Item 1.01. Entry into a Material Definitive Agreement
As previously disclosed, on
On
All capitalized terms used and not defined in this Form 8-K have the meanings ascribed to them in the Asset Purchase Agreement.
The Going Concern Transaction involves the sale of the following assets by the Sellers:
• All "Assigned Contracts"; • Certain data owned or controlled by the Sellers; • All "Acquired Furnishings and Equipments"; • Certain demands, allowances, refunds, rights, claims, counterclaims, defenses, credits, causes of action, rights of set off, rights of recovery, rights of recoupment and other similar rights; • To the extent transferable under applicable Law, all of the rights, interests and benefits accruing under all Permits necessary for operation or use of the Acquired Assets, and all pending applications; • All Intellectual Property and all corresponding rights; • All computer, information technology and data processing systems, facilities and services used by or for or in connection with the E-Commerce Platform; • Financial, marketing and business data, pricing and cost information, business and marketing plans and other information, files, correspondences, records, data, plans, reports and recorded knowledge, historical trademark files and prosecution files of the Sellers to the extent related to the Acquired Assets or the Assumed Liabilities; • All goodwill associated with the Business or the Acquired Assets; • Certain insurance proceeds and insurance awards; • All right of publicity and all similar rights; • Certain payment intangibles and general intangible assets and rights of the Sellers; and • All Preference Actions. 2
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The consideration in the Going Concern Transaction was comprised of the following:
• Cash in an amount equal to (A) The Estimated Purchase Price, plus or minus
(as applicable) (B) the Merchandise Purchase Price Adjustment (if any), plus (C) the Store Cash Amount, plus (D)$225,000 (the "Trade Cash Amount") (approximately$50.4 million , subject to the Merchandise Purchase Price Adjustment); and
• The assumption of Assumed Liabilities.
The foregoing description of the Asset Purchase Agreement and the Going Concern Transaction does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Asset Purchase Agreement filed as Exhibit 2.1 to this Form 8-K. The Asset Purchase Agreement has been included to provide investors with information regarding its terms and is not intended to provide any other factual information about the Sellers or Buyer. The representation, warranties and covenants contained in the Asset Purchase Agreement were made only for purposes of such agreement as of the specific dates therein, were solely for the benefit of the parties to the Asset Purchase Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Asset Purchase Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. For the foregoing reasons, the representations, warranties and covenants should not be relied upon as statements of factual information.
Item 1.02. Termination of a Material Definitive Agreement.
In connection with the Going Concern Transaction, on
Item 2.01. Completion of Acquisition or Disposition of Assets.
The Going Concern Transaction was completed on
The proceeds from the Going Concern Transaction were primarily used to repay in full borrowings under the Company's ABL Credit Facility and Term Loan Credit Facility.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the Going Concern Transaction, on
Forward-Looking Statements
This Form 8-K contains "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. The Company cautions that such
forward-looking statements contained in this Form 8-K or made from time to time
by management of the Company, including those regarding the Going Concern
Transactions, Bankruptcy Petitions and resulting proceeding in
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Item 9.01 Financial Statements and Exhibits.
The following exhibit is filed herewith:
Exhibit No. Description 2.1 Asset Purchase Agreement, dated as ofNovember 29, 2019 , by and among the Company and certain of its subsidiaries party thereto andMarquee Brands, LLC 99.1 Order (I) Approving the Agreements, (II) Authorizing the Sale of Assets Outside the Ordinary Course of Business through the Winning Bid, (III) Authorizing the Sale of Substantially all of the Debtors' Assets Free and Clear of Liens, Claims, Encumbrances, and Interests, (IV) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases, and (V) Granting Related Relief * Certain schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K promulgated by theSEC . The Company agrees to furnish a supplemental copy of any omitted schedule or exhibit to theSEC upon request. 4
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