Assets Purchase
Agreement for Purchasing the Assets of a Running Restaurant
ASSETS PURCHASE AGREEMENT
This ASSET PURCHASE
AGREEMENT (this “Agreement"), dated the ______ day of .............. ........, is made by
and among:
M/s ....................., a
Partnership Firm formed under Indian Partnership Act, 1932 having its office at
..........................., through its partners Mr. ..................., son of ______, resident of
_________, Mr. ............. son of ______, resident of _________, and Mr. ................... son,
of ______, resident of _________, (hereinafter referred to as “Seller" which
express shall mean and include its representative, administrator, executors,
successors in title, successor in interest, nominee, legal heirs and assigns);
And
M/s ............................ being
a Company incorporated under the Indian Companies Act, 1956 and having its
registered office at ........................., through its authorized signatory Mr. ...............,
duly authorized by the Board vide Resolution dated _______, 2007 (hereinafter
referred to as “Purchaser" which expression shall mean and include its successors
in interest)
RECITALS
A.
WHEREAS,
the Seller is engaged in the business of running a restaurant, managing the
same and/ or in marketing there from various Food & Beverages products such
as Indian Foods, Pizzas, Burgers, Ice-Creams, Bakery and Confectionary products
etc. at .................. (hereinafter referred to as “Restaurant")
B.
WHEREAS,
the premises bearing number ....................... (hereinafter referred to as the
“Premises") where the Seller were running the Restaurant has been taken on
lease by the Seller from Mr. ................., the owner of the Premises.
C.
WHEREAS,
the Seller is the owner of all the fittings, fixtures, furniture’s,
furnishings, Kitchen equipments, Air-conditioning, Generator, Delivery Vehicles
and other delivery related equipments, Computer Systems, crockery/ cutlery
items, linen and all other items fitted or used in the Restaurant, more
appropriately described in Annexure A appended hereto and forming a part hereof
(hereinafter referred to as the “Assets").
D.
WHEREAS
the Seller has taken a term loan of Rs. 35,00,000/- from ................ Bank, ........
Branch for the purpose of meeting the cost of establishment of the Restaurant
and had secured the said loan through hypothecation of moveables (Furniture’s
and Fixtures) at the Restaurant which form a part of the Assets.
E.
WHEREAS,
the Seller is not willing to run the Restaurant and as such the Seller desire
to sell, and the Purchaser desires to purchase, directly, upon the terms and
conditions hereinafter set forth, all of the Assets of the Seller related to
the Restaurant in consideration of certain payments by the Purchaser.
NOW, THEREFORE, in
consideration of the premises and the agreements and covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, each of the Parties agrees as follows:
1.
Interpretation
In this Agreement,
unless the context otherwise requires:
a. Words denoting the
singular number shall include the plural and vice versa;
b. Heading and bold
typeface are only for convenience and shall be ignored for the purposes of
interpretation;
c. References to the
word “include" or “including" shall be construed without limitation;
d. References to this
Agreement or to any other agreement, deed or other instrument shall be
construed as a reference to such agreement, deed, or other instrument as the
same may from time to time be amended, varied or supplemented;
e. Reference to any
Party to this Agreement or any other agreement or deed or other instrument
shall include its successors or permitted assigns; and
f. A reference to a
section, paragraph or annexure is, unless indicated to the contrary, a
reference to a section, paragraph or annexure of this Agreement.
g. Words denoting a
person shall include an individual, corporation, company, partnership, trust or
other entity;
h. References to dates
and times shall be construed to be references to Indian dates and times;
i. References to the
word “days" shall, unless otherwise indicated, mean calendar days;
ARTICLE I
PURCHASE AND SALE;
PURCHASE PRICE
1.1. Purchase and Sale of Assets.
At the Closing, the
Sellers shall, sell, convey, transfer, assign and deliver to the Purchaser, and
the Purchaser shall purchase from the Sellers, the Assets, free and clear of
any encumbrances except as mentioned in this Agreement.
1.2. .Purchase Price. In full consideration
for the transfer of the Assets, the Purchaser will pay the Sellers a total
purchase price not exceeding Rs. ................./- [Rupees ...............] (the “Purchase
Price"). The Purchase Price shall be paid by the Purchaser at the instance and
mandate of the Seller to the following:
i.
to
................. Bank, ............ Branch by means of a bank draft, a sum of Rs. ____________,
being the amount outstanding against Loan A/c No. .............. of the Seller with the
.............. Bank, ...........; and
ii.
to
Mr. ....................., landlord of the Premises, by means of a cheque for a sum of Rs.
_________, being the amount outstanding against rent and other dues payable for
the Premises in settlement of full and final. An amount of Rs. _________ to be
paid in favour of the Seller towards the TDS payments that is required to
deducted from the payments being made to Mr. ............ and to be deposited with the
authorities by the Seller at its own cost and liability. ; and
iii.
to
the Electricity Board, .......... by means of a bank draft, a sum of Rs. ________
being the total outstanding against electricity dues of the Restaurant at the
Premises upto __________ payable by the Sellers .
1.1.
1.2.
1.3. The Seller agrees that the balance
amount of the Purchase Price (if any) after making the payments in accordance
with Clause 1.2 shall be retained by the Purchaser with them to be paid in such
amounts and to such creditors of the Seller (for the Restaurant and for dues
payable prior to the Closing Date) as directed in writing by the Seller. It is
further agreed that the Purchaser shall be liable to pay to the creditor’s of
the Seller only upto the extent of the balance of the Purchase Price available
with the Purchaser after making the payments under Clause 1.2.
1.4. The Seller agrees that the above
payment of the Purchase Price is being made on the instruction and mandate of
the Seller in the manner set out in Clause 1.2 and such payments shall be
deemed to be payments made to the Seller by the Purchaser for the Assets
purchased under this Agreement.
ARTICLE II
CLOSING AND
DELIVERIES
2.1.
Closing.
The closing of the purchase and sale of the Assets (the “Closing") shall take
place on [Date] simultaneously with the execution of this Agreement
(hereinafter referred to as the “Closing Date").
2.2.
Deliveries.
The Seller has handed
over the following to the Purchaser at the time of execution of this Agreement:
a. a letter of
confirmation from ............... Bank, ............ Branch certifying that, upon payment of the
outstanding amounts due to them from the Seller, which amounts shall be
quantified in the confirmation letter, the encumbrances on the Assets or any
part thereof created in their favor by the Seller shall be released.
b. a letter of
confirmation from Electricity Board, ............. certifying that, upon payment of the
outstanding amounts due to them from the Seller, which amounts shall be
quantified in the confirmation letter, no further amounts shall remain due and
payable by the Seller till the closing date.
c. a letter of
confirmation from Mr. ..................., landlord of the premises certifying that, upon
payment of the outstanding amounts due to him from the Seller, which amounts
shall be quantified in the confirmation letter, against the rent for the
Premises and other dues, no further amounts shall remain due and payable by the
Seller.
d. a letter of
confirmation certifying that, upon payment of the amounts as per Clause 1.2, no
further amounts shall remain due and payable by the Purchaser to the Seller or
to anyone else claiming through or on behalf of the Seller.
e. a letter of
confirmation certifying that, upon payment of the amounts as per Clause 1.2,
the Purchaser will not be deemed to have assumed any liability or obligation of
the Sellers and that the Purchaser will not become responsible for any
liability or obligation of the Seller.
2.1.
2.2.
2.3. Transfer and Delivery of Purchased
Assets.
At the Closing, the
Seller shall deliver or cause to be delivered to the Purchaser a Bill of Sale,
substantially in the form attached hereto as Annexure B, pursuant to which the
Seller will record the delivery and conveyance of the Assets to the Purchaser,
and the Purchaser shall record the receipt of the same;
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE SELLER
The Seller and its
Partners hereby, jointly and severally, represents and warrants to the
Purchaser, as of the Closing Date, that:
3.1. Organization of the Seller. The Seller
is a Partnership Firm duly organised under the laws of India and has the
requisite power and authority to own and sell the Assets and to carry on its
business as presently conducted.
3.2. Authority and Authorization; Enforceability.
a. The Seller has full
power and authority to execute and deliver this Agreement, and to consummate
the transactions contemplated hereby and to fully perform its obligations
hereunder.
b. This Agreement has
been duly and validly executed and delivered by the Seller and the same
constitutes a valid and binding obligation of each of the Partners of the
Seller, enforceable against each of the Partners of the Seller in accordance
with its terms.
i. There are no
outstanding claims or charge on the Assets, whether direct, indirect,
contingent, absolute, accrued or otherwise, nor does there exist any condition,
fact or circumstance that will create such claim/ charge on the Assets, except
as disclosed in this Agreement.
ii. On the Closing Date,
the Purchaser will own and possess, all right, title and interest in and to the
Assets, free and clear of any encumbrances. No claim by any third party
contesting the use or ownership of the Assets has been made, is currently
outstanding or is threatened, and, to the knowledge of the Seller, there are no
reasonable grounds for any such claim. None of the Partners of the Seller has
received any notice of, nor are they aware of, any fact which indicates any
conflict with, any third party with respect to the Assets, nor has any of the
Partners of the Seller received any claims against the Assets and, to the
knowledge of the Seller, there are no reasonable grounds for any such claim.
iii. That by the purchase
of the Assets under this Agreement and by making the payments in accordance
with Clause 1.2, the Purchaser shall not be deemed to have assumed and will not
become responsible for any liability or obligation of the Seller to any
creditor of the Seller whether pertaining to the Restaurant or the Premises or
otherwise.
3.3
Title to Assets.
a.
The
Sellers:
i.
are
the absolute beneficial owner of the Assets, with good and valid title, free
and clear of all encumbrances, except such encumbrances that will be released
at or subsequent to the Closing; and
ii.
are
exclusively entitled to possess and dispose of the Assets.
a.
b.
The
Assets to be transferred to the Purchaser under this Agreement constitute all
the assets, properties, rights and interests necessary to conduct the
Restaurant business in substantially the same manner as conducted by the Sellers
prior to the date hereof.
c.
The
Assets are in good condition, repair and (where applicable) proper working
order, having regard to their use and age and such Assets have been properly
and regularly maintained.
3.1.
3.2.
3.3.
3.4. Insurance. Annexure C to this Agreement
sets forth a list of all insurance policies (specifying the location, insured,
insurer, amount of coverage, type of insurance and policy number) maintained by
the Sellers relating to the Assets and
i.
all
such policies are in full force and effect, all premiums with respect thereto
covering all periods up to and including the Closing Date have been paid, and
no notice of cancellation or termination has been received with respect to any
such policy,
ii.
such
policies (A) are sufficient for compliance with all requirements of Law; (B)
are valid, outstanding and enforceable policies; (C) provide reasonable and
adequate insurance coverage for the Assets; (D) will remain in full force and
effect through the respective date set forth in Annexure C without payment of
additional premiums; and (E) will not in any way be affected by, or terminate
or lapse by reason of, the transactions contemplated by this Agreement.
3.1.
3.2.
3.3.
3.4.
3.5. Full Disclosure. The Seller has made
available to the Purchaser all information, as sought for by the Purchaser. All
information, which has been provided to the Purchaser relating to the Assets
are true and accurate in all material respects and no material fact or facts
have been omitted there from which would make such information misleading.
ARTICLE IV
CONDITIONS TO CLOSING
4.1.
Conditions
to the Purchaser’s Obligations. The obligation of the Purchaser to consummate
the transactions contemplated pursuant to this Agreement is subject to the
satisfaction or the written waiver by the Purchaser, on or prior to the Closing
Date, of each of the following conditions:
a. Representations and
Warranties. Each of the representations and warranties of the Sellers made in
this Agreement shall be true and correct, as of the Closing Date as if made on
such date.
b. No Proceeding or
Litigation. No action challenging the legality of, or seeking to restrain,
prohibit or materially modify, the transactions provided for in this Agreement
shall have been threatened or instituted and not settled or otherwise
terminated.
c. Certificate of the
Sellers. At the Closing, the Seller shall have delivered to the Purchaser
certificates signed by all the Partners of the Seller and dated the Closing
Date, certifying that the conditions stipulated in Clause 4.1(a) to Clause
4.1(b) hereof have been satisfied.
d. Other Deliveries. The
Sellers shall have complied with the requirements of Clause 2.2.
ARTICLE V
INDEMNIFICATION
5.1. Indemnification.
From and after the
Closing, the Seller and the each of the partners of the Seller, jointly and
severally, agrees to indemnify, defend and hold the Purchaser, its Affiliates,
successors, assigns and their respective directors, officers, representatives,
employees and agents, harmless from and against any and all losses,
liabilities, claims, damages, costs and expenses (including, without
limitation, legal fees and disbursements in connection therewith and interest
chargeable thereon) (collectively, “Claims") that may be incurred or suffered
by such Persons resulting or arising from or related to, or incurred or
suffered in connection with, (a) the Sellers’ operation of the Restaurant on or
before the Closing, (b) the failure of the Seller to assume, pay, perform and
discharge its liabilities other than those paid off by the Purchaser in
accordance with Clause 1.2 of this Agreement, or (c) any breach of any
representation, warranty, covenant or agreement made or obligation required to
be performed by the Seller under this Agreement.
5.2. Notice of Claim; Right to Participate
in and Defend Third Party Claim.
a. If the Purchaser
receives notice of the assertion of any claim, the commencement of any suit,
action or proceeding, or the imposition of any penalty or assessment by a third
party in respect of which the Purchaser has been indemnified by the Seller (a
“Third Party Claim"), then the Purchaser shall promptly provide the Seller with
written notice of the Third Party Claim, but in any event not later than 30
calendar days after receipt of such notice of the Third Party Claim. The
failure by the Purchaser to notify the Seller of a Third Party Claim shall not
relieve the Seller of any indemnification responsibility under Clause 5.1
unless such failure materially prejudices the ability of the Seller to defend
such Third Party Claim.
b. Any indemnifiable
claim hereunder that is not a Third Party Claim shall be asserted by the
Purchaser by promptly delivering notice thereof to the Seller. If the Seller
does not respond to such notice within ten (10) days after its receipt, it
shall have no further right to contest the validity of such claim.
ARTICLE VI
ARBITRATION
6.1.
If
any dispute or difference of any kind whatsoever shall arise between the
Parties in connection with or arising out of this Agreement, Parties shall
promptly and in good faith negotiate with a view to its amicable resolution and
settlement.
6.2.
In
the event no amicable resolution or settlement is reached within a period of
fifteen (15) days from the date on which the dispute or difference arose, such
dispute or difference shall be referred to a mutually acceptance single
Arbitrator or, upon the failure of the Parties to agree upon a single
Arbitrator, within a period of ten (10) days, each Party shall appoint one
arbitrator each and the two appointed arbitrators shall appoint the third
arbitrator who shall act as the presiding arbitrator under the provisions of
the Indian Arbitration and Conciliation Act, 1996. The arbitration proceedings
shall be held in New Delhi and the arbitrators shall give a reasoned award. It
is agreed that the arbitrators shall also determine and make an award as to the
costs of the arbitration proceedings.
6.3.
Notwithstanding
anything contained herein, the Parties shall have a right to institute legal
proceedings to prevent any continuing breach of the provisions of this
Agreement to seek an injunctive or any other specific relief.
ARTICLE VII
MISCELLANEOUS
7.1.
Expenses
and Taxes .
a. Each Party will bear
their own legal, accounting and other expenses incurred by such Party in
connection with the negotiation, preparation and execution of this Agreement
and the documents and transactions contemplated hereby.
b. The Purchaser shall
be responsible for and shall pay any stamp duty and payable in connection with
the transactions contemplated pursuant to this Agreement.
c. The Sellers shall be
responsible for and shall pay any capital gains, taxes, sales tax, income tax
and similar taxes payable as a result of the consummation of the transactions
contemplated in this Agreement.
7.1.
7.2. Any notice(s),
communication(s), request(s) or instruction(s) contemplated, provided or
required to be given hereunder by any Party hereto to the other shall be in
writing in English, and shall be deemed sufficiently given if delivered personally;
sent by facsimile transmission with confirmatory copies sent by recorded
delivery service; or sent by recorded delivery services; the registered mail
postage prepaid acknowledgment due;
If to Seller, then at
M/s XYZ & Co.
....................................
....................................
Tel: --------------
Fax: -------------
E-mail: ----------
If to Purchaser, then
at
M/s PQR Private
Limited
.................................
.................................
Tel : ...........................
Fax: ............................
All notice(s),
communication(s), request(s) or instruction(s) as aforesaid, if delivered
personally shall be deemed to have been received at the time of such delivery;
if sent by facsimile transmission shall be deemed to have been received (48)
forty-eight hours next after the same shall be proved to have been sent; if
sent by recorded delivery services shall be deemed to have been received (7)
seven days next after dispatch.
7.3.
7.3
Applicable Law. This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of India
without regard to its principles of conflicts of laws. The courts at ..............
shall have exclusive jurisdiction over all disputes or differences arising out
of this Agreement.
7.4.
7.4
Counterparts. This Agreement may be executed in two counterparts, each of which
will be deemed to be an original, and all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF
THE PARTIES HERETO HAVE SET AND SUBSCRIBED THEIR RESPECTIVE HANDS TO THESE
PRESENTS ON THE DAY, MONTH AND YEAR FIRST HEREINABOVE WRITTEN:
Signed and delivered
by Mr. ...........................
(Authorized Signatory
for PQR Private Limited)
(......................)
In the presence of:
Witness :
Name :
Address :
Signed and delivered
by of M/s XYZ & Co, through its partners Mr. ............................, Mr. .............. and Mr.
........................ (.........................)
(.........................)
(.........................)
In the presence of:
Witness :
Name :
Address :
