 WL 4927053, at *22 (Del. Ch. Oct. 7, 2019) (quoting Dieckman v. Regency GP LP, 155 A.3d 358, 361 (Del. 2017)) (internal alterations and ellipses omitted).

20 prohibition on forgiveness. A prohibition on forgiveness would have obligated

RoundPoint to repay all amounts borrowed from RPFG under the RPFG Facility. I

note that the very reason for the creation of the RPFG Facility—restrictions on

RoundPoint’s ability to sell assets to meet margin calls—suggests that RoundPoint

would have been likewise restricted from selling assets to retire RPFG Facility debt.

But there is nothing in the record to suggest how a prohibition on forgiveness would

have otherwise required a deviation from RoundPoint’s business practices before the

Merger Agreement, and thus no suggestion of how amenable RoundPoint would

have been to a prohibition of RPFG Facility debt forgiveness.

In order to employ the implied covenant to impose an unwritten term in a

contract, I must find that the parties, had they engaged on the issue, would clearly

have imposed that term.77 I have no doubt that the Defendants would have been

willing to agree to modifications of the Merger Agreement to address the issue,

77 Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005). It is the burden of a party who invokes the implied covenant to show that “it is clear from what was expressly agreed upon that the parties who negotiated the express terms of the contract would have agreed to proscribe the act later complained of as a breach of the implied covenant of good faith—had they thought to negotiate with respect to that matter.” Gerber v. Enter. Prod. Hldgs., LLC, 67 A.3d 400, 418 (Del. 2013), overruled in part on other grounds by Winshall v. Viacom Int’l, Inc., 76 A.3d 808 (Del. 2013) (quoting ASB Allegiance Real Estate Fund v. Scion Breckenridge Managing Member, LLC, 50 A.3d 434, 440 (Del. Ch. 2012) (quoting Katz v. Oak Indus. Inc., 508 A.2d 873, 880 (Del. Ch. 1986))) (emphasis added); but see Murfey v. WHC Ventures, LLC, 2020 WL 3957837, at *8 (Del. July 13, 2020) (citing Schwartzberg v. CRITEF Assocs. Ltd. P’ship, 685 A.2d 365, 376 (Del. Ch. 1996)) (“[U]nder Delaware law, an obligation may be inferred from a contract when, given the terms of the express contract made and the circumstance of the contracting process, it is more likely than not, that if the parties had thought to address the subject, they would have agreed to create the obligation that is under consideration by the court ex post facto.”).

21 including prohibiting forgiveness of RPFG Facility debt, because that was in their

interest considering the premium on forgiven amounts. But that is not the inquiry.

To grant relief on the implied covenant claim I would need to conclude it is clear

that RoundPoint would have likewise agreed to such a term—the Defendants have

not met their burden to show that RoundPoint and Freedom “would have agreed to

proscribe [forgiveness] had they thought to negotiate with respect to that matter.”78

Consequently, the Defendants’ implied covenant claim must fail.

III. CONCLUSION

The Plaintiffs are entitled to a declaratory judgment on the limited issues

before me. The Defendants are not entitled to relief on their implied covenant

counterclaim. This matter should proceed to the second phase of trial.

78 Allen v. El Paso Pipeline GP Co., 113 A.3d 167, 184 (Del. Ch. 2014) (quoting Gerber, 67 A.3d at 418).