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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
2003 LC CASE SUMMARIES 2003 Bankr. LEXIS 1396 (Bankr. W.D. Mo.) [U.S.A.]
Topics: Bankruptcy; Non-Bank Issuers
Type of Lawsuit: Debtor in Bankruptcy sued Issuers to avoid liens, equitably to subordinate Issuer's claims, and for declaratory judgment concerning property covered by the liens.
Parties:
Applicant/Debtor- Vanguard Airlines, Inc. (Counsel: Aaron C. Smith, Amy E. Hatch, Arthur A. Chaykin, David D. Ferguson, Christian J. Jelly, Daniel J. Flanigan, and Jennifer J. Chapin of Polsinelli Shalton & Welte; David A. Kraft of Berman, DeLeve, Kuchan & Chapman L.C.; Ronald S. Weiss of Berman DeLeve Kuchan & Chapman, Kansas City, MO.; Michael J. Pankow of Brownstein Hyatt & Farber, P.C., Denver, CO.)
Issuers- Hambrecht 1980 Revocable Trust and J.F. Shea Co., Inc.
First Beneficiary/First Bank- Standard Federal Bank
Second Beneficiary/Second Bank- U.S. Bank Secured Creditors- Pegasus Aviation, Inc., TransMeridian Airlines, Inc., Certain Affiliates of Pegasus Aviation, Inc. ("Pegasus"); and the Sarah and William Hambrecht Foundation, Shea Ventures, LLC, J.F. Shea Co., Inc., and the Hambrecht 1980 Revocable Trust ("Hambrecht")
Unsecured Creditors- Official Committee of Unsecured Creditors for Vanguard Airlines, Inc. Creditor Committee (Counsel: David A. Kraft of Berman, DeLeve, Kuchan & Chapman L.C.; Ronald S. Weiss of Berman DeLeve Kuchan & Chapman, Kansas City, MO.; Ira P. Goldberg, and Richard J. Mason of Ross & Hardies, Chicago, IL.)
Underlying Transaction: Guarantee of reimbursement for credit card charge backs.
LC: Standby LCs totaling US$4,000,000 and US$3,000,000. Silent as to governing rules.
Decision: The U.S. Bankruptcy Court for the Western District of Missouri, Venters, J., granted Applicant/Debtor's motions to approve settlements.
Rationale: Approval of a settlement agreement is appropriate when the probability of debtor's success in litigation is low; the contemplated litigation would be complex, expensive, and inconvenient; and when the settlement agreement is in the "paramount interest of the creditors"; even when there are no known likely difficulties in collection of a judgment.
Article
Factual Summary: Applicant/Debtor operated a discount passenger airline and, as part of its operations, maintained a reserve with First Bank under a merchant's agreement for credit card sales that held funds available to cover charge backs on the cards of customers when tickets purchased in advance could not be honored by the airline. In an attempt to gain additional working capital for its operations, Applicant/Debtor arranged to have LCs issued by two non-bank investors in favor of First Bank, payable to cover charge backs. First Bank reduced the amount required in the reserve fund accordingly. To secure the LCs, Applicant/Debtor executed security agreements in property related to its credit card sales and warrants in its common stock in favor of Issuers. When First Bank terminated business relations with Applicant/Debtor, Issuers negotiated with Second Bank/Beneficiary and issued new LCs to cover the same types of charge backs and Applicant/Debtor issued additional warrants in favor of Issuers.
Despite the additional capital infusion from these arrangements and other attempts to increase revenue, Applicant/Debtor was unable to sustain operations and filed for Chapter 11 (reorganization) bankruptcy. As part of the bankruptcy proceedings, Applicant/ Debtor sued Issuers, seeking to avoid their claimed liens, to alter the scope of the liens, and for recharacterization, preference, and fraudulent conveyances.
As a result of negotiations, a settlement was reached and Applicant/Debtor moved for permission to compromise all of the preceding actions except the lien avoidance. Unsecured Creditors objected to the settlement on the grounds that the concessions were based on "inadequate consideration." The court approved the settlement with Issuers.
Legal Analysis:
1. Reasonableness of Bankruptcy Settlement: In determining that the proposed settlement would be in the best interest of the debtor and issuers, the court stated that:
the litigation, as a whole, is both legally and factually complex and would necessarily be accompanied by significant attorney's fees on behalf of the [Applicant/Debtor], the [Unsecured Creditors], and [Secured Creditors] and the [Issuers]. Viewing the terms of the settlement as a whole, the Court finds that the paramount interest of the creditors is satisfied because it is unclear whether the estate would be better off after litigation on the merits. Additionally, the Court notes that the [Applicant/Debtor] is maintaining a cause of action against the [Issuers] for lien avoidance, and the estate may reap additional benefits if the [Applicant/Debtor] is successful on that action. While the Court, or the Committee, may not have settled on the same terms as those proposed by the [Applicant/ Debtor], the court "need only canvass the issues to determine that the settlement does not fall 'below the lowest point in the range of reasonableness.'" [quoting In re Apex Oil Co., 92 B.R. 847, 867 (Bankr. E.D. Mo. 1988)].
[JEB/fkd]
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