Asset Purchase


ASSET PURCHASE AGREEMENT

 

            This Agreement effective as of the       day of                          , 20      by and among

                           (hereinafter “Seller”),                                 , a                        corporation

(hereinafter “Buyer”) and                                                       (hereinafter “Guarantors”).

 

            WHEREAS, Seller operates a business primarily engaged in the retail and wholesale of doughnuts, pastries and other bakery goods; and

 

            WHEREAS, Seller owns real estate, equipment, inventory, contract rights, and miscellaneous assets used in connection with the operations of his business; and

 

            WHEREAS, Buyer desires to acquire substantially all of the assets used or useful, or intended to be used in the operation of Seller’s business and Seller desires to sell such assets to Buyer; and

 

            WHEREAS, Guarantors are the shareholders of Buyer.

 

            NOW, THEREFORE, in consideration of mutual covenants contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

SECTION 1.   ASSETS PURCHASED; LIABILITIES ASSUMED

 

            1.1                   ASSETS PURCHASED.       Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller, on the terms and conditions set forth in this Agreement the following assets (“Assets”):

 

            1.1.1                That certain real property located at                                                 Road,

          ,              and all improvements thereon, more particularly described on Exhibit “A”.

 

            1.1.2                All equipment, rolling stock, tools, furniture and fixtures listed on Exhibit “B”, together with any replacements or additions to the equipment, etc. made prior to the closing date.              

 

            1.1.3                All inventories and supplies owned by Seller together with any replacements or additions to the inventories made prior to the closing date, but excluding inventory disposed of in the ordinary course of Seller’s business.

 

            1.1.4                All equipment leases, real property leases and other contracts rights listed on Exhibit “C”.

 

            1.1.5                All leasehold improvements installed by Seller at Seller’s                              location.

 

            1.1.6                All of Seller’s rights under sales orders and contracts for the sale of bakery goods and inventory items, if any, to which Seller is a party, including those entered into in the ordinary course of business prior to the closing date.

 

            1.1.7                Seller’s business name “                                                         ” within the

State of                   .

 

1.1.8                Seller’s business telephone numbers.

 

            1.2                   NO ASSUMPTION OF LIABILITIES.       Except for assuming responsibility for (1) all unfilled orders of bakery goods to customers of Seller, (2) payment of purchase orders for inventory items that have been placed by Seller prior to the closing date but that will not be delivered until after the closing date, (3) Seller’s obligations under contracts listed on Exhibit “C” and (4) the debts against the real property pursuant to Section 4, Buyer shall not be responsible or liable for any other debts or obligations of Seller.

 

SECTION 2.               EXCLUDED ASSETS           Excluded from this sale and purchase are Seller’s accounts receivable, cash, notes receivable, prepaid accounts, security deposits and any and all other assets except those listed in Section 1.1.

 

SECTION 3.               PURCHASE PRICE FOR ASSETS             The purchase price for the

assets shall be $                             , allocated as follows:

 

            1.         Real Estate                                                                                           $     .00

            2.         Equipment, contracts, rolling stock,

                        inventory and other personal property                                                          .00

            3.         Covenant Not to Compete                                                                          .00

 

                                                                                                TOTAL                        $     .00

 

            Buyer shall be responsible for all sales and transfer taxes associated with the contemplated transaction; provided, however, Seller agrees to execute or provide whatever documents are necessary for Buyer to have transferred to it and receive credit for any balance remaining on the vehicle tags of Seller.

 

SECTION 4.               PAYMENT OF PURCHASE PRICE           The price for the Assets shall be paid as follows:

 

            4.1                   At closing, Buyer shall pay to Seller the sum of $                        , including the earnest money of $1,000.00 previously paid by Buyer.

 

            4.2                   At closing, Buyer shall execute a promissory note to Seller in the principal

sum of $                          , bearing interest at the rate of 10% A.P.R. and payable in 180 equal

monthly installments of $                              , beginning                          , 20      (hereinafter “Seller Note”).

 

            4.3                   At closing, Buyer shall assume $                                  of the indebtedness

of Seller to                                                                     by executing a promissory note in said amount, bearing interest at the rate of 10% A.P.R. and payable in 120 equal monthly installments

of $ 1,033.10 beginning                      , 20      (hereinafter “                Note”).

 

            4.4                   The parties agree that amounts due hereunder shall be net amounts due to Seller without regard to any interest whatsoever, whether actual, imputed or implied.

 

SECTION 5.               ADJUSTMENTS       The operation of Seller’s business and related

income and expenses up to midnight on                   , 20      shall be for the account of Seller and thereafter for the account of the Buyer.  Expenses, including but not limited to utilities, personal property taxes, rents, real property taxes, wages, vacation pay, payroll taxes, and fringe benefits of employees of Seller shall be prorated between Seller and Buyer as of midnight on

          , 20     , the proration to be made and paid, insofar as reasonably possible, on the closing date, with settlement of any remaining items to be made on or before their due date.

 

SECTION 6.               SECURITY

 

            6.1                   As security for the timely performance of all of Buyer’s obligations under

the Seller Note,          Note and this agreement, Buyer shall grant, at closing:

 

                                                (a)        a first security interest in the real property described on Exhibit “A” and all improvements thereon to the holder of the Seller Note;

 

                                                (b)        a second security interest in the real property described on Exhibit “A” and all improvements thereon to the holder of the                                                   Note;

 

            At closing, Buyer shall execute and deliver appropriate Deeds of Trusts in the form attached as Exhibit “D”.

 

            6.2                   As additional security for the timely performance of all of Buyer’s obligations under this agreement, including the payment of the amount set forth in Section 4, Seller retains and, effective at closing, Buyer grants to Seller a security interest in the equipment, inventory and other personal property listed on Exhibit “B”, together with all accessories, substitutions, additions, replacements, parts and accessions affixed to or used in connection with such items (hereinafter the “Collateral”).  At closing, Buyer shall execute and deliver to Seller as Security Agreement in the form attached as Exhibit “E”.  Buyer shall also execute appropriate UCC Financing Statements for the perfection of the Seller’s security interest.

 

SECTION 7.               GUARANTY

 

            Guarantors unconditionally and irrevocably guarantee the performance of Buyer of each and every obligation of Buyer under this Agreement, the Security Agreement, the Seller’s Land Deed of Trust and collection of the Seller Note.  This guaranty shall be continuing and shall terminate upon the satisfaction by Buyer of each of Buyer’s obligations under this Agreement, the Security Agreement, Seller’s Land Deed of Trust and the Seller Note in accordance with their terms.  Seller agrees and covenants that he shall have no recourse against Guarantors for payment of the amounts due under Section 4 and for collection of the Seller Note pursuant to this Guaranty until Seller has first exhausted his legal remedies against Buyer by foreclosing, executing against or otherwise satisfying the obligations of Buyer from the real and personal property pledged by Buyer as security for said obligations.

 

            7.1                   GUARANTORS’ CONSENT.          Guarantors consent that Seller from time to time may extend the time for performance or otherwise modify, alter, or change this Agreement, the Seller Note, Seller’s Land Deed of Trust and the Security Agreement and may extend the time for payment of the Seller Note any may receive and accept notes, checks and other instruments for the payment of money made by Buyer and extensions and renewals of such items without in any way releasing or discharging Guarantors from their obligations under this Agreement.  Except as provided, herein above, this guaranty shall not be released, extinguished, modified, or in any way affected by failure on the part of Seller to enforce all the rights and remedies available to him under this Agreement.

 

            7.2                   BENEFIT.      This guaranty shall inure to the benefit of Seller and his successors, heirs, personal representatives and assigns.

 

            7.3                   JOINT AND SEVERAL LIABILITY.         This guaranty shall bind Guarantors jointly and severally and their respective heirs, personal representatives and assigns.

 

SECTION 8.               CLOSING COST       Seller agrees to pay a total of FIVE HUNDRED AND NO/100 DOLLARS ($500.00) towards the closing costs associated with this transaction, including but not limited to cost associated with, attorney fees, document preparation, title work, UCC searches and recording fees.  Buyer shall be responsible for the remainder of any such fees.

 

SECTION 10. SELLER’S REPRESENTATIONS AND WARRANTIES            Seller represents and warrants to Buyer as follows:

 

            10.1                 AUTHORIZATION.  Seller is fully authorized to execute, deliver and perform this Agreement and this Agreement constitutes a valid and binding agreement of Seller in accordance with its terms.

 

            10.2                 TITLE TO ASSETS AND DEFECTS.         Except as described in the Agreement, Seller holds good and marketable title to the assets, free and clear of restrictions on or conditions to transfer or assignment, and free and clear of liens, pledges, charges or encumbrances.  Except for needed repairs to the               , Seller knows of no latent or patent defects in any of the assets conveyed hereunder and to the best of his knowledge are in good working order.

 

            10.3                 BROKERS AND FINDERS.           Seller has not employed any broker or finder in connection with the transaction contemplated by this Agreement or taken action that would give rise to valid claims against any party for a brokerage commission, finder’s fee or other like payment.

            10.4                 FINANCIAL STATEMENTS.         Seller has delivered to Buyer year-end income statements for Seller’s fiscal year ended December 31, 20     , and has or will deliver to Buyer income statements for all the interim period ending June 30, 20     , prior to the closing date.  The income statements that have been or will be delivered are in accordance with the books and records of Seller and are true, correct and complete; fairly represent the cash flow conditions of Seller at the dates of such income statements and the results of its operations for the periods then ended; and were prepared in accordance with generally accepted accounting principles applied on a basis consistent with prior accounting periods.  Except as described in this Agreement, since the close of Seller’s last fiscal year and the date hereof, there has been no material adverse change in the financial condition of Seller.

 

            10.5                 TRANSFER NOT SUBJECT TO ENCUMBRANCES OR THIRD                                PARTY APPROVAL.            Except as may be provided law, the execution and delivery of this Agreement by Seller and the consummation of the contemplated transactions, will not result in the creation or imposition of any valid lien, charge or encumbrance on any of the assets, and will not require the authorization, consent, or approval of any third party, including any governmental division or regulatory agency.

 

            10.6                 LABOR AGREEMENTS AND DISPUTES.          Seller is neither a party to, nor otherwise subject to any collective bargaining or other agreement governing the wages, hours, in terms of employment of Seller’s employees.  Seller is not aware of any labor dispute or labor trouble involving employees of Seller.

 

            10.7                 NONCANCELLABLE CONTRACTS.       Except for the contract with

                               , at the time of closing, there will be no material leases, employment contracts, contracts for services, or maintenance, or other similar contacts, existing or related to or connected with the operation of Seller’s business not cancelable within thirty (30) days.

 

            10.8                 COMPLIANCE WITH CODES AND REGULATIONS.  Seller has no knowledge that the real estate or leasehold improvements violate any provisions of any applicable building codes, fire regulations, building restrictions, or other ordinances, orders or regulations.  Seller does not have any knowledge of any environmental hazards or risks that exist on the real property purchase or subleased hereunder nor does he have knowledge of any violations of any state or federal environmental laws or regulations committed by himself or any prior owner.

 

            10.9                 LITIGATION.           Seller has no knowledge of any claim, litigation, proceeding, or investigation pending or threatened against Seller that might result in any material adverse change in the business or condition of the assets being conveyed under this Agreement.

 

            10.10               TAXES.          All applicable taxes arising out of the operation of the subject business by Seller, including but not limited to, federal and state withholding, employment, social security and sales taxes, not otherwise prorated pursuant to this Agreement, shall be the sole responsibility of Seller and shall be paid by Seller on or before their due date.

 

            10.11               ACCURACY OF REPRESENTATIONS AND WARRANTIES.  None of the representations or warranties of Seller contain or will contain any untrue statements of a material fact or omit or will omit or misstate a material fact necessary in order to make statements in this Agreement not misleading.  Seller knows of no fact that has resulted, or that in the reasonable judgment of Seller will result in material change in the business, operations, or assets of Seller that has not been set forth in this Agreement or otherwise disclosed to Buyer.

 

SECTION 11.             REPRESENTATIONS OF BUYER

 

            Buyer represents and warrants as follows:

 

            11.1                 CORPORATE EXISTENCE.           Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of                         .  Buyer has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder.

 

            11.2                 AUTHORIZATION.              The execution, delivery and performance of this Agreement have been duly authorized and approved by the Board of Directors and shareholders of Buyer, and this Agreement constitutes a valid and binding agreement of Buyer in accordance with its terms.

 

            11.3                 BROKERS AND FINDERS.           Buyer has not employed any broker or finder in connection with the transactions contemplated by this Agreement and has taken no action that would give rise to a valid claim against any party for a brokerage commission, finders fee or other like payment.

 

            11.4                 ACCURACY OF REPRESENTATIONS AND WARRANTIES.  None of the representations or warranties of Buyer contain or will contain any untrue statement of a material fact or omit or will omit or misstate a material fact necessary in order to make the misstatements contained herein not misleading.

 

SECTION 12. COVENANTS OF SELLER

 

            12.1                 SELLER’S OPERATION OF BUSINESS PRIOR TO CLOSING.          Seller agrees that between the date of this Agreement and the date of closing, Seller will:

 

            12.1.1  Continue to operate the business that is the subject of this Agreement in the usual and ordinary course and in substantial conformity with all applicable laws, ordinances, regulations, rules, or orders, and will use its best efforts to preserve its business organization and preserve the continued operation of its business with its customers, suppliers, and others having business relations with Seller.

 

            12.1.2  Not assign, sell, lease or otherwise transfer or dispose of any of the assets used in the performance of its business, whether now owned or hereafter acquired, including but not limited to the real property identified on Exhibit “A” and the items listed on Exhibit “B”.

 

            12.1.3  Maintain all of its assets other than inventories in their present conditions, reasonable wear and tear and ordinary usage excepted and maintain the inventories at levels normally maintained.

 

            12.2                 ACCESS TO PREMISES AND INFORMATION.            At reasonable times prior to the closing date, Seller will provide Buyer and its representatives with reasonable access during business hours to the assets, titles, contracts and records of Seller and furnish such additional information concerning Seller’s business as Buyer may from time to time reasonably request.

 

            12.3                 EMPLOYEE MATTERS.

 

            12.3.1  Prior to closing, Seller will deliver to Buyer lists of the names of all persons on the payroll of Seller, together with a statement of amounts paid to each during Seller’s most recent fiscal year and amounts paid for services from the beginning of the current fiscal year to a closing date.  Seller will also provide Buyer with a schedule of all employee bonus arrangements and a schedule of other material compensation or personnel benefits or policies in effect.

 

            12.3.2  Prior to the closing date, Seller will not, without Buyer’s prior written consent, enter into any material agreements with its employees, increase the rate of compensation or bonus payable to or to become payable to any employee or effect any change in the management, personnel policies, or employee benefits, except in accordance with existing employment practices.

 

            12.3.3  As of or prior to the closing date, Seller will terminate all of his employees not having employee agreements transferred to Buyer under this Agreement and will pay each employee all wages, commissions, and accrued vacation pay earned up to the time of termination, including overtime pay.

 

            12.4                 CONDITIONS AND BEST EFFORTS.      Seller will use his best efforts to effectuate the transactions contemplated by this Agreement and to fulfill all the conditions of the obligations of Seller under this Agreement, and will do all acts and things as may be required to carry out their respective obligations under this Agreement and to consummate and complete this agreement.

 

SECTION 13. COVENANTS OF BUYER  

 

            13.1                 CONDITIONS AND BEST EFFORTS.      Buyer will use its best efforts to effectuate the transaction contemplated by this Agreement and to fulfill all the conditions of Buyer’s obligations under this Agreement, and shall do all acts and things as may be required to carry out Buyer’s obligations and to consummate this Agreement.

 

            13.2                 CONFIDENTIAL INFORMATION.          If for any reason the sale of Assets is not closed, Buyer will not disclose to third parties any confidential information received from Seller in the course of investigating, negotiating, and performing the transactions contemplated by this Agreement.    

 

SECTION 14. NON-COMPETITION COVENANT

 

            14.1                 Seller hereby covenants and agrees that for a period of three (3) years, Seller will not (1) engage directly or indirectly in any business competitive with the business Buyer is purchasing from Seller within        Counties,        or (2) directly or indirectly suggest, request, or encourage any prior employees, suppliers, or customers of Seller to curtail, reduce, or cancel their employment or business done with Buyer.  Provided, however, Buyer and Seller agree that the act of Seller providing advice and consultation to his brother with regard to the two (2) doughnut shops currently owned by Seller’s brother shall not constitute a violation of this non-competition covenant.

 

            14.2                 ENFORCEMENT     It is recognized that damage in the event of breach of the covenants of Seller herein would be difficult if not impossible to ascertain.  It is therefore agreed that Buyer, in addition to and without limiting any other remedy or right that it may have, shall have the right to an injunction against Seller issued by a court of competent jurisdiction enjoining such breach.

 

SECTION 15. CONDITIONS PRECEDENT TO BUYER’S OBLIGATIONS    

 

            The obligation of Buyer to purchase the Assets is subject to the fulfillment, prior to or at the closing date, of each of the following conditions, any one or portion of which may be waived in writing by Buyer:

 

            15.1                 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.

 

                                    All representations and warranties made in this Agreement by Seller shall be true as of the closing date as fully as those such representations and warranties had been made on or as of the closing date, and, as of the closing date, Seller shall not have violated or shall have failed to perform in accordance with any covenant contained in this Agreement.

 

            15.2                 CONDITIONS OF THE BUSINESS.          There shall have been no material adverse change in the manner of operation of Seller’s business prior to the closing date.

 

            15.3                 NO SUITS OR ACTIONS.   At the closing date, no suit, action or other proceeding shall have been threatened or instituted to restrain, enjoin or otherwise prevent the consummation of this Agreement or the contemplated transactions.

 

SECTION 16. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER

 

            The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior to or at the closing date, of the following condition, which may be waived in writing by Seller:

 

            All representations and warranties made in this Agreement by Buyer shall be true as of the closing date as fully as though such representations and warranties have been made on and as of the closing date, and Buyer shall not have violated or shall not have failed to perform in accordance with any covenant contained in this Agreement.

 

SECTION 17. BUYER’S ACCEPTANCE    Buyer represents and acknowledges that Seller has made no agreement or promise to repair or improve any of the leasehold improvements, equipment, or other personal property being sold to Buyer under this agreement, and that Buyer takes all such property in the condition existing as of the date of closing.

 

SECTION 18.             RISK OF LOSS         The risk of loss, damage, or destruction to any of the real property, equipment, inventory, or other personal property to be conveyed to Buyer under this Agreement shall be borne by Seller to the time of closing.  In the event of such loss, damage or destruction, Seller, to the extent reasonable, shall replace the lost property or repair or cause to repair the damaged property to is condition prior to the damage.  If replacement, repairs or restoration are not completed prior to closing, then the purchase price shall be adjusted by an amount agreed on by Buyer and Seller that will be required to complete the replacement, repair or restoration following closing.  If Buyer and Seller are not able to agree, then Buyer, at its sole option and notwithstanding any other provision of this Agreement, upon notice to Seller, may rescind this Agreement and declare it to be of no further force and effect, in which event there shall be no closing of this Agreement and all terms and provisions of this Agreement shall be deemed null and void.  If, prior to closing, the real property where Seller’s                                operation is located is damaged or destroyed, then Buyer may rescind this Agreement in the manner provided above unless arrangements for repair satisfactory to all parties involved are made prior to closing.

 

SECTION 19. INDEMNIFICATION AND SURVIVAL

 

            19.1                 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.  All representations and warranties made in this Agreement shall survive the closing of this Agreement, except that any party to whom a representation of warranty has been made in this Agreement shall be deemed to have waived any misrepresentation or breach of representation or warranty which such party had knowledge prior to closing.  Any party learning of a misrepresentation or breach of representation or warranty under this Agreement shall immediately give notice thereof to all other parties to this Agreement.  The representations and warranties in this Agreement shall terminate three (3) years from the closing date, and such representations or warranties shall thereafter be without force or effect, except any claim with respect to which notice has been given to the party to be charged prior to such expiration date.

 

            19.2                 SELLERS INDEMNIFICATION.   Seller hereby agrees to indemnify and hold Buyer, its successors and assigns harmless from and against:

 

                                                (1)        Any and all claims, liabilities and obligations of every kind and description, contingent or otherwise, arising out of or related to the operation of Seller’s business prior to midnight on June 30, 1994, except for claims, liabilities and obligations of Seller expressly assumed by Buyer under this agreement or paid by insurance maintained by Seller or Buyer.

 

                                                (2)        Any and all damage or deficiency resulting from any material misrepresentation or breach of warranty or covenant, or nonfulfillment of any agreement on the part of Seller under this agreement.

 

            19.2.1 Seller’s indemnity obligations under 19.2 shall be subject to the following:

 

                                                (1)        If any claim is asserted by a third party against Buyer for which Buyer has a claim against Seller for indemnification under the provisions of this paragraph, the Buyer shall promptly give written notice to Seller concerning such claim and Seller shall, at no expense to Buyer defend the claim.

 

                                                (2)        Seller shall not be required to indemnify Buyer for any amount that exceeds the total purchase price paid by Buyer under Section 3 of this agreement.

 

            19.3                 BUYERS INDEMNIFICATION.  Buyer agrees to defend, indemnify and hold harmless Seller from and against:

 

            19.3.1              Any all claims, liabilities and obligations of every kind and description arising out of or related to the operation of the business following closing or arising out of Buyer’s failure to perform obligations of Seller assumed by Buyer pursuant to this agreement.

 

            19.3.2              Any and all damage or deficiency resulting from any material misrepresentation, breach of warranty or covenant, or nonfulfillment of any agreement on the part of Buyer under this agreement.

 

SECTION 20. CLOSING

 

            20.1                 TIME AND PLACE.  This agreement shall be closed at the offices of

                                                                            ,                       on the 30th day of June, 1994, or such other time as the parties may agree in writing.  If the closing has not occurred on or before July 15, 1994, then either party may elect to terminate this agreement.  If, however, the closing has not occurred because of a breach of contract by one or more of the parties, the breaching party or parties shall remain liable for breach of contract.

 

            20.2                 OBLIGATIONS OF SELLER AT  CLOSING.  At the closing, Seller shall deliver to buyer the following:

 

            20.2.1 Warranty deed, warranty bills of sale, assignments, properly endorsed certificates of title, and other instruments of transfer, in form and substance reasonably satisfactory to counsel for Buyer, necessary to transfer and convey all of the assets to Buyer.

 

            20.2.2  The Security Agreement referenced in Section 6.2.

 

            20.2.3  Possession of the business facilities to be conveyed pursuant to this Agreement.

 

            20.2.4  Such other certificates and documents as may be called for by the provisions of this Agreement.

 

            20.3                 OBLIGATIONS OF BUYER AT CLOSING.  At the closing Buyer shall delivery to Seller the following:

 

            20.3.1 A check on the Trust Account of                       in the amount specified in Section 4.1.

 

            20.3.2  Such other certificates and documents as may be called for by the provisions of this Agreement.

 

SECTION 21. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING

 

            21.1                 BOOKS AND RECORDS.  This sale does not include the books of account and records of Seller’s business.  However, Buyer may make and retain possession and custody of copies of any such books and records.  Seller shall retain its original books and records but shall make them available for inspection and additional copying by Buyer from time to time upon reasonable request.  Provided, however, Buyer agrees that all such books and records shall be confidential information belonging to Seller and shall not be disclosed to any person or entity, except to Buyer’s officers, directors, financial advisors and attorneys to whom such information is necessary, without the written consent of Seller.

 

            21.2                 SELLER’S RIGHT TO PAY.  In the event Buyer fails to make any payment of taxes, assessments, insurance premiums, or other charges that Buyer is required to pay to third parties under this Agreement, Seller shall have the right, but not the obligation, to pay same.  Buyer will reimburse Seller for any such payment immediately upon Seller’s demand, together with interest at the same rate provided in the Seller Note from the date of Seller’s payment until Buyer reimburses Seller.  Any such payment by Seller shall not constitute a waiver by Seller of any remedy available by reason of Buyer’s default for failure to make the payments.

 

SECTION 22. BULK SALES LAW.  Buyer waives compliance by Seller with the Bulk Transfer Act.  In the event any creditor of Seller claims the benefit of the Bulk Transfer Law as against Buyer or any of the assets being conveyed to Buyer under this Agreement, Seller, upon notification by Buyer, shall immediately pay or otherwise satisfy such claim or undertake its defense.  Seller shall indemnify and hold Buyer harmless from and against any and all loss, expense, or damage resulting from the failure to comply with the Bulk Transfer law.  If Seller fails to comply with the provision of this Section 22 and Buyer is required to pay any creditor of Seller in order to protect the property purchased under this agreement from claims or liens of Seller’s creditors, except those assumed by Buyer, the Buyer may offset the amount it pays against the balance due Seller by furnishing to the Seller proof of such payment in the form of a receipt from the creditor involved.

 

SECTION 23. TERMINATION OF AGREEMENT         

 

            23.1                 BY MUTUAL CONSENT.    This Agreement may be terminated by mutual written consent of Buyer and Seller.

 

            23.2                 BREACH OF REPRESENTATIONS AND WARRANTIES; FAILURE OF CONDITIONS.  Buyer may elect by notice to Seller, and Seller may elect by notice to Buyer, to terminate this Agreement if:

 

            23.2.1  The terminating party shall have discovered a material error, misstatement, or omission in the representations and warranties made in this Agreement by the other party which shall not have been cured by such other party within fifteen (15) days after written notice to such other party specifying in detail such asserted error, misstatement, or omission, or by the closing date, whichever first occurs.

 

            23.2.2  All of the conditions precedent of the terminating party’s obligations under this Agreement as set forth in either Section 15 or 16, as the case may be, have not occurred and have not been waived by the terminating party on or prior to the closing date.

 

            23.3                 CLOSING NOTWITHSTANDING THE RIGHT TO TERMINATE.  The party with a right to terminate this Agreement pursuant to Section 23.2.1 or 23.2.2 shall not be bound to exercise such right, and its failure to exercise such right shall not constitute a waiver of any other right it may have under this Agreement, including but not limited to remedies for breach of a representation, warranty, or covenant.

 

SECTION 24  MISCELLANEOUS 

 

            24.1                 The provisions of this Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors, and assigns of the parties.

 

            24.2                 Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be mailed by certified mail, return receipt requested, postage prepaid, addressed to the parties as follows:

 

            SELLER:                           BUYER:                                  

 

                       

            All notices and other communications shall be deemed to be given at the expiration of three (3) days after the date of mailing.  The addresses to which notices or other communications shall be mailed may be changed from time to time by giving written notice to the other parties as provided above.

 

            24.3                 In the event of a default under this Agreement, the defaulting party shall reimburse the non-defaulting party or parties for all costs and expenses reasonably incurred by the non-defaulting party or parties in connection with the default, including without limitation attorney fees.  Additionally, in the event a suit or action is filed to enforce this Agreement or with respect to this Agreement, the prevailing party or parties shall be reimbursed by the other party for all costs and expenses incurred in connection with the suit or action, including without limitation reasonable attorney fees at the trial level and on appeal.

 

            24.4                 No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executed in writing by the party making the waiver.

 

            24.5                 This Agreement shall be governed by and shall be construed in accordance with the laws of the State of                            .

 

            24.6                 This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements, representations, and understandings of the parties.  No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all parties.  If any provision of this agreement is deemed to be illegal or otherwise void, invalid, or unenforceable, such provision shall be disregarded and the remainder of this agreement without such provision shall not be affected and shall remain in full force and effect.

 

 

            Witness the signatures of the parties this the       day of                  , 20     .

 

SELLER:                                                                      BUYER:

 

______________________________            BY:_________________________________

                               , PRESIDENT

 

 

GUARANTORS:

 

__________________________________                ___________________________________

                               , INDIVIDUALLY                                                 , INDIVIDUALLY

 

 

STATE OF                          

COUNTY OF                        

 

            PERSONALLY appeared before me, the undersigned authority in and for the county and state aforesaid, the within named                                    , who acknowledged to me that he is President of              and who acknowledged that he/she signed and delivered the above and foregoing instrument on the date and year therein mentioned, for and on behalf of said corporation after first having been duly authorized so to do.

 

            GIVEN under my hand and official seal, this the       day of                                            , 20     .

                                                                                    __________________________

                                                                                    NOTARY PUBLIC

MY COMMISSION EXPIRES:

                                            

 

 

 

STATE OF                              

COUNTY OF                      

 

            PERSONALLY came and appeared before me, the undersigned in and for the jurisdiction aforesaid, the within named                                                              in the above and foregoing instrument of writing, who acknowledged to me that he signed and delivered the above foregoing instrument of writing on the day and in the year and for the purposes therein mentioned.

 

            GIVEN under my hand and official seal of office on this the       day of

                               , 20     .

 

                                                                                                __________________________

                                                                                                NOTARY PUBLIC

 

MY COMMISSION EXPIRES:

                                             

 

 

STATE OF                       

COUNTY OF                   

 

            PERSONALLY came and appeared before me, the undersigned in and for the jurisdiction aforesaid, the within named                                                               in the above and foregoing instrument of writing, who acknowledged to me that he signed and delivered the above foregoing instrument of writing on the day and in the year and for the purposes therein mentioned.

 

            GIVEN under my hand and official seal of office on this the       day of

                               , 20     .

 

                                                                                                __________________________

                                                                                                NOTARY PUBLIC

MY COMMISSION EXPIRES:

                                             

 

 

 

 

STATE OF                             

COUNTY OF                         

 

 

            PERSONALLY came and appeared before me, the undersigned in and for the jurisdiction aforesaid, the within named                                                                  in the above and foregoing instrument of writing, who acknowledged to me that she signed and delivered the above foregoing instrument of writing on the day and in the year and for the purposes therein mentioned.

 

            GIVEN under my hand and official seal of office on this the       day of

                               , 20     .

                                                                                                __________________________

                                                                                                NOTARY PUBLIC

 

MY COMMISSION EXPIRES:

                                             

 

BILL OF SALE

 

STATE OF                                    

 

COUNTY OF                                

 

 

                        FOR AND IN CONSIDERATION OF Ten Dollars cash in hand, and other good and valuable consideration, paid this day in full by                                                                      , a                 corporation (hereinafter “Purchaser”), the sufficiency of which is hereby acknowledged,

                                           (hereinafter “Seller”), does hereby bargain, sell, assign , convey and transfer to Purchaser all of the personal property set forth on Exhibit “A” attached hereto and incorporated herein by reference as if copied in words and figures (hereinafter the “Property”).  Seller warrants and guarantees that it holds good and marketable title to the Property, free and clear of any and all liens, pledges, charges, claims, offsets and encumbrances.

            THIS the       day of              , 20     .

 

                                                                        ______________________________________

 

 

 

            SWORN TO AND SUBSCRIBED BEFORE ME, this the       day of                          , 20     .

 

 

                                                                                    ________________________________

                                                                                    NOTARY PUBLIC

MY COMMISSION EXPIRES:

                                          

State Specific Agreement Forms

–For State Specific Agreement Forms you can download in Word format, go to

http://www.uslegalforms.com/agreement-forms.htm