House Bill 0715

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    Florida House of Representatives - 1999                 HB 715

        By Representative Minton






  1                      A bill to be entitled

  2         An act relating to bulk sales; providing

  3         definitions; providing applicability;

  4         prescribing duties of buyers and sellers in

  5         bulk-sales transactions; requiring notice to be

  6         given to certain creditors of sellers;

  7         providing limits for filing actions against

  8         buyers in bulk sales; providing an effective

  9         date.

10

11  Be It Enacted by the Legislature of the State of Florida:

12

13         Section 1.  Bulk sales.--

14         (1)  As used in this section, the term:

15         (a)  "Assets" means the inventory that is the subject

16  of a bulk sale and any tangible personal property and

17  intangible personal property used or held for use primarily

18  in, or arising from, the seller's business and sold in

19  connection with that inventory, but the term does not include:

20         1.  Fixtures other than readily removable factory and

21  office machines;

22         2.  The lessee's interest in a lease of real property;

23  or

24         3.  Property to the extent that it is generally exempt

25  from creditor process under nonbankruptcy law.

26         (b)  "Bulk sale" means a sale not in the ordinary

27  course of the seller's business of more than half the seller's

28  inventory, as measured by value on the date of the bulk-sale

29  agreement if on that date the buyer has notice, or after

30  reasonable inquiry would have had notice, that the seller will

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    Florida House of Representatives - 1999                 HB 715

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  1  not continue to operate the same or a similar kind of business

  2  after the sale.

  3         (c)  "Claim" means a right to payment from the seller,

  4  whether or not the right is reduced to judgment, liquidated,

  5  fixed, matured, disputed, secured, legal, or equitable. The

  6  term includes costs of collection and attorney's fees only to

  7  the extent that the laws of this state permit the holder of

  8  the claim to recover them in an action against the obligor.

  9         (d)  "Claimant" means a person holding a claim incurred

10  in the seller's business other than:

11         1.  An unsecured and unmatured claim for employment

12  compensation and benefits, including commissions and vacation,

13  severance, and sick-leave pay.

14         2.  A claim for injury to an individual or to property,

15  or for breach of warranty, unless:

16         a.  A right of action for the claim has accrued;

17         b.  The claim has been asserted against the seller; and

18         c.  The seller knows the identity of the person

19  asserting the claim and the basis upon which the person has

20  asserted it.

21         3.  A claim for taxes owing to a governmental unit.

22         (e)  "Creditor" means a claimant or other person

23  holding a claim.

24         (f)  "Date of the bulk sale" means the later of the

25  date on which:

26         1.  More than 10 percent of the net contract price is

27  paid to or for the benefit of the seller; or

28         2.  More than 10 percent of the assets, as measured by

29  value, are transferred to the buyer.

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    Florida House of Representatives - 1999                 HB 715

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  1  For purposes of this paragraph, delivery of a negotiable

  2  instrument to or for the benefit of the seller in exchange for

  3  assets constitutes payment of the contract price pro tanto; to

  4  the extent that the contract price is deposited in escrow, the

  5  contract price is paid to or for the benefit of the seller

  6  when the seller acquires the unconditional right to receive

  7  the deposit or when the deposit is delivered to the seller or

  8  for the benefit of the seller, whichever is earlier; and an

  9  asset is transferred when a person holding an unsecured claim

10  can no longer obtain through judicial proceedings rights to

11  the asset which are superior to those of the buyer arising as

12  a result of the bulk sale. A person holding an unsecured claim

13  can obtain those superior rights to a tangible asset at least

14  until the buyer has an unconditional right, under the

15  bulk-sale agreement, to possess the asset, and a person

16  holding an unsecured claim can obtain those superior rights to

17  an intangible asset at least until the buyer has an

18  unconditional right, under the bulk-sale agreement, to use the

19  asset.

20         (g)  "Date of the bulk-sale agreement" means the date

21  on which a bulk-sale agreement becomes enforceable between the

22  buyer and the seller.

23         (h)  "Debt" means liability on a claim.

24         (i)  "Net contract price" means the new consideration

25  the buyer is obligated to pay for the assets less:

26         1.  The amount of any proceeds of the sale of an asset,

27  to the extent the proceeds are applied in partial or total

28  satisfaction of a debt secured by the asset; and

29         2.  The amount of any debt to the extent it is secured

30  by a security interest or lien that is enforceable against the

31  asset before and after it has been sold to a buyer. If a debt

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    Florida House of Representatives - 1999                 HB 715

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  1  is secured by an asset and other property of the seller, the

  2  amount of the debt secured by a security interest or lien that

  3  is enforceable against the asset is determined by multiplying

  4  the debt by a fraction, the numerator of which is the value of

  5  the new consideration for the asset on the date of the bulk

  6  sale and the denominator of which is the value of all property

  7  securing the debt on the date of the bulk sale.

  8         (j)  "In the ordinary course of the seller's business,"

  9  with reference to a sale, means that the sale comports with

10  usual or customary practices in the kind of business in which

11  the seller is engaged or with the seller's own usual or

12  customary practices.

13         (k)  "United States" includes its territories and

14  possessions and the Commonwealth of Puerto Rico.

15         (l)  "Value" means fair market value.

16         (m)  "Verified" means signed and sworn to or affirmed.

17         (2)(a)  Except as otherwise provided in paragraph (b),

18  this section applies to a bulk sale if:

19         1.  The seller's principal business is the sale of

20  inventory from stock; and

21         2.  On the date of the bulk-sale agreement the seller

22  is located in this state or, if the seller is located in a

23  jurisdiction that is not a part of the United States, the

24  seller's major executive office in the United States is in

25  this state.

26         (b)  A seller is deemed to be located at his or her

27  place of business. If a seller has more than one place of

28  business, the seller is deemed located at the seller's

29  executive office.

30         (c)  This section does not apply to:

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    Florida House of Representatives - 1999                 HB 715

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  1         1.  A transfer made to secure payment or performance of

  2  an obligation.

  3         2.  A transfer of property that is exempt from

  4  execution.

  5         3.  A sale of an asset encumbered by a security

  6  interest or lien if all the proceeds of the sale are applied

  7  in partial or total satisfaction of the debt secured by the

  8  security interest or lien or if the security interest or lien

  9  is enforceable against the asset after it has been sold to the

10  buyer and the net contract price is zero.

11         4.  A general assignment for the benefit of creditors

12  or to a subsequent transfer by the assignee.

13         5.  A sale by an executor, an administrator, a

14  receiver, a trustee in bankruptcy, or any public officer under

15  judicial process.

16         6.  A sale made in the course of judicial or

17  administrative proceedings for the dissolution or

18  reorganization or an organization.

19         7.  A sale to a buyer whose principal place of business

20  is in the United States and who:

21         a.  Not earlier than 21 days before the date of the

22  bulk sale obtains from the seller a verified and dated list of

23  claimants of whom the seller had notice 3 days before the day

24  the seller sent or delivered the list to the buyer or conducts

25  a reasonable inquiry to discover the claimants;

26         b.  Assumes in full the debts owed to claimants of whom

27  the buyer has knowledge on the date the buyer receives the

28  list of claimants from the seller or on the date the buyer

29  completes the reasonable inquiry, as the case may be;

30         c.  Is not insolvent after the assumption; and

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    Florida House of Representatives - 1999                 HB 715

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  1         d.  Gives written notice of the assumption not later

  2  than 30 days after the date of the bulk sale by sending or

  3  delivering a notice to the claimants identified in

  4  sub-subparagraph b.

  5         8.  A sale to a new organization that is organized to

  6  take over and continue the business of the seller and that has

  7  its principal place of business in the United States if:

  8         a.  The buyer assumes in full the debts that were

  9  incurred in the seller's business before the date of the bulk

10  sale;

11         b.  The seller receives nothing from the sale except an

12  interest in the new organization which is subordinate to the

13  claims against the organization arising from the assumption;

14  and

15         c.  The buyer gives written notice of the assumption

16  not later than 30 days after the date of the bulk sale by

17  sending or delivering a notice to each creditor whose debt is

18  assumed.

19         9.  A sale of assets having:

20         a.  A value, net of liens and security interests, of

21  less than $10,000. If a debt is secured by assets and other

22  property of the seller, the net value of the assets is

23  determined by subtracting from their value an amount equal to

24  the product of the debt multiplied by a fraction, the

25  numerator of which is the value of the assets on the date of

26  the bulk sale and the denominator of which is the value of all

27  property securing the debt on the date of the bulk sale; or

28         b.  A value of more than $25 million on the date of the

29  bulk-sale agreement.

30         10.  A sale required by, and made pursuant to, statute.

31         (3)(a)  In any bulk sale, the buyer shall:

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    Florida House of Representatives - 1999                 HB 715

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  1         1.  Obtain from the seller a list of all business names

  2  and addresses used by the seller within 3 years before the

  3  date the list is sent or delivered to the buyer;

  4         2.  Unless excused under paragraph (b), obtain from the

  5  seller a verified and dated list of claimants of whom the

  6  seller had notice three days before sending or delivering the

  7  list to the buyer and including, to the extent known by the

  8  seller, the address of and the amount claimed by each

  9  claimant;

10         3.  Give notice of the bulk sale in accordance with

11  paragraph (4)(a);

12         4.  Unless excused under paragraph (b), make available

13  the list of claimants by:

14         a.  Promptly sending or delivering a copy of the list

15  without charge to any claimant whose written request is

16  received by the buyer no later than 6 months after the date of

17  the bulk sale; and

18         b.  Permitting any claimant to inspect and copy the

19  list at any reasonable hour upon request received by the buyer

20  no later than 6 months after the date of the bulk sale; and

21         5.  Assure that the consideration payable to the seller

22  in a transaction under this section is applied so far as

23  necessary to pay those debts of the seller which are indicated

24  on the list of claimants.

25         (b)  A buyer who gives notice in accordance with

26  paragraph (4)(b) is excused from complying with the

27  requirements of sub-subparagraphs (a)2. and 4.

28         (4)(a)  Except as otherwise provided in paragraph (b),

29  the buyer shall send or deliver a written notice of the bulk

30  sale to each claimant on the list of claimants and to any

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    Florida House of Representatives - 1999                 HB 715

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  1  other claimant of whom the buyer has knowledge at the time the

  2  notice of the bulk sale is sent or delivered.

  3         (b)  The written notice of the bulk sale must state at

  4  least:

  5         1.  That the seller and buyer have entered into an

  6  agreement for a sale that may constitute a bulk sale under the

  7  laws of this state;

  8         2.  The date of the agreement;

  9         3.  The date on or after which more than 10 percent of

10  the assets were or will be transferred;

11         4.  The date on or after which more than 10 percent of

12  the net contract price was or will be paid;

13         5.  The name and mailing address of the seller;

14         6.  Any other business name and address listed by the

15  seller;

16         7.  The name of the buyer and an address of the buyer

17  from which information concerning the sale can be obtained;

18         8.  A statement indicating the type of assets or

19  describing the assets item by item;

20         9.  The manner in which the buyer will make available

21  the list of claimants, if applicable; and

22         10.  If the sale is in total or partial satisfaction of

23  an antecedent debt owed by the seller, the amount of the debt

24  to be satisfied and the name of the person to whom it is owed.

25         (c)  For purposes of subparagraphs (b)5. and 6., the

26  name of a person is the person's individual, partnership, or

27  corporate name.

28         (d)  The buyer shall give notice of the bulk sale not

29  less than 15 days before the date of the bulk sale.

30         (5)(a)  Except as provided in paragraph (c), and

31  subject to the limitation in paragraph (d):

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    Florida House of Representatives - 1999                 HB 715

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  1         1.  A buyer who fails to comply with the notice

  2  requirements of paragraph (3)(a) with respect to a creditor is

  3  liable to the creditor for damages in the amount of the claim,

  4  reduced by any amount that the creditor would not have

  5  realized if the buyer had complied; and

  6         2.  A buyer who fails to comply with any other

  7  requirement of paragraph (3)(a) with respect to a claimant is

  8  liable to the claimant for damages in the amount of the claim,

  9  reduced by any amount that the claimant would not have

10  realized if the buyer had complied.

11         (b)  In an action under subparagraph (a)1., the

12  creditor has the burden of establishing the validity and

13  amount of the claim, and the buyer has the burden of

14  establishing the amount that the creditor would not have

15  realized if the buyer had complied.

16         (c)  A buyer who:

17         1.  Made a good-faith and commercially reasonable

18  effort to comply with the requirements of paragraph (3)(a) or

19  to exclude the sale from the application of this section under

20  paragraph (2)(c); or

21         2.  On or after the date of the bulk-sale agreement,

22  but before the date of the bulk sale, held a good-faith and

23  commercially reasonable belief that this section does not

24  apply to the particular sale

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26  is not liable to creditors for failure to comply with this

27  section. The buyer has the burden of establishing the good

28  faith and commercial reasonableness of the effort or belief.

29         (d)  A payment made by the buyer to a person to whom

30  the buyer is, or believes he or she is, liable under paragraph

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    Florida House of Representatives - 1999                 HB 715

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  1  (a) reduces pro tanto the buyer's cumulative liability under

  2  that paragraph.

  3         (e)  An action may not be brought under subparagraph

  4  (a)2. by or on behalf of a claimant whose claim is

  5  unliquidated or contingent.

  6         (f)  A buyer's failure to comply with the requirements

  7  of paragraph (3)(a) does not impair the buyer's rights in or

  8  title to the assets; render the sale ineffective, void, or

  9  voidable; entitle a creditor to more than a single

10  satisfaction of his or her claim; or create liability other

11  than as provided in this section.

12         (g)  Nothing in this section shall be construed to

13  relieve the seller of any obligations to any unsecured

14  creditor of the debtor.

15         (h)  Unless otherwise agreed, a buyer has an immediate

16  right of reimbursement from the seller for any amount paid to

17  a creditor in partial or total satisfaction of the buyer's

18  liability under this section.

19         (i)  Any unsecured creditor of the seller shown on the

20  list prescribed in this section which is not paid by the buyer

21  shall be treated as a creditor that holds a security interest

22  under chapter 679, Florida Statutes, in the supplies,

23  inventory, merchandise, materials, or other property subject

24  to the transfer. The security interest of such unsecured

25  creditor shall be deemed valid and perfected as of the date of

26  the transfer, but in all events shall be subject and

27  subordinate to any validly perfected security interest held by

28  any other creditor for value in good faith and without notice

29  of the security interest of any unsecured creditor created

30  under this section, regardless of whether such other interest

31  is perfected before or after the transfer. A purchaser for

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    Florida House of Representatives - 1999                 HB 715

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  1  value in good faith and without notice of the security

  2  interest of any unsecured creditor created under this section

  3  shall be deemed to take title to such supplies, inventory,

  4  merchandise, materials, or other property free of such

  5  security interest.

  6         (6)(a)  Except as provided in paragraph (b), an action

  7  under this section against a buyer must be commenced within 1

  8  year after the date of the bulk sale.

  9         (b)  If the buyer conceals the fact that the sale has

10  occurred, the limitation is tolled and an action under this

11  section may be commenced within the earlier of: 1 year after

12  the person bringing the action discovers that the sale has

13  occurred or 1 year after the person bringing the action should

14  have discovered that the sale has occurred, but no later than

15  2 years after the date of the bulk sale. Complete

16  noncompliance with the requirements of this section does not

17  of itself constitute concealment.

18         Section 2.  This act shall take effect October 1, 1999.

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21                          SENATE SUMMARY

22    Prescribes duties of buyers and sellers in specified
      bulk-sale transactions. Requires notice of specified bulk
23    sales to be given to the seller's creditors. Prescribes
      content of such notice. Prescribes the buyer's liability
24    upon failure to give a required notice and provides
      remedies available to the buyer.
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