Waypoint Leasing Holdings Ltd.

Waypoint Leasing Holdings Ltd.

November 25, 2018

“Get to the Choppa!” - Arnold Schwarzenegger

It has been a tough couple of years for companies in the helicopter business (see, e.g., Erickson Aircrane and CHG Group, not to mention PHI Inc. and Bristow Group, both of which restructuring professionals continue to watch and salivate over). So tough, in fact, that even Thanksgiving weekend wasn’t sacrosanct and even some big name sponsors couldn’t keep this thing out of court. Over the weekend, helicopter leasing company, Waypoint Leasing Holdings Ltd., “facing imminent liquidity constraints and potential defaults under their secured loan facilities,” filed for bankruptcy with a goal of imminently selecting a bidder for the sale of substantially all of its assets (or equity) through a 363 sale or via a chapter 11 plan of reorganization. The company leases helicopters to providers in the emergency medical, search and rescue, and utility sectors but the majority of its lessees are in the offshore oil and gas industry. In other words, the oil and gas downturn of a few years ago continues to rear its ugly head. Imagine what will happen if oil prices dip back down into the low $50s. Oh. Wait.

Tellingly, the company notes the following relating to the oil and gas downturn:

The cyclical downturn in the oil and gas industry beginning in 2014 led to a significant decline in offshore oil exploration, cost reduction measures for production operations, and a substantially decreased demand for offshore drilling services by upstream, exploration and production companies (“E&P Companies”). Although the price of crude oil had slowly begun to rebound, the effects of this protracted downturn are still evident. The severe reductions in capital spending and cost-cutting measures implemented by the offshore oil and gas industry during the downturn have resulted, in turn, in decreased demand for helicopter services from the Debtors’ primary customer base, the oil and gas helicopter operators (the Debtors’ lessees).

Due to this negative impact on the helicopter service industry, helicopter operators have employed their own cost-cutting measures, including reducing their fleet size, engaging in fewer lease extensions or renewals, demanding rental reductions, and, in some cases, filing for reorganization under the Bankruptcy Code.

Indeed, on that last point, the company’s largest customer, CHC Group Ltd., was a May ‘16 bankruptcy participant (and Weil Gotshal & Manges LLP was counsel there too…Waypoint 0, CHC Group 0, Weil 2). CHC ended up rejecting 15 of 44 aircraft leases (and renegotiating the rest), dinging company revenues to the tune of $45mm. The company has also incurred millions of dollars of “unexpected transition and maintenance costs on account of the rejected CHC aircraft.”

Compounding matters is the fact that “[t]he oil and gas industry downturn has created an oversupply of available helicopters in the market, which has significantly impacted the Debtors’ utilization and yields.” Fleet utilization is approximately 78%, as compared to 94-100% from 2013-15. Brutal.

As a result, the company has been engaged in restructuring negotiations with its relevant lenders since the beginning of the summer. These negotiations are complicated by the fact that the company has multiple credit facilities with varying collateral packages. Now, though, the company, as we noted above, hopes to sell itself — a challenge given the oversupply of helicopters — in an effort to maximize value. Oddly, the company filed without having a DIP in hand (nor, it seems, consent to use cash collateral) and, we surmise, a first day hearing has not yet been scheduled as a consequence.

• Jurisdiction: S.D. of New York (Judge Bernstein)

• Capital Structure: $1.1b debt

• Company Professionals:

  • Legal: Weil Gotshal & Manges LLP (Gary Holtzer, Robert Lemons, Kelly DiBlasi, Matthew Goren)

  • Financial Advisor: FTI Consulting Inc. (Robert Del Genio)

  • Investment Banker: Houlihan Lokey Inc.

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

• Other Parties in Interest:

  • Administrative Agent under ‘13 and ‘17 credit agreement: SunTrust Bank

    • Legal: Alston & Bird LLP (John Weiss, William Hao, David Wender)

  • Administrative Agent under ‘14 credit agreement and ‘15 Note Purchase Agreement: Wells Fargo Bank, National Association

    • Legal: Mayer Brown LLP (Frederick Hyman, Christine Walsh)

  • Agent under Euro Term Loan Facility Agreement: Airbus Helicopters Financial Services Limited

  • Administrative Agent under ‘14 credit agreement: BNP Paribas

  • Administrative Agent under ‘15 credit agreement: Bank of Utah

    • Legal: Norton Rose Fulbright US LLP (Howard Beltzer, James Copeland)

  • Administrative Agent under ‘16 credit agreement: Lombard North Central PLC

  • Administrative Agent under August ‘17 credit agreement: Sumitomo Mitsui Banking Corporation, Brussels Branch

  • Steering Committee of WAC Lenders

    • Legal: Milbank Tweed Hadley & McCloy LLP

    • Financial Advisor: Alvarez & Marsal LLC

  • Sponsors: MSD Capital, L.P., Quantum Strategic Partners Ltd., and Cartesian Capital Group LLC

Updated 11/26/18 at 4:03 CT

New Chapter 11 Bankruptcy Filing - LBI Media Inc.

LBI Media Inc.

November 21, 2018

Happy Thanksgiving y’all!! LBI Media Inc. and several affiliates FINALLY filed for bankruptcy today in the District of Delaware after years of questions about its financial health. The company is a privately held minority-owned Spanish-language broadcaster that owns or licenses 27 Spanish-language television and radio stations in the largest US markets; it services the largest media markets in the nation, including Los Angeles, New York City, Chicago, Miami, Houston and Dallas. It is also a victim of disruption.

The company notes that it has “faced the market pressures that have broadly affected U.S. television and radio broadcasters, including the 2008 recession and the diversion of advertising spend by companies to digital media.” Insert Facebook Inc. ($FB) here. That’s not all, though, of course: the company is also hampered by “a substantial debt load and corresponding interest expense obligations” which has stunted LBI’s financial performance, ability to invest and grow, and liquidity.

To address this situation, the company obtained an investment from its now-DIP lender, HPS Investment Partners, in April 2018 for a new first lien credit facility. This provided the company with much needed liquidity and, in turn, briefly extended the company’s runway out of bankruptcy court. The “make-whole” provision attached to the facility, however, became the subject of much controversy and an ad hoc group of second lien noteholders sued in New York state court for an injunction to hinder the transaction. Ultimately, the state court denied the noteholders.

But…but…the noteholders persisted. And this, apparently, left a bitter taste in the mouth’s of company management (and its counsel). Junior Noteholders, meet bus. 🚌🚌 The company notes:

Following the closing of the transaction, LBI sought to continue its growth efforts. However, such efforts were weakened by the Junior Noteholder Group, which continued to litigate against the Company, its founder and CEO, and HPS, the Company’s sole senior lender. The Junior Noteholder Group commenced multiple lawsuits, and threatened several more, distracting management from operations. These actions and threats not only hindered the Debtors’ efforts to improve their operations, but certain actions, including seeking to enjoin the first lien financing, risked pushing LBI into a precipitous freefall bankruptcy.

When coupled with the Debtors’ tightening liquidity (which was exacerbated by the expense of the Junior Noteholder Group litigation), the Junior Noteholder Group’s actions made it substantially more difficult for LBI to achieve the growth it had hoped for, and the Company determined that a comprehensive reorganization may be necessary.

Thereafter, settlement talks with the Junior Noteholders proved unsuccessful and, now, therefore, the company marches into bankruptcy court with a Restructuring Support Agreement (“RSA”) in hand with HPS whereby, subject to a “fiduciary out,” HPS will serve as (prearranged but hardly set in stone) Plan sponsor and swap its $233mm first lien senior secured notes for a majority equity interest in the company. The Plan — which at the time of this writing isn’t on the docket yet — reportedly provides for recoveries for other “supporting” constituencies. What’s that we hear? IT’S A (DEATH) TRAP!?!

(PETITION NOTE: for the uninitiated, a “death trap plan” is an inartful term for when the Debtor proposes and the senior lenders allows a recovery to trickle down the “priority waterfall” to junior lenders but only on account of said junior lenders’ support of, or vote for, the proposed Plan. In essence, its consideration for dispensing with “holdup value.” A “fiduciary out” gives the Debtor flexibility to, despite the RSA, agree to an alternative transaction that bests the HPS transaction without penalty or the need to pay a “break-up fee.”).

The plan provides the company with 75-day period to run a marketing process. While the company will market the company to potential strategic and financial investors, it is also making overtures to the Junior Noteholders to take out HPS’ claim(s) (without needing to satisfy the make-whole) and become the Plan sponsor such that it could walk away with 100% equity in the company.

All of which is to say: don’t let the terms “RSA” and “Plan” fool you. This is far from a consensual case being presented to the Bankruptcy Court Judge wrapped up in a shiny bow. The Junior Noteholders have been fighting the company and HPS for months: there is no reason to suspect that that will stop now merely because the company is a chapter 11 debtor.

• Jurisdiction: D. of Delaware (Judge Lane)

• Capital Structure: $233mm 10% ‘23 senior secured notes, $262mm 11.5/13.5 ‘20 PIK toggle second priority secured notes, $27.95mm 11% ‘22 PIK unsecured Intermediate senior Holdco notes (TMI Trust Company), $8.46mm 11% ‘17 unsecured Holdco notes (U.S. Bank NA)    

• Company Professionals:

  • Legal: Weil Gotshal & Manges LLP (Ray Schrock, Garrett Fail, David J. Cohen) & (local) Richards Layton & Finger PA (Daniel DeFranceschi)

  • Board of Directors: Jose Liberman, Lenard Liberman, Winter Horton, Rockard Delgadillo, Peter Connoy, Neal Goldman

  • Financial Advisor: Alvarez & Marsal North America LLC

  • Investment Banker: Guggenheim Securities LLC

  • Claims Agent: Epiq Corporate Restructuring LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Prepetition First Lien & DIP Lender: HPS Investment Partners LLC ($38mm)

    • Legal: Paul Weiss Rifkind Wharton & Garrison LLP (Paul Basta, Jeffrey Safferstein, Sarah Harnett) & (local) Young Conaway Stargatt & Taylor LLP (Pauline Morgan, M. Blake Cleary)

  • First Lien Trustee: Wilmington Savings Fund Society FSB

    • Legal: Morrison & Foerster (Jonathan Levine) & (local) Ashby & Geddes PA (William Bowden)

  • Collateral Trustee for First Lien Notes: Credit Suisse AG

    • Legal: Locke Lorde LLP (Juliane Dziobak)

  • Ad Hoc Group of (Junior) Second Lien Noteholders

    • Legal: Willkie Farr & Gallagher LLP (Rachel Strickland)

  • Ad Hoc Group of Holdco Noteholders

    • Legal: Landis Rath & Cobb LLP (Matthew McGuire)

Updated 11/21/18 at 8:27 CT

💒New Chapter 11 Bankruptcy Filing - David's Bridal💒

David’s Bridal

November 19, 2018

We’ve previously written about PA-based David’s Bridal Inc. here and here and here: this bankruptcy has been a long time coming. But only recently has it come to light that there might be a consensual deal attached to any potential bankruptcy filing and, per the reports, that does appear to be the case. The company (and certain affiliates) filed for bankruptcy in the District of Delaware with a prepackaged plan of reorganization. If this flows through as planned (with a hoped for “Effective Date” of January 14), this will be a positive result that leaves trade vendors and employees paid in full and brides-to-be with their gowns without disruption. Thank G-d. In a day with rage all over the place, the last thing we need is more stress out there. And with 311 stores and 9,260 employees and given the general retail environment, consensual deals cannot be taken for granted.

While there is an underlying current of retail malaise here, this is primarily a balance sheet story. Why? Well…c’mon now…you know the answer: PRIVATE EQUITY!! In 2012, affiliates of Clayton, Dubilier & Rice, LLC (“CD&R”) purchased the company from another private equity firm, Leonard Green & Partners, L.P., which had previously purchased the company from Federated Department Stores Inc. Leonard Green 1. CD&R 0. Per the Company:

The Debtors’ current capital structure was put into place on or about October 11, 2012 as part of CD&R’s acquisition of David’s Bridal and certain of its affiliates. As of the Petition Date, the Company’s debt obligations include (i) approximately $25.7 million in drawn commitments under the Prepetition ABL Agreement; (ii) an estimated $481.2 million in outstanding principal obligations under the Prepetition Term Loan Agreement; and (iii) an estimated $270.0 million in outstanding principal obligations under the Unsecured Notes.

And here they are: in bankruptcy court due to too much debt and upcoming maturities. Bravo CD&R. The company also notes:

Despite the significant headwinds facing the brick-and-mortar retail industry, over the past several years, the Debtors have experienced steady financial performance and only modest loss of market share. The vast majority of David’s Bridal stores generate positive EBITDA, and the Debtors have historically generated stable operating cash flows. The most significant factor leading to the commencement of these chapter 11 cases is the amount of debt on the Debtors’ balance sheet, most of which will mature with the next 12 months.

David’s Bridal reported adjusted EBITDA of approximately $83.0 million for the fiscal year ended December 31, 2017 and of approximately $77.7 million for the first nine months of 2018. In fact, the vast majority of the stores in their fleet reportedly have profitable 4-wall EBITDA. So…uh…maybe we were…gulp…wrong…and maybe millennials actually do want wedding dresses…? 😳😳

Significantly, this IS a retail bankruptcy but this is NOT an “Amazon Effect” story. In fact, David’s Bridal MAKES money off of Amazon Inc. ($AMZN) and others, through an “affiliate relationship” pursuant to which David’s Bridal earns revenue by referring traffic to Amazon (and other sites like Men’s Wearhouse, Macy’s, Shutterfly, Marriott and Carnival).

The upshot of all of this is that the company claims it will dramatically cut the $777mm of funded debt. The company notes:

The restructuring contemplates a substantial deleveraging that will reduce the Debtors’ funded indebtedness from approximately $777 million to approximately $343 million (based upon currently anticipated borrowings on under an exit ABL facility at the Effective Date, which are subject to change).

Here’s how:

• The prepetition ABL lenders will roll their prepetition facility into a $125mm ABL DIP credit facility;

• The prepetition term lenders will provide a $60mm term loan DIP credit facility and swap their $481mm term loan for (i) the “vast majority” (75.5%) of the reorganized company’s common stock, (ii) a new “takeback” exit term loan of around $240-260mm and (iii) rights to participate in a $40-60mm priority exit term loan facility that takes out the DIP term loan and obtain (15%) additional stock;

• The prepetition holders of unsecured notes will get the remaining (8.75%) common stock and warrants to capture potential upside; and

• CD&R will get themselves a big-a$$ tax writeoff (if this hasn’t been written down already), presumably some angry limited partners, and some legal releases for playing ball in the consensual deal (including by waiving approximately $1mm of accrued management fees and expense reimbursements).

Now, we’re having a hard time figuring out how a $125mm exit ABL facility, $40-60mm in exit priority term loans, and $240-260mm in takeback paper equates to “$343 million” but, well, we guess lawyers draft these declarations, plans and disclosure statements and they ought to be given a reasonable mathematical margin of error. Plus, to be fair, they’re only talking about “funded” indebtedness and so the ABL likely won’t be tapped — as it wasn’t prepetition — to the full extent of availability. Still, they are understating the extent of the post-emergence balance sheet to some degree.

Finally, CD&R is a holder of unsecured notes. Which, per the third bulletpoint above, means that, despite effectively crushing this company with a burdensome amount of debt and driving this sucker into bankruptcy, they will continue to own a piece of the reorganized David’s Bridal going forward. Your wedding, powered by private equity.

As we say over and over again: G-d bankruptcy is beautiful.

• Jurisdiction: D. of Delaware (Judge Silverstein)

• Capital Structure: $125mm ABL ($25.7mm funded - Bank of America NA), $481mm TL (Bank of America NA), $270mm ‘20 7.75% senior unsecured notes (Wilmington Trust NA)

• Company Professionals:

  • Legal: Debevoise & Plimpton LLP (M. Natasha Labovitz, Nick Kaluk III, Daniel Stroik, Craig Bruens) & (local) Young Conaway Stargatt & Taylor LLP (Robert Brady, Edmon Morton, Jaime Luton Chapman, Tara Pakrouh)

  • Financial Advisor: AlixPartners LLP

  • Investment Banker: Evercore Group LLC (Stephen Goldstein)

    • Legal: DLA Piper LLP (Richard Chesley, Jamila Willis, Maris Kandestin)

  • Independent Auditors: KPMG LLP

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

• Other Parties in Interest:

  • Prepetition ABL & DIP ABL Agent: Bank of America NA

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

  • DIP TL Agent: Cantor Fitzgerald Securities

  • Ad Hoc Term Lender Group (AlbaCore Capital LLP, Courage Credit Opportunities Onshore Fund III LP, Courage Credit Opportunities Fund IV LP, Eaton Vance Management, Deutsche Bank AG Cayman Islands Branch, HG Vora Special Opportunities Master Fund Ltd., Rimrock Capital Management LLC, Neuberger Berman Alternative Funds, Sound Point Capital Management, Whitebox Advisors LLC,

    • Legal: Jones Day (Scott Greenberg, Michael J. Cohen, Nicholas Morin) & (local) Pachulski Stang Ziehl & Jones LLP (Laura Davis Jones, Timothy Cairns, Joseph Mulvihill)

    • Financial Advisor: Greenhill & Co., Inc.

  • Crossover Lender: Oaktree Capital Management LP (within its Strategic Credit, High Yield and Loan Strategies)

    • Legal: Paul Weiss Rifkind Wharton & Garrison LLP (Alan Kornberg, John Weber) & (local) Cozen O’Connor PC

    • Financial Advisor: Moelis & Co.

  • Supporting Unsecured Noteholder: Solace Capital Partners LP

    • Legal: Fried Frank Harris Shriver & Jacobson LLP (Brad Scheler, Peter Siroka) & (local) Morris Nichols Arsht & Tunnell LLP (Derek Abbott)

    • Financial Advisor: FTI Consulting Inc.

  • Financial Sponsor & Supporting Unsecured Noteholder: Clayton Dubilier & Rice Fund VIII L.P.

  • Supporting Sponsor: Leonard Green & Partners L.P.

    • Legal: Cole Schotz P.C. (Norman Pernick, Kate Stickles)

New Chapter 11 Bankruptcy Filing - Cafe Holdings Corp.

Cafe Holdings Corp.

November 15, 2018

Source: Fatz.com

Anyone interested in a game of hot potato?

Cafe Holdings Corp. is a privately-owned chain of fast casual dining restaurants called Fatz Cafe. Fatz Cafe has 38 locations across 5 states and, as you can surely note from the image above, has an abundance of potato options on its menu. And it, in this scenario, is the hot potato.

The company filed for bankruptcy in the District of South Carolina earlier this week — exhibiting yet another sign, as PETITION has discussed at length previously, that casual dining is a really tough space right now. The company, itself, acknowledges:

Over the past several years, casual dining chains have experienced strong headwinds due to a combination of shifting consumer tastes and preferences, growth in labor and commodity costs, increased competition, and unfavorable lease terms. Indeed, a number of national and regional restaurant chains – including Real Mex Restaurants, certain Applebee’s franchisees, Ignite Restaurant Group, Macaroni Grill, Garden Fresh, Bertucci’s, and Logan’s – have buckled under these secular pressures and were forced to restructure their balance sheets and operations through a chapter 11 bankruptcy.

The company blames its unsustainable $30mm capital structure, “industry-wide challenges, trade market changes and challenges, underperforming strategic initiatives, and unsatisfactory business performance.” All of this is despite efforts to run the typical distressed restaurant playbook: install new management, refinance debt, restructure leases, shutter underperforming locations, deploy overhead rationalization, innovate around new product and promotional strategies, update the menu, invest in tech, renegotiate with vendors, etc. PETITION Note: nothing in the standard playbook can do anything about the fact that there are just far too many dining options available to consumers today. Period. The company’s consolidated adjusted network-wide EBITDA for the 12 months ended September 2018 and the fiscal year ended 2017 were approximately ($635,087) and $1.40 million, respectively.

And so the company turned to the next page in the playbook: a marketed sale. Yet, despite outreach to more than 200 parties, including both potential financial and strategic partners, the company didn’t generate any bids. Then comes the hot potato:

Unfortunately, after months of effort and outreach to more than 200 parties, including both potential financial and strategic purchasers, the Company was not able to obtain any bids for the Fatz assets. Moreover, the Company’s then first lien lender, Madison Capital Funding LLC (“Madison”), informed the Company that it did not wish to offer financing or serve as a stalking horse bidder in a chapter 11 sale process, and ultimately sold its debt position to Shrayne Capital, LLC (“Shrayne”). After further diligence, ultimately Shrayne decided it also did not wish to serve as a stalking horse bidder in a chapter 11 sale process and, in turn, sold its position to Atalaya Capital Management, LP and certain of its affiliates (collectively, “Atalaya”), who agreed to provide debtor in possession financing and to serve as a stalking horse bidder in a section 363 sale of substantially all of the Company’s assets.

You have to think that Atalaya Capital Management got that first lien paper at a meaningful discount to face value. Indeed, Shrayne only owned the paper for 5 weeks and then ran for the hills. Atalaya will provide the company with a $3.2mm DIP and, though the company has not filed its bidding procedures or stalking horse asset purchase agreement, presumably credit bid its debt to own the company out of Chapter 11. Now, for the uninitiated, the bankruptcy code permits a creditor to “credit bid” its debt, which is basically, as payment, exchanging a claim for the assets. A creditor can do that to the full extent of the claim, regardless of the the price said creditor paid for that claim. In other words, Atalaya may have paid Shrayne $0.01 for the first lien paper but because the face value of the first lien paper is $9.7mm, Atalaya can, but doesn’t have to, “bid” up to $9.7mm of that claim (like a coupon, in effect) for the company. Alternatively, it can provide the $3.2mm DIP credit facility and just credit bid that amount. There are a number of ways that this can be structured. Suffice it to say that Atalaya will need to infuse the business with capital if it wants it to have a fighting chance but it is under no obligation to cover and pay down the full extent of the debt. Indeed, the junior lenders and the ~63.5% equityholder, Milestone Partners III LP I and II, can effectively kiss their investments goodbye.

Opportunistic players who love feasting on the restaurant space will continue to have an abundance of opportunities like this one.

• Jurisdiction: D. of South Carolina

• Capital Structure: $9.7mm first lien (Atalaya Capital Management), $2mm second lien, $17.5mm mezzanine unsecured loan, $1.9mm unsecured subordinated note

• Company Professionals:

  • Legal: Haynes and Boone LLP (Ian Peck, J. Fraser Murphy, David Staab) and (local) McNair Law Firm PA (Michael Weaver, Robin Stanton, Weyman Carter)

  • Financial Advisor: Loughlin Management Partners & Co.

  • Investment Banker: Duff & Phelps LLC (Vin Batra)

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

• Other Parties in Interest:

Updated 11/17/18

New Chapter 11 Bankruptcy Filing - Advanced Sports Enterprises Inc.

Advanced Sports Enterprises Inc.

November 16, 2018

Another day, another retailer in bankruptcy court.

Advanced Sports Enterprises Inc. and several affiliated companies filed for bankruptcy on Friday in the District of North Carolina. The debtors are designers, manufacturers and wholesale sellers of bicycles and related equipment. The debtors utilize both online (www.performancebike.com) and brick-and-mortar channels (104 retail stores across 20 states) to sell their bikes.

The debtors blame their capital structure and the seasonal nature of their business for their fall into bankruptcy. Due to lack of liquidity, it sounds as if the debtors engaged in an operational restructuring that included stretching payables to suppliers and creditors. As you might imagine, once payments are delayed, suppliers and creditors get kind of pissed off and start imposing more aggressive payment terms. In other words, they’re not too keen on being creditors. When that happens, a company pushing the envelope is caught in a vicious cycle. Indeed, here, the debtors say that they are on pace to run out of money in January 2019.

So, the debtors intend to market their business to an array of potential purchasers: private equity funds, family offices, strategic parties, and liquidators. While that process plays out, they will close 40 stores. They seek approval of a $45mm DIP credit facility from their prepetition senior secured lender, Wells Fargo Bank NA, to fund the cases.

• Jurisdiction: D. of North Carolina

• Capital Structure: $37.9mm first lien credit facility (Wells Fargo NA). $7.375mm term loan (Advanced Holdings Co., Ltd.). Otherwise, see below.

• Company Professionals:

  • Legal: Flaster/Greenberg P.C. (William Burnett, Richard Dressel, Harry Giacometti, Douglas Stanger, Damien Nicholas Tancredi) & (local) Northern Blue LLP (John Northen, Vicki Parrott, John Paul H. Cournoyer)

  • Financial Advisor: Clear Thinking Group LLC (Joseph Marchese)

  • Investment Banker: D.A. Davidson & Co. (Michael Smith)

  • Liquidator: Gordon Brothers Retail Partners LLC

  • Real Estate Consultant: A&G Realty Partners LLC

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

• Other Parties in Interest:

  • Senior Secured Lender: Wells Fargo Bank NA

    • Legal: Riemer & Braunstein LLP (Donald Rothman, Steven Fox) & (local) Williams Mullen (Holmes Harden)

  • Unsecured Creditors Committee: none appointed due to lack of creditors.

Source: First Day Declaration.

New Chapter 11 Bankruptcy Filing - All American Oil & Gas Inc.

All American Oil & Gas Inc.

November 12, 2018

San Antonio-based independent oil company All American Oil & Gas Inc. (“AAOG”) and its two affiliated companies, Western Power & Steam Inc. (“WPS”) and Kern River Holding Inc. (“KRH”) filed for bankruptcy earlier this week in the Western District of Texas. WPS is a power company that sells power to the likes of Pacific Gas & Electric — a company that, as we’ve previously noted, is having problems of its own (which only appear to be getting worse) — and provides electricity and steam to KRH to aid KRH’s efforts to extract oil.

The enterprise is reportedly cash flow positive, with approximately $25mm in EBITDA in 217 and higher EBITDA projected for 2018. So what gives?

The debtors accuse their successor lender, Kern Cal Oil 7 LLC (“KCO7”), which acquired the company’s secured debt from Alliance-Bernstein, of “not act[ing] as a typical lender,” instead “implement[ing] a predatory ‘loan to own’ strategy.” The debtors note:

Unlike many E&P cases, this bankruptcy filing is not the result of the Company’s poor operational performance, illiquidity, debt maturities or lack of underlying value. Rather, it was precipitated by KCO7’s efforts to exploit its rights under the Credit Agreements to obtain the Debtors’ assets ‘on the cheap,’ and thereby to destroy tens of millions in equity value.

In a dramatic twist, Kern Cal Oil 7 LLC is, according to the debtors, run by two former investment bankers “who were fired allegedly for cause from AAOG’s and KRH’s former investment banker and financial advisor Cappello Capital Corporation” and have an SEC claim filed against them for “breach of fiduciary duty, misappropriation of confidential information, and fraud, among other allegations.” Salacious.

In October, Kern Oil 7 LLC, under the auspices of attending a constructive meeting relating to potential M&A involving Kern Oil and the debtors, issued a notice of default on the basis of insufficient hedging, a move the debtors claim “was a transparent attempt to intimidate AAOG into handing over the Company to KCO7 for little or no value to its shareholders.” Suffice it to say that there is other dramatic stuff here including the debtors’ inability to put hedges in place, purportedly due to the notice of default, incomplete documentation relating to the change from Alliance-Bernstein to KCO7, and more. KCO7 notified the debtors that default interest now applied and on November 8, the debtors had a scheduled interest payment to make which, given these circumstances, the debtors opted not to make. In turn, the debtors filed for bankruptcy to “protect its going concern enterprise value and to restructure its secured debt.”

To fund their cases, the debtors seek authority to use their pre-petition lenders’ (read: KCO7) cash collateral. That ought to be a fun first day hearing.

• Jurisdiction: W.D. of Texas (Judge King)

• Capital Structure: $80.1mm ‘19 first lien debt (plus $789k in accrued/unpaid interest)(Kern Cal Oil 7 LLC), $50mm ‘20 second lien debt (plus $10.6mm PIK and $440k accrued/unpaid interest)(Kern Cal Oil 7 LLC)

• Company Professionals:

  • Legal: Hogan Lovells US LLP (Richard Wynne, Bennett Spiegel, Erin Brady, Christopher Bryant, John Beck, Sean Feener) & (local) Dykema Gossett PLLC (Deborah Williamson, Patrick Huffstickler, Danielle Rushing)

  • Investment Banker: Houlihan Lokey

  • Claims Agent: BMC Group Inc. (*click on company name above for free docket access)

• Other Parties in Interest:

  • Kern Oil 7 LLC

    • Legal: O’Melveny & Myers LLP (Stephen Warren)

New Chapter 11 Bankruptcy Filing - Petroquest Energy Inc.

Petroquest Energy Inc.

November 6, 2018

Petroquest Energy Inc. ($PQUE), an independent energy company engaged in the exploration, development, acquisition and production of oil and gas reserves in Texas and Louisiana, managed to stave off bankruptcy back during the oil and gas downturn. How? Well, this is how:

Source: First Day Declaration

Bankruptcy, however, caught up to it anyway.

The company filed for bankruptcy in the Southern District of Texas with a restructuring support agreement in tow. The terms of the RSA reflect that (i) the prepetition term lenders will be paid in full with an exit facility, (ii) the holders of second lien notes will have an option to participate in the exit facility (which will be fully backstopped by certain consenting creditors), and (iii) the prepetition second lien noteholders will receive 100% equity in the reorganized PetroQuest, a backstop fee in connection with provision of the exit facility, and $80mm of new second lien PIK notes. All of which is to say that the company will meaningfully de-lever its balance sheet. Meanwhile, general unsecured creditors will get $400k and all equityholders will, shockingly, get wiped.

More to come…

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

• Capital Structure: $50mm Term Loan, $9.4mm second lien debt, $275mm second lien PIK debt (Wilmington Trust NA)     

• Company Professionals:

  • Legal: Porter Hedges LLP (John Higgins, Joshua Wolfshohl, M. Shane Johnson)

  • Financial Advisor: FTI Consulting Inc.

  • Investment Banker: Seaport Global Securities

  • Claims Agent: Epiq Corporate Restructuring LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Second Lien Agent: Wilmington Trust NA

    • Legal: Reed Smith LLP (Kurt Gwynne)

New Chapter 11 Bankruptcy Filing - Aegean Marine Petroleum Network Inc.

Aegean Marine Petroleum Network Inc.

November 6, 2018

On Sunday, November 4, 2018, we wrote the following in our “Fast Forward” segment:

Aegean Marine Petroleum Network Inc. ($ANW) is now subject to a fraud probe by international auditors. This thing will be in a bankruptcy court near you before too long.

We didn’t expect that prediction to come to fruition so quickly!

Admittedly, Aegean, one of the world’s largest independent marine fuel logistics companies with 57 owned and chartered vessels, has been a slow moving train towards bankruptcy for some time. The recent revelation of fraud — yes, fraud — is just the cherry on top. (PETITION Note: in frothy times come desperate shenanigans. This won’t be the last bankruptcy filed in the near-term that, in part, will have an element of fraud in the story.) And, alas, earlier, Aegean Marine Petroleum Network Inc. and 74 affiliated debtors filed for bankruptcy in the Southern District of New York. The more immediate trigger? The maturity of its 4% convertible unsecured notes.

Aegean blames an over-saturated market, limitations imposed by its lenders under the credit facilities, and…wait for it…the fraud…as reasons for its bankruptcy filing. Wait. Why are we describing the debtors’ ails in words when they’ve provided us with some crafty graphics to illustrate, in part, the “perfect storm of circumstances” that have plagued them:

Source: First Day Declaration

Aegean intends to use the bankruptcy process to address its capital structure (namely the maturity), stabilize operations and sell to Mercuria Energy Group Limited, a private company that, back in August, became the sole lender under both the debtors’ US and Global credit facilities. Mercuria also provided a DIP proposal that consists of a $160mm US credit facility, a $300mm global credit facility, and a $72mm term loan that the debtors deemed better than a proposed facility from an ad hoc group of unsecured convertible noteholders. The question will be to what degree a more robust and competitive sale process emerges now that this thing is finally in bankruptcy court.

• Jurisdiction: S.D.N.Y. (Judge Wiles)

• Capital Structure: $131.7mm US credit facility (ABN AMRO Bank NV), $249.6mm global credit facility (ABN AMRO Bank NV), $206.6mm aggregated across ten secured term loans, $172.5mm 4.25% convertible unsecured notes due 2021 (U.S. Bank NA), $94.55mm 4.00% convertible unsecured notes due 2018 (Deutsche Bank Trust Company Americas)  

• Company Professionals:

  • Legal: Kirkland & Ellis LLP (James Sprayragen, Jonathan Henes, Marc Kieselstein, Ross Kwasteniet, Cristine Pirro Schwarzman, Adam Paul, Benjamin Winger, Christopher Hayes, Bryan Uelk)

  • Independent Directors: Donald Moore, Raymond Bartoszek, Tyler Baron)

  • Audit Committee of the Board of Directors

    • Legal: Arnold & Porter Kaye Scholer LLP (Tyler Nurnberg)

  • Financial Advisor: EY Turnaround Management Services LLC (Andrew Hede)

  • Investment Banker: Moelis & Company LLC (Zul Jamal)

  • Claims Agent: Epiq Corporate Restructuring LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Prepetition Agent: ABN AMRO Capital USA LLC

    • Legal: Willkie Farr & Gallagher LLP (Ana Alfonso)

  • Prepetition Agent: Aegean Baltic Bank SA

    • Legal: White & Case LLP (Scott Greissman, Elizabeth Feld, Mark Franke)

  • Indenture Trustee for the 4% ‘18 Convertible Senior Notes

    • Legal: Ropes & Gray LLP (Mark Somerstein, Patricia Chen)

  • Largest Equity Holder/Stalking Horse Buyer: Mercuria Energy Group Limited

    • Legal: Norton Rose Fulbright US LLP (Marc Ashley, Robert Kirby)

  • Official Committee of Unsecured Creditors (Deutsche Bank Trust Company Americas, U.S. Bank National Association, American Express Travel Related Services Company Inc.)

    • Legal: Akin Gump Strauss Hauer & Feld LLP (Ira Dizengoff, Philip Dublin, Kevin Zuzolo)

    • Financial Advisor: AlixPartners LLP

Source: First Day Declaration

Updated 11/17/18

New Chapter 11 Bankruptcy Filing - Taco Bueno Restaurants, Inc.

Taco Bueno Restaurants, Inc.

November 6, 2018

Damn you Chipotle Mexican Grill Inc. ($CMG).

It’s been a rough several months for Mexican restaurants. Over the summer, Tennenbaum Capital and Z Capital-owned RM Holdco LLC (Real Mex) filed for bankruptcy in the District of Delaware and pursued a sale of its business. Now, Texas-based, TPG-owned Taco Bueno Restaurants, Inc., a Tex-Mex quick service restaurant (“QSR”) with 140 owned and 29 franchised locations, has filed a prepackaged bankruptcy that will convey ownership to Taco Supremo LLC, an affiliate of Sun Holdings Inc., which bought-out the debtors’ initial lenders in October. Taco Supremo subsequently signed a restructuring support agreement memorializing its intent to effectuate a debt-for-equity swap and provide the debtors with a DIP credit facility.

So, why is all of this necessary? The company noted:

…while Taco Bueno possesses a traditional brand with a loyal customer base and the potential for future growth under the leadership of its new management team, Taco Bueno’s existing capital structure is unsustainable and its financial performance fell significantly due to, among other things, historical mismatches between price and product value, a lack of product innovation, and deferred maintenance capital investment. In addition, competition in the Mexican food industry – including the rise in popularity of tacos at both QSRs and other types of restaurants – increased substantially in recent years, causing certain Taco Bueno stores to experience stagnant or reduced customer traffic and sales. Moreover, while Taco Bueno recently launched a process to close underperforming stores to better focus on core markets and high-value stores, Taco Bueno continues to suffer from a number of underperforming restaurants. Accordingly, Taco Bueno needs to continue to restructure its lease footprint and renegotiate existing leases to optimize profitability.

Even the “Buenoheads” — yes, that’s actually a thing, apparently — couldn’t save this thing from bankruptcy. The debtors’ EBITDA fell to approximately $17.2 million in 2017 with a projected EBITDA of approximately $5.9 million for 2018, compared to approximately $33 million in 2016 EBITDA and approximately $31 million in 2015 EBITDA. Of course, the $130mm of debt doesn’t help either.

Consequently, to salvage liquidity and allow its bankers to conduct a process, the debtors closed 20 locations in the last year (and are in the midst of negotiations with Spirit Realty Capital Inc. ($SRC), U.S Realty Capital, and Kamin Realty Co., the landlords of over 50% of the debtors’ leases). The management team has turned over and the company attempted a prepetition sale process. That process culminated in the above-noted RSA-based transaction that will attempt to flush the company in and out of bankruptcy court by the middle of December.

• Jurisdiction: N.D. of Texas

• Capital Structure: $130.9mm debt     

• Company Professionals:

  • Legal: Vinson & Elkins (David Meyer, Jessica Peet, Paul Heath, Garrick Smith, Matthew Pyeatt, Andrew Geppert)

  • CRO/Financial Advisor: Berkeley Research Group LLC (Haywood Miller)

  • Investment Banker: Houlihan Lokey Capital Inc. (Adam Dunayer)

  • Real Estate Advisor: Jones Lang LaSalle Americas Inc.

  • Claims Agent: Prime Clerk LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Initial Lender: Bank of America NA

  • Sponsor: TPG Growth III Management LLC

😷New Chapter 11 Bankruptcy Filing - Promise Healthcare Group LLC😷

Promise Healthcare Group LLC

November 5, 2018

Most professionals predicted at the start of 2018 that healthcare would be an active industry for restructuring activity. Instead, there’s only been a few cases here and there — nothing to really stand out from the crowd in terms of volume. And, so just when we’re on the verge of declaring that prediction utterly and emphatically wrong, here is Promise Healthcare Group LLC and its affiliated debtors — another short-term and long-term acute care and nursing facility operator in bankruptcy court (with DLA Piper and FTI Consulting in tow, a seemingly regular occurrence these days in sizable healthcare matters).

Why is another large acute care operator in bankruptcy? The debtors blame the usual deplorables, i.e., reimbursement rate declines, capital-intensive and ultimately-abandoned new business projects, underperforming facilities, and an “unsustainable balance sheet.” Consequently, it undertook performance improvement measures, including the closure of two facilities and the sh*tcanning of 147 full-time equivalent employees. This, collectively, freed up a total of $13.5mm but vendors had begun squeezing the company in such a way that this amount, alone, wasn’t enough to cash flow to sustain the debtors.

The debtors intend to (i) sell non-core assets and real estate to payoff certain secured creditors (including one in Silver Lake, Los Angeles, to the L.A. Downtown Medical Center for $84.15mm) and (ii) otherwise market and sell substantially all of the rest of their assets or, if an equity sponsor emerges, restructure. They intend to do this within six months (anyone want to take the under?). The company has a $85mm DIP commitment ($20mm new money) to fund the process.

• Jurisdiction: D. of Delaware

• Capital Structure: $61.6mm Revolver, $15mm TL debt, $200mm intercompany debt (two loans)

• Company Professionals:

  • Legal: Waller Lansden Dortch & Davis LLP (John Tishler, Katie Stenberg, Blake Roth, Tyler Layne) & (local) DLA Piper LLP (Stuart Brown, Kaitlin MacKenzie Edelman, Erik Stier, Matthew Sarna)

  • CRO/Financial Advisor: FTI Consulting Inc. (Andrew Hinkelman, Jennifer Byrne, Chris Goff)

  • Investment Banker: Houlihan Lokey Capital Inc. (Andrew Turnbull, Matthew Ryan, Scott Kremeier, Moyo Mamora, Brian Marks, Marc Epstein, Conor Dorgan) and MTS Health Partners LP (Jay Shiland)

  • Claims Agent: Prime Clerk LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Prepetition Administrative Agent: Wells Fargo Bank NA

    • Legal: McGuireWoods LLP (Brian Swett, Alexandra Shipley) & (local) Richards Layton & Finger PA (John Knight, Amanda Steele, David Queroli)

  • Healthcare Services Group Inc.

    • Legal: Stevens & Lee P.C. (Joseph Huston Jr., Evan Coren, Robert Lapowsky)

  • Stalking Horse Purchaser: Select Medical Corporation

    • Legal: Dechert LLP (Brian Greer, Stephen Leitzell, Jonathan Stott) & (local) Young Conaway Stargatt & Taylor LLP (Robert Brady, Sean Greecher)

  • Official Committee of Unsecured Creditors (HEB Ababa, Ronaldoe Guiterrez and Yolanda Penney, Cardinal Health, Wound Care Management LLC d/b/a MEDCENTRIS, Freedom Medical Inc., Morrison Management Specialists Inc., Efficient Management Resources Systems Inc., Surgical Program Development)

    • Legal: Sills Cummis & Gross P.C. (Andrew Sherman, Boris Mankovetskiy, Rachel Brennan) & (local) Pachulski Stang Ziehl & Jones LLP (Jeffrey Pomerantz, Alan Kornfeld, Bradford Sandler, Maxim Litvak, Colin Robinson)

    • Financial Advisor: Province Inc. (Edward Kim, Paul Huygens, Carol Cabello, Jorge Gonzalez, Carlos Lovera, Paul Navid)

Updated 3/9/18

New Chapter 11 Bankruptcy Filing - PGHC Holdings Inc.

PGHC Holdings Inc.

November 5, 2018

On Sunday night, the New England Patriots took down the Green Bay Packers but the official pizza of the team took an “L.” Indeed, New England local news reported that dozens of area Papa Gino’s locations had abruptly shut down. Now we know why. And, it turns out, the dozens were really 95 stores all in. Which, we’d be remiss not to note, affects 1,100 employees who are now out of jobs.

On Monday morning, PGHC Holdings Inc., the parent company of 141 company-owned and 37 franchisee-and-licensee-owned New England restaurant chains Papa Gino’s Pizzeria and D’Angelo Grilled Sandwiches, filed for bankruptcy to effectuate a sale to WC Purchaser LLC, an affiliate of Wynnchurch Capital. Wynnchurch will provide a DIP credit facility to fund the case.

We, here, at PETITION have highlighted disruption in the casual dining space ad nauseum. The debtors, in their filings, confirmed a lot of what we’ve been saying. They noted:

Consumer preferences have shifted from in-restaurant dining to delivery and carryout ordering, which require fewer overall restaurants and smaller restaurant size to service the same geographic area. As a result of these shifting consumer preferences, the Debtors’ existing footprint is too large — in terms of both number and size of restaurants. In addition, minimum wage increases across many of the Debtors’ markets combined with higher employee benefit costs associated with health plans have also pressured the Debtors’ cash flows. The Debtors also have faced increased competition and associated price pressure from national chains that have increased their footprint in the Debtors’ core New England markets. In addition to these and other operational factors, the Debtors have a substantial debt load that, as noted above, they have been unable to service and are in default under.

Consequently, the debtors have let leases expire, engaged in (mostly unsuccessful) negotiations with landlords on lease forgiveness, changed internal IT systems, emphasized digital media marketing and formulated a smaller more efficient restaurant concept. Nevertheless, these efforts didn’t generate enough revenue and profitability to enable the debtors to handle their debt burden.

Wynnchurch will provide the company with a $13.8mm DIP facility, permit the use of cash collateral, and credit bid the debt it took over to the tune of $20mm. In other words, this is effectively a “loan-to-own” play. Bravo!

• Jurisdiction: D. of Delaware

• Capital Structure: $6.9mm Revolver A, $1.5mm Revolver B, $18.4mm Term Loan A (WC Financeco A LLC, as assignee), $34.2mm second lien debt (WC Financeco B LLC, as assignee), $27.9mm unsecured mezz debt (Hartford Life Insurance Company), $11.9mm unsecured mezz debt (Brookside Mezzanine Fund)

• Company Professionals:

  • Legal: Morris Nichols Arsht & Tunnell LLP (Derek Abbott, Matthew Harvey, Eric Moats)

  • Financial Advisor: CR3 Partners LLC

  • Investment Banker: North Point Advisors LLC

  • Real Estate Advisor: Hilco Real Estate LLC

  • Claims Agent: Epiq Corporate Restructuring LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Mezz Debt Lenders

    • Legal: Choate Hall & Stewart LLP (Douglas Gooding)

New Chapter 11 Bankruptcy Filing - Republic Metals Refining Corporation

Republic Metals Refining Corporation

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)

New Chapter 11 Bankruptcy Filing - FR Dixie Holdings Corp.

FR Dixie Holdings Corp.

November 2, 2018

Oilfield services company, Dixie Electric LLC, and its parent, FR Dixie Holdings Corp., have filed for Chapter 11 bankruptcy in the District of Delaware with a prepackaged plan of reorganization that eliminates $300mm of funded debt via a debt for equity swap. The privately-held (First Reserve) Houston-based provider of electrical infrastructure materials and services to the energy industry (primarily in the Permian and Bakken basins) has a commitment in hand for $17.5mm of DIP financing to fund the business in BK and $30mm in exit term loans to fund the business upon its emergence from BK.

For the nine months ended September 30, 2018, the unaudited and consolidated financial statements of the Company reflected revenue of $95.0 million and a net loss of $24.5 million. Given approximately $300mm in debt, these numbers presented the company with some serious challenges. The company also blames its bankruptcy filing on “decreased drilling and well completion activity, tightness in the skilled labor market and unprofitable lumpsum contracts.”

The company’s bankruptcy papers include a commentary about the state of the post-downturn oil and gas market reflecting, not-so-surprisingly, (i) some discipline by oil and gas drillers and (ii) macro concerns about the labor market. The company notes:

Operators have become increasingly focused on service costs and have pushed for rate cuts and reduced overtime and fixed-priced work. The Company was also increasingly bidding against other firms for work, further putting pressure on margins. As the oil and gas market has recovered, operators have remained focused on costs and, while the Company has been pushing for rate increases, there is still less overtime work and more fixed-price work than existed prior to the downturn. In addition, the Company is experiencing higher labor rates and has not been able to fully offset those labor rate increases with the additional pricing increases.

Accordingly, the company has shut down business lines and stream-lined operations. The hope is that with a near-full deleveraging, it will be better positioned for the future. Given the support of its secured lenders and other parties in interest, the company appears headed in the right direction. The company seeks confirmation of its plan on December 13.

• Jurisdiction: D. of Delaware

• Capital Structure: $19.6mm revolver, $267.4mm TL (Wilmington Trust NA), $8mm unsecured loans    

• Company Professionals:

  • Legal: Simpson Thacher & Bartlett LLP (Elisha Graff, Kathrine McLendon, Edward Linden, David Baruch) & (local) Young Conaway Stargatt & Taylor LLP (Edmon Morton, Sean Beach, Elizabeth Justison, Tara Pakrouh)

  • Financial Advisor: BDO USA LLP

  • Investment Banker: PJT Partners LP (Peter Laurinaitis, Joseph Fallon)

  • Claims Agent: Prime Clerk LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Ad Hoc Group of Prepetition Secured Lenders

    • Legal: Davis Polk & Wardwell LLP & (local) Morris Nichols Arsht & Tunnell LLP

    • Financial Advisor: Ankura Consulting Group

Updated 11/2 7:45am CT

New Chapter 11 Bankruptcy Filing - Gastar Exploration Inc.

Gastar Exploration Inc.

October 31, 2018

The fallout from the oil and gas downturn appears to have a long tail.

Gastar Exploration Inc. ($GST), an oil and natural gas exploration and production company focused on shale resource plays in Oklahoma filed a prepackaged bankruptcy in the Southern District of Texas.

For anyone looking for a short primer on what exactly transpired in oil and gas country upon the 2014 downturn in commodity prices is in luck: the company provides a succinct explanation in its bankruptcy filings. It notes:

The market difficulties faced by the Debtors are consistent with those faced industry-wide. Oil and gas companies and others have been challenged by low natural gas prices for years. Since January 2014, natural gas prices fell from a peak of $5.39 per MMBtu in January 2014 to $1.73 per MMBtu by March 2016, and remain at approximately $3.17 per MMBtu. The price of crude oil has similarly plummeted from a high of $107.26 per barrel in June 2014 to a low of $29.64 per barrel in January 2016. Crude oil prices remain at approximately $67 per barrel. Additionally, NYMEX futures curves for both natural gas and crude oil are backward dated, indicating an expectation among real-money traders in the derivatives market that these commodity prices are expected to decline over the next several years.

These market conditions have affected oil and gas companies at every level of the industry around the world. All companies in the oil and gas industry (not just E&P companies) have felt these effects. However, independent oil and gas companies have been especially hard-hit, as their revenues are generated from the sale of unrefined oil and gas. Over 160 oil and gas companies have filed for chapter 11 since the beginning of 2015. Numerous other oil and gas companies have defaulted on their debt obligations, negotiated amendments or covenant relief with creditors to avoid defaulting, or have effectuated out-of-court restructurings.

The Debtors were not immune to these macro-economic forces.

With hundreds of millions of dollars of debt, the company managed to avoid a bankruptcy filing during that time. This is primarily due to a 2017 refinancing transaction that it consummated with Ares Management LLC pursuant to which the company took on new first lien term loans, new second lien converts, and obtained a $50mm equity investment from Ares. The capital structure, at the petition date, is comprised of these term loans and converts. The company intended the new financing to help it weather the downturn and bridge it to a more favorable operational performance and capital markets environment. Alas, it’s in bankruptcy. So, we guess we know how those intentions played out in reality. Indeed, the company experienced significant operational challenges that resulted in a decreased in well production performance — a result that came to pass only after the company incurred the costs of production. Sheesh.

Now the company seeks, in partnership with Ares, to push through a speedy chapter 11 bankruptcy that would have the effect of deleveraging the balance sheet by approximately $300mm, handing all of the equity to Ares (on account of their second lien notes claims), and wiping out the preferred and common equity — which would only be entitled to warrants in reorganized Gastar if they don’t object to the restructuring or seek the appointment of an official committee of equity security holders. Which in the case of both common equityholders (Fir Tree Capital Management LP & York Capital Management Global Advisors LLC) and preferred equityholders…uh…is exactly what they’re doing. Clearly those warrants weren’t much of a carrot. And Judge Isgur happens to have previously demonstrated a soft spot in his heart for equity committees. See, e.g., Energy XXI.

Prior to the first day hearing, Fir Tree and York (by attorneys Quinn Emanuel - a sign of seriousness) filed an emergency motion seeking the appointment of an equity committee alleging, among other things, that the company’s plan is a pure Ares jam fest. They seek an investigation of Ares’ actions (including the refinancing transaction), citing the Energy XXI case, and noting in the process that with unsecured creditors riding through the plan, there is no viable adversary to the debtor other than the zeroed-out equity. Which makes this a private equity vs. hedge fund hootenanny!

Subsequently, an ad hoc committee of preferred stockholders filed a motion joining the arguments of Fir Tree and York, noting, however, that as a preferred equity they’re liquidation preference trumps the interest of the common stockholders. They, too, want an investigation into Ares’ involvement in these cases.

A hearing is scheduled for later this week.

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

• Capital Structure: see below (+$13.3mm in hedging obligations).     

• Company Professionals:

  • Legal: Kirkland & Ellis LLP (Ross Kwasteniet, Anna Rotman, John Luze, Ciara Foster, Brett Newman) & (local) Jackson Walker LLP (Patricia Tomasco, Matthew Cavenaugh)

  • Financial Advisor: Dacarba LLC

  • Investment Banker: Perella Weinberg Partners LP (Kevin Cofsky)

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

• Other Parties in Interest:

  • Financial Sponsor: Ares Management LLC

    • Legal: Milbank Tweed Hadley & McCloy LLP (Paul Aronzon, Thomas Kreller, Robert Liubicic, Haig Maghakian)

  • Minority Shareholders: Fir Tree Capital Management LP & York Capital Management Global Advisors LLC

    • Legal: Quinn Emanuel Urquhart & Sullivan LLP (Emily Smith, K. John Shaffer, Benjamin Finestone, Kate Scherling)

  • Ad Hoc Committee of Preferred Stock Holders (Aedes LLC)

    • Legal: Hunton Andrews Kurth LLP (Paul Silverstein, David Zdunkewicz, Brian Clarke, Timothy Tad Davidson II)

  • DIP Agent & TL Agent: Wilmington Trust NA

    • Legal: Arnold & Porter Kaye Scholer LLP (Christopher Odell, Hannah Sibiski, Brian Lohan, Seth Kleinman)

Source: First Day Declaration

New Chapter 11 Bankruptcy Filing - Egalet Corporation

Egalet Corporation

October 30, 2018

Pennsylvania-based publicly-traded specialty pharma company, Egalet Corporation ($EGLT), filed for chapter 11 bankruptcy in the District of Delaware — the latest in a mini-trend of specialty pharma companies to work their way into bankruptcy court (i.e., Orexigen Therapeutics Inc., Bind Therapeutics, Concordia).

The company intends to use the bankruptcy process to effectuate an acquisition of the assets of Iroko Pharmaceuticals Inc., a privately-held specialty pharma company focused on pain management therapies. The company and Iroko will enter into an asset purchase agreement in connection with and as part of a plan of reorganization, and Iroko will obtain 49% of the outstanding stock of the reorganized Egalet and $45mm of new senior secured notes. The acquisition will fortify the reorganized Egalet’s product-candidate lineup which already includes one anti-inflammatory nasal spray and one oral oxycodone formulation. This proposal is also supported by various holders of the company’s debt in the form of a restructuring support agreement.

But why is this company bankrupt in the first place? First, $128.6mm of debt taken on to fund (i) the development of commercial operations relating to the company’s approved products and (ii) R&D costs relating to product candidates. Also:

For the years ended December 31, 2017, 2016 and 2015, the Debtors reported net losses of approximately $69.4 million, $90.6 million and $57.9 million, respectively. These losses were a result of the Debtors’ continued investments in their commercialization capabilities, the Debtors’ research and development activities, the Debtors’ increasing debt service obligations and general difficulties in increasing the revenue generated from the Debtors’ marketed products, including challenges specific to the abuse-deterrent market such as shifting legislative and social responses to the opioid epidemic.

On account of all of this, the company got a Nasdaq delisting which triggered a “fundamental change” under the company’s converts which required the company to buy back its converts. Of course, the company didn’t have the ability to do so under its credit docs. Ruh roh. Enter restructuring professionals here.

The reorganized debtors will continue to operate under the Egalet name and will be positioned, post-acquisition, to market six commercial products. The company intends to use cash collateral to finance the cases and be out of bankruptcy within 95 days.

Among the companies largest shareholders are Highbridge Capital Management LLC, Broadfin Capital LLC, Deerfield Management Company LP, and Franklin Advisors Inc.

• Jurisdiction: D. of Delaware

• Capital Structure: $128.6mm debt (see below)

• Company Professionals:

  • Legal: Dechert LLP (Michael Sage, Brian Greer, Stephen Wolpert, Alaina Heine) & (local) Young Conaway Stargatt & Taylor LLP (Robert Brady, Sean Greecher)

  • Financial Advisor: Berkeley Research Group LLC

  • Investment Banker: Piper Jaffray & Co.

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

• Other Parties in Interest:

  • Ad Hoc Secured Noteholder Committee

    • Legal: Paul Weiss Rifkind Wharton & Garrison LLP (Andrew Rosenberg, Jacob Adlerstein, Adam Denhoff, Michael Turkel, Miriam Levi) & (local) Cozen O’Connor (Mark Felger, Simon Fraser)

  • Ad hoc committee of holders of the 5.50% Convertible Notes due 2020 and 6.50% Convertible Notes due 2024

    • Legal: Akin Gump Strauss Hauer & Feld LLP (Michael Byun, Erik Preis, Stephen Kuhn, Erica McGrady) & (local) Ashby & Geddes PA (Karen Skomorucha Owens)

  • Iroko Pharmaceuticals LLC

    • Legal: Baker & McKenzie LLP (Debra Dandeneau, Frank Grese III) & (local) Whiteford Taylor & Preston LLC (L. Katherine Good, Aaron Stulman)

Source: First Day Declaration

New Chapter 11 Bankruptcy Filing - Welded Construction L.P.

Welded Construction L.P.

October 22, 2018

Amidst concerns of nationwide pipeline shortages and, strangely, corresponding fears over too much pipeline capacity, it seems even more strange that a pipeline construction company would file for bankruptcy. Alas, on Monday, Welded Construction L.P., a Perrysburg Ohio-based pipeline construction contractor filed for bankruptcy in the district of Delaware despite slightly more than $1b in consolidated gross revenue in the twelve months ended 9/30/18.

We have to hand the company and its professionals some credit: they appear to be paying attention to what PETITION has been saying about the need for more efficiency in the restructuring profession as this case features one of the shortest First Day Declarations we’ve seen in recent memory. They cut right to it. No surplus. Which seems only right: surplus is definitely not something a pipeline construction contractor wants.

Sadly, that is apparently what it appears to have. Just not surplus liquidity, unfortunately. Rather they are alleged by some of their clients to have a surplus of cost overruns. And by alleged we don’t mean threatening emails or letters. We mean litigation. And then litigation has cooled the market for Welded and fed into liquidity issues.

The company is currently working on five pipeline construction projects for its various customers, a list that includes the likes of Sunoco (as affiliates of Energy Transfer Partners LP or “ETP”), Consumers Energy Company, and Williams Companies. The latter, upon completion of Welded’s construction work, is alleged to have withheld $23.5mm from a payment owed to the company and filed a lawsuit against the company alleging breach of contract. According to the company, this “created acute liquidity issues for the Debtors and concerns in the market about their viability as a going concern.” When there is a ton of pipeline construction business to be won, this timing couldn’t possibly be any worse.

Compounding matters is the fact that the company has sizable potential surety bond obligations to its insurers. The insurers, in turn, were granted security interests in the company’s assets but…uh…maybe didn’t perfect them? Whoops. Popping popcorn for this inevitable fight. There is no secured debt here other than some potential equipment financing.

Bored yet? Yeah, us too. But there is a lesson here about managing litigation risk. The lawsuit by Williams spooked other potential customers and enhanced the company’s already pressing liquidity concerns. The company states:

The Debtors vigorously dispute the allegations contained in the Williams Complaint. Since the filing of the Williams Complaint, the Debtors have engaged in dialogue with Williams and its other Customers in an attempt to consensually resolve the dispute and avert the need for the filing of these chapter 11 cases. However, the filing of the Williams Complaint was quickly made public to the market and Customers became increasingly concerned about how the payment of receivables would be utilized by the Debtors. In particular, Customers sought assurance that any new payables would be solely deployed toward expenses related to their particular Projects. As such, these discussions were unsuccessful, depriving the Debtors of the necessary liquidity to sustain their business operations outside of chapter 11 and absent negotiated arrangements with their Customers….

Subsequently, and just a few days ago, ETP sent a letter to the company purporting to terminate the company’s engagement on the ETP project. Crikey! The dominoes are falling.

That last bit of the above quote is key here. Armed with a $20mm DIP credit facility, the company intends to use the “breathing spell” afforded by the chapter 11 automatic stay to:

…negotiate arrangements to finalize the Debtors’ ongoing Projects with [customers], all with the overarching goal of maximizing the value of the Debtors’ estates for the benefit of the Debtors’ creditors and other stakeholders.

Sounds like the next few weeks are going to be riddled with intense negotiations. Sure sounds like the company’s survival depends upon it.

• Jurisdiction: D. of Delaware (Judge Gross)

• Capital Structure: No secured debt. $240mm of accrued liabilities.

• Company Professionals:

  • Legal: Young Conaway Stargatt & Taylor LLP (M. Blake Cleary, Sean Beach, Justin Rucki, Tara Pakrouh, Betsy Feldman)

  • Financial Advisor: Zolfo Cooper LLC (Frank Pometti)

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

• Other Parties in Interest:

  • North American Pipeline Equipment Company, LLC, Bechtel Oil, Gas & Chemicals, Inc., and Ohio Welded Company LLC

    • Legal: Gibson Dunn & Crutcher LLP (Michael Rosenthal, Matthew Kelsey, J. Eric Wise, Daniel Denny, Jason Friedman) & (local) Ashby & Geddes PA (William Bowden, Karen Skomorucha Owens, Katharina Earle)

  • Berkshire Hathaway Specialty Insurance Company

    • Legal: Chiesa Shahinian & Giantomasi PC (Scott Zuber, Jonathan Bondy) & (local) Burr & Forman LLP (Richard Robinson, J. Cory Falgowski)

New Chapter 15 Bankruptcy Filing - Noble Group Limited

Noble Group Limited

October 17, 2018

Noble Group Limited, an over-levered global commodity trader that deals in oil, nat gas, coal and metals, filed for chapter 15 protection in order to hinder U.S.-based creditors from obstructing the company’s proposed schemes of arrangement filed in the UK last week. The schemes seek to de-lever the company and recapitalize it with a combination of new debt and equity as well as a corporate reorganization that includes a transfer of assets to a new Bermudan holdco. The company hopes to effectuate the schemes by late November and has a restructuring support agreement in place with its creditors in order to do so.

• Jurisdiction: S.D. of New York

• Capital Structure: $2.29b RCF, 3.625% ‘18 senior notes, 6.75% ‘20 senior notes, 8.75% ‘22 senior notes

• Company Professionals:

  • Legal: Kirkland & Ellis LLP (James Sprayragen, Marc Kieselstein, Adam Paul, Catherine Jun, Gerardo Mijares-Shafai)

• Other Parties in Interest:

  • Ad Hoc Group of Lenders

    • Legal: Akin Gump Strauss Hauer & Feld LLP (Philip Dublin, Kevin Zuzolo)

New Chapter 11 Bankruptcy Filing - NRG REMA LLC

NRG REMA LLC

October 16, 2018

NRG REMA LLC, an indirect subsidiary of bankruptcy veteran GenOn Energy Inc., has filed for bankruptcy to effectuate a prepackaged plan of reorganization supported by “REMA, the independent directors of GenOn (who are advised by independent advisors), the independent directors of REMA (who are advised by independent advisors), more than 90% of holders of those certain Series C Pass-Through Trust Certificates due 2026, Public Service Enterprise Group and the steering committee of GenOn noteholders.”

We don’t really have much to add so we’ll leave it at that.

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

• Company Professionals:

  • Legal: Kirkland & Ellis LLP (James Sprayragen, David Seligman, Steven Serajeddini, W. Benjamin Winter, AnnElyse Scarlett Gibbons) & (local) Zack A Clement PLLC

  • Legal to Governance Committee of BOD: Akin Gump Strauss Hauer & Feld LLP

  • Financial Advisor: Alvarez & Marsal LLC

  • Investment Banker: Rothschild

  • Claims Agent: Epiq Bankruptcy Solutions LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Lease Indenture Trustees and Pass Through Trustee

    • Legal: Hogan Lovells US LLP (Robert Ripin, Alex Sher)

  • Consenting PTC Holders

    • Legal: Paul Weiss Rifkind Garrison & Wharton LLP (Andrew Rosenberg, Elizabeth McColm, Alexander Woolverton)

💥New Chapter 11 Bankruptcy: Sears Holdings Corporation💥

Sears Holdings Corporation

October 15, 2018

Finally.

Early this morning, Illinois-based Sears Holdings Corporation ($SHLD) and approximately 49 affiliated entities (including KMart) finally filed for chapter 11 bankruptcy. The company lists a staggering $11.339 billion of total debts and $6.937 billion of assets.

The well-known company has 866 full-line and specialty stores as of August 4, 2018. In its chapter 11 petition, it boasts of its legacy as an “integrated retailer with significant physical and tangible assets, as well as virtual capabilities enabled through technology.” Yes, you read that correctly: they actually say “virtual capabilities enabled through technology.” That right there may help inform EVERYONE why this storied retailer has found its way into bankruptcy court. To the last, Sears stands out for its ability to appear out of touch.

The company appears to have a commitment for a $1.875 billion debtor-in-possession (“DIP”) asset-backed credit facility, including an increase of $300mm from its existing facility as well as an agreement over the use of the company’s lenders’ cash collateral. According to a company press release, the company is also negotiating an additional $300mm commitment from ESL Investments Inc. (“ESL”), the company’s largest shareholder and the investment vehicle of Eddie Lampert. The company intends to reorganize around a smaller store platform of “EBITDA-positive stores.” To this end, the company will close 142 stores near the end of the year adding to the previously announced 46 stores set to close in November 2018 — potentially further perpetuating the hurt put on U.S.-based malls over the last several years. Meanwhile, the company continues to negotiate an asset purchase agreement with ESL for “a large portion of the Company’s store base.” This would, obviously, keep the enterprise from liquidating and potentially help maintain thousands of jobs: Sears currently employs approximately 90k people.

While Eddie Lampert will remain Chairman of the Board, he has resigned as CEO of the company. Godspeed, Eddie.

The company’s top listed creditors at the time of filing include The Pension Benefit Guaranty Corporation and various trustees under five different tranches of unsecured notes totaling over $3 billion in principal amount (BNY Midwest Trust Company, Computershare Trust Company NA, The Chase Manhattan Bank NA). Trade creditors include Whirlpool Corporation ($23.4mm), Frigidaire Company ($18.6mm), and Winia Daewoo Electronics America ($15.2mm).

We will update this post on Wednesday in our next briefing; we are particularly excited to see how the company spins the “factors” that led to its appearance in bankruptcy court. Here’s one explanation:

And here’s another — seemingly more-on-point — one:

• Jurisdiction: S.D.N.Y. (Judge Drain)

• Capital Structure: $11.339b debt     

• Company Professionals:

  • Legal: Weil, Gotshal & Manges LLP (Ray Schrock, Garrett Fail, Jacqueline Marcus, Sunny Singh)

  • CRO/Financial Advisor: M-III Partners, LP (Mohsin Meghji, Colin Adams, Brian Griffith, Christopher Good, Mary Korycki, Kevin Tanaka, Enrique Acevedo, Wesley Sima, Noah Zatzkin, Joseph Frantz, Nicholas Weber, Ravi Ramnani )

  • Investment Banker: Lazard Freres & Company

  • Restructuring Committee’s Independent Directors: William Transier, Alan Carr, Paul DePodesta, Ann Reese

  • Restructuring Sub-Committee (RSC): Alan Carr and William Transier

  • Legal to RSC: Paul Weiss Rifkind Wharton & Garrison LLP (Paul Basta, Kelley Cornish, Lewis Clayton, Susanna Buergel, Robert Britton, Jonathan Hurwitz, Emma Carlson, Teresa Lii)

  • Financial Advisors to RSC: Alvarez & Marsal North America LLC (Dennis Stogsdill, Nick Grossi, Brian Corio, Jonah Galaz, Andrew Gasbarra, Jonathan Bain, Jordan Kravette)

  • Investment Banker to RSC: Evercore Group LLC (Daniel Aronson, Jeremy Matican, Guy McCumber, Siddhesh Patkar, Jonathan Kamel, Ajith Sukumar)

  • Conflicts Counsel: Young Conaway Stargatt & Taylor LLP (Pauline Morgan, Rolin Bissell, Ryan Bartley, Travis Buchanan)

  • Claims Agent: Prime Clerk LLC (*click on company name above for free docket access)

• Other Parties in Interest:

  • Large Shareholders: ESL Investments. Legal: Cleary Gottlieb Steen & Hamilton LLP (James Bromley, Sean O’Neal, Andrew Weaver)

  • Prepetition RCF, Term Loans, FILO & DIP ABL Agent: Bank of America NA. Legal: Skadden Arps Slate Meagher & Flom LLP (Paul Leake, Shana Elberg, George Howard)

  • Citibank NA. Legal: Davis Polk & Wardwell LLP (Marshall Huebner, Eli Vonnegut)

  • Large Shareholder: Fairholme Capital Management LLC. Legal: Sullivan & Cromwell LLP (Andrew Dietderich, Brian Glueckstein, David Zylberberg)

  • PBGC. Legal: Locke Lord LLP (David Wirt)

  • Debtors’ IP/Ground Lease Term Loan Lender: SHLD Lendco LLC. Legal: Cahill Gordon & Reindel LLP (Joel Levitin, Richard Stieglitz Jr.)

  • Official Committee of Unsecured Creditors

    • Legal: Akin Gump Strauss Hauer & Feld LLP (Ira Dizengoff, Philip Dublin, Abid Quereshi, SARA Brauner)

    • Legal (Conflicts): Herrick Feinstein LLP (Sean O’Donnell, Stephen Selbst, Steven Smith)

    • Financial Advisor: FTI Consulting Inc. (Matt Diaz, Conor Tully, Michael Berkin, Marshal Eisler, Kenny O’Trakoun, Morgan McCaskey, Samuel Star)

    • Investment Banker: Houlihan Lokey (Saul Burian, Eric Siegert, Brad Geer, Surbhi Gupta, Greg Rinsky, Tom Hedus, Ross Rosenstein, Ryan Conroy, John Hartigan, Ahmed Mumtaz, Jack Foster, James Lai, Natalie Weelborg, Andrew Felman, Matthew Stadtmauer)

  • Cyrus Capital Partners LP

    • Legal: Milbank Tweed Hadley & McCloy LLP (Eric Reimer, Thomas Kreller, Craig Price)

  • Indenture Trustee to Medium Term Notes: The Bank of New York Mellon Trust Company, N.A.

    • Legal: Carter Ledyard & Milburn LLP (James Gadsden, Leonardo Trivigno)

Updated 11/30/18

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New Chapter 11 Filing - Mission Coal Company LLC

Mission Coal Company LLC

October 14, 2018

For a recap, please see here.

• Jurisdiction: N.D. of Alabama (Judge Mitchell)

• Capital Structure: See below

• Company Professionals:

  • Legal: Kirkland & Ellis LLP (Stephen Hessler, Brad Weiland, Melissa Koss, Travis Bayer, Anne Gilbert Wallace, Francis Petrie, Ciara Foster, Michael Esser) & (local) Christian & Small LLP (Daniel Sparks, Bill Bensinger)

  • CRO/Financial Advisor: Zolfo Cooper LLC (Kevin Nystrom)

  • Investment Banker: Jefferies LLC

  • Claims Agent: Omni Management Group (*click on company name above for free docket access)

• Other Parties in Interest:

  • First Lien Lenders and DIP Lenders

    • Legal: Akin Gump Strauss Hauer & Feld LLP (Martin Brimmage, Lisa Beckerman, Lacy Lawrence, Allison Miller, Erik Preis, Jason Rubin) & (local) Burr & Forman LLP (Michael Leo Hall, D. Christopher Carson, Heather Jamison)

    • Financial Advisor: Houlihan Lokey Capital

  • United Mine Workers of America

    • Legal: Rumberger Kirk & Caldwell PC (R. Scott Williams, Frederick Darrell Clarke III, Robert Adams)

  • The United Mine Workers of America 1974 Pension Plan and the United Mine Workers of America 1993 Benefit Plan

    • Legal: Morgan Lewis & Bockius LLP (Rachel Mauceri, John Goodchild III) & (local) Quinn Connor Weaver Davies & Rouco LLP (Glen Connor, George Davies)

Source: First Day Declaration