§ 8.6A-108. Bulk sales by auction; bulk sales conducted by liquidator
(1) Sections 8.6A-104, 8.6A-105, 8.6A-106, and 8.6A-107 apply to a bulk sale by auction and a bulk sale conducted by a liquidator on the seller's behalf with the following modifications:
(a) "Buyer" refers to the auctioneer or liquidator, as the case may be;
(b) "Net contract price" refers to net proceeds of the auction or net proceeds of the sale, as the case may be;
(c) The written notice required under § 8.6A-105(3) must be accompanied by a copy of the schedule of distribution (§ 8.6A-106(1)) and state at least:
(i) That the seller and the auctioneer or liquidator have entered into an
agreement for auction or liquidation services that may constitute an agreement
to make a bulk sale under the laws of the State of ...;
(ii) The date of the agreement;
(iii) The date on or after which the auction began or will begin or the date on or after which the liquidator began or will begin to sell assets on the seller's behalf;
(iv) The date on or after which more than ten percent of the net proceeds of the sale were or will be paid, if the date is not stated in the schedule of distribution;
(v) The name and a mailing address of the seller;
(vi) Any other business name and address listed by the seller pursuant to § 8.6A-104(1) (a);
(vii) The name of the auctioneer or liquidator and an address of the auctioneer or liquidator from which information concerning the sale can be obtained;
(viii) A statement indicating the type of assets or describing the assets item by item;
(ix) The manner in which the auctioneer or liquidator will make available the list of claimants (§ 8.6A-104(1) (f)), if applicable; and
(x) If the sale is in total or partial satisfaction of an antecedent debt owed by the seller, the amount of the debt to be satisfied and the name of the person to whom it is owed; and
(d) In a single bulk sale the cumulative liability of the auctioneer or liquidator for failure to comply with the requirements of this section may not exceed the amount of the net proceeds of the sale allocable to inventory and equipment sold less the amount of the portion of any part of the net proceeds paid to or applied for the benefit of a creditor which is allocable to the inventory and equipment.
(2) A payment made by the auctioneer or liquidator to a person to whom the auctioneer or liquidator is, or believes he is, liable under this section reduces pro tanto the auctioneer's or liquidator's cumulative liability under subsection (1) (d).
(3) A form substantially as follows is sufficient to comply with subsection (1) (c):
Notice of Sale
(1) ...................., whose address is ...................., is
described in this notice as the "seller."
(2) ...................., whose address is ...................., is
described in this notice as the "auctioneer" or "liquidator."
(3) The seller has disclosed to the auctioneer or liquidator that within the
past three years the seller has used other business names, operated at other
addresses, or both, as follows: ....................
(4) The seller and the auctioneer or liquidator have entered into an agreement
dated ..............., for auction or liquidation services that may
constitute an agreement to make a bulk sale under the laws of the State of
....................
(5) The date on or after which the auction began or will begin or the date on
or after which the liquidator began or will begin to sell assets on the
seller's behalf is ..............., and —if not stated in the schedule of
distribution] the date on or after which more than ten percent of the net
proceeds of the sale were or will be paid is ...............
(6) The following assets are the subject of the sale:
....................
(7) If applicable, the auctioneer or liquidator will make available to
claimants of the seller a list of the seller's claimants in the following
manner: ....................
(8) If applicable, the sale is to satisfy $ .......... of an antecedent debt
owed by the seller to ....................
(9) A copy of the schedule of distribution of the net proceeds accompanies
this notice.
(4) A person who buys at a bulk sale by auction or conducted by a liquidator need not comply with the requirements of § 8.6A-104(1) and is not liable for the failure of an auctioneer or liquidator to comply with the requirements of this section.
(1997, c. 121.)
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