Ascend Wellness Files Lawsuit Against MedMen For New York Deal
Ascend Wellness Holdings, Inc. (CSE: AAWH.U) (OTCQX: AAWH) is ramping up its efforts to get MedMen (OTC: MMNFF) to complete the deal that the two companies had arranged with regards to the New York properties. On Friday, Ascend filed a complaint in the Commercial Division of the Supreme Court of the State of New York in New York County against MedMen NY, Inc. and MM Enterprises USA, LLC in which Ascend is trying to get MedMen to go through with the deal that MedMen is trying to get out of. In addition, AWH has made an application for a preliminary injunction and temporary restraining order to maintain the status quo between the parties and to prevent any actions by the MedMen parties that would result in additional encumbrances on the equity or assets of MedMen NY, Inc.
The Original Deal
The two companies had agreed in February of 2021 Ascend would invest $73 million in order to receive controlling interest in 86.7% of the company’s New York properties. In addition, Ascend had an option to purchase the remaining amount in the future. MedMen was in pretty bad shape at the end of 2020. The company was heavily in debt and its liabilities exceeded its assets by 50%. MedMen continued to lose money quarter after quarter and its operational costs exceeded 100% of its gross revenues making profitability an unlikely hope rather than a reality. Additionally, MedMen’s revenue was dropping and its losses increased quarter over quarter. MedMen spent much of 2020 attempting to restructure, sell its assets and renegotiate its many obligations. The company was also facing issues with its founders and a lawsuit by the company’s former Chief Financial Officer James Patterson, which MedMen won.
Ascend stepped in and gave MedMen some much-needed cash, including an upfront $4 million cash infusion in December 2020 in connection with the execution of a letter of intent between the parties and a further $4.46 million to cover MedMen’s working capital needs and Utica facility site improvements and expansion during 2021.
The deal though was contingent upon approval by the state of New York. MedMen submitted an application to the New York regulators as of March 11, 2021, for approval of the
sale of MedMen NY to Ascend. That application recited that MedMen needed an immediate cash infusion from Ascend to continue its operations. The process hit a snag when halfway through 2021, the state transferred oversight of the cannabis program from the Department of Health to the newly created Office of Cannabis Management (OCM). Ascend claims that MedMen did not pursue the state’s approval causing Ascend to step in and push the process along. Finally, the state gave its approval on December 16.
However, the use of the word “conditionally” in the approval caused MedMen to claim that the approval wasn’t final and so they could terminate the deal. According to the complaint, Ascend went back to the OCM and asked for clarification. The OCM stated that its approval was in fact final. Still, MedMen insisted it wasn’t and finally on December 29, the OCM contacted MedMen to say it was indeed final.
The deal stated that MedMen had to close within five days of receiving approval from the state of New York. Still, MedMen insists it didn’t get approval by December 31 even though the emails exist that prove it did. If that wasn’t bad enough, Ascend claims that MedMen NY paid an improper $500,000 dividend to its parent company, likely financed by advance dollars paid to MedMen by Ascend.
Ascend also stated in its complaint that MedMen NY has approximately $100 million dollars of loans for which MedMen NY capital stock has been pledged as collateral in the event of default. “These loans were made to the MM Enterprises’ subsidiary, MM Can USA, Inc. by Hankey Capital, LLC. Once the original deal closed, Ascend would issue to MedMen NY a promissory note in the amount of $28 million and that MedMen NY would subsequently assign the Closing Note to Hankey. Hankey would then release MedMen NY from any liability with the loan. The loans from Hankey are scheduled to come due on January 31, 2022, and February 1, 2022. “In the event of default on the MM Can loan agreements, Hankey is permitted
to foreclose on the pledged MedMen NY ownership interest and can sell the foreclosed upon interest at a public or private sale or retain the interest for its own account. In such event, an
order specifically enforcing MedMen NY’s obligation to close the Transaction will be meaningless.” MedMen agreed to the Hankey loan in 2018.
In other words, if MedMen defaults, then Hankey gets the stock and Ascend is left empty-handed.
In November, Michael Serruya was named Chairman and Interim CEO, effective immediately. Serruya succeeded outgoing Chairman and CEO Tom Lynch, who held the position since 2020 and oversaw the company’s operational turnaround. Serruya joined MedMen’s board in August 2021 as part of a $100 million investment in the company by Serruya Private Equity to expand its operations in key markets and identify and accelerate further growth opportunities across the United States. Some sources have speculated that Serruya believes the company sold the MedMen NY properties at a discount and that is the reason they want to terminate the deal. Essentially, the new management believes it could get more money for MedMen NY.
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