Complex Agreements, if Improperly Drafted, Can Cause Complex Problems

Complex Agreements, if Improperly Drafted, Can Cause Complex Problems

On October 11, 2013 in the U.S. District Court in Minneapolis, arguments began in a complex legal dispute that showcases the importance of thorough contract review. The lawsuit was initiated by ORIX Public Finance (“ORIX”) against the Lake Country Housing and Redevelopment Authority (“Lake Country”) and has been in litigation for almost two years.

The lawsuit stems from a Bond Purchase Agreement (“Agreement”) between both parties made in 2011. The Agreement called for ORIX to purchase bonds issued by Lake Country so that Lake Country could finance a massive expansion of fiber-optic internet lines to homes throughout Northern Minnesota. The entire undertaking was projected to cost over $60 million, but ORIX  would only buy bonds for $3.5-6 million of the total amount, The rest would be provided by federal government grants and stimulus monies.

The circumstances leading up to the dispute were such that the federal government’s Rural Utility Service (“RUS”), which originally planned to fund most of the project with grants and loans, did not like the terms of the Agreement between Lake Country and ORIX because of the Agreement’s high interest rates. The entire Agreement was conditioned on RUS’s involvement, however, so RUS’s approval was needed for the contract to become enforceable. After various negotiations, Lake Country decided that it would simply use its own funds to finance the project instead of selling bonds to ORIX.

Naturally, ORIX was frustrated by this decision because it meant that it would not be able to buy any bonds. In the Agreement, there were multiple conditions which the agreement may be terminated, but Lake Country’s decision to pursue alternative methods was not one of them. Conditional terms are great ways to ensure that a contract is only enforceable if the purpose of the contract is fulfilled by specific circumstances. Obviously, since the entire Agreement was conditioned on RUS’s involvement by a certain date and other factors, termination could have resulted if RUS was not involved by a certain date.

But the Agreement also provided any party with the right to waive compliance with any condition for the time of performance of the contract. Therefore, even if the RUS funding was not secured by the originally-proposed date, ORIX could simply waive the condition and extend that requirement until RUS’s funding was secured. The agreement, then, would be continuously binding on Lake Country indefinitely, and Lake Country would need to sell bonds to ORIX once it received funds from RUS.

Since Lake Country did end up receiving RUS funds but did not offer any bonds to ORIX, ORIX sued Lake Country for breach. It argued that it had waived the time conditions to the contract, keeping the Agreement enforceable. Lake Country could only turn to the termination clauses provided in the Agreement.

There were many terms that allowed ORIX to terminate the Agreement, but Lake Country could only terminate the agreement in the unlikely event that ORIX refused to pay for bonds offered by Lake Country on an undetermined future closing date. This was a grave oversight by Lake Country’s attorneys, who drafted the agreement, and one which they stated later in court was a result of their forgetfulness to edit boilerplate, standard language they had used when representing other clients. Because of this mistake, Lake Country’s own contract provided ORIX with more power to terminate the agreement than it gave itself. If Lake Country’s lawyers had been more careful, such traps could have been avoided.

Now, the District Court is hearing arguments because it feels that it may be reasonable that Lake Country breached its own contract with ORIX, largely due to the “clerical errors” and mistakes of Lake Country’s drafting attorneys, which have a material effect on the contract. As a result, Lake Country may be liable to ORIX for upwards of $4.5 million.

This case clearly underscores the importance of retaining experienced counsel for complex contracts such as bond purchase agreements. A talented transactions attorney can expertly spot issues like the ones involved in ORIX v. Lake Country case and ensure that complex litigation does not result. As was reported by, the legal fees as a result of these drafting debacles have reached over $250,000. Not only will proper drafting and review save time, it will also save organizations from substantial legal costs, lengthy litigation disputes, and extreme risks.

If you are in need of contract review and drafting, big or small, consider contacting Vlodaver Law Offices, LLC, which has experience proofing complex agreements for small, medium, and large businesses throughout Minnesota.