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PRESS RELEASE: SALENE R. KRAEMER, PITTSBURGH, PENNSYLVANIA CERTIFIED IN BUSINESS BANKRUPTCY LAW

July 24, 2019

I recently found out I was Board-Certified while I was in China adopting my new daughter.  This is my most meaningful professional achievement to date for many reasons.  Running a niche restructuring practice (that is debtor-focused) as a solo practitioner is not for the faint of heart.  I thank my staff, colleagues, mentors and referral sources who continue to entrust to me their clients.  I take each referral very seriously.  Another special thanks goes to my friends and family.  All of you have enabled me to hold tight to my career which has always been important and meaningful to me.    Thank you.  Board-Certified…. at last!!!!

logoFOR IMMEDIATE RELEASE

SALENE R. KRAEMER,PITTSBURGH,PENNSYLVANIA CERTIFIED IN BUSINESS BANKRUPTCY LAW

March 29,2019-The American Board of Certification announced that Salene R.Kraemer, attorney with Mazurkraemer Business Law, in Pittsburgh, Pennsylvania, has successfully completed the requirements for national certification in Business Bankruptcy Law.

To become certified, Ms.Kraemer satisfied the following requirements:

  • Full-time practice of law for at least five years;
  • Good standing in the bars of all states in where a license to practice law is held;
  • Devoted at least 30% of practice time and at least 400 hours to bankruptcy-related matters in the last three years;
  • Documented involvement in Business Bankruptcy by providing information on cases practiced;
  • Demonstrated commitment to continuing legal education by earning at least 60 hours of bankruptcy education in the past three years.
  • Passed an extensive, day-long written examination covering Business Bankruptcy issues.

IMG_9670courthouse

The American Board of Certification (ABC) is a non-profit organization dedicated to serving the public and improving the quality of the bankruptcy bar. The rigorous ABC-certification standards are designed to encourage bankruptcy practitioners to strive toward excellence and to recognize those attorneys who are experts in the bankruptcy field.  The ABC offers separate certificate programs in business and consumer bankruptcy and creditors’ rights.  All three ABC Certification Programs are accredited by the American Bar Association.  For a complete listing of certified attorneys, see our webpage at www.abcworld.org.

The ABC is co-sponsored by The American Bankruptcy Institute and the Commercial Law League of America.  The ABC Board of Directors consists of many of the nation’s finest bankruptcy and creditors’ rights attorneys, former judges, and law professors.

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MAZURKRAEMER Law Clerk Spotlight: Jared Quinn, MAZURKRAEMER Law Clerk

June 27, 2019

jaredquinnIMG_0424MAZURKRAEMER is proud to have Jared Quinn, as one of our law clerks.  I just recently had a long coffee talk with him.  He is bright and driven.  I cannot wait to see the business bankruptcy lawyer he will become.  Here is a spotlight on him:

A Western Pennsylvania native, and self-proclaimed “yinzer,” Jared Quinn is a typical “Pittsburgher”.  He graduated from Hempfield Area High School in Greensburg, PA, and from the University of Pittsburgh sum cum laude. During undergrad, he majored in business and minored in economics.

Recently, Jared graduated from the University of Pittsburgh School of Law where he won the American Bankruptcy Institute Medal of Excellence, CALI Award in Advanced Bankruptcy, and the Gerald K. Gibson Bankruptcy Award.  He was also selected to be on the Pittsburgh Tax Review.  While serving as a Bluebook Editor, Jared’s student note, Congress Should Have an Interest in This Interest, was selected for publication in the review.

quinn3DSC_2128Jared participated in the 2018 Willem C. Vis Moot competition, an international commercial arbitration moot competition in Vienna, Austria. Throughout the competition, Jared and his team pleaded against other universities from across the world. His team placed 14thout of 357 teams in the general rounds and finished in the top 32 during the elimination rounds.

“It was one of the most rewarding and unique experiences I could have ever had in law school,” said Jared.

IMG_0629quinn2  Because of this experience, Jared will soon earn an LL.M. in European and International Business Law at the University of Vienna.

While a law student, Jared started working as a law clerk for the Chapter 13 bankruptcy trustee for the Western District of Pennsylvania, then interned for Deloitte’s international tax department, followed by an externship with Honorable Chief Judge Böhm of the United States Bankruptcy Court for the Western District of Pennsylvania.  He subsequently worked as a law clerk for Goldberg Persky and White.

Jared has enjoyed learning about and practicing business and bankruptcy law. Jared credits his uncle, bankruptcy attorney Greg Dunn, for inspiring him to work in business and bankruptcy law.

Jared is now studying for the New York Bar Exam.  He says that every recent law school graduate needs at least one hobby to keep his or her mind off of the looming Bar Exam.  Jared loves to cook and bake. Other than his favorite dessert, chocolate chip cookies, he can prepare cheesecakes and an assortment of other baked goods. Jared also likes to exercise, and he plays softball for the Pitt Law softball team in the ACBA league, the 2018 Champions. Watch out for him on the field now, and in the courtroom soon enough!

Legal Concerns for the Entrepreneur

June 19, 2019

Engaged by another entrepreneur this morning in the retail clothing space.  I enjoy working with creative, idea makers to help them make their dream a reality.  #businesslaw #entrepreneur. I will share here the presentation I shared with him as a part of my consultation. Legal Concerns for the Entrepreneur

Shopping Mall in Jinan, China

Shopping Mall in Jinan, China

Business Opportunity: Specialized Gorgeous Bridal Shop for Sale

February 5, 2019

GLITTER GRIT 7fadb36251e39302b121abe608da4b41

Sales:  $450,000/year Product Inventory:  $400,000

Asking Price: $460,000

See teaser here:

Listing Summary – Ver 3.0

BUSINESS FOR SALE 

 The business is a bridal shop specializing in unique and non-traditional wedding gowns from small and independent designers. Its products are favored by fashion-conscious brides that are looking for something exclusive and avant-garde. As part of the store’s offerings, the bride can complete her individual look with handpicked accessories specifically created to compliment and highlight her particular dress. The store also extends its offering of wedding gowns and accessories with a selection of other high-end and elegant dresses that are specifically designed and styled for special occasions. 

REASON FOR SELLING 

The owner wants to relocate to Ireland with her husband. However, she is willing to stay as long as necessary to train the buyer and ensure a smooth transition. The owner is also willing to sign a non-compete agreement. 

GROWTH POTENTIAL 

The new owner can easily grow the business by adding products and services specifically related to wedding gowns, and more broadly to the wedding event in general. Examples of products and services that could be sold by leveraging the original wedding gown sale are: (1) wedding shoes; (2) alterations; and, (3) wedding dress cleaning and preservation. Examples of products and services that could be sold by being embedded in the wedding event and process are: (1) bridesmaid dresses; (2) bridesmaid gifts; (3) swimsuits and resort wear; (4) silk robes and lingerie. 

IDEAL BUYER 

The ideal buyer for this business has some of the following characteristics: (1) a passion for this unique type of business, its industry, and its customers; (2) comfortable managing and motivating employees to deal with customers receiving a very personalized service; and, (3) at least $25,000 or more in liquid capital. 

FOR MORE INFORMATION 

PLEASE CONTACT 

Please Note: Before any additional information is provided, interested parties will have to execute a Non-Disclosure Agreement and provide proof of funds. 

SAL ACOSTA, BSEE, MBA · Partner, Cell Phone: 484-358-9470

Email: SAL459@Yahoo.com

http://www.LandonAndAcosta.com

Serving: Eastern OH, Western PA, Northern WV

GLITTER GRIT 7fadb36251e39302b121abe608da4b41

3d Cir. EFH Decision Affirms Disallowance of $275M Break-Up Fee

January 30, 2019

Date Created: Wed, 2019-01-23 14:18

1

Published by the ABI Business Reorganization Committee

As transactional business attorneys, we strive to craft documents that are bullet-proof, covering every what-if scenario should a deal fall apart. We hope that the agreements we draft will result in a fair and just consequence for all parties to the bargain.

On Sept. 13, 2018, the U.S. Court of Appeals for the Third Circuit issued its opinion in Energy Future Holdings Corp., et al. (Appellee) v. NextEra Energy Inc. (NextEra) (Appellant),[1] affirming the U.S. Bankruptcy Court for the District of Delaware’s decision[2] in the In re Energy Future Holdings Corp., et al., (EFH) (debtors) chapter 11 bankruptcy cases, striking a $275 million break-up fee (termination fee). What practical tips can we learn from this case?

The debtors owned an 88 percent economic interest in the rate-regulated business of Oncor Electric Delivery Co. LLC (Oncor), the largest electricity transmission and distribution system in Texas.[3] On July 29, 2016, the debtors entered into an Agreement and Plan of Merger (Agreement) with NextEra, pursuant to which NextEra would acquire the debtors’ interest in Oncor.[4] The Agreement provided that, but for certain exceptions, the debtors must pay a $275 million termination fee to NextEra if the debtors terminated the Agreement.[5] The debtors would not have to pay the termination fee if they could not get regulatory approval by the Public Utility Commission of Texas (PUCT) and NextEra (not the debtors), then terminated the agreement.[6] If the PUCT did not approve and the debtors then terminated the Agreement, then the break-up fee was to be due and payable to NextEra.[7]

While PUCT regulatory approval was a condition to the merger, the Agreement did not set a date by when such approval was required and did not contemplate the scenario in which the merger would dissolve automatically because the third-party PUCT approval was not obtained.[8] In the face of regulatory rejection, NextEra could simply “be patient,” wait for the debtors to terminate first, then collect the $275 million break-up fee.[9] And that is exactly how it played out.

Ultimately, the PUCT refused to approve the merger because NextEra, a.k.a. the “deal-killers,” refused to comply with the (1) the requirement that Oncor maintain an independent board of directors, and (2) the ability of certain minority shareholders to veto dividends.[10] Without PUCT approval and with another purchaser waiting in the wings, the debtors formally terminated the Agreement based on the failure to obtain regulatory approval and NextEra’s alleged breach of the Agreement.[11]

NextEra filed an application seeking recovery of its $275 million administrative claim in the chapter 11 cases.[12] Creditors of the debtors simultaneously sought reconsideration of prior approval of the termination fee.[13] In an extraordinary move, Judge Sontchi amended his previously approved order so as to have the practical effect of striking the award of the $275 million termination fee.[14]

Judge Sontchi explained that he had “fundamentally misapprehended the facts as to whether the Termination Fee would be payable if the PUCT failed to approve the NextEra Transaction.”[15] No party made him aware “that if the PUCT did not approve the NextEra Transaction, the Debtors could eventually be required to terminate the Merger Agreement and trigger the Termination Fee unless NextEra terminated first of its own volition.”[16]

On appeal, the Third Circuit, after taking the matter upon direct certification, rejected NextEra’s argument that the motion to reconsider was untimely, since the Approval Order was interlocutory and not a final order.[17] The Third Circuit also found that the lower court fundamentally misjudged the likelihood that the termination fee would be harmful to the estates. Had the bankruptcy court possessed complete knowledge of the facts at the time the Approval Motion was filed, it could not have approved the termination fee as an allowable administrative expense under 11 U.S.C. § 503(b).[18]

Given the totality of the circumstances, the fee was not an “actual, necessary cost and expense of preserving the estate” under 11 U.S.C. § 503(b)(1)(A).[19] “Payment of a termination or break-up fee when a court (or regulatory body) declines to approve the related transaction cannot rovide an actual benefit to a debtor’s estate sufficient to satisfy the statutory requirement.”[20] The termination fee was detrimental, with the debtors “back to square one and, with the passage of time, in a worse off position — desperate to accept an alternative transaction.” [21] The Third Circuit further noted that NextEra’s bid was not designed to provide a competitive benefit.[22] Although the termination fee was intended to induce NextEra to adhere to its bid, this benefit was potentially negated by the perverse incentive that resulted, inducing NextEra to hold firm against any burdensome ‘deal killer’ conditions.”[23] The termination fee would have created substantial financial risk if the PUCT did not approve the transaction, and it had the “potential to be disastrous.”[24]

It should be noted that this Third Circuit Opinion was not a majority opinion. In the dissent, Judge Rendell took issue with (1) the grant of a delayed reconsideration motion when there had been no clear error of fact or law, and (2) what he viewed as a flawed analysis of the benefit to the estates as though there had been no pre-approval of the termination fee as part of the Merger Agreement.[25] Judge Rendell writes that even if the bankruptcy court judge “failed to appreciate a particular set of potential consequences”, that “hindsight cannot justify nullifying a material term of the deal that was struck….”[26]

Practical Takeaways from this Case and Appeal

  1. Have you made the material terms and conditions of a sale transaction as clear as you can at the approval hearing? Have you provided testimony of parties involved?
  2. Does the Agreement set forth the necessary time frame for completing the condition?
  3. Is the condition one that can only be satisfied by a third party, i.e., a regulatory body?
  4. Is it clear who bears the risk if the third party does not satisfy the condition?
  5. What impact will a failed condition have on an agreement? Will one party have undue influence on that third party’s ability to satisfy the condition? Which party will be deemed to be in breach if the condition is not satisfied?
  6. Is the dollar amount of the break-up fee commensurate with the value the prospective purchaser is or is not bestowing upon the estate?

Does the fee provide a competitive benefit? Could a break-up fee have a perverse incentive to induce a buyer to hold firm against certain burdensome


[1] In re Energy Future Holdings Corp., 904 F.3d 298, 314 (3d Cir. 2018).

[2] In re Energy Future Holdings Corp., 575 B.R. 616 (Bankr. D. Del. 2017).

[3] In re Energy Future Holdings Corp., 904 F.3d at 302.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 304.

[9] Id.

[10] Id. at 306.

[11] Id.

[12] Id.

[13] Id. at 306.

[14] Id. at 307.

[15] Id. at 306.

[16] Id. at 304.

[17] Id. at 307-310.

[18] Id. at 306, 315.

[19] Id. at 313-315.

[20] Id. at 307 (citing In re Energy Future Holdings Corp., 575 at 635).

[21] Id. at 314.

[22] Id.

[23] Id. at 315.

[24] Id.

[25] Id. at 317.

[26] Id.

 

LANDMARK HOTEL AND CONFERENCE CENTER IN MORGANTOWN TO BE SOLD AT AUCTION ON JUNE 5, 2018

May 15, 2018

picture for blog

FOR IMMEDIATE RELEASE

CONTACT: Fred Cross

866-969-1115×2

FCross@EquityPartnersHG.com

 

May 3, 2018 – Morgantown, WV – By authority of the U.S. Bankruptcy Court of the Northern District of West Virginia, Equity Partners HG has been retained to conduct an auction for the Ramada Morgantown Hotel and Conference Center (“The Hotel”). The Hotel is located at the intersection on I-79 and I-68 on a knoll with beautiful 360-degree views.  The property currently consists of a single tract, totaling 9.9 acres, but could be subdivided to create additional development opportunities.  The West Virginia University campus and stadium are less than 4 miles from The Hotel.  The Hotel has long been a landmark in the Morgantown community.  Mountaineer fans everywhere can recall many memories made at the Hotel which was always jam-packed during every WVU football and basketball game.  Over four decades, the Hotel has hosted parties, conventions, association and club banquets, New Year’s Eve bashes, not to mention hundreds of weddings and dinners.   Nothing is constant but change.  The Hotel and surrounding property is ready to be put to a higher and better use for the Morgantown community.

The Ramada Hotel and Conference Center has been family owned and operated since it was built in 1974. The Hotel features 149 full service rooms, a large tavern and restaurant and 11 conference room/ballroom spaces for weddings and other events.   Morgantown is a hotbed of growth, with one of the lowest unemployment rates in the nation for the past 5 years. It is the fastest growing city in West Virginia, and were it located in Pennsylvania, just a few miles to the north, it would be the fastest growing city in Pennsylvania. Morgantown’s growth is expected to continue and likely accelerate. This site is located just outside the Morgantown city limits and is free of development entitlements, while still benefiting from public infrastructure: Water, electric, gas, sewage, and public transportation.  Nearby outdoor attractions include Cheat Lake and River, Lakeview Golf Resort & Spa, Ohiopyle State Park, and Coopers Rock State Forest.

The auction is scheduled for June 5, 2018. Anyone wishing to participate must become a Qualified Bidder by submitting an offer prior to 5:00 pm eastern on June 1, 2018.  The Hotel has accepted an initial offer (“The Stalking Horse Bid”), subject to higher and better offers, and subject to the removal of all contingencies by May 30, 2018.  The Stalking Horse Bid contemplates purchasing substantially all of the assets for $1,725,000 in cash.  The Hotel owners intend to complete this proposed transaction, or, if other Qualified Bids are received by the June 1 deadline, sell substantially all of the assets of The Hotel, by auction in bulk on June 5, 2018.  Provided the Stalking Horse bidder has removed all contingencies by May 30, 2018, bidders must exceed that bid by at least $200,000 in order to qualify.  All bids must be free of any financing or other contingency.   A 10% deposit is required to bid, and must be submitted by wire transfer, prior to the Bid Deadline.  A Bankruptcy Sale Approval Hearing is currently scheduled for June 6, 2018.  Closing is to take place no later than 35 days following Court approval.

Fred Cross, a Managing Director at Equity Partners HG, says that “This is an excellent opportunity to acquire a hotel strategically located on major throughways within a vibrant economic region of the state. The property is also prime for mixed-use development including senior living, apartments, condominiums, or a medical center.  Minimal improvements can make this an income producing property again.”

Equity Partners HG, based in Easton, MD, provides investment banking services and has completed in excess of 500 engagements throughout the United States since 1988. Attorney Salene Mazur Kraemer of Mazur Kraemer Business Law is serving as bankruptcy counsel for the debtor.

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Stein-Mart & the “Graying” of Black Friday

January 29, 2018

Joseph Horne Co., Pittsburgh, PAWhen we were kids, every few weeks, we would go from Weirton, WV to the neighboring Pittsburgh, PA to go to doctor appointments and to shop at Kaufman’s and Joseph Horne Co., giant downtown department stores.  My mom, my brother, my sister and my grandmother.  We would make a day of it, have lunch at the Fifth Avenue Arcade, the Warner Theater or the Tic Toc Shop and shop at each person’s respective departments.  It was a test in patience.  But, it was an outward act of family solidarity.  We were a unit.  It was the 80s.  It was retail.  I loved the experience.  As my grandmother got older, I would wheel her wheelchair around Robinson Mall.  I love those memories.

As a turnaround consultant and Chapter 11 bankruptcy practitioner, the 2017/2018 “retail apocalypse” has me reeling.  What is happening to the retail experience?  What does the future hold?  I also frequently publish and lecture on retail industry trends.

I heard the term the “graying of Black Friday”.   And gray it certainly was this year.  Shopping on Black Friday has been a family tradition for my sister, my mom, and me for a long time, since I first got out of law school in the 2000s.  This year it was my sister’s idea to go to Stein-Mart’s Find the Golden Hanger contest in Ohio near her home. See infomercial here.  We woke up at 5:30 a.m. and five us of piled into her car, her two teenage children, my mom, my sister and me.  We were determined to win.  We strategized in the car.  We each would take certain sections of the store to search.  Between the 5 of us, we thought for sure we would win.  We agreed to split the proceeds 5 ways.

images steinmart

We jump out of the car.  It’s still dark and cold inside.  It’s 6:45 a.m.  We only see two other cars in the parking lot.  This couldn’t be right.  My sister is competitive and fun and wants to win.  She wants to get in line at the front of the store’s doors.  We were waiting for the throngs of customers that we anticipated would show up.  6:50 a.m.  Maybe one more person.   6:55 a.m.  We are chitchatting in line with the others.  7:00 a.m.  OFF WE WENT!!!!  There were literally 3-4 other people.  THAT’S IT.  Black Friday.  $500.  Golden Hanger.  Where is everybody!!!!???  I am sure Stein-Mart wasn’t too happy with the turnout either.

Did we win?  YES!!!!!!!!!!!!!!!!!  I bought 3 dress with my $100 winningsteinmart hangers.  It was a moment though for me.  I thought uh-oh.  Retail has serious troubles.   And, I mean serious.  In the store, they practically had to hand us the money!!!

Not to my surprise, this article  hit the Wall Street Journal today regarding Stein-Mart’s need to hire turnaround advisors.    What will the future of retail look like?  Will Black Friday even exist in 2018?  Stay tuned.