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Purchase of Business - Buyer Protection Clauses in a Contract for Purchase of Business

The pre-printed form contracts sold in Stationary stores prepared by companies such as Allstate or Blumberg are excellent outlines and starting points for buying a business. However, they do not fully protect the interests of the Buyer. The Buyer should demand additional guarantees from the Seller, over and above those usually mentioned in the form outlines. The following are some additional sample provisions to negotiate and protect the interests of the proposed buyer in a Bulk Purchase of a business.

Seller represents and warrants to the Buyer that up until the time of closing:

No Judgments 1. There are no Judgments outstanding and unsatisfied against the Seller or the business and business assets being sold herein.

No Liens 2. There are no liens or encumbrances against Seller or the business or assets being sold herein and that there are no actual or contemplated disputes, claims or law suits affecting or potentially affecting the Seller or the business and assets being sold herein.

Good title 3. Except as to the following specified items, the Seller has good, valid and marketable title to the assets being sold herein and shall sell, transfer and convey the said assets free and clear of all liens and encumbrances.

Taxes paid 4. All incorporated or unincorporated business and incomes taxes, employee withholding, FUTA, FICA, Sales, Business Property, Unemployment and Disability that are due to any governmental entity have been appropriately and timely paid up through the date of closing and all applicable returns filed in a timely manner. An escrow in the amount of $_____ shall be held pending tax payment verification from the State.

Accounts paid 5. All accounts payable to the suppliers, vendors and others owed money by the Seller in connection with the business being sold herein have been paid in full. Seller agrees to provide buyer with a complete list of all said accounts.

Working order 6. That the plumbing, heating, cooling and electrical systems are presently in working order and will be in working order at the time of closing. All personal property and fixtures included in the sale herein shall be in working order at the time of closing.

No Code violations 7. At the time of closing, no violations will exist as to any municipal, state or federal laws, codes or regulations concerning the use and operation of said business in the premises as set forth herein. If a violation exists, Seller must fix or cure.

Nothing to impede sale 8. Seller knows of no facts which would impede the use of the property to be transferred by this Contract for the business purpose described herein.

Risk of loss 9. Risk of loss or damage to the assets being sold herein or Seller's premises shall remain with the Seller until the Closing of Title.

Trade name 10 - Alternative 1. Seller shall furnish Buyer at closing a Cancellation of Business or Trade Name Certificate in proper form so that it can be recorded for cancellation of same with the county recording officer.

10 - Alternative 2. Assignment and transfer of Trade Name: Seller shall furnish Buyer with an assignment and transfer of all Seller's right, title and interest in the business and trade name of seller

Lease 11. This Contract is contingent upon Buyer executing a lease to the building with Seller's landlord. Furthermore, Buyer shall execute an Assignment and Assumption Agreement with respect to sub lease if Buyer is able to execute same with Landlord.

Inventory 12 The value of the inventory shall be determined on date of closing, determined by an Inventory Service Company listed in the Bell Atlantic New Brunswick Area Yellow Pages. Cost of inventory appraisal to be split equally between Buyer and Seller. Price paid by the Buyer shall be the retail value of stock in trade less 30%.

Conclusion Remember, the Contract will become binding as soon as the Buyer and the Seller sign it. Their is no three day attorney review period as in a residential house purchase. Before anyone signs a business contract, have an experienced business attorney review the contract and make necessary revisions.

Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.


Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Halls Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

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