NOTICE OF PUBLIC SALE
BY ORDER OF THE ASSIGNEE FOR THE BENEFIT OF CREDITORS OF
DABECCA NATURAL FOODS, INC.
700 W 107th St.
CHICAGO, IL 60628
SALE OF ASSETS: Notice is hereby given that on May 25, 2022 at 2:00 pm, CDT (the “Date of Sale”), in the offices of Rally Capital Advisors, 350 N LaSalle St., Suite 1100, Chicago, IL, Howard B. Samuels, not individually, but solely as Assignee for the Benefit of Creditors (the “Assignee” or “Seller”) of DaBecca Natural Foods, Inc. (“DaBecca Natural Foods, Inc.”) shall hold a public auction (“Auction”) in accordance Illinois law and other applicable laws to offer for sale substantially all assets of DaBecca Natural Foods, Inc. (collectively the “Sale Assets”) including all of 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: all of the tangible personal property owned by DaBecca Natural Foods, Inc. and used by DaBecca Natural Foods, Inc. in or necessary for the operation of business, including the equipment, furniture, fixtures, machinery, vehicles, office furnishings, and leasehold improvements; all of Seller’s rights, to the extent assignable or transferable, to all business permits; all contracts (including personal property leases), agreements, or purchase orders including any prepaid expenses and any security or other deposit; all inventory, wherever located, arising out of, relating to or used in connection with the business, including all raw materials, packaging, labeling, spare parts, and all other materials and supplies to be used or consumed in the production of finished goods and finished goods inventory (collectively, the “Purchased Inventory”); all billed and unbilled accounts receivable, and all other amounts, due and payable, including all trade accounts receivable, notes receivable, and all other similar obligations, and any security, claim, remedy, or other right related to any of the foregoing (collectively, the “Purchased Accounts Receivable”); all documents, records, correspondence, work papers and other documents relating to the Purchased Accounts Receivable or otherwise arising out of, relating to or used in connection with the Business; all prepaid expenses, refunds, rebates, credits or payments due, and all utilities or other deposits, including deposits with third parties, arising out of or related to the business or any of the assets; DaBecca Natural Foods, Inc.’s (i) website(s) (together with the content therein) and internet domain name registrations, (ii) trademarks and service marks, including all common law rights, state, federal, and/or foreign applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, (iii) copyrights, including all applications and registrations, and works of authorship, whether or not copyrightable, (iv) trade secrets and confidential know-how, (v) patents and patent applications, and (f) other intellectual property and industrial property rights and assets, and all rights, interests, and protections, whether statutory or under common law, that are associated with, similar to, or required for the exercise of, any of the foregoing; the telephone and facsimile numbers used with respect to the operation of the business; all rights to receive and retain mail and other communications relating to the assets, the assumed contracts and, to the extent not covered by the foregoing, the business; all rolling stock and other vehicles owned by DaBecca Natural Foods, Inc., and repair and replacement parts; all account, product, merchant or wholesaler codes, designations or similar identification of DaBecca assigned by any retailer; all of DaBecca Natural Foods, Inc.’s rights under claims, warranties, indemnities, guarantees, refunds, causes of action, rights of recovery, rights of set-off, and rights of recoupment of every kind and nature with respect to the assets; all of DaBecca Natural Foods, Inc.’s rights and interests in inventory of advertising, sales and customer materials, forms, labels, promotional materials, manuals and supplies used in the operation of the business; all of DaBecca Natural Foods, Inc.’s rights and interests in books, records, files, documents, computer programs, computer records, data and proprietary information relating to the assets including DaBecca Natural Foods, Inc.’s accounting and financial books and records; all of DaBecca Natural Foods, Inc.’s rights under claims, warranties, indemnities, deposits, guarantees, refunds, causes of action, rights of recovery, rights of set-off, and rights of recoupment of every kind and nature with respect to the assets; all rights in or to the name “DaBecca Natural Foods”; all rights to bring or assert any preference claim, action, or other proceeding related to any of the purchased contracts; and all goodwill and going concern value associated with the business.
TERMS AND CONDITIONS: The Sale Assets sold or 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. Assignee is not transferring or selling herein any leased property, whether real or personal, whether evidenced by a true lease or a capital lease (unless the lessor so consents). The Seller reserves the right, on or prior to the Date of Sale, 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 Seller deems appropriate, to reject any bids or continue the sale (whether for all of the Assets or separate lots) without prior notice.
On May 4, 2022, the Assignee received and accepted an Asset Purchase Agreement (“APA”) from an unrelated third party purchaser (“Buyer”), for the Assignee’s right, title and interest in and to the Sale Assets (the description of the assets being purchased is set forth in detail in the APA, in a single lot for a price of Twelve Million Five Hundred Thousand Dollars ($12,500,000), plus the amount (if any) by which the estimated receivables and inventory value is greater than Six Million Four Hundred Twenty-Five Thousand Dollars ($6,425,000) and reduced by the amount that the accounts receivable and inventory are less than $6,425,000 on a dollar for dollar basis. The APA will be subject to the Assignee’s right to receive a higher and better bid from a qualified purchaser at the Auction. To be a qualified purchaser, a party must, no later than 5:00pm CDT on May 23, 2022, submit to the Assignee a cash deposit (the “Deposit”) in the amount of One Hundred Thousand Dollars ($100,000) and a fully executed subsequent offer (“Subsequent Offer”). Any Subsequent Offer from a qualified purchaser must include: (a) all terms and conditions set forth in the APA; plus (b) additional cash totaling $450,000, comprised of a break-up fee of $350,000 plus an initial overbid of $100,000. The Seller reserves the right to determine the qualifications of any qualified purchaser including the ability to close the transaction on the terms and conditions referenced herein. All bidding for the Sale Assets shall be conducted in the same room or remotely with the identity and bid terms of all bidders fully disclosed and on the record, as recorded by a court reporter. All subsequent overbids shall be at least One Hundred Thousand Dollars ($100,000) greater than the then prevailing bid in the Auction; provided however, the Seller reserves the right to change the minimum overbid from time to time during the Auction. At the conclusion of the Auction, the Seller shall declare on the record which bid has been declared the highest and best bid accepted and shall recite the terms of the winning bid into the record with the concurrence of the prevailing bidder. The balance of the purchase price must be paid to the Seller within two (2) business days after the Auction. If the successful bidder fails to pay the balance of its successful bid, then its Deposit will be forfeited and the Assets may, at the Seller’s option, be sold to the next highest bidder without prejudice to or waiver of the Seller’s rights and remedies against the defaulting highest bidder. The Seller reserves the right to adjourn the sale from time to time without further notice except as announced at the Auction. Every qualified purchaser who participates in the Auction, including the Buyer, accepts the terms and conditions provided for herein as well as the APA and have agreed to these terms and conditions.
For further information regarding the Assets and to arrange for an inspection of the Sale Assets, please contact Assignee as follows:
Howard B. Samuels, Esq., Assignee
Jeffrey D. Samuels
Rally Capital Advisors, LLC
350 North LaSalle St., Suite 1100
Chicago, IL 60654
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