ASSET PURCHASE AGREEMENT

 

                    ASSET PURCHASE AGREEMENT

        BETWEEN

                                                                    XXX

                                                                            (“Buyer”)

              AND

                                                                      XXXX

         (“Seller”)

THIS AGREEMENT is made on the XXXX, is entered into by and between the Buyer and the Seller (Buyer and Seller collectively referred to herein as the “Parties” or individually as the “Party”).

WHEREAS:

  • The Buyer XXX with a mailing address of XXXX #113, City of Indian land, State of XXXX.
  • The Seller XXXX with a mailing address of XXX , City of Flower Mound, State of XXXX.
  • The Buyer wishes to buy and Seller wishes to sell to Buyer the Assets (as hereinafter defined).

THEREFORE, in consideration of mutual promises, representations, covenants, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree to the following terms and conditions and to be bound thereby:

  1. DEFINITIONS AND INTERPRETATIONS

‘SALE AND PURCHASE OF ASSETS’  At the “Closing” as hereinafter defined and subject to the terms and conditions of this Agreement, Seller agrees to sell, and Buyer agrees to purchase all of the following assets, tangible and intangible, which are used or useful in the business operations of the Seller and as more specifically defined below

  1. “TANGIBLE ASSETS” All tangible personal property, including all equipment, furniture, fixtures, machinery, vehicles, office furnishings, instruments, leasehold improvements, spare parts, and, to the extent assignable or transferable, all right in all warranties of any manufacturer or vendor with respect thereto owned by Seller or otherwise employed in the conduct and operation of the Business; (CHECK ONE)

☒ – No Tangible Assets.

☐ – Tangible Assets as described

  1. “INTANGIBLE ASSETS” means the copyright, know-how, the trade names and any marks, trade device, service mark, symbol, code or specification, patents, designs, and other individual or intellectual property rights used in or associated with any of the Parties;(CHECK ONE)

☐ – No Intangible Assets.

☒ – Intangible Assets as described:

Description of Intangible Asset(s)                                   Price: Sweat equity

  • Website
  • Mailing list
  • Certificates
  • “EXCLUDED ASSETS ’’ Any liability not expressly assumed by Buyer herein for the Assets that accrue before Closing are the sole liabilities and responsibility of the Seller, and Seller shall continue to be responsible for those liabilities that accrue for activity prior to Closing.

The Tangible Assets are listed in SCHEDULE A, the Intangible Assets in Schedule B, and Excluding Assets in SCHEDULE C

  1. “PURCHASE PRICE” The Buyer shall pay the Seller 75% of all entry fees for the remainder of the 2021 season-ending on November 30, 2021.
  2. “DEPOSIT”

As part of this Agreement: (CHECK ONE)

☒ – A deposit by the Buyer is Not Required.

  1. “INSPECTION”  The Parties agree that there: (CHECK ONE)

☐ – SHALL BE an Inspection Period. The Buyer shall have a period of ____ days to review the Assets and shall have the option to terminate this Agreement for any reason. If terminated, the Buyer shall have no obligations to perform under this Agreement, and any refundable Deposit shall be returned to the Buyer within five (5) days (“Inspection Period”).

☒ – SHALL NOT be an Inspection Period.

  • PAYMENT. Subject to the terms of this Agreement, the Purchase Price shall be paid in the following manner: (CHECK ONE)

☐ – To be paid at Closing, less any Deposit paid in Section V.

☐ – To be paid with Owner Financing provided by the Seller in accordance with the following payment structure:

  1. Down Payment (at Closing): $_________________
  2. Interest Rate: ____%
  3. Term: ____ ☐ Months ☐ Years
  4. Payment Due: On the ____ of every month.
  • FINANCING. This Agreement is: (CHECK ONE )

☒ – Not Contingent on the Buyer obtaining financing.

☐ – Contingent on the Buyer’s ability to obtain financing from a 3rd party. The Buyer has ____ days to obtain such financing and to show evidence in the form of a pre-approval letter from a credible lender.

☐ – Contingent on the Buyer’s ability to obtain financing from the Seller. The Buyer has ____ days to obtain approval from the Seller.

  1. “APPROVAL OF THIRD PARTY” This Agreement shall not constitute an agreement to assign any interest in any instrument, contract, lease, permit or other Agreement or arrangement or any claim, right or benefit arising under or resulting from them if an assignment without the consent of a third party would constitute a breach or violation of them or affect adversely the ability of Seller or one or more of its subsidiaries to convey the interest to Buyer without impairment.

For the Assets to be sold, there is: (CHECK ONE)

☒ – No Requirement for consent or approval from any 3rd party.

☐ – Requirement for consent or approval to sell the Assets by:

  1. “CLOSING”
  • The Closing of the transactions contemplated by this Agreement shall take place at 5:00 ☐ AM ☒ PM local time, at an agreed upon location by the Parties, on the XXX, or at such other time and date and/or at such other location as the Parties may mutually designate in writing (such Closing being called the “Closing” and such date being called the “Closing Date”).
  • (b) The transactions contemplated by this Agreement shall be effective as of 11:59 p.m. on (“Effective Time”).

(c) At the Closing, the Seller shall deliver to the Buyer the Seller’s Closing Documents.

(d) At the Closing, Buyer shall deliver to Seller the payment of the Purchase Price and the Buyer’s Closing Documents.

  1. Closing Costs. All costs associated with the Closing shall be the responsibility of (CHECK ONE)

☒ – Buyer

☐ – Seller

☐ – Both Parties bearing their expenses.

  • In this Agreement, unless the context otherwise requires, any reference to:
  • the singular includes the plural and vice versa;
  • a person includes reference to a body corporate or other legal entity;
  • any written law includes that law as amended or re-enacted from time to time;
  • any agreement or other document includes that Agreement or other document as varied or replaced by the Parties in writing from time to time;
  • a clause is to the relevant clause of this Agreement;
  • any Party includes that Party’s successors and assigns.
    • Clause headings are inserted for convenience only and shall be ignored in construing this Agreement.
    • The identification of certain breaches in this Agreement as being “Material” does not indicate that only those breaches are material.
    • Where the Agreement provides for the giving or issue of any notice, consent, approval certificate, or determination, it shall be in writing, and the words notify, certify or determine shall be construed accordingly. Routine communications relating to the performance of this Agreement may be conducted by electronic mail.
  1. application of terms and the Contractor UNDERSTANDING
    • Save as may otherwise be provided in this Agreement, the terms and conditions set out in this Agreement are the only terms on which the Company is prepared to deal with the Contractor. They shall govern the relationship between the Parties to the entire exclusion of all other agreements entered into with the Company concerning the provision of the Services.
    • If any ambiguity is found in the various documents forming this Agreement, the Contractor shall issue any necessary clarification or instruction.
    • All documents annexed to this Agreement shall be subject to the terms under this Agreement, provided that the Parties append their signatures on the documents.
  1. PAYMENT TERMS

The Buyer shall have 5(five) business days from 30th November, 2021 to remit the 75% of

all entry fees to the Seller.

  1. REPRESENTATIONS AND WARRANTIES OF SELLER

As of the Closing Date, Seller represents and warrants to the Buyer that,

  • ORGANIZATION, CORPORATE POWER, AND AUTHORITY
  • Seller is a duly formed, validly existing, and in good standing under the laws of the State of America and is duly qualified to do Business and is in good standing under the laws of the State of Texas.
  • The Seller has the corporate power and authority to own, lease and operate and hold its properties and to carry on its Business as now conducted.
  • The Seller has full corporate power and authority to execute, deliver and perform the corporate obligations and covenants contained in this Agreement and Seller’s Closing Documents and to carry out the transactions contemplated hereby and thereby.

4.2 The execution of this Agreement and the consummation of the transaction contemplated herein does not conflict with or violate any provisions of or create a breach of any agreement to which Seller is a party.

  • OUTSTANDING LIABILITIES

The Seller has and will deliver to Buyer at Closing, good and marketable title to all Assets to be transferred pursuant to this Agreement, free and clear of and from any claims, liens, encumbrances, security interest, or liabilities.

  • ADVERSE CHANGES

Except as may be expressly contemplated in this Agreement, there has not been any material adverse change in the Assets, taken as a whole, or in the Business of Seller, and such Business of Seller has been conducted only in the ordinary course.

  • TAXES

Seller paid or adequately provided for any and all taxes, licenses, or other charges levied, assessed, imposed, or accrued upon any of the property of the Seller or in connection with the Seller’s Business as of the date of this Agreement (including, without limitation, personal property tax, sales and use tax and any income taxes).

  • OUTSTANDING SUITS

There is no claim, action, suit, proceeding, or investigation pending or, to the knowledge of Seller, threatened, against, or involving Seller or one or more of its subsidiaries which questions the validity of this Agreement or seeks to prohibit or enjoin or otherwise challenge the transactions contemplated, and, to the Knowledge of Seller, there is no basis for any such claim, action, suit, proceeding or governmental investigation.

  • INSURANCE
  1. All Assets being sold herein by the Seller are and will be adequately insured against fire or other casualty up to the Closing Date, and valid policies therefore are and will be outstanding and duly in force, and the premiums thereon will be paid until the Closing Date.
  2. The Seller agrees to provide the Buyer with a copy of the current insurance policy, if any, within a reasonable time period. The Buyer has the option to assume the policy subject to the insurer’s approval.
  3. COVENANTS OF SELLER

Seller promises, covenants, and agrees as follows:

5.1 Seller shall use its reasonable best efforts to transition as much of Confidential Information as possible to Buyer, including Seller’s customers, clients, business relations, and goodwill.

5.2 Seller shall provide to Buyer, on or about the Closing Date, all of its billing records, any other records relating to customer accounts, and any other records required by Buyer.

5.3 Title. A bill of sale shall be delivered at the Closing that shall transfer all the Assets mentioned in this Agreement and be free and clear of all encumbrances. The Seller shall include any and all certificates and titles with the transfer of the Assets to be placed in the name of the Buyer or in a name the Buyer suggests.

  • Period until Closing. Until the Closing, the Seller assumes all risk of loss, damage, or destruction to the Assets subject to this Agreement until the Closing. If the Assets are damaged or lost prior to the Closing that their valuation is affected, the Seller agrees to negotiate, in good faith, a reasonable reduction in the Purchase Price due to such loss. The Parties shall have ____ days to negotiate such loss of value, or this Agreement shall be considered void with any Deposit made by the Buyer to be refunded.

5.5 RETURN OF MATERIALS. Any information that is obtained by the Buyer through the Seller shall be returned if there is no Closing.

  1. REPRESENTATIONS AND WARRANTIES OF THE BUYER

Buyer represents and warrants to Seller that the statements contained in this Agreement are true and correct as of the date hereof and as of the Closing Date.

6.1 Buyer is duly organized, validly existing, and in good standing under the Laws of the State of Texas.

6.2 Buyer has all necessary organizational power and authority to enter into this Agreement and the other Transaction Documents to which Buyer is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.

6.3 The execution of this Agreement and the consummation of the transaction contemplated herein does not conflict with or violate any provisions of the Articles of Organization or Operating Agreement of the Buyer, or any other agreement to which Buyer is a party.

  1. INDEMNIFICATION BY SELLER

After the Closing, subject to the other terms and conditions of this Agreement;

Seller shall indemnify Buyer and its Affiliates and their respective Representatives (collectively, the “Buyer Indemnified Parties”) against, and shall hold Buyer Indemnified Parties harmless from and against, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnified Parties based upon, arising out of, with respect to or by reason of:

(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement

(b) any breach or non-fulfillment of any covenant, Agreement, or obligation to be performed by Seller pursuant to this Agreement or in any Transaction Document;

(c) any Third Party Claims related to the Business, operations, properties, assets or obligations of Seller or any of its Affiliates conducted, existing or arising before the Closing;

(d) any Excluded Asset or Excluded Liabilities;

  1. INDEMNIFICATION BY BUYER

After the Closing, subject to the other terms and conditions of this Article VIII, Buyer shall indemnify Seller and its Affiliates (collectively, the “Seller Indemnified Parties”) against, and shall hold the Seller Indemnified Parties harmless from and against, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnified Parties based upon, arising out of, with respect to or by reason of:

  • any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement
  • any breach or non-fulfillment of any covenant, Agreement, or obligation to be performed by Buyer pursuant to this Agreement or in any Transaction Document;
  • any Third Party Claims related to the Business, operations, properties, assets or obligations of Buyer or any of its Affiliates conducted or arising after the Closing; or
  • any Purchased Assets or Assumed Liabilities.
  1. INTELLECTUAL PROPERTY

The Parties agree that any ideas, concepts, discoveries, techniques, patents, copyrights or trademarks which are developed or discovered by the Buyer, solely or jointly with others, during the subsistence of this Agreement shall automatically upon their creation become the exclusive property of the Buyer.

  1. DISPUTE RESOLUTION
  2. If any dispute arises between the Parties related to this Agreement, it shall be resolved by mediation between and among the parties with the help of a mutually agreed-upon mediator in Denton County, State of Texas.
  3. Any costs and fees incurred other than attorney fees associated with the mediation shall be shared equally by the parties.
  4. In the event that a dispute cannot be resolved through binding mediation, the Parties agree to submit to binding arbitration in Denton County, State of Texas, under the rules of the American Arbitration Association.
  5. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so. The prevailing Party shall be entitled to recover its costs and reasonable attorney’s fees.
  6. VARIATION to the agreement

Either Party may request variations to the Agreement.  The Parties shall enter into discussions to agree on any required changes, revised pricing, and time for performance.  Such variations will only be effective if agreed in writing by the Parties.

  1. Force Majeure
    1. For the purposes of this Agreement, “Force Majeure” means an event which could not reasonably have been avoided by a diligent party in the circumstances, which is beyond the reasonable control of a party and which makes a party’s performance of its responsibilities hereunder impossible or so impractical as reasonably to be considered impossible in the circumstances and includes, but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other action by government agencies.
    2. Force Majeure shall not include any event caused by the negligence or intentional action of a Party or such Party’s subcontractors or agents or employees or by a failure to observe good professional practice.
    3. Force Majeure shall not include insufficiency of funds or failure to make any payment required hereunder.
    4. The failure of a Party to fulfill any of its obligations hereunder shall not be considered to be a breach of or default under this Agreement insofar as such inability arises from an event of Force Majeure, provided that the Party affected by such an event has taken all reasonable precautions, due care, and reasonable alternative measures, all with the objective of carrying out the terms of this Agreement.
    5. A Party affected by an event of Force Majeure shall take all reasonable measures to remove such Party’s inability to fulfill its obligations hereunder with a minimum of delay. The Parties shall take all reasonable measures to minimize the consequence of any event of Force Majeure.
    6. A Party affected by an event of Force Majeure shall notify in writing the other Party of such event as soon as possible, and in any event not later than five (5) days following the occurrence of such event, providing evidence of the nature and cause of such event, and shall similarly give notice of the restoration of normal conditions as soon as possible.
    7. Not later than fourteen (14) days after the Contractor, as a result of an event of Force Majeure, has become unable to discharge a material portion of its obligations, the Parties shall consult with each other with a view to agreeing on appropriate measures to be taken in the circumstances.
  2. CONFIDENTIALITY

The Parties shall not at any time disclose, directly or indirectly to any other person whatsoever (including to the public or any section of the public) any information concerning this Agreement or any other information of any nature whatsoever concerning the Assets, other than (than respective advisors and internal staff of the Parties and necessary third (3rd) parties) whether such information or matter is stated to be confidential or not, without the express written permission of the Parties.  The Buyer gives this covenant on his behalf.

  1. NO WAIVER

Except where this Agreement provides otherwise, the rights and remedies contained in it are cumulative and not exclusive to rights or remedies provided by law.  The failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

  1. SEVERABILITY

If any provision of this Agreement is declared by any judicial or other competent to be void, voidable, illegal or otherwise unenforceable, the Parties shall amend that provision in such reasonable manner as achieves the intention of the Parties without illegality or at the discretion of the Buyer, it may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.

  1. CURRENCY.

All mentions of money or the usage of the “$” icon shall be known as referring to the US Dollar.

  1. APPLICABLE LAW

The Parties agree that the construction, validity, and performance of this Agreement shall be governed by the State of Texas Law.

  1. NOTICES

The Parties select as their respective addresses the addresses (including email) set out below for all purposes arising out of or in connection with this Agreement at which addresses only all processes and notices arising out of or in connection with this Agreement may validly be served upon or delivered by the Parties.

THE BUYER:                            ___________________________________________

                                                ___________________________________________

___________________________________________

___________________________________________

___________________________________________

___________________________________________

THE SELLER:                           ___________________________________________

___________________________________________

___________________________________________

___________________________________________

___________________________________________

___________________________________________

Either Party may provide changes in the above addressees by notice in writing given to the other Party as aforesaid.

XXII. ENTIRE AGREEMENT. This Agreement contains all the terms agreed to by the parties relating to its subject matter including any attachments or addendums. This Agreement replaces all previous discussions, understandings, and oral agreements.

SELLER

Seller’s Signature ______________________ Date ______________________

XXXX

BUYER

Buyer’s Signature ______________________ Date ______________________

XXXX

  •  

SCHEDULE A

TANGIBLE ASSETS

SCHEDULE B

INTANGIBLE ASSETS

  • Website
  • Mailing list
  • Certificates

SCHEDULE C

EXCLUDING ASSETS

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