Karmely v. Wertheimer

12-3781-cv
Karmely v. Wertheimer

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2013

Heard: June 26, 2013 Decided: December 9, 2013

Docket No. 12-3781-cv

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SHAHAB KARMELY, SK GREENWICH LLC,
Plaintiffs-Appellants,

v.

EITAN WERTHEIMER, EZRA DAGMI, W-D GROUP (2006)
LP, W-D GROUP NY1, LLC, JOHN DOES, 4-20, 443
GREENWICH LLC, 443 GREENWICH PARTNERS LLC,
W. FAMILY 1 LTD.,
Defendants-Appellees,

ANGLO IRISH BANK CORPORATION LIMITED,
Defendant.
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Before: NEWMAN, WINTER, and DRONEY, Circuit Judges.

Appeal from the August 22, 2012, judgment of the United

States District Court for the Southern District of New York

(Robert P. Patterson, District Judge), granting a motion to

dismiss a complaint challenging foreclosure of collateral for

nonpayment of a loan. The Appellants contend that ambiguities

in the relevant documents preclude granting a motion to dismiss.

Judgment vacated, and case remanded for further proceedings.

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 David A. Pellegrino, Phillips Nizer
LLP, New York, NY (Chryssa V.
Valletta, Carl D. LeSueur, Phillips
Nizer LLP, New York, NY; John J.
Giardino, NYT Law Group, New York,
NY, on the brief), for Appellants.

Stephen R. DiPrima, New York, NY
(Bradley R. Wilson, Wachtell,
Lipton, Rosen & Katz, New York, NY,
on the brief), for Appellees.

JON O. NEWMAN, Circuit Judge.

This appeal presents the recurring issue of whether relevant

documents are ambiguous, precluding their interpretation on a

motion to dismiss, but the issue arises in the unusual context

of an agreement for a loan from a lender to himself and his

partner. A minor though intriguing issue, rarely if ever

encountered in a judicial opinion, is whether the character “i”

identifying a subparagraph in one of the documents is a lower

case letter “i” or a lower case version of a Roman numeral “I,”

sometimes referred to as a romanette.1

1
The term “romanette” was discussed during the oral argument
of two cases in the Supreme Court in 2008, see
http://www.volokh.com/posts/1226638091.shtml (Nov. 18, 2008);
http://legaltimes.typepad.com/blt/2008/12/romanette-
revisited.html (Dec. 18, 2008), and has occasionally been
mentioned in opinions of federal courts, see Gourche v. Holder,
663 F.3d 882, 887 (7th Cir. 2011); United States v. Goodpasture,
595 F.3d 670, 671 (7th Cir. 2010); In re 15375 Memorial Corp. v.
Bepco, L.P., 589 F.3d 605, 613 n.6 (3d Cir. 2009), although none
of these opinions had to distinguish between a lower case letter
-2-
 Plaintiffs-Appellants Shahab Karmely and SK Greenwich LLC

appeal from the August 21, 2012, order of the United States

District Court for the Southern District of New York (Robert P.

Patterson, Jr., District Judge), granting the motion to dismiss

by Defendants-Appellees Eitan Wertheimer, Ezra Dagmi, 443

Greenwich LLC, 443 Greenwich Partners, LLC, W. Family 1 Ltd., W-D

Group (2006) LP, W-D Group NY1, LLC, and John Does 4-10.

We conclude that in two respects the documents are

ambiguous, precluding dismissal of the Amended Complaint, and

we therefore remand for further proceedings.

Background

The following facts are taken from the Amended Complaint and

assumed to be true for purposes of the motion to dismiss.

People and entities. Appellant Karmely is an experienced

New York City real estate developer. Appellee Eitan Wertheimer

is an Israeli citizen, and Appellee Ezra Dagmi is a dual citizen

of Israel and the United Kingdom. Dagmi and Werthheimer are

close friends and partners in real estate ventures. Dagmi and

“i" and a lower case version of a Roman numeral “I.” The first
reported use of the term in a court opinion occurred in 1999. See
Oneok, Inc. v. Southern Union Co., No. 99-CV-345-H(M), 1999 WL
34861197, at *6 (N.D. Okla. May 11, 1999). The opinions do not
capitalize the word, except United States ex rel. Adkins v.
Hardy, No. 11 C 5507, 2013 WL 361765, at *1 (N.D. Ill. Jan. 30,
2013), which mentions petitioner’s girlfriend, Romanette Norwood.
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his family have had a close personal relationship with Karmely

and his family for more than 35 years. Dagmi has repeatedly

referred to this relationship as a “family relationship of

trust.”

The entities involved are:

- Appellant SK Greenwich, LLC (“SK Greenwich”) a Delaware
Limited Liability Company, of which Karmely is the sole
member;

- Appellee W-D Group (2006) LP (“W-D Lender”), an Israeli
limited partnership, controlled by Wertheimer and Dagmi;

- Appellee W-D Group NY1 LLC (“W-D Partner”), a Delaware
Limited Liability Company, of which W-D Lender is the sole
member;

- Appellee 443 Greenwich Partners LLC (“443 Partners” or the
“Company”), a Delaware Limited Liability Company, of which
SK Greenwich and W-D Partner are the sole members;

- Appellee 443 Greenwich LLC (“Greenwich Owner”), a Delaware
Limited Liability Company, of which 443 Partners is the sole
member;

- Anglo Irish Bank Corporation PLC (“Anglo Irish Bank”).

In 2005, Wertheimer and Dagmi approached Karmely about

developing a multi-billion dollar real estate portfolio. Karmely

agreed to act as a developer for this venture, and instead of

requiring a customary development fee, agreed to accept a

percentage of the profits on each development as compensation for

his services. In September 2006 SK Greenwich agreed with W-D

Partner to form the Company to purchase and develop a building

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at 443-53 Greenwich Street, New York, NY (the “Property”). SK

Greenwich, i.e., Karmely, contributed approximately $5 million

and W-D Partner, i.e., Wertheimer and Dagmi, contributed

approximately $20 million of capital to the Company, for which

they received 20 percent and 80 percent ownership interests,

respectively, of the Company.

In September 2006, the Company created Greenwich Owner,

which purchased the Property for $113 million. To fund the

purchase and development of the Property, two loans were

obtained. The Company obtained an $85 million mortgage loan from

Anglo Irish Bank Corporation PLC (the “Anglo Senior Loan”), with

a maturity date of October 1, 2008. SK Greenwich and W-D Partner

obtained a $20 million mezzanine loan (the “Mezzanine Loan”) from

W-D Lender, with a maturity date of October 1, 2009.2

The documents. Several documents are relevant to this

litigation. We only identify them at this point and set forth

their relevant terms in the paragraphs that follow:

- an Operating Agreement to govern the operation and
management of the Company, signed, as MEMBER, by W-D Partner
and SK Greenwich;

2
A mezzanine loan is similar to a second mortgage, except
that it is secured by the stock of the company that owns the real
estate, rather than the real estate itself, which secures the
primary loan.
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 - a Mezzanine Loan Agreement, signed, as LENDER, by W-D
Lender and, as BORROWER, by W-D Partner and SK Greenwich;

- a Promissory Note, signed, as BORROWER, by W-D Partner and
SK Greenwich, in favor of W-D Lender;

- a Pledge and Security Agreement (“Pledge Agreement”),
signed, as PLEDGOR, by W-D Partner and SK Greenwich, and,
as Lender, by W-D Lender.

- a Subordination and Intercreditor Agreement (Intercreditor
Agreement”), signed, as SENIOR LENDER, by Anglo Irish Bank
and, as MEZZANINE LENDER, by W-D Lender.

All five documents are dated September 7, 2006.

The Mezzanine Loan was senior to the equity investments of

SK Greenwich and W-D Partner in the Company, but subordinate to

the Anglo Senior Loan. The Mezzanine Loan Agreement gave W-D

Lender, upon an “Event of Default,” the remedies provided by the

Loan Documents, which included the Pledge Agreement. The Pledge

Agreement gave W-D Lender the right to foreclose on the interests

of either SK Greenwich or W-D Lender in the Company (hence in the

Property) upon an “Event of Default.” The Mezzanine Loan

Agreement provided several definitions of an “Event of Default.”

A major issue on this appeal, discussed in detail below, is which

of two of these definitions applied to nonpayment of the

Mezzanine Loan. One definition identified nonpayment of the

Promissory Note as an Event of Default only if there was

Available Net Cash Flow.

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 The Promissory Note, evidencing the Mezzanine Loan, stated

that it would mature on October 1, 2009. It was secured by 100

percent of the ownership interests of W-D Partner and SK

Greenwich in the Company, i.e., their shares in the Company,

which owned the Property through Greenwich Owner.

The Pledge and Security Agreement obligated SK Greenwich and

W-D Partner to “pay or satisfy all of the Obligations” including

the full amount of the Promissory Note.

The Intercreditor Agreement recited the agreement of Anglo

Irish Bank to lend $85 million to Greenwich Owner. Paragraph

4(d) of the Intercreditor Agreement provided:

Until all of Borrower’s [i.e., the Company’s]
obligations under the Anglo Senior Loan Documents have
been paid and performed in full, no payment whatsoever
shall be made to Mezzanine Lender [i.e., W-D Lender]
by or on behalf of Borrower [i.e., the Company],
Mezzanine Borrower [i.e., W-D Partner and SK
Greenwich], or any Guarantor for or on account of any
amount due under the Mezzanine Loan Documents.

Despite the prohibition on payment of the Mezzanine loan prior

to the full payment of the Anglo Senior Loan, the Intercreditor

Agreement also provided that “upon the occurrence of an event of

default under the Mezzanine Loan Documents,” W-D Lender could

commence an “Enforcement Action” to “enforce the Mezzanine Pledge

or conduct a sale of the Ownership Interests pursuant to the

Mezzanine Pledge.” Id. ¶ 7(b). The Intercreditor Agreement also

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stated, “This agreement is for the sole benefit of the Anglo

Senior Lender, Mezzanine Lender, and their respective successors

and permitted assigns.” Id. ¶ 22.

Extension of the Anglo Senior Loan. In the summer of 2008,

a few months before the Anglo Senior Loan was to mature, the

Company was preparing to spend more than $500,000 developing the

Property. The Company still needed to remove tenants, develop

architectural and design plans, obtain proper building and zoning

permits, and secure construction financing. In anticipation of

these steps, Karmely and Dagmi, as the Company, negotiated an

extension of the Anglo Senior Loan from a maturity date of

October 1, 2008, to December 31, 2009 — a date ninety days after

the stated maturity of the Mezzanine Loan. There was no

discussion, however, about extending the Mezzanine Loan maturity

date past October 1, 2009. In exchange for the extension, the

Company had to pre-pay an interest and carry reserve of several

million dollars, provide $20 million in personal security for the

loan, and give a $10 million personal completion guaranty.

Relying upon Dagmi’s alleged statements that the W-D entities

would fund the project to completion, SK Greenwich posted $4.3

million in cash, representing its share of the required capital

contribution. In a meeting on December 9, 2008, Wertheimer

reaffirmed Dagmi’s commitment to fund the project to completion.

-8-
 Throughout 2009, SK Greenwich continued its efforts to

redevelop the Property by meeting with designers, architects, and

contractors. The Company again requested an extension of the

Anglo Senior Loan. The Anglo Irish Bank agreed, but the

extension was conditioned upon the Company’s paying $1.2 million

as an interest and carry reserve. SK Greenwich paid

approximately $250,000 of that amount. In July 2010, Anglo Irish

Bank again extended the maturity date of the loan, this time to

December 31, 2010.

Default and sale of SK Greenwich’s interests. On September

30, 2010, W-D Lender sent a letter to SK Greenwich and W-D

Partner, stating that the principal and interest on the Mezzanine

Loan, due on October 1, 2009, had not been paid and that an Event

of Default had occurred under the Mezzanine Loan Agreement and

the Pledge Agreement. On October 4, 2010, W-D Lender sent

another letter to SK Greenwich, stating that W-D Lender intended

to sell SK Greenwich’s 20 percent interest in the Company at a

public auction on October 20, 2010.

On October 12, 2010, SK Greenwich filed a complaint in New

York State Supreme Court, seeking a declaratory judgment that SK

Greenwich was not in default, and that no Event of Default could

occur until (1) payments to W-D Lender were permitted under the

Anglo Senior Loan documents, and (2) there was Available Net Cash

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Flow under the Operating Agreement. SK Greenwich also sought an

order barring W-D Lender from selling SK Greenwich’s interest in

the Company. Appellees removed the case to the Southern

District of New York. The Court denied the Appellants’ motion

for a temporary restraining order and a preliminary injunction.

After the District Court’s order, W-D Lender auctioned SK

Greenwich’s interest in the Company. The only participant in the

auction was W-D Lender’s representative, who successfully bid

$100,000 for SK Greenwich’s interest in the Company.

On January 4, 2011, Anglo Irish Bank declared the Company in

default for failure to pay the Anglo Senior Loan on its extended

maturity date of December 31, 2010. Shortly thereafter, a

Wertheimer family company purchased the Anglo Senior Loan from

Anglo Irish Bank. The W-D entities eventually sold the property

for $150 million, realizing profits of more than $10 million, and

without providing compensation to SK Greenwich for its capital

contributions or work as an Operating Member.

The Appellants filed an Amended Complaint seeking monetary

damages for (1) breach of the Mezzanine Loan Documents; (2)

tortious interference with contract; (3) breach of the Operating

Agreement; (4) account stated; (5) breach of fiduciary duty; and

(6) promissory estoppel. The essence of their claims was that

the Appellees were not entitled to foreclose on SK Greenwich’s

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interests in the Company, thereby extinguishing SK Greenwich’s

interest in the Property. The Appellees filed a motion to

dismiss under Fed. R. Civ. P. 12(b)(6). The District Court

granted the motion to dismiss in its entirety and dismissed the

Amended Complaint. Karlemy, No. 11 Cv. 541, 2012 WL 3583141

(S.D.N.Y. Aug. 21, 2012). The Court ruled that the language of

the Mezzanine Loan Agreement was unambiguous and that an Event

of Default had occurred within the meaning of subparagraph 3.1(c)

of that Agreement, entitling the Appellees to foreclose on SK

Greenwich’s interest in the Company and the Property.

Discussion

Two aspects of the transaction at issue should be noted at

the outset. First, Karmely, the party complaining of the

foreclosure of its interests, and Dagmi, who, along with his

partner Wertheimer, control the entity that foreclosed on

Karmely’s interests, have been close friends, in a “family

relationship of trust,” for more than 35 years. Second, unlike

a typical loan transaction between a bank and a borrower, the

Mezzanine Loan underlying the foreclosure of Karmely’s interests

was made by a lender to itself and the lender’s partner. The

lender was W-D Lender; the borrowers were SK Greenwich, i.e.,

Karmely, and W-D Partner, acting by W-D Lender, the sole member

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of W-D Partner.3 We do not doubt that an entity can make a loan

to itself and its partner, but the unusual nature of such an

arrangement prompts close scrutiny of the documents purporting

to provide the lender with a right to foreclose on the partner’s

interests for an alleged default on the loan.

I. Availability of a Foreclosure Remedy

The ultimate issue is whether the relevant documents

unambiguously accord W-D Lender a right to foreclose on SK

Greenwich’s 20 percent interest in the Property for failure to

pay the Promissory Note at maturity. W-D Lender did not sue the

Appellants for nonpayment of the Mezzanine Loan, but instead

foreclosed on SK Greenwich’s collateral securing the loan. SK

Greenwich’s pending lawsuit seeks damages for what it contends

was an unauthorized foreclosure.4 Cf. Mellon Bank, N.A. v.

United Bank Corp. of New York, 31 F.3d 113, 115 (2d Cir. 1994)

3
The signature page of the Promissory Note reflected that
W-D Lender, acted as borrower by W-D Group LP, an Israeli limited
partnership, which, in turn, acted by Dagmi, its authorized
signatory, who actually signed the Promissory Note.
4
Although the Appellants make some arguments that they were
not obligated to repay the Mezzanine Loan at maturity, their
essential point, that foreclosure was not authorized, is not
duplicative of any claim not to be liable for payment of the
Loan; having to pay 20 percent of the Mezzanine Loan of $20
million, or possibly even the entire amount, absent contribution
from their partner, would have been far less of a loss to the
Appellants than foreclosure of their 20 percent interest in the
Property, which was later sold for $150 million.
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(neither party disputed that breach had occurred; question was

whether an “Event of Default” had occurred permitting the remedy

of acceleration of a loan).

In considering whether the Appellants’ Amended Complaint was

properly dismissed, we do not decide whether the relevant

documents accord W-D Lender a right to foreclose. Our concern

at this preliminary stage of the litigation is only whether there

is sufficient ambiguity, either in the phrases of any one

document or between conflicting language in any of the documents,

to preclude granting a motion to dismiss the Amended Complaint.

The Promissory Note itself does not contain a foreclosure

remedy in the event of nonpayment of the principal. Its one

reference to an “event of default” is in section 2, which

provides that the failure of the Borrower (SK Greenwich and W-D

Partner) to pay W-D Lender any equity distributions while the

Note remains outstanding is an “event of default.” The Pledge

Agreement and the Mezzanine Loan Agreement both provide

foreclosure remedies upon an “Event of Default.” Subparagraph

I(ii) of Schedule D of the Pledge Agreement includes as an “Event

of Default” failure to make timely payment of any amounts due

under “the Loan.”5 Section 3 of the Mezzanine Agreement includes

5
The Appellants attach significance to the fact that this
provision refers to “the Loan” rather than the Note.
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a more detailed list of eleven items each of which is an “Event

of Default” and some of which are subject to limitations.

We focus on the items in the section 3 list for two reasons.

First, “specific language in a contract will prevail over general

language where there is an inconsistency between two provisions.”

Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 111 (2d

Cir. 2008). As we discuss below, the repayment obligation,

failure of which constitutes an “Event of Default,” is more

restrictive in the Mezzanine Agreement than in the Pledge

Agreement. Second, the Appellees’ notice of default to SK

Greenwich asserted that an Event of Default had occurred under

one of the default provisions of section 3 of the Mezzanine

Agreement, specifically, paragraph 3.1(c).

Section 3.1 of the Mezzanine Agreement contains two

definitions of an “Event of Default,” the choice of which is at

the heart of the current controversy.

Paragraph 3.1(a) provides:

the failure by the Borrower to pay any
installment of principal, interest, or other payments
required under the Note when due, provided however that
at the time such payment is due (i) payments to the
Lender are permitted under the Senior Loan Documents
[referring to the Anglo Irish Loan], and (ii) there is
Available Net Cash Flow or Capital Events Proceeds (as
defined in the Operating Agreement of 443 Partners).
(emphasis in original).

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 Paragraph 3.1(c) provides:

the failure of the Borrower or any other party
to any Loan Document other than this Agreement to
observe or perform any agreement, covenant or
obligation of it contained in such Loan Document, which
failure continues beyond the expiration of any
applicable notice and cure period if one is provided[.]

A principal issue is whether 3.1(a), with its Available Net

Cash Flow limitation on the Borrower’s payment obligation, or

3.1(c), without such a limitation, applies, not to SK Greenwich’s

repayment obligation, but to W-D Lender’s right to foreclose as

a remedy for nonpayment, in other words, whether “an Event of

Default” permitting foreclosure occurred.

The Appellees argue that they were entitled to foreclose by

virtue of the definition of an “Event of Default” in subparagraph

3.1(c) of the Mezzanine Agreement. The Appellants argue that

subparagraph 3.1(a) controls and prevented W-D Lender from

deeming nonpayment an “Event of Default” permitting foreclosure

because net cash flow was not then available.

The District Court rejected the Appellants’ argument for two

reasons. First, Judge Patterson read subparagraph 3.1(a) to

apply only to timely nonpayment of any installment of principal

and not to the obligation to pay the principal amount at

maturity, leaving subparagraph 3.1(c) to apply to nonpayment of

the principal amount at maturity. See Karmely, 2012 WL 3583141,

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at *10-11. He cited the Black’s Law Dictionary definition of

“installment” as “a periodic partial payment of a debt.” Id. at

*10 (citing Black’s Law Dictionary 868 (9th ed. 2009)). Second,

he reasoned that the Appellants’ argument, precluding default for

nonpayment in the absence of available net cash flow, could lead

to the perpetual nonpayment of the principal amount if the

project did not generate revenue, a prospect he thought

sophisticated parties would not have agreed to. Id. at *10.

Although the terms of subparagraph 3.1(c) itself are not

ambiguous, we see several ambiguities in the Mezzanine Loan

Agreement, starting with an initial ambiguity as to whether

subparagraph 3.1(a) or subparagraph 3.1(c) applies to the

determination of whether an “Event of Default” had occurred.

Comparison of the wording of 3.1(a) and 3.1(c) reveals a textual

argument favoring application of 3.1(a), or, at least creating

ambiguity as to whether 3.1(c) applies. 3.1(a) defines an “Event

of Default” as “the failure of the Borrower to pay any

installment of principal, interest, or other payments,” whereas

3.1(c) defines an “Event of Default” as “the failure of the

Borrower to observe or perform any agreement, covenant, or

obligation.” Mezzanine Loan Agreement, ¶¶ 3.1(a), (c) (emphases

added). This variation in the emphasized wording suggests that

3.1(a) applies to all requirements to pay money and 3.1(c)

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applies to requirements to do things other than pay money. The

Loan Documents impose on the Borrower many requirements other

than the payment of money, e.g., to furnish financial data,

Mezzanine Loan Agreement ¶ 2.20, to give the Lender prompt notice

of damage to the property, id. ¶ 2.17, to comply with

Environmental Laws, id. ¶ 2.32(c), and to deliver to the lender

copies of insurance policies, Pledge Agreement ¶ 5(b). Having

separately stated requirements to make payments and to perform

obligations not requiring payments is not unusual. See, e.g.,

Abundance Partners LP v. Quamtel, Inc., 840 F. Supp. 2d 758, 761

(S.D.N.Y. 2012); Greystone Bank v. Skyline Woods Realty, LLC, 817

F. Supp. 2d 57, 60 (N.D.N.Y. 2011); In re Cabrini Medical Center,

No. 09-14398, 2009 WL 7193578, at *9 (Bankr. S.D.N.Y. July 30,

2009).6

Even if a comparison of the wording of 3.1(a) and 3.1(c)

favors making 3.1(a) the applicable definition of an “Event of

Default,” the wording of 3.1(a) itself creates a further

ambiguity as to its applicability. There is an ambiguity in the

phrase of 3.1(a) requiring the Borrowers “to pay any installment

6
We note that subparagraph 7(b) of the Intercreditor
Agreement uses the wording “Monetary and Non-Monetary Defaults,”
indicating the understanding of the parties to that agreement
that there were two distinct categories of defaults, one
concerning monetary defaults.

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of principal, interest, or other payments required under the Note

when due.” One interpretation of that phrase is that

“installment” applies to each of the three items in the series,

i.e., “principal,” “interest,” and “other payments.” A second

interpretation is that “installment” applies only to “principal,”

and does not apply to “interest” or “other payments.” The

District Court ruled that the first interpretation applied and

also ruled that payment of the entire principal of the Mezzanine

Loan would not be payment of an installment. See Karmely, 2012

WL 3583141, at *10. From these rulings, the Court concluded that

3.1(a) was not the relevant provision defining “Event of

Default,” leaving 3.1(c), the provision without the Available Net

Cash Flow limitation, as the applicable provision defining a

default warranting foreclosure. See id. at *7.

Courts encountering the issue whether an adjective modifying

the first word of a series modifies all the words in the series

have yielded varying results.7 Several courts have ruled that

the adjective modifies all the words in the series. See e.g.,

7
The interpretive issue confronting these courts is similar
to, but not identical with, the issue whether a modifying phrase
after a series of words modifies all the words in the series or
only the last word of the series. See Barnhart v. Thomas, 540
U.S. 20, 26 (2003) (explaining the “‘rule of the last
antecedent,’” according to which “a limiting clause or phrase
. . . should ordinarily be read as modifying only the noun or
phrase that it immediately follows”).
-18-
Washington Education Assn. v. National Right to Work Legal

Defense Foundation, Inc., 187 Fed. Appx. 681, 682 (9th Cir.

2006); United States Fidelity & Guaranty Co. v. Fireman’s Fund

Insurance Co., 896 F.2d 200, 203 (6th Cir. 1990). At least one

court has ruled that the adjective modifies only the first word

of the series. See Clarkson v. Town of Florence, 198 F. Supp. 2d

997, 1012 (E.D. Wisc. 2002). Some courts have ruled that the

adjective modifies all the words in the series unless another

adjective modifies a word in the series, see Village of Hobart

v. TCGC, LLC, No. 08-MC-59, 2008 WL 5377911, at *3 (E.D. Wis.

Dec. 23, 2008); Ward General Insurance Services, Inc. v.

Employers Fire Insurance Co., 114 Cal. App. 4th 548, 554 (Cal.

Ct. App. 2003), as when the word “other” modifies the last word

in the series, see Kelley v. Dahle, No. 11-C-600, 2012 WL

3071108, at *5 (E.D. Wis. July 26, 2012), which is true of the

wording of 3.1(a). Encountering the problem in the context of

statutory language, the Ninth Circuit observed that the text

alone was unclear. See United States v. Lacy, 119 F.3d 742, 747

(9th Cir. 1997).8

8
Although all of these cases involved a one-word adjective,
they shed light on the ambiguity of 3.1(a), in which the series
of three items is introduced by the three-word phrase “any
installment of.”
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 In the pending case, the arguments for not reading “an

installment of” to modify “other payments” are that (a) principal

is often repaid in installments, and partial repayments of

principal were explicitly contemplated, see Promissory Note

¶ 1(C); (b) interest was specified to be paid quarterly, see id.

first ¶, and installment payments of quarterly interest payments

would be unusual; and (c) there is nothing in the documents to

suggest that “other payments required under the Note when due”

were to be paid in installments.9

Under the Appellants’ interpretation, limiting “installment”

to partial payments of principal, payment of the entire principal

at maturity would be an example of “other payments required under

the Note when due.” Judge Patterson expressed the view that the

“other payments” phrase applied to any equity distributions that

the Mezzanine Borrower received, distributions that it was

obliged to turn over to the Mezzanine Lender. See Karmely, 2012

9
The ambiguity as to whether “any installment of” applies
only to “principal” or also to “interest” and “other payments”
could easily have been avoided by drafting 3.1(a) to read either:

payment of (a) any installment of principal, (b)
interest, or (c) other obligation,
or

payment of any installment of (a) principal, (b)
interest, or (c) other obligation.

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WL 3583141, at *10 n.10. Even if that is so, the phrase could

also have applied to the Mezzanine Borrower’s obligation to pay

the principal of the Note at maturity.

The Appellants cite a Delaware District Court decision that

lends considerable support to their interpretation of 3.1(a). See

Falco v. Alpha Affiliates, Inc., No. CIV.A.97-494, 1999 WL 222464

(D. Del. Mar. 24, 1999). A lease provided for immediate

termination “[i]n the event of any default of Tenant in paying

any installment of Basic Rental, additional rent or other sums

payable hereunder.” Id. at *1, *7. For other defaults, the

tenant had 30 days to cure. See id. The dispute concerned

failure to pay a security deposit. The Court ruled that all

“monetary defaults” entitled the landlord to immediate

termination and that failure to pay the security deposit was a

monetary default. See id. at *7. The Court implicitly applied

the word “installment” only to the first of the three listed

items. There was no claim that the security deposit was to be

paid in installments. By reading the phrase “other sums payable”

not to be modified by the word “installment,” the Court favored

the reading advanced by the Appellants in our case. The

Appellees here attempt to distinguish Falco by pointing out that

the document in that case was a lease, rather than a loan, but

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they offer no reason why that should make any difference. The

Delaware District Court’s interpretation of similar language

gives the Appellants here at least sufficient support to render

the wording of 3.1(a) ambiguous.

Even if the phrase “other payments” in 3.1(a) is modified by

“installment,” that interpretation would not necessarily carry

the day for the Appellees. Such an interpretation would create

a tension between the unlikelihood that payment of the entire

principal at maturity would be considered an installment and the

comparison of the wording of 3.1(a) and 3.1(c) that makes only

3.1(a) applicable to obligations to pay money. Judge Patterson

resolved that tension by deeming 3.1(c) applicable. That is one

way but not the only plausible way to resolve the ambiguity.

Judge Patterson offered an additional reason for rejecting

the possibility that 3.1(a), with its Available Net Cash Flow

limitation, applied to SK Greenwich’s payment obligation and

consequent exposure to the foreclosure remedy. He reasoned that

sophisticated parties would not agree to a loan agreement that

might never be paid.10 Although that may be true of traditional

10
The Appellants dispute the District Court’s premise that
the Available Net Cash Flow limitation, if applicable to SK
Greenwich’s repayment obligation, could result in perpetual non-
payment. They point out that the Appellees sold the Property,
after foreclosing on SK Greenwich’s interests, for $150 million,
-22-
lender/borrower transactions such as loans by a bank, it is not

necessarily true of a lender and a borrower who, as partners,

both put up capital in a real estate venture. The lender partner

might well have required the loan to be repaid at maturity, but,

at the time the documents were drafted for the parties’ joint

real estate development, it might also have been willing to defer

foreclosure of its partner’s interests as a remedy for nonpayment

until cash flow from their development project was available.

That seems likely, and at least plausible, where the partners

have enjoyed a “family relationship of trust” for more than 35

years. This likelihood is enhanced by the assurance that the

Appellees gave Karmely that they would fund the project to

completion, an assurance on which Karmely relied to advance fresh

funds.11

$45 million more than the total of the Anglo Loan and the
Mezzanine Loan. But the District Court did not say that the cash
flow limitation made repayment impossible, only that it “could
lead to the perpetual non-payment of the principal balance of the
Mezzanine Loan if the project foundered or did not generate
revenue.” Karmely, 2012 WL 3583141, at *10 (emphasis added).
Obviously, fluctuations in the real estate market would determine
whether the project would produce cash flow or could be sold for
more than the total of the loans.
11
We note that the Mezzanine Lender, in its capacity as the
Mezzanine Borrower’s partner, provided in the Operating Agreement
of the Company that Company Loans are repayable only if there is
Available Net Cash Flow. See Operating Agreement § 3.3(b).
-23-
 An Appellate Division decision has noted that “the most

persuasive evidence of the agreed intention of the parties in

those circumstances [where agreements are not clear] is what the

parties did when the circumstances arose.” Webster’s Red Seal

Publications, Inc. v. Gilberton World-Wide Publications, Inc.,

67 A.D.2d 339, 341 (N.Y. App. Div. 1979), aff’d, 53 N.Y.2d 643

(N.Y. 1981). The Appellants contend that after October 9, 2009,

at a time when the Appellees say that an “Event of Default”

permitting foreclosure had occurred, the Appellees continued to

deal with Karmely as an operating member of the partnership,

insisted that he help obtain extensions of the Anglo Senior Loan,

that he make additional capital contributions, and that he extend

his $10 million personal guarantees of the Anglo Senior Loan, and

that these dealings with Karmely continued after the alleged

“Event of Default.”

In view of all of these considerations, we believe that on

appeal of a ruling dismissing the Amended Complaint there is

sufficient ambiguity to require a remand. The ambiguities are

sufficient to let the Appellants present whatever extrinsic

evidence they might offer on remand to resolve these ambiguities

and show, at summary judgment or trial, that the Appellees’

foreclosure remedy (as distinguished from a suit on the

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Promissory Note) was not intended to be used in the absence of

Available Net Cash Flow to pay the Note.12 Such evidence would

include at least the Appellees’ continued dealings with Karmely

after the maturity date of the Note, as alleged in the Amended

Complaint. Discovery might well lead to other relevant evidence.

II. Whether the Intercreditor Agreement Benefits the Appellants

A second issue, distinct from the issue whether the

Available Net Cash Flow limitation of 3.1(a) applies to limit W-D

Lender’s foreclosure remedy, is whether any provisions of the

Intercreditor Agreement benefit the Appellants. That issue turns

initially on whether all of the documents, including the

Intercreditor Agreement, can be looked at as one set of

integrated transactions. The documents were all executed on the

same date, September 7, 2006, and relate to the same real estate

development, and they should be construed together. See TVT

12
It is arguable that if the Available Net Cash Flow
limitation applied to the availability of the Appellee’s
foreclosure remedy, SK Greenwich, as the operating member of the
partnership managing the Property, might have had an incentive
to avoid generating profits, even though it also had an incentive
to maximize profits in which it ultimately expected a 20 percent
share. Because under subparagraph (c)(v) of section 5.1 of the
Operating Agreement, SK Greenwich could receive a share of
profits only after the Mezzanine Loan was repaid, the main
incentive of SK Greenwich would have been to maximize profits
sufficiently to pay off the loan and then maximize profits
further to obtain its 20 percent share. In any event, such
speculation, if relevant, can be explored on remand.
-25-
Records v. Island Def Jam Music Group, 412 F.3d 82, 89 (2d Cir.

2005); This is Me, Inc. v. Taylor, 157 F.3d 139, 143 (2d Cir.

1998). Doing so, however, does not necessarily carry the day for

the Appellants unless language in the Intercreditor Agreement

benefits the Appellants.

The Appellants begin their invocation of the Intercreditor

Agreement by citing section 4.27 of the Mezzanine Loan Agreement,

which states that its terms and those of the Mezzanine Loan “are

expressly made subject to the terms and provisions of the

Intercreditor Agreement,” and section 26 of the Pledge Agreement,

which contains virtually identical language. From the

Intercreditor Agreement itself the Appellants rely primarily on

paragraph 4(d), which provides that until the Anglo Senior Loan

has been paid, “no payment whatsoever shall be made to Mezzanine

Lender by . . . Mezzanine Borrower . . . .”13 The Appellants

argue that this prohibition on payment of the Mezzanine Loan

insulates them from having to pay the Mezzanine Loan at maturity

because the Anglo Senior Loan was then unpaid.

13
Recital E(c) in the Intercreditor Agreement similarly
provides that “unless and until the Anglo Senior Loan is paid and
performed in full, except as otherwise expressly permitted
hereunder, Mezzanine Lender shall have no right to receive any
payment with respect to the Mezzanine Loan or to exercise any
rights and remedies with respect to the Mezzanine Loan.”
-26-
 Judge Patterson rejected the Appellants’ reliance on

paragraph 4(d) for several reasons. First, he interpreted it not

to prohibit payments by the Mezzanine Borrower to the Mezzanine

Lender. See Karmely, 2012 WL 3583141, at *9. Although the

prohibitory language of paragraph 4(d) seems clear, he pointed

out that paragraph 4(d) also contains language obliging the

Mezzanine Borrower to hold in trust and pay to the Anglo Senior

Lender any payments received by the Mezzanine Borrower on the

Mezzanine Loan. See id. From this language he concluded that

“the terms of the Intercreditor Agreement contemplated that W-D

Lender might receive payments from the Borrower, and outlined W-D

Lender’s obligations if such a situation came to pass.”14 Id.

Judge Patterson also ruled that nothing in the Intercreditor

Agreement could benefit the Appellants because they were neither

parties to that Agreement nor third-party beneficiaries of it,

and because, as he interpreted the Agreement, several of its

provisions preserved the obligation of the borrowers of the

Mezzanine Loan to repay the loan at maturity and also preserved

W-D Lender’s enforcement remedies in the event of nonpayment. See

14
The Appellees go so far as to contend that the “function”
of paragraph 4(d) was only to make sure that the Anglo Senior
Loan was repaid before the Mezzanine Lender “was entitled to
retain any payments made to it by the mezzanine borrowers.” Br.
for Appellees at 30 (emphasis in original).
-27-
Karmely, 2012 WL 3583141, at *8-9. He cited paragraphs 4(c),

7(b), “8(h)(i),” and section 22. We consider each of these

provisions separately.

Paragraph 4(c) provides:

[U]ntil all of the obligations of [the Mezzanine
Lender] set forth in the Anglo Senior Loan Documents
have been paid and performed in full:

. . .

(c) Mezzanine Lender shall not exercise any
rights or remedies available to Mezzanine
Lender upon the occurrence of a breach or
default under the Mezzanine Loan Documents .
. . provided, however, that the foregoing
shall not prohibit Mezzanine Lender from
exercising its rights under the Mezzanine
Pledge . . . subject to the limitations set
forth herein . . . .

Paragraph 4(c) is not entirely clear. It first bars the

Mezzanine Lender from exercising its remedies upon default under

the Mezzanine Loan, then permits the Mezzanine Lender to exercise

its rights under the Mezzanine Pledge, never defines “default”

by cross-reference or otherwise, and finally makes the permission

to exercise rights subject to “the limitations set forth herein,”

which might well include paragraph 4(d) if “herein” means the

entire document.

Paragraph 7(b) also does not resolve the controversy. It

appears to contemplate an enforcement action against the

-28-
Appellants as long as five days’ notice is given to the Senior

Lender, but its precise meaning is to specify that, as long as

notice is given, “no consent [of Anglo Irish Bank] shall be

required for Mezzanine Lender to institute or enforce an

Enforcement Action . . . upon the occurrence of an event of

default under the Mezzanine Loan Documents . . . .” That

language, however, does not authorize an enforcement action, nor

override paragraph 4(d). And even if paragraph 7(b) implies the

availability of an Enforcement Action by Mezzanine Lender, such

an action is tied to “an event of default under the Mezzanine

Loan Documents,” which brings into play the ambiguities of the

Mezzanine Agreement, discussed in Part I above.

What Judge Patterson referred to as paragraph or section

“8(h)(i)” is set forth in an unnumbered and unlettered

subparagraph placed within paragraph 8(h) of the Intercreditor

Agreement. That subparagraph provides:

The foregoing provisions are solely for the purpose of
defining the relative rights of the holder or holders
of the Mezzanine Loan and the holder or holders of the
Anglo Senior Loan, and nothing herein shall impair, as
between the Mezzanine Borrower and Mezzanine Lender,
the obligation of the Mezzanine Borrower, which is
unconditional and absolute, to pay the Mezzanine Loan
in accordance with its terms, nor shall anything herein
prevent Mezzanine Lender from exercising all remedies
otherwise permitted by applicable law or under the
Mezzanine Note, Mezzanine Pledge or other Mezzanine
Loan Documents, subject to the provisions of this
Agreement.
-29-
 Whether this subparagraph precludes application of paragraph

4(d) turns initially on the coverage of the words “foregoing” and

“herein,” and resolution of the coverage issue requires,

regrettably, an elaborate examination of the structure of the

Intercreditor Agreement and the numbering and lettering of its

sections, paragraphs, and subparagraphs. The Agreement has 14

numbered sections, most of which include several paragraphs

designated with a lower-case letter. The language quoted by

Judge Patterson is the second of two subparagraphs placed within

paragraph (h) of section 8. The first subparagraph is designated

“(i)”; the second subparagraph is not designated at all.

Judge Patterson referred to this second subparagraph as

“paragraph[] 8(h)(i),” Karmely 2012 WL 3583141, at *9, *10 n.9,

or “Section 8(h)(i),” id. at *12, and ruled that the words

“foregoing” and “herein” in that subparagraph applied to the

entirety of the Intercreditor Agreement. This is apparent

because he ruled that what he called “8(h)(i)” denied the

Appellants the benefit of paragraph 4(d) of the Agreement, a

paragraph appearing in the document several pages before section

8. By repeatedly citing the subparagraph as “8(h)(i),” Judge

Patterson obviously thought that the provision was a subparagraph

within paragraph (h) of section 8, and he read “i,” the character

-30-
designating that subparagraph, as a lower case version of the

Roman numeral “I” (a romanette), rather than a lower case letter

“i.” Unfortunately, just looking at the “i” provides no way of

telling whether it is a lower case Roman numeral or a lower case

letter; most, possibly all, type fonts use the character “i” for

both the lower case letter “i” and the lower case version of

Roman numeral “I.”15

However, from the face of the Agreement and in the absence

of extrinsic evidence of intent, we conclude, at this stage of

the litigation, that there is no ambiguity in the proper

interpretation of the “(i)” that designates the first

subparagraph within paragraph 8(h), and that it is a lower case

letter and not a romanette. Several aspects of the typographical

construction of the Intercreditor Agreement make this clear, and

also make clear that the second subparagraph within paragraph

8(h), is not to be understood as a subparagraph of section 8(h),

but instead as the concluding text of section 8. First, every

15
The question whether “i” is a lower case letter or a lower
case version of a Roman numeral one arises in this case only
because of the oddity of a paragraph that contains only one
subparagraph designated with “(i).” If two subparagraphs were
designated “(i)” and “(ii),” respectively, within a paragraph
designated with a letter, the designating characters would
unquestionably be romanettes.

-31-
paragraph within every section of the Agreement is designated

with a lower case letter, and the lettered paragraphs, other than

paragraph 8(h), consist of only one paragraph. Second, in every

section, including section 8, the text at the beginning (before

all lettered paragraphs) and at the end (after all lettered

paragraphs) is set flush left at the left margin, and the text of

all lettered paragraphs is set flush left with a single left

indentation, whereas the text of both subparagraphs placed within

paragraph 8(h) is set flush left with a double left indentation.

Third, the second subparagraph placed within paragraph 8(h) is

the only subparagraph not identified at all, i.e., not introduced

with a character that could be either a lower case letter or a

romanette. Fourth the entire text of the second subparagraph

placed within paragraph 8(h) is identical to the text at the end

of section 9, text that is placed at the left margin with no

indentation and with no designating by either a lower case letter

or a romanette, making it clear that this second paragraph should

have been printed flush left at the left margin and that double

indentation was a printer’s error. Fifth, elsewhere in the

Intercreditor Agreement, in subparagraphs that are obviously

identified by a romanette, the “(i)” and the “(ii)” that identify

these subparagraphs are triple-indented, see subparagraphs

-32-
6(b)(i), (ii), 11(c)(i), (ii), 12(c)(i), (ii), whereas the “(i)”

that identifies the first subparagraph within paragraph 8(h) is

double-indented just like all the lower case letters that

identify other subparagraphs of the Agreement.

From all of these circumstances, we conclude that no

reasonable person, considering only the text and typesetting of

the Agreement, could fail to conclude that the “(i)” that

designates the first subparagraph placed within paragraph 8(h) is

a lower case letter, not a romanette; that this first

subparagraph is really paragraph 8(i), designated with a lower

case letter, following, and not included within, paragraph 8(h)

of section 8 and the text of this subparagraph should have been

set with a single left indentation, like all the other paragraphs

designated with a lower case letter in section 8; and that the

text of the second subparagraph, not designated with any letter

or number and placed within paragraph 8(h), is really the ending

text of section 8, and should have been set flush left at the

left margin with no indentation, like the identical ending text

of section 9. The printer simply made mistakes in the

indentation of the two subparagraphs placed within paragraph

8(h), which the lawyers who proof-read the documents overlooked.

Of course, if, on remand, extrinsic evidence of intent is

-33-
presented that tends to prove that the “(i)” is a romanette, the

interpretation of the “(i)” will be a factual matter for

resolution in the district court.

With the paragraph containing the words “foregoing” and

“herein” properly understood as the ending text of section 8, it

is clear from the text, at this stage of the litigation, that

these words apply only to all of the paragraphs of section 8, and

not to the entirety of the document. If this ending text, with

the word “foregoing,” was meant to apply to the entire document,

it would have been placed at the end of the document, and there

would have been no need to repeat the identical text at the end

of section 9. Furthermore, when the parties wanted language in

a paragraph to apply to the entirety of the document in which the

paragraph appears, they knew how to say that. Paragraph 4.26(c)

of the Mezzanine Agreement states: “Nothing in this Agreement or

in the Note shall affect the obligation of the Borrower to pay

the Debt in the manner and at the time and place therein

respectively expressed.”

Paragraph 22 of the Intercreditor Agreement provides in part:

This agreement is for the sole benefit of the Anglo
Senior Lender, Mezzanine Lender, and their respective
successors and assigns. Nothing herein shall be deemed
to modify, limit, or in any way affect the rights and
obligations of Borrower or any Guarantor under the Anglo
Senior Loan Documents or the Mezzanine Loan Documents,
-34-
 except as otherwise expressly set forth herein. Neither
borrower nor any Guarantor is or shall be deemed to be
a third-party beneficiary hereunder.

(emphases added).

Although the emphasized words appear to make clear that the

payment obligation of the Borrowers under the Mezzanine Loan

remains unaffected by the Intercreditor Agreement, the qualifying

phrase of paragraph 22, “except as otherwise expressly set forth

herein,” might preserve the force of paragraph 4(d), which

prohibits any payment to the Mezzanine Lender while the Anglo

Senior Loan remains unpaid. As with the interpretation of the

“(i)” discussed above, if extrinsic evidence of intent as to the

coverage of “herein” and “foregoing” is presented on remand, the

resulting factual issue will be a matter for determination in the

district court.

Our review of the various provisions of the Intercreditor

Agreement leaves us perplexed. It is difficult to understand how

the Mezzanine Loan can be “expressly made subject to” the terms

of the Intercreditor Agreement, with one of those terms,

paragraph 4(d), providing that “no payment shall be made to

Mezzanine Lender by . . . Mezzanine Borrower” until the Anglo

Senior Loan has been paid, while at the same time section 22 that

the Intercreditor Agreement states that it “is for the sole

-35-
benefit of the Anglo Senior Lender, Mezzanine Lender, and their

respective successors and assigns.” [A261] If the Appellants,

though “subject to” the Intercreditor Agreement, cannot benefit

from it, paragraph 4(d) would prohibit only W-D Partner, as the

only other Mezzanine Borrower, from paying itself, as Mezzanine

Lender, while the Anglo Senior Loan remains unpaid. That seems

odd, to say the least, and nothing in the record thus far

developed explains why that outcome is what the parties intended.

We do not agree with Judge Patterson, that on a motion to

dismiss, the contradictory nature of the provisions that both

prohibit the Appellants from making payments and also deny them

any benefit from that prohibition can be reconciled by

interpreting paragraph 4(d) as mainly a prohibition on retention

of payments and as “contemplat[ing] that W-D Lender might receive

payments from the Borrower.” Karmely, 2012 WL 3583141, at * 9.

A contractual clause that prohibits a payment and then provides

a turnover requirement in the event payment is made contrary to

the prohibition, is not, facially at least, a negation of the

payment prohibition.

-36-
 In sum, it remains unclear whether, in light of paragraph

4(d), an event of default occurred permitting foreclosure. This

uncertainty also requires a remand.16

Conclusion

The judgment is reversed, and the case is remanded for

further proceedings.

16
If, on remand, it is determined that paragraph 4(d) does
not insulate the Appellants from a foreclosure remedy, we agree
with the District Court that the Appellants’ payment obligation
remained unaffected by the extension of the maturity date of the
Anglo Senior Loan, despite the Appellants’ contention that the
extension of the Anglo Senior Loan extended the maturity date of
the Mezzanine Loan. Why the parties would extend the maturity
date of the Anglo Senior Loan without extending the date of the
Mezzanine Loan is not clear, but that is the result their
documents achieve.
-37-