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Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 1 of 23 Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 1 of 23 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE Chapter 11 In re: Case No. 20-11043 (MFW) John Varvatos Enterprises, Inc., et al.,1 (Jointly Administered) Debtors. Re: Docket No. 21 OBJECTION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO DEBTORS’ MOTION FOR AN ORDER (A) APPROVING THE SALE OF THE DEBTORS’ ASSETS FREE AND CLEAR OF CLAIMS, LIENS, AND ENCUMBRANCES; AND (B) APPROVING THE ASSUMPTION AND ASSIGNMENT OF DESIGNATED EXECUTORY CONTRACTS AND UNEXPIRED LEASES The Official Committee of Unsecured Creditors (the “Committee”) of John Varvatos Enterprises, Inc., et al., the above-captioned debtors and debtors-in-possession (collectively, the “Debtors”), by and through its undersigned counsel, hereby files this objection (the “Objection”) to the Debtors’ Motion for an Order (A) Approving the Sale of the Debtors’ Assets Free and Clear of Claims, Liens, and Encumbrances; and (B) Approving the Assumption and Assignment of Designated Executory Contracts and Unexpired Leases (the “Motion”).2 In support of this Objection, the Committee respectfully states as follows: PRELIMINARY STATEMENT 1. The proposed sale of the Debtors business to Lion/Hendrix Cayman Limited (“LHCL”), the Debtors’ equity holder, should not be permitted. Sufficient cause exists for this Court to immediately limit LHCL’s credit bid rights to ensure viable third-party bidders 1 The Debtors in these cases are as follows: John Varvatos Enterprises, Inc.; Lion/Hendrix Corporation; and John Varvatos Apparel Corp. 2 Docket No. 21. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Motion. Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 2 of 23 can participate in the sale process. The LHCL bid proposal is premised on a $76 million credit bid that cannot withstand scrutiny. Contemporaneously with the filing of this Objection, the Committee has requested standing to pursue recharacterization of the entirety of LHCL’s purported prepetition secured debt. The Committee has attached to that motion and to this Objection a detailed complaint (the “Committee Complaint”)3 setting forth the undisputable facts that support recharacterization. 2. As detailed in the Committee Complaint, each cash advance comprising LHCL’s alleged secured claim bears all the hallmarks of an equity infusion. Although nominally called “promissory notes,” they were never considered true debt instruments by LHCL or Lion Capital. Contemporaneous unequivocally acknowledge the nature of these contributions as equity and demonstrate that LHCL and Lion Capital never considered these advances as debt. 3. Importantly, as the Debtors finances continued to deteriorate. The Debtors were always thinly capitalized and LHCL, as the direct and indirect owner of the Debtors, and by extension Lion Capital, as the ultimate owner of the Debtors, had a vested interest in infusing equity into the Debtors to avoid a value-destroying liquidation. LHCL was even willing to subordinate its advances to the secured claims of third parties to protect its investment. LHCL never had any expectation of repayment other than through a sale. LHCL’s continued capital contributions as the company’s prospects floundered were solely intended to safeguard their investment and came with numerous conditions regarding the management of the Debtors. 3 The Committee Complaint is annexed hereto as Exhibit A. 2 Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 3 of 23 4. Ultimately, Lion Capital’s insistence on documenting these capital contributions as debt through its complete control of the Debtors decision making process was intended to do exactly what equity dictates against – providing an inappropriate priority in the event of the inevitable bankruptcy of the Debtors. The inappropriate credit bid also serves to chill the bidding process. The evidence supporting recharacterization is clear and provides sufficient cause for this Court to limit LHCL’s credit bid rights in advance of the bid deadline to ensure third parties have a real opportunity to submit bids and participate at an auction. 5. Recharacterization aside, LHCL improperly seeks to credit bid for unencumbered assets against which it does not have liens or liens that were not properly perfected. These assets include approximately $350,000 in unencumbered bank accounts, potentially valuable leasehold interests, commercial tort claims, foreign intellectual property, and avoidance actions. 6. Lastly, the Lion APA threatens to leave the estates administratively insolvent. While the bid provides for a $2 million wind down fund, LHCL is not assuming any pre-closing administrative or priority claims, aside from cure claims. Yet the Debtors’ Schedules reflect $1.9 million in unsecured priority claims and it is unlikely that the $100,000 cushion will be sufficient to cover stub rent, priority tax claims, and the priority claims of employees that are not transferred to LHCL. Unsecured creditors, however, are slated to receive a mere $250,000 on a claims pool that exceeds $26 million. 7. In short, the sale process was designed for and dictated by LHCL and Lion Capital for their benefit. If these parties want to receive the benefit of their investment, they must pay the freight and ensure that all administrative and priority claims are satisfied. 3 Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 4 of 23 BACKGROUND I. Procedural Background 8. On May 6, 2020 (the “Petition Date”), each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code with this Court. Since the Petition Date, the Debtors have remained in possession of their assets and have continued to operate and manage their businesses as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. 9. On May 18, 2020, the Office of the United States Trustee for Region 3 appointed a five-member Committee consisting of: (i) Tessa Knox, as the class representative of the class action claimants; (ii) Vornado Realty Trust; (iii) Verde Garment Manufacturing Limited; (iv) Meenakshi India Limited; and (v) L Industries Limited.4 The Committee selected Kelley Drye & Warren LLP as its lead counsel and Potter Anderson & Corroon LLP as local counsel. II. The Debtors’ Capital Structure 10. As of the Petition Date, Debtors John Varvatos Enterprises, Inc. (“JVE”) and John Varvatos Apparel Corp. (“JVA”) were parties to a senior secured credit agreement dated April 22, 2019, with Wells Fargo Bank, National Association (“Wells Fargo”) as agent, and the lenders party thereto (the “Wells Fargo Facility”). Debtor Lion/Hendrix Corporation (“LHC”) guaranteed the Debtors’ obligations under the Wells Fargo Credit Facility. As of the Petition Date, the Debtors owed Wells Fargo $19.5 million under the Wells Fargo Facility. 11. The Debtors are also party to five subordinated secured promissory notes issued in favor of LHCL. LHCL directly and indirectly owns each of the Debtors. London- 4 Docket No. 94. 4 Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 5 of 23 based private equity fund, Lion Capital LLP (“Lion Capital”), is the indirect majority owner of LHCL and ultimately owns 100% of the Debtors’ equity. 12. The five promissory notes are as follows: (i) a Second Amended and Restated Tranche A Joint and Several Secured Non- Negotiable Promissory Note, dated as of February 5, 2020 (the “Tranche A Note”) by JVE and JVA in favor of LHCL, and guaranteed by LHC; (ii) a Second Amended and Restated Tranche B Joint and Several Secured Non- Negotiable Promissory Note, dated as of February 5, 2020 (the “Tranche B Note”) by JVE and JVA in favor of LHCL, and guaranteed by LHC; (iii) a Second Amended and Restated Tranche C Joint and Several Secured Non- Negotiable Promissory Note, dated as of February 5, 2020 (the “Tranche C Note”) by JVE and JVA in favor of LHCL, and guaranteed by LHC; (iv) a Third Amended and Restated Tranche C-1 Joint and Several Secured Non- Negotiable Promissory Note, dated as of February 5, 2020 (the “Tranche C-1 Note”) by JVE and JVA in favor of LHCL, and guaranteed by LHC; and (v) a Tranche D Joint and Several Secured Non-Negotiable Promissory Note, dated as of February 5, 2020 (the “Tranche D Note” and together with the Tranche A Note, the Tranche B Note, the Tranche C Note and the Tranche C- 1 Note, the “Prepetition Notes”) by JVE and JVA in favor of LHCL, and guaranteed by LHC. 13. Pursuant to the DIP Order (as defined herein), the Debtors have stipulated to the validity of secured obligations totaling $94,779,483.00 under the Prepetition Notes.5 IV. Prepetition History A. The Initial Investments 14. In 2012, Lion Capital acquired the Debtors. Lion Capital’s total original capital investment in the Debtors was $ . Following the acquisition, the Debtors’ 5 Pursuant the DIP Order, the Debtors stipulate that as of the Petition Date: (i) the outstanding balance of the Tranche A Note is $14,249,161.38; (ii) the outstanding balance of the Tranche B Note is $32,526,639.94; (iii) the outstanding balance of the Tranche C Note is $15,840,297.53; (iv) the outstanding balance of the Tranche C-1 Note is $11,164,941.84; and (v) the outstanding balance of the Tranche D Note is $20,998,442.62. See DIP Order, ¶ J. 5 Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 6 of 23 performance was monitored by Lion Capital and 15. Contemporaneously with the acquisition, the Debtors entered into a 16. 17. 18. 19. 6 are annexed hereto as Exhibit B. 6 Case 20-11043-MFW Doc 338 Filed 07/16/20 Page 7 of 23 20. 21. 22. 23. B. The and the Prepetition Notes 24.
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