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January 28, 2021 – The Debtors filed a motion requesting each of a bidding procedures order and a sale order [Docket No. 197]. The bidding procedures order would (i) approve proposed bidding procedures, including bidder protections, in respect of a sale of substantially all of the Debtors' assets, (ii) authorize the Debtors to enter into stalking horse arrangements and (iii) approve a proposed auction/sale timetable culminating in a March 9, 2021 auction and a March 10, 2021 sale hearing.
Although a stalking horse has yet been named and this is nominally still an open sale process, the Debtors have prepetition lender CrowdOut Capital LLC ("CrowdOut") waiting in the wings should no better stalking horse candidate emerge by February 17, 2021. Further to a proposed, but not yet finalized term sheet, CrowdOut has agreed to credit bid up to $34.4mn ($21.2mn of prepetition debt and up to $11.2mn of DIP debt; [less than $2.0mn of the DIP has been drawn to date]) for the Debtors' assets with bidder protections including an amount equal to 2% of the new money, DIP financing. CrowdOut has also committed to providing $500k for general unsecured creditors and $500k for wind-down expenses.
Marketing Process and CrowdOut Stalking Horse Role
The Debtors’ request motion states, “In fall 2020, prior to the Petition Date, the Debtors’ former investment banker, PJ Solomon (‘PJS’) ran a robust marketing process (the “Prepetition Marketing Process”). Indeed, PJS contacted 168 parties with information regarding the sale of the Debtors’ Assets. At that time, six (6) parties submitted indications of interest with respect to the Assets.
On January 7, 2021, the Debtors retained SSG Advisors LLC (‘SSG’) as the Debtors’ investment banker….SSG and will continue to market the Debtors; assets for acquisition, either through a sale under Section 363 or through a plan.
Since the Petition Date, the key constituencies in these cases have worked diligently to formulate a path forward which is acceptable to all parties. Following extensive negotiations with these constituencies, including the Official Committee of Unsecured Creditors (the ‘Committee’) and CrowdOut Capital LLC (‘CrowdOut’), the Debtors’ prepetition and pospetition secured lender, with respect to a process for the sale of the Debtors’ Assets….The Debtors, the Committee and CrowdOut have agreed that, absent receipt of a better bid by February 17, 2021, that will provide a materially higher and better offer and otherwise qualifies as a Qualified Bid as set forth herein, Crowd Out’s bid, which shall automatically be deemed qualified as a Qualified Bid, will serve as the Stalking Horse Bidder, by and through which CrowdOut will provide the Debtors with a floor price for the Debtors’ Assets which may draw other bidders to the process and which guarantees a distribution to unsecured creditors as agreed between the Committee and CrowdOut.
Even if the Debtors are unable to locate a Stalking Horse Bidder other than CrowdOut or its designee, the Debtors, with the support of the Committee, believe that a robust marketing and sale process will benefit the estates by bringing additional bidders to an auction. The relief requested in this Motion is essential to ensure that the process is as competitive and robust as possible, and that the Debtors receive top dollar for their Assets. CrowdOut, has agreed on a term sheet (the ‘Stalking Horse Term Sheet’) with the Debtors and the Committee which provides for a floor bid for substantially all of the Debtors; assets. The Term Sheet allows for the Debtors to continue to market their Assets and obtain the highest and best offer. Should the Debtors not receive further bids, CrowdOut shall either (i) close the sale as set forth in the Stalking Horse Bid or (ii), at its sole election, opt to consummate the transaction through a debt for equity swap chapter 11 plan of reorganization on materially similar terms (the ‘Supporting Lender Plan Election’)… Ideally, the Debtors will be presented with a robust auction for their assets but even in the event that the marketing process does not result in additional bids, the Debtors will be able to consummate a sale to the Stalking Horse Bidder either though sale or a debt for equity swap plan of reorganization. Under any of these circumstances, the Debtors, their creditors, and their estates are being provided the maximum value for the Debtors’ assets.”
Key Terms of the Stalking Horse Term Sheet
- Seller: PBS Brandco, Inc. and each of its subsidiaries (which includes all of the Debtors).
- Buyer: CrowdOut Capital LLC or its designee, or a party that submits a bid materially higher than CrowdOut’s Qualified Bid.
- Purchase Price: Purchase Price” means a dollar amount at least equal to the sum of (i) the amount of the Prepetition Secured Debt (as defined in the DIP Credit Facility) estimated to be $21,194,462.39, plus (ii) the DIP Obligations estimated to be $11,212,000, plus the Assumed Liabilities (together, the “Base Purchase Price”).
The Purchase Price shall be satisfied as follows:
- The Base Purchase Price will be payable by a credit bid or assumption by the Buyer of (x) up to the full amount of the DIP Obligations, plus (y) up to the full amount of the Prepetition Liabilities, plus (z) CrowdOut’s fees and expenses under the Loan Agreement and the DIP Credit Facility; and
- The Assumed Liabilities shall be satisfied by assuming such Assumed Liabilities through one or more Assignment and Assumption Agreements or as otherwise required by an order of the Bankruptcy.
- Bidder Protections: Consist of a break-up fee equal to 2% of the total amount (including anticipated draws) under the DIP Facility if the Sale or the Plan Sponsor Transaction results in net proceeds to the Debtors’ estates in excess of the Stalking Horse Bid, plus up to $250,000 in reimbursement of actual expenses
- GUC Recovery and Wind-down Expenses: (i) Cash from CrowdOut in the amount of $500k (the “GUC Trust Distributable Cash”), which shall be escrowed by the GUC Trustee and used solely for distributions to unsecured creditors and (ii) Cash from CrowdOut in the amount of $500k for wind-down and litigation funding
Proposed Key Dates
- Deadline to Name Stalking Horse: February 17, 2021
- Bid Deadline: March 8, 2021
- Auction: March 9, 2021
- Sale Objection Deadline: March 8, 2021
- Sale Hearing: March 10, 2021
The Court scheduled a hearing to consider approval of the motion for February 8, 2021, with objections due by February 8, 2021.
About the Debtors
According to the Debtors: "Punch Bowl Social is the first experiential food and beverage brand to bring a made-from-scratch menu and craft beverages together with social gaming in one design-forward environment. Punch Bowl Social was named as one of Fast Company's 2019 Top 50 Most Innovative Companies in the World, a Nation's Restaurant News Hot Concept in 2018, among more than a dozen other national and regional awards. Punch Bowl Social serves weekend brunch, lunch, dinner and late-night snacks alongside a variety of creative punches, local microbrews and craft non-alcoholic beverages."
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