Southwest Georgia Ethanol, LLC (the “Debtor” or “SWGE”) filed a Voluntary Petition under Chapter 11 of the Bankruptcy Code on February 1, 2011 in the Bankruptcy Court for the Middle District of Georgia (Albany Division, transfer request to Macon Division pending) (Case No. 11-10145). The Honorable Judge James D. Walker Jr. has been assigned to the case. With this filing, another ethanol producer seeks bankruptcy protection, going the way of Verasun Energy Corporation and Pacific Energ2y Resources Ltd. Suppliers and trade creditors should hope this bankruptcy has a happier ending. Both Verasun Energy Corporation and Pacific Energy Resources Ltd. are now in the midst of mass bankruptcy preference litigation (although the Iowa corn farmers were able to escape the claims in the Verasun Energy Corporation bankruptcy).
Eastern District of Virginia Bankruptcy Judge Kevin R. Huennekens, in a December 1, 2010 opinion in Circuit City Stores, Inc. v. Mitsubishi Digital Electronics America, Inc. (AP No. 10-03068), held that the preference claim defendant could not utilize a new value defense (Section 547(c)(4) defense) if the defendant receives a transfer for its § 503(b)(9) administrative claim predicated upon the same instance of new value. In reaching the conclusion, the Court methodically and with remarkable precision parses through the complexities of Section 547(c)(4). Given the Court’s reasoning, the next question is “What about payments post petition under critical vendor, warehouseman, carrier and wage motions.”
For an estimated 2,200 vendors, holding approximately $30 million in outstanding pre-petition claims, the bankruptcy filing on August 25, 2010 (Delaware Bankruptcy Case No: 10-12636) of Oriental Trading Company, Inc. and 4 affiliated companies (the “Debtors”), is cause to take a long, deep breath. A critical vendor motion, if granted by Bankruptcy Judge Kevin J. Carey, will offer the possibility of critical vendor payments capped out at $15 million, and the top 27 unsecured trade creditors (see chart below) are owed more than $18 million. Additionally, this bankruptcy fits a classic retailer bankruptcy profile for heightened risk of the case ending in the formation of a litigation trust for pursuit of preference claims.
Holley Performance Products Inc. (“Holley Performance”) and its 4 affiliates who also filed bankruptcy on September 28, 2009 (the “Debtors”) have requested authority to file a consolidated list of the 30 largest unsecured creditors (the “Top Unsecured Creditor List”) in lieu of a separate list for each of the Debtors. Beyond this listing, the information provided by Debtors in support of their first day motions does not include an overview of the trade debt situation. However, the Debtors’ first day motions do include a request for authority to make significant critical vendor payments.
Cooper-Standard Holdings Inc. and its affiliated debtors (“Cooper-Standard Automotive” or the “Debtors”) have combined into one motion a request to allow payment of 503(b)(9) administrative expense claims, a request to allow payment of critical vendors a/k/a essential suppliers, and a request to allow for payment of foreign vendors. The dollar amount of pre-petition claims Cooper-Standard Automotive is seeking to pay seems to vary between the motion and the interim and final orders. However, the relief requested in the interim order is for authority “to pay, in their sole discretion, as and when they come due, Essential [including 503(b)(9)] and Foreign Suppliers Claims in an amount that shall not exceed $19.5 million.”
The Stant bankruptcy is structured as a 363 Sale to an affiliate of an insider (i.e. a current equity holder). For suppliers this will be a case of suppler “haves” and supplier “have nots”. Each supplier should determine its classification as soon as possible. This bankruptcy likely will move fast – 45 days and the 363 sale will be done. Based on the limited financial information provided to date, administrative insolvency is a risk. So for some suppliers who don’t pay attention, this may be a bankruptcy that just keeps on giving.
The first day motion of Arclin US Holdings Inc. and its 6 co-debtor affiliates (“Arclin”) to pay “critical vendors” illustrates how dramatically the “critical vendor” concept can vary from industry to industry. The motion also illustrates how a “critical vendor” motion can be used by a debtor to extract post petition concessions from suppliers holding administrative expense claims under Section 503(b)(9). Finally, the case presents an interesting situation where a debtor argues in favor of inclusion of freight costs in 503(b)(9) claims.
Lear Corporation and co-debtor subsidiaries (“Lear”) have estimated that they collectively have 1,600 vendors with outstanding prepetition claims. Lear has identified 214 of these vendors as “critical vendors”. As part of its first day motions, Lear has requested an order from the Bankruptcy Court authorizing Lear to pay up to an aggregate of $50,100,000 ($25,050,000 pursuant to an interim order and up to an additional $25,050,000 pursuant to a final order) of prepetition claims held by these 214 “critical vendors.” In the Lear bankruptcies and in other bankruptcies where similar motions have been filed, suppliers (and their lenders and stakeholders) repeatedly are asking: “What is a ‘critical vendor’ and what are the chances of my company being one?”
Visteon Corp. has filed 13 first day motions and the Affidavit of Willaim G. Quigley, III, Chief Financial Officer in Support. The motions include one critical vendor motion to authorize payment of certain pre-petition claims of suppliers. (Item 4 Below) The first day motions are: