In re AOG Entertainment, Inc.

558 B.R. 98, 2016 Bankr. LEXIS 3380, 63 Bankr. Ct. Dec. (CRR) 28, 2016 WL 4940196
CourtUnited States Bankruptcy Court, S.D. New York
DecidedSeptember 16, 2016
DocketCase No. 16-11090 (SMB)
StatusPublished
Cited by11 cases

This text of 558 B.R. 98 (In re AOG Entertainment, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re AOG Entertainment, Inc., 558 B.R. 98, 2016 Bankr. LEXIS 3380, 63 Bankr. Ct. Dec. (CRR) 28, 2016 WL 4940196 (N.Y. 2016).

Opinion

MEMORANDUM DECISION DENYING SIMON ROBERT FULLER’S MOTION TO EXTEND THE CHALLENGE DEADLINE AND EX PARTE APPLICATION FOR AUTHORITY TO CONDUCT A RULE 2004 EXAMINATION

STUART M. BERNSTEIN, United States Bankruptcy Judge:

Simon Robert Fuller (“Fuller”) is a former director and chief executive officer of debtor 19 Entertainment Limited (“19 Entertainment”). Contemplating a possible challenge to the Debtors’ prepetition secured debt, he has filed two motions that are currently before the Court. The first seeks to obtain discovery under Federal Rule of Bankruptcy Procedure 2004 (“Rule 2004”) from Debtor AOG Entertainment, Inc. (“AOG”) and certain of its debtor and non-debtor affiliates (collec[101]*101tively, the “CORE Entities”) regarding the prepetition secured debt, a certain United Kingdom audit described below, and other matters. (See Ex Parte Motion for Order Authorizing Simon Robert Fuller to (A) Conduct a 2004 Examination of AOG Entertainment, Inc. and its Debtor and Non-Debtor Affiliates, and (B) Seek Related Document Production, dated Aug. 2, 2016 (the “Rule 2001 Motion”) (ECF Doc. #286).) The second seeks to extend the deadline for Fuller to bring a challenge to the Debtors’ prepetition secured debt. (See Simon Robert Fuller’s Motion to Extend Challenge Deadline, dated Aug. 12, 2016 (the “Extension Motion”) (ECF Doc. #308).) The Debtors oppose both motions, and the prepetition lenders oppose the Extension Motion.

The Court denies the Extension Motion for the reasons explained below. Because the challenge period has run and no party can attack the extent or validity of the prepetition secured debt, the Rule 2004 Motion is moot. Alternatively, Fuller has failed to show cause for the relief sought in the Rule 2004 Motion. Accordingly, both motions are denied.

BACKGROUND2

A. Relevant Parties and Entities

The Debtors and their non-debtor affiliates and subsidiaries (collectively, the “Debtors” or the “Company”) are in the business of owning, producing, developing and monetizing entertainment content. (Hurwitz Declaration ¶ 7.) The Company’s portfolio includes the “IDOL” brand of shows, including American Idol and other similar franchises (collectively, “IDOLS”), and So You Think You Can Dance (“SY-TYCD”). (Id.)

Fuller is a former director and chief executive officer of 19 Entertainment and is the creator of the IDOLS programs and SYTYCD. (Rule 2004 Motion at ¶ 2; Hur-witz Declaration at ¶ 51.) In January 2010, Fuller left his director and officer positions and entered into certain agreements with the Debtors, including a Consultancy Deed with 19 Entertainment. (Rule 2001 Motion at ¶ 2; Hurwitz Declaration at ¶ 51.) Under the Consultancy Deed, Fuller agreed to provide the Debtors with creative services. (Rule 2001 Motion at ¶2; Hurwitz Declaration at ¶ 51.) In exchange, he was entitled to receive a share of the profits generated by the IDOLS and SYTYCD business lines for as long as he provided services for the programs. (Rule 2001 Motion at ¶ 2; Hurwitz Declaration at ¶ 51.) The Debtors have rejected the Consultancy Deed pursuant to 11 U.S.C. § 365. (See Order Under Section 365(a) of the Bankruptcy Code, Bankruptcy Rule 6006 and Local Bankruptcy Rule 6006-1 Authorizing Rejection of Certain Agreements with Simon Robert Fuller Nunc Pro Tunc to the Petition Date, dated Aug. 23, 2016 (ECF Doc. # 342).)

Fuller is a creditor of 19 Entertainment, one of the CORE Entities. The ultimate parent of the CORE Entities is the non-debtor CORE Entertainment Holdings, Inc. (“CORE Holdings”). (Hurwitz Declaration, Sched. 2, at 1.) CORE Holdings owns 100% of the stock of the Debtor CORE Entertainment Inc. (“CORE Entertainment”). (Id.) CORE Entertainment, in turn, owns directly or indirectly all of the [102]*102enterprise value of the operating CORE Entities through its stock ownership. (Id.)

B. The 2011 Transactions

1. Apollo Tender Offer

The basic facts underlying the transactions at issue are not in dispute. CKX, Inc. (collectively with its subsidiaries, “CKX”), the predecessor to the CORE Entities, was founded in 2005 and was a publicly traded company. (Hurwitz Declaration at ¶ 18.) On June 21, 2011, affiliates of Apollo Global Management, LLC (collectively, “Apollo”) consummated a tender offer and merger of CKX (the “Acquisition”), by which they acquired control of the entities that now comprise the CORE Entities. (Id. at ¶ 19.) Apollo paid a purchase price of $5.50 for each share of CKX, representing an enterprise value of approximately $572 million. (CKX, Inc., Current Report (Form 8-K) (June 16, 2011), Ex. 99.1 (Disclosures Regarding CKX, Inc.) (“SEC Disclosure”) at 8.)

CKX financed the Acquisition, in part, through the issuance of $360 million of senior secured notes (the “Acquisition Notes”). (Id. at 11, 13; Hurwitz Declaration at ¶29.) Several CKX affiliates, including 19 Entertainment, guaranteed the Acquisition Notes and pledged their assets as security for their guarantees. (SEC Disclosure at 4, 13.)

2. Delaware Appraisal Litigation

A group of CKX shareholders opted out of the $5.50 per share cash-out price and brought an action in the Delaware Chancery Court to assert their appraisal rights, See Huff Fund Inv. P’ship v, CKx, Inc., No. CIV 6844-VCG, 2013 WL 5878807, at *1 (Del.Ch. Nov. 1, 2013), adhered to, No. CIV 6844-VCG, 2014 WL 2042797 (Del.Ch. May 19, 2014), judgment entered sub nom. Huff Fund Inv. P’ship v. CKX, Inc., No. CIV 6844-VCG, 2014 WL 2763756 (Del.Ch. June 17, 2014), and aff'd sub nom. Huff Fund Inv. P’ship v. CKx, Inc., No. 348, 2014, 2015 WL 631586 (Del. Feb. 12, 2015). Following a trial, the Chancery Court ruled that the merger price of $5.50 per share represented “the best and most reliable indication of CKX’s value.” Id. at *11. It found that the marketing and sale process resulting in the Acquisition was “thorough, effective, and free from any spectre of self-interest or disloyalty,” multiple entities had made “unsolicited, credible bids” and the Board of Directors and its advis-ors had successfully instigated a “bidding war.” Id. at *13. The Delaware Supreme Court affirmed the Chancery Court’s findings “on the basis of and for the reasons assigned by” the Chancery Court. Huff, 2015 WL 631586, at *1.

3.Acquisition Note Refinancing

In December of 2011, CORE Entertainment, as borrower, entered into a first lien term loan agreement (the “First Loan”) and a second lien term loan agreement (the “Second Loan,” and together with the First Loan, the “Prepetition Loans”), in the respective amounts of $200 million and $160 million. (Hurwitz Declaration at ¶¶28, 32.) The Prepetition Loans were guaranteed by certain CORE Entities (collectively, with the borrower, the “Loan Parties”), including 19 Entertainment. The proceeds of the Prepetition Loans were used to refinance the Acquisition Notes, (id.

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Cite This Page — Counsel Stack

Bluebook (online)
558 B.R. 98, 2016 Bankr. LEXIS 3380, 63 Bankr. Ct. Dec. (CRR) 28, 2016 WL 4940196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aog-entertainment-inc-nysb-2016.