In re Deval Corp.

592 B.R. 587
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedNovember 15, 2018
DocketBankruptcy No. 16-17922-AMC
StatusPublished
Cited by4 cases

This text of 592 B.R. 587 (In re Deval Corp.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Deval Corp., 592 B.R. 587 (Pa. 2018).

Opinion

Ashely M. Chan, United States Bankruptcy Judge

I. INTRODUCTION

PDI Deval Acquisition, LLC ("PDI") filed an Application for Administrative Expenses Pursuant to Sections 503(b)(3)(D) and 503(b)(4) of the Bankruptcy Code ("Application") in the above-captioned bankruptcy case of Deval Corporation ("Debtor") seeking reimbursement for certain actions taken by PDI which substantially contributed to the Debtor's estate. The Court finds that PDI's extensive and costly participation substantially contributed *591to the Debtor's case by accelerating the sale process in the face of the Debtor's inaction, preventing the estate from becoming administratively insolvent and preserving the value of the Debtor for the unsecured creditors. PDI is, therefore, entitled to an administrative expense award in the amount of $83,693.72.

II. FACTUAL/PROCEDURAL BACKGROUND

The Debtor is a high-tech manufacturer of aircraft and weapon support equipment for the United States military. Mot. to Extend ¶ 2. On November 4, 2010, the Debtor entered into an asset purchase agreement ("Asset Purchase Agreement") with PDI to sell substantially all of its assets to PDI. Stip. ¶ 3. On February 8, 2011, the Debtor also entered into a management agreement ("Management Agreement") with PDI whereby PDI would manage the Debtor's business pending the closing of the Asset Purchase Agreement. Id. at ¶ 4. Ultimately, PDI was unable to obtain the necessary financing to purchase the Debtor's assets and the Asset Purchase Agreement was never consummated. Id. at ¶ 3. During PDI's management of the Debtor, however, PDI advanced a total of $2,011,861.12 to the Debtor for operating expenses. Id. at ¶ 6. The Debtor ultimately repaid $1,391,500, leaving an unpaid balance of approximately $620,000 to PDI. Id.

PDI subsequently obtained a judgment ("Judgment") against the Debtor in an Ohio state court in the amount of $982,933.36 plus interest at 18% per annum. Id. at ¶ 8. PDI domesticated the Judgment in Pennsylvania and, in the early fall of 2016, executed on the Judgment. Id. at ¶ 9; App. for Admin. Exp. ("App.") ¶ 6. As a result, BB & T Bank ("BB & T"), the Debtor's senior secured creditor, froze the Debtor's borrowings, swept the Debtor's cash, and failed to honor the Debtor's payroll checks. Stip. ¶ 10. On September 2, 2016, PDI forwarded a term sheet to the Debtor proposing that PDI acquire the Debtor's personal property through a sale in bankruptcy conducted pursuant to section 363 of the Bankruptcy Code ("363 Sale") for a purchase price of $750,000, subject to higher bids. Id. at ¶ 14.

On November 11, 2016, the Debtor filed for protection under chapter 11 of the Bankruptcy Code. Id. at ¶ 17. In January 2017, PDI delivered a revised term sheet to the Debtor proposing that PDI acquire the Debtor's personal property in exchange for a $675,000 payment to BB & T, a $25,000 cash payment to the Debtor, and forgiveness of the PDI debt. Id. at ¶ 15. PDI's proposed transaction would have left the Debtor with equity in its real estate and the right to recover on certain causes of action as potential sources of payment for the Debtor's unsecured creditors. Aug. 1, 2018 Hrg. Tr. ("Tr.") 31:12 - 32:1. Most of the business terms in the term sheet were fully negotiated, but the Debtor failed to take any action to finalize the deal with PDI for two months. Obj. to Exclusivity ("Obj.") ¶ 17.

On March 9, 2017, the eve of the expiration of the exclusivity period, the Debtor filed a Motion to Extend the Exclusivity Period for Filing a Chapter 11 Plan and Disclosure Statement ("Motion to Extend"). ECF No. ("ECF") 69; App. ¶ 10. In the Motion to Extend, the Debtor stated that it had been negotiating with an interested party (presumably not PDI) at the outset of the bankruptcy filing, but such party was not comfortable purchasing the Debtor through a 363 Sale. Mot. to Extend ¶¶ 3-4. The Debtor stated, however, that it had "significantly advanced its efforts to sell certain of its business assets and for debtor-in-possession funding to facilitate *592its operations through the sale process." Id. at ¶ 5.

Before responding to the Motion to Extend, PDI's principal, Irwin Haber ("Mr. Haber"), met with PDI's chief financial officer, general counsel, and bankruptcy counsel to discuss how to proceed and learned about the possibility of obtaining reimbursement of PDI's legal fees and expenses under section 503(b). Tr. 34:10-21; 35:14 - 36:6. Ultimately, Mr. Haber decided that PDI would take a more aggressive approach in the case based upon the prospect of receiving reimbursement for performing services which substantially contributed to the estate pursuant to sections 503(b)(3)(D) and 503(b)(4). Id. at 34:7 - 36:6.

Accordingly, on March 17, 2017, PDI filed an Objection to Extension of Exclusivity, Cross-Motion for the Appointment of a Chapter 11 Trustee and Request for Expedited Hearing ("Objection") and attached a draft plan which it intended to file upon termination of the exclusivity period. ECF 77; Stip. ¶ 19. In its Objection, PDI stated that the Debtor was administratively insolvent and on the verge of collapse. Obj. 1. PDI's concerns were based, in part, on the decision of the Debtor's shareholders to defer one or more paychecks and on recent reductions in compensation taken by the Debtor's shareholders and its 29 employees. Id. at ¶ 5.

PDI also had significant concerns about the drop in the Debtor's normalized annual sales from $8 million, a level where the Debtor was marginally profitable, to $5.4 million in 2016 and less than $3 million in 2017. Id. at ¶ 6. PDI further represented that the Debtor had insufficient cash to buy the requisite inventory needed to commence production for two large Navy contracts and that the contracts, on average, accounted for 50% of the Debtor's normalized sales volume. Id. at ¶ 7. As a result, the Debtor had "delivered minimal, if any, production units to date," which had stalled the contracts and caused the Navy to classify the contracts as delinquent. Id. Moreover, the uncertainty surrounding the Debtor's future had prompted the resignation of two highly experienced, skilled machinists in February. Id. at ¶ 8.

Based upon the Debtor's January monthly operating report, which reflected that the Debtor had accounts receivable of $241,000 and post-petition liabilities in excess of $600,000, PDI concluded that the Debtor was administratively insolvent. Id. at ¶ 10. PDI further represented that, although the Debtor had been actively looking for a buyer since August of 2016, the Debtor had yet to find one. Id. at ¶ 11. The Debtor also urgently needed debtor-in-possession financing but had no prospects in sight. Id. In light of the foregoing, PDI believed that the Debtor was strapped for cash and on the brink of financial collapse. Id. at ¶¶ 11-12. It appeared to PDI that the only way to salvage the situation was to terminate the exclusivity period so that PDI could file a plan of reorganization which would reorganize the Debtor as a going concern. Id. at ¶ 13.

PDI also argued that the Debtor's gross mismanagement in allowing the Debtor's case to languish warranted the appointment of a chapter 11 trustee. Id. at ¶ 26.

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Cite This Page — Counsel Stack

Bluebook (online)
592 B.R. 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-deval-corp-paeb-2018.