AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE

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Gyles Williamson
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1 POSTED AT ROSENSYSTEMS.COM UPCOMING AUCTIONS (RE TVM BUILDING PRODUCTS, INC.) (SUBJECT TO REVISION AND FINAL APPROVAL BY THE SECURED PARTY DEFINED BELOW) AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE This Agreement and Secured Party Bill of Sale in Respect of Public Sale ( Agreement ) is executed and entered into by and between MARQUETTE BUSINESS CREDIT SPE I, LLC ( Secured Party ), as transferor, and [ ], a [ ] ( Buyer ), as buyer, effective as of [February [_]], 2016 (the Effective Date ), as follows: RECITALS a. Secured Party and TVM Building Products, Inc., an Illinois corporation ( Debtor ) are parties to the certain Loan Agreement dated as of December 22, 2006, between Secured Party, as assignee of Marquette Business Credit, Inc., and Debtor, as amended from to time, including without limitation by the Thirteenth Amendment to Loan Agreement dated as of August 21, 2015, among Secured Party, Debtor and the other parties thereto (collectively, the Loan Agreement ). b. Pursuant to the Loan Agreement, Secured Party holds a continuing security interest in certain of Debtor s property (the Collateral ), as security for payment and performance of all indebtedness and obligations owing by Debtor to Secured Party under the Loan Agreement. c. Events of Default have occurred under the Loan Agreement and continue to exist. As a consequence of such Events of Default, Secured Party decided to exercise its remedies under the Loan Agreement and applicable law to dispose of all or any portion of the Collateral by public sale. d. In connection with the foregoing, Secured Party caused Rosen Systems, Inc., Industrial Appraisers and Auctioneers ( Auctioneer ) to expose and offer for sale at public auction (the Auction ) conducted on February 25, 2016 (the Auction Date ), the Collateral described in Schedule A attached hereto and incorporated herein by reference, to the extent existing on the Auction Date (the Auctioned Property ), pursuant to the Loan Agreement and applicable law. e. Auctioneer conducted the Auction and declared Buyer s aggregate bid of $[ ] (the Bid Amount ) for purchase of the Auctioned Property as the winning highbidder for the Auctioned Property, in each case pursuant to the certain Terms of Auction published by the Auctioneer and in effect at the time of the Auction (the Terms of Auction ), a copy of which is attached as Exhibit B. f. In connection with the foregoing and pursuant to the Terms of Auction and applicable law, Secured Party and Buyer have agreed to enter into this Agreement. NOW THEREFORE, in connection with the foregoing and in consideration of the premises, for value received, Secured Party and Buyer hereby agree as follows: AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE Page 1

2 AGREEMENT Section 1. Transfer and Sale. Pursuant to Section of the Texas Uniform Commercial Code, for and in consideration of payment by Buyer to Secured party, in cash, of an amount equal to the Bid Amount, Secured Party hereby sells and transfers to Buyer, and Buyer hereby purchases and accepts, all right, title and interest of Debtor in and to the Auctioned Property, on and subject to the terms of this Agreement. Section 2. Auction. Buyer acknowledges and agrees that that Buyer s purchase of the Auctioned Property pursuant to the Auction was and is subject to the Terms of Auction. Section 3. Closing Deliveries. In consummation of the sale and transfer of the Auctioned Property to Buyer, on the Effective Date: (a) Buyer shall deliver to Auctioneer, for the account of Secured Party, (i) available funds in an amount equal to the Bid Amount less the aggregate amount deposited by Buyer with Auctioneer prior to the Auction pursuant to the Terms of Auction (which deposit Buyer acknowledges and agrees shall be disbursed by Auctioneer to Secured Party as a payment in respect of the Bid Amount), and (ii) a counterpart of this Agreement, duly executed by Buyer; and (b) Secured Party shall deliver to Buyer a counterpart of this Agreement, duly executed by Secured Party. Section 4. AS IS, WHERE IS, WITH ALL FAULTS; DISCLAIMERS. SECURED PARTY AND BUYER AGREE THAT THIS SALE AND TRANSFER IS ON AN AS IS, WHERE IS BASIS, WITH ALL FAULTS. SECURED PARTY AND ITS AFFILIATES (INCLUDING WITHOUT LIMITATION, MARQUETTE BUSINESS CREDIT, INC.), OWNERS, OFFICERS AND REPRESENTATIVES (COLLECTIVELY, THE MARQUETTE PARTIES ) EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW OR OTHERWISE, RELATING TO THE AUCTIONED PROPERTY, THE AUCTION, THE LOAN AGREEMENT, DEBTOR, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. THERE IS NO WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. SECURED PARTY, ON BEHALF OF ITSELF AND THE OTHER MARQUETTE PARTIES, DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES, VERBAL OR WRITTEN, PAST, PRESENT OR FUTURE, IN RESPECT OF THE AUCTION OR THE AUCTIONED PROPERTY, INCLUDING WITHOUT LIMITATION, RELATING TO THE EXISTENCE, TITLE, LOCATION, CONDITION, VALUE, DELIVERY, POSSESSION, OR QUIET ENJOYMENT WITH RESPECT TO ANY AUCTIONED PROPERTY, OR IN RESPECT OF ANY ACCOUNT DEBTOR OR THE CREDITWORTHINESS THEREOF, THE GENUINENESS, VALIDITY OR ENFORCEABILITY OF ANY ACCOUNTS OR ANY AMOUNTS DUE OR NOT DUE THEREUNDER, THE EXISTENCE OR NON-EXISTENCE OF ANY DEFENSE, CLAIM, COUNTERCLAIM, OR OFFSET RELATING TO ANY AUCTIONED PROPERTY, THE PERFECTION OR PRIORITY OF ANY SECURITY INTEREST OF SECURED PARTY IN THE AUCTIONED PROPERTY ON THE AUCTION DATE OR THE EFFECTIVE DATE, COMPLIANCE WITH APPLICABLE LAWS, OR ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE IN OR IN CONNECTION WITH THE AUCTION OR THIS AGREEMENT, OF ANY KIND WHATSOEVER. NO REPRESENTATIONS ARE MADE BY ANY OF THE MARQUETTE PARTIES IN CONNECTION WITH THIS AGREEMENT EXCEPT BY SECURED PARTY SOLELY AS EXPRESSLY PROVIDED BY SECTION 11(a). BUYER ASSUMES ALL RISK WITH RESPECT TO THE USE BY ANY PERSON OF ANY AUCTIONED PROPERTY. AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE Page 2

3 Section 5. Indemnification; Hold Harmless. BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS THE MARQUETTE PARTIES AND AUCTIONEER FROM AND AGAINST ALL CLAIMS AND LIABILITIES, INCLUDING ASSOCIATED COSTS AND ATTORNEYS FEES, IN ANY WAY RELATING TO (a) THE AUCTION, THE AUCTIONED PROPERTY OR THIS AGREEMENT, (b) ANY DOCUMENTS OR INFORMATION, IF ANY, PROVIDED BY SECURED PARTY OR AUCTIONEER TO BUYER IN CONNECTION WITH THE AUCTION, THE AUCTIONED PROPERTY OR THIS AGREEMENT, (c) CLAIMS, IF ANY, BY EMPLOYEES, CUSTOMERS OR CREDITORS OF DEBTOR OR ANY OTHER PERSON IN ANY WAY RELATING TO THE AUCTION, THE AUCTIONED PROPERTY OR THIS AGREEMENT, (d) BREACH BY BUYER OF THIS AGREEMENT OR (e) OTHERWISE RELATING TO THE AUCTION, THE AUCTIONED PROPERTY OR THIS AGREEMENT OR ANY MATTERS RELATING THERETO OR HERETO. Section 6. Inspection. Buyer acknowledges and agrees that it has had a reasonable opportunity to conduct all due diligence and otherwise inspect and evaluate the Auctioned Property prior to the Auction, and has inspected and evaluated the Auctioned Property prior to the Auction to the extent, if any, that Buyer wished to do so. Section 7. Delivery. Removal of the Auctioned Property shall be at the sole expense, risk and liability of Buyer. Buyer acknowledges that the Auctioned Property is in the physical possession or control of Debtor, and that pursuant to Section 9.609(c) of the Texas Uniform Commercial Code, Secured Party has instructed Debtor to assemble such property at its current location(s) and make such property available to Secured Party for purposes of disposition after the Auction. Secured Party and Auctioneer each has no responsibility for removal or delivery of the Auctioned Property. Without limiting the foregoing, Secured Party and Auctioneer each has no responsibility or liability to Buyer in connection with any inability to remove any Auctioned Property, or any delay in connection therewith, due to acts or inaction of Debtor or any landlord or other person who may control access to any premises, commencement of bankruptcy proceedings or otherwise, and Buyer assumes all risk, cost and expense in connection with any such inability or delay, compelling compliance by Debtor, or otherwise obtaining such removal. Section 8. Taxes; Transfer Fees. Buyer is responsible for paying any applicable sales taxes, other taxes and any transfer fees, imposed on transfer of the Auctioned Property pursuant to the Terms of Auction and this Agreement. Section 9. Post-closing Collections. Secured Party in its discretion may cause any deposit account control agreement in respect of any lock-box or collection account of Debtor to be terminated, subject to the terms thereof. Any proceeds of accounts included in the Auctioned Property received by Secured Party on or after the Effective Date, to the extent of collected available funds (less wire transfer or other associated charges) shall be disbursed to Buyer by wire transfer according to such transfer instructions as may be designated in writing by Buyer to Secured Party. Section 10. Excluded Property. This Agreement is limited to property of Debtor existing on the Auction Date and described as Auctioned Property in Schedule A. Any other property, including without limitation, property, if any, acquired by Debtor after the Auction Date and property, if any, not describes in Schedule A and existing on the Auction Date, is excluded from this Agreement and shall not be included in the Auctioned Property. AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE Page 3

4 Section 11. Agreement: Representations and Warranties. Without limiting any other provision of this (a) Secured Party represents and warrants to Buyer as follows: (i) Secured Party is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with all requisite entity power and authority to enter into this Agreement and the transaction contemplated hereby, (ii) the execution, delivery and performance of this Agreement has been authorized by all necessary entity action of Secured Party, and (iii) one or more Events of Default have occurred and continue to exist under the Loan Agreement, and as a consequence thereof, Secured Party has the right to dispose of the Auctioned Property pursuant to the Loan Agreement and Section of the Texas Uniform Commercial Code. (b) Buyer represents and warrants to Secured Party as follows: (i) Buyer is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with all requisite entity power and authority to enter into this Agreement and the transaction contemplated hereby, (ii) the execution, delivery and performance of this Agreement has been authorized by all necessary entity action of Buyer and (iii) this Agreement is a valid, binding obligation of Buyer, enforceable in accordance with its terms except as may be limited by applicable federal or state bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally. Buyer has not engaged any broker or finder in connection with the transactions contemplated by this Agreement. Section 12. Further Assurances. Upon reasonable request by Buyer in writing, and at Buyer s sole cost and expense, Secured Party will execute and deliver to Buyer such other and further instruments of sale, conveyance or transfer, and take such other action, as may be commercially reasonably necessary in order to sell, convey and transfer the Auctioned Property to Buyer. Section 13. No Assumption. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, BUYER EXPRESSLY STATES THAT (i) NOTHING HEREIN CONSTITUTES AN ASSUMPTION BY BUYER OF ANY LIABILITIES OR OBLIGATIONS OF DEBTOR OF ANY KIND AND (ii) BY THIS AGREEMENT, BUYER DOES NOT ASSUME ANY LIABILITIES OR OBLIGATIONS OF DEBTOR OF ANY KIND. Section 14. Notice. Any notice or communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service or by fax) to the address or fax number set forth for such party as shown below (or to such other address or fax number as such party may specify by written notice given to the other party): If to Secured Party: Marquette Business Credit SPE I, LLC 5910 N. Central Expressway, Suite 1900 Dallas, Texas Attention: Brandie Pasquinelli, Vice President Fax: If to Buyer: [ ] [ ] [ ] Attention: [ ] Fax: [ ] AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE Page 4

5 Section 15. Other Agreements. (a) THIS AGREEMENT, THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT AND OF ANY PROVISION OF THIS AGREEMENT AND OF ANY ISSUE RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS NOT INCLUDING CONFLICTS OF LAWS RULES. (b) This Agreement was entered into at arm s length between Secured Party and Buyer, each with adequate opportunity for representation of counsel, and is binding upon and shall inure to the benefit of Secured Party and Buyer and their respective successors and assigns, except Buyer may not assign or transfer any of its respective rights or obligations hereunder without the prior written consent of Secured Party. (c) Buyer and Secured Party each is responsible for its own costs expenses incurred in connection with this Agreement and the transactions contemplated hereby, provided, that the reasonable costs and expenses of Secured Party in connection with this Agreement shall be recoverable by Secured Party from the proceeds of sale hereunder, Debtor or otherwise as provided by the Loan Agreement and applicable law. (d) Schedule A and Exhibit A each is incorporated herein by reference and made a part of this Agreement with the same effect as if fully set forth herein. This Agreement, including Schedule A and Exhibit A, constitutes and contains the entire agreement of the parties and supersedes any and all prior negotiations, correspondence, understandings and agreements between the parties respecting the subject matter hereof. This Agreement is intended solely for the benefit of Buyer and Secured Party and shall not inure to the benefit of or confer benefit upon any person than Buyer and Secured Party. Section 16. Execution; Counterparts. This Agreement may be executed in counterparts, and a copy of any such executed counterpart shall be deemed valid as an original. Section 17. Entire Agreement. No conversations or unwritten agreements or understandings between or among the parties hereto shall be binding or waive, impair or modify any of the matters specified herein. THIS AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER OF THIS AMENDMENT. THIS AGREEMENT MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES. SIGNATURES FOLLOW REMAINDER OF PAGE BLANK AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE Page 5

6 IN WITNESS WHEREOF, this Agreement has been executed effective as of the Effective Date defined in the preamble paragraph above. SECURED PARTY: MARQUETTE BUSINESS CREDIT SPE I, LLC By: Name: Title: BUYER [ ] By: Name: Title: AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE Page 6

7 SCHEDULE A to AGREEMENT IN RESPECT OF PUBLIC SALE OF ASSETS Auctioned Property All right, title and interest of TVM Building Products, Inc. in and to the following, in each case solely as in existence on February 25, 2016: All accounts, inventory, equipment and fixtures, contract rights, general intangibles (including payment intangibles and software), intellectual property, investment property and financial assets (other than margin stock), instruments, chattel paper (including electronic chattel paper), documents, letter of credit rights and supporting obligations, and books and records, files, correspondence, computer programs, tapes, discs and related data processing software and other media which contain information identifying or pertaining to any of the foregoing. SCHEDULE A AUCTIONED PROPERTY Page 1

8 EXHIBIT B to AGREEMENT AND SECURED PARTY BILL OF SALE IN RESPECT OF PUBLIC SALE Terms of Auction (attached) (attach copy of Terms of Auction posted at rosensystems.com at the time of the Auction)

WELLS FARGO EXHIBIT 10.4 CONTINUING SECURITY AGREEMENT RIGHTS TO PAYMENT AND INVENTORY

WELLS FARGO EXHIBIT 10.4 CONTINUING SECURITY AGREEMENT RIGHTS TO PAYMENT AND INVENTORY EXHIBIT 10.4 WELLS FARGO CONTINUING SECURITY AGREEMENT RIGHTS TO PAYMENT AND INVENTORY 1. GRANT OF SECURITY INTEREST. For valuable consideration, the undersigned S&W SEED COMPANY, or any of them ("Debtor"),