NOTICE IS HEREBY GIVEN that at 12:00 p.m. (CST) on September 22, 2022, CIBC Bank USA (“Lender“), will offer for sale, at a public sale conducted in accordance with Article 9 of the Uniform Commercial Code, as enacted in all applicable jurisdictions (“UCC“), to be conducted at the offices of Goldberg Kohn Ltd., 55 E. Monroe, Ste. 3300, Chicago, IL 60603, with the option to participate telephonically or virtually as Lender may determine (“Sale“), all of the rights of Custom Alloy Corporation (“Borrower“), CAC Michigan LLC (“CAC MI”), and CAC New Jersey, LLC (“CAC NJ“; and together with Borrower and CAC MI, “Companies“), in, under, and to the “Sale Assets” (defined below).
Subject to the terms herein (capitalized terms used but not otherwise defined in this paragraph have the meanings given to them in the “Loan Agreement” (defined below)), “Sale Assets” means, collectively, all of the Collateral owned by each Company other than the “Excluded Assets” (defined below), including all Accounts, Chattel Paper, Commercial Tort Claims, Documents, General Intangibles, Goods (including all Inventory, Equipment, and Fixtures), Instruments, Investment Property, Letter-of-Credit Rights, Supporting Obligations, all other personal property assets and interests in property, all books and records relating to the foregoing, all accessions and additions to, and all substitutions and replacements of the foregoing, all Proceeds and products of the foregoing, and all other Collateral, in each case, capable of being sold by Lender pursuant to Section 9-610 et seq. of the UCC; provided, however, that unless otherwise agreed to by Lender, the Sale Assets exclude any (a) non-assignable, non-transferrable right of Companies under any “Designated Agreement” (defined below), (b) securities, (c) cash and cash equivalents, (d) claims or causes of action against Lender, any of its affiliates, any of its agents, and various related parties, (e) claims or causes of action of Companies, including any commercial tort claims and causes of action against any officer, director, or employee of Companies or any of their respective “affiliates” or “insiders” (as such terms are defined in the United States Bankruptcy Code (11 U.S.C. § 101 et seq., as amended)), (f) insurance policies and proceeds, including any unearned premiums, (g) Deposit Accounts, (h) tax credits and refunds, including employee retention tax credits, (i) corporate seals, stock record books, minute books, tax returns and organizational documents of Companies that do not pertain or relate to the Sale Assets, (j) all of the equity interests issued by CAC MI and CAC NJ owned by Borrower, and (k) real estate and any other assets not capable of being sold by Lender pursuant to Section 9-610 et seq. of the UCC (collectively, “Excluded Assets“). The Sale Assets may be sold in one or more lots as Lender may determine in its discretion, and may be subject to certain additional inclusions and exclusions to be negotiated with Lender.
Pursuant to the (i) Loan and Security Agreement dated March 4, 2010 (“Loan Agreement“) among Companies and Lender, and (ii) other Loan Documents (defined in the Loan Agreement), Lender has extended secured loans and other financial accommodations to Borrower, and Companies have granted Lender continuing security interests in, and liens on, among other things, the Collateral to secure the full payment when due of all of the Obligations (defined in the Loan Agreement) under the Loan Documents. As of August 31, 2022, the aggregate principal amount owed by Companies and the other obligors under the Loan Documents is not less than $23,221,584.36. Companies are in default of their obligations under the Loan Documents.
THE SALE OF ANY SALE ASSETS EXCLUDES CERTAIN RIGHTS UNDER DESIGNATED AGREEMENTS. On information and belief (but without any representation or warranty of any kind by Lender as to the accuracy of the following), Companies may currently possess equipment or other personal property in which they do not have an ownership interest or operate pursuant to one or more non-residential leases of commercial property, machinery and equipment leases, and other agreements, customer contracts, documents, leases, and instruments, and which may include operating licenses and permits (collectively, “Designated Agreements“). No rights under any Designated Agreement are or will be included in the Sale Assets, except and solely 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.
PLEASE TAKE FURTHER NOTICE THAT, on information and belief (but without any representation or warranty of any kind by Lender as to the accuracy of the following), each of CAC MI and CAC NJ is a wholly-owned subsidiary of Borrower.
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, THERE ARE NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF QUIET ENJOYMENT, TITLE, POSSESSION, OR THE LIKE, MADE BY LENDER, ANY OF THE COMPANIES, OR STOUT (DEFINED BELOW), AND ANY AND ALL REPRESENTATIONS, GUARANTEES, AND WARRANTIES ARE DISCLAIMED. NONE OF LENDER, ANY OF THE COMPANIES, OR STOUT WILL BE, OR WILL BE DEEMED TO BE, LIABLE OR OBLIGATED IN ANY MANNER WHATSOEVER FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER. NONE OF LENDER, ANY OF THE COMPANIES, OR STOUT WILL 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.
Lender reserves the right, in its discretion, to withdraw all or any portion of the Sale Assets from the Sale at any time. Lender, 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. Lender, or its designee, will be deemed to be a qualified bidder at, and for all purposes of, the Sale. Lender further reserves the right, in its discretion, to designate one or more stalking horse purchasers and bids prior to the commencement of the Sale auction for all or any portion of the Sale Assets pursuant and subject to such terms and conditions as Lender may agree to in its discretion.
The Sale Assets will be offered and sold at the Sale for cash only unless otherwise agreed to in writing by Lender. All offers must contain no contingencies that are unsatisfactory to Lender, and all offers will be subject to such other bid procedures as Lender may announce from time to time.
If you would like to become a qualified bidder, or if you have any questions about the Sale, please contact Companies’ sale advisor, Michael Krakovsky of Stout Capital, LLC (“Stout“), by email at: [email protected].
Lender reserves the right in its 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. Lender reserves all rights against Companies and all other obligors for all deficiencies with respect to the Obligations that may remain after the Sale. Lender will apply proceeds received for the Sale Assets in accordance with the Loan Documents and applicable law.
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