Swissair sale keeps lawyers fighting

After 10 months of painful negotiations between Allen & Overy (A&O), Cleary Gottlieb Steen & Hamilton and Swiss firm Homburger, US private equity firm Texas Pacific Group is on the verge of completing its acquisition of Gate Gourmet.

Swissair Group, represented by A&O and Homburger, will recoup $675m (£437m) for Gate Gourmet, the world's second largest airline catering company.

The sale negotiations were confused by teams of lawyers representing a number of different companies that were formerly part of Swissair Group. The creditors and their lawyers are now arguing over which company should get a bigger slice of the pie.

Flavio Romerio of Homburger said: “At a certain point, discussions with lawyers are not productive any more. Everyone is bringing up points that are not relevant any more and you go round in circles. The finance companies took on a life of their own and came back with their own legal advisers against their own holding company.”

Swissair Group was the shareholder of two finance companies – SAirGroup Finance USA, represented by A&O, and SAirGroup Finance BV, a Dutch company which is under bankruptcy proceedings with an administrator advised by Houthoff Buruma. A&O was already advising on outstanding bonds and loans for Swissair, but it won the company disposal following a tender process.

Both finance groups were set up to borrow money offshore in a tax-efficient way, primarily to finance other Swissair Group companies. Neither of the finance companies was part of the Swiss bankruptcy proceedings and they split from the group when it went bankrupt.

The process was split into two stages. The first was negotiating the sale to Texas Pacific Group, which took around five months. The second stage was negotiating allocation of the funds raised from the sale, which also took around five months. While the deal is typical of many other restructurings of companies with high-yield public debt that chose to sell company assets, the sale was unusual due to the number of sellers from different jurisdictions.

“The sale of Gate Gourmet could not be consummated without the approval of four different courts in three different countries – the Netherlands, the US and two courts in Switzerland,” said David Frauman who led the team at A&O. The parties are still waiting on the Swiss courts, but are hoping for approval by the end of October.