Serta Simmons Credit Agreement

A complaint filed by food service provider TriMark USA on November 6 is the latest example of this type of case. The plaintiffs in the case, including Audax, Golub Capital Partners and others, claimed that their co-creditors – including Oaktree Capital Management and Ares Management – had illegitimately altered their credit contract in a “cannibalistic attack by one group of lenders in one syndicate against another.” According to the Tribunal`s motion, this amendment would have led to a new class of lenders that subordinated the applicants` claims to TriMark`s debts. The result of these treaty changes? Trial with many defendants, from aggressive lenders to public pension funds. Second, the applicants argue the limitations of the amendments in the credit contract. While some provisions of more than 50% of lenders may be amended, six rights — “sacred rights,” according to the applicants — can only be changed by “obtaining the consent of each lender directly and unfavourably.” (Id. 9.02[b] [A], NYSCEF 1, complaint 42, 44, 45, 48, 53.) This is Section 9.02[b] [A] [6], which provides that any lender concerned must approve any agreement, amends or amends sections 2.1[b] or [c] of the agreement in a way that, by its terms, would alter the proportional distribution of payments required for this purpose (except in the context of a transaction provided for in points 2.22, 2.23, 9.02 and/or 9.05 (g) or other in this section 9.02.” We note that the Tribunal`s decision in serta was made in the context of the decision and the rejection of an application to clear the recapitalization. The judicial standard for such a decision is different from what would apply to the overall litigation of the issues at issue. The applicants would not have met the burden of non-omissions, including the requirement to prove a likelihood of success on the merits. This failure does not determine the final case and it remains to be seen whether the complainants will ultimately fail in their challenge to the recapitalization. However, the Serta transaction highlights the need for secured lenders to carefully review the sacred legal protection provisions contained in their credit contracts and to roll back the parties to agreements that could cancel or terminate these safeguards. The Serta case is a dramatic example of the terrible economic consequences of such a final race. If Serta had sought Chapter 11 insolvency protection and sought to settle the new priority debt through a debtor facility, Serta would have been required to prove that lenders who did not trade received adequate protection. On the other hand, non-exchange lenders were set up as part of Serta`s recapitalization without the use of alternative mortgages or adequate protection of any kind.