Raybern Foods – Frozen Deli Sandwich Manufacturer

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Inspections

Contact Information

Tracy Martinez

tracym@newmillcapital.com

TERMS OF SALE

Set forth below are the terms and conditions (the “Terms”) that shall apply to every bid or purchase by any party (“Buyer” or “Bidder”) either directly from New Mill Capital Holdings, LLC (“NMC”) as an owner of any item, goods, fixtures or real property, or in a transaction (“Transaction”) in which NMC serves as broker, agent, liquidator or auctioneer for any third party owner. The Terms apply to every transaction, including without limitation, public auctions conducted by NMC or conducted by its partner companies and direct purchases by Buyer of any item either before, after or independent of any public auction.

TERMS AND CONDITIONS

1. All machinery, equipment, merchandise and other items (the “Goods”) are sold on an “AS IS/WHERE IS” basis with no warranties or representations whatsoever, either express or implied. Neither NMC, any client, owner of the Goods, consignor or anyone acting on their behalf, make any warranties or representations of any kind or nature with respect to the property, its condition, condition suitable for safe operation or its value, and in no event shall they be responsible for the correctness of description, genuineness, attribution, provenance, title, chain of title, authenticity, authorship and completeness. All Goods are sold on an individual lot basis and not in conjunction with or contingent upon Buyer or Bidder winning or taking delivery of any other lot or Goods unless otherwise agreed to in writing by NMC. No bid at the auction or payment of winning bids shall be in any way continent upon the winning Bidder or Buyer’s outside financing or internal company approval post auction sale. PROSPECTIVE BIDDERS ARE STRONGLY URGED TO CONDUCT THEIR OWN INSPECTION OF THE LOTS THROUGH PRIVATE OR OPEN INSPECTION DATES MADE AVAILABLE TO ALL PROSPECTIVE BIDDERS. No statement (oral or written), including any catalog description or photographs at any auction, or elsewhere shall be deemed such a warranty or representation, or any assumption of responsibility of any kind or nature, whatsoever. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OF GOODS ARE EXPRESSLY DISCLAIMED.

2. Registration. Buyers must register as Bidders prior to bidding at any auction sale. All Bidders must provide their name, company (if applicable), mailing address and phone number prior to the auction. Bidders are required to deposit with NMC a valid Visa or MasterCard to secure its obligations hereunder. Electronic Bidders are required to provide a valid email address and Visa or MasterCard number, together with security code. In its sole discretion, NMC may charge Bidders a registration fee or deposit for electronic or onsite bidding and also maintains the right to deny approval of registration of any bidder for any reason it sees fit. Registration fees or required deposits will be clearly displayed during the registration process or communicated directly to Bidders prior to registration approval. For any and all winning bids, the registered party or parties and company’s liability to perform in accordance with the purchase and terms of sale is joint and several.

3. Deposits. For onsite bidding, NMC requires a non-refundable deposit of not less than twenty five percent (25%) of the Buyer’s TOTAL PURCHASE PRICE by the end of sale day – with the balance due by the end of the next business day. The non-refundable deposit can be in the form of cash, a cashier’s check, or business check with a bank letter of guarantee or, at NMC’s option, by way of a charge to the credit card referred to in Paragraph 2, above. For Electronic Bidders, at its discretion, NMC may contact Bidders via email or telephone before or during the sale to require a bank letter of guarantee or wire transfer as a deposit. If NMC does not receive a response from its attempts to contact Buyer or if the Buyer does not provide a deposit, NMC reserves the right refuse Buyer’s additional bids with Buyer responsible for all lots or Goods purchased to that point or to cancel Buyer’s bids and re-sell Goods. Online Buyers shall effect payment in full no later than twenty-four (24) hours after receiving an invoice from NMC.

4. Invoices & Payment Instructions. Winning Bidders can request a printed, paper invoice from the Accounting Manager at the auction or sale location during or after the sale or auction. Electronic Bidders will be sent an electronic invoice to the email address provided during registration. Invoices can be faxed upon request. Detailed payment instructions for each sale are available in the printed auction or sale lot catalog at the sale or auction location on the day of the sale or auction. Electronic Bidders will be sent detailed payment instructions via email along with their invoice.

5. Payments. NMC must receive the balance of the total purchase price no later than the close of business on the day following the auction for onsite sales or 48 hours after the last lot of the sale closes for online sales (the “Final Payment Date”). For online winning bidders, NMC sends winning invoices to bidders to the email provided at registration. No other communication from any party including any online bidding platform will be deemed an award of winning bid or invoice. All payments must be in the form of cash deposit, cashier’s or certified check or federal wire transfer of immediately available funds. All of the foregoing must be in form, scope and substance acceptable to NMC in its sole discretion. Credit cards, which are accepted for electronic bidding registration and for payment of deposit will not be accepted for payment of the balance of the total purchase price, however, if Buyer or Bidder is in default of payment, NMC reserves the right to charge the credit card on file for up to the full winning bid, inclusive of buyers premium and sales tax. No title shall pass to Buyer until the total purchase price and all Taxes (defined in Section 6 below) have been paid to NMC in collected funds.

6. Taxes. Buyer must also pay to NMC on or before the Final Payment Date, all sales, export, use, delinquent taxes due and penalties thereon, and all other applicable taxes due to any federal, state or local taxing authority (the “Taxes”) as a result of Buyer’s purchase, including without limitation, any taxes arising from any Buyer’s Premium (as defined in Section 7 below). To receive the benefit of any sales tax exemption, Buyer must supply NMC with a state sales tax exemption certificate acceptable in form, scope and substance to NMC in NMC’S sole discretion. If Buyer does not submit evidence of their exemption prior to the close of the auction, Buyer will be charged sales tax, which may be refunded upon Buyer providing documents necessary to prove their qualified exemption within 15 business days from the date of purchase. After 15 business days, Buyer will be required to submit any refund request directly to the state for which the original sales tax was collected and remitted by NMC.

7. Buyer’s Premium. NMC in its sole discretion may impose a Buyer’s premium (“Buyer’s Premium”) on any Goods sold. The Buyer’s Premium is a percentage that is added to the final purchase price (hammer price or closing price) of any item. NMC shall charge and collect from each successful Bidder a buyer’s premium for each sale at the auction, in addition to the purchase price as bid. NMC makes the Buyer’s Premium information available in writing electronically or in printed format prior to each auction for each of the Goods identified for auction or sale.

8. Removal. (1) Unless otherwise provided in writing by NMC, Buyers or their Agents must remove all Goods purchased before the final removal date and time announced by NMC or emailed to Bidders for online only sales prior to or during the auction (the “Removal Date”). NMC does not warrant that the Removal Date serves as any guarantee that Buyer may be able to take possession of Goods by the removal date. The Removal date is occupancy provided by NMC for Buyers to remove their Goods in accordance with the Terms and Conditions of Sale. NMC may choose to extend the Removal Date at its own discretion due to delay, act of God, government delay, government restrictions, prohibitions, public enemy, allocations or delays imposed by government authority, or other delays for which NMC sees fit for extension of the Removal Date (2) No Goods shall be removed until the full purchase price and all applicable Taxes thereon have been received by NMC in the form required herein. ANY ITEMS NOT REMOVED ON OR BEFORE THE REMOVAL DATE SHALL BE DEEMED ABANDONED AND NMC SHALL HAVE NO FURTHER OBLIGATION TO BUYER WITH RESPECT TO SUCH ITEMS EXCEPT THAT BUYER SHALL NONETHELESS BE OBLIGATED TO PAY THE BALANCE OF THE PURCHASE PRICE INCLUDING ANY BUYER’S PREMIUM AND ANY ADDITIONAL COSTS INCURRED BY NMC. BUYER CONSENTS THAT NMC MAY DISPOSE OF ANY AND ALL ITEMS NOT PAID FOR AND REMOVED BY THE REMOVAL DATE AND MAY RESELL, SCRAP, AND/OR OTHERWISE DISPOSE OF SUCH ITEMS. IN THE EVENT ABANDONED ITEMS OR GOODS BECOME AN INCURRED COST TO NMC TO DISPOSE OF OR ABANDONED ITEMS OR GOODS FURTHER DAMAGE NMC, NMC’S CLIENT, CONSIGNOR OR OWNER OF THE PREMISES WHERE THE GOODS HAVE BEEN ABANDONED, THEN BIDDER SHALL BE RESPONSIBLE FOR THE FULL AMOUNT OF ANY AND ALL DAMAGE OR COST OF SUCH CLAIM, COST OR JUDGEMENT INCLUSIVE OF ATTORNEYS FEES.

9. Buyer shall be responsible for the safe and proper removal of any Goods purchased by Buyer and to secure any permitting either individually or through a third party machinery mover, rigger or contractor required to remove Goods if such is required by federal, state or local government agency or entity. Title and risk of loss passes to Buyer upon full payment of invoice. NMC may remove any party or individual from the auction site for theft, attempted theft, unsafe behavior and harassment or unsafe work practices with no guarantee for re-entry to the auction site. NMC does not pack, ship, store, crate or rig items or Goods. In some instances, NMC may collect fees on behalf of a third party service provider. Any cost for rigging, machinery moving, or third party service providers invoiced by or collected by NMC for services, removal or rigging on behalf of any third party, rigger, machinery mover or contractor is done strictly as a convenience to Buyers and is remitted 100% to the party rendering the services. NMC’s invoicing and collection of such fees as a convenience or listing of third party service provider or riggers approved to work at the auction site in no way whatsoever represents any warranty, guarantee or implied liability of NMC related to any third party service provider, rigger, removal party, removal of Goods or endorsement of the listed third party service provider, riggers or exclusive rigger. NMC shall not be liable or responsible for any action or actions of any machinery mover, machinery rigger, contractor, third party transportation company, or for proper or timely delivery of Goods to Buyer. Buyers may either pick up Goods at the designated auction site personally or can contract with a third party agent to manage the removal process for them. Before Goods can be removed by an Agent, Agent must provide NMC with (1) proof of payment in full (Paid In Full Invoice) and (2) an “Agent Release Authorization” form which allows NMC to release items to a third party contractor for shipping, crating or packing purposes. If an exclusive rigger(s) is appointed to the auction, Buyer is urged to contact any third party service provider, the listed riggers or exclusive rigger(s) prior to bidding to determine in Buyer’s sole opinion and discretion that such party is fit to perform the services or removal and loading of Buyer’s Goods and to understand the fees and services to be rendered. When an exclusive rigger is assigned, buyer will abide to the posted fees. No exceptions.

10. Goods that cannot be removed by hand carry from the auction site, or premises, or that requires any utility disconnection, or tools to remove Goods, must be removed by a qualified, insured rigger, approved by NMC. Before any removal, Buyer must provide NMC with a certificate of insurance from the rigger, which certificate must be in form, scope and content acceptable to NMC in NMC’S sole discretion. Without limiting NMC’s discretion, such certificate must show that the rigger carries comprehensive liability insurance written by an insurance carrier of national standing, in an amount of not less than two-million dollars ($2,000,000.00) and naming NMC, any landlord, and building owner as an additional insured party. NMC will provide parties required to be listed as additional insured upon inquiry by the rigger or removal company to gain access to auction site for removal. Without limiting the generality of the foregoing, Buyer shall be responsible to restore and repair all real and personal property and fixtures that are altered or damaged as a result of Buyer’s removal of the Goods to a condition substantially similar to the pre-removal condition. NMC shall review the repair and make a determination in its sole discretion, whether the repair is acceptable to NMC. NMC shall have no responsibility to disconnect utilities to the Goods, including but not limited to electric, gas, waste and water lines. Under any circumstance, utility disconnection shall take place at the first junction from the machinery, capped and left in safe condition. Electrical will be locked out, tagged out at the box with all conduit, wire and piping remaining in tact between the first disconnect and the lockout. Utility lines, air lines, etc. shall not be altered other than to be capped and left safe. In any removal of goods, the responsibility and liability of Buyer and Buyer’s rigger, representatives and contractors for any damage or loss due to removal of goods shall be joint and several. Buyer is solely responsible for the proper removal and storage in appropriate containers of all fluids, oils, hazardous chemicals, etc., from machinery purchased. Buyer does hereby indemnify NMC, the owner of the Goods and the owner of the premises in which the Goods are located, from any and all claims, damages, and losses arising from Buyer’s actions or actions with respect to the Goods and Buyer’s presence on the premises in which the Goods are located, including without limitation, injuries to persons or property and environmental violations or contamination. Risk of loss on any Goods shall pass to the Buyer upon payment in full to NMC of all sums due from Buyer in respect to the Goods.

11. Small Lot Removal. NMC shall have no responsibility whatsoever for any missing or lost items that can be removed by hand if such items have not been removed within forty-eight (48) hours of the conclusion of the sale. There will be NO removal of any lots until the auction is complete.

12. Default. Bidders must bid only on those items they are prepared to pay for and remove in accordance with the terms and conditions of this sale. All items awarded to high Bidders must be paid for by the Final Payment Date and removed by the Final Removal Date unless otherwise stated by NMC in writing. IN THE EVENT BUYER FAILS TO PERFORM CONTRACTUAL OBLIGATIONS (PAYMENT AND REMOVAL). BUYER WILL BE DEEMED TO BE IN DEFAULT AND NMC, AT ITS OPTION, MAY SCRAP, REMARKET OR RESELL THE PROPERTY, IN WHICH EVENT, BUYER WILL BE LIABLE FOR ALL LOSSES INCURRED INCLUDING THE DIFFERENCE BETWEEN BUYER’S WINNING BID PRICE AND THE RESALE PRICE, COSTS OF RESALE AND ANY LOSSES INCURRED BY NMC OR NMC’S CLIENT AS A RESULT OF BUYER’S DEFAULT.

13. After Buyer has removed any item from NMC’S possession or within two (2) days of the date of the auction, whichever is sooner, NMC shall have no obligation to make any adjustment or accommodation to Buyer because of any mistake in quantity with respect to such item or items. Buyer must make all requests for adjustments in writing to NMC before any item is removed from the premises where the auction is conducted.

14. NMC shall not be responsible for any damages, loss or theft of Goods or delays contemplated in Section 8 of these Terms and Conditions. Without limiting the foregoing, NMC shall not be responsible for damages or losses caused by strikes, civil disorders, acts of nature, government delay or imposed sanctions, machinery movers, riggers or acts of God.

15. If for any reason there is a final determination made by NMC that NMC is unable to deliver clear title or ability to remove any Goods purchased by Buyer, NMC’S sole liability shall be to return all sums paid by Buyer to NMC in respect of such Goods. Buyer/Bidder hereby agrees that under all possible circumstances, NMC’s maximum liability in any and all auctions and sales transactions is hereby limited to refunding the purchase price actually paid by the Buyer or Bidder for the applicable sale or auction transaction.

16. Minimum or Reserve Prices. NMC, in its sole discretion, reserves the right to establish a reserve or minimum price on any Goods without having to announce, post or publish notice to attendees and buyers at any auction. NMC reserves the right to confirm or reject the final bid. Further, NMC, and/or its affiliates or subsidiaries, may bid at the auction either for its own account or on behalf of a third party.

17. Absentee Bids. By completing an “Absentee (Proxy) Bidder Form,” Bidders may appoint NMC to be an agent and proxy for the sole purpose of purchasing the items listed when the Bidder CANNOT bid on the day of the sale. ALL BIDS ARE FINAL AND BINDING and DO NOT include any applicable buyer’s premiums and sales taxes. NMC will bid up to the specified maximum bid amount to win the item, using only the amount needed to win the item. NMC has complete discretion whether and when to accept Proxy bids. The auctioneer’s announcements at the time the lot is sold take precedence on any and all published materials. Proxy Bidders will be notified only if they have been declared the high bid. Notification will take place in the form of an electronic invoice, which will be sent to the email address provided during registration.

18. NMC, in its sole discretion, reserves the right to refuse the bid or cancel the lot sale of any person without providing any notice or reason therefore.

19. NMC, in its sole discretion, shall control all bidding increments, closing time extensions and advances at any auction. NMC reserves the right to reject any bid that is only a minimal increase over the preceding bid, that is not commensurate with the value of the item being offered or that NMC believes was made illegally or in bad faith. In the event of a dispute among Bidders, or tie bid, NMC may, in its sole discretion, either accept what it deems to be the final bid or re-open the lot to solicit further bids on the item in dispute. No returns or refunds will be permitted, unless authorized by the NMC in writing.

20. NMC reserves the right, in its sole discretion, to sell items advertised as a public auction sale, on a piece-by-piece basis or as a complete lot. Without limiting the generality of the foregoing, NMC may accept a complete lot bid and then conduct an item by item auction which auction shall be effective only if the total proceeds therefrom exceed the amount of the complete bid.

21. All information provided by NMC to a Buyer, including without limitation, any advertising, lot sales catalogs or otherwise, is subject to deletions, errors, additions, and changes without notice. Although information is gathered from sources thought to be reliable, NMC shall have no responsibility whatsoever for the correctness of any information provided to any attendee or Bidder. Every Bidder hereby agrees to rely solely on the Bidder’s own independent investigation and inspection of any and all Goods.

22. The auctioneer may add other terms and conditions of sale, such additional terms and conditions to be announced prior to the auction.

23. If NMC is selling or auctioning any Goods on behalf of a third party owner, NMC shall act as an agent only and shall have no liability whatsoever for the acts of any owner/principal of the third party.

24. Buyer hereby agrees to comply with all US export and import control and related laws, and acknowledge that NMC is not the exporter or importer of any purchased item. Certain items offered for sale at the auction may constitute “Restricted Technology.” Under federal law, such items may not be shipped outside the United States. NMC makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology, or whether any item may have been imported in violation of any U.S. laws or international treaties.

25. Each and every Buyer acknowledges that an auction site is a potentially dangerous place, Flammable, noxious, corrosive and pressurized substances may be present. Heavy equipment may be operated and electrical circuits may be live. Every person enters the auction site at his or her own risk with notice of the condition of the auction site or premises and the activities that will be or have been conducted on the premises. No person shall have any claim against NMC, the seller or their respective agents for any injuries sustained or for damages to or loss of property that may occur at or around the auction site.

26. If the Buyer fails to comply with any of the Terms and Conditions herein, in addition to the remedies provided for Default, NMC shall have all rights and remedies available to it at law and in equity. Without limiting the generality of the foregoing, NMC may retain all deposits and partial payments received from Buyer and may resell any Goods that Buyer fails to purchase. Buyer shall be responsible for all costs, losses, and damages suffered by NMC (i) as a result of Buyer’s breach of any of the Terms, including without limitation, lost profits and consequential damages, and (ii) incurred in connection with the enforcement of NMC’S rights, including, without limitation, legal fees and costs and expenses related to the resale of Goods, including storage and rigging fees.

27. As a prerequisite to asserting any claims against NMC, a Buyer must set forth those claims in writing in sufficient detail to advise as to the particulars of such claim and deliver it by Certified Mail, Return Receipt Requested, to NMC within thirty (30) days of the conclusion of the auction at its address at 23480 Park Sorrento, Suite 104B, Calabasas, CA 91302. Any dispute of any nature whatsoever asserted by a Buyer against NMC shall be instituted within one (1) year of the assertion of its written claim in a state or federal court in San Joaquin County, California, which shall have sole jurisdiction over such dispute. Any claim that NMC may have against the Buyer arising out of its default under the terms of this Agreement, shall similarly be instituted in San Joaquin County of California to which jurisdiction the Buyer irrevocably consents. Costs and attorneys’ fees shall be awarded to the prevailing party. Each Bidder herby waives trial by jury in any action, proceeding or counterclaim brought by any Bidder against NMC on any matter arising out of or in any way connected with these Terms and Conditions, the auction, the Goods or the purchased Goods.