⚡️A Quick Update⚡️: The Bon-Ton Stores

On Monday, The Bon-Ton Stores filed a motion seeking permission to pay a $500k diligence fee to a combination of DW Partners, Namdar Realty Group, Washington Prime Group Inc. ($WPG) and AM Retail Group Inc. in connection with a signed letter of intent to purchase the company’s assets. The former three firms would seek to own all of Bon-Ton’s assets other than a distribution center, which would go to AM Retail. The company also postponed its sale auction to April 16. The purchase price is:

“…no less than (i) an aggregate purchase consideration sufficient to have a minimum excess availability of 22.5% at closing; and (ii) a minimum aggregate cash payment of no less than $128,000,000.00 (the “Baseline Bid”), a sufficient portion of which shall be funded into an escrow account to pay fees and expenses (including professional fees) associated with the wind-down of the Debtors’ estates after the Closing.”

In filing the motion, the Debtors champion that this bid is the only bid it received by its bid deadline that would allow for the Debtors to continue to operate as a going concern rather than liquidate; it is the only bid that would have the effect of:

“saving over 20,000 jobs and preserving a 120-year-old business that is a significant customer for its vendors, an anchor tenant for many of its landlords, and the leading hometown department store for millions of consumers in local communities throughout twenty-three (23) states.”

This will, no doubt, be a controversial course of action as certain creditors have been pursuing liquidation since the petition date.

Four things of note:

1. The minimum cash consideration offered — the $128mm — is INCLUSIVE of professional fees to fund the wind-down of the case. With only one Operating Report on file with no professional fees paid to date, it’s unclear how much of that consideration will actually inure to the benefit of the estate.

2. The offer is contingent upon a “[d]emonstrable commitment…by a substantial number of the Debtors’ existing landlords and trade vendors…to support the Company’s liquidity needs at close and through a period of no less than one year from the closing date….” In other words, this is very much pay-to-play: if landlords and vendors want to benefit from Bon-Ton remaining a going concern, they have to agree, upfront and for one year, to engage in rent and receivables forgiveness. What do they do? This is the quintessential “cutting off the nose to spite the face” dilemma.

3. The Official Committee of Unsecured Creditors filed a “Statement” last night supporting the proposed diligence fee; it analogizes this case to Aeropostale and notes how the work fee there helped encourage a going concern transaction. It said the diligence fee and a going concern offer “…is the last and only hope to save Bon-Ton from the fate of so many retailers that have filed for bankruptcy during this ‘retail apocalypse.’” Dark and stormy. We dig it.

4. Morgan Stanley Research analysts are bullish on the transaction for the mall operators. Per CoStar,

“If they were to lose Bon-Ton as a tenant, cap rates for their malls would likely widen if given the risk of co-tenancy and capex requirements to redevelop. 

But it could also be somewhat of an offensive move. It's possible that the landlords could place Bon-Ton stores in malls where they have a big box vacancy. 

’We can't help but think this would be a competitive advantage for these two mall landlords relative to their peers,’ the two analysts said. ‘First, they could choose to keep open stores at their properties while closing others at competing locations. Second, it could provide them an opportunity to buy malls from their competitors at more attractive valuations if there is a risk of losing a major tenant.’”

This is retail today, ladies and gentlemen.

What the Pros Say (Week of 12/11/16)


  • Ignoring the podcast host's painful lack of charisma, Pachulski's Jeffrey Pomerantz provides an intriguing interview about the state of retail; he discusses macroeconomic trends, e-commerce trends, and the pros/cons of selling a retail asset pursuant to 363 or a plan (i.e., net operating loss benefits); he also draws on experience from Radio Shack, Wet Seal, Pac Sun and Delia's. Finally, he indicates that "there are rumors that Dick's Sporting Goods has hired Houlihan Lokey to pursue restructuring alternatives" and highlights Sears, Forever 21 and Claire's Stores as potential near term bankruptcy candidates. He forgot to mention J. Crew

Jones Day LLP has a lot to say...

  • 2017. Deloitte CRG's Kirk Blair predicts restructuring activity in...wait for it...energy, shipping and retail. Really going out on a limb.
  • Aeropostale. Jones Day LLP's Brad Erens summarizes the stinging defeat the company took in its efforts to equitably subordinate and/or recharacterize Sycamore Partners' claims (and limit credit bidding rights).
  • Avoidance Actions. A limited expansion of the lookback period as noted by Jones Day LLP's Amanda Parra Criste.
  • Chapter 15. Verle Roovers of Jones Day LLP provides an analysis of recent Chapter 15 precedent (Sanjel).
  • Consumer Privacy. John Drennan of Baker Donelson discusses a critical issue.
  • Equitable Mootness. G. Christopher Meyer of Squire Patton Boggs (US) LLP discusses the doctrine in the context of Detroit's Chapter 9 appeal (spoiler alert: still equitably moot).
  • Indenture Trustee Standing. Andrew Silfen, Leah Eisenberg, Jeffrey Rothleder and Jordana Renert of Arent Fox LLP collaborated on a summary of a recent NY Supreme Court decision.
  • Jevic - Structured Dismissals. Mark Salzberg from Squire Pattong Boggs LLP discusses the SCOTUS deliberations.
  • Makewhole. Simpson Thatcher is a little late to the EFIH-summary party but this is a solid memorandum by John Lobrano, Sandy Qusba, Elisha Graff and Morris Massel discussing the recent 3rd Circuit decision. As is Arent Fox LLP's summary by Andrew Silfen, Jeffrey Rothleder and Beth Brownstein here.
  • Midstream Contracts. Kathryn Coleman and Anson Frelinghuysen of Hughes Hubbard & Reed LLP provide a summary of the March SDNY decision in Sabine that still rankles Judge Jones in Texas to this day.
  • Restaurants. Edward Neiger of ASK LLP summarizes a few of the recent casual restaurant filings. We have also covered this space in here.

News for the Week of 12/04/16

Filings down this week so packing in the news...

  • Aeropostale. Cascading effect. American Eagle Outfitters blames Aeropostale's going-out-of-business sales for same store sales declines and lowered forward guidance. Seems, however, that the pain is more widespread than that: this week mall retailer Express Inc.'s stock got trounced after reporting YOY net and comp sales declines (silver lining: e-commerce sales were up 15%). E-commerce isn't immune to downtrends either: Bodybuilding.com laid off 90 workers this week with minority owner Ryan DeLuca stating the VERY obvious, "E-commerce is tough and getting tougher with competition from Amazon and thousands of others." 
  • Salus Capital. The zombie that was once Salus Capital is in the news again as it funds the Chapter 11 wind-down of Hampshire Group.
  • Sobey's. Another deadbeat (Canadian) grocer. Apparently the synergies expected from buying Safeway's Canadian stores haven't come to fruition.
  • Solar. A synopsis of the industry's convergence with restructuring and challenges that lay ahead.
  • Fast Forward: Many are now starting to call Uber's business model into question: an argument made easier by a $1.2b cash burn loss in the first six months of '16. 
  • Rewind I: Cosi Inc. was unable to find a new buyer, settling, in the end, on a $10mm sale to the original stalking horse bidder (including a credit bid).
  • Rewind II: Nasty Gal. If this report is true, there is something strangely disturbing about a company called "Boohoo" buying another called "Nasty Gal." 
  • Rewind III: Bennu Oil & Gas, LLC filed for Chapter 7 weeks after the involuntary chapter 11 filing against its subsidiary, Bennu Titan. Last week we discussed feasibility and the (seeming) proliferation of Chapter 22s. This story is too brutal to even be a 22.  
  • Chart of the Week: This International Energy Agency chart forecasts that we've reached peak oil demand. Still, tepid interest in Verengo Inc.'s SoCal solar assets (no bid topping stalking horse: effectively sold for credit bid).

Chart of the Week IINike. The sneaker manufacturer announced this week that it would skip conventional wholesale channels like Dicks Sporting Goods, Foot Locker and others and sell its self-tying $720 HyperAdapt sneakers BtoC via its Nike+ app and at the NYC retail store. Clearly, Nike is paying attention to these recent consumer trends:

News for the Week of 11/06/16

  • For-Profit Education - Despite a recent settlement with the government, for-profit educator DeVry University faces new headwinds. Also, another college closure.  
  • Fossil joins the ranks of retailers who will soon be taking restructuring charges and closing stores.
  • Healthcare/Pharma - many distressed investors and professionals are turning their attention away from E&P, OFS and retail are turning their attention here given the possibility that increased regulatory pressure may create more stress.
  • Lumber Liquidators continues to face legal scrutiny: is it a near-term bankruptcy candidate?
  • Municipal bankruptcy -  Populism converges on Scranton as a $500mm+ debt load triggers voter movement to put bankruptcy to vote.  
  • Payday Lenders are under siege.  
  • Private Equity - an assessment of its influence and future.  

  • Last Week: We noted the large AUM raises by Oakhill and Carlyle for deployment into the distressed market. In contrast, Fortress Investment Group underscores that prices are too rich and yields too low, and so they're prepared to return investor funds.
  • Last Week II: As "Dead Malls" continue to garner attention, a major mall owner talks up its own book and projects a major Aeropostale turnaround.
  • Last Week III: In the wake of increased seismic activity, Oklahoma and federal regulators order the closure of injection wells in Oklahoma. We noted this issue in last week's feature.  
  • Chart of the Week