Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc

In Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 900 (Tex. 2011), Basic managed real estate investment trusts, including American Realty Trust, Inc. ("ART") and Transcontinental Realty Investors, Inc. ("TCI"). Id. at 896. Basic and Dynex signed a Commitment, in which Dynex agreed to loan funds to "single-asset, bankruptcy-remote entities" ("SABREs") owned by ART and TCI if Basic would "propose other acceptable SABREs to borrow $160 million over a two-year period." Id. at 896-97. The issue on appeal was whether ART and TCI could recover damages from Dynex for its alleged breach of the Commitment as third-party beneficiaries to the Commitment. Id. at 898. The supreme court reasoned that, because the intention to confer a direct benefit to a third party must be clearly and fully spelled out in the contract for that party to have standing as a third-party beneficiary, "a presumption exists that parties contracted for themselves unless it clearly appears that they intended a third party to benefit from the contract." Id. at 900. Although only Dynex and Basic had signed the Commitment, "Dynex knew that the purpose of the Commitment was to secure future financing for ART and TCI, real estate investment trusts that Basic managed and in which it held an ownership interest." Id. Not only was Basic not intended to be the borrower, but the Commitment expressly required that the borrowers be SABREs acceptable to Dynex, and Dynex knew that Basic would not own the SABREs. Id. The court concluded that this requirement was for Dynex's benefit, since SABREs are designed to provide more certain recourse to collateral in the event of default. Id. The court pointed out that "SABRE-borrowers provided a mechanism for ART and TCI to hold investment property directly but in a way that would provide Dynex greater security." Id. Thus, "if Dynex and Basic did not intend the Commitment to benefit ART and TCI directly, then the Commitment had no purpose whatsoever." Id. Moreover, the Commitment "clearly and fully spelled out the benefit to ART and TCI because their role was basic to Dynex's and Basic's agreement." Id. at 901. The court concluded, "The Commitment itself, and the undisputed evidence regarding its negotiation and purpose, establish that ART and TCI were third-party beneficiaries." Id. In sum, the agreement was to benefit the third parties directly, who sought financing for entities that would be created only if the financing was secured. 348 S.W.3d at 900. The Texas Supreme Court held that the agreement demonstrated an intent to benefit the third parties directly, because if it did not, "then the agreement had no purpose whatever." Id.