Exhibit 10.2


 


	
  

  	
   

  	
  PROMOTER ORIGINAL

  



 


 


SANCTION
AGREEMENT


NASCAR
NEXTEL Cup Series


 


	
  EVENT NAME:

  	
   

  	
  MBNA
  AMERICA “400”

  
	
   

  	
   

  	
   

  
	
  DATE OF EVENT:

  	
   

  	
  September 24,
  2006

  
	
   

  	
   

  	
   

  
	
  PROMOTER:

  	
   

  	
  Dover
  International Speedway, Inc.

  
	
   

  	
   

  	
   

  
	
  TRACK:

  	
   

  	
  Dover
  International Speedway

  



 


 


P.O. BOX
2875 • DAYTONA BEACH, FLORIDA 32120-2875
• (386) 253-0611


www.nascar.com


 





















 


SANCTION AGREEMENT


 


This Sanction
Agreement (“Agreement”) between National Association for Stock Car Auto Racing, Inc.
(“NASCAR”), a corporation with its principal offices located in Daytona Beach,
Florida, and PROMOTER (identified on Exhibit 1 to this Agreement), is
entered into and is effective as of the Effective Date (specified on Exhibit 1
to this Agreement).


 


RECITALS


 


WHEREAS, NASCAR
sanctions and conducts, among other things, stock car racing events and series
of events throughout the United States and the world; and


 


WHEREAS, PROMOTER
owns and/or controls the Facility (as hereinafter defined); and


 


WHEREAS, PROMOTER
wishes to have NASCAR sanction and conduct a stock car racing event, as part of
the 2006 NASCAR NEXTEL Cup Series, at the Facility; and


 


WHEREAS, NASCAR is
willing to sanction and conduct such event for the year 2006 in accordance with
the terms of this Agreement;


 


NOW, THEREFORE,
NASCAR and PROMOTER, in consideration of the mutual promises set forth below,
and intending to be legally bound, agree as follows:


 


AGREEMENT


 


1.                   Definitions.
In addition to the definitions of words that may appear in other locations
in this Agreement, including the Recitals above, the following words have the
following meanings when used in this Agreement:


 


a)                                      “Additional
Awards” means any monetary or non-monetary award by, or contracted through, PROMOTER,
for distribution based upon the Event, other than (i) purse, (ii) point
fund, (iii) Winner’s Circle and Plan awards, and (iv) the entry award
for the NASCAR NEXTEL Cup Series Champion.


 


b)                                     “Ancillary
Rights” means (i) any and all rights to film, tape, photograph, capture,
overhear, collect or record, and to simultaneously or thereafter reproduce,
broadcast, transmit or distribute, by any means, process, medium or device,
whether or not currently in existence, all images, sounds and electronic data
generated during and in connection with the Events, and (ii) any and all
copyrights and all other intellectual property and proprietary rights worldwide
in and to such images, sounds and electronic data, any recording, broadcast or
transmission thereof, and any work derived therefrom, provided, however,
that “Ancillary Rights” does not include “Live Broadcast Rights” or rights in
or to NASCAR Intellectual Property or Third Party Marks, but shall include
rights in or to a live transmission pursuant to a specialty subscription cable
package or product of one or more Events (such as pay-per-view or the like).


 





















 


c)                                      “Competition”
means that portion of the Event during which the actual racing competition and
all competitive activity related thereto occurs, including registration,
inspections, time trials, practice runs, post-race inspections, either on the
date(s) specified in Exhibit 1 hereto or on any postponed dates.


 


d)                                     “Competitor”
has the same meaning as that term has in the Rule Book.


 


e)                                      “Event”
means the Competition listed on Exhibit 1 to this Agreement and all other
activity at the Facility during the period of time commencing 48 hours prior to
the beginning of registration for the Competition and ending 24 hours after
such Competition.


 


f)                                        “Event
Broadcast Income” means an amount calculated by multiplying the percentage
listed in Exhibit 1 of this Agreement by all Live Broadcast Income
received by NASCAR or the NASCAR Rights Affiliate(s) pursuant to Live Broadcast
Contract(s) during the calendar year in which the Event is held.


 


g)                                     “Event
Net Ancillary Rights Income” means an amount calculated by multiplying the
percentage set forth in Exhibit 1 of this Agreement by all Net Ancillary
Rights Income received during the calendar year in which the Event is held.


 


h)                                     “Facility”
means the racetrack listed on Exhibit 1 to this Agreement, the premises
upon which the racetrack is located and surrounding the racetrack, all
buildings and other structures thereon, and all airspace above the racetrack
and surrounding premises, to the extent owned or controlled by PROMOTER.


 


i)                                         “Live
Broadcast” means the live transmission of the performance of a NASCAR NEXTEL
Cup Series event, and any replay(s) thereof, by broadcast television
signal or cable television signal within the United States, its territories,
possessions and commonwealths.


 


j)                                         “Live
Broadcast Rights” means any and all rights to engage in a Live Broadcast and
directly related broadcast activity (for example, tape-delayed broadcasts,
single re-broadcasts and support programming).


 


k)                                      “Live
Broadcast Contract” means any contract, agreement or other enforceable
obligation, whether oral or written, entered into between NASCAR or a NASCAR
Rights Affiliate and any other entity or entities, for the license, assignment
or other transfer of any Live Broadcast Rights.


 


1)                                      “Live
Broadcast Income” means all monies actually received by NASCAR or a NASCAR
Rights Affiliate pursuant to a Live Broadcast Contract and attributed by NASCAR
to the Live Broadcast of NASCAR NEXTEL Cup Series events during the
calendar year in which the Event is held, reduced by any amounts that NASCAR or
a NASCAR Rights Affiliate is obligated to pay to third party broadcasters
pursuant to agreements relating to their broadcast and option rights for NASCAR
NEXTEL Cup Series and Busch Series events after 2000.


 


m)                                   “NASCAR
Intellectual Property” means all trademarks, service marks, trade names,
patents, copyrights, domain names, trade dress and the like owned by NASCAR,
excluding Live Broadcast Rights and Ancillary Rights and any work derived
therefrom.


 


n)                                     “NASCAR
Rights Affiliate” means any corporation, partnership or other legal entity that
is (1) an affiliate or an assignee of NASCAR or controlled, directly or
indirectly by NASCAR, and (2) engaged solely in the business of exploiting
Live Broadcast Rights or Ancillary Rights for purposes of generating Live
Broadcast Income and Net Ancillary Rights Income and performing all necessary
activities incident thereto.


 


2





















 


o)                                     “Net
Ancillary Rights Income” means the aggregate gross revenue received by NASCAR
and all NASCAR Rights Affiliates, during the calendar year in which the Event
is held, as a result of the exploitation of Ancillary Rights and Live Broadcast
Rights, reduced by (i) Live Broadcast Income received during the relevant
calendar year, and (ii) the aggregate of all reasonable deductions of
NASCAR or the NASCAR Rights Affiliates, including but not limited to ordinary
business expenses, amortization, depreciation and federal and state income and
property taxes; provided, however, that in no event shall Net
Ancillary Rights Income include income, revenue or any other consideration
received or generated by NASCAR for the license of, assignment of, or other
transfer of rights in or to, any NASCAR Intellectual Property, including
without limitation transfers in connection with the sale, advertising or
promotion by NASCAR or any third party of products or services of any nature.


 


p)                                     “Official”
means “NASCAR Officials” and “NASCAR Supervisory Officials” as those terms are defined
in the Rule Book.


 


q)                                     “Rule Book”
means the Rule Book published by NASCAR for NASCAR NEXTEL Cup Series events
that is in effect at the time of the Event, and any amendments thereto and
other special rules published by NASCAR specifically for the Event.


 


NASCAR’S GENERAL OBLIGATIONS


 


2.                   Sanction
For Event. NASCAR hereby grants its sanction to PROMOTER for the
Competition. So long as such sanction is in effect and not terminated, PROMOTER
shall organize, promote and hold the Event, including the Competition, in
accordance with this Agreement.


 


3.                   Conduct
and Control Over Competition. NASCAR shall conduct the Competition,
through its officers and designated Officials, in accordance with the Rule Book,
this Agreement, and any amendments to the Rule Book. NASCAR shall have
sole control over the conduct of the Competition in all of its phases.
Interpretation and application of the Rule Book are committed to NASCAR’s
sole discretion, and are final and unreviewable except to the extent provided
in the Rule Book. PROMOTER shall cooperate fully with NASCAR to permit it
to conduct the Competition in accordance with this Agreement and the Rule Book.


 


4.                   Postponement.
NASCAR will attempt to consult with PROMOTER regarding postponement of a Competition,
but the decision to postpone a Competition and the selection of the postponed
date will be made by NASCAR and will be binding on PROMOTER. PROMOTER shall not
publish or otherwise announce a postponement of the Competition and/or a
postponed date for the Competition without the prior written approval of
NASCAR. If PROMOTER makes such a publication or announcement without NASCAR’s
prior written approval, it shall not be binding upon NASCAR and PROMOTER shall
hold NASCAR harmless for any and all expense, loss or damage caused by such
publication or announcement.


 


PROMOTER’S GENERAL OBLIGATIONS


 


5.                   Control
and Maintenance of the Facility. PROMOTER represents and warrants that,
in connection with the Event, it currently has and will maintain sole control
of the Facility, and that it has and will maintain full authority to permit the
Event to be conducted at the Facility. PROMOTER shall maintain the Facility in
good repair at all times relevant to the Event, ready for use by Competitors,
Officials, NASCAR, sponsors, and persons or entities involved in the Live
Broadcast of or creation or exploitation of Ancillary Rights at the Event.
PROMOTER is solely responsible and liable for the safety of such persons while
on, entering or leaving the Facility. PROMOTER warrants that the Facility is and
will remain in a condition suitable for the Event, that the racing surface of
the track will not be substantially altered or changed (whether by painting,
sealing, resurfacing or otherwise) without the prior written consent of NASCAR
and that the PROMOTER will advise NASCAR in advance of any and all planned
improvements or alterations to those portions of the facility that are related
to the competition.


 


3





















 


6.                   Repairs
and Upgrades to the Facility. Upon request, PROMOTER shall provide
NASCAR or its designated representative(s) full access to the Facility. If
NASCAR determines that the Facility or any part of it is in a condition
unsatisfactory for the Event, including without limitation the surface of the
racetrack, the garage area, the pit area, race control, timing and scoring and
areas, registration areas, structures or equipment used for the Live Broadcast
of or the creation or exploitation of Ancillary Rights at the Event, PROMOTER
shall repair, replace or upgrade the unsatisfactory portion to the satisfaction
of NASCAR. If NASCAR determines that it is necessary to resurface the racetrack,
such resurfacing shall be completed by PROMOTER sufficiently in advance of the
Event to allow for tire and private car testing. If NASCAR determines that
there is insufficient time to place the racetrack, or any other portion of the
Facility, in a condition suitable for the Event, NASCAR may postpone or cancel
the Event. Notwithstanding the foregoing or any other term of this Agreement,
PROMOTER is solely responsible for the safety of the Facility and is solely
liable for injury or damage caused by or arising out of the condition of the
Facility.


 


7.                   Compliance
with Laws. PROMOTER shall comply with all local, state and federal laws
and regulations applicable to the organization, promotion and occurrence of the
Event and shall obtain all necessary licenses, permits or other governmental
approvals required for the Event. PROMOTER shall make all appropriate filings
of forms or other documents required by federal, state or local laws in
connection with the Event. 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)
with respect to the purse or other amounts payable with respect to the Event.


 


8.                   Control
of and Responsibility for the Public. PROMOTER is solely responsible
and liable for the safety of the public during the Event. PROMOTER shall
furnish adequate facilities, personnel (including security personnel), equipment
and services for accommodating and controlling the public and adhering to
NASCAR’s required security standards during the Event provided that PROMOTER is
given a copy of such required security standards prior to 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.                   Personnel
and Equipment for the Conduct of the Event and Live Broadcast and Ancillary
Rights Activities. PROMOTER shall provide access to the Facility for
any person or entity involved in the conduct of the Event, including without
limitation NASCAR employees, agents and Officials, and shall furnish adequate
facilities, support personnel, equipment, and related security, for use by
NASCAR in the exercise of NASCAR’s rights and obligations, as they may be
requested by NASCAR from time to time, including but not limited to facilities
for office administration, registration, timing, scoring, car inspection, race
direction, officiating and prize money distribution. PROMOTER shall also
provide access to the Facility for any person or entity involved in the Live
Broadcast of or the creation or exploitation of Ancillary Rights at the Event,
and adequate facilities, support personnel, equipment, and related security,
for use by such persons or entities in the performance of their duties, as they
may be requested by NASCAR from time to time. Without in any way limiting the
foregoing, PROMOTER shall, with respect to the Event:


 


a)                                      provide
one (1) 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 entity principally involved in the
Live Broadcast of 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 such entity, 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 with automatic transmissions, each with
the NASCAR mark or logo (as designated by NASCAR) 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;


 


4





















 


d)                                     cooperate
with NASCAR in pre-race and Victory Lane ceremonies, award presentation and photographs,
including without limitation ensuring that NASCAR has reasonable time
immediately following the Competition for Victory Lane ceremonies, NASCAR award
presentations and NASCAR sponsor recognitions;


 


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 and equipment to spread the oil dry at NASCAR’s direction;


 


f)                                        provide
personnel to secure the entry into the pits and garage areas during competition
periods at NASCAR’s direction;


 


g)                                     provide
personnel to secure the garage area on a continuous, 24-hour/day basis
beginning the first day the Facility is open for inspection and ending when
released by the NASCAR NEXTEL Cup Series Director;


 


h)                                     deliver
to the garage area before the morning of raceday twice the number of chairs
(minimum of 150) as cars starting in the race for use by Competitors at the
pre-race meeting; provide an enclosed, climate-controlled area of adequate
size, as determined by NASCAR, in the garage area in which NASCAR can conduct
pre-race meetings, safety meetings and other assemblies during the Event;


 


i)                                         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;


 


j)                                         coordinate
with NASCAR all tours of the garage areas, including the times, number of
participants and other arrangements;


 


k)                                      provide
a suitable location (as determined by NASCAR) for a minimum of four (4) large
trailers containing NASCAR equipment and facilities, adequate electricity
(including without limitation 220 volts 100 amps services with female range
outlets for the NASCAR trailers), air conditioning, heat, telephone (including
a track phone extension) and water facilities as requested by NASCAR;


 


l)                                         coordinate
with NASCAR to ensure that NASCAR has a minimum of ten (10) minutes
immediately before, during or after driver introductions for NASCAR awards
presentations;


 


m)                                   provide
a control tower of adequate size, as determined by NASCAR, with an unobstructed
view of the racing surface for the purpose of monitoring the Event by NASCAR
personnel and others, with electricity, air conditioning, heat, telephone
(including a track phone extension), a sufficient number of chairs (minimum of
14) with cushions for all operational personnel, television monitors for both
feeds (as set forth in Section 9.a)), water facilities and other
utilities, supplies and equipment as requested by NASCAR;


 


n)                                     provide
a registration facility of adequate size 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;


 


o)                                     provide
adequate trash receptacles in the garage and pit areas and coordinate with the
NASCAR NEXTEL Cup Series Director the times for trash pick up by track
personnel;


 


p)                                     provide
adequate personnel to sweep and clean up the garage and pit areas on a daily
basis;


 


q)                                     provide
adequate parking areas and parking passes/permits for a minimum of three
hundred twenty five (325) vehicles, for the exclusive use of Competitors and
NASCAR Officials adjacent to or near


 


5





















 


the
garage area, and an additional fifty (50) parking places and passes/permits in
close proximity to the NASCAR track suite to be used at NASCAR’s discretion;


 


r)                                        provide
NASCAR with an observation booth no less than 600 square feet, air conditioned,
heated, with electricity, television monitors, etc., with an unobstructed view
of the racing surface and adequate seating for the purpose of monitoring the
Event by NASCAR personnel and others, including all necessary admission tickets
and/or access stickers for personnel to gain admission to the observation
booth, during the Event;


 


s)                                      provide
NASCAR with two hundred twenty-five (225) reserved choice grandstand admission tickets,
for the Event and two hundred (200) choice grandstand tickets for NASCAR NEXTEL
Cup Series Budweiser Pole Qualifying, such tickets to be delivered to
NASCAR no later than thirty (30) calendar days prior to the Event


 


t)                                        enter,
and use its best efforts to cause any manufacturer of Event merchandise to
enter, into a cross licensing agreement with NASCAR to use the NASCAR Marks (as
defined in Section 19.a) below) in conjunction with all Event merchandise;


 


u)                                     prominently
display (by painting or otherwise) the Official Logos (as defined in subsection 19.a)i))
in and around the Facility, and in all promotion of the Event, to NASCAR’s
satisfaction, including but not limited to:


 


i)                                         at
all Facility entrances in some fashion such as flags and/or banners;


 


ii)                                      in
an area inside the track, such as the infield grass, such that it is highly
visible to grandstand seating and from the air;


 


iii)                                   in
the backdrop to Victory Lane and pre-race ceremonies;


 


iv)                                  on
any and all print and television advertising promoting the Event;


 


v)                                     on
the front cover of the Event Program;


 


vi)                                  on
any and all Event tickets, suite passes, and credentials;


 


vii)                               in
the Track Media Center;


 


provided,
however, that the Official Logos shall not, without NASCAR’s prior
written approval, be placed in close proximity to a third party’s marks so as
to create a commercial impression that the third party is associated with
NASCAR or the NASCAR NEXTEL Cup Series;


 


v)                                     cooperate
fully with nascar.com staff, including but not limited to prominently displaying
(by painting or otherwise) the nascar.com address in an area of the track, such
as the infield grass, that is highly visible to grandstand seating and from the
air;


 


w)                                   cooperate
fully with the NASCAR public relations staff;


 


x)                                       cooperate
fully with any entity involved in the exploitation of Live Broadcast Rights or
Ancillary Rights (“Entity”), including but not limited to:


 


i)                                         providing
reasonable access to the Facility for the purpose of facilitating the Entity’s broadcast,
transmission, or recording of the Event (including free parking for any and all
Entity employees and equipment), including but not limited to providing
reasonable space and locations as determined by the Entity for its announcers,
and for the installation and


 


6





















 


operation
of all microphones, television cameras, and related equipment to be used by
such Entity in connection with its production and transmission (including
satellite uplink);


 


ii)                                      supplying
and assuring the availability of such electrical power as is necessary to
operate such equipment and all necessary lighting for a first quality
television production in color;


 


iii)                                   permitting
the Entity to install, maintain, and remove from the Facility such wires,
cables, and equipment as may be necessary for the Event;


 


iv)                                  permitting
installation of announcers’ booths, camera platforms, and similar structures
for the facilitation of broadcast productions of motorsports events;


 


v)                                     providing
adequate and necessary space for any mobile units, trailers and other necessary
support units required by the Entity for the transportation and maintenance of
equipment and personnel by the Entity;


 


vi)                                  providing
a booth across from the Start/Finish line, with a clear view of the entire
track, with sufficient space to accommodate a minimum of five (5) people
(the booth shall be at least twelve (12) feet wide and ten (10) feet deep
with a counter twenty (20) inches deep), air-conditioned to sixty-eight (68)
degrees Fahrenheit, as sound proof as practical, wired for one hundred-twenty
(120) volts AC with outlets on the front and side walls, with four (4) chairs
with back support, and with door(s) that can be locked and secured;


 


vii)                               cooperating
with NASCAR and any Entity to ensure exclusive, and if necessary secure or
encrypted, radio frequencies;


 


viii)                            providing meaningful
advanced consultation with NASCAR and the Entity regarding any talent
including, but not limited to, pre- and/or post-race concert performer(s),
national anthem performer(s), invocation deliverer(s), grand marshal(s), engine
start command deliverer(s), honorary starter(s), celebrities, sports figures,
political representatives and/or guests who might take part in pre-race
ceremonies, or others with whom PROMOTER arranges for or contracts with to
participate in the Event; and


 


y)                                     with
respect to any Entity transmitting the Live Broadcast, in addition to the
requirements of Section 9.x) PROMOTER shall:


 


i)                                         provide
a maximum of three hundred (300) choice complimentary tickets for the Competition
and all other activities during the Event, provided that NASCAR shall
require the Entity to notify PROMOTER of the number of such tickets it requires
not later than ninety (90) days prior to the date of the Event;


 


ii)                                      provide
use of one (1) standard luxury track suite for the Competition and all
other activities during the Event;


 


iii)                                   prominently
display four (4) standard size signs, to the Entity’s specifications,
subject to the reasonable approval of PROMOTER and NASCAR;


 


iv)                                  provide
such Entity with one (1) full page four (4) color advertisement
in each Event Program;


 


v)                                     cooperate
fully with any and all requests made by NASCAR with respect to local TV
coverage, including but not limited to allowing such Entity to have absolute
priority with respect to camera and announcing positions, ensuring that local
TV crews do not in any way interfere with such Entity’s production, ensuring
that such local TV coverage will be


 


7





















 


limited
to no more than two (2) minutes of action of competition, which will not
be broadcast until completion of such Entity’s first telecast of the
Competition and not later than ninety six (96) hours following the completion
of the Competition, and ensuring local TV crews do not provide footage to any
regional or national network or news feed;


 


vi)                                  permit
such Entity, if requested in a timely manner, to purchase Event hospitality
chalets;


 


vii)                               use
its reasonable efforts to cause the title sponsor of the Event to buy
advertising in the telecasts of the Event; NASCAR shall in turn include in the
Live Broadcast Contract(s) provisions that (a) prohibit the Entity from
identifying the Event by any name other than the official event title, as
designated by the PROMOTER, or identifying the Facility by any name other than
its official name, as designated by the PROMOTER, (b) require the Entity
to identify the Event by its official event title, as designated by the
PROMOTER, excluding any presenting sponsors, at least once during the opening
segment of the telecast and thereafter at least once during each hour of the
telecast, and (c) prohibit the Entity from superimposing, inserting or
otherwise incorporating on-screen any electronic or “virtual” signage,
promotion or other commercial designation that alters for the television viewer
the actual appearance of the Facility or any portion thereof without the prior
written approval of PROMOTER and NASCAR; and


 


viii)                            at least ninety (90) days
prior to the Event, send such Entity and NASCAR and any international
telecaster scheduled to be broadcasting from the Facility a list naming all
musical compositions scheduled to be played during the Competition or at any
other time when such Entity or international telecaster is scheduled to be
broadcasting from the Facility in connection with the Event, which shall
include the title of each composition and the name of the composer, publisher,
copyright holder, and performing rights holder; and if such Entity is unable to
transmit such composition with respect to the Live Broadcast of the Event
without additional expense and authorizations, PROMOTER agrees (a) to
obtain, at PROMOTER’s expense, authorization to transmit such composition or (b) not
to play such composition at a time when the Entity is scheduled to be
broadcasting from the Facility in connection with the Event.


 


10.            Fire
and Medical Equipment and Personnel. PROMOTER shall provide adequate
facilities, personnel, equipment and services, including without limitation
cleanup crews, towing and flatbed wreckers, for fire protection and on-site
medical services for Competitors, Officials, the public and others in
connection with the Event. PROMOTER shall adhere to NASCAR’s required medical
standards, provided that PROMOTER is given a copy of such medical standards
prior to the Event, and make advance arrangements with local hospitals and
physicians for the prompt, efficient and appropriate treatment of any and all
injuries occurring during the Event.


 


11.            Security
For Pit and Garage Area. PROMOTER shall furnish adequate security
personnel and equipment (in addition to the requirements of Section 8 and
9) in the pit and garage area. PROMOTER shall limit access to such areas
before, during and after the Event solely to authorized individuals (who must
have NASCAR-approved credentials) and equipment. PROMOTER is solely responsible
and liable for the actions of security personnel, provided, however,
that PROMOTER shall ensure that all such security personnel will abide by such
directions or comply with such requests as NASCAR may issue or make from time
to time. PROMOTER will permit any current, valid NASCAR-licensed members,
NASCAR guests, and/or any other persons designated by NASCAR access to the
Facility or portions of the Facility in accordance with the type of credential
issued to them by NASCAR.


 


12.            Business
Responsibilities Relating to
Promotion. PROMOTER shall perform all obligations imposed on it by this
Agreement, including all obligations to provide cooperation, tickets, passes,
services and support equipment set forth in Section 9 of this Agreement,
at its own expense, without contribution by NASCAR. PROMOTER assumes and will
perform all business responsibilities in connection with the promotion of the
Event (except as otherwise provided by


 


8





















 


this Agreement),
including without limitation business organization, promotional activities,
management, general business affairs, ticket sales, Facility operation and
press accommodations.


 


13.            Other
Track Activities. PROMOTER shall not schedule or permit any
private race car practice or test runs at the Facility for the seven (7) calendar
days immediately preceding the first day of official practice for the Event
without prior written approval by NASCAR. PROMOTER shall not schedule or
permit any other entertainment activities at the Facility during the Event
without prior written approval by NASCAR. PROMOTER shall notify NASCAR at least
thirty (30) calendar days prior to the Event of its intention to conduct or
permit any such activities. NASCAR may at its discretion grant its approval
with or without condition, but it shall not unreasonably withhold or condition
its approval. Except with respect to scheduling as set forth herein, NASCAR
shall have no responsibility or liability with respect to such activities, and
PROMOTER shall be solely responsible and liable for such activities. The
entertainment activities covered by this Section 13 include without
limitation other motorsports events, thrill shows, live performances and/or
helicopter rides. PROMOTER further agrees to notify NASCAR of any private race
car testing and/or practice done at the Facility at any time, pursuant to and
in accordance with the NASCAR NEXTEL Cup Series Private Race Car Testing
Policy in effect at the time.


 


OFFICIAL ENTRY BLANK AND AWARDS


 


14.            Preparation
And Publication of Official Entry Blank. NASCAR shall compose, print,
publish and distribute the Official Entry Blank (“OEB”) for the Event. The OEB
shall be the sole official statement as to the date, place, schedule and
length of the Event, the eligibility requirements for Competitors, and monetary
and non-monetary awards. PROMOTER shall 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 shall
not advertise or otherwise disseminate any information as to monetary or
non-monetary awards for the Event other than those specified in the OEB or
NASCAR-approved supplement. If PROMOTER engages in such publication,
advertising or dissemination, PROMOTER shall hold NASCAR harmless for any and
all loss, expense or damage arising out of such activity, and NASCAR at its
option may also terminate the sanction granted by this Agreement and/or pursue
any other remedies against PROMOTER.


 


15.            Additional
Awards.


 


a)                                      If
PROMOTER contracts for Additional Awards, then, subject to the provisions of Section 14,
NASCAR may publish and distribute a supplement to the OEB posting the Additional
Award(s).


 


b)                                     PROMOTER
shall submit to NASCAR, no later than sixty (60) calendar days prior to the
date of the Event, a list of any and all proposed Additional Awards for the
Event. PROMOTER shall obtain NASCAR’s written consent 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 judgment 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 NEXTEL Cup Series. PROMOTER assumes full responsibility for, and will
indemnify NASCAR against, any loss, expense or damage 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.


 


16.            Unauthorized
Awards. PROMOTER shall not offer an award of any kind, at the Event or
any other NASCAR-sanctioned event, or any other non-NASCAR sanctioned event,
which in any way utilizes or relies upon the points system, money standings, or
any other NASCAR-sanctioned race related results, without NASCAR’s prior
written approval. If PROMOTER offers such an award without NASCAR’s prior
written approval, NASCAR may terminate the sanction granted by this Agreement
and/or seek to prohibit or enjoin PROMOTER from offering such an award and/or


 


9





















 


pursue any other remedies
available to it. If such an award is offered by a third party without NASCAR’s
prior written approval, PROMOTER shall cooperate with NASCAR to prohibit or
enjoin the third party from offering such an 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 judgment, fails to
cooperate fully with NASCAR to prohibit or enjoin such an award. NASCAR at its
option may terminate the sanction granted by this Agreement and/or pursue any
other remedies available to it.


 


PROMOTER’S FINANCIAL AND INSURANCE OBLIGATIONS


 


17.            Sanction
Fee, Purse and Point Fund Monies. PROMOTER shall pay to Awards &
Achievement Bureau, Inc., a Florida Corporation, acting as an independent
escrow agent, pursuant to the Escrow Agreement attached hereto as Exhibit 2,
not later than the Payment Date set forth in Exhibit 1 to this Agreement,
by wire transfer of funds, an amount equal to the sum of PROMOTER’s Purse
Money, Point Fund, Television Award Money and Sanction Fee set forth in Exhibit 1
to this Agreement, 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 required and by the
Payment Date specified in Exhibit 1 to this Agreement, NASCAR at its
option may (a) terminate the sanction granted by this Agreement, (b) enforce
collection of said monies and fees by suit or legal action, and/or (c) pursue
any other remedies available to it.


 


18.            Insurance.


 


a)                                      Event Insurance. PROMOTER shall
obtain and maintain comprehensive general liability insurance that is
acceptable to NASCAR for the Event from an insurance company that is acceptable
to NASCAR for (i) spectator injury and property damage and (ii) participant
legal liability, product liability and advertising liability with a minimum
combined single limit equal to but not less than Fifty Million Dollars ($50,000,000.00)
per occurrence, and medical malpractice liability insurance of not less than
One Million Dollars ($1,000,000.00) (unless NASCAR approves a lesser limit in
writing prior to the Event). NASCAR may require that PROMOTER obtain such
insurance in greater amount or scope by providing notice to PROMOTER at least
one- hundred and twenty (120) calendar days prior to the date of the Event.
PROMOTER shall deliver to NASCAR at Daytona Beach, Florida no later than the
Notification Date set forth in Exhibit 1 to this Agreement, a certified
true copy of all public liability insurance policies in force for the Event. In
all such policies and in all other liability policies obtained and maintained
by PROMOTER and PROMOTER’s parent and affiliated company(ies), including
without limitation all umbrella and excess liability policies, the following
will be named as insured or additional insured: National Association for Stock
Car Auto Racing, Inc., CL Bureau, Inc., Delaware General Corporation,
Awards and Achievement Bureau, Inc., Automotive Research Bureau, Inc.,
their shareholders, directors, officers, employees, agents, Officials, members,
parent and subsidiaries; all NASCAR Rights Affiliates; all Competitors; car
sponsors; car owners, all sponsors for the Event or the series of which the
Event is a part; and all third parties with whom NASCAR has contracted with
respect to the exploitation of Live Broadcast Rights and Ancillary Rights. 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 (a) PROMOTER fails to deliver such policies to NASCAR by the
Notification Date, (b) the policies are not acceptable to NASCAR, or (c) PROMOTER
fails to maintain such policies with the required minimum coverage throughout
the Event, NASCAR at its option but at PROMOTER’s expense may obtain the
required insurance from an acceptable insurance company or NASCAR may terminate
the sanction granted by this Agreement immediately and without notice to
PROMOTER and/or pursue any other remedies available to it.


 


b)                                     Broadcast Insurance. NASCAR shall
require the Entity providing the Live Broadcast to maintain statutory and
workmen’s compensation coverages. NASCAR shall require the Entity providing the


 


10





















 


Live
Broadcast to name PROMOTER and NASCAR as additional insureds on its broadcast
and comprehensive general liability policies. These policies shall have a limit
of at least One Million Dollars ($1 million) per occurrence and Two Million
Dollars ($2 million) annual aggregate.


 


c)                                      NASCAR Insurance Plan. The NASCAR
insurance plan (participant/accident coverage in place for NASCAR-licensed
Competitors in NASCAR-sanctioned racing) is not applicable to and does not
provide coverage for Competitors, whether NASCAR-licensed or not, in any
non-NASCAR-sanctioned racing or other activities at the Facility during the
Event that are not expressly listed in this Agreement or in a fully executed
NASCAR sanction agreement pertaining to another NASCAR series running during
the Event.


 


ADVERTISING AND USE OF MARKS


 


19.            Cross
Trademark Licenses.


 


a)                                      Grant
of License by NASCAR. NASCAR hereby grants to PROMOTER a
non-transferable, non-exclusive, royalty-free license to use, strictly in
accordance with the terms of this Agreement, the NASCAR and NASCAR NEXTEL Cup Series marks
listed on Exhibit 3 to this Agreement (collectively, the “NASCAR Marks”)
in connection with the publicity, promotion and advertising of the Event. This
license shall terminate upon the expiration or termination of the sanction granted
by this Agreement.


 


i)                                         Terms and Conditions of Use. PROMOTER
shall display the official NASCAR logo, the official NASCAR NEXTEL Cup Series logo
and the phrase “NASCAR-Sanctioned NASCAR NEXTEL Cup Series Championship
Event” (collectively, the “Official Logos”) in all publicity, advertising and
promotion relating to the Event, in accordance with Section 9.u) of this
Agreement. The number and specific location of such displays and the color and
size of the Official Logos shall be subject to NASCAR approval, and PROMOTER
shall abide by and comply with all determinations and directives of NASCAR with
respect to such matters. NASCAR may disapprove and prohibit PROMOTER’s actual
or intended use of the NASCAR Marks in any location, media or publication if
NASCAR determines 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.


 


ii)                                      Limited Authorization. This license
does not authorize PROMOTER to use the NASCAR Marks in its corporate business
or firm name and title nor to use or permit the use of the marks other than in
accordance with the terms and conditions of this Agreement.


 


iii)                                   Indemnity. NASCAR hereby agrees to
indemnify PROMOTER from any claims or loss arising out of PROMOTER’s use of the
NASCAR Marks in accordance with the terms and conditions of this Agreement.


 


b)                                      Grant
of License by PROMOTER. PROMOTER hereby grants to NASCAR a
non-transferable, non-exclusive, royalty-free license to use and sublicense,
strictly in accordance with this Agreement, PROMOTER’s marks listed on Exhibit 4
to this Agreement (collectively, the “PROMOTER’s Marks”) in connection with
publicity, promotion and advertising of the Event and the NASCAR NEXTEL Cup
Series, and the exploitation of Live Broadcast Rights and Ancillary Rights.
This license shall be perpetual with respect to the exploitation of Live
Broadcast Rights and Ancillary Rights; with respect to all other rights, this
license shall terminate upon the expiration or termination of the sanction
granted by this Agreement.


 


11





















 


i)                                         Terms and Conditions of Use. NASCAR
shall have the right to use and sublicense PROMOTER’s Marks in connection with
publicity, promotion or advertising of the Event and the NASCAR NEXTEL Cup
Series, and the exploitation of Live Broadcast Rights and Ancillary Rights, provided, however, that NASCAR shall not, without the prior
written consent of PROMOTER, use or sublicense the use of PROMOTER’s Marks on
the branding of any retail package product, unless otherwise expressly
permitted in this Agreement.


 


ii)                                      Limited Authorization. This license
does not authorize NASCAR to use PROMOTER’s Marks in its corporate business or
firm name and title nor to use or permit the use of PROMOTER’s Marks other than
in accordance with the terms and conditions of this Agreement.


 


iii)                                   Indemnity. PROMOTER hereby agrees
to indemnify NASCAR from any claims or loss arising out of NASCAR’s use of
PROMOTER’s Marks in accordance with the terms and conditions of this Agreement.


 


20.            Limited
Assignment of Certain Other Rights. Solely to the extent that any other
person or entity grants to NASCAR rights to use and sublicense their name(s),
picture(s), likeness(es) or performance(s) in connection with the Event, NASCAR
hereby grants to PROMOTER a non-exclusive sublicense to use such name(s),
picture(s), likeness(es) or performance(s) for the purpose of publicizing,
promoting or advertising the Event, but not for the purpose of exploiting Live
Broadcast Rights or Ancillary Rights. Notwithstanding the foregoing, NASCAR may
disapprove and prohibit PROMOTER’s actual or intended use of such name,
picture, likeness or performance if NASCAR determines 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.


 


21.            Misrepresentations.
PROMOTER shall make no misrepresentations of fact in connection with publicizing,
promoting or advertising the Event. If such a misrepresentation is made (a) PROMOTER
shall promptly correct the misrepresentation through a subsequent PROMOTER
publication, (b) NASCAR may correct the misrepresentation itself through
NASCAR publication at PROMOTER’s expense, (c) NASCAR may terminate the sanction
granted by this Agreement, and/or (d) NASCAR may pursue any other remedies
available to it.


 


22.            Cooperation
with Sponsors. PROMOTER acknowledges that the Event is part of the
NASCAR NEXTEL Cup Series. PROMOTER shall 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 Bud 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 NEXTEL Cup 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 connection with the Event, and no competitor of such a sponsor
shall be featured therein as prominently as such sponsor. PROMOTER shall take
no action that, in NASCAR’s sole determination, will jeopardize the maintenance
or continuation of such sponsorships. In the event that the series title sponsorship
or official fuel supplier changes after the Effective Date of this Agreement
and prior to the conclusion of the Event, PROMOTER will not renew, extend or
enter into any new agreement with any sponsor that represents a conflict with
the new series sponsor or official fuel supplier during the Event. The
determination of what constitutes a conflict shall be at NASCAR’s sole
discretion. PROMOTER will use best efforts to resolve all existing sponsor
conflicts, if any, relative to these categories in an expeditious manner. PROMOTER
will maintain the full inventory of at-track and Event-related benefits
provided by the PROMOTER to the current series sponsor for the availability of
a new series sponsor. PROMOTER will maintain the full inventory of at-track and
Event-related benefits provided by the PROMOTER to the current official fuel
supplier for the availability of a new official fuel supplier, provided that
the new series sponsor and the new official fuel sponsor shall enter into a
licensing agreement with the PROMOTER with respect to such rights. PROMOTER
shall permit the use of the PROMOTER’s Marks by the new series sponsor and by
the new official fuel supplier for the purposes of reporting, promoting,
publicizing, and advertising the Event, the Series, and/or the new series
sponsor’s or new official fuel supplier’s product/service affiliation with the
Event and/or the Series.


 


23.            Approval of Advertising and Sponsors.
NASCAR reserves the right to approve or disapprove any advertising, sponsorship
or similar agreement in connection with the Event. PROMOTER acknowledges that
the sale or


 


12





















 


use, for
advertising purposes, of space at the Facility or in any publications
distributed in connection with the Event is an action that could have an impact
upon the existing sponsorships described in Section 22 above, or on third
parties who have entered into contracts or other agreements with NASCAR or NASCAR
Rights Affiliates with respect to Live Broadcast Rights or Ancillary Rights.
PROMOTER shall seek written approval by NASCAR prior to such sale to or use by
competitors of such sponsors or third parties, which NASCAR may provide or
withhold in its sole discretion.


 


24.            National
Program Package. PROMOTER shall participate in the NASCAR National
Program Ad Package, including the rules and regulations relating thereto,
if offered.


 


BROADCAST RIGHTS


 


25.            Ownership
of Live Broadcast Rights and Ancillary Rights. PROMOTER acknowledges
that NASCAR, as the entity conducting the Competition, exclusively and in
perpetuity owns the Live Broadcast Rights and Ancillary Rights with respect to
the Competition. In addition, to the extent not already owned by NASCAR,
PROMOTER hereby assigns to NASCAR exclusively and in perpetuity any and all
rights to transmit, film, tape, capture, overhear, photograph, collect or
record by any means, process, medium or device, whether or not currently in
existence, all images, sounds and data arising from or during the Event and
agrees that NASCAR shall be the sole owner of the Live Broadcast Rights and the
Ancillary Rights and any other works, copyrightable or otherwise, created from
the images, sounds and data arising from or during the Event. PROMOTER
represents and warrants that as of the date of this Agreement, it has not
granted to any third party the rights granted in the immediately prior
sentence, including but not limited to rights relating to the Internet or World
Wide Web, unless otherwise expressly disclosed in writing to NASCAR prior to
the date of this Agreement. PROMOTER shall take all steps reasonably necessary,
and all steps reasonably requested by NASCAR, to protect, perfect or effectuate
NASCAR’s ownership or other interest in the rights that are the subject of this
Section 25. Without limiting the foregoing, PROMOTER will include (a) the
broadcast rights language for tickets specified in Exhibit 5 of this
Agreement on all Event admission materials including without limitation
tickets, suite passes and credentials, and (b) the broadcast rights
language for ticket-related material specified in Exhibit 5 of this
Agreement on all renewal forms, ticket brochures and related material
distributed to recipients of such admission materials. PROMOTER may obtain from
NASCAR or a NASCAR Rights Affiliate, without charge to the PROMOTER, images,
sounds or data that are the subject of this Section 25, but only for the
purpose of publicity, promotion or advertising of the Event, and only to the
extent determined by NASCAR to be reasonably required for such purpose.


 


26.            Exploitation
of Live Broadcast Rights and Ancillary Rights. NASCAR may, but shall
not be obligated to, exploit Live Broadcast Rights and Ancillary Rights. If and
to the extent NASCAR decides to exploit such rights, it may form or cause to be
formed one or more NASCAR Rights Affiliates and it may assign some or all of
the rights owned by or granted to it pursuant to Section 25 to the extent
determined by NASCAR to be reasonably necessary to permit such exploitation.
NASCAR or such NASCAR Rights Affiliates may further assign, grant, sell,
license, lease or otherwise transfer such rights, either alone or in
combination with other similar rights, combine Live Broadcast Rights and
Ancillary Rights with other similar rights obtained from other promoters,
Competitors, sponsors, broadcasters or other third parties, enter into
agreements of any kind with respect to any part or all of such rights,
including without limitation agreements with or between NASCAR and other NASCAR
Rights Affiliates, PROMOTER, or third parties, and generally take such action
as they may determine to be appropriate. Subject only to the obligation imposed
on NASCAR by the immediately succeeding sentence in this Section 26,
NASCAR may license, assign, or otherwise transfer rights in or to any NASCAR
Intellectual Property for a commercially reasonable rate to one or more NASCAR
Rights Affiliates, but any income or revenue received or generated by NASCAR as
a result of such a transaction shall be solely for the account of NASCAR or its
assignee and shall not be subject to payment to the PROMOTER or any other
person or entity under the terms of this Agreement. NASCAR shall license,
assign, or otherwise transfer rights in or to any NASCAR Intellectual Property,
without fee, to one or more NASCAR Rights Affiliates to the extent determined
by such Affiliates to be reasonably necessary to permit them to exploit Live
Broadcast Rights.


 


13





















 


27.            Payment
of Live Broadcast Income. On or before five (5) business days
prior to the applicable Payment Date listed in Exhibit 1, NASCAR shall
cause the NASCAR Rights Affiliate(s) engaged in the exploitation of Live Broadcast
Rights to pay thirty percent (30%) of Event Broadcast Income to PROMOTER. On or
before the applicable Payment Date listed in Exhibit 1, PROMOTER shall pay
twenty-five percent (25%) of Event Broadcast Income to Awards and Achievement
Bureau, Inc., acting as an independent escrow agent, for distribution to
the Competitors as part of the purse for the Event. On or before thirty (30)
calendar days after the Event, NASCAR shall cause the NASCAR Rights
Affiliate(s) to pay sixty percent (60%) of Event Broadcast Income to PROMOTER. Notwithstanding
the foregoing:


 


a)                                      PROMOTER
has no right to Event Broadcast Income if the Competition is not commenced and officially
completed (as determined in accordance with the Rule Book).


 


b)                                     If,
for any reason, the Live Broadcast Income to be received by NASCAR or the
NASCAR Rights Affiliate(s) is reduced in whole or in part, or if NASCAR or the
NASCAR Rights Affiliate becomes obligated to repay any portion of Live
Broadcast Income, the NASCAR Rights Affiliate’s obligation to make the payments
otherwise required by this Section 27 shall be reduced by an amount calculated
by multiplying the reduction or repayment by the percentage set forth in Exhibit 1.


 


NASCAR or the
NASCAR Rights Affiliate(s) shall retain the NASCAR Television Retention listed
in Exhibit 1 (10% of Event Broadcast Income) for its own account.


 


28.            Payment
of Net Ancillary Rights Income. NASCAR or the NASCAR Rights Affiliates
engaged in the exploitation of Ancillary Rights shall distribute Net Ancillary
Rights Income as follows:


 


a)                                      Timing.      Within
three months after the end of the calendar year during which the Event is held,
NASCAR or such NASCAR Rights Affiliate(s) shall determine the total amount of
Net Ancillary Rights Income, if any, received by it during that calendar year. Within
thirty (30) calendar days after such determination, NASCAR or such NASCAR
Rights Affiliate(s) shall distribute such Net Ancillary Rights Income pursuant
to the formula set forth in Section 28.b) below. Notwithstanding the
foregoing, PROMOTER has no right to Event Net Ancillary Rights Income if the
Competition is not commenced and officially completed (as determined in accordance
with the Rule Book), unless the sole reason that the Event is not
commenced and officially completed is a strike, war, declaration of a state of
national emergency, or an act of God or the public enemy or other circumstances
beyond the control of PROMOTER).


 


b)                                      Allocation.
NASCAR or such NASCAR Rights Affiliate(s) shall pay: (i) twenty-five
percent (25%) of Net Ancillary Rights Income to Awards & Achievement
Bureau, Inc. for distribution as part of the Point Fund awards at the end
of the next calendar year, for Winners’ Circle or similar programs, or for
other programs designed for the benefit of Competitors, as NASCAR may determine
from time to time and (ii) sixty-five percent (65%) of Event Net Ancillary
Rights Income to PROMOTER. NASCAR or the NASCAR Rights Affiliate(s) shall
retain the remaining ten percent (10%) of Net Ancillary Rights Income for its
own account.


 


29.            Maintenance
of and Access to Contracts and Other Books and Records. Each NASCAR
Rights Affiliate will maintain for a period of six years from the date of the
Event (a) true and complete copies of any written Live Broadcast Rights
Contract relating to the Event and (b) such books and records as are
commercially reasonable for the purpose of auditing its Live Broadcast Income
and Net Ancillary Rights Income received during the calendar year in which the
Event is held. Each NASCAR Rights Affiliate will permit PROMOTER or its
authorized agent to inspect and audit any or all such contracts, books and
records, wherever they may be located or at any other mutually agreeable location,
but only upon reasonable notice and at such reasonable times as determined by
the NASCAR Rights Affiliate, and only at the business premises of the NASCAR
Rights Affiliate where they are located, and subject at all times to Section 36
(relating to confidentiality and proprietary information).


 


14





















 


30.            Limitation
of Liability. NASCAR and the NASCAR Rights Affiliates shall be solely
responsible for, and shall have complete discretion with respect to, the
manner, extent and timing of any license, assignment, transfer or other use or
exploitation of Live Broadcast Rights and Ancillary Rights, either through
independent third parties, NASCAR Rights Affiliates or otherwise. NASCAR and
the NASCAR Rights Affiliates shall have no liability to PROMOTER with respect
to such activities or the amount of Live Broadcast Income or Net Ancillary
Rights Income arising out of or generated by such activities. PROMOTER hereby
promises and covenants not to assert any claim or file any suit or other legal
action against NASCAR or any NASCAR Rights Affiliate on the ground that it or
they have failed in any way, material or otherwise, to exploit, maximize or
earn profits of any kind or amount with respect to Live Broadcast Rights or Ancillary
Rights.


 


GENERAL PROVISIONS


 


31.            Events
of Default. For purposes of this Agreement, “Event of Default” means:


 


a)                                      Failure
of PROMOTER to abide by the material provisions of this Agreement or the Rule Book;


 


b)                                     Failure
of PROMOTER to take such actions, or refrain from taking actions, as reasonably
may be requested by NASCAR in accordance with this Agreement;


 


c)                                      Any
act, omission or condition expressly described in this Agreement as giving
NASCAR the right to terminate this Agreement or the sanction granted by this
Agreement;


 


d)                                     A
change, material or otherwise, in the ownership, control or management of
PROMOTER;


 


e)                                      A
statement by PROMOTER that it is not or will not be able to pay its debts as
they become due; an application or agreement by PROMOTER for the appointment of
a receiver or trustee in liquidation; a general assignment by PROMOTER for the
benefit of creditors; the filing by PROMOTER of a voluntary petition in
bankruptcy or a petition seeking reorganization or an arrangement of creditors
under any bankruptcy law; the filing by another person or entity of a petition
under any bankruptcy law that makes PROMOTER a party; or the adjudication of PROMOTER
as a bankrupt under any bankruptcy law;


 


f)                                        Activity
by PROMOTER of any kind, including without limitation litigation, that NASCAR determines
to be detrimental to the sport or to NASCAR.


 


If there is an Event of
Default, at its option NASCAR may demand that PROMOTER cure any failure or
breach giving rise to the Event of Default or terminate this Agreement or the
sanction granted by this Agreement, and/or NASCAR may withhold from any
payments due to PROMOTER under this Agreement an amount reasonably calculated
to hold harmless NASCAR, NASCAR Rights Affiliates, sponsors, Competitors,
Officials, persons or entities contracting with NASCAR or NASCAR Rights
Affiliates with respect to Live Broadcast Rights or Ancillary Rights, and other
persons or entities involved in the Event from any loss resulting from the
Event of Default. NASCAR’s determination as to such amount is binding on
PROMOTER. NASCAR shall notify PROMOTER in writing of its decision to terminate
and/or to withhold payments. If the sanction is terminated, such termination
shall be effective as of the date the notice was sent by NASCAR or at such
later date as may be specified by NASCAR in the notice. PROMOTER shall promptly
comply with all monetary obligations that have accrued as of the effective date
of termination, and all other terms and conditions of this Agreement shall
survive such termination. Nothing in this Section 31 shall be construed to
limit NASCAR’s other rights or remedies, or to preclude NASCAR from enforcing
such rights or pursuing such remedies to the fullest extent possible.


 


32.            Assignment.
A party may not assign its rights or delegate its obligations under this
Agreement without the prior written consent of the other party, except as
otherwise permitted by this Agreement.


 


33.            Determinations
by NASCAR. Except where expressly stated otherwise, whenever this
Agreement provides or permits NASCAR to make a determination regarding a
matter, NASCAR may make such determination in its


 


15





















 


sole judgment and
discretion, and such determination may not be challenged, amended, voided or
nullified on the ground that it was incorrect or unreasonable.


 


34.            Limited
Application. This Agreement and the sanction granted herein relate
solely to the Event and the date set forth in Exhibit 1 to this Agreement.
Nothing in this Agreement, or in the course of dealing between the parties, will
be construed to require PROMOTER or NASCAR to enter into a sanction agreement
or to issue a sanction for the Event or any other event in the future.


 


35.            Disclaimer
of Warranty. NASCAR (on behalf of itself and each and every NASCAR
Rights Affiliate, whether existing now or created hereafter) does not warrant,
either expressly or by implication, nor is it responsible for, the financial or
other success of the Event, the number or identity of vehicles or Competitors
participating in the Event, the adequacy of the services it provides, the
suitability of the Facility for the Event, the safety of the public, the Competitors
or any other person entering the Facility in connection with the Event, the
financial return from the exploitation of Live Broadcast Rights or Ancillary
Rights, or any other matter not expressly agreed to or warranted by NASCAR
herein.


 


36.            Proprietary
Information; Confidentiality. PROMOTER acknowledges that (i) this
Agreement, (ii) any technical, business or financial information or
documents used, provided or disclosed by NASCAR or any NASCAR Rights Affiliate
in connection therewith or pursuant thereto, (iii) customer lists of any
kind or nature used, provided or disclosed by NASCAR or any NASCAR Rights
Affiliate, (iv) the manner in which NASCAR or any NASCAR Rights Affiliate
engages in the exploitation of Live Broadcast Rights or Ancillary Rights, (v) the
manner in which NASCAR conducts and controls the Competition, (vi) the
manner in which NASCAR promotes the Event, the series of which the Event is a
part, and the sport of stock car racing in general, and (vii) the manner
in which NASCAR forms, promotes and maintains relationships with sponsors,
Competitors, Officials, other promoters, fans and other third parties involved
in the Event (collectively “NASCAR Proprietary Information”), constitutes
information that is proprietary to NASCAR and/or the NASCAR Rights Affiliate
and may not be used by PROMOTER except in connection with the performance of PROMOTER’s
duties under this Agreement. Except for that purpose, PROMOTER shall at all
times and forever maintain NASCAR Proprietary Information in a confidential
manner and shall not disclose it or use it on behalf of itself or any third
party unless it is in the public domain as a result of an act or omission
caused by a person or entity other than PROMOTER. PROMOTER acknowledges that
any unauthorized use or disclosure of NASCAR Proprietary Information that is in
violation of this Section 36, or other violation or threatened violation
of this Section 36, could cause irreparable damage to NASCAR and/or the
NASCAR Rights Affiliate and, therefore, that NASCAR and/or the NASCAR Rights Affiliate(s)
shall be entitled to an injunction prohibiting PROMOTER or any related party
from engaging in such violation and to attorney’s fees and costs for having to
bring any action to enforce this Section 36.


 


37.            No
Joint Venture. Nothing in this Agreement will be construed to place
NASCAR or NASCAR Rights Affiliates in the relationship of a partner or joint
venturer with PROMOTER. Neither party may, or has power to, obligate or bind
the other party in any manner other than as provided expressly in this
Agreement.


 


38.            Series Name.
NASCAR may modify, alter, change or replace the name or sponsor of the series
of which the Event is a part, at any time. In that event, PROMOTER shall use
the new name and related logos or marks in all communications, advertising,
publicity and promotion relating to the Event.


 


39.            Indemnification;
Repayment. PROMOTER shall indemnify and hold NASCAR and all NASCAR
Rights Affiliates and NASCAR additional insureds harmless from any and all
claims, allegations, demands, obligations, suits, actions, causes of action,
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 negligent act or negligent omission of NASCAR or any NASCAR Rights
Affiliate. With respect to any matter falling within the scope of PROMOTER’s
obligation to defend and hold NASCAR and the NASCAR Rights Affiliates harmless,
NASCAR and the NASCAR Rights Affiliate 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 solely to NASCAR and to the NASCAR Rights
Affiliate.


 


16





















 


40.            Recovery
of Attorney’s Fees. In the event of litigation arising out of the
enforcement of this Agreement or its terms and conditions, attorney’s fees and
costs shall be awarded to the prevailing party.


 


41.            Representation
Regarding Ownership of Facility. PROMOTER represents and warrants that,
during the calendar year in which the Event is conducted and at all other times
material to this Agreement, with respect to the Facility and the material
assets thereof, either it holds, and will hold at all times relevant to the
Event: (i) good and marketable title; or (ii) a valid and binding
leasehold or other contractual interest for the management and operation of the
Facility. PROMOTER represents and warrants that it is the direct owner or
lessee of the material assets (other than real estate) of the Facility and no
material assets (other than real estate) of the Facility are owned or leased
through a subsidiary, affiliate, parent corporation, sister corporation or, in
the case of an individual, a family member of the PROMOTER. In the event
PROMOTER is not able to make such representations and warranties as set forth
above, then that entity which can make such representations and warranties must
execute the Guaranty Agreement attached hereto as Exhibit 6.


 


42.            Notice.
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.

  
	
   

  	
   

  	
  1801 West International
  Speedway Boulevard 

  Daytona Beach, FL 32114-1243

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: George F.
  Pyne

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  W. Garrett Crotty, Esq.
  

  (at the same location)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Requests for NASCAR
  approval and/or consent, notification of planned improvements or alterations
  to the Facility, and information the PROMOTER must provide to NASCAR per this
  Agreement to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Steve O’ Donnell

  (at the same location)

  



 


 


TO
PROMOTER: The Address set forth in Exhibit 1 to this Agreement


 


43.            Notification
Change. Either party may change the person(s) or locations to which
notice must be given pursuant to Section 42, by providing written notice
to the other party in accordance herewith.


 


44.            Entire
Agreement; Amendments. This Agreement, including Exhibits 1 through 6
hereto, constitutes the entire agreement between NASCAR and PROMOTER. All
previous communications and negotiations between NASCAR and PROMOTER, whether
oral or written, not contained herein are hereby withdrawn and void. This Agreement
may not be amended except in writing and signed by both parties.


 


45.            Agreement
Binding on Heirs, Successors and Assigns. The rights and obligations
contained in this Agreement shall bind, and inure to the benefit of, the
parties and their respective successors and permitted assigns.


 


17





















 


46.            Governing Law. This Agreement shall
be governed by and construed according to the laws of Florida applicable to agreements
made and to be performed therein (without giving effect to the conflict of law
provisions of such jurisdiction).


 


47.            Jurisdiction. With respect to any
litigation between the parties regarding the Event or this Agreement, 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
state courts in and for Volusia County, Florida.


 


IN WITNESS
WHEREOF, this Agreement has been read and signed by the duly authorized
representative of each party, on the dates set forth below.


 


 


	
   

  	
   

  	
  Dover
  International Speedway, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PROMOTER

  
	
   

  	
   

  	
  BY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   July 12,
  2005

  	
   

  	
   

  	
  /s/ Denis McGlynn

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
  Denis
  McGlynn

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NATIONAL ASSOCIATION
  FOR STOCK CAR

  AUTO RACING, INC.

  BY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   11-15-05

  	
   

  	
   

  	
  /s/ George F. Pyne

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  George
  F. Pyne

  
	
   

  	
   

  	
  Chief
  Operating Officer

  
									



 


18