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PUBLIC NOTICE OF ARTICLE 9 SALE: Incipio, LLC and Related Entities

PUBLIC NOTICE OF UCC ARTICLE 9 SALE OF ASSETS OF INCIPIO, LLC AND RELATED ENTITIES

NOTICE IS HEREBY GIVEN that at 10:00 a.m. (Central Time) on July 26, 2021, Monroe Capital Management Advisors, LLC, as administrative agent for the lenders party thereto from time to time (collectively, the “Term Loan Lenders”), in such capacity and together with its successors and assigns (the “Secured Party Seller”) intends to offer to sell, or cause to be sold, at a public sale conducted under and pursuant to Section 9-610 and other applicable provisions of the Uniform Commercial Code (as enacted in all applicable jurisdictions, the “UCC”), at the offices of McDonald Hopkins LLC, 300 N. LaSalle Dr. #1400, Chicago, Illinois 60654, or via videoconference or telephonically, and in a manner to be determined by Secured Party Seller (the “Sale”), all right, title, and interest of Incipio, LLC, a Delaware limited liability company (“Incipio”), Incase Designs Corp., a California corporation (“Incase”), and Griffin Technology, LLC, a Delaware limited liability company (“Griffin”), each as a borrower and the other borrowers from time to time party thereto (collectively, the “Term Loan Borrowers” or the “Companies”) in, under, and to the Sale Assets. The Sale Assets may be sold in one or more lots as part of the Sale as Secured Party Seller may determine in its discretion. The Sale Assets may be subject to certain additional inclusions to be negotiated with Secured Party Seller, and certain exclusions as Secured Party Seller may determine in its sole discretion.

Sale Assets” means all properties, rights, titles and interests of every kind and nature, owned, licensed or leased by the Companies that the Secured Party Seller has security interests in and are capable of being conveyed pursuant to Article 9 of the UCC, whether tangible or intangible, real or personal and wherever located and by whomever possessed, including without limitation:

    1. All Goods,1 Accounts (including health-care insurance receivables), Equipment, Inventory, owned intellectual property, leases, contract rights, or rights to payment of money, General Intangibles, Commercial Tort Claims, Documents, Instruments (including any promissory notes), Chattel Paper (whether tangible or electronic), cash, Deposit Accounts, Securities Accounts, Fixtures, Letter of Credit Rights (whether or not the letter of credit is evidenced by a writing), Securities, and all other Investment Property, Supporting Obligations, and Financial Assets, whether now owned or hereafter acquired, wherever located;
    2. All of each Company’s books and records relating to any of the foregoing; and
    3. Any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, Products, Proceeds and insurance proceeds of any or all of the foregoing.

Secured Party Seller has designated Armor Acquisition LLC (the “Stalking Horse Bidder”) as the stalking horse bidder to purchase the Sale Assets at, and for all purposes of, the Sale and the bidding procedures related thereto. Secured Party Seller reserves the right, in its sole discretion, to designate another stalking horse bidder prior to the auction. The Stalking Horse Bidder shall be deemed to be a qualified bidder that has submitted a qualified bid for all purposes. Stalking Horse Bidder’s qualified bid consists of the following: (i) payment to Secured Party Seller, for the benefit of the Term Loan Lenders on account of the Term Loan Obligations (as defined in the Term Loan Credit Agreement) owing to Term Loan Agent and the Term Loan Lenders by the Companies, an amount equal to the Term Loan Obligations (as defined in the Term Loan Credit Agreement, but an amount not less than $135,816,379.00, in the form of cash or non-cash proceeds); and (ii) payment to Revolving Loan Agent, for the benefit of the Revolving Loan Lenders (defined below) on account of the Revolving Loan Obligations (as defined in the Revolving Loan Credit Agreement) owing to Revolving Loan Agent and the Revolving Loan Lenders by the Companies, an amount equal to the Revolving Loan Obligations (as defined in the Revolving Loan Credit Agreement, but an amount not more than $20,000,000.00, in the form of cash or non-cash proceeds), with the consent of Revolving Loan Agent; and (iii) assumption of liabilities under leases and other contracts that will be assigned to Stalking Horse Bidder and that Stalking Horse Bidder will assume on and/or after the closing of the Sale. Secured Party Seller reserves the right to credit bid for and purchase the Sale Assets and to credit the purchase price therefrom against the respective debts owing to it from each Company.

Incipio, Incase, and Griffin, as borrowers, and Incipio Technologies, Inc., as guarantor, are indebted to MidCap Funding IV Trust, a Delaware statutory trust, as successor-by-assignment to MidCap Financial Trust (as agent for the Revolving Loan Lenders (defined below) the “Revolving Loan Agent,” and individually, as a Revolving Loan Lender), and the other financial institutions or other entities from time to time parties to the Revolving Loan Credit Agreement (each a “Revolving Loan Lender” and collectively, the “Revolving Loan Lenders”), in a principal amount of not more than U.S. $20,000,000.00, as a result of certain revolving loans made pursuant to that certain Amended and Restated Credit and Security Agreement, dated as of May 21, 2019 (as amended, modified, supplemented, and restated from time to time, the “Revolving Loan Credit Agreement”) (and subject to increase on a daily basis pursuant to the terms of the Revolving Loan Credit Agreement). Revolving Loan Agent has continuing first-priority security interests in, and liens on, among other things, the Sale Assets to secure the timely payment and performance of the Companies’ obligations pursuant to the Term Loan Credit Agreement. Incipio, Incase, and Griffin, as borrowers, and Incipio Technologies, as guarantor, are also indebted to the Term Loan Lenders in a principal amount of not less than U.S. $135,816,379.00, as of June 30, 2021, pursuant to that certain Amended and Restated Credit and Security Agreement, dated as of May 21, 2019 (as amended, modified, supplemented, and restated from time to time, the “Term Loan Credit Agreement”) (and subject to increase on a daily basis pursuant to the terms of the Term Loan Credit Agreement). Secured Party Seller has continuing second-priority security interests in, and liens on, among other things, the Sale Assets to secure the timely payment and performance of the Companies’ obligations under the Term Loan Credit Agreement. The Companies are in default of their obligations under both the Term Loan Credit Agreement and the Revolving Loan Credit Agreement, and Revolving Loan Agent has consented to Secured Party Seller’s sale of the Sale Assets subject to certain conditions and requirements.

As contemplated by Section 9-617 of the UCC, the Sale Assets will be sold free and clear of Secured Party Seller’s liens on the Sale Assets sold at the Sale and any subordinate security interests in the Sale Assets. The Sale is under and subject to Revolving Loan Agent’s consent and its existing and continuing first-priority perfected liens on the Sale Assets sold at the Sale, and must provide for payment in full of all Revolving Loan Obligations (as defined in the Revolving Loan Credit Agreement), the termination of all commitments to lend of Revolving Loan Agent and the Revolving Loan Lenders, and for the cancelation of all letters of credit issued by a Revolving Loan Lender.

Secured Party Seller 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 Seller and Revolving Loan Agent, respectively, hereby reserve all of their rights and remedies against the Companies and any other obligors for any and all deficiencies with respect to the Term Loan Obligations (as defined in the Term Loan Credit Agreement), and the Revolving Loan Obligations (as defined in the Revolving Loan Credit Agreement), respectively, remaining after the consummation of the Sale.

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 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 SELLER AND THE TERM LOAN LENDERS DISCLAIM ANY AND ALL REPRESENTATIONS, GUARANTEES AND WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING ANY AND ALL REPRESENTATIONS, GUARANTEES, AND WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF QUIET ENJOYMENT, TITLE, POSSESSION, AND THE LIKE. NEITHER SECURED PARTY SELLER NOR ANY TERM LOAN LENDER WILL BE, NOR WILL BE DEEMED TO BE, LIABLE OR OBLIGATED IN ANY MANNER WHATSOEVER FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER. NEITHER SECURED PARTY SELLER NOR ANY TERM LOAN LENDER WILL INCUR ANY FEES, COSTS OR EXPENSES, OR BE LIABLE OR RESPONSIBLE IN ANY MANNER FOR ANY OBLIGATIONS, WHATSOEVER WITH RESPECT TO, OR RELATED TO, THE TRANSFER, DELIVERY, OR PERFORMANCE OF ANY OF THE SALE ASSETS.

The Sale is subject to certain bidding procedures, and any prospective bidder must enter into a confidentiality agreement in order to be eligible to receive any due diligence materials, the bidding procedures, or to become a qualified bidder in order to participate and bid at the Sale. The bid deadline is July 23, 2021 at 10:00 a.m. Central Time. Potential bidders must contact Livingstone Partners, LLC, attention Joseph Greenwood, 443 North Clark, Chicago, Illinois 60654, (312) 670-5913 or via email at [email protected] to obtain the updated amounts due pursuant to the Revolving Loan Obligations and the Term Loan Obligations, the form of confidentiality agreement, and the bidding procedures.


1 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Term Loan Financing Documents.

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