[LETTERHEAD OF NASCAR]
EXHIBIT 10.37
Date Received ____________________
Sanction No. ____________________
NASCAR OFFICIAL __________________
MEMPHIS "200" - September 13, 1998
SANCTION APPLICATION AND AGREEMENT FORM
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NASCAR CRAFTSMAN TRUCK SERIES
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INSTRUCTIONS:
(1) All NASCAR Craftsman Truck Series Championship Events for which
PROMOTER seeks a NASCAR sanction must be listed in a single application form.
Please sign the original and forward to NASCAR; upon acceptance and approval by
NASCAR, a copy will be returned to the PROMOTER.
(2) "PROMOTER" means the individual, partnership, corporation, joint
venture or other entity that, in connection with the Event (as defined below),
is ultimately responsible (financially and otherwise) for the organization and
promotion of the Event and the facility at which the Event is to be run. If two
or more entities are acting together in such capacity, all such entities should
be listed as "PROMOTER" and the authorized officer of each should sign this
form.
(3) This form when signed by the PROMOTER is only an application for a
NASCAR sanction. NASCAR is under no obligation to accept or approve the
application. Upon being accepted and approved in writing by NASCAR, this form
becomes an agreement binding on both parties.
(4) Application for a NASCAR Craftsman Truck Series Championship Event must
be received at NASCAR no later than ten business days after the PROMOTER
receives this form from NASCAR.
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The undersigned PROMOTER, designated below, applies to the National
Association for Stock Car Auto Racing, Inc. ("NASCAR") for a NASCAR sanction to
organize and promote a NASCAR-sanctioned NASCAR Craftsman Truck Series
Championship Event(s) in accordance with the terms and conditions set forth
hereafter, as follows:
EVENT NUMBER 1
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PROMOTER: Memphis International Motorsports Corporation
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ADDRESS: c/o GPALB, 3000 Pacific Long Beach CA 90806
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(STREET) (CITY) (STATE) (ZIP)
NAME OF EVENT: MEMPHIS "200"
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TRACK: Memphis Motorsports Park
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LOCATION: Millington, TN TELEPHONE #: (000)000-0000
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(CITY & STATE)
TRACK LENGTH: 3/4 Mile, Paved EVENT DISTANCE: 200 LAPS (150 Miles)
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DATE OF EVENT: September 13, 1998 STARTING TIME: TBD
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POSTPONED DATE: Next Raceable Day
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TIME TRIAL DATE(S) AND HOURS: PRACTICE DATE(S) AND HOURS:
Per Entry Blank Per Entry Blank
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REGISTRATION & INSPECTION - Per Entry Blank
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MINIMUM PROMOTER'S PURSE
AND POINT FUND TOTAL
(See Exhibit 2): $ * SANCTION FEE: $ *
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PAYMENT DATE 12 Noon on INSURANCE NOTIFICATION DATE
(See Exhibit 1, Para. 19):September 2, 1998 (See Exhibit 1, Para. 20):
September 2, 1998
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Sanction Application and Agreement Form
Page 2 of 3
* Indicates certain Confidential Information has been omitted. The Confidential
Information has been filed separately with the Securities and Exchange
Commission.
Upon written acceptance and approval of the above application, in
consideration for the mutual promises set forth herein, NASCAR and the PROMOTER
agree as follows:
(1) NASCAR hereby grants its sanction to PROMOTER for the Event(s) listed,
and NASCAR agrees to conduct the Event(s), through its officers and designated
officials, in accordance with the NASCAR Touring Series Rule Book, as it may be
amended from time to time, any special rules that may be published by NASCAR
specifically for the Event(s), and this agreement. Interpretation and
application of the NASCAR Touring Series Rule Book, as it may be amended from
time to time, and any special rules that may be published by NASCAR specifically
for the Event(s), are committed to NASCAR's sole discretion, and are final and
unreviewable except to the extent provided in the NASCAR Touring Series Rule
Book.
(2) Exhibits 1, 2 and 3, attached hereto, are incorporated herein and made
a part of this agreement.
(3) NASCAR will retain for its own account all inspection fees.
(4) Additional Provisions:
See Exhibit 1-A, attached hereto.
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Submitted this 22nd day of October 1997
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Memphis Motorsports Park, Inc.
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(Promoter)
By: /s/ Xxxxxxxxxxx X. Xxxx President
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(an authorized officer) (title)
Witnessed By: /s/ Xxxxx X. Xxxxxxxxxx V.P./C.O.O.
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(title)
Accepted and Approved this 22nd day of October , 1997
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National Association for Stock Car Auto Racing, Inc.
By: ____________________________ __________________________
(an authorized officer) (title)
Witnessed By: __________________ __________________________
(title)
Sanction Application and Agreement Form
Page 3 of 3
EXHIBIT 1
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To Sanction Application and Agreement Form
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NASCAR and PROMOTER agree as follows:
DEFINITIONS
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(1) "Event" means the Event(s) designated in the Sanction Application
and Agreement Form, as well as all periods for registration, inspections, time
trials, practice runs, post-race inspections and postponed dates related
thereto. Whenever the word "Event" appears in the singular, it shall apply to
all Events designated on the Sanction Application and Agreement Form, unless the
context requires otherwise. All provisions in the Sanction Application and
Agreement Form and in Exhibits 1 and 2 apply to the Event(s) designated in the
Sanction Application and Agreement Form, unless the context requires otherwise.
(2) "Additional Award" as used herein includes any monetary or
non-monetary award by, or contracted through, the PROMOTER, for distribution
based upon the Event(s), other than (a) purse, (b) point fund, (c) Winner's
Circle and Plan awards, (d) television income and (e) the entry award for the
current NASCAR Craftsman Truck Series Champion. PROMOTER understands and
acknowledges that the above-listed awards may or may not be applicable to or
available in connection with the Event, and that NASCAR makes no representation
as to the availability or amounts of such awards.
(3) "Television Income", as used herein, means all monies and things of
value received by NASCAR as a result of and in connection with any television
contract(s), including but not limited to payments received from networks,
stations, packages, brokers, advertisers, advertising agencies, and the like.
"Radio Income", as used herein, means all monies and things of value received by
NASCAR as a result of and in connection with any radio contract(s), including
but not limited to payments received from networks, stations, packages, brokers,
advertisers, advertising agencies, and the like. In computing all monies and
things of value received, it is intended that the gross amount set forth in all
television and/or radio contract(s) as payable by the other contracting entity
or entities shall be included and that any applicable commissions, fees or
expenses paid to or deducted by sales agents, consultants and other parties
shall not be deducted therefrom.
(4) "Television Contract", as used herein, means any contract, agreement
or understanding, whether oral or written, entered into between NASCAR and any
other entity or entities, whether or not they are broadcasters, for the sale,
assignment or other transferral of the rights of NASCAR in the live or delayed
televised broadcast of, rebroadcast of, tape or film production of, and/or any
other use of, the Event, whether by cable TV, pay TV, theater TV, video tape
cassettes, and/or satellite transmissions, and whether local, regional, national
or worldwide. "Radio Contract", as used herein, means any contract, agreement
or understanding, whether oral or written, entered into between NASCAR and any
other entity or entities, whether or not they are broadcasters, for the sale,
assignment or other transferral of the rights of NASCAR in the live or delayed
radio broadcast of, rebroadcast of, audiotape production of, and/or any other
similar use of, the Event, whether by broadcast radio, audiotape recordings,
audiotape cassettes, and/or satellite transmissions, whether local, regional,
national or worldwide.
PROMOTER'S GENERAL OBLIGATIONS
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(5) PROMOTER warrants to NASCAR that in connection with the Event it has
sole control of the racetrack, the premises upon which the racetrack is located
and surrounding same, and all facilities thereon, that it has obtained all
necessary licenses, permits or other approvals required, and that it has full
authority to conduct the Event at the racetrack pursuant to the terms of this
agreement. PROMOTER further warrants that it will comply with all local, state
and federal laws and regulations in connection with the organization and
promotion of the Event. PROMOTER, at its expense, will make all appropriate
filings of forms or other documents as required by federal, state or local laws.
In addition, at its expense, PROMOTER shall be solely responsible for
compliance with any and all federal, state or other tax information reporting
and withholding obligations (including, but not limited to, Federal Form 1099)
in respect of the purse or other amounts payable with respect to the Event.
(6) PROMOTER at its expense assumes sole responsibility for furnishing
the racetrack, the premises upon which the racetrack is located and surrounding
same, and all facilities thereon in good repair, ready for use by competitors
and officials. PROMOTER is solely responsible and liable for the safety of such
competitors and officials while on, entering or leaving such racetrack, premises
and facilities. PROMOTER warrants that the racetrack, premises and facilities
are and will remain in a condition suitable for the conduct of the Event, and
that the racing surface of the track will not be altered, resurfaced or
otherwise substantially changed during the term of this Agreement without the
express written consent of NASCAR. PROMOTER will provide NASCAR or its
designated representative full access to the racetrack, premises and facilities
as requested by NASCAR during the term of this Agreement.
(7) If NASCAR in its sole discretion determines that the racetrack, the
premises or any facilities are in an unsatisfactory condition, PROMOTER agrees
to repair or resurface the racetrack and to repair the premises or facilities,
at PROMOTER's expense and to the satisfaction of NASCAR prior to any
NASCAR-sanctioned Event. If NASCAR in its sole discretion determines that it is
necessary to resurface the racetrack, such resurfacing shall be completed by
PROMOTER with adequate time prior to the Event to allow for tire and private
truck testing. If NASCAR in its sole discretion determines that there is
insufficient time to place the racetrack in a condition suitable for the conduct
of the Event, NASCAR in its sole discretion may postpone or cancel the Event.
(8) PROMOTER at its expense will furnish adequate facilities, personnel,
equipment and services for accommodating and controlling the public during the
Event. PROMOTER is solely responsible and liable for the safety of the public
during the Event. PROMOTER is solely responsible for the condition, actions and
operations of such facilities, personnel, equipment and services before, during
and after the Event.
(9) PROMOTER at its expense will furnish adequate facilities, support
personnel, equipment, and related security, for use by NASCAR in the performance
of NASCAR's duties, as they may be requested by NASCAR from time to time,
including but not limited to facilities for office administration, registration,
timing, scoring, truck inspection, race direction, officiating and prize money
distribution, and for use by NASCAR and any entity that has entered a television
contract and/or radio contract with NASCAR in the performance of their
respective duties pursuant to such contract. Without in any way limiting the
foregoing, PROMOTER at its expense will:
a. provide one or more television monitors, in locations to be specified
by NASCAR, with all related equipment necessary for such monitors to be
connected to video and audio equipment used by the television producer
under contract for the Event, in order to provide to NASCAR Officials live
video on such monitors and the ability to switch instantaneously its view
on the monitors among the different camera locations used by the
television producer, at all times during the Event when all or a portion
of the Event is being videotaped, broadcast, monitored and/or recorded;
b. provide NASCAR with two (2) pace vehicles, each with the NASCAR logo
(as set forth under paragraph 21 below) displayed on the side in a manner
and size which is visible to all persons on the racetrack, in the viewing
area and in all locations where NASCAR Officials are visually monitoring
the Event;
c. provide NASCAR prior to the Event with a list of the track radio
frequencies to be used for the Event, including but not limited to
frequencies to be used for maintenance, police and security personnel;
d. cooperate with NASCAR in pre-race and victory lane ceremonies, awards
presentations and photographs;
e. have readily available quantities of oil dry acceptable to NASCAR when
the track opens for practice and at all other times during the Event, and
adequate personnel to spread the oil dry at NASCAR's direction;
f. certify and recertify the scales as requested by NASCAR upon arrival
for the first day of inspection and at all other times during the Event,
and provide written certifications to the NASCAR Craftsman Truck Series
Director as to the results of the certifications;
g. provide personnel to secure the entry into the pits and garage areas
during competition periods;
h. provide personnel to secure the garage area on a continuous, 24-
hour/day basis beginning the first day the track is open for inspection
and ending when released by the NASCAR Craftsman Truck Series Director;
i. deliver to the garage area before the morning of raceday twice the
number of chairs as trucks starting in the race for use by drivers and
crew chiefs at the pre-race meeting;
j. line and number each pit with appropriate paint, line and paint
traffic lanes in the garage and garage area when and where needed, and
repaint all start/finish, scoring, third turn and re-entry cutoff lines;
k. place portable toilets along pit road and in the garage area as
directed by NASCAR;
l. coordinate with NASCAR all tours of the garage areas, including the
times, number of participants and other arrangements;
m. provide a suitable location (as determined by NASCAR) for a minimum of
one (1) large trailer containing NASCAR equipment and facilities, adequate
electricity (including without limitation 220 volts 100 amps service with
female range outlet for the NASCAR trailer), air conditioning, heat,
telephone (including a track phone extension) and water facilities as
requested by NASCAR;
n. coordinate with NASCAR to ensure that it has a minimum of ten (10)
minutes immediately before, during or after driver introductions for
NASCAR awards presentations;
o. coordinate with NASCAR to ensure that it has a reasonable period of
time immediately following the Event for victory lane ceremonies, awards
presentations and sponsor recognitions;
p. provide a control tower of adequate size with electricity, air
conditioning, heat, telephone (including a track phone extension), chairs
with cushions, a television monitor (as set forth above), water facilities
and other utilities, supplies and equipment as requested by NASCAR;
Exhibit 1 of Sanction Application and Agreement Form
Page 2 of 8
q. provide a registration facility of adequate size outside the track and
in the garage area, with electricity, air conditioning, heat, telephone
(including a track phone extension), chairs with cushions, water facilities
and other utilities, supplies and equipment as requested by NASCAR;
r. provide adequate trash receptacles in the garage and pit area and
coordinate with the NASCAR Craftsman Truck Series Director the times for
trash pick up by track personnel;
s. provide adequate personnel to sweep and clean-up the garage and pit
areas on a daily basis;
t. provide adequate parking areas, and parking passes/permits, for all
competitors (including truck owners, drivers and crew members) and NASCAR
Officials adjacent to or near the garage area;
u. provide NASCAR with a track suite, including the customary number of
admission tickets for admission to said suite, and 175 reserved grandstand
admission tickets, such tickets to be delivered to NASCAR no later than
thirty (30) day prior to the Event.
v. cooperate and coordinate with, and provide assistance to, NASCAR and any
entity that is a party to a Television Contract and/or Radio Contract in
connection with the broadcast, recording and/or reporting of the Event,
before, during or after the Event, by providing adequate facilities,
support personnel, equipment, and related security, for use by NASCAR and
the contracting entity in the performance of their respective duties under
such contract(s), as they may be requested by NASCAR or the contracting
entity from time to time.
(10) PROMOTER at its expense will provide adequate facilities, personnel,
equipment and services for, and assumes sole responsibility to provide, fire
protection equipment and on-site medical services for competitors, officials,
the public and others, including without limitation cleanup crews, towing and
flatbed wreckers. PROMOTER at its expense will make advance arrangements with
local hospitals and physicians for the prompt and efficient treatment of any and
all injuries occurring during the Event.
(11) PROMOTER at its expense will furnish adequate security personnel (in
addition to the requirements of paragraph 9) in the pit and garage area, and
will limit access to such areas before, during and after the Event to authorized
individuals and equipment. PROMOTER is solely responsible and liable for the
actions of security personnel.
(12) PROMOTER at its expense assumes and will perform all business
responsibilities in connection with the Event (except as otherwise provided by
this Agreement), including but not limited to business organization, promotional
activities, managment, general business affairs, ticket sales, track operation
and press accommodations. NASCAR does not warrant, either expressly or by
implication, nor is it responsible for, the financial or other success of the
Event or the number or identity of vehicles or competitors participating in the
Event.
(13) PROMOTER will not schedule or permit any private race truck practice
or test runs for the seven (7) days immediately preceding the first day of
official practice for the Event without prior written approval by NASCAR.
PROMOTER will not schedule any ancillary events or activities at a time or in a
manner that will interfere with the conduct of the Event or NASCAR's activities
in conjunction with the Event. PROMOTER will notify NASCAR at least ten (10)
business days prior to the Event of any such ancillary events or activities and
will cooperate with NASCAR to eliminate the possibility of such interference.
PROMOTER will not permit such ancillary events or activities if, in the sole
judgement of NASCAR, such event or activity will interfere with the conduct of
the Event or NASCAR's activities in conjunction with the Event. Except with
respect to scheduling as set forth herein, NASCAR shall have no involvement in
or responsibility for such ancillary events or activities; PROMOTER shall be
solely responsible for the conduct of such events or activities. The ancillary
events or activities covered by this paragraph include without limitation other
motorsports events, thrill shows, live performances and/or helicopter rides.
PROMOTER further agrees to notify NASCAR of any private race truck testing
and/or practice done at the racetrack pursuant to and in accordance with the
1998 NASCAR Craftsman Truck Series Private Race Truck Testing Policy.
OFFICIAL ENTRY BLANK
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(14) An Official Entry Blank for the Event will be composed, printed,
published and distributed by NASCAR, and will constitute the sole official
statement as to the date, place, schedule and length of the Event, eligibility
requirements for competitors, and monetary and non-monetary awards.
(15) PROMOTER will notify NASCAR prior to contracting for any Additional
Award. NASCAR may reject a proposed Additional Award in its entirety, require
different terms for the proposed Additional Award, or require a reallocation of
the distribution of such an award among competitors, if in NASCAR's sole
judgement the proposed award will not advance the nature of the competition,
will have an adverse impact on the Event, or will be detrimental to the sport of
automobile racing, NASCAR, any sponsors of the Event, or any sponsors of the
NASCAR Craftsman Truck Series. NASCAR's determination in that regard will be
binding on PROMOTER. PROMOTER assumes full
Exhibit 1 to Sanction Application and Agreement Form
Page 3 of 8
responsibility for, and will indemnify NASCAR against, any liability or costs
incurred as a result of NASCAR's determination with respect to any proposed
award arranged by or through PROMOTER. All Additional Awards are subject to
independent verification by NASCAR. In the event an Additional Award is offered
by PROMOTER, or others, at a NASCAR sanctioned event, or an Award is offered by
the PROMOTER at a non-NASCAR sanctioned event which in any way utilizes the
points system, money standings, or any other NASCAR sanctioned race related
results without NASCAR's expressed approval, NASCAR may cancel or rescind this
Agreement immediately. In the event an Award or Additional Award is offered by a
third party without NASCAR's expressed approval, PROMOTER shall cooperate with
NASCAR to prohibit or enjoin the third party from offering such an Award or
Additional Award. Cooperation by PROMOTER shall include, but is not limited to,
the assignment of PROMOTER's rights to enjoin the third party. If PROMOTER, in
NASCAR's sole discretion, fails to cooperate fully with NASCAR to prohibit or
enjoin an Award or Additional Award offered by third party, NASCAR may cancel or
rescind this Agreement immediately.
(16) PROMOTER will submit to NASCAR, no later than sixty (60) calendar days
before the date of the Event, a list of any and all proposed Additional Awards
(as defined above) for the Event not previously included in Exhibit 2 of this
Agreement. If either PROMOTER or NASCAR contracts for Additional Awards after
publication of the Official Entry Blank, then, subject to the provisions of
paragraph 15, NASCAR in its sole discretion may publish and distribute a
supplement to the Official Entry Blank posting the Additional Awards.
(17) PROMOTER will not publish an official or unofficial entry blank or
supplement, or any other form setting forth monetary or non-monetary awards,
without prior written approval from NASCAR. PROMOTER will not advertise or
otherwise disseminate any information as to monetary or non-monetary awards for
the Event other than those specified in the Official Entry Blank or
NASCAR-approved supplement.
(18) NASCAR will use its best efforts to consult with the PROMOTER
regarding postponement of an Event, but the decision to postpone an Event and
the selection of the postponed date will be made by NASCAR in its sole
discretion and will be binding on PROMOTER. Publication by PROMOTER of a
postponement and/or postponed date that has not been approved by NASCAR is not
binding upon NASCAR.
PROMOTER'S FINANCIAL AND INSURANCE OBLIGATIONS
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(19) PROMOTER will pay to Awards & Achievement Bureau, Inc., a Florida
Corporation, acting as an independent escrow agent, pursuant to the Escrow
Agreement attached hereto as Exhibit 3, not later than the Payment Date set
forth in the Sanction Application and Agreement Form, by wire transfer of funds,
an amount equal to the sum of the PROMOTER's Purse and Point Fund and the
Sanction Fee, plus any other monies due NASCAR for the Event pursuant to this
agreement, unless otherwise directed by NASCAR in writing. Time is of the
essence. If said monies and fees are not paid in the manner and by the Payment
Date, NASCAR at its option may (a) cancel and rescind this Agreement, or (b)
enforce collection of said monies and fees by suit or action, in which case
PROMOTER will pay all costs incurred by NASCAR in connection therewith,
including reasonable attorney's fees.
(20) PROMOTER at its expense will obtain and maintain public liability
insurance for the Event that is acceptable to NASCAR, with a minimum combined
single limit equal to the total of all (i) spectator injury and property damage
and (ii) PROMOTER's legal, pit, track and product liability available to the
PROMOTER for the Event, but not less than $10,000,000.00 per occurrence (unless
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NASCAR approves in writing a lesser limit). PROMOTER will deliver to NASCAR at
Daytona Beach, Florida no later than the Notification Date set forth in the
Sanction Application and Agreement Form, a certified true copy(s) of all public
liability insurance policies in force for the Event. In all such policies and in
all other public liability policies obtained and maintained by the PROMOTER or
PROMOTER's parent, the following will be named as insured or additional insured:
National Association for Stock Car Auto Racing, Inc., its shareholders,
directors, officers, employees, agents, officials, and members; all drivers,
truck owners, truck sponsors, mechanics, and all sponsors for the Event or the
series of which the Event is a part. The above required insurance will also
include all excess and/or umbrella insurance that is maintained by the PROMOTER.
All policies shall be primary regardless of insurance carried by NASCAR or other
additional insureds, and contain a cross liability endorsement acceptable to
NASCAR. If PROMOTER fails to deliver such policies to NASCAR by the date
provided, or if PROMOTER fails to maintain such policies with the required
minimum coverage throughout the Event, NASCAR may cancel and rescind this
Agreement immediately and without notice to the PROMOTER. If the policy or
policies are not acceptable to NASCAR, then NASCAR may obtain the required
insurance from an acceptable insurance company, with acceptable terms, at the
PROMOTER's expense.
Exhibit 1 to Sanction Application and Agreement Form
Page 4 of 8
ADVERTISING AND USE OF REGISTERED MARK
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(21) Each party authorizes the use of its name and registered mark by
the other for publicizing, promoting or advertising the Event. The NASCAR name
and registered mark will only be used as follows:
[("NASCAR")]
[(R)]
The symbol [(R)] will appear as indicated with the NASCAR logo.
PROMOTER at its expense will display the registered trademark and the phrase
"NASCAR-sanctioned NASCAR Craftsman Truck Series Championship Event" in all
publicity, advertising and promotion relating to the Event, including, but not
limited to news releases, advertisements, Event programs and tickets, and
brochures. PROMOTER also will prominently display the NASCAR logo in the
following areas: on the infield grass area, on the track and pit walls, track
billboards and other signage relating to the track, and on all passes, permits,
credentials or similar material relating to the Event. The number and specific
location of such displays, and the color and size of the logo, shall be subject
to NASCAR approval, and PROMOTER will abide by and comply with all
determinations and directives of NASCAR with respect to such matters.
(22) All competitors, including truck owners and drivers, when they
execute the NASCAR Official Entry Blank in connection with the Event, grant to
NASCAR certain rights to their name(s), picture(s), likeness(es) or
performance(s). Subject to the next sentence, NASCAR hereby assigns to PROMOTER
the non-exclusive right to use such competitors' name(s), picture(s),
likeness(es) or performance(s) for the purpose of publicizing, promoting or
advertising the Event, but only to the extent such rights have been released to
NASCAR pursuant to the NASCAR Official Entry Blank. Notwithstanding the
foregoing, NASCAR retains the right to disapprove and prohibit the PROMOTER's
actual or intended use of a competitor's name, picture, likeness or performance
if NASCAR determines in its sole discretion that such use is or will be
detrimental to NASCAR, to the Event, to the series of which the Event is a part,
or to the sport.
(23) PROMOTER will make no misrepresentations of fact in connection with
publicizing, promoting or advertising the Event. If such a misrepresentation is
made (a) the PROMOTER promptly will correct the misrepresentation through a
subsequent PROMOTER publication, (b) NASCAR may correct the misrepresentation
itself through NASCAR publication at PROMOTER's expense and/or (c) NASCAR may
cancel and rescind this Agreement.
(24) PROMOTER acknowledges that the Event is part of the NASCAR
Craftsman Truck Series. PROMOTER will cooperate fully with NASCAR, with the
series sponsor(s), and with any other company that has contracted with NASCAR to
sponsor awards or programs (including without limitation the Xxxxx Beer Pole
Award or the Rookie-of-the-Year Award) that are based in whole or in part on a
competitor's performance in the Event or over a number of NASCAR Craftsman Truck
Series events, in connection with those sponsors' activities, if any, during the
Event. PROMOTER, on its own and at the request of NASCAR, will use its best
efforts to feature such sponsors prominently in all of PROMOTER's advertising,
publicity and promotion in the connection with the Event, and no competitor of
such a sponsor shall be featured therein as prominently as such sponsor.
PROMOTER will take no action that, in NASCAR's sole judgement, will jeopardize
the maintenance or continuation of such sponsorships.
(25) PROMOTER acknowledges that the sale or use, for advertising
purposes, of space at the racetrack, the premises upon which the racetrack is
located and surrounding same, the facilities thereon, or in any publications
distributed in connection with the Event, is an action that could have an impact
upon the existing sponsorships described in paragraph 24 above. Such sale to or
use by competitors of such sponsors shall be subject to prior written approval
by NASCAR, which NASCAR may provide or withhold in its sole discretion.
(26) NASCAR reserves the right to approve or disapprove any advertising,
sponsorship or similar agreement in connection with any Event.
(27) PROMOTER will use the NASCAR NATIONAL PROGRAM PACKAGE, if provided
by NASCAR.
TELEVISION, RADIO AND SIMILAR RIGHTS
------------------------------------
(28) PROMOTER acknowledges that NASCAR, PROMOTER and the competitors
have various performance and related rights in and to the Event, that in order
to market and sell such rights it is necessary that they be aggregated.
Exhibit 1 to Sanction Application and Agreement Form
Page 5 of 8
and that the competitors have or will assign their respective performance and
related rights to NASCAR. PROMOTER hereby assigns to NASCAR any and all
performance and related rights that it may have in and to the Event, including
without limitation any rights that it may to record, promote, broadcast or
rebroadcast, or to contract for the recording, reporting, broadcasting or
rebroadcasting, of the Event through any way, medium or material, including
without limitation television, radio, cable and satellite broadcasts or
rebroadcasts, film productions, videotape reproductions, audiotape reproductions
and the like. PROMOTER further agrees and consents, for itself and its officers,
directors, employees and agents, that NASCAR and its assigns may use the
name(s), picture(s), likeness(es) and performance(s) of the PROMOTER and its
officers, directors, employees and agents for or in connection with television,
radio, cable and satellite broadcasts or rebroadcasts, film productions,
videotape reproductions, audiotape reproductions and the like, before, during
and after the Event, for the purposes of promoting, advertising, recording or
reporting the Event or any other NASCAR-sanctioned event.
(29) If NASCAR enters into a Television Contract and/or a Radio Contract
with respect to the Event, NASCAR will pay to PROMOTER within thirty (30) days
after receipt by NASCAR, or the conclusion of the Event, whichever occurs later
sixty-five percent (65%) of all Television Income and/or Radio Income received
by NASCAR in connection with the Event, and NASCAR will retain for its own
account 10% of such income. If NASCAR enters into a Television Contract and/or a
Radio Contract with respect to multiple events, NASCAR in its sole discretion
will determine the amount of income received pursuant to such contract that is
in connection with the Event, and its determination in that regard will be
binding on the PROMOTER.
(30) If NASCAR enters into a Television Contract and/or a Radio Contract
with respect to the Event, NASCAR will pay into the Event purse prior to the
commencement of the Event twenty-five percent (25%) of all Television Income
and/or Radio Income received or contracted to be received (whichever is greater)
by NASCAR in connection with the Event.
(31) NASCAR will maintain for a period of six (6) years from the date of
the Event (a) true and complete copies of any written Television Contract(s)
and/or Radio Contract(s) and (b) accurate and complete records of all receipts
and disbursements of Television Income and/or Radio Income received in
connection with the Event. Upon request, NASCAR will forward to PROMOTER upon
its execution true and complete copies of any written Television Contract and/or
Radio Contract in connection with the Event.
(32) If the Event or the performance of the Television Contract and/or
Radio Contract is prevented or postponed due to any act of God, force majeure,
inevitable accident, strike or other labor dispute, fire, riot or civil
commotion, government action or decree, inclement weather, failure of technical
facilities beyond the control of the broadcaster(s), the recapture of any time
period scheduled for the live broadcast(s) of the Event for an event of national
importance or emergency, or for any similar reason beyond the control of the
parties to this Agreement or to the Television Contract and/or Radio Contract,
NASCAR will perform its obligations as set forth in the paragraphs above, except
that the monies due thereunder shall be the respective percentages of Television
Income and/or Radio Income actually received. If any monies in excess of those
due under this paragraph have been paid before the prevention or postponement of
the Event or the nonperformance of the Television Contract and/or Radio Contract
as set forth in this paragraph, PROMOTER will refund the excess to NASCAR within
thirty (30) days of the prevention or the delayed staging of the Event or the
nonperformance of the contract, whichever occurs first.
(33) Nothing herein shall be construed to obligate NASCAR to seek,
negotiate or enter into a Television Contract and/or Radio Contract for the
Event. NASCAR's decisions with respect to whether to seek such a contract, the
appropriate entity or entities with which to negotiate or contract, the method
of negotiation, the appropriate monetary and nonmonetary terms of such a
contract (including without limitation the packaging of multiple events in
single contracts), and any other matter relating to the marketing and sale of
the performance rights in connection with the Event will be made in NASCAR's
sole discretion and are binding on the PROMOTER. PROMOTER expressly waives any
and all claims against NASCAR that may arise in connection with the marketing
and sale of those rights. PROMOTER further agrees that NASCAR is not and shall
not be considered to be an agent or other fiduciary of the PROMOTER in
connection with any matter relating to the decision to seek, negotiate, or enter
into a Television Contract and/or Radio Contract.
(34) PROMOTER warrants that it is authorized to grant, and hereby grants,
to NASCAR the non-exclusive right to use any and all sounds, images, pictures,
audiotape, videotape, information and other digital data relating to the Event,
including without limitation Event standings and results, for the purpose of
distribution via the Internet, NASCAR Online or any other NASCAR-authorized
public online service.
Exhibit 1 to Sanction Application and Agreement Form
Page 6 of 8
GENERAL PROVISIONS
------------------
(35) The Event will be conducted in accordance with the NASCAR Touring
Series Rule Book, as it may be amended from time to time, any special rules that
may be published by NASCAR specifically for the Event, and this Agreement. If
NASCAR determines in its sole discretion that PROMOTER has failed to abide by
the provisions of this Agreement, the NASCAR Touring Series Rule Book,
amendments thereto, or any special rules as set forth herein, NASCAR may cancel
or rescind this Agreement. Notice to PROMOTER is effective as set forth in
paragraph 43.
(36) PROMOTER's rights and obligations under this Agreement, and the
sanction given pursuant to it, are not transferable or assignable. NASCAR may
cancel or rescind this Agreement if (a) there is a change, material or
otherwise, in the ownership, control or management of PROMOTER, (b) if the
PROMOTER admits that it is not or will not be able to pay its debts as they
become due, applies for or agrees to the appointment of a receiver or trustee in
liquidation, makes a general assignment for the benefit of creditors, files a
voluntary petition in bankruptcy or a petition seeking reorganization or an
arrangement of creditors under any bankruptcy law, becomes a party against whom
a petition under any bankruptcy law is filed, or is adjudicated a bankrupt under
any bankruptcy law, or (c) if the PROMOTER engages in activity of any kind that
NASCAR determines in its sole discretion to be detrimental to the sport or to
NASCAR.
(37) This Agreement and the sanction granted herein relate solely to the
Event(s) and the date or dates set forth on the Sanction Application and
Agreement Form. Nothing in this Agreement, or in the course of dealing between
the parties, will be construed to require the PROMOTER or NASCAR to enter into
a sanction agreement or to issue a sanction for this or any other Event in the
future.
(38) Nothing in this Agreement will be construed to place NASCAR in the
relationship of a partner or joint venturer with the PROMOTER. The PROMOTER will
not, and has no power to, obligate or bind NASCAR in any manner other than as
provided expressly in this Agreement.
(39) If an Event is postponed or cancelled for any reason (other than a
strike, war, declaration of a state of national emergency, act of God or the
public enemy, or any other cause beyond the control of the PROMOTER) without
either (1) the prior written approval of NASCAR, or (2) during the Event, the
prior oral approval of the NASCAR Official in charge of the Event, or if NASCAR
cancels and rescinds this Agreement pursuant to paragraphs 19, 20, 23 or 35,
NASCAR may elect to retain all or any part of the PROMOTER's Purse and Point
Fund, and other fees and monies received by NASCAR pursuant to this Agreement,
and to utilize the same to reimburse, in whole or in part, NASCAR as well as the
drivers and truck owners, and each of them, for expenses incurred in connection
with the Event, which include but are not limited to salaries, transportation,
lodging, and payments to the pit crew. NASCAR's determination as to what is or
is not a proper expense or as to the manner or the amount of disbursement or as
to whom disbursement is made in this regard is binding on the PROMOTER, as well
as on all drivers and truck owners entered in the Event. Nothing in this
paragraph or in paragraphs 19, 20, 23 or 35 shall be construed to limit or
otherwise affect any right of action by NASCAR for damages, or any other
available remedy, for breach of this Agreement.
(40) NASCAR may modify, alter, change or replace the name of the series of
which the Event is a part, at any time. In that event, PROMOTER shall use the
new name in all communications, advertising, publicity and promotion relating to
the Event.
(41) In the event of litigation arising out of the enforcement of this
Agreement, its terms and conditions, attorney's fees and costs shall be awarded
to the prevailing party.
(42) PROMOTER shall indemnify and hold NASCAR harmless from any and all
claims, allegations, demands, obligations, suits, actions, causes of actions,
proceedings, rights, damages, and costs of any nature arising out of the Event
or this Agreement, unless such claim, allegation, demand, obligation, suit,
action, cause of action, proceeding, right, damage or cost arises solely out of
the act or omission of NASCAR. With respect to any matter falling within the
scope of the PROMOTER's obligation to defend and hold NASCAR harmless, NASCAR
shall be entitled to select counsel to represent it in such matter at PROMOTER's
expense, and that counsel's duties and obligations in all respects shall be to
NASCAR.
Exhibit 1 to Sanction Application and Agreement Form
Page 7 of 8
(43) Unless otherwise permitted herein, notice required by the Agreement
shall be given by facsimile/telecopy, and by overnight mail or other express
service, postage prepaid, addressed as follows:
TO NASCAR: National Association for Stock Car Auto Racing, Inc.
P.O. Box 2875
Daytona Beach, Florida 32120-2875
TO PROMOTER: The Address set forth immediately below the name of the
PROMOTER first listed in the Sanction Application and
Agreement Form.
(44) This agreement shall be construed according to the laws of Florida
and may not be amended except in writing and signed by both parties. Venue
shall lie solely in Volusia County, Florida, and all parties hereto consent to
service of process by, and the personal and subject matter jurisdiction of, the
courts in and for Volusia County, Florida.
(45) The Sanction Application and Agreement Form, including Exhibits 1
and 2 thereto, constitutes the entire agreement between NASCAR and the PROMOTER.
All previous communications and negotiations between NASCAR and the PROMOTER,
whether oral or written, not contained herein are hereby withdrawn and annulled.
End of Exhibit 1
****************************
Exhibit 1 of Sanction Application and Agreement Form
Page 8 of 8
EXHIBIT 1-A
-----------
To Sanction Application and Agreement Form
------------------------------------------
NASCAR AND PROMOTER further agree as follows:
PROMOTER will display the NASCAR 50th Anniversary Logo, to be provided
by NASCAR to the PROMOTER at a later date, in all publicity, advertising and
promotion relating to the Event, including, but not limited to news releases,
advertisements, Event programs and tickets, and brochures. During all of 1998,
including but not limited to the Event, PROMOTER will prominently display the
NASCAR 50th Anniversary logo in the following areas: on the infield grass area,
on the track and pit walls, track billboards and other signage relating to the
track, and on all passes, permits, credentials or similar material relating to
the Event. The number and specific location of such displays, and the color and
size of the logo, shall be subject to NASCAR approval, and PROMOTER will abide
by and comply with all determinations and directives of NASCAR with respect to
such matters.
End of Exhibit 1-A
****************************
EXHIBIT 2
TO SANCTION APPLICATION AND AGREEMENT FORM FOR THE
MEMPHIS "200"
NASCAR and PROMOTER agree as follows:
RACING PURSE............................................... *
NASCAR CRAFTSMAN TRUCK SERIES BONUS PLAN................... *
NASCAR CRAFTSMAN TRUCK SERIES CHAMPION..................... *
NASCAR POINT FUND.......................................... *
TELEVISION AWARDS.......................................... *
----------
MINIMUM PROMOTER'S PURSE AND POINT FUND.................... *
NASCAR TELEVISION FEE...................................... *
----------
TOTAL...................................................... *
* Indicates certain Confidential Information has been omitted. The
Confidential Information has been filed separately with the Securities and
Exchange Commission.
Exhibit 3
---------
To Sanction Application and Agreement Form
------------------------------------------
AGREEMENT FOR SERVICES
OF PAYING AGENT
THIS AGREEMENT FOR SERVICES OF PAYING AGENT (the "Agreement"), by and
between the PROMOTER as designated below and defined in the Sanction Application
and Agreement Form (the "Promoter") and the Awards & Achievement Bureau, Inc. a
Florida Corporation (the "Paying Agent"),
WITNESSETH:
WHEREAS, the Promoter and the National Association for Stock Car Auto
Racing, Inc. ("NASCAR"), have entered into that certain Sanction Application and
Agreement Form (including any amendments thereto per applicable Bulletins (the
"Sanction Agreement") in respect of the Event as set forth in the Sanction
Agreement (the "Event"); and:
WHEREAS, pursuant to the terms of the Sanction Agreement, a sanction fee
and certain other monies are to be paid to NASCAR (the "NASCAR Fees"), and
drivers' purses, awards and certain other monies are to be paid to entrants in
respect of the Event (the "Awards," and together with the NASCAR Fees, the
"Disbursements"), each such Disbursement requiring the services of a paying
agent; and
WHEREAS, the Promoter and NASCAR have identified and agreed to appoint
Awards & Achievement Bureau, Inc. as the Paying Agent for the Disbursements; and
WHEREAS, Awards & Achievement Bureau, Inc. has expressed its desire and
willingness to serve as Paying Agent for the Disbursements;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the parties hereto do mutually agree as
follows:
SECTION 1. Appointment of Paying Agent. The Promoter does hereby
---------------------------
appoint Awards & Achievement Bureau, Inc. as Paying Agent
for the Disbursements. In discharging its responsibilities,
the Paying Agent will perform the duties specified in this
Agreement, including the following:
Send to NASCAR one or more checks representing, in the aggregate, the
NASCAR Fees described in the Event's Sanction Agreement.
Send to entrants in the Event checks representing the Awards, in amounts
specified in the Event's Official Entry Blank, net of any withholding of
applicable federal, state and other taxes as directed by the Promoter.
Transmit collected taxes and related information to the Promoter for the
Promoter's information reporting and tax payment purposes.
SECTION 2. Payment.
-------
(a) By the Promoter. On or before the Payment Date as set forth in
---------------
the Sanction Agreement, the Promoter will transfer to the Paying Agent
immediately available funds in an amount equal to the Disbursements, to
be deposited into an account selected and maintained by the Paying
Agent.
(b) By the Paying Agent. The Paying Agent's obligation to pay amounts
-------------------
comprising the NASCAR Fees or the Awards or any portion of either such
amounts shall at all times be conditioned upon the Promoter's compliance
with the terms and provisions of Section 2(a) hereof, and nothing in
this Agreement shall be construed to require the Paying Agent to advance
its own funds for any purpose.
(c) NASCAR Fees. The NASCAR Fees shall be payable by check drawn in
-----------
favor of NASCAR at the corporate office of NASCAR in Daytona Beach,
Florida or at any other location identified in writing by NASCAR, on
or before the Payment Date as set forth in the Sanction Agreement.
(d) Point Fund. The Paying Agent shall transfer the Point Fund to the
----------
account maintained to collect and disburse Point Fund proceeds.
(e) Awards. The Awards (other than the Point Fund) shall be paid by
------
checks drawn on forms approved by NASCAR and mailed by first-class
mail on or before ten business days immediately following the Event to
Event entrants in amounts set forth in the Official Entry Blank for
the Event, as approved by the Promoter and NASCAR. The Paying Agent
may use the addresses of the entrants as provided by NASCAR.
(f) Taxes Withheld and Collected. The Promoter shall be solely responsible
----------------------------
for satisfaction of any information reporting and tax withholding
obligations in respect of the Disbursements. The Promoter shall
identify in a writing taxes to be withheld by the Paying Agent from
amounts described in Section 2(e), the Paying Agent shall withhold
those taxes and such collected taxes shall be paid by check made to
the Promoter transmitted on or before the date on which Awards are
disbursed pursuant to Section 2(e).
(g) Miscellaneous. All payments described in this Section 2 shall be made
-------------
in lawful money of the United States of America.
SECTION 3. PAYMENT OF FEES BY PROMOTER. For the services to be provided
---------------------------
by the Paying Agent pursuant to this Agreement, the Promoter agrees to reimburse
the Paying Agent for its reasonable out-of-pocket expenses (e.g., bank fees,
telephone, postage, taxes, mail insurance premiums, supplies) and to pay the
following fees:
Event Fee $500.00
Check Fee $2.00 per check issued.
The Promoter shall pay the Paying Agent the amounts due under this Section 3
within ten days after presentation by the Paying Agent of a written invoice
therefor.
SECTION 4. DUTY OF CARE. The Paying Agent shall be under a duty to the
------------
Promoter to exercise good faith and due diligence in the performance of its
functions as Paying Agent under this Agreement. With regard to the particular
functions it performs, the Paying Agent shall have the same duty and obligation
to NASCAR and Event entrants and shall have the same rights and privileges as
the Promoter has in regard to those functions.
SECTION 5. AGENTS OF THE PAYING AGENT. The Paying Agent may provide for
--------------------------
its responsibilities under this Agreement to be carried out by agents of the
Paying Agent and may sub-contract for the work to be performed. The Paying
Agent shall be responsible for the acts of its agents and subcontractors insofar
as the performance of the Paying Agent's duties under this Agreement are
concerned.
SECTION 6. INDEMNIFICATION. The Promoter shall indemnify and hold the
---------------
Paying Agent and its officers and employees harmless from and against any and
all losses, costs, charges, expenses, judgments, and liabilities arising out of
claims made by third parties arising out of the transactions contemplated by
this Agreement; provided, however, that such indemnification shall not apply to
-------- -------
any such losses, costs, charges, expenses, judgments, or liabilities caused by
the gross negligence or willful misconduct of the Paying Agent, or its officers,
agents or employees.
SECTION 7. RESIGNATION BY THE PAYING AGENT. The Paying Agent may at any
-------------------------------
time resign as Paying Agent by giving thirty (30) days' written notice to the
Promoter and such resignation will
Exhibit 3 of Sanction Application and Agreement Form
Page 2 of 3
take effect at the end of thirty (30) days, or upon the earlier appointment of a
successor Paying agent mutually agreeable to NASCAR and the Promoter. Such
notice to the Promoter may be served personally or sent by registered mail.
Upon Payment of the Paying Agent's fees and expenses, the Paying Agent agrees to
deliver any pertinent material to the Promoter or successor Paying Agent on or
before the effective date of the resignation.
SECTION 8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
----------------------
and inure to the benefit of the successors and assigns of the respective parties
hereto.
SECTION 9. COMPLETENESS OF AGREEMENT. This Agreement constitutes the full
-------------------------
and complete agreement between the Promoter and the Paying Agent and no other
understanding or agreement, whether written or oral, shall bind either of the
parties hereto.
SECTION 10. AMENDMENTS. The parties may make amendments to this
----------
Agreement from time to time, provided that such amendment shall be reduced to
writing and shall be executed as an addendum to this Agreement in the same
manner as this Agreement has been executed.
SECTION 11. SECTION HEADINGS. The headings of the several sections
----------------
contained herein are for convenience only and do not define, limit or construe
the contents of such sections.
SECTION 12. NOTICE. Any notice required to be given by this Agreement
------
shall be given to the parties at the address as follows:
To Promoter: The Address set forth immediately below the name
of the Promoter first listed in the Sanction Application and
Agreement Form.
To The Paying Agent: Awards & Achievement Bureau, Inc.
0000 X Xxxxxxxxxxxxx Xxxxxxxx Xxxx
Xxxx 0
Xxxxxxx Xxxxx, XX 00000-0000
SECTION 13. APPLICABLE PROVISIONS OF LAW. This Agreement shall be
----------------------------
governed by and construed in accordance with the laws of the State of Florida.
SECTION 14. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Promoter and the Paying Agent have executed this
Agreement as of the date first written above.
Submitted this 22nd day of October, 1997.
---- ------- --
Memphis Motorsports Park, Inc.
------------------------------
(Promoter)
By: /s/ Xxxxxxxxxxx X. Xxxx
------------------------
Xxxxxxxxxxx X. Xxxx President
------------------- -------------------
(an authorized officer) (title)
Witnessed by: /s/ Xxxxx X. Xxxxxx Corporate Secretary
-------------------- -------------------
(title)
Accepted and Approved this _________ day of ______________, 19_____.
Awards & Achievement Bureau, Inc. a Florida Corporation
By:_______________________ __________________
(an authorized officer) (title)
Witnessed By:_____________ __________________
(title)
End of Exhibit 3
