Wb 17 Form – Fill Out and Use This PDF

58 ■ PROPERTY DAMAGE BETWEEN ACCEPTANCE AND CLOSING:

59Seller shall maintain all business personal property included in this Offer until the earlier of closing or occupancy by Buyer in

60materially the same condition as of the date of acceptance of this Offer. If, prior to the earlier of closing or occupancy by Buyer,

61the included business personal property is damaged in an amount of not more than five per cent (5%) of the purchase price, Seller

62shall be obligated to restore the damaged property. If Seller is unable to restore the damaged property, Seller shall promptly

63notify Buyer in writing and this Offer may be canceled at the option of the Buyer. If the damage shall exceed such sum, Seller shall

64promptly notify Buyer in writing of the damage and this Offer may be canceled at option of Buyer. Should Buyer elect to carry out this

65Offer despite such damage, Buyer shall be entitled to any insurance proceeds relating to the damage to the damaged property, plus

66a credit towards the purchase price equal to the amount of Seller’s deductible on such policy.

67■ INVESTIGATIONS: Seller agrees to allow Buyer’s investigators reasonable access to the Business and included property

68upon reasonable notice if the investigations are reasonably necessary to satisfy the contingencies in this Offer. Buyer agrees to

69promptly provide copies of all such investigative reports to Seller, and to listing broker if Business is listed. Furthermore, Buyer agrees

70to promptly restore the Business and included property to it’s original condition after Buyer’s investigations are completed, unless

71 otherwise agreed with Seller. Seller’s authorization for investigations does not authorize Buyer to conduct testing of the

72Business or included property. CAUTION: See lines 119-122 for definition of “test”. If Buyer requires testing contingencies,

73they should be specifically provided for at lines 274-285. Seller acknowledges that certain investigations or tests may detect

74environmental pollution which may be required to be reported to the Wisconsin Department of Natural Resources.

75 ■ PRE-CLOSING INVESTIGATION: At a reasonable time, preapproved by Seller or Seller’s agent, within 3 days before closing,

76Buyer shall have the right to investigate to determine that there has been no significant change in the condition of the Business

77and included property, except for changes approved by Buyer.

78■ CHANGE OR EXPANSION OF THE BUSINESS: WARNING: If Buyer contemplates changing or expanding the Business, Buyer

79may need to investigate whether governmental approvals such as licenses, permits or variances may be required prior to the

80 change or expansion of the Business. Contingencies for investigation of these issues may be added to this Offer. See lines

81274-285. If plant closings or mass layoffs will occur as a result of this Offer the Parties should review federal and state plant closing laws.

82DEFINITIONS

83■ BUSINESS PERSONAL PROPERTY: “Business personal property” is defined as all tangible and intangible personal property and

84rights in personal property owned by Seller and used in the business, including furniture, trade fixtures and equipment, tools used

85in business, telephone numbers and listings, if transferable, customer lists, trade names, business records, supplies, leases, advance

86lease deposits, customer deposits, signs, all other personal property used in Business, and if transferable, all permits, special

87licenses and franchises, except those assets disposed of in the ordinary course of business or as permitted by this Offer.

88■ CONDITIONS AFFECTING THE BUSINESS, INCLUDED PROPERTY OR THE TRANSACTION: A “condition affecting the

89Business, included property or the transaction” is defined as follows:

90 (a) Planned or commenced public improvements which may materially affect the Business or included property;

91(b) Government agency or court order requiring repair, alteration or correction of any existing condition;

92(c) Material violation of the Americans with Disabilities Act (ADA) or other state or local laws requiring minimum accessibility for persons

93with disabilities. Note: a Building owner’s or tenant’s obligations under the ADA may vary depending upon the financial or

94other capabilities of the building owner or tenant;

95(d) Completed or pending reassessment of the business personal property sold by this Offer for tax purposes;

96(e) Structural, mechanical or other inadequacies which if not repaired will significantly shorten the expected normal life of the

97included property sold by this Offer;

98(f) Material violations of environmental laws or other laws or agreements regulating the Business;

99(g) Significant health or safety hazards associated with the Business;

100(h) Any material defects in any of the equipment, appliances, business fixtures, fixtures, tools, furniture or other business personal

101property included in the transaction, and Seller further warrants that all will be in good working order on the day of closing;

102(i) Any encumbrances on the Business, all integral parts thereof, or the included property being conveyed in conjunction with the

103Business, except as stated in this contract and in any schedule attached to it;

104(j) Material violations of environmental laws or other laws or agreements regulating the Business;

105(k) Any litigation, government proceeding or investigation in progress, threatened or in prospect against or related to the Business

106or the included property sold by this Offer;

107(l) Any right granted to underlying lien holder(s) to accelerate the debtor’s obligation by reason of the transfer of ownership of

108Business or other property included in the transaction, or any permission to transfer being required and not obtained;

109(m) Any unpaid Business taxes such as: income; sales; payroll; Social Security; unemployment; or any other employer/employee

110taxes due and payable or accrued;

111(n) A material failure of the financial statements, or schedules to the financial statements, to present the true and correct

112condition of the Business as of the date of the statements and schedules or a material change in the financial condition or

113operations of the Business since the date of the last financial statements and schedules provided by Seller, except for changes

114	in the ordinary course of business which are not in the aggregate materially adverse;
115	(o) Other conditions or occurrences which would significantly reduce the value of the Business or included property occupied by
116	the Business to a reasonable person with knowledge of the nature and scope of the condition or occurrence.
117	■		INCLUDED PROPERTY:			“Included property” is defined as all business personal property (as defined at lines 83-87 and other
118	property of any kind or an interest in any property of any kind which has been included in the purchase price (See lines 12-15).
119	■ TEST: A “test”				is defined as the taking of samples from the included property and the laboratory or other analysis of these
120	materials. Note: Any contingency authorizing such tests should specify the included property to be tested, the purpose of the test,
121	(e.g. to determine the presence or absence of a source of environmental contamination), any limitations on Buyer’s testing and any
122	other material terms of the contingency (e.g. Buyer’s obligation to return the included property to it’s original condition).
123		BULKSALES			Seller shall comply with the Bulk Transfers Law (Chapter 406, Wis. Stats.), if applicable. The delivery of a

124fully executed copy of this Offer to Seller shall constitute a written demand for a list of creditors and for the preparation of a

125schedule of the personal property transferred, as required by the Bulk Transfers Law.

126 BUSINESS NAME:

127THE CONTINGENCY AT LINES 129 – 154 IS A PART OF THIS OFFER IF THE BOX PRECEDING THE PARAGRAPH IS MARKED SUCH

128AS WITH AN “X” AT LINE 129. IT IS NOT PART OF THIS OFFER IF MARKED N/A OR IF NOT MARKED.

129

DOCUMENT REVIEW/RECEIPT CONTINGENCY:

CHECK APPLICABLE BOXES BELOW

130This Offer is contingent upon Buyer, at Buyer’s expense, being able to obtain the following within the number of days of

131acceptance specified following each item below (consider addressing licenses, permits, etc.)

132	■		(		days).
	■
133			(		days).
134	■		(		days).

135This Offer is contingent upon Seller delivering the following documents to Buyer within the number of days of acceptance

136specified following each item below: CHECK APPLICABLE BOXES BELOW

	■ Documents				(		days).
137		showing the sale of the Business has been properly authorized, if Seller is a business entity
138	■ A complete	inventory of all included business personal property which shall be consistent with all prior representations			(		days).

139■ Uniform Commercial Code lien search as to the business personal property included in the purchase price, showing the business

140	personal property to be free and clear of all liens, other than liens to be released prior to or from the proceeds of closing	(		days).
141	■ Copies of all leases affecting the Business or business personal property, which shall be consistent with all prior representations (			days).
142	■ Estimated principal balance of accounts receivable and payable which shall be consistent with all prior representations	(		days).

143■ Copy of profit and loss statements, balance sheets, business books and records, and income tax returns for the following years

144				which shall be consistent with all prior representations			(							days).
145	■ Copies of all current licenses held by Business which indicate that Business holds all licenses required for current operations						(						days).
146	■ Copies of franchise agreements, if any, which shall be consistent with all prior representations							(					days).
147	■ Any agreements restricting Seller from competing with Buyer after closing which shall be consistent with all prior representations (												days).
148	■ Other						(			days).
149	■ Other						(			days).
150	This document review/receipt contingency shall be deemed satisfied unless Buyer, within					days of the earlier of: 1) receipt

151of the final document to be obtained/delivered or 2) the latter of the deadlines for obtaining or delivery of the documents, delivers

152to Seller a written notice indicating that this contingency has not been satisfied. The notice shall identify which document(s) have not

153been timely obtained/delivered or do not meet the standard set forth for the document(s). Buyer shall keep all information reviewed

154confidential until closing. If this Offer does not close Buyer shall promptly return all documents received from Seller.

155

ALLOCATION OF PURCHASE PRICE

Seller and Buyer will agree to an allocation of the: goodwill; stock-in-trade; accounts

156receivable; business personal property and

157								which is included in the purchase price, as follows:					CHECK ONE
158		Buyer and Seller agree to the allocation set forth at lines 168 - 175 of this Offer.
159		Buyer and Seller shall agree on an allocation by the following deadline: (within										days of acceptance of the
160	Offer)(		,		)		STRIKE AND COMPLETE AS APPLICABLE			.	If the Parties cannot agree to an allocation

161by the deadline, the Parties shall submit to binding arbitration. Seller and Buyer will share any costs of arbitration equally. Allocation

162may take place after closing. CAUTION: Parties should consult accountants, legal counsel or other appropriate experts, as necessary.

163If stock-in-trade or accounts receivable are purchased, the purchase price shall be based on the following terms and costs:

164(a) Stock-in-Trade

165

166(b) Accounts Receivable

168OPTIONAL ALLOCATION OF PURCHASE PRICE: Seller and Buyer agree to the following allocation of the purchase price:

169Goodwill: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $

170	Stock-in-trade:		. . . . . .	. . . . . . . . . . . . . . . .	. . . . . . . . . . . . . . . . . .		$
171	Accounts receivable: . . .			. . . . . . . . . . . . . . .	. . . . . . . . . . . . . . . . .		$
172	Business	personal property:		. . . . . . . . . . . . .	. . . . . . . . . . . . . . .		$
173	Other:	. . . . . . . . . . .		. . . . . . . . . . . . . . . . .	. . . . . . . . . . . . . . . . . . . .		$
174	Other: . .	. . . . . . . .	. . . . . . . . . . .	. . . . . . . . . . . . . . . . . . . . . . . . . . .	$
175				Total	$

176TIME IS OF THE ESSENCE TIME IS OF THE ESSENCE as to all dates and deadlines in this Offer, including but not limited to:

177earnest money payment(s); binding acceptance; date of closing and contingency deadlines unless it is agreed in that time is not of

178the essence for a specific date(s)s or deadline(s) at lines 274 – 284, or in an addendum per line 285. If “Time is of the Essence”

179applies to a date or deadline, failure to perform by the exact date or deadline is a breach of contract. If “Time is of the Essence” does

180not apply to a date or deadline, then performance within a reasonable time of the date or deadline is allowed before a breach occurs.

181ENTIRE AGREEMENT This Offer, including any amendments to it, contains the entire agreement of the Buyer and Seller regarding the

182transaction. All prior negotiations and discussions have been merged into this Offer. This agreement binds and inures to the benefit of

183the parties to this Offer and their successors in interest. Note: Consult appropriate advisors for tax, license or other questions.

184 DEFAULT

185Seller and Buyer each have the legal duty to use good faith and due diligence in completing the terms and conditions of this Offer. A

186material failure to perform any obligation under this Offer is a default which may subject the defaulting party to liability for damages or other

187legal remedies. NOTE: IF ACCEPTED, THIS OFFER CAN CREATE A LEGALLY ENFORCEABLE CONTRACT. BOTH PARTIES SHOULD

188READ THIS DOCUMENT CAREFULLY. BROKERS MAY PROVIDE A GENERAL EXPLANATION OF THE PROVISIONS OF THE OFFER

189BUT ARE PROHIBITED BY LAW FROM GIVING ADVICE OR OPINIONS CONCERNING YOUR LEGAL RIGHTS UNDER THIS OFFER OR

190HOW TITLE SHOULD BE TAKEN AT CLOSING. AN ATTORNEY SHOULD BE CONSULTED IF LEGAL ADVICE IS NEEDED.

191 DATES AND DEADLINES Deadlines expressed as a number of “days” from an event, such as acceptance, are calculated by excluding

192the day the event occurred and by counting subsequent calendar days. The deadline expires at midnight on the last day.

193Deadlines expressed as a specific number of “business days” exclude Saturdays, Sundays, any legal public holiday under

194Wisconsin or Federal law, and other day designated by the President such that the postal service does not receive registered mail

195or make regular deliveries on that day. Deadlines expressed as a specific number of “hours” from the occurrence of an event, such

196as receipt of a notice, are calculated from the exact time of the event, and by counting 24 hours per calendar day. Deadlines

197expressed as a specific day of the calendar year or as the day of a specific event, such as closing, expire at midnight of that day.

198EARNEST MONEY

199■ HELD BY: Unless otherwise agreed, earnest money shall be paid to and held in the trust account of the listing broker (buyer’s agent if

200Business is not listed or seller if no broker is involved), until applied to purchase price or otherwise disbursed as provided in the

201Offer. CAUTION: Should persons other than a broker hold earnest money, an escrow agreement should be drafted by the Parties

202or an attorney. If someone other than Buyer makes payment of earnest money, consider a special disbursement agreement.

203■ DISBURSEMENT: If negotiations do not result in an accepted offer, the earnest money shall be promptly disbursed (after clearance

204from payor’s depository institution if earnest money is paid by check) to the person(s) who paid the earnest money. At closing, earnest

205money shall be disbursed according to the closing statement. If this Offer does not close, the earnest money shall be disbursed according

206to a written disbursement agreement signed by all Parties to this Offer (Note: Wis. Adm. Code § RL 18.09(1)(b) provides that an offer to

207purchase is not a written disbursement agreement pursuant to which the broker may disburse). If said disbursement agreement has

208not been delivered to broker within 60 days after the date set for closing, broker may disburse the earnest money: (1) as directed by

209an attorney who has reviewed the transaction and does not represent Buyer or Seller; (2) into a court hearing a lawsuit involving the

210earnest money and all Parties to this Offer; (3) as directed by court order; or (4) any other disbursement required or allowed by law.

211Broker may retain legal services to direct disbursement per (1) or to file an interpleader action per (2) and broker may deduct from

212the earnest money any costs and reasonable attorneys fees, not to exceed $250, prior to disbursement.

213■ LEGAL RIGHTS/ACTION: Broker’s disbursement of earnest money does not determine the legal rights of the Parties in relation to

214this Offer. Buyer’s or Seller’s legal right to earnest money cannot be determined by broker. At least 30 days prior to disbursement

215per (1) or (4) above, broker shall send Buyer and Seller notice of the disbursement by certified mail. If Buyer or Seller disagree

216with broker’s proposed disbursement, a lawsuit may be filed to obtain a court order regarding disbursement. The Buyer and Seller

217should consider consulting attorneys regarding their legal rights under this Offer in case of a dispute. Both Parties agree to hold the

218broker harmless from any liability for good faith disbursement of earnest money in accordance with this Offer or applicable

219Department of Regulation and Licensing regulations concerning earnest money. See Wis. Adm. Code Ch. RL 18. NOTE:

220WISCONSIN LICENSE LAW PROHIBITS A BROKER FROM GIVING ADVICE OR OPINIONS CONCERNING THE LEGAL

221RIGHTS OR OBLIGATIONS OF PARTIES TO A TRANSACTION OR THE LEGAL EFFECT OF A SPECIFIC CONTRACT OR

222CONVEYANCE. AN ATTORNEY SHOULD BE CONSULTED IF LEGAL ADVICE IS REQUIRED.

223 DELIVERY/RECEIPT Unless otherwise stated in this Offer, any signed document transmitted by facsimile machine (fax) shall be

224treated in all manner and respects as an original document and the signature of any Party upon a document transmitted by fax shall be

225considered an original signature. Personal delivery to, or actual receipt by, any named Buyer or Seller constitutes personal delivery to,

226or actual receipt by Buyer or Seller. Once received, a notice cannot be withdrawn by the Party delivering the notice without the

227consent of the Party receiving the notice. A Party may not unilaterally reinstate a contingency after a notice of a contingency waiver

228has been received by the other Party. The delivery/receipt provisions in this Offer may be modified when appropriate, e.g. when

229mail delivery is not desirable (see lines 26 - 34). Buyer and Seller authorize the agents of Buyer and Seller to distribute copies of

230the Offer to Buyer’s lender, appraisers, insurance companies and any other settlement service providers for the transaction.

231ADDITIONAL FINANCING PROVISIONS

232LOAN COMMITMENT: Buyer agrees to pay all customary financing costs (including closing fees), to apply for financing promptly,

233and to provide evidence of application promptly upon request by Seller. If Buyer qualifies for the financing described in this Offer

234or other financing acceptable to Buyer, Buyer agrees to deliver to Seller a copy of the written loan commitment no later than the deadline

235for loan commitment at line 255. Buyer’s delivery of a copy of any written loan commitment (even if subject to conditions)

236shall satisfy the Buyer’s financing contingency unless accompanied by a notice of unacceptability. CAUTION: BUYER,

237BUYER’S LENDER AND AGENTS OF BUYER OR SELLER SHOULD NOT DELIVER A LOAN COMMITMENT TO SELLER

238WITHOUT BUYER’S PRIOR APPROVAL OR UNLESS ACCOMPANIED BY A NOTICE OF UNACCEPTABILITY.

239FINANCING UNAVAILABILITY: If financing is not available on the terms stated in this Offer (and Buyer has not already delivered

240an acceptable loan commitment for other financing to Seller), Buyer shall promptly deliver written notice to Seller of same including

241copies of lender(s)’ rejection letter(s) or other evidence of unavailability. Unless a specific loan source is named in the financing

242contingency, Seller shall then have 10 days to give Buyer written notice of Seller’s decision to finance this transaction on the same

243terms set forth in the financing contingency, and this Offer shall remain in full force and effect, with the time for closing extended

244accordingly. If Seller’s notice is not timely given, this Offer shall be null and void. Buyer authorizes Seller to obtain any

245credit information reasonably appropriate to determine Buyer’s credit worthiness for Seller financing.

246SELLER TERMINATION RIGHTS: If Buyer does not make timely delivery of said commitment, Seller may terminate this Offer if

247Seller delivers a written notice of termination to Buyer prior to Seller’s actual receipt of a copy of Buyer’s written loan commitment.

248 BUSINESS NAME:

[page 5 of 5, WB-17]

249OPTIONAL FINANCING CONTINGENCY: THE CONTINGENCY AT LINES 251 THROUGH 268 IS A PART OF THIS OFFER IF

250MARKED, SUCH AS WITH AN “X,” AT LINE 251. IT IS NOT PART OF THIS OFFER IF IT IS MARKED N/A OR LEFT BLANK .

251

FINANCING CONTINGENCY: This Offer is contingent upon Buyer being able to obtain: CHECK APPLICABLE FINANCING BELOW

252■ financing from Seller at closing as further described at lines 256 to 268. Personal property transferred under this Offer shall

253be subject to a chattel security agreement and lien rights under the Uniform Commercial Code in favor of Seller.

■ a

254

INSERT LOAN PROGRAM

(fixed) (adjustable)

STRIKE ONE

rate

255

loan commitment as further described at lines 231 to 247 and 256 to 268, within

days of acceptance of this Offer.

256

The financing selected shall be in an amount of not less than $

for a term of not less than

years, amortized

257

over not less than

years. If the purchase price under this Offer is modified, the financed amount, unless otherwise

258provided, shall be adjusted to the same percentage of the purchase price as in this contingency and the monthly payments shall

259be adjusted as necessary to maintain the term and amortization stated above.

260

IF FINANCING IS FIXED RATE the annual rate of interest shall not exceed

% and monthly payments of principal

261

and interest shall not exceed $

.

262

IF FINANCING IS ADJUSTABLE RATE the initial annual interest rate shall not exceed

%. The initial interest rate shall

263

be fixed for

months, at which time the interest rate may be increased not more than

% per year. The maximum

264

interest rate during the loan term shall not exceed

%. Initial monthly payments of principal and interest shall not

265

exceed $

. Monthly payments of principal and interest may be adjusted to reflect interest changes.

266The financing may not include a prepayment premium. Buyer agrees to pay discount points and/or loan origination fee in an

267	amount not to exceed		% of the loan. Monthly payments may also include:
268					.

269SALES TAX Sales tax, if any, shall be paid by Seller. Seller agrees to surrender Seller’s sales permit in a timely manner. In

270	compliance with § 77.52(18), Wis. Stats., Seller agrees to escrow the sum of $			out of the
271	purchase price to be held by				and

272to be released to Seller when Seller provides the escrow agent with a receipt from the Department of Revenue that any sales tax

273due and owing has been paid, or a certificate that no amount is due.

274ADDITIONAL PROVISIONS/CONTINGENCIES

275
276
277
278
279
280
281
282
283
284
285	ADDENDA: The attached		is/are made part of this Offer.
286	This Offer was drafted on	[date] by [Licensee and firm]	.

287(x)

288

Buyer’s Signature ▲ Print Name here:

Social Security No. or FEIN (Optional) ▲

Date ▲

289(x)

290

Buyer’s Signature ▲ Print Name here:

Social Security No. or FEIN (Optional) ▲

Date ▲

291EARNEST MONEY RECEIPT Broker acknowledges receipt of earnest money as per line 9 of the above Offer. (See lines 198-222)

292

Broker (By)

293SELLER ACCEPTS THIS OFFER. THE WARRANTIES, REPRESENTATIONS AND COVENANTS MADE IN THIS OFFER SURVIVE

294CLOSING AND THE CONVEYANCE OF THE BUSINESS AND INCLUDED PROPERTY IN THIS OFFER. THE UNDERSIGNED

295HEREBY AGREES TO CONVEY THE ABOVE-MENTIONED BUSINESS AND INCLUDED PROPERTY IN THIS OFFER ON THE

296TERMS AND CONDITIONS AS SET FORTH HEREIN AND ACKNOWLEDGES RECEIPT OF A COPY OF THIS OFFER.

297(x)

298

Seller’s Signature ▲ Print Name Here:

Social Security No. or FEIN (Optional) ▲

Date ▲

299(x)

300

Seller’s Signature ▲ Print Name Here:

Social Security No. or FEIN (Optional) ▲

Date ▲

301

This Offer was presented to Seller by

on

,

, at

a.m./p.m.

302

THIS OFFER IS REJECTED

THIS OFFER IS COUNTERED [See attached counter]

303

Seller Initials ▲

Date ▲

Seller Initials ▲

Date ▲