Official Committee of Unsecured Creditors ex rel. R.M.L., Inc. v. Mellon Bank, N.A. (In re R.M.L., Inc.)

187 B.R. 455, 1995 Bankr. LEXIS 1426
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedJune 29, 1995
DocketBankruptcy No. 1-93-00137A
StatusPublished
Cited by6 cases

This text of 187 B.R. 455 (Official Committee of Unsecured Creditors ex rel. R.M.L., Inc. v. Mellon Bank, N.A. (In re R.M.L., Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Official Committee of Unsecured Creditors ex rel. R.M.L., Inc. v. Mellon Bank, N.A. (In re R.M.L., Inc.), 187 B.R. 455, 1995 Bankr. LEXIS 1426 (Pa. 1995).

Opinion

MEMORANDUM

ROBERT J. WOODSIDE, Chief Judge.

Before me is a Complaint filed by plaintiff The Official Committee of Unsecured Creditors, on behalf of Intershoe, Inc. (the “Committee”) seeking to recover $515,000.00 in payments made by debtor Intershoe, Inc. (“Intershoe”) to defendant Mellon Bank, N.A. (“Mellon”) pursuant to Section 548(a)(2) of the Bankruptcy Code, together with prejudgment interest. For the reasons stated below, judgment will be rendered in favor of the Committee and against Mellon in the amount of $887,461.96.

Procedural history

On February 18, 1992, Intershoe filed its voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. On January 20, 1993,1 issued an Order confirming the Chapter 11 plan of reorganization submitted by Intershoe. Pursuant to the terms of the confirmed plan, all claims of Intershoe for the avoidance of preferential and fraudulent transfers pursuant to Sections 547, 548 and 550 of the Bankruptcy Code were assigned to the Committee to pursue for the benefit of unsecured creditors.

On May 20, 1993, the Committee initiated the instant adversary proceeding against Mellon. Mellon filed an answer, and extensive discovery ensued. I conducted a trial on October 18 and 19, 1994, and December 21 and 22,1994. The parties subsequently filed proposed findings of fact and conclusions of law and legal briefs.

On May 2, 1994, the Committee filed a motion seeking to reopen the record to take the trial deposition of Braxton Glasgow. Mellon opposed the requested relief and I conducted a telephone conference on May 5, 1995, and entered an Order denying the requested relief. My decision was based upon the timing of the request and the absence of evidence that the testimony was not previously available.

Factual findings

1. At all times relevant to the Complaint, Intershoe engaged in the business of large-scale wholesale distribution of women’s shoes. Intershoe imported the bulk of its product lines from sole-source suppliers in Italy, Spain and Yugoslavia.

2. Through 1991, Intershoe’s primary secured lender was a group of banks which included Signet Bank of Virginia, Signet Bank of Maryland, Corestates Bank, N.A., and the Bank of Tokyo Trust Company (collectively the “Signet Group”). Intershoe also [459]*459had subordinated indebtedness to Westinghouse Credit Corporation (‘Westinghouse”) and Westinghouse held stock purchase warrants with respect to Intershoe stock.

3. In the Spring of 1991, contemplating that the expiration of existing financing with the Signet Group would occur in the Pall, Intershoe sought to recapitalize and refinance its operations. Intershoe sought to attract an equity investment in the amount of $15 million. At the same time, Intershoe sought to replace the Signet Group as its secured lender with a new bank group extending a $53 million loan facility.

4. In March, 1991, Three Cities Research (“TCR”) made an initial non-binding proposal to make a $15 million investment in Inter-shoe and began a process of due diligence and negotiation with Intershoe.

5. Intershoe approached Mellon, The Bank of New York Commercial Corporation (“BONY’) and Citicorp North America, Inc. (“Citicorp”), seeking potential refinancing. In discussions with each lender, it was clear that an equity infusion would be a prerequisite to refinancing.

6. Representatives of Mellon had their initial meeting with representatives of Inter-shoe in February or March, 1991.

7. In April, 1991, Intershoe entered into an agreement with Westinghouse which provided Intershoe with the ability to retire its outstanding subordinated indebtedness to Westinghouse and repurchase the stock purchase warrants of Intershoe held by Westinghouse.

8. On June 13,1991, Mellon issued a proposal letter documenting its interest in extending a $53 million revolving demand line of credit and a $100 million foreign exchange line of credit. The proposal was contingent upon the proposed $15 million cash injection by TCR.

9. Intershoe did not accept Mellon’s June 13, 1991, proposal, but rather continued to explore potential financing with BONY and Citicorp, which initially did not contemplate the necessity of a large-scale equity injection.

10. Citicorp performed its due diligence and ultimately determined that it would not extend credit to Intershoe. BONY made a proposal, but revised it to require a large-scale equity infusion, and Intershoe chose not to endorse that proposal. Subsequently, In-tershoe returned to Mellon to pursue the refinancing.

11. On August 9, 1991, Mellon issued a second proposal letter similar in terms to its June 13, 1991, letter, also indicating that the proposed financing was contingent on the injection of new capital funds of at least $15 million. Other relevant provisions of the proposal letter were that: 1) Intershoe would pay a “facility fee” of % percent of the committed facility, half upon issuance of a commitment letter and half at closing; 2) Inter-shoe would pay a collateral management fee of $10,000.00, after the advancement of the lines; 3) Intershoe would reimburse Mellon for:

[a]ll out-of-pocket expenses, including without limitation, attorney’s fees, field examination costs, searches and filing fees, ... regardless of whether a financing package is concluded[;]

4) Intershoe would remit a “good faith deposit” in the amount of $125,000.00 with written approval of the letter; and 5) Mellon was required to have commitments from other financial institutions for $28 million of the $53 million facility. The proposal letter also set out the initial set of conditions under which Intershoe’s “good faith deposit” would be retained by Mellon.

12. The transaction contemplated in Mellon’s August 9, 1991, proposal letter was an asset-based loan and also a “highly leveraged transaction” (“HLT”), which involve greater risk than the more common type of loan collateralized by real estate. The type of loan contemplated required extraordinary measures of due diligence and monitoring of the borrower’s financial condition.1

[460]*46013. Intershoe accepted and executed the August 9, 1991, proposal letter.

14. On August 12, 1991, Mellon received the initial sum of $125,000.00 from Intershoe by wire transfer pursuant to the August 9th proposal letter.

15. By August, 1991, Intershoe was against its borrowing base with the Signet Group and therefore could not borrow additional sums. Between August and October, 1991, Intershoe did not pay the vast majority of its invoices from suppliers and its unpaid accounts payable owed to trade creditors increased by approximately $10 million while its debt to the Bank Group decreased by approximately $10 million.

16. Between August 9, 1991, and November 18, 1991, Intershoe had numerous materially adverse changes which resulted in $4.1 million in losses for September and October, 1991.2

17. The Signet Group agreed to extend its loan facility from September 30, 1991, through November 29, 1991, which in turn permitted Intershoe to continue its business operations.

18. In early October, 1991, Mellon retained a law firm in connection with the proposed closing of the proposed Inter-shoe/Mellon transaction scheduled for November 26, 1991.

19.

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