exv10w1



 






Exhibit 10.1



THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1333, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS
OR BOUNDLESS MOTOR SPORTS RACING INC. SMALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT
REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED.




BOUNDLESS MOTOR SPORTS RACING INC.




PROMISSORY NOTE




			
	U.S. $

No.:
	 	January 13, 2005






     FOR VALUE RECEIVED, the undersigned, Boundless Motor Sports Racing Inc., a Colorado
corporation (the “Company”), hereby promises to pay to the order of __________________or
any future permitted holder of this promissory note (the “Payee”), at the principal office
of the Payee set forth herein, or at such other place as the holder may designate in writing to the
Company, the principal sum of up to _______________ (U.S. $__________________), or such other
amount as may be outstanding hereunder, together with all accrued but unpaid interest, in such coin
or currency of the United States of America as at the time shall be legal tender for the payment of
public and private debts and in immediately available funds, as provided in this promissory note
(the “Note”).



     1. Principal and Interest Payments.



         (a) The Company shall repay in full the entire principal balance then outstanding under this
Note on the first to occur (the “Maturity Date”) of. (i) January 31, 2005; or (ii) the
acceleration of the obligations as contemplated by this Note.



         (b) Interest on the outstanding principal balance of this Note shall accrue at a rate of eight
percent (8%) per annum. Interest on the outstanding principal balance of the Note shall be computed
on the basis of the actual number of days elapsed and a year of three hundred and sixty (360) days
and shall be payable on the last day of each quarter following the date hereof by the Company in
cash or in shares of the Company’s equity securities as contemplated in Section l(c) hereof.
Furthermore, upon the occurrence of an Event of Default, then to the extent permitted by law, the
Company will pay interest to the Payee, payable on demand, on the outstanding principal balance of
the Note from the date of the Event of Default until payment in full at the rate of twelve percent
(12%) per annum.



         (c) Upon the mutual agreement of the Company and the Payee, this Note may be exchanged without
penalty for any other security of the Company.



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     2. Non-Business Days. Whenever any payment to be made shall be due on a Saturday,
Sunday or a public holiday under the laws of the State of New York, such payment may be due on the
next succeeding business day and such next succeeding day shall be included in the calculation of
the amount of accrued interest payable on such date.



     3. Representations and Warranties of the Company. The Company represents and warrants
to the Payee as follows:



         (a) The Company has been duly incorporated and is validly existing and in good standing under
the laws of the state of Colorado, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as currently conducted.



         (b) This Note has been duly authorized, validly executed and delivered on behalf of the
Company and is a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to limitations on enforcement by general principles of equity
and by bankruptcy or other laws affecting the enforcement of creditors’ rights generally, and the
Company has full power and authority to execute and deliver this Note and to perform its
obligations hereunder.



         (c) The execution, delivery and performance of this Note will not (i) conflict with or result
in a breach of or a default under any of the terms or provisions of, (A) the Company’s certificate
of incorporation or by-laws, or (B) any material provision of any indenture, mortgage, deed of
trust or other material agreement or instrument to which the Company is a party or by which it or
any of its material properties or assets is bound, (ii) result in a violation of any material
provision of any law, statute, rule, regulation, or any existing applicable decree, judgment or
order by any court, Federal or state regulatory body, administrative agency, or other governmental
body having jurisdiction over the Company, or any of its material properties or assets or (iii)
result in the creation or imposition of any material lien, charge or encumbrance upon any material
property or assets of the Company or any of its subsidiaries pursuant to the terms of any agreement
or instrument to which any of them is a party or by which any of them may be bound or to which any
of their property or any of them is subject.



         (d) No consent, approval or authorization of or designation, declaration or filing with any
governmental authority on the part of the Company is required in connection with the valid
execution and delivery of this Note.



     4. Events of Default. The occurrence of any of the following events shall be an
“Event of Default” under this Note:



         (a) the Company shall fail to make the payment of any amount of any principal outstanding for
a period of three (3) business days after the date such payment shall become due and payable
hereunder, or



         (b) the Company shall fail to make any payment of interest for a period of three (3) business
days after the date such interest shall become due and payable hereunder; or



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         (c) any representation, warranty or certification made by the Company herein or in any
certificate or financial statement shall prove to have been false or incorrect or breached in a
material respect on the date as of which trade; or



         (d) the holder of any indebtedness of the Company or any of its subsidiaries shall accelerate
any payment of any amount or amounts of principal or interest on any indebtedness (the
“Indebtedness”) (other than the Indebtedness hereunder) prior to its stated maturity or payment
date, whether such Indebtedness now exists or shall hereinafter be created, and such accelerated
payment entitles the holder thereof to immediate payment of such Indebtedness which is due and
owing and such indebtedness has not been discharged in full or such acceleration has not been
stayed, rescinded or annulled within ten (10) business days of such acceleration; or



         (e) A judgment or order for the payment of money shall be rendered against the Company or any
of its subsidiaries in excess of $500,000 in the aggregate (net of any applicable insurance
coverage) for all such judgments or orders against all such persons (treating any deductibles, self
insurance or retention as not so covered) that shall not be discharged, and all such judgments and
orders remain outstanding, and there shall be any period of sixty (60) consecutive days following
entry of the judgment or order in excess of $500,000 or the judgment or order which causes the
aggregate amount described above to exceed $500,000 during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or



         (f) the Company shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property or assets, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code or under the comparable laws of any
jurisdiction (foreign or domestic), (iv) file a petition seeking to take advantage of any
bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement
of creditors’ rights generally, (v) acquiesce in writing to any petition filed against it in an
involuntary case under the Bankruptcy Code or under the comparable laws of any jurisdiction
(foreign or domestic), or (vi) take any action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing; or



         (g) a proceeding or case shall be commenced in respect of the Company or any of its
subsidiaries without its application or consent, in any court of competent jurisdiction, seeking
(i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like of it or of all or any substantial part of its assets or (iii) similar relief in respect
of it under any law providing for the relief of debtors, and such proceeding or case described in
clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of
thirty (30) consecutive days or any order for relief shall be entered in an involuntary case under
the Bankruptcy Code or under the comparable laws of any jurisdiction (foreign or domestic) against
the Company or any of its subsidiaries or action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of
its subsidiaries and shall continue undismissed, or unstayed and in effect for a period of thirty
(30) consecutive days; or



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         (h) the suspension from listing or the failure of the Common Stock to be listed on the OTC
Bulletin Board for a period of five (5) consecutive trading days.



     5. Remedies Upon An Event of Default. If an Event of Default shall have occurred and
shall be continuing, the Payee of this Note may at any time at its option, (a) declare the entire
unpaid principal balance of this Note, together with all interest accrued hereon, due and payable,
and thereupon, the same shall be accelerated and so due and payable; provided,
however, that upon the occurrence of an Event of Default described in (i) Sections 4(f) and
(g), without presentment, demand, protest, or notice, all of which are hereby expressly
unconditionally and irrevocably waived by the Company, the outstanding principal balance and
accrued interest hereunder shall be automatically due and payable, and (ii) Sections 4(a) through
(e) and Section 4(h), the Payee may exercise or otherwise enforce any one or more of the Payee’s
rights, powers, privileges, remedies and interests under this Note or applicable law. No course of
delay on the part of the Payee shall operate as a waiver thereof or otherwise prejudice the right
of the Payee. No remedy conferred hereby shall be exclusive of any other remedy referred to herein
or now or hereafter available at law, in equity, by statute or otherwise. Notwithstanding the
foregoing, Payee agrees that its rights and remedies hereunder are limited to receipt of cash or
shares of the Company’s equity securities in the amounts described herein.



     6. Replacement. Upon receipt of a duly executed, notarized and unsecured written
statement from the Payee with respect to the loss, theft or destruction of this Note (or any
replacement hereof), and without requiring an indemnity bond or other security, or, in the case of
a mutilation of this Note, upon surrender and cancellation of such Note, the Company shall issue a
new Note, of like tenor and amount, in lieu of such lost, stolen, destroyed or mutilated Note.



     7. Parties in Interest, Transferability. This Note shall be binding upon the Company
and its successors and assigns and the terms hereof shall inure to the benefit of the Payee and its
successors and permitted assigns. This Note may be transferred or sold, subject to the provisions
of Section 16 of this Note, or pledged, hypothecated or otherwise granted as security by the Payee.



     8. Amendments. This Note may not be modified or amended in any manner except in
writing executed by the Company and the Payee.



     9. Notices. Any notice, demand, request, waiver or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery
by telecopy or facsimile at the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the second business day following the date of
mailing by express courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The Company will give written notice to the
Payee at least thirty (30) days prior to the date on which the Company closes its books or takes a
record (x) with respect to any dividend or distribution upon the common stock of the Company, (y)
with respect to any pro rata



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subscription offer to holders of common stock of the Company or (z) for determining rights to
vote with respect to a major transaction, dissolution, liquidation or winding-up and in no event
shall such notice be provided to such holder prior to such information being made known to the
public. The Company will also give written notice to the Payee at least twenty (20) days prior to
the date on which dissolution, liquidation or winding up will take place and in no event shall such
notice be provided to the Payee prior to such information being made known to the public.



	 	 	 
	Address of the Payee:
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	Address of the Company:

	 	Boundless Motor Sports, Inc.
	

	 	2500 South McGee Street, Suite 147
	

	 	Norman, Oklahoma 73072
	

	 	Attention: Paul Kruger
	

	 	Tel. No.: (405) 360-5047
	

	 	Fax No.: (405) 360-5354
	 
	 	 
	with a copy to:

	 	Jackson Walker L.L.P.
	

	 	2435 N. Central Expressway
	

	 	Suite 600
	

	 	Richardson, Texas 75080
	

	 	Attention: Richard Dahlson
	

	 	Tel. No.: (972) 744-2900
	

	 	Fax No.: (972) 744-2909






     10. Governing. Law. This Note shall be governed by and construed in accordance with
the internal laws of the State of New York, without giving effect to the choice of law provisions.
This Note shall not be interpreted or construed with any presumption against the party causing this
Note to be drafted.



     11. Headings. Article and section headings in this Note are included herein for
purposes of convenience of reference only and shall not constitute a part of this Note for any
other purpose.



     12. Remedies, Characterizations, Other Obligations, Breaches and Injunctive
Relief. The remedies provided in this Note shall be cumulative and in addition to all
other remedies available under this Note, at law or in equity (including, without limitation, a
decree of specific performance and/or other injunctive relief), no remedy contained herein shall be
deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein
shall limit a Payee’s right to pursue actual damages for any failure by the Company to comply with
the terms of this Note. Amounts set forth or provided for herein with respect to



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payments and the like (and the computation thereof) shall be the amounts to be received by the
Payee and shall not, except as expressly provided herein, be subject to any other obligation of the
Company (or the performance thereof). The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable and material harm to the Payee and that the remedy at
law for any such breach may be inadequate. Therefore the Company agrees that, in the event of any
such breach or threatened breach, the Payee shall be entitled, in addition to all other available
rights and remedies, at law or in equity, to seek and obtain such equitable relief, including but
not limited to an injunction restraining any such breach or threatened breach, without the
necessity of showing economic loss and without any bond or other security being required.



     13. Failure or Indulgence Not Waiver. No failure or delay on the part of the Payee in
the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.



     14. Enforcement Expenses. The Company agrees to pay all costs and expenses of
enforcement of this Note, including, without limitation, reasonable attorneys’ fees and expenses.



     15. Binding Effect. The obligations of the Company and the Payee set forth herein
shall be binding upon the successors and assigns of each such party, whether or not such successors
or assigns are permitted by the terms hereof.



     16. Compliance with Securities Laws. The Payee of this Note acknowledges that this
Note is being acquired solely for the Payee’s own account and not as a nominee for any other party,
and for investment, and that the Payee shall not offer, sell or otherwise dispose of this Note
other than in compliance with the laws of the United States of America and as guided by the rules
of the Securities and Exchange Commission. This Note and any Note issued in substitution or
replacement therefore shall be stamped or imprinted with a legend in substantially the following
form:



“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS OR BOUNDLESS MOTOR SPORTS RACING INC. SHALL HAVE
RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.”



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     17. Severability. The provisions of this Note are severable, and if any provision
shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Note in any jurisdiction.



     18. Consent to Jurisdiction. Each of the Company and the Payee (i) hereby irrevocably
submits to the jurisdiction of the United States District Court sitting in the Southern District of
New York and the courts of the State of New York located in New York county for the purposes of any
suit, action or proceeding arising out of or relating to this Note and (ii) hereby waives, and
agrees not to assert in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is improper. Each of the
Company and the Payee consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address set forth in Section 9 hereof and agrees that
such service shall constitute good and sufficient service of process and notice thereof. Nothing in
this Section 18 shall affect or limit any right to serve process in any other manner permitted by
law.



     19. Company Waivers. Except as otherwise specifically provided herein, the Company
and all others that may become liable for all or any part of the obligations evidenced by this
Note, hereby waive presentment, demand, notice of nonpayment, protest and all other demands and
notices in connection with the delivery, acceptance, performance and enforcement of this Note, and
do hereby consent to any number of renewals of extensions of the time or payment hereof and agree
that any such renewals or extensions may be made without notice to any such persons and without
affecting their liability herein and do further consent to the release of any person liable hereon,
all without affecting the liability of the other persons, firms or Company liable for the payment
of this Note, AND DO HEREBY WAIVE TRIAL BY JURY.



         (a) No delay or omission on the part of the Payee in exercising its rights under this Note, or
course of conduct relating hereto, shall operate as a waiver of such rights or any other right of
the Payee, nor shall any waiver by the Payee of any such right or rights on any one occasion be
deemed a waiver of the same right or rights on any future occasion.



         (b) THE COMPANY ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL
TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HEREBY WAIVES ITS RIGHT TO NOTICE AND
HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE PAYEE OR ITS SUCCESSORS OR ASSIGNS MAY
DESIRE TO USE.



[REMAINDER OF P AGE INTENTIONALLY LEFT BLANK]




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	 	BOUNDLESS MOTOR SPORTS

RACING. INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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