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Founded Year

1999

About BrandCo

BrandCo specializes in branding and custom WordPress website design for small businesses. The company offers a range of services including logo creation, business card design, custom print materials, social media branding, email signature design, and cloud hosting solutions. BrandCo primarily serves the real estate tech industry with tailored real estate website solutions. It was founded in 1999 and is based in Orlando, Florida.

Headquarters Location

2151 Consulate Dr. Ste. 21

Orlando, Florida, 32837,

United States

407.999.0009

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BrandCo Patents

BrandCo has filed 2 patents.

The 3 most popular patent topics include:

  • monomers
  • nail care
  • polymer chemistry
patents chart

Application Date

Grant Date

Title

Related Topics

Status

2/26/2021

3/22/2022

Nail care, RING finger proteins, Polymers, Polymer chemistry, Monomers

Grant

Application Date

2/26/2021

Grant Date

3/22/2022

Title

Related Topics

Nail care, RING finger proteins, Polymers, Polymer chemistry, Monomers

Status

Grant

Latest BrandCo News

United States: Staying Afloat In An Uncertain Economic World: Hope For The Best, Prepare For The Worst - Proskauer Rose LLP

Feb 13, 2024

To print this article, all you need is to be registered or login on Mondaq.com. While global inflation and higher-for-longer interest ratesdominated macroeconomic headlines over the last year, middle-marketprivate credit restructurings witnessed three notable trends. First, these credits remained surprisingly resilient, evidencedby a default rate that, though higher than prior periods, remainedbelow 2% for most of the year. Second, those companies experiencingdistress largely suffered balance sheet problems that could beaddressed on a consensual basis, without the winner-take-all (or atleast winner-take-most) battles that have become all too familiar.And third, lenders spent an increased amount of timeconsidering—with some degree of justifiedconcern—whether the status quo of minimally coercivemaneuvers would change, or whether one or more of their creditswould prove an exception to that general rule. By comparison, in 2023, the dominant trend in the broadlysyndicated loan and high-yield markets was the continued use ofliability management strategies and market participants' raptattention to the growing list of lower court decisions evaluatingwhich moves are out of bounds and which are fair play in permissivedebt documentation. In distressed credits, though the documents, parties, capitalstructures and other circumstances varied, the highest-levelobjective of equity owners was nearly unanimous: live to fightanother day. As inflation cooled and consensus shifted towards aneconomic soft-landing and anticipated rate decreases, the perceivedvalue of extending runway increased, incentivizing sponsors to workwith their lenders on a negotiated path forward. Back in the middle market, the necessarymodifications—including amend and extends, covenant relief,debt service deferrals and capital infusions—were mostlyimplemented without resorting to aggressive structures. In thesenegotiations, parties both leaned on existing relationships andgamed out alternative paths, including various liability managementtransaction (LMT) scenarios, such as drop-downs (e.g.,J. Crew), uptiers (e.g., Serta) anddouble-dips (e.g., Trinseo). Simply put, direct lenders hoped for the best, but prepared forthe worst. Nothing else could be the case in a market built onrelationships, but where terms—though still generally lenderfavorable compared to the broadly syndicated loan and high-yieldmarkets—have been in a decade-long trend toward borrower- andsponsor-favorable flexibilities. Uptier Battles: Long-Awaited Closure . . . Maybe Troubled borrowers facing tight debt markets have limitedoptions for tapping additional liquidity. Often, only incumbentlenders are willing to infuse new capital to protect existinginvestments, but even then, only with enhanced economics. The"uptier"—an exchange (or "roll-up") ofexisting loans into new, higher-priority, priming debt—hasbecome the most talked-about LMT, and synonymous with theattention-getting phrase "lender-on-lender violence. "Uptiering generally has two steps: (1) the borrower and certainparticipating lenders (i.e., Required Lenders) amend theexisting credit documents to allow for the creation of, andsubordination of the claims or liens of the existing senior lendersto, one or more tranches of "super-priority" debt, and(2) the participating lenders exchange, on a non-pro rata basis(and without a pro rata offer being made to all lenders), theirexisting loans for the new super-senior debt (typically rankingjunior to any new money debt and senior to the existing loans ofnon-participating lenders). Serta, Boardriders, TriMark and Mitel Networks exemplify the legal battles that follow inthe wake of uptier transactions and offer guidance on how courtswill resolve related legal disputes. Serta Of those cases, Serta must be the brand-name.By now, not only are private credit lenders familiar withthe Serta non-pro rata uptier transaction, butthey commonly inquire about the inclusion (or not) of a“Serta provision” in credit documents todetermine whether an uptier transaction would be clearly prohibited(or not). To effectuate step (2) described above—where theparticipating lenders exit their position in the existing facilityand exchange into a higher-priority tranche—the consentinglenders in Serta (and other similar cases)relied on the credit agreement provision giving the borrower theright to make “open market purchases” ofloans.1 As is typical,the Serta credit agreement generally prohibitednon-pro rata repayments of loans, but allowed these non-pro ratapurchases. But, the phrase “open market purchase” wasnot defined in the Serta creditagreement—or, for that matter, in the vast majority of creditagreements in the market. The non-participating lenders(plaintiffs) and the participating lenders (defendants) vigorouslyand litigiously disagreed as to its meaning. Serta maintained that “open market” means—andthe provision merely requires—an arm's length exchangeof consideration that constitutes fair market value. Judge Faillaof the Southern District of New York rejected this argument at themotion to dismiss stage because she could not find the transaction,as alleged, unambiguously took place in what is conventionallyunderstood as an “open market” and permitted the caseto move forward. But, after Serta filed for bankruptcy, the dispute was heard bythe Bankruptcy Court for the Southern District of Texas, and JudgeJones took a markedly different stance. Judge Jones made it clearthat he did not have any trouble determining that what took placein Serta was an open market purchase, which, perthe dictionary definition of “open market,” requiredonly that the price was set based on competition among privateparties. Seemingly critical to this ruling was the fact that Sertasolicited competing LMT offers and, while no specific transactionwas offered to all lenders, interested parties did have anopportunity to offer a solution. Stay tuned, as the decision has been accepted for direct appealto the Fifth Circuit Court of Appeals. Mitel Networks Mitel Networks is another example of a disputeduptier exchange transaction that survived a motion to dismiss. InOctober 2022, Mitel Networks secured a $156 million new-moneysuper-priority facility and simultaneously exchanged and uptieredthe existing term loans held by participating lenders.Like Serta and Boardriders, only aselect group of lenders were invited to participate. As a result ofthe transaction, first and second lien debt held bynon-participating creditors was relegated to second and third lienpriority behind approximately $857 million of new first priorityloans. Excluded lenders filed suit in the New York Supreme Court,arguing that the uptiering violated their “sacredrights”—i.e., matters over which everyadversely affected lender has a consent right under the loandocuments. The plaintiffs argued that their sacred rights includeda prohibition on non-pro rata distributions and any reduction ofterm loan principal that adversely impacts the value of thenon-participating lenders' loans, including a reduction inthe principal amount ofthe participating lenders' loans by virtueof the exchange. The participating lenders defended the transactionby reference to the undefined “purchase” exception topro rata treatment under the credit agreement, which allowed Mitelto purchase and then cancel loans on a selective basis. In denyingdismissal, Justice Jennifer Schecter was not convinced that thenon-participating lenders' breach of contract claims wereinvalid as a matter of law and decided that she could notadequately define “purchase” in this context, allowingthe matter to move forward toward trial. Bombardier “Required Lenders” is defined in most creditagreements to generally consist of those lenders holding a majorityof the relevant loans. When that threshold is reached, RequiredLenders are empowered to take a number of actions (other than thoseprotected against by “sacred rights”), includingwaiving most events of default. Enter Bombardier Inc., a Canadian company that for much of itshistory operated as a diversified transportation conglomerate withfour core businesses: business aircraft, commercial aircraft,aerostructures and engineering services and rail transportation. In2017, the company decided to reposition itself away from itsdiversified business model and initiated a series of divestituresthat, when the dust settled in 2021, left Bombardier with only itsbusiness aircraft segment. Although these divestitures implemented the company'sstrategic vision, the transactions ran afoul of a contractualprohibition against the sale or disposition of all or substantiallyall of the company's assets (taken as a whole, whether by asingle or series of related or unrelated transactions andregardless of whether those transactions occurred over an(unspecified) period of time). In an effort to address the issue,Bombardier subsequently issued $260 million in new notes (anincrease of 104%) to a single institutional investor, ostensiblygiving that investor Required Lender control. The investor thenretroactively waived the event of default triggered by therestructuring transactions. In response, the certain aggrievednoteholders sued. As a threshold matter, Justice Andrew Borrok of the New YorkSupreme Court determined that the new notes did not count forpurposes of waiving past defaults and, therefore, the waivergranted by the new noteholder was ineffective. Specifically, theindenture provided that only noteholders holding notes at the timeof the relevant default are entitled to waive the correspondingevent of default, a temporal limitation not present in most creditagreements. Absent that limitation, the new investor could havewaived the event of default on account of its (subsequent) RequiredLender control. However, the temporal element precluded aretroactive waiver and the applicable event of default continuedunresolved. However, the indenture also contained a “no-action”clause granting only the indenture trustee, as directed by RequiredHolders, the power to pursue most claims. Unlike the waiverprovisions, the no-action clause did not include the same temporalprotections—i.e., Required Lenders was notcalculated by reference to the date of the underlying event ofdefault. Accordingly, Justice Borrok dismissed thenoteholders' complaint without prejudice, granting theplaintiffs another opportunity to demonstrate why compliance withthe no-action clause would be futile or inapplicable. The Proxy Play: Alive and Well Exercising a proxy right is a powerful remedy that is availableto many private credit lenders. When a secured lender is granted aproxy (often memorialized in the underlying security agreement),the lender (usually through the collateral agent) is entitled,following an event of default, to vote shares or membershipinterests that are pledged as collateral for a loan. In practice,proxy rights are typically used to replace a borrower's boardof directors (or similar governing body) with new independentdirectors. CII In an important decision for private credit lenders, theDelaware Bankruptcy Court held that a proxy properly exercisedprepetition will not be invalidated by a subsequent bankruptcyfiling. By way of background, CII filed a chapter 11 petition inDecember 2022. Just days before, the senior collateral agentprovided notice that it was exercising its voting proxy andreplacing the board of one of CII's non-debtor subsidiaries.On a post-petition basis, CII demanded that the agent unwind itsproxy exercise to allow CII to regain control of its subsidiary.The agent refused, and CII sought relief from the bankruptcy court,arguing the agent's refusal to return control of thesubsidiary to CII was a violation of the Bankruptcy Code'sautomatic stay. CII asserted that the subsidiary's equity wasproperty of its bankruptcy estate and, therefore, the agent'seffective control over the subsidiary was both an improper attemptto control estate property and a post-petition debt collectioneffort. Bankruptcy Judge Laurie Selber Silverstein rejected CII'sarguments, relying on Delaware law and the text of the underlyingcredit agreement. Although there is no dispute that equityinterests in a corporate subsidiary constitute property of theshareholder's bankruptcy estate, Judge Silverstein'sanalysis turned on whether the voting rights associated with thoseequity interests were also estate property. Judge Silversteindetermined that, under Delaware law, the economic rightsrepresented by corporate shares may be separated or“decoupled” from the power to vote the shares. Toestablish an automatic stay violation, CII would need to show thatthe agent did not exercise its proxy rights in accordance withDelaware law and the precise terms of the credit agreement weresuch that CII retained its right to vote shares of its subsidiariesat the time of the bankruptcy filing. After parsing the terms, Judge Silverstein found that the creditagreement unequivocally authorized the agent to exerciseCII's voting rights, the agent provided the requisite notice,and Delaware's default three-year limit on voting proxies wasreplaced with a longer term under the credit agreement. Havingproperly exercised its proxy rights prior to the chapter 11 filing,Judge Silverstein concluded that CII's estate did not includethe right to vote subsidiary shares at the time its petition wasfiled because CII had been divested of that right prepetition.Accordingly, there was no automatic stay violation and theagent's independent directors were allowed to remain inplace. Byju's Alpha In Byju's Alpha, Vice Chancellor Morgan T.Zurn of the Delaware Chancery Court likewise validated a proxyexercise based on a textual interpretation of the governing creditagreement. After a series of defaults, the administrative agentaccelerated the loan and exercised its proxy rights, simultaneouslyreplacing the company's board of directors with a singleindependent director. Shortly thereafter, the agent filed acomplaint in the Delaware Chancery Court seeking a declaratoryjudgment that the new director's control over the company waslegitimate. In response, Byju's Alpha filed a complaint inthe New York Supreme Court challenging the acceleration of thedebt. The agent answered by stating the company had indeeddefaulted by failing to deliver audited financials and, separately,to obtain a guaranty from a foreign subsidiary as required by thecredit agreement—as such, the acceleration underpinning theagent's proxy exercise was proper. However, before the matter was decided in New York, ViceChancellor Zurn ruled from the bench that the company had, in fact,defaulted on its loan and events of default ultimately resulted.Those events of default opened the door for the agent to acceleratethe debt and replace the board of directors, notwithstandingByju's Alpha's attempt to characterize the defaults as“non-monetary” and “de minimis” innature. Although the Delaware Chancery Court's ruling has beenappealed, both CII and Byju'sAlpha illustrate the important concept that, when itcomes to a lender's exercise of remedies, the precise termsof the loan documents control and will be enforced by courts. New Delaware Law Gives Boost to Secured Creditors The Delaware General Corporation Law (“DGCL”) haslong required majority stockholder approval of a transactionseeking to sell, lease or exchange all or substantially all of thecorporation's property and assets. The problem for privatecredit lenders: the sponsor's consent was likely necessary tosell substantial assets of a corporation after exercising proxyrights. However, in July 2023, the Delaware state legislature addedan important exception from a secured creditor's perspective:under new DGCL section 272(b), stockholder approval is not requiredif the secured party can sell the collateral without thecorporation's consent under applicable law, including statelaw governing the mortgage or other security interest(e.g., Article 9 of the UCC). Alternatively, the securedparty and the board of directors may agree to an alternativetransaction, such as a strict foreclosure or sale to a third party,without obtaining stockholder approval, if the value of the assetsis less than or equal to the amount of secured debt forgiven in thetransaction. While amended section 272 does not prescribe a particular methodof asset valuation, once the transaction is complete, the statuteforecloses any attempt to invalidate or rescind the transactionbased on a purported failure to satisfy the asset value test if thebuyer of the assets provided value (which may be thereduction/elimination of debt secured by the assets) and acted ingood faith. To reenforce the foregoing, section 272(b) overridesprovisions in certificates of incorporation (that first becomeeffective on or after August 1, 2023) generally requiringstockholder consent to effectuate a sale, lease or exchange ofsubstantially all assets, unless the certificate of incorporationexpressly provides for stockholder approval of section 272(b)compliant transactions. See our  Special Alert  for additional discussion on this topic. Millennium Health: Just What Are “Securities”? The U.S. Court of Appeals for the Second Circuit issued a widelyanticipated (unanimous) decision holding that notes evidencingsyndicated leveraged loans do not qualify as“securities” covered by state and federal securitieslaws. The issue arose out of the bankruptcy cases of Millennium Health(f/k/a Millennium Laboratories), a California-based urine drugtesting company. The Millennium lender claim trustee (formed aspart of the bankruptcy) filed a complaint in the New York SupremeCourt against several large banking institutions, asserting claimsfor, among other things, securities fraud under various state“blue sky” laws in connection with a nearly $1.8billion syndicated leveraged loan previously made to MillenniumLaboratories. The trustee asserted that during and aftersyndication, the defendant lenders misrepresented or omittedmaterial facts in the offering materials. To secure the securitiesfraud hook, the trustee argued that the modern generation ofsyndicated bank loans no longer resemble typical commercial lendingpractices and instead closely resemble regulated high yield bondissuances. In May 2020, Judge Paul Gardephe of the Southern District of NewYork dismissed the trust's claims, concluding the market ofhighly sophisticated purchasers of the notes would not reasonablyconsider the notes “securities” subject to federal andstate securities law regulation. On appeal, the Second Circuit considered application of theso-called Reves test, a Supreme Court precedentdirecting that courts consider four factors when determiningwhether a note legally qualifies as a security: (1) motivationsthat would prompt a reasonable seller and buyer to enter into thetransaction, (2) the plan of distribution, (3) the reasonableexpectations of the investing public and (4) whether some factorsuch as the existence of another regulatory scheme significantlyreduces the risk of the instrument. While the Second Circuit agreedthat the seller and buyer motivations arguably satisfied theconditions of the test, despite the sale being“commercial” in nature as opposed to an“investment,” the Second Circuit determined that theremaining Reves  factors tilted against anyplausible suggestion that syndicated loans qualify assecurities. Following the ruling, the trustee petitioned for the U.S.Supreme Court to decide the matter once and for all. If the SupremeCourt accepts the case, it will be notable to see if the Securitiesand Exchange Commission, which declined the Second Circuit'srequest for guidance, decides to reverse course and weigh in. Revlon Revisited Last year, we covered Revlon's liability managementtroubles. See  Liability Management – Vaccine or Pandemic? Private CreditRestructuring Year in Review . As readers may recall, in 2016,Revlon entered into a $1.7 billion senior secured term loanagreement (the “2016 Facility”) in connection with theacquisition of Elizabeth Arden. In 2019, Revlon procured a $200million term loan (the “2019 Facility”) to addressliquidity needs, and, in connection with that transaction,transferred certain valuable intellectual property collateral outof reach of the 2016 Facility creditors to a foreign (unrestricted)subsidiary (“BrandCo”). In 2020, faced with theprospect of insolvency and in further need of liquidity, Revlontransferred the vast majority of the remaining intellectualproperty serving as collateral for the 2016 Facility, includingthat related to the Elizabeth Arden brand, to BrandCo and enteredinto a third term loan agreement with a subset of lenders under the2016 Facility (the “2020 Facility”), providing for newsuper-priority first lien debt and roll up a portion of the 2016Facility into two new roll-up facilities. The new-money debt wasused in part to repay the 2019 Facility and was secured on a firstlien basis by the intellectual property transferred to BrandCo. Fast-forward to Revlon's bankruptcy cases, wherenon-participating lenders revived their attack on the 2019 and 2020transactions, and the overall validity of the 2020 Facility. Theaggrieved lenders sought to unwind the transaction and restore whatthey described as their “rightful first-lien priorityposition” on the transferred intellectual property, or,alternatively, provide them the economic equivalent of invalidingthe transaction, whether through damages or equitablesubordination. Since we last wrote on the topic, Judge Jones of the SouthernDistrict of New York issued an opinion granting the debtors'motion to dismiss the non-participant lender's complaint,finding the state law centric equitable relief claims against thedebtors are derivative and are an impermissible attempt tostrategically “use inventive pleading to sidestep theautomatic stay,” which bars individual creditors frompursuing individual collection actions that would usurp orinterfere with potential recoveries or remedies exclusivelyavailable to the debtors' bankruptcy estates or a trustee.Judge Jones further found that the plaintiffs' allegationsthat their alleged injuries are “uniquely felt” becausetheir liens were “improperly” stripped by the BrandCotransfers do not make their claims non-derivative, even if theirinjuries are “large and painful.” While not dispositiveof the claims against the non-debtor defendants (i.e., theparticipant lenders), Judge Jones hinted at a later statusconference that the same standing analysis applied equally to anynon-debtor defendants, effectively “knocking out” anyfurther claims. A Look Ahead: Setting Winners Apart from Losers The uncertain landscape that private credit lenders face in 2024sets the stage for another action-packed year. Distressed portfoliocompanies will continue to navigate volatility in the months ahead,and lenders must always stay situationally aware of all the movesavailable on the game board from the perspective of the sponsor,majority lenders, minority lenders and other junior investors.Contingency planning and a deep understanding of creditdocumentation will set the winners apart from the losers. Footnote 1. Visit our prior  Year in Review  for additional details. The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances. AUTHOR(S)

BrandCo Frequently Asked Questions (FAQ)

  • When was BrandCo founded?

    BrandCo was founded in 1999.

  • Where is BrandCo's headquarters?

    BrandCo's headquarters is located at 2151 Consulate Dr., Orlando.

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