The food was substandard and the air conditioning inadequate, but the view—ah, the view was spectacular.
Jeremy Silverman should know. When he and Gary Marsh, both partners at McKenna Long & Aldridge, were helping HD Supply Inc. place its $17 million winning bid for ORCO Construction Supply Inc., they spent about 16 straight hours in a too-warm conference room overlooking the sparkling blue waters of San Francisco Bay and the famous Ferry Building, home to a farmers’ market, Scharffen Berger Chocolates and artisanal cheese maker Cowgirl Creamery—all purveyors of the kind of gourmet fare Silverman wasn’t getting.
That conference room, in the Bay Area offices of law firm Howard Rice Nemerovski Canady Falk & Rabkin, was the setting for an intense auction that ran, Silverman said, from about 9:30 a.m. on May 13 to 1:30 a.m. on May 14, then restarted just four-and-a-half hours later. But it resulted, earlier this month, in a deal—and in economic times like these, that probably makes a few hours of perspiration and culinary deprivation worthwhile.
The deal springs from the Chapter 11 reorganization of ORCO, a Livermore, Calif.-based supplier of products and equipment for the construction industry represented in its bankruptcy by lawyers from Howard Rice. McKenna’s clients, HD Supply and its White Cap Construction Supply business, which provide specialty hardware, tools and materials to contractors, bought ORCO at auction in a Section 363 sale.
According to bankruptcy court records, ORCO’s price tag was $17 million, subject to a working capital adjustment based on the actual amount of accounts receivable and inventory, which pushed the final price to $15.75 million. HD Supply financed the cash purchase itself.
“There were a lot of different points during the deal when things could have gone a number of different directions,” said Silverman. “HD Supply just has an incredible team on the business side and on the legal side. … Extremely talented people, really dedicated to the company and the process, as evidenced by the auction.”
Two days before filing for reorganization in the U.S. Bankruptcy Court for the Northern District of California, Silverman said, ORCO signed a purchase agreement not with his client but with a so-called “stalking horse” bidder, construction supply company ACSP LLC.
But, Silverman explained, the court approved the ACSP transaction subject to a series of bid procedures designed to assure that the estate would get the highest value for the assets—which meant that other bidders could try to trump the stalking horse bid. “There were multiple bids and multiple interested parties,” Silverman said.
All those interested parties met at the Howard Rice offices for the auction, along with representatives from Wells Fargo Foothill Inc., ORCO’s largest secured creditor, members of the unsecured creditors’ committee and various financial advisors.
“All of these dozens of people convened … it was pretty strange, actually,” Silverman recalled, noting that each bidder was sequestered in its own conference room. “For the most part, the process was kept separate and secret. … We never saw any of the other bidders. Instead, the financial and legal representatives of the estate would basically go from room to room conducting the negotiations.”
Silverman and Marsh, along with in-house counsel for HD Supply, Atlanta-based Jim Brumsey, senior corporate counsel for M&A/securities, and Orlando, Fla.-based Ken Veneziano, vice president-legal, along with three of HD’s strategic business team members, all worked the bid from their conference room.
HD Supply, which once was owned by The Home Depot and now is owned by three private equity funds, submitted the highest bid. That bid then went before the bankruptcy court for approval.
“At the sale hearing, there were probably 25 lawyers there or on the phone,” Silverman said. The roster included lawyers from his firm and from Howard Rice, as well as the Wells Fargo counsel and lawyers for creditors including landlords, software licensers and various equipment companies with which ORCO had done business. “It was kind of astonishing.”
Some of those creditors—including, according to the court file, Enterprise Rent-a-Car and General Electric Capital Corp.—filed objections to the sale. Because of those objections, Silverman said, the deal was “literally being negotiated during recesses from the hearing.”
Howard Rice lawyer Neil W. Bason prepared the sale order. A copy of that order, in the court file, is covered with handwritten changes and addenda. “It was all moving very quickly,” Silverman said. “There wasn’t time to type it up, so [HD in-house counsel] Jim Brumsey was hand writing the changes so we could get the order signed by the judge before anybody walked out of the courthouse that day.”
The handwritten contract amendments did their job, and the deal closed on June 1.