ASSET PURCHASE AGREEMENT
by and among
This Agreement is made by and between _______________, a Georgia corporation (hereinafter referred to as "Seller"), and ______________, a Georgia corporation (hereinafter referred to as "Buyer").
Whereas, Seller is engaged in the ______ business, and operates_______; and
WHEREAS, Buyer desires to purchase, and Seller desires to sell, substantially all of the assets of Seller=s business, exclusive of the real property and appurtenances thereto upon which Seller currently conducts business, upon the terms and conditions hereinafter set forth; and
WHEREAS, Buyer=s shareholders desire to purchase, and Seller desires to sell, the real property and appurtenances thereto upon which Seller currently conducts business, upon the terms and conditions set forth in the accompanying Real Estate Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises herein contained, and intending to be legally bound, the parties agree as follows:
1. Purchase and Sale. Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to purchase from Seller, all of the tangible and intangible assets of Seller used in Seller?s restaurant and catering business (the "Assets"), as more fully described below:
(a) All improvements, furniture, fixtures, tools, machines, computers, software, assets, equipment, inventory, supplies, literature, business records, files, maintenance records, telephones, accounts receivable, insurance claims, causes of action, and any other items of personal property owned by Seller, wherever located, including, but not limited to, those assets listed on Exhibit A attached hereto and incorporated herein by reference.
(b) All of Seller=s goodwill and other intangible assets, including, without limitation, all customer lists, the names and addresses of suppliers, mechanics or service personnel, etc.
2. Buyer represents and warrants that it has inspected the Assets and accepts such assets in their current condition, with all faults. Seller hereby represents and warrants that it is the owner of the Assets, subject to the liabilities assumed hereunder, but expressly disclaims any warranties as to the condition or suitability of such Assets.
3. Treatment of Liabilities/Indemnification. Buyer shall assume only such liabilities or obligations whether accrued, contingent, or otherwise, of Seller which are hereinafter set forth in Exhibit B attached hereto and incorporated herein by reference. Buyer acknowledges that these liabilities may be adjusted in due course, between the date hereof and the Closing Date (hereinafter defined), if different. Buyer hereby indemnifies Seller from and against any and all claims, damages, losses, costs or expenses (including, without limitation, attorneys fees and disbursements) in any manner relating to such obligations assumed hereunder. Buyer shall assume no liabilities or obligations of Seller other than those identified on Exhibit B. Seller shall indemnify and hold Buyer harmless from and against any and all claims, damages, losses, costs or expenses not specifically assumed by Buyer herein and set forth on Exhibit B. Seller shall have the right to contest any such claims in good faith. In the event that a claim is made by a third party against Buyer or Seller which may give rise to a right or indemnity under this paragraph 3, the Buyer or Seller, as the case may be, agree to promptly notify the other in writing, which party may within five (5) business days from the date of such notice, elect to defend such claim at its expense.
4. Purchase Price/Allocation of Basis. The purchase price for the Assets being purchased hereunder shall be the sum of $______________, plus the assumption of the liabilities as described in Exhibit >B= attached hereto and incorporated herein by reference (the "Purchase Price"). The Purchase Price shall be allocated among the Assets as provided in the Form 8954 to be filed with the Internal Revenue Service following the Closing Date.
5. Payment of Purchase Price. Payment of the Purchase Price shall be made as follows: Buyer shall pay the sum of $_______ in cash to Seller at Closing. After closing, Buyer shall be free to re negotiate and enter into any arrangement with the creditors represented on Exhibit >B= attached hereto, and may discharge those obligations in due course. Buyer, and its shareholder _________________ individually, hereby indemnify and hold Seller, its officers, directors, shareholders, guarantors, agents, employees successors and assigns, harmless from and against any and all claims, damages or causes of action in any manner relating to or arising out of the obligations assumed hereunder.
6. Closing/Risk of Loss. The closing of the transactions contemplated by this Agreement shall take place at the offices of Lee, Black, Hart & Rouse, P.C., 6555 Abercorn Street, Suite 206, Savannah, Chatham County, Georgia, or at such other place as Buyer and Sellers shall agree, upon the "Closing Date". Seller shall, on the Closing Date, convey, transfer and assign to Buyer by Warranty deed, Bill of Sale, assignment or other appropriate instruments in form and substance satisfactory to Buyer and its counsel such Assets as are described in paragraph 1 hereof. Seller shall also, on and after the Closing Date and upon request of Buyer, execute such other documents as may be required in order to make effective the sale and transfer of Seller=s Assets as therein provided to vest fully in Buyer the title thereto and to otherwise effectuate the purposes of this Agreement. Buyer shall take possession of the Assets as of closing, and shall be entitled to occupy the leased premises identified in the Lease, and employ the Assets in a restaurant/catering business from the Closing Date. Risk of loss shall pass from Seller to Buyer at closing.
7. Covenants of Seller. Seller hereby covenants and agrees with Buyer that:
(c) Between the date of this Agreement and the Closing Date, except as otherwise permitted by the prior written consent of Buyer:
i. The business and operations of Seller will be conducted only in the ordinary course of business and all obligations under agreements binding upon Seller will be duly performed;
ii. Seller shall not mortgage, pledge or encumber any of the Assets; or
iii. Seller shall not make any commitments with respect to capital expenditures for the Seller, nor will Seller dispose of any of the Assets.
(d) Between the date of this Agreement and the Closing Date, Seller will use their best efforts to preserve the Assets and to maintain and preserve the goodwill of the customers and others having business relationships with Seller in connection with the Assets.
8. Seller=s Representations and Warranties. Seller hereby represents and warrants that:
(e) Seller is the sole owner of and have the full right and authority to sell the Assets to be transferred hereunder, all of which, except as otherwise specifically provided for in this Agreement (i.e., the lien of Megabank), are free and clear of any and all debts, claims, mortgages, liens, security agreements and other encumbrances equities or restrictions on transfer except or disclosed hereinafter in this Agreement.
(f) Seller is a corporation duly organized and validly existing under the laws of the State of Georgia. The execution and delivery of the this Agreement by officers executing and delivering the same have been duly authorized by Seller=s Board of Directors, and do not and will not violate any provision of Seller=s Articles of Incorporation, by laws or any contract or other agreement to which Seller is a party, or which is or purports to be binding upon Seller.
(g) With respect to the Assets, there is no litigation, arbitration or other legal proceeding pending, or to the knowledge of Sellers, threatened against Seller, and Seller are not in default with respect to any order of any court or government authority which may have been issued against Sellers.
(h) Except for leased equipment identified on Exhibit "B" attached hereto, and except for any lien or encumbrance securing the payment of an obligation specifically assumed by Buyer hereunder, Seller has good and marketable title to all the Assets free and clear of any mortgage pledge, lien, security interest, encumbrance or any other charge or restriction.
(i) Seller=s operation of the Assets has not been in violation of any existing or proposed environmental safety or health law, rule or regulation.
(j) Seller has disclosed to Buyer all material information to which Seller has notice or knowledge relating to Seller and the Assets which could reasonably be expected to have a material adverse effect on Buyer's operation of the Assets.
9. Buyer's Representations and Warranties. Buyer hereby represents and warrants that:
(k) Buyer is a corporation duly organized and validly existing under the laws of the State of Georgia.
(l) The execution and delivery of this Agreement by the officers executing and delivering the same have been duly authorized by Buyer's shareholders and board of directors, and do not and will not violate any provisions of Buyer's Articles of Incorporation, By Laws, or any contract or other agreement to which Buyer is a party or which is or purports to be binding upon Buyer.
10. Conditions. The obligation of Buyer to consummate the transaction contemplated by this Agreement is, at the option of Buyer, subject to the satisfaction, at or prior to the Closing Date, of the following conditions, which, if not so satisfied, shall entitle Buyer at its option to terminate its obligations under this Agreement.
(m) All proceedings taken in connection with the transaction contemplated hereby and all instruments and documents incident thereto shall be satisfactory in form and substance to Buyer and its counsel.
(n) Buyer shall acknowledge at closing that, as of closing:
iv. The Representations and warranties of Seller in Paragraph 7 hereof are true and correct.
v. This Agreement, the sale, conveyance, assignment and transfer of the Assets to Buyer pursuant to the terms hereof, have been duly authorized by all necessary corporate action on the part of Seller, and this Agreement has been duly executed and delivered and constitutes a legal, valid and binding obligation of Seller, enforceable in accordance with its terms.
vi. The Deeds, Bills of Sale, assignments, and other instruments of transfer delivered to Buyer pursuant to this Agreement have been duly executed and delivered and convey to Buyer good and marketable title to the assets of Seller to be sold hereunder.
vii. Seller, after reasonable inquiry, know of no litigation, proceeding or investigation pending or threatened against Seller which would materially adversely affect the Assets or operations or their right to consummate the transactions contemplated hereby, and none of the operations of Seller are in material violation of any existing federal, state or local environmental, safety or health law, regulation or rule.
11. Seller's execution of a Warranty Deed and Bill of Sale to the Assets to be identified in Exhibit "A" attached hereto shall be deemed to constitute an acknowledgment that the representations and warranties contained in this Paragraph 9(b) are true, correct, valid and enforceable as of the Closing Date.
(o) The representations and warranties of Seller made in this Agreement or any document or certificate delivered to Buyer pursuant hereto shall be true and correct on and as of the Closing Date with the force and effect as though such representations and warranties had been made on and as of the Closing Date, to such effect, certified by Seller.
(p) Seller shall have fully performed and complied with all covenants, terms and agreements to be performed and complied with by Seller on or before the Closing Date.
(q) On the Closing Date no action or proceeding against Seller before any court or governmental body shall be pending or threatened wherein an unfavorable judgment, decree or order would prevent the carrying out of this Agreement or any of the transactions or events contemplated by this Agreement or cause such transactions to be rescinded, require Seller to divest itself of any of its assets or properties of which, in the opinion of counsel for the Buyer, would make the transactions contemplated hereby imprudent.
(r) Buyer shall have received such other certificates, documents, assignments, instruments as counsel for Buyer shall reasonably request in order to consummate the transactions contemplated by this Agreement.
(s) Except as otherwise provided for herein, each of the parties hereto shall pay its own expenses in connection with the transactions contemplated by this Agreement.
(t) The parties hereto agree to execute and deliver all such further instruments and take such other further action as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and the intention the parties as expressed herein. Buyer specifically, and without limitation, agrees to execute the appropriate Uniform Commercial Code form necessary to perfect Megabank=s security interest in the Assets.
(u) All representations, warranties, covenants and agreements made by Seller and Buyer in this Agreement or pursuant to this Agreement shall survive the Closing Date. Notwithstanding any investigation conducted before or after the Closing Date, a party shall be entitled to rely upon the representations and warranties of the other party as set forth in this Agreement.
(v) This instrument contains the entire Agreement between the parties hereto with respect to the transactions contemplated herein. The parties hereto expressly agree that this Instrument supersedes and rescinds any prior written agreement between them pertaining to the sale of the Assets. This Agreement may not be amended, modified or discharged orally or otherwise than in writing, executed by all the parties hereto or the respective successors or assigns.
(w) This Agreement and the transactions and other instruments provided for herein shall be governed as to their validity, interpretation and effect by the laws of the State of Georgia, and may only be judicially enforced in any court of competent jurisdiction sitting in Chatham County, Georgia. This Agreement will be binding upon the respective successors and assigns of the parties hereto.
(x) Seller hereby indemnifies and holds Buyer harmless from and against any and all claims, lawsuits, damages or causes of action in any manner relating to or arising out of failure by Seller to notify creditors of the transaction contemplated herein as provided in the Georgia Bulk Sales Act, to the extent applicable.
(y) Nothing herein shall be construed as an agreement by Buyer to assume any contract to which Seller is a party or to hire any person currently employed by Seller in conjunction with the operation of the Assets.
(z) All covenants shall be binding upon and shall extend to the heirs, personal representatives, successors and assigns of the parties.
(aa) In the event any term, condition, covenant or agreement herein shall be deemed or declared to be invalid or unenforceable by any court of competent jurisdiction, such invalid or unenforceable term, etc., shall be severed from the remaining valid terms of this Agreement and shall not affect the validity or enforceability of such valid terms.
(ab) Time is of the essence in this Agreement.
This Agreement shall include those portions of this instrument denoted >Recitals= as well as those denoted Agreement.
IN WITNESS WHEREOF the parties have caused this agreement to be duly executed on this the ___ day of __________________, 20___
Sammy Seller, President
Billy Buyer, Chief Executive Officer
EXHIBIT A TO ASSET PURCHASE AGREEMENT
1. All improvements, furniture, fixtures, tools, machines, computers, software, assets, equipment, inventory, supplies, literature, business records, files, maintenance records, telephones, accounts receivable, insurance claims, causes of action, tables, tools, carts, dollies, and any other items of personal property owned by Seller, wherever located.
2. These Assets are pledged to secure an acquisition loan from _______ Bank to Seller in the current approximate amount of $110,000, and that security interest has been perfected in accordance with the provisions of the Georgia Uniform Commercial Code. Buyer acknowledges the existence and validity of that obligation.
EXHIBIT B TO ASSET PURCHASE AGREEMENT
(exclusive list of liabilities assumed)
3. Seller=s full obligation to ____, secured creditor, in the current approximate amount of $________.
4. Seller's obligation with respect to ______
5. Any other obligation of Seller for which any officer, director or shareholder, agent or employee of Seller shall be personally obligated to pay.