On January 27, 2009, Credit Suisse filed a motion with the bankruptcy court requesting that the court direct and compel Yellowstone Mountain Club and its affiliates to immediately begin “a full, fair and open marketing process to identify prospective purchasers or investors for purposes of a sale or plan of reorganization of the Debtors’ Yellowstone Club businesses and properties.” Credit Suisse is the administrative agent and collateral agent for Yellowtone Mountain Club’s pre-bankruptcy lenders under a Credit Agreement dated September 30, 2005. Yellowstone Mountain Club filed for bankruptcy protection on November 10, 2008 in the United States Bankruptcy Court for the District of Montana.
The motion makes the following arguments in favor of the relief sought by Credit Suisse:
- A robust marketing process is necessary to maximize the value received for the assets or under a plan.
- Yellowstone Mountain Club has “intentionally . . . delayed commencing a robust Marketing Process due to pressures and directions exerted by CrossHarbor Capital Partners LLC and its affiliates to advance the insider interests of CrossHarbor and Edra Blixseth, the person ultimately in control of” Yellowstone Mountain Club. CrossHarbor has provided the debtor-in-possession financing in the cases and has allegedly asserted that commencement of a marketing process in advance of CrossHarbor proposing a plan of reorganization would constitute an event of default under the financing agreements.
- Immediate commencement of a marketing process is essential to maximizing value for creditors.
- Commencement of a marketing process is necessary to protect the pre-bankruptcy lenders’ interests in their collateral.
- Yellowstone Mountain Club had led the lenders and others to believe that a marketing process would be commenced in December 2008 but no marketing efforts have yet occurred. Instead, according to the motion, Yellowstone Mountain Club has chosen to negotiate exclusively with CrossHarbor.
UPDATE: Multiple significant pleadings were filed in the case on February 3, 2009, including a complaint filed by the Creditors’ Committee, a motion for appointment of an examiner, and a motion for bidding procedures filed by Yellowstone Mountain Club. Much more detail available here.
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On January 26, 2009, PPI Holdings, Inc. and its affiliates filed separate Schedules of Assets and Liabilities and Statements of Financial Affairs for each corporate entity that filed for bankruptcy. Schedules of Assets and Liabilities and Statements of Financial Affairs are required to be filed by each company pursuant to section 521 of the Bankruptcy Code and are intended to provide creditors and other parties with a complete picture of the company’s financial position. In addition, the schedules provide a complete list of the company’s view as to the claims against it (listed individually by party with acknowledged or disputed amount) and the contracts and leases to which it is a party. The information required to be included includes the following:
The Statement of Financial Affairs includes information regarding such topics as revenues, payments made in the 90 days prior to bankruptcy (potentially subject to recovery), lawsuits against the company, property held for other parties, environmental information, locations of financial information, owners, and pension funds.
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On January 28, 2009, Polaroid Corporation and its affiliates filed a motion with the bankruptcy court requesting approval of bidding and auction procedures for the sale of substantially all of its assets. The motion also seeks approval of certain bid protections to be granted to the stalking horse bidder, PHC Acquisitions, LLC, for those assets. The motion also discloses that Polaroid and PHC entered into an Asset Purchase Agreement on January 24, 2009.
As noted above, Polaroid is seeking authority to sell substantially all of its assets and for that sale to be free and clear of liens and encumbrances, as is commonplace in sales occurring under section 363 of the Bankruptcy Code. The motion discloses that its sole equityholder, Petters Group Worldwide, LLC and/or PGW’s sole shareholder Thomas J. Petters (who has been indicted by federal authorities on multiple counts of fraud and other charges), required Polaroid to pledge all of its assets in favor of Acorn Capital Group, LLC and Ritchie Capital Management, L.L.C. The motion asserts that the pledge was “to secure substantial antecedent debts and investments for which Polaroid received no or inadequate consideration.” As such, Polaroid argues that any security interests asserted by those parties are avoidable and the motion states that Polaroid will be filing an adversary complaint seeking a court determination that such security interests are avoidable as preferential and/or fraudulent transfers.
In its stalking horse bid, PHC Acquisitions has agreed to acquire Polaroid’s assets for cash consideration of $42 million and the assumption of certain liabilities. The motion also states that PHC is “expected, but not obligated, to offer employment to some” of Polaroid’s current employees. PHC is an entity that was created solely for purposes of acquiring Polaroid’s assets and is an affiliate of Genii Capital, S.A. Genii Capital, according to the motion, is a privately-held company created in July 2008 and is part of a larger group of entities that collectively have in excess of $1 billion of assets under management.
The proposed break-up fee for PHC is $1.2 million and the proposed expense reimbursement is up to $500,000. The Asset Purchase Agreement between Polaroid and PHC also contains certain “no-shop” provisions that are delineated in the motion (and of which Polaroid also seeks immediate approval). Pursuant to the proposed bidding procedures, the following key deadlines would be set in the sale process:
- Deadline for Submission of Competing Bids: March 12, 2009 at 5:00 p.m. (prevailing Central time)
- Auction (if qualifying competing bids are received): March 17, 2009 at 9:00 a.m. (prevailing Central time)
- Sale Hearing: March 19, 2009
Download a copy of the motion, which attaches the full proposed bidding procedures and a copy of the Asset Purchase Agreement, as well as every other doucment filed in Polaroid’s bankruptcy case, using netDockets. Sign up now for a free trial account.
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