IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE. Chapter 11. Jointly Administered

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1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: CD LIQUIDATION CO., LLC, f/ka CYNERGY DATA, LLC, et al., 1 Debtors. Chapter 11 Case No (KG) Jointly Administered Related Docket Nos.: 863, 906 and 909 OMNIBUS RESPONSE TO (I) THE LIMITED OBJECTION OF PIVOTAL PAYMENTS INC. AND (II) THE OBJECTION OF TRAVEL TO GO TO THE DEBTORS MOTION FOR ENTRY OF AN ORDER APPROVING, PURSUANT TO SECTION 105(A) OF THE BANKRUPTCY CODE AND FEDERAL RULE OF BANKRUPTCY PROCEDURE 9019, THE STIPULATION AND ORDER BETWEEN AND AMONG THE DEBTORS, HARRIS N.A., MONERIS SOLUTION, INC., TERM B PARTIES AND SECOND LIEN PARTIES, TERM A PARTIES, CYNERGY HOLDINGS, LLC AND CYNERGY DATA, LLC REGARDING RECONCILIATION OF AMOUNTS RELATED TO THE ROLLING RESERVE FUNDS AND FOR CERTAIN RELATED RELIEF The above-captioned debtors and debtors-in-possession (the Debtors ), by and through their undersigned counsel, hereby respond to (i) the Limited Objection (the Pivotal Objection ) [Docket # 906] of Pivotal Payments, Inc. f/k/a Payment Systems Merchant Services, Inc. ( Pivotal ) and (ii) the Objection of Travel To Go (the Travel to Go Objection ) [Docket # 909] filed in opposition to the Debtor s Motion (the Settlement Motion ) [Docket # 863], for entry of an order approving, pursuant to section 105(a) of title 11 of the United States Code (the Bankruptcy Code ) and Rule 9019 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), the Stipulation and Order Between and Among the Debtors, Harris N.A. ( Harris ), Moneris Solutions, Inc. ( Moneris ), the Term B Parties and Second Lien Parties, the Term A Parties, Cynergy Holdings, LLC and Cynergy Data, LLC (collectively, the 1 The Debtors are the following entities (with the last four digits of their federal tax identification numbers in parentheses): CD Liquidation Co., LLC f/k/a Cynergy Data, LLC (8677); Cynergy Data Holdings, Inc. (8208); CD Liquidation Co. Plus, LLC f/k/a Cynergy Prosperity Plus, LLC (4265). The mailing address for the Debtors is th Avenue, 9th Floor, Long Island City, New York NP:

2 Purchaser ) Regarding Reconciliation of Amounts Related to the Rolling Reserve Funds and Certain Related Relief. The Debtors believe that both the Pivotal Objection and the Travel to Go Objection are based upon a misunderstanding of the Settlement Motion and the impact of the Section 363 sale of the Debtors businesses pursuant to which the operative executory contracts were assumed and assigned to the Purchaser. By way of further response to the Pivotal Objection and the Travel To Go Objection, the Debtors respectfully represent as follows: BACKGROUND 1. On September 1, 2009 (the Petition Date ), the Debtors filed their voluntary petitions for relief under Chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ). 2. On the Petition Date, the Debtors filed Debtors Motion for an Order Pursuant to Sections 105, 363, 365, 503 and 507 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, 6006, 9007 and 9014 (I)(a) Authorizing and Scheduling an Auction at Which the Debtors will Solicit Higher and Better Offers in Connection with the Sale of Certain Assets, (b) Approving the Bid Procedures for Such Assets, (c) Approving Break-Up Fee and Expense Reimbursement and (d) Approving the Form and Scope of Notice of the Bid Procedures and Auction; (II) Approving the Sale of the Assets Free and Clear of All Liens, Claims, and Encumbrances; (III) Approving Procedures for Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; and (IV) Granting Related Relief as Requested Herein (the Sale Motion ) [Docket No. 13]. 3. On September 15, 2009, the Court entered the Order (A) Authorizing and Scheduling an Auction and Hearing to Approve the Sale of Substantially all of the Assets of the Debtors, (B) Approving the Bid Procedures for Such Assets, (C) Approving Break-Up Fee and Expense Reimbursement and (D) Approving the Form and Scope of Notice of the Bid -2-

3 Procedures and Auction, (E) Establishing Procedures Relating to the Assumption and Assignment of Executory Contracts and Unexpired Leases, and (F) Granting Related Relief (the Bid Procedures Order ) (Docket No. 106). 4. On September 17, 2009, the Court entered the Order (Amended) (A) Authorizing and Scheduling an Auction and Hearing To Approve The Sale of Substantially All of The Assets of The Debtors, (B) Approving The Bid Procedures for Such Assets, (C) Approving Break Up Fee and Expense Reimbursement, (D) Approving The Form and Scope of Notice of The Bid Procedures and Auction, (E) Establishing Procedures Relating To The Assumption And Assignment of Executory Contracts and Unexpired Leases, and (F) Granting Related Relief (the Amended Bid Procedures Order ) (Docket No. 121). On October 9, 2009, the Court entered an order (the Sale Order ) approving the Sale Motion. 5. Prior to Entry of the Sale Order, on or about September 24, 2009, pursuant to the Amended Bid Procedures Order, the Debtors served on certain non-debtor parties to unexpired leases and executory contracts the Notice of Debtors Intent to Assume and Assign Unexpired Leases and Executory Contracts and Setting Forth Cure Amounts (the Cure Notice ) in which the Debtors set forth the cure amounts (the Cure Amounts ) with respect to certain unexpired leases and executory contracts. 6. Specifically in connection with the proposed assumption by the Debtors and assignment to the Purchaser of merchant processing agreements and the BIN Sponsor Agreement between the Debtors and Harris, the Debtors served upon all of its merchants with whom it had maintained an unfunded merchant reserve, commonly referred to by the Debtors as the Rolling Reserve, a Cure Notice that listed by merchant the amount of the unfunded merchant reserve as of the Petition Date. The amount of the unfunded merchant reserve for each merchant was -3-

4 subject to change on a daily basis as a result of ongoing transactions during the Debtors business operations. The cure amount the Debtors proposed to pay over to Harris, to hold in the merchant reserves pursuant to the BIN Sponsor Agreement, was the amount of the unfunded merchant reserve as of the closing of the sale proposed by the Sales Motion The Debtors also served notice on the various Independent Sales Organizations (the ISOs ) of the Debtors intention to assume and assign certain ISO agreements. Prior to the Petition Date, the Debtors had entered into certain agreements (each an ISO Agreement ) that governed the Debtors relationships with certain Independent Sales Organizations (the ISOs ) who each acted as intermediary between the Debtors and certain merchants in the ordinary course of the Debtors business operations. The ISOs provided merchants to the Debtors, and those merchants, in turn used the Debtors services pursuant to a merchant services agreement entered into by and between the merchant, the Debtors and the BIN Sponsor. 8. Each merchant with an unfunded merchant reserve and each ISO was given notice of the proposed assumption and assignment of its agreement with the Debtors along with the cure amount and given the opportunity to file an objection to either or both the proposed sale or to the cure amounts set forth by the Debtors. Certain merchants and ISOs filed objections and the amount stated in those objections, as well as the cure amounts as to which no objections were filed, were reserved by the Debtors out of the sale proceeds (the Cure Escrow ) in accordance with the Sale Order. 2 In contrast to the manner in which the Debtors managed the Rolling Reserve prior to the September 1, 2009 filing of these chapter II cases, beginning on September 1, 2009 the Debtors began to fully fund any new Rolling Reserve funds they received from their merchants by depositing such sums received into a bank account maintained for that purpose. Upon the closing of the sale of their businesses to the Purchaser on October 26, 2009, the Debtors delivered to the BIN Sponsor all funded Rolling Reserves so that they could be managed in accordance with the BIN Sponsor Agreement and the relevant merchant processing agreements now assigned to the Purchaser in accordance with the Sale Order. -4-

5 9. With entry of the Sale Order and the establishment of the Cure Escrow containing, inter alia, all monies asserted to be owed on account of the Rolling Reserves, the sale closed on October 26, 2009 with all merchant processing agreements, ISO Agreements and the BIN Sponsor Agreement assumed and assigned to the Purchaser. 10. On October 6, 2009, Pivotal filed a cure objection relating to the assumption and assignment of Pivotal s ISO Agreement (the Pivotal Cure Objection ). [Docket # 222]. 11. Travel To Go did not file a cure objection. 12. Pursuant to the Cure Notice, the Debtors scheduled the cure amount for Pivotal in connection with certain agreement(s) (collectively, the Pivotal ISO Agreements ) between Pivotal and the Debtors as $0.00 (the Pivotal Cure Amount ). 13. By the Pivotal Cure Objection, Pivotal asserted, among other things, that the Pivotal Cure Amount should include the payment of approximately $3,221, (the ETF Claim ) on account of certain rights held by Pivotal under the Pivotal ISO Agreements. Those agreements allowed Pivotal to assert rights to be paid on account of the various merchants Pivotal had delivered to the Debtors and on account of which the Debtors had entered into merchant processing agreements. 14. The ETF Claim had, essentially, two components: (i) the first was for funds in the aggregate amount of $1,096, (the QM ETF Claim ) held in certain of the Debtors Questionable Merchant Accounts (the QM Reserves ) 3 ; the second was for funds in the aggregate amount of $2,125, (the Rolling Reserve ETF Claim ) relating to the unfunded Rolling Reserves that are now funded in the Cure Escrow. 3 A Questionable Merchant Account was established to hold, on a temporary basis, monies that would otherwise be due to a merchant for processed transactions but for which an issue had arisen regarding the bona fides of the transaction. Once the issue was resolved, the funds in the Questionable Merchant Account were distributed to either the Debtors or to the merchant. -5-

6 15. Pivotal, in the Pivotal Cure Objection, alleged that it was entitled to immediate payment of the QM ETF Claim and the Rolling Reserve ETF Claim by the terms of the Pivotal ISO Agreements. 16. The Debtors disputed Pivotal s right to the amount stated for the ETF Claim, particularly with respect to Pivotal s right to payment on the Rolling Reserve ETF Claim. 17. After entry of the Sale Order, the Debtors worked to resolve the Cure Objections, including the Pivotal Cure Objection. On November 25, 2009, the Debtors and Pivotal executed and filed a stipulation in partial satisfaction of the Pivotal Cure Objection (the Pivotal Cure Stipulation ). Upon approval of the Pivotal Cure Stipulation, the Debtors directed the Escrow Agent, to release the funds from the Cure Reserve to Pivotal in the amount of $1,096, in full and complete satisfaction of the Pivotal Cure Objection, except to the extent the Pivotal Cure Objection related to and/or sought to enforce or preserve the Rolling Reserve ETF Claim. 18. On August 5, 2010, Pivotal filed an Amended Objection to the Cure Notice [Docket # 856] asserting an additional claim against the Rolling Reserve of $307, arising from certain alleged post-closing defaults of certain merchants. RESPONSE The Pivotal Objection 19. Pivotal is not entitled to the relief it seeks by the Pivotal Objection. 20. By the Pivotal Objection, Pivotal argues that it has exclusive rights and title to certain to of the merchant reserves identified in the Cure Notices and Settlement Motion. Pivotal then asks the Bankruptcy Court to provide in any order approving the Settlement Motion that funds sufficient to satisfy Pivotal s Rolling Reserve ETF Claim be paid directly to Pivotal rather than paid into the Settlement Escrow Account. Alternatively, Pivotal asks that the order approving the Settlement Motion allow for disbursement from any funds paid into the Settlement -6-

7 Escrow Account directly to Pivotal in satisfaction of Pivotal s Rolling Reserve ETF Claim. Finally, Pivotal asks that any such order allow for disbursement of Cure Escrow funds directly to the Purchaser for the purpose of satisfying Pivotal s Rolling Reserve ETF Claim. 21. The intent of the Cure Escrow as implemented through the Sale Order and now the Settlement Motion was to place the parties to the various merchant agreements in the same position they would have occupied had the Rolling Reserves at all times been funded and the Debtors chapter 11 cases had never been filed. Those unfunded portions of the merchant reserves that formed the basis of the cure amounts as set forth in the Cure Notices are now funded through the Cure Escrow, which funds, upon approval of the Settlement Motion, will be paid over into the Settlement Escrow Account and administered thereafter according to the terms of the Settlement Agreement and the various agreements governing the relationships between the merchants, ISOs and the Purchaser. That includes funds sufficient to satisfy Pivotal s Rolling Reserve ETF Claim in full should it be consensually or otherwise determined that Pivotal has a legitimate right to all or some of the Rolling Reserve funds so claimed. 22. To the extent Pivotal has any legitimate claims under the Pivotal ISO Agreements to any of the Rolling Reserve funds in the Cure Escrow, they will have those claims to the funds once paid over in the Settlement Escrow Account. Pivotal can address and resolve the merits of those claims with the Purchaser and the BIN Sponsor in accordance with the Pivotal ISO Agreements, the BIN Sponsor Agreement and the relevant merchant agreements, all of which have been assumed and assigned to the Purchaser. It is inappropriate for the Bankruptcy Court to simply order the payment of those funds directly to Pivotal. The merits of Pivotal s asserted claims against the Rolling Reserve funds, funds intended to address claims at the merchant level not the ISO level in the operation of the Debtors and now the Purchaser s business, have not -7-

8 been resolved or adjudicated at this time. The merits of Pivotal s Rolling Reserve ETF Claim were expressly carved out of the Stipulation otherwise resolving Pivotal s Cure Objection and there has been no subsequent resolution of that part of the Pivotal Cure Objection. Indeed the disbursement of funds from the now funded Rolling Reserves is a matter to be resolved between Pivotal, the BIN Sponsor and the Purchaser under the terms of the applicable agreements. Debtors only cure obligation is to fully fund the Rolling Reserve and it is doing so under the settlement. When and whether those funds will be disbursed to Pivotal is a matter to be resolved at a later date as noted above. 23. It is simply inappropriate to provide in any order approving the Settlement Motion that any funds be disbursed other than in accordance with the terms of the Settlement Agreement which has the effect of fully funding the Rolling Reserve. Pivotal is then free to assert its claims against those funds and resolve any dispute as to the merits of those claims with the Purchaser and any other party with a competing claim, including, without limitation, any merchant that might assert such a competing claim. The resolution of any such dispute does not belong in the Bankruptcy Court. 24. With respect to Pivotal s Amended Cure Objection and the additional claim it makes against the Rolling Reserve, there are several problems. First, it is the Debtors understanding that the amount set forth in the Amended Cure Objection relates to merchant processing activity that took place after the closing of the Sale on October 26, Therefore, it is simply not a cure claim which must be limited to activity that took place before the assumption and assignment of the relevant agreements on October 26, This is simply not an issue related to the Debtors cure obligations or the administration of the Cure Escrow funds pursuant to the terms of the Settlement Motion. If the Purchaser regards Pivotal s claims as -8-

9 legitimate, then it is the Purchaser s obligation to reimburse Pivotal for these post-closing amounts from the now funded Rolling Reserve. If the Purchaser incurs a loss from a merchant by reimbursing Pivotal, the Purchaser can seek to have Moneris release corresponding amounts from the escrow of the merchant reserve. 25. The additional losses asserted by Pivotal relating to early termination fees by its merchants are not related to the amounts to be funded in the Cure Escrow for merchant reserves as of the closing date. Pivotal is not seeking an increase in a merchant reserve account but rather a release to them under an alleged contractual right and a corresponding deduction in the merchant reserve account. Any such claims are not related to the Debtors sale to the Purchaser. Any such claims do not implicate the obligation of the Debtors to cure defaults for assumption and assignment of executory contracts. The default that required cure by the Debtors was the underfunding of the Rolling Reserves. The stated cure amount as to any merchant is the amount of the Rolling Reserve that was underfunded as of October 26, Should the Amended Cure Objection seek additional funds, then it must be time barred. The purpose of establishing the Cure Escrow was to put aside from the sale proceeds sufficient funds to address every Cure Objection. To now amend a Cure Objection to add additional funds prejudices the rights of all other parties including all creditors of the Debtors estates. 27. Pivotal is free to assert any claims it has against the Purchaser for post closing issues, but this is not the proper forum for asserting such claims. Nothing in any of the cure stipulations, including in the Stipulation with Pivotal, or the Settlement Motion addresses a right of ISOs or merchants to have Rolling Reserve funds released to them - that is up to the contractual terms of the relevant underlying agreements. -9-

10 The Travel To Go 28. The Travel To Go Objection does not appear to be an actual objection to the Settlement Motion. Travel To Go has not objected and does not now object to the Debtors stated Cure Amount. Nor does Travel To Go appear to object to the proposed treatment of the Rolling Reserve funds under the Settlement Motion. Rather, Travel To Go seems to seek some clarification or comfort that any Rolling Reserve account that should have been funded in accordance with its agreement with the Debtors, as then assigned to the Purchaser, after the time the Cure Notice was transmitted in September 2009, was in fact funded. 29. Attached to the Settlement Motion as Exhibit B was a list of the amounts of the Rolling Reserves, by merchant, as of October 26, 2009, the date of the Closing of the Debtors sale of substantially all of their operating assets to the Purchaser. As noted in the Settlement Motion, the amounts in any Rolling Reserve account changes continually due to merchant activity, including losses incurred, charge-backs and the like. After the October 26, 2009 Closing, the Purchaser became responsible for calculating and administering the various merchant reserves. Accordingly, the amount of a merchant s unfunded merchant reserve, including as to Travel To Go, as listed on Exhibit B is as of October 26, 2009 and does not reflect subsequent activity between the merchant and the Purchaser. 30. Moreover, all merchant reserves were fully funded after the Petition Date and the funded portion of the Rolling Reserve has been delivered to the BIN Sponsor to be administered in accordance with the applicable agreements that have been assumed and assigned to the Purchaser. 4 These amounts are not part of the Cure Escrow that is being paid over to the Settlement Escrow Account. To the extent Travel To Go has a legitimate claim to the reserve 4 See footnote 2 supra. -10-

11 amounts arising after the Petition Date as set forth in the Travel To Go Objection, those amounts were funded and, as such, are not cure claims and are not listed as such on Exhibit B. Further, any claims to reserve funds after the closing are matters that merchants, like Travel To Go, should address directly with the Purchaser. WHEREFORE, the Debtor respectfully request that the Bankruptcy Court enter an order approving the Settlement Motion and grant such other and further relief as the Bankruptcy Court deems just and proper. Dated: September 8, 2010 Wilmington, Delaware Respectfully submitted, PEPPER HAMILTON LLP /s/ Evelyn J. Meltzer David B. Stratton (DE No. 960) Evelyn J. Meltzer (DE No. 4581) John H. Schanne, II (DE No. 5260) Hercules Plaza, Suite Market Street P.O. Box 1709 Wilmington, DE Telephone: (302) Facsimile: (302) and- NIXON PEABODY LLP Mark N. Berman Dennis J. Drebsky Lee Harrington (DE No. 4046) 437 Madison Avenue New York, New York Telephone: (212) Facsimile: (212) Counsel for the Debtors and Debtors in Possession -11-

12 CERTIFICATE OF SERVICE I, Evelyn J. Meltzer, hereby certify that on the 8 th day of September, 2010, I caused the foregoing Omnibus Response to (I) the Limited Objection of Pivotal Payments Inc. and (II) the Objection of Travel To Go to the Debtors Motion for Entry of an Order Approving, Pursuant to Section 105(a) of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 9019, the Stipulation and Order Between and Among the Debtors, Harris N.A., Moneris Solution, Inc., Term B Parties and Second Lien Parties, Term A Parties, Cynergy Holdings, LLC and Cynergy Data, LLC Regarding Reconciliation of Amounts Related to the Rolling Reserve Funds and for Certain Related Relief to be served upon the following parties in the manner indicated. Daniel J. DeFranceschi, Esq. Drew G. Sloan, Esq. Richards, Layton & Finger, P.A. One Rodney Square 920 North King Street Wilmington, DE Hand Deliver Jeffrey I. Shinder, Esq. A. Owen Glist, Esq. David A. Scupp, Esq. Constantine Cannon LLP 450 Lexington Avenue New York, NY Fax: Ms. Diane Sharp Business Manager Travel To Go 7964-B Arjons San Diego, CA Fed Ex /s/ Evelyn J. Meltzer Evelyn J. Meltzer (DE No. 4581) # v1