In the latest twist of the Yellowstone Club bankruptcy saga, presiding Judge Kirscher ruled that investment bank Credit Suisse which had lent $375 million in first lien debt to the bankrupt club had engaged in predatory lending, and the resulting lien backing the loan would become subordinated equitably subordinated to virtually everyone including unsecured creditors. Can't be good for those recovery prospects. According to court filings, the smart CS lending syndicate had lent the money to Yellowstone without even requesting audited financials, among other curious decisions, all in the pursuit of the $7.5 million lender fee.
Here is what Kirscher had to say about this rare precedent:
The only plausible explanation for Credit Suisse's actions is that it was simply driven by the fees it was extracting from the loans it was selling, and letting the chips fall where they may. The only equitable remedy to compensate for Credit Suisse's overreaching and predatory lending practices in this instance is to subordinate Credit Suisse's first lien position to that of CrossHarbor's super-priority debtor-in-possession financing and to subordinate such lien to that of the allowed claims of unsecured creditors.
What is hilarious is the disclosure of how CS determined the transaction fee in YC case: turns out the ultimate fee depended, literally, on a coin toss: CS had asked for a 3% transaction fee, while Timmy Blixseth wanted 2%, and the two settled the matter by flipping a coin to decide the final rate (Tim won). It will be interesting, as many more comparable criminal cases emerge and like disclosure swims to the surface, just how underwriters sat down with issuers in the current market squeeze to determine not only what the fees should be (roll of the die? tea leaves?), but how to skrew the shorts as much as possible. We will be waiting and watching.