🚜New Chapter 11 Bankruptcy Filing - Tea Olive I LLC (d/b/a Stock+Field)🚜

Tea Olive I LLC (d/b/a Stock+Field)

The #retailapocalypse is indiscriminate. Sometimes it likes to take down big prey like J.C. Penney or J. Crew but other times it just wants to snag some low hanging fruit via the path of least resistance. That means that a number of retailers those of us in our bubbles in major coastal cities have maybe never heard of will find their way into a bankruptcy court. And a bankruptcy court outside of Delaware or Texas no less.

Like Tea Olive I LLC (d/b/a Stock+Field) for instance. The Minnesota-based “farm, home and outdoor retailer” operates 25 stores across the mid-West. It only sells “a small amount of products…online.” While that’s obviously pretty lame, this place seems like a smorgasbord of fun: in one fell swoop you can go in and pick up, among other things, some dog food, a kayak, some beekeeping equipment, some lawn fertilizer, workwear and apparel, a grill, paint, a new HVAC unit, auto parts, food, toys and firearms! A Christmas bonanza, this place must be! Earl Jr. can get himself a little toy gun while Big Earl can get himself a grenade launcher and AR-15. Everybody wins!

Well, not everybody. Unfortunately, the place is liquidating, a sad post-holidays result for the 1,000 full and part-time employees that work there.

In 2018, the debtor did $176mm of revenue and adjusted EBITDA of $5.1mm. In 2019, to differentiate itself from other unrelated “Big R” entities in the US, the debtor changed its name from “Big R Stores” to “Stock+Field” expecting some short-term drops in performance but expecting those drops to be mere blips on the road to a stronger future. And, in fact, the company did suffer a small drop in performance: it did $173.9mm in revenue and $1.6mm in adjusted EBITDA. 2020 was supposed to be the year.

Spoiler alert: it wasn’t. Not for literally anybody on the planet (well, other than maybe Elon Musk, Joseph Biden, fans of Brexit…ah…you get the idea…there are exceptions to literally everything). Per the company:

In the beginning of 2020, the Debtor continued its rebranding efforts and expected the business to grow throughout the year. However, the Covid-19 pandemic unexpectedly upset all expectations for 2020. All of the Debtor’s 25 stores were open under strict capacity and operating hour restrictions due to the pandemic. Additionally, the pandemic itself has altered the shopping behaviors of the Debtor’s consumers, with some customers not feeling comfortable entering physical stores to shop. While the Debtor sells some products online, the majority of its products are sold solely in stores.

😬Apparently they didn’t get the omni-channel memo. For fiscal year 2020, therefore, the debtor estimates $141.5mm in revenue and -$2.2mm in adjusted EBITDA. Consequently, the company hired restructuring professionals to pursue a financing options and/or a sale. But had no luck. The company then hired Tiger Capital Group to pursue liquidation. Get ready for…

The debtor owes $29.7mm to its senior secured lender, CIT Northbridge Credit LLC pursuant to a credit agreement entered into in early March 2020. Query how seriously the various parties were taking COVID-19 given the timing. Still, the debtor estimates its inventory value to be $45.6mm and it also has $734k of A/R and prepaid assets against $26.5mm in trade debt (inclusive of approximately $1mm in 503(b)(9) claims).* The size of general unsecured creditor recoveries — certain to be less than 100% — will definitely depend on whether there are shoppers out there who are willing to risk contracting COVID-19 simply to hit the bid on that alleged $45.6mm in inventory value.

One question that also arises with retail cases is what happens with gift cards? It appears the debtor intends to honor outstanding gift cards until February 8, 2021. Hurry out, y’all, and get yourself some new toys and firearms just in time for the Civil War.

*For the uninitiated, the Bankruptcy Code provides that suppliers of goods delivered to a debtor in the ordinary course of business in the 20 days prior to a petition date be allowed as administrative expenses.


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Date: January 10, 2020

Jurisdiction: D. of Minnesota (Judge Fisher)

Capital Structure: $29.7mm funded secured debt (Second Avenue Capital Partners LLC)

Company Professionals:

  • Legal: Fredrikson & Byron PA (Clinton Cutler, James Brand, Steven Kinsella, Samuel Andre)

  • Restructuring Advisor: Clear Thinking Group (Michael Wesley)

  • Liquidator: Tiger Capital Group LLC

  • Investment Banker: Steeplechase Advisors LLC (James Cullen, Dan O’Rourke, David Burke, Nate Anderson, Eddie Doherty, Amy Rose)

  • Claims Agent: Donlin Recano (Click here for free docket access)

Other Parties in Interest:

  • Secured Loan Agent: Second Avenue Capital Partners LLC

  • Secured Lender: CIT Northbridge Credit LLC

    • Legal: Riemer & Braunstein LLP (Steven Fox)

🔥 New Chapter 11 Bankruptcy Filing - IMH Financial Corporation 🔥

IMH Financial Corporation

July 23, 2020

So this is a smaller one but it’s not retail and it’s not oil and gas and so, f*ck it, we’re digging in purely for the sake of diversification. So, what is it? IMH Financial Corporation is a real estate investment holding company with assets consisting of (i) the MacArthur Place Hotel & Spa in Sonoma California (which looks “lit” by the way…intentional word choice, read below), (ii) thousands of undeveloped acreage and related water rights outside of Albuquerque New Mexico (sounds super practical for, like, an apocalyptic scenario like, say, a global pandemic that kills tens of thousands of people), (iii) other real estate assets (discussed below) and (iv) a boat load of tax attributes due to years of money losing endeavors ($475mm and $280mm federal and state NOLs, respectively). The company has no funded secured or unsecured debt (outside of a small PPP loan that it believes qualifies for forgiveness). Other unsecured debt consists of mostly professional service providers (e.g., law firms). This case is primarily about …

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  • Jurisdiction: D. of Delaware (Judge Sontchi)

  • Capital Structure: No secured debt.

  • Professionals:

    • Legal: Snell & Wilmer LLP (Christopher Bayley, Steven Jerome, Benjamin Reeves, Jill Perella, James Florentine, Molly Kjartanson) & Ashby & Geddes PA (William Bowden, Gregory Taylor, Benjamin Keenan, Stacy Newman, Katharina Earle)

    • Special Committee Legal: Holland & Knight LLP (Lori Wittman, W. Keith Fendrick)

    • Investment Banker: Miller Buckfire (James Doak)

    • Claims Agent: Donlin Recano & Co., Inc. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • Preferred Equity Holder, DIP Lender, Exit Lender & Post-Reorg EquityHolder: JPMorgan Chase Funding Inc.

      • Legal: Hahn & Hessen LLP (Jeffrey Schwartz, Joshua Divack) & Landis Rath & Cobb LLP (Adam Landis, Richard Cobb, Matthew Pierce)

    • Preferred Equity Holder: Juniper Realty Partners LLC

      • Legal: Munger Tolles & Olson LLP (David Lee)

💊 New Chapter 11 Bankruptcy Filing - AAC Holdings Inc. ($AACH)💊

AAC Holdings Inc.

June 20, 2020

Tasteless joke alert: if there’s one thing that we would’ve thought would benefit from COVID it would be addiction. Our expenses are WAY DOWN across the board with one exception: alcohol.

We joke about it but the sad and honest truth is that there were a lot of people who likely needed help over the last several months that were unable to get it. Overdose deaths are spiking across the country. And so we hope that people are able to (safely) find answers/help now that things are finally opening back up across most of the country. Our tastelessness aside, it really isn’t a joking matter.

Unfortunately, American Addiction Centers ($AACH) has been kicking around the bankruptcy bin for a very long time now — long before COVID struck. Everyone knew a bankruptcy filing was coming. S&P Ratings has a “D” rating on this thing; Moody’s is rocking a Caa2. The first lien term loan due 2023 was, as of last week, just a hair over 41. Suffice it to say, all the signs were out there for the Tennessee-based inpatient and outpatient provider of substance abuse services.

And so AAC has finally met its fate. The company filed for chapter 11 in the District of Delaware in a rare Saturday night filing, listing $517.4mm of total debts against $449.4mm of total assets. That is textbook insolvency right there.

The company has a commitment of $62.5mm in DIP financing from its pre-petition lenders to fund the cases, operate in the ordinary course while in bankruptcy, and pursue a marketing process for the sale of its assets; it will use the bankruptcy process to de-lever its balance sheet; it notes that there’ll be no layoffs or facility closures as a result of the filing and that the company hopes to emerge from bankruptcy within 125 days. To this end, the company has an RSA with 89% of its first lien senior lenders and more than 50% of its junior lenders.

  • Jurisdiction: D. of Delaware (Judge Dorsey)

  • Capital Structure: $47mm senior lien facility, $316.6mm junior lien facility

  • Professionals:

    • Legal: Greenberg Traurig LLP (David Kurzweil, Alison Elko Franklin, Dennis Meloro) & Chipman Brown Cicero & Cole LLP

    • Directors: Scott Vogel, Michael Logan

    • Financial Advisor: Carl Marks Advisors (Jette Campbell)

    • Investment Banker: Cantor Fitzgerald

    • Claims Agent: Donlin Recano & Co. Inc. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • DIP & Pre-Petition Agent: Ankura Trust Company LLC

New Chapter 11 Bankruptcy Filing - PQ New York Inc. (a/k/a Le Pain Quotidien)

PQ New York Inc.

May 27, 2020

New York-based and Belgium-company-owned PQ New York Inc., otherwise known to most as Le Pain Quotidien, filed for chapter 11 bankruptcy in the District of Delaware (along with 104 affiliates) to effectuate a sale of assets to LPQ USA LLC, an affiliate of Aurify Brands. Aurify Brands incubates in-house brands (e.g., Melt Shop) and harvests previously-created brands too (e.g., Five Guys Burgers and Fries). It intends to re-open no fewer than 35 of LPQ’s 98 restaurants (and, to this end, has already filed a lease rejection motion delineating which leases, subject to a negotiation between landlords and the proposed purchaser, are subject to rejection). LPQ USA LLC provided the debtors a $522k bridge loan pre-petition and roll that loan up into a $3mm post-petition DIP credit facility to fund working capital needs during the course of the cases.

This is not a pure COVID story. The debtors financial performance began to decline pre-pandemic as customer preferences shifted away from the casual dining concept towards other concepts like “grab n go.” This trend, combined with management turnover and lack of investment at the store level, led the debtors to begin exploring strategic alternatives for their European and US-based businesses in Q3 of 2019.

Let’s put some numbers around this. In 2018, the debtors had $175mm of sales and $4.4mm in EBITDA. In 2019, sales dropped to $153mm and EBITDA swung by over $20mm to -$16.8mm. Even worse? There was no hope on the horizon. With expensive leases and eroding same store sales, the debtors forecast negative EBITDA through 2023 absent a severe operational restructuring. Prior to COVID slamming the economy and shutting everything down, the debtors had already determined that a bankruptcy filing would be necessary to help negotiate lease terms with landlords, secure funding, and pursue a sale. The shutdown just postponed things for a while.

  • Jurisdiction: D. of Delaware (Judge Dorsey)

  • Capital Structure: $522k bridge loan

  • Professionals:

    • Legal: Richards Layton & Finger PA (Mark Collins, Michael Merchant, Jason Madron, Brendan Schlauch)

    • Financial Advisor/CRO: PwC (Steven Fleming)

    • Investment Banker: SSG Advisors LLC

    • Real Estate Advisor: RCS Real Estate Advisors

    • Claims Agent: Donlin Recano & Company Inc. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • Stalking Horse Purchaser: LPQ USA LLC

      • Legal: Katten Muchin Rosenman LLP (Steven Reisman, Cindi Giglio) & Klehr Harrison Harvey Branzburg LLP (Domenic Pacitti, Morton Branzburg)

🚚 New Chapter 11 Filing - Comcar Industries Inc. 🚚

Comcar Industries Inc.

May 17, 2020

Florida-based Comcar Industries Inc. and 31 affiliates (the “debtors”) filed for chapter 11 bankruptcy in the District of Delaware — the latest trucking company to end up in bankruptcy court (Callback to “🚛 Dump Trucks 🚛 ,” a PETITION deep dive into the industry which included a review of Celadon Group Inc.’s chapter 11 bankruptcy filing). Comcar is a holding company with four stand-alone trucking business units ((as well as (a) logistics services, (b) supplies, parts and repairs, and (c) fleet maintenance services)). Through the bankruptcy filing, the debtors intend to effectuate a sale of all four units.

Each unit services a different part of the trucking market:

  • CCC Transportation LLC (“CCC”) is a bulk bulk carrier that primarily handles construction materials;

  • CT Transportation LLC (“CT”) is a flatbed carrier that specializes in construction materials;

  • CTL Transportation LLC (“CTL”) is a liquid bulk chemical transporter; and

  • MCT Transportation LLC (“MTL”) is a refrigerated and dry van commodities transporter.

Formed in the 1950s, the debtors grew over the years in order to provide all of these offerings. To do so, they, naturally, took on debt. Funded debt stands at $64.8mm including an ABL, a term loan, and various real estate-backed loans. Servicing the debt has been a challenge going as far back as 2014.

Trucking industry struggles have compounded matters. Per the debtors:

The trucking industry has experienced significant headwinds starting in 2019. During the first half of 2019, the $800 billion American trucking industry began to experience a recession and a reported 640 trucking companies went bankrupt. By mid-2019, the trucking freight market continued to soften. The combination of a decline in overall freight tonnage and excessive truck capacity in the market led to a significant decline in freight rates, and customers began to take bids at lower freight rates. Compared to the year immediately prior, 2019 showed a steady decline in freight rates, including spot freight rates and contractual rates.

Rates weren’t the only problem. Volumes also declined.

During 2019, truck volumes decreased for nine consecutive months and the trucking industry braced itself for a decrease in demand through the third quarter of 2020. As a result, spot and contract prices, which increased thirty percent (30%) in 2018, decreased twenty percent (20%) in 2019. The decrease in truckload linehaul rates was driven by (1) spot rates that were below contract rates by unsustainably larger margins than, (2) capacity additions and (3) stalled growth in the consumer and industrial economy.

All of this hit the the top and bottom lines. In 2019, the debtors suffered a 26% YOY revenue decrease across all units. CCC got hit the most, down 44.2%. CT got hit the least. Yet even that was down 19.7%. In total, the debtors lost $25mm in 2019 and $6mm through March 27, 2020.

Luckily, as with Celadon Group Inc. previously, there is a market for these trucks. The debtors have a buyer lined up for the CT and CTL businesses for $9mm and $8.6mm, respectively. Similarly, the debtors have a buyer for the MCT business. They would like to proceed with private sales of each of these businesses stating that “…the terms offered … are materially superior to the terms that the Debtors could hope to achieve at any auctions….” Pursuant to the proposed DIP, these sales need to be consummated by the end of July.

The debtors pre-petition ABL and Term Loan lenders (which includes an affiliate of PIMCO) have committed to funding a $15mm DIP — some of which will pay down pre-petition debt, some of which ($1.33mm) will roll-up pre-petition term loans, and the rest for liquidity to fund the cases.


  • Jurisdiction: D. of Delaware (Judge Dorsey)

    1. Capital Structure: $14mm ABL (Sterling National Bank), $25.3mm Term Loan (B2 FIE VIII LLC as lender, US Bank NA as agent), $6.2mm secured real estate loan (CenterState Bank NA), $7mm CWI Real Estate Loan (Commercial Warehousing Inc.),

    2. Professionals:

      • Legal: DLA Piper US LLP (Stuart Brown, Jamila Justine Willis, Tara Nair)

      • Independent Manager: Tobias Keller

      • Financial Advisor/CRO: FTI Consulting Inc. (Andrew Hinkelman)

      • Investment Banker: Bluejay Advisors LLC

      • Claims Agent: Donlin Recano (*click on the link above for free docket access)

    3. Other Parties in Interest:

      • Prepetition ABL Agent: Sterling National Bank

        • Legal: Greenberg Traurig LLP

      • Prepetition Term Loan Agent and DIP Agent: US Bank NA

        • Legal: Seward & Kissel LLP

      • Prepetition Term Loan Lender & DIP Lender: B2 FIE VIII LLC (Pimco)

        • Legal: Latham & Watkins LLP (Jason Bosworth)

⛪️New Chapter 11 Bankruptcy Filing - The Roman Catholic Church of the Archdiocese of New Orleans ⛪️

The Roman Catholic Church of the Archdiocese of New Orleans

May 1, 2020

Do we even really need to summarize this at this point? How many archdiocese chapter 11s are we going to see in 2020 that are predicated upon sexual abuse? In February there were two others: the Roman Catholic Diocese of Harrisburg and The Diocese of Buffalo NY. Now this. Just go and watch Spotlight people.

  • Jurisdiction: E.D. of Louisiana (Judge Grabill)

  • Professionals:

    • Legal: Jones Walker LLP (R. Patrick Vance, Elizabeth Futrell, Mark Mintz, Laura Ashley)

    • Claims Agent: Donlin Recano & Co. (*click on the link above for free docket access)

🤖New Chapter 11 Bankruptcy Filing - Wave Computing Inc.🤖

Wave Computing Inc.

April 27, 2020

California-based Wave Computing Inc. and six affiliates (the “debtors”) are independent tech companies that (a) develop cutting edge AI solutions and (b) license IP for microprocessors used in a variety of tech apps. Traditionally, their AI tech was used for voice recognition software for mobile and desktop devices, document analysis, chat bots and vehicle safety and navigation. The second focus — the IP for microprocessors — was a later development emanating out of a June 2018 transaction premised upon theoretical benefits from combining the AI tech with the microprocessor tech. That premise didn’t come to fruition. The debtors launch of a new commercial dataflow microprocessing unit flopped, requiring re-engineering. Said another way, this failure cost the debtors a lot of time and money to figure out a solution.

Making matters worse, the debtors “became embroiled in a dispute relating to a Series E preferred equity offering.” Consequently, the debtors’ liquidity became strained and they needed to borrow new funds from equity sponsor Tallwood Technology Partners LLC.

That wasn’t enough. The debtors required additional capital but the timing was awful: COVID-19’s impact on lending foreclosed the possibility of tapping new liquidity sources — particularly with a litigation overhang in the mix. By this point, creditors and a Series E investor filed lawsuits against the debtors.

The filing is meant to avail the debtors of a much needed breathing spell; it will also provide them with much needed liquidity in the form of a DIP from Tallwood. The $27.9mm DIP includes a $14.5mm new money revolver and a full term loan rollup of the pre-petition debt. As a condition to the DIP, the debtors have also agreed to waive any and all claims they might have against Tallwood (subject to a review period by creditors).

  • Jurisdiction: N.D. of California (Judge Hammond)

  • Capital Structure: $13.4mm secured note (Tallwood Technology Partners LLC), $2.1mm unsecured convertible notes

  • Professionals:

    • Legal: Sidley Austin LLP (Sam Newman, Julia Philips Roth, Charles Persons, Juliana Hoffman, Jeri Leigh Miller)

    • Financial Advisor/CRO: SierraConstellation Partners LLC (Lawrence Perkins, Miles Staglik, Bill Partridge, David Bitterman)

    • Claims Agent: Donlin Recano & Co. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • Prepetition & DIP Lender ($27.9mm): Tallwood Technology Partners LLC

⚫️New Chapter 11 Bankruptcy Filing - Longview Power LLC⚫️

Longview Power LLC

April 14, 2020

First it was True Religion and now it’s West Virginia-based Longview Power LLC: looks like we’re back to Chapter 22-ville after a long time away. This prepackaged chapter 11 also brings us back to (“clean”) coal country.* #MAGA!! Longview is the owner and operator of coal-filed power generation facility in West Virginia that services the PJM region (P - Pennsylvania, J - Jersey, M - Maryland, among other states). The company generated $28.1mm of EBITDA in 2019 versus $355mm of funded debt. You can do the math on what that means in terms of leverage ratios. 😬

The company attributes the drag on EBITDA to a combination of “…the rapid expansion of natural gas production, the use of natural gas in electric power generation in recent years, and lower energy prices due to a series of unseasonably warm winters has decreased energy price.” Colder winters = higher demand. Damn global warming! The average price per megawatt for electricity sold in the region is less than that of 2018 ($17.65/mwh). Other factors hitting the demand side include proliferation of use of LED light bulbs and solar roofs. Disruption! Given these market challenges, the company turned its attention to its balance sheet with the hope of eliminating interest expense and freeing up liquidity.

Alas, this is a balance sheet restructuring. The capital structure — while arguably not de-levered meaningfully enough after the initial chapter 11 cut $675mm — is at least straight-forward and simple. Longview has a $25mm revolver, $286.5mm term loan B facility and $44.3mm in subordinated notes. The company’s lenders from the 2013 bankruptcy own the equity.

Well, it looks like this will be Groundhog Day for Longview. Certain of the pre-petition term lenders will backstop a $40mm exit term loan and will get 10% of the new common equity with warrants exercisable for 90% of the new common equity provided the lender participates in the exit facility. Another debt for equity swap. Second time’s the charm?

*The company has already built one clean coal facility with an eye towards a second facility. The company also has plans for natural-gas-fired combined cycle plants and solar panel complexes.

  • Jurisdiction: D. of Delaware (Judge Shannon)

  • Capital Structure: $25mm RCF, $286.5mm TL (Deutsche Bank Trust Company), $44.3mm subordinated notes

  • Professionals:

    • Legal: Kirkland & Ellis LLP (David Seligman, Joseph Graham, Laura Krucks, Brenton Rogers, Stephen Hackney) & Richards Layton & Finger PA (Daniel DeFranceschi, Zachary Shapiro)

    • Financial Advisor: 3Cubed Advisory Services LLC

    • Investment Banker: Houlihan Lokey Inc.

    • Claims Agent: Donlin Recano & Co. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • Ad Hoc Group of Prepetition Term Lenders

      • Faegre Drinker Biddle & Reath LLP (Kaitlin MacKenzie, James Millar, Laura Appleby, Kyle Kistinger)

🏈New Chapter 11 Bankruptcy Filing - Alpha Entertainment LLC (XFL) 🏈

Alpha Entertainment LLC

April 13, 2020

“This is the future. And the future moves fast.”

Whoa boy does it move fast.

Connecticut-based Alpha Entertainment LLC — the legal entity behind the XFL — is now a chapter 11 debtor, an unfortunate blemish on the creative and investment record of Vincent K. McMahon (100% Class A equityholder, 75.5% Class B) and the World Wrestling Entertainment Inc. ($WWE)(23.5% Class B equityholder). Was this idea destined to fail?

The debtor paints an unfortunate picture. This thing was doing great, they assert, until that pesky COVID-19 thing had to come in and decimate anything and everything involving crowds. They note:

Prior to the Petition Date, the XFL provided high-energy professional football, reimagined for the 21st century with many innovative elements designed to bring fans closer to the players and the game they love, during the time of year when they wanted more football. The league debuted on February 8, 2020 to immediate acclaim. Nearly 70,000 fans attended the opening weekend’s games, and more than 12 million viewers tuned in on television. Just weeks after the first XFL games were played, however, the worldwide COVID-19 pandemic forced every major American sports league to suspend, if not cancel, their seasons. On March 20, 2020, the XFL canceled the remainder of its inaugural season, costing the nascent league tens of millions of dollars in revenue.

Man, how’s that for sh*tty timing? The post-Week 1 numbers reflect some initial success. Week 2 attendance rose from approximately 70k to 76.2k and Week 3 attendance hit 81.9k. The XFL was actually showing signs of promise until, in late February, attendance took a dive down to 70.2k in Week 4 and to 64.2k in Week 5.* Were people already beginning to hunker down? Given that Seattle and St. Louis proved to be the largest markets and Washington State was the first state in the union to get pummeled by COVID, that seems fairly safe to presume.

Frankly, nobody on the PETITION team has ever watched a minute of XFL football but … to be honest … it sounds like a whole lot of degenerate fun! Quicker games? ✅ In-game access to participants on the field? ✅ Encouraged gambling? ✅ Sounds awesome. What else are we gonna watch in February? Hockey? Please. This actually sounds like it was not, actually, destined to fail. Like a startup it needed time to build a brand and grow. Absent, say, a worldwide once-every-blue-moon pandemic that literally shuts down the world economy, it might have actually made great strides to do so. Alas:

It is estimated that cancellation of the final five weeks of league’s regular season “negated approximately $27 million in fan spending on gameday-related items” such as ticket sales and food, beverage, and merchandise purchases, to say nothing of the revenue from playoff games or the lost opportunities for sponsorship revenue and brand development. With the league shuttered and no games being played (or revenue being generated), the COVID-19 pandemic left the Debtor facing near-term liquidity issues. With the duration of the pandemic uncertain and the Debtor’s operating expenses continuing unabated, the Debtor was left with few viable alternatives outside of chapter 11.

Mr. McMahon provided the company with a $9mm secured bridge loan but, once it became clear that there was no end in sight to the shutdown, he and his advisors concluded that building a bridge without knowing where the end is probably doesn’t make for good business. Per the the chapter 11 filing papers, the bankruptcy, therefore, is intended to find a buyer for the assets — which include all of the teams (this is not a franchise model), equipment and intellectual property. Revenue for the business was $14mm with a net loss of $44mm. Mr. McMahon has committed to provide a $3.5mm DIP credit facility to fund the cases/sale. Given that the debtor has several million of cash on hand, however, Judge Silverstein did not approve the DIP at the debtors’ first day hearing. Likewise, she shelved the debtor’s plan to issue refunds to season ticket holders.

No sale-related pleadings are yet on file. Per the DIP — which, again, was not approved — a sale motion is required to be on file by April 21 and a sale conducted by July 15, 2020. The debtor has already filed motions rejecting all of its player contracts and practice facility and venue use agreements. McMahon, a billionaire, is well-positioned to credit bid his debt here, wipe out all unsecured creditors, and shelve the IP for a time in the future if he wants.

*There is some question as to whether “attendance” is the proper metric given that there were suspicions that the numbers reflect tickets “distributed” rather than tickets “sold” or actual attendance. Whichever way you measure it, the St. Louis BattleHawks “had reportedly sold 45,000 tickets to their next game before the league shut down due to the coronavirus outbreak.

  • Jurisdiction: D. of Delaware (Judge Silverstein)

  • Capital Structure: $9mm pre-petition secured note (Vince McMahon)

  • Professionals:

    • Legal: Young Conaway Stargatt & Taylor LLP (Michael Nestor, Matthew Lunn, Kenneth Enos, Travis Buchanan, Shane Reil, Matthew Milana)

    • Independent Manager: Drivetrain Advisors LLC (John Brecker)

    • Claims Agent: Donlin Recano & Co. Inc. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • Pre-Petition & DIP Lender ($3.5mm): Vince McMahon

🕍New Chapter 11 Bankruptcy Filing - Museum of American Jewish History (d/b/a National Museum of American Jewish History)🕍

Museum of American Jewish History (d/b/a National Museum of American Jewish History)

March 1, 2020

The Smithsonian-affiliated non-profit Museum of American Jewish History filed for bankruptcy in Pennsylvania earlier this month due to a shortfall from (i) sales of memberships and tickets to the Museum, (ii) event revenue, (iii) endowment income and (iv) charitable contributions relative to operating expenses. It appears to suffer from a chicken and egg problem: on one hand, it has too much debt and donors are fearful of contributing to a doomed enterprise and yet, on the other hand, it has too much debt and so the enterprise needs donors to NOT be fearful and donate to service said debt. Round and round we go.

The Philadelphia Authority for Industrial Development issued $30.75mm of Revenue Bonds in 2015 to help refinance the construction loan the Museum originally took on upon its location change in 2007 (Series A bonds are held by BNB Bank and Series B bonds are held by approximately 12 individuals). The bonds are secured by … well, basically nothing. There really couldn’t be a more meaningless security interest as the bondholders didn’t exactly get real property rights and there isn’t a whole lot of collateral or receipts, and property intended for exhibition, education or research is expressly carved-out (according to the papers).

Museum performance has been lackluster out of the gait. Per the Museum:

Since opening in 2010, the Museum’s revenues from gate receipts and events have been inconsistent. Accordingly, in 2017, the Museum reduced its operating expenses by eliminating some paid positions and by making other expense reductions. However, following such reduction in operating expenses, the Museum’s revenues have remained at a level which is insufficient to fully fund its expenses and its debt service.

Eesh. Rough. Subsequent restructuring talks with UMB Bank, BNB Bank and, presumably, representatives on behalf of the Series B noteholders proved futile. They’re undersecured and their bonds are basically worthless: it’s really quite that simple. Unfortunately, the Museum requires bankruptcy to drive that point home and attempt to figure out a restructuring of those bonds.

A quick digression admittedly grounded in opinion rather than fact: much like the United States is “over-retailed” per capita, we’re of the opinion that the United States is likewise over-Museumed. There are more than 35,000 museums in the United States. There are more than 100 museums in the city of Philadelphia. There are dozens of Jewish museums in the United States. Philadelphia is a big (and growing) city and it is entitled to a museum. But with other major Museums located nearby in New York and Washington DC, a general increasing secularization of the US population, and a diminishing number of people who, per various studies, identify as Jewish, it seems increasingly tenuous to maintain this large number of institutions. It’s a shame. But it’s a sad reality. Dont @ us.

  • Jurisdiction: E.D. of PA (Judge Coleman)

  • Capital Structure: $30.75mm (UMB Bank NA)

  • Professionals:

    • Legal: Dilworth Paxson LLP (Lawrence McMichael, Peter Hughes, Yonit Caplow)

    • Claims Agent: Donlin Recano (*click on the link above for free docket access)

  • Other Parties in Interest:

    • Successor Indenture Trustee: UMB Bank NA

🐄New Chapter 11 Bankruptcy Filing - Borden Dairy Company🐄

Borden Dairy Company

January 5, 2020

Dallas-based Borden Dairy Company and 17 affiliated companies joined fellow dairy manufacturer, Dean Foods Company (which we’ve written about here, here, here and, lastly, here upon its chapter 11 filing) in bankruptcy court this week. Why? “Like other milk producers and distributors, Borden is facing a multi-year trend of shrinking margins and increasing competition. These negative trends have been exacerbated by declining margin over milk at retail even as the price of raw Class 1 milk has been increasing.” Boo Moo.

What a storied history. Founded by Gail Borden in 1856 (PETITION Note: read the link if you want to feel awful about yourself and what you’ve accomplished in your life), the New York Condensed Milk Company started the first successful condensed milk processing plant in 1861. In the latter part of the 19th century, the company added processed and evaporated milk to its offerings and pioneered the use of glass milk bottles.

In 1919, the company changed its name to Borden Company in honor of Mr. Borden. This was a period of great uncertainty — one captured in Hemingway’s “The Sun Also Rises” — but that didn’t stop Mr. Borden’s descendants from expanding their dairy-fueled reign. They acquired two of the largest ice cream manufacturers in the US, while also adding cheese and acquiring a chemicals company. Over those years, Borden acquired over 200 companies. “Elsie the Cow” was born in 1936 and became a well known mascot.

By the 80s, Borden was the world’s largest dairy operator with sales exceeding $7.2b. Then gravity prevailed. By the early 90s, the company experienced financial distress borne out of two much expansion over the years and sold to KKR for $2b. KKR then dismantled Borden by selling off divisions and brands to various buyers.

The debtors underwent a comprehensive restructuring in 2017. At the time of the restructuring, the debtors took on a $275mm credit facility held, in tranches, by PNC Bank and KKR. The effective interest rate on the term loan facilities was 9.3% as of 12/31/19, which is on top of the 4.95% interest due under the revolving portion of the loan. So, yeah, debt and the debtors’ interest expense nut is a big part of this bankruptcy filing.

The company is no longer the behemoth it once was. Nevertheless, it employees over 3000 people and makes tens of thousands of service calls to its customers (e.g., Walmart Inc. & Sam’s Club ($WMT)), Kroger Inc. ($KR), 7-Eleven, CVS HealthCorp. ($CVS), Starbucks Inc. ($SBUX), etc.).

But its number suck. In 2018, the company had a total net income loss of $14.6mm on ~$1.2b of sales. In 2019, the loss widened to $42.4mm. Liquidity, therefore, is a big issue — and it’s compounded by (a) interest expense and amort payments on the term loan and (b) employee obligations under mandatory retirement plans and settlements related to pension funds. More on this below.

The macro reasons for the debtors’ problems sound like a Dean Foods’ encore:

  • The milk industry is highly competitive ✅;

  • Non-dairy products and beverages are stealing share (DISRUPTION!!) ✅;

  • Discount grocers have “intensified competition and reduced the margin over milk at retail” ✅; and

  • Walmart and other retailers who use milk as a loss leader are napalming margins ✅;

  • Commodity and freight costs are up ✅.

The company doesn’t tip its hand as to what it hopes to achieve in bankruptcy other than a “breathing spell” to get its sh*t in order. The Wall Street Journal noted:

Borden Chief Executive Tony Sarsam told The Wall Street Journal that he believes Acon, which took a major stake in the company in 2017, will be the primary owner of the business after the bankruptcy. He declined to say how much debt Borden would erase as part of its bankruptcy restructuring.

Acon is currently one of the debtors’ majority owners.

*****

There’s one thing that the Wall Street Journal doesn’t pick up on though. The debtors’ pensioners are about to get the royal screw.

The debtors note that, pre-filing, they made periodic payments pursuant to two settlement agreements they entered into in connection with their withdrawal from its (a) Central States, Southeast and Southwest Areas Pension Fund terminated in ‘14 (“Central States”) and (b) Retail, Wholesale and Department Store International Union pension fund terminated in ‘16 (“RWDSU”). In connection with the ‘17 restructuring, the debtors established a special purpose account funded with $30mm to fund these settlement payments — $185,225/month to Central States and $6,000/month to RWDSU. The account now has $26.6mm in it.

The debtors are laying claim to this money; they note that it is unencumbered by their lenders nor the pensioners.

This hasn’t been a great time for pensioners. With coal bankruptcies galore, Jack Cooper, and now the dairy producers, anxiety levels must be through the roof.

  • Jurisdiction: D. of Delaware (Judge Sontchi)

  • Capital Structure: $275mm of funded debt (see above). $30mm Term Loan A (PNC), $175mm Term Loan B (KKR Credit Advisors US LLC), $70mm RCF (PNC)

  • Professionals:

    • Legal: Arnold & Porter Kaye Scholer (D. Tyler Nurnberg, Seth Kleinman, Sarah Gryll, Jeffrey Fuisz) & Young Conaway Stargatt & Taylor LLP (M. Blake Cleary, Kenneth Enos, Elizabeth Justison, Betsy Feldman)

    • Independent Directors: Harold Strunk, Andrea Fischer Newman

    • Claims Agent: Donlin Recano (*click on the link above for free docket access)

  • Other Parties in Interest:

    • ACON Dairy Investors LLC

    • New Laguna LLC

    • Agent, RCF Facility Lenders & Term Loan A Facility Lenders: PNC Bank NA

      • Legal: Blank Rome LLP (Regina Stango Kelbon, Josef Mintz, John Lucian, Gregory Vizza)

    • Term Loan B Facility Lenders: KKR Credit Advisors US LLC/Franklin Square Holdings LP

      • Legal: King & Spalding LLP (Roger Schwartz, Peter Montoni, Christopher Boies, Stephen Blank) & Morris Nichols Arsht & Tunnell LLP (Robert Dehney, Curtis Miller, Matthew Harvey, Matthew Talmo)

    • Official Committee of Unsecured Creditors

      • Legal: Sidley Austin LLP (Matthew Clemente, Genevieve Weiner, Michael Fishel, Michael Burke) & Morris James LLP (Carl Kunz III, Eric Monzo, Brya Keilson)

💩New Chapter 11 Filing - uBiome Inc.💩

uBiome Inc.

September 4, 2019

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Back in our July 4th weekend edition, we wrote the following:

#BustedTech. One year you’re on the Forbes’ 2018 Next Billion-Dollar Startups list and the next year you’re getting raided by the FBI. This is the story of uBiome, a SF-based microbiome startup. Per Forbes:

The new interim CEO of troubled microbiome startup uBiome, Curtis Solsvig, is a longtime turnaround and restructuring expert at financial advisory firm Goldin Associates and the former chief restructuring officer of failed drone startup Lily Robotics.

One man’s billion-dollar valuation is another man’s clean-up job. 

And, now, another man’s bankruptcy.

Annnd another man’s sacrifice:

The Debtor filed this Chapter 11 Case to provide an innovative business with a fresh start under new management, and to preserve approximately 100 jobs through a court-supervised sale process that is intended to maximize the value of the Debtor’s assets for the benefit of all stakeholders.

…certain business practices formulated and implemented by the Debtor’s original founders have resulted in cessation of certain aspects of the Debtor’s business, investigations by certain federal and state investigatory bodies (the “Investigations”), loss of revenue and significant potential contingent liabilities.

Godspeed founders. You just got napalmed. AGAIN.

And as they should. The debtor has been in triage for some time now.

The company empowers consumers to access analysis of their DNA/microbiomes via the use of at-home kits. Said another way, people poop in an $89.99 “explorer kit” and the company analyzes the sample through (a) a proprietary gene sequencing process and (b) a cloud-based database of microbiomes to determine what’s what in the customer’s GI system — a much less invasive discovery methodology than the gut-wrenching (pun intended) colonoscopy. The consumer receives results that provide suggestions for diet, weight control, gut inflammation, sleep disorders and non-dietary supplements. Frankly, this all sounds rather bada$$.

The company also had a clinical business. Doctors could prescribe the tests and bill the customers’ insurance. Similarly, the company launched a clinical product geared towards the analysis of vaginal swabs (i.e., STDs, HPV, gyno disorders). Together these clinical products were called “SmartX.”

Suffice it to say, this idea was big. The company’s founders leveraged the open-source results from the Human Microbiome Project (launched by the National Institutes of Health) and built something that could really make a lot of people’s lives easier. The venture capitalists saw the opportunity, and the tech media celebrated the company’s rapid capital raises and increasing valuation: $1.5mm seed in ‘14, $4.5mm in August ‘14 (led by a16z)$15.5mm Series B in October ‘16, and $83mm Series C in September ‘18(PETITION Note: the company now says it raised $17mm in ‘16 and $59mm in ‘18, exclusive of $36.4mm of mostly-now-converted convertible notes, which means that the media appears to have been fed, or reported, wrong numbers).* Valuation? Approx $600mm.

Armed with gobs of money, the company established some valuable IP (including over 45 patents and your poop data, no joke) and commercial assets (its certified labs). On the other side of the ledger, there is $5.83mm of outstanding secured debt and $3.5mm of unsecured debt, ex-contingent liabilities including…wait for it…”[p]otential fines for civil and criminal penalties resulting from the Investigation….” Ruh roh.

The Founders implemented certain business strategies with respect to the SmartX products that were highly problematic, contained significant operational (but not scientific) flaws and, in some instances, were of questionable legality. These issues included improper insurance provider billing practices, improper use of a telemedicine physician network (known as the External Clinical Care Network), overly aggressive and potentially misleading marketing tactics, manipulation of customer upgrade testing, and improper use of customer inducements. Moreover, certain information presented to potential investors during the three rounds of capital raise my have been incorrect and/or misleading. Although uBiome believes the science and technology behind uBiome’s business model in this developing area is sound, these issues – among others – have resulted in significant legal exposure for the Debtor.

Score one for VC due diligence! The USA for the ND of California, the FBI, the DOJ and the SEC are all up in the company poop now. This investigation, much like the opioid crisis, also calls into question the ethical practices of doctors. Because we really ought not trust anybody these days.

Anyway, the company has since taken measures to right the ship. The board suspended and then sh*tcanned the founders and recruited new independents. They’ve verified that the company suffered from bad business practices rather than bad science or lab practices (Elizabeth Holmes, holla at us!!). And they’ve hired bankers to market the company’s assets (no stalking horse bidder at filing, though). The company received a commitment from early investor 8VC for a $13.83mm DIP of which $8mm in new money; it will take slightly more than 60 days to see if a buyer emerges. One selling point according to the company: it plans for its Explorer Kits to be in CVS Health Corp. ($CVS)! That’d be great if CVS planned for that too. Womp womp.

Anyway, the way bankruptcy is going these days chapter 11 probably ought to be renamed chapter 363.

*There are many reasons why d-bag startup founders hype their own raises. First, it promotes an aura of success which can help acquire new customers. Second, they love the adulation (see Elizabeth Holmes). Third, it helps with recruiting. And, fourth, the VCs must like it and use it for subsequent fundraising (given that they never correct the record).

  • Jurisdiction: D. of Delaware (Judge Silverstein)

  • Capital Structure: $5.83mm credit facility (Silicon Valley Bank)

  • Professionals:

    • Legal: Young Conaway Stargatt & Taylor LLP (Michael Nestor, Joseph Barry, Andrew Magaziner, Joseph Mulvihill, Jordan Sazant)

    • Board of Directors: Kimberly Scotti, L. Spencer Wells, D.J. (Jan) Baker

    • Financial Advisor/CRO: Goldin Associates LLC (Curtis

    • Investment Banker: GLC Advisors & Co LLC

    • Claims Agent: Donlin Recano & Co. Inc. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • DIP Agent: Silicon Valley Bank

      • Legal: Morrison & Foerster LLP (Alexander Rheaume, Todd Goren, Benjamin Butterfield) & Ashby & Geddes PA (Gregory Taylor, Katharina Earle)

    • DIP Participants: 8VC Fund I LP, 8VC Entrepreneurs Fund I LP

      • Legal: Gibson Dunn & Crutcher LLP (Matthew Williams, Eric Wise, Jason Zachary Goldstein) & Cole Schotz PC (Norman Pernick, Patrick Reilley)

⛽️New Chapter 11 Bankruptcy Filing - Shale Support Global Holdings LLC⛽️

Shale Support Global Holdings LLC

July 11, 2019

When privately-owned companies that most people have never heard of file for bankruptcy, it naturally raises the following logical question: with oil and gas once again imploding, how many off-the-run companies are going to wind their way into bankruptcy court? 🤔 We reckon quite a number.

Shale Support Global Holdings LLC, a private Louisiana-based proppant supplier to oilfield servicing companies that, in turn, service E&P companies, filed for bankruptcy in the Southern District of Texas. The company and 7 affiliated debtors (the “Debtors”) have little by way of assets ($3.15mm) and much more by way of debt ($127.8mm). MOR Bison LLC and BBC Holding LLC own 69.24% and 29.67% of the company, respectively.

The company started in 2014 to solve the problem of expensive logistics costs emanating out of the transport of sand to frac sites. The company sought to vertically integrate the ownership of sand mines with, among other things, a drying facility and a transload facility; its mines are in Mississippi. Given what has occurred in oil and gas country since 2014, it seems abundantly clear that the timing here was just a bit off. “How off,” you ask? Per the Debtors:

Demand for frac sand is significantly influenced by the level of well completions by E&P and OFS companies, which depends largely on the current and anticipated profitability of developing oil and natural gas reserves. As such, Shale Support’s business is highly correlated with well completions, which is, in-turn, is dependent on both commodity prices and producers’ ability to deliver oil to the market. Over the past five years, commodity prices have been highly volatile resulting in an unpredictable demand curve and a significant amount of OFS and E&P bankruptcies. Compounding these demand issues, Shale Support operates in a highly-competitive industry that has seen a dramatic increase in supply. This new supply has come from basin-specific regional producers (that have dramatically lower logistic costs) as well as larger, often better-capitalized, competitors. Regional suppliers and Shale Support’s larger competitors are both in a position to exert significant, downward pressure on pricing for proppants.

Said another way, as off as humanly possible. With a supply/demand imbalance in 2H ‘18, the company saw revenue fall over 40% in 2018. 😬 This was in large part due to the fact that, despite falling proppants prices, the Debtors are locked in to fixed cost contracts with railcar transport providers. With this mix plus over $127mm in outstanding debt obligations, liquidity became an issue.

For over a year now, the Debtors have been in a state of perpetual marketing. Piper Jaffrey & Co., the Debtors’ banker, could not, however, locate a buyer. In the midst of discussions with potential strategic and financial buyers, the price of frac sand continued to fall. Per the Debtors:

Unsurprisingly, no party submitted an indicative expression of interest, a non-binding offer or a valuation of Shale Support. The stated justification from these parties centered around market conditions, location of the reserves, quality of sand, availability of buyer cash, and consistent underperformance of business relative to forecasts.

Efforts to refinance the debt were equally unsuccessful given the declining asset value upon which a new loan would be based. Ultimately, the Debtors defaulted under their prepetition term loan agreement and, over the course of multiple months of waivers, negotiated with their lenders with the hope of “building consensus around a de-leveraging transaction.” Spoiler alert: there’s no prepackaged plan on file here nor is there a bid procedures motion accompanied by a stalking horse asset purchase agreement so suffice it to say that whatever consensus there might be is limited to the commitment of a $16.6mm DIP credit facility. And that forces the issue: under the DIP milestones, the Debtors must confirm a plan of reorganization within 98 days. Will the lenders equitize? Given the astounding job the first day papers do of making the assets seem attractive, is there a chance in hell a buyer emerges? Stay tuned.

  • Jurisdiction: S.D. of Texas (Judge Jones)

  • Capital Structure: $116mm ‘21 10% cash/12% PIK Term Loan (including interest, etc.), $11.6mm ‘21 ABL (Siena)

  • Professionals:

    • Legal: Greenberg Traurig LLP (Shari Heyen, Karl Burrer, David Eastlake, Eric Howe)

    • Financial Advisor/CRO: Alvarez & Marsal LLC (Gary Barton)

    • Investment Banker: Piper Jaffray & Co. (Richard Shinder)

    • Claims Agent: Donlin Recano & Company Inc. (*click on the link above for free docket access)

  • Other Parties in Interest:

    • Prepetition Term Loan & DIP Agent ($16.6mm): BSP Agency LLC (DIP Lenders: Providence Debt Fund III LP, Benefit Street Debt Fund IV LP, and Benefit Street Partners SMA LM LP).

      • Legal: Baker Botts LLP (Emanuel Grillo)

    • Prepetition Revolving Lender: Siena Lending Group LLC

      • Legal: Thompson Coburn LLP (David Warfield, Victor A. Des Laurier)

New Chapter 11 Bankruptcy Filing - The LaSalle Group Inc.

The LaSalle Group Inc.

May 2, 2019

Short Nana.

Texas-based The LaSalle Group Inc., an owner of 40 memory care assisted living communities across 9 states, and a handful of affiliated debtors filed for bankruptcy on May 2, 2019 and things ain’t looking pretty for the unsecured creditors: the company is administratively insolvent. The company owes $3.7mm at the parent level and then has ~$27.8mm of opco level debt among four debtor LLCs that are all owned 52% by a third-party investor (“Realco Silverado Investor”). Realco Silverado Investor seeks to purchase the opcos for $29mm, just enough to clear the debt at the opco level. Per the company, “[i]n the event this sale closes…[the notes]…should all be paid in full, all employees will have continual job opportunity, and all residents will remain in the residence they and their loved ones have chosen.” The bright side? This sounds like a good result for those most in need of it.

Why is the company in bankruptcy? It states:

“A surge in construction of assisted living facilities in recent years has created a supply-demand imbalance resulting in greater competition for residents and lower rates. This market dynamic has significantly impacted LaSalle and its affiliated entities (collectively, the “Autumn Leaves Group”) from a cash flow perspective. The Autumn Leaves Group has struggled with occupancy rates in certain markets which has significantly impacted revenue and cash flow.”

Moreover, LaSalle is the guarantor of substantially all of the secured debt and lease obligations. Its cash flow constraints precluded it from servicing its debt, culminating in approximately 30 lawsuits currently pending against LaSalle. As if that wasn’t bad enough, LaSalle also suffered the brunt of a United States District Court for the Northern District of Illinois, Eastern Division Memorandum Opinion and Order granting a motion for conditional certification of a collective action against it related to alleged hourly rate wage claims. And as if THAT wasn’t bad enough, LaSalle also faces various suits from vendors and other creditors for disputed unpaid claims. They’re all about to get hosed. The assets that aren’t sold to Realco Silverado Investor will be liquidated.

  • Jurisdiction: N.D. of Texas (Judge Jernigan)

  • Professionals:

    • Legal: Crowe & Dunlevy PC (Vickie Driver, Christina Stephenson, Christopher Staine)

    • Financial Advisor/CRO: Harney Partners (Karen Nicolaou)

    • Claims Agent: Donlin Recano & Company Inc. (*click on the link above for free docket access)

  • Other Parties in Interest:

🚚New Chapter 11 Bankruptcy Filing - New England Motor Freight Inc.🚚

New England Motor Freight Inc.

February 11, 2019

New England Motor Freight Inc. (“NEMF”) and its affiliated debtors filed for bankruptcy in the District of New Jersey. NEMF provides less-than-truckload transportation services; its debtor affiliates also provide, among other things, truckload carrier services, equipment leasing, third party logistics services, transportation brokerage services, and non-vessel operation common carrier operations between the US and Puerto Rico. Collectively, the debtors employ approximately 3,450 full-time and part-time employees, of which 1,900 are members of the International Association of Machinists and Aerospace Workers, AFL-CIO and are covered by collective bargaining agreements. While the company generated gross revenues around $370mm in each of the last two fiscal years, it filed for bankruptcy to effectuate (a) an orderly liquidation of the majority of its business and (b) the sale of its truckload and third-party logistics businesses (which, together, account for approximately 9% of the company’s revenues). The company has approximately $57.1mm of vehicle financing debt exclusive of interest and fees and another $30.4mm in outstanding letters of credit.

Interestingly, the company notes:

While the company’s operations were profitable for decades since the current ownership group acquired NEMF in 1977, the Debtors have suffered a downward trend over recent years, which was exacerbated in late 2018 by the unexpected loss of key accounts, the shortage of drivers, a new Union contract with onerous retroactive terms, and the L/C Lenders’ ultimate unwillingness to restructure the Debtors’ letters of credit obligations under terms acceptable to the Debtors.

And, here, more on the union situation:

Changes and competition within the industry have had an ongoing negative impact on the Debtors’ revenues. The Debtors’ workforce is made up of approximately 3,450 full-time and part-time employees. The Union workforce consists of approximately: 1,425 truck drivers, and 475 dock workers, for a total of approximately 1,900 Union employees. The non-union workforce consists of, approximately: 145 truck drivers at Eastern, 600 part-time workers (primarily dock workers), and 805 other employees, for a total of approximately 1,550 non-union employees. Employee costs for the Debtors are, in the aggregate, substantially above industry normsMost of the LTL companies competing with the Debtors operate under non-unionized conditions. At the same time, there has developed an industry-wide shortage of drivers, putting the Debtors, with an aging fleet of vehicles, at a severe disadvantage. (emphasis added)

Given the company’s proximity to New York, its relationship with Amazon Inc. ($AMZN), and the role of unions in the ultimate break-up between New York City and Amazon (which happened a day later), we thought this story was particularly intriguing.

  • Jurisdiction: D. of New Jersey (Judge Sherwood)

  • Professionals:

    • Legal: Gibbons P.C. (Karen A. Giannelli, Mark B. Conlan, Brett S. Theisen) & (local) Wasserman, Jurista & Stolz, P.C. (Donald Clarke, Daniel Stolz)

    • Financial Advisor: Phoenix Management Services LLC (Vince Colistra)

    • Claims Agent: Donlin Recano & Company (*click on the link above for free docket access)

New Chapter 11 Bankruptcy Filing - Charlotte Russe Holding Inc.

Charlotte Russe Holding Inc.

February 3, 2019

San Diego-based specialty women’s apparel fast-fashion retailer Charlotte Russe Holding Inc. is the latest retailer to file for bankruptcy. The company has 512 stores in 48 U.S. states. The company owns a number of different brands that it sells primarily via its brick-and-mortar channel; it has some brands, most notably “Peek,” which it sells online and wholesale to the likes of Nordstrom.

The company’s capital structure consists of:

  • $22.8mm 6.75% ‘22 first lien revolving credit facility (ex-accrued and unpaid interest, expenses and fees)(Bank of America NA), and

  • $150mm 8.5% ‘23 second lien term loan ($89.3mm funded, exclusive of unpaid interest, expenses and fees)(Jefferies Finance LLC). The term loan lenders have first lien security interests in the company’s intellectual property.

The company’s trajectory over the last decade is an interesting snapshot of the trouble confronting the brick-and-mortar retail space. The story begins with a leveraged buyout. In 2009, Advent International acquired the debtors through a $380mm tender offer, levering up the company with $175mm in 12% subordinated debentures in the process. At the time, the debtors also issued 85k shares of Series A Preferred Stock to Advent and others. Both the debentures and the Preferred Stock PIK’d interest (which, for the uninitiated, means that the principal or base amounts increased by the respective percentages rather than cash pay interest or dividends being paid over time). The debtors later converted the Preferred Stock to common stock.

Thereafter, the debtors made overtures towards an IPO. Indeed, business was booming. From 2011 through 2014, the debtors grew considerably with net sales increased from $776.8mm to $984mm. During this period, in May of 2013, the debtors entered into the pre-petition term loan, used the proceeds to repay a portion of the subordinated debentures and converted the remaining $121.1mm of subordinated debentures to 8% Preferred Stock (held by Advent, management and other investors). In March 2014, the debtors and its lenders increased the term loan by $80mm and used the proceeds to pay a one-time dividend. That’s right folks: a dividend recapitalization!! WE LOVE THOSE. Per the company:

In May 2014, the Debtors paid $40 million in dividends to holders of Common Stock, $9.8 million in dividends to holders of Series 1 Preferred Stock, which covered all dividends thus far accrued, and paid $65.7 million towards the Series 1 Preferred Stock principal. The Debtors’ intention was to use a portion of the net proceeds of the IPO to repay a substantial amount of the then approximately $230 million of principal due on the Prepetition Term Loan.

In other words, Advent received a significant percentage of its original equity check back by virtue of its Preferred Stock and Common Stock holdings.

Guess what happened next? Well, after all of that money was sucked out of the business, performance, CURIOUSLY, began to slip badly. Per the company:

Following fifteen (15) consecutive quarters of increased sales, however, the Debtors’ performance began to materially deteriorate and plans for the IPO were put on hold. Specifically, gross sales decreased from $984 million in fiscal year 2014 with approximately $93.8 million in adjusted EBITDA, to $928 million in fiscal year 2017 with approximately $41.2 million in adjusted EBITDA. More recently, the Debtors’ performance has materially deteriorated, as gross sales decreased from $928 million in fiscal year 2017 with approximately $41.2 million in adjusted EBITDA, to an estimated $795.5 million in fiscal year 2018 with approximately $10.3 million in adjusted EBITDA.

Consequently, the company engaged in a year-long process of trying to address its balance sheet and/or find a strategic or financial buyer. Ultimately, in February 2018, the debtors consummated an out-of-court restructuring that (i) wiped out equity (including Advent’s), (ii) converted 58% of the term loan into 100% of the equity, (iii) lowered the interest rate on the remaining term loan and (iv) extended the term loan maturity out to 2023. Advent earned itself, as consideration for the cancellation of its shares, “broad releases” under the restructuring support agreement. The company, as part of the broader restructuring, also secured substantial concessions from its landlords and vendors. At the time, this looked like a rare “success”: an out-of-court deal that resulted in both balance sheet relief and operational cost containment. It wasn’t enough.

Performance continued to decline. Year-over-year, Q3 ‘18 sales declined by $35mm and EBITDA by $8mm. Per the company:

The Debtors suffered from a dramatic decrease in sales and in-store traffic, and their merchandising and marketing strategies failed to connect with their core demographic and outpace the rapidly evolving fashion trends that are fundamental to their success. The Debtors shifted too far towards fashion basics, did not effectively reposition their e-commerce business and social media engagement strategy for success and growth, and failed to rationalize expenses related to store operations to better balance brick-and-mortar operations with necessary e-commerce investments.

In the end, bankruptcy proved unavoidable. So now what? The company has a commitment from its pre-petition lender, Bank of America NA, for $50mm in DIP financing (plus $15mm for LOCs) as well as the use of cash collateral. The DIP will roll-up the pre-petition first lien revolving facility. This DIP facility is meant to pay administrative expenses to allow for store closures (94, in the first instance) and a sale of the debtors’ assets. To date, however, despite 17 potential buyers executing NDAs, no stalking horse purchaser has emerged. They have until February 17th to find one; otherwise, they’re required to pursue a “full chain liquidation.” Notably, the debtors suggested in their bankruptcy petitions that the estate may be administratively insolvent. YIKES. So, who gets screwed if that is the case?

Top creditors include Fedex, Google, a number of Chinese manufacturers and other trade vendors. Landlords were not on the top 30 creditor list, though Taubman Company, Washington Prime Group Inc., Simon Property Group L.P., and Brookfield Property REIT Inc. were quick to make notices of appearance in the cases. In total, unsecured creditors are owed approximately $50mm. Why no landlords? Timing. Despite the company going down the sh*tter, it appears that the debtors are current with the landlords (and filing before the first business day of the new month helps too). Not to be cynical, but there’s no way that Cooley LLP — typically a creditors’ committee firm — was going to let the landlords be left on the hook here.

And, so, we’ll find out within the next two weeks whether the brand has any value and can fetch a buyer. In the meantime, Gordon Brothers Retail Partners LLC and Hilco Merchant Resources LLC will commence liquidation sales at 90+ locations. We see that, mysteriously, they somehow were able to free up some bandwidth to take on an new assignment sans a joint venture with literally all of their primary competitors.

  • Jurisdiction: D. of Delaware (Judge Silverstein)

  • Capital Structure: $22.8mm 6.75% ‘22 first lien revolving asset-backed credit facility (ex-accrued and unpaid interest, expenses and fees)(Bank of America NA), $150mm 8.5% ‘23 second lien term loan ($89.3mm funded, exclusive of unpaid interest, expenses and fees)(Jefferies Finance LLC)

  • Company Professionals:

    • Legal: Cooley LLP (Seth Van Aalten, Michael Klein, Summer McKee, Evan Lazerowitz, Joseph Brown) & (local) Bayard PA (Justin Alberto, Erin Fay)

    • Independent Director: David Mack

    • Financial Advisor/CRO: Berkeley Research Group LLC (Brian Cashman)

    • Investment Banker: Guggenheim Securities LLC (Stuart Erickson)

    • Lease Disposition Consultant & Business Broker: A&G Realty Partners LLC

    • Liquidating Agent: Gordon Brothers Retail Partners LLC and Hilco Merchant Resources LLC

    • Liquidation Consultant: Malfitano Advisors LLC

    • Claims Agent: Donlin Recano & Company (*click on company name above for free docket access)

  • Other Parties in Interest:

    • DIP Lender ($50mm): Bank of America NA

      • Legal: Morgan Lewis & Bockius LLP (Julia Frost-Davies, Christopher Carter) & (local) Richards Layton & Finger PA (Mark Collins)

    • Prepetition Term Agent: Jefferies Finance LLC

      • Legal: King & Spalding LLP (Michael Rupe, W. Austin Jowers, Michael Handler)

    • Official Committee of Unsecured Creditors (Valueline Group Co Ltd., Ven Bridge Ltd., Shantex Group LLC, Global Capital Fashion Inc., Jainson’s International Inc., Simon Property Group LP, Brookfield Property REIT Inc.)

      • Legal: Whiteford Taylor & Preston LLP (Christopher Samis, L. Katherine Good, Aaron Stulman, David Gaffey, Jennifer Wuebker)

      • Financial Advisor: Province Inc. (Edward Kim)

Updated 2/14/19 at 1:41 CT

😷New Chapter 11 Bankruptcy Filing - Mayflower Communities Inc. (d/b/a The Barrington of Carmel)😷

Mayflower Communities Inc. (d/b/a The Barrington of Carmel)

January 30, 2019

Mayflower Communities, Inc. (d/b/a The Barrington of Carmel), a non-profit senior living retirement community of 271 units in the State of Indiana, filed for bankruptcy in the Northern District of Texas earlier this week. As a continuing care retirement community (“CCRC”), Barrington provides a battery of services to its residents ranging from recreational activities to assisted living, memory support, skilled nursing, and rehabilitation. Residents can get apartment homes on site.

The business model, however, is…well, interesting. Per the Company:

CCRCs, however, are often operationally and financially complex. More specifically, CCRCs can be challenging to operate because they require the maintenance of a broad range of services to seniors in varying stages of the aging process. Additionally, CCRCs require a steady flow of new residents in order to maintain day-to-day operations and to remain current on financial obligations, including, most importantly, obligations to current and former residents.

New residents = new revenue, which is also needed to meet debt obligations and comply with resident refund obligations.

Revenue comes from entrance fees ranging from approximately $316k to $650k, monthly serve fees from $2,800 to $7,600, and other per diem fees for skilled nursing, optional services fees and unit upgrade fees. In exchange, however, Barrington takes on a significant commitment. Per the company:

Unlike a pure rental retirement community, whereby a resident pays monthly fees for services (which fees may increase as the resident’s needs change), the Continuing Care Contract is a life care residency contract whereby a resident will pay an Entrance Fee and fixed monthly fees for Barrington’s commitment to provide life care services for the duration of the resident’s life, regardless of whether (i) the resident’s needs change over time which may require additional services to be provided by Barrington, or (ii) the costs of providing such services increase for Barrington. Significantly, Barrington’s commitment to provide life care services continue even if the resident’s financial condition deteriorates and is unable to continue to make its payments.

Non-profit, indeed. That sounds like a recipe for fiscal disaster.

The company reported $96.5mm in assets and $151.9mm in liabilities, including oversight fees owed to its management company, $52.4mm in resident refund obligations, $92.7mm (plus accrued interest) of long-term municipal bond obligations and $4.1mm of subordinated note obligations.

The aforementioned debt is a big problem. Compounding matters is the fact that the senior housing market in the geographic vicinity is “very competitive” which led to rental price and, by extension, margin, compression. Lower-than-projected revenues combined with the debt led to Barrington defaulting on its municipal bond obligations back in November. Consequently, the Bond Trustee commenced a receivership action. To forestall the Bond Trustee’s subsequent efforts to, among other things, displace the board and sole member, pursue a sale of the facility, and potentially reject continuing care contracts, the company filed for bankruptcy wherein it will leverage the “automatic stay” and “potentially pursue a sale of the Facility.”

  • Jurisdiction: N.D. of Texas

  • Company Professionals:

    • Legal: DLA Piper LLP (Thomas Califano, Rachel Nanes, Andrew Zollinger)

    • Financial Advisor/CRO: Ankura Consulting LLC (Louis Robichaux IV) & Larx Advisors Inc.

    • Investment Banker: Cushman & Wakefield U.S., Inc.

    • Claims Agent: Donlin Recano & Company (*click on company name above for free docket access)

  • Other Parties in Interest:

New Chapter 11 Bankruptcy Filing - Maremont Corporation

Maremont Corporation

January 22, 2019

Michigan-based Maremont Corporation, a subsidiary of publicly-traded non-debtor automobile component manufacturer Meritor Inc. ($MTOR), has filed for bankruptcy along with three affiliates in the District of Delaware. The company was a manufacturer, distributor and seller of aftermarket auto products — many of which contained asbestos; currently, it has no ongoing operations and its only assets are an intercompany receivable, a rent-producing commercial property with Dollar General as a tenant, a few bank accounts, and some insurance assets. In contrast, the company has significant liabilities — notably asbestos-related liabilities including defense and other costs associated with defending 13k pending personal injury and wrongful death claims.

The company, in consultation with its parent and committees of Future Claimants and current Asbestos Claimants, arrived at a prepackaged plan under section 524(g) of the Bankruptcy Code. The plan envisions a personal injury trust to be funded, in large part, by Meritor (via the repayment of a remaining receivable, a contribution of intercompany payables and a $28mm settlement payment) and a channeling injunction that protects the company (and Meritor) from future suit and liability arising out of the company’s asbestos legacy. Instead, any and all asbestos-related personal injury claims may only be pursued against, and paid from, the personal injury trust.

Meritor, like most of the stock market, got beaten up yesterday. There’s no telling whether the multi-million dollar payout here had anything to do with that.

Source: Yahoo!

Source: Yahoo!


For the uninitiated, this (horrifically boring) bankruptcy filing presents us with a good opportunity to highlight a potential structure (and its limitations) for any imminent Pacific Gas & Electric Company (“PG&E”) chapter 11 bankruptcy filing. PG&E’s issues — as have, by this point, been extensively documented — largely emanate out of (i) some oppressive California state liability laws (inverse-condemnation — definitely), (ii) man-made global warming and resultant mudslides and wildfires (probably), and (iii) at least a glint of negligence (probably). While the company has $18.4b of (mostly unsecured) debt, the catalyst to bankruptcy may be its multi-billion dollar liability from the aforementioned CA-state laws and years of environmental disaster.

Similar to Maremont, PG&E is likely to end up with some kind of plan of reorganization that features a litigation trust (for affected claimants) and a channeling injunction. Except, as John Rapisardi and Daniel Shamah of O’Melveny & Myers point out, there are limitations to that structure. They write:

There is one significant obstacle to any PG&E bankruptcy: the likely inability to discharge liabilities associated with wildfires that have not yet occurred. There have been numerous mass tort bankruptcies in the past that have been resolved through the formation of a litigation trust and channeling injunction, forcing litigants into a single forum where claims are satisfied through trust assets. See, e.g., 11 U.S.C. §524(g) (channeling injunction for asbestos debtors); In re TK Holdings, Doc. No. 2120, Case No. 17-11375 (Bankr D. Del.) (confirmation order with channeling injunction for debtor that manufactured airbags with defective components). But that structure only works for claims based on prior conduct or acts. PG&E, in contrast, faces perennial liability associated with wildfires and inverse condemnation. It may be challenging to discharge the inverse-condemnation liabilities associated with a post-petition wildfire. See 28 U.S.C. §959(a) (debtors-in-possession may be sued “with respect to any of their acts or transactions in carrying on business connected with such property.”).

Prior conduct or acts, huh? A discontinued product that happened to contain asbestos fits that bill. Likewise, a remedied airbag (the TK Holdings referenced above refers to Takata Airbags). Sadly — especially for Californians, there is nothing prior about environmental issues. Those are very much a present and future thing.

  • Jurisdiction: D. of Delaware (Judge Carey)

  • Company Professionals:

    • Legal: Sidley Austin LLP (James Conlan, Andrew O’Neill, Alison Ross Stromberg, Blair Warner, Alex Rovira) & (local) Cole Schotz PC (Norman Pernick, J. Kate Stickles)

    • Claims Estimation Advisor: Alvarez & Marsal Disputes and Investigations LLC

    • Claims Agent: Donlin Recano (*click on company name above for free docket access)

  • Other Parties in Interest:

    • Future Claimants Representative: James L. Patton Jr.

      • Legal: Young Conaway Stargatt & Taylor LLP

      • Claims Estimation Advisor: Ankura Consulting Group LLC

💄New Chapter 11 Bankruptcy Filing - Beauty Brands LLC💄

Beauty Brands LLC

January 6, 2019

A second beauty bankruptcy in three weeks. We previously noted:

On December 19, 2018, a week after Glossier CEO Emily Weiss revealed that the direct-to-consumer beauty brand hit $100mm in sales, Glansaol, a platform company that acquires, integrates and cultivates a portfolio of prestige beauty brands — including a direct-to-consumer brand — filed for bankruptcy in the Southern District of New York.

Now, a Kansas City-based brick-and-mortar beauty retailer with 58 stores in 12 states, Beauty Brands LLC, filed for bankruptcy over the weekend in the District of Delaware. Though we’ve never heard of it, it is no small shop: the company generated $125mm of net sales for fiscal year ended February 3, 2018. 70% of its revenue came from retail products and 30% from salon and spa services. The company had an e-commerce platform that accounted for 6.2% of net sales. It does not own any real property, leasing each of its stores.

In December, the company’s lender, PNC Bank NA, declared a default on the company’s credit facility. Why? Per the Company:

Beauty Brands’ liquidity and financial position has been adversely affected by declining sales and rising costs associated with doing business as a predominantly “brick and mortar” retailer. These factors have adversely impacted the Debtors’ profitability and its liquidity, which in turn has made it increasingly difficult to source replenishment inventory, which in turn contributes to further declines in the Company’s sales.

Well, that certainly paints a nice picture of how trouble can spiral out of control. Compounding matters is the fact that the company decided to expand in the face of a changing brick-and-mortar retail environment…

From 2014 through 2016, Beauty Brands unsuccessfully attempted to reposition its brand identity and store model by opening 11 new format store locations, which required significant capital expenditures, deferral of other investment opportunities, and management’s focus on the new format stores to the detriment of its existing store locations. These new format store locations, which remain operational, have underperformed Beauty Brands’ expectations and contributed to operating losses incurred by the Debtors.

Despite pre-petition efforts to sell the company as a going concern, no buyers were forthcoming. Therefore, the company hired Hilco Merchant Resources LLC to commence a firm-wide liquidation. Nevertheless, the company holds out hope — given some 11th hour interest by two potential buyers — that it can auction approximately 33 of its stores (“Core Stores”). In the meantime, Hilco is pursuing “GOB” sales of the 23 remaining stores (“Closing Stores”)(PETITION Note: the company’s papers say there are 58 stores, and yet only 56 stores are accounted for in the company’s description of Core Stores and Closing Stores, though there is mention of one “Dark Store”). Hilco will also serve as the Stalking Horse Bidder for the Core Stores.

The company will pursue a short post-petition marketing and sale process with an aim towards an early February 2019 sale. The company will use a committed $9mm DIP from pre-petition agent, PNC Bank NA, to fund the process.

  • Jurisdiction: D. of Delaware (Judge Sontchi)

  • Capital Structure: $17.5mm ($6.9mm funded, including fees + interest)

  • Company Professionals:

    • Legal: Ashby & Geddes P.A. (Gregory Taylor, Stacy Newman, Katharina Earle, David Cook)

    • Financial Advisor/CRO: RAS Management Advisors LLC (Timothy Boates, Michael Rizzo)

    • Investment Banker: Lazard Middle Markets LLC (Dermott O’Flanagan)

    • Liquidator: Hilco Merchant Resources LLC

    • Claims Agent: Donlin Recano & Company Inc.

  • Other Parties in Interest:

    • DIP Agent: PNC Bank NA

      • Legal: Blank Rome LLP (Gregory Vizza, John Lucian)

    • Replacement Stalking Horse Bidder: Absolute Beauty LLC

      • Legal: Kirkland & Ellis LLP (Joshua Sussberg, Gene Goldmintz, Joshua Greenblatt) & (local) Klehr Harrison Harvey Branzburg LLP (Dominic Pacitti)

    • Official Committee of Unsecured Creditors (TIGI Linea Corp., Deva Concepts LLC, L’Oreal USA S/D Inc.)

      • Legal: Kelley Drye & Warren LLP (Eric Wilson, Jason Adams, Lauren Schlussel) & (local) Saul Ewing Arnstein & Lehr LLP

      • Financial Advisor: Province Inc. (Carol Cabello)

New Chapter 11 Bankruptcy Filing - Republic Metals Refining Corporation

Source: Pexels.com

Source: Pexels.com

November 2, 2018

Republic Metals Refining Corporation (and affiliates), a Miami-based family-owned refiner of gold and silver, filed for bankruptcy to run an orderly sale process of their assets and operations. Last spring, the debtors discovered “a significant discrepancy” in their inventory accounting that, ultimately, led to summer-time default notices from their various senior lenders. The lenders, however, were mostly kept at bay until the filing because the debtors appeared, on multiple occasions, to be close to a going concern sale.

Close. But no cigar.

In the absence of a pre-petition buyer and/or stalking horse bidder, the debtors will now continue their potential sale process or, alternatively, engage in a process to liquidate. The debtors have an agreement with their senior lenders for the consensual use of cash collateral for a short period to attempt a sale, liquidate, and implement a plan for the wind down of the debtors’ estates.

  • Jurisdiction: S.D. of New York

  • Capital Structure: $177mm senior debt

  • Company Professionals:

    • Legal: Akerman LLP (Susan Balaschak, Andrea Hartley, Katherine Fackler, John Mitchell, Esther McKean)

    • Financial Advisor: Paladin Management Group LLC (Scott Avila)

    • Investment Banker: SSG Capital Advisors LLC

    • Claims Agent: Donlin Recano (*click on company name above for free docket access)

  • Other Parties in Interest:

    • Senior Lender: ICBC Standard Bank Plc

      • Legal: Haynes and Boone LLP (J. Frasher Murphy, Eli Columbus, Geoffrey Raicht)

    • Senior Lenders: Coöperatieve Rabobank U.A., New York Branch, Brown Brothers Harriman & Co., Bank Hapoalim B.M., Mitsubishi International Corporation, Techemet Metal Trading LLC, Woodforest National Bank, and Bank Leumi USA.

      • Legal: Luskin Stern & Eisler LLP (Richard Stern, Alex Talesnick)