NOTICE IS HEREBY GIVEN that at 11:00 a.m. (Central Time) on March 12, 2021, MidCap Funding IV Trust, a Delaware statutory trust, as successor-by-assignment from MidCap Funding X Trust, as successor by assignment from MidCap Financial Trust, as agent for the below-referenced Lenders (“Agent”) intends 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”), at the offices of Goldberg Kohn Ltd., located at 55 E. Monroe, Ste. 3300, Chicago, IL 60603, virtually or telephonically in a manner to be determined by Agent (“Sale”), all right, title, and interest of the U.S. Borrowers in, under, and to the Sale Assets. The Sale Assets may be sold in one or more lots as part of the Sale as Agent may determine in its discretion. The Sale Assets may be subject to certain additional inclusions to be negotiated with Agent, and certain exclusions as Agent may determine in its sole discretion.
Subject to the terms herein (capitalized terms used but not otherwise defined in this paragraph have the meanings given to them in the Credit Agreement), “Sale Assets” means and refers to, collectively, the Collateral, including (a) all goods, Accounts, Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, commercial tort claims, documents, instruments, chattel paper, fixtures, letter of credit rights, securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; (b) all of each Credit Party’s books and records relating to any of the foregoing; and (c) 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, whenever existing and wherever located, capable of being sold pursuant to UCC 9-610 et seq. Notwithstanding anything herein to the contrary, Agent (or its designee) may, in its sole discretion, elect to credit bid all or a portion of the Obligations for all or any portion of the Sale Assets.
Pursuant to (i) that Credit and Security Agreement dated October 2, 2018 among Agent, Kingswood AVAD LLC, a Delaware limited liability company (“Holdings”), AVAD LLC (“AVAD”), Wave Electronics, Inc. (“Wave Electronics”), Wave Electronics Arizona, LLC (“Wave Arizona”), Wave Electronics California, LLC (“Wave California”), Wave Electronics Florida, LLC (“Wave Florida”), Wave Electronics Louisiana, LLC (“Wave Louisiana”), Wave Electronics New Jersey, LLC (“Wave New Jersey”), MSTR Brand, Inc. (“MSTR”), Electronics Outlet, LLC (“Electronics Outlet”; together with AVAD, Wave Electronics, Wave Arizona, Wave California, Wave Florida, Wave Louisiana, Wave New Jersey, and MSTR, the “U.S. Borrowers”, and each a “U.S. Borrower”), and AVAD Canada Ltd. (“AVAD Canada”; together with the U.S. Borrowers, the “Borrowers” and each a “Borrower”; Holdings and the Borrowers, the “Credit Parties” and each a “Credit Party”), and the Lenders from time to time party thereto (“Credit Agreement”); and (ii) the other Financing Documents, the Lenders have extended secured loans to the U.S. Borrowers (the “Loans”), and the U.S. Borrowers have granted Agent (for the benefit of Agent and the Lenders) continuing security interests in, and liens on, among other things, the Sale Assets to secure the timely payment and performance of the Obligations in respect of the Loans under the Credit Agreement and the other Financing Documents. The Obligations in respect of the Loans owing to Agent and the Lenders under the Financing Documents have a principal amount of not less than $53,342,718.27, as of the open of business on February 24, 2021 (exclusive of interest, fees, costs, expenses, and other charges and Obligations accrued as of such date). The U.S. Borrowers and the other Credit Parties are in default of such Obligations under the Credit Agreement and the other Financing Documents.
THE SALE OF THE SALE ASSETS EXCLUDES CERTAIN RIGHTS UNDER LEASES AND OTHER AGREEMENTS. On information and belief, the U.S. Borrowers 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 shall 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-U.S. Borrower party as may be required.
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, AGENT AND 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 AGENT NOR ANY LENDER WILL BE, NOR WILL BE DEEMED TO BE, LIABLE OR OBLIGATED IN ANY MANNER WHATSOEVER FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER. NEITHER AGENT NOR ANY 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.
AGENT RESERVES THE RIGHT TO WITHDRAW ALL OR ANY PORTION OF THE SALE ASSETS FROM THE SALE AT ANY TIME FOR ANY REASON WHATSOEVER, AND AGENT RESERVES THE RIGHT, FOR ANY REASON WHATSOEVER, TO CANCEL THE SALE AT ANY TIME, OR TO CAUSE THE SALE TO BE ADJOURNED FROM TIME TO TIME, IN EACH CASE, IN AGENT’S SOLE DISCRETION. IN ALL EVENTS, AGENT, OR ITS DESIGNEE, MAY CREDIT BID ALL OR ANY PORTION OF THE OBLIGATIONS AT THE SALE, AND RESERVES THE RIGHT TO PROVIDE FINANCING TO ANY BIDDER IN ITS SOLE DISCRETION. AGENT OR ITS DESIGNEE, WILL BE DEEMED TO BE A QUALIFIED BIDDER AT, AND FOR ALL PURPOSES OF, THE SALE.
Subject to the terms and conditions hereof, the Sale Assets will be offered and sold at the Sale for cash only, unless otherwise agreed to in writing by Agent in its sole discretion. All offers must contain no contingencies that are unsatisfactory to Agent in its discretion, and all offers will be subject to such other or additional bid procedures as Agent may establish or otherwise announce from time to time in its discretion.
Agent 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. Agent reserves all of its rights against the U.S. Borrowers and any other obligor for any and all deficiencies with respect to the Obligations remaining after the Sale. Agent 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.
Any prospective bidder must provide written notice to Agent and the U.S. Borrowers’ sale advisor, Jefferies LLC (“Jefferies”), of its interest in qualifying to attend the Sale not less than three (3) business days prior to the date of the Sale by contacting Danielle Wildern Juhle ([email protected]) and Zachary Garrett ([email protected]) of Goldberg Kohn Ltd., as counsel for Agent, and Ryan Hamilton ([email protected]) of Jefferies. Prospective bidders may obtain additional information regarding the Sale, including how to qualify for the Sale as a qualified bidder, by contacting Ryan Hamilton of Jefferies as set forth in the preceding sentence.
The U.S. Borrowers are entitled to an accounting of the unpaid indebtedness owing by the U.S. Borrowers to Agent and Lenders which accounting may be obtained free of charge by contacting counsel to Agent per the above.
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