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COVID-19 and Lease Obligations: Does a Force Majeure Clause Override the Frustration of Purpose Doctrine?

Glenn D. West — Thu, 07 Jul 2022 14:31:44 +0000

As a general rule, courts enforce contracts in accordance with their terms, no matter how subsequent events may have impacted the original expectations of the parties. The COVID-19 pandemic gave rise to much litigation asserting old common law exceptions to that general rule; namely, the doctrines of “impossibility” and “frustration of purpose.” Most, but not all, of […]

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Weil’s Q2 2020 Quarterly Private Equity Update: Post COVID-19 PIPE Deals

Douglas P. Warner — Wed, 08 Jul 2020 21:18:47 +0000

Since the onset of the COVID-19 pandemic and the resulting social distancing guidelines and business shutdowns throughout the U.S., global markets have experienced volatility not seen since the 2008 financial crisis. Beyond the turbulence in public markets, businesses throughout the country and globally are feeling an increasing strain as they grapple with declining revenues, cash […]

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Pondering One of Diligence’s Seemingly Imponderable Questions: The Effect of Restrictions on “Indirect” Transfers

Glenn D. West — Mon, 27 Apr 2020 04:12:00 +0000

There are few things more basic to the legal due diligence of a target company than determining whether the acquisition will trigger any required consents under change-of-control or anti-assignment clauses contained within certain “material” contracts or within shareholders’/LLC members agreements.[1] Anti-assignment and change-of-control clauses come in a variety of shapes and sizes, and whether they […]

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Operating in the Ordinary Course in Extraordinary Circumstances

Glenn D. West — Thu, 23 Apr 2020 06:26:00 +0000

As the COVID-19 pandemic continues to disrupt markets and shake the global economy, the full impact on private equity transactions remains unknown. Many businesses have had to shut down or drastically change their operations because of governmental actions or the impact of social-distancing. While private equity buyers and sellers appear to have focused a lot […]

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Creative Financing Solutions to Support Portfolio Companies in Challenging Times: Fund-Level Preferred Equity

Brian Parness — Mon, 06 Apr 2020 13:42:01 +0000

In the wake of COVID-19’s disruption and the attendant uncertainty with respect to future liquidity needs and available funding sources, numerous private equity firms have encouraged their portfolio companies to draw down on their credit lines. With many credit lines fully drawn and, as the current crisis continues to evolve, we expect private equity sponsors […]

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Debt Buybacks— A Familiar Tool for New Circumstances

Heather L. Emmel — Fri, 03 Apr 2020 17:00:07 +0000

As a result of the recent COVID-19 health crisis and related market volatility, an increasing number of bank loans and high yield bonds are trading below par. These current market conditions present attractive de-levering opportunities for leveraged companies able to buy back their own debt, as well as sponsors seeking to purchase debt of their […]

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Receivables Factoring: Liquidity in the Time of COVID-19

Andrew J. Colao — Fri, 03 Apr 2020 14:10:27 +0000

In these difficult economic times, companies seeking additional liquidity may turn to alternative sources of financing. Companies with assets that can be monetized (e.g., accounts receivable, intellectual property, real estate, equipment, etc.) may discover a number of options available to them. In particular, accounts receivable financing may be an attractive way for certain companies to […]

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