If you are selling a restaurant there are some items that absolutely must be included in the language of any contract and agreed to by the parties up front. These items can mean the difference in getting to the closing table and seeing a deal crash and burn.
The starting point is the price. Once that’s agreed to, it should be easier, right? Unfortunately, not. The brokers at We Sell Restaurants make sure all the following items are covered to keep deals both in contract and moving to the closing table. That’s why 90 percent of our contracts ultimately close and fund versus an industry standard of less than one in three.
These are the deal breakers that show up at the last minute to wreck a contract. Don’t let it happen to you. No matter who drafts the agreement, these are the must include, can’t forget, better remember, make sure you have, items that should be part of any agreement.
The Equipment List –
For those selling a restaurant, you may have forgotten those times your beleaguered restaurant broker begged you, called you, texted you and hounded you for an accurate equipment list. What he ended up with may not bear a strong resemblance to what is in the store today. Why does it matter? When it comes to an asset purchase agreement, the buyer will hold you to the equipment list attached to the contract.
The equipment list reflects the assets transferring from the seller to the buyer and it must be accurate, or you will be held to account for it when selling a restaurant.
You don’t have two slicers any longer? Better not put two on the equipment list or the buyer is within his rights to request the second one on the day of closing. The Ice Maker is leased, not owned? Better be prepared to pay off the lease on this piece of equipment. If you have personal items in the store, they absolutely do not belong on the list of assets if you’re not prepared to part with them on closing day. Bottom line. If you’re selling a restaurant, get the equipment list right or it will bite you on closing day.
Assignment Fees, Transfer Fees, Attorney Fees –
Landlords often charge assignment fees to transfer a lease to a new party. These can range from $500 to a percentage of the purchase price, an astonishingly large number. Who should pay – the buyer or the seller? If this is not defined in the purchase agreement, it can derail a deal. A landlord will often not proceed on an assignment until the fee is paid. This results in delays. Delays result in deals not happening. Don’t let this happen to you. Make sure your agreement for selling a restaurant includes exactly who pays. Be clear in the language that the seller will pay 50% and the buyer will pay 50% or the buyer will pay the assignment fee not to exceed $1500 but above all, put in language that addresses this issue.
The same is true for any other fees associated with the deal. This is where our ‘no surprises” rule comes into play. Neither the buyer or seller should find out anything at closing that weren’t aware of early in the transaction. That means that attorney fees must be defined within the agreement. The same thing is true for transfer fees if you’re buying or selling a franchise restaurant. Who is responsible? What is the amount? When must they be paid?
Every restaurant has some form of a deposit, ranging from a lease security deposit to a utility deposit to the power company. Landlords will typically never release these deposits but assign them over as part of the lease to the buyer. Is it the buyer’s asset? It should not be unless this is determined up front. Make sure any agreement for selling a restaurant includes a clear determination of who owns those deposits.
The most common language says something like this, ‘Any and all amounts currently on deposit for the benefit of the Business for utility services, leases, insurance, etc., are and shall remain the sole property of Seller and are not included as part of this transaction.” If you are selling a restaurant and the agreement doesn’t say something like this, a buyer may challenge you that these are in fact, assets of the business that should convey to the buyer. That’s thousands of dollars you can miss out on. Avoid this by inserting language up front that deals with this.
In most cases, restaurant inventory is performed by physical count the night before closing and the amount is paid to the seller on top of the purchase price. Note that I said, in most cases. If you fail to include this in the purchase agreement, this will generate a lot of ill will that could lead to a buyer without enough funds to close.
Inventory is not a small amount. We estimate at We Sell Restaurants, that inventory on hand is approximately one percent of sales. For a sandwich shop generating $500,000 in sales, that means there can be around $5000 of inventory to be accounted for in the closing.
An agreement between parties buying and selling a restaurant should specifically address how the inventory will be handled. If it’s to be included, it should have specific language around this function as in, “Seller agrees to leave $3000 of fresh and usable inventory on hand to be determined by physical count.”
Any understanding related to inventory should spell out:
- Which Inventory is to be included
- How it will be counted
- Status of inventory – i.e. fresh, usable, unopened inventory
The handling of the escrow is the final item that must be understood by all parties when a purchase agreement is written for selling a restaurant. Under what conditions will the deposit be refunded? What contingencies that fail will trigger a return of escrow? Who will hold the deposit? Is there a separate written escrow agreement?
Having a clear understanding around the escrow deposit is another item that keeps deals on target to close instead of failing apart when selling a restaurant.
Want more help selling a restaurant? Contact us at this link for a free, no obligation valuation.