EXHIBIT 99.1
ASSET PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of this
17th day of November, 1998, by and among SPEEDWAY MOTORSPORTS, INC., a Delaware
corporation ("Buyer") and LAS VEGAS MOTOR SPEEDWAY, INC., a Nevada corporation
("Seller").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
1. Sale of Assets. At the Closing (hereinafter defined),
except for those assets shown on Exhibit "A" (hereinafter called the "Excluded
Assets"), which shall be retained by Seller, Seller shall and does hereby agree
to sell, convey and assign to Buyer, and Buyer shall and does hereby agree to
purchase from Seller, all of Seller's other assets, tangible or intangible, real
or personal, and wherever located, including, without limitation, all contracts
to which Seller is a party (the "Contracts"), the 1.5 mile speedway and other
tracks, the industrial park, and the land across Interstate 15 and all
improvements thereon, a portion of which is legally described and graphically
depicted in that certain Preliminary Title Report issued by National Title
Company, dated May 13, 1998 at 8:00 a.m. (the "Preliminary Title Report"), a
copy of which is annexed hereto as Exhibit "B" and hereby incorporated by
reference as if set forth in full herein (all of which assets are hereinafter
collectively referred to as the "Purchased Assets"). Seller agrees that it shall
convey good title to the Purchased Assets, free and clear of any mortgages,
deeds of trust, liens, pledges and security interests ("Liens"), excepting all
water rights and subject to all conditions, covenants and restrictions,
easements of reservations and other matters of record described in the
Preliminary Title Report. Further, without limitation of the foregoing, Seller
specifically agrees that all prepayments and deposits from ticket sales,
broadcast rights, sponsorships and prepayments of office, warehouse and suite
rentals, and including any other prepayments related to 1999 (all of which
collectively are listed on Exhibit "C") shall be conveyed in cash at Closing.
Seller shall request any required approvals in order to assign the Contracts and
shall take all other actions reasonably necessary to transfer the Purchased
Assets to Buyer; provided, however, that failure to obtain any such approvals
shall not be a condition to Buyer's obligation to close, and Buyer hereby
assumes the risk that any such approvals may not be obtained.
2. Buyer's Inspection and Investigation; AS-IS Purchase.
a. Inspection and Investigation. Buyer
warrants and represents to Seller that Buyer has conducted its
own due diligence study of the Purchased Assets, including all
of the investigations that Buyer deems necessary, to commit
itself to purchase the Purchased Assets, such as soil tests,
drainage studies, feasibility studies, environmental site
assessments and other matters concerning, affecting or
relating to the Purchased Assets. In making such due diligence
study, Buyer is not relying upon any representations of the
Seller, including any representations concerning the quality,
feasibility or adaptability of the Purchased Assets to any
particular use or development. Buyer further acknowledges that
because it has been given the opportunity to study and
investigate the Purchased Assets, that Buyer is in a
position to be more knowledgeable than the Seller about any
such problems, if any, that may be associated with developing,
owning or using the Purchased Assets. Accordingly, Buyer is
relying upon its own resources and its own studies to
determine whether or not the Purchased Assets are free of any
defective condition that might interfere with Buyer's intended
use of the Purchased Assets. Buyer further acknowledges that
in conducting its independent investigation, that it has
determined in the exercise of its sole and absolute
discretion, without any restrictions or representations from
Seller, the extent and scope of the investigation to be so
conducted by Buyer.
b. AS-IS Purchase. Buyer acknowledges that
neither Seller, nor any entity or agent affiliated with
Seller, makes or has made any representations or warranties
with respect to the physical condition, habitability,
completion or quality of construction, fitness or any other
aspect of the Purchased Assets, including, without limitation,
the structural integrity of any improvements included in the
Purchased Assets, the conformity of the improvements to any
plans and specifications for the Purchased Assets or any
portion thereof (including but not limited to any plans and
specifications that may have been or which may be provided to
Buyer), the conformity of the Purchased Assets to past,
current or future applicable zoning or building code
requirements or requirements to obtain certificates of
occupancy, the existence of construction defects in any of the
Purchased Assets (including, without limitation, the roof of
the speedway grandstands and the sprinkler systems wherever
located), the existence of soil instability, past soil
repairs, soil additions or conditions of soil fill,
susceptibility of landslides, sufficiency of undershoring,
sufficiency of drainage, whether the Purchased Assets are
located wholly or partially in a flood plain or a flood hazard
boundary or similar area, the presence of any regulated,
hazardous or toxic substance within or upon the Purchased
Assets, or any other matters affecting the stability,
integrity, suitability, use or occupancy of the land or any
buildings or improvements situated on or which are a part of
the Purchased Assets. EXCEPT FOR GOOD TITLE AS DESCRIBED
ABOVE, BUYER, BY EXECUTING THIS AGREEMENT, EXPRESSLY
ACKNOWLEDGES THAT THE PURCHASED ASSETS ARE BEING SOLD,
PURCHASED AND ACCEPTED AS IS, WHERE IS, WITH ALL FAULTS AND
ARE FURTHER BEING ACCEPTED BY BUYER WITHOUT ANY REPRESENTATION
OR WARRANTY, EXPRESSED OR IMPLIED, AS TO ANY MATTER
WHATSOEVER. SELLER EXPRESSLY DISCLAIMS AND NEGATES ANY
REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY,
RELATING TO THE CONDITION OF THE PURCHASED ASSETS (INCLUDING,
WITHOUT LIMITATION ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). BUYER
ACKNOWLEDGES THAT SELLER HAS GIVEN BUYER MATERIAL CONCESSIONS
REGARDING THIS TRANSACTION IN EXCHANGE FOR BUYER AGREEING TO
THE PROVISIONS OF THIS SECTION OF THE AGREEMENT.
3. Assumption of Liabilities by Buyer. At the Closing, Buyer
shall assume and pay, perform and discharge, and indemnify and hold Seller
harmless from and against the following obligations and liabilities of Seller
(hereinafter collectively referred to as "Assumed Liabilities"):
a. All of the liabilities and obligations of
Seller under the Contracts assigned to Buyer at the Closing,
specifically including liabilities for payment for goods,
merchandise,
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services and/or promotions to be furnished and/or used for
events or operations of the 2 speedway after the Closing,
whether such assignment is approved or not by the other party
to such contract; and
b. Any and all claims, liabilities, loss,
cost, damage or expense (including reasonable counsel fees and
expenses) resulting or arising out of ownership of the
Purchased Assets or conduct of the business previously
performed by Seller, that are caused by Buyer and occur upon
any of the Purchased Assets, after the Closing Date.
Buyer agrees to indemnify, defend and hold Seller and its
shareholders, directors, officers, employees, agents, successors and assigns
harmless from and against any and all liability, loss, cost, damage and/or
expense (including, without limitation, reasonable attorneys' fees and costs)
pertaining to the Assumed Liabilities.
Except for the Assumed Liabilities, Buyer shall not assume,
and Seller shall retain and remain responsible for, all liabilities and
obligations of Seller, whether past, current or future, whether accrued,
contingent, known or unknown (the "Retained Liabilities"), thus reserving to
Seller the right to continue to negotiate the Retained Liabilities.
4. Establishment of Escrow. Seller and Buyer will concurrently
herewith establish an escrow (the "Escrow") with National Title Company, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ("Escrow Agent") for the purpose of
consummating the purchase and sale of the Purchased Assets. The escrow
instructions (the "Escrow Instructions") shall be upon such form as is normally
used by Escrow Agent, a copy of which is attached hereto as Exhibit "D" and
incorporated herein by reference; provided, however, that any conflict between
the terms and provisions of said Escrow Instructions and the terms and
provisions of this Agreement shall be resolved in favor of this Agreement.
Escrow fees charged by Escrow Agent shall be divided equally between Buyer and
Seller. Other costs of Closing, including, without limitation, a policy of tide
insurance requested by Buyer and the Nevada real property transfer tax (but not
including attorneys' fees or other professional fees) shall be borne by Buyer.
The following taxes, charges and payments ("Charges") shall be prorated as
normally done in ▇▇▇▇▇ County, Nevada on a per diem basis and apportioned
between Seller and Buyer as of the date of Closing: real property, personal
property, use, intangible taxes, utility charges, rental or lease charges,
license fees, general assessments imposed with respect to the Purchased Assets,
employee payrolls and insurance premiums. Seller shall be liable for that
portion of the Charges relating to, or arising in respect of, periods on or
prior to the Closing Date, and Buyer shall be liable for that portion of the
Charges relating to, or arising in respect of, any period after the Closing
Date. Seller shall deposit with Escrow Agent, to be held by Escrow Agent until
the Closing, executed documents necessary to convey Seller's interest in the
Purchased Assets to Buyer.
5. Purchase Price. As the full purchase price for the
Purchased Assets, Buyer shall pay to Seller the sum of Two Hundred Fifteen
Million Dollars ($215,000,000.00) (the "Purchase Price"). Concurrently with
execution of this Agreement and the Escrow Instructions, Buyer will deposit with
Escrow Agent, by wire transfer, the full Purchase Price to be held by Escrow
Agent pending the Closing. All funds held by Escrow Agent pursuant to this
Agreement shall be invested in accordance with the mutual written instructions
from Buyer and Seller. The interest earned on such invested funds shall
hereafter be defined as the "Interest". The Purchase Price shall be paid as
follows:
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a. Released Deposit. Five Million and 00/100
Dollars ($5,000,000.00) (the "Released Deposit") shall be
immediately released to Seller by Escrow Agent without further
instruction from either party.
b. Retained Deposit. The balance of the
Purchase Price (the "Retained Deposit") plus Interest shall be
held by Escrow Agent until Closing, and, at Closing, shall be
payable to Seller by wire transfer to the account of Seller as
directed by Seller.
6. Closing. The sale and purchase of the Purchased Assets
shall take place at a closing (the "Closing") at the office of Escrow Agent no
later than the next business day after the expiration or Buyer's receipt of
notice of early termination of the waiting period under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ (the
"Closing Date"). At the Closing, the Retained Deposit and Interest shall be wire
transferred by Escrow Agent to Seller's account and documents conveying Seller's
interest in the Purchased Assets shall be delivered as directed by Buyer. At
Closing, Buyer will enter into an employment agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ in the
form annexed hereto as Exhibit "E".
7. Operations of Business of Seller. At all times before the
Closing, Seller (a) shall operate its business substantially as presently
operated in the ordinary course and consistent with past operations excepting
termination of seasonal and other presently unneeded employees, and (b) shall
not, without the prior written consent of Buyer, sell, transfer or otherwise
dispose of any of its assets other than in the ordinary course of business or
sign material contracts. In addition, prior to the Closing, Buyer shall have
access to the Purchased Assets, books and records of Seller during normal
business hours.
8. Compliance with Laws. The parties shall comply with all
federal and state laws and regulations (including ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇) applicable
to the transaction contemplated in this Agreement. Each party shall cooperate
with the other party to comply with such laws and regulations. Buyer shall pay
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ filing fee. The Closing is subject to the parties'
obtaining ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance and the Closing Date shall be extended
until the expiration or Buyer's receipt of notice of early termination of the
waiting period under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇; provided, however, that notwithstanding
any other provision of this Agreement, Seller may terminate this Agreement at
any time if such waiting period has not expired as of December 18, 1998, or
Buyer has not received notice of early termination under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ on or
before December 18, 1998. In the event of such termination by Seller (or if
Seller has not elected to terminate this Agreement and the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
application is rejected and/or disapproved by the government prior to December
18, 1998), Seller shall so notify Buyer and Escrow Agent in writing, and the
Escrow shall terminate and be of no further force and effect whatever, and each
of the parties shall be released from any further obligation to the other to
perform under this Agreement or under the Escrow Instructions, and Escrow Agent
shall and is hereby instructed to immediately return to the parties depositing
the same all documents and funds then held by Escrow Agent. In addition, Seller
shall immediately return to Buyer the Released Deposit in full.
9. Workers Adjustment and Retraining Notification Act
("WARN").The parties acknowledge and agree that, if applicable, Seller will take
all steps to comply with the requirements of the Workers Adjustment and
Retraining Notification Act (29 U.S.C. ss.2101 et seq.). After the
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Closing, Buyer shall be responsible for providing notice, if necessary, of any
"plant closing" or "mass layoff" (as defined in WARN), and Buyer indemnifies and
agrees to hold Seller harmless from any failure of Buyer to comply with WARN.
10. Assignment of Contracts. The Seller's rights in all
Contracts shall be assigned to Buyer; provided, however, that Seller does not
warrant that any of the Contracts are assignable, and Buyer assumes the risk of
obtaining any approvals that may be required, the risk that approval may not be
allowed or obtained, and the risk of any existing breach or default of such
Contracts on the part of Seller.
11. Allocation of Purchase Price. The parties have not agreed
between themselves as to the manner in which the Purchase Price may be allocated
as to the various assets sold by Seller and purchased by Buyer.
12. Buyer's Representations and Warranties. Buyer hereby
represents and warrants to Seller that:
a. Due Organization. Buyer or its assignee
will be a corporation duly organized, validly existing and in
good standing and duly qualified to do business under the laws
of the State of Nevada and has all requisite corporate power
and authority to enter into, perform and carry out all of its
duties and obligations and the transactions contemplated by
this Agreement.
b. Binding Effect. This Agreement and the
other documents to be delivered on the part of Buyer pursuant
hereto are (or will be when executed and delivered pursuant
hereto) legal, valid and binding obligations of Buyer
enforceable in accordance with their terms.
c. Notices and Approvals: No Violation of
Agreements. Except for notices otherwise specified in this
Agreement, (i) no notice to, or approval or consent of, any
court or governmental authority or other person or entity is
required in connection with the execution, delivery and
performance of this Agreement by Buyer; and (ii) neither the
execution and delivery of this Agreement by Buyer nor the
consummation of the transactions contemplated hereunder nor
compliance by Buyer with any of the provisions hereof will
violate, conflict with, result in a breach of, or constitute a
default under or pursuant to any statute, agreement, judicial
or administrative order, injunction or judgment or decree to
which Buyer is a party by which it is bound.
d. Litigation. Buyer is not a party to any
legal governmental actions, claims, suits, administrative or
other proceedings, or investigations before or by any
governmental department, commission, board, regulatory
authority, bureau or agency, whether foreign, federal, state
or municipal or any court, arbitrator or grand jury, which
would prevent or materially interfere with the consummation of
the transactions contemplated by this Agreement. To the best
of Buyer's knowledge, no such proceedings are threatened or
contemplated by any governmental authority or any other person
or entity.
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13. Seller's Representations and Warranties. Seller hereby
represents and warrants to Buyer that:
a. Due Organization. Seller is a corporation
duly organized, validly existing and in good standing and duly
qualified to do business under the laws of the State of Nevada
and has all requisite corporate power and authority to enter
into, perform and carry out all of its duties and obligations
and the transactions contemplated by this Agreement.
b. Binding Effect. This Agreement and the
other documents to be delivered on the part of Seller pursuant
hereto are (or will be when executed and delivered pursuant
hereto) legal, valid and binding obligations of Seller
enforceable in accordance with their terms.
c. Notices and Approvals. No Violation of
Agreements. Except for notices otherwise specified in this
Agreement and except as provided in Paragraph 10 of this
Agreement, (i) no notice to, or approval or consent of, any
court or governmental authority or other person or entity is
required in connection with the execution, delivery and
performance of this Agreement by Seller; and (ii) neither the
execution and delivery of this Agreement by Seller nor the
consummation of the transactions contemplated hereunder nor
compliance by Seller with any of the provisions hereof will
violate, conflict with, result in a breach of, or constitute a
default under or pursuant to any statute, agreement, judicial
or administrative order, injunction or judgment or decree to
which Seller is a party by which it is bound.
d. Litigation. Seller is not a party to any
legal governmental actions, claims, suits, administrative or
other proceedings, or investigations before or by any
governmental department, commission, board, regulatory
authority, bureau or agency, whether foreign, federal, state
or municipal or any court, arbitrator or grand jury, which
would prevent or materially interfere with the consummation of
the transactions contemplated by this Agreement. To the best
of Seller's knowledge, no such proceedings are threatened or
contemplated by any governmental authority or any other person
or entity.
14. Risk of Loss. In the event of material destruction or
damage of any buildings or other improvements located upon or within the
Purchased Assets that are the subject of this transaction or the condemnation of
a material portion of such Purchased Assets prior to Closing, Seller shall, at
its election in its sole discretion, either (a) repair such damage and
destruction at Seller's expense prior to Closing or (b) promptly notify Buyer of
the damage or destruction and Seller's inability or decision not to repair it,
in which event, Buyer may terminate this Agreement, or if the partes mutually
agree upon the cost of repair and/or replacement of such destruction or damage,
then the parties may proceed with Closing, and Buyer shall be entitled to a
credit against the Purchase Price in an amount equal to the cost to replace or
repair the Purchased Assets as agreed upon between the parties.
15. Confidentiality. Buyer and Seller acknowledge and agree
that each party desires to maintain the confidentiality of this transaction, and
each party agrees that neither it nor its agents or representatives shall
disclose, prior to the Closing, any of the terms of this transaction, including,
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without limitation, the existence of this Agreement or Escrow entered into
pursuant to the same, the amount of the Purchase Price, or any of the terms,
provisions or conditions of the Agreement and/or Escrow Instructions, to any
person or entity except as may be required by law or as may be expressly
permitted by this Agreement or as may be necessary, but only to the extent
necessary to consummate this transaction. Nothing contained herein shall
prohibit either party from disclosing any facts concerning this transaction to
its attorneys, accountants, consultants or other advisers as each party, in its
sole discretion, deems necessary and appropriate. However, any party making such
disclosure shall obtain from the person to whom the disclosure is made a
confidentiality agreement containing the same requirements as set forth herein.
16. Buyers Default. In the event Buyer defaults in any of his
obligations under this Agreement and the Closing does not take place (unless due
to Seller's failure to deposit executed documents necessary to convey Seller's
interest in the Purchased Assets) on or before one (1) business day after the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ application is cleared by the government, then Seller may
terminate this Agreement and, in such event, Seller shall be entitled to keep
the Released Deposit as consideration for the execution of this Agreement, and
to pursue all remedies available to Seller in law or in equity, including, but
not limited to, the right of specific performance. Buyer acknowledges that the
Purchased Assets are unique and that Seller's remedies at law are inadequate.
17. Seller's Default. In the event Seller fails to deposit the
executed documents necessary to convey Seller's interest in the Purchased
Assets, and the Closing does not take place solely as a result thereof, then
Buyer may terminate this Agreement and, in such event, Buyer shall be entitled
to pursue all remedies available to Buyer in law or in equity, including, but
not limited to, the right of specific performance. Seller acknowledges that the
Purchased Assets are unique and that Buyer's remedies at law are inadequate.
18. Post-Closing Covenants.
a. Further Assurances. Each party shall, at
the request of the other, at any time and from time to time
following Closing, execute and deliver to the requesting
party, all such further instruments as may be reasonably
necessary or appropriate in order more effectively to (i)
assign, transfer and convey to Buyer or to perfect or record
Buyer's title to or interest in the assets that are the
subject of this transaction; and (ii) evidence and confirm the
assumption by Buyer of liabilities of Seller to be assumed by
Buyer pursuant to this Agreement; or (iii) confirm or carry
out the provisions of this Agreement.
b. Access to Books and Records After
Closing. Seller shall, following the Closing, give Buyer
access to and permit Buyer to copy such books and records as
shall be reasonably necessary for Buyer to effect a smooth
transition of the business of Seller and to continue the
business operations of the speedway. For sixty (60) days
following the Closing, Buyer will permit Seller to utilize the
services of the accounting department personnel to assist
Seller in collecting accounts receivable and paying accounts
payable that are not included in the Assumed Liabilities.
c. Cooperation; Retention of Records. Each
party acknowledges that the other may be a party to legal
proceedings following the Closing which relate to the business
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or Purchased Assets that are the subject of this transaction
and covenants to maintain and make available to the other upon
reasonable request and at the expense of the requesting party
(i) any and all files and business records in its custody or
control relating to the business or Purchased Assets; and (ii)
any and all individuals employed by the other party hereto
whose testimony or knowledge, in the reasonable opinion of the
other party's counsel, is necessary or useful to it, with
respect to the issues involving such litigation or preparation
therefor. Buyer shall keep and maintain all files, records and
other information which Seller shall deliver to Buyer or leave
on the Purchased Assets purchased hereunder at either Buyer's
offices on or within the Purchased Assets purchased or at
storage locations in Las Vegas, Nevada for a period of at
least five years after the Closing. Before destroying any such
files, records or information, Buyer shall notify Seller, and
Seller may, at its expense, retain the same. Seller shall be
entitled, at all reasonable times, to inspect or make copies,
at Seller's expense, of such files, records and information.
19. Brokerage Fees. Each of the parties hereto agrees to
indemnify and hold and save the other or others harmless from any brokerage or
finder's fees, commissions, compensation or expenses (including reasonable
attorney's fees and other expenses incurred in connection with any such claim)
which may be due or asserted by reason of any such agreement or purported
agreement by the indemnifying party regarding the transaction contemplated
herein.
20. General Provisions.
a. Parties in Interest; No Third Party
Beneficiaries. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by the respective successors
and assigns of the parties hereto. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to
confer upon or give to any other person or entity, any right,
remedies or other benefits.
b. Assignability. This Agreement shall not
be assignable by any party without the prior written consent
of the other party, provided that Buyer may assign its rights
and obligations under this Agreement to an affiliate of Buyer;
provided, however, that no such assignment by Buyer shall
release it from its obligations hereunder without the consent
of Seller.
c. Entire Agreement; Amendment; Waiver. This
Agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained in it and
supersedes all prior agreements, negotiations, brochures,
informational memoranda, representations and understandings of
the parties with respect to the subject matter. No amendment
or modification of this Agreement shall be binding unless in
writing and signed by each of the parties hereto. Except as
may be otherwise provided in this Agreement, no waiver of any
of the provisions of this Agreement shall constitute a waiver
of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver, and no waiver shall be
binding unless evidenced by an instrument in writing executed
by the party against whom the waiver is sought to be enforced.
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d. Severability. In the event that any
provision, or part thereof, of this Agreement shall be held to
be invalid, illegal or unenforceable, the remaining provisions
of this Agreement shall not be affected thereby.
e. Expenses. Except as otherwise set forth
herein, each party shall be responsible for its own legal fees
and other costs and expenses incurred in connection with this
Agreement and the negotiation and consummation of the
transactions contemplated hereby.
f. Authorization. The parties represent that
this Agreement has been duly authorized by all required
corporate actions, and the person signing on its behalf of
each party is authorized to do so.
g. Governing Law. The laws of the State of
Nevada shall govern the validity, construction, performance
and effect of this Agreement, and the exclusive jurisdiction
and venue for any action brought to enforce the terms of this
Agreement shall be in the ▇▇▇▇▇ County District Courts, Las
Vegas, Nevada.
h. Time of Essence. Time is of the essence
of this Agreement and all of the terms, provisions, covenants
and conditions hereof.
i. Captions. The captions appearing at the
commencement of the Articles and Paragraphs hereof are
descriptive only and for convenience in reference to this
Agreement and in no way whatsoever define, limit or describe
the scope or intent of this Agreement.
j. Pronouns. Masculine or feminine pronouns
shall be substituted for the neuter form and vice versa in any
place or places herein in which the context requires such
substitution or substitutions.
k. Counterparts. This Agreement may be
executed in any number of counterparts, with each counterpart
being deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
l. Attorney's Fees. If any action is brought
by any party hereto concerning a breach of any of the
provisions of this Agreement, the prevailing party shall be
entitled to recover from the other party the reasonable
attorney's fees and expenses of the prevailing party incurred
in connection therewith.
m. No Party Deemed Drafter. The parties
agree that neither party shall be deemed to be the drafter of
this Agreement and that in the event this Agreement is ever
construed by a court of law or entity, such court shall not
construe this Agreement or any provision hereof against either
party as the drafter of this Agreement, Seller and Buyer
acknowledge that each has contributed substantially and
materially to the preparation hereof.
n. Notice. All notices required and
permitted to be given hereunder shall be in writing and shall
be deemed to have been given when mailed by certified or
registered mail,
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return receipt requested, addressed to the intended recipient
as follows or at such other address as is provided by either
party to the other in accordance with this notice paragraph:
If to Buyer: Speedway Motorsports, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, V.P.
With a copy to: Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to Seller: Las Vegas Motor Speedway, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With a copy to: ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX
Attn: W. ▇▇▇▇ ▇▇▇▇
10
IN WITNESS WHEREOF, this Agreement is executed as of the date
first hereinabove written.
SELLER:
LAS VEGAS MOTOR SPEEDWAY, INC., a
Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------
its President
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BUYER:
SPEEDWAY MOTORSPORTS, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
its Vice President
---------------------
--------------------------------------------------------------------------------
Accepted as of the 18th day of November , 1998.
Escrow Agent:
NATIONAL TITLE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
------------------- ,
its Escrow Officer
-------------------
11