1. Executive Summary: Clive Barrett in his capacity as trustee under certain loan documents (the “Trustee”) will conduct, through his counsel acting as its agent, Parkins Lee & Rubio LLP (the “Agent”), on September 14, 2021, at 9:00 a.m. CDT or such later date as provided below (the “Auction Date”), a disposition of the below-described collateral by public sale (the “Auction”). To participate in the Auction, you must comply with the Participation Requirements below by September 9, 2021 (the “Qualification Deadline”). The below described collateral includes substantially all intellectual property of Overwatch Technologies, Inc. d/b/a Overwatch Digital Health.
2. Debtor: The debtor is Overwatch Technologies, Inc. d/b/a Overwatch Digital Health, a Texas corporation (the “Borrower”).
3. Secured Parties: The secured parties on behalf of whom the Trustee is conducting this public sale of the Property, as defined below, are the holders of the Convertible Notes (defined below) listed on Exhibit A hereto (the “Secured Parties”).
4. Agreements and Legal Authority Pursuant to Which the Sale is Held:
The foregoing documents, along with any other documents related thereto, are collectively referred to as the “Loan Documents.” The Auction is taking place in accordance with the provisions of the Texas Uniform Commercial Code, Section 9-101 et seq. (the “UCC”) as a result of certain defaults by the below named Borrower under the Loan Documents.
5. Date, Hour, and Manner of Sale: The Auction will be conducted on the Auction Date at 9:00 a.m. CDT virtually by online video conference using Zoom or similar platform (with a telephonic option for those who wish to dial in by phone only) (the “Video Platform”). Subject to applicable Federal, state, and local laws and rules related to the COVID-19 pandemic, there may also be the ability of qualified bidders to request to attend the sale in-person. The Trustee may elect to appoint a licensed auctioneer or other entity to conduct the Auction. The Auction may be recorded and/or transcribed.
6. Description of Property to be Sold: All of the right, title and interest of Borrower in all of Borrower’s assets described in the Loan and Security Agreement (the “Property”). The Property includes, without limitation, the following intellectual property of the Borrower:
The Secured Parties have a first-priority security interest in the Property. The total amount that due to the Secured Parties as of July 14, 2021, is $1,119,904.42. The Trustee may bid for the Property and credit bid against all or a portion of the total secured claim unless an agreement is reached with the Borrower. The Property will be sold free and clear of the liens of the Trustee and the Secured Parties and any subordinate security interests in the Property.
A complete description of the Property and related documents can be obtained by contacting the Agent as indicated herein.
7. Participation Requirements: In order to participate in the bidding process at the Auction and obtain admittance to the Video Platform, each person (a “Potential Bidder”) must deliver to the Agent at [email protected] and [email protected] by the Qualification Deadline:
A Potential Bidder that complies with the foregoing requirements shall be deemed a qualified bidder (each, a “Qualified Bidder”). The Trustee will be deemed to be a Qualified Bidder.
8. Information and Due Diligence: A Potential Bidder that executes a Confidentiality Agreement and provides information that demonstrates, in the Trustee’s sole discretion, that the Potential Bidder has the financial wherewithal to close on a sale of the Property will be permitted to perform due diligence by contacting the following representatives of the Agent: Lenard Parkins ([email protected]) and R. J. Shannon ([email protected]). The information provided to qualified, interested parties has been obtained from the Borrower or other parties. Neither the Trustee nor his agents or attorneys has independently verified such information, nor do they warrant the truth or accuracy of any statement made therein. Interested parties are solely responsible for performing their own due diligence to determine the nature, value, fitness for use and status of the offered Property through independent investigation by themselves and their legal and financial advisors.
9. Terms of Sale: At the Auction, the Property shall be offered for acquisition by Qualified Bidders. The Property will be sold at the public Auction to the highest Qualified Bidder. Agent reserves the right to permit, at its sole discretion, Qualified Bidders to participate telephonically in the auction. The Auction will be conducted by open bidding in the Video Platform and, if permitted, in-person at the offices of the Agent in accordance with the bidding procedures to be distributed by the Agent not less than one (1) business day prior to the Auction Date. The Auction will be recorded.
The Property shall be sold in one or more lots for cash at such price or prices and on such other commercially reasonable terms as the Trustee may determine in his sole discretion. Higher bids will continue to be entertained until the Trustee has determined that he has received the highest or best bid, in his sole discretion. The Trustee shall be permitted to bid at the sale and, notwithstanding any requirement herein that the sale of the Property be for cash, may credit its bid against all or a portion of his secured claim and become the purchaser of the Property. The Trustee reserves the right to reject all bids and terminate the sale or adjourn the sale to such other time or times as he may deem proper only by announcement on the date of sale or any subsequent adjournment thereof without further publication and impose any other commercially reasonable conditions upon the sale of the Property as he may deem proper. Payment will be accepted only by wire transfer of same day funds, or, in the case of purchase by the Trustee, credit against amounts due under the Loan Documents. Payment must be made in full (net of the Sale Deposit) within two (2) business days of the sale by a wire transfer of same day funds, or on such other terms as agreed by the Trustee in his sole discretion. The sale of the Property shall be effectuated by delivery of a Bill of Sale with no representations, no warranties (whether express or implied) and all Property sold, “as-is, where-is, with all faults.”
The Trustee, if he deems it advisable, will designate a second party as back-up bidder in the event that the successful bidder is unable to consummate the anticipated transaction. If, at any point, the successful bidder or backup bidder is unable to fulfill its commitments, its Sale Deposit will be forfeited to the Trustee. The Trustee may, in his sole and absolute discretion, waive this forfeiture.
10. No Warranties: The Property will be sold “AS IS, WHERE IS,” “WITH ALL FAULTS,” and “WITHOUT ANY WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, A WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR OR OTHER PURPOSE,” and subject to taxes, special assessments and liens that have been levied or assessed, and/or are unpaid or unsatisfied (none of which will be paid by the Trustee). The Property is being sold without recourse to the Trustee, his attorneys, or his representatives. The Trustee does not claim title to the Property being sold hereunder and disclaims any warranty of title, possession, quiet enjoyment, and the like in the sale.
The Trustee and Agent make no representation or warranty as to (i) state or condition of title, (ii) physical, financial, or environmental condition, (iii) existence, validity, or amount of any liens or claims senior to that of the Trustee or Secured Parties, or (iv) value of or income produced or that may be produced by the Property.
11. No Fees Payable: No person shall be entitled to any expense reimbursement, brokerage fee, breakup fee, “topping,” termination or similar fee or payout from the proceeds of the Sale.
12. Postponement of Public Sale: The Auction scheduled on the date set forth above may be postponed. In such event, an announcement of postponement of the scheduled sale will be made by Trustee at the currently proposed date and time of the Auction and by the Trustee contacting all Qualified Bidders by email.
13. For Additional Information: Please contact the representatives of the Agent, Lenard M. Parkins (713-715-1666; [email protected]) and R. J. Shannon (713-715-1664; [email protected]), if you seek any additional information regarding the Auction or the Property.
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