EXHIBIT 2.5
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated as of May 24, 2004 (the "Effective
Date"), is by and among Finger Lake International, Inc., a New York corporation
("Seller"), Xxxxx Xxxxxxxx, Xxxxx X. XxXxxxxx and Xxxx Xxxxxx, being all of the
shareholders of Seller (each, a "Shareholder" and collectively, the
"Shareholders"), Boundless Motor Sports Racing, Inc., a Colorado corporation
("Parent"), and Boundless Racing, Inc., a Texas corporation and wholly-owned
subsidiary of Parent ("Purchaser").
WITNESSETH:
WHEREAS, Seller, Parent and Boundless Track Operations, Inc., a Nevada
corporation and wholly-owned subsidiary of Parent, entered into that certain
Asset Purchase Agreement dated as of August 13, 2003 (the "Original Agreement"),
which agreement was amended as October 1, 2003 to, among other things, extend
the closing date for the transactions contemplated under the Original Agreement;
WHEREAS, Parent paid to Seller $750,000 under the Original Agreement by
delivery to Seller of 250,000 shares of Parent's common stock, $.0001 par value
per share;
WHEREAS, the Original Agreement was terminated by Seller as of April 1,
2004 pursuant to Section 12.1, subpart(e); and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
substantially all of the assets of Seller;
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. Certain terms used in this Agreement but not
otherwise defined shall have the meanings ascribed thereto in Exhibit A attached
hereto.
ARTICLE II
PURCHASE AND SALE
Section 2.1. PURCHASE AND SALE OF ASSETS. Subject to and upon the terms
and conditions contained herein, at the Closing, Seller shall sell, transfer,
assign, convey and deliver to Purchaser, free and clear of all security
interests, liens, claims and encumbrances and Purchaser shall purchase, accept
and acquire from Seller, the Assets.
Section 2.2. PURCHASE PRICE.
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(a) TOTAL PURCHASE PRICE. The total purchase price for the Assets (the
"Purchase Price") shall be $1,800,000 (the "Purchase Price"), $1,050,000 of
which shall be due and payable upon execution of this Agreement as follows:
$1,000,000 shall be payable in cash (the "Cash Consideration") and $50,000 shall
be payable by the delivery by Parent to Seller of 50,000 shares of common stock,
par value $0.001 per share, of Parent (the "Shares") [it being agreed and
understood that an instruction letter shall be delivered to Parent's transfer
agent on the Closing Date, with delivery of the Shares taking 3-7 days
thereafter], and $750,000 of which is offset by the amount paid by Parent to
Seller under the Original Agreement. Purchaser shall not assume or agree to pay,
perform or discharge any liabilities or obligations of Seller, whether accrued,
absolute, contingent or otherwise.
(b) ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
among the Assets as reasonably determined by Purchaser, such allocation to be
made as provided in Section 1060 of the Internal Revenue Code of 1986 (the
"Code"). Purchaser and Seller shall each file Form 8594 (Asset Acquisition
Statement Under Section 1060) on a timely basis reporting the allocation of the
Purchase Price consistent with such allocation. Purchaser and Seller shall file
on a timely basis any amendments required to such Form 8594 as a result of a
subsequent increase or decrease of the Purchase Price. Purchaser and Seller
shall not take any position on their respective income tax returns that is
inconsistent with such allocation or as adjusted as a result of a subsequent
increase or decrease in the Purchase Price.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE SHAREHOLDERS
Seller and the Shareholders jointly and severally represent and warrant
that the following are true and correct as of the date hereof and will be true
and correct through the Effective Date as if made on that date (all Schedules
reference in this Article III are contained in the Seller Disclosure Schedule of
even date herewith):
Section 3.1. ORGANIZATION AND GOOD STANDING; QUALIFICATION. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation, with all requisite corporate power and authority
to carry on the business in which it is engaged, to own the properties it owns,
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. Seller is duly qualified and licensed to do business and is
in good standing in all jurisdictions where the nature of its business makes
such qualification necessary. Seller does not have any assets, employees or
offices in any state other than New York. Seller does not own, directly or
indirectly, any of the capital stock of any other corporation or any equity,
profit sharing, participation or other interest in any corporation, partnership,
joint venture or other entity.
Section 3.2. CORPORATE RECORDS. The copies of the Articles of
Incorporation and all amendments thereto and the Bylaws of Seller that have been
delivered to Purchaser are true, correct and complete copies thereof, as in
effect on the date hereof. The minute books of Seller, copies of which have been
delivered to Purchaser, contain accurate minutes of all meetings of, and
accurate consents to all actions taken without meetings by, the Board of
Directors (and any committees thereof) and the shareholders of Seller since the
formation of Seller.
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Section 3.3. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Seller of this Agreement and the other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Seller. This Agreement and each other
agreement contemplated hereby have been or will be as of the Effective Date duly
executed and delivered by Seller and the Shareholders and constitute or will
constitute (as the case may be) legal, valid and binding obligations of Seller
and the Shareholders, enforceable against Seller and the Shareholders in
accordance with their respective terms, except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
the availability of equitable remedies.
Section 3.4. NO VIOLATION. Neither the execution, delivery or
performance of this Agreement or the other agreements contemplated hereby nor
the consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions or
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws of Seller or any agreement, indenture or other instrument under which
Seller or any Shareholder is bound or to which any of the Assets are subject, or
result in the creation or imposition of any security interest, lien, charge or
encumbrance upon any of the Assets or (ii) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over Seller, any
Shareholder or the Assets.
Section 3.5. CONSENTS. No consent, authorization, approval, permit or
license of, or filing with, any governmental or public body or authority, any
lender or lessor or any other person or entity is required to authorize, or is
required in connection with, the execution, delivery and performance of this
Agreement or the agreements contemplated hereby on the part of Seller or any
Shareholder.
Section 3.6. FINANCIAL STATEMENTS. Seller has furnished to Purchaser
Seller's audited balance sheet and related audited statements of income,
retained earnings and cash flows for the twelve-month periods ended December 31,
2001 and 2002, including the notes thereto, as well as unaudited balance sheets
and related unaudited statements of income, retained earnings and cash flows for
the twelve-month period ended December 31, 2003 (collectively, the "Financial
Statements"). The Financial Statements are in accordance with the books and
records of Seller, fairly present the financial condition and results of
operations of Seller as of the dates and for the periods indicated and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis with prior periods. Seller did not have any business activity
during the first three months of 2004.
Section 3.7. LIABILITIES AND OBLIGATIONS. The Financial Statements
reflect all liabilities of Seller, accrued, contingent or otherwise (known or
unknown and asserted or unasserted), arising out of transactions effected or
events occurring on or prior to the date hereof. Except as set forth in the
Financial Statements, Seller is not liable upon or with respect to, or obligated
in any other way to provide funds in respect of or to guarantee or assume in any
manner, any debt, obligation or dividend of any person, corporation,
association, partnership, joint venture, trust or other entity, and Seller knows
of no basis for the assertion of any other claims or liabilities of any nature
or in any amount.
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Section 3.8. EMPLOYEE MATTERS.
(a) CASH COMPENSATION. Seller does not have any employees who are
currently compensated (including wages, salaries and bonuses) ("Cash
Compensation") at a rate in excess of $20,000 per year or who earned in excess
of such amount during Seller's preceding fiscal year. Seller has not agreed to
(i) any increases in Cash Compensation of employees of Seller during the current
and immediately preceding fiscal years of Seller and (ii) any promised increases
in Cash Compensation of employees of Seller that have not yet been effected.
(b) COMPENSATION PLANS. Seller does not have any compensation plans,
arrangements or practices (the "Compensation Plans") sponsored by Seller or to
which Seller contributes on behalf of its employees.
(c) EMPLOYMENT AGREEMENTS. Seller is not a party to any employment
agreements with any of its employees.
(d) EMPLOYEE POLICIES AND PROCEDURES. Seller does not have any employee
manuals, policies, procedures and work-related rules that apply to employees of
Seller.
(e) LABOR COMPLIANCE. Seller (i) has been and is in compliance with all
laws, rules, regulations and ordinances respecting employment and employment
practices, terms and conditions of employment and wages and hours; and (ii) is
not liable for any arrears of wages or penalties for failure to comply with any
of the foregoing. Seller has not engaged in any unfair labor practice or
discriminated on the basis of race, color, religion, sex, national origin, age
or handicap in its employment conditions or practices. There are no (i) unfair
labor practice charges or complaints or racial, color, religious, sex, national
origin, age or handicap discrimination charges or complaints pending or
threatened against Seller before any federal, state or local court, board,
department, commission or agency nor does any basis therefor exist; or (ii)
existing or threatened labor strikes, disputes, grievances, controversies or
other labor troubles affecting Seller, nor does any basis therefor exist.
(f) UNIONS; ALIENS. Seller has never been a party to any agreement with
any union, labor organization or collective bargaining unit. No employees of
Seller are represented by any union, labor organization or collective bargaining
unit. To the best knowledge of Seller, the employees of Seller have no intention
to and have not threatened to organize or join a union, labor organization or
collective bargaining unit. All employees of Seller are citizens of, or are
authorized to be employed in, the United States.
Section 3.9. EMPLOYEE BENEFIT PLANS.
(a) IDENTIFICATION. There are no employee benefit plans (the "Employee
Benefit Plans") (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) sponsored by Seller or to
which Seller contributes on behalf of its employees and there are no Employee
Benefit Plans previously sponsored or contributed to on behalf of its employees
within the three years preceding the date hereof.
Section 3.10. ABSENCE OF CERTAIN CHANGES. Since December 31, 2003,
Seller has not: (i) suffered any material adverse change, whether or not caused
by any deliberate act or omission
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of Seller, in its condition (financial or otherwise), operations, assets,
liabilities, business or prospects; (ii)contracted for the purchase of any
capital assets having a cost in excess of $50,000 or paid any capital
expenditures in excess of $50,000; (iii) incurred any indebtedness for borrowed
money or issued or sold any debt securities; (iv) incurred or discharged any
liabilities or obligations except in the ordinary course of business; (v) paid
any amount on any indebtedness prior to the due date, forgiven or cancelled any
debts or claims or released or waived any rights or claims; (vi) mortgaged,
pledged or subjected to any security interest, lien, lease or other charge or
encumbrance any of its properties or assets; (vii) suffered any damage or
destruction to or loss of any assets (whether or not covered by insurance) that
has materially and adversely affected, or could materially and adversely affect,
its business; (viii) acquired or disposed of any assets except in the ordinary
course of business; (ix) written up or written down the carrying value of any of
its assets; (x) changed the costing system or depreciation methods of accounting
for its assets; (xi) waived any material rights or forgiven any material claims;
(xii) lost or terminated any employee, customer or supplier, the loss or
termination of which has materially and adversely affected, or could materially
and adversely affect, its business or assets; (xiii) increased the compensation
of any director or officer; (xiv) increased the compensation of any employee
except in the ordinary course of business; (xv) made any payments to or loaned
any money to any person or entity referred to in Section 3.28; (xvi) formed or
acquired or disposed of any interest in any corporation, partnership, joint
venture or other entity; (xvii) redeemed, purchased or otherwise acquired, or
sold, granted or otherwise disposed of, directly or indirectly, any of its
capital stock or securities or any rights to acquire such capital stock or
securities, or agreed to change the terms and conditions of any such rights;
(xviii) entered into any agreement with any person or group, or modified or
amended in any material respect the terms of any such existing agreement except
in the ordinary course of business; or (xix) entered into any other commitment
or transaction or experienced any other event that is material to this Agreement
or to any of the other agreements and documents executed or to be executed
pursuant to this Agreement or to the transactions contemplated hereby or
thereby, or that has materially and adversely affected, or could materially and
adversely affect, the condition (financial or otherwise), operations, assets,
liabilities, business or prospects of Seller.
Section 3.11. TITLE; LEASED ASSETS.
(a) REAL PROPERTY. A description of all interests in real property
owned by Seller (collectively, the "Real Property") is set forth in Schedule
3.11(a). Except as set forth in Schedule 3.11(a), Seller has good, valid and
indefeasible title to all the Real Property. Upon consummation of the
transactions contemplated hereby, Purchaser shall receive good, valid and
marketable title to the Real Property free and clear of all liens, claims and
encumbrances other than those described in Schedule 3.11(a).
(b) PERSONAL PROPERTY. A description of all tangible and intangible
personal property owned by Seller (collectively, the "Personal Property") is set
forth in Schedule 3.11(b). Except as set forth in Schedule 3.11(b), Seller has
good, valid and marketable title to all the Personal Property. Upon consummation
of the transactions contemplated hereby, Purchaser shall receive good, valid and
marketable title to the Personal Property free and clear of all security
interests, liens, claims and encumbrances other than those described in Schedule
3.11(b).
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(c) LEASES. A list and brief description of all leases of real and
personal property to which Seller is a party, either as lessor or lessee, are
set forth in Schedule 3.11 (c). All such leases are valid and enforceable in
accordance with their respective terms except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
the availability of equitable remedies.
(d) RIGHT TO USE ASSETS. Except for those assets acquired since March
31, 2004, all tangible assets used in the conduct of Seller's business are
reflected in the Financial Statements in a manner that is in conformity with
generally accepted accounting principles applied on a consistent basis with
prior periods. Seller owns, leases or otherwise possesses a transferable right
to use all assets used in the conduct of its business, and except for the
Excluded Assets, will transfer all of such rights to Purchaser at Closing.
Section 3.12. COMMITMENTS.
(a) COMMITMENTS; DEFAULTS. Seller has not entered into, nor are the
Assets or the business of Seller bound by, whether or not in writing, any: (i)
partnership or joint venture agreement; (ii) deed of trust or other security
agreement; (iii) guaranty or suretyship, indemnification or contribution
agreement or performance bond; (iv) employment, consulting or compensation
agreement or arrangement, including the election or retention in office of any
director or officer; (v) labor or collective bargaining agreement; (vi) debt
instrument, loan agreement or other obligation relating to indebtedness for
borrowed money or money lent or to be lent to another; (vii) deed or other
document evidencing an interest in or contract to purchase or sell real
property; (viii) agreement with dealers or sales or commission agents, public
relations or advertising agencies, accountants or attorneys; (ix) lease of real
or personal property, whether as lessor, lessee, sublessor or sublessee; (x)
agreement between Seller and any affiliate of Seller; (xi) agreement relating to
any material matter or transaction in which an interest is held by a person or
entity that is an affiliate of Seller; (xii) any agreement for the acquisition
of services, supplies, equipment or other personal property and involving more
than $25,000 in the aggregate; (xiii) powers of attorney; (xiv) contracts
containing noncompetition covenants; (xv) agreement relating to any material
matter or transaction in which an interest is held by any person or entity
referred to in Section 3.30; or (xvi) any other agreement or commitment not made
in the ordinary course of business or that is material to the business or
financial condition of Seller.
All of the foregoing are hereinafter collectively referred to as the
"Commitments." True, correct and complete copies of the written Commitments, and
true, correct and complete written descriptions of the oral Commitments, have
heretofore been delivered or made available to Purchaser. There are no existing
defaults, events of default or events, occurrences, acts or omissions that, with
the giving of notice or lapse of time or both, would constitute defaults by
Seller, and no penalties have been incurred nor are amendments pending, with
respect to the Commitments. The Commitments are in full force and effect and are
valid and enforceable obligations of the parties thereto in accordance with
their respective terms, and no defenses, off-sets or counterclaims have been
asserted or, to the best knowledge of Seller, may be made by any party thereto,
nor has Seller waived any rights thereunder. Seller has not received notice of
any default with respect to any Commitment.
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(b) NO CANCELLATION OR TERMINATION OF COMMITMENT. Except as
contemplated hereby, Seller has not received notice of any plan or intention of
any other party to any Commitment to exercise any right to cancel or terminate
any Commitment or agreement, and Seller knows of no fact that would justify the
exercise of such a right. Seller does not currently contemplate, or have reason
to believe any other person or entity currently contemplates, any amendment or
change to any Commitment. None of the customers or suppliers of Seller has
refused, or communicated that it will or may refuse, to purchase or supply goods
or services, as the case may be, or has communicated that it will or may
substantially reduce the amounts of goods or services that it is willing to
purchase from, or sell to, Seller.
Section 3.13. ADVERSE AGREEMENTS. Seller is not a party to any
agreement or instrument or subject to any charter or other corporate restriction
or any judgment, order, writ, injunction, decree, rule or regulation that
materially and adversely affects, or so far as Seller can now foresee, may in
the future materially and adversely affect, the condition (financial or
otherwise), operations, assets, liabilities, business or prospects of Seller.
Section 3.14. INSURANCE. Seller carries property, liability, workers'
compensation and such other types of insurance as is customary in Seller's
industry. A list and brief description of all insurance policies of Seller are
set forth in Schedule 3.14. All of such policies are valid and enforceable
policies, issued by insurers of recognized responsibility in amounts and against
such risks and losses as is customary in Seller's industry. Such insurance shall
be outstanding and duly in force without interruption up to and including the
Effective Date.
Section 3.15. PATENTS, TRADEMARKS, SERVICE MARKS AND COPYRIGHTS.
(a) OWNERSHIP. There are no patents, trademarks, service marks and
copyrights necessary to conduct Seller's business, and Seller does not use any
of the same.
Section 3.16. TRADE SECRETS AND CUSTOMER LISTS. Seller has the right to
use, free and clear of any claims or rights of others, all trade secrets,
customer lists and proprietary information required for the marketing of all
merchandise and services formerly or presently sold or marketed by Seller.
Seller is not using or in any way making use of any confidential information or
trade secrets of any third party, including without limitation any past or
present employee of Seller.
Section 3.17. TAXES.
(a) FILING OF TAX RETURNS AND PAYMENT OF TAXES. Seller has duly and
timely filed with the appropriate governmental agencies all income, excise,
corporate, franchise, property, sales, use, payroll, withholding and other tax
returns (including information returns) and reports required to be filed by the
United States or any state or any political subdivision thereof or any foreign
jurisdiction. All such tax returns or reports are complete and accurate and
properly reflect the taxes of Seller for the periods covered thereby. Seller has
paid or accrued all taxes, penalties and interest that have become due with
respect to any returns that it has filed and any assessments of which it is
aware. Seller is not delinquent in the payment of any tax, assessment or
governmental charge.
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(b) NO PENDING DEFICIENCIES, DELINQUENCIES, ASSESSMENTS OR AUDITS. No
tax deficiency or delinquency has been asserted against Seller. There is no
unpaid assessment, proposal for additional taxes, deficiency or delinquency in
the payment of any of the taxes of Seller that could be asserted by any taxing
authority. There is no taxing authority audit of Seller pending or threatened,
and the results of any completed audits are properly reflected in the Financial
Statements. Seller has not granted an extension to any taxing authority of the
limitation period during which any tax liability may be assessed or collected.
(c) ALL WITHHOLDING REQUIREMENTS SATISFIED. All monies required to be
withheld by Seller and paid to governmental agencies for all income, social
security, unemployment insurance, sales, excise, use, and other taxes have been
(i) collected or withheld and either paid to the respective governmental
agencies or set aside in accounts for such purpose or (ii) properly reflected in
the Financial Statements.
(d) SAFE HARBOR LEASE; TAX EXEMPT ENTITY. None of the Assets constitute
property that Purchaser, or any affiliate of Purchaser, will be required to
treat as being owned by another person pursuant to the "Safe Harbor Lease"
provisions of Section 168(f)(8) of the Code prior to repeal by the Tax Equity
and Fiscal Responsibility Act of 1982. None of the Assets are or will be subject
to a lease to a "tax exempt entity" as such term is defined in Section 168(h)(2)
of the Code.
Section 3.18. COMPLIANCE WITH LAWS. Seller has complied with all laws,
regulations and licensing requirements and has filed with the proper authorities
all necessary statements and reports. There are no existing violations by Seller
of any federal, state or local law or regulation that could affect the property
or business of Seller. Seller possesses all necessary licenses, franchises,
permits and governmental authorizations to conduct its business as now
conducted.
Section 3.19. FINDER'S FEE. Except as set forth in Schedule 3.19,
neither Seller nor any Shareholder has incurred any obligation for any finder's,
broker's or agent's fee in connection with the transactions contemplated hereby.
Section 3.20. LITIGATION. There are no legal actions or administrative
proceedings or investigations instituted, or to the best knowledge of Seller
threatened, against or affecting, or that could affect, Seller, any of the
Assets, or the business of Seller. Seller is not (i) subject to any continuing
court or administrative order, writ, injunction or decree applicable
specifically to Seller or to its business, assets, operations or employees or
(ii) in default with respect to any such order, writ, injunction or decree.
Seller does not know of any basis for any such action, proceeding or
investigation.
Section 3.21. ACCURACY OF INFORMATION FURNISHED. All information
furnished to Purchaser by Seller hereby or in connection with the transactions
contemplated hereby is true, correct and complete in all respects. Such
information states all facts required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which such
statements are made, true, correct and complete.
Section 3.22. CONDITION OF FIXED ASSETS. All of the plants, structures
and equipment included in the Assets are in good condition and repair for their
intended use in the ordinary
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course of business and conform in all material respects with all applicable
ordinances, regulations and other laws and there are no known latent defects
therein.
Section 3.23. INVENTORY. All of the inventory included in the Assets is
in good, current, standard and merchantable condition and is not obsolete or
defective. Purchase commitments for merchandise are not in excess of normal
requirements and, taken as a whole, are not at prices in excess of market
prices. Seller has presently, and at the Effective Date will have, the types and
quantities of inventories appropriate, taken as a whole, to conduct its business
consistently with past practices.
Section 3.24. BOOKS OF ACCOUNT. The books of account of Seller have
been kept accurately in the ordinary course of business, the transactions
entered therein represent bona fide transactions and the revenues, expenses,
assets and liabilities of Seller have been properly recorded in such books.
Section 3.25. ACCOUNTS RECEIVABLE. Seller does not have any accounts
receivable.
Section 3.26. DISTRIBUTIONS AND REPURCHASES. No distribution, payment
or dividend of any kind has been declared or paid by Seller on any of its
capital stock at any time. No repurchase of any of Seller's capital stock has
been approved or effected by Seller at any time.
Section 3.27. BANKING RELATIONS. Set forth in Schedule 3.27 is a
complete and accurate list of all arrangements that Seller has with any bank or
other financial institution, indicating with respect to each relationship the
type of arrangement maintained (such as checking account, borrowing
arrangements, safe deposit box, etc.) and the person or persons authorized in
respect thereof.
Section 3.28. OWNERSHIP INTERESTS OF INTERESTED PERSONS. Except as set
forth in Schedule 3.28, no officer, supervisory employee, director or
shareholder of Seller, or their respective spouses or children, owns directly or
indirectly, on an individual or joint basis, any material interest in, or serves
as an officer or director of, any customer or supplier of Seller, or any
organization that has a material contract or arrangement with Seller.
Section 3.29. ENVIRONMENTAL MATTERS. Neither Seller nor any of the
Assets are currently in violation of, or subject to any existing, pending or
threatened investigation or inquiry by any governmental authority or to any
remedial obligations under, any laws or regulations pertaining to health or the
environment (hereinafter sometimes collectively called "Environmental Laws"),
and this representation and warranty would continue to be true and correct
following disclosure to the applicable governmental authorities of all relevant
facts, conditions and circumstances, if any, pertaining to the Assets. To the
best knowledge of Seller, the Assets have never been used in a manner that would
be in violation of any of the Environmental Laws. Seller has not obtained and is
not required to obtain, and Seller has no knowledge of any reason Purchaser will
be required to obtain, any permits, licenses or similar authorizations to
construct, occupy, operate or use any buildings, improvements, fixtures and
equipment owned or leased by Seller by reason of any Environmental Laws. To the
best knowledge of Seller, none of the assets owned or leased by Seller are on
any federal or state "Superfund" list or subject to any environmentally related
liens.
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Section 3.30. CERTAIN PAYMENTS. To the best knowledge of Seller,
neither Seller nor any director, officer or employee of Seller has paid or
caused to be paid, directly or indirectly, in connection with the business of
Seller: (i) to any government or agency thereof or any agent of any supplier or
customer any bribe, kick-back or other similar payment; or (b) any contribution
to any political party or candidate (other than from personal funds of
directors, officers or employees not reimbursed by their respective employers or
as otherwise permitted by applicable law).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants that the following are true and
correct as of the date hereof and will be true and correct through the Effective
Date as if made on that date:
Section 4.1. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Nevada, with all requisite corporate power and authority to carry on
the business in which it is engaged, to own the properties it owns, to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby.
Section 4.2. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Purchaser of this Agreement and the other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Purchaser. This Agreement and each other
agreement contemplated hereby have been or will be as of the Effective Date duly
executed and delivered by Purchaser and constitute or will constitute (as the
case may be) legal, valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
Section 4.3. NO VIOLATION. Neither the execution, delivery or
performance of this Agreement or the other agreements contemplated hereby nor
the consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions and
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws of Purchaser or any agreement, indenture or other instrument under which
Purchaser is bound or (ii) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over Purchaser or the properties
or assets of Purchaser.
Section 4.4. CONSENTS. No consent, authorization, approval, permit or
license of, or filing with, any governmental or public body or authority, any
lender or lessor or any other person or entity is required to authorize, or is
required in connection with, the execution, delivery and performance of this
Agreement or the agreements contemplated hereby on the part of Purchaser.
Section 4.5. COMPLIANCE WITH LAWS. Purchaser has complied with all
laws, regulations and licensing requirements and has filed with the proper
authorities all necessary
10
statements and reports. There are no existing violations by Purchaser of any
federal, state or local law or regulation that could affect the property or
business of Purchaser.
Section 4.6. FINDER'S FEE. Purchaser has not incurred any obligation
for any finder's, broker's or agent's fee in connection with the transactions
contemplated hereby.
Section 4.7. LITIGATION. There are no legal actions or administrative
proceedings or investigations instituted, or to the best knowledge of Purchaser
threatened, against or affecting, or that could affect, Purchaser or the
business of Purchaser. Purchaser is not (a) subject to any continuing court or
administrative order, writ, injunction or decree applicable specifically to
Purchaser or to its business, assets, operations or employees or (ii) in default
with respect to any such order, writ, injunction or decree. Purchaser does not
know of any basis for any such action, proceeding or investigation.
ARTICLE V
CLOSING DELIVERIES
Section 5.1. DELIVERIES OF SELLER. Upon execution of this Agreement,
Seller shall deliver to Purchaser the following, all of which shall be in a form
satisfactory to counsel to Purchaser:
(a) a xxxx of sale conveying the Personal Property to Purchaser;
(b) an assignment of each lease under which Seller is lessee or lessor
assigning the interest of Seller therein to Purchaser, together with, in the
case of an assignment of a lessee's interest, an owner's policy of title
insurance showing the lessee's interest under the lease to be vested in
Purchaser;
(c) in a form and substance satisfactory to counsel for Purchaser, (i)
a deed conveying each item of Real Property to Purchaser, together with (ii) an
acceptable abstract of title down dated to the Effective Date;
(d) assignments for all funds of Seller on deposit with banks or other
persons (other than Excluded Assets);
(e) an Assignment Agreement in the form attached as Exhibit B with
respect to all of Seller's rights and obligations under the Commitments (the
"Assignment");
(f) a copy of resolutions of the Board of Directors of Seller
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements, each certified by the Secretary of Seller as
being true and correct copies of the originals thereof subject to no
modifications or amendments;
(g) a certificate from the Seller's President to the effect that the
representations and warranties of Seller contained herein are true and correct
in all respects as of the Effective Date and that Seller has complied with all
covenants and conditions required by this Agreement to be performed or complied
with by Seller;
11
(h) a certificate, dated within thirty days of the Effective Date, of
the Secretary of State of New York establishing that Seller is in existence, has
paid all franchise taxes and otherwise is in good standing to transact business
in its state of incorporation;
(i) all authorizations, consents, approvals, permits and licenses
referenced in Section 3.5;
(j) an executed three-year Noncompetition Agreement among Purchaser,
Seller and each Shareholder in the form attached as Exhibit C (the
"Noncompetition Agreement"); and
(k) such other instrument or instruments of transfer as shall be
necessary or appropriate, as Purchaser or its counsel shall reasonably request,
to vest in Purchaser good and marketable title to the Assets that are personal
property and good and indefeasible title to the Assets that are real property.
Section 5.2. DELIVERIES OF PURCHASER. At the Closing, Purchaser shall
deliver to Seller:
(a) the Cash Consideration in immediately available funds;
(b) the Assignment;
(c) a copy of the resolutions of the Board of Directors of Purchaser
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements, each certified by Purchaser's Secretary as
being true and correct copies of the originals thereof subject to no
modifications or amendments;
(d) a certificate from the Purchaser's President to the effect that the
representations and warranties of Purchaser contained herein are true and
correct in all respects as of the Effective Date and that Purchaser has complied
with all covenants and conditions required by this Agreement to be performed or
complied with by Purchaser;
(e) a certificate, dated within thirty days of the Effective Date, of
the Secretary of State of Texas, establishing that Purchaser is in existence,
has paid all state taxes and otherwise is in good standing to transact business
in such state.
ARTICLE VI
POST CLOSING MATTERS
Section 6.1. FURTHER INSTRUMENTS OF TRANSFER. Following the Closing, at
the request of Purchaser, Seller and the Shareholders shall deliver any further
instruments of transfer and take all reasonable action as may be necessary or
appropriate to (i) vest in Purchaser good and marketable title to Assets that
are personal property and good and indefeasible title to Assets that are real
property and (ii) transfer to Purchaser all licenses and permits necessary for
the operation of the Assets.
Section 6.2. EMPLOYEE BENEFIT PLAN CLAIMS INCURRED. After the Effective
Date, Seller shall remain liable under its medical and dental plans and
commitments for any claims
12
incurred by its employees or their spouses and dependents prior to the Effective
Date. A claim shall be deemed to have been incurred upon the occurrence of an
injury or the diagnosis of an illness. An incurred claim shall include any claim
or series of claims related to a claim incurred prior to the Effective Date.
Seller shall retain all liability for continuation coverage under Section 162(k)
of the Code.
Section 6.3. SALES TAXES APPLICABLE TO SALES PRIOR TO OR ON THE
EFFECTIVE DATE. Seller shall timely file all sales tax returns with respect to
sales occurring in connection with Seller's business prior to or on the
Effective Date. Seller shall timely pay all sales taxes applicable to the sales
reported on the tax returns referred to above. Seller shall be liable for and
shall indemnify Purchaser against all sales, transfer, use, excise, registration
or other taxes assessed or payable in connection with the transfer of the Assets
from Seller to Purchaser. Seller and Purchaser shall sign, and otherwise shall
cooperate in the preparation and filing with the appropriate governmental
agencies of, any affidavits or other transfer documents that are required in
connection with the transfer of vehicles or trailers that constitute part of the
Assets.
ARTICLE VII
REMEDIES
Section 7.1. INDEMNIFICATION BY THE SHAREHOLDERS. Subject to the terms
and conditions of this Article, each Shareholder, jointly and severally shall
indemnify, defend and hold Purchaser and Parent, and their respective directors,
officers, agents, attorneys and affiliates harmless from and against all losses,
claims, obligations, demands, assessments, penalties, liabilities, costs,
damages, attorneys' fees and expenses (collectively, "Damages"), asserted
against or incurred by such indemnitees by reason of or resulting from (i) a
breach of any representation, warranty or covenant of the Corporation or
Shareholder contained herein, in any exhibit, schedule, certificate or financial
statement delivered hereunder, or in any agreement executed in connection with
the transactions contemplated hereby; or (ii) the matter identified on Schedule
3.19; provided, however, that no indemnification for Damages under this subpart
(i) of Section 9.1 shall be made until the aggregate amount of such Damages
under subpart (i) of this Section 9.1 exceeds $70,000.
Section 7.2. INDEMNIFICATION BY PURCHASER. Subject to the terms and
conditions of this Article, Purchaser shall indemnify, defend and hold the
Corporation and each Shareholder and its or their respective directors,
officers, agents, attorneys and affiliates harmless from and against all Damages
asserted against or incurred by any of such indemnitees by reason of or
resulting from a breach of any representation, warranty or covenant of Purchaser
or Parent contained herein or in any exhibit, schedule or certificate delivered
hereunder, or in any agreement executed in connection with the transactions
contemplated hereby; provided, however, that no indemnification for Damages
under this Section 9.2 shall be made until the aggregate amount of such Damages
exceeds $70,000.
Section 7.3. CONDITIONS OF INDEMNIFICATION. The respective obligations
and liabilities of the Shareholders and Purchaser (the "indemnifying party") to
the other (the "party to be indemnified") under Section 9.1 and Section 9.2 with
respect to claims resulting from the assertion of liability by third parties
shall be subject to the following terms and conditions:
13
(a) Within 20 days (or such earlier time as might be required to avoid
prejudicing the indemnifying party's position) after receipt of notice of
commencement of any action evidenced by service of process or other legal
pleading, the party to be indemnified shall give the indemnifying party written
notice thereof together with a copy of such claim, process or other legal
pleading, and the indemnifying party shall have the right to undertake the
defense thereof by representatives of its own choosing and at its own expense;
provided that the party to be indemnified may participate in the defense with
counsel of its own choice, the fees and expenses of which counsel shall be paid
by the party to be indemnified unless (i) the indemnifying party has agreed to
pay such fees and expenses, (ii) the indemnifying party has failed to assume the
defense of such action or (iii) the named parties to any such action (including
any impleaded parties) include both the indemnifying party and the party to be
indemnified and the party to be indemnified has been advised by counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the indemnifying party (in which case, if
the party to be indemnified informs the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the party to be indemnified, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for the party to be indemnified, which firm shall be designated in writing
by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after
receipt of notice of any such claim (or, if earlier, by the 10th day preceding
the day on which an answer or other pleading must be served in order to prevent
judgment by default in favor of the person asserting such claim), does not elect
to defend against such claim, the party to be indemnified will (upon further
notice to the indemnifying party) have the right to undertake the defense,
compromise or settlement of such claim on behalf of and for the account and risk
of the indemnifying party and at the indemnifying party's expense, subject to
the right of the indemnifying party to assume the defense of such claims at any
time prior to settlement, compromise or final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not
settle any claim without the consent of the party to be indemnified unless such
settlement involves only the payment of money and the claimant provides to the
party to be indemnified a release from all liability in respect of such claim.
If the settlement of the claim involves more than the payment of money, the
indemnifying party shall not settle the claim without the prior consent of the
party to be indemnified.
(d) The party to be indemnified and the indemnifying party will each
cooperate with all reasonable requests of the other.
Section 7.4. WAIVER. No waiver by any party of any default or breach by
another party of any representation, warranty, covenant or condition contained
in this Agreement, any exhibit or any document, instrument or certificate
contemplated hereby shall be deemed to be a waiver of any subsequent default or
breach by such party of the same or any other representation, warranty, covenant
or condition. No act, delay, omission or course of dealing on the part of any
14
party in exercising any right, power or remedy under this Agreement or at law or
in equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies. All remedies, whether at law or in equity,
shall be cumulative and the election of any one or more shall not constitute a
waiver of the right to pursue other available remedies.
Section 7.5. REMEDIES NOT EXCLUSIVE. The remedies provided in this
Article shall not be exclusive of any other rights or remedies available to one
party against the other, either at law or in equity.
Section 7.6. COSTS, EXPENSES AND LEGAL FEES. Whether or not the
transactions contemplated hereby are consummated, each party hereto shall bear
its own costs and expenses (including attorneys' fees), except that each party
hereto agrees to pay the costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the other parties in successfully (i) enforcing
any of the terms of this Agreement or (ii) proving that another party breached
any of the terms of this Agreement.
Section 7.7. SPECIFIC PERFORMANCE. Seller and the Shareholders
acknowledge that a refusal by Seller and/or the Shareholders to consummate the
transactions contemplated hereby will cause irreparable harm to Purchaser, for
which there may be no adequate remedy at law and for which the ascertainment of
damages would be difficult. Therefore, Purchaser shall be entitled, in addition
to, and without having to prove the inadequacy of, other remedies at law, to
specific performance of this Agreement, as well as injunctive relief (without
being required to post bond or other security).
ARTICLE VIII
MISCELLANEOUS
Section 8.1. AMENDMENT. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all the parties
hereto.
Section 8.2. ASSIGNMENT. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto, except by Purchaser
to an affiliate of Purchaser.
Section 8.3. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
Agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
Section 8.4. ENTIRE AGREEMENT. This Agreement (including the Exhibits
attached hereto) and the agreements contemplated hereby constitute the entire
agreement of the parties regarding the subject matter hereof, and supersede all
prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof.
Section 8.5. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such
15
provision shall be fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision never comprised
a part hereof; and the remaining provisions hereof shall remain in full force
and effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as part
of this Agreement a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable.
Section 8.6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants contained herein shall survive the
Closing and all statements contained in any certificate, exhibit or other
instrument delivered by or on behalf of Seller or Purchaser pursuant to this
Agreement shall be deemed to have been representations and warranties by Seller
or Purchaser, as the case may be, and, notwithstanding any provision in this
Agreement to the contrary, shall survive the Closing for a period of two (2)
years, except for (i) representations and warranties with respect to any tax or
tax-related matters or any ERISA matters, which shall survive the Closing until
the running of any applicable statutes of limitation and (ii) indemnification
provisions for the violation of any Environmental Law, which shall survive the
Closing and shall continue indefinitely.
Section 8.7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE STATE OF TEXAS.
Section 8.8. CAPTIONS. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
Section 8.9. CONFIDENTIALITY; PUBLICITY AND DISCLOSURES. Each party
shall keep this Agreement and its terms confidential, and shall make no press
release or public disclosure, either written or oral, regarding the transactions
contemplated by this Agreement without the prior knowledge and consent of the
other parties hereto; provided that the foregoing shall not prohibit any
disclosure (i) by press release, filing or otherwise that is required by federal
securities laws or the rules of any stock exchange or market, (ii) to attorneys,
accountants, investment bankers or other agents of the parties assisting the
parties in connection with the transactions contemplated by this Agreement and
(iii) by Purchaser in connection with obtaining financing for the transactions
contemplated by this Agreement and conducting an examination of the operations
and assets of Seller.
Section 8.10. NOTICE. Any notice or communication hereunder or in any
agreement entered into in connection with the transactions contemplated hereby
must be in writing and given by depositing the same in the United States mail,
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, or by delivering the same in person.
Such notice shall be deemed received on the date on which it is hand-delivered
or on the third business day following the date on which it is so mailed. For
purposes of notice, the addresses of the parties shall be:
16
If to the Corporation or Finger Lake International, Inc.
Shareholder: X.X. Xxx 000
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to Purchaser: Boundless Motor Sports Racing, Inc.
0000 X. XxXxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxx L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Any party may change its address for notice by written notice given to the other
parties in accordance with this Section.
Section 8.11. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
17
EXECUTED as of the date first above written.
BOUNDLESS MOTOR SPORTS RACING, INC.
By: /s/ XXXX X. XXXXXX
------------------------------------------
Xxxx X. Xxxxxx, Chief Executive Officer
BOUNDLESS RACING, INC.
By: /s/ XXXX X. XXXXXX
------------------------------------------
Xxxx X. Xxxxxx, Chief Executive Officer
FINGER LAKE INTERNATIONAL, INC.
By: /s/ XXXXX XXXXXXXX
------------------------------------------
Xxxxx Xxxxxxxx, CEO and President
/s/ XXXXX XXXXXXXX
---------------------------------------------
Xxxxx Xxxxxxxx
/s/ XXXXX XXXXXXXX
---------------------------------------------
Xxxxx XxXxxxxx
/s/ XXXX XXXXXX
---------------------------------------------
Xxxx Xxxxxx
18
EXHIBIT A
DEFINITIONS
"ASSETS" shall mean, with respect to Seller, all of the business,
properties and assets (real and personal, tangible and intangible) of Seller of
every kind and wherever situated that are owned by Seller or in which it has any
right or interest (including without limitation and to the extent owned, its
business as a going concern, its goodwill, franchises and all right, title and
interest in and to the use of its corporate name and any derivatives or
combinations thereof; its trade-names, trademarks, trademark registrations and
trademark applications, service marks, service xxxx registrations and service
xxxx applications, copyrights, copyright registrations and copyright
applications, patents, patent registrations and patent applications, processes,
formulae, proprietary and technical information, computer software, know-how,
permits, licenses, trade secrets, inventions and royalties (including all rights
to xxx for past infringement of any of the foregoing); its lands, leaseholds and
other interests in land; its inventory of finished goods, work-in-process and
raw materials, backlog, equipment and supplies; its cash, money on deposit with
banks and others, certificates of deposit, commercial paper, stocks, bonds and
other investments; its accounts receivable; rights under its insurance policies
and warranties; its causes of action, judgments, claims and demands of whatever
nature; its deferred charges, advance payments, prepaid items, claims for
refunds, rights of offset and credits of all kinds; all credit balances of or
inuring to Seller under any state unemployment compensation plan or fund; its
rights under restrictive covenants and obligations of present and former
officers and employees and of individuals and corporations; its rights under
partnership or joint venture agreements or arrangements; its rights under all
agreements assumed by Purchaser; and its files, papers and records relating to
the aforesaid business, properties and assets) other than the Excluded Assets.
"CASH CONSIDERATION" shall have the meaning set forth in Section
2.2(a).
"CLOSING" shall mean the closing of the transactions contemplated by
this Agreement, which shall occur as of 10:00 a.m., local time, on the Effective
Date in the offices of Xxxxxxx Xxxxxx L.L.P., 0000 Xxxxx Xxxxxxx Xxxxxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000.
"CLOSING DATE" shall mean the Effective Date.
"CODE" shall have the meaning set forth in Section 2.2(b) above.
"COMMITMENTS" shall have the meaning set forth in Section 3.12(a).
"DAMAGES" shall have the meaning set forth in Section 7.1.
"EMPLOYEE BENEFIT PLAN" shall have the meaning set forth in Section
3.9(a).
"ENVIRONMENTAL LAWS" shall have the meaning set forth in Section 3.29.
"EXCLUDED ASSETS" shall mean the following assets and properties: (i)
the consideration delivered to Seller pursuant to this Agreement for the Assets
sold, transferred, assigned, conveyed and delivered pursuant hereto; (ii)
Seller's right to enforce Purchaser's representations,
A-1
warranties and covenants hereunder and the obligations of Purchaser to pay,
perform or discharge the liabilities of Seller assumed by Purchaser pursuant to
this Agreement and all other rights, including rights of indemnification, of
Seller under this Agreement or any instrument executed pursuant hereto; (iii)
Seller's Articles of Incorporation and all amendments thereto, Bylaws, corporate
seal, minute books, stock books and other corporate records having exclusively
to do with the corporate organization and capitalization of Seller; (iv)
Seller's books of account, but Seller agrees that Purchaser shall have the right
at Purchaser's request to inspect such books and make copies thereof; (v)
Seller's rights to claims for refunds of taxes which cannot be assigned by law;
(vi) shares of the capital stock of Seller; and (vii) unclaimed dividends and
other money and property that are held in trust by Seller or subject to escheat.
"FINANCIAL STATEMENTS" shall have the meaning set forth in Section 3.6.
"PERSONAL PROPERTY" shall have the meaning set forth in Section
3.11(b).
"PURCHASE PRICE" shall have the meaning set forth in Section 2.2(a).
"REAL PROPERTY" shall have the meaning set forth in Section 3.11(a).
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