Exhibit 10.1
This (the “Agreement”) is entered into effective February 7, 2005 by and
between Xxxxxxxxx Capital Group Consultants, Ltd., a Texas limited partnership dba Blackhawk
Motorsports (“Blackhawk”), and GAINSCO, Inc., a Texas corporation (“Sponsor”).
Blackhawk has organized a racing team to engage in Daytona Prototype Series auto racing (the
“Racing Team”) in professional races to be conducted in 2005 and future years. Sponsor desires to
become a primary sponsor of the Racing Team in consideration of the sponsorship fee provided for
herein, and the parties desire to enter into this Agreement to govern the terms of such
sponsorship.
Now, therefore, Blackhawk and the Sponsor hereby agree as follows:
1. Term. Subject to the provisions of Section 12 hereof, the term of this Agreement and the
sponsorship described herein shall commence on February 1, 2005 and extend until January 31, 2006.
2. Advertising and Other Benefits. Subject to payment by the Sponsor of the sponsorship fee
provided for herein, during the term of this Agreement Blackhawk shall cause the Racing Team to
provide for the Sponsor’s benefit all of the benefits customarily associated with the sponsorship
of a Daytona Prototype Series racing team (individually, a “Benefit,” and collectively, the
“Benefits”), including but not limited to the following:
(i) displaying prominent identification of the Sponsor’s name
and/or logo in signage on the race car and racing suits and, where
appropriate, on other team equipment; and
(ii) making available for the use of the Sponsor (x) the
personalities associated with the Racing Team, (y) the Racing
Team’s home base facilities in California, and (z) those
facilities designated or assigned for the use of the Racing Team
at each race and race location at which the Racing Team actually
participates in the race, all for appropriate public relations and
other promotional and marketing purposes. As it concerns (y) and
(z) above, access shall be subject to appropriate security and
safety restrictions designated by the applicable racing location
and the Racing Team.
3. Sponsorship Fee. The Sponsor shall pay to Blackhawk a sponsorship fee in the amount of
$440,000.00 for the term of this Agreement, payable as follows: $40,000.00 shall be paid by Sponsor
at the time of the execution of this Agreement, and additional installments of $40,000.00 each
shall be paid by the Sponsor on or before the
first day of each month commencing March 1, 2005 and continuing until the final installment is paid
on or before December 1, 2005 (unless this Agreement is sooner terminated pursuant to Section 12
hereof, in which case the obligation to make any future payments shall terminate).
4. Compliance with Applicable Rules and Regulations. Provision of the Benefits pursuant to
this Agreement is subject to rules and requirements of each organization and venue hosting a racing
event in which the Racing Team competes during the term hereof, and Sponsor agrees to submit to
Blackhawk all advertising and other promotional material in sufficient time to enable Blackhawk to
assure compliance with such rules and requirements. If as a result of such rules and requirements
Blackhawk is unable to provide a Benefit in the form requested by the Sponsor, Blackhawk shall be
permitted to provide a substitute promotion or advertisement in compliance with such requirements.
5. Sponsor’s Maximum Obligation; Indemnification. Blackhawk represents to the Sponsor that
the Sponsor’s aggregate obligation hereunder will not exceed the amount of the sponsorship fee set
forth in Section 3 hereof (or such lesser amount as is payable by the Sponsor in the event that
this Agreement is terminated pursuant to Section 12 hereof), plus, if applicable, collection costs
that may be reasonably incurred by Blackhawk in a legal proceeding to collect all or any part
thereof (the “Maximum Obligation”). Blackhawk agrees to indemnify the Sponsor and its officers,
directors, agents and employees and to hold them harmless from any loss, claim, cost, damage or
liability in excess of the Maximum Obligation which (i) the Sponsor shall incur as a result of this
Agreement, or (ii) arises from any failure by Blackhawk to perform any of its obligations
hereunder.
6. Retention of Rights. The only rights granted to the Sponsor hereunder are the right to
receive the Benefits, and Blackhawk hereby retains all other rights with respect to the Racing
Team, including but not limited to logos, symbols, names and other marks and intellectual property
of the Racing Team, and any proceeds derived by the Racing Team. The Sponsor hereby retains and
does not grant any rights to Blackhawk to use any of its logos, symbols, names or other marks or
intellectual property, except for use as described in Section 2 hereof.
7. Relationship to Other Sponsors. The Sponsor acknowledges that Blackhawk has arranged and
may arrange in the future for other sponsors for the Racing Team. Blackhawk agrees that, during the
term of this Agreement, no other sponsor shall receive any benefit of greater value (including a
more prominent use of another sponsor’s name, logo or other identifying information) than the
Benefits provided to the Sponsor hereunder.
8. Remedies. If either party breaches any provision of this Agreement, the other party shall
be entitled to seek monetary damages and, if appropriate, equitable relief to require the
performance of the obligations hereunder.
9. Assignment. Neither party shall assign any of its rights or obligations hereunder without
the prior written consent of the other party.
10. Entire Agreement; Amendment and Waiver; Confidentiality. This Agreement constitutes the
entire agreement between Blackhawk and the Sponsor with respect to the subject matter hereof and
supercedes all prior agreements and understandings. Any amendment of this Agreement must be by a
written instrument signed by both parties, and any waiver of any provision hereof must be in
writing, signed by the party agreeing to such waiver. Each of the parties hereto agrees to hold in
confidence the terms hereof and, unless otherwise required by law, neither party shall release,
disclose or publish any of the terms hereof without the prior written consent of the other party.
11. Notices. All notices and communications to be made with respect to this Agreement shall
be in writing and shall be effective only when delivered by (i) hand, (ii) prepaid certified United
States mail, return receipt requested, or (iii) overnight delivery service providing proof of
delivery, addressed as follows:
If to Blackhawk:
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Xxxxxx X. Xxxxxxxxx |
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Blackhawk Motorsports |
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0 Xxxxxxx Xxxxx |
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Xxxxxx, Xxxxx 00000 |
if to the Sponsor:
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GAINSCO, Inc. |
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Attention: Xxxxx X. Xxxxxxxx, President |
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0000 Xxxx Xxxxxx, Xxxxx 0000 |
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Xxxxxx, Xxxxx 00000 |
Either party may change the name or address for notice by providing a written notice of such change
in accordance with this Section of the Agreement.
12. Termination by the Sponsor. Notwithstanding the provisions of Section 1 hereof, the
Sponsor shall have the right at any time prior to January 31, 2006 to terminate this Agreement by
giving written notice of such termination to Blackhawk. In the event of such a termination, (i) the
Sponsor shall have no further obligation to make payments toward the sponsorship fee contemplated
in Section 3 hereof, (ii) Blackhawk shall have no further obligation to provide any Benefits
hereunder, and (iii) the remaining provisions of this Agreement shall remain in full force and
effect.
13. Miscellaneous. (a) This Agreement may be executed in two counterparts, each of which
shall be deemed to be an original, but both of which shall constitute a single agreement.
(b) The headings and sections of this Agreement are for convenience only and shall not affect
the interpretation of any provision hereof.
(c) This Agreement shall be governed and construed in accordance with the internal laws of
the State of Texas, without giving effect to principles of conflict of laws.
This Agreement is executed as of the date first above written.
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XXXXXXXXX CAPITAL GROUP
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GAINSCO, INC. |
CONSULTANTS, LTD. |
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dba Blackhawk Motorsports |
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By: Xxxxxxxxx Capital Group, Inc. |
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General Partner |
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Xxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxx |
Xxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxx |
President
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Senior Vice President |
