There will be a public auction (“Auction”) on Friday, January 31, 2020 at 2:00 pm, CST ( “Auction Date”) of substantially all of the assets of M&M Pump & Supply, Inc. (“M&M Pump”).
Location. The Auction will take place in the offices of Rally Capital Services, LLC, 350 North LaSalle St, Suite 1100, Chicago, IL 60654.
Seller. Howard B. Samuels, not individually, but solely as Assignee for the Benefit of Creditors of M&M Pump (“Assignee“) is the seller.
Assets to be Sold. As noted above, the Assignee will sell substantially all of the assets of M&M Pump (“Auction Assets”). The Auction Assets include all of the Assignee’s right, title and interest in and to all of its assets whether tangible or intangible, real or personal or mixed, owned or leased (including indirect and other forms of beneficial interest) wherever located and by whomever possessed including but not limited to:
(a) all tangible property, including but not limited to, cash, accounts receivable, office furniture, fixtures, computer hardware, machinery, equipment, goods, motor vehicles, leasehold improvements, inventory, work in process, tools, marketing records, customer lists, mailing lists, warranty records, sales literature and other sales aids, catalogs, accounting records, graphic materials, and pricing and information materials; and
(b) all intangible property, including but not limited to, all contract rights and interests, all intellectual property including, without limitation, copyrights, trademarks (common and registered), trade names, service marks, service names, licenses, patents, permits, websites, domain names, email addresses, proprietary information, technical information and data, electronic systems and processes and other similar intangible property rights and interests, computer software, telephone/fax numbers and telephone listings (to the extent assignable), trade accounts receivable, open orders, prepaid expenses, promissory notes, all possible causes of action, contingent and unliquidated claims, filed and unfiled choses in action and goodwill as set forth in the Asset Purchase Agreement.
A further description of the Auction Assets is set forth in detail in the APA (as that term is defined below).
Terms and Conditions: The Auction Assets to be sold are being sold as a single lot “As Is” and “Where Is” and with no express or implied warranties, representation, statements or conditions of any kind including but not limited to warranties of merchantability or fitness for a particular purpose and are to be sold in accordance with the terms and provisions set forth above and in accordance with applicable law.
The Assignee is not transferring or selling any leased property, whether real or personal, whether evidenced by a true lease or a capital lease (unless the capital lessor so consents). The Assignee reserves the right, on or prior to the Auction Date, to modify, waive or amend any terms or conditions of the sale or impose any other terms or conditions on the sale, and, if the Assignee deems appropriate, to reject any bids or continue the Auction (whether for all of the Assets or separate lots) without prior notice.
Stalking Horse Bid. On January 9, 2020, the Assignee received and accepted an Asset Purchase Agreement (“Stalking Horse APA”) from a related third party purchaser (“Stalking Horse Bidder”), for the Assignee’s right, title and interest in and to the Auction Assets, in a single lot for a price of $2,599,618.33 plus the assumption of certain of M&M’s obligations, pursuant to the APA, which obligations are expected to be approximately $600,000, plus all interim advances advanced by the Stalking Horse Bidder to operate the business from January 9, 2020 through the Auction Date (collectively “Stalking Horse Offer”).
The final Stalking Horse Offer will be determined prior to the Auction.
Bidding. The APA is subject to the Assignee’s right to receive a higher and better bid from a qualified bidder at the Auction. To be a qualified bidder, a party must, no later than noon CST on January 30, 2020 (“Bid Deadline”), submit to the Assignee a cash deposit (“Deposit”) of $300,000 and a fully executed asset purchase agreement which includes all of the terms and conditions set forth in the Stalking Horse APA except (a) the offered price must equal the sum (in cash) of: (i) the Purchase Price plus (ii) $60,000; and (b) any proposed modifications such potential qualified bidder proposes by highlighting such proposed modifications. If the proposed modifications are not acceptable to the Assignee, then the Assignee shall provide notice of such non-acceptance to such potential qualified bidder so that such potential qualified bidder may consider submitting a revised competing APA for the Assignee to consider.
The Assignee further reserves the right to determine, in its reasonable business judgment, the qualifications of any potential qualified bidder, including such party’s ability to close the transaction on the terms and conditions referenced herein. If the Assignee determines that no potential qualified bidder meets the requirements to be a qualified bidder, then the Assignee may cancel the Auction and sell the Auction Asset to the Stalking Horse Bidder. If the Assignee receives one or more bids from one or more qualified bidder(s), then the Assignee will conduct the Auction, with bidding starting with the Assignee asking parties in attendance if any of them wish to submit a subsequent overbid
All bidding at the Auction shall be conducted in the same room with the identity and bid terms of all bidders fully disclosed on the record as recorded by a court reporter. All subsequent overbids shall be at least $10,000 greater than the then-prevailing bid in the Auction. At the conclusion of the Auction, the Assignee shall declare on the record which bid has been declared the highest and best bid and shall accept such bid as the winning bid.
The Assignee shall recite the terms of winning bid into the record. The balance of the purchase price must be paid to the Assignee within 10 days after the Auction. If the winning bidder fails to pay the balance of the purchase price within such 10 days, then its Deposit will be forfeited and the Assets shall be sold to the next highest bidder without prejudice to, or waiver of, the Assignee’s rights and remedies against the defaulting winning bidder.
The Assignee reserves the right to adjourn the Auction from time to time without further notice except as announced at the Auction. Every qualified purchaser who participates in the Auction, including the winning bidder, accepts the terms and conditions provided for herein as well as in the Stalking Horse APA (or in any such competing APA as the Assignee may have agreed to by accepting the bid of such winning bidder).
For further information regarding the Assets and to arrange for an inspection of the Assets, please contact Assignee or
counsel for M&M Pump as follows:
Howard B. Samuels, Esq., Assignee
Daniel T. Lee; Jeffrey D. Samuels
Rally Capital Services, LLC
350 North LaSalle St., Suite 1100
Chicago, IL 60654
Attorney for Assignor
Eugene S. Kraus
Scott & Kraus, LLC
150 South Wacker Dr.,
Chicago, IL 60606
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