Bankruptcies in the Oil and Gas Industry and What it Means for You as a Supplier
Do you know it only cost me $20 to fill my tank last weekend? It was awesome! Although low oil prices are great for me at the pump, they are lousy for the oil and gas industry. Oil companies are filing bankruptcy and suppliers, secured & unsecured, are feeling the pain.
This week we shared an article from Fox Rothschild LLP, Rights of Suppliers: An Oil and Gas Industry Primer, which addressed some supplier concerns, in particular what remedies are available.
First on their list: “Adequate Assurance of Future Performance.” Did you know that you, as a supplier, can suspend performance? You can’t just arbitrarily back out of a supply contract, but according to the authors
“UCC § 2-609 provides a supplier who has reasonable grounds for insecurity with respect to the performance of its counterparty the ability to demand request in writing adequate assurance of due performance. The supplier may, if commercially reasonable, suspend any performance for which he has not already received the agreed return until he receives that assurance.”
Suppliers also have the right to recall goods. The article indicates that if your goods are in transit at the time of your customer’s insolvency (i.e. not in your customer’s hands at the time of the bankruptcy filing), you may be able to recall the shipment without violating the automatic stay. “Recall under UCC § 2-705 is generally not a violation of the automatic stay for the simple reason that the goods have not yet become the property of the debtor/buyer.”
Third on their list is good old reclamation! What happens if your customer already has your goods and then they file for bankruptcy protection? As the supplier, you may have the option to reclaim those goods – but be careful; the window of time is short and it’s not without its share of obstacles.
“…court decisions highlight a number of very substantial hurdles confronting a supplier seeking to assert the right to reclaim goods already received. First, in order to recover, the supplier must make a detailed written demand within the required time frame, which is 10 days after receipt outside of bankruptcy and 20 days if the buyer has filed bankruptcy. Second, the supplier must be able to establish that he did not become aware of the insolvency until after receipt of the goods. This would apply to each particular shipment at issue. Third, the supplier must also prove that the goods sought to be reclaimed are still in fact possessed by the counter party in their original form (and not incorporated into another product) in order for reclamation to be effective. This requirement suggests that a supplier act as quickly as feasible in enforcing their reclamation rights. Finally, and most significant are a number of cases recently decided that tend to establish that the right of reclamation is subject to the rights of other creditors who have obtained liens on the buyer’s inventory and that extend to the supplier’s goods upon receipt by the debtor. Essentially, where the supplier has an inventory finance arrangement by a bank or other financial source, the right to reclamation has proven to be essentially illusory.”
If you have been notified of your customer’s insolvency, seek legal guidance as soon as possible
