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Performance Powersports Group Investor, LLC – Willing to Split Proceeds of Claims Against Former CEO Richard Godfrey, Debtors and Kinderhook File Revised APA Ahead of March 20th Hearing

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March 17, 2023 – In advance of a March 20th hearing, the Debtors (in conjunction with their credit bidding stalking horse, the "Stalking Horse Bidder*") filed a further revised stalking horse asset purchase agreement (the “APA”) [Docket No. 240, with the revised APA and a related redline attached] which they assert addresses issues raised by the U.S. Trustee assigned to the Debtors' cases in its March 15th objection [Docket No. 218]. 

* The Stalking Horse Bidder is an affiliate of Kinderhook Industries which touts itself as "a private investment firm that manages over $5 billion of committed capital" with a focus on "middle market businesses with defensible niche market positioning in the healthcare services, environmental/business services and automotive/light manufacturing sectors." At filing, the Debtors noted that Kinderhook Industries affilates (Kinderhook Capital Fund VI, L.P. and Kinderhook Capital Fund VI-B, L.P.) together held 67% stake in the Debtors.

As revised, the APA creates a litigation trust which would split with Kinderhook the proceeds of any litigation-related claims against the Debtors' former CEO Richard Godfrey arising from an October 2021 leveraged buyout (the “LBO**”) which saw Mr. Godfrey, then the Debtors' majority shareholder, walk away with the $80.0mn+ lion's share of what was a $112.0mn transaction funded by Kinderhook. Kinderhook, which paints itself as not only the party most aggrieved by Mr. Godfrey ["Kinderhook has done nothing more than lose money on a 2021 investment that Debtor’s former CEO and owner, Mr. Richard Godfrey, orchestrated to fail from the start"] but also the only party (as stalking horse in an otherwise bidless asset sale process) keeping the Debtors' from a value destroying liquidation, objects to the Committee's insistence on the "right to pursue the entirety of the Godfrey Claims."

**The Debtors' provide: "The 2021 Transaction closed for a total purchase price of $112,000,000, inclusive of fees, expenses, and cash-to-balance-sheet amounts. That purchase price was comprised of $47,000,000 in equity contributions [$45.0mn of which was from Kinderhook], $45,000,000 in debt financing …and a $20,000,000 Rollover Amount from the cash consideration otherwise paid to Rich Godfrey."

In a reply to the Committee objection, the Debtors sum up as to the APA amendments: "The Committee’s limited objection to the Sale and DIP Motions rests on the
premise that the 'proposed Sale and DIP Financing will strip the estate of valuable estate claims arising from the October 2021 leveraged buyout (the 'LBO'). Notably, the 'valuable estate claims' the Committee seeks to retain for the benefit of unsecured creditors do not include any claims against Kinderhook. In fact, after its own independent investigation—which include the review of more than 7,000 documents obtained from the Debtors and Kinderhook plus interviews of two Kinderhook principals—the Committee has concluded '[t]o date, the Committee’s investigation has not revealed ay colorable claims against Kinderhook and its affiliates.'

Instead, when the Committee speaks of the valuable claims it has identified, it is referring to 'the colorable claims to clawback the $80M+ to Richard Godfrey in connection with the LBO, in addition breach of duty claims [against former management].' Based on these conclusions, the Committee explicitly states that it 'would support a proposed Sale and DIP Financing Package that carves out and preserves the Litigation Assets for the benefit of unsecured creditors.' 

Based on this commitment, the Debtors and Kinderhook have agreed to do exactly what the Committee has requested they do in order to obtain the Committee’s support for the Sale and DIP Financing—they have carved out from the Sale and DIP Financing Package the valuable causes of action the Committee has identified (i.e., the estate claims against Richard Godfrey and other former members of management) and split the proceeds of such causes of action equally between Kinderhook and the Litigation Trust. The Debtors and Kinderhook did not, however, stop there. Kinderhook also agreed to provide a total of $1.25 million in funding to a litigation trust that will pursue these claims, which ensures that the trust has resources to actually pursue these valuable causes of action. With this resolution, the Debtors see little choice for the Committee other then to support the Sale and DIP Financing Package and withdraw its objection If the Committee does not do so, it will jeopardize the only value maximizing transaction available.

At this point, there can be no dispute that a Sale to the Stalking Horse Purchaser on the amended terms is the best—and only—option. The extensive marketing process conducted by the Debtors confirms as much, as not a single bid has emerged, even after the bid protections and fee reimbursement were removed. As a result, absent the sale to the Stalking Horse Purchaser, the only other option is liquidation. And, while that may be a result that Hisun, as a competitor to the Debtors, prefers, that would rob the unsecured creditors of any recovery and ensure that the value that remains flows only to the Debtors’ secured creditors.

The Kinderhook statement in support of the sale adds the following summary of changed terms: "As revised the APA now provides: 

  1. the Debtors shall establish the Litigation Trust upon close of the Sale, and the Litigation Trust Agreement shall be mutually agreed upon by the Debtors and Kinderhook, in consultation with counsel to the Committee, and filed with the Court at least five days prior to closing;
  2. any proceeds of the Godfrey Claims shall be split equally, with 50% payable to Kinderhook and 50% payable to the Litigation Trust;
  3. Kinderhook will provide a loan to the Litigation Trust in the amount of $500,000 which will bear interest at 12% per annum;
  4. Kinderhook will also fund the Litigation Trust with $750,000 in cash (an increase of $250,000 from the $500,000 previously contemplated); and
  5. all other claims, including claims and causes of action against Hisun, Hisun affiliates and Hisun related parties shall not be assigned to the Litigation Trust, and will be owned by Kinderhook.

These changes reflect a significant and fair increase in potential value to stakeholders in these cases that any unconflicted Committee would agree to and gives the Committee exactly what it asked for—a fair sharing of the proceeds of the Godfrey Claims and process by which they may be pursued for the benefit of all stakeholders."

Case Status

On January 16, 2023, Performance Powersports Group Investor, LLC and three affiliated Debtors (“Performance Powersports” or the “Debtors”) filed for Chapter 11 protection, noting estimated assets between $100.0mn and $500.0mn; and estimated liabilities between $100.0mn and $500.0mn. At filing, the Debtors, suppliers of recreational vehicles such as mini bikes, go-karts, ATVs and golf carts, cited the Debtors’ failure to manage inventory and customer orders as exacerbated by supply chain issues and by a “post-pandemic reduction in demand from customers.”

On January 18, 2023, the Court issued an interim order authorizing the Debtors to access $3.5mn in new money, debtor-in-possession (“DIP”) financing being provided by Tankas Funding VI, LLC (the “DIP Lender,” also an affiliate of Kinderhook Industries) and use cash collateral.

On February 27th, the Court issued a second interim order authorizing the Debtors to access a further $1.8mn in DIP financing. The $4.7mn balance, of what is in total a $10.0mn facility, is to be made available upon issuance of a final DIP order, with consideration of that order now scheduled for March 20, 2023. 

On March 8th, the Debtors notified the Court that absent any qualified bids beyond that of stalking horse bidder CPS USA Acquisition (the “Stalking Horse Bidder*,” $10.0mn credit bid plus $500k cash plus, if necessary, $600k wind down amount), an auction scheduled for March 9th had been cancelled and the Stalking Horse Bidder designated as the successful bidder for substantially all of the Debtors’ assets [Docket No. 198, with a revised APA filed at Docket No. 197].

* The Stalking Horse Bidder is an affiliate of Kinderhook Industries which touts itself as "a private investment firm that manages over $5 billion of committed capital" with a focus on "middle market businesses with defensible niche market positioning in the healthcare services, environmental/business services and automotive/light manufacturing sectors." At filing, the Debtors noted that Kinderhook Industries affilates (Kinderhook Capital Fund VI, L.P. and Kinderhook Capital Fund VI-B, L.P.) together held 67% stake in the Debtors.

Key Terms of the Amended Stalking Horse APA:

  • Seller: Performance Powersports Group Investor, LLC and three affiliated Debtors (“Performance Powersports” or the “Debtors”).
  • Buyer: CPS USA Acquisition, LLC.
  • Purchase Price: In consideration of the sale of the Assets to Purchaser, and upon the terms and subject to the conditions set forth herein, the Purchase Price consisting of: 
    • a credit bid of the outstanding obligations under the DIP Credit Agreement pursuant to section 363(k) of the Bankruptcy Code in the amount of Ten Million Dollars ($10,000,000);
    • the payment of an amount in cash equal to $500,000 (the “Cash Payment”);
    • the assumption by the Buyer of the outstanding obligations under the Prepetition First Lien Credit Agreement (as defined in the Financing Orders);
    • the assumption by Buyer of the Assumed Liabilities (including all Determined Cure Costs with respect to any Assumed Contract);
    • the Wind-Down Amount; provided that the Wind-Down Amount shall only become payable as a portion of the Purchase Price in the event that (i) Sellers have insufficient cash on hand at Closing to fund the WindDown Amount from such cash on hand and (ii) the Sellers have otherwise complied in all respects with the Financing Orders, in which case the Buyer shall only be required to fund the amount necessary to bring the Sellers’ total cash on hand at Closing to equal to the amount of the Wind-Down Amount.
  • Wind-Down Amount: means cash and cash equivalents in the amount of Six Hundred Thousand Dollars ($600,000), reserved for use in connection with the wind-down of the Sellers’ Chapter 11 Cases whether via a liquidating chapter 11 plan or otherwise.
  • Milestones: Closing deadline of March 31, 2023

The Sale and Marketing Process

The bidding procedures motion [Docket No. 17] states, “The Debtors engaged Portage Point Partners, LLC (‘Portage Point’) in an October, 2022 to serve as both its restructuring advisor and investment banker. Since commencing its engagement, Portage Point has provided assistance in numerous areas including in connection with the Debtors’ evaluation of strategic alternatives. Portage Point has worked closely with the Debtors’ management and other restructuring professionals and has become well-acquainted with the Debtors’ capital structure, liquidity needs, and business operations.

In connection with the review and analysis of the Debtors’ strategic alternatives, Portage Point worked closely with the disinterested director of the boards (the ‘Disinterested Director’) who was delegated the authority to review and act upon any matters pertaining to a potential restructuring or refinancing or sale transaction in which a conflict may exist between the Debtors on the one hand, and their equity holders, affiliates (or those entities’ managers, directors, or officers) on the other hand. This process also included the Debtors’ then-existing lender and that lender’s retained advisors to evaluate potential strategic alternatives. After considering the reasonably available possible courses of action, the Debtors determined that a sale of its assets was in the best interest of the Debtors, their creditors, and all parties in interest under the circumstances, particularly considering the Debtors’ liquidity constraints, litigation, vendor threats and the anticipated difficulties in raising additional debt or equity financing.

Portage Point expended significant efforts prior to the Petition Date marketing the Assets for sale. Portage Point’s marketing process included the preparation of marketing materials intended for distribution to prospective buyers of the Debtors’ assets including a teaser, confidential information memorandum, and the aggregation of key company documents located in an online data room for further diligence. In addition, Portage Point worked with the Debtors to develop a list of suitable potential buyers to be contacted on a discreet and confidential basis.

Specifically, beginning on December 6, 2022, and continuing thereafter, Portage Point began outreach to a broad universe of relevant strategic and financial parties to assess interest in an acquisition of the Debtors. Portage Point and/or the Debtors’ advisors reached out to approximately 33 parties and offered them the opportunity to participate in the sale process, including Rich Godfrey (the prepetition founder of the Debtors), Huansong (the Company’s prior, primary vendor manufacturing partner) and Twin Brook Capital Partners, LLC (the Debtors’ Prepetition Lender). Of these 33 parties, 9 negotiated and executed confidentiality agreements and were provided with a confidential information memorandum and access to a virtual data room containing detailed information about the Debtors’ business. Portage Point then held follow-up calls with interested parties to respond to diligence and discuss the current situation and process.

The Debtors received no indications of interest by the January 13, 2023 deadline. Meanwhile, the Debtors continued to suffer a drain on cash flow and lacked a source of long-term additional liquidity and were facing litigation and threats by vendors, including the filing of an involuntary bankruptcy proceeding. Consequently, it became apparent that the Debtors’ liquidity position and other issues above would require that the sale process continue in a voluntary chapter 11 process.

Faced with no actionable sale proposal, CPS USA Acquisition, LLC agreed to serve as the stalking horse bidder (the ‘Stalking Horse Bidder’) pursuant to the terms of that certain asset purchase agreement, dated January 16, 2023 (the ‘Stalking Horse Agreement’) to acquire the Debtors’ assets as a going concern, to expose the stalking horse agreement to higher and better offers through a chapter 11 process and to support the process by agreeing to provide needed debtor-in-possession financing to the Debtors on a junior lien basis.

Under the terms of the Stalking Horse Agreement, the Stalking Horse Bidder will purchase the Assets for an aggregate purchase price consisting of: (a) a credit bid of the outstanding obligations under the DIP Credit Agreement in the amount of $10 million; (b) cash in an amount equal to $500,000; (c) assumption of the outstanding obligations under the Prepetition First Lien Credit Agreement; (d) assumption of certain other Assumed Liabilities as provided in the Stalking Horse Agreement ; (e) the assumption and assignment of the Assumed Contracts to the Stalking Horse Bidder and payment of any Determined Cure Costs associated with such Assumed Contracts; and (f) the Wind-Down Amount; provided that the Wind-Down Amount shall only become payable as a portion of the Purchase Price in the event that (i) Sellers have insufficient cash on hand at Closing to fund the Wind-Down Amount from such cash on hand and (ii) the Sellers have otherwise complied in all respects with the Financing Orders, in which case the Buyer shall only be required to fund the amount necessary to bring the Sellers’ total cash on hand at Closing to equal to the amount of the Wind-Down Amount (each term as defined in the Stalking Horse Agreement).

The Stalking Horse Agreement not only represents a going concern sale of substantially all of the Debtors’ assets, but also provides for a recovery to unsecured creditors whose contracts and/or claims the Stalking Horse Bidder is not otherwise assuming under the Stalking Horse Agreement and the assumption of various Assumed Liabilities. As a result, the proposal embodied in the Stalking Horse Agreement provides that a significant amount of prepetition unsecured claims will be assumed and paid by the Stalking Horse Purchaser. To date, the Stalking Horse Agreement represents the highest and best offer for the Assets and will enhance the bidding process by providing a floor that prospective bidders must clear, ensuring that only serious, financially capable bidders participate in the Auction.

The timeline for the formal marketing process and bankruptcy filing was driven by liquidity constraints, filed and threatened litigation, as well as a threatened involuntary bankruptcy filing. Given this backdrop and no other actionable proposals, the Debtors began negotiations with the Stalking Horse Bidder, who among other things, insisted on the inclusion of ‘milestone’ dates by which the Debtors would be required to have completed certain aspects of the proposed sale process (the ‘Milestones’). These Milestones are intended to preserve the going-concern value of the business through a timely, efficient sale process that culminates in a closing by March 31, 2023 to maximize value and avoid disruption and harm to the Debtors’ business.”

About the Debtors

Performance Powersports Group is a lower-cost producer of high-quality, light-to-middle-weight powersports equipment. The Company is a market leader in Utility Task Vehicles, All Terrain Vehicles, Go Karts, Golf Carts 2 10338594.v2 and Mini Bikes which it sells through a network of prominent national and regional resellers. The Company sells products under the Coleman brand as well as others; it is not affiliated with Coleman Company, Inc. or any of its affiliates.

Corporate Structure Chart

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The post Performance Powersports Group Investor, LLC – Willing to Split Proceeds of Claims Against Former CEO Richard Godfrey, Debtors and Kinderhook File Revised APA Ahead of March 20th Hearing appeared first on Daily Bankrupt Company Updates | Bankrupt Company News.


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