Schedule to Asset Purchase Agreement

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Schedule to Asset Purchase Agreement Powered By Docstoc
					This is a schedule that is designed to be used in conjunction with a separate asset
purchase agreement. This schedule provides details on purchase and sale related
matters, deliveries and conditions, and representations and warranties. Additionally,
this schedule can be customized to provide for any additional specific language that
may be necessary. This schedule can be used by individuals or small businesses that
have entered into a separate asset purchase agreement and want to provide more
details about the structure and requirements of the agreement.
                                  SCHEDULE "A"
       ADDENDUM TO ASSET PURCHASE AGREEMENT FOR
                  RESTAURANT ASSETS



                     PURCHASE AND SALE AND RELATED MATTERS

1.01    The terms and conditions contained on this Schedule “A” shall supersede any provision
        which is contrary to any provision contained in the Asset Purchase Agreement made
        between the parties. In the event of any conflict between the terms and conditions of this
        Schedule “A” and the terms and conditions contained in the Asset Purchase Agreement,
        the terms and conditions contained herein shall prevail.

1.02    The Purchase Price shall be allocated among the Purchased Assets in accordance with
        provisions contained in the Agreement of Purchase and Sale, and the Purchaser and the
        Vendor hereby agree to follow the allocations in determining and reporting their
        liabilities for any taxes and, without limitation, shall file their respective income tax
        returns prepared in accordance with such allocation.

1.03    Included in the Purchased Assets shall be all parts of inventory, and of used wholesale
        goods inventory, as well as all prepaid expenses and the following shall happen:

        (i)     all inventory relating to the business shall be valued in accordance with the valuation
                methods as determined between the parties respecting the said inventory, which
                amount shall be agreed upon by the Parties hereto in writing prior to Closing based
                upon a joint inventory to be taken by the Vendor and the Purchaser on the day prior
                to Closing; and
        (ii)    all prepaid expenses shall be valued at the Vendor’s cost or the Vendor’s actual
                expense respecting the said prepaid expenses, which amount shall be agreed upon by
                the Parties hereto in writing prior to Closing.

1.04    The Purchaser shall be liable for and shall pay all commodities, transfer and other taxes
        properly payable upon and in connection with the conveyance and transfer of the Purchased
        Assets to the Purchaser. The Vendor will do and cause to be done such things as are
        reasonably requested by the Purchaser to enable the Purchaser to comply with such
        obligations in an efficient manner.

1.05    All receivables relating to the conduct of the business prior to the closing date
        (hereinafter, the “Vendor’s Receivables”) shall be the property of and belong to the
        Vendor, and after Closing the Purchaser will take reasonable steps to assist the Vendor in
        collecting the Vendor’s Receivables, it being understood that the Purchaser shall have no
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        obligation to incur any expense, participate in any legal action or, in any manner, allow the
        operation of the business to be impaired in so doing. All receivables relating to the
        conduct of the business on or after the closing date shall be the property of and belong to
        the Purchaser. All accounts payable relating to the conduct of the business prior to the
        closing date shall be the responsibility and liability of the Vendor and the Vendor agrees
        to pay all such accounts payable on or prior to the closing date. All accounts payable
        relating to the conduct of the business on or after the closing date shall be the
        responsibility and liability of the Purchaser.

1.07    On Closing, the parties shall each provide the other with an undertaking to re-adjust all
        items on the closing statement of adjustments, and the parties agree that such undertakings
        to re-adjust shall not be subject to any minimums or limitations set out herein respecting the
        making of a claim or the minimum amount required to constitute a material loss, with the
        effect that all re-adjusted items in the statement of adjustments shall be paid by the party
        liable to pay same, regardless of the amount of such re-adjustment.

1.08    The Vendor agrees to deliver all motor vehicles road-worthy and in good working condition
        and fit for the purpose of which they are intended. The Vendor shall, on or before closing,
        obtain safety, emissions and other inspections and complete all repairs as may be necessary
        to complete the transfer of motor vehicles to the Purchaser. The Vendor shall execute the
        individual ownerships and deliver the same on Closing as necessary to complete the
        transfers.

1.09    The Purchaser agrees that it will preserve the books and records so delivered to it for a
        period of _____ (__) years from the closing date or for such other period as is required by
        applicable law and will permit the Vendor or its authorized representatives reasonable
        access to the books and records in connection with the affairs of the Vendor related to any
        tax litigation, employee or other matters.

                                DELIVERIES AND CONDITIONS

2.01    On or before the date that is _______ (___) days after the Effective Date, the Vendor will
        provide to the Purchaser the following information and documentation for the purposes of
        enabling the Purchaser to perform its due diligence:

                (i)     complete copies of all personal property leases, contracts, Financial
                        Statements and licenses and permits;
                (ii)    a list of all personal property and Equipment, including serial numbers and
                        other identifying features respecting same;
                (iii)   a list of all pending sales/lease of equipment;
                (iv)    a list of all customers and suppliers of the business over the past ______
                        (__) year(s);
                (v)     a list of all current employees of the business, showing the length of
                        employment and the wages or salaries paid for each employee, and
                        including copies of all employment contracts; and

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                (vi)    such other documents and information that the Purchaser may reasonably
                        require in order to effectively conduct its due diligence respecting the
                        Purchased Assets, the business and the Vendor, including, but not limited
                        to, provision by the Vendor of full access to and availability for inspection
                        and review of all books of account, business and financial records, leases,
                        agreements and other documents of or relating to the business and its
                        operation, provided that the Purchaser and its agents, employees,
                        representatives, consultants and advisors shall keep all such information
                        and documentation strictly confidential.

2.02    The obligation of the Purchaser to complete the transactions contemplated in the
        Agreement of Purchase and Sale is subject to the fulfilment of the following conditions
        on or before Closing, it being understood that the following conditions are included for
        the exclusive benefit of the Purchaser and may be waived, in whole or in part, in writing
        by the Purchaser at any time and the Vendor covenants that it will take all such actions,
        steps and proceedings within its reasonable control as may be necessary to ensure that the
        following conditions are fulfilled on or before Closing.

2.03    The representations and warranties of the Vendor contained in the Agreement of Purchase
        and Sale or in any other agreements, documents or certificates delivered pursuant to the
        Agreement of Purchase and Sale shall be true and accurate in all material respects on the
        Effective Date and at Closing.

2.04    The Vendor shall have performed and complied with all of the terms and conditions
        required by the Agreement of Purchase and Sale to be performed or complied with by the
        Vendor at or prior to Closing and shall have executed and delivered or caused to have been
        executed and delivered to the Purchaser at the Closing all of the documents contemplated in
        the Agreement of Purchase and Sale.

2.05    There shall be no litigation or proceedings:

                (i)     pending or threatened for the purpose of enjoining, preventing or restraining
                        the completion of the transactions contemplated in the Agreement of
                        Purchase and Sale or otherwise claiming that such completion is improper;
                        or
                (ii)    pending or threatened which, if decided adversely, would adversely affect
                        the right of the Purchaser to acquire or retain the Purchased Assets or to
                        continue the operations of the business after Closing and which, in the
                        reasonable judgement of the Purchaser, would make the completion of the
                        transactions contemplated by the Agreement of Purchase and Sale
                        inadvisable.

2.06    On Closing, the Purchaser and the Purchaser’s Attorney shall have received an opinion of
        the Vendor's Solicitor.


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2.07    The Purchaser shall have received written confirmation from the Vendor and all lessors or
        third parties, as the case may be, relating to the personal property leases and contracts, that
        all such personal property leases and contracts have been assigned and transferred to the
        Purchaser and the Purchaser shall have received third party consents to such assignment and
        transfer of the personal property leases and contracts where necessary, and all personal
        property leases and contracts shall have been legally and validly assigned and transferred to
        the Purchaser.

2.08    The Purchaser has arranged for, and effected, at its own expense, the full discharge, release
        and removal of all Encumbrances affecting the Purchased Assets save and except any
        permitted encumbrances.

2.09    The Purchaser shall have received third-party consents and confirmation from the
        appropriate authorities that all licenses and permits are in good standing and are transferable
        to the Purchaser, and all licenses and permits shall have been legally and validly assigned
        and transferred to the Purchaser.

2.10    The Vendor shall have obtained and supplied to the Purchaser an environmental audit of the
        real property, addressed to the Purchaser to the complete satisfaction of the Purchaser
        showing that the real property is free from all hazardous substances

2.11    The conditions contained herein are inserted for the exclusive benefit of the Purchaser, who
        may, if such conditions have not been fulfilled on or before the date specified, in its sole
        discretion, without limiting any rights or remedies available to the Purchaser at law or in
        equity, either:

        (i)     waive compliance with any such condition without prejudice to its right of
                termination in the event of non-fulfilment of any other condition; or
        (ii)    terminate the Agreement of Purchase and Sale by notice in writing to the Vendor
                and in such event the Vendor and Purchaser shall be released from their obligations
                under the Agreement of Purchase and Sale to complete the transfer of the Purchased
                Assets.

2.12    The obligations of the Vendor to complete the transactions contemplated in the Agreement
        of Purchase and Sale is subject to the fulfilment of the following conditions on or before
        Closing, it being understood that the following conditions are included for the exclusive
        benefit of the Vendor and may be waived, in whole or in part, in writing by the Vendor at
        any time and the Purchaser covenants that it will take all such actions, steps and proceedings
        within the Purchaser's reasonable control as may be necessary to ensure that the following
        conditions are fulfilled on or before Closing:

2.13    The representations and warranties of the Purchaser contained in the Agreement of Purchase
        and Sale or in any other agreement, document or certificate delivered pursuant to the
        Agreement of Purchase and Sale shall be true and accurate on the Effective Date and at
        Closing.

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2.14    The Purchaser shall have performed and complied with all of the terms and conditions
        required by the Agreement of Purchase and Sale to be performed or complied with by the
        Purchaser at or prior to Closing and shall have executed and delivered or caused to have
        been executed and delivered to the Vendor at the Closing all of the documents and the
        Purchase Price contemplated herein.

2.15    The conditions contained herein are inserted for the exclusive benefit of the Vendor, who
        may, if such condition has not been fulfilled on or before the closing date, in its sole
        discretion without limiting any rights or remedies available to the Vendor at law or in
        equity, either:

        (i)     waive compliance with any such condition without prejudice to its right of
                termination in the event of non-fulfilment of any other condition; or
        (ii)    terminate the Agreement of Purchase and Sale by notice in writing to the Purchaser
                and in such event the Vendor and Purchaser shall be released from their obligations
                under the Agreement of Purchase and Sale to complete the transfer of the Purchased
                Assets.

                           REPRESENTATIONS AND WARRANTIES

3.01    The Vendor hereby represents and warrants to the Purchaser as follows, and
        acknowledges that the Purchaser is relying upon the accuracy of all representations and
        warranties of the Vendor set out in the Agreement of Purchase and Sale in connection
        with the purchase of the Purchased Assets and the completion of the other transactions
        contemplated by the Agreement of Purchase and Sale:

3.02    The Vendor is a corporation duly incorporated under the laws of the State of
        ___________________and is duly constituted, validly subsisting and in good standing
        under such laws. The Vendor has the full capacity, power, absolute authority and is
        qualified to own and dispose of its properties and assets and to carry on the business as
        presently carried on by it.

3.03    The Vendor has all necessary power, authority and capacity to enter into the Agreement of
        Purchase and Sale and all other agreements and instruments to be executed by it as
        contemplated by the Agreement of Purchase and Sale and to carry out its obligations under
        the Agreement of Purchase and Sale and such other agreements and instruments as may be
        entered into in relation to the completion of this transaction.

3.04    The execution and delivery of the Agreement of Purchase and Sale and all other agreements
        and instruments to be executed and delivered as contemplated by the Agreement of
        Purchase and Sale and the completion of the transactions contemplated by the Agreement of
        Purchase and Sale and such other agreements and instruments have been duly authorized by
        all necessary action on the part of the Vendor.



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3.05    The Agreement of Purchase and Sale is a legal, valid and binding obligation of the Vendor,
        enforceable against the Vendor in accordance with its terms, subject to:

                (i)     bankruptcy, insolvency, and other laws affecting the enforcement of
                        creditors' rights generally; and
                (ii)    the extent that equitable remedies, including the remedies of specific
                        performance and injunction, are only available in the discretion of the court
                        from which they are sought.

3.06    The Vendor is the owner of and has good and marketable title to all of the Purchased Assets,
        which constitute all of the assets of the Vendor used in carrying on the business, free and
        clear of any and all encumbrances. No person owns any assets which are used in the
        business, except for any personal property and equipment leased by the Vendor. Other than
        the Agreement of Purchase and Sale, there is no agreement, option or other right or privilege
        outstanding in favour of any person for the purchase from the Vendor of the business or any
        of the Purchased Assets out of the ordinary course of business. The Purchased Assets are
        sufficient to enable the continued operation of the business in substantially the same manner
        as conducted in the year ended on the date of the Agreement of Purchase and Sale.

3.07    No consent or approval of any person is required in connection with the execution and
        delivery of the Agreement of Purchase and Sale by the Vendor and the completion of the
        transactions contemplated by the Agreement of Purchase and Sale or to permit the Purchaser
        to carry on the business after the Closing as the business is currently carried on by the
        Vendor other than any third-party consents to any contracts, Licences and Permits or
        personal property leases.

3.06    The execution, delivery and performance of the Agreement of Purchase and Sale and all
        other agreements and instruments to be executed, delivered and performed as contemplated
        by the Agreement of Purchase and Sale and the completion by the Vendor of the
        transactions (with any required consents, approvals and notices) contemplated hereby do not
        and will not constitute or result in any of the following:

                (i)     a default, breach, violation or an event that, with notice or lapse of time or
                        both, would be a default, breach or violation of any of the terms, conditions
                        or provisions of any of the contracting documents of the Vendor, any
                        partnership agreement or of any Contract or License or Permit;
                (ii)    an event which, pursuant to the terms of any Contract or License or Permit,
                        causes any right or interest of the Vendor to come to an end or be amended
                        in any way that detrimentally affects the business in a material way;
                (iii)   the creation or imposition of any encumbrance on any of the properties or
                        assets of the Vendor; or
                (iv)    the violation of any applicable law applicable to or affecting the Vendor
                        which is related to the business.



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3.07    The Vendor owns, free and clear of any and all encumbrances, all licenses and permits.
        Such rights are in full force and effect and the Vendor is not in violation of any term,
        provision or requirement of any such License or Permit, and no person has threatened to
        revoke, amend or impose any condition in respect of, or commenced proceedings to revoke,
        amend or impose conditions in respect of any license or permit.

3.08    Save and except as otherwise set out herein, all of the Purchased Assets are, as of the closing
        date, in good operating condition and repair, ordinary wear-and-tear excepted, it being
        understood that the Vendor is not providing any warranty respecting the continued good
        operation of the said equipment after Closing.

3.09    The Inventory consists of items of a quality usable and saleable in the ordinary course of
        business. All items included in inventory are owned by the Vendor. No items in inventory
        are held by the Vendor on consignment from others or have been pledged as collateral.

3.10    Complete and correct copies of the personal property leases have been provided to the
        Purchaser. The Vendor is entitled to all rights and benefits as lessee under the personal
        property leases and the Vendor has not sublet, assigned, licensed or otherwise conveyed any
        rights in the personal property leases or in the property leased thereunder to any other
        person.

        (i)     All payments and other obligations required to be paid and performed by the Vendor
                under the personal property leases have been duly paid and performed and none of
                the lessors or any other parties to those leases are in default of any of their
                obligations under the personal property leases.
        (ii)    Subject to any third party consents, the Vendor is entitled to assign all of its right
                and interest under the personal property leases and in and to the property leased
                thereunder to the Purchaser. The terms and conditions of the personal property
                leases will not be affected by, nor will any of the personal property leases be in
                default as a result of, the completion of the transactions contemplated hereunder.

3.11    The Intellectual Property used in whole or in part in or required for the proper carrying on of
        the business, are validly and beneficially owned by the Vendor with the sole and exclusive
        right to use them and are in good standing and duly registered in all appropriate offices to
        preserve the rights thereof;

                (i)     to the best of the Vendor's knowledge, the conduct of the business does not
                        infringe upon the rights, patents, trade-marks, trade names or copyrights,
                        domestic or foreign, of any other person, firm or corporation.

3.12    The Financial Statements, which the Vendor has provided to the Purchaser, have been
        prepared in accordance with generally accepted accounting principles applied on a basis
        consistent with that of the previous fiscal year of the Vendor and are true, correct and
        complete in all material respects. The balance sheets contained in such Financial Statements
        fairly present the financial position of the Vendor as of their respective dates and the

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        statement of earnings and retained earnings contained in the Financial Statements fairly
        present the results of operations for the periods indicated.

3.13    All material financial transactions of the business have been recorded in the financial books
        and records of the Vendor in accordance with good business practice and such financial
        books and records and any information, records or systems pertaining to the operation or
        administration of the business are not in the possession of, recorded, stored, maintained by
        or otherwise dependent upon any other person.

3.14    There are no Liabilities of any kind whatsoever (contingent or otherwise) of the Vendor or
        related to the business in respect of which the Purchaser may become liable on or after the
        consummation of the transactions contemplated by the Agreement of Purchase and Sale.

3.15    There are no actions, suits, applications, claims, proceedings, complaints or investigations,
        judicial or administrative (whether or not purportedly on behalf of the Vendor) at law or in
        equity, before or by any court, any federal, provincial, municipal or other governmental
        department, non-governmental body, arbitrator, regulatory body, commission, board,
        bureau, agency or instrumentality, domestic or foreign, pending or threatened, by or against
        the Vendor, related to the business or affecting the condition of the business or the
        transactions contemplated by the Agreement of Purchase and Sale. To the best of the
        Vendor's knowledge, there are no grounds on which any such action, suit, application,
        claim, proceeding, complaint or investigation might be commenced which could have a
        materially adverse effect upon the condition of the business.

3.16    The Vendor has paid all Taxes which are due and payable by it on or before the date hereof.
        There are no actions, suits, proceedings, investigations, enquiries or claims now pending or
        threatened against the Vendor in respect of any taxes. The Vendor has withheld from each
        amount paid or credited to any person the amount of Taxes required to be withheld there-
        from and has remitted such Taxes to the proper tax or other receiving authorities within the
        time required under applicable legislation.

3.17    The Vendor is not a party to or bound by any agreement related to the business which would
        restrict or limit its right to carry on any activity or to solicit business from any person in any
        geographical area or otherwise to conduct the business as the Vendor may determine. The
        Vendor is not subject to any judgement, order, prohibition or requirement of any court or
        governmental authority related to the business which is not of general application to Persons
        carrying on a business similar to the business. There are no facts or circumstances known to
        the Vendor related to the business which could materially adversely affect the ability of the
        Purchaser to continue to operate the business as presently conducted following the
        completion of the transactions contemplated by the Agreement of Purchase and Sale.

3.18    To the Best of the Vendor's knowledge, the Vendor is not in violation of any applicable law
        related to the business or the Real Property.



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3.19    Complete and correct copies (including all amendments) of all contracts, personal property
        leases and licenses and permits and other documents referred to in the Agreement of
        Purchase and Sale or any schedule hereto or required to be disclosed hereby have been
        delivered by the Vendor to the Purchaser.

3.20    The Vendor is not, in relation to any part of the business, a partner or participant in any
        partnership, joint venture, profit-sharing arrangement or other association of any kind and is
        not party to any agreement under which the Vendor agrees to carry on any part of the
        business in such manner or by which the Vendor agrees to share any revenue or profit of the
        business with any other person.

3.21    A complete list of customers and suppliers of the business over the period commencing
        _____________, 20______ to the Effective Date has been provided by the Vendor to the
        Purchaser. The Vendor is the sole and exclusive owner of, and has the unrestricted right to
        use, such lists. Neither the customer and supplier list nor any information relating to the
        customers or suppliers of the business has been made available to any person other than the
        Purchaser.




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DOCUMENT INFO
Description: This is a schedule that is designed to be used in conjunction with a separate asset purchase agreement. This schedule provides details on purchase and sale related matters, deliveries and conditions, and representations and warranties. Additionally, this schedule can be customized to provide for any additional specific language that may be necessary. This schedule can be used by individuals or small businesses that have entered into a separate asset purchase agreement and want to provide more details about the structure and requirements of the agreement.