Bloomberg News

Innkeepers, Madoff, Blockbuster, A&P, Graceway: Bankruptcy

September 30, 2011

(This report contains items about companies both in bankruptcy and not in bankruptcy. Adds Graceway, PJCOMN and Star Buffet in New Filings; Solyndra and Madoff-ABN Amro suit in Updates; section on Judge Shopping; Wastequip and Sylvan Learning Centers in Watch List; and Geokinetics in Downgrade.)

Sept. 30 (Bloomberg) -- When a reorganization plan founders, the bankrupt company’s professionals become fair game for fee objections. The Chapter 11 case of hotel owner Innkeepers USA Trust is an example.

Although the Innkeepers Chapter 11 reorganization plan was confirmed in late June, it couldn’t be implemented because Cerberus Capital Management LP and Chatham Lodging Trust canceled a contract to buy 64 hotels.

Innkeepers’ professionals filed applications with the bankruptcy judge in New York for final approval of fees for the period April 1 through July 31. In the four-month period, Innkeepers’ principal lawyers from Kirkland & Ellis LLP are requesting $5.3 million in fees.

For practical purposes, a final fee application like Kirkland’s is aimed to bring in payment of the last 20 percent of the fees. The other 80 percent have been paid month by month.

Midland Loan Services Inc., the servicer for $825 million of fixed-rate mortgages, filed papers on Sept. 28 objecting to final fee approval. Until and unless the June plan is implemented, Midland says it’s not possible to decide if the fees were reasonable or appropriate.

Midland says it might become necessary to repeat “the entire plan process.”

After Cerberus and Chatham walked out of the purchase contract in August, Innkeepers sued, hoping the bankruptcy judge will force the buyers to complete the sale. Contending they were entitled to cancel, Cerberus and Chatham also argue they can’t be liable for anything more than the loss of their $20 million deposit.

The trial on the suit against Chatham and Cerberus will be held on Oct. 10 through 12 in bankruptcy court in New York.

Apollo Investment Corp. acquired Palm Beach, Florida-based Innkeepers in July 2007 in a $1.35 billion transaction. It had 72 extended-stay and limited-service properties with 10,000 rooms in 20 states. The Chapter 11 petition filed in July 2010 listed assets of $1.5 billion against debt totaling $1.52 billion.

The lawsuit against Cerberus is Innkeepers USA Trust v. Cerberus Four Holdings LLC (In re Innkeepers USA Trust), 11- 02557, U.S. Bankruptcy Court, Southern District New York (Manhattan). The Chapter 11 case is In re Innkeepers USA Trust, 10-13800, in the same court.

New Filings

Graceway Files for Quick Sale to Switzerland’s Galderma

Graceway Pharmaceuticals LLC filed under Chapter 11 yesterday in Delaware to sell the business for $275 million in cash to Switzerland’s Galderma SA, unless a higher offer turns up at an auction projected for Nov. 3.

Debt of the Bristol, Tennessee-based company includes $430.7 million owing on a first-lien revolving credit and term loan. Second-lien debt is $330 million, with mezzanine debt totaling another $81.4 million.

The company said the sale has consent from holders of 40 percent of the first-lien debt, which means the sale could be opposed by holders of 60 percent of the senior debt.

Graceway was formed in 2007 by an $875 million acquisition of the North American and South American pharmaceutical businesses from 3M Co. Sales in 2007 of $314 million dropped to $220 million in 2010. In the first half of 2011, sales were $65.5 million.

The decline in sales largely resulted from the expiration of the patent on the skin cream Aldara in February 2010. Aldara had been responsible for about 80 percent of sales.

Aldara and another Graceway product, Zyclara, are used to treat genital warts.

The Chapter 11 case will be financed with a $6 million loan from a non-bankrupt affiliate. The new financing will have a lien ahead of existing lenders. Bank of America NA is agent for the first-lien lenders. Deutsche Bank Trust Co. Americas is agent for the second-lien lenders.

Graceway is proposing that other bids be due by Nov. 1, before an auction two days later and a hearing Nov. 7 for approval of the sale.

Trade suppliers are owed $30 million, according to a court filing.

The slide toward Chapter 11 began in earnest in August 2010 when Graceway skipped an interest payment on the second-lien debt.

The case is In re Graceway Pharmaceuticals LLC, 11-13036, U.S. Bankruptcy Court, District of Delaware (Wilmington).

PJCOMN, Papa John’s Franchisee, Files in Baltimore

PJCOMN Acquisition Corp., the operator of Papa John’s pizza restaurants in Colorado and Minnesota, filed a Chapter 11 petition on Sept. 27 in Baltimore, one day after the secured lender had a receiver appointed who froze the payroll and operating accounts.

The Baltimore-based company traces its problems to 2007 when it purchased 72 stores, financed with a $9 million loan from General Electric Capital Corp.

PJCOMN alleges that Papa John’s International Inc. “materially misled” it by failing to disclose “material adverse conditions.” Specifically, PJCOMN contends there were $1.2 million in disclosed tax assessments and $700,000 of undisclosed other liabilities.

PJCOMN also says it was sold defective dough.

The claims are the subject of a lawsuit the company already filed in state court in Minnesota.

The company failed to make payments due in May to Stamford, Connecticut-based GECC. The lender is currently owed $7.7 million.

The case is In re PJCOMN Acquisition Corp., 11-29380, U.S. Bankruptcy Court, District of Maryland (Baltimore).

Star Buffet Files in Phoenix to Stave Off Judgment

Star Buffet Inc. and subsidiary Summit Family Restaurants Inc. filed for Chapter 11 protection on Sept. 28 in Phoenix after being unable to deal with a $723,500 judgment.

Star, based in Scottsdale, Arizona, has about 32 stores in 13 states, according to the web site.

The company claimed to be profitable in a statement announcing bankruptcy. The latest financial statements for 28 weeks ended in August 2010 show a net loss of $1.3 million on revenue of $33.4 million. The operating loss for the period was $1.6 million. For the fiscal year ended in January 2010, the net loss was $2 million on revenue of $78 million.

Star said its assets are $22.4 million, with debt totaling $21.4 million. The company said it is current on the $5.6 million credit line and a $5.4 million mortgage.

Although Star claims there is equity in the real estate portfolio, the company said it’s been unable to refinance a mortgage coming due in January.

Star shares last traded on Sept. 27 at 61 cents in the over-the-counter market.

The case is In re Star Buffet Inc., 11-27518, U.S. Bankruptcy Court, District of Arizona (Phoenix).


Madoff Trustee Defends Document-Production Procedures

The trustee liquidating Bernard L. Madoff Investment Securities Inc. filed papers on Sept. 28 defending his proposal for streamlining document production in the 900 lawsuits he filed against 5,000 defendants.

Out of 16,000 notices the trustee sent, there were 15 objections, the trustee said. Some were resolved. Unresolved objections contended that the trustee is unilaterally abrogating confidentiality agreements.

As to the objectors, the trustee points out how a confidentiality agreement doesn’t rise to the level of a protective order signed by a court. The trustee cites cases where privately negotiated confidentiality agreements can be overridden by a court in the course of requiring production of documents in litigation.

Nonetheless, the trustee believes that protections will be greater under his proposed procedures than they are under existing confidentiality agreements.

If the judge approves, the trustee will set up a so-called electronic discovery room. Those previously producing documents have the ability to object to the inclusion of “highly sensitive commercial information” into the e-discovery room. Parties who originally gave documents to the trustee will be notified before they will be made available to someone else.

The e-discovery room won’t be open to customers being sued for recovery of fictitious profits.

Differing with another U.S. District Judge who ruled on the same subject, U.S. District Judge Jed Rakoff wrote an opinion this week effectively precluding the trustee from making recoveries from customers on account of money taken out of the Madoff firm more than two years before bankruptcy. Rakoff’s ruling also makes it difficult for the trustee to recover principal repayments, even within two years.

The Madoff firm began liquidating in December 2008 with the appointment of the trustee under the Securities Investor Protection Act. Bernard Madoff individually went into an involuntary Chapter 7 liquidation in April 2009. His bankruptcy case was consolidated with the firm’s liquidation. Madoff is serving a 150-year prison sentence following a guilty plea.

The Madoff liquidation case is Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities Inc., 08-01789, U.S. Bankruptcy Court, Southern District of New York (Manhattan). The criminal case is U.S. v. Madoff, 09-cr- 00213, U.S. District Court for the Southern District of New York (Manhattan).

Traders Duped on Dish-’Old’ Blockbuster Mix-Up

Stock of bankrupt Blockbuster Inc., now renamed BB Liquidating Inc., had been trading at around 5 cents since April, when the company sold assets to Dish Network Corp. “Old” Blockbuster has been saying consistently that existing stock will have no value and that debt run up during the Chapter 11 case can’t even be paid in full.

On Sept. 22, the stock perked up and closed at 12 cents in over-the-counter trading. On Sept. 28, the stock spiked to close at 38.4 cents.

The reason for the uptick can be traced to Dish, which announced on Sept. 22 that the Blockbuster business it purchased will launch a video-streaming service to compete with Netflix.

Traders may have mistaken “old” and “new” Blockbuster, because the fortunes of the “old” company in bankruptcy haven’t changed.

“Old” Blockbuster made a regulatory filing on Sept. 28 and issued a statement on Sept. 29 reiterating its “strong belief” that the stock will be worthless. The liquidated company again said that the remaining proceeds from asset sales are “significantly less” than costs run up in the Chapter 11 case.

Trading in “old” Blockbuster stock was halted yesterday. Trades were canceled around 20 cents.

The price spike may have been the result of a pump-and-dump operation designed to prey on uninformed investors. For Bloomberg coverage, click here.

Blockbuster sold assets to Dish under a contract with a $320 million sticker price. Dish later said it would keep 1,500 U.S. stores in operation.

U.S. Blockbuster began its attempted Chapter 11 reorganization in September 2010 with 5,600 stores, including 3,300 in the U.S. and the remainder abroad. The U.S. petition listed assets of $1.017 billion against debt of $1.465 billion. Blockbuster estimated it owed $57 million in accounts payable in addition to secured and subordinated notes.

The parent’s Chapter 11 case is In re BB Liquidating Inc., 10-14997, U.S. Bankruptcy Court, Southern District New York (Manhattan). The Canadian subsidiary’s Chapter 15 case is In re Blockbuster Canada Co., 11-12433, U.S. Bankruptcy Court, Southern District New York (Manhattan).

A&P Reports $19.1 Million Monthly Operating Loss

Great Atlantic & Pacific Tea Co., the supermarket operator, reported a $19.1 million loss from continuing operations for four weeks ended Aug. 31. Sales in the month were $529 million, according to the operating report filed with the U.S. Bankruptcy Court in White Plains, New York.

Interest expense of $10.3 million and reorganization items of $4.8 million contributed to a net loss of $34.4 million in the month.

Cash at the month’s end was $293.3 million. The month began with $332.6 million cash.

Montvale, New Jersey-based A&P filed for reorganization in December with 395 supermarkets. There are now 330 locations, the company said in a court filing. The stores are mostly in New York, New Jersey, and Pennsylvania. A&P listed assets of $2.531 billion and debt totaling $3.211 billion. Along with A&P, store brands include Pathmark, Food Emporium, and Waldbaum’s.

The case is In re The Great Atlantic & Pacific Tea Company Inc., 10-24549, U.S. Bankruptcy Court, Southern District New York (White Plains).

Solyndra Being Investigated for Misleading Government

Solyndra LLC, the bankrupt solar panel maker, is being investigated by the Federal Bureau of Investigation for possible accounting fraud and financial misrepresentations made to the government, according to an FBI official who requested anonymity because the investigation is continuing.

For Bloomberg coverage, click here.

For a story on why the U.S. government decided to restructure and subordinate a portion of the $535 million government-guaranteed loan known to be in default, click here.

Solyndra filed for Chapter 11 reorganization on Sept. 6 and was raided two days later by the FBI. Operations halted in late August.

Based in Fremont, California, Solyndra said assets were $859 million while debt totaled $749 million as of Jan. 1. When the petition was filed, Solyndra said secured debt was $783.8 million. The business was financed in part with $709 million from eight issues of preferred stock, plus $179 million in convertible notes.

Construction of the plant began in September 2009. Production commenced in January 2011, halting in late August when new financing failed to materialize. Revenue in 2010 of $142 million resulted in a $329 million net loss.

The case is In re Solyndra LLC, 11-12799, U.S. Bankruptcy Court, District of Delaware (Wilmington.)

Madoff Defendants Jump on the Jed Rakoff Bandwagon

Two defendants in a lawsuit by the trustee liquidating Bernard L. Madoff Investment Securities Inc. jumped on the bandwagon that U.S. District Judge Jed Rakoff started rolling on Sept. 27 when he ruled that the so-called safe harbor in bankruptcy law bars all lawsuits except claims for money received for actual fraud within two years of bankruptcy.

Yesterday, two days after Rakoff’s ruling, ABN Amro Bank (Ireland) Ltd. and Rye Select Broad Market XL Portfolio Ltd. filed papers asking a district judge to remove the lawsuit from the grasp of U.S. Bankruptcy Judge Burton R. Lifland.

The motion contends that suit must be removed because it requires consideration of non-bankruptcy federal law. ABN Amro and Rye Select point to the issues of limitations on bankruptcy courts’ power as the required non-bankruptcy federal law.

They similarly contend that the Securities Investor Protection Act is a non-bankruptcy law the court must consider when ruling on the merits of the lawsuit.

Running counter to their arguments that the case must be in district court, they admit they are being sued on bankruptcy claims where bankruptcy judges make final rulings.

Rye Select and ABN Amro also contend the case should be taken away at the discretion of the district court in the interest of judicial economy. By that, they mean that the district court can, but isn’t required to, take the suit away from the bankruptcy judge so fewer judges spend less time deciding the same dispute.

They say they are entitled to dismissal of most, if not all, of the suit because the case involves swap agreements that are protected from clawback actions under Section 546 of the Bankruptcy Code.

The Madoff firm began liquidating in December 2008 with the appointment of the trustee under the Securities Investor Protection Act. Bernard Madoff individually went into an involuntary Chapter 7 liquidation in April 2009.

His bankruptcy case was consolidated with the firm’s liquidation. Madoff is serving a 150-year prison sentence following a guilty plea.

The lawsuit in bankruptcy court is Picard v. ABN Amro Bank (Ireland) Ltd. (In re Bernard L. Madoff Investment Securities Inc.), 10-05355, U.S. Bankruptcy Court, Southern District of New York. The Madoff liquidation case is Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities Inc., 08-01789, U.S. Bankruptcy Court, Southern District of New York (Manhattan). The criminal case is U.S. v. Madoff, 09-cr- 00213, U.S. District Court for the Southern District of New York (Manhattan).

Perkins Committee Authorized to Sue Castle Harlan

The creditors’ committee for Perkins & Marie Callender’s Inc. was authorized by the bankruptcy court this week to sue Castle Harlan Inc., the restaurant operator’s owner.

The committee identified $72 million in disputed claims by Castle Harlan and others that the committee intends to oppose. By knocking out the claims, the committee believes the recovery by creditors will be “significantly enhanced.” For claims the committee intends to knock out, click here for the Sept. 22 Bloomberg bankruptcy report.

The bankruptcy judge also authorized the committee to oppose allowing the creditors with objected claims to vote on the pending reorganization plan.

Creditors are voting on a Chapter 11 plan in advance of a confirmation hearing on Oct. 31. For details on the plan, click here for the July 18 Bloomberg bankruptcy report.

Court papers said assets were $290 million while debt aggregated $440.8 million. When the bankruptcy began, the company owned 85 Marie Callender’s stores in 9 states and franchised 37 in four states. It owned 160 Perkins stores in 13 states and franchised 314 in 31 states. Along with the filing, the company said it was closing 58 stores. It was acquired in 2005 by Castle Harlan Inc. for $245 million cash.

The case is In re Perkins & Marie Callender’s Inc., 11- 11795, U.S. Bankruptcy Court, District of Delaware (Wilmington).

Colonial Directors Settle Suit for $10.5 Million

Directors and officers of Colonial BancGroup Inc. settled a securities class-action lawsuit that was filed before the Chapter 11 case began in August 2009.

Assuming the bankruptcy court agrees at an Oct. 13 hearing, the company’s directors’ and officers’ liability insurance company will pay the $10.5 million settlement. The settlement must also be finally approved by a U.S. District Court in Alabama.

Colonial’s plan was approved over objection from the Federal Deposit Insurance Corp. The plan was implement on June 3, the day after it was confirmed by the bankruptcy judge. For details on the plan, click here for the June 3 Bloomberg bankruptcy report.

Colonial filed under Chapter 11 in August 2009 after the bank subsidiary was taken over by regulators. The Colonial holding company, based in Montgomery, listed assets of $45 million and debt of $380 million.

Colonial provided loans to mortgage loan originators to tide them over until mortgages could be packaged and sold to investors in securitizations. The holding company was being investigated with regard to accounting practices and the warehouse loan operation.

The case is In re Colonial BancGroup Inc, 09-32303, U.S. Bankruptcy Court, Middle District of Alabama (Montgomery).

Hussey Copper Nails Down $35 Million Interim Loan

Hussey Copper Corp. filed a Chapter 11 petition on Sept. 27 and received interim authority the next day to borrow $35 million from the pre-bankruptcy lender, PNC Bank NA.

At the final financing hearing on Oct. 18, Hussey is aiming for permission to borrow $50 million.

Hussey intends on using Chapter 11 to sell the business for $84.7 million to a buyer named KHC Acquisition Corp. under a contract worked out before bankruptcy. The hearing to approve sale procedures will also take place on Oct. 18.

According to the sale contract, the buyer is related to Kataman Metals LLC in St. Louis and Cobalt Ventures in Louisville, Kentucky.

In business since 1848, family-owned Hussey makes a variety of copper products from plants in Leetsdale, Pennsylvania, and Eminence, Kentucky. Revenue of $454 million in 2008 fell to $382 million in 2010. Last year, the net loss was $3 million, according to court papers.

Debt includes $38.2 million owing on a matured revolving credit with PNC, as agent for secured lenders. There is also a $2.4 million subordinated loan. In addition, the company owes $29 million to trade suppliers, the papers say.

The Leetsdale plant is near Pittsburgh.

The case is In re Hussey Copper Corp., 11-13010, U.S. Bankruptcy Court, District of Delaware (Wilmington).

Judge Shopping

Sports Teams Judge Shopping for Quick Reorganizations

A Bloomberg feature story analyzes why most professional sports teams opt to file for bankruptcy reorganization in Delaware rather than in their hometowns. The story explains how some teams reorganizing in Delaware achieved their goals more quickly than those in bankruptcy at home. To read, click here.

A bill pending in the House of Representatives would end the primacy of Delaware in Chapter 11 reorganization, where it attracts so-called prepacks for companies hoping to enter and exit bankruptcy quickly.

The pending legislation would require companies to file where the head office or principal assets are located. A company could no longer select a city where a small subsidiary is based or a state, such as Delaware or New York, where it or a subsidiary is incorporated.

House bill, H.R. 2533, is sponsored by Lamar Smith, the Republican Chairman of the House Judiciary Committee, and by John Conyers Jr., the Judiciary Committee’s ranking Democrat. The bill is entitled “Chapter 11 Bankruptcy Venue Reform Act of 2011.”

Watch List

Wastequip Facing Revolver Refinancing in February

Wastequip Inc. has a revolving credit that matures in February, followed by a term loan maturing in early 2013, Standard & Poor’s said yesterday in the process of lowering the corporate rating by one notch to CCC-.

S&P see refinancing risk next year as “very high.” Although there is enough cash to pay off the revolver, interest on the holding company notes begins requiring cash payment at the same time, S&P said.

S&P estimates that holders of the $381 million in senior secured credit facilities, now also rated CCC-, won’t recover more than 50 percent following payment default.

Total debt in June was about $600 million, S&P reported.

Closely held Wastequip is the U.S.’s largest manufacturer of non-mobile waste-handling equipment such as dumpsters and compactors.

Sylvan Learning Centers Parent Facing Covenant Bust

Educate Inc., a provider of tutoring and other educational services for children from pre-kindergarten through 12th grade, could violate loan covenants as soon as the fourth quarter, Standard & Poor’s said yesterday while lowering the corporate credit by one click to CCC+.

With $1.2 million in cash on June 30, S&P says Educate may not have cash enough to pay the cost of amending loan covenants.

S&P left the B- rating in place on the second-lien term loan.

Financial problems are attributable to lower franchise income, S&P said. Baltimore-based Educate franchises Sylvan Learning Centers.


Geokinetics Fatalities Precipitates Downgrade

Geokinetics Holdings Inc., the world’s second-largest provider of seismic data, was downgraded yesterday by Standard & Poor’s in response to a lifeboat accident in the Gulf of Mexico with four fatalities.

The corporate rating slipped one peg to CCC+.

S&P noted that the Houston-based company said it has adequate insurance coverage.

Geokinetics’ parent company, Geokinetics Inc., reported a net loss of $68.2 million in the first half of 2011 on revenue of $333.2 million. For 2010, the net loss was $138.7 million on revenue of $558.1 million. The loss from operations last year was $92.1 million.

Geokinetics Inc. closed yesterday at $2.44, down 10 cents in New York Stock Exchange composite trading. The three-year closing high was $22.14 on Sept. 29, 2009. The low in the period was $1.96 on March 6, 2009.

Daily Podcast

District Judges Disagree on Madoff Clawbacks: Bankruptcy Audio

U.S. District Judge Jed Rakoff wrote an 18-page opinion on Sept. 27 limiting clawback suits by the trustee for Bernard L. Madoff Investment Securities Inc. to recoveries going back only two years before bankruptcy. Another district judge barely a month before ruled that the Madoff trustee’s suits can claw back payments for six years before bankruptcy. The bankruptcy podcast with Bloomberg Law’s Lee Pacchia and Bloomberg News bankruptcy columnist Bill Rochelle dissects the Rakoff opinion and highlights areas where it’s vulnerable to being set aside on appeal. To listen, click here.

Advance Sheets

Lease Assumption Deadline Met by Filing Motion

The deadline for entry of an order assuming a real property lease wasn’t changed by 2005 amendments to Section 365(d)(4) of the Bankruptcy Code, the U.S. 6th Circuit Bankruptcy Appellate Panel ruled on Sept. 29.

The case involved a company in Chapter 11 that filed a motion on Aug. 26 to assume a lease. The deadline for lease assumption was Aug. 30.

At a hearing on lease assumption in September, the landlord argued that the lease couldn’t be assumed because an assumption order wasn’t signed by the judge before the Aug. 30 deadline.

The Appellate Panel from Cleveland, in an opinion by U.S. Bankruptcy Judge Thomas Fulton, noted how cases before the 2005 amendments uniformly said the deadline was met if the assumption motion was filed before the deadline. Fulton examined the 2005 amendments and didn’t find a change relevant to when the assumption order must be signed.

The 2005 amendments place an outside limit of 210 days on the time a bankrupt has for deciding whether to assume or reject a lease. If not assumed when the deadline expires, the lease is automatically rejected.

The case is Cousins Properties Inc. v. Treasure Isles HC Inc. (In re Treasure Isles HC Inc.), 10-8075, U.S. 6th Circuit Bankruptcy Appellate Panel (Cleveland.)

Unscheduled Lawsuit by Chapter 13 Debtor Survives

A Chapter 13 debtor was allowed to continue prosecution of an employment discrimination lawsuit even though it had not been listed among the assets in her bankruptcy, a federal district judge in Indianapolis ruled on Sept. 17.

The discrimination suit was filed before the Chapter 13 filing. The plan was later confirmed. After bankruptcy, the defendant in the discrimination suit sought dismissal. The motion was denied by U.S. District Judge Richard L. Young.

Young rationalized that the bankrupt had standing because the plaintiff amended her schedules to list the asset and had the bankruptcy court appoint her lawyer as special counsel to prosecute the claim on behalf of the Chapter 13 estate.

Young also refused to adopt the defendant’s argument that the suit should have been dismissed under the doctrine of judicial estoppel. Saying the doctrine did not apply when the schedules were amended, Young noted that fruits of the suit will flow to creditors.

For a similar case arising in the U.S. Court of Appeals in New Orleans, click here for a discussion of the en banc ruling in a case called Reed v. City of Arlington in the Aug. 29 Bloomberg bankruptcy report.

The case is Tucker v. Closure Systems International, 10- 01476, U.S. District Court, Southern District Indiana (Indianapolis).

--With assistance from Linda Sandler in New York; and Dawn McCarty, Steven Church, and Michael Bathon in Wilmington, Delaware. Editors: John Pickering, Mary Romano

To contact the reporter on this story: Bill Rochelle in New York at

To contact the editor responsible for this story: John Pickering at

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