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Barclays Business Credit, Inc. v. Inter Urban Broadcasting, Inc.

United States District Court for the Southern District of New York

November 25, 1991, Decided ; November 27, 1991, Filed

90 Civ. 2272 (MJL)

Opinion

OPINION AND ORDER

MARY JOHNSON LOWE, D.J.

Before this Court is the motion of the plaintiff Barclays Business Credit, ("Barclays), pursuant to Fed. R. Civ. P. 56, for summary judgment against defendants Inter Urban Broadcasting of Cincinnati, Inc., Inter Urban Broadcasting of St. Louis, Inc., and Inter Urban Broadcasting of New Orleans Partnership (collectively "The Inter Urban Group") on Count I of its complaint for breach of a Loan Agreement and Note and Count II of its complaint for breach of a Forbearance Agreement and on Count III of its complaint against defendants Thomas P. Lewis and James J. Hutchinson, Jr., for breach of their unconditional guarantees of the ban Agreement, Note and Forbearance Agreement. 1 For the reasons set forth below, the motion is granted.

 [*2]  BACKGROUND

The Inter Urban Group owns and operates radio stations in New Orleans, St. Louis and Cincinnati. Barclays Business Credit Inc., is a asset-based financing subsidiary of Barclays American Bank. In March of 1988 the Inter Urban Group began to search for a new banking relationship because their primary lender, Firstmark Financial Corporation of Indianapolis Indiana, was unable to fulfill their funding needs. Hutchinson Affidavit para. 3. By the spring of 1988 the Inter Urban Group was involved in negotiations with both Barclays and National Westminster Bank ("NatWest"). Hutchinson Affidavit para. 4.

The negotiations with Barclays, which were conducted through one of Barclays' Vice Presidents, Mr. Morton, produced three letters of intent, dated, July 1, July 25, and August 5, 1988 respectively. See letters attached to Hutchinson Affidavit as Exhibit A. The letters reflected the Inter Urban Group's discussion with Mr. Morton regarding the general terms and conditions of the loan agreement. Hutchinson Affidavit at para. 5. On August 10, 1988 Mr. Hutchinson indicated his approval of the terms contained in the final letter of intent.

In mid-August Mr. Morton notified the Inter [*3]  Urban Group that Barclays' senior commitment committee had approved the loan commitment subject to a few additional considerations. The additional conditions to closing included the requirement that the Inter Urban Group obtain a $ 500,000 irrevocable standby letter of credit and certified financial statements for the year ending December 31, 1987. The Inter Urban Group alleges that despite their concern that they would have difficulty obtaining the required letter of credit, they agreed to the additional conditions in reliance on Barclays' reputation and leadership as a commercial lender and the belief of Barclays' Vice President, Morton, that they would be able to obtain the required letter of credit. Hutchinson Affidavit at para. 9. After the Inter Urban Group received the August 12, 1988 commitment letter containing the additional terms, they attempted to secure a letter of credit, but were unsuccessful for some time. Hutchinson Affidavit para. 11. The Inter Urban Group became concerned that they would not be able to obtain the letter of credit prior to the loan closing date. They allege that when they communicated their concern to Mr. Morton, he suggested that Barclays would  [*4]  allow the loan to close prior to the acquisition of a letter of credit, but that the Inter Urban Group would have to secure the letter of Credit within 90 days of closing. The Inter Urban Group agreed to the terms of the final Amended Commitment letter of August 29, 1988 on September 8, 1988, including GLSA section 3.2, which provided that Barclays receive a lien on all of the assets of the Inter Urban Group. 2

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1991 U.S. Dist. LEXIS 17473 *; 1991 WL 258751

BARCLAYS BUSINESS CREDIT, INC., Plaintiff, -against- INTER URBAN BROADCASTING OF CINCINNATI, INC., INTER URBAN BROADCASTING OF ST. LOUIS, INC., INTER URBAN BROADCASTING OF NEW ORLEANS PARTNERSHIP, THOMAS P. LEWIS, AND JAMES J. HUTCHINSON, JR., Defendants.

CORE TERMS

Forbearance, negotiated, default, unconscionable, lender, mutual, contractual, financing, borrower, notice

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, General Overview, Materiality of Facts, Opposing Materials, Burdens of Proof, Motions for Summary Judgment, Commercial Law (UCC), Negotiable Instruments (Article 3), Enforcement, Contracts Law, Types of Commercial Transactions, Negotiable Instruments, Defenses, Unconscionability, Sales (Article 2), Contract Provisions, Contract Terms, Unconscionable Terms, Business & Corporate Compliance, Contracts Law, Types of Contracts, Express Contracts, General Provisions (Article 1), Definitions & Interpretation, General Provisions, Application & Construction, Implied Covenant of Good Faith, Contract Interpretation, Good Faith & Fair Dealing, Labor & Employment Law, Employment Contracts, Conditions & Terms, Contract Conditions & Provisions, Conditions Precedent, Contract Formation, Mistake, Mutual Mistake, Ambiguities & Mistakes, Insurance Law, Mistakes, Offers, Irrevocable Offers, Reformation, Executory Contracts, Contract Modifications, Consideration, Promissory Estoppel, Breach, Excuse & Repudiation, Acceptance of Goods, Excuse From Performance, Standards of Performance, Impossibility of Performance