CONTRIBUTION AGREEMENT
THIS AGREEMENT, made and entered into on August 6, 2001, by and between
AMORTIBANC MANAGEMENT, L.C., a Texas limited liability company, and AMORTIBANC
INVESTMENTS, L.C., a Kansas limited liability company (together the
"CONTRIBUTOR"), GREAT WESTERN LAND AND RECREATION, INC., a Delaware corporation
("PARENT"), and GWLR, LLC, a Delaware limited liability company ("NEWCO").
R E C I T A L S :
A. Newco is a wholly owned subsidiary of Parent.
B. Amortibanc Investments, L.C. owns 100% of the issued and outstanding
membership interests of Amortibanc Management, L.C.
C. Amortibanc Investments, L.C. owns 100% of the issued and outstanding
share capital of Parent, which consists of 1000 shares of common
stock, par value $0.001 per share.
D. Contributor desires to contribute the Assets (as defined below) to
Newco in exchange for shares of common stock of Parent, the Parent
Warrant (as defined below) and the Parent Registration Rights
Agreement (as defined below).
E. Parent and Newco wish to have Newco accept the contribution of the
Assets and assume the Liabilities in exchange for the shares of
Parent, the Parent Warrant and the Parent Registration Rights
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter stated, the parties agree as follows:
1. CONTRIBUTION.
a. On the terms and subject to the conditions set forth in this
Agreement, on the Closing Date, Contributor shall transfer, assign, and convey
to Newco and Newco shall accept from Contributor the assets and liabilities
listed on EXHIBIT A (hereinafter referred to as the "ASSETS" and the
"LIABILITIES"), free and clear of all liens, mortgages, claims, pledges,
charges, security interests, and other restrictions or encumbrances of any kind,
except as specifically provided in EXHIBIT A or elsewhere herein. Except as
expressly set forth herein, the Assets are being contributed "as is," with no
warranties express or implied.
b. Notwithstanding the foregoing, Contributor agrees to consummate
the transfer, assignment and conveyance of the Wagon Bow Ranch located in Mohave
County, Arizona, a description of which is attached hereto as EXHIBIT D, to
Newco prior to the filing of the Proxy Statement (as defined in the Merger
Agreement among ▇▇▇▇▇▇▇.▇▇▇, inc., Great Western Land and Recreation, Inc.,
GWLAR, Inc., and GWLR, LLC dated as of August 6, 2001 (the "MERGER AGREEMENT").
Contributor agrees to pay all transfer taxes and other fees associated with such
transfer.
2. CONSIDERATION. In exchange for the contribution of the Assets, Parent
shall assume the Liabilities and issue to Contributor 18,903,649 shares of
Parent's common stock, par value $0.001 per share (the "CONTRIBUTION COMMON
STOCK"), the Parent Warrant and enter into the Parent Registration Rights
Agreement as those terms are defined in the Merger Agreement. The Contribution
Common Stock, Parent Warrant and Parent Registration Rights Agreement are
hereinafter collectively referred to as the "Consideration."
3. LIABILITIES. Effective upon transfer, Newco shall be responsible for
and shall assume the Liabilities and any and all liabilities of any kind
attributable to and arising out of the ownership of the Assets from and after
the Closing Date.
4. EXCLUSIONS. This sale is specifically limited to the Assets listed on
EXHIBIT A and without limitation, does not include any of the following assets
of Contributor:
a. Contributor's cash on hand or cash on deposit at any bank or
financial institution as of the date hereof and the Closing Date; and
b. The corporate books and records of Contributor.
5. CLOSING DATE. The closing shall take place on August 6, 2001 (the
"CLOSING DATE"), or at any other time the parties agree upon, at the offices of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇. Contributor shall deliver the required consents described in EXHIBIT
C, a ▇▇▇▇ of Sale, and such other appropriate documents required to transfer
title to the Assets and Newco shall deliver a share certificate representing the
Contribution Common Stock together with the rest of the Consideration (the
"CLOSING").
6. INSTRUMENTS OF CONVEYANCE.
a. Upon the transfer of consideration as provided herein and
delivery to Contributor of all the properly signed documents required hereunder,
Contributor shall sign and deliver to Newco a ▇▇▇▇ of Sale substantially in the
form of EXHIBIT B and such other appropriate documents required to transfer
title to the Assets.
b. From time to time after the Closing, each party will timely
execute and deliver to the other such instruments of sale, transfer, conveyance,
assignment and delivery, and such consents, assurances, powers of attorney and
other instruments as may be reasonably requested by such party or its counsel in
order to vest in Newco all right, title and interest of Contributor in and to
the Assets and otherwise in order to carry out the purpose and intent of this
Agreement.
7. CONTRIBUTOR'S REPRESENTATIONS AND WARRANTIES. Contributor hereby
represents and warrants as follows:
a. Amortibanc Management, L.C. is a limited liability company duly
organized and existing and in good standing under the laws of the State of Texas
and Amortibanc Investments, L.C. is a limited liability company duly organized
and existing and in good standing under the laws of the State of Kansas;
b. The Assets considered as a whole constitute all of the material
assets and
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properties that are reasonably required for the operation of the
Parent Business (as defined in the Merger Agreement) as presently conducted and
as conducted by Parent's predecessors, including the business formally conducted
by Amortibanc Management, L.C. of providing real property management services.
Except as provided in EXHIBIT A, Contributor is the sole owner of and has good
and marketable title to the Assets, free and clear of all liens and encumbrances
not disclosed in EXHIBIT A or elsewhere herein;
c. Contributor has not entered into any agreement other than this
Agreement to sell or transfer the Assets or any portion thereof;
d. Except for the required consents described in EXHIBIT C,
Contributor has all requisite power and authority to enter into and perform the
terms of this Agreement. The signing, delivery, and consummation of this
Agreement and all supporting documentation by Contributor have been duly
authorized by all necessary corporate action on the part of Contributor,
including requisite shareholder approval. This Agreement and all supporting
documentation constitute valid and legally binding obligations of Contributor,
enforceable in accordance with their terms, except as enforcement may be limited
by bankruptcy, insolvency or similar laws affecting creditor's rights generally;
e. Contributor has no knowledge of any material liability concerning
the Assets, absolute or contingent, as of the date hereof that has not been
disclosed to Newco;
f. Amortibanc Management, L.C. is the guarantor of certain debts of
Newco and its subsidiaries and will remain the guarantor of such debts to the
extent that the creditors do not agree to substitute Parent or Newco for
Amortibanc Management, L.C. as guarantor of such debts; and
g. Contributor will use its reasonable best efforts to obtain the
consents set forth in EXHIBIT C.
8. NEWCO'S COVENANTS, REPRESENTATIONS, AND WARRANTIES. Newco covenants,
represents and warrants as follows:
a. Newco is a limited liability company duly organized and existing
and in good standing under the laws of the State of Delaware.
b. Newco has all requisite power and authority to enter into and
perform the terms of this Agreement. The signing, delivery, and consummation of
this Agreement by Newco and the transactions contemplated herein have been duly
authorized by all necessary company action.
9. PARENT'S COVENANTS, REPRESENTATIONS AND WARRANTIES. Parent represents
and warrants as follows:
a. Parent is a corporation duly organized and existing in good
standing under the laws of the State of Delaware;
b. Parent has all requisite power and authority to enter into and
perform the
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terms of this Agreement. The signing, delivery and consummation of this
Agreement by Parent and the transactions contemplated herein have been duly
authorized by all necessary corporate action;
c. CAPITALIZATION. The authorized capital stock of Parent consists
of 50,000,000 shares of common stock and 20,000,000 shares of preferred stock.
There are 1000 shares of common stock issued and outstanding, and no shares of
Preferred Stock issued and outstanding. No shares of common stock or preferred
stock are entitled to preemptive rights or registration rights other than
registration rights granted to Contributor under the Parent Registration Rights
Agreement; and there are no outstanding options or warrants covering Parent
securities, except for the Parent Warrant and the contractual obligation to
issue options and warrants under the Merger Agreement. There are no other scrip,
rights to subscribe for, calls or commitments of any character whatsoever
relating to, or securities or rights exchangeable or convertible into, any
shares of capital stock of Parent or any of the subsidiaries of Parent, or
contracts, commitments, understandings or arrangements by which Parent or any of
its subsidiaries is or may become bound to issue additional shares of capital
stock of Parent or any of its subsidiaries or options, warrants, scrip, rights
to subscribe for, or commitments to purchase or acquire, any shares, or
securities or rights convertible into shares, of capital stock of Parent or any
of its subsidiaries;
d. ISSUANCE OF CONTRIBUTION COMMON STOCK. The Contribution Common
Stock is, and the Parent common stock issuable upon exercise of the Parent
Warrant and payment of the exercise price therefor will be, duly authorized and
validly issued, fully paid and non-assessable, free and clear of any and all
liens, claims and encumbrances, and the holders of such common stock shall be
entitled to all rights and preferences accorded to a holder of common stock;
e. NO GENERAL SOLICITATION. None of the Parent, its subsidiaries or,
to the Parent's knowledge, any of its affiliates or any person acting on its
behalf has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D of the Securities Act of 1933) in connection
with the exchange of Contribution Common Stock for the Assets; and
f. NO INTEGRATED OFFERING. Prior to the date of this Agreement, none
of the Parent, its subsidiaries, or, to the Parent's knowledge, any of its
affiliates, or any person acting on its behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security,
under circumstances that would require registration of any of Parent's common
stock.
10. SURVIVAL OF WARRANTIES TO CLOSING. The parties represent that all of
the representations, warranties, covenants, and terms contained in this
Agreement made by one to the other, and in any documents, certificates or other
instruments delivered by or on behalf of the parties pursuant hereto or in
connection with the transactions contemplated herein, are true now and will be
true at the Closing and at the closing of the transactions contemplated by the
Merger Agreement (the "EFFECTIVE TIME").
11. OPERATION OF NEWCO PRIOR TO THE EFFECTIVE TIME. Contributor covenants
and agrees that prior to the Effective Time, if the cash from operations of the
Parent Business is insufficient
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to pay Newco's expenses as such expenses come due, Contributor shall promptly
make a contribution to capital of Parent (and no additional shares of Parent
common stock shall be issued in exchange for such contribution) in an amount
sufficient to fund such deficiencies.
12. CLOSING CONTINGENCIES. The obligations of Parent hereunder are
expressly made contingent upon the conditions that, on the Closing Date:
a. The representations and warranties of Contributor shall be true
and correct in all material respects.
b. Contributor shall in all material respects have met all
conditions and performed all obligations to be met or performed by Contributor
hereunder.
13. BULK SALES ACT. Newco and Parent hereby agree to waive compliance with
the provisions of A.R.S. Sections 44-2801 to 44-2810 (Arizona Bulk Sales law) or
any other similar or comparable applicable laws regulating bulk sales or
transfers and agrees to assume the risk of noncompliance therewith.
14. RISK OF LOSS. Risk of loss to the Assets prior to Closing shall remain
on Contributor, and destruction or threatened destruction of the Assets, in
whole or in part, before possession is delivered to Newco, shall terminate
Parent's obligations, upon Newco's or Parent's written demand to Contributor.
15. MODIFICATION OR WAIVER. No modification of this Agreement shall be
deemed effective unless in writing and signed by the parties hereto, and any
waiver granted shall not be deemed effective unless in writing, signed by the
party against whom enforcement of the waiver is sought.
16. THIRD PARTY BENEFICIARIES. At and after the Effective Time, nothing in
this Agreement, express or implied, is intended to confer any rights or remedies
under or by reason of this Agreement on any persons other than the parties to
it. Nothing in this Agreement is intended to relieve or discharge the obligation
or liability of any third person to any party to this Agreement.
17. AMENDMENT. This Agreement may be amended only by a written Agreement
signed by all of the parties hereto.
18. GOVERNING LAW AND ARBITRATION. The validity, construction, performance
and enforceability of this Agreement will be governed in all respects by the
laws of the State of Arizona, without reference to the choice of law principles
thereof. Any controversy or claim arising out of or related to this Agreement or
in connection with a breach of this Agreement ("CLAIM") will be settled by
arbitration with the American Arbitration Association in Phoenix, Arizona. The
Commercial Rules of the American Arbitration Association in effect at the time
such Claim is submitted to arbitration shall govern the Claim. The arbitrator
shall be selected in accordance with the American Arbitration Association Rules
governing selection. The arbitration will be selected from a panel of persons
having experience with and knowledge of real estate. Such arbitrator will not,
in any event, have any authority to make any ruling, finding or award that does
not conform to the terms and conditions of this Agreement. The arbitral
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award will be in writing and made within thirty (30) days of the hearing on the
Claim. The arbitral award will be final and binding on all parties and may be
entered as a judgment and enforceable by any court of competent jurisdiction.
19. ATTORNEYS' FEES. If any arbitration proceeding or action shall be
brought under this Agreement, or for or on account of any breach of, or to
enforce or interpret any of the terms, covenants, or conditions of this
Agreement, the prevailing party shall be entitled to recover from the other
party, as part of the prevailing party's costs, reasonable attorneys' fees, the
amount of which shall be fixed by the arbitrator and may be made a part of any
award or judgment rendered.
20. EFFECT OF AGREEMENT. This Agreement and the exhibits hereto embody the
entire Agreement and understanding of the parties and supersede any and all
prior agreements, arrangements and understandings relating to matters provided
for herein. No amendment, waiver of compliance with any provision or condition
hereof, or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the parties. The captions are
for convenience only and shall not control or affect the meaning or construction
of the provisions of this Agreement.
21. NOTICES. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered on the date of personal delivery or on the
date of mailing if mailed by registered or certified mail, postage prepaid and
return receipt requested to the following addresses, or to such other address as
any party may request by notifying in writing all of the other parties to this
Agreement.
To Contributor:
Amortibanc Management, L.C. and Amortibanc Investments, L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
With a copy To:
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
To Newco:
GWLR, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
To Parent:
Great Western Land and Recreation, Inc.
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
▇▇. SEVERABILITY. If any one or more of the provisions of this Agreement
shall be held or found to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
23. BINDING UPON HEIRS. This Agreement shall be binding upon the parties,
their legal representatives, successors, and assigns.
24. EXHIBITS. All Exhibits mentioned herein are incorporated herein by
reference.
25. COUNTERPARTS; TERMS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement. All references herein
to Articles, Sections, Exhibits and Schedules shall be deemed references to such
parts of this Agreement, unless the context shall otherwise require. All
references to singular or plural or masculine or feminine shall include the
other as the context may require.
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IN WITNESS WHEREOF, the undersigned have signed this Agreement as of the
day and year first above written.
AMORTIBANC MANAGEMENT, L.C.,
a Texas limited liability company
By /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇
Its: President
---------------------------------
AMORTIBANC INVESTMENTS, L.C.,
a Kansas limited liability company
By /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇
Its: Authorized Representative
---------------------------------
GWLR, LLC, a Delaware limited liability
company
By /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇
Its: President
---------------------------------
GREAT WESTERN LAND AND RECREATION, INC.,
a Delaware corporation
By /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇
Its: President
---------------------------------
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EXHIBIT A
ASSETS
Contributor Subsidiaries to
To be transferred to Newco % to Newco % Minority
--------------------------------------------------------------------------------------------------
(not transferred)
Houston Coventry, L.L.C. 100%
Houston Greenwich, L.L.C. 100%
Morningside Farms, L.L.C. 100%
Houston Promenade, L.L.C. 100%
Houston Promenade ▇▇▇▇, L.L.C. 100%
Houston Wheatstone, L.L.C. 100%
Houston Wheatstone III, L.L.C. 100%
Willow Springs Ranch, L.L.C. 85% 15%
Phoenix Monterrey, L.L.C. 100%
45th /47th Avenue & Glendale, L.L.C. 100%
North Scottsdale 106, L.L.C. 100%
Barnstorm, L.L.C. 100%
Walthingham, L.L.C. 100%
Phoenix ▇▇▇▇▇▇ Place, L.L.C. 80% 20%
Antelope Hills, L.L.C. * 100%*
Amortibanc Land & Cattle, L.L.C. 100%
Amortibanc Management, L.C. 100%
REAL PROPERTY HELD DIRECTLY BY AMORTIBANC MANAGEMENT, L.C.
Wagon Bow Ranch 100%
OTHER ASSETS
All furniture, vehicles and equipment used in the operation of
the Parent Business.
* held indirectly through Willow Springs Ranch, L.L.C.
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EXHIBIT B
▇▇▇▇ OF SALE
THE UNDERSIGNED, AMORTIBANC MANAGEMENT, L.C., a Texas limited liability
company, and AMORTIBANC INVESTMENTS, L.C., a Kansas limited liability company
(together, "CONTRIBUTOR"), pursuant to the
Contribution Agreement dated the date
hereof (the "
CONTRIBUTION AGREEMENT") and in consideration of the Consideration
(as defined in the
Contribution Agreement) and other good and valuable
consideration received from GREAT WESTERN LAND AND RECREATION, INC., a Delaware
corporation ("PARENT"), does hereby transfer, bargain and convey to GWLR, LLC, a
Delaware limited liability company ("NEWCO"), its successors and assigns,
forever, the goods, chattels and property described on EXHIBIT A attached (the
"ASSETS"), free and clear of all liens and encumbrances except as set forth in
EXHIBIT A.
The Contributor hereby covenants and agrees with Parent and Newco, their
successors and assigns, that, except as set forth in EXHIBIT A, Newco is the
lawful owner of the Assets and has good right to transfer them. Subject to the
minority ownership and debt set forth in EXHIBIT A, Contributor will warrant and
defend the sale of the Assets to Newco, its successors and assigns, against
anyone lawfully claiming the Assets.
IN WITNESS WHEREOF, this ▇▇▇▇ of Sale is signed this 6th day of August,
2001.
AMORTIBANC MANAGEMENT, L.C., a Texas
limited liability company
By:
---------------------------------
▇▇▇ ▇▇▇▇▇
President
AMORTIBANC INVESTMENTS, L.C., a Kansas
limited liability company
By:
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
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EXHIBIT C
CONSENTS
Consents are required from Bank Midwest regarding Willow Springs Ranch and
Independence Bank regarding Houston Wheatstone III, for the contribution to
Newco of the Contributor Subsidiaries holding the above cited properties.
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