MASTER REVENUE SHARING AGREEMENT
THIS MASTER REVENUE SHARING AGREEMENT, as amended, supplemented and/or
modified from time to time in accordance with the terms and provisions hereof,
and together with all Exhibits and/or other Schedules hereto (this "Agreement"),
is entered into as of __________ ___, 2004, by and among_________________, a
____________ company ("Operator"), and Perfect Line, Inc., an Indiana company
("Owner").
WHEREAS, Operator desires to revenue share one or more of Owner's
Motion-based Race Car Simulator Attractions ("Equipment") for installation and
use at the Premises (as herein defined);
WHEREAS, for the purpose of confirming Operator's interest in leasing
the Equipment (as herein defined), Operator and Owner have previously entered
into that certain Revenue Sharing Terms Sheet ("Basic Terms"), for the
Equipment, dated as of __________ ___, 2004 containing the Basic Terms and
conditions set forth in Article I below.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
BASIC TERMS
Item # OWNER TO PROVIDE
1. Hardware: 4 fully operational Race Car Systems including all
necessary components to simulate the current racing
experience in the existing racing centers associated
with Perfect Line. This includes, but is not limited to
the required sleds, frames, shells, electronics,
networks, hubs, computers, computer racks, image
generators, screens, monitors, hydraulic pumps, and
safety devices. Footprint for each simulator is 10' 1/4"
wide x 13'6" deep x 10' high, plus space is required for
the attendant, computer operating system, printer,
training area, and spectators.
2. Race Control: The operating system that controls the operation of each
Racing Simulator starts and stops races and configures
each race (programs the racing circuit desired, time
race or lap race, etc.).
3. Software
Description: Owner's software to include image generator, race
control, and 6 race track databases: Indianapolis Motor
Speedway, Atlanta Motor Speedway, Daytona International
Speedway, Bristol Motor Speedway, Richmond International
Raceway and Xxxx'x Motor Speedway. Special software for
the "Daytona Rookie Challenge" is also included as a
training experience for new drivers.
4. 1 Spectator
Monitor System: "SMS Live" system where multiple TV-style views are fed
to a TV monitor. One Monitor to be placed where
spectators can view race from a waiting line or from a
remote location.
5. 1 Leader Board
System: A computer and monitor system that displays race
information, lap times and car positions of each driver
as it happens, in real-time. This system is integrated
into the Spectator Monitor.
6. 1 Print
Station: Prints a detailed race summary for each driver at the
end of each race and offers the ability to reprint any
race of the day.
7. Licenses: Licenses will be granted for Owner software and NASCAR
teams, brand, and race tracks. Operator may utilize the
licenses for the use and promotion of the attraction.
However, Operator does not have "pass-through"
rights to the NASCAR Silicon Motor Speedway name and/or
logo ("NASCAR Logo"), or to any third party NASCAR
Licensees. Any and all use by Operator, or any affiliate
or representative of Operator, of the NASCAR logo,
including but not limited to sales promotion and
advertising of the racing experience, is subject
to the approval of Owner and NASCAR. Operator agrees to
compensate Owner an amount equal to 4 percent of net
simulator revenues payable within 10 days of the close
of the month.
8. Installation: Installation within 10 days of delivery to be
accomplished by at least 2 of Owner's technicians, by
Operator's senior technician and labor supplied by
Operator.
9. Training: Prior to installation, Owner will train Operator's
senior technician for a minimum of 3 days at one of the
NASCAR Silicon Motor Speedway stores. Operator to bear
cost of transportation, hotel and associated travel
expenses. During installation, training of chief
technician will continue as he/she assists Owner's
installation team. During installation, Owner will train
attendants and other key personnel in ride operation,
guest relations, and safety. (As an option, training may
be performed at one of Owner's existing facilities).
10. Project Plan
and Schedule: Owner, in conjunction with Operator, will provide
a conceptual design plan, and will distribute a detailed
project plan and schedule.
11. Warranty: 1-year warranty on parts and labor, then a 50-50 split
of the costs of parts. There is no charge to Operator
for labor.
Item # OPERATOR TO PROVIDE
1. Facility and
Operations: Operator will provide the location, prepare any
required construction plans, and will supply all labor
and materials to perform any required construction per
Owner's conceptual plans, including but not limited to
walls, spectator walls, electrical systems, HVAC, data
lines and phone lines. All required permits are to be
obtained by Operator. Operator will provide operations
staff (attendant and ticketing) and assistance with
installation labor and support. The attraction requires
one attendant for up to four cars, plus a station for
the sale and scheduling of races. Operator will
provide a full-time uniformed attendant during all hours
the facility is open. After initial training and of
staff and supervisors by Owner, Operator will
warranty that all future attendants will be fully
trained in ride operation, guest relations, and safety.
2. Maintenance: Senior tech is responsible for ongoing maintenance,
operation and quality control. Operator will have on
staff a technician(s) competent to service computer-
controlled amusement attractions who has been trained
directly by Owner or in the future, by another qualified
employee. Operator certifies that daily, weekly and
monthly maintenance will be done in accordance with
Owner's maintenance procedures and Owner's Maintenance
Logs will be kept. The chief technician will be
available to respond to Equipment failures through
beeper or cellular telephone in order to quickly repair
the Equipment and maximize Usage. Owner will be
contacted whenever inoperative Equipment cannot be
quickly repaired by the Operator's staff.
3. Signage: Operator will provide identity signage for the site; the
design will be provided by the Owner.
4. Electronic
Data Line: Operator will provide electronic access through a
broadband data line (T1, DSL, cable, or equivalent with
384 KB/sec both ways and a static IP address) approved
by Owner's engineering department for monitoring and
servicing the Equipment.
5. Financial
Information: Supporting financial information as required.
Item # TERMS & PERFORMANCE EXPECTATIONS
1. Third Party
Financing: Owner will arrange its financing with the company,
Equipment Capital Consulting Inc. Agreement is subject
to credit application and approval by Equipment Capital
Consulting.
2. Term: Commencing upon completion of installation and
terminating in 3 years. Extendable by agreement of Owner
and Operator.
3. Location of
Installation: TBD
4. Insurance Value
of Equipment: Owner to carry equipment loss coverage of
$360,000 during the term of agreement.
5. Cost of
Installation
and Removal: Operator to pay for crating and shipping of equipment
and transportation, accommodations and associated
expenses for all of Owner's installers. Other costs may
include walls, spectator walls, electrical systems,
HVAC, data lines and phone lines, permits, installation
labor and incidentals. Owner to bear all costs of
removing and shipping Equipment at end of term.
6. Sponsorship: Future sponsorships arranged by Operator or Owner must
be agreed upon in writing by both parties, and NASCAR.
NASCAR to receive up to 20% of income with the balance
to be shared 50/50 between Owner and Operator.
7. Hours of
Operation: Whenever the business is open.
8. Annual Hours
of Operation: TBD
9. Rides Per Hour: 7 to 10
10. Price Per Ride: Initial pricing to be US$8.00 or amount mutually
acceptable (adjustable ongoing with the consent of both
parties).
11. Usage: Each time Equipment is used, engaged or operated.
12. Gross Revenue
Defined: Total Usage x Price per Ride plus additional revenue
for Passenger Sales (net of all taxes).
13. Comps, Demos,
and Technician
Rides: Usage for which no charge is paid by the customer.
14. Permitted Comps,
Demos, and
Technician
Rides: Actual Comps, Demos, and Technician Rides in such month
but in no event more than 5% of total Usage for
such month. Operator to keep log and submit monthly.
15. Coupons: Printed discount offers to be submitted to Owner
monthly.
16. Adjusted Gross
Revenue
Defined: Gross Revenue minus Coupons.
17. Software License
Amount Defined: 4% of total Usage for each month paid "off
the top" to Owner to assist in payment of NASCAR and
track license fees.
18. Adjusted Gross
Revenue
Defined: Gross Revenue minus Software License Amount.
19. Percentage
Adjusted Gross
Revenue Split: 50% to Operator 50% to Owner.
20. Minimum Annual
Payment: Operator will make its $25,000 per simulator minimum
annual payments to Equipment Capital Consulting or its
designee on a monthly basis ($16,667 per month for a
$200,000 annual amount). Amounts above the minimum will
be paid to Owner on a monthly basis. Operator to make
payment within 7 days following close of month.
Item # SUMMARY OF STANDARD TERMS
1. Determination of
Usage: Owner to take computer meter reading each month,
account for free Rides, License Amount, Passenger Rides,
special offers and coupons, taxes, and license fees and
compute and prepare request for payment for the
Operator.
2. Permits: Operator will be responsible for obtaining any
municipal, county, state or special district permits.
3. Operator's
Warranties
and Covenants: Operator understands the terms and has the power to
enter into the agreement. All taxes, assessments,
permits, and fees will be the sole responsibility of the
Operator.
4. Representations
and Warranties by
Owner to
Operator: Equipment is fully warranted for a one-year period.
Subsequently, the cost of repair parts is shared equally
by both parties.
5. Ownership and
Title: Equipment shall remain Owner's personal property.
Equipment to be clearly labeled as property of Perfect
Line, Inc.
6. Maintenance: Operator to provide routine maintenance.
7. Insurance: Owner to carry standard product liability naming
Operator. Operator to carry standard operating, general
liability, equipment loss and damage insurance naming
Owner (including NASCAR and third party NASCAR
Licensees).
8. Indemnification: See Standard Terms.
9. Default: See Standard Terms.
10. Remedies: See Standard Terms.
11. Notices: See Standard Terms.
12. Assignment: Operator may not assign without prior written consent of
Owner.
13. Force Majeure: See Standard Terms.
14. Governing Law: Indiana will be the governing law. See Standard Terms.
15. Confidentiality: Both parties agree to keep the other party's business
and proprietary information confidential.
The foregoing Basic Terms has been previously agreed upon in principal by both
parties is provided for the convenience of reference of the parties and to help
insure consistency between the Basic Terms and the balance of this Agreement. In
the event of any conflict or inconsistency between the Basic Terms and any other
terms and conditions contained in the Basic Terms, on the one hand, and the
specific terms and conditions contained in the remainder of this Agreement, on
the other hand, the specific terms and conditions contained in the remainder of
this Agreement shall govern and control.
ARTICLE II
TERMS AND CONDITIONS; PAYMENTS
Section 2.1 TERMS AND CONDITIONS. Operator hereby agrees to rent from
Owner on a revenue-share basis (i) the equipment identified in the Equipment
Schedule(s) executed by Owner and Operator and forming a part hereof (the
"Equipment") and (ii) all operating and data software and related technology
created by or on behalf of Owner or any of its affiliates associated with the
operation of such Equipment as described in the Equipment Schedule(s) (the
"Software", together with the Equipment, collectively the "Equipment"), and for
installation at Operator's facility commonly known as _____________ (the
"Premises"). Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Basic Terms.
Section 2.2 EQUIPMENT.
(a) Operator and Owner will agree on a location for the Equipment
within the Premises;
(b) (i) Owner may inspect the Premises and the chosen location for the
Equipment to determine if it meets the specifications established by Owner
dealing with, but not limited to, floor space, ceiling height, floor loading,
electrical capacity, availability and access to the site for crates containing
Equipment components of the size and weight specified by Owner; (ii) Copies of
architectural drawings may be required by Owner (electronic, if possible) of
areas within the facility where attraction is to be installed; (iii) Buyer must
assure an ambient light level for the Race Car Systems of no more than 1
foot-candle of stray light on the screens and no visible shadows; (iv) Theming
designs must be in consultation with and approved by Owner. (v) Owner will
recommend site improvements to meet its specifications for installation, and
will provide standard installation supervision. Operator to compensate Owner for
cost of packing and shipping of Equipment, and travel and lodging for its
technical personnel; cost of packing and shipping of Equipment at end of term to
be borne by Owner; (vi) in conjunction with installation supervision, Owner will
provide training for key Operator personnel in the operation and maintenance of
the Equipment, (vii) Operator, at its own expense and prior to delivery of the
Equipment, will complete such reasonable improvements and will insure that the
Location is fully ready when Owner is ready to begin installation of the
Equipment; (viii) Operator will make the Premises and the Location available to
Owner's installation and set-up personnel twenty-four (24) hours per day, seven
(7) days per week during installation and set-up; and (ix) Operator will
reimburse Owner for any additional personnel or other costs incurred by Owner
which are the result of Operator's failure to comply with the terms and
conditions contained in this Section 2.2;
(c) Operator will provide installation labor and support in accordance
with requirements specified by Owner in addition to operations requirements
(including staff, tickets, electrical and HVAC). Operator will perform ongoing
regular maintenance in accordance with Owner's published maintenance standards
and requirements such that at the end of the Term (or earlier as provided
herein) the Equipment will be returned to Owner in the same condition as when
delivered, ordinary wear and tear excepted, and will appoint a qualified senior
maintenance operations technician on the Premises to assume responsibility for
the ongoing operation and quality control of the Equipment and to train
Operator's operations staff in the safe and proper operation of the Equipment;
(d) Operator will provide electronic access through a broadband data
line (T1, DSL, cable, or equivalent with 384 KB/sec both ways and a static IP
address) as approved by Owner's engineering department, for the purpose of
monitoring and servicing the Equipment, and will record on a daily basis (i) in
a Maintenance Log all rides undertaken for maintenance purposes and (ii) in an
Operations Log all complimentary and other non-paying or discounted rides,
number of Passenger Rides and revenue from Passenger Rides and will provide
copies of such Logs to Owner monthly;
(e) The Equipment may not be relocated within the Premises, will be
available for operation with a full time attendant at all times when the
Premises are open for business, and at all times will be illuminated and
otherwise displayed between rides;
(f) Upon delivery and installation of the Equipment, Operator shall
promptly inspect the Equipment and, if acceptable, Operator shall execute and
deliver to Owner a Certificate of Acceptance in the form of Exhibit A hereto;
(g) The revenue-share lease term for the Equipment shall commence (the
"Schedule Commencement Date") on the date that the Certificate of Acceptance is
executed by Operator and delivered to Owner.
(h) The Equipment as delivered to Operator will have affixed to it a
durable label identifying the Equipment as the property of Owner, and Operator
agrees not to remove, obliterate or cover such label, and will keep the
Equipment free from liens;
Section 2.3 LICENSE. Owner warrants that they hold the exclusive
license with the National Association for Stock Car Racing ("NASCAR") for
operator-assisted, location-based entertainment. Owner also warrants it has
license agreements with the race tracks it has modeled and many of the current
racing teams that compete in what will be known in 2004 as the Nextel Cup. For
the purposes of this agreement those various license agreements are referred to
as the "NASCAR Licensees".
Owner does not have "pass-through" rights to the NASCAR Silicon Motor
Speedway name and/or logo ("NASCAR Logo"), or to any third party NASCAR
Licensees. Any and all use by Operator, or any affiliate or representative of
Operator, of the NASCAR logo, including but not limited to sales promotion and
advertising of the racing experience, is subject to the approval of Owner and
NASCAR. The same approval policy applies to use of any NASCAR Licensee as
defined herein. If Operator for any reason causes a breach in any of Owner's
NASCAR Licensees and does not cure the breach in a timely manner acceptable to
NASCAR Licensee, Operator agrees that Owner will have the right to remove all
NASCAR Licensee marks from the experience and Owner will download a generic
version of the race software.
Section 2.4 TERM. The term of this agreement shall commence on the
applicable Schedule Commencement Date and, unless otherwise terminated earlier
in accordance with the terms hereof, shall expire as set forth in "Term" in the
Basic Terms (as such date may be extended from time to time pursuant to this
Section 2.2, hereinafter the "Schedule Expiration Date"). Upon expiration of the
Agreement, Operator agrees to accept and pay a separate billing for all damaged
and missing Equipment, including any components and peripheral parts. The
Equipment shall be returned to Owner in the same condition as when received,
excepting only reasonable wear and tear; provided that prior to removal,
Operator will inspect and note all defects and damage which do not constitute
reasonable wear and tear and Operator will reimburse Owner for the cost or
repairing same.
Section 2.5 THIRD PARTY FINANCING AND PAYMENTS.
(a) Third Party Financing. Subject to credit application and
approval of Operator by the company, Equipment Capital Consulting located in San
Juan Capistrano, CA, Owner will arrange its financing with said company.
(b) Minimum Annual Payments. Operator agrees to make payments
directly to Equipment Capital Consulting or its designee and that the sum of the
annual payments will be equal to $100,000.
(c) Payments to Owner. As generated by the formula in "Terms &
Performance Expectations" in "Basic Terms", amounts above the minimum monthly
payments to Equipment Capital Consulting or its designee will be paid to Owner
on a monthly basis.
(d) Payments Generally. Operator agrees to make payments
within seven days following the end of each month (each, a "Payment Date"). In
the event that a Payment Date falls on a Saturday or Sunday, payment shall be
made on the next succeeding business day. The obligation to make payments shall
commence on the applicable Schedule Commencement Date. Unless Owner gives
written notice of a new address, all overage payments under this Agreement shall
be sent to Owner at Owner's address provided herein. Operator agrees that time
is of the essence, and to make all payments regardless of any problems Operator
might have with the Equipment, including operation, capability, installation, or
repair, and regardless of any claim, setoff, counterclaim or defense Operator
might have against Owner or any other supplier of components of the Equipment
(each, a "SUPPLIER"), and any salesperson or other third party. In the event
Operator fails to pay any amounts due hereunder or to perform any of its other
obligations under this Agreement, Owner may, at its option, pay such amounts or
perform such obligations, and Operator shall reimburse Owner the amount of such
payment or cost of such performance upon demand, together with interest pursuant
to Section 7.3 hereof. Without Owner's prior written consent, any payment to
Owner of a smaller sum than due at any time under this Agreement shall not
constitute a release or an accord and satisfaction for any greater sum due, or
to become due, regardless of any endorsement restriction, unless otherwise
agreed by Owner and Operator in a signed writing.
Section 2.6 DETERMINATION OF USAGE; OWNER'S AUDIT RIGHT. Owner and
Operator hereby agree that on the first business day of each calendar month
Owner shall note and report (take a "Meter Reading") from the computer meter
system installed in each Race Car System for the purpose of determining the
amount of Usage of such unit during the immediately preceding month. Operator to
provide a log showing all free Rides (Comps, Demos, and Technician Rides) in
such month but in no event more than 5% of total Usage for such month. Operator
will also provide an accounting of the number and revenue for all non-driving
guests ("Passenger Rides") and any mutually agreed upon special offers and
coupons. Owner will compute Usage and Revenue Share due Owner per the Basic
Terms and prepare a request for payment for Operator.
Section 2.7 TAXES, ASSESSMENTS AND FEES. Operator agrees to pay all
licensing, filing and registration fees; to keep the Equipment free of all liens
and encumbrances; TO SHOW THE RIDES AS "RENTAL PROPERTY" ON ALL TAX RETURNS; to
pay all other taxes, assessments, fees and penalties which may be levied or
assessed in respect to the Equipment, Operator's use of or any interest therein,
or any payments, including, but not limited to, all federal, state, and local
taxes, however designated, levied or assessed, whether upon Operator or Owner or
the Equipment or upon sale, ownership, use or operation, excepting only income
taxes levied on Owner. Owner may, at its option, pay on Operator's behalf such
taxes and other amounts, file applicable returns, and collect full reimbursement
plus reasonable costs incurred in collecting taxes, assessments, or fees for
which Operator is liable.
Section 2.8 PERMITS. Operator will be responsible for obtaining any
municipal, county, state or special district permits that relate to the
installation or operation of the Equipment, and not later than ten days
following Operator's execution of this Agreement, Operator will provide Owner
with a detailed list of all documents that Operator, on the basis of diligent
inquiry, believes that will be necessary or advisable for Owner to provide to
enable Operator to obtain such licenses and permits, and thereafter will
promptly notify Owner of any additions to, deletions from, or other
modifications of such list.
ARTICLE III
WARRANTIES AND COVENANTS
Section 3.1 OPERATOR'S WARRANTIES AND COVENANTS. Operator represents,
warrants, and covenants upon execution of this Agreement that: a) Operator has
read and understood each part of this Agreement before it is signed; b) Operator
selected the Equipment, and once such Equipment is installed, tested and
Operator's staff is trained and the Equipment has been demonstrated to the
satisfaction of Operator to be proper working order, Operator shall execute and
deliver a Certificate of Acceptance confirming same; c) financial information
and other statements provided to Owner are accurate and complete and will be
updated consistent with past practices upon Owner's request during the term
hereof; d) Operator has unrestricted power to enter into this Agreement, has
duly authorized the person executing it, and certifies that all signatures are
authentic; e) Operator will pay all costs, fees and non-maintenance expenses
connected with the operation of the Equipment, including taxes, insurance,
licenses and permits, and, to the extent Owner pays any of the same, will
reimburse Owner therefor promptly upon demand; and f) Operator shall not be
entitled to use any Software other than in connection with, and as part the
Equipment related to such Software as set forth in Article I applicable to such
Equipment.
ARTICLE IV
QUIET ENJOYMENT
Section 4.1 QUIET ENJOYMENT. So long as no Event of Default (as defined
below) exists, Owner shall not interfere with Operator's quiet enjoyment and use
of the Equipment during the Term. In no case shall Owner be liable to Operator
for special indirect, incidental, consequential or punitive damages. To the
extent permitted by applicable law, Operator hereby waives Operator's rights to:
1) claim a security interest in the Equipment; 2) accept partial delivery of the
Equipment; 3) sell or dispose of the Equipment upon rejection or revocation.
Section 4.2 REPRESENTATIONS AND WARRANTIES BY OWNER TO OPERATOR. Owner
warrants to Operator and its customers that all Equipment (i) shall conform to
the designs, product specifications and performance criteria mutually agreed by
the parties, and (ii) shall be free from defects in title, material or
workmanship for a period of one (1) year after the date the Certificate of
Acceptance is signed by Operator for such Equipment; provided, however, that any
components or subassemblies that carry a separate and assignable manufacturer's,
distributor's or other warranty (each a "Third Party Warranty") shall be
excluded from the warranty given by Owner hereunder and shall be covered only by
such Third-Party Warranty, any and all of which are hereby assigned by Owner
jointly to Owner and Operator to the extent permissible thereunder; and provided
further that Owner's responsibility under this warranty shall be limited to
replacement or repair of the defective products at Owner's facilities in
Indianapolis, Indiana or any other facility designated by Owner. After the
one-year warranty period has expired, both parties agree to share equally in the
cost of shipping and repair parts for all non-routine maintenance. Owner will
continue to assume all costs for labor for such maintenance. A list of all Third
Party Warranties shall be provided by Owner to Operator upon execution of this
Agreement. In no event shall Owner be liable for consequential damages,
including loss of profits or revenues, arising out of the failure of any
Equipment or component part thereof. The warranty given hereunder does not cover
normal wear and tear, or damages resulting from operator abuse. The foregoing
limited warranty is in lieu of all other warranties of Owner and Owner disclaims
all other warranties of the Equipment, express or implied, including, but not
limited to, any implied warranty of merchantability, profitability, fitness or
adequacy for any particular purpose or use.
ARTICLE V
OWNERSHIP AND TITLE; OPERATION; MAINTENANCE; AND INSURANCE
Section 5.1 OWNERSHIP AND TITLE. Owner is the sole owner of the
Equipment and has a valid license to use the Software. Owner has all residual
rights, has the right to inspect the Equipment, and has the right to affix and
display notice of Owner's ownership thereon. The Equipment shall remain Owner's
personal property whether or not affixed to Equipment and shall not be part of
any real property on which it is placed. At Owner's request, Operator shall
obtain a landlord and/or mortgagee waiver for the Equipment. To the extent that
Operator breaches its obligations under Section 5.5 hereof and attaches any
additions, attachments or accessories to the Equipment, (i) such breach shall
constitute an Event of Default hereunder, and (ii) all such additions,
attachments, and accessories placed on such Equipment shall become part of the
Equipment and Owner's property. Copyrighted materials and materials subject to
other intellectual property rights may be used only in accordance with the terms
of the license relating thereto. Operator authorizes Owner to file at Owner's
option informational financing statements and/or fixture filings without
Operator's signature and, if a signature is required by law, Operator appoints
Owner as Operator's attorney-in-fact to execute such statements and filings. For
the purpose of enabling Owner to maintain all such filings as current and
accurate, in the event Operator proposes to change its name or state of
incorporation or organization, Operator agrees to notify Owner of such proposed
change at least thirty (30) days prior to undertaking any such action.
Section 5.2 OPERATION. Operator shall be solely responsible for the
operation of and shall use and operate the Equipment in compliance with
applicable laws. Except as otherwise permitted hereunder, Operator agrees to
keep and use the Equipment only at the business address identified in writing by
Operator to Owner, to never abandon the Equipment, and to never relinquish
possession of the Equipment except to Owner.
Section 5.3 MAINTENANCE OF THE EQUIPMENT. Operator hereby acknowledges
and agrees that Owner shall not in any way be responsible for any routine
maintenance or servicing of the Equipment. Operator understands and agrees that,
except as otherwise provided herein, ordinary daily service and maintenance,
including cleaning of the Equipment and other daily adjustments will be provided
by Operator, and that any non-routine maintenance, servicing and/or repairs
shall be undertaken exclusively by Owner, either as part of Owner's warranty
obligations or outside of warranty at Owner's then current prices. Operator
shall have at least one trained technician on staff at all times during the term
of this Agreement. Operator's maintenance personnel will be trained and
certified on site by Owner during installation. Upon successful installation of
the Equipment, training of new staff shall be conducted by Operator at
Operator's facility. No repairs or adjustments are to be performed by any
technician or individual who is not (a) certified by Owner and (b) employed by
the Operator, without permission of Owner. Operator shall report all maintenance
related issues to Owner within twenty-four (24) hours of their occurrence, and
if Operator is unable to operate the Equipment, to promptly report to Owner.
Operator hereby agrees to permit access (or cause its landlord, if applicable,
to permit access) during ordinary business hours to Owner to permit Owner to
undertake the performance of such servicing and maintenance obligations.
Section 5.4 RISK OF LOSS AND INSURANCE. Commencing on the date
Equipment is delivered to Operator and properly installed to Operator's
reasonable satisfaction and continuing until the Equipment have been removed
from Operator's location, Operator will bear the entire risk of loss or damage
to the Equipment, regardless how arising. Operator shall immediately notify
Owner of the occurrence of any loss or other event or circumstance affecting
Owner's interests and shall, in the case of any damage to the Equipment, repair
or replace the Equipment at Operator's expense. Operator agrees to keep the
Equipment insured at Operator's expense against risks of loss or damage from any
cause whatsoever. Operator agrees that such insurance shall not be less than the
replacement value of the Equipment. Operator also agrees that the insurance
shall be in such additional amount as is reasonable to cover Owner for public
liability and property damage arising from the Equipment or their use. Operator
agrees to name Owner (and NASCAR and third party NASCAR Licensees) as a loss
payee and an additional insured on all such insurance. Each policy shall provide
that the insurance cannot be canceled without thirty (30) days prior written
notice to Owner, and cannot be invalidated with respect to Owner's interest by
acts or omissions of Operator. Operator agrees to furnish to Owner proof of
insurance, by a certificate of insurance. In the event Operator fails to provide
Owner with evidence of the aforesaid insurance, Owner may in its sole discretion
purchase insurance at Operator's expense to protect Owner's interests in the
Equipment. This insurance may, but need not, protect Operator's interests. The
coverage purchased by Owner may not pay any claim made by Operator or any claim
that is made against Operator in connection with the Equipment. If Owner
purchases insurance for the Equipment, Operator will be responsible for the
costs of that insurance, including interest and other charges imposed by Owner
in connection with the placement of the insurance, until the effective date of
the cancellation or expiration of the insurance. The costs of the insurance may
be added to Operator's obligations hereunder. The costs of the insurance may be
more than the cost of insurance Operator is able to obtain on its own. The
proceeds of insurance shall be applied at Owner's sole election toward the
replacement or repair of the Equipment or payment towards Operator's
obligations. If there has been an Event of Default, Operator appoints Owner as
attorney-in-fact to make any claim for, receive payment of, or execute or
endorse all documents, checks or drafts for loss or damage or return of premium
under such insurance. If Operator breaches its obligation to provide insurance
in accordance with this Section 5.4, such breach shall constitute an Event of
Default hereunder, and in addition to such Event of Default, Operator shall be
obligated to pay to Owner each month a risk charge stipulated and liquidated at
..25% of Owner's original cost of such Equipment until Operator provides proof of
compliance with insurance requirements. In spite of the payment of such risk
charge, Operator has no right or claim to any insurance benefits from Owner.
Operator is still liable for all losses, and such risk charge is not in lieu of
the insurance requirements of this Agreement.
Section 5.5 NO ALTERATIONS, MODIFICATIONS OR ADDITIONS TO EQUIPMENT.
Unless otherwise agreed to between Owner and Operator, Operator shall not in any
way alter or modify in any respect the Equipment and shall not attach thereto
any additions, attachments or accessories.
Section 5.6 SIMILAR ATTRACTIONS. Operator agrees that no other
full-body race car simulators with motion base will be placed at the Premises
during the entire term of this Agreement.
ARTICLE VI
INDEMNIFICATION
Section 6.1 INDEMNITY. Operator agrees to indemnify, defend and hold
Owner (and NASCAR Licensees) harmless from and against, the unauthorized use of
the NASCAR or NASCAR Licensee Marks or Trade Dress or any breach by Buyer of
this Agreement, any and all damages (including special, indirect, incidental and
consequential damages), liabilities (including liabilities for death and
personal injury), penalties, claims, and expenses, including any and all
attorney's fees and legal expenses, arising from or caused directly or
indirectly by any actual or alleged use, selection, possession, maintenance,
condition (whether or not latent or discoverable), operation or location of the
Equipment.
Owner agrees to indemnify, hold harmless and defend Operator and its
officers, directors, employees, agents, contractors, suppliers, representatives,
advisors, successors and assigns, and any and all visitors and others permitted
access to the Equipment ("Operator Indemnitees") from any and all liabilities,
obligations, losses, damages, penalties, claims, actions suits, costs,
disbursements, and expenses (including reasonable legal and expert witness fees,
costs and related expenses) of every kind and nature imposed upon, incurred by
or asserted against Operator, Operator's officers, directors, employees, agents,
contractors, suppliers, representatives, advisors, successors, assigns and any
and all visitors by reason of (i) any negligent act, error, or omission of
Owner, its officers, directors, agents, subcontractors, invitees or employees,
(ii) any intentional act or willful misconduct of Owner, its officers,
directors, agents, subcontractors, invitees or employees, (iii) any occupational
injury or illness sustained by an employee or agent of Owner in furtherance of
Owner's obligations hereunder, (v) any other failure of Owner to comply with the
obligations on its part to be performed hereunder.
Owner agrees to indemnify, hold harmless and the Operator Indemnitees
from and against all claims, demands, causes of action, losses, costs and
expenses (including, without limitation, reasonable legal and expert witness
fees, costs and related expenses) arising out of or incident to any liability,
demand, lawsuit, or claim alleging or asserting in whole or in part the
negligence or fault of Owner in the design, testing, development or manufacture
of any equipment, software, unit or parts therefore, or claims, demands, or
lawsuits that, with respect to any equipment, software, Unit or any parts
thereof, allege product liability, strict product liability, or any variation
thereof.
The provisions of this Section 6.1 shall survive the expiration or
other termination of this Agreement.
ARTICLE VII
DEFAULT; REMEDIES; MITIGATION; AND COSTS OF COLLECTION
Section 7.1 DEFAULT. Operator shall be in default of this Agreement
upon the occurrence of any of the following events (an "Event of Default"): a)
Operator fails to pay any amount due hereunder when due; (b) Operator assigns,
moves, pledges, subleases, sells or relinquishes possession of the Equipment, or
attempts to do so, without Owner's prior written consent, which consent will not
be unreasonably withheld; c) Operator breaches any of its warranties, covenants
or other obligations under this Agreement, or any other agreement with Owner,
and fails to cure such breach within ten (10) days after Owner sends notice of
the existence of such breach; d) Operator or any guarantor dies, becomes
insolvent or unable to pay debts when due; stops doing business as a going
concern; merges, consolidates, transfers all or substantially all of its assets;
makes an assignment for the benefit of creditors, appoints a trustee or receiver
or undergoes a substantial deterioration of financial health; or e) Operator or
any guarantor fails to assume or reaffirm this Agreement obligation within sixty
(60) days of the filing of any petition for protection under the United States
Bankruptcy Code.
7.2 REMEDIES. Upon the occurrence of any Event of Default, Owner has
the right to retake possession of the Equipment without court order or other
process of law, and for such purpose may enter upon any premises where the
Equipment may be, remove the same, with Operator being liable for all reasonable
costs and expenses incurred in the repossession, recovery or repair, of the
Equipment. The provisions of this Agreement are severable and shall not be
affected or impaired if any provision is held unenforceable, invalid, or
illegal. Any provisions held in conflict with any statute or rule of law shall
be deemed inoperative only to the extent of such conflict and shall be modified
to the extent possible to conform with such statute or rule. At any time, Vendor
and/or any of its third party licensors have the right to withdraw the NASCAR
logo and/or NASCAR Licensees from use by Buyer. In such an event, Buyer agrees
to immediately cease any use of the third party licenses, and Vendor agrees to
install software that contains generic tracks and race teams, and makes no
reference to NASCAR.
7.3 COLLECTION CHARGES AND ATTORNEY'S FEES. If any part of any sum is
not paid when due, Operator agrees to pay Owner: a) a charge for every month in
which the sum is late to compensate Owner for the inability to reinvest the sum,
stipulated and liquidated at 1.2% per month; plus b) all costs of collection,
including collectors' contingency fees, Owner's reasonable attorney fees as
damages and not costs in all proceedings arising under this Agreement, including
any arbitration, bankruptcy proceeding, civil action, mediation, counterclaim or
post-judgment action or appeal with respect to any of the foregoing; plus c) a
returned-check or non-sufficient funds ("NSF") charge to reimburse Owner for its
time and expense incurred with respect to a check that is returned for any
reason, stipulated and liquidated at the greater of $50 or actual bank charges
to Owner, plus other amounts allowed by law.
ARTICLE VIII
MISCELLANEOUS
8.1 NOTICE. Any notices required to be given hereunder shall be given
in writing by either (a) hand delivery, (b) overnight courier, (c) certified
mail, or (d) facsimile, and directed to the address of each party set forth in
this Agreement below its signature or to such other address as either party may
substitute by written notice from time to time. In any legal action, Operator
waives personal service and agrees to service of process by certified or
registered mail, return receipt requested, postage prepaid, at Operator's
address for notice purposes, which service shall be deemed complete five (5)
days after posting.
8.2 SUCCESSORS AND ASSIGNMENTS. OPERATOR AGREES NOT TO TRANSFER, SELL,
SUBLEASE, OR ENCUMBER EITHER THE EQUIPMENT OR ANY RIGHTS UNDER THIS AGREEMENT
WITHOUT THE PRIOR WRITTEN CONSENT OF OWNER, which consent will not be
unreasonably withheld. Even with Owner's consent, Operator shall remain jointly
and severally liable with any assignee. In all cases, the provisions of this
Agreement bind all heirs, executors, administrators, successors, trustees, and
assigns of Operator. Owner may, at its option, assign its rights and interests
at any time under this agreement without notice. Operator agrees that Owner's
assigns will have the same rights and remedies as Owner. Operator stipulates
that any such assignment by Owner shall not materially change Operator's duties,
obligations or risks under this Agreement.
8.3 CONSENT TO INDIANA LAW, JURISDICTION, VENUE, AND NON-JURY TRIAL.
Operator consents, agrees, and stipulates that: a) this Agreement shall be
deemed fully executed and performed in the State of Indiana and shall be
governed by and construed in accordance with the laws thereof; and b) in any
action, proceeding, or appeal on any matter related to or arising out of this
Agreement, Owner and Operator 1) SHALL BE SUBJECT TO THE PERSONAL JURISDICTION
OF THE COURTS OF THE ABOVE STATE, including any state or federal court sitting
therein, and all court rules therefrom; and 2) SHALL ACCEPT VENUE IN ANY FEDERAL
OR STATE COURT IN THE COUNTY OF OWNER'S OFFICE. OWNER AND OPERATOR EXPRESSLY
WAIVE ANY RIGHT TO A TRIAL BY JURY.
8.4 FORCE MAJUERE.
Except for obligations to make payment, neither party shall be liable to the
other for any failure of (or delay in performance of) its obligations hereunder
due to any cause or circumstance which is beyond its reasonable control
including, but without limiting the generality of the foregoing, any failure or
delay caused by strike, lockout, labor shortage, unavailability of personnel,
fire, explosion, shipwreck, act of God or the public enemy, war, riot,
interference by the military or governmental authorities, or compliance with the
laws of the United States or with the laws or orders of any other government
authority. In the event such condition shall extend for a continuous period of
six months both parties shall meet and agree upon appropriate fair and equitable
action to safeguard the respective interests of the parties and to make
restitution where reasonable.
8.5 CONFIDENTIALITY. Each party hereto agrees that it will not disclose
any proprietary or confidential information of either or both of the other
parties hereto ("Confidential Information") that may be provided to it hereunder
or of which it may become aware as a consequence hereof, the fact that such
Confidential Information has been made available, any of the terms, conditions
or other facts relating to this Agreement, including the existence hereof, the
identities of the parties hereto, or that any Confidential Information has been
or will be made available; provided, however, that nothing contained herein
shall preclude any party from disclosing such Confidential Information to its
directors, officers, employees, and professional advisors on a need-to-know
basis (it being understood and agreed that such persons shall in all instances
be informed of the confidential nature of such Confidential Information and
shall be directed to treat such Confidential Information confidentially); and
provided, further, that the term "Confidential Information" shall not include
information which (i) is already in a party's possession independent of this
Agreement and its dealings in connection herewith, provided that such
information is not known by such party to be subject to another confidentiality
agreement with, or other obligations of secrecy to, any other party; (ii) is or
becomes generally available to the public other than as a result of a direct or
indirect disclosure by a party hereto; (iii) becomes available to a party on a
non-confidential basis from a source other than another party hereto, provided
that such source is not known by the receiving party to be bound by a
confidentiality agreement with, or other obligation of secrecy to, such other
parties; or (iv) is independently developed by a party without uses of the
Confidential Information; and provided further that nothing herein shall prevent
a party from complying with applicable laws, rules or regulations or from
complying with any order of any court or other tribunal of competent
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective as of the date first written above.
PERFECT LINE, INC. OPERATOR
By: _______________________ By: ____________________________
Name: Xxxxxxx X. Xxxxxxxxx Name: ________________________
Title: Chairman & CEO Title: ________________________
Address for Notices Address for Notices
0000 Xxxx 00xx Xxxxxx ______________________________
Xxxxxxxxxxxx, XX 00000 ______________________________
Attn: Xx. Xxxxxxx X. Xxxxxxxxx Attn: _________________________
Fax: 000-000-0000 Fax: _____________
Phone: 000-000-0000 Phone: ___________
EXHIBIT A
CERTIFICATE OF ACCEPTANCE
Reference is made to Master Revenue Sharing Agreement, dated as of
_________, 2004 (together with the Agreement, Schedule, the "Master Agreement"),
by and among ____________ ("Operator") and Perfect Line, Inc., an Indiana
corporation. All terms used herein and not defied herein shall be defined
pursuant to the requirements of the Master Agreement.
The undersigned hereby certifies that all of the Equipment and Software
referred to below has been delivered, that all installation or other work
necessary prior to the use thereof has been completed, that the Equipment has
been examined by Operator and are in good operating order and condition and are
in all respects satisfactory to Operator, and that the Equipment is accepted by
Operator for all purposes under this Master Agreement.
DESCRIPTION OF EQUIPMENT
Hardware Description: 4 Race Car Systems complete with all equipment, motion
base, projectors, screen, spectator monitor system, and
sound. Also included is a "Race Results" printer,
for the printing of race results following each race.
Environs: 4 Prefabricated environs with safety rails, gates, and
projector mount. Footprint for each garage is 10' 1/4:"
wide x 13'6" deep x 10' high, plus space is
required for the attendant, training area and
spectators.
Software Description: Owner's software to include image generator, race
control, and 6 race track databases: Indianapolis Motor
Speedway, Atlanta Motor Speedway, Daytona International
Speedway, Bristol Motor Speedway, Richmond International
Raceway and Xxxx'x Motor Speedway. Special software for
the "Daytona Rookie Challenge" is also included as a
training experience for new drivers.
Equipment Serial
Numbers:
IN WITNESS WHEREOF, Operator has duly executed and delivered this
Certificate of Acceptance as of this day of , 2004.
Operator
By: _________________________________
Name: ________________________
Title: __________________
