Peter Washkowitz and Julian Bulaon discuss the erosion of lender protections in credit agreements, including voting protections and most-favored-nation rights. They also explore IP transfer prohibitions and restrictions on raising structurally senior debt. Topics covered: Purdue, PBF Energy, SmileDirectClub, Puerto Rico, debt-raising options, EPA's impact, third-party releases, pension obligation costs, erosion of lender protections, and material IP transfer.
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Quick takeaways
SmileDirectClub Inc. may need to seek additional capital due to negative cash flow, creating pressure for new sources of funding.
The certification of a ruling invalidating third-party releases in the Purdue Pharma opioid case opens the door for further compensation for victims.
Deep dives
Smell Direct Club's Potential Liquidity Challenges
Smell Direct Club Inc. may need to seek additional capital due to its historically negative free cash flow and limited liquidity. The company's current run rate suggests less than two years of liquidity runway, putting pressure on the need for new money. The trading price of its convertible notes has also declined significantly. While Smell Direct Club has not confirmed plans for new capital, the analysis outlines potential debt financing options, including the ability to incur structurally senior debt at the operational level.
US District Judge Colin McMahon has certified a ruling that invalidates third-party releases of the Sackler family in the Purdue Pharma opioid case. This move opens the possibility for further resolution and compensation for victims of the opioid crisis. Several appellant states oppose the certification, expressing concerns that it could hinder ongoing mediation and potential settlements. The decision to certify will allow the US Court of Appeals for the Second Circuit to weigh in on the ruling's merits.
The EPA's new renewable fuel standards could impact PBF Energy's renewable energy credit and emissions obligations. The proposed rules include retroactive cuts to 2020 volume targets and provide flexibility for addressing RFS liabilities. However, the higher proposed 2022 targets may result in significant costs for PBF Energy unless it can generate greater cash flow. The company will need to increase pre-RFS suggested EBITDA and parent contributions to effectively comply with the proposed volumes.
Puerto Rico Monolines Seek Appeal in Bond Issuing Lawsuit
Monoline insurers in Puerto Rico are seeking an appeal in their lawsuit against banks involved in underwriting the island's bond issues. They argue that this lawsuit is crucial for determining the liability of defendant banks. However, certain states, including Connecticut, Maryland, and Delaware, oppose the appeal, citing potential setbacks in ongoing mediation efforts. The case centers on allegations that underwriting banks failed to verify the accuracy of information in the bond issuances' official statements.
Featured this week: Purdue, PBF Energy, SmileDirectClub and Puerto Rico.
And deep dive, Peter Washkowitz and Julian Bulaon, from our America’s Covenants team, join David Zubkis to discuss the continuing erosion of lender protections in credit agreements including voting protections, most-favored-nation rights, IP transfer prohibitions and restrictions on raising structurally senior debt.
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