EXHIBIT 10.43
NEW EXHIBIT A
AGREEMENT
This Agreement (the "Agreement") is made between CART, Inc., a Michigan
corporation with its principal place of business in Indianapolis, Indiana
("CART"), and Open Wheel Racing Series LLC, a Delaware limited liability company
with its principal place of business in Indianapolis, Indiana ("OWRS").
RECITALS
A. CART is a debtor-in-possession in a chapter 11 case pending in
the United States Bankruptcy Court for the Southern District of Indiana (the
"Bankruptcy Court"), Case No. 03-23385 (FJO) (the "Chapter 11 Case").
B. CART is the wholly owned subsidiary of Championship Auto
Racing Teams, Inc., a Delaware corporation with its principal place of business
in Indianapolis, Indiana ("Championship").
C. CART, Championship, and OWRS are parties to that certain Asset
Purchase Agreement dated December 15, 2003, as amended by the January 15, 2004
Amendment By Interlineation and by the January 27, 2004 letter from OWRS to CART
(as amended, the "APA"). Pursuant to the APA, CART agreed to sell substantially
all of its assets to OWRS, and Championship agreed to sell certain of its assets
to OWRS (collectively, the "Acquired Assets").
D. On February 2, 2004, the Bankruptcy Court entered its Order
approving the APA and the sale of the Acquired Assets to OWRS (the "Sale
Order"). The parties hereto closed the sale on February 13, 2004, and OWRS now
owns title to the Acquired Assets.
E. Notwithstanding the sale of Acquired Assets, CART continues to
operate its business and financial affairs as a debtor-in-possession in the
Chapter 11 Case, and retains ownership of its receivables and other assets. It
is contemplated by the parties that CART will
soon propose a Chapter 11 plan for the purposes of, among other things,
administering its remaining assets, making distributions to creditors, and
concluding the Chapter 11 Case (the "Plan").
F. OWRS purchased the Acquired Assets for the sole purpose of
continuing the Champ Car racing series as the Champ Car World Series ("CCWS") in
2004 and beyond. As part of the APA and Sale Order, OWRS has assumed the
obligations of CART under certain promoter agreements to conduct races during
the CCWS (the "Promoter Agreements").
G. The Automobile Competition Committee for the United
States/FIA, Inc. ("ACCUS") recognizes CART as a member of ACCUS. As a member of
ACCUS, CART is entitled to appoint two representatives and one alternate to the
ACCUS board of directors.
H. ACCUS represents the Federation Internationale de 1'
Automobile ("FIA") as the national sporting authority for the United States,
governing all phases of international motor sports. The primary purpose of ACCUS
is to encourage cooperation among domestic and international motorsports
organizations that conduct and sanction races in the United States.
I. CART's membership in ACCUS is a valuable asset that CART
intends to utilize by sanctioning races in 2004 and perhaps beyond.
J. It is important that the CCWS be properly sanctioned by a
member in good standing of ACCUS. OWRS may require some period of time to obtain
its own membership status in ACCUS, which period might extend beyond the
scheduled dates for one or more of the 2004 CCWS races. Therefore, OWRS and CART
desire for CART to act as the sanctioning body of the CCWS 2004 Competitions (as
defined in the Promoter Agreements) that are conducted in the United States, as
necessary.
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NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein and made a part hereof, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as
follows:
1. 2004 CHAMP CAR WORLD SERIES. OWRS will conduct the 2004 CCWS,
which includes (a) the Champ Car Competitions, and (b) the Competitions in the
supporting series known as the "Toyota Atlantic Championship Series" and the
"Formula BMW USA Series." OWRS shall have sole and exclusive control in
selecting the number and location of races and negotiating the terms and
conditions of the financial agreements with promoters. OWRS shall also have sole
and exclusive control in negotiating any agreements or arrangements with series
sponsors, the television and radio media or other party interested in promoting
the series. All monies, compensation and revenues of any kind in connection with
the CCWS or of any single race are and will be the sole and exclusive property
of OWRS, and CART acknowledges that it has no claim or right to said receipts.
2. SANCTIONING OF 2004 COMPETITIONS. CART shall use its best
efforts to remain a member of ACCUS, and shall use its best efforts to provide
all necessary sanctioning authority for the CCWS in the United States and will
at the request OWRS sanction any of the Competitions that may occur during the
calendar year 2004, and prior to the time OWRS achieves its own membership
status in ACCUS. To perform its obligations hereunder, CART shall undertake all
reasonable and necessary actions to maintain its status as a member of ACCUS.
Without limitation of the preceding sentence, CART shall (a) remain current on
its payment of listing fees and membership fees to ACCUS, (b) use its best
efforts to have designated two representatives (one of which shall be suggested
by OWRS and which suggestion shall be accepted by CART unless reasonably deemed
by CART to be inappropriate) and one
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alternate to the ACCUS board of directors, and (c) comply with the ACCUS bylaws.
CART will use its best efforts to provide all FIA registrations, approvals
and/or listings for the CCWS that may be required for the promotion and conduct
of the races as requested by OWRS. CART may inspect track facilities that it
deems necessary in order to fulfill its obligations under the terms of this
Agreement; provided, however, that OWRS officials are informed in advance of
such inspection. CART recognizes that OWRS intends to apply for membership in
ACCUS, and CART will support such membership.
3. SANCTION FEES. In consideration of CART serving as the
sanctioning body for the CCWS as provided herein, OWRS shall pay CART the sum of
$12,500.00 for each Champ Car race held in the United States, payable 30 days in
advance of each scheduled race that is sanctioned by CART (referred to herein as
the "Sanction Fees"). In addition to the Sanction Fees, OWRS shall pay certain
expenses incurred by CART as specifically identified herein. Notwithstanding
anything in this Agreement to the contrary, should CART lose its membership in
ACCUS or for any other reason be unable to perform hereunder, the sole remedies
of OWRS shall be to (a) terminate this Agreement and be relieved of its
obligations hereunder, and (b) be relieved of having to pay CART any future
Sanction Fees.
4. CART'S ACCUS-RELATED EXPENSES. In addition to the Sanction
Fees, OWRS shall pay directly, or reimburse CART, the following expenses that
are necessary to CART's performance under this Agreement: (a) ACCUS listing
fees; (b) ACCUS membership fees (including international listing fees and
National Motorsports Council fees); (c) actual, reasonable and necessary travel
expenses incurred by not more than three (3) CART personnel to attend ACCUS
meetings at which all members of ACCUS are convened; and (d) such other expenses
incurred by CART as necessary to its performance of this Agreement, as evidenced
by
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invoices submitted to and approved by OWRS, but excluding any attorneys' fees
incurred by CART.
5. USE OF OWRS EMPLOYEES. OWRS shall appoint the Chief Xxxxxxx
and/or Director of Competition who will have ultimate authority in conducting
the races. OWRS will provide all required qualified personnel, adequate
equipment, and all other items necessary for CART to provide the sanctioning
services contemplated by this Agreement. OWRS shall provide all such personnel,
equipment and other items at its sole cost and expense. Any and all such
employees provided by OWRS shall remain employees of OWRS and shall not be
deemed to be employees of CART. Neither OWRS, its representatives, members,
officers or employees will do anything to jeopardize CART's membership in ACCUS.
6. PROMOTER AGREEMENTS. OWRS shall ensure that it performs its
obligations as set forth in the Promoter Agreements for Competitions to be
sanctioned by CART. OWRS shall promptly notify CART of any amendments to
existing Promoter Agreements, and of any new Promoter Agreements entered into by
OWRS with respect to Competitions to be sanctioned by CART, but only under a
confidentiality agreement and only to the extent necessary to allow CART to
review those provisions that pertain to safety issues and FIA/FISA compliance.
7. FIA/FISA COMPLIANCE. OWRS shall comply with all FIA
Regulations, as defined in the FIA/FISA's code book of compliance, including
without limitation, circuit inspections by FIA/FISA inspectors. All costs
associated with such compliance shall be the sole responsibility of OWRS. OWRS
shall promptly reimburse CART for any and all expenses incurred by it in
connection with FIA/FISA compliance, including all costs and expenses associated
with circuit inspections. All races governed by this Agreement will be operated
in
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accordance with and subject to the Official Competition Rules as adopted by
OWRS. Such rules shall comply with applicable ACCUS and FIA standards. OWRS
personnel that are required to wear uniforms at the Competitions shall include a
CART-I.D. patch on such uniforms if required by FIA Regulations.
8. TRADEMARKS; PUBLICITY; CART IDENTIFICATION. All competition
notices, competition bulletins and other written competition communications, and
all series press releases, and series media and marketing materials which
contain Competition results, timing and scoring information or other
race-related information, must include the phrase "sanctioned by CART."
Notwithstanding any other provision in this Agreement, OWRS reserves the right
to grant to promoters and/or sponsors the right to use their names or the names
of their products in connection with any race or the entire series, in any way
or manner that OWRS deems to be in the best interests of this series. Any and
all rights to any trademarks, service marks, trade names and copyrights,
including any fanciful or derivative name, that have or may hereafter arise from
the championship race series, shall be and remain vested in, inure to the
benefit of, and be and remain the sole and separate property of OWRS. All press,
media and promotional activity connected in any way with the CCWS is and shall
be the sole and separate responsibility of OWRS.
9. INSURANCE. OWRS shall have all promoters of Competitions
sanctioned by CART include CART as an additional named insured. In addition,
OWRS shall carry insurance naming CART as an additional insured in amounts and
by forms of coverage no less protective of CART than provided by those policies
of insurance maintained by CART for its Champ Car racing series conducted in
2003.
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10. REPRESENTATIONS OF CART. CART represents and warrants to OWRS
as follows: (a) CART is and shall use its best efforts to remain a member of
ACCUS, and is authorized to sanction the Competitions to be conducted by OWRS;
(b) CART has designated two representatives (one of which shall be suggested by
OWRS and which suggestion shall be accepted by CART unless reasonably deemed by
CART to be inappropriate) and one alternate to the ACCUS board of directors, and
will use CART's best efforts to cause such representatives to be recognized by
ACCUS; (c) CART will timely seek approval of this Agreement by the Bankruptcy
Court, to the extent necessary; and (d) CART is authorized to enter into this
Agreement, and the undersigned representative is duly authorized to execute this
Agreement for and on behalf of CART.
11. OWRS REPRESENTATIONS. OWRS represents and warrants to CART as
follows: (a) OWRS is authorized to enter into this Agreement, and the
undersigned representative is duly authorized to execute this Agreement for and
on behalf of OWRS; (b) OWRS shall cooperate with CART in obtaining Bankruptcy
Court approval of this Agreement, if and to the extent necessary.
12. TERM OF AGREEMENT. This Agreement shall be effective on the
date of its execution by both parties (subject to Bankruptcy Court approval),
and shall terminate on the earlier to occur of the following: (a) December
31, 2004 or (b) as may otherwise be provided in CART's Plan, or (c) upon OWRS
becoming a member of ACCUS.
13. OWRS INDEMNITY. OWRS hereby indemnifies and holds CART
harmless from any loss, liability, or claim that may arise from CART performing
its sanctioning services hereunder, save for claims arising from CART's
recklessness or gross negligence (an "Indemnified Claim"). OWRS agrees to assume
the defense of any Indemnification Claim and
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pay all costs reasonably incurred by CART (including reasonable attorneys' fees)
in connection with the defense or settlement of such Indemnified Claim. OWRS
agrees to cause CART to be made and maintained as an additional named insured
under all insurance policies obtained to provide coverage against any liability
that may arise in or with respect to all of the Competitions for which CART
provides sanctioning services as provided herein, which coverage shall be no
less than ten million ($10,000,000.00).
14. MISCELLANEOUS. This Agreement shall not be modified or amended
except in a written document signed by the duly authorized representatives of
the parties. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, but all of which, when taken together, shall
constitute a single Agreement. This Agreement, and any disputes or claims
arising under it, shall be governed by and construed under the laws of the State
of Indiana, without reference to its choice of law rules. The parties submit
exclusively to the venue and jurisdiction of either the Federal District Court
for the Southern District of Indiana, Indianapolis Division, or the appropriate
state court located in Xxxxxx County, Indiana. Any failure or delay by either
party to enforce any right, power or privilege under this Agreement or any of
the provisions of this Agreement, or any time and indulgence given by either
party shall not be construed as a waiver by such party of any of its rights
under this Agreement nor prejudice such party's rights on any subsequent
occasion. The illegality or unenforceability of any part or provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement. This Agreement is not assignable by either party
without the written consent of the other party.
15. NOTICES. Any notice to be given under this Agreement shall be
given in writing and may be delivered by hand, by overnight courier or by
certified U.S. mail, return
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receipt requested,to the party to be served at the addresses set out below or at
such other address as may from time to time be notified in writing by one party
to the other for this purpose.
CART's address for service shall be:
0000 Xxxx Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxx
With a copy to:
Xxxxx X. Xxxx
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
The OWRS address for service shall be:
0000 Xxxx Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxx X. Xxxxx
Xxxx Xxxxx Xxxxxx & Xxxxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 31 day of March, 2004.
CART, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: CFO
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OPEN WHEEL RACING SERIES LLC
By: /s/ Xxxx Xxxxxxxxxx
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Its: Manager
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