Bankrupt teen chain Aéropostale Inc. made good on its intent to file claims against private equity firm Sycamore Partners.
Late Friday, Aéropostale filed litigation against Sycamore in Manhattan bankruptcy court. The lawsuit was, in part, a maneuver to prevent Sycamore from credit bidding its claims to purchase the assets of the company. A credit bidding scenario would have Sycamore use the dollar value of its credit claims as part of a bid for the retailer. If successful, those claims in effect would be exchanged for an equity stake in the new post-bankruptcy entity.
A spokeswoman for Aéropostale said on Saturday that the company “continues to believe Sycamore Partners and its affiliates engaged in significant bad acts and inequitable conduct, including breach of contract, deliberately forcing Aéropostale into bankruptcy.”
In the court filing, the retailer is also seeking to have those credit claims subordinated, a request that it said “is warranted because the lenders participated in inequitable and otherwise wrongful conduct, including participating in a ‘loan to own’ scheme designer to bankrupt the debtors.” And as an indication of just how nasty the fight could become, Aéropostale also alleged in the court filing that “Sycamore traded stock while in possession of material nonpublic information.”
Presuming the parties do not find some way to settle their differences, the lawsuit promises to entail some significant mudslinging between the two antagonists. Sycamore said it intends to bring personal claims against the retailer’s officers, as well as fraud claims in connection with a liquidity covenant in the financial agreements tied to a $150 million prepetition loan provided by a Sycamore affiliate.
On Saturday, a Sycamore spokesman said of Aéropostale’s filing, “These claims are without merit and include numerous allegations that are nothing more than irresponsible fabrications. Sycamore looks forward to defeating Aéropostale’s claims at a trial on Aug. 15. This is another in a series of desperate attempts by Aéropostale to try to shift the blame for its disastrous financial performance and the mismanagement of the company by its officers and directors.”
Sycamore’s spokesman also said the private equity firm “intends to pursue personal claims against Aéropostale’s officers and directors for their scheme to fraudulently conceal the company’s breach of its $150 million liquidity convenient during February 2016, self-dealing and breaches of their fiduciary duties to run an above-board sale process for the company.”
Sycamore at one point was the retailer’s largest shareholder. The private equity firm has two affiliates, sourcing firm MGF Sourcing and Aero Investors, a secured prepetition lender, that had relationships with the retailer. When Aéropostale filed for Chapter 11 on May 4, it claimed that deterioration of its relationship with Sycamore, particularly in connection with a dispute with MGF, played a role in pushing it into bankruptcy. Aero Investors provided Aéropostale a loan of $150 million.
Aéropostale said earlier this month it would not be able to file a plan of reorganization as a stand-alone company, but does intend to file a Chapter 11 plan that includes the sale of the company’s assets.
The Aéropostale spokeswoman said the chain is “actively speaking with a number of potential buyers interested in maintaining the Aéropostale brand and operating the business on a go-forward basis.” The schedule provides for all interested buyers to submit offers by Aug. 18. If there’s more than one offer, a competitive auction will be held on Aug. 22.
During the course of the bankruptcy, the dispute between MGF and Aéropostale was settled.
But one question that remains is whether the teen chain can really find a buyer that meets its requirements before deadline time. Time is running out — the chain has only three more weeks before it has to make a decision on what to do.