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June 1, 2021 – Further to the Debtor's verbal, in-Court motion of May 24th (the "Ore Tenus Motion"), the Court hearing the American Purchasing Services, LLC d/b/a American Medical Depot cases has converted the Debtors’ Chapter 11 cases to cases under Chapter 7 [Docket No. 378].
On December 11, 2020, privately-held American Purchasing Services, LLC and three affiliated Debtors (d/b/a American Medical Depot; “American Purchasing” or the “Debtors”) filed for citing COVID-19's impact on “voluntary and non-emergency surgical and medical procedures” and a corresponding decrease in orders from its established client base (most significantly from the Veterans’ Administration or “VA”).
From the outset, the Debtors' stay in Chapter 11 has been about an orderly liquidation of assets; and from the outset the Debtors' official committee of unsecured creditors (the "Committee") and the Debtors' second lien lenders, led by Wynnchurch Capital, have been at loggerheads with the Committee "demand[ing] that the Debtors investigate and prosecute an action against the Second Lien Lenders for D&O claims, recharacterization of their loans as equity, challenging the extent, validity and/or priority of their liens and for fraudulent transfers" (see "Committee Claims" below).
On May 5th, the Debtors required to file a Plan by that date in order to maintain their tenuous access to cash collateral, crossed their fingers and filed a Liquidation Plan and a related Disclosure Statement in the hopes that mediation approved by the Court a day earlier would prove fruitful. It was not.
The May 5th Disclosure Statement noted, “The Plan provides for, among other things, the creation of a Liquidating Trust to effectuate the wind-down of the Debtors’ Estates and the Distribution of funds for the benefit of the Debtors’ Creditors. The Debtors believe that the Plan will allow for a prompt resolution of the Debtors’ Chapter 11 Cases and will achieve the best possible result for holders of secured claims and for General Unsecured Creditors. The Creditors’ Committee disagrees with the foregoing statement."
On May 24th, the Court-assigned mediator Jerry M. Markowitz placed an "X" next to "The parties reached an impasse" in his perfunctory, one page filing; with that "X" effectively ending the Debtors' hopes for liquidating outside of Chapter 7.
Notwithstanding the conversion, the Committee (which had its request for derivative standing rendered moot by the conversion) will continue to press its case against the Second Lien Lenders, albeit now required to do so through a Chapter 7 Trustee.
At filing, the Debtors listed WC, AMD LLC (an affiliate of Wynnchurch Capital) as a significant shareholder without disclosing that affiliate's exact equity position. Wynnchurch, which is also part of a junior lender group that is owed $32.0mn, lists the Debtors as a portfolio company, with their equity position resulting from a 2018 debt restructuring which followed on an earlier $85.0mn restructuring led by White Oak Global Capital Advisors in 2017.
Goals of the Chapter 11 Filings
The Gerrard Declaration (defined below) provides: "The Debtors’ objectives in their Chapter 11 Cases is to stabilize their operations and liquidate their assets in an orderly manner to ensure the highest value for all of the Debtors’ stakeholders." Elements of that process include: "(i) a bulk sale of approximately $19 million in inventory, of which approximately $5 million is attributed to inventory purchases AMD was required to make in order to service the VA hospitals under the NG Contract and bridge contract, but which the VA ultimately failed to order and purchase, and over $10 million of which is attributed to inventory purchases by AMD for the VA that were not part of the NG Contract or bridge contract; (ii) collection of accounts receivable totalling approximately $15 million, of which over $3.1 million is owed by the VA for inventory ordered and received under the NG Contract; (iii) selling other assets, such as government contracts, subject to the satisfaction of governmental agency requirements; and (iv) selling intellectual property, including patents and/or patented products."
The Debtors are party to a a revolving line of credit (the “Revolver”) with Wells Fargo Bank, National Association, as agent. The Revolver is secured with a lien on virtually all of the Debtors’ assets and, as at the Petition date, outstanding borrowings under the Revolver were approximately not less than $10.5mn.
Debtors are also party to junior secured facility with WC AMD, LLC as agent and , SOLIC AMD Investco, LLC, and Aman Capital LLC, also amongst the lending group (collectively, the “Junior Lenders” or "Second Lien lenders"). The Junior Lenders also have a lien on virtually all of the Debtors’ assets, albeit subordinated to the Revolver pursuant to an intercreditor agreement. At the Petition date, there was approximately $32.9mn outstanding in respect of this junior facility.
As of the Petition date, the Debtors owed approximately $5.0mn in general unsecured debt to about 450 non-insider creditors, of which about $30.0mn is owed to 9 vendors. Approximately $559k in general unsecured debt is owed to the Junior Lenders (in addition to the Junior Lenders’ second lien debt in the approximate amount of $32.8mn).
As noted above, WC AMD, is the agent for Second Lien Lenders WC AMD, SOLIC AMD Investco, LLC and Aman Capital LLC. The Second Lien Lenders have a lien on substantially all of the Debtors’ assets, subordinated to the First Lien Lenders pursuant to an intercreditor agreement. In a related transaction, the Second Lien Lenders also purchased equity interests in Debtor American Medical Depot Holdings, LLC. As of the Petition date, the Debtors owe the Second Lien Lenders approximately $32.8mn. The Debtors' Official Committee of Unsecured Creditors Creditors’ (the "Committee") has asserted claims against the Second Lien Lenders, including for recharacterization of their loans as equity, challenges regarding the extent, validity and/or priority of their liens, for avoidance of transfers, D&O claims and breach of fiduciary duty claims (collectively, the “Committee Claims”).
The Disclosure Statement adds: "…the Creditors’ Committee demanded that the Debtors investigate and prosecute an action against the Second Lien Lenders for D&O claims, recharacterization of their loans as equity, challenging the extent, validity and/or priority of their liens and for fraudulent transfers. On April 4, 2021, the Debtors notified the Committee that, in accordance with paragraph 10(b) of the cash collateral orders [ECF No. 215, as amended by ECF No. 270], the Debtors would not initiate an action in response to the matters addressed by said challenge letter. Pursuant to modified procedures for a Second Lien Challenge in the Third Amended Cash Collateral Order, the Creditors’ Committee and Second Lien Lenders have engaged in a mediation of the Committee Claims, which is ongoing as of the filing of this Disclosure Statement."
Events Leading to the Chapter 11 Filings
In a declaration in support of the Chapter 11 filing (the “Gerrard Declaration”), Dennis Gerrard, the Debtors' Chief Restructuring Officer, detailed the events immediately leading to the Debtors Chapter 11 filings; with that focus being on the impact of COVID-19 on the Debtors' clients, particularly on a decrease of "voluntary and non-emergency surgical and medical procedures" and a corresponding decrease in orders from its established client base (most significantly from the Veterans' Administration or "VA"). That focus on COVID-19 is notwithstanding the fact that the Debtors have not operated any of their four principal lines of business since the end of August 2020.
According to Gerrard, who does not provide detail as to the two financial restructurings that occurred during the five-year arrangement with the VA or why the Debtors were so reliant on credit lines more than four years into a $1.2bn contract, the VA is the villain here; requiring the Debtors to purchase (on credit) and stockpile inventory which the VA then failed to actually buy (as noted above, that unbought inventory is valued by the Debtors at a modest $5.0mn).
How and why was a major supplier of medical equipment (Wynnchurch describes its portfolio company as "a premier supplier to the surgical and medical industry that serves both the acute care and alternate site markets, including key facilities of the U.S. Government") which (i) had risen from relative obscurity (beginning with a "one bay door warehouse") to land a five-year contract with the federal government worth $1.2bn and which (ii) sat comfortably between the U.S. Government and an extensive network of trade suppliers, felled by COVID-19 rather than being in a position to benefit from a global scramble for medical supplies, notably by its largest client, during an historically unprecedented pandemic?
How did the Debtors end up owing trade creditors $51.0mn in respect of medical supplies which they were charged with sourcing for a very large, repeat business client (the U.S. Government representing 85% of the Debtors' business)?
According to the Gerrard Declaration, in 2016, the VA awarded the Debtors a "Next Generation Medical Surgical Prime Vendor Contract ('MSPV NG Contract' or 'NG Contract') to service 70 hospitals along the east coast of the United States with an estimated value of $1.2 billion over five years.
Until late August of 2020, approximately eighty-five (85%) of the Debtors’ business came from government awarded contracts with the remaining 15% involving non- governmental group purchasing organization (‘GPO’) awards and Alternate Site operations. The Debtors, through AMD and AMD PA, provided services through four principal lines of business…
As of late August 2020 through present, the Debtors no longer operate any of the four lines of business and, rather, have focused exclusively on selling their assets and collecting accounts receivable in order to, among other things, pay down their secured debt in accordance with their loan documents."
The Declaration continues: "The Debtors have experienced significant delays in collecting accounts receivable and in selling inventory due to the negative economic impact of Covid-19 on the healthcare products distribution industry commencing in the second calendar quarter of 2020 and continuing thereafter. Significantly, a material percentage of voluntary and non-emergency surgical and medical procedures has been cancelled or indefinitely deferred during this period, and this has materially reduced the payment and purchasing performance of the Debtors’ customers.
Additionally, in 2016, AMD was awarded and began performing under the VA’s MSVP NG Contract, which lapsed on April 1, 2020, but was to include two additional bridge contracts emanating therefrom; one to end in September 2020 and the other to end in March of 2021. The VA, however, chose to terminate the first bridge contract effective August 1, 2020, about 2 ½ months early. Under the NG Contract and bridge contract, AMD was required to maintain necessary inventory levels to provide the required supplies to participating VA facilities. That meant that after the VA reviewed and approved usage amounts of products on a monthly basis, AMD was required to purchase the inventory using its bank credit and store it in its warehouses until the VA facilities affirmatively ordered the products for delivery. With increasing frequency, however, the VA facilities failed to purchase the inventory that they forecasted was needed. Consequently, AMD’s operations and finances were severely impacted because AMD utilized about $17 million of its working capital line of credit for purchases of inventory. Much of that inventory remains stockpiled at Debtors’ distribution centers and, thus, is not being sold at the wholesale prices anticipated, while the Debtors continue to pay interest to the bank on the debt they incurred for those inventory purchases."
About the Debtors
According to the Debtors [the Debtors' website not functioning as at the Petition date]: “AMD is a premier supplier to the surgical and medical industry that serves both the acute care and alternate site markets, an increasingly important capability as healthcare providers build integrated delivery networks. The company has operations and warehouse locations in Miramar, FL, Tampa, FL, King of Prussia, PA, Schenectady, NY, Whitsett, NC and Puerto Rico. The company has approximately 180 employees, 3,000 customers, 2,000 suppliers and offers 400,000 SKUs.
Corporate Structure Chart
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