Reed Smith leveraged finance and special situations partner, Elizabeth Tabas, discusses SIRDA case, importance of specific provisions for subordination and pro-rata sharing, interpreting contracts under New York vs. English law, negotiating power shift during economic crisis, and analyzing length and construction clauses in agreements.
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Quick takeaways
Courts prioritize the plain meaning of contract language and specific rights should be explicitly stated.
Investors should understand the terms and nuances of pro-rata sharing provisions in contracts.
Deep dives
Interpreting contractual provisions and the significance of plain meaning
The podcast delves into the importance of interpreting contractual provisions in the context of complex credit solutions. It emphasizes that courts, particularly in New York and the US, prioritize the plain meaning of contract language rather than inferred or desired intentions. The discussion highlights the need for clarity in contract drafting and reinforces the notion that specific rights should be explicitly stated, as courts are unlikely to read in protections that are not clearly defined within the contract.
Pro-rata sharing provisions and their implications
The podcast explores the complexities of pro-rata sharing provisions and their interpretation. It emphasizes that these provisions can vary, with some requiring all payments to be allocated on a pro-rata basis, while others only apply to do-impayable payments. The discussion emphasizes the importance of understanding the specific terms within a contract, as even small amendments or exceptions can impact the application of pro-rata sharing provisions. Investors are advised to be aware of these nuances and seek clarity on pro-rata sharing provisions when entering new deals.
Differences in interpretation between US and English courts and implications for lenders
The podcast discusses the differences in interpretation between US and English courts and the potential implications for lenders. In New York, courts primarily focus on the four corners of the contract and do not rely on external interpretive tools unless ambiguity exists. On the other hand, English courts may take a more holistic approach and consider outside factors when interpreting ambiguous provisions. Forum shopping to more favorable jurisdictions, such as England, may yield different interpretations. Additionally, the podcast highlights the importance of lenders understanding all aspects of loan agreements, including jurisdiction-specific interpretations, to make informed decisions when taking legal action.
In this week's episode, the Covenants by Reorg team speaks to Reed Smith leveraged finance and special situations partner Elizabeth Tabas.
If you are not a Reorg subscriber, request access here: go.reorg-research.com/Podcast-Trial.
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