We discussed in a prior post the completion of the auction and bankruptcy court approval of sale of assets to an affiliate of Fluid Routing Solutions. Despite its success in getting the sale approved, Fluid Routing Solutions was unable to obtain the concurrence of its automaker customers to the Proposed Sale Order. Fluid Routing Solutions advised the bankruptcy court in submitting the Proposed Sale Order to the bankruptcy court that Toyota, Chrysler, Ford and General Motors (the “Automaker Customers”) provided comments to the proposed order that were “wholly inconsistent with, and went far beyond, the requirements of the Agreement”.
Articles Written By: JSBurbage
Fluid Routing Solutions – Auction Over, Asset Sale Approved
On March 26, 2009, 48 days after the Chapter 11 filing, the sale of the fluid routing business and assets of Fluid Routing Solutions was approved. The winning bidder a/k/a the only bidder was FRS Holding Corp., (“FRS Deux”) who was the “stalking horse bidder” and an admitted “affiliate of an insider of the Debtors” and affiliate of the DIP lender, Sun Fluid Routing Finance, LLC (“Sun”). The purchase price is $11 million “less Cure Amounts less Prorated Taxes, minus/plus the Closing Net Assets Shortfall/Surplus.”
Foamex International Bankruptcy – Another Automotive Supplier Files
See the Foamex International Docsheet™ Report for subsequent developments in the Foamex International bankruptcy proceedings.
Feb. 23, 2009 – Foamex International, Inc., together with 7 affiliates, filed for Chapter 11 protection in Delaware on February 18, 2009. The affiliates are: Foamex, L.P.; Foamex Latin America, Inc.; Foamex Asia, Inc.; FMXI, LLC; Foamex Carpet Cushion LLC; Foamex Mexico, Inc.; and Foamex Canada Inc..
We have made the following preliminary observations:
- There is a high risk of bankruptcy preference claims in this bankruptcy;
- This is yet another automotive supplier casualty, although the press has not noted it as such;
- A very high amount, in both dollars and percentage, is being sought for payment of prepetition amounts to “critical cendors”;
- A realistic but expansive definition of “critical vendors” is being used;
- Inclusion on the critical vendor list is not immunity from a bankruptcy preference claim.
We discuss each of these observations in more detail below.
Sale of Cadence Czech Subsidiary to Magna Non-Contributing
Cadence Innovation has agreed to the sale of its interests in a Czech corporation “Cadence Bohemia” to Magna Presstec AG. Unfortunately, no dollars from this sale will find there way to Cadence Innovation.
How Much for that Equipment? The Cadence Innovation Liquidation
Feb. 20, 2009 – On February 12, 2009, another volley was fired in the onging Cadence Innovation LLC (“Cadence”) battle with GM. This time Cadence fired the volley. In an adversarial “Complaint to recover Money and to Enforce Accomodation Agreement and Stipulation and Consent Order”, Cadence alleges that GM is refusing to pay Cadence more than $4,914,075, including amounts due for equipment and raw material that GM purchased from Cadence. The purchase price was to be determined as a post-sale matter by an agreed appraiser. The designated appraiser firm was Hilco Appraisal Services, LLC. (“Hilco”).
The story is not the latest GM/Cadence fight. The story is the results of the appraisal, which was released on January 13, 2009 and attached to the February 12, 2009 Cadence complaint. This appraisal shows that the orderly liquidation value is $.10 on the dollar of fair market value.
Multiple Payments – Multiple Bankruptcy Preference Defenses – Mixing and Matching
One of the most critical but often overlooked opportunities to defend bankruptcy preference claims regards the ability to apply multiple defenses when there have been multiple payments. This ability to mix and match defenses means that the supplier’s exposure to bankruptcy preference claims can be reduced.
Ordinary Course of Business Bankruptcy Preference Defense
The ordinary course of business defense requires that either (1) the payment have been made in the ordinary course of business of both the supplier and the customer; OR (2) the payment was made under “ordinary business terms.” Please note this is an either/or test. Prior to 2006 the test was an “AND” test and both elements had to be proven. This was very difficult to do.
Documentation Makes Contemporaneous Exchange Preference Defense a Winner
The contemporaneous exchange defense is one of the most often disputed defenses. It should not be that way. The focus of the defense is very narrow. The focus is on the time when the potential preference payment was received. The payment must be made at or about the same time as the delivery of goods or services for which payment is made. So the “information zone” is very short.
The reason the contemporaneous exchange defense is often litigated is because the supplier has failed to get the proper documentation in place to establish the defense.
Retailer 99 Cent Stuff Inc. – Final Set of Preference Actions Filed
In what has aready been a very active case for Adversary Proceedings for recovery of bankruptcy preferences, the plan trustee for 99 Cent Stuff, Inc. filed 13 more banrkuptcy preference actions this week, including 7 today.
Allied Bankruptcy Preference Claim Status
Yes it is currently a mystery. Where are the Allied Bankruptcy Preference Claims?
Despite all our efforts — calls, emails, docket searches – we can not figure it out. The 2 year statute of limitations appears to have run.
We will continue to probe and let you know.