EXHIBIT 2.7
CONTRACT OF SALE
This Contract of Sale (the "Contract") is made as of August 13, 2003
(the "Effective Date") by and among Xx. Xxxxx Xxxxxxxx, a resident of the State
of New York ("Seller"), Boundless Motor Sports Racing, Inc., a Colorado
corporation ("Parent"), and Boundless Track Operations, Inc., a Nevada
corporation and a wholly-owned subsidiary of Parent ("Purchaser").
WITNESSETH:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
that certain land described on Exhibit A attached hereto (the "Real Property"),
together with all appurtenances thereon or in anywise appertaining thereto and
such other assets listed on Exhibit B attached hereto (the "Personal Property"
and together with the Real Property, the "Property"); and
WHEREAS, Parent, a publicly-held corporation, is planning to undertake
an offering of $5,000,000 or more of its common stock ("Parent Stock") in either
a private placement or public offering (the "Offering").
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
SALE OF THE PROPERTY; PURCHASE PRICE
1.1 PURCHASE AND SALE OF THE PROPERTY. 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 Property.
1.2 PURCHASE PRICE.
(a) PURCHASE PRICE. The total purchase price for the Property
shall be $4,300,000 (the "Purchase Price"), fifty percent (50%) of which shall
be due and payable at the Closing (as hereinafter defined) by wire transfer of
immediately available funds to the account designated in writing by Seller (the
"Cash Consideration"), and the remaining fifty percent (50%) of which shall be
due and payable in shares (the "Shares") of Parent Stock (valued at the per
share price paid in the Offering (the "Equity Consideration).
(b) ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated among the Real Property and the Personal Property as set forth in
Schedule 1.2, 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 the allocation in
Schedule 1.2. 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 the allocation of the
Purchase Price as agreed to in Schedule 1.2. Purchaser and Seller shall each
indemnify, defend and hold harmless the other party from and against any and all
claims, losses, liabilities, damages, costs and expenses that may be incurred as
a result of the failure to file Form 8594, the failure to file such Form 8594 on
a timely basis or the failure to file its income tax return on a basis as
required by this Section 1.2.
ARTICLE II
TITLE AND SURVEY
2.1 TITLE/CLOSING DOCUMENTS.
(a) Seller shall provide to Purchaser, or Purchaser's attorney,
reasonably prior to the date of Closing, the following documents in connection
with the sale: (i) Warrant Deed with lien covenants; (ii) guaranteed forty (40)
year Abstract of Title evidencing marketable title; (iii) certified ten (10)
year tax search(es), copies of current bills and receipts for payment of real
estate taxes; (iv) current map of instrument survey prepared by a license Land
Surveyor and certified as required by Purchaser, with all corners permanently
staked and visibly marked; (v) Transfer Gains Tax Affidavit (Form TP-584); and
(vi) Real Property Transfer Report (Form RP5217).
(b) At the Closing, Seller shall execute and deliver to Purchaser
the Deed, Transfer Gains Tax Affidavit, Real Property Transfer Report, and all
other documents reasonably required by Purchaser or Purchaser's lender. The
Seller shall pay for the Abstract of Title with current re-date, tax search(es),
survey, filing of survey map (if applicable), revenue stamps on Deed, recording
Discharge of mortgage, and filing of Transfer Gains Tax Affidavit, and the
Purchaser shall pay for the Abstract of Title closing re-date, filing of Real
Property Transfer Report, recording of Deed and Mortgage, and all
mortgage-related expenses.
(c) At Closing, Seller shall transfer to Purchaser good and
marketable title to the Premises, subject to building and use restrictions of
record and governmental laws, regulations and/or ordinances (provided that the
same are not violated), utility and/or drainage easements benefiting the Real
Property and permitted pursuant to FNMA/FHLMC title standards, and taxes for
local improvements not yet due. Otherwise such title shall be free and clear
from the rights of others unless set forth herein.
2.2 SURVEY. Seller shall, as soon as possible, cause to be prepared and
furnished to Purchaser and the Title Company (if any) a current or recertified
survey (the "Survey") of the Property, prepared by a Registered Public Surveyor
or Professional Engineer acceptable to Purchaser. The Survey shall be dated
after the Effective Date, shall include a legal description of the Property
(which shall be deemed incorporated in this Contract and shall be used in the
Abstract of Title and the deed to Purchaser), shall accurately show the location
and dimensions of all encroachments, uses (including the location of all
highways, streets, roads, easements, alleys and rights-of-way upon or adjacent
to the Property) and encumbrances which are visible on the ground or listed on
the Abstract of Title (identifying each by volume and page reference, if
applicable), shall recite an exact area of the Property, shall accurately show
the nearest location of all utilities (including electricity, natural gas,
water, sanitary and storm sewer and telephone) within a one thousand foot
(1,000') radius of the Property, shall show any and all building set-back lines,
shall set forth the elevation of the Property in one foot topographical contour
line increments, and shall
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contain a certificate specifically addressed to both Purchaser and the Title
Company (if any) in the following form:
"The undersigned hereby certifies to [Purchaser], [Title
Company] that this survey is true and correct and: (i) was made on the
ground in accordance with the field notes shown hereon and correctly
shows the boundary lines and dimensions and area of the land indicated
hereon and each individual parcel thereof indicated hereon; (ii)
correctly shows the location of all improvements and visible items on
the subject Property; (iii) correctly shows all required set-back
lines; and (iv) correctly shows the location and dimensions of all
alleys, streets, roads, rights-of-way, easements, building set-back
lines and other matters of record of which the undersigned has been
advised affecting the subject Property according to the legal
description in such easements and other matters (with instrument, book
and page number indicated); (v) except as shown, there are no visible
easements or uses, rights-of-way, party walls, conflicts, improvements
or other matters of record of which the undersigned has been advised
affecting the subject property, there are no visible encroachments on
adjoining premises, streets or alleys by any of said buildings,
structures or other improvements, there are no visible encroachments on
the subject property by buildings, structures or other improvements
situated on adjoining property, and there are no visible encroachments
on any easements located on the subject property by any improvements
situated on the subject property; (vi) the distance from the nearest
intersecting street and road is as shown hereon; (vii) the elevation of
the subject Property is as shown hereon; (viii) that [the subject
Property contains gross square feet and net square feet
and that] no portion of the subject property lies within any area
designated on a Federal Flood Insurance Rate Map or Flood Hazard
Boundary Map as having special flood hazards, "flood plain" or other
"flood hazard" area except as shown on this survey; and (ix) this
survey conforms to the current Texas Society of Professional Surveyors
Standards and Specifications for a Category 1A, Condition II Survey."
The certification for the property description and the map or plat
shall be signed by the Surveyor and bear a current date, registration number and
seal. The Survey must be satisfactory to the Title Company so as to permit it to
amend the area and boundary exception in the Owner Policy of Title Insurance to
be issued to Purchaser as required herein. Seller shall provide the surveyor
with a copy of this Section 2.2 when the Survey is ordered. For the purposes of
this Contract the term "net square feet" shall mean the number of square feet
contained within the boundary lines of the Property exclusive of all land lying
within the bed of any and all existing or proposed streets, roads, highways,
alleys, rights-of-way, easements, encroachments, ponds, watercourses and areas
designated as special flood hazard areas by any governmental agency and all land
being within any area designated by the Corps of Engineers or any other entity
as being in any way restricted with respect to the development of improvements.
2.3 REVIEW OF TITLE AND SURVEY. Purchaser shall have a reasonable
period of time (the "Review Period") ending [fifteen (15)] days after the date
on which Purchaser receives the last to be received of (i) the Commitment, (ii)
legible true copies of all instruments referred to in the Commitment, or (iii)
the Survey, in which to notify Seller of any objections Purchaser has to any
matters shown or referred to in the Commitment or on the Survey. Any title
encumbrances or
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exceptions which are set forth in the Commitment or on the Survey, and to which
Purchaser does not object within the Review Period, shall be deemed to be
permitted exceptions to the status of Seller's title (the "Permitted
Exceptions"). None of the exceptions prohibited in Section 2.l above shall be
Permitted Exceptions.
2.4 OBJECTIONS TO STATUS OF TITLE. In the event that Purchaser shall
object to the status of Seller's title during the Review Period, Seller shall
have thirty (30) days from delivery of Purchaser's objections within which to
satisfy Purchaser's objections or to deliver to Purchaser, at Seller's expense,
an Owners Policy of Title Insurance, showing no defects in title. In the event
Seller shall be unable to satisfy Purchaser's objections within such thirty (30)
day period, Purchaser shall have the option, on or before the Closing Date, to
(i) extend the deadline for Closing until such defects have been cured,
whichever first occurs, (ii) waive Purchaser's objections and purchase the
Property as otherwise contemplated in this Contract, notwithstanding such
objections, in which event the subject matter of such waived objections shall
become Permitted Exceptions, and Seller shall convey the Property to Purchaser
by the deed referred to in Section 7.1(a)(1) hereof, subject to the Permitted
Exceptions, or (iii) terminate this Contract, which shall be a Permitted
Termination as provided in Section 10.1 hereof.
ARTICLE III
INVESTIGATION BY PURCHASER
3.1 MATTERS TO BE SUBMITTED. Within [ten (10)] days from the Effective
Date, Seller shall deliver to Purchaser, at Seller's sole cost and expense, the
following items (hereinafter referred to as the "Submission Matters"):
(a) copies, certified by Seller to be true and correct, of all
real property tax bills and tax searches with respect to the Property since the
inception of Seller's ownership thereof, together with those for the current
property tax year, to the extent then available with respect to the current tax
year, and a statement by Seller as to whether or not any taxing authority has
given notice to Seller of intent to effect a change in the assessed value or
basis for levy of taxes with respect to the Property indicated in such bills;
(b) a written statement from the appropriate municipal authority,
if any, providing the current zoning classification of the Property;
(c) copies of any leases affecting the Property;
(d) copies, if any, of any development plans or studies, drainage
studies, site plans, and soil and substrata studies;
(e) a current "Phase I" environmental site assessment of the
Property prepared by an environmental audit or research firm acceptable to
Purchaser; and
(f) copies of all other information in Seller's possession which
is in any way connected with the ownership or use of the Property or any part
thereof.
3.2 EXAMINATION OF SUBMISSION MATTERS. Purchaser shall have a
reasonable period of time (the "Inspection Period") from the last to occur of
(i) the Effective Date, or, (ii) the day
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following the date on which all of the Submission Matters shall have been
submitted to Purchaser to examine the Submission Matters.
3.3 PHYSICAL INSPECTION. Purchaser shall have until the end of the
Inspection Period to physically inspect the Property, and Purchaser or
Purchaser's authorized representative shall have the right from and after the
Effective Date to enter upon and make tests on the Property, which tests may
include soil analysis and core drilling. Purchaser shall repair any physical
damage occasioned to the Property as a result of such tests.
3.4 APPROVAL OF INSPECTIONS. The obligations of Purchaser pursuant to
this Contract are expressly conditioned and contingent upon Purchaser's
satisfaction with and approval of the Submission Matters and the results of all
inspections made by Purchaser pursuant to the provisions of this Article III
within the time periods specified herein, such satisfaction and approval to be
in the sole and absolute discretion of Purchaser. In the event of disapproval by
Purchaser of the results of one or more of such inspections and inquiries, or if
Purchaser for any other reason determines that Purchaser does not want to
purchase the Property, this Contract shall at the election of Purchaser be
terminated upon written notice to Seller on or before the end of the Inspection
Period, which shall be a Permitted Termination as provided in Section 10.1
hereof.
ARTICLE IV
SELLER REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Purchaser and Parent as of the
Effective Date and as of the Closing Date that:
4.1 VALIDITY. This Agreement and each other agreement contemplated
hereby have been or will be as of the Closing Date duly executed and delivered
by Seller and constitute or will constitute legal, valid and binding obligations
of Seller, enforceable against Seller 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.
4.2 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 (a) conflict with, or
result in a violation or breach of the terms, conditions or provisions of, or
constitute a default under any agreement, indenture or other instrument under
which Seller is bound or to which any of the Property is subject, or result in
the creation or imposition of any security interest, lien, charge or encumbrance
upon any of the Property, or (b) 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 or the Property.
Seller has complied with all laws, regulations and licensing requirements and
has filed with the proper authorities all necessary statements and reports.
4.3 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.
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4.4 TITLE.
(a) REAL PROPERTY. 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. There is no
pending condemnation or similar proceeding affecting the Real Property or any
portion thereof, and Seller has not received any written notice and has no
knowledge that any such proceeding is contemplated.
(b) PERSONAL PROPERTY. 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.
4.5 TAXES.
(a) NO PENDING DEFICIENCIES, DELINQUENCIES, ASSESSMENTS OR
AUDITS. No tax deficiency or delinquency has been asserted against Seller or the
Property. 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 against the Property. The Property has
at all times been fully assessed at its fair market value for ad valorem and
other tax purposes, and as a result is not subject to assessment or collection
of additional taxes for prior years based upon a change in land usage or
ownership. All ad valorem taxes on the Real Property except those for the year
of Closing have been paid in full; there is no taxing authority audit of Seller
pending or threatened.
(b) NO EXTENSION OF LIMITATION PERIOD. 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) FOREIGN PERSON. Seller is not a foreign person, as such term
is referred to in Section 1445(b)(2) of the Code and Purchaser is not required
to withhold from Seller, pursuant to the federal tax law, any of the
consideration to be paid for the Property pursuant to this Contract.
4.6 COMPLIANCE WITH LAWS. There are no existing violations by Seller of
any federal, state or local law or regulation that could affect the Property.
4.7 FINDER'S FEE. Except for a five percent (5%) commission payable by
Seller to Jumpstart LLC, Seller has not incurred any obligation for any
finder's, broker's or agent's fee in connection with the transactions
contemplated hereby.
4.8 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
Property and Seller does not know of any basis for any such action, proceeding
or investigation nor, to the knowledge of Seller, is any such action, suit,
proceeding or claim threatened or being asserted; and there is no proceeding
pending or presently being prosecuted for the reduction of the assessed
valuation or taxes or other impositions payable in respect of any portion of the
Property.
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4.9 ACCURACY OF INFORMATION FURNISHED. All information furnished to
Purchaser and Parent 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.
4.10 CONDITION OF FIXED ASSETS. All of the plants, structures and
equipment included in the Property are in good condition and repair for their
intended use in the ordinary 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.
4.11 ENVIRONMENTAL MATTERS.
(a) ENVIRONMENTAL LAWS. Neither Seller nor any of the Property is
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"),
including without limitation (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.), as
amended from time to time ("CERCLA") (including without limitation as amended
pursuant to the Superfund Amendments and Reauthorization Act of 1986), and
regulations promulgated under CERCLA, (ii) the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. Sections 6901 et seq.), as amended from time to
time ("RCRA"), and regulations promulgated thereunder, and (iii) statutes, rules
or regulations, whether federal, state or local, relating to asbestos or
polychlorinated biphenyls, 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 Property.
(b) USE OF ASSETS. To the best knowledge of Seller, the Property
has never been used in a manner that would be in violation of any of the
Environmental Laws, including without limitation CERCLA, RCRA, or any similar
state laws.
(c) PERMITS. 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 the Property or any buildings, improvements, fixtures and
equipment on the Property by reason of any Environmental Laws.
(d) SUPERFUND LIST. To the best knowledge of Seller, the Property
is not on any federal or state "Superfund" list or subject to any
environmentally related liens.
4.12 UTILITIES. Any and all utilities (i.e., water, storm and sanitary
sewer, gas, electricity and telephone) required for the operation of a
commercial development on the Real Property are available to the Real Property
through adjoining public streets or if they pass through adjoining private land,
do so in accordance with valid public or private easements which will inure to
the benefit of the Purchaser; and all of said utilities are installed and
capable of becoming operational at no cost to Purchaser other than payment of
nominal "hook-up" or "tap-in" fees or charges.
4.13 ACCESS TO REAL PROPERTY. There are adequate means of ingress and
egress for vehicular and pedestrian traffic, to and from the Real Property and
each adjoining street, road or
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highway. All routes of ingress and egress to and from the Real Property, to the
extent they pass through adjoining land, do so in accordance with valid public
or private easements which will inure to the benefit of the Purchaser.
4.14 INFORMATION FURNISHED TO SELLER. Seller has been provided with,
and is familiar with, the financial and other information regarding the business
and operations of Parent that Seller deems necessary for evaluating the merits
and risks of the transactions contemplated by this Agreement. Seller is
knowledgeable and experienced in financial and business matters and are capable
of evaluating the merits and risks of the transactions contemplated by this
Agreement.
4.15 INVESTMENT PURPOSES. Seller is acquiring the Shares for investment
purposes and not with a view toward resale or distribution thereof, and have no
present intention of selling, granting any participation in, or otherwise
distributing the Shares.
4.16 RESTRICTED SECURITIES. Seller understands that the Shares will be
issued by Parent pursuant to an exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and are
characterized as "restricted securities" under the Securities Act and may be
resold without registration under the Securities Act only in limited
circumstances. In connection with the foregoing, Seller is familiar with Rule
144 and understand the resale limitations imposed thereby on the Shares.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT
Purchaser and Parent, jointly and severally, represent and warrant to
Seller as of the Effective Date and as of the Closing Date that:
5.1 ORGANIZATION AND GOOD STANDING; QUALIFICATION. Purchaser and Parent
are each corporations duly organized, validly existing and in good standing
under the laws of their respective states of incorporation, with all requisite
corporate power and authority to carry on the businesses in which they are
engaged, to own the properties they own, to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. Purchaser and Parent are
each duly qualified and licensed to do business and are in good standing in all
jurisdictions where the nature of their businesses makes such qualification
necessary, except where the failure to be qualified or licensed would not have a
material adverse effect on the business of Purchaser or Parent, taken as a
whole.
5.2 AUTHORIZATION AND VALIDITY. The execution, delivery and performance
by Purchaser and Parent 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 and Parent. This Agreement and
each other agreement contemplated hereby have been or will be as of the Closing
Date duly executed and delivered by Purchaser and Parent and constitutes or will
constitute legal, valid and binding obligations of Purchaser and Parent,
enforceable against Purchaser and Parent 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.
5.3 NO VIOLATION. Neither the execution, delivery or performance of
this Agreement or the other agreements contemplated
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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 Certificate or
Articles of Incorporation or Bylaws of Purchaser or Parent or any agreement,
indenture or other instrument under which Purchaser or Parent is bound or any of
the assets of Purchaser or Parent are subject, or result in the creation or
imposition of any security interest, lien, charge or encumbrance upon any of the
assets of Purchaser or Parent, 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
Parent or the assets of Purchaser or Parent. Purchaser and Parent has complied
with all laws, regulations and licensing requirements and has filed with the
proper authorities all necessary statements and reports.
5.4 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 or Parent.
5.5 FINANCIAL AND RELATED INFORMATION. Purchaser was formed with the
intent to acquire motor sport race tracks and racing operations and in
connection therewith, conduct the Reverse Merger and Offering. To date,
Purchaser has had limited operations. Parent is a publicly-traded corporation
with no operations. Parent has furnished to Shareholder copies of all filings
made by Parent with the Securities and Exchange Commission under the Exchange
Act (the "Exchange Act"), since January 1, 2000 (collectively, the "SEC
Filings"). The SEC Filings comply in all material respects with the requirements
of the Exchange Act, and as of their respective filing dates, no SEC Filing
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
5.6 COMPLIANCE WITH LAWS. Purchaser and Parent have each 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 Purchaser or Parent of any federal, state or local law or
regulation that could affect the property or business of Purchaser or Parent.
Purchaser and Parent each possess all necessary licenses, franchises, permits
and governmental authorizations to conduct its business as now conducted.
5.7 FINDER'S FEE. Neither Purchaser nor Parent has incurred any
obligation for any finder's, broker's or agent's fee in connection with the
transactions contemplated hereby.
5.8 LITIGATION. There are no legal actions or administrative
proceedings or investigations instituted, or to the best knowledge of Purchaser
or Parent threatened, against or affecting, or that could affect, Purchaser or
Parent or the business of Purchaser or Parent. Neither Purchaser nor Parent is
(a) subject to any continuing court or administrative order, writ, injunction or
decree applicable specifically to Purchaser or Parent or to their business,
assets, operations or employees or (ii) in default with respect to any such
order, writ, injunction or decree. Neither Purchaser nor Parent know of any
basis for any such action, proceeding or investigation.
5.9 ACCURACY OF INFORMATION FURNISHED. All information furnished to
Seller by Purchaser or Parent 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
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necessary to make the statements therein, in light of the circumstances under
which such statements are made, true, correct and complete.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 SELLER'S CONDITIONS TO CLOSING. Except as may be waived in writing
by Seller, the obligations of Seller hereunder are subject to fulfillment at or
prior to the Closing Date of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser and Parent contained herein shall be true and correct in
all respects as of the Closing Date; and Purchaser shall have delivered to
Seller a certificate of the President of each of Purchaser and Parent, dated as
of the Closing Date, to the foregoing effect;
(b) PROCEEDINGS. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby;
(c) OFFERING. The Offering shall have been consummated by Parent;
and
(d) STOCK PURCHASE AGREEMENT. The closing of the transactions
contemplated by that certain Stock Purchase Agreement, dated as of the date
hereof, by and among Purchaser, Parent DIRT Motorsports, Inc., and Xxxxx
Xxxxxxxx (the "DIRT Purchase Agreement") shall have occurred.
6.2 PARENT'S CONDITIONS TO CLOSING. Except as may be waived in writing
by Parent, the obligations of Purchaser and Parent hereunder are subject to
fulfillment at or prior to the Closing Date of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained herein shall be true and correct in all respects
as of the Closing Date; and Seller shall have delivered to Purchaser and Parent
a certificate, dated as of the Closing Date, to the foregoing effect;
(b) PROCEEDINGS. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby;
(c) INSPECTIONS. Purchaser shall have approved all inspections
and inquiries provided for in Article III hereof;
(d) CONSENTS. Purchaser shall have received all approvals,
consents and waivers from third parties which, in the view of Purchaser's
counsel are necessary or desirable to be obtained prior the consummation of the
transactions contemplated herein;
(e) OFFERING. The Offering shall have been consummated by Public
Company; and
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(f) STOCK PURCHASE AGREEMENT. The closing of the transactions
contemplated by the DIRT Purchase Agreement shall have occurred.
ARTICLE VII
CLOSING
7.1 TIME AND PLACE OF CLOSING. Provided that all of the conditions of
this Contract shall have been satisfied on or prior to the Closing Date (herein
so called), the closing of the transactions contemplated herein (the "Closing")
shall take place at mutually agreeable site in Cayuga County, New York at 10:00
a.m. local time on that date on which all of the conditions precedent to Closing
shall have been satisfied or waived or such other date as may be mutually agreed
in writing by the parties hereto; provided that the date may not be later than
October 31, 2004.
7.2 EXPENSES. Seller shall pay the cost of all environmental site
assessments (including the "Phase I" environmental site assessment provided for
in Section 3.1(f) above), tax certificates, the Survey, its own attorney's fees,
the fees of Purchaser described in Section 2.1(b) above, and its share of the
prorations as set forth in Section 7.3 hereof. Purchaser shall pay its
proportionate share of the prorations as set forth in Section 7.3 hereof, the
fees of Seller described in Section 2.1(b) above, and its own attorney's fees.
Except as otherwise provided in this Section, all other expenses hereunder shall
be paid by the party incurring such expenses.
7.3 PRORATIONS. Real property ad valorem taxes, and utility charges, if
any, shall be prorated to the Closing, based upon actual days involved. Seller
shall be responsible for all ad valorem taxes for any period prior to the
Closing. All charges pursuant to any utility charges shall be determined as of
the day prior to the Closing Date and paid by Seller. To the extent that the
actual amounts of such charges, expenses, and income referred to in this Section
are unavailable at the Closing Date, the closing statements shall be based upon
estimated amounts, and a readjustment of these items shall be made within thirty
(30) days after the Closing. Seller shall bear all expenses for the Closing
Date. In connection with the proration of real property ad valorem taxes, if
actual tax figures for the year of Closing are not available at the Closing
Date, an estimated proration of taxes shall be made using tax figures from the
preceding year; however, when actual taxes for the year of Closing are
available, a corrected proration of taxes shall be made. If such taxes for the
year of Closing increase over those for the preceding year, Seller shall pay to
Purchaser a pro-rata portion of such increase, computed to the Closing Date, and
conversely, if such taxes for the year of Closing decrease from those of the
preceding year, Purchaser shall pay to Seller a pro rata portion of such
decrease, computed to the Closing Date, any such payment to be made within ten
(10) days after notification by either party that such adjustment is necessary.
Seller shall, on or before the Closing Date, furnish to Purchaser and the Title
Company all information necessary to compute the prorations provided for in this
Section. Except for the prorations between Purchaser and Seller as hereinabove
provided, the payment of any and all assessments, special assessments, charges,
levies, or taxes against the Property, shall be the sole responsibility of and
shall be paid by Seller if due and payable prior to the Closing Date and shall
be the sole responsibility of and shall be paid by Purchaser if due and payable
on or after the Closing Date, provided, however, that Seller shall be
responsible for and shall pay subsequent assessments for ad valorem taxes for
years prior to the year of Closing due to change in land usage or in ownership
of the Property and that in the event of a breach by Seller of any of Seller's
representations or warranties contained in Section 6.1 hereof, Seller shall be
solely responsible for and shall pay any and all assessments, special
assessments,
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charges, levies, or taxes against the Property due and payable after the Closing
Date to which the Property was subject or which Seller knew were contemplated
prior to the Closing Date.
7.4 DELIVERIES AT CLOSING. At the Closing:
(a) Seller shall deliver to Purchaser the following:
(i) a General Warranty Deed in form and substance
reasonably acceptable to Purchaser, duly executed and
acknowledged by Seller, conveying to Purchaser the
Property in indefeasible fee simple, free and clear
of any lien, encumbrance or exception other than the
Permitted Exceptions;
(ii) a standard form Owner Policy of Title Insurance
issued by the Title Company conforming to the
requirements of Article II above, insuring
Purchaser's title in the amount of the Purchase Price
or such greater amount as specified by Purchaser and
containing no exceptions other than the Permitted
Exceptions;
(iii) ad valorem tax statements for the Property for the
calendar year of the Closing, if available and if not
previously presented;
(iv) possession of the Property;
(v) a Closing Certificate as required by Section 6.2(a);
(vi) such other evidence of the authority and capacity of
Seller as Purchaser and/or the Title Company may
reasonably require;
(vii) an affidavit in form and substance acceptable to
Purchaser and in compliance with federal tax laws
including, without limitation, the Foreign Investment
in Real Property Tax Act of 1980 and the 1984 Tax
Reform Act, as amended, which shall, among other
things, set forth under penalty of perjury Seller's
taxpayer identification number, a description of the
Property, and the statement made under the penalty of
perjury that Seller is not a "foreign person" (as
defined in the aforementioned federal tax laws); and
(viii) any other documentation reasonably required by the
Title Company in connection with the Closing.
(b) Purchaser and Parent shall deliver or cause to be delivered
to Seller the following:
(i) the Cash Consideration and certificates representing
the Equity Consideration required pursuant to Article
I hereof;
(ii) a copy of a resolution of the boards of directors of
each of Purchaser and Parent, certified under oath by
the respective corporate
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secretaries of Purchaser and Parent as being a true
copy of minutes evidencing then currently effective
action by such board, reflecting, in form and
substance satisfactory to Seller and its counsel, the
authorization of the transactions herein by Purchaser
and Parent and the authority of the officer or
officers of Purchaser and Parent to execute and
deliver this Contract and the documents provided for
hereunder; and
(iii) any other documentation reasonably required by the
Title Company in connection with the Closing.
Notwithstanding the foregoing provisions of this Section 7.4(b), if
Seller is a "foreign person" (as defined in the federal Foreign Investment in
Real Property Tax Act of 1980 and the 1984 Tax Reform Act, as amended, and
applicable Treasury Regulations pertaining thereto) or if Seller fails to
deliver the affidavit required in subsection 7.4(a)(vii) hereof, then in either
such event, although the full consideration required pursuant to Article II
shall be due by Purchaser and Parent at Closing, the funding to Seller at the
Closing shall be adjusted to the extent required to comply with the
aforementioned federal tax laws and the amount so withheld shall be retained by
the Purchaser for delivery to the Internal Revenue Service (together with the
appropriate forwarding forms prescribed by the aforementioned federal tax laws).
ARTICLE VIII
INTERIM RESPONSIBILITIES OF SELLER
Seller agrees that during the period between the Effective Date and the
Closing Date:
(a) Seller will enter into no agreement with respect to the
leasing, use, operation or maintenance of any portion of the Property, without
the prior written consent of Purchaser;
(b) Seller shall not solicit or participate in negotiations with
any third party with respect to the sale of the Property or any transaction
inconsistent with those contemplated hereby;
(c) subject to the prorations prescribed in Section 7.3 hereof,
Seller will cause to be paid any and all costs and expenses of operation and
maintenance of the Property incurred or attributable to a period prior to the
Closing, and Seller agrees to indemnify and hold Purchaser harmless from all
such costs and expenses; and
(d) Seller will not further encumber or permit encumbrance of the
Property in any manner.
ARTICLE IX
LIMITATION ON TRANSFER OF PUBLIC COMPANY STOCK
9.1 RESTRICTION ON TRANSFER. The Shares will not be registered under
the Securities Act on the Closing Date and may not be transferred, sold or
otherwise disposed of by Seller except pursuant to an effective registration
statement under the Securities Act or in accordance with an exemption from the
registration requirements of the Securities Act.
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9.2 RESTRICTIVE LEGEND. Each certificate representing the Shares shall
bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND
ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE
144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE ACT, AS
AMENDED, AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF
ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE WITH AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
AND ALSO MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
BY THE HOLDER WITHOUT COMPLIANCE WITH THE APPLICABLE
SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
9.3 REGISTRATION RIGHTS; LOCK-UP AGREEMENTS. Parent agrees that if
Parent undertakes to register under the Securities Act any shares of Parent
Stock owned by Xxx Xxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxxx or Xxxxx Xxxxxxxxx, or any
of their affiliates (collectively, the "Parent Shareholders"), Parent will
register the Shares then owned by Seller. Seller agrees that if in connection
with any public or private offering by Parent, the Parent Shareholders are
required by the underwriter and/or investment banker in such offering to
"lock-up" (i.e., not sell for a period of time) any shares of Parent Stock, then
Seller shall similarly "lock-up" the Shares.
ARTICLE X
TERMINATION, DEFAULT AND REMEDIES
10.1 PERMITTED TERMINATION. If this Contract is terminated by either
party pursuant to a right expressly given it to do so hereunder (herein referred
to as a "Permitted Termination"), except for a termination by Seller because of
the default of Purchaser or Parent, Purchaser shall pay to Seller $50,000, and
this Contract shall thereafter be null and void and neither party shall have any
further rights or obligations hereunder.
10.2 DEFAULT BY SELLER. Seller shall be in default hereunder upon the
occurrence of any one or more of the following events:
(a) any of Seller's warranties or representations set forth
herein are untrue or inaccurate in any material respect; or
(b) Seller shall fail to meet, comply with or perform any
covenant, agreement, or obligation on its part required, within the time limits
and in the manner required in this Contract, for any reason other than a
Permitted Termination.
In the event of a default by Seller hereunder, Purchaser and/or Parent
may, at their respective options, do any of the following:
14
(i) terminate this Contract by written notice delivered
to Seller at or prior to the Closing;
(ii) enforce specific performance of this Contract against
Seller; and
(iii) in addition to and not to the exclusion of the
remedies in subparagraphs (i) and (ii) immediately
above, bring an action against Seller for damages.
10.3 DEFAULT BY PURCHASER AND PARENT. Purchaser and Parent shall be in
default hereunder if Purchaser and Parent shall fail to deliver at the Closing
any of the items required of Purchaser and/or Parent in Section 7.4(b) hereof,
for any reason other than a default by Seller hereunder or a Permitted
Termination. In the event of a default by Purchaser or Parent hereunder, Seller
may, at Seller's option, do any of the following:
(i) terminate this Contract by written notice delivered
to Purchaser and Parent at or prior to the Closing,
in which event Purchaser shall pay Seller $50,000 as
liquidated damages and this Contract shall be null
and void and of no further force or effect; and
(ii) enforce specific performance of this Contract against
Purchaser and Parent.
10.4 ATTORNEY'S FEES. If it shall be necessary for either Purchaser,
Parent or Seller to employ an attorney to enforce its rights pursuant to this
Contract because of the default of the other party, the defaulting party shall
reimburse the non-defaulting party for reasonable attorney's fees.
ARTICLE XI
MISCELLANEOUS
11.1 RISK OF LOSS. Seller shall bear the risk of all loss or damage to
the Property or any portion thereof, from any and all causes whatsoever until
acceptance by Purchaser of delivery of Seller's deed at the Closing.
11.2 CONDEMNATION. From the Effective Date through the Closing Date,
Seller agrees to give Purchaser and Parent prompt notice of any actual or
proposed taking or condemnation of all or any portion of the Property.
(a) If prior to the Closing there shall occur the actual or
proposed taking or condemnation of all or any portion of the Property as would,
in Purchaser's sole discretion, materially interfere with Purchaser's intended
use thereof, then in any such event, Purchaser may at its option terminate this
Contract by notice to Seller within ten (10) days after Purchaser has received
the notice referred to above or at the Closing, whichever is earlier. If
Purchaser does not elect to terminate this Contract, then the Closing shall take
place as provided herein and there shall be assigned to Purchaser at the Closing
condemnation awards which may be payable to Seller on account of such event.
15
(b) If prior to the Closing there shall occur the actual or
proposed taking or condemnation of a portion of the Property which in
Purchaser's sole discretion would not materially interfere with the use thereof,
then, in any such event, Purchaser shall have no right to terminate its
obligations under this Contract, but there shall be assigned to Purchaser at
Closing condemnation awards which may be payable to Seller on account of such
event.
11.3 BROKERAGE COMMISSION. Seller agrees to indemnify and hold
Purchaser and Parent harmless from any loss, liability, damage, cost or expense
(including, without limitation, reasonable attorneys' fees) paid or incurred by
Purchaser or Parent by reason of any claim to any broker's, finder's or other
fee in connection with this transaction by any party claiming by, through or
under Seller (including, without limitation, the commission payable to Jumpstart
LLC disclosed in Section 4.7 above). Purchaser and Parent each agree to
indemnify Seller and hold Seller harmless from any loss, liability, damage, cost
or expense (including, without limitation, reasonable attorney's fees) paid or
incurred by Seller by reason of any claim to any broker's, finder's or other fee
in connection with this transaction by any party claiming by, through or under
Purchaser or Parent. Purchaser and Parent acknowledge that at the time of the
execution of this Contract, they have been advised by this writing that they
should have an abstract covering the Property examined by an attorney of their
own selection or should be furnished with or obtain a policy of title insurance.
11.4 NO ASSUMPTION OF SELLER'S LIABILITIES. Purchaser is acquiring only
the Property from Seller and is not the successor of Seller. Neither Purchaser
nor Parent assumes or agrees to pay, or indemnify Seller or any other person or
entity against, any liability, obligation or expense of Seller or relating to
the Property in any way except only to the extent, if any, herein expressly and
specifically provided.
11.5 NOTICES. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing, and shall be deemed to be
delivered when actually received, or, if earlier and regardless of whether
actually received (except where receipt is specified in this Contract), upon the
later of (i) facsimile transmission to the addressee at the telecopier number
set forth below or (ii) deposit in a regularly maintained receptacle for the
United States mail, registered or certified, postage fully prepaid, addressed to
the addressee at its address set forth below, or at such other address or
telecopier number as such party may have specified theretofore by notice
delivered in accordance with this Section and actually received by the
addressee:
If to Seller: Xx. Xxxxx Xxxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
16
If to Purchaser or Parent: c/o Boundless Motor Sports Racing, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxx Xxxx, President
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
11.6 GOVERNING LAW. The laws of the State of Texas shall govern the
validity, enforcement and interpretation of this Contract.
11.7 INTEGRATION; MODIFICATION; WAIVER. This Contract constitutes the
complete and final expression of the agreement of the parties relating to the
Property, and supersedes all previous contracts, agreements, and understandings
of the parties, either oral or written, relating to the Property. This Contract
cannot be modified, or any of the terms hereof waived, except by an instrument
in writing (referring specifically to this Contract) executed by the party
against whom enforcement of the modification or waiver is sought.
11.8 HEADINGS; CONSTRUCTION. The headings which have been used
throughout this Contract have been inserted for convenience of reference only
and do not constitute matter to be construed in interpreting this Contract. If
the last day of any time period stated herein shall fall on a Saturday, Sunday
or legal holiday, then the duration of such time period shall be extended so
that it shall end on the next succeeding day which is not a Saturday, Sunday or
legal holiday.
11.9 INVALID PROVISIONS. If any one or more of the provisions of this
Contract, or the applicability of any such provision to a specific situation,
shall be held invalid or unenforceable, such provision shall be modified to the
minimum extent necessary to make it or its application valid and enforceable,
and the validity and enforceability of all other provisions of this Contract and
all other applications of any such provision shall not be affected thereby.
11.10 BINDING EFFECT. This Contract shall be binding upon and inure to
the benefit of Seller, Parent and Purchaser, and their respective heirs,
personal representatives, successors and assigns. Seller may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of Parent. Purchaser may assign this Agreement to any of its affiliates,
and upon acceptance of any such assignment by the assignee and the assumption of
Purchaser's obligations hereunder, Purchaser shall be relieved of all duties and
obligations hereunder. Except as expressly provided herein, nothing in this
Contract is intended to confer on any person, other than the parties hereto and
their respective heirs, personal representatives, successors and assigns, any
rights or remedies under or by reason of this Contract.
11.11 FURTHER ACTS. In addition to the acts recited in this Contract to
be performed by the parties hereto, each party hereto agrees to perform or cause
to be performed at the Closing or after
17
the Closing any and all such further acts as may be reasonably necessary to
consummate the transactions contemplated hereby.
11.12 EXHIBITS. All references to Exhibits contained herein are
references to Exhibits attached hereto, all of which are made a part hereof for
all purposes the same as if set forth herein verbatim, it being expressly
understood that if any Exhibit attached hereto which is to be executed and
delivered at Closing contains blanks, the same shall be completed correctly and
in accordance with the terms and provisions contained herein and as contemplated
herein prior to or at the time of execution and delivery thereof.
11.13 COUNTERPART EXECUTION. This Contract may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
EXECUTED as of the date first above written.
SELLER:
-------------------------------------------------
Xxxxx Xxxxxxxx
PARENT:
BOUNDLESS MOTOR SPORTS
RACING, INC.
By:
----------------------------------------------
Name (Print):
------------------------------------
Title:
-------------------------------------------
PURCHASER:
BOUNDLESS TRACK OPERATIONS, INC.
By:
----------------------------------------------
Name (Print):
------------------------------------
Title:
-------------------------------------------
18
EXHIBIT A
REAL PROPERTY DESCRIPTION
A-1
EXHIBIT B
PERSONAL PROPERTY DESCRIPTION
B-1
