AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This AGREEMENT FOR PURCHASE AND SALE OF ASSETS, hereafter referred to
as the "Agreement", is made this _______ day of May, 1997, by and between Xxxxx
Xxxx, a single man, hereafter referred to as "Buyer", and Western Country Clubs,
Inc., a Colorado corporation, hereafter referred to as "Seller".
RECITALS:
A. WHEREAS, Seller is the owner of the issued and outstanding
stock of WCWW Acquisition Corporation, an Arizona corporation, which is the
owner of the following:
1. that certain State of Arizona Bar License, number 06100208,
hereafter referred to as the "License", and
2. the furniture, fixtures and equipment used with the License, as
set forth on the attached Equipment List.
The items listed as 1 and 2 of this paragraph A are hereafter referred to as the
"Assets".
B. WHEREAS, Seller desires to sell the Assets to Buyer and Buyer
desires to purchase the Assets from Seller on the terms and subject to the
conditions of this Agreement, and
C. WHEREAS, Seller is also the tenant of the following:
1. that certain real property located at 0000 Xxxx Xxx Xxxx,
Xxxxxx, Xxxxxxx leased from 0000 X. Xxx Partners which is used for the operation
of the Business, hereafter referred to as the "Ina Partners Lease".
2. that certain real property located at 0000 Xxxxx Xxxxxx
Xxxxxx leased from Buckaroos, Inc., a New Mexico corporation, which is used to
provide parking space for the patrons of the Business, hereafter referred to as
the "Buckaroos Parking Lease".
D. WHEREAS, the parties agree that Buyer shall obtain a new lease
from 4385 W. Ina Partners for the property at 0000 Xxxx Xxx Xxxx, Xxxxxx,
Xxxxxxx, and
E. WHEREAS, Seller desires to assign to Buyer the Buckaroos Parking
Lease.
TERMS AND CONDITIONS:
In consideration of the mutual covenants, agreements, representations,
and warranties contained in this Agreement, the parties agree as follows:
ARTICLE ONE
PURCHASE AND SALE OF ASSETS
1.01 Sale of Assets. Subject to the terms and conditions set forth in
this Agreement Seller agrees to sell, convey, transfer, assign, and deliver to
Buyer, and Buyer agrees to purchase from Seller, the Assets described in
paragraph A.
1.02 Consideration. As full payment for the sale of the Assets from
Seller to Buyer, Buyer shall pay to Seller the amount of Three Hundred
Twenty-five Thousand Dollars ($325,000.00) as follows:
(a) One Hundred Thousand Dollars ($100,000.00), which
shall be paid to Seller on May 3, 1997.
(b) Thirty Thousand Dollars ($30,000.00), which shall be paid
to Seller at the rate of Ten Thousand Dollars ($10,000.00) per
month for the months of June, July and August 1997.
(c) One Hundred Ninety-five Thousand Dollars ($195,000-00) by
a Promissory Note payable to Seller, with interest at the
annual rate of eight per cent (8%) calculated from October 1,
1997, with monthly payments in the amount of Seven Thousand
Five Hundred Dollars ($7,500.00), beginning November 1, 1997,
all principal and interest due and payable at the end of
twenty-four months from October 1, 1997.
The purchase price of Three Hundred Twenty-five Thousand Dollars ($325,000.00)
shall be allocated as follows:
Equipment $290,000.00
License $35,000.00
The foregoing allocations shall be binding upon the parties. Seller and Buyer
shall utilize the allocations for federal and state tax reporting requirements.
1.03 Security Interest. To secure his performance due under the
Promissory Note, Buyer shall grant to Seller a Security Interest in the Assets.
Buyer shall document the Security Interest in the form of a Security Agreement.
Buyer shall also execute an appropriate UCC Financing statement for filing with
the Arizona Secretary of State and Statement of Legal or Equitable Interest for
filing with the Arizona Department of Liquor Licenses and Control.
ARTICLE TWO
LEASE
2.01 Lease. Buyer is responsible to enter into a new lease with 4385
W. Ina Partners for the lease of the property at 0000 Xxxx Xxx Xxxx, Xxxxxx,
Xxxxxxx. Seller shall assign to Buyer its obligations under the Buckaroos
Parking Lease.
ARTICLE THREE
3.01 Resolution of Consulting Agreement. The parties agree to resolve
on terms mutually agreeable the Consulting Agreement previously made in
1994 between Seller and Buyer.
ARTICLE FOUR
Buyer's Legal Entity
4.01 Entity. Buyer may establish a corporation, limited liability
company or other entity to take title to the Assets and to be the Tenant under
the Lease to be made with 4385 W. Ina Partners and to be the Assignee of the
Buckaroos Parking Lease.
ARTICLE FIVE
EXCLUSIONS AND CONDITIONS
5.01 Tradename. The tradenames of the Business, "Stampede" and
"Acapulco Joe's", including any and all goodwill associated therewith are
specifically excluded from the Assets being sold hereunder from Seller to Buyer.
No property other than the Assets are being sold under this Agreement.
5.02 Seller's Liabilities. Seller shall be responsible for all
liabilities incurred prior to May 3, 1997, the date for Transfer of Possession.
on or before Transfer of Possession, Seller shall terminate any contracts or
agreements affecting the Assets being sold hereunder. Buyer shall not be
responsible for any liability incurred by Seller prior to Closing. Buyer shall
assume no liabilities owed by Seller. If Seller refuses to discharge a liability
owed by it and if Buyer is required to satisfy an obligation owed by Seller
after Seller's refusal to pay the same, then Buyer may offset any payments made
out of any monies owed from Buyer to Seller under the Promissory Note. This
provision shall survive the Closing of this Agreement.
5.03 Inspection. Buyer may inspect and approve the Assets and
the Premises, including the items comprising the Equipment List.
5.04 Risk of Loss or Damage. Until the Transfer of Possession, all
risk of loss or damage to the Assets or the Premises shall be Seller's
responsibility. Buyer shall assume all risk of loss or damage to the Assets or
the Premises following the Transfer of Possession.
5.06 Continuity of Business operations. From the execution of this
agreement until the Transfer of Possession, Seller agrees to continue to operate
the Business in its usual and customary course. Seller agrees to conduct its
Business in accordance with sound and prudent business practices.
5.07 Seller's Employees. Any agreements, contracts or other
understandings made between Seller and its employees shall remain the obligation
of Seller. Upon its execution of this Agreement, Seller shall inform its
employees of the sale of the Business hereunder. Buyer shall have no obligations
of any kind to Seller's employees. At his sole discretion, Buyer may elect to
retain none, some or all of Seller's employees.
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF-SELLER
6.01 Condition of Assets. Seller represents that it may lawfully
transfer the License to Buyer. Seller makes no warranty or guarantee with regard
to the condition of the items on the Equipment List and Buyer is acquiring the
Assets in their "WHERE IS-AS IS" condition.
6.02 Title. Seller is the owner, beneficially and of record, of all
the Assets. This provision shall survive the Closing of this Agreement.
6.03 Other Property. The Equipment List to be prepared and attached to
this Agreement is a complete and accurate schedule describing, and specifying
the location of all equipment, furniture, and trade fixtures owned by, in the
possession of, or used by Seller in connection with its business.
6.04 Real Property. Nothing in this Agreement purports to convey
any interest, by lease, deed or any other instrument, in the property at 0000
Xxxx Xxx Xxxx, Xxxxxx, Xxxxxxx. Buyer acknowledges that he will be required to
obtain a new lease.
6.05 Compliance with Laws. To the best of its knowledge, Seller has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws, and regulations (including, without limitation, any applicable
building, zoning, or other law, ordinance, or regulation) affecting the Assets,
the property at 0000 Xxxx Xxx Xxxx, Xxxxxx, Xxxxxxx or the operation of its
Business. Seller further warrants that the Business is or will be in full
compliance with all applicable laws, rules and any other regulations affecting
the Business until the Closing. This provision shall survive the Closing of this
Agreement.
6.06 Litigation. There is no suit, action, arbitration, or legal,
administrative, or other proceeding, or governmental investigation pending, to
the best of Seller's knowledge, threatened, against or affecting Seller or its
Business or the Assets. Seller is not in default with respect to any order,
writ, injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality.
ARTICLE SEVEN
OBLIGATIONS BEFORE CLOSING
7.01 Access to Assets. Buyer and his counsel, accountants, and other
representatives shall have full access during normal business hours to inspect
any or all of the Assets.
7.02 Information. Buyer and his counsel, accountants, and other
representatives shall be provided with any information requested from Seller
pertaining to the triple net expenses of the property at 0000 Xxxx Xxx Xxxx,
Xxxxxx, Xxxxxxx, including real property taxes, fire insurance and maintenance.
7.03 Insurance - Until the date for Transfer of Possession, Seller will
continue to carry and maintain its existing policies of insurance. Seller agrees
to provide Buyer with copies of existing insurance policies so that Buyer may
elect whether to continue or to substitute carriers.
7.04 Permits and Certificates. Until the date for Transfer of
Possession, Seller shall maintain and keep current all permits, licenses and
certificates required in connection with the operation of the Business or the
occupancy of the Premises.
ARTICLE EIGHT
BUYER'S OBLIGATIONS BEFORE CLOSING
8.01 Confidentiality. Buyer agrees that, unless and until the Closing
has been consummated, Buyer, his employees and other representatives will hold
in strict confidence and will not use to the detriment of Seller any data or
information obtained in connection with this agreement with respect to Seller's
Business, the Assets or the property at 0000 Xxxx Xxx Xxxx, Xxxxxx, Xxxxxxx.
ARTICLE NINE
CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
9.01 Buyer's Warranties. All representations and warranties by Buyer
contained in this Agreement or in any written statement delivered by Buyer under
this Agreement shall be true on and as of the closing as though such
representations and warranties were made on and as of that date.
9.02 Buyer's Performance Buyer shall have paid the sum of one Hundred
Thirty Thousand Dollars ($130,000.00) in the manner provided herein and shall
have given to Seller a Promissory Note in the amount of One Hundred Ninety-five
Thousand Dollars ($195,000.00) payable in the manner specified in this
Agreement.
ARTICLE TEN
TRANSFER OF POSSESSION
10.01 Seller's obligations. On the date for Transfer of Possession,
Seller shall deliver or cause to be delivered to Buyer:
(a) A xxxx of sale for the items set forth in the Equipment
List.
(b) All keys needed or required to operate the items set
forth on the Equipment List.
(c) An assignment of the Lease for the Buckaroos Parking
Lease.
(d) Physical possession to the Premises, including all keys
to all doors.
(e) Any and all permits, licenses and certificates
required by any governmental agency which are
necessary for Buyer to operate a bar business.
10.02 Buyer's Obligations. On the date for Transfer of Possession,
Buyer shall deliver or cause to be delivered to Seller:
(a) A cashier's check in the amount of One Hundred Thousand
Dollars ($100,000.00).
(b) A Promissory Note in the amount of One Hundred
Ninety-five Thousand Dollars ($195,000.00) payable
in the manner specified in this Agreement.
(c) An assignment of the Buckaroos Parking Lease.
10-03 Transfer of-Possession. "Transfer of Possession" shall occur
on or before May 3, 1997, at a time to be mutually agreed upon by the parties
hereto.
ARTICLE ELEVEN
MISCELLANEOUS
11.01 Additional Acts or Documents. Buyer and Seller agree to execute
and deliver any other additional documents as may be necessary to complete the
transactions contemplated by this Agreement.
11.02 Broker. Buyer and Seller represent and warrant that neither of
them has retained the services of any broker or agent in connection with the
transaction contemplated by this Agreement to whom any compensation, fee or
commission would be owing. In the event any party hereto has retained the
services of an agent or broker to whom any compensation, fee or commission is or
becomes owing, the party retaining such services shall be solely responsible to
pay any amount owing to such agent or broker in arranging the transaction
contemplated by this Agreement.
11.03 Expense. The parties shall each pay one-half of the costs and
expenses incurred or to be incurred by it in negotiation and preparing this
Agreement and in closing and carrying out the transactions contemplated by this
Agreement.
11-04 Headings. The subject headings of the Sections and Subsections of
this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
11.05 Modification and Waiver. This Agreement constitutes the entire
agreement between parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all the parties. No
waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
11.06 Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instruments.
11.07 Rights of Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reasons of
this Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
11.08 Assignment. This Agreement shall be binding on and shall inure to
the benefit of the parties thereto and their respective heirs, legal
representatives, successors, and assigns.
11.09 Specific Performance. The parties agree that the obligations owed
under this Agreement are unique. If either party should default in its
obligations under this Agreement, the parties acknowledge that it would be
extremely impracticable to measure the other party's resulting damages.
Accordingly, in addition to any other rights or remedies available at law, the
non-defaulting party may xxx the party claimed to be in default in equity for
specific performance. Each party expressly waives the defense that a remedy in
money damages should be adequate for the other party in this transaction.
11.10 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing, if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
To Seller at:
0000 X.X. Xxxxxxxxxx, Xxxxx 0000 Xxxxxxxx Xxxx, Xxxxxxxx 00000
To Buyer at:
Xxxxx Xxxx
C/o Rockin' Rodeo
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Any party may change its address for purposes of this Section by giving the
other parties written notice of the new address in the manner set forth above.
11.11 Governing @w. This Agreement shall be construed in accordance
with and governed by the laws of the State of Arizona and the parties hereto
submit to the jurisdiction of the courts of the State of Arizona in the event
any action or dispute arising herefrom.
11.12 Time. Time is of the essence of this agreement and each and
every provision herein.
IN WITNESS WELEREOF, the parties to this Agreement have duly executed
it on the day and year first above written.
BUYER SELLER:
Western Country Clubs, Inc.
/s/Xxxxx Xxxx By /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx Xxxx Xxxxx X. Xxxxxxxxx
President
