Exhibit 10.12
ASSET PURCHASE AGREEMENT
This AGREEMENT is made as of the 25th day of September, 2000, by and
between Advantage Realty of Janesville, Inc., a Wisconsin corporation
("hereinafter "Buyer"), and Xxxxx and Associates Real Estate, Inc., a
Wisconsin corporation (hereinafter "Seller").
RECITALS
A. Seller operates a real estate brokerage office, located at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000 ( the "Business").
B. Seller desires to sell certain assets used by it in the operation of
the business and Buyer is willing to purchase the same under the terms and
conditions hereinafter set forth.
AGREEMENT
In consideration of the mutual provisions, representations, warranties
covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
TRANSFER OF ASSETS AND PROPERTIES
1.1 Purchase and Sale of Assets. On the terms and subject to the
conditions of this Agreement, on the Closing Date, the Buyer shall purchase
from the Seller and the Seller shall sell, assign, transfer and deliver to
the Buyer, the fixtures and equipment owned by Seller and used in the
operation of the Business as described on Exhibit A and all inventory located
at the Business as of the Closing Date (the "Assets") but shall exclude any
Excluded Assets as defined in Section 1.2.
1.2. Excluded Assets. The following assets (collectively, the "Excluded
Assets") shall be excluded from this Agreement, and shall not be assigned or
transferred to the Buyer.
See Exhibit B.
1.3 Instruments of Transfer. The transfer of the Assets of Seller, as
herein provided, shall be effected by bills of sale, assignments, drafts,
checks and other instruments of transfer and conveyance in such form as shall
be sufficient to transfer the Assets, as contemplated by this Agreement, and
as shall reasonably be required by Buyer.
ARTICLE 2
PURCHASE PRICE AND TERMS
2.1 Consideration for Assets. The purchase price to be paid by Buyer to
Seller for the Assets shall be determined follows:
1. The sum of One Hundred and Forty Thousand and no/100ths
($140,000.00) Dollars for the equipment, fixtures and goodwill
located at the Business. Seller
the sale.
2.2 Payment of Consideration. The purchase price shall be paid as
follows:
1. $30,000 shall be paid in cash or cash equivalents at closing
($20,000 has been paid as xxxxxxx money with the remaining
balance of $10,000 to be paid at closing).
2. $30.000 has been paid to and received by Seller as part of the
compensation due under the preliminary draft of the Seller's
engagement agreement, dated May 1, 2000.
3. Four equal payments of $12,500.00 commencing on Jan. 1, 2001
and continuing every three months until the last payment is
due on December 31, 2001.
4. 20,000 shares of Why USA Financial Group, Inc. common stock
shall be paid to Seller as and for the balance of the purchase
price. These shares shall be delivered to Seller upon the
successful completion of the term of the two year engagement
contract. A true and correct copy of the Engagement Contract
is attached hereto as Exhibit C and the terms thereof are
incorporated into this provision by reference.
ARTICLE 3
ASSUMPTION OF OF LIABILITIES
3.1 Limitation on Assumption of Liabilities. Seller shall transfer the
Assets to the Buyer free and clear of all liens and encumbrances. Buyer shall
not, by virtue of its purchase of the Assets, assume or become responsible for
any liabilities or obligations of the Seller except as stated herein.
ARTICLE 4
CLOSING
Subject to the conditions contained herein, the Closing of the
transactions to be effected hereunder (the "Closing") shall be held at such
location as is mutually agreed upon in writing by the Buyer and the Seller.
The closing shall occur an September 21st, 2000 (the "Closing Date").
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants with the intention that Buyer
shall rely thereon in performing hereunder, as follows:
5.1 Authority. Seller has the authority to sell the subject assets.
Buyer agrees, however, that Seller cannot assign its lease without permission
of the Landlord.
5.2 Title to Assets. Seller holds title to the Assets free and clear of
all liens, encumbrance.
ARTICLE 6
CONDUCT IN TRANSACTIONS OF BUSINESS PRIOR TO CLOSING
6.1 Conduct Of Business. From the date hereof, Seller agrees that its
business will be conducted in the ordinary course of its business.
6.2 Seller shall turn over to Buyer possession of the business and all
operations thereof immediately upon closing.
6.3 Announcements. Buyer and Seller agree not to make any announcements
or other public disclosure of the terms of the transaction contemplated by
this Agreement unless first mutually agreeing to do so.
ARTICLE 7
EXECUTION OF SUBLEASE, LEASE ASSIGNMENT AGREEMENT
The Parties agree that the parties will work to continue all existing
leases and contracts associated with the subject business location. The
parties will execute all documents necessary to complete the transaction.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification by the Seller. The Seller covenants and agrees with
the Buyer that the Seller shall pay and perform, and shall indemnify the
Buyer, and hold the Buyer harmless from and against any and all costs, losses,
claims, liabilities, damages and expenses (including reasonable attorney fees)
resulting from, arising out of, or incurred in connection with all liabilities
or claims relating directly or indirectly to the Assets or the business of
Seller which arise out of the events existing or occurring at any time before
the Closing.
8.2 Indemnification by the Buyer. The Buyer covenants and agrees with the
Seller that the Buyer shall pay and perform and shall indemnify the Seller,
and hold the Seller harmless from and against any and all costs, losses,
claims, liabilities, damages and expenses, (including reasonable attorney
fees) resulting from, arising out of, or incurred in connection with
liabilities or claims relating directly or indirectly to the Assets or the
business of Buyer which arise out of events existing or occurring at any time
on or after the Closing.
ARTICLE 9
MISCELLANEOUS
9.1 Entire Agreement. This Agreement (including Exhibits) supersedes
all prior agreements and understandings, oral and written, between the parties
hereto, with respect to the subject matter hereof and cannot be changed or
terminated orally, and this Agreement together with related agreements
executed in connection herewith, constituting the entire agreement of the
parties as to the matters set forth herein and therein.
9.2 Amendments. No amendments or waiver of any provisions of this
Agreement or any document referred to herein or contemplated hereby, shall be
effective unless the same shall be in writing and signed by all the parties
and then such waiver shall only be effective in the specific instance and for
specific purpose for which it was given.
9.3 No Warranties, Sale "As Is". Except as expressly stated in this
Agreement, the Seller makes no other warranties or representations expressed
or implied. The Buyer acknowledges that the Buyer is entering into this
Agreement and will be purchasing and the Assets and subleasing the Premises
after and in complete reliance upon Buyer's own inspection the Assets being
sold under this Agreement and the Premises being subleased. Buyer is acquiring
the Assets and subleasing the Premises on an "as is" basis without
representation or warranty, expressed or implied, of any kind whatsoever, by
Seller or any person or entity on behalf of Seller regarding the physical
condition of the Assets or Premises, the income producing value of the Assets
or the prior business of the Seller at the Business or regarding any other
matter relating to the condition or value of the Assets or Premises or their
fitness for any particular use.
9.4 Remedies. In the event Buyer shall default under this Agreement, then
and in that event Seller may terminate this Agreement and upon such
termination Seller may retain the xxxxxxx money as liquidated damages, time
being at the essence of this Agreement. This provision shall not deprive
either party of the lights of enforcing the specific performance of this
Agreement or avail itself of any other remedy for default which said party may
have at law, in equity or by statute.
9.5 Notices. Any notice, request, demand, or other communication
permitted hereunder shall be deemed duly given if delivered or mailed postage
prepaid, certified or registered, at the addresses as set forth below.
If to Buyer: Xxxxxx Xxxxxxxxx
c/o Why USA Financial Group. Inc.
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxxx XX 00000
If to Seller Xxxxx Xxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
9.6 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
pertained assigns. Except as provided herein, no party shall assign its
rights or obligations hereunder without the prior written consent of all the
other parties.
9.7 Controlling Law. This Agreement has been made under the laws of the
State of Minnesota and such laws will control its interpretation.
9.8 Captions. Captions to paragraph headings or captions appearing in
this Agreement are for convenience only and are not a part of this Agreement
and are not to be considered in interpreting this Agreement.
9.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to bee an original and all of
which shall constitute one in the same agreement.
9.10 Joint and Several Liability. If Buyer is composed of more than one
signatory to this Agreement, each signatory will be jointly and severally
liable with each other signatory for the payment and performance of all of the
terms and conditions of this Agreement. The act of written notice to, written
notice from, refund to, or signature of any signatory to this Agreement
including, without limitation modifications of this Agreement made by fewer
than all
the notice of refund, or signed.
SIGNATURES
Each of the parties has caused this Agreement to be executed by the
undersigned, its duly authorized officer as of the daft first above written.
SELLER:
DATED 9-25-00 XXXXX AND ASSOCIATES REAL ESTATE, INC.
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/s/ Xxxxx Xxxxx
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By: Xxxxx Xxxxx, President
BUYER:
DATED 9-25-00 ADVANTAGE REALTY OF JANESVILLE, INC.
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/s/ Xxxxxx Xxxxxxxxx
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By: Xxxxxx Xxxxxxxxx, President
By: Xxxx Neqaer, PresWut
