Valtus Capital Group, LLC v. Parq Equity Limited Partnership, 21-184

Valtus Capital Group (placement agent) and Parq Equity entered a Private Placement Agreement (PPA) in Nov. 2017; PPA required a fee of 4.25% of the gross proceeds of any “Private Placement of Securities,” defined to include equity or “equity-linked securities.”
Valtus arranged a multi-instrument financing with Westmont that comprised five agreements and provided C$272 million in funding in exchange for a 55% equity stake and board seats (the Westmont transaction).
Parq concedes Valtus is owed fees on three agreements that converted directly to equity, but contends two instruments (the First Interim Advance and the Second Lien Loan), which supplied 84% of the financing, are not “equity-linked securities.”
Valtus sued for breach after Parq refused to pay fees tied to those two instruments; the district court granted Valtus summary judgment, finding the PPA unambiguous and covering the full financing.
On appeal, the Second Circuit affirmed: it held the PPA’s ordinary meaning of “equity-linked securities” covers instruments that are joined to or are a condition precedent to an equity issuance, and Parq failed to show a controlling industry usage to the contrary.

Issue	Plaintiff's Argument (Valtus)	Defendant's Argument (Parq)	Held
Whether “equity-linked securities” in the PPA includes the First Interim Advance and the Second Lien Loan	Term should be given its ordinary meaning; securities that are joined or are a condition precedent to equity are equity-linked	Term is an industry term of art that excludes non-convertible debt like these instruments	Court: Unambiguous; ordinary meaning ("linked" = joined/associated) covers instruments that are conditions precedent to equity; fee due on total financing
Whether Parq established a controlling trade/custom usage that narrows the term	N/A	The term has an established industry meaning excluding such loans	Court: Parq failed its demanding burden to show a notorious, mutually known trade usage; usage evidence insufficient
Whether conflicting expert opinion created a triable issue of fact	Valtus: experts agreed on general definition; course of conduct supports broad reading	Parq: expert says the two instruments are not equity-linked	Court: Expert disagreement does not defeat summary judgment; record shows financing was linked to equity issuance

Delaney v. Bank of Am. Corp., 766 F.3d 163 (2d Cir. 2014) (summary judgment standard; de novo review)
Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94 (2d Cir. 2010) (standard for cross-motions on summary judgment)
Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011) (summary judgment requires no genuine dispute of material fact)
Law Debenture Trust Co. v. Maverick Tube Corp., 595 F.3d 458 (2d Cir. 2010) (initial question on summary judgment is whether contract is unambiguous)
Lockheed Martin Corp. v. Retail Holdings, N.V., 639 F.3d 63 (2d Cir. 2011) (definition of contractual ambiguity is a question of law)
British Int’l Ins. Co. v. Seguros La Republica, 342 F.3d 78 (2d Cir. 2003) (party asserting trade usage must show the usage was known or so notorious both parties contracted with it in mind)
Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) (contract words given ordinary meaning; avoid absurd results)
10 Ellicott Square Ct. Corp. v. Mountain Valley Indem. Co., 634 F.3d 112 (2d Cir. 2010) (courts may consult dictionaries to determine plain and ordinary meaning)
SCS Communications, Inc. v. Herrick Co., 360 F.3d 329 (2d Cir. 2004) (course of performance and conduct can confirm contractual interpretation)
Dalberth v. Xerox Corp., 766 F.3d 172 (2d Cir. 2014) (conflicting expert reports do not automatically preclude summary judgment)