“To the Extent It Is Able to Do So”

Here’s an oddity: to the extent it is able to do so. (Variants include to the extent that it is able to do so, to the extent she/he is able to do so, to the extent they are able to do so, and to the extent [insert party name] is able to do so.) A search on EDGAR pulled up a few hundred documents, so it does exist.

In most cases, the drafter is trying to express that the party in question doesn’t have complete control over performing an obligation. Here are some examples:

Notwithstanding the occurrence of a foregoing event, the Indenture Trustee shall perform its obligations hereunder to the extent it is able to do so under such event.

The Seller agrees to procure the transfer (to the extent it is able to do so) …

… each Lender and the Agent shall (to the extent it is able to do so based upon applicable facts and circumstances), complete and provide Borrowers with such forms, certificates or other documents as may be reasonably necessary to …

After the occurrence of an Insolvency Event in relation to any member of the Group, any Party entitled to receive a distribution out of the assets of such member of the Group in respect of Obligations owed to that Party shall, to the extent it is able to do so, direct the person responsible for the distribution of the assets of such Debtor to pay that distribution to the Security Agent until the Obligations owing to the Secured Parties have been paid in full.

In addition, in relation to all payments to be made to a Tranche A Lender by TFSUK, such Lender shall cooperate, to the extent it is able to do so, with TFSUK in completing any procedural formalities …

If that’s the case, the drafter would have been advised to use instead reasonable efforts.

Here’s an example that redundantly combines to the extent it is able to do so with an efforts standard:

The Company agrees that, to the extent it is able to do so, it will use its best efforts to give equal emphasis and promotion to Shares as is given to other underlying investments of the Accounts, subject to applicable SEC rules.

When the phrase occurs in language of discretion and it refers to restrictions imposed by some other instrument, a clearer alternative would be subject to:

… after the occurrence of an Insolvency Event in relation to a Debtor, each Senior Secured Creditor may, to the extent it is able to do so under [subject to] the relevant Senior Secured Documents, take Enforcement Action under paragraph (e) of the definition thereof …

If a Debtor has defaulted on any Payment due under a Hedge Agreement (after allowing any applicable notice or grace periods) and the default has continued unwaived for more than five days after notice of that failure has been given to the Security Agent, the relevant Hedge Counterparty (i) may, to the extent it is able to do so under [subject to] the relevant Hedge Agreement, terminate or close-out in whole or in part any hedging transaction under that Hedge Agreement …

But sometimes I’m left scratching my head as to what is intended, as in this example:

Each Person that shall become a Participant pursuant to Section 18(e) above shall, on or before the date of the effectiveness of the related transfer, be required to provide all of the applicable forms required pursuant to clause (f) above, and, to the extent it is able to do so, shall make the representations and warranties set forth in subclauses (i) – (iii) of clause (f) above …

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.