PUBLIC NOTICE OF ARTICLE 9 SALE: EFSWW, LLC, EFreight, LLC, et al.

NOTICE OF PUBLIC DISPOSITION OF COLLATERAL UNDER UNIFORM COMMERCIAL CODE

1. Executive Summary. This is notice of the intention to offer to sell, or cause to be sold, at a public sale conducted in accordance with Article 9 of the Uniform Commercial Code, as enacted in all applicable jurisdictions (“UCC“), and of the invitation to potential buyers to bid at such sale (“Sale”).

2. Date & Location of Sale. August 20, 2020 at 12:00 p.m. (Central Time), at the offices of Goldberg Kohn Ltd., located at 55 E. Monroe, Ste. 3300, Chicago, IL 60603.

3. Name of Companies. EFREIGHT, LLC, EFSWW, LLC (“Borrower“), Cartage Now, LLC, Archgate TMS, LLC, You & I Logistics, LLC, ExactDirect, LLC, efreightsolutions, LLC, and Efreightsolutions Holdings, LLC (“Holdings“) (collectively, “Companies“).

4. Name of Secured Party. Accel-KKR Credit Partners SPV, LLC (“Secured Party“).

5. Asset to be Sold. All of the Companies’ right, title, and interest of in, under, and to the Collateral Assets (as defined below) (collectively, “Sale Assets”); provided, however, unless otherwise expressly agreed to by Secured Party, in writing, in its sole discretion, the Sale Assets expressly exclude the Excluded Assets (as defined below).

6. Collateral Assets. Subject to the terms herein (capitalized terms used but not otherwise defined in this paragraph have the meanings given to them in the Security Agreement (defined below)): (i) “Collateral Assets” means and refers to, collectively, the Collateral other than the Excluded Assets (as defined below), including all Accounts, Books, Chattel Paper, Equipment, Farm Products, Fixtures, General Intangibles, Inventory, Investment Property, Intellectual Property (including all Patents, Copyrights, Trademarks, trade secrets, know-how, inventions, algorithms, software programs (including all source code and object code), processes, data, customer lists, URLs and domain names, specifications, documentations, reports, literature, and any other forms of technology or proprietary information of any kind, including all rights therein), Intellectual Property Licenses, Negotiable Collateral, Pledged Interests, Securities Accounts, Supporting Obligations, and products and Proceeds of the foregoing, in each case, capable of being sold by Secured Party pursuant to Section 9-610 and other provisions of the UCC; and (ii) “Excluded Assets” means and refers to, collectively, (a) any non-assignable, non-transferrable right of any Company under any Designated Agreement (as defined below), (b) any securities, (c) any money, cash, and Cash Equivalents, (d) any claims or causes of action of any kind against Secured Party, any of its affiliates, and various related parties, (e) any Commercial Tort Claims, other claims, and causes of action of any kind of any Company, including any claims or causes of action against any of the Companies’ respective officers, directors, or employees or any of their respective affiliates or insiders, (f) any insurance policies and Proceeds, including any unearned premiums, (g) any Deposit Accounts, and (h) any assets not capable of being sold by Secured Party pursuant to Section 9-610 and other provisions of the UCC. Notwithstanding anything herein to the contrary, Secured Party may, in its sole discretion, elect to include any of the Excluded Assets in any credit bid by Secured Party or its designee for all or any portion of the Sale Assets.

7. How to Bid. Any prospective bidder must provide written notice to Secured Party and Grantors’ sale advisor, MCA Financial Group, Ltd. (“MCA”), of its interest in qualifying to attend the Sale not less than three business days prior to the date of the Sale by contacting Zach Garrett of Goldberg Kohn Ltd., as counsel for Secured Party ([email protected]), and Stacie Witten (email: [email protected]) of MCA. Prospective bidders may obtain additional information regarding the Sale, including how to qualify for the Sale as a qualified bidder, by contacting Stacie Witten of MCA as set forth in the preceding sentence. Qualified bidders who desire to attend the Sale telephonically or by other means may discuss alternative accommodations with Secured Party.

8. Legal Basis for Sale. Pursuant to (i) that Credit Agreement dated December 3, 2018 (as modified from time to time, “Credit Agreement“), among Borrower, Holdings, and Secured Party, (ii) that Guaranty and Security Agreement dated December 3, 2018 (as modified from time to time, “Security Agreement“), made by each Company, in its capacity as a grantor (collectively, “Grantors“), in favor of Secured Party, and (iii) the other “Financing Documents” (as defined in the Credit Agreement), Secured Party has extended secured loans to Borrower, and the Grantors have granted Secured Party continuing security interests in, and liens on, among other things, the Sale Assets to secure the full payment and performance when due of all “Liabilities” (as defined in the Credit Agreement) under the Credit Agreement and the other Financing Documents. As of August 3, 2020, the aggregate amount owed by the Borrower and the other Grantors under the Financing Documents is not less than $15,700,000. Each Grantor is in default of such Liabilities under the Credit Agreement and the other Financing Documents.

9. Additional Information.

1. The Sale Assets may be sold in one or more lots as part of the Sale as Secured Party may determine in its discretion, and the Sale Assets may be subject to certain additional inclusions and exclusions to be negotiated with Secured Party.
2. THE SALE OF ANY SALE ASSETS EXPRESSLY EXCLUDES CERTAIN RIGHTS UNDER LEASES AND OTHER AGREEMENTS. On information and belief, the Companies currently operate pursuant to one or more non-residential leases of commercial property and other agreements, documents and instruments (collectively, “Designated Agreements“). No rights under any Designated Agreement are or will be included in the Sale Assets, except to the extent that any such rights are assignable under applicable law, including with the consent of the non-Company party as may be required.
3. THE SALE ASSETS ARE AND WILL BE OFFERED FOR PURCHASE AT THE SALE ON AN “AS IS, WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY RECOURSE, REPRESENTATION, GUARANTEE, OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION, GUARANTEE, OR WARRANTY AS TO, OR RELATING TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, POSSESSION, OR THE LIKE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SECURED PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS, GUARANTEES AND WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY AND ALL REPRESENTATIONS, GUARANTEES AND WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF QUIET ENJOYMENT, TITLE, POSSESSION, AND THE LIKE. SECURED PARTY WILL NOT BE, AND WILL NOT BE DEEMED TO BE, LIABLE OR OBLIGATED IN ANY MANNER WHATSOEVER FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER. SECURED PARTY WILL NOT INCUR ANY FEES, COSTS OR EXPENSES, OR BE LIABLE OR RESPONSIBLE IN ANY MANNER FOR ANY LIABILITIES, WHATSOEVER WITH RESPECT TO, OR RELATED TO, THE TRANSFER, DELIVERY, OR PERFORMANCE OF ANY OF THE SALE ASSETS.
4. Secured Party expressly reserves the right, in its sole discretion, to withdraw all or any portion of the Sale Assets from the Sale at any time. In all events, Secured Party, or its designee, may credit bid all or any portion of the Liabilities at the Sale, and reserves the right to provide financing to any bidder in its sole discretion. Secured Party, or its designee, will be deemed to be a qualified bidder at the Sale.
5. Secured Party expressly reserves the right, in its sole discretion, to cancel the Sale at any time, or to cause the Sale to be adjourned from time to time, without further notice or publication other than by announcement at or prior to the Sale. Secured Party reserves all of its rights against the Grantors and any other obligor for any and all deficiencies with respect to the Liabilities remaining after the Sale. Secured Party will apply the sale proceeds received for the Sale Assets at the Sale in accordance with the terms of the Financing Documents and applicable law. Grantors are entitled to an accounting of the unpaid indebtedness owing by Grantors to Secured Party, which accounting may be obtained free of charge by contacting Secured Party through its counsel.
6. Subject to the terms and conditions hereof, the Sale Assets will be offered and sold at the Sale for cash only unless otherwise expressly agreed to in writing by Secured Party in its sole discretion. All offers must contain no contingencies that are unsatisfactory to Secured Party in its discretion, and all offers will be subject to such other or additional bid procedures as Secured Party may establish or otherwise announce from time to time in its discretion.