Exhibit 10.28
CART, INC.
AND
[CUSTOMER TEAM NAME]
CART ENGINE LEASE AGREEMENT 2003 ONE [1] CAR CONTRACT
ENGINE LEASE AGREEMENT
This engine lease agreement is entered into on the ____ day of _________,
2002, by and between CART, Inc., a Michigan corporation ("CART") located at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Racing, whose principal place of business is __________________________________
(the "Team").
RECITALS
A. Cosworth Racing, Inc. ("Cosworth") has developed a 2.65 turbocharged
racing engine known as XFE for use in the CART Racing Series and CART
has purchased a number of the XFE race engines for the 2003 and 2004
race seasons.
B. Team wishes to enter into a lease agreement with CART whereby, under the
terms and conditions hereof, CART will lease to Team, Cosworth XFE
engines.
Therefore, in consideration of the mutual covenants and obligations
contained herein, the parties agree as follows:
I. ENGINE LEASE.
CART agrees to lease to Team three (3) XFE engines (the "Engine")
specifically for use in the 2003 Race Season ("Engine"). The Engines provided to
Team shall be received from a pool of engines owned by CART and maintained by
Cosworth. Team understands that it will not always be in possession of the same
Engines, but will always be in possession of up to three (3) Engines that meet
the specifications set forth on Schedule 1. Under no circumstances shall Team be
entitled to be in possession of more than three (3) Engines and, Team will
always have possession or the immediate right to acquire three (3) Engines.
II. ENGINE SERVICE AGREEMENT.
Team and CART agree that the engines leased hereunder will be maintained by
Cosworth and Team agrees that it has or will, upon execution of this Agreement,
enter into an "CART Customer Engine Service Agreement" with Cosworth on the
terms and conditions acceptable to CART, Cosworth and the Team. The engines will
be serviced by Cosworth as provided in the CART Customer Engine Service
Agreement which shall govern the use and maintenance of the engines.
III. INSTALLATION KIT.
CART will provide to Team at no additional cost, one (1) Installation Kit
as described on Schedule 1 attached hereto (the "Installation Kit"). Such
Installation Kit shall be returned to CART upon termination of this Agreement.
IV. ENGINE ABUSE AND CRASH DAMAGE.
Engine abuse shall mean the occurrence of any of the circumstances
described in the CART Engine Customer Service Agreement. Crash damage shall
include any damage caused to an engine, while in the possession of Team, which
results from either damage which is
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incurred in connection with racing activities, transportation of the engines or
any other damage which occurs while the engine is in the possession of the Team.
Team agrees that it will be responsible for and pay for all engine abuse
and crash damage by arranging with Cosworth to have the engine either replaced
or fixed as is necessary.
V. PAYMENT.
Team shall pay to CART a one time lease payment for the 2003 Racing Season
in the amount of One Hundred Thousand Dollars ($100,000), payable in four (4)
equal installments of $25,000 on the first day of January, April, July and
October of 2003.
VI. DELIVERY AND RETURN OF ENGINES.
CART will arrange with Cosworth for the delivery and return of all race
engines. Since the engines will be from an engine pool and be maintained by
Cosworth on behalf of CART, Team agrees to comply with Cosworth's requirements
with respect to delivery and return of the engines.
VII. TERM.
The term of this Agreement shall commence on the execution of this
Agreement and shall terminate on November 30, 2003.
VIII. TEAM'S OBLIGATIONS.
Team will provide an adequately funded competitive team for and will make
one entry in each CART race for 2003 and comply with all of the terms and
conditions of the CART, Inc. 2003 Entrant Support and Participation Agreement.
The Team will comprise the requisite competent skilled driver, technicians and
other key personnel.
The Team will: a) not run or test the engine outside of the Team's car; b)
not open, break the seals, modify, strip, repair or rebuild the whole or any
part of the engine or the Installation Kit; c) obtain Cosworth's prior written
approval to any electrical or other modification to the Team's car that may
effect the engine's performance; d) take all reasonable and proper care of the
engines and the Installation Kit and indemnify CART against loss of or damage to
the engines or the Installation Kit howsoever caused; and e) not during the term
of this Agreement run any engine in a CART race other than the Engine.
IX. SPONSORSHIP.
Team agrees that it will display "Cosworth" decals as provided in the CART
Customer Engine Service Agreement and engine badge decals as required by CART.
X. WARRANTIES AND LIABILITIES.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY OR OTHERWISE, NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE OF ANY
KIND OR NATURE WHATSOEVER REGARDING THE ENGINE, INSTALLATION KIT OR LEASE KIT
HAS BEEN, IS OR WILL BE MADE BY OR ON BEHALF OF CART INCLUDING, BUT NOT LIMITED
TO, ANY REPRESENTATION OR
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WARRANTY OF THE CAPACITY, CONDITION, SUITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, PERFORMANCE, RELIABILITY, USE, QUALITY OR MERCHANTABILITY FOR ANY
PARTICULAR PURPOSE AND ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES HEREBY
ARE WAIVED BY TEAM AND EXCLUDED FROM THIS AGREEMENT, IT BEING UNDERSTOOD AND
AGREED THAT THE SUPPLIED ITEMS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." CART
SHALL NOT HAVE ANY OBLIGATION OR LIABILITY TO TEAM IN TORT, CONTRACT OR OTHER
THEORY FOR ANY LOSS, INJURY OR DAMAGE THROUGH TEAM, ITS EMPLOYEES, DRIVERS,
AGENTS OR CONTRACTORS AS A RESULT OF ANY DEFECT IN OR THE PROVISION FOR USE OF
ANY OF THE ITEMS WHICH ARE THE SUBJECT OF THIS AGREEMENT.
TO THE EXTENT PERMITTED BY LAW, TEAM HEREBY WAIVES ANY RIGHTS NOW OR
HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE CART TO SELL,
LEASE OR OTHERWISE USE ANY ENGINES OR RELATED EQUIPMENT IN MITIGATION OF DAMAGES
OF CART OR WHICH MAY OTHERWISE LIMIT OR MODIFY ANY OF THE RIGHTS REMEDIES OF
CART.
TO THE EXTENT PERMITTED BY LAW, TEAM HEREBY WAIVES ANY AND ALL RIGHTS
CONFERRED UPON A LESSEE AS PROVIDED IN STATE LAW.
XI. RELEASE AND INDEMNIFICATION
No officer or employee of CART will be liable to the Team in any
circumstances for any loss, expense or damage of any kind (direct, indirect,
financial or consequential and whether arising from negligence or otherwise)
arising from any act or omission of his during the performance of his employment
or other duties. All officers and employees of CART from time to time will be
entitled to the benefit of the exemptions, limitations, terms and conditions in
this Agreement, and for this purpose only CART enters into this Agreement as
their agent.
The Team agrees that the risk of personal injury or death to individuals as
a result of racing the car powered by the Engine (whether a test or race) is
substantial but it is a normal and ordinary risk insured against by the Team.
Team shall defend, indemnify and hold harmless, CART, its parent,
subsidiaries, and affiliated entities and the respective officers, directors,
shareholders, employees, agents, distributors, dealers, successors and assigns,
from and against any and all losses, claims, actions, suits, proceedings,
damages, costs and expenses, including reasonable attorneys fees, arising out of
or in connection with or related to the Team's racing and testing activities
including, without limitation, damage or injury to, or death of, any Team
employee, driver, agent or contractor; the performance or non-performance by or
any breach or default of, team under this agreement, including, but not limited
to, any of Team's testing or racing activities contemplated hereby, except that
Team's indemnification obligation hereunder shall not apply to any losses
resulting from the gross negligence or wilful misconduct of CART.
The Parties recognise that the section is reasonable having regard to the
unique environment of CART racing and the totality of the commercial
arrangements between them including (without limitation) the amounts payable by
the Team to CART hereunder and to the fact that if CART were to accept
additional or more expensive liability than that prescribed in such clauses CART
would require to be paid, and the Team would agree to pay higher amounts.
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XII. FORCE MAJEURE
Neither party will be liable to the other party for non-performance or
delay in performance of any of its obligations under this Agreement due to
causes reasonably beyond its control including without limitation fire, flood,
strikes, labour troubles or other industrial disturbances, government
regulation, war, terrorism, civil commotion and riots. Upon the occurrence of
such force majeure condition the affected party will immediately notify the
other party with as much detail as possible and will promptly inform the other
party of any further developments. Immediately after the cause is removed, the
affected party will proceed with the performance of such obligations with all
due speed.
XIII. INSURANCE.
The Team will (at its own expense) insure the engines and the Installation
Kit throughout the period that the Team is in possession or the Engines and
Installation Kit are under its control and such insurance being with an
insurance company acceptable to CART providing: 1.) indemnity with respect to
all risks of material loss or damage except when the Engines and Installation
Kit are being used for racing or testing to a value of $150,000 per Engine and
full replacement value of the Installation Kit of $30,000; and 2.) an indemnity
with respect to third party liability in an amount equal to $5,000,000 per
occurrence. Under no circumstances may title to the Engines pass to the
insurance company, even in the event of a total loss claim.
XIV. OWNERSHIP.
The Engine and Installation Kit is and shall at all times be and remain,
the sole exclusive property of CART. Team shall have no right, title or interest
therein, except as expressly set forth in this Agreement.
XV. MAINTENANCE AND REPAIRS.
Team shall maintain the Engine and Installation Kit in good order and
condition of repair, safety, cleanliness, and appearance, ordinary wear and tear
excepted and shall properly make all repairs and replacements necessary and
appropriate to so maintain the Engine and Installation Kit.
XVI. TERMINATION.
This Agreement may be terminated by CART at any time or from time to time
upon one (1) day's notice if any of the following occur:
A. Team fails to enter into and abide by the terms and conditions of
the CART Customer Engine Service Agreement with Cosworth;
B. Fails to enter any CART Race without the prior written approval of
CART; or
C. Breaches any of the terms or conditions of this Agreement.
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XVII. ASSIGNMENT OR SUBLEASE.
Except as otherwise expressly permitted in this Agreement, Team shall not
license, sublease, sell, assign, convey, transfer, lend or encumber the Engine
or Installation Kit. Team shall not assign this Agreement without first
obtaining CART's express written consent to such assignment, which may be
withheld at CART's sole discretion.
XVIII. NON-WAIVER.
No failure by CART to exercise any option hereunder or to enforce its
rights or seek its remedies upon any default, and no acceptance by CART of any
payments occurring before or after any default, shall affect or constitute a
waiver of CART's rights to exercise that option, enforce that right, or seek
that remedy with respect to that default or any prior or subsequent default.
XIX. NO THIRD PARTY BENEFIT.
This Agreement is intended for the benefit of CART and Team and, except as
otherwise provided in this Agreement, their respective successors and assigns,
and nothing contained in this Agreement shall be construed as creating any right
or benefits in or to any third party.
XX. NOTICES.
Any notice or request required or desired to be given to either party shall
be in writing and shall be deemed given when delivered personally to that party
or deposited in the United States mail, first class, postage prepaid, addressed
to that party at the address set forth at the beginning of this Agreement or, in
either case, to such other addresses as that party may theretofore have
designated in notice to the party giving notice.
XXI. GOVERNING LAW.
This Agreement has been negotiated and executed in the State of Indiana. It
is the intention of all parties to this Agreement that all questions concerning
the intention, validity, or meaning of this Agreement or related to the rights
and obligations of the parties with respect to performance hereunder shall be
construed and resolved in accordance with the laws of the State of Indiana.
XXII. COMPLETE AGREEMENT.
This document (including all schedules and exhibits attached to this
Agreement, which are hereby incorporated herein by reference) contains the
entire agreement between the parties and supercedes any prior discussions,
representations, warranties, or agreements between them respecting the subject
matter hereof. No changes, alterations, modifications, additions, or
qualifications to this Agreement shall be made or be binding unless made in
writing and signed by each of the parties.
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In witness whereof, this Agreement is entered into on the date first set
forth above.
CART, INC. TEAM
By:____________________________________ By:____________________________________
Name:__________________________________ Name:__________________________________
Title:_________________________________ Title:_________________________________
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Schedule 1 - Installation kit
Each full season entry will receive included in the lease fee a single, two part
installation kit each year. This kit will service one chassis only and kits for
any spare cars must be purchased.
MECHANICAL INSTALLATION KIT (LOLA PART NUMBERS TABULATED, REYNARD BRACKETED)
--------------------------------------------------------------------------------
PART NO. DESCRIPTION QTY/KIT
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XF8951 Wastegate assy (cans and actuator) 2
--------------------------------------------------------------------------------
XF2091 Exhaust elbow (1) 8
--------------------------------------------------------------------------------
XF1077 Mount - fuel pump 1
--------------------------------------------------------------------------------
XF0475 Retaining nut - fuel pump 1
--------------------------------------------------------------------------------
XF0491 (XF1345) Drive quill - fuel pump 1
--------------------------------------------------------------------------------
XF1323 Retaining clip - fuel pump 1
--------------------------------------------------------------------------------
PR2883 Bolt - fuel pump retaining 1
--------------------------------------------------------------------------------
XF2924 Dummy load cell 1
--------------------------------------------------------------------------------
XF2976 Bung - oil tank 1
--------------------------------------------------------------------------------
PP1849 Circlip - oil level sensor 1
--------------------------------------------------------------------------------
PP4887 'o' ring - oil level sensor 2
--------------------------------------------------------------------------------
PP5321 'o' ring - oil level sensor 1
--------------------------------------------------------------------------------
KK2064 G.p.s. drive kit 1
--------------------------------------------------------------------------------
XD0257 Diffuser ring - plenum end 1
--------------------------------------------------------------------------------
XD0258 Diffuser ring - turbo end 1
--------------------------------------------------------------------------------
XD1423 Bung - UEGO sensor boss 2
--------------------------------------------------------------------------------
PR4067 Washer - UEGO sensor boss 2
--------------------------------------------------------------------------------
XF Filter - air 1
--------------------------------------------------------------------------------
XF3340 Adapter - fuel tank scavenge filter 2
--------------------------------------------------------------------------------
XF3339 Filter - fuel tank scavenge 2
--------------------------------------------------------------------------------
(1) Team is responsible for exhaust system which will conform with CART
specified lengths and diameters.
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ELECTRICAL INSTALLATION KIT (LOLA PART NUMBERS TABULATED, REYNARD BRACKETED)
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PART NO. DESCRIPTION QTY/KIT
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XF9042 (XF9053) Loom assy - chassis - complete r/h and l/h 1
--------------------------------------------------------------------------------
XF8896 (XF8901) Loom assy - low vis 1
--------------------------------------------------------------------------------
XF8895 (XF8900) LOOM ASSY - DASH 1
--------------------------------------------------------------------------------
XF9046 (XF9057) Loom assy - steering wheel 1
--------------------------------------------------------------------------------
XF9045 (XF9050) Steering column and loom assy 1
--------------------------------------------------------------------------------
XD8842 (XF8932) G.p.s. assy 1
--------------------------------------------------------------------------------
XF9058 Gearshift sensor 1
--------------------------------------------------------------------------------
XF9049 Stuck throttle cut off switch assy 1
--------------------------------------------------------------------------------
XF9051 Boost adjuster 1
--------------------------------------------------------------------------------
XF8779 Pig-tail Loom - POV 1
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XD8252 Pressure Transducer - top can 1
--------------------------------------------------------------------------------
XF8231 Bench programming lead 1
--------------------------------------------------------------------------------
XF8199 Cable - comms ext 1
--------------------------------------------------------------------------------
XF8957 Loom assy - download 1
--------------------------------------------------------------------------------
XF8974 Loom assy - dummy battery 1
--------------------------------------------------------------------------------
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