00-3419 Warsco v. Preferred Technical Group

“Despite Rau’s and Weingardt’s affidavits, which support the view that the payment to PTG was not part of the purchase price for Presidential’s assets, we believe that the nature of these transactions precludes summary judgment, at least on the record as presently constituted. The fact that the asset sale and the note purchase were conditioned upon each other indicates that LLC was willing to pay $3.925 million in cash to acquire Presidential’s assets, in addition to the value of the other elements of the purchase price. Notably, only $3.425 million of that cash went to Presidential – or, more accurately, to Presidential’s secured creditors – while the remaining $500,000 went to one unsecured creditor. Furthermore, PTG’s letter of April 16 provides a firm indication that the deal between Presidential and LLC was not going to occur unless PTG was paid. Thus, the $500,000 paid to PTG plausibly can be described as consideration for the asset sale.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Indiana, Lee, J., Ripple, J.