Date: 04-11-2009

Case Style: Bank of America, N.A. v. Tom Kivisto

Case Number: 4:08-cv-00432-CVE-FHM

Judge: Claire V Eagan

Court: United States District Court for the Northern District of Oklahoma, Oklahoma County

Plaintiff's Attorney: Joe Edwards, Day Edwards Propester & Christensen, Oklahoma City, Oklahoma

Defendant's Attorney: John Tucker and Colin Tucker, Rhodes Hieronymus Jones Tucker & Gable, Tulsa, Oklahoma

Description: Bank of America, N.A. sued Thomas L. "Tom" Kivisto and The Thomas L. Kivisto Trust on breach of contract theories seeking to recover the $15 million loaned to Kivisto in 2006. The note executed by The Thomas L. Kivisto Trust was dated May 26, 2006 and matured on May 26, 2008 but was extended to August 24, 2008. The note was guaranteed by Thomas Kivisto and secured by the assets of the Trust. Bank of America claimed that the revelation that SemGroup was in financial difficulty and that Kivisto had been replaced as president and chief executive officer of the SemGroup and related and subsidiary companies was a material adverse event and consituted a default under the provisions of the Credit Agreement.

After having been credited with all sums paid by it and any other amounts for which it is entitled to receive credit, the Trust is now indebted to the Bank under the terms of the 2006 Note in the principal amount of $12,864,768.42, together with interest through July 22, 2008, of $47,303.85, and with further interest thereafter at the rate of $1,594.47 per diem.

Plaintiff prays that it be awarded judgment on its First Cause of Action against the Trust in the principal amount of $12,864,768.42, together with interest through July 22, 2008, of $47,303.85, and with further interest thereafter at the rate of $1,594.47 per diem, together with Plaintiff’s costs, reasonable attorney fees and expenses, and such other relief as may be just and proper.

Kivisto admitted some of the allegations in Bank of America's Petition and denied others and asserted affirmative defenses of unclean hands, breach of duty of good faith and fair dealing, inequitable conduct, unconscionability, force majeure and the doctrines of accident and mistake.

Outcome: Settled for an undisclosed sum.

Plaintiff's Experts:

Defendant's Experts:

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