O’Melveny Worldwide

Lenders’ Guide to Priming Exploitation

August 7, 2024

For the past several years, we have seen an increase in liquidity and liability management transactions that have stretched credit documentation and attracted significant litigation. Whether it’s sponsors and companies looking to preserve their ownership interests, or investors looking to leverage a temporary crisis to improve their loan position, these transactions have attracted substantial attention and scrutiny in the courts and the market. A cross-disciplinary team of finance, restructuring, and litigation attorneys at O’Melveny have been following this trend closely and have to put together a Priming Transaction Tracker to continue monitoring new developments. We also highlight below the numerous articles and alerts we have published on this topic, which will continue to be updated as new deals get announced, new lawsuits get filed, market practices evolve, and new judicial decisions clarify this fluid area of the law.

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Prior Client Alerts:

Deal Tracker:

 Deal  Provision at Issue Status
Mitel
  • Open market purchase
  • Subordination of liens
Lawsuit pending, case removed to federal court
Murray Energy
  • Open market purchase provisions
  • Subordination of liens sacred right
Lawsuit dismissed
Boardriders
  • Open market purchase provisions
  • Subordination of liens sacred right
Claims survived motions to dismiss, but lawsuit settled after acquisition
Serta
  • Open market purchase provisions
  • Subordination of liens sacred right
Filed for bankruptcy, claims dismissed by bankruptcy court on summary judgment; appeal to Fifth Circuit pending

TPC Group
  • Subordination of liens sacred right
  • Pro rata provisions
Bankruptcy court ruled against minority lenders
Incora
  • Voter dilution
  • Subordination of liens sacred right
Trial held; Bankruptcy court ruled in favor of the excluded lenders to unwind the uptiering transaction
TriMark
  • Open market purchase provisions
  • Subordination of liens sacred right
Settled after certain claims survived motion to dismiss
J. Crew
  • Investment negative covenants
  • Unrestricted Subsidiaries
Settled after J. Crew sought declaratory judgment that proposed transaction did not violate credit agreement
PetSmart/Chewy
  • Guarantor release provisions
  • Investment and restricted payment covenants
  • Unrestricted Subsidiaries
Settled after PetSmart filed a lawsuit alleging Citibank failed to release collateral in accordance with the terms of the loan documents
Neiman Marcus
  • Investment and restricted payment covenants
  • Unrestricted Subsidiaries
Settled after lawsuit was filed
Travelport
  • Investment negative covenants
  • Unrestricted Subsidiaries
Settled after lawsuit was filed
Cirque du Soleil
  • Investment and restricted payment covenants
  • Unrestricted Subsidiaries
Not challenged
Revlon
  • Investment covenants
  • Unrestricted Subsidiaries
  • Voter dilution
Lawsuit dismissed
Robertshaw
  • Subsidiary definition
  • Incurrence of Indebtedness
  • Voter dilution
Trial held; Bankruptcy court ruled lenders did not breach contract or implied covenant, but company breached credit agreement; transaction not unwound; priority and amount of damages claim remains pending

 


This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Jennifer Taylor, an O’Melveny partner licensed to practice law in California; Jeff Norton, an O’Melveny partner licensed to practice law in New York; and Lauren M. Wagner, an O'Melveny counsel licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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