🏥New Chapter 11 Bankruptcy Filing - Thomas Health System Inc.🏥1/10/20

Thomas Health System Inc.

January 10, 2020

Yeah, we poo poo’d the whole healthcare distress theme because, well, there was a lot of bluster and not many large restructurings. Which is not to say that there weren’t restructurings. There were. A ton in fact. And patients apparently got left in complete and utter disarray as a result.

Now there’s another one to watch.

Thomas Health System Inc., a West Virginia nonprofit public benefit corporation, filed for bankruptcy along with two debtor hospitals (Charleston Hospital Inc. d/b/a Saint Francis Hospital and Thomas Memorial) and another debtor ancillary services provider (THS Physicians Partners Inc.). It claims to be the 17th largest private employer in West Virginia. Collectively, the debtors form a 391-bed hospital system and employ approximately 1700 people. Meaningful.

Also meaningful is the debtors’ $137.9mm of secured bonds and $45mm of underfunded pension obligations. The debtors annual debt service in 2019 was ~$10.8mm; their revenues were ~$267mm; their operating expenses were ~$253.3mm; and their net loss was ~$6.6mm. Clearly the debt service is making a mark.

In addition to their debt, the debtors cite a laundry list of reasons that led to their bankruptcy. In a nutshell, they boil down to “Thanks Obama.” Kidding, kidding. Well, sort of. These are all of the issues the company listed:

  • Implementation of the Affordable Care Act (thanks Obama);

  • The decline of the coal industry (“the war on coal”) and the thousands of resultant job losses (thanks Obama, and thanks Hillary for good measure);

  • Medicaid expansion (thanks Obama);

  • Reduced reimbursement rates (thanks Obama); and

  • Patient outmigration to competing health systems (ah, f*ck it, yeah thanks Obama).

On brand, we’re being a bit flip here but the numbers cited here are staggering:

Between fiscal year 2015 and FY 2018, the Hospitals have seen a decline of adjusted admissions, observations, and emergency room visits by approximately 12%, 26% and 45%, respectively. In addition, over the last five years, the commercial insurers’ share of payor mix has declined from approximately 28% to approximately 18%.

So, visits are ⬇️. And reimbursements are ⬇️. Compounding matters is the complexity of treatment needed:

…recent reports rated West Virginia’s overall health as a state at 46th out of the 50 states, based largely on the facts that West Virginia has the highest number of opioid-related overdose deaths in the United States in 2017 and has the highest obesity rate in the country, leading to an increasing rate of diabetes. All of these factors contribute to increased healthcare costs to be borne by the Debtors suffering from substantial reductions in Medicare reimbursement.

The debtors have been trying to pursue strategic alternatives since February 2019. To no avail. The bankruptcy, presumably, is meant to re-energize those efforts. They defaulted on their bonds and so the filing will also give the debtors a “breathing spell” to try and de-lever their balance sheet.

  • Jurisdiction: S.D. of West Virginia (Judge )

  • Capital Structure:

  • Professionals:

    • Legal: Whiteford Taylor & Preston LLP (Brandy Rapp, Michael Roeschenthaler) & Frost Brown Todd LLC (Jared Tully, Ronald Gold, Douglas Lutz)

    • Financial Advisor: Force Ten Partners LLC

    • Investment Banker: SOLIC Capital Advisors LLC

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

  • Other Parties in Interest:

    • Indenture Trustee: UMB Bank NA

      • Legal: Mintz Levin Cohn Ferris Glovsky & Popeo PC (Colleen Murphy, Ian Hammel, Timothy McKeon) & Dinsmore & Shohl LLP (Janet Smith Holbrook)

💊New Chapter 11 Bankruptcy Filing - Sienna Pharmaceuticals Inc. ($SNNA)💊

Sienna Pharmaceuticals Inc.

September 16, 2019

If you’re tired of distressed retail and oil & gas companies, the good news is that the biopharma space has been mixing things up. Sienna Pharmaceuticals ($SNNA), a California-based clinical-stage biopharma and medical device company filed for bankruptcy in the District of Delaware. It develops multiple products aimed at chronic inflammatory skin diseases (e.g., psoriasis) and aesthetic conditions (e.g., unwanted hair and acne). The company is at the stage that those in the tech world would designate “pre-revenue.”

And that is precisely the problem. Much like distressed oil and gas companies, distressed biopharma companies are capital intensive (a $184.1mm accumulated deficit) and tend to succumb to the weight of their long-duration development cycle. In this case, the company “has relied on equity issuances, debt offerings, and term loans” to fund development and operations. It has also leveraged its equity as a currency, engaging in strategic acquisitions that enhance its product portfolio; it, for instance, entered into a share purchase agreement in late ‘16 with Creabilis plc. This added one more product that, at this juncture, the company cannot advance due to liquidity issues. Womp womp.

The company has, over the course of time, been indebted to its pre-petition secured lender, Silicon Valley Bank, in the range of $10-30mm. On September 15th, for instance, the company owed SVB over $30mm. In exchange, however, for the use consensual use of cash collateral, the company made a $21.3mm payment to SVB on September 16th, the day before the bankruptcy filing. That’s what you call leverage, folks. SVB’s loan is secured by a laundry list of debtor assets though it is technically not secured by the company’s extensive trove of intellectual property (~250 patents). That IP, however, is subject to what’s called a “negative pledge,” a provision that prevents the company from pledging the IP on account of the fact that SVB’s security interest includes “rights to payment and proceeds from the sale, licensing, or disposition of all or any part of the Intellectual Property.” It’s a wee bit hard to enforce a security interest in IP if someone else has a right to the payments streams emanating therefrom (not that this company has any revenue streams, but you get the idea).

Why bankruptcy? For starters, the company is subject to a “minimum cash covenant” under its SVB facility and liquidity dipped below the minimum. Due to the company’s declining stock price, the company lost access to the equity market. Finally, the company has lingering financial commitments from the Creabilis deal. For all of these reasons, the company simply doesn’t have the liquidity needed to fund the next stages of product development which, in turn, would get the company closer to revenue generation. Chicken. Meet egg.

As is the overwhelming norm these days, the company now seeks to use the bankruptcy process to pursue a sale. As of the filing, no stalking horse purchaser is teed up but the company is “confident” that its banker, Cowen & Co. ($COWN), will locate one that will enable the company to emerge from bankruptcy as a going concern. No pressure, Cowen.

  • Jurisdiction: D. of Delaware (Judge TBD)

  • Capital Structure: $10mm secured debt (SVB)

  • Professionals:

    • Legal: Latham & Watkins LLP (Peter Gilhuly, Ted Dillman, Shawn Hansen) & Young Conaway Stargatt & Taylor LLP (Michael Nestor, Kara Hammond Coyle)

    • Financial Advisor: Force 10 Partners (Jeremy Rosenthal)

    • Investment Banker: Cowen and Company LLC (Lorie Beers)

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

  • Other Parties in Interest:

    • Prepetition Lender: Silicon Valley Bank

      • Legal: Sheppard Mullin Richter & Hampton LLP (Ori Katz, Michael Driscoll) and Benesch Friedlander Coplan & Aronoff LLP (Jennifer Hoover, Kevin Capuzzi)

    • Major shareholders: ARCH Venture Partners VIII LLC, Partner Fund Management LP, FMR LLC (aka Fidelity)

    • Official Committee of Unsecured Creditors (Therapeutics Inc., Johnson Matthey Inc., MedPharm Ltd.)

      • Legal: Foley & Lardner LLP (Richard Bernard, Alissa Nann) & Potter Anderson & Corroon LLP (Christopher Samis, L. Katherine Good, D. Ryan Slaugh)

      • Financial Advisor: Emerald Capital Advisors (John Madden)

Update: 10/25/19 #140

🐻New Chapter 11 Bankruptcy - Sugarfina Inc.🐻

Sugarfina Inc.

September 6, 2019

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First it was Lolli & Pops and now its Sugarfina Inc. Damn people! Don’t you eat sugar anymore?? What is Sugarfina?

Sugarfina is an iconic candy and confectionary brand with a uniquely fresh, fashionable, and experiential approach to gourmet confections. With the creation of a “candy store for grown ups,” Sugarfina has gained a strong and loyal customer following, through constant creation and innovation focused on distinctive product presentation and invention of fresh new candy offerings that delight and surprise. (emphasis added)

There it is again. The words “iconic” and “loyal customer following” to describe a never-profitable now-bankrupt company that bled cash like a baaaaawse over seven years. Seriously, let’s cut that hyperbolic sh*t out already: Sugarfina raised $60mm from investors — including the likes of Howard MarksRoger McNameeDavid Solomon ($GS) & Bono ($U2) — but ran out of cash by the end of ‘18. That’s enough to give us vertigo.

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Those investors will never find what they were looking for: ROI.

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Clearly this investment was not the “one” (we can keep going folks).

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to address this cash need, the company sought interest in a new debt and/or equity transaction from third-parties. But NOBODY WAS INTERESTED IN THIS ICONIC BRAND WITH THE LOYAL FOLLOWING. NO. ONE. The company was forced to take on $22.4mm in secured debt to raise short-term liquidity. Initiate death spiral.*

The company then hired a banker to raise new liquidity:

The Company’s process was open-ended, expressing a willingness to consider any type of transaction, with any terms (including complete or partial acquisitions, equity investments, or long-term debt transactions).

IN OTHER WORDS, THIS ICONIC BRAND WITH THE LOYAL FOLLOWING WAS DESPERATE AF. Over SIX MONTHS they contacted 170 — ONE HUNDRED AND SEVENTY — potential counter-parties, signed 42 NDAs, and still NO ONE wanted to move forward with an out-of-court deal. Hence, the chapter 11 filing.

You know what DOESN’T scream “iconic”? A measly $13mm purchase price (on $47mm of net sales,** $23.6mm from B&M retail). That’s right $13mm for 44 “Candy Boutiques” (inclusive of 11 shop in shops at Nordstrom’s), a wholesale business ($11.9mm sales), e-commerce ($5.6mm), international franchise ($1.8mm) and a corporate/custom channel ($4.1mm). You know what else doesn’t scream “iconic”? This:

In 2016, the Company incurred EBITDA losses of $4,828,574, which increased to EBTIDA losses of $7,340,000 in 2017, and to EBITDA losses of $17,913,000 in 2018.

SO. EFFING. ICONIC. The retail and international channels proved to be the main drag. The company already seeks approval to reject six leases so the buyer’s plan will clearly be less reliant on a physical footprint (at least in existing locations).

The company has 18.5k and 225k TWTR and Insta followers, respectively. It also has 140 design patents and trademarks in 22 international jurisdictions. Despite these “assets,” the purchase price doesn’t clear the secured debt. And the company “owe[s] material amounts, on an unsecured basis, to vendors critical to their production process, including candy and packaging suppliers.” (See “critical vendor” piece below).

The company — currently helmed by (i) a CRO who was formerly the GC (and before that, the GC of American Apparel Inc.) and (ii) two independent directors including the former CEO of both American Apparel Inc. and True ReligionChelsea Grayson (pictured above in full-fledged Director power pose) — does have a stalking horse purchaser lined up (Candy Cube a/k/a Terramar Capital — your late night luxury sugar cravings powered by private equity!).*** It also has a $4mm (8%) DIP commitment from Serene Capital (its first lien lender) and Candy Cube.

We suppose we’ll now see how much interest this ICONIC brand draws in auction.

*At the time of filing, the company had $24.5mm of secured debt split amongst a capital structure that would make an E&P company jealous. There’s a $5mm first lien (SFF Loan Advisors LLC d/b/a Serene Capital), $10mm second lien (Goldman Sachs Specialty Lending), $8mm third lien (founder Josh Resnick), and $2.15mm fourth lien. There’s also a $2.1mm unsecured convertible promissory note. What? No appetite for a fifth lien tranche?!

**Revenue doubled each year from ‘13 thru ‘16, and 1.25x from ‘13 thru ‘18 (read: growth, as you might expect when a company matures, slowed meaningfully in the later years). Notably, the purchase price also includes membership interests in the emerging company, Candy Cube, including senior preferred membership interests with a $2.0mm preference and 20% of the common membership interests.

***The buyer has agreed to pay retention bonuses to employees who stay through the sale.

  • Jurisdiction: D. of Delaware (Judge Walrath)

  • Professionals:

    • Legal: Shulman Hodges & Bastian LLP (Alan Friedman, Ryan O’Dea) & Morris James LLP (Brya Keilson, Eric Monzo)

    • Financial Advisor: Force Ten Partners LLC (Adam Meislik)

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

  • Other Parties in Interest:

    • Stalking Horse Purchaser: Terramar Capital (a/k/a Candy Cube Holdings LLC)

      • Legal: McDonald Hopkins (Marc Carmel) & Young Conaway Stargatt & Taylor LLP (M. Blake Cleary, Andrew Magaziner)

    • First Lien Lender & DIP Lender: SFCC Loan Investors LLC

      • Legal: Loeb & Loeb LLP (Lance Jurich, Vadim Rubinstein, W. Peter Beardsley) & (local) Pachulski Stang Ziehl & Jones LLP (Jeffrey Pomerantz, James O’Neill)

    • Landlord Creditors: Federal Realty Investment Trust

      • Legal: Ballard Spahr LLP (Leslie Heilman)

    • Landlord Creditors: A/R Retail LLC, The Forbes Company LLC, The Macerich Company

      • Legal: Ballard Spahr LLP (Leslie Heilman, Brian Huben, Dustin Branch)

    • Landlord Creditor: Taubman Landlords

      • Legal: The Taubman Company (Andrew Conway) & Law Office of Susan Kaufman LLC (Susan Kaufman)

    • Landlord Creditor: Taubman Landlords: Simon Property Group

      • Legal: Simon Property Group (Ronald Tucker)

    • Landlord Creditor: Westfield LLC

      • Legal: Barclay Damon LLP (Niclas Ferland, Ilan Markus) & Law Office of Susan E. Kaufman (Susan Kaufman)

    • Landlord Creditor: Landmark Properties LLC

      • Legal: Greenberg Traurig: (Heath Kushnick, Dennis Meloro)

    • Landlord Creditor: Shopcore Properties LP and Turnberry Associates

      • Legal: Kelley Drye & Warren LLP (Robert LeHane, Jennifer Raviele, Michael Reining)

    • Landlord Creditor: CIBC Leaseco LLC

      • Legal: Mayer Brown LLP (Brian Trust, Joaquin M. C de Baca)

    • Goldman Speciality Lending Group

      • Legal: King & Spalding LLP (Austin Jowers, Michael Handler) & Chipman Brown Cicero & Cole LLP (William Chipman, Mark Olivere)

    • Official Committee of Unsecured Creditors

      • Legal: Bayard PA (Justin Alberto, Erin Fay, Daniel Brogan)

Updated 9/24/19 #130