Loan Participation Agreement - Plain Language Rule


SE Property Holdings, LLC v. Bank of Franklin, [Ms. 1171167 & 1171195, Feb. 15, 2019] __ So. 3d __ (Ala. 2019). This decision (Sellers, J.; Parker, C.J., Bolin, Wise, and Bryan, JJ. concur; and Stewart, J., recuses herself) reverses a summary judgment entered by the Mobile Circuit Court in favor of Bank of Franklin (“BOF”) on a claim demanding specific performance of a contractual provision in a loan participation agreement between commercial lenders. The provision in question required SEPH’s predecessor, Vision Bank, to repurchase BOF’s interest in the loan if “any proceeding is commenced which involves the dissolution, termination of existence, insolvency, or business failure of originating bank ....” Ms. *5. The Court held that in light of the plain language of the entire agreement between these sophisticated commercial parties the term “‘proceeding’ means a judicial or quasi-judicial action relating to the originating bank’s financial decline and putting the originating bank under the supervision of some official authority.” Ms. *13.

The Court emphasized the participation agreement should be construed “holistically” and concluded that Vision Bank’s voluntary merger with SEPH did not constitute a “proceeding” as that term is used in the paragraph requiring the repurchase of BOF’s interest in the loan. Ms. *13-14.

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